Conde v. Abaya, 13 Phil.

249 (1909) - Transmissible rights and obligations

Right of action to enforce recognition of its legitimacy last during the lifetime of such child, but right of a natural
child to compel acknowledgement of its status continues only during the life of the alleged parents. The right of
action for a declaration of legitimacy is transmitted to the heirs of the child only when the latter dies during
minority or while insane or in case the action has already instituted. Action by a natural child can only be
brought against the heirs of the parents in the event of the death of the parents during the minority of the child,
or upon discovery of a document, after the death of the parents, expressly acknowledging such child. This right
of action which the law concedes to this natural child is not transmitted to his ascendants or descendants.

 Casiano Abaya, unmarried, died intestate.

 Paula Conde, mother of the natural children Jose and Teopista Conde, alleged that she had them
by Casiano, moved the settlement of the said intestate succession.
 Roman Abaya, Casiano’s brother, came forward, opposed and claimed for himself as being the
nearest relative of the deceased. Thus, he moved that the court declare him to be the sole heir
of Casiano, to the exclusion of all other persons, especially of Paula Conde, and to be therefore
entitled to take possession of all the property of said estate.
 Paula, in replying to the foregoing motion of Roman, filed a petition wherein she stated that she
acknowledged the relationship alleged by Roman Abaya, but that she considered that her right
was superior to his and moved for a hearing of the matter, and, in consequence of the evidence
that she intended to present she prayed that she be declared to have preferential rights to the
property left by Casiano, and that the same be adjudicated to her together with the
corresponding products thereof.
 That the trial was held, both parties presented documentary and oral evidence.

Whether in special proceedings for the administration and distribution of an intestate estate, an
action might be brought to enforce the acknowledgment of the natural child of the person from
whom the inheritance is derived. Or, whether one might appear as heir on the ground that he is a
recognized natural child of the deceased, not having been so recognized by the deceased either
voluntarily or compulsorily by reason of a preexisting judicial decision, but asking at the same time
that, in the special proceeding itself, he be recognized by the presumed legitimate heirs of the
deceased who claim to be entitled to the succession opened in the special proceeding.

According to section 782 of the Code of Civil Procedure —

If there shall be a controversy before the Court of First Instance as to who the lawful heirs of the
deceased person are, or as to the distributive share to which each person is entitled under the
law, the testimony as to such controversy shall be taken in writing by the judge, under oath, and
signed by the witness. Any party in interest whose distributive share is affected by the
determination of such controversy, may appeal from the judgment of the Court of First Instance
determining such controversy to the Supreme Court, within the time and in the manner provided
in the last preceding section.

This court has decided the present question in the manner shown in the case of Juana Pimentel
vs. Engracio Palanca (5 Phil. Rep., 436.) – “While an estate is in the course of settlement in a
special proceeding, no ordinary action can be maintained by a person claiming to be an heir,
 against the executor or administrator, for the purpose of having his rights in the estate
determined.”

Whether or not the mother of a natural child who is now deceased, but who survived the person who,
it is claimed, was his natural father, also deceased, may bring an action for the acknowledgment of
the natural filiation in favor of such child in order to appear in his behalf to receive the inheritance
from the person who is supposed to be his natural father.

In resolving a similar question Manresa says: "An acknowledgment can only be

demanded by the natural child and his descendants whom it shall benefit, and should they be
minors or otherwise incapacitated, such person as legally represents them; the mother may ask
it in behalf of her child so long as he is under her authority." On this point no positive
declaration has been made, undoubtedly because it was not considered necessary. A private
action is in question and the general rule must be followed. Elsewhere the same author adds: "It
may so happen that the child dies before four years have expired after attaining majority, or that
the document supporting his petition for acknowledgment is discovered after his death, such
death perhaps occurring after his parents had died, as is supposed by article 137, or during their
lifetime. In any case such right of action shall pertain to the descendants of the child whom the
acknowledgment may interest."

The above doctrine, advanced by one of the most eminent commentators of the Civil
Code, lacks legal and doctrinal foundation. The power to transmit the right of such action by the
natural child to his descendants can not be sustained under the law, and still less to his mother.

