EVIDENCE
G.R. No. L-12986 March 31, 1966 stick near the main valve of the said underground tank. Due to the gasoline fumes,
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF
DOMINGA ONG vs. CALTEX (PHIL.), INC., MATEO BOQUIREN
This case is before us on a petition for review of the decision of the Court of Appeals,
which affirmed that of the Court of First Instance of Manila dismissing petitioners'
second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It
appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex service
station at the corner of Antipolo street and Rizal Avenue, Manila. It started while
gasoline was being hosed from a tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the hose was inserted. The fire
spread to and burned several neighboring houses, including the personal properties
and effects inside them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the
station and the second as its agent in charge of operation. Negligence on the part of
both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and with
respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the fire
prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of
the Armed Forces of the Philippines. Portions of the first two reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores
was transferring gasoline from a tank truck, plate No. T-5292 into the underground
tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo
Street, this City, an unknown Filipino lighted a cigarette and threw the burning match
fire suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline hose
connecting the truck with the underground tank prevented a terrific explosion.
However, the flames scattered due to the hose from which the gasoline was spouting.
It burned the truck and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased for the
installation of a coca-cola and cigarette stand, the complainants furnished this Office
a copy of a photograph taken during the fire and which is submitted herewith. it
appears in this picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood contained cigarettes
and matches, installed between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales
regarding the history of the gasoline station and what the chief of the fire department
had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and
hence inadmissible. This ruling is now assigned as error. It is contended: first, that
said reports were admitted by the trial court without objection on the part of
respondents; secondly, that with respect to the police report (Exhibit V-Africa) which
appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter
was presented as witness but respondents waived their right to cross-examine him
although they had the opportunity to do so; and thirdly, that in any event the said
reports are admissible as an exception to the hearsay rule under section 35 of Rule
123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of
September 17, 1953 (pp. 167-170) shows that the reports in question, when offered
as evidence, were objected to by counsel for each of respondents on the ground that
they were hearsay and that they were "irrelevant, immaterial and impertinent."
Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without
objection; the admission of the others, including the disputed ones, carried no such
explanation.
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On the second point, although Detective Capacillo did take the witness stand, he was
not examined and he did not testify as to the facts mentioned in his alleged report
(signed by Detective Zapanta). All he said was that he was one of those who
investigated "the location of the fire and, if possible, gather witnesses as to the
occurrence, and that he brought the report with him. There was nothing, therefore, on
which he need be cross-examined; and the contents of the report, as to which he did
not testify, did not thereby become competent evidence. And even if he had testified,
his testimony would still have been objectionable as far as information gathered by
him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further
testimonial evidence on their contents, fall within the scope of section 35, Rule 123,
which provides that "entries in official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the
entry was made by a public officer, or by another person specially enjoined by law to
do so; (b) that it was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law; and (c) that
the public officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official information
(Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously
the material facts recited in the reports as to the cause and circumstances of the fire
were not within the personal knowledge of the officers who conducted the
investigation. Was knowledge of such facts, however, acquired by them through
official information? As to some facts the sources thereof are not even identified.
Others are attributed to Leopoldo Medina, referred to as an employee at the gas
station were the fire occurred; to Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the underground tank of the station; and
to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any
reason as to the origin of the fire. To qualify their statements as "official information"
acquired by the officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated but must have
the duty to give such statements for record.1
EVIDENCE
The reports in question do not constitute an exception to the hearsay rule; the facts
stated therein were not acquired by the reporting officers through official information,
not having been given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the
fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the
part of appellees. Both the trial court and the appellate court refused to apply the
doctrine in the instant case on the grounds that "as to (its) applicability ... in the
Philippines, there seems to he nothing definite," and that while the rules do not
prohibit its adoption in appropriate cases, "in the case at bar, however, we find no
practical use for such doctrine." The question deserves more than such summary
dismissal. The doctrine has actually been applied in this jurisdiction, in the case of
Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September
20, 1949), wherein the decision of the Court of Appeals was penned by Mr. Justice
J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions
were loading grass between the municipalities of Bay and Calauan, in the province of
Laguna, with clear weather and without any wind blowing, an electric transmission
wire, installed and maintained by the defendant Philippine Power and Development
Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the
head of the plaintiff as he was about to board the truck. As a result, plaintiff received
the full shock of 4,400 volts carried by the wire and was knocked unconscious to the
ground. The electric charge coursed through his body and caused extensive and
serious multiple burns from skull to legs, leaving the bone exposed in some parts and
causing intense pain and wounds that were not completely healed when the case was
tried on June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to
show any specific act of negligence, but the appellate court overruled the defense
under the doctrine of res ipsa loquitur. The court said:
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The first point is directed against the sufficiency of plaintiff's evidence to place
appellant on its defense. While it is the rule, as contended by the appellant, that in
case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the
plaintiff to establish that the proximate cause of his injury was the negligence of the
defendant, it is also a recognized principal that "where the thing which caused injury,
without fault of the injured person, is under the exclusive control of the defendant and
the injury is such as in the ordinary course of things does not occur if he having such
control use proper care, it affords reasonable evidence, in the absence of the
explanation, that the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due
care and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed.
680.) This rule is known by the name of res ipsa loquitur (the transaction speaks for
itself), and is peculiarly applicable to the case at bar, where it is unquestioned that the
plaintiff had every right to be on the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course of events, electric wires do not
part suddenly in fair weather and injure people, unless they are subjected to unusual
strain and stress or there are defects in their installation, maintenance and
supervision; just as barrels do not ordinarily roll out of the warehouse windows to
injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722;
159 Eng. Reprint 299, the leading case that established that rule). Consequently, in
the absence of contributory negligence (which is admittedly not present), the fact that
the wire snapped suffices to raise a reasonable presumption of negligence in its
installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock,
"if there are any facts inconsistent with negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines
binding on the Supreme Court, but we do not consider this a reason for not applying
the particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly
combustible material, in the storage and sale of which extreme care must be taken.
On the other hand, fire is not considered a fortuitous event, as it arises almost
invariably from some act of man. A case strikingly similar to the one before Us is
Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year
1934 was leased to the Shell Petroleum Corporation for a gasoline filling station. On
October 8, 1934, during the term of the lease, while gasoline was being transferred
from the tank wagon, also operated by the Shell Petroleum Corporation, to the
underground tank of the station, a fire started with resulting damages to the building
EVIDENCE
owned by Jones. Alleging that the damages to his building amounted to $516.95,
Jones sued the Shell Petroleum Corporation for the recovery of that amount. The
judge of the district court, after hearing the testimony, concluded that plaintiff was
entitled to a recovery and rendered judgment in his favor for $427.82. The Court of
Appeals for the First Circuit reversed this judgment, on the ground the testimony
failed to show with reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff applied to this
Court for a Writ of Review which was granted, and the case is now before us for
decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one relating to the
cause of the fire and the other relating to the spreading of the gasoline about the
filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no
witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it
established by the record that the filling station and the tank truck were under the
control of the defendant and operated by its agents or employees. We further find
from the uncontradicted testimony of plaintiff's witnesses that fire started in the
underground tank attached to the filling station while it was being filled from the tank
truck and while both the tank and the truck were in charge of and being operated by
the agents or employees of the defendant, extended to the hose and tank truck, and
was communicated from the burning hose, tank truck, and escaping gasoline to the
building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's
failure to explain the cause of the fire or to show its lack of knowledge of the cause,
plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which
the doctrine may be successfully invoked and this, we think, is one of them.
3 | Page

Where the thing which caused the injury complained of is shown to be under the
management of defendant or his servants and the accident is such as in the ordinary
course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in absence of explanation by defendant,
that the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted
by the courts of last resort. Some of the cases in this jurisdiction in which the doctrine
has been applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So.
977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101,
100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents
v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The
gasoline station, with all its appliances, equipment and employees, was under the
control of appellees. A fire occurred therein and spread to and burned the neighboring
houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is
a fair and reasonable inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department
(Exh. X-1 Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station
complained of occupies a lot approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a very busy business district near
the Obrero Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around t
until
gasoline
EVIDENCE
tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and
this constitute a secondary hazard to its operation which in turn endangers the entire
neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls
south and west adjoining the neighborhood are only 2-1/2 meters high at most and
cannot avoid the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only material
damages but desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is
also used by its operator as a garage and repair shop for his fleet of taxicabs
numbering ten or more, adding another risk to the possible outbreak of fire at this
already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of
his duties on the basis of his own personal observation of the facts reported, may
properly be considered as an exception to the hearsay rule. These facts, descriptive
of the location and objective circumstances surrounding the operation of the gasoline
station in question, strengthen the presumption of negligence under the doctrine of
res ipsa loquitur, since on their face they called for more stringent measures of
caution than those which would satisfy the standard of due diligence under ordinary
circumstances. There is no more eloquent demonstration of this than the statement of
Leandro Flores before the police investigator. Flores was the driver of the gasoline
tank wagon who, alone and without assistance, was transferring the contents thereof
into the underground storage when the fire broke out. He said: "Before loading the
underground tank there were no people, but while the loading was going on, there
were people who went to drink coca-cola (at the coca-cola stand) which is about a
meter from the hole leading to the underground tank." He added that when the tank
was almost filled he went to the tank truck to close the valve, and while he had his
back turned to the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring houses were it
not for another negligent omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames from leaping over it. As it
4 | Page

was the concrete wall was only 2-1/2 meters high, and beyond that height it consisted
merely of galvanized iron sheets, which would predictably crumple and melt when
subjected to intense heat. Defendants' negligence, therefore, was not only with
respect to the cause of the fire but also with respect to the spread thereof to the
neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second
amended complaint that "the fire was caused through the acts of a stranger who,
without authority, or permission of answering defendant, passed through the gasoline
station and negligently threw a lighted match in the premises." No evidence on this
point was adduced, but assuming the allegation to be true certainly any
unfavorable inference from the admission may be taken against Boquiren it does
not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule which we find acceptable
here. "It is the rule that those who distribute a dangerous article or agent, owe a
degree of protection to the public proportionate to and commensurate with a danger
involved ... we think it is the generally accepted rule as applied to torts that 'if the
effects of the actor's negligent conduct actively and continuously operate to bring
about harm to another, the fact that the active and substantially simultaneous
operation of the effects of a third person's innocent, tortious or criminal act is also a
substantial factor in bringing about the harm, does not protect the actor from liability.'
(Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The
intention of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence directly and
proximately cooperates with the independent cause in the resulting injury." (MacAfee,
et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to
appellants. This issue depends on whether Boquiren was an independent contractor,
as held by the Court of Appeals, or an agent of Caltex. This question, in the light of
the facts not controverted, is one of law and hence may be passed upon by this
Court. These facts are: (1) Boquiren made an admission that he was an agent of
Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the
equipment therein; (3) Caltex exercised control over Boquiren in the management of
the state; (4) the delivery truck used in delivering gasoline to the station had the name
of CALTEX painted on it; and (5) the license to store gasoline at the station was in the
name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit
X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).
EVIDENCE
In Boquiren's amended answer to the second amended complaint, he denied that he
directed one of his drivers to remove gasoline from the truck into the tank and alleged
that the "alleged driver, if one there was, was not in his employ, the driver being an
employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true
that Boquiren later on amended his answer, and that among the changes was one to
the effect that he was not acting as agent of Caltex. But then again, in his motion to
dismiss appellants' second amended complaint the ground alleged was that it stated
no cause of action since under the allegations thereof he was merely acting as agent
of Caltex, such that he could not have incurred personal liability. A motion to dismiss
on this ground is deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but
claims that the business conducted at the service station in question was owned and
operated by Boquiren. But Caltex did not present any contract with Boquiren that
would reveal the nature of their relationship at the time of the fire. There must have
been one in existence at that time. Instead, what was presented was a license
agreement manifestly tailored for purposes of this case, since it was entered into
shortly before the expiration of the one-year period it was intended to operate. This
so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948,
but made effective as of January 1, 1948 so as to cover the date of the fire, namely,
March 18, 1948. This retroactivity provision is quite significant, and gives rise to the
conclusion that it was designed precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex "shall not be liable for any
injury to person or property while in the property herein licensed, it being understood
and agreed that LICENSEE (Boquiren) is not an employee, representative or agent of
LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered
an independent contractor. Under that agreement Boquiren would pay Caltex the
purely nominal sum of P1.00 for the use of the premises and all the equipment
therein. He could sell only Caltex Products. Maintenance of the station and its
equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The
license agreement was supposed to be from January 1, 1948 to December 31, 1948,
and thereafter until terminated by Caltex upon two days prior written notice. Caltex
could at any time cancel and terminate the agreement in case Boquiren ceased to sell
Caltex products, or did not conduct the business with due diligence, in the judgment
of Caltex. Termination of the contract was therefore a right granted only to Caltex but
not to Boquiren. These provisions of the contract show the extent of the control of
Caltex over Boquiren. The control was such that the latter was virtually an employee
of the former.
5 | Page
 EVIDENCE

Taking into consideration the fact that the operator owed his position to the company
and the latter could remove him or terminate his services at will; that the service
station belonged to the company and bore its tradename and the operator sold only
the products of the company; that the equipment used by the operator belonged to
the company and were just loaned to the operator and the company took charge of
their repair and maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's gasoline and service
station; that the price of the products sold by the operator was fixed by the company
and not by the operator; and that the receipts signed by the operator indicated that he
was a mere agent, the finding of the Court of Appeals that the operator was an agent
of the company and not an independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon
the name or title given it by the contracting parties, should thereby a controversy as to
what they really had intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may be shown and
inquired into, and should such performance conflict with the name or title given the
contract by the parties, the former must prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting
the amount of P2,000.00 collected by them on the insurance of the house. The
deduction is now challenged as erroneous on the ground that Article 2207 of the New
Civil Code, which provides for the subrogation of the insurer to the rights of the
insured, was not yet in effect when the loss took place. However, regardless of the
silence of the law on this point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust
enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00
was adjudged by the lower court on the basis of the assessed value of the property
destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children
that said property was worth P4,000.00. We agree that the court erred, since it is of
common knowledge that the assessment for taxation purposes is not an accurate
gauge of fair market value, and in this case should not prevail over positive evidence
of such value. The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are
held liable solidarily to appellants, and ordered to pay them the aforesaid sum of
P9,005.80 and P10,000.00, respectively, with interest from the filing of the complaint,
and costs.

The written contract was apparently drawn for the purpose of creating the apparent
relationship of employer and independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the company was not satisfied to
allow such relationship to exist. The evidence shows that it immediately assumed
control, and proceeded to direct the method by which the work contracted for should
be performed. By reserving the right to terminate the contract at will, it retained the
means of compelling submission to its orders. Having elected to assume control and
to direct the means and methods by which the work has to be performed, it must be
held liable for the negligence of those performing service under its direction. We think
the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company
v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But
no cash invoices were presented to show that Boquiren had bought said gasoline
from Caltex. Neither was there a sales contract to prove the same.

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G.R. No. L-9105 November 22, 1915
In re ESTATE OF APOLINIA REMIGIO. GORGONIA REMIGIO, vs.SANTIAGO
ORTIGA, EDUARDO ORTIGA, and ALFONSO ORTIGA
Apolinia Remigio y Capati, widow of Pablo Ortiga Chan Chioc, died, in Manila, and
the will executed by her on August 12, 1911, was duly probated in the Court of First
Instance of the said city. On January 7, 1913, Gorgonia Remigio y Pea came into
said court and filed a petition in which she stated that she was the person that in the
fifteenth paragraph of said will was instituted as the universal heir of all the property,
rights and action of the testatrix that had not been specially devised; she asked the
court to order that said remainder of all the property belonging to the estate, after all
the debts and obligations, donations, legacies, expenses of administration, and other
charges were paid in accordance with the will, be delivered to her by the
administrator, as required by law.
Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga also entered their appearances
and prayed that such part of Apolonia Remigio's estate as pertained to them, as the
sole children and forced heirs of said decedent, be distributed among them.
Evidence was introduced by both parties, the case was heard, and on March 24,
1913, said Court of First Instance of Manila issued an order in which (on the grounds
that the petitioners Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga were the
legitimate, acknowledged children of Apolinia Remigio, born of her, and as such
entitled to share in her estate as forced heirs, no reason being given in the will why
they should be disinherited) he directed that the said decedent's estate should be
partitioned and distributed in the following manner; To Santiago Ortiga, two-ninths; to
Eduardo Ortiga, two-ninths; to Alfonso Ortiga also two-ninths; and the third part which
remained, pro rata among the legatees named in the last will and testaments of the
said Apolinia Remigio, deceased.
Said legatees, on being notified of the aforementioned order, appealed therefrom to
the Supreme Court; the appeal was admitted upon the filing of a bond for P500, and,
after forwarding the proper transcript of the evidence, the parties herein filed their
respective briefs, in one of which petitioner Gorgonia Remegio has assigned various
errors. She claims the lower court erred in admitting certain evidence adduced by
EVIDENCE
respondents; in making the findings and the conclusions drawn by said court upon
said evidence; and in declaring and finding that respondents are the forced heirs of
the deceased Apolinia Remigio and entitled to a two-thirds share in her estate.
In the will executed, as aforesaid, by Apolinia Remigio on August 12, 1911, the
following clause appear:
First. I declared that I was married in first and only wedlock to D. Pablo Ortiga Chan
Chioc, a native of China, a resident of Manila and a Christian, with whom I contracted
a canonical marriage.
Second. I declare that from my marriage with said Pablo Ortiga I have had two
children, a boy and a girl, who were baptized in the parish church of Binondo, Manila,
with the names of Candido and Doretea; that they died a short while after birth all
of which facts are shown in the respective baptismal and burial entries recorded in the
archives of the parish of Binondo, Manila. I further declare that at the present time I
have neither ascendents nor descendents of any kind, and although in the will
executed by my husband on April 7, 1902, and subsequently probated, he recorded
that the parties named Santiago, Eduardo, and Alfonso were issue of his marriage
with me, the testatrix, the truth is that that statement is not true, as may be proved by
the means which I leave in the hands of the persons whom I hereby institute as my
heir.
Third. I declare to be my property all that which is specified in the instrument and
agreements made by me with my husband's alleged legitimate children named
Santiago Mora Ortiga, Alfonso Ortiga, and Eduardo Ortiga, relative to the partition and
distribution of property on the occasion of the probate proceedings in the matter of the
estate of my deceased husband D. Pablo Ortiga, although I have disposed of some
property and have acquired other, note of which I shall leave with my heir.
Fourth. I designate, appoint, and institute as my testamentary executors,
administrators of the property found after my death, and executors of this will of mine,
in the first place, D. Julian La O, and in the second place, D. Jose de Jesus y Pilapil,
either of whom must discharge the duties of his office in the absence of the other, and
unless my heir should request of the proper authorities that said gentlemen give bond
for the faithful discharge of the duties of their office, relieve them from all bond and
7 | Page

confer upon them all the powers granted by the laws in force; but I beg, recommend,
and order them not to bring any action whatever against my husband's children, with
reference to the property that was improperly awarded to them by deceased husband,
but if my husband's said children, or any of them should attach this will or any of the
clauses or provisions thereof, then and in that case my testamentary executors shall
proceed in accordance with law, for them and in that case I hereby retire, withdraw
and annul the request, recommendation and order above mentioned.
EVIDENCE
8, 1906, and the petition for such probate, presented by his widow Apolinia Remigio
and his son Santiago Ortiga y Remigio, as stated in the respective application (Exhibit
B), in which it was also stated that said deceased at his death had left said will in
which he instituted as his sole and universal heirs his children Santiago, Eduardo,
and Alfonso.

In said will of the deceased Pablo Ortiga, the following clauses appear:

xxx xxx xxx

xxx xxx xxx

Fifteenth. As to the residue of all my property, rights and actions of whatever kind they
may be, I institute as my sole and universal heir my niece Doa Gorgonia Remigio y
Pea, in order that, as the exclusive owner of my said property, rights and actions,
without other limitations than those I have hereinabove imposed, she may hold,
possess and enjoy them and exercise all other ownership rights thereto pertaining.
But I recommend to my said heir and order her not to impeach the filiation claimed by
Santiago Mora Ortiga, Alfonso Ortiga, and Eduardo Ortiga, and not to bring any action
whatever against them or their heirs by reason of the property and businesses they
improperly received out of the estate of my deceased husband Don Pablo Ortiga
Chan Chioc for, out of respect for his memory, I have desired, do continually desire,
and shall always desire that there be peace; notwithstanding, my heir as well as my
testamentary executors shall be free to take any legal proceedings with regard
thereto, should those alleged children, or any of them, attempt to disturb or contest
this will, or in any other way whatsoever initiate any action or contest by reason of this
will or on account of my property.
Third. I declare that after several years' residence in these Islands from the time I first
arrived in them, they being then governed by the late Spanish Government, I
contracted marriage in facia ecclesie with Doa Apolinia Remigio y Capati, my
present wife, who, like myself, brought to our marriage no property worthy of mention,
but by force of constancy, labor, fatigue and painful economy we have been able to
acquire the property we now possess and which I shall hereinafter specifically
mention.
Fourth. I declare that up to the present time there have been born to me of my
marriage (three) children named Santiago, Eduardo, and Alfonso, the first being of
legal age and the last (two) minors.
xxx xxx xxx

Notwithstanding the clear and positive statement made by Apolinia Remegio y Capati
in the second, fourth and fifteenth clauses of her will above transcribed, to the effect
that the respondents Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga are not the
issue of her marriage with Pablo Ortiga Chan Chioc, deceased, these said children
have endeavored to prove the contrary for the purpose of participating, as her forced
heirs, in the estate left by said testatrix.

The first proof presented by respondents for this purpose consisted of the will (Exhibit
A) executed by the deceased Pablo Ortiga on April 7, 1902, and probated on March
8 | Page

Sixth. Earnestly desiring to outline a scheme or to commence the partition of my
property, thus facilitating this labor, I wish and it is my will that, as a part of the
community property pertaining to my wife Doa Apolinia Remigio y Capati, and to this
she consents, there be awarded to her all the property specified in Nos. 1 to 6,
inclusive, of paragraph 2 of this my will, and which we have obtained by her own
desire, for, although the total value of this property, to wit, eighty-eight thousand
pesos, is not one-half of the amount of the total property we possess (amounting to
three hundred and seventy-one thousand pesos), yet she will in no wise suffer any
detriment from the natural risks of commercial affairs; on the other hand, the landed
property is more stable and secure, aside from the fact that no one except her
children or descendants are lawfully entitled to succeed her in her property rights . . . .
Further evidence presented by respondents was the instrument of partition of the
property of said decedent, Pablo Ortiga, together with the agreement setting forth the
bases for this partition (Exhibit D) filed with the court in case No. 4312, proceedings
relative to said decedent's estate. This document was dated July 27, 1907, and was
signed by Apolinia Remigio herself and by Eduardo Ortiga, Santiago Ortiga, and the
guardian of Alfonso Ortiga.
The following paragraphs are contained in the document just mentioned:
I. SUCCESSION OF THE DECEASED.
Don Pablo Ortiga Chan Chioc, a native of the town of Chuan Chiu, province of
Chincang, Chinese Empire, sixty-one years of age, the son of parents now deceased,
engaged in business in these Philippine Islands, married to Doa Apolinia Remigio
and domiciled in this capital of Manila and the district of Binondo thereof, Calle
Dasmarias, No. 11, died, leaving a will, executed on April 7, 1902, and a widow and
three children named Santiago, Eduardo, and Alfonso, the first two children of legal
age and the last one, a minor, the only persons up to the present time interested in
the partition of the estate of said decedent.
II. PERSONALITY OF THE INTERESTED PARTIES.
EVIDENCE
As the widowed spouse, according to the sixth clause of the will, Doa Apolinia
Remigio y Capati, widow, of age and a property owner.
As instituted heirs, according to the seventh clause, the aforementioned Santiago,
Eduardo, and Alfonso, of age the first two and a minor the last one, the first of them
being 33 years old, the second 23, and the last, 19.
xxx xxx xxx
VI. AGREEMENT AS TO THE BASES FOR THE PARTITION.
The persons interested in this partition, on the one hand, Doa Apolinia Remigio y
Capati, for her one-half of the community property, and on the hand, Don Santiago,
Don Eduardo and Don Alfonso, all surnamed Ortiga, the first (of the three persons just
mentioned) in his own behalf and in representation as testamentary guardian of the
last-mentioned, who is a minor, agree that these three last named children, in view of
the great sacrifice which the first-named, their most beloved mother Doa Apolinia
Remigio y Capati, has made for them, of her watchfulness and care for their literary
and religious education, and of her generous unselfishness in behalf of the three
brothers, in sacrificing the greater part of her community property to enlarge the part
of the estate awarded to each of them by their father (may he be in heaven) and in
contenting herself with only P88, 000 of the P185,000 which belongs to her,
voluntarily and freely bind themselves, jointly and severally: 1. To recognize and
consider as being of the sale exclusive ownership of their said mother Doa Apolinia
Remigio, and that there be awarded to her as a part of her one-half of community
property, the three estates which she acquired by her sole and private initiative,
management and industry, etc.
The respondents also presented the document Exhibit E, which reads as follows:
I, Don Jose Bustamante, Presbyter of the Holy Cathedral Church, and in charge of
the Binondo Parish, (hereby) certify:
9 | Page
 EVIDENCE
That in the baptismal registry No. 42 of this parish, on page 294 thereof, is an entry child that was?" he replied: "She did not; I went there only as a friend and visitor, and
which reads as follow: I asked her when the child was to be baptized and she told me."

"On October 13, 1883, I, the undersigned ecclesiastical administrator and parish
priest of Binondo, Province of Manila, set forth that the Very Reverend Father,
Candido Garcia Valles, with my permission solemnly baptized and annointed with the
holy oils and chrism in this church under my charge, a boy born five days before who
was given the name of Eduardo Ortiga Chan Chioc, the legitimate issue of the lawful
marriage of Don Pablo Ortiga Chan Chioc, a Christian Chinaman, with Doa Apolonia
Remigio, a Chinese mestiza, residents of Calle de Teatro Viejo; his godfather was D.
Silvano Aquino Zacarias, married to this district, who was apprised of his spiritual
relationship and of the duties he contracted. In witness whereof I affix my signature.
Fray Meliton Moreno."
Another witness was Aniceta Novenario. She testified that she knew Pablo Ortiga and
Apolinia Remigio when she went to live with them in the year 1880. On being asked:
"Did they have any persons in the house whom they treated as their children?" she
replied: "None." Asked whether she has understood the foregoing question, she
answered: "Yes, sir." and, continuing her testimony, made the following replies:
Q. Were there any persons whom they treated as and called such? A. Their
children were there.

This copy agrees with its original; which I certify Parochial house of Binondo, Q. Who were those children? A. Santiago and Eduardo.
January 14, 1913.

Q. When was Eduardo born? A. On October 9, 1883.

(Sgd.) JOSE BUSTAMANTE,

Presbyter.
Q. Were you there when Eduardo was born? A. Yes, sir.

Q. How long did you remain afterwards? A. A long while; my husband went
The respondents, Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga, presented to China and left me there with them.
four witnesses to prove that they were legitimate children of the married couple Pablo
Ortiga and Apolinia Remigio, and that they enjoyed consideration as such.
Q. Do you know Eduardo now? A. Yes, sir.

One of them, Nemesio Corpus, 63 years of age, the senior sacristan of the Binondo
Church from January, 1879 to 1898, and charged with making out the birth certificates Q. Have you known him since a short time after his birth?. A. Yes, sir.
in said church, testified that he knew Pablo Ortiga and Apolinia Remigio during that
period and that he was in their house on a certain occasion for the purpose of
preparing the papers for the baptism of a boy; that Apolinia herself, while in bed,
spoke to him and, on his asking her on what date she wished the child to be baptized, Q. Did Pablo and Apolonia Remigio always call him their son and treat his as
told him October 13, 1813, (sic); that the child was baptized on that date and his such?
name was Eduardo Ortiga Chan Chioc; and that he subsequently knew the latter. On
the question being put to this witness: "Did Apolinia tell you anything about whose
10 | P a g e

MIRANDA: I object to the question as being irrelevant and immaterial.
The Court: Objection overruled.
(Exception).
A. Yes, sir; they used to call him their son.
Julia Reyes, another of the respondents' witness, testified that she became
acquainted with Pablo Ortiga and Apolonia Remigio while she lived in their house;
that she did not remember the year, but she was there as one of the family; that there
was then in the family a boy named Santiago; that when she went to live in the said
house, Capitana Apolinia was pregnant; that witness did not know whether afterwards
there was another boy in the family, save the one named Eduardo; and that witness
knew the latter from the time of his birth until he became of age because she took
care of him. Finally, on this witness being asked: "Did Pablo and Apolonia Remigio
always call Eduardo their son and treat him as such?, she replied: "Yes, sir.
Appellant's counsel, however, objected to this question as being suggestive,
irrelevant and immaterial, and excepted to its admission.
Finally, N.T. Hashim testified that he knew Pablo Ortiga and his wife Apolinia Remigio
about 20 years ago; that he constantly visited their house, quite as if it were his own,
and that he used to live near them, first on Calle Salazar, and afterwards on Calle
Gandara, in front of their house. He further testified as follows:
Q. Do you know Santiago, Eduardo, and Alfonso Ortiga? A. I know the whole
family.
Q. Do you know how those three, Santiago, Eduardo, and Alfonso Ortiga were
treated in the house of Pablo Ortiga?
EVIDENCE
MIRANDA: Objected to as immaterial, incompetent, and irrelevant.
The COURT: Objection overruled.
(Exception).
A. Yes, sir; the first I knew of them, I and my family and all my children, they
always spoke of them as "my son so and so," and "father and mother," and especially
I knew the mother better than the father as he used to go to China. I remember one of
the last time I had anything to do with them, one of the children, I do not remember
now whether it was Eduardo or Alfonso, was held in the customhouse, and the old
woman came to me and asked me to take him out to the customhouse, and asked
me: "How is it the American hold them? Tell them they are my children, born here in
the Islands."
Q. MIRANDA: Which son was that, Eduardo or Alfonso? A. I do not
remember which. I went down to the immigration office and explained to the officer
there and he says: "You must bring the baptismal paper and let the mother come here
and make affidavit that he is her son born in the Philippine Islands," and I went back
to the house and told her, and at the time she was sick and she said: "I won't go down
to the customhouse," and I went back to the customhouse and they said that if she
could make out a power of attorney for some one to act for her, or an order, and she
was surprised when I told her to make the power of attorney, and then she says:
"Santiago is my son; he can go," and then she made out the paper before the notary,
I do not remember who, and I took it to the customhouse and got the boy out.
Q. Do you know, Mr. Hashim, the treatment that Pablo Ortiga and Apolonia
gave these three, that is, Santiago, Eduardo and Alfonso Ortiga, in the presence of
other people, as to whether they were their children or not?
MIRANDA: Objected to as immaterial, incompetent and irrelevant.
11 | P a g e

The COURT: Objection overruled.
(Exception).
A. Well, it is always in my presence, and everybody's presence, "My son, my
son." If she had anything inside of her I do not know.
That is all.
Cross-examination by MIRANDA:
Q. What document is that Doa Apolinia gave to you? A. If I am not mistaken
she declared: "It is my son Santiago; I give him full power to represent me in the
customhouse."
Q. Before whom was that executed? A. I do not remember, because I just
wanted to take the children out of the customhouse.
Q. Who was that in the customhouse; Santiago? A. No, sir. Santiago was
given the power to go down to the customhouse instead of his mother.
From the testimony introduced by petitioner to rebut that presented by respondents, it
appears, in the first place, that a girl named Vicentica Lopez, a native of Bigaa,
Province of Bulacan, live with the married couple Pablo Ortiga Chan Chioc and
Apolinia Remigio in their house on Calle Dasmarias in the district of Binondo. Such
was the testimony of the following witnesses: Severina San Jose, who was a servant
of said spouses and began to serve them, as she herself testified, when she was still
very young; a brother of Apolinia herself, named Arcadio Remigio, and her niece
Marcela Remigio who had lived in the home of said married couple ever since she
was weaned, as she also testified, it having been Apolonia herself who took care of
EVIDENCE
her until she was 20 years old; Paz Lim, who also knew Vicentica in the house, and
Maria de la Cruz, an old servant of the house where she had lived with said spouses
Pablo Ortiga and Apolonia Remigio and had taken care of the only two children this
couple had, Candido and Dorotea, both of whom has since died. This same witness
also testified that Vicentica Lopez was a godchild of Apolonia's by confirmation and
12 years old when she went to live in said house.
This same evidence discloses that Marcela Remigio testified that Vicentica Lopez
gave birth to Eduardo Ortiga in the house on Calle Dasmarias, and that she knew it
because she was then listening at the door of the room in which Vicentica was. The
other witness, Maria de la Cruz, on being asked whether she knew who was
Eduardo's mother replied: "Vicentica," and added on being questioned as whether
she was present when Eduardo was born; "Yes, sir; in fact I saw him ... . In fact the
midwife was in the room and I had to assist the midwife; on this account I saw that
child when he was born." This same witness, Marcela Remigio, further testified that
Vicentica Lopez also gave birth, after Eduardo, to a child named Fidel, and after this
one, to four others named Alfonso, Pablito, Pacita, and Romaning. The witness
Severina San Jose testified that she saw Vicentica gave birth to Alfonso in said house
on Called Dasmarias; that Vicentica herself nursed said child after his birth, which
fact witness knew because it was she who took care of the child; that Alfonso called
Vicentica "mamma," and the latter considered him as her own child and treated him
as such; that sometimes when Vicentica would entrust this child to witness, she would
tell the latter "to take good care of her child;" that Eduardo also considered Vicentica
as his mother; that when Alfonso was also considered Vicentica as his mother; that
when Alfonso was a little more than three feet tall he was taken to China, witness
then accompanying him as far as the customhouse; that after Alfonso's birth there
was in the house another child of Vicentica's whose name was Pablito, who was born
in Paco and was a son of the said Vicentica, which latter fact witness knew because
she was living in the house; and that said child was born in Paco notwithstanding that
Vicentica was living on Called Dasmarias, because "Captain Pablo and Apolonia
had a disagreement and for this reason Captain Pablo took Vicentica to Paco." This
testimony accords with that of the other witness Arcadio Remigio in which the latter
testified that Pablo Ortiga has a house in Paco, which was in his wife's name, but
belonged to this witness; that Vicentica Lopez was pregnant when they took her to
said house, at which time Eduardo and Santiago were still very young; that Vicentica
bore three children in said house and that Pablito was the name of the first of them.
Finally, said evidence shows, by the testimony of Maria de la Cruz, an old house-
servant of the married couple Pablo Ortiga and Apolonia Remigio, that this witness
went with these latter to China and on their return to these Islands they brought with
them a boy three years old, whom said spouses had bought in China; that this child
12 | P a g e

was the one who was afterwards called Santiago Ortiga, and was pointed out by the
witness during the hearing; that witness had the money in her hand when said child
was bought, and that it was taken from her to pay the child's father and mother. This
testimony is related to that given by Severina San Jose and Arcadio Remigio, both of
whom testified that they knew that Santiago was bought in China, the witness Arcadio
Remigio stating that he knew this to be a fact because his sister Apolonia and his
brother-in-law told him so when they arrived from China, and that said child was then
about three years of age.
In connection with the testimony of these same witnesses we have, on the one hand,
Exhibit 5, a certificate issued by the Second Assistant Executive Secretary on
December 27, 1911, of a copy taken from the Gaceta de Manila of October 21, 1875,
in which there appears an official announcement of the 18th of the same month of
October, by the Secretaria del Gobierno General de Filipinas, making known, as was
required at that time, that Don Pablo Ortiga Chan Chioc, ex gobernadorcillo de
sangleyes, has applied for a passport to return to his country in company with his wife
Doa Apolinia Remigio and his native servant Maria de la Cruz, that is the witness of
this name who testified in this case; and, on the other hand, the certificate Exhibit 3,
issued on June 10, 1902, by the acting parish priest of the pueblo of San Cruz, a
suburb of Manila, which certificate recites that on page 231 of the baptismal register
kept in the archives of his parish, there was an entry which showed that on July 25,
1877, the presbyter D. Manuel Clemente solemnly baptized and annointed with the
holy oils in said church of Santa Cruz, a male child born on December 18, 1873, who
was given the name of Santiago Mora Ortiga and was the son of pagan parents,
natives of Chincang of the Chinese Empire.
It likewise appears from the will executed by Pablo Ortiga Chan Chioc on May 23,
1883, a copy of which, as Exhibit 4, was presented by petitioner, that the testator
Pablo Ortiga declared that he was lawfully married to Doa Apolonia Remigio and as
issue of his marriage with her, had had two children named Candido and Doretea,
who died in infancy. This particular agrees with the statements made by Apolonia
Remigio in her will of Pablo Ortiga aforementioned, among the several legacies made
therein there appears one in favor of his nephew named Santiago Chan Bung Quing,
of the value of P2,750, and another legacy of P1,000 in favor of Vicentica Lopez,
before mentioned.
Finally, when the Exhibits 1 and 2 were shown to the witnesses Arcadio Remigio,
Marcela Remigio and Paz Lim, the latter being another of petitioner's witnesses
who testified that she had known Vicentica Lopez in Apolonia Remigio's house on
EVIDENCE
Calle Dasmarias, they stated that said exhibits were photographs of said
Vicentica Lopez. It also appears from petitioner's Exhibit 6 that on January 4, 1903,
Santiago Mora, mentioned in the corresponding church record which constitutes said
exhibit, as Santiago Mora Ortiga Chan Quin, a Christian Chinaman and native of
Chincang, Chinese Empire, contracted as second marriage; and from the Exhibit No.
7, that on October 2, 1890, in the Binondo Church, a male child was baptized who
was given the name of Pablo Dalmacio Ortiga Chan Chioc, a legitimate son begotten
in lawful wedlock by D. Pablo Ortiga Chan Chioc with Doa Apolonia Remigio,
residents of Calle Dasmarias of the said district of Binondo.
As may be seen from the foregoing, it is not exactly true, as stated in the order
appealed from, that there was introduced in evidence much testimony by persons
who had been servants of the family of Pablo Ortiga and Apolonia Remigio and who
individually proved that petitioners were always treated by the late Apolonia Remigio
as children by Pablo Ortiga, and were always acknowledged by her as such.
The only witnesses who testified for petitioners or respondents with respect to the
aforementioned particulars, were Aniceta Novenario and Julia Reyes, who for some
time live in the house of those spouses, and N. T. Hashim, a friend of the latter's and
for some time a neighbor of theirs.
The first of these witnesses, after saying that there was no one in that house whom
said spouses treated as their son, and on being again questioned as to whether she
had understood the question to which she had made that reply, answered
affirmatively and said that "their children were there;" and on being asked who were
those children, she replied: "Santiago and Eduardo," with regard to the latter of whom
she said that Apolonia Remigio and Pablo called him their son.
The second of the three above mentioned witnesses, Julia Reyes, only said that there
was in the family a boy whose name was Santiago, and that she did not know
whether there was another child in it, except Eduardo, whom she had known from the
time of his birth until he became of age, because it was she who had taken care of
him. To the question put to her with respect to whether Apolonia Remigio and Pablo
Ortiga always called Eduardo a child of theirs and always treated him as such, she
also answered affirmatively.
13 | P a g e

The third witness, N.T. Hashim, testified quite confusedly in regard to those details.
He virtually said in substance that in his presence and in that of other persons, Pablo
Ortiga and Apolonia Remigio employed the words "my son, my son," in referring to
Santiago, Eduardo and Alfonso; but this witness added, moreover, that "if she
(Apolonia) has anything inside of her I do not know." This same witness, Hashim,
testified that, on account of Eduardo or Alfonso being detained in the customhouse,
Apolonia Remigio sought witness' assistance in order to get him out; that it was then
that this woman said to him: "How is it that the American hold him? Tell him they are
my children, born here in the Islands;" and that, as Apolonia then did not wish to go to
the customhouse and had to execute a power of attorney in behalf of some one to
represent her, she said: "Santiago is my son; he can go ... . It is my son Santiago; I
give him full power to represent me in the customhouse."
Neither is the exact truth stated in the following language of the order appealed from:
Witnesses who testified that they lived in the house as servants said that they were
present and saw Apolonia Remigio give birth to the petitioner Eduardo, and while they
were still servants in the house, she gave birth to the petitioner Alfonso at the house
of Pablo Ortiga in Paco they having also a home on Calle Dasmarias though
they, the witnesses, did not witness the birth, but were told by Pablo Ortiga when it
occurred.
The only witnesses presented by petitioners or respondents at the hearing of this
incident in the distribution of the estate of Apolonia Remigio were, as aforesaid,
Nemesio Corpus, Aniceta Novenario, Julia Reyes and N.T. Hashim. None of these
witnesses said that he or she was present when Apolonia Remigio gave birth to the
petitioner Eduardo, nor said anything about being present at that of the other
petitioner Alfonso, nor that Pablo Ortiga told them a single word with regard to
Apolonia's giving birth to Alfonso.
Nemesio Corpus merely testified, as said before, that while he was at those spouse's
house on a certain occasion for the purpose of preparing the papers for the baptism
of a male child, Apolonia, who was in bed, spoke to him about the matter and in reply
to a question told him that she wanted the child baptized on the 13th of October,
1813, (he meant 1883), and that in fact he was baptized on that date and given the
name of Eduardo Ortiga Chan Chioc. But this same witness testified that Apolonia
Remigio herself said nothing to him with respect to whose child that was.
EVIDENCE
Aniceta Novenario also testified, besides what has already been quoted with the
reference to her testimony, that Eduardo was born on October 9, 1883; that she was
in the house of those spouses when Eduardo was born and remained there a long
time, for her husband went to China and she remained in the house with said
spouses; and that, then, at the time of the trial, she knew Eduardo and had known
him ever since as short while after his birth. But she did not say that she saw any
woman give birth to Eduardo, that is, she did not say of whom he was born.
The other witness, Julian Reyes, also in addition to what has been quoted
hereinbefore with reference to her testimony, limited herself to saying that when, in
what year she did not remember, she was living in the house of said spouses, in
which she was treated as one of the family, there was a male child therein called
Santiago; that when she went to live in that house, Capitana (the captain's wife)
Apolonia was pregnant; that she did not know whether there was afterwards another
child of the family, except Eduardo; and that she had known the latter from the time of
his birth until he became of age because she took care of him. But this witnessed did
not say that Apolonia Remigio, as a result of that pregnancy, gave birth to Eduardo.
Finally, the witness Hashim did not say one word with reference to the birth of any of
the respondents.
Neither was there presented in evidence Alfonso's baptismal certificate to which
reference is made in the order appealed from and in which, according to the order, it
is recited that Alfonso is an adopted son of Pablo Ortiga and Apolonia Remigio; and,
finally, in connection with the fact of Apolonia Remigio's having presented an affidavit
in the immigration division of the customhouse, to which document reference is also
made in the order appealed from the evidence introduced at the hearing in these
proceedings only shows the testimony by N.T. Hashim, as aforesaid, and from that
testimony it does not appear that the affidavit was presented on January 5, 1910, as
stated in the order.
In connection with the inaccuracies noted, as we have said, in the order appealed
from, it must be taken into account that the Honorable A. S. Crossfield, judge of the
Court of First Instance of Manila, who issued it, said therein as follows:
14 | P a g e

When making the order admitting the will of Apolonia Remigio to probate, I was
inclined to believe from the evidence then before me, which is also a part of the
evidence before me at this hearing, that probably the petitioners were children of
Pablo Ortiga, but not of Apolonia Remigio, the deceased; but after again examining
the whole of the former evidence and taking into consideration the evidence recently
presented, my belief is somewhat changed, and I must conclude that the petitioners
Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga are the legally recognized
children of the deceased Apolonia Remigio, born of her, and as such entitled to
participate in her estate as forced heirs.
After a careful examination of the copy of the transcript of the evidence submitted to
us by the appeal raised in these special proceedings, it does not appear that in the
hearing on these proceedings, that is, of the incidental issue on the distribution of the
estate of the late Apolonia Remigio, as stated by the Honorable Judge Crossfield, the
evidence previously taken at the hearing on the probate of the will of said decedent,
which was had before this same judge, was made a part thereof, with the exception of
the testimony given at said hearing by the witness for the petitioner or appellant
Gorgonia Remigio, named Maria de la Cruz, by virtue of an agreement and stipulation
made by the parties, shown on page 11 of said printed copy of the transcript of the
evidence. Furthermore, at the request of the respondents' counsel and by agreement
of petitioner's, as shown on page 5 of said transcript, there was included in this latter
the oral and the documentary evidence of the respondents, the first of which consists,
as may be seen on page 18 to 77 of the transcript, of the testimony given by the
witnesses previously mentioned, Nemesio Corpus, N.T., Hashim, Aniceta Novenario
and Julia Reyes, and the second, of the Exhibits A, B, C, D, and E, which we have
also mentioned in referring to the evidence by respondents.
It is clear, therefore, as alleged by petitioner's counsel, that the lower court erred in
the order appealed from, by holding, as we have seen, that all the evidence given at
the hearing of the probate proceedings on the will of Apolonia Remigio was
introduced at the hearing of the proceedings for partition of the estate of said
decedent, and likewise by drawing conclusions based on evidence which
respondents did not present at the hearing of this incidental issue, whereby the trial
court was led to make the inaccuracies hereinbefore mentioned.
Pursuant to the rules laid down by the supreme court of Spain, in several of its
decisions, among them, those of June 28, 1895, November 7, 1896, and July 5, 1906,
with respect to paternity, which decisions are by analogy likewise applicable to a
question of maternity, the constant possession of the status of child of a given
EVIDENCE
person is proven by the continuation of acts which hold out a person as enjoying the
uninterrupted relation of child of another given person; by acts which show clearly the
will of the father or of his family, as the case may be, to have as his child the person
who claims that obligatory acknowledgment; and by acts which may be of such a
nature that, while at the same time they reveal the conviction of paternity, they show
the ostensible will, in the social and other relations of life, to have and treat the child
as such, as this, not accidentally, by continually, because, on such an hypothesis,
according to the last of the decisions above cited, these acts have the same value as
an explicit acknowledgment.
In the case at bar, Aniceta Novenario and Julia Reyes, witnesses presented by
respondents to testify in regard to the condition or status respondents enjoyed in the
home of the spouses Pablo Ortiga and Apolonia Remigio, as children of this latter, as
already seen in our reference to their respective testimony, did not testify to any act
whatever performed by Apolonia Remigio which showed the relation between her and
respondents to be that of mother and child, or that necessarily revealed the will of
Apolonia Remigio to have them as children. These witnesses restricted themselves to
answering affirmatively the suggestive question which were put to them by
respondents' counsel and which were objected to by petitioner's, as to whether
Apolonia Remigio and Pablo Ortiga always treated Eduardo as their child and called
him such.
The other witness, N.T. Hashim, besides vaguely answering another question similar
to that put to the witnesses just above mentioned, by saying: "It is always in my
presence, and everybody's presence, 'my son, my son;' if she (Apolonia) had
anything inside of her, I do not know," referred to a single instance in which, casually,
that is, on an occasion when Apolonia Remigio was obliged to obtain the release of
either Eduardo or Alfonso then detained in the customhouse, she told Hashim, so he
testified, to the Americans that they were her children, and that Santiago, who could
go in her stead, was also her child. However, as deduced from Hashim's own
testimony, all this was for the purpose of obtaining the release of the detained person
and in order that he might be permitted to enter the Islands; it was a single, fortuitous
act which not sufficient force and value of constitute proof of the possession by those
persons of the status of children of Apolonia Remigio.
In the will executed by Pablo Ortiga Chan Chioc on April 7, 1902 (Exhibit A), no
statement whatever was made by Apolonia Remigio to the effect that Santiago,
Eduardo and Alfonso Ortiga were her children. The declaration in clause 3 of the will,
that up to that time the testator had had by his marriage (he undoubtedly referred to
15 | P a g e

that mentioned in the same clause) to Apolonia Remigio three children named
Santiago, Eduardo and Alfonso, was made solely by the testator himself, Pablo
Ortiga.
In the petition (Exhibit B) presented to the court by Apolonia Remigio as the widow of
Ortiga, and by Santiago Ortiga y Remigio, for the probate of said will, in which petition
these two parties state that their deceased husband and father, respectively, died on
January 26, 1906, there is not a single phrase that contains an express
acknowledgment on the part of Apolonia Remigio that said Santiago, Eduardo, and
Alfonso were her children, nor is there any such acknowledgment in the agreement of
bases for the partition, nor in the instrument of partition of the estate of the deceased
Pablo Ortiga Chan Chioc, (Exhibit D), and, although in this agreement we find words
"his beloved mother D.a Apolonia Remigio y Capati," "his said mother D.a Apolonia
Remigio," and other references of the same kind, none of them, as may be
understood, were recorded in that document as having been uttered by Apolonia
Remigio herself, but by the respondents, Santiago, Eduardo, and Alfonso, with whom
Apolonia Remigio made that agreement of bases and the aforesaid partition.
From these same documents, however, it is deduced, and proved by the other
evidence, that the named Santiago, Eduardo, and Alfonso lived from infancy in the
home of the spouses Pablo Ortiga and Apolonia Remigio, although Eduardo and
Alfonso were for some time absent in China; that the said Santiago, Eduardo, and
Alfonso were considered as members of the family of Pablo Ortiga and Apolonia
Remigio, and since infancy continued to use Pablo Ortiga's surnamed with the
knowledge and consent of Apolonia Remigio; that the latter assented to the
declaration made by her husband Pablo Ortiga in clause 3 of his said will executed on
April 7, 1902, to the effect that up to then he had had, by his marriage with her, three
children named Santiago, Eduardo, and Alfonso; that she joined with Santiago Ortiga
in the petition presented to the court in order that, by means of the proper probate
proceedings, the said will be given due force and effect; and finally, that she also
joined with the same party, Santiago, and the other two respondents, Eduardo and
Alfonso (she, as the widow of the deceased Pablo Ortiga, and they as the latter's
children as stated in the aforecited clause 3 of the said will) in the distribution and
partition of the estate of said deceased, Pablo Ortiga, she receiving the part that
pertained to her as community property of the conjugal partnership between herself
and the decedent, and the other three the property to which they were entitled as their
heirs instituted by the said Pablo Ortiga in his will.
EVIDENCE
But as against all these acts of Apolonia Remigio, some of them positive and others
of tolerance, and in open opposition to them, is the clear, express, and definite
declaration made by her some time prior to her death, in the second clause of her will
executed on August 12, 1911, transcribed at the beginning of this decision. In that
clause she declared that out of her marriage to Pablo Ortiga she had had two
children, a boy and a girl, named Candido and Dorotea, who died soon after birth,
and that then, that is, on the date of the execution of the will, she had no ascendent or
descendent of any kind, and that, although in the will executed by her husband on
April 7, 1902, it was recorded that the parties named Santiago, Eduardo and Alfonso
were his children had in his marriage to her, the testatrix, such statement was not
true, as could be proven by the means which she left in the hand of the person whom
she instituted in her will as her heir.
As said will of Apolonia Remigio was probated by the Court of First Instance of
Manila, it is, of course, a proven fact that the testatrix was sane and had the full and
complete use of her faculties when she made that declaration which is an express
and definite rectification of the acknowledgment that might be implied by those acts
and the statements which, in connection with them, Apolonia Remigio had previously
made, whereby she gave it to be understood that she acknowledged Santiago,
Eduardo, and Alfonso Ortiga as her children a rectification intended, as stated by
the testatrix herself, to set forth the truth, not to deprive these three parties of the
property which had already been awarded to them as the lawful heirs of the deceased
Pablo Ortiga, as shown by the fact of her having, in the fourth clause of her will,
requested, recommended and ordered that her testamentary executors should not
bring any action whatever against her husband's children by reason of the property
which was unduly awarded to the latter by their appearing to be her said deceased
husband's legitimate children a recommendation and order which she also made
to heir and legatees, repeating, in the fifteenth clause of her will, to the first, that she
was not to question the alleged filiation of Santiago Mora Ortiga, Alfonso Ortiga, and
Eduardo Ortiga, nor bring any action whatever against them or their heirs on account
of the property and businesses which they had unduly received out of the estate of
Pablo Ortiga Chan Chioc, for, out of respect for the latter's memory, she had always
desired then and would always desire that there be peace. But she also stated in the
same will that, should these three persons or any of them institute any legal
proceedings to attack her will or should they commence any legal action, either on
account of the will or of her property, the request, recommendation and command
aforementioned were forthwith withdrawn and annulled and her heir and testamentary
executors should have liberty of action in that respect.
Two questions, then, have been raised by that rectification and by the appeal
interposed in these proceedings by Apolonia Remigio's heir.
16 | P a g e

The first one is whether, in view of these acts of Apolonia Remigio and granted that
they must be considered as an acknowledgment on her part that the respondents
Santiago, Eduardo, and Alfonso Ortiga are her children, such rectification should be
admitted.
It is true that the supreme court of Spain, in its decision of January 5, 1900 (quoted by
respondent's counsel in their brief), in deciding an appeal in cessation interposed by a
woman who sought the annulment of an order by which another woman was declared
to be the heir of a certain title of nobility that had belonged to appellant's deceased
husband, which other woman had been acknowledged by their natural daughter who
was afterwards legitimized by the subsequent marriage of her parents an
acknowledgment which was subsequently denied by the appellant by rectifying the
one she had previously made declared in one of its findings that:
The acknowledgment of a child as a natural child, by the presumed parents, who prior
or subsequent to such acknowledgment contract marriage, vest the child with the
character and consideration of a legitimate child for all the legal effects that appertain
to legitimate children, and, on the assumption of such as acknowledgment, there is no
provision, either in our ancient or our modern laws, which authorizes any arbitrary
rectification of such an acknowledgment, to the child's prejudice.
But in is undeniable that there is no provision in any of the laws now in force which
prohibits the father or mother who recognized a person as their natural or their
legitimate child, to make, by any of the means prescribed by law, such a rectification,
that is, to deny to said person the previously acknowledged status or quality of child.
In order that a rectification of this nature may be made, it is not necessary that there
be a legal provision to authorize it, for the reason that the law cannot foresee the
cases where, by reasons of the ineluctable dictates of conscience of the necessity of
safeguarding some right, such a rectification may be necessary and just.
This the supreme court of Spain, in the decision just cited, recognized in holding, also
in the finding which follows the one hereinabove transcribed, that:
EVIDENCE
When such a status exists, the investigation of the paternity of a person who has a
child that enjoys such status does not appear to be allowed, unless it is pursued in
order clearly to show that the legitimatized child does not reunite the relative
conditions that the law requires in order that he may be so legitimatized, or has not
the absolute condition of his not being the child of the person who acknowledged him,
or because such person could not have begotten him, or because the child is the
child of a third person, for otherwise, in view of the mystery surrounding paternity and
the alleged presumption of its certainty, established in law by the ground of the
acknowledgment or the possession of the status of acknowledged child, against such
presumption no other can lawfully prevail, however strong it may appear.
And this is precisely the point in question in this case. Apolonia Remigio, widow of
Pablo Ortiga, during the life of her husband consented that the three respondents,
Santiago, Eduardo, and Alfonso, should bear her husband's surname and live with
her and her husband under the same roof; and while there she considered them and
treated them as members of the family, and even as her children. When they were
instituted the heirs of her husband, Pablo Ortiga, in the will executed by the latter on
April 7, 1902, and when this testator declared therein that the said Santiago, Eduardo,
and Alfonso were his children had in his marriage with the petitioner, the latter made
no opposition to that statement and consented that they, as such alleged children of
the deceased Pablo Ortiga, should share in the latter's estate, in accordance with the
mandates of his will, and she joined with them in the partition of the estate left by the
said deceased, out of which she received for herself, by reason of said partition and
the previous agreement she had with said alleged children, the part of the estate that
pertained to her as community property. This property would certainly have fallen to
her and she could not have been deprived of it, even though the deceased Pablo
Ortiga had not made in his will the statement aforementioned that the said Santiago,
Eduardo, and Alfonso were legitimate children of his had by her, and although they
had not been his instituted heirs.
But when Apolonia Remigio saw her end approaching, she did not wish the truth to
remain hidden. Consequently, in the second clause of her will of the date of August
12, 191, she declared that the statement made by her husband in his will of April 7,
1902, to the effect that the parties named Santiago, Eduardo, and Alfonso were the
issue of his marriage to her, was not true, and she further declared that this could be
proven and that she left the means for this purpose in the hands of the persons whom
she instituted her heir in her will, and in this same instrument, on changing her
testimony executor and her heirs not to bring any action whatever against the three
children above named, nor against their heirs, by reason of the property and
businesses which they had unduly received out of the estate left by her husband,
Pablo Ortiga, she explained the reason of the silence she had maintained by saying
17 | P a g e

that out of respect to the memory of her husband she had always desired, did then
desire and would always desire that there be peace an explanation which clearly
conveys the understanding that while her husband Pablo Ortiga was living, she, out of
respect and deference to him and in order not to disturb the peace of the family,
consented that the aforenamed Santiago, Eduardo, and Alfonso should be considered
by her husband as his children and should bear his surname, and she herself
considered and treated them as such.
The proofs place by Apolonia Remigio before her death in the hands of her heir, the
petitioner Gorgonia Remigio, as she offered to do in her will, have attained the
purpose for which they were intended, to wit, of fully proving not of that Santiago,
Eduardo, and Alfonso did not possess the absolute condition of being Apolonia
Remigio's children, but still further that they were the children of another certain,
determinate woman.
So that the rectification made by Apolonia Remigio in her said will, of the
acknowledgment that might be implied form the acts, previously mentioned, some of
them positive and others of tolerance, performed by her in respect to the said
Santiago, Eduardo, and Alfonso should be allowed, in accordance with said decision
of the supreme court of Spain, of January 5, 1900 quoted by respondents' counsel.
Said rectification being allowed, the second and only question left to be decide is
whether it was proven in the course of these proceedings that Santiago, Eduardo,
and Alfonso Ortiga are really children of the testatrix Apolonia Remigio, or, what
amounts to the same thing, whether they issued from her womb.
The means established by law to oblige the mother to acknowledge the natural child,
that is, the child who claims really to be her own, are the same as those prescribed to
oblige the father to make such acknowledgment. (Civ. Code, arts. 135, 136.) But, with
respect to the mother, another means is provided in paragraph 2 of the second of the
articles cited, and is applicable "when the fact of the birth and the identity of the child
are duly proven." The reasons why the law provides this last means of proof with
respect to the mother is, undoubtedly, because the mother is always known, and, as a
French jurist has said, "in regard to the investigation of maternity, it is not a question
of penetrating nature's mysteries; childbirth and the identity of the child are two
positive facts which can be proven."
EVIDENCE
As the respondents Santiago, Eduardo, and Alfonso Ortiga, in their petition of January
8, 1913, made the claim which gave rise to these proceedings, that, out of the estate
of Apolonia Remigio, there should be alloted to them the part thereof that pertained to
them as the said decedent's sole children and forced heirs, as they so stated in that
petition; and as they then knew that the said Apolonia Remigio had denied them that
capacity, in her will of August 12, 1911, and that, for this reason, they had not been
instituted therein as said decedent's heirs, therefore, they should have fully proven
that they were her children, availing themselves with this object in view of all the
evidence allowed by law for the purpose, especially that above indicated, the fact of
the childbirth by Apolonia Remigio and that of their having been born of her womb in
the respective childbirth, which would have been the clearest and best evidence of
the filiation claimed by them in their said petition made for the purpose stated.
However, after a careful examination of the evidence adduced by respondents none
is found, as we have seen before, that refers specially and categorically to the fact of
any of them having been born of the womb of Apolonia Remigio, or in other wombs,
that she gave birth to any of them. Nemesio Corpus, in relating the fact that, while he
was at the house of Apolonia Remigio and her husband, Pablo Ortiga, the former
spoke to him of the baptism of "the child," and that the child was baptized on October
12, 1813 (he must have meant 1883), did not say that the child that was baptized on
that date, that is, Eduardo Ortiga Chan Chioc, was brought to the world by Apolonia
Remigio; on the contrary, this witness stated that Apolonia did not tell him whose child
it was. Aniceta Novenario, who, as she stated, was in the house of the married couple
Ortiga and Remigio when Eduardo was born, did not say of what woman he was
born, did not say that Apolonia Remigio gave birth to him. Nor did Julia Reyes, who
went so far as to affirm that when she went to live in the house of Capitana Apolonia
the latter was pregnant, say, either who it was that Apolonia brought into the world as
a result of her pregnancy, nor that the child who was born on that occasion was
Eduardo, whom this witness said she had known since his birth. And it is all the more
remarkable that these two last mentioned witnesses should have said nothing with
respect to the specific fact of Apolonia Remigio's having, on the occasion to which
they refer, given birth to Eduardo or to some other of the respondents, especially
since, as these same witnesses testified, they were both living in Apolonia Remigio's
house and could have seen with their own eyes Apolonia Remigio's childbirth and
could have been present thereat, had it actually taken place, and, by means of their
testimony they could have identified the person who was born in that alleged
childbirth.
18 | P a g e

As these are the only witnesses presented by respondents in their endeavor to prove
that the parties named Santiago, Eduardo, and Alfonso were really children of
Apolonia Remigio, that is, were born of her womb; and as they submitted no proof
with respect to said details, other than that herebefore mentioned, they have thereby
shown themselves unable to prove those facts, so important for a successful issue of
their claim.
On the other hand, petitioner has satisfactorily proven in the first place, that Santiago
Ortiga, when he was three years old, was bought in China by the spouses Pablo
Ortiga and Apolonia Remigio in the year 1875 when these latter were in that country
whither they had gone with their native servant Maria de la Cruz in October of the
same year, as shown by the certificate Exhibit 5; and the money to pay the child's
father and mother passed through this servant's hands, as she herself testified. This
child was then brought to Manila by said spouses and lived in their home. Also those
who had dealing with Ortiga and Remigio and lived in the same house knew that this
child had been bought in China. It cannot be gainsaid that such was the origin of
Santiago Ortiga, inasmuch as, on his being baptized in the Santa Cruz Church of this
city, on July 25, 1877, that is two year after he had been bought in China, he was
given the name Santiago Mora Ortiga, and entry was made in the respective register
(Exhibit 3) that he was the son of pagan parents, natives of Chincang, China. Finally,
that he was not the son of Pablo Ortiga and Apolonia Remigio was virtually
corroborated by the fact that, on Pablo Ortiga's executing the first will on May 23,
1883 (Exhibit 4), when he already had in his house the child who was baptized under
the name above mentioned, he declared therein that he was then lawfully married to
Doa Apolonia Remigio and had had during their marriage two children, Candido and
Dorotea, who died in infancy, but he made no mention of the said Santiago as being
of his children. However, he left a legacy of P2,750 to his nephew named Santiago
Chan Bung Quin, that is, to Santiago Ortiga, as appears from the certificate Exhibit 6,
in which, after setting forth that he contracted a second marriage on January 4, 1903,
he appears under the name Santiago Mora Ortiga Chan Quin, a Chinese Christian,
native of Chincang, China.
In the second place, it had also been prove by the petitioner that the parties named
Eduardo Ortiga and Alfonso Ortiga were born of a young woman named Vicentica
Lopez who lived in the very same house on Calle Dasmarias of the spouses Pablo
Ortiga and Apolonia Remigio, as the step-daughter, that she was, of this latter. The
testimony of Severina San Jose, a servant of said spouses, whom she began to serve
when she was still very young and in whose house she lived, is very clear and
conclusive; so is also that of Marcela Remigio, a niece of Apolonia, who also from
infancy lived in the same house, in company with her aunt. The same may be said of
the testimony of Maria de la Cruz, an old servant of the house. The two last
EVIDENCE
mentioned witnesses testified that they saw Vicentica Lopez give birth to Eduardo in
said house, and the first witness also said that she saw Vicentica Lopez give birth to
Alfonso in that house. These three witnesses explained in a satisfactorily manner how
these fact had come to their knowledge, that is, why they knew what they testified to,
and there is no reason whatever to doubt their veracity, for they were in a situation to
have learned of the intimate family affairs of Pablo Ortiga and Apolonia Remigio, as
they lived with this couple in the same house where Vicentica Lopez also lived,
according to the statements made by these witnesses and by two others named
Arcadio Remigio and Paz Lim, the first of whom is a brother of Apolonia.
The witnesses Aniceta Novenario and Julia Reyes, presented by respondents,
denied, however, that they had seen and known Vicentica Lopez in the house of Calle
Dasmarias, and the second of them likewise denied that she had known Arcadio and
Marcela Remigio previous to the time she testified, and that the latter was living in
that house when this witness took care of the child Eduardo. These tow witnesses
also stated, when shown the photographs Exhibits 1 and 2, that they did not know the
woman portrayed therein.lawph!1.net
But, to determine the credibility of said witnesses, it must be taken into account that,
as Arcadio Remigio and Marcela Remigio were, respectively, a brother and a niece of
Apolonia Remigio, it is incredible that they should not have gone to the latter's house,
and that, if Julia Reyes lived in the same house, she should not have seen them
there, and that these same two witnesses should not have known Vicentica Lopez,
whose existence and presence in said house was testified to by all the petitioner's
witnesses; and, in the second place, besides the testimony of these latter, we have
the statement made by the petitioner's witness, Paz Lim, who lived in the house of
Apolonia Remigio on Calle Dasmarias, to the effect that she there knew Aniceta
Novenario and Vicentica Lopez and saw that these latter treated each other on
intimate terms; and in the third place, one of respondents own witnesses, N.T.
Hashim, testified that the aforementioned Arcadio Remigio, Marcela Remigio and Paz
Lim were always in Apolonia Remigio's house, and that they ate and slept there. This
statement, having been made by one of respondent's witnesses, is in itself sufficient
to show what little credence can be given to the testimony of their tow witnesses,
Aniceta Novenario and Julia Reyes.
As, according to rules of law repeatedly affirmed, a baptismal certificate attest the fact
which gave rise to its execution, as well as the date of the latter, that is, it is an
attestation of the administration of the sacrament on the date mentioned therein, