[G.R. No. 111692. February 9, 1996]ALEJANDRO FUENTES, JR., petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.D E C I S I O NBELLOSILLO, J.:

Still professing innocence and insisting that he is a victim of mistaken identity, petitioner Alejandro Fuentes, Jr., seeks reversal of the decision of the Court of Appeals affirming his conviction for murder.[1]

At four o clock in the morning of 24 June 1989 Julieto Malaspina together with Godofredo Llames, Honorio Osok and Alberto Toling, was at a benefit dance at Dump Site, Tudela, Trento, Agusan del Sur. Petitioner called Malaspina and placed his right arm on the shoulder of the latter saying, “Before, I saw you with a long hair but now you have a short hair.”[2] Suddenly petitioner stabbed Malaspina in the abdomen with a hunting knife. Malaspina fell to the ground and his companions rushed to his side. Petitioner fled. Before the victim succumbed to the gaping wound on his abdomen he muttered that Alejandro Fuentes, Jr., stabbed him.[3]

Dr. Porfirio L. Salubre, the Rural Health Physician who autopsied the cadaver of Julieto Malaspina on 24 July 1989, reported that death was due to “stab wound at left lumbar region I V2 in. in length with extracavitation of the small and large intestines.”[4]

Petitioner claims on the other hand that it was his cousin Zoilo Fuentes, Jr., alias “Jonie” who knifed Malaspina; that when the victim was killed he was conversing with him; that he was compelled to run away when he heard that somebody with a bolo and spear would “kill all those from San Isidro” because “Jonie,” the killer, was from that place; that since he was also from San Isidro he sought refuge in his brother’s house where he met “Jonie”; that “Jonie” admitted spontaneously that he stabbed Malaspina because after a boxing match before the latter untied his gloves and punched him; that as there were many persons milling around the house “Jonie” jumped out and escaped through the window; that he was arrested at eight o’clock in the morning of 24 June 1989 while he was in a store in the barangay.[5]

The Regional Trial Court of Prosperidad, Agusan del Sur, found petitioner guilty of murder qualified by treachery and imposed on him an indeterminate prison term of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum, to indemnify the heirs of the victim Julieto Malaspina the amount of P50,000.00 and to pay P8,300.00 as actual damages plus costs.[6]

The Court of Appeals affirmed the judgment of the trial court; hence, this petition for review.

Petitioner contends that the appellate court erred when it held that petitioner was positively and categorically identified as the killer of Malaspina, in affirming the judgment of conviction and in holding petitioner liable for damages to the heirs of the victim.

Petitioner points to an alleged inconsistency between the testimonies of prosecution witnesses Alberto Toling and Honorio Osok to the effect that they saw petitioner stab Malaspina on the right lumbar region, and the testimony of the attending physician that the victim was stabbed on the left lumbar region.

This discrepancy is inconsequential. What is material is that Malaspina was stabbed to death and that three (3) prosecution witnesses positively identified petitioner as the knife wielder. It must be stressed that these witnesses had known petitioner for quite some time and never had any personal misunderstanding nor altercation with the latter as to create any suspicion that they were impelled by ill motives to falsely implicate him.

That it was another person who committed the offense is too incredible. No less than petitioner’s own witness, Nerio Biscocho who claimed he also saw the killing, testified that Alejandro Fuentes, Jr., the petitioner, and “Jonie” Fuentes are one and the same person. Thus -

COURT:Q. Who is this Joni Fuentes and Alejandro Fuentes?A. That Joni Fuentes is the same of that or the accused Alejandro Fuentes. I do not know his real name but he is called as Joni, sir, x x x[7]

On cross-examination witness Biscocho further admitted that he himself would call petitioner Alejandro Fuentes, Jr., as “Joni” or “Jonie” Fuentes, as some of his friends did, but victim Malaspina occasionally called petitioner “Junior.”[8]

Petitioner would make much of the alleged confession of Zoilo Fuentes, Jr., since it is a declaration against penal interest and therefore an exception to the hearsay rule. The so-called confession of Zoilo was allegedly given to Felicisimo Fuentes, the uncle of petitioner and Zoilo, who in turn relayed the matter to P/Sgt. Benjamin Conde, Jr. Felicisimo testified that on 24 June 1989 while he was at Barangay San Isidro, Zoilo Fuentes, Jr., confessed that he killed Malaspina in “retaliation”; that he even showed him the knife he used and asked his help in finding a lawyer, in securing bail and, if possible, in working out a settlement with the relatives of the deceased. The following day however he learned that the self-confessed killer was gone and that petitioner had been arrested for a crime he did not commit.[9]

For his part, Station Commander P/Sgt. Conde, Jr., testified that after the criminal information for murder was filed on 26 July 1989, petitioner met Felicisimo who informed him of the disclosure by Zoilo. Conde then advised Felicisimo that if it was true that it was Zoilo who fatally stabbed Malaspina Felicisimo must persuade Zoilo to surrender. Conde then personally went to Barangay San Isidro to investigate. There he was told by the townsfolk that Zoilo had already fled).[10]

One of the recognized exceptions to the hearsay rule is that pertaining to declarations made against interest. Sec. 38 of Rule 130 of the Rules of Court provides that “(t)he declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at

the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors in interest and against third persons.” The admissibility in evidence of such declaration is grounded on necessity and trustworthiness.[11]

There are three (3) essential requisites for the admissibility of a declaration against interest: (a) the declarant must not be available to testify; (b) the declaration must concern a fact cognizable by the declarant; and (c) the circumstances must render it improbable that a motive to falsify existed.

In the instant case, we find that the declaration particularly against penal interest attributed to Zoilo Fuentes Jr. is not admissible in evidence as an exception to the hearsay rule. We are not unaware of People Toledo,[12] a 1928 case, where Justice Malcolm writing for the Court endeavored to reexamine the declaration of third parties made contrary to their penal interest. In that case, the protagonists Holgado and Morales engaged in a bob duel. Morales was killed almost instantly. Holgado who was seriously wounded gave a sworn statement (Exh. 1) before the municipal president declaring that when he and Morales fought there was nobody else present. One (1) month later Holgado died from his wounds. While the Court was agreed that Toledo, who reportedly intervened in the fight and dealt the mortal blow, should be exonerated on reasonable doubt, the members did not reach an accord on the admissibility of Exh. 1. One group would totally disregard Exh. 1 since there was ample testimonial evidence to support an acquittal. The second group considered Exh. 1 as part of the res gestae as it was made on the same morning when the fight occurred. A third group, to which Justice Malcolm belonged, opined that the court below erred in not admitting Exh. 1 as the statement of a fact against penal interest.

For all its attempt to demonstrate the arbitrariness behind the rejection in certain cases of declarations against penal interest, the Toledo case cannot be applied in the instant case which is remarkably different. Consider this factual scenario: the alleged declarant Zoilo Fuentes Jr., a cousin of accused-appellant, verbally admitted to the latter, and later to their common uncle Felicisimo Fuentes, that he (Zoilo) killed the victim because of a grudge, after which he disappeared. One striking feature that militates against the acceptance of such a statement is its patent untrustworthiness. Zoilo who is related to accused-appellant had every motive to prevaricate. The same can be said of accused-appellant and his uncle Felicisimo. Secondly, we need not resort to legal rhetorics to find that the admission of such a statement may likewise be, according to Wigmore, “shocking to the sense of justice.”[13] Let us assume that the trial court did admit the statement of Zoilo and on that basis acquitted accused-appellant. Let us assume further that Zoilo was subsequently captured and upon being confronted with his admission of guilt readily repudiated the same. There is nothing, absolutely nothing, that can bind Zoilo legally to that statement.

But more importantly, the far weightier reason why the admission against penal interest cannot be accepted in the instant case is that the declarant is not “unable to testify.” There is no showing that Zoilo is either dead, mentally incapacitated or physically incompetent which Sec. 38 obviously contemplates. His mere absence

from the jurisdiction does not make him ipso facto unavailable under this rule.[14] For it is incumbent upon the defense to produce each and every piece of evidence that can break the prosecution and assure the acquittal of the accused. Other than the gratuitous statements of accused-appellant and his uncle to the effect that Zoilo admitted having killed Malaspina, the records show that the defense did not exert any serious effort to produce Zoilo as a witness. Lest we be misunderstood, the Court is always for the admission of evidence that would let an innocent declaration of guilt by the real culprit. But this can be open to abuse, as when the extrajudicial statement is not even authenticated thus increasing the probability of its fabrication; it is made to persons who have every reason to lie and falsify; and it is not altogether clear that the declarant himself is unable to testify. Thus, for this case at least, exclusion is the prudent recourse as explained in Toledo -The purpose of all evidence is to get at the truth. The reason for the hearsay rule is that the extrajudicial and unsworn statement of another is not the best method of serving this purpose. In other words, the great possibility of the fabrication of falsehoods, and the inability to prove their untruth, requires that the doors be closed to such evidence.[15]

The Court of Appeals as well as the trial court correctly determined the crime to be murder qualified by treachery. The suddenness of the attack, without any provocation from the unsuspecting victim, made the stabbing of Malaspina treacherous.[16] However, the court a quo erred in imposing an indeterminate prison term of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion temporal as maximum. Murder under Art. 248 of The Revised Penal Code is punishable by reclusion temporal in its maximum period to death. Since aside from treachery qualifying the crime to murder there is no other modifying circumstance proved, the medium period of the penalty, i.e. reclusion perpetua, should have been imposed on petitioner.[17]

Petitioner maintains that assuming that he committed the crime it is error to hold him answerable for P8,300.00 as actual damages on the basis of the mere testimony of the victim’s sister, Angelina Serrano, without any tangible document to support such claim. This is a valid point. In crimes and quasi-delicts, the defendant is liable for all damages which are the natural and probable consequences of the act or omission complained of.[18] To seek recovery for actual damages it is essential that the injured party proves the actual amount of loss with reasonable degree of certainty premised upon competent proof and on the best evidence available.[19] Courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.[20]

The award by the court a quo of P8,300.00 as actual damages is not supported by the evidence on record. We have only the testimony of the victim’s elder sister stating that she incurred expenses of P8,300.00 in connection with the death of Malaspina.[21] However, no proof of the actual damages was ever presented in court. Of the expenses alleged to have been incurred, the Court can only give credence to those supported by receipts and which appear to have been genuinely expended in connection with the death of the victim. Since the actual amount was not substantiated, the same cannot be granted.[22]

WHEREFORE, the judgment appealed from finding petitioner ALEJANDRO FUENTES JR. guilty of MURDER and directing him to indemnify the heirs of Julieto Malaspina in the amount of P50,000.00 plus costs is AFFIRMED with the modification that the penalty imposed should be as it is corrected to reclusion perpetua, and the award of actual damages is deleted.

SO ORDERED.

[G.R. No. 113685. June 19, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. THEODORE BERNAL, JOHN DOE and PETER DOE, accused-appellants.D E C I S I O NROMERO, J.:

Accused-appellant Theodore Bernal, together with two other persons whose identities and whereabouts are still unknown, were charged with the crime of kidnapping in Criminal Case No. 26658-92 of the Regional Trial Court of Davao City, Branch 10, under an information[1] dated July 13, 1992, which reads as follows:

“That on or about August 5, 1991, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with hand guns, conspiring, confederating and cooperating together and helping one another, and by means of force, violence, intimidation and threat, wilfully, unlawfully, and feloniously grabbed and kidnapped one Bienvenido Openda, Jr., while the latter was drinking liquor with his friends at Bolton Isla, this City and was brought, handcuffed and carried away using a PU then fled together with Bienvenido Openda, Jr., thereby depriving the said Bienvenido Openda, Jr. of his liberty against his will.

CONTRARY TO LAW.”

A plea of not guilty having been entered by Bernal during his arraignment, trial ensued. The prosecution presented four witnesses.[2] On the other hand, Theodore Bernal testified for his defense.

The material facts and events as found by the court a quo are:

It appears that on August 5, 1991, around 11:30 in the morning, while Roberto Racasa and Openda, Jr. were engaged in a drinking spree, they invited Bernal, who was passing by, to join them.

After a few minutes, Bernal decided to leave both men, apparently because he was going to fetch his child. Thereafter, two men arrived, approached Openda, Jr., and asked the latter if he was “Payat.”[3] When he said yes, one of them suddenly pulled out a handgun while the other handcuffed him and told him “not to run because they were policemen” and because he had an “atraso” or a score to settle with them. They then hastily took him away. Racasa immediately went to the house of Openda, Jr. and informed the latter’s mother of the abduction.

The theory of the prosecution, as culled from the testimony of a certain Salito Enriquez, tends to establish that Openda, Jr. had an illicit affair with Bernal’s wife Naty and this was the motive behind the former’s kidnapping. Until now, Openda, Jr. is still missing.

On the other hand, the defense asserts that Openda, Jr. was a drug-pusher arrested by the police on August 5, 1991, and hence, was never kidnapped.[4]

On December 10, 1993, the court a quo rendered judgment[5] finding Bernal “guilty beyond reasonable doubt of the crime of kidnapping for the abduction and disappearance of Bienvenido Openda, Jr. under Article 267 of the Revised Penal Code and hereby sentences him to reclusion perpetua and to indemnify his mother Teresita Openda in the amount of P50,000.00 for her mental anguish and moral suffering.”[6]

Bernal assails the lower court for giving weight and credence to the prosecution witnesses’ allegedly illusory testimonies and for convicting him when his guilt was not proved beyond reasonable doubt.

We find no compelling reason to overturn the decision of the lower court.

The Court notes that up to this day, neither the victim nor his body has been found. This, however, does not preclude the Court from ruling on the merits of the case. In kidnapping, what is important is to determine and prove the fact of seizure, and the subsequent disappearance of the victim will not exonerate an accused from prosecution therefor. Otherwise, kidnappers can easily avoid punishment by the simple expedient of disposing of their victims’ bodies.

Article 267 of the Revised Penal Code provides thus:

“ART. 267. - Kidnapping and serious illegal detention. -

Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made.

4. If the person kidnapped or detained shall be a minor, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.”

For the charge of kidnapping to prosper, the deprivation of the victim’s liberty, which is the essential element of the offense, must be duly proved. In the case at bar, Bernal indisputably acted in conspiracy with the two other unknown individuals “as shown by their concerted acts evidentiary of a unity of thought and community of purpose.”[7] Proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances only.[8] The circumstances present in this case sufficiently indicate the participation of Bernal in the disappearance of Openda, Jr.

The prosecution has profferred sufficient evidence to show that, indeed, Bernal, together with his two companions, abducted Openda, Jr. on August 5, 1991. A certain Adonis Sagarino, a childhood friend and neighbor of the victim, testified that he saw Bernal at the billiard hall at about 11:00 a.m. with his two companions and overheard him dispatching one of them to “Tarsing’s Store” to check if a certain person was still there. This person later turned out to be Openda, Jr. He added that after the latter’s presence was confirmed, the three men left the billiard hall. Minutes later, Openda, Jr., already handcuffed, passed by the billiard hall with Bernal’s companions.

Equally important is the testimony of Roberto Racasa, a resident of Bucana, Davao City who knew both Bernal and the victim, the former being his neighbor and compadre. He narrated that he and the victim were drinking at “Tarsing’s Store” on that fateful day when Bernal passed by and had a drink with them. After a few minutes, Bernal decided to leave, after which, two men came to the store and asked for “Payat.” When Openda, Jr. confirmed that he was indeed “Payat,“ he was handcuffed and taken away by the unidentified men.

Likewise, a certain Salito Enriquez, a tailor and a friend of Openda, Jr., testified that sometime in January 1991, Openda, Jr. confided to him that he and Bernal’s wife Naty were having an affair. One time, Naty even gave Openda, Jr. money which they used to pay for a motel room. He advised Naty “not to do it again because she (was) a married woman.[9] Undoubtedly, his wife’s infidelity was ample reason for Bernal to contemplate revenge.

Motive is generally irrelevant, unless it is utilized in establishing the identity of the perpetrator. Coupled with enough circumstantial evidence or facts from which it may be reasonably inferred that the accused was the malefactor, motive may be sufficient to support a conviction.[10] Openda, Jr.’s revelation to Enriquez regarding his illicit relationship with Bernal’s wife is admissible in evidence, pursuant to Section 38, Rule 130 of the Revised Rules on Evidence, viz.:

“Sec. 38. Declaration against interest. -- The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to declarant’s own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.”

With the deletion of the phrase “pecuniary or moral interest” from the present provision, it is safe to assume that “declaration against interest” has been expanded to include all kinds of interest, that is, pecuniary, proprietary, moral or even penal.[11]

A statement may be admissible when it complies with the following requisites, to wit: “(1) that the declarant is dead or unable to testify; (2) that it relates to a fact against the interest of the declarant; (3) that at the time he made said declaration the declarant was aware that the same was contrary to his aforesaid interest; and

(4) that the declarant had no motive to falsify and believed such declaration to be true.”[12]

Openda, Jr., having been missing since his abduction, cannot be called upon to testify. His confession to Enriquez, definitely a declaration against his own interest, since his affair with Naty Bernal was a crime, is admissible in evidence[13] because no sane person will be presumed to tell a falsehood to his own detriment.[14]

In his brief, Bernal highlights supposed inconsistencies in Sagarino’s testimony. He alleges that the latter could not have seen the actual handcuffing because “Tarsing’s Store” could not be seen from the billiard hall. Sagarino’s testimony shows that after Bernal and two others left the billiard hall, the latter came back with Openda, Jr., already handcuffed.

"Q The three of them together?

A Yes, sir.

Q And what about you, where did you stay?

A I just stayed in the billiard hall.

Q While you stay (sic) in the billiard hall, after a while, what did you see next?

A The two came back.

Q Who were these two whom you said who (sic) came back?

A The companions of Bernal.

Q And what did these two men do?

A They apprehended Jun-jun Openda.”[15]

From this proceeding, Bernal wrongly inferred that Sagarino actually saw Openda, Jr. arrested. The lower court correctly rejected this argument by holding that:

“But Sagarino has not said that he saw the actual handcuffing of Openda, Jr. at the Tarsing or Tarcing store. On the contrary, he says that he had not known who the person was that Bernal referred to when he requested one of this two companions to go see if that person was still there at the store, and that he came to know that he was Openda, Jr. only after he saw Openda, Jr. pass by the billiard hall already handcuffed, with the two unidentified companions of Bernal with him, on their way out to the main road.”[16]

If one had a direct view of “Tarsing’s Store” from the billiard hall, Bernal would not have requested his companion to check if Openda, Jr. were still there drinking with Racasa. Another discrepancy pointed out by Bernal arose from the testimonies of Racasa and Sagarino. Racasa, on cross-examination, stated:

"Q After Theodore Bernal left you have seen him also returned (sic) with his child, is that correct?

A Yes, sir, because I was still in the store.”[17]

On the other hand, Sagarino averred that:

"Q When Theodore Bernal left the place, how long (sic) were you able to see him again?

A Quite a time, sir, because when they left, his two companions came back and proceeded to Tarcing Store and arrested Jun-jun Openda. When these two men brought out Jun-jun Openda, fifteen minutes later, Bernal came.

Q Do you know where this Bernal from? (sic)

A He was coming from outside.

Q He has with him his son?

A He was with nobody, sir.

Q Are you sure of that?

A Yes, sir.

Q He was alone?

A Yes, sir.”[18]

The testimonies of Racasa and Sagarino are not absolutely inconsistent with each other as to be irreconcilable. Considering the proximity of the store from the billiard hall, there is a possibility that when Racasa saw Bernal with his son at the store, the latter could have already brought home his son before proceeding alone to the billiard hall where he was seen by Sagarino.[19]

Bernal would like the Court to dismiss Sagarino’s testimony by imputing revenge as his motive for testifying. He alleges that on July 29, 1991, or six days before the alleged kidnapping, five policemen arrived at Kasilak, Bucana on board a patrol car asking for Openda, Jr., Sagarino, Joseph Mendoza, Dansoy Madelo and Dagoy Balagan. He replied that they were residents of the place and staying at the billiard hall and mahjong house. The policemen departed and went to the places he mentioned.

"Q - Minutes later do you know what happened?

"A - They came back.

"Q - What did you do after they came back?

"A - I asked these police officers if they found these (sic) persons they were looking (for)?

"Q - What was their answer?

"A - They answered in the negative.

"Q - Since the answer is in the negative, what did you do?

"A - I asked the police officers why they were looking for these persons.(?)

"Q - What was the answer of the policemen?

"A - The police officer said that those people were wanted by them because accordingly (sic) they were marijuana pushers.”[20]

Bernal’s position is that no abduction or kidnapping ever took place but that an arrest was made by pursuing policemen. This contention is quite improbable, if not highly preposterous.

The trial court correctly appreciated the testimony of Sagarino, it being free from any ill-motive against Bernal. If the latter’s allegations were true, then Sagarino should have been arrested by the police at the time he gave his testimony in court. No such arrest was, however, made.

The court a quo committed no error in finding the testimonies of Enriquez, Racasa and Sagarino sufficient to convict Bernal. The court said that Sagarino’s forthright answers to the questions of the prosecutor and defense counsel clearly establish the participation of Bernal in the abduction or kidnapping of Openda, Jr. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but must be credible in itself.[21] This Court once again finds occasion to reiterate the established rule that the findings of fact of a trial court carry great weight and are entitled to respect on appeal, absent any strong and cogent reason to the contrary, since it is in a better position to decide the question of credibility of witnesses.[22]

We note that after a lapse of a considerable length of time, the victim has yet to resurface. Considering the circumstances, it is safe to assume that Openda, Jr. is already dead.

Finally, the Solicitor General, pursuant to the Indeterminate Sentence Law, recommended to this Court the penalty of seventeen (17) years of reclusion temporal, as minimum, to reclusion perpetua, as maximum. The maximum penalty must be determined in accordance with rules and provisions of the Revised Penal Code. With respect to the minimum penalty, however , " it is left entirely within the discretion of the court to fix it anywhere within the range of the penalty next lower without reference to the periods in to which it may be subdivided."[23] Consistent

with this ruling, this court imposes reclusion temporal, in its maximum period, as the minimum penalty, to reclusion perpetua, as maximum.

WHEREFORE, in view of the foregoing, the instant appeal is DISMISSED and the appealed decision dated November 18, 1993, is AFFIRMED in toto.

Costs against accused-appellant Theodore Bernal.

SO ORDERED.

G.R. No. 132864 October 24, 2005

PHILIPPINE FREE PRESS, INC., Petitioner, vs. COURT OF APPEALS (12th Division) and LIWAYWAY PUBLISHING, INC., Respondents.

D E C I S I O NGARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Philippine Free Press, Inc. seeks the reversal of the Decision1 dated February 25, 1998 of the Court of Appeals (CA) in CA-GR CV No. 52660, affirming, with modification, an earlier decision of the Regional Trial Court at Makati, Branch 146, in an action for annulment of deeds of sale thereat instituted by petitioner against the Presidential Commission for Good

Government (PCGG) and the herein private respondent, Liwayway Publishing, Inc.

As found by the appellate court in the decision under review, the facts are:

xxx [Petitioner] . . . is a domestic corporation engaged in the publication of Philippine Free Press Magazine, one of the . . . widely circulated political magazines in the Philippines. Due to its wide circulation, the publication of the Free Press magazine enabled [petitioner] to attain considerable prestige prior to the declaration of Martial Law as well as to achieve a high profit margin. . . .

Sometime in . . . 1963, [petitioner] purchased a parcel of land situated at No. 2249, Pasong Tamo Street, Makati which had an area of 5,000 square meters as evidenced by . . . (TCT) No. 109767 issued by the Register of Deeds of Makati (Exh. Z). Upon taking possession of the subject land, [petitioner] constructed an office building thereon to house its various machineries, equipment, office furniture and fixture. [Petitioner] thereafter made the subject building its main office . . . .

During the 1965 presidential elections, [petitioner] supported the late President Diosdado Macapagal against then Senate President Ferdinand Marcos. Upon the election of the late President Ferdinand Marcos in 1965 and prior to the imposition of Martial law on September 21, 1972, [petitioner] printed numerous articles highly critical of the Marcos administration, exposing the corruption and abuses of the regime. The [petitioner] likewise ran a series of articles exposing the plan of the Marcoses to impose a dictatorship in the guise of Martial Law . . . .

In the evening of September 20, 1972, soldiers surrounded the Free Press Building, forced out its employees at gunpoint and padlocked the said establishment. The soldier in charge of the military contingent then informed Teodoro Locsin, Jr., the son of Teodoro Locsin, Sr., the President of [petitioner], that Martial Law had been declared and that they were instructed by the late President Marcos to take over the building and to close the printing press. xxx.

On September 21, 1972 . . ., Teodoro Locsin, Sr. was arrested [and] . . . . was brought to Camp Crame and was subsequently transferred to the maximum security bloc at Fort Bonifacio.

Sometime in December, 1972, Locsin, Sr. was informed . . . that no charges were to be filed against him and that he was to be provisionally released subject to the following conditions, to wit: (1) he remained (sic) under ‘city arrest’; xxx (5) he was not to publish the Philippine Free Press nor was he to do, say or write anything critical of the Marcos administration . . . .

Consequently, the publication of the Philippine Free Press ceased. The subject building remained padlocked and under heavy military guard (TSB, 27 May 1993, pp. 51-52; stipulated). The cessation of the publication of the ... magazine led to the financial ruin of [petitioner] . . . . [Petitioner’s] situation was further aggravated when its employees demanded the payment of separation pay as a result of the cessation of its operations. [Petitioner’s] minority stockholders, furthermore, made demands that Locsin, Sr. buy out their shares. xxx.

On separate occasions in 1973, Locsin, Sr. was approached by the late Atty. Crispin Baizas with offers from then President Marcos for the acquisition of the [petitioner]. However, Locsin, Sr. refused the offer stating that [petitioner] was not for sale (TSN, 2 May 1988, pp. 8-9, 40; 27 May 1993, pp. 66-67).

A few months later, the late Secretary Guillermo De Vega approached Locsin, Sr. reiterating Marcos’s offer to purchase the name and the assets of the [petitioner].xxx

Sometime during the middle of 1973, Locsin, Sr. was contacted by Brig. Gen. Hans Menzi, the former aide-de-camp of then President Marcos concerning the sale of the [petitioner]. Locsin, Sr. requested that the meeting be held inside the [petitioner] Building and this was arranged by Menzi (TSN, 27 May 1993, pp. 69-70). During the said meeting, Menzi once more reiterated Marcos’s offer to purchase both the name and the assets of [petitioner] adding that "Marcos cannot be denied" (TSN, 27 May 1993, p. 71). Locsin, Sr. refused but Menzi insisted that he had no choice but to sell. Locsin, Sr. then made a counteroffer that he will sell the land, the building and all the machineries and equipment therein but he will be allowed to keep the name of the [petitioner]. Menzi promised to clear the matter with then President Marcos (TSN, 27 May 1993, p. 72). Menzi thereafter contacted Locsin, Sr. and informed him that President Marcos was amenable to his counteroffer and is offering the purchase price of Five Million Seven Hundred Fifty Thousand (P5, 750,000.00) Pesos for the land, the building, the machineries, the office furnishing and the fixtures of the [petitioner] on a "take-it-or-leave-it" basis (TSN, 2 May 1988, pp.42-43; 27 May 1993, p. 88).

On August 22, 1973, Menzi tendered to Locsin, Sr. a check for One Million (P1, 000,000.00) Pesos downpayment for the sale, . . . Locsin, Sr. accepted the check, subject to the condition that he will refund the same in case the sale will not push through. (Exh. 7).

On August 23, 1973, the Board of Directors of [petitioner] held a meeting and reluctantly passed a resolution authorizing Locsin, Sr. to sell the assets of the [petitioner] to Menzi minus the name "Philippine Free Press (Exhs. A-1 and 1; TSN, 27 May 1993, pp. 73-76).

On October 23, 1973, the parties [petitioner, as vendor and private respondent, represented by B/Gen. Menzi, as vendee] met . . . and executed two (2) notarized Deeds of Sale covering the land, building and the machineries of the [petitioner]. Menzi paid the balance of the purchase price in the amount of . . . (P4,750,000.00) Pesos (Exhs. A and (; B and 10;TSN, 27 May 1993, pp. 81-82; 3 June 1993, p. 89).

Locsin, Sr. thereafter used the proceeds of the sale to pay the separation pay of [petitioner’s] employees, buy out the shares of the minority stockholders as well as to settle all its obligations.

On February 26, 1987, [petitioner] filed a complaint for Annulment of Sale against [respondent] Liwayway and the PCGG before the Regional Trail Court of Makati, Branch 146 on the grounds of vitiated consent and gross inadequacy of purchase price. On motion of defendant PCGG, the complaint against it was dismissed on October 22, 1987. (Words in bracket and underscoring added)

In a decision dated October 31, 1995,2 the trial court dismissed petitioner’s complaint and granted private respondent’s counterclaim, to wit:

WHEREFORE, in view of all the foregoing premises, the herein complaint for annulment of sales is hereby dismissed for lack of merit.

On [respondent] counterclaim, the court finds for [respondent] and against [petitioner] for the recovery of attorney’s fees already paid for at P1,945,395.98, plus a further P316,405.00 remaining due and payable.

SO ORDERED. (Words in bracket added)

In time, petitioner appealed to the Court of Appeals (CA) whereat its appellate recourse was docketed as CA-G.R. C.V. No. 52660.

As stated at the outset hereof, the appellate court, in a decision dated February 25, 1998, affirmed with modification the appealed decision of the trial court, the modification consisting of the deletion of the award of attorney’s fees to private respondent, thus:

WHEREFORE, with the sole modification that the award of attorney’s fees in favor of [respondent] be deleted, the Decision appealed from is hereby AFFIRMED in all respects.

SO ORDERED.

Hence, petitioner’s present recourse, urging the setting aside of the decision under review which, to petitioner, decided questions of substance in a way not in accord

with law and applicable jurisprudence considering that the appellate court gravely erred:

Ixxx IN ITS MISAPPLICATION OF THE DECISIONS OF THE HONORABLE COURT THAT RESULTED IN ITS ERRONEOUS CONCLUSION THAT PETITIONER'S CAUSE OF ACTION HAD ALREADY PRESCRIBED.

II

xxx IN CONCLUDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES PRECEDING THE EXECUTION OF THE CONTRACTS OF SALE FOR THE PETITIONER'S PROPERTIES DID NOT ESTABLISH THE FORCE, INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S CONSENT.

A. xxx IN CONSIDERING AS HEARSAY THE TESTIMONIAL EVIDENCE WHICH CLEARLY ESTABLISHED THE THREATS MADE UPON PETITIONER AND THAT RESPONDENT LIWAYWAY WILL BE USED AS THE CORPORATE VEHICLE FOR THE FORCED ACQUISITION OF PETITIONER'S PROPERTIES.

B. xxx IN CONCLUDING THAT THE ACTS OF THEN PRESIDENT MARCOS DURING MARTIAL LAW DID NOT CONSTITUTE THE FORCE, INTIMIDATION, DURESS AND UNDUE INFLUENCE WHICH VITIATED PETITIONER'S CONSENT.

C. xxx IN RESOLVING THE INSTANT CASE ON THE BASIS OF MERE SURMISES AND SPECULATIONS INSTEAD OF THE UNDISPUTED EVIDENCE ON RECORD.

IIIxxx IN CONCLUDING THAT THE GROSSLY INADEQUATE PURCHASE PRICE FOR PETITIONER'S PROPERTIES DOES NOT INDICATE THE VITIATION OF PETITIONER'S CONSENT TO THE CONTRACTS OF SALE.

IVxxx IN CONCLUDING THAT PETITIONER'S USE OF THE PROCEEDS OF THE SALE FOR ITS SURVIVAL CONSTITUTE AN IMPLIED RATIFICATION [OF] THE CONTRACTS OF SALE.

Vxxx IN EXCLUDING PETITIONER'S EXHIBITS "X-6" TO "X-7" AND "Y-3" (PROFFER) WHICH ARE ADMISSIBLE EVIDENCE WHICH COMPETENTLY PROVE THAT THEN PRESIDENT MARCOS OWNED PRIVATE RESPONDENT LIWAYWAY, WHICH WAS USED AS THE CORPORATE VEHICLE FOR THE ACQUISITION OF PETITIONER'S PROPERTIES.

The petition lacks merit.

Petitioner starts off with its quest for the allowance of the instant recourse on the submission that the martial law regime tolled the prescriptive period under Article 1391 of the Civil Code, which pertinently reads:

Article 391. The action for annulment shall be brought within four years.

This period shall begin:

In cases of intimidation, violence or undue influence, from the time the defect of the consent ceases.

It may be recalled that the separate deeds of sale3 sought to be annulled under petitioner’s basic complaint were both executed on October 23, 1973. Per the appellate court, citing Development Bank of the Philippines [DBP] vs. Pundogar4, the 4-year prescriptive period for the annulment of the aforesaid deeds ended "in late 1977", doubtless suggesting that petitioner’s right to seek such annulment accrued four (4) years earlier, a starting time-point corresponding, more or less, to the date of the conveying deed, i.e., October 23, 1973. Petitioner contends, however, that the 4-year prescriptive period could not have commenced to run on October 23, 1973, martial law being then in full swing. Plodding on, petitioner avers that the continuing threats on the life of Mr. Teodoro Locsin, Sr. and his family and other menacing effects of martial law – which should be considered as force majeure - ceased only after the February 25, 1986 People Power uprising.

Petitioner instituted its complaint for annulment of contracts on February 26, 1987. The question that now comes to the fore is: Did the 4-year prescriptive period start to run in late October 1973, as postulated in the decision subject of review, or on February 25, 1986, as petitioner argues, on the theory that martial law has the effects of a force majeure5, which, in turn, works to suspend the running of the prescriptive period for the main case filed with the trial court.

Petitioner presently faults the Court of Appeals for its misapplication of the doctrinal rule laid down in DBP vs. Pundogar6 where this Court, citing and quoting excerpts from the ruling in Tan vs. Court of Appeals 7, as reiterated in National Development Company vs. Court of Appeals, 8 wrote –

We can not accept the petitioners’ contention that the period during which authoritarian rule was in force had interrupted prescription and that the same began to run only on February 25, 1986, when the Aquino government took power. It is true that under Article 1154 [of the Civil Code] xxx fortuitous events have the effect of tolling the period of prescription. However, we can not say, as a universal rule, that the period from September 21, 1972 through February 25, 1986 involves a force majeure. Plainly, we can not box in the "dictatorial" period within the term without distinction, and without, by necessity, suspending all liabilities, however demandable, incurred during that period, including perhaps those ordered by this Court to be paid. While this Court is cognizant of acts of the last regime, especially political acts, that might have indeed precluded the enforcement of liability against that regime and/or its minions, the Court is not inclined to make quite a sweeping pronouncement, . . . . It is our opinion that claims should be taken on a case-to-case basis. This selective rule is compelled, among others, by the fact that not all those imprisoned or detained by the past dictatorship were true political oppositionists, or, for that matter, innocent of any crime or wrongdoing. Indeed, not a few of them

were manipulators and scoundrels. [Italization in the original; Underscoring and words in bracket added]

According to petitioner, the appellate court misappreciated and thus misapplied the correct thrust of the Tan case, as reiterated in DBP which, per petitioner’s own formulation, is the following:9

The prevailing rule, therefore, is that on a case-to-case basis, the Martial Law regime may be treated as force majeure that suspends the running of the applicable prescriptive period provided that it is established that the party invoking the imposition of Martial Law as a force majeure are true oppositionists during the Martial Law regime and that said party was so circumstanced that is was impossible for said party to commence, continue or to even resist an action during the dictatorial regime. (Emphasis and underscoring in the original)

We are not persuaded.

It strains credulity to believe that petitioner found it impossible to commence and succeed in an annulment suit during the entire stretch of the dictatorial regime. The Court can grant that Mr. Locsin, Sr. and petitioner were, in the context of DBP and Tan, "true oppositionists" during the period of material law. Petitioner, however, has failed to convincingly prove that Mr. Locsin, Sr., as its then President, and/or its governing board, were so circumstanced that it was well-nigh impossible for him/them to successfully institute an action during the martial law years. Petitioner cannot plausibly feign ignorance of the fact that shortly after his arrest in the evening of September 20, 1972, Mr. Locsin, Sr., together with several other journalists10, dared to file suits against powerful figures of the dictatorial regime and veritably challenged the legality of the declaration of martial law. Docketed in this Court as GR No. L-35538, the case, after its consolidation with eight (8) other petitions against the martial law regime, is now memorialized in books of jurisprudence and cited in legal publications and case studies as Aquino vs. Enrile.11

Incidentally, Mr. Locsin Sr., as gathered from the ponencia of then Chief Justice Querube Makalintal in Aquino, was released from detention notwithstanding his refusal to withdraw from his petition in said case. Judging from the actuations of Mr. Locsin, Sr. during the onset of martial law regime and immediately thereafter, any suggestion that intimidation or duress forcibly stayed his hands during the dark days of martial law to seek judicial assistance must be rejected.12

Given the foregoing perspective, the Court is not prepared to disturb the ensuing ruling of the appellate court on the effects of martial law on petitioner’s right of action:

In their testimonies before the trial court, both Locsin, Sr. and Locsin, Jr. claimed that they had not filed suit to recover the properties until 1987 as they could not expect justice to be done because according to them, Marcos controlled every part of the government, including the courts, (TSN, 2 May 1988, pp. 23-24; 27 May 1993, p. 121). While that situation may have obtained during the early years of the martial law administration, We could not agree with the proposition that it remained

consistently unchanged until 1986, a span of fourteen (14) years. The unfolding of subsequent events would show that while dissent was momentarily stifled, it was not totally silenced. On the contrary, it steadily simmered and smoldered beneath the political surface and culminated in that groundswell of popular protest which swept the dictatorship from power.13

The judiciary too, as an institution, was no ivory tower so detached from the ever changing political climate. While it was not totally impervious to the influence of the dictatorship’s political power, it was not hamstrung as to render it inutile to perform its functions normally. To say that the Judiciary was not able to render justice to the persons who sought redress before it . . . during the Martial Law years is a sweeping and unwarranted generalization as well as an unfounded indictment. The Judiciary, . . . did not lack in gallant jurists and magistrates who refused to be cowed into silence by the Marcos administration. Be that as it may, the Locsin’s mistrust of the courts and of judicial processes is no excuse for their non-observance of the prescriptive period set down by law.

Corollary to the presented issue of prescription of action for annulment of contract voidable on account of defect of consent14 is the question of whether or not duress, intimidation or undue influence vitiated the petitioner’s consent to the subject contracts of sale. Petitioner delves at length on the vitiation issue and, relative thereto, ascribes the following errors to the appellate court: first, in considering as hearsay the testimonial evidence that may prove the element of "threat" against petitioner or Mr. Locsin, Sr., and the dictatorial regime's use of private respondent as a corporate vehicle for forcibly acquiring petitioner’s properties; second, in concluding that the acts of then President Marcos during the martial law years did not have a consent-vitiating effect on petitioner; and third, in resolving the case on the basis of mere surmises and speculations.

The evidence referred to as hearsay pertains mainly to the testimonies of Messrs. Locsin, Sr. and Teodoro Locsin, Jr. (the Locsins, collectively), which, in gist, established the following facts: 1) the widely circulated Free Press magazine, which, prior to the declaration of Martial Law, took the strongest critical stand against the Marcos administration, was closed down on the eve of such declaration, which closure eventually drove petitioner to financial ruin; 2) upon Marcos’ orders, Mr. Locsin, Sr. was arrested and detained for over 2 months without charges and, together with his family, was threatened with execution; 3) Mr. Locsin, Sr. was provisionally released on the condition that he refrains from reopening Free Press and writing anything critical of the Marcos administration; and 4) Mr. Locsin, Sr. and his family remained fearful of reprisals from Marcos until the 1986 EDSA Revolution.

Per the Locsins, it was amidst the foregoing circumstances that petitioner’s property in question was sold to private respondent, represented by Gen. Menzi, who, before the sale, allegedly applied the squeeze on Mr. Locsin, Sr. thru the medium of the "Marcos cannot be denied" and "[you] have no choice but to sell" line.

The appellate court, in rejecting petitioner’s above posture of vitiation of consent, observed:

It was under the above-enumerated circumstances that the late Hans Menzi, allegedly acting on behalf of the late President Marcos, made his offer to purchase the Free Press. It must be noted, however, that the testimonies of Locsin, Sr. and Locsin, Jr. regarding Menzi’s alleged implied threat that "Marcos cannot be denied" and that [respondent] was to be the corporate vehicle for Marcos’s takeover of the Free Press is hearsay as Menzi already passed away and is no longer in a position to defend himself; the same can be said of the offers to purchase made by Atty. Crispin Baizas and Secretary Guillermo de Vega who are also both dead. It is clear from the provisions of Section 36, Rule 130 of the 1989 Revised Rules on Evidence that any evidence, . . . is hearsay if its probative value is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. Consequently, hearsay evidence, whether objected to or not, has no probative value unless the proponent can show that the evidence falls within the exceptions to the hearsay evidence rule (Citations omitted)

The appellate court’s disposition on the vitiation-of-consent angle and the ratio therefor commends itself for concurrence.

Jurisprudence instructs that evidence of statement made or a testimony is hearsay if offered against a party who has no opportunity to cross-examine the witness. Hearsay evidence is excluded precisely because the party against whom it is presented is deprived of or is bereft of opportunity to cross-examine the persons to whom the statements or writings are attributed.15 And there can be no quibbling that because death has supervened, the late Gen Menzi, like the other purported Marcos subalterns, Messrs. Baizas and De Vega, cannot cross-examine the Locsins for the threatening statements allegedly made by them for the late President.

Like the Court of Appeals, we are not unmindful of the exception to the hearsay rule provided in Section 38, Rule 130 of the Rules of Court, which reads:

SEC. 38. Declaration against interest. – The declaration made by a person deceased or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.

However, in assessing the probative value of Gen. Menzi’s supposed declaration against interest, i.e., that he was acting for the late President Marcos when he purportedly coerced Mr. Locsin, Sr. to sell the Free Press property, we are loathed to give it the evidentiary weight petitioner endeavors to impress upon us. For, the Locsins can hardly be considered as disinterested witnesses. They are likely to gain the most from the annulment of the subject contracts. Moreover, allegations of duress or coercion should, like fraud, be viewed with utmost caution. They should not be laid lightly at the door of men whose lips had been sealed by death.16 Francisco explains why:

[I]t has been said that "of all evidence, the narration of a witness of his conversation with a dead person is esteemed in justice the weakest.’" One reason for its

unreliability is that the alleged declarant can not recall to the witness the circumstances under which his statement were made. The temptation and opportunity for fraud in such cases also operate against the testimony. Testimony to statements of a deceased person, at least where proof of them will prejudice his estate, is regarded as an unsafe foundation for judicial action except in so far as such evidence is borne out by what is natural and probable under the circumstances taken in connection with actual known facts. And a court should be very slow to act upon the statement of one of the parties to a supposed agreement after the death of the other party; such corroborative evidence should be adduced as to satisfy the court of the truth of the story which is to benefit materially the person telling it. 17

Excepting, petitioner insists that the testimonies of its witnesses – the Locsins - are not hearsay because:

In this regard, hearsay evidence has been defined as "the evidence not of what the witness knows himself but of what he has heard from others." xxx Thus, the mere fact that the other parties to the conversations testified to by the witness are already deceased does [not] render such testimony inadmissible for being hearsay. 18

xxx xxx xxx

The testimonies of Teodoro Locsin, Sr. and Teodoro Locsin, Jr. that the late Atty. Baizas, Gen. Menzi and Secretary de Vega stated that they were representing Marcos, that "Marcos cannot be denied", and the fact that Gen. Menzi stated that private respondent Liwayway was to be the corporate vehicle for the then President Marcos' take-over of petitioner Free Press are not hearsay. Teodoro Locsin, Sr. and Teodoro Locsin, Jr. were in fact testifying to matters of their own personal knowledge because they were either parties to the said conversation or were present at the time the said statements were made. 19

Again, we disagree.

Even if petitioner succeeds in halving its testimonial evidence, one-half purporting to quote the words of a live witness and the other half purporting to quote what the live witness heard from one already dead, the other pertaining to the dead shall nevertheless remain hearsay in character.

The all too familiar rule is that "a witness can testify only to those facts which he knows of his own knowledge". 20 There can be no quibbling that petitioner’s witnesses cannot testify respecting what President Marcos said to Gen. Menzi about the acquisition of petitioner’s newspaper, if any there be, precisely because none of said witnesses ever had an opportunity to hear what the two talked about.

Neither may petitioner circumvent the hearsay rule by invoking the exception under the declaration-against-interest rule. In context, the only declaration supposedly made by Gen. Menzi which can conceivably be labeled as adverse to his interest could be that he was acting in behalf of Marcos in offering to acquire the physical assets of petitioner. Far from making a statement contrary to his own interest, a

declaration conveying the notion that the declarant possessed the authority to speak and to act for the President of the Republic can hardly be considered as a declaration against interest.

Petitioner next assails the Court of Appeals on its conclusion that Martial Law is not per se a consent-vitiating phenomenon. Wrote the appellate court: 21

In other words, the act of the ruling power, in this case the martial law administration, was not an act of mere trespass but a trespass in law - not a perturbacion de mero hecho but a pertubacion de derecho - justified as it is by an act of government in legitimate self-defense (IFC Leasing & Acceptance Corporation v. Sarmiento Distributors Corporation, …, citing Caltex (Phils.) v. Reyes, 84 Phil. 654 [1949]. Consequently, the act of the Philippine Government in declaring martial law can not be considered as an act of intimidation of a third person who did not take part in the contract (Article 1336, Civil Code). It is, therefore, incumbent on [petitioner] to present clear and convincing evidence showing that the late President Marcos, acting through the late Hans Menzi, abused his martial law powers by forcing plaintiff-appellant to sell its assets. In view of the largely hearsay nature of appellant’s evidence on this point, appellant’s cause must fall.

According to petitioner, the reasoning of the appellate court is "flawed" because:22

It is implicit from the foregoing reasoning of the Court of Appeals that it treated the forced closure of the petitioner's printing press, the arrest and incarceration without charges of Teodoro Locsin, Sr., the threats that he will be shot and the threats that other members of his family will be arrested as legal acts done by a dictator under the Martial Law regime. The same flawed reasoning led the Court of Appeals to the erroneous conclusion that such acts do not constitute force, intimidation, duress and undue influence that vitiated petitioner's consent to the Contracts of Sale.

The contention is a rehash of petitioner’s bid to impute on private respondent acts of force and intimidation that were made to bear on petitioner or Mr. Locsin, Sr. during the early years of martial law. It failed to take stock of a very plausible situation depicted in the appellate court’s decision which supports its case disposition on the issue respecting vitiation. Wrote that court:

Even assuming that the late president Marcos is indeed the owner of [respondent], it does not necessarily follow that he, acting through the late Hans Menzi, abused his power by resorting to intimidation and undue influence to coerce the Locsins into selling the assets of Free Press to them (sic).

It is an equally plausible scenario that Menzi convinced the Locsins to sell the assets of the Free Press without resorting to threats or moral coercion by simply pointing out to them the hard fact that the Free Press was in dire financial straits after the declaration of Martial Law and was being sued by its former employees, minority stockholders and creditors. Given such a state of affairs, the Locsins had no choice but to sell their assets.23

Petitioner laments that the scenario depicted in the immediately preceding quotation as a case of a court resorting to "mere surmises and speculations", 24 oblivious that petitioner itself can only offer, as counterpoint, also mere surmises and speculations, such as its claim about Eugenio Lopez Sr. and Imelda R. Marcos offering "enticing amounts" to buy Free Press.25

It bears stressing at this point that even after the imposition of martial law, petitioner, represented by Mr. Locsin, Sr., appeared to have dared the ire of the powers-that-be. He did not succumb to, but in fact spurned offers to buy, lock-stock-and-barrel, the Free Press magazine, dispatching Marcos’ emissaries with what amounts to a curt "Free Press is not for sale". This reality argues against petitioner’s thesis about vitiation of its contracting mind, and, to be sure, belying the notion that Martial Law worked as a Sword of Damocles that reduced petitioner or Mr. Locsin, Sr. into being a mere automaton. The following excerpt from the Court of Appeals’ decision is self-explanatory: 26

Noteworthy is the fact that although the threat of arrest hung over his head like the Sword of Damocles, Locsin Sr. was still able to reject the offers of Atty. Baizas and Secretary De Vega, both of whom were supposedly acting on behalf of the late President Marcos, without being subjected to reprisals. In fact, the Locsins testified that the initial offer of Menzi was rejected even though it was supposedly accompanied by the threat that "Marcos cannot be denied". Locsin, Sr. was, moreover, even able to secure a compromise that only the assets of the Free Press will be sold. It is, therefore, quite possible that plaintiff-appellant’s financial condition, albeit caused by the declaration of Martial Law, was a major factor in influencing Locsin, Sr. to accept Menzi’s offer. It is not farfetched to consider that Locsin, Sr. would have eventually proceeded with the sale even in the absence of the alleged intimidation and undue influence because of the absence of other buyers.

Petitioner’s third assigned error centers on the gross inadequacy of the purchase price, referring to the amount of P5,775,000.00 private respondent paid for the property in question. To petitioner, the amount thus paid does not even approximate the actual market value of the assets and properties,27 and is very much less than the P18 Million offered by Eugenio Lopez.28 Accordingly, petitioner urges the striking down, as erroneous, the ruling of the Court of Appeals on purchase price inadequacy, stating in this regard as follows: 29

Furthermore, the Court of Appeals in determining the adequacy of the price for the properties and assets of petitioner Free Press relied heavily on the claim that the audited financial statements for the years 1971 and 1972 stated that the book value of the land is set at Two Hundred Thirty-Seven Thousand Five Hundred Pesos (P237,500.00). However, the Court of Appeals' reliance on the book value of said assets is clearly misplaced. It should be noted that the book value of fixed assets bears very little correlation with the actual market value of an asset. (Emphasis and underscoring in the original).

With the view we take of the matter, the book or actual market value of the property at the time of sale is presently of little moment. For, petitioner is effectively

precluded, by force of the principle of estoppel ,30 from cavalierly disregarding with impunity its own books of account in which the property in question is assigned a value less than what was paid therefor. And, in line with the rule on the quantum of evidence required in civil cases, neither can we cavalierly brush aside private respondent’s evidence, cited with approval by the appellate court, that tends to prove that-31

xxx the net book value of the Properties was actually only P994,723.66 as appearing in Free Press's Balance Sheet as of November 30, 1972 (marked as Exh. 13 and Exh. V), which was duly audited by SyCip, Gorres, and Velayo, thus clearly showing that Free Press actually realized a hefty profit of P4,755,276.34 from the sale to Liwayway.

Lest it be overlooked, gross inadequacy of the purchase price does not, as a matter of civil law, per se affect a contract of sale. Article 1470 of the Civil Code says so. It reads:

Article 1470. Gross inadequacy of price does not affect a contract of sale, except as it may indicate a defect in the consent, or that the parties really intended a donation or some other act or contract.

Following the aforequoted codal provision, it behooves petitioner to first prove "a defect in the consent", failing which its case for annulment contract of sale on ground gross inadequacy of price must fall. The categorical conclusion of the Court of Appeals, confirmatory of that of the trial court, is that the price paid for the Free Press’ office building, and other physical assets is not unreasonable to justify the nullification of the sale. This factual determination, predicated as it were on offered evidence, notably petitioner’s Balance Sheet as of November 30, 1972 (Exh. 13), must be accorded great weight if not finality.32

In the light of the foregoing disquisition, the question of whether or not petitioner’s undisputed utilization of the proceeds of the sale constitutes, within the purview of Article 1393 of the Civil Code,33 implied ratification of the contracts of sale need not detain us long. Suffice it to state in this regard that the ruling of the Court of Appeals on the matter is well-taken. Wrote the appellate court: 34

In the case at bench, Free Press’s own witnesses admitted that the proceeds of the 1973 sale were used to settle the claims of its employees, redeem the shares of its stockholders and finance the company’s entry into money-market shareholdings and fishpond business activities (TSN, 2 May 1988, pp. 16, 42-45). It need not be overemphasized that by using the proceeds in this manner, Free Press only too clearly confirmed the voluntaries of its consent and ratified the sale. Needless to state, such ratification cleanses the assailed contract from any alleged defects from the moment it was constituted (Art. 1396, Civil Code).

Petitioner’s posture that its use of the proceeds of the sale does not translate to tacit ratification of what it viewed as voidable contracts of sale, such use being a "matter of [its financial] survival",35 is untenable. As couched, Article 1393 of the Civil Code is concerned only with the act which passes for ratification of contract,

not the reason which actuated the ratifying person to act the way he did. "Ubi lex non distinguit nec nos distinguere debemus. When the law does not distinguish, neither should we". 36

Finally, petitioner would fault the Court of Appeals for excluding Exhibits "X-6" to "X-7" and "Y-3" (proffer). These excluded documents which were apparently found in the presidential palace or turned over by the US Government to the PCGG, consist of, among others, what appears to be private respondent’s Certificate of Stock for 24,502 shares in the name of Gen. Menzi, but endorsed in blank. The proffer was evidently intended to show that then President Marcos owned private respondent, Liwayway Publishing Inc. Said exhibits are of little relevance to the resolution of the main issue tendered in this case. Whether or not the contracts of sale in question are voidable is the issue, not the ownership of Liwayway Publishing, Inc.

WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals AFFIRMED.

Costs against petitioner.

SO ORDERED.

G.R. NO. 146556 April 19, 2006

DANILO L. PAREL, Petitioner, vs.SIMEON B. PRUDENCIO, Respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari filed by Danilo Parel (petitioner) which seeks to set aside the Decision1 dated March 31, 2000 of the Court of Appeals (CA) which reversed the Decision of the Regional Trial Court (RTC), Branch 60, Baguio, in Civil Case No. 2493-R, a case for recovery of possession and damages. Also assailed is CA Resolution2 dated November 28, 2000.

On February 27, 1992, Simeon Prudencio (respondent) filed a complaint for recovery of possession and damages against petitioner with the RTC Baguio alleging that: he is the owner of a two-storey residential house located at No. 61 Forbes Park National Reservation near Department of Public Service (DPS) compound, Baguio City; such property was constructed solely from his own funds and declared in his name under Tax Declaration No. 47048; he commenced the construction of said house in 1972 until its completion three years later; when the second floor of said house became habitable in 1973, he allowed petitioner’s parents, Florentino (now deceased) and Susan Parel, to move therein and occupy the second floor while the construction of the ground floor was on-going to supervise the construction and to safeguard the materials; when the construction of the second floor was finished in 1975, respondent allowed petitioner’s parents and children to transfer and temporarily reside thereat; it was done out of sheer magnanimity as petitioner’s parents have no house of their own and since respondent’s wife is the older sister of Florentino, petitioner’s father; in November 1985, respondent wrote Florentino a notice for them to vacate the said house as the former was due for retirement and he needed the place to which petitioner’s parents heeded when they migrated to U.S. in 1986; however, without respondent’s knowledge, petitioner and his family unlawfully entered and took possession of the ground floor of respondent’s house; petitioner’s refusal to vacate the house despite repeated demands prompted respondent to file the instant action for recovery of possession. Respondent also asked petitioner for a monthly rental of P3,000.00 from April 1988 and every month thereafter until the latter vacates the said premises and surrender possession thereof; and for moral and exemplary damages, attorney’s fees and cost of suit.

Petitioner filed his Answer with Counterclaim alleging that: his parents are the co-owners of the said residential house, i.e., the upper story belongs to respondent while the ground floor pertains to petitioner’s parents; he is occupying the ground floor upon the instruction of his father, Florentino, with respondent’s full knowledge; his parents spent their own resources in improving and constructing the said two-storey house as co-owners thereof; the late Florentino was an awardee of the land on which the house stands and as a co-owner of the house, he occupied the ground floor thereof; the demand to vacate was respondent’s attempt to deprive

petitioner’s parents of their rights as co-owner of the said house; that respondent had filed ejectment case as well as criminal cases against them involving the subject house which were all dismissed. Petitioner asked for the dismissal of the complaint and prayed for damages and attorney’s fees.

After trial on the merits, the RTC rendered a Decision3 dated December 15, 1993, the dispositive portion of which reads:

WHEREFORE, premises considered, the Court hereby declares that the house erected at No. 61 DPS Compound, Baguio City is owned in common by the late Florentino Parel and herein plaintiff Simeon Prudencio and as such the plaintiff cannot evict the defendant as heirs of the deceased Florentino Parel from said property, nor to recover said premises from herein defendant.

Likewise, the plaintiff is ordered to:

(a) pay the defendant in the total sum of P20,000.00 for moral and actual damages;

(b) pay the defendant P20,000.00 in Attorney’s fees and P3,300.00 in appearance fees;

(c) pay the costs of this suit.4

The RTC found the following matters as conclusive: that petitioner’s father was an allocatee of the land on which the subject house was erected, as one of the lowly-paid government employees at that time when then Mayor Luis Lardizabal gave them the chance to construct their own house on said reservation; that respondent failed to show proof of any contract, written or oral, express or implied, that the late Florentino and his family stayed on the house not as co-owners but as mere lessees, nor any other proof that would clearly establish his sole ownership of the house; and, that the late Florentino was the one who gathered the laborers for the construction of the house and paid their salaries. Thus, the RTC ruled that co-ownership existed between respondent and petitioner’s father, Florentino.

The RTC concluded that respondent and petitioner’s father agreed to contribute their money to complete the house; that since the land on which said house was erected has been allocated to petitioner’s father, the parties had the understanding that once the house is completed, petitioner’s father could keep the ground floor while respondent the second floor; the trial court questioned the fact that it was only after 15 years that respondent asserted his claim of sole ownership of the subject house; respondent failed to disprove that petitioner’s father contributed his own funds to finance the construction of the house; that respondent did not question (1) the fact that it was the deceased Florentino who administered the construction of the house as well as the one who supplied the materials; and (2) the fact that the land was in Florentino’s possession created the impression that the house indeed is jointly owned by respondent and Florentino.

The RTC did not give credence to the tax declaration as well as the several documents showing the City Assessor’s assessment of the property all in

respondent’s name since tax declarations are not conclusive proof of ownership. It rejected the affidavit executed by Florentino declaring the house as owned by respondent saying that the affidavit should be read in its entirety to determine the purpose of its execution; that it was executed because of an advisement addressed to the late Florentino by the City Treasurer concerning the property’s tax assessment and Florentino, thought then that it should be the respondent who should pay the taxes; and that the affidavit cannot be accepted for being hearsay.

Aggrieved by such decision, respondent appealed to the CA. In a Decision dated March 31, 2000, the CA reversed the trial court and declared respondent as the sole owner of the subject house and ordered petitioner to surrender possession of the ground floor thereof to respondent immediately. It also ordered petitioner to pay respondent a monthly rental of P2,000.00 for use or occupancy thereof from April 1988 until the former actually vacates the same and the sum of P50,000.00 as attorney’s fees and cost of suit.

The CA found as meritorious respondent’s contention that since petitioner failed to formally offer in evidence any documentary evidence, there is nothing to refute the evidence offered by respondent. It ruled that the trial court’s statement that "defendants’ occupancy of the house is due to a special power of attorney executed by his parents most specially the deceased Florentino Parel who is in fact a co-owner of said building" is wanting of any concrete evidence on record; that said power of attorney was never offered, hence, could not be referred to as petitioner’s evidence to support his claim; that except for the bare testimonies of Candelario Regua, the carpenter-foreman, that it was Florentino who constructed the house and Corazon Garcia, the former barangay captain, who testified that the lot was allocated to petitioner’s father, there was no supporting document which would sufficiently establish factual bases for the trial court’s conclusion; and that the rule on offer of evidence is mandatory.

The CA found the affidavit dated September 24, 1973 of Florentino, petitioner’s father, stating that he is not the owner of the subject house but respondent, as conclusive proof of respondent’s sole ownership of the subject house as it is a declaration made by Florentino against his interest. It also found the tax declarations and official receipts representing payments of real estate taxes of the questioned property covering the period 1974 to 1992 sufficient to establish respondent’s case which constitute at least proof that the holder has a claim of title over the property.

Petitioner’s motion for reconsideration was denied in a Resolution dated November 28, 2000.1avvphil.net

Hence, the instant petition for review on certiorari with the following Assignment of Errors:

1. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING RESPONDENT AS THE OWNER OF THE BUILDING AT 61 FORBES PARK NATIONAL RESERVATION, NEAR DPS COMPOUND, BAGUIO CITY, NOTWITHSTANDING THE FINDING OF THE

REGIONAL TRIAL COURT OF CO-OWNERSHIP BETWEEN THE LATE FLORENTINO PAREL AND RESPONDENT;

2. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO SURRENDER POSSESSION OF THE GROUND FLOOR OF THE SUBJECT BUILDING TO RESPONDENT;

3. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY RESPONDENT P2,000.00/MONTH FOR USE OR OCCUPANCY OF THE SUBJECT PREMISES FROM APRIL 1988 UNTIL PETITIONER ACTUALLY VACATES THE SAME;

4. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING PETITIONER TO PAY TO RESPONDENT P50,000.00 ATTORNEY’S FEES AND COSTS OF SUIT;

5. THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONER’S MOTION FOR RECONSIDERATION. 5

Petitioner concedes that while his former counsel failed to make a formal offer of his documentary evidence before the trial court and that the court shall consider no evidence which has not been formally offered, he maintains that the said rule is not absolute, citing the case of Bravo, Jr. v. Borja; 6 that his documentary evidence which were not formally offered in evidence were marked during the presentation of the testimony of petitioner’s witnesses and were part of their testimonies; that these evidence were part of the memorandum filed by him before the trial court on July 12, 1993.

Petitioner insists that even in the absence of the documentary evidence, his testimony as well as that of his witnesses substantiated his claim of co-ownership of the subject house between his late father and respondent as found by the trial court.

Petitioner argues that the CA erred in finding the affidavit of petitioner’s father declaring respondent as owner of the subject house as conclusive proof that respondent is the true and only owner of the house since the affidavit should be read in its entirety to determine the purpose for which it was executed.

Petitioner further contends that since he had established his father’s co-ownership of the subject house, respondent has no legal right to eject him from the property; that he could not be compelled to pay rentals for residing in the ground floor of the subject house; that respondent should bear his own expenses and be adjudged liable for damages which petitioner sustained for being constrained to litigate.

The principal issue for resolution is whether petitioner was able to prove by preponderance of evidence that his father was a co-owner of the subject two-storey residential house.

The issue raised by petitioner is mainly factual in nature. In general, only questions of law are appealable to this Court under Rule 45. However, considering that the findings of the RTC and CA are contradictory, the review of the case is in order.7

We agree with the CA that respondent had shown sufficient evidence to support his complaint for recovery of possession of the ground floor of the subject house as the exclusive owner thereof. Respondent presented the affidavit dated September 24, 1973 executed by Florentino and sworn to before the Assistant City Assessor of Baguio City, G.F. Lagasca, which reads:

I, FLORENTINO PAREL, 42 years of age, employee, and residing at Forbes Park, Reservation No. 1, after having been sworn to according to law depose and say:

That he is the occupant of a residential building located at Forbes Park, Reservation No. 1, Baguio City which is the subject of an advicement addressed to him emanating from the Office of the City Assessor, Baguio City, for assessment and declaration for taxation purposes;

That I am not the owner of the building in question;

That the building in question is owned by Mr. Simeon B. Prudencio who is presently residing at 55 Hyacinth, Roxas District, Quezon City.

Further, affiant say not.8 (Underscoring supplied)

Section 38 of Rule 130 of the Rules of Court provides:

SEC. 38. Declaration against interest. – The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact asserted in the declaration was at the time it was made so far contrary to the declarant's own interest, that a reasonable man in his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself or his successors-in-interest and against third persons.

The theory under which declarations against interest are received in evidence notwithstanding they are hearsay is that the necessity of the occasion renders the reception of such evidence advisable and, further that the reliability of such declaration asserts facts which are against his own pecuniary or moral interest.9

The affiant, Florentino, who died in 1989 was petitioner’s father and had adequate knowledge with respect to the subject covered by his statement. In said affidavit, Florentino categorically declared that while he is the occupant of the residential building, he is not the owner of the same as it is owned by respondent who is residing in Quezon City. It is safe to presume that he would not have made such declaration unless he believed it to be true, as it is prejudicial to himself as well as to his children’s interests as his heirs.10 A declaration against interest is the best evidence which affords the greatest certainty of the facts in dispute.11 Notably, during Florentino’s lifetime, from 1973, the year he executed said affidavit until 1989, the year of his death, there is no showing that he had revoked such affidavit even when a criminal complaint for trespass to dwelling had been filed by respondent against him (Florentino) and petitioner in 1988 regarding the subject house which the trial court dismissed due to the absence of evidence showing that petitioner entered the house against the latter’s will and held that the remedy of

respondent was to file an action for ejectment;12 and even when a complaint for unlawful detainer was filed against petitioner and his wife also in 1988 which was subsequently dismissed on the ground that respondent’s action should be an accion publiciana which is beyond the jurisdiction of the Municipal Trial Court.13

Moreover, the building plan of the residential house dated January 16, 1973 was in the name of respondent and his wife. It was established during petitioner’s cross-examination that the existing structure of the two-storey house was in accordance with said building plan.14

Notably, respondent has been religiously paying the real estate property taxes on the house declared under his name since 1974.15 In fact, petitioner during his cross-examination admitted that there was no occasion that they paid the real estate taxes nor declared any portion of the house in their name.16

We agree with the CA that while tax receipts and declarations are not incontrovertible evidence of ownership, they constitute at least proof that the holder has a claim of title over the property.17 The house which petitioner claims to be co-owned by his late father had been consistently declared for taxation purposes in the name of respondent, and this fact, taken with the other circumstances above-mentioned, inexorably lead to the conclusion that respondent is the sole owner of the house subject matter of the litigation.

Respondent having established his claim of exclusive ownership of the subject property, it was incumbent upon petitioner to contravene respondent’s claim. The burden of evidence shifted to petitioner to prove that his father was a co-owner of the subject house.

We held in Jison v. Court of Appeals, to wit:18

xxx Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendant’s. The concept of "preponderance of evidence" refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth.19

In this case, the records show that although petitioner’s counsel asked that he be allowed to offer his documentary evidence in writing, he, however, did not file the same.20 Thus, the CA did not consider the documentary evidence presented by petitioner. Section 34 of Rule 132 of the Rules of Court provides:

Section 34. Offer of evidence. – The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified.

A formal offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment only and strictly upon the evidence offered by the parties to the suit.21 It is a settled rule that the mere fact that a particular document is identified and marked as an exhibit does not mean that it has thereby already been offered as part of the evidence of a party.22

Petitioner insists that although his documentary evidence were not formally offered, the same were marked during the presentation of the testimonial evidence, thus it can properly be taken cognizance of relying in Bravo, Jr. v. Borja.23

Such reliance is misplaced. In Bravo Jr., we allowed evidence on minority by admitting the certified true copy of the birth certificate attached to a motion for bail even if it was not formally offered in evidence. This was due to the fact that the birth certificate was properly filed in support of a motion for bail to prove petitioner’s minority which was never challenged by the prosecution and it already formed part of the records of the case. The rule referred to in the Bravo case was Section 7 of Rule 133 of the Rules of Court which provides:

Section 7. Evidence on motion.- When a motion is based on facts not appearing of record, the court may hear the matter on affidavits or depositions presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

and not Section 34 of Rule 132 of the Rules of Court which is the one applicable to the present case.

Even assuming arguendo that the documentary evidence of petitioner should be considered in his favor, the evidence showing that respondent had filed civil and criminal cases against petitioner which were dismissed as well as the alleged Special Power of Attorney of petitioner’s parents whereby they authorized petitioner to stay in the ground floor of the house, did not establish co-ownership of Florentino and respondent of the subject house.

The testimonies of petitioner and his witnesses failed to show that the subject house is co-owned by petitioner’s father and respondent.

Candelario Regua merely testified that he was hired by petitioner’s father, Florentino, to construct the residential building in 1972;24 that he listed the materials to be used for the construction which was purchased by Florentino;25 that he and his men received their salaries every Saturday and Wednesday from Florentino or his wife, respectively;26 that he had not met nor seen respondent during the whole time the construction was on-going.27 On cross-examination, however, he admitted that he cannot tell where the money to buy the materials used in the construction came from.28

Corazon Garcia merely testified that Florentino started building the house when he was allocated a lot at DPS compound, that she knew Florentino constructed the subject house29 and never knew respondent. 30 The bare allegation that Florentino was allocated a lot is not sufficient to overcome Florentino’s own affidavit naming respondent as the owner of the subject house.

Petitioner himself testified that it was his father who saw the progress of the construction and purchased the materials to be used; 31 and as a young boy he would follow-up some deliveries upon order of his father 32 and never saw respondent in the construction site. The fact that not one of the witnesses saw respondent during the construction of the said house does not establish that petitioner’s father and respondent co-owned the house.

We also find that the CA did not err in ordering petitioner to pay respondent being the sole owner of the subject house a monthly rental of P2,000.00 from April 1988, the date of the extra-judicial demand, until petitioner actually vacates the subject house. Although the CA made no ratiocination as to how it arrived at the amount of P2,000.00 for the monthly rental, we find the same to be a reasonable compensation for the use of the ground floor of the subject house which consists of a living room, a dining room, a kitchen and three bedrooms. The rental value refers to the value as ascertained by proof of what the property would rent or by evidence of other facts from which the fair rental value may be determined. 33

We likewise affirm the CA’s award of attorney’s fees in favor of respondent. Article 2208 of the Civil Code allows the recovery of attorney’s fees in cases when the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest 34 and in any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered 35 which are both shown in the instant case.

WHEREFORE, the decision of the Court of Appeals dated March 31, 2000 and its Resolution dated November 28, 2000 are AFFIRMED.

Costs against petitioner.SO ORDERED.G.R. No. L-24989 July 21, 1967

PEDRO GRAVADOR, petitioner-appellee, vs.EUTIQUIO MAMIGO, THE DISTRICT SUPERVISOR OF BAYAWAN-STA. CATALINA SCHOOL DISTRICT, THE DIVISION SUPERINTENDENT OF SCHOOLS OF NEGROS ORIENTAL, THE DIRECTOR OF PUBLIC SCHOOLS and THE SECRETARY OF EDUCATION, (all sued in their official and personal capacities), respondents-appellants.

Office of the Solicitor Genero Arturo A. Alafriz, Assistant Solicitor General I. C. Borromeo and Solicitor F. J. Bautista for respondents-appellants.Newton E. Serion for petitioner-appellee.

CASTRO, J.:

The petitioner Pedro Gravador was the principal of the Sta. Catalina Elementary School in Sta. Catalina, Negros Oriental on August 15, 1964 when he was advised by the then, Superintendent of Schools Angel Salazar, Jr., through the respondent Supervisor Teodulfo E. Dayao, of his separation from the service on the ground that he had reached the compulsory retirement age of 65. The advice reads:

According to your pre-war records as a teacher in the public schools, including your Employee's Record Card, which has just been found in connection with the verification of the services of all school officials including elementary school principals in this division, you were born on November 26, 1897. As of this date, therefore, you are now 66 years, 8 months, and 22 days old.

In view of the above, you are hereby advised of your separation from the service effective immediately unless you can show valid proof in the form of a baptismal or birth certificate that you are below sixty-five years of age today.

A few days later the respondent Eutiquio Mamigo was designated teacher-in-charge of the said elementary school.

On August 31, 1964 the petitioner wrote the Director of Public Schools, protesting his forced retirement on the ground that the date of his birth is not November 26, 1897 but December 11, 1901. Attached to his letter was the affidavit, executed on July 26, 1962, of Lazaro Bandoquillo and Pedro A. Sienes both of Amlan Negros Oriental, in which these two affiants declared that they knew that the petitioner "was born on December 11, 1901, in the Municipality of Amlan formerly known as New Ayuquitan Province of Negros Oriental, Philippines" because, "we were the neighbors of the late spouses, NEPOMUCENO GRAVADOR and AGUEDA REGOROSA [petitioner's parents], and we were present when said PEDRO GRAVADOR was born; furthermore,we were also invited during the baptismal party a few weeks after the birth of said PEDRO GRAVADOR."

On October 19, 1964 the petitioner wrote to the Division Superintendents of Schools, reiterating his claim that he had not reached the age of 65 and enclosing some papers in support thereof.

On April 13, 1965 he filed this suit for quo warranto, mandamus and damages in the Court of First Instance of Negros Oriental. He asked the court to adjudge him entitled to the office of principal of the Sta. Catalina Elementary School and to order payment to him of not only his back salaries but also damages in the total amount of P52,400. Named as respondents were Eutiquio Mamigo, the District Supervisor, the Superintendent of Schools, the Director of Public Schools and the Secretary of Education.

The respondents filed their answer, entered into a stipulation of facts with the petitioner, and thereafter the case was submitted for decision. The trial court concluded that the petitioner was born on December 11, 1901 accordingly granted

his petition. Immediate execution was ordered, as a result of which the petitioner was reinstated.

The respondents appealed directly to this Court.

On July 6, 1967 the petitioner asked for the dismissal of the appeal on the ground that the issues posed thereby had become moot with his retirement from the service on December 11, 1966 and the payment to him of the corresponding retirement benefits. We deem it necessary, however, to review the trial court's decision on the merits, considering that the computation of retirement annuities is based among other things, on the number of years of service of a retiree,1 and that payment of benefits already made to the petitioner on the basis of December 11, 1901 as the date of his birth would not exempt him from the obligation to make a refund should this Court ultimately rule that he was actually born November 26, 1897, as the respondents claim.

The controversy on the petitioner's date of birth arose as a result of the conflicting records of the Division of Schools of Negros Oriental. On the one hand the pre-war records show his date of birth to be November 26, 1897. These records consist of two Insular Teachers Cards2 and one Employee's Record Card.3 It is on the basis of these records that the Superintendent of Schools determined the petitioner's age to be 66 years, 8 months and 22 days on August 15, 1964.

On the other hand, the post-war records, consisting of an Elementary Teacher's Report Card,4 an Employee's Record Card,5 and an Employee's Record of Qualifications,6 state that the petitioner was born on Dec. 11, 1901. These are the records on which the petitioner bases his claim.

The problem is aggravated by two uncontroverted facts, namely, that the records of the church where the petitioner was baptized were destroyed by fire, and that the municipal civil register contains no record. of the petitioner's birth.

According to the trial court, the post-war records were intended to replace the pre-war records and therefore the correct date of birth of the petitioner is December 11, 1901. The court also took into account the verified answer in a cadastral proceeding in the Court of First Instance of Negros Oriental, dated March 15, 1924, filed by the petitioner's brother, Romulo Gravador, now deceased. It is therein stated that the petitioner, said to be one of the co-owners of a piece of land, was at the time 23 years old.

The respondents now contend that the trial court erred in placing full reliance on the post-war records to establish the date of birth (December 11, 1901) of the petitioner. They argue that these records were made only because it was thought that the pre-war records had been lost or destroyed, but as some pre-war records had since been located, the date contained in the pre-war records should be regarded as controlling and that the finding of the Superintendent of Schools that the petitioner was born on November 26, 1897 is an administrative finding that should not be disturbed by the court.

That the findings of fact of administrative officials are binding on the courts if supported by substantial evidence, is a settled rule of administrative law, But whether there is substantial evidence supporting the finding of the Superintendent of Schools is precisely the issue in this case. The school official based his determination of the petitioner's age on the pre-war records in the preparation of which the petitioner does not appear to have taken a part.7 On the other hand, the petitioner post-war records which he personally accomplished to prove the date of his birth.8

It is our considered view that the lower court correctly relied upon the post-war records, for three cogent reasons.

In the first place, as Moran states, although a person can have no personal knowledge of the date of his birth, he may testify as to his age as he had learned it from his parents and relatives and his testimony in such case is an assertion of a family tradition.9 Indeed, even in is application for back pay which he filed with the Department of Finance, through the Office of the Superintendent of Schools, on October 7, 1948, the petitioner stated that the date of his birth is December 11, 1901. He repeated the same assertion in 1956 and again in 1960 when he asked the Government Service Insurance System and the Civil Service Commission to correct the date of his birth to December 11, 1901.

In the second place, the import of the declaration of the petitioner's brother, contained in a verified pleading in a cadastral case way back in 1924, to the effect that the petitioner was then 23 years old, can not be ignored. Made ante litem motam by a deceased relative, this statement is at once a declaration regarding pedigree within the intendment and meaning of section 33 of Rule 130 of the Rules of Court.

Thus, December 11, 1901 is established as the date of birth of the petitioner not only by evidence of family tradition but also by the declaration ante litem motam of a deceased relative.1äwphï1.ñët

Finally, the patties are agreed that the petitioner has a brother, Constantino, who was born on June 10, 1898 and who retired on June 10, 1963 with full retirement pay. The petitioner then could not have been born earlier than Constantino, say in 1897 as pre-war records indicate, because Constantino is admittedly older than he.10

Still it is argued that the petitioner's action was prematurely brought because he had not availed of all administrative remedies. This argument is without merit. Suit for quo warranto to recover a public office must be brought within one year.11 Before filing this case the petitioner waited for eight months for the school officials to act on his protest. To require him to tarry a little more would obviously be unfair to him since on April 13, 1965, when this case was filed, he had only four months left within which to bring the case to court. There was neither manner nor form of assurance that the decision of the Director of Public Schools would be forthcoming. The rule on exhaustion of administrative remedies does not apply where insistence on its observance would result in the nullification of the claim being asserted.12

Accordingly, the judgment a quo is affirmed. No pronouncement as to costs.

G.R. No. 93030-31 August 21, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ALFREDO ALEGADO Y DELIMA, accused-appellant.

GUTIERREZ, JR., J.:p

The accused-appellant stands charged and convicted of two counts of rape by the Regional Trial Court of San Carlos City, Branch 58 in its decision promulgated on October 26, 1989 with the following dispositive portion:

WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of rape punished under Article 335 paragraphs 1 & 3 of the Revised Penal Code, said accused is hereby sentenced to RECLUSION PERPETUA on both counts, the sentences to be served successively, to pay the offended party the sum of Twenty Thousand Pesos (P20,000.00), and to pay costs of suit. (RTC Decision, p. 8; Rollo, P. 32)

This appeal prays for a reversal of the trial court's judgment of conviction and submits before us the following assignment of errors to wit.:

I

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF STATUTORY RAPE AS DEFINED AND PENALIZED UNDER ART. 335, PARAGRAPH 3 OF THE REVISED PENAL CODE DESPITE THE PROSECUTION FAILURE TO PROVE WITH CERTAINTY THE ACTUAL AGE OF THE OFFENDED PARTY.

II

THE TRIAL COURT ERRED IN NOT ACQUIRING ACCUSED-APPELLANT OF THE CRIMES CHARGED DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT (Appellant's Brief, p. 1, Rollo p. 55)

The accused-appellant, in two criminal complaints filed by the offended party herself and docketed as Criminal Cases Nos. RTC-437 and RTC 438, was charged with rape on two counts committed as follows:

That on or about 7:00 p.m., April 20, 1988 at the Public Market, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, did, then and there wilfully, unlawfully and feloniously have carnal knowledge of the herein offended party, CRISTINA DEANG y VILLAROSA, a girl below twelve (12) years of age, against her will and without her consent. (Criminal Case No. RTC-437: Rollo, p. 14)

That on or about 6:00 p.m., April 14, 1988 at the Public Market, San Carlos City, Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there wilfully, unlawfully and feloniously have carnal knowledge of the herein offended party, CRISTINA DEANG y VILLAROSA, a girl below twelve (12) years of age, against her will and without her consent. (Criminal Case No. RTC-438; Rollo, p. 16)

At the pre-trial, both the prosecution and the defense agreed on a joint trial and stipulated on only one fact, i.e., that the accused, as watchman of the San Carlos City public market was inside the said premises during the two occasions when the alleged rapes transpired. Both parties presented two common issues for the trial court's consideration, namely: (1) whether the offended party was actually below 12 years old at the time of the incidents; and (2) whether the accused had carnal knowledge of the offended party by means of force and intimidation (Pre-trial Order dated June 2, 1988; Records, p. 16)

The antecedent facts as stated by the Solicitor General in the People's brief are as follows:

On April 14, 1988, at about 6:00 o'clock in the afternoon, complainant was playing at the Freedom Square inside the public market of San Carlos City when appellant, a 170-pound, 53 year old market watchman at the time, held her by the hand and took her upstairs to the second floor of the public market building which houses some government offices and which at the time was expectedly deserted (tan, May 17, 1989, pp. 13, 21-22). When they reached the upper floor of the building, appellant ordered complainant to hold his penis and masturbate it (ibid, p. 22). Thereafter, appellant ordered complainant to lie down, and when she refused he pushed her down on the floor (ibid). When complainant was lying prostrate on her back, appellant placed himself on top of her while she was still wearing her pedal pusher shorts and panty (ibid, p. 23). So, appellant forced her to take off her pedal pushers and panty (ibid, pp. 26-27) and thereupon he lay on top of her (ibid). Appellant then tried to insert his penis into her vagina but it did not penetrate fully before he ejaculated (ibid, pp. 23, 27-28). Complainant bled a little (ibid, p. 52) Thereafter, appellant gave complainant P 2.00 and left (ibid, p. 28). Complainant stood up and went down the building but never told anybody about it because she was afraid appellant would kill her (ibid p. 28)

On April 20, 1988, at about 7:00 o'clock in the evening complainant was sitting at the Freedom Square when appellant approached her and told her to go with him upstairs to the second floor of the public market (tsn, May 17, 1989, pp. 11-12). Complainant refused but appellant shoved her towards the stairs, held her by the left arm, and brought her to the upper floor near the civic center (ibid, pp. 12-13). There, appellant ordered complainant to take off her shorts and panty, but she refused (ibid, p. 14). Appellant then tried to take off her shorts and panty by himself but she resisted and told the former she would not submit to his evil desires (ibid). Thereupon, appellant threatened to kill complainant if she would not take off her shorts and panty (ibid). Then appellant again tried to remove complainant's shorts and panty and the latter out of fear allowed him to do it (ibid). When appellant succeeded in removing complainant's shorts and panty, he forced her to lie down

and then placed himself on top of her (ibid, p. 15). Appellant was then already without his pants on (ibid). Appellant inserted his penis into complainant's vagina but it took sometime before his organ could penetrate the girl (ibid). When it did, complainant felt excruciating pain and begged appellant to stop (ibid, p. 16). Appellant just ignored her and continued on without saying anything (ibid). Complainant felt some liquid oozing out from appellant's organ and into her being (ibid, p. 17) And after appellant had withdrawn his sex organ, complainant discovered that her vagina was bleeding (ibid). Appellant then stood up and told her not to tell anybody about it (ibid, pp. 17-18). Then appellant gave her P 2.00 and left (ibid, p. 18).

As appellant was going downstairs, he was seen by Patrolwoman Evangeline Alfaro, a member of the San Carlos City INP assigned at Precinct No. 1, a police outpost near the main entrance of the public market (tsn, September 28, 1988, pp. 4-5). Pat. Alfaro knew appellant well because he was the public market watchman at the time (ibid, p. 5). A minute later, Pat. Alfaro saw complainant coming down the same stairs (tsn, September 28, 1988, p. 6; May 17, 1989, pp. 18-19). Pat. Alfaro noticed that complainant was pale, with blood flowing to her thighs and legs, and was reeling as if feeling dizzy (tsn, September 28, 1988, p. 6)

Pat. Alfaro approached complainant and asked what happened to her (tsn, September 28, 1988, p. 6; May 17, 1989, pp. 19-20). Complainant answered that she was taken upstairs and raped by appellant (ibid). Immediately, Pat. Alfaro brought complainant to the city hospital where she was examined by Dr. Oscar Jagdon in the presence of two medical technologists (tsn, September 28, 1988, pp. 7-8; May 17, 1989, p. 20). Dr. Jagdon confirmed the report that indeed complainant was raped (ibid). Thereafter, Pat. Alfaro reported the incident to the Station Guard by phone then took complainant to the police station after the medical examination (tsn, September 28, 1988, p. 8; May 7, 1989, p. 20). When they reached the station, appellant who had already been taken into custody was readily identified by complainant as the rapist (tsn, September 28, 1988, pp. 8-10; May 17, 1989, pp. 2021). Complainant was then investigated and she rendered her statement to the police.

Dr. Oscar Jagdon, who examined complainant at about 8:40 o'clock in the evening of April 20, 1988, found some secretion inside complaint's vagina along the cervical wall which, upon laboratory examination, turned out to be sperm cells and that complainant's vagina was lacerated, one (1) centimeter long, at 9:00 o'clock position although there was only partial penetration of the male organ into complainant's vagina (tsn, August 10, 1988, pp. 4-9; Exhibit 'E'). (Rollo, pp. 84-89)

On the other hand, the accused-appellant's version as summarized in his brief reads:

Evidence for the Defense:

Alfredo Alegado testified that on April 14, 1988 at about 6:00 p.m., he was on duty, he being a watchman of the public market. His tour of duty is from 6:00 p.m. to 6:00 a.m. the following day. Before 7:00 p.m. of that day, he and his co-watchman roamed around the area checking the padlocks of the stores if they are in order. At

about 8:30 p.m., they closed all the doors of the vegetables section, meat section and the dried fish section. He knows Cristina Deang who used to sell calamansi in the area. On April 14, 1988, he did not meet Cristina Deang as he and his companions were then busy roving around the area. On April 20, 1988, at about 5:00 p.m., he was having snacks at Valdevia Street, with Cpl. Allarce and Lito Alverez. They stayed there until about 7:30 p.m. when to his surprise, he was arrested and brought to the station by Pat. Apuhin and companions including Pfc. Evangeline Alfaro. From 5:00 p.m., to 7:30 p.m. on April 20, 1988, he never met and/or saw Cristina Deang. Pfc. Evangeline Alfaro has been harboring ill-feelings on him when on a certain occasion, he turned down her request to ask the four (4) armed men whom they saw in the market (what they wanted) (t.s.n., pp. 2-3, September 14, 1989).

Sgt. Rolando Allarce testified that he knew accused because he is assigned at the police precinct in the public market. At about 5:00 p.m. on April 20, 1988, he was invited by Alfredo Alegado to have a snack at Namie's Lunch. They finished having snack at about 6:00 p.m. Thereafter, Alfredo Alegado and Lito Alverez invited him to go to Valdevia Street for a drinking spree. He accepted their invitation and went with them. He went out at about 7:00 p.m., leaving behind Alfredo Alegado in the store. (t.s.n. pp. 25-27, Ibid) (Rollo, pp. 59-60)

Whether or not any cogent reason exists to constrain us to reverse the trial court's verdict of conviction under paragraphs 1 and 3 of Article 335 of the Revised Penal Code is the issue in this appeal.

Firstly, the accused-appellant contends that the offended party's actual age at the time of the alleged incidents of rape was not establisher with certainty, hence, it was error on the part of the trial court to convict the accused-appellant of statutory rape as defined and penalized under paragraph 3, Article 335 of the Revised Penal Code.

We are not persuaded. The testimonies of the prosecution witnesses, the offended party herself and her maternal grandfather, Cornelio Villarosa, as to the fact that the victim was born on September 5, 1976 do not constitute hearsay evidence as claimed by the accused-appellant but rather fall under the exceptions to the hearsay rule as provided under sections 39 and 40 of Rule 130 of the Revised Rules on Evidence. Under Section 40 of the said Rule, it is provided, in part, that:

SEC. 40. — Family reputation or tradition regading pedigree. — The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. ...

The word pedigree under Section 39 of the same Rule includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred and the names of the relatives.

In the case of Lazatin v. Campos, 92 SCRA 250, 261 [1979], we stated that:

... [D]eclarations in regard to pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth (See Sec. 33, Rule 130 Revised Rules of Court now Sec. 39, Rule 130 under the new Rules). Pedigree testimony is admitted because it is the best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission. (Wigmore on Evidence, Sec. 1420)

In the present case, the applicability of Rule 130, Section 39 of the Revised Rules on Evidence to prove the victim's age is beyond question. The said provision contains three requisites for its admissibility, namely: (1) that there is controversy in respect to the pedigree of any of the members of a family; (2) that the reputation or tradition of the pedigree of the person concerned existed previous to the controversy; and (3) that the witness testifying to the reputation or tradition regarding the pedigree of the person must be a member of the family of said person. All these preconditions are obtaining in the case at bar considering that the date of birth of the rape victim is being put in issue; that the declaration of the victim's grandfather relating to tradition (sending a child to school upon reaching the age of seven) existed long before the rape case was filed; and that the witness testifying to the said tradition is the maternal grandfather of the rape victim.

Thus, we quote the pertinent portions of Cornelio Villarosa's testimony:

PROSECUTOR FABROZ: (to witness)

Q Mr. Villarosa, how many children do you have?

A I have 5 children.

Q How old is the eldest?

A Thirty Nine (39) years old.

Q How about the youngest?

A May be 24 years old because I forgot the birth date.

Q The complainant in this case is a certain Cristina Deang. Do you know her?

A Yes, sir.

Q Why do you know her?

A She is my granddaughter.

Q If she is in court, would you able to point her?

A Yes, sir. (At this juncture the witness is pointing to a person sitting inside the courtroom who when asked answered by the name of Cristina Deang.)

Q Who is the mother of Cristina Deang?

A Angelita.

Q Angelita Villarosa?

A Yes, sir.

Q Is she your daughter?

A Yes, sir.

Q Is she here?

A No, she is not here.

Q Where is she now?

A I don't know where she work now, because she did not send a letter to me.

Q The last time, where is her whereabouts?

A She was in Manila, my last knowledge about her whereabouts.

Q You said, Cristina Deang was the daughter of your daughter, Angelita. Do you know how many children does Angelita have?

A She has five (5) children.

Q With whom is this Cristina Deang living now?

A In our residence.

Q How did it happen that Cristina Deang has been living with you.

A The mother left her to me.

Q When was it that the mother left her to you.

A In 1983.

Q How old was Cristina Deang at the time her mother left her to you?

A The mother of Cristina Deang told me that she was born in 1976 and please let her go to school.

ATTY. BRIONES:

I would like to make it of record that the information gathered by the mother, Angelita, is a hearsay your Honor.

PROSECUTOR FABROZ:

I would like to prove the fact about the birth of the child.

COURT:

Let it stay in record.

PROSECUTOR FABROZ:

Q By the way, do you have a talk or conversation with your daughter, Angelita, the mother of the complainant Cristina Deang, when was Cristina Deang born?

A We did not talk about the birth of Cristina, but she told me to let her daughter Cristina go to school because she is already 7 years old.

Q Did you ask her about the birth of Cristina Deang?

ATTY. BRIONES:

I think that is misleading your Honor.

COURT:

Witness may answer.

WITNESS:

A That is what she told me, she was born on September 5, 1976.

PROSECUTOR FABROZ:

Q So based from the information you get from your mother Angelita, did you in fact send your granddaughter Cristina Deang to school?

A Yes, sir.

Q Where?

A SMAC Elementary School.

Q What grade did you send her?

A Grade 1.

Q Was she able to finish Grade I?

A No, sir.

(TSN, January 31, 1989, pp. 4-7)

Moreover, the offended party herself categorically stated in open court that she was born on September 5, 1976 (TSN, May 17, 1989, p. 8). As correctly submitted by the Solicitor General:

It is long-settled, as early as in the cases of U.S. v. Bergantino (3 Phil. 118 [1903] and U.S. v. Angeles (sic) and Sabacahan (36 Phil. 246, 250 [1917] citing U.S. v. Estavillo and Perez (10 O.G. 1984), that the testimony of a person as to his age is admissible although hearsay and though a person can have no personal knowledge of the date of his birth as all the knowledge a person has of his age is acquired from what he is told by his parents (U.S. vs. Evangelista, 32 Phil. 321, 326 [1951] – he may testify as to his age as he had learned it from his parents and relatives and his testimony in such case is an assertion of family tradition (Gravador v. Mamigo, 20 SCRA 742) ... (Rollo, p. 93-94)

Inasmuch as the accused-appellant failed to present contrary evidence to dispute the prosecution's claim that the victim in this case was below twelve (12) years old at the time of the rape incidents under consideration, we affirm the trial court's finding that the victim in these rape cases was under twelve years of age.

Time and again we have held that the gravamen of the offense of statutory rape as provided under Article 335, paragraph 3 of the Revised Penal Code is the carnal knowledge of a woman below twelve years old. (People v. Edgardo Puedan y Lalongisip, G.R. No. 92586, April 26, 1991 citing People v. Villegas, Jr., 127 SCRA 195, 200 [1984]; People v. Mangalino, 182 SCRA 329 [1990] citing People v. San Buenaventura, 164 SCRA 150 [1988] and People v. Villegas, Jr., supra). Hence, the only elements of statutory rape are: (1) that the offender had carnal knowledge of a woman; and (2) that such woman is under twelve (12) years of age. (People v. Santos, 183 SCRA 25 [1990]). It is not necessary to prove that the victim was intimidated or that force was used against her because in statutory rape the law presumes that the victim on account of her tender age, does not and cannot have a will of her own. (People v. Bacani, 181 SCRA 393 [1990]; People v. Lualhati, 171 SCRA 277 [1989]; People v. Derpo, 168 SCRA 447 [1988])

Considering that in the instant case there is clear and competent evidence that the victim was under twelve (12) years old at the time of the rape incidents complained of, the second argument purported by the accused-appellant that the alleged rapes were not attended by any force or intimidation must also fail. Proof of carnal knowledge of the victim in this case who was only eleven (11) years old on the two separate occasions reported (April 14 and 20, 1988) is overwhelming while unnecessary force and intimidation also appear in the records. The offended party's testimony regarding the abominable and wicked acts of the accused-appellant against her chastity on the two occasions indicated in the separate informations filed by the victim herself was given in a straightforward manner without any indication that the same was motivated by any ill- feeling toward the pinpointed

perpetrator. The fact of rape on the said occasions related by the offended party was corroborated by the examining physician whose medical finding revealed the presence of sperm cells inside the victim's sexual organ due to partial penetration of the male organ into it.

It is axiomatic in rape cases that the slightest penetration of the female's private organ is sufficient to consummate the came. (People v. Jun Aquino [John Aquino], G.R. No. 83214, May 28, 1991 citing People v. Cruz, 180 SCRA 765 [1989]; People v. Patonog 155 SCRA 675 [1987]; People v. Alverez, 163 SCRA 745 [1988]; People v. Bacani, supra). A careful review of the evidence on record readily shows that the trial court did not commit any reversible error in disregarding the defenses of denial and alibi given by the accused-appellant and in finding that the accused-appellant was guilty beyond reasonable doubt of two counts of statutory rape. We affirm the trial court's verdict of conviction in consonance with our oft-repeated pronouncement that we accord great respect to the trial court's findings of fact in the absence of a showing that certain facts of substance and value were erroneously overlooked that, if considered, might affect the result of the case (see People v. Eleuterio Raptus y Jeray, G.R. Nos. 92169-70, June 19,1991 citing People v. Aboga, et. al., 147 SCRA 404 [1987]; People v. Estenzo, et al., 72 SCRA 428 [1976]; see also People v. Frankie Arenas, et al., G.R. No. 92068, June 5, 1991, citing People v. Somera, 173 SCRA 684 [1989]; People v. Baysa, 172 SCRA 706 [1989]; Aguirre v. People, 155 SCRA 337 [1987])

Lastly, we commend the trial court's additional finding that the commission of the rapes in question was attended by force and intimidation although for conviction under Article 335 paragraph 3 of the Revised Penal Code such finding is no longer necessary. It bears emphasis, therefore, that the accused-appellant not only took advantage of the offended party's tender age in giving vent to his aberrant sexual behavior but also perpetrated the carnal acts complained of through force and intimidation. There is no meat in the accused-appellant's contention that the trial court abused its discretion in concluding that there was force and intimidation since the information did not contain any allegation to that effect simply because the phrase "against her will and without her consent" contained in both informations charging the accused-appellant of rape connotes the attendance of force and intimidation.

The absence of external signs of physical injuries and the failure of the victim to shout for help at the first opportunity do not negate the commission of rape contrary to the accused-appellant's propositions. The force used in rape cases need not be absolutely overpowering or irresistible. What is essential is simply that the force employed was sufficient to allow the offender to consummate his lewd purpose (see People v. Cpl. Mario Ramos, G.R. Nos. 92626-29, May 27, 1991 citing People v. Mendoza, 163 SCRA 568 [1988]; People v. Tablizo, 182 SCRA 739 [1990] citing People v. Pasco, et al., 181 SCRA 233 [1990]; People v. Villaflores 174 SCRA 70 [1989] citing People v. Abonada, 169 SCRA 530 [1989]).

We further note with approval the trial court's observation that the accused-appellant's act of giving the offended party the sum of P2.00 after each of the aforestated "forcible copulation" apparently as "full atonement for his dastardly act"

smacks of "insult a hundred times compounded." The accused-appellant, despite the trial court's strong words, even had the gall to reiterate before us his claim that the acceptance of the said measly amount of P2.00 was tantamount to a tacit consent on the part of his victim. We deplore such a highly offensive and depraved argument for we cannot allow the innocent and helpless victims of unsolicited and forcible defloration to be brutally insulted while yet nursing their irreparably wounded sexual purity. Considering the age of the victim, the depravity of the crimes, and the psychological trauma involved, we increase the indemnity to P50,000.00 in accordance with the recent rulings in the cases of People v. Cpl. Mario Ramos, supra; People v. Edgardo Puedan y Lalongisip, supra; and People v. Rodante Felipe, G.R. No. 90390, October 31, 1990.

WHEREFORE, in view of the foregoing, the appealed decision is AFFIRMED with MODIFICATION that the amount of civil indemnity which the accused shall pay to the offended party in each of the two rape cases is hereby increased to P50,000.00.

SO ORDERED.

G.R. No. L-10093 November 24, 1915

THE UNITED STATES, plaintiff-appellee, vs.LAZARO EVANGELISTA and ANDRES BANDILLO, defendants. LAZARO EVANGELISTA, appellant.

Arsenio Locsin for appellant.Acting Attorney-General Zaragoza for appellee.

JOHNSON, J.:

Said defendants were charged with the crime of rapto. The complaint alleged:

On or about the 23rd day of June, 1913, in the municipality of Santa Cruz, Province of Laguna, the accused, willfully, maliciously and criminally, availing themselves of the darkness of night, with abuse of confidence, abducted from her dwelling, with her consent, a young girl named Severina Flores, said girl being over 12 and under 18 years of age. Crime committed in violation of law, with the aggravating circumstances Nos. 10, 15, and 20, of article 10 of the Penal Code.

Upon said complaint, the defendants were duly arrested, arraigned, pleaded not guilty, and were tried. At the close of the trial the said Lazaro Evangelista was found guilty of the crime charged in the complaint and sentenced to be imprisoned for a period of 4 years and 2 months of prision correccional, with the accessory penalties provided for by the law. He was also sentenced to pay to the offended party, Severina Flores, the sum of P500 and in case of insolvency to suffer subsidiary imprisonment, and to pay one-half the costs.

The lower court found that the proof was not sufficient to show that the said Andres Bandillo was guilty of the crime charged in the complaint and absolved him from all liability thereunder, and discharged him from the custody of the law, with costs de oficio.

From the sentence the defendant Lazaro Evangelista appealed to this court and made several assignment of error. The only question presented by said assignments of error, is whether or not, under the facts proved during the trial of the cause, the defendant and appellant is guilty of the crime charged.

The Attorney-General, in a carefully prepared brief, analyzed the evidence, pro and con, adduced during the trial of the cause and reached the conclusion that in his judgment the sentence of the lower court should be affirmed.

After a careful examination of the evidence brought to this court we have reached the conclusions of the facts found by the Honorable Isidro Paredes, in his decision, contain a clear and accurate resume of the proof adduced during the trial of the cause. Judge Paredes, in his sentence, found:

In support of the charge herein filed, the prosecution adduced evidence from which the following facts appear: In or about the month of June, 1913, Severina Flores, a girl 15 years of age and a daughter of Lorenzo Flores, was living in custody and in the company of her grandmother's sister, Juana Flores, and in her house, situated in the municipality of Santa Cruz, Province of Laguna. About midnight of the said 23d of June, Juana Flores awoke and found that her grandniece Severina was missing; that the girl had disappeared in some unknown manner. At about the same hour, that is, at midnight, the witness Apolonio Flores, on leaving the corner of the lot on which his house stood, saw Severina Flores passing along the road in company with the accused Lazaro Evangelista and Andres Bandillo, and having asked them whether they were going they replied that they were going to the barrio of Gatic. But it tuned out that the accused and the girl Severina, instead of going to Gatic, embarked in a banca which Andres Bandillo, a boatman, had already prepared by order of his co-accused, Lazaro Evangelista; traveling in the said small boat they succeeded in crossing Laguna de Bay to the municipality of Jalajala, Province of Rizal, where they stayed in a house for some time, after which they again embarked in another banca and went to the municipality of Binangonan, of the same Province of Rizal. During all of this time Severina's father and other relatives were engaged in an unsuccessful search to find her. In the month of October, Severina Flores appeared at the house of Pablo Guilatco, in Santa Cruz, Laguna, and after that it was rumored that she was married to a certain Enrique Rojas.

As against the foregoing facts proved by the prosecution, the defense has attempted to show: That Severina Flores maintained amorous relations with Enrique Rojas long before the month of June, 1913; that a midnight of the 23d of June, Enrique Rojas abducted Severina from her grandmother's house where she was living, and took her with him to Jalajala, Province of Rizal, first traveling in the small banca belonging to Andres Bandillo, and afterwards in that of Patricio Barroso, they having transferred to the latter in the middle of the lake; that they lodged in Jalajala and after remaining there for some time went to Binangonan and, lastly, from Binangonan to Manila, where Enrique Rojas and Severina Flores contracted a religious marriage before a minister of the Philippine National Church, in Binondo; that, finally, the accused Lazaro Evangelista took no part whatever in the removal of Severina Flores from her house, nor in her elopement to the municipality of Binangonan and afterwards to Manila, for the purpose of getting married.

But the court must accept as true the facts established by the prosecution, and reject as false and manufactured those the defense has tried to prove. The reasons which guided the court in forming his opinion on this point are the following: Enrique Rojas never paid court to Severina Flores, either before or after 23rd of June 1913, while on the other hand it was the accused Lazaro Evangelista who maintained amorous relations with the girl to the extent that Severina was removed from Evangelista's house where she was living, she being a niece of Evangelista's wife, to the house of her grandmother, whence later on she was abducted. Certain acts of a suspicious nature on the part of Evangelista caused this removal to be made, aside from the fact that one day in the month of March, 1913, Evangelista and Severina, while lying down together and alone inside of a concealed shack in barrio of Santa Cruz, were there surprised by the witness Gaudencio Flores, who later reported what

he had seen to Severina's grandmother. Neither was it Enrique Rojas who abducted Severina from her home on the night in question, nor was it Rojas who escaped with her in the small banca and afterwards went to the municipalities of Jalajala and Binangonan, but according to impartial and creditable witnesses, it was the accused Evangelista who accompanied Severina that night, embarked with her in Andres Bandillo's small banca, and took her first to Jalajala and afterwards to Binangonan. Enrique Rojas did not take the slightest part in this flight and was never in the company of Evangelista and Severina Flores, for a moment. Evangelista and Severina traveled alone and always in each other's company, as though they were husband and wife. In the houses where they lodge they also slept together and treated one another as if they were truly married. In view of these facts, the claim that Enrique Rojas was the abductor, and not Evangelista, is utterly unsustainable.

The evidence of the alleged marriage between Enrique Rojas and Severina Flores might carry some weight, if Rojas were herein charged with abduction, and if Lazaro Evangelista, instead of denying his part in the abduction, had admitted it. In that case, the abductor having married the abducted girl, it would be held that all criminal liability on the part of the abductor was extinguished; and this liability being extinguished, that of his accomplices Evangelista and Andres Bandillo would also have been extinguished. But Enrique Rojas not being accused, and Lazaro Evangelista denying, as he does, his share in the abduction, the foregoing defense of the alleged marriage is entirely superfluous in the present case. Such a marriage, if it had taken place, would only serve to prove to the court that before the abduction Rojas and Severina maintained amorous relations with each other and that these relations were legalized by the marriage after the abduction. But the court can not even believe this alleged marriage, for, according to the evidence, it is rather the accused Lazaro Evangelista who is Severina's husband.

The facts proved by the prosecution constitute the crime of abduction, provided for and punished by article 446 of the Penal Code. At the time of the commission of the crime, Severina Flores was a maiden 15 years of age. Her father, Lorenzo Flores, so testified, and although when she testified in the habeas corpus proceedings and in this cause also she stated that she was of a different age, her testimony can not prevail over her father's. In fact all the knowledge a person has of his age is acquired from what he is told by his parents, and the remarks or statements of his parents in regard thereto is the best evidence. Severina Flores was removed from the house where she was living by the accused in the middle of the night of June 23, 1913. The fact of this removal is logically deduced from certain acts previously performed, and proved during the trial, to wit. On the night mentioned Lazaro Evangelista had contracted with Andres Bandillo for a small banca to carry him to Jalajala. That same night Evangelista, in company with Bandillo, was waiting for Severina to leave her house and when she left it they took her with them to the said banca. Prior to the date referred to, Evangelista and Severina maintained amorous relations, as aforesaid, and the sole person interested in taking Severina from her home was Evangelista. The fact then of Severina's leaving her house on the night in question must either be attributed to a series of strange happenings or it must be admitted that her departure was the result of an appointment, an inducement, or an invitation on the part of the accused Evangelista.

The defense in his written brief cites for the court several decisions by the honorable Supreme Court of these Islands and by the supreme court of Spain, in which it is held that, in order that the crime of abduction with consent may be committed, it is necessary that there shall have been inducement, seduction, cajolery, promises on the part of the abductor , and that when, instead of such acts, the initiative is taken by the abducted female, because she herself voluntarily and by an act of her own abandons her home to accompany her lover, then it is not a case of abduction, but simply one of elopement. The court has carefully examined these cases cited by the defense and finds a notable difference between them and the case at bar. In the present case there is no direct, but only indirect, evidence as to the manner and form in which Severina Flores left her home, while in the cases cited by the defense the evidence positively and explicitly shows that it was the abducted person who voluntarily left her home and went to that of her abductor. It is very just and natural that in these cases cited by the defense our courts should have acquitted the accused because it was proven therein that the initiative in the departure from the paternal roof was taken solely and exclusively by her who was said to have been abducted, and in no manner by the accused; but in the case at bar there is no evidence to show that Severina Flores, of her own free will, left her grandmother's house to go to join her paramour, Lazaro Evangelista; and if there is no proof to this effect it is evident that the court cannot apply the rules laid down in the cases cited by the defense. There is no evidence that Severina Flores voluntarily abandoned her home, but there is, on the other hand, circumstantial evidence that such abandonment was the result of inducement or seduction on the part of the accused Lazaro Evangelista. Therefore the court is sure of its grounds in holding that Evangelista committed the crime defined and punished by article 446 of the Penal Code. According to all the proven facts in this case, no other person but the herein accused Lazaro Evangelista induced, or could have induced, Severina Flores to leave her home.

The crime was committed at night, and, from all the circumstances of the case, nighttime was purposely sought. Lazaro Evangelista is an educated person. He was a law student and is now a councilor of the municipality of Santa Cruz. Prior to the abduction, he kept Severina in his house as though she were his daughter on account of her being his wife's niece. Therefore, in the commission of the crime, the attendance of the aggravating circumstances must be taken into account, namely: Nocturnity and abuse of confidence. No mitigating circumstance is present.

The lower court found that there were two aggravating circumstances, nocturnity and abuse of confidence. There seems to be nothing in the record to justify the conclusion that there existed an abuse of confidence on the part of the defendant. lawph!1.net

The foregoing facts, in our opinion, clearly show that the defendant was guilty of the crime charged in the complaint and fully justify the conclusions of the lower court, Therefore the sentence of the lower court is hereby affirmed, with costs. So ordered.

G.R. No. L-12993 October 28, 1918RAFAEL J. FERRER, ET AL., plaintiff-appellants, vs.JOAQUIN J. DE INCHAUSTI, ET AL., defendants-appellees.

TORRES, J.:

This appeal was taken through bill of exceptions by counsel for the plaintiffs from the judgment of February 12, 1917, whereby the judge of the Court of First Instance held that Rosa Viademonte, mother of the plaintiffs, could not have been legitimate daughter of the deceased Isabel Gonzalez, who, on her death, left some legitimate children. The court did not deem it necessary to discuss whether the said Rosa Viademonte could be a daughter of the said Isabel Gonzalez for reason, given in his decision, and held that the plaintiffs should not be entitled to what they have demanded, and that they should pay the costs.

Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte and Maria Angelina Ferrer y Viademonte with her husband Ricardo Hernandez y Aracil filed a complaint in the Court of First Instance of the city of Manila, praying for the rendition of a final judgment declaring that Rosa Matilde Viademonte y Gonzalez had the right to succeed to the inheritance left by Isabel Gonzalez in the same proportion and capacity as the other four children of the latter, namely, Ramon Viademonte, Rafael C. de Inchausti, Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that the plaintiffs Rafael and Maria Angelina Ferrer are the only and legitimate heirs of the deceased Rosa Viademonte and the only ones entitled to receive her share of the inheritance left by Isabel Gonzalez, that is, the on-fifth part of the latter's estate; that the defendants render to the plaintiffs an account of the fruits and administration of all the property from the moment the said community of property from the moment the said community of property was constituted among them, and to deliver to the plaintiffs that part which corresponds to them in their capacity as sole heirs of Rosa Viademonte y Gonzalez, that is, the one-fifth part of the inheritance with all its accession, fruits, and interests; and , finally, that the defendants pay the costs. In fact, it is alleged that the plaintiffs are the legitimate children of Rosa Matilde Viademonte , who in turn died on November 20, 1898, leaving the two plaintiffs as surviving legitimate children that the said Isabel Gonzalez was married, first to Ramon Martinez Viademonte, and from his marriage two children, named Roman and Rosa Matilde, and surnamed Viademonte y Gonzalez survived; that after the death of her husband Ramon Martinez Viademonte, Sr., the widow, Isabel Gonzalez, contracted a second marriage with Don Jose Joaquin de Inchausti with whom she had three children named Clotilde, Rafael and Joaquin, all surnamed Inchausti y Gonzalez, that Ramon Viademonte y Gonzalez Jr., died on January 1, 1905, without leaving any forced heir, and by a will dated May 216, 1900, he left his property to the son or sons which Rafael C. de Inchausti might have, and in default or such child or children, to the same Rafael C. de Inchausti, by a will, left as his heirs and successors in interest his legitimate son Jose R. de Inchausti, his recognized natural daughter Maria Consolacion de Inchausti de Ortigas, and his widow Maria Consolacion Rico y Medina; that on her death, Isabel Gonzalez left a certain property in her marriage with Jose de Joaquin de Inchausti, which would amount approximately to P1,000,000 with its accessions, according to

present valuation, as shown by the inventory of said property which makes up Exhibit A, that on January 14, 188, Jose Joaquin Inchausti y Gonzalez and Clotilde de Inchausti y Gonzalez de Vidal, each of whom received on-fourth of the estate left by the deceased Isabel Gonzalez, excluding therefrom Rosa Viademonte, the mother of the plaintiffs., notwithstanding the fact that she had an equal rights to inherit from Isabel Gonzalez; that since January 188 till his death, Ramon Viademonte, Jr. had been the possessor and administrator of the fourth part of the inheritance which he received from his deceased mother Isabel Gonzalez which portion of the property later came to the possession and control of Rafael C. de Inchausti, and on the death of the latter, this fourth part of the inheritance came to the possession of Maria Consolacion Rico de Inchausti, widow of said Rafael C. de Inchausti, in her capacity as guardian of her son Jose Rafael de Inchausti, and part of it, to the possession of Maric Consolacion de Inchausti de Ortigas; and that a great part of the property which the defendants actual possess, came from the young children, who received from Isabel Gonzalez with the earnings and accessions thereof; these children have been possessing it pro indiviso or in coownership, in their lifetime, with Rosa Viademonte while living, and upon the death of the latter, with her heirs, but that, in spite of the demands made by the plaintiffs for the delivery to them by the defendants of their corresponding share in the inheritance the latter have always refused to do so.

In his answers, for Clotilde Inchausti de Vial admitted that the plaintiffs are the children of Rosa viademonte and Benigno Ferrer; that Isabel Gonzalez was married first o Ramon Martinez de Viademonte, and afterwards to Jose Joaquin de Inchausti; that on the death of her mother Isabel Gonzalez, on December 13, 1886, her share in the conjugal partnership amounted to P191, 248.81, and on January 14, 1888, Jose Joaquin de Inchausti, as executor of his wife, after paying the legacies mentioned in the testament, paid to this defendant in cash the sum of P46,295.70 as her hereditary portion in the liquidated property of her mother, and likewise delivered to the other three sons of said Isabel Gonzalez similar amounts; that, after receiving her share of the inheritance from her mother, she spent it all, and she no longer has any part of it, nor has she left any portion of it during the last thirty years, and that neither the plaintiffs nor their deceased mother had ever possessed or enjoyed the said sum; and denies generally all the allegations of the complaint which are not admitted, and denies specially the allegation that the mother of the plaintiffs had ever married with their father Benigno Ferre, that they and their mother ever had the surname of Viademonte or Viademonte y Gonzalez and that the mother of the plaintiffs was a daughter of Isabel Gonzalez.

As a special defense, she alleged that her possession of the money derived from the inheritance of her mother had been public, adverse, pacific, continuous and under a claim of ownership, in good faith and with just title, since January 14, 1888; that never during the lifetime of the plaintiff's mother did she make any claim or assert any right in the amount received by this defendant form the inheritance of her deceased mother; that more than thirty years had elapsed since she received by this defendant inheritance of her deceased mother; and that the action for the plaintiffs has already prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of Civil Procedure they (the plaintiffs) and

their mother ever had the surname of "Viademonte" or Viademonte y Gonzalez," and that the mother of the plaintiffs was a daughter of Isabel Gonzalez.

As a special defense, she alleged that her possession of the money derived from the inheritance of her mother had been public, adverse, pacific, continuous, and under a claim of ownership, in good faith and with just title, since January 14, 1888; that never during the lifetime of the plaintiffs' mother did she (plaintiff's mother) make any claim or assert any right in the amount received by this defendant from the inheritance of her deceased mother; that more than thirty years had elapsed since she received said amount to the date of the presentation of the complaint; and that the action of the plaintiff has already prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of Civil procedure.

Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special defense similar to that of Clotilde, and alleged that Ramon Martinez Viademonte, son of Isabel Gonzalez, died in the city of Manila on January 1, 1905, without leaving any heirs, and bequeathed by will to his brother Rafael C. de Inchausti, father of this defendant, all of his property, with the exception of some property of little importance which he had bequeathed to others; but denied that any part of his (Ramon Maritnez Viademonte's) property thas ever been bequeathed to the children of said Rafael C. de Inchausti; that, on the death of said Ramon Martinez de Viademonte, his will was allowed to probate in the Court of First Instance of Manila, and all his remaining property delivered to Rafael C. de Inchausti with Martinez Viademonte's property received by her father Rafael C. de Inchausti was a small piece of land situated in Santa Ana and known by the name of Hacienda de Lamayan; that the title of Rafael C. De Inchausti to said land was registered by virtue of a decree of the Court of Land Registration, in accordance with the provisions of the Land Registration Ac; that said land was in turn inherited by this defendant from her father upon the death of the latter, and that she appears in the registry of property as owner of the same; that, upon the allowance of said will in the Court of First Instance of this city, the plaintiffs did not present any claim to the commissioners appointed to appraise the property, and that the period allowed for the presentation of such claims expired on October 20, 1914, and that, therefor, the action now filed by the plaintiffs has prescribed, in accordance with the provisions of section 695 of the Code of Civil Procedure. In similar terms, counsel for Joaquin C. de Inchausti worded his defense in a written answer as amended under date of September 19, 1916.1awph!l.net

Counsel for Maria de la Consolacion Rico y Medina in her personal capacity an das a widow of Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferrer, both now deceased, were in their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y Gonzalez, but denied that the said Rosa Matilde was a daughter of that marriage or of any of the said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1, 1905, without leaving any forced heir, and by a will dated May 16, 1900, he left to his maternal brother Rafael C. de Inchausti husband of this defendant, all his property with the exception of some small legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr.,

had been left to the children of the defendant's husband; that Isabel Gonzalez Ferrer, the mother of her husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she declared that she had a son with her first husband Ramon Martinez Viademonte, and the name of said on son was also Ramon, and that with her second husband Jose Joaquin de Inchausti. She Counsel for Maria de la Consolacion Rico y Medina in her personal capacity and a widow of Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferre, both now deceased were in their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y Gonzalez but denied that the said Rosa Matilde was a daughter of that marriage or of any of the said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1905, without leaving any forced heir, and by a will dated May 165, 1900, he left to his maternal brother Rafael C. de Inchausti, husband of this defendant, all his property with the exception of some small legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr., had been left to the children of the defendant's husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she declared that she had some with her first husband Ramon Martinez Viademonte and the name of said son was also Ramon, and that with her second husband Jose Joaquin de Inchausti, she had three children, and he instituted the said four children as the sole and universal heirs to the remainder of her property in equal parts, her property being the one half of the conjugal property had during her marriage with her second husband Inchausti who had survived her; that no portion of the inheritance from the deceased Isabel Gonzalez y Ferrer was adjudicated to the mother of the plaintiffs; that the deceased Rafael C. de Inchausti inherited from the said Ramon Martinez Viademonte, Jr., a parcel of land known by the name of Hacienda de Lamayan, registered in the name of the deceased Rafael de Inchausti, which property was, in turn, inherited by the defendant Maria Consolacion de Inchausti de Ortigas. As a special defense, she alleged that in the said will wherein the testatrix Isabel Gonzalez name d her sole and universal heirs, Rosa Matilde, the mother of the plaintiffs, was not designated a heiress or legatee, but on the contrary, was omitted therefrom, that from the death of the testratrix of this compliant neither Rosa Matilde nor the plaintiffs presented any claim whatsoever against the omission of Rosa Matilde from the will of said Isabel Gonzalez for the plaintiffs could have availed themselves of any right which Rosa Matilde could have had in the property inherited by the defendant and her son Jose Rafael de Inchausti, derived by law for contesting the will of Isabel Gonzalez on the ground of prejudicial omission therefrom of Rosa Matilde expired long before the date on which this compliant was filed; and consequently, said action has prescribed; that, after the death of Ramon Viademonte, Jr., in February 1905, probate proceedings were had in the Court of First Instance of Manila, an administrator of the decedent's estate was appointed, on July 21 of said year the commissioners to appraise the estate of the deceased were appointed, and after the lapse of the period fixed for allowing claims against the state, the property of the deceased was adjudicated to his heir Rafael C. de Inchausti and to the legatees, the plaintiffs not having presented to the commissioners, any claim against the estate of said deceased has thus prescribed by the lapse of the period for its presentation, that after the death of Rafael C. de Inchausti, on October 5, 1913, probate proceedings were had regarding his will in the Court of First Instance of the city, an

executor was appointed, as well as the commissioners to appraise the estate, and the period within which claims against he estate might be received has expired, and the plaitniffs have not presented any claim whatsoever against he estate of said Rafael C. de Inchausti, and finally, she alleged that he period fixed by law for presenting claims against he estate of said Rafael C. de Inchausti expired long before the date of the filing of this complaint, and consequently, the action to assert the claim has already prescribed, and that therefore the defendant should be absolved from the complaint with the costs against the plaintiffs.

Counsel for the plaintiffs, in his written reply amending his replies of September 20 and 21, 1916, denied generally and specifically each and all of the new facts alleged in the answers of the defendants, and added that the will of Isabel Gonzalez, dated October 12, 1886, is null and void, inasmuch as Rosa Viademonte Gonzalez and having equal rights as her other children; that he defendants are estopped form denying that the surname of Rosa Matilde was a daughter of Isabel Gonzalez with Ramon Martinez Viademonte; that the plaintiffs are legitimate children of said Rosa Matilde with Benigno Ferre inasmuch as both their predecessors in interest as well as the present defendants have previously made declarations and formal affirmations, written and oral, recognizing that the surname of Rosa Matilde was Viademonte y Gonzalez, that the same was legitimate daughter of Isabel Gonzalez and Ramon Martinez Viademonte and that the plaintiffs are legitimate children of Rosa Viademonte y Gonzalez with Benigno Ferrer.

The trial having been held and the evidence of both parties adduced, the trial judge, on February 12, 1917, rendered a judgment declaring that the plaintiffs receive nothing in this action and pay the costs. To this decision the plaintiffs excepted and moved for a new trial, which motion was denied by order of the court on the 27th day of the same month and year. An exception was taken to the order denying the motion for a new trial, and the corresponding bill of exception was presented, approved, certified, and forwarded to the office of the clerk of this court.

The parties are agreed as regard the allegations that the plaintiffs Rafael J. Ferrer and Maria Angelina Ferrer are children of the deceased Rosa Matilde Viademonte, although the defendants deny that they (plaintiffs) were legitimate children of their mother contrary to the affirmation of the plaintiffs to this effect. The evidence of record concerning this point is of such a character that it is difficult to deduce therefrom a certain and definite conclusion, because, while it appears that Rosa Matilde Viademonte has, on various occasions, stated that she was unmarried and never contracted a marriage, she has made entirely different statements on other occassions. In the proceedings (Exhibit 8) instituted by the said Rosa Matilde against Rafael C. de Inchausti, it was disclosed that she had never been married and that if her children with Benigno Ferrer were baptized as legitimate children, it was so done in order to conceal her dishonor, such statement being found in a document drawn in 1892 and signed by her (Exhibit 8, pp. 3-4). On page 159 of the records of the said proceedings (Exhibit 8) it appears that said Rosa Matilde stated under oath before a judge, on January 21. 1893, that she had never married, and the same declaration was made by her on April 15th of the same year in another case. (Exhibit 7, pp. 17-26.)

In a document found on page 166 of said Exhibit 8, executed in 1890, Rosa Matilde stated that she was a widow; but, in a document executed in 1893, found on page 257 of Exhibit 8, and in a document (Exhibit 1, page 136 of the first document executed in 1894) she made the statement that she was unmarried. Rosa Matilde might have made these contradictions due perhaps to her extreme poverty, which had prompted her to tell a lie before the courts of justice, with the sole purpose of recovering the amount claimed by her as her legacy, while, on the hand, it is undeniable that she could not duly justify the marriage contracted by her with Benigno Ferrer.

Even if the plaintiffs be considered as legitimate children of Rosa Matilde, Viademonte in her marriage with Benigno Ferrer, still this action filed by them will not prosper, inasmuch as the evidence adduced at the trial to prove the origin of the cause of action referred to shows, in a manner which leaves no room for doubt that Rosa Matilde was not a legitimate daughter of Isabel Gonzalez, and it follows that her children as well as her privies have no right to a part of the hereditary property of said Isabel Gonzalez.

Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had been treated and considered as a daughter by Isabel Gonzalez, and as a sister the children of the latter; that, on one occasion, said Gonzalez remarked that the father of Rosa Matilde was Ramon Martinez de Viademonte; that Joaquin Matilde in the following manner: "To my dear and unforgettable sister Rosa." that when Rosa Matilde entered the College de la Compania de Jesus, her name as recorded in the registry of that college was Rosa Matilde Viademonte, and her expenses were defrayed by Rafael de Inchausti and in the same registry said Rafael de Inchausti appears as brother of Rosa; that when Rosa entered the Colegio de Santa Isabel, she used the same name and surname; that Ramon Martinez de Viademonte, Jr., presented Rosa Matilde also sister, saying that the father of the same was also his father named Ramon Martinez de Viademonte, while Rosa Matilde has always been known by the same name and surname during the time she was studying in the Colegio de Luisa Oda de Birgi; that Clotilde de Inchausti called Rosa Matilde her sister in her letters to Rafael Ripol, and that Joaquin de Inchausti himself in the codicil of his testament designates Rosa Matilde with the surname of Viademonte.

From all the evidence adduced, the slightest indication cannot be inferred that Rosa Matilde was born during the marriage of Ramon Martinez de Viademonte, Sr., with Isabel Gonzalez or within the 300 days after the dissolution of their marriage by the death of the husband, nor has the said Ramon Martinez de Viademonte, Sr., in his lifetime recognized said Rosa Matilde as his daughter. If Rosa Matilde is a legitimate daughter of Isabel Gonzalez, it follows that she was also a daughter of Isabel's husband, Ramon Martinez de Viademonte, under the assumption that she was born in the marriage of both or at a time prior or subsequent to that of the celebration of the marriage, as fixed by law. (Arts. 119, 120, 121, and 122 of the Civil Code.)

Legitimate filiation presupposes the existence of marriage contracted by the presumed parents in accordance with law, and therefore a person can not be declared to be a legitimate daughter of her mother, without presuming at the same time that she was born in the marriage of this mother with the presumed father,

who, in his lifetime, and without his consent, could not have been considered as father of a child that was not conceived by his own wife, because the mere fact of having used his surname after his death, without his assent or consent, does not constitute a proof of filiation of parternity.

In this decision it is to be determined whether Rosa Matilde was born in the lifetime of Ramon Martinez de viademonte to decide on the truth of the assertion made by the plaintiffs that their predecessor in interest was a legitimate daughter of the said spouses Viademonte and Gonzalez. At the trial, the death certificate of Ramon Martinez de Viademonte, first husband of Isabel Gonzalez, was not presented in evidence; but it is uncontroverted that he died on September 30, 1836; as corroborated by the accountant of the naval division of Puerto Galkera in charge of the Leiutenant of the Spanish Navy, Jose Atienza, saying that the Lieutenant, who had the rank of captain in the navy, Ramon Viademonte, died on September 30, 1836, as appears in the list of officers found in the payroll under his custody, having paid till the date of the death of said Viademonte all his salaries corresponding to him as such officer, and further saying that, by request of the widow of the deceased, he issued the proper certificate on December 31, 1836.

So certain is the death of said Ramon Martinez de Viademonte that his widow Isabel Gonzalez on January 31, 1837, applied to the Government for a pension sufficient to cover her widowhood expenses, alleging that she was a widow with children of the deceased. The application was made in a paper stamped as of the years 1836 and 1837, a fact which proves the authenticity of the document written in a stamped paper, and the presentation of said application by the widow demonstrates the fact that her husband really died, wherefore she asked for a pension, because she would have been held responsible if, in truth and in fact, her husband had been living and not dead as she claimed.

The said documents, as constituting a supplementary proof of the death of the deceased Ramon Martinez, de Viademonte, appear to be corroborated by an entry in a notebook belonging to Ramon Viademonte, Jr. wherein it is stated that his mother was married in 1833 to Ramon Martinez de Viademonte who died on September 30, 1836, at the age of 33 years, being then a major in the naval division assigned at Puerto Galera, Mindoro. Notwithstanding the fact that the death certificate of said Ramon Martinez de Viademonte, first husband of Isabel Gonzalez was not presented in evidence, still the documentary and circumstantial evidence of record, especially the fact of the marriage of his widow Isabel Gonzalez with Jose Joaquin de Inchausti, some years after the death of Viademonte died before that marriage or on September 30. 1836. If this be true, let us see on what day Rosa Matilde was born,, and in this way it will be shown that she did not have the status of a legitimate child of those spouses, even after the dissolution of their marriage by the death of the husband.

It appears in the certificate that on September 1, 1852, a child three days old, born of unknown parents, was baptized in the Cathedral Church of this city, and given the name of Rosa Matilde Robles. In view of the fact that the plaintiffs have not shown that such baptismal certificate was not that of their mother Rosa Matilde, it remains proven therefore that said certificate was presented as exhibit by Rafael C. de

Inchausti in a case concerning the delivery of a legacy instituted against Rosa Matilde, who, instead of denying that such a baptismal certificate referred to her, admitted that such certificate might have been hers.

On Page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime, appears a memorandum which says: On September 1, 1862, seven o'clock in the evening a children three days old named Rosa Matilde Robles, according to the baptismal certificate issued by the acting rector Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother; this child was baptized by the priest Don Remegio Rodriguez with the authority of said rector, and according to the baptismal certificate, it was a child of unknown parents." This memorandum agrees with the above-mentioned baptismal certificate of Rosa Matilde Robles.

Notwithstanding the argument of counsel for the appellants Joaquin de Inchausti stated that one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles, and that on that occasion the said brother showed him the certificate of birth of which Exhibit 6 is a copy, which he took from the parochial church.

In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de Inchausti referring to the said deceased is admissible, for they are members of the same family, in accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is that Rosa Matilde is the same Rosa Matilde Robels which is mentioned in Exhibit 6 and because she was born in 1852, in no manner could her be legitimate daughter of Ramon Viademonte and Isabel Gonzalez whose marriage was dissolved in 18365 by the death of the husband. Moreover, the witness Pilar Abarca presented by the plaintiffs testified that she had known Rosa Matilde in the Colegio de Santa Isabel in 1863, she being then 20 years old and Rosa, 9 years. If the witness Abarca was 73 years old on the date of giving this testimony in 1916, it follows that Rosa Matilde was born in 1854, and that therefore she could not be a daughter of Ramon Martinez de Viademonte who died in 1836.

Notwithstanding the attempt of the plaintiffs to impugn the testimony of said witness, said testimony is admissible according to section 263 of the Code of civil Procedure which provides the when part of an act, declaration conservation, or writing is given in evidence by one party, the whole of the same subject may be inquired into by the other. It is true that the said witness was not presented to prove that the date of Rosa Matildes birth but the fact is that the age of the child is 9 years old as well as that of a youth 19 or 22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa Matilde, as mistake has been made, said mistake could not be such as to reduce her true age by 10 years; but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that she must have been born in 1843, and so she could not have been a daughter of Ramon Martinez de Viademonte, Sr. that the age of a child 9 years old as well as that of a youth 19 or 22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa Matilde, a mistake has

been made, said mistake could not be such as to reduce her true age by 10 years; but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that she must have been born in 1843, and so could not have been a daugther of Ramon Martinez de Viademonte, Sr.

Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer and Rosa Matilde married in 1872, that Rosa Matilde must have been then between 22 and 30 years of age. It is inferred from this testimony that, if Rosa Matilde could no be over 30 years old in 1872, she could not have been born before 1842, and much less in 1836 or 1837.

The document No. 663, page 257 of Exhibit 8, appears to have been executed by Rosa Matilde in 1893, wherein she declared to the notary public before whom the document was executed that she was then 39 years of age. If she was 39 years old in 1893, she could not have been born in 1854 and much less in 1836 and 1837. In Exhibit 1, page 135, which is a certified copy of a discharge in full executed by Rosa Matilde in 1894 in favor of Joaquin Jose de Inchausti, it is said that the maker of the deed was 40 years old, thus corroborating ina convincing manner what has been stated regarding this point in the preceding document.

In view of the objection and arguments made by counsel for the plaintiffs against the admission of the aforementioned documents, it becomes necessary to say in this connection that it is undeniable that Rosa Matilde, in executing said two documents, gave as her age those appearing therein, and that there was no reason for the belief that she told a lie and tried to conceal her true age; but, even admitting that we had made a mistake by telling that she was older or younger than she really was, such a mistake could not have given a difference of 10 years from her true age, inasmuch as she was an educated person, and it is not possible to believe that, through ignorance, she gave an age difference from her true anger; and, even if 10 years be added to the age given by Rosa Matilde in the documents referred to, still the fact remains that in 1894 she must have been only 50 years old and that she must have been born in 1844. It is undisputed that Roa Matilde was born 16 years after the death of Ramon Viademonte, and therefor could not be a daughter of the latter.

Counsel for plaintiffs objected to the admission in evidence of the day-book kept by Ramon Martinez Viademonte, Jr., during his lifetime, alleging that it has not been proven that the entries in said book were made at the same time that those events occurred; that the witness who identified it did not see Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and that, even if it were so, still the writing contained in the book, being a mere memorandum of an interested party, can not be admitted at the trial.

The above objection can be met and disposed of by the provisions of section 298, No. 13 of the Code of Civil Procedure, which provides that evidence may be given upon trial of monuments and inscriptions in public places as evidence of common reputation; and entries in family Bibles or other family books or charts; engravings on rings, family portraits and the like, as evidence of pedigree.

The law does not require that the entries in the said booklet be made at the same time as the occurrence of those events; hence, the written memorandum in the same is not subject to the defect attributed to it, The witness Joaquin Jose de Inchausti declared affirmatively that the memorandum under consideration has been written in the handwriting of his brother Ramon Martinez de Viademonte, whose handwriting he was familiar with, and the testimony of this witness contains some reference to a member of the family, now dead, and concerning the family genealogy of the same.

It remains now to be decided whether Rosa Matilde Viademonte was a natural daughter of the deceased Isabel Gonzalez or was a mere protegee cared for and maintained in the house of said Isabel Gonzalez, and, if in the first case, the plaintiffs have the right to succeed ab intestato to a part of the inheritance of Isabel Gonzalez in representation of their mother Rosa Matilde Viaddemante or Robles.

The record does not furnish satisfactory proof that Rosa Matilde was a daugther or at least a natural daughter of Isabel Gonzalez; on the other hand, it is shown in the records of the case that she was a protegee in the house of said Isabel, for, in a conciliation proceeding had on April 15, 1893, between Rosa Matilde and Joaquin F. de Inchausti, it appears in the record thereof that, although in some of the documents presented to justify the accounts, Rosa Matilde called Rafael de Inchausti her brother, this manner of calling him was due to the intimacy in which both have been brought up from childhood in the same house, she being a mere protegee of the latter's parents, and of because they were really brother and sister.

This statement made by Inchausti in the presence of Rosa Matilde Viademonte did not bring about a protest or objection on the part of Rosa Matilde herself or her attorney. In addition to this fact, Rafael C. De Inchausti stated under oath that it is not true that Rosa MatildeViademonte was his maternal sister.

Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page 135), made the statement that Jose Joaquin de Inchausti, who, together with his wife, cared for her since her early childhood, bequeathed to her, by virtue of a codicil executed before a notary public on January 12, 1889, a legacy amounting to P4,000. The contents of this document constitute a most convincing proof that Rosa Matilde was not a daughter of Isabel Gonzalez, but only a protegee of hers and of her husband Jose Joaquin de Inchausti.

Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de Inchausti (record, p. 85), that Rosa Matilde was not their sister but only a protegee of their parents, whose name was Rosa Matilde Robles. It is thus fully proven in the records of the case that Rosa Matilde, the mother of the plaintiffs, was not a daughter of Isabel Gonzalez.

Even supposing that Rosa Matilde was in fact a natural child of the deceased Isabel Gonzalez, because the records show that it was impossible that he was a legitimate daughter of the latter, still it cannot be disputed that the said Rosa Matilde could not inherit from her supposed natural mother, Isabel Gonzalez.

It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in 1886(record, p. 325) or some years before the Civil Code became operative in these Islands, and therefore, the hereditary rights of the successors of the said deceased should be determined in accordance with the prior laws or the Law of Toro, which provides, among other things, that natural children have no right to succeed to their natural mother when, on her death, the latter leaves legitimate children, as in the present case, and for this reason it is useless to inquire as to whether Rosa Viademonte or Robles was a natural or even an acknowledged natural child of Isabel Gonzalez.

Rule 1 of the transitory provisions of the Civil Code invoked by the appellants provides as follows; "Rights arising under the legislation prior to this code, out of matters carried out under its rules, shall be governed by said prior legislation, even if the code should regulate them in another manner, or does not recognize the same. But if said right is declared for the first time in this code, it shall be effective at once, even when the act which gave rise thereto may have taken place under the prior legislation, provided it does not prejudice other acquired rights having the same origin."

When Isabel Gonzalez died on December 12, 1886, or some time before the Civil Code became effective in these Islands, she was survived by four children, the eldest being Ramon Viademonte had with her first husband, and the other three, had with her second husband Jose Joaquin de Inchausti, are Clotilde, Rafael, and Joaquin. On her death, the right to succeed her was transmitted by operation of law to her legitimate and legitimated children, and for this reason, even supposing that Rosa Matilde was a natural child of Isabel Gonzalez, she could not claim any right to the inheritance of her supposed natural mother, inasmuch as against her right there exist the rights acquired by the four legitimate and legitimated children of said Isabel Gonzalez, which rights can not be injured or prejudiced in accordance with the conclusive provision of the aforementioned Rule 1 of the transitory provision of the Civil Code.

Besides, the records show that the action brought by the plaintiffs has already prescribed, because section 38 of the Code of Civil Procedure provides that the rights of action which have already accrued, with the exception of the two cases mentioned in the same section, among which the present case is not included, must be vindicated by the commencement of an action or proceeding to enforce the same within ten years after Act No. 190 came into effect, and, as this Act became operative in 1901, it is evident that the action instituted against the estate of Isabel Gonzalez has already prescribed.

The plaintiffs, by their complaint, do not only seek the partition of the estate of the deceased Isabel Gonzalez, but also and principally to recover the part of the inheritance corresponding to their mother Rosa Matilde in her succession to the said deceased, so that the discussion during the proceedings referred mainly to the question as to whether the plaintiffs were descendants of an heiress to the said deceased, and if so, whether they had a right derived from their mother to a part of the estate of Isabel Gonzalez. This action must be brought within ten years. He who brings an action for the partition or division of hereditary estates or property in

common is supposed to by a coheir and to have an undisputed right to the property claimed or to be coowner of the same property possessed in common. He who claims a right to a part of an inheritance of a deceased person, and who alleges that he is a relative of the latter and has a right of testate or intestate succession thereto, has for his principal object the recognition of his right to the inheritance claimed by him and the delivery to him of his share as fixed by law.

Before concluding this decision, it must be stated that, on page 21 of the brief signed by Vicente Sotto as the plaintiffs attorney, and after the first five lines thereof, the following statement appears: "It is also established that Rosa Viademonte was born of Isabel Gonzalez in the year 1852, that is, during the widowhood of the latter."

Counsel for the defendants with reason, qualify as false, this affirmation made by the counsel for the plaintiffs to the effect that the judge has established the fact that Rosa Viademonte was born of Isabel Gonzalez, when such affirmation does not appear in any part of the decision rendered by the said judge.

This court can not look with indifference on any attempt to alter or falsify, for certain purposes, the facts or their important details in the extracts or references that have to be made in proceedings or records brought before it. All the records in a proceeding should contain and reflect the truth in such a way that all who intervene in it may have absolute confidence that the course and procedure of a trial are under the vigilance and inspection of the court.

It is unprofessional and worthy of the highest form of rebuke for a lawyer to attribute to a judge a statement which he had not made in his decision, and in view of the fact that Vicente Sotto has already been disbarred from the exercise of his profession by resolution of this court, it is deemed unnecessary to determine what punishment shall be adopted for said act, which in his case, should be imposed upon him as a lawyer

For the foregoing reasons, whereby the errors assigned to the judgment appealed from are deemed to have been refuted, the said judgment should be, as it hereby is, affirmed and the defendants absolved from the complaint, with the costs against the appellants. So ordered.

G.R. No. L-12993 October 28, 1918

RAFAEL J. FERRER, ET AL., plaintiff-appellants, vs.JOAQUIN J. DE INCHAUSTI, ET AL., defendants-appellees.

Vicente Sotto for appellants.Araneta & Zaragoza and Cohn & Fisher

TORRES, J.:

This appeal was taken through bill of exceptions by counsel for the plaintiffs from the judgment of February 12, 1917, whereby the judge of the Court of First Instance held that Rosa Viademonte, mother of the plaintiffs, could not have been legitimate daughter of the deceased Isabel Gonzalez, who, on her death, left some legitimate children. The court did not deem it necessary to discuss whether the said Rosa Viademonte could be a daughter of the said Isabel Gonzalez for reason, given in his decision, and held that the plaintiffs should not be entitled to what they have demanded, and that they should pay the costs.

Under date of May 12, 1916, the attorney of Rafael J. Ferrer y Viademonte and Maria Angelina Ferrer y Viademonte with her husband Ricardo Hernandez y Aracil filed a complaint in the Court of First Instance of the city of Manila, praying for the rendition of a final judgment declaring that Rosa Matilde Viademonte y Gonzalez had the right to succeed to the inheritance left by Isabel Gonzalez in the same proportion and capacity as the other four children of the latter, namely, Ramon Viademonte, Rafael C. de Inchausti, Joaquin C. de Inchausti, and Clotilde de Inchausti de Vidal; that the plaintiffs Rafael and Maria Angelina Ferrer are the only and legitimate heirs of the deceased Rosa Viademonte and the only ones entitled to receive her share of the inheritance left by Isabel Gonzalez, that is, the on-fifth part of the latter's estate; that the defendants render to the plaintiffs an account of the fruits and administration of all the property from the moment the said community of property from the moment the said community of property was constituted among them, and to deliver to the plaintiffs that part which corresponds to them in their capacity as sole heirs of Rosa Viademonte y Gonzalez, that is, the one-fifth part of the inheritance with all its accession, fruits, and interests; and , finally, that the defendants pay the costs. In fact, it is alleged that the plaintiffs are the legitimate children of Rosa Matilde Viademonte , who in turn died on November 20, 1898, leaving the two plaintiffs as surviving legitimate children that the said Isabel Gonzalez was married, first to Ramon Martinez Viademonte, and from his marriage two children, named Roman and Rosa Matilde, and surnamed Viademonte y Gonzalez survived; that after the death of her husband Ramon Martinez Viademonte, Sr., the widow, Isabel Gonzalez, contracted a second marriage with Don Jose Joaquin de Inchausti with whom she had three children named Clotilde, Rafael and Joaquin, all surnamed Inchausti y Gonzalez, that Ramon Viademonte y Gonzalez Jr., died on January 1, 1905, without leaving any forced heir, and by a will dated May 216, 1900, he left his property to the son or sons which Rafael C. de

Inchausti might have, and in default or such child or children, to the same Rafael C. de Inchausti, by a will, left as his heirs and successors in interest his legitimate son Jose R. de Inchausti, his recognized natural daughter Maria Consolacion de Inchausti de Ortigas, and his widow Maria Consolacion Rico y Medina; that on her death, Isabel Gonzalez left a certain property in her marriage with Jose de Joaquin de Inchausti, which would amount approximately to P1,000,000 with its accessions, according to present valuation, as shown by the inventory of said property which makes up Exhibit A, that on January 14, 188, Jose Joaquin Inchausti y Gonzalez and Clotilde de Inchausti y Gonzalez de Vidal, each of whom received on-fourth of the estate left by the deceased Isabel Gonzalez, excluding therefrom Rosa Viademonte, the mother of the plaintiffs., notwithstanding the fact that she had an equal rights to inherit from Isabel Gonzalez; that since January 188 till his death, Ramon Viademonte, Jr. had been the possessor and administrator of the fourth part of the inheritance which he received from his deceased mother Isabel Gonzalez which portion of the property later came to the possession and control of Rafael C. de Inchausti, and on the death of the latter, this fourth part of the inheritance came to the possession of Maria Consolacion Rico de Inchausti, widow of said Rafael C. de Inchausti, in her capacity as guardian of her son Jose Rafael de Inchausti, and part of it, to the possession of Maric Consolacion de Inchausti de Ortigas; and that a great part of the property which the defendants actual possess, came from the young children, who received from Isabel Gonzalez with the earnings and accessions thereof; these children have been possessing it pro indiviso or in coownership, in their lifetime, with Rosa Viademonte while living, and upon the death of the latter, with her heirs, but that, in spite of the demands made by the plaintiffs for the delivery to them by the defendants of their corresponding share in the inheritance the latter have always refused to do so.

In his answers, for Clotilde Inchausti de Vial admitted that the plaintiffs are the children of Rosa viademonte and Benigno Ferrer; that Isabel Gonzalez was married first o Ramon Martinez de Viademonte, and afterwards to Jose Joaquin de Inchausti; that on the death of her mother Isabel Gonzalez, on December 13, 1886, her share in the conjugal partnership amounted to P191, 248.81, and on January 14, 1888, Jose Joaquin de Inchausti, as executor of his wife, after paying the legacies mentioned in the testament, paid to this defendant in cash the sum of P46,295.70 as her hereditary portion in the liquidated property of her mother, and likewise delivered to the other three sons of said Isabel Gonzalez similar amounts; that, after receiving her share of the inheritance from her mother, she spent it all, and she no longer has any part of it, nor has she left any portion of it during the last thirty years, and that neither the plaintiffs nor their deceased mother had ever possessed or enjoyed the said sum; and denies generally all the allegations of the complaint which are not admitted, and denies specially the allegation that the mother of the plaintiffs had ever married with their father Benigno Ferre, that they and their mother ever had the surname of Viademonte or Viademonte y Gonzalez and that the mother of the plaintiffs was a daughter of Isabel Gonzalez.

As a special defense, she alleged that her possession of the money derived from the inheritance of her mother had been public, adverse, pacific, continuous and under a claim of ownership, in good faith and with just title, since January 14, 1888; that never during the lifetime of the plaintiff's mother did she make any claim or assert

any right in the amount received by this defendant form the inheritance of her deceased mother; that more than thirty years had elapsed since she received by this defendant inheritance of her deceased mother; and that the action for the plaintiffs has already prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of Civil Procedure they (the plaintiffs) and their mother ever had the surname of "Viademonte" or Viademonte y Gonzalez," and that the mother of the plaintiffs was a daughter of Isabel Gonzalez.

As a special defense, she alleged that her possession of the money derived from the inheritance of her mother had been public, adverse, pacific, continuous, and under a claim of ownership, in good faith and with just title, since January 14, 1888; that never during the lifetime of the plaintiffs' mother did she (plaintiff's mother) make any claim or assert any right in the amount received by this defendant from the inheritance of her deceased mother; that more than thirty years had elapsed since she received said amount to the date of the presentation of the complaint; and that the action of the plaintiff has already prescribed in accordance with the provisions of article 1955 of the Civil Code and section 38 of the Code of Civil procedure.

Counsel for Maria de la Consolacion de Inchausti, in turn, set up a special defense similar to that of Clotilde, and alleged that Ramon Martinez Viademonte, son of Isabel Gonzalez, died in the city of Manila on January 1, 1905, without leaving any heirs, and bequeathed by will to his brother Rafael C. de Inchausti, father of this defendant, all of his property, with the exception of some property of little importance which he had bequeathed to others; but denied that any part of his (Ramon Maritnez Viademonte's) property thas ever been bequeathed to the children of said Rafael C. de Inchausti; that, on the death of said Ramon Martinez de Viademonte, his will was allowed to probate in the Court of First Instance of Manila, and all his remaining property delivered to Rafael C. de Inchausti with Martinez Viademonte's property received by her father Rafael C. de Inchausti was a small piece of land situated in Santa Ana and known by the name of Hacienda de Lamayan; that the title of Rafael C. De Inchausti to said land was registered by virtue of a decree of the Court of Land Registration, in accordance with the provisions of the Land Registration Ac; that said land was in turn inherited by this defendant from her father upon the death of the latter, and that she appears in the registry of property as owner of the same; that, upon the allowance of said will in the Court of First Instance of this city, the plaintiffs did not present any claim to the commissioners appointed to appraise the property, and that the period allowed for the presentation of such claims expired on October 20, 1914, and that, therefor, the action now filed by the plaintiffs has prescribed, in accordance with the provisions of section 695 of the Code of Civil Procedure. In similar terms, counsel for Joaquin C. de Inchausti worded his defense in a written answer as amended under date of September 19, 1916.1awph!l.net

Counsel for Maria de la Consolacion Rico y Medina in her personal capacity an das a widow of Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferrer, both now deceased, were in their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y Gonzalez, but denied that the said Rosa Matilde was a daughter of that marriage or of any of the

said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1, 1905, without leaving any forced heir, and by a will dated May 16, 1900, he left to his maternal brother Rafael C. de Inchausti husband of this defendant, all his property with the exception of some small legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr., had been left to the children of the defendant's husband; that Isabel Gonzalez Ferrer, the mother of her husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she declared that she had a son with her first husband Ramon Martinez Viademonte, and the name of said on son was also Ramon, and that with her second husband Jose Joaquin de Inchausti. She Counsel for Maria de la Consolacion Rico y Medina in her personal capacity and a widow of Rafael Inchausti and also as guardian of her son Jose Rafael de Inchausti y Rico, in his answer to the foregoing complaint, admits that Ramon Martinez and Isabel Gonzalez Ferre, both now deceased were in their lifetime husband and wife, and were survived by a child named Ramon Martinez Viademonte y Gonzalez but denied that the said Rosa Matilde was a daughter of that marriage or of any of the said spouses; he also admits that the deceased Ramon Martinez Viademonte, Jr., died in this city on January 1905, without leaving any forced heir, and by a will dated May 165, 1900, he left to his maternal brother Rafael C. de Inchausti, husband of this defendant, all his property with the exception of some small legacies, denying at the same time that any portion of the inheritance of said Ramon Viademonte, Jr., had been left to the children of the defendant's husband, who died on December 13, 1886, executed a will on April 29 of the said year, wherein she declared that she had some with her first husband Ramon Martinez Viademonte and the name of said son was also Ramon, and that with her second husband Jose Joaquin de Inchausti, she had three children, and he instituted the said four children as the sole and universal heirs to the remainder of her property in equal parts, her property being the one half of the conjugal property had during her marriage with her second husband Inchausti who had survived her; that no portion of the inheritance from the deceased Isabel Gonzalez y Ferrer was adjudicated to the mother of the plaintiffs; that the deceased Rafael C. de Inchausti inherited from the said Ramon Martinez Viademonte, Jr., a parcel of land known by the name of Hacienda de Lamayan, registered in the name of the deceased Rafael de Inchausti, which property was, in turn, inherited by the defendant Maria Consolacion de Inchausti de Ortigas. As a special defense, she alleged that in the said will wherein the testatrix Isabel Gonzalez name d her sole and universal heirs, Rosa Matilde, the mother of the plaintiffs, was not designated a heiress or legatee, but on the contrary, was omitted therefrom, that from the death of the testratrix of this compliant neither Rosa Matilde nor the plaintiffs presented any claim whatsoever against the omission of Rosa Matilde from the will of said Isabel Gonzalez for the plaintiffs could have availed themselves of any right which Rosa Matilde could have had in the property inherited by the defendant and her son Jose Rafael de Inchausti, derived by law for contesting the will of Isabel Gonzalez on the ground of prejudicial omission therefrom of Rosa Matilde expired long before the date on which this compliant was filed; and consequently, said action has prescribed; that, after the death of Ramon Viademonte, Jr., in February 1905, probate proceedings were had in the Court of First Instance of Manila, an administrator of the decedent's estate was appointed, on July 21 of said year the commissioners to appraise the estate of the deceased were appointed, and after the lapse of the period fixed for allowing claims against the state, the property of the

deceased was adjudicated to his heir Rafael C. de Inchausti and to the legatees, the plaintiffs not having presented to the commissioners, any claim against the estate of said deceased has thus prescribed by the lapse of the period for its presentation, that after the death of Rafael C. de Inchausti, on October 5, 1913, probate proceedings were had regarding his will in the Court of First Instance of the city, an executor was appointed, as well as the commissioners to appraise the estate, and the period within which claims against he estate might be received has expired, and the plaitniffs have not presented any claim whatsoever against he estate of said Rafael C. de Inchausti, and finally, she alleged that he period fixed by law for presenting claims against he estate of said Rafael C. de Inchausti expired long before the date of the filing of this complaint, and consequently, the action to assert the claim has already prescribed, and that therefore the defendant should be absolved from the complaint with the costs against the plaintiffs.

Counsel for the plaintiffs, in his written reply amending his replies of September 20 and 21, 1916, denied generally and specifically each and all of the new facts alleged in the answers of the defendants, and added that the will of Isabel Gonzalez, dated October 12, 1886, is null and void, inasmuch as Rosa Viademonte Gonzalez and having equal rights as her other children; that he defendants are estopped form denying that the surname of Rosa Matilde was a daughter of Isabel Gonzalez with Ramon Martinez Viademonte; that the plaintiffs are legitimate children of said Rosa Matilde with Benigno Ferre inasmuch as both their predecessors in interest as well as the present defendants have previously made declarations and formal affirmations, written and oral, recognizing that the surname of Rosa Matilde was Viademonte y Gonzalez, that the same was legitimate daughter of Isabel Gonzalez and Ramon Martinez Viademonte and that the plaintiffs are legitimate children of Rosa Viademonte y Gonzalez with Benigno Ferrer.

The trial having been held and the evidence of both parties adduced, the trial judge, on February 12, 1917, rendered a judgment declaring that the plaintiffs receive nothing in this action and pay the costs. To this decision the plaintiffs excepted and moved for a new trial, which motion was denied by order of the court on the 27th day of the same month and year. An exception was taken to the order denying the motion for a new trial, and the corresponding bill of exception was presented, approved, certified, and forwarded to the office of the clerk of this court.

The parties are agreed as regard the allegations that the plaintiffs Rafael J. Ferrer and Maria Angelina Ferrer are children of the deceased Rosa Matilde Viademonte, although the defendants deny that they (plaintiffs) were legitimate children of their mother contrary to the affirmation of the plaintiffs to this effect. The evidence of record concerning this point is of such a character that it is difficult to deduce therefrom a certain and definite conclusion, because, while it appears that Rosa Matilde Viademonte has, on various occasions, stated that she was unmarried and never contracted a marriage, she has made entirely different statements on other occassions. In the proceedings (Exhibit 8) instituted by the said Rosa Matilde against Rafael C. de Inchausti, it was disclosed that she had never been married and that if her children with Benigno Ferrer were baptized as legitimate children, it was so done in order to conceal her dishonor, such statement being found in a document drawn in 1892 and signed by her (Exhibit 8, pp. 3-4). On page 159 of the records of the

said proceedings (Exhibit 8) it appears that said Rosa Matilde stated under oath before a judge, on January 21. 1893, that she had never married, and the same declaration was made by her on April 15th of the same year in another case. (Exhibit 7, pp. 17-26.)

In a document found on page 166 of said Exhibit 8, executed in 1890, Rosa Matilde stated that she was a widow; but, in a document executed in 1893, found on page 257 of Exhibit 8, and in a document (Exhibit 1, page 136 of the first document executed in 1894) she made the statement that she was unmarried. Rosa Matilde might have made these contradictions due perhaps to her extreme poverty, which had prompted her to tell a lie before the courts of justice, with the sole purpose of recovering the amount claimed by her as her legacy, while, on the hand, it is undeniable that she could not duly justify the marriage contracted by her with Benigno Ferrer.

Even if the plaintiffs be considered as legitimate children of Rosa Matilde, Viademonte in her marriage with Benigno Ferrer, still this action filed by them will not prosper, inasmuch as the evidence adduced at the trial to prove the origin of the cause of action referred to shows, in a manner which leaves no room for doubt that Rosa Matilde was not a legitimate daughter of Isabel Gonzalez, and it follows that her children as well as her privies have no right to a part of the hereditary property of said Isabel Gonzalez.

Counsel for plaintiffs pretend to establish that Rosa Matilde Viademonte had been treated and considered as a daughter by Isabel Gonzalez, and as a sister the children of the latter; that, on one occasion, said Gonzalez remarked that the father of Rosa Matilde was Ramon Martinez de Viademonte; that Joaquin Matilde in the following manner: "To my dear and unforgettable sister Rosa." that when Rosa Matilde entered the College de la Compania de Jesus, her name as recorded in the registry of that college was Rosa Matilde Viademonte, and her expenses were defrayed by Rafael de Inchausti and in the same registry said Rafael de Inchausti appears as brother of Rosa; that when Rosa entered the Colegio de Santa Isabel, she used the same name and surname; that Ramon Martinez de Viademonte, Jr., presented Rosa Matilde also sister, saying that the father of the same was also his father named Ramon Martinez de Viademonte, while Rosa Matilde has always been known by the same name and surname during the time she was studying in the Colegio de Luisa Oda de Birgi; that Clotilde de Inchausti called Rosa Matilde her sister in her letters to Rafael Ripol, and that Joaquin de Inchausti himself in the codicil of his testament designates Rosa Matilde with the surname of Viademonte.

From all the evidence adduced, the slightest indication cannot be inferred that Rosa Matilde was born during the marriage of Ramon Martinez de Viademonte, Sr., with Isabel Gonzalez or within the 300 days after the dissolution of their marriage by the death of the husband, nor has the said Ramon Martinez de Viademonte, Sr., in his lifetime recognized said Rosa Matilde as his daughter. If Rosa Matilde is a legitimate daughter of Isabel Gonzalez, it follows that she was also a daughter of Isabel's husband, Ramon Martinez de Viademonte, under the assumption that she was born in the marriage of both or at a time prior or subsequent to that of the celebration of the marriage, as fixed by law. (Arts. 119, 120, 121, and 122 of the Civil Code.)

Legitimate filiation presupposes the existence of marriage contracted by the presumed parents in accordance with law, and therefore a person can not be declared to be a legitimate daughter of her mother, without presuming at the same time that she was born in the marriage of this mother with the presumed father, who, in his lifetime, and without his consent, could not have been considered as father of a child that was not conceived by his own wife, because the mere fact of having used his surname after his death, without his assent or consent, does not constitute a proof of filiation of parternity.

In this decision it is to be determined whether Rosa Matilde was born in the lifetime of Ramon Martinez de viademonte to decide on the truth of the assertion made by the plaintiffs that their predecessor in interest was a legitimate daughter of the said spouses Viademonte and Gonzalez.

At the trial, the death certificate of Ramon Martinez de Viademonte, first husband of Isabel Gonzalez, was not presented in evidence; but it is uncontroverted that he died on September 30, 1836; as corroborated by the accountant of the naval division of Puerto Galkera in charge of the Leiutenant of the Spanish Navy, Jose Atienza, saying that the Lieutenant, who had the rank of captain in the navy, Ramon Viademonte, died on September 30, 1836, as appears in the list of officers found in the payroll under his custody, having paid till the date of the death of said Viademonte all his salaries corresponding to him as such officer, and further saying that, by request of the widow of the deceased, he issued the proper certificate on December 31, 1836.

So certain is the death of said Ramon Martinez de Viademonte that his widow Isabel Gonzalez on January 31, 1837, applied to the Government for a pension sufficient to cover her widowhood expenses, alleging that she was a widow with children of the deceased. The application was made in a paper stamped as of the years 1836 and 1837, a fact which proves the authenticity of the document written in a stamped paper, and the presentation of said application by the widow demonstrates the fact that her husband really died, wherefore she asked for a pension, because she would have been held responsible if, in truth and in fact, her husband had been living and not dead as she claimed.

The said documents, as constituting a supplementary proof of the death of the deceased Ramon Martinez, de Viademonte, appear to be corroborated by an entry in a notebook belonging to Ramon Viademonte, Jr. wherein it is stated that his mother was married in 1833 to Ramon Martinez de Viademonte who died on September 30, 1836, at the age of 33 years, being then a major in the naval division assigned at Puerto Galera, Mindoro.

Notwithstanding the fact that the death certificate of said Ramon Martinez de Viademonte, first husband of Isabel Gonzalez was not presented in evidence, still the documentary and circumstantial evidence of record, especially the fact of the marriage of his widow Isabel Gonzalez with Jose Joaquin de Inchausti, some years after the death of Viademonte died before that marriage or on September 30. 1836. If this be true, let us see on what day Rosa Matilde was born,, and in this way it will

be shown that she did not have the status of a legitimate child of those spouses, even after the dissolution of their marriage by the death of the husband.

It appears in the certificate that on September 1, 1852, a child three days old, born of unknown parents, was baptized in the Cathedral Church of this city, and given the name of Rosa Matilde Robles. In view of the fact that the plaintiffs have not shown that such baptismal certificate was not that of their mother Rosa Matilde, it remains proven therefore that said certificate was presented as exhibit by Rafael C. de Inchausti in a case concerning the delivery of a legacy instituted against Rosa Matilde, who, instead of denying that such a baptismal certificate referred to her, admitted that such certificate might have been hers.

On Page 9 of the day-book which Ramon Martinez de Viademonte, Jr., kept during his lifetime, appears a memorandum which says: On September 1, 1862, seven o'clock in the evening a children three days old named Rosa Matilde Robles, according to the baptismal certificate issued by the acting rector Don Ramon Fernandez of the Cathedral Church of Manila, was delivered to my mother; this child was baptized by the priest Don Remegio Rodriguez with the authority of said rector, and according to the baptismal certificate, it was a child of unknown parents." This memorandum agrees with the above-mentioned baptismal certificate of Rosa Matilde Robles.

Notwithstanding the argument of counsel for the appellants Joaquin de Inchausti stated that one day he was assured by his half-brother Ramon Martinez Viademonte that Rosa Matilde was not his sister, but that she was only a mere protegee and that her true name was Rosa Matilde Robles, and that on that occasion the said brother showed him the certificate of birth of which Exhibit 6 is a copy, which he took from the parochial church.

In view of the fact that Ramon Martinez Viademonte is now dead, the testimony of Joaquin Jose de Inchausti referring to the said deceased is admissible, for they are members of the same family, in accordance with the provisions of section 281 of Act No. 190, and consequently, the conclusion is that Rosa Matilde is the same Rosa Matilde Robels which is mentioned in Exhibit 6 and because she was born in 1852, in no manner could her be legitimate daughter of Ramon Viademonte and Isabel Gonzalez whose marriage was dissolved in 18365 by the death of the husband. Moreover, the witness Pilar Abarca presented by the plaintiffs testified that she had known Rosa Matilde in the Colegio de Santa Isabel in 1863, she being then 20 years old and Rosa, 9 years. If the witness Abarca was 73 years old on the date of giving this testimony in 1916, it follows that Rosa Matilde was born in 1854, and that therefore she could not be a daughter of Ramon Martinez de Viademonte who died in 1836.

Notwithstanding the attempt of the plaintiffs to impugn the testimony of said witness, said testimony is admissible according to section 263 of the Code of civil Procedure which provides the when part of an act, declaration conservation, or writing is given in evidence by one party, the whole of the same subject may be inquired into by the other. It is true that the said witness was not presented to prove that the date of Rosa Matildes birth but the fact is that the age of the child is 9 years

old as well as that of a youth 19 or 22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa Matilde, as mistake has been made, said mistake could not be such as to reduce her true age by 10 years; but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that she must have been born in 1843, and so she could not have been a daughter of Ramon Martinez de Viademonte, Sr. that the age of a child 9 years old as well as that of a youth 19 or 22 years of age can be known from the appearance of the child, and even if, in fixing the age of Rosa Matilde, a mistake has been made, said mistake could not be such as to reduce her true age by 10 years; but even then and even supposing still that Rosa Matilde was 20 years old in 1863, the fact remains that she must have been born in 1843, and so could not have been a daugther of Ramon Martinez de Viademonte, Sr.

Juan Ferrer, another witness for the plaintiffs, testified that Benigno Ferrer and Rosa Matilde married in 1872, that Rosa Matilde must have been then between 22 and 30 years of age. It is inferred from this testimony that, if Rosa Matilde could no be over 30 years old in 1872, she could not have been born before 1842, and much less in 1836 or 1837.

The document No. 663, page 257 of Exhibit 8, appears to have been executed by Rosa Matilde in 1893, wherein she declared to the notary public before whom the document was executed that she was then 39 years of age. If she was 39 years old in 1893, she could not have been born in 1854 and much less in 1836 and 1837.

In Exhibit 1, page 135, which is a certified copy of a discharge in full executed by Rosa Matilde in 1894 in favor of Joaquin Jose de Inchausti, it is said that the maker of the deed was 40 years old, thus corroborating ina convincing manner what has been stated regarding this point in the preceding document.

In view of the objection and arguments made by counsel for the plaintiffs against the admission of the aforementioned documents, it becomes necessary to say in this connection that it is undeniable that Rosa Matilde, in executing said two documents, gave as her age those appearing therein, and that there was no reason for the belief that she told a lie and tried to conceal her true age; but, even admitting that we had made a mistake by telling that she was older or younger than she really was, such a mistake could not have given a difference of 10 years from her true age, inasmuch as she was an educated person, and it is not possible to believe that, through ignorance, she gave an age difference from her true anger; and, even if 10 years be added to the age given by Rosa Matilde in the documents referred to, still the fact remains that in 1894 she must have been only 50 years old and that she must have been born in 1844. It is undisputed that Roa Matilde was born 16 years after the death of Ramon Viademonte, and therefor could not be a daughter of the latter.

Counsel for plaintiffs objected to the admission in evidence of the day-book kept by Ramon Martinez Viademonte, Jr., during his lifetime, alleging that it has not been proven that the entries in said book were made at the same time that those events occurred; that the witness who identified it did not see Ramon Martinez de Viademonte, Jr., in the act of making the said entries, and that, even if it were so,

still the writing contained in the book, being a mere memorandum of an interested party, can not be admitted at the trial.

The above objection can be met and disposed of by the provisions of section 298, No. 13 of the Code of Civil Procedure, which provides that evidence may be given upon trial of monuments and inscriptions in public places as evidence of common reputation; and entries in family Bibles or other family books or charts; engravings on rings, family portraits and the like, as evidence of pedigree.

The law does not require that the entries in the said booklet be made at the same time as the occurrence of those events; hence, the written memorandum in the same is not subject to the defect attributed to it, The witness Joaquin Jose de Inchausti declared affirmatively that the memorandum under consideration has been written in the handwriting of his brother Ramon Martinez de Viademonte, whose handwriting he was familiar with, and the testimony of this witness contains some reference to a member of the family, now dead, and concerning the family genealogy of the same.

It remains now to be decided whether Rosa Matilde Viademonte was a natural daughter of the deceased Isabel Gonzalez or was a mere protegee cared for and maintained in the house of said Isabel Gonzalez, and, if in the first case, the plaintiffs have the right to succeed ab intestato to a part of the inheritance of Isabel Gonzalez in representation of their mother Rosa Matilde Viaddemante or Robles.

The record does not furnish satisfactory proof that Rosa Matilde was a daugther or at least a natural daughter of Isabel Gonzalez; on the other hand, it is shown in the records of the case that she was a protegee in the house of said Isabel, for, in a conciliation proceeding had on April 15, 1893, between Rosa Matilde and Joaquin F. de Inchausti, it appears in the record thereof that, although in some of the documents presented to justify the accounts, Rosa Matilde called Rafael de Inchausti her brother, this manner of calling him was due to the intimacy in which both have been brought up from childhood in the same house, she being a mere protegee of the latter's parents, and of because they were really brother and sister.

This statement made by Inchausti in the presence of Rosa Matilde Viademonte did not bring about a protest or objection on the part of Rosa Matilde herself or her attorney. In addition to this fact, Rafael C. De Inchausti stated under oath that it is not true that Rosa MatildeViademonte was his maternal sister.

Rosa Viademonte herself, in a document dated June 15, 1894 (Exhibit 1, page 135), made the statement that Jose Joaquin de Inchausti, who, together with his wife, cared for her since her early childhood, bequeathed to her, by virtue of a codicil executed before a notary public on January 12, 1889, a legacy amounting to P4,000. The contents of this document constitute a most convincing proof that Rosa Matilde was not a daughter of Isabel Gonzalez, but only a protegee of hers and of her husband Jose Joaquin de Inchausti.

Ramon Viademonte, Jr., while yet living, told his brother Joaquin J. de Inchausti (record, p. 85), that Rosa Matilde was not their sister but only a protegee of their

parents, whose name was Rosa Matilde Robles. It is thus fully proven in the records of the case that Rosa Matilde, the mother of the plaintiffs, was not a daughter of Isabel Gonzalez.

Even supposing that Rosa Matilde was in fact a natural child of the deceased Isabel Gonzalez, because the records show that it was impossible that he was a legitimate daughter of the latter, still it cannot be disputed that the said Rosa Matilde could not inherit from her supposed natural mother, Isabel Gonzalez.

It is a positive fact admitted by the plaintiffs that Isabel Gonzalez died in 1886(record, p. 325) or some years before the Civil Code became operative in these Islands, and therefore, the hereditary rights of the successors of the said deceased should be determined in accordance with the prior laws or the Law of Toro, which provides, among other things, that natural children have no right to succeed to their natural mother when, on her death, the latter leaves legitimate children, as in the present case, and for this reason it is useless to inquire as to whether Rosa Viademonte or Robles was a natural or even an acknowledged natural child of Isabel Gonzalez.

Rule 1 of the transitory provisions of the Civil Code invoked by the appellants provides as follows; "Rights arising under the legislation prior to this code, out of matters carried out under its rules, shall be governed by said prior legislation, even if the code should regulate them in another manner, or does not recognize the same. But if said right is declared for the first time in this code, it shall be effective at once, even when the act which gave rise thereto may have taken place under the prior legislation, provided it does not prejudice other acquired rights having the same origin."

When Isabel Gonzalez died on December 12, 1886, or some time before the Civil Code became effective in these Islands, she was survived by four children, the eldest being Ramon Viademonte had with her first husband, and the other three, had with her second husband Jose Joaquin de Inchausti, are Clotilde, Rafael, and Joaquin. On her death, the right to succeed her was transmitted by operation of law to her legitimate and legitimated children, and for this reason, even supposing that Rosa Matilde was a natural child of Isabel Gonzalez, she could not claim any right to the inheritance of her supposed natural mother, inasmuch as against her right there exist the rights acquired by the four legitimate and legitimated children of said Isabel Gonzalez, which rights can not be injured or prejudiced in accordance with the conclusive provision of the aforementioned Rule 1 of the transitory provision of the Civil Code.

Besides, the records show that the action brought by the plaintiffs has already prescribed, because section 38 of the Code of Civil Procedure provides that the rights of action which have already accrued, with the exception of the two cases mentioned in the same section, among which the present case is not included, must be vindicated by the commencement of an action or proceeding to enforce the same within ten years after Act No. 190 came into effect, and, as this Act became operative in 1901, it is evident that the action instituted against the estate of Isabel Gonzalez has already prescribed.

The plaintiffs, by their complaint, do not only seek the partition of the estate of the deceased Isabel Gonzalez, but also and principally to recover the part of the inheritance corresponding to their mother Rosa Matilde in her succession to the said deceased, so that the discussion during the proceedings referred mainly to the question as to whether the plaintiffs were descendants of an heiress to the said deceased, and if so, whether they had a right derived from their mother to a part of the estate of Isabel Gonzalez. This action must be brought within ten years. He who brings an action for the partition or division of hereditary estates or property in common is supposed to by a coheir and to have an undisputed right to the property claimed or to be coowner of the same property possessed in common. He who claims a right to a part of an inheritance of a deceased person, and who alleges that he is a relative of the latter and has a right of testate or intestate succession thereto, has for his principal object the recognition of his right to the inheritance claimed by him and the delivery to him of his share as fixed by law.

Before concluding this decision, it must be stated that, on page 21 of the brief signed by Vicente Sotto as the plaintiffs attorney, and after the first five lines thereof, the following statement appears: "It is also established that Rosa Viademonte was born of Isabel Gonzalez in the year 1852, that is, during the widowhood of the latter."

Counsel for the defendants with reason, qualify as false, this affirmation made by the counsel for the plaintiffs to the effect that the judge has established the fact that Rosa Viademonte was born of Isabel Gonzalez, when such affirmation does not appear in any part of the decision rendered by the said judge.

This court can not look with indifference on any attempt to alter or falsify, for certain purposes, the facts or their important details in the extracts or references that have to be made in proceedings or records brought before it. All the records in a proceeding should contain and reflect the truth in such a way that all who intervene in it may have absolute confidence that the course and procedure of a trial are under the vigilance and inspection of the court.

It is unprofessional and worthy of the highest form of rebuke for a lawyer to attribute to a judge a statement which he had not made in his decision, and in view of the fact that Vicente Sotto has already been disbarred from the exercise of his profession by resolution of this court, it is deemed unnecessary to determine what punishment shall be adopted for said act, which in his case, should be imposed upon him as a lawyer

For the foregoing reasons, whereby the errors assigned to the judgment appealed from are deemed to have been refuted, the said judgment should be, as it hereby is, affirmed and the defendants absolved from the complaint, with the costs against the appellants. So ordered.