It is without any support in law because the rule laid down in the code is most positive,
limiting in form, when establishing the exception for the exercise of such right of action after the
death of the presumed parents, as is shown hereafter. It is not supported by any doctrine,
because up to the present time no argument has been presented, upon which even an
approximate conclusion could be based.

Although the Civil Code considerably improved the condition of recognized natural
children, granting them rights and actions that they did not possess under the former laws, they
were not, however, placed upon the same place as legitimate ones. The difference that
separates these two classes of children is still great, as proven by so many articles dealing with
the rights of the family and the succession in relation to the members thereof. It may be laid
down as legal maxim, that whatever the code does not grant to the legitimate children, or in
connection with their rights, must still less be understood as granted to recognized natural
children or in connection with their rights. There is not a single exception in its provisions.

If legitimacy is the attribute that constitutes the basis of the absolute family rights of the
child, the acknowledgment of the natural child is, among illegitimate ones, that which unites
him to the family of the father or the mother who recognized him, and affords him a
participation in the rights of the family, relatively advantageous according to whether they are
alone or whether they concur with other individuals of the family of his purely natural father or
mother.
 Thus, in order to consider the spirit of the Civil Code, nothing is more logical than to
establish a comparison between an action to claim the legitimacy, and one to enforce
acknowledgment.

ART. 118. The action to claim its legitimacy may be brought by the child at any time of its
lifetime and shall be transmitted to its heirs, should it die during minority or in a state of
insanity. In such cases the heirs shall be allowed a period of five years in which to institute the
action.

The action already instituted by the child is transmitted by its death to the heirs, if it has not
lapsed before then.

ART. 137. The actions for the acknowledgment of natural children can be instituted only during
the life of the presumed parents, except in the following cases:

1. If the father or mother died during the maturity of the child, in which case the latter may
institute the action before the expiration of the first four years of its maturity.

2. If, after the death of the father or mother, some instrument, before unknown, should be
discovered in which the child is expressly acknowledged.

In this case the action must be instituted with the six months following the discovery of such
instrument.

On this supposition the first difference that results between one action and the other
consists in that the right of action for legitimacy lasts during the whole lifetime of the child, that
is, it can always be brought against the presumed parents or their heirs by the child itself, while
the right of action for the acknowledgment of a natural child does not last his whole lifetime,
and, as a general rule, it can not be instituted against the heirs of the presumed parents,
inasmuch as it can be exercised only during the life of the presumed parents.

With regard to the question at issue, that is, the transmission to the heirs of the
presumed parents of the obligation to admit the legitimate filiation, or to recognize the natural
filiation, there exists the most radical difference in that the former continues during the life of
the child who claims to be legitimate, and he may demand it either directly and primarily from
the said presumed parents, or indirectly and secondarily from the heirs of the latter; while the
second does not endure for life; as a general rule, it only lasts during the life of the presumed
parents. Hence the other difference, derived as a consequence, that an action for legitimacy is
always brought against the heirs of the presumed parents in case of the death of the latter,
while the action for acknowledgment is not brought against the heirs of such parents, with the
exception of the two cases prescribed by article 137 transcribed above.

So much for the passive transmission of the obligation to admit the legitimate filiation,
or to acknowledge the natural filiation.

As to the transmission to the heirs of the child of the latter's action to claim his
legitimacy, or to obtain the acknowledgment of his natural filiation, it is seen that the code
grants it in the first case, but not in the second. It contains provisions for the transmission of the
right of action which, for the purpose claiming his legitimacy inheres in the child, but it does not
say a word with regard to the transmission of the right to obtain the acknowledgment of the
natural filiation.

Therefore, the respective corollary of each of the two above-cited articles is:

(1) That the right of action which devolves upon the child to claim his legitimacy under
article 118, may be transmitted to his heirs in certain cases designated in the said
article;
(2) That the right of action for the acknowledgment of natural children to which article
137 refers, can never be transmitted, for the reason that the code makes no
mention of it in any case, not even as an exception.

It is most illogical and contrary to every rule of correct interpretation, that the right of
action to secure acknowledgment by the natural child should be presumed to be transmitted,
independently, as a rule, to his heirs, while the right of action to claim legitimacy from his
predecessor is not expressly, independently, or, as a general rule, conceded to the heirs of the
legitimate child, but only relatively and as an exception. Consequently, the pretension that the
right of action on the part of the child to obtain the acknowledgment of his natural filiation is
transmitted to his descendants is altogether unfounded. No legal provision exists to sustain such
pretension, nor can an argument of presumption be based on the lesser claim when there is no
basis for the greater one, and when it is only given as an exception in well-defined cases. It is
placing the heirs of the natural child on a better footing than the heirs of the legitimate one,
when, as a matter of fact, the position of a natural child is no better than, no even equal to, that
of a legitimate child.

From the express and precise precepts of the code the following conclusions are
derived:

The right of action that devolves upon the child to claim his legitimacy lasts during his
whole life, while the right to claim the acknowledgment of a natural child lasts only during the
life of his presumed parents.

Inasmuch as the right of action accruing to the child to claim his legitimacy lasts during
his whole life, he may exercise it either against the presumed parents, or their heirs; while the
right of action to secure the acknowledgment of a natural child, since it does not last during his
whole life, but depends on that of the presumed parents, as a general rule can only be exercised
against the latter.

Usually the right of action for legitimacy devolving upon the child is of a personal
character and pertains exclusively to him, only the child may exercise it at any time during his
lifetime. As an exception, and in three cases only, it may be transmitted to the heirs of the child,
to wit, if he died during his minority, or while insane, or after action had been already instituted.

An action for the acknowledgment of a natural child may, as an exception, be exercised

against the heirs of the presumed parents in two cases: first, in the event of the death of the
latter during the minority of the child, and second, upon the discovery of some instrument of
express acknowledgment of the child, executed by the father or mother, the existence of which
was unknown during the life of the latter. But such action for the acknowledgment of a natural
child can only be exercised by him. It can not be transmitted to his descendants, or his
ascendants.

In support of the foregoing the following authorities may be cited:

Sanchez Roman, in his Treatise of Civil Law, propounds the question as to whether said
action should be considered transmissive to the heirs or descendants of the natural child,
whether he had or had not exercised it up to the time of his death, and decides it as follows:

There is an entire absence of legal provisions, and at most, it might be deemed

admissible as a solution, that the right of action to claim the acknowledgment of a natural child
is transmitted by the analogy to his heirs on the same conditions and terms that it is transmitted
to the descendants of a legitimate child, to claim his legitimacy, under article 118, but nothing
more; because on this point nothing warrants placing the heirs of a natural child on a better
footing than those of the legitimate child, and even to compare them would not fail to be a
strained and questionable matter, and one of great difficulty for decision by the courts, for the
simple reason that for the heirs of the legitimate child, the said article 118 exists, while for those
of the natural child, as we have said, there is no provision in the code authorizing the same,
although on the other hand there is none that prohibits it. (Vol. V.)

Diaz Guijarro and Martinez Ruiz in their work on "The Civil Code as construed by the
supreme court of Spain," commenting upon article 137, say:

Article 118, taking into account the privileges due to the legitimacy of children, grants
them the right to claim said legitimacy during their lifetime, and even authorizes the
transmission of said right for the space of five years to the heirs thereof, if the child die during
his minority or in a state of insanity. But as article 137 is based on the consideration that in the
case of a natural child, ties are less strong and sacred in the eyes of the law, it does not fix such a
long and indefinite period for the exercise of the action; it limits it to the life of the parents,
excepting in the two cases mentioned in said article; and it does not allow, as does article 118,
the action to pass on to the heirs, inasmuch as, although it does not prohibit it, and for that
reason it might be deemed on general principles of law to consent to it, such a supposition is
inadmissible for the reason that a comparison of both articles shows that the silence of the law
in the latter case is not, nor it can be, an omission, but a deliberate intent to establish a wide
difference between the advantages granted to a legitimate child and to a natural one. (Ibid., Vol.
II, 171.)

Navarro Amandi (Cuestionario del Código Civil) raises the question: "Can the heirs of a
natural child claim the acknowledgment in those cases wherein the father or mother are under
obligation to acknowledge"? And says:

The court of Rennes held (on April 13, 1844) that the right of investigation forms a part
of the estate of the child, and along with his patrimony is transmitted to his heirs. The
affirmation is altogether too categorical to be admissible. If it were correct the same thing would
happen as when the legitimacy of a child is claimed, and as already seen, the right of action to
demand the legitimacy is not transmitted to the heirs in every case and as an absolute right, but
under certain limitations and circumstances. Now, were we to admit the doctrine of the court of
Rennes, the result would be that the claim for natural filiation would be more favored than one
for legitimate filiation. This would be absurd, because it can not be conceived that the legislator
should have granted a right of action to the heirs of the natural child, which is only granted
under great limitations and in very few cases to those of a legitimate one. Some persons insist
that the same rules that govern legitimate filiation apply by analogy to natural child are entitled
to claim it in the cases prescribed by the article 118. The majority, however, are inclined to
consider the right to claim acknowledgment as a personal right, and consequently, not
transmissive to the heirs. Really there are no legal grounds to warrant the transmission. (Vol. 2,
229.)

In a decision like the present one it is impossible to bring forward the argument of
analogy for the purpose of considering that the heirs of the natural child are entitled to the right
of action which article 118 concedes to the heirs of the legitimate child. The existence of a
provision for the one case and the absence thereof for the other is a conclusive argument
that inclusio unius est exclusio alterius, and it can not be understood that the provision of law
should be the same when the same reason does not hold in the one case as in the other.

The theory of law of transmission is also entirely inapplicable in this case. This theory,
which in the Roman Law expressed the general rule than an heir who did not accept an
inheritance during his lifetime was incapacitated from transmitting it to his own heirs, included
at the same time the idea that if the inheritance was not transmitted because the heir did not
possess it, there were, however, certain things which the heir held and could transmit. Such was
the law and the right to accept the inheritance, for the existing reason that all rights, both real
and personal, shall pass to the heir; quia haeres representat defunctum in omnibus et per omnia.

According to the article 659 of the Civil Code, "the inheritance includes all the property,
rights, and obligations of a person, which are not extinguished by his death." If the mother is the
heir of her natural child, and the latter, among other rights during his lifetime was entitled to
exercise an action of his acknowledgment against his father, during the life of the latter, if after
his death in some of the excepting cases of article 137, such right, which is a portion of his
inheritance, is transmitted to his mother as being his heir, and it was so understood by the court
of Rennes when it considered the right in question, not as a personal and exclusive right of the
child which is extinguished by his death, but a any other right which might be transmitted after
his death. This right of supposed transmission is even less tenable than that sought to be
sustained by the argument of analogy.

The right of action pertaining to the child to claim his legitimacy is in all respects
superior to that of the child who claims acknowledgment as a natural child. And it is evident that
the right of action to claim his legitimacy is not one of those rights which the legitimate child
may transmit by inheritance to his heirs; it forms no part of the component rights of his
inheritance. If it were so, there would have been no necessity to establish its transmissibility to
heirs as an exception in the terms and conditions of article 118 of the code. So that, in order
that it may constitute a portion of the child's inheritance, it is necessary that the conditions and
the terms contained in article 118 shall be present, since without them, the right that the child
held during his lifetime, being personal and exclusive in principle, and therefore, as a general
rule not susceptible of transmission, would and should have been extinguished by his death.
Therefore, where no express provision like that of article 118 exists, the right of action for the
acknowledgment of a natural child is, in principle and without exception, extinguished by his
death, and can not be transmitted as a portion of the inheritance of the deceased child.

On the other hand, if said right of action formed a part of the child's inheritance, it
would be necessary to establish the doctrine that the right to claim such an acknowledgment
from the presumed natural father and from his heirs is an absolute right of the heirs of the child,
not limited by certain circumstances as in the case of the heirs of a natural child with a
legitimate one to place the heirs of a natural child and his inheritance on a better footing than
those of a legitimate child would not only be unreasonable, but, as stated in one of the above
citations, most absurd and illegal in the present state of the law and in accordance with the
general principles thereof.

For all of the foregoing reasons we hereby reverse the judgment appealed from in all its
parts, without any special ruling as to the costs of this instance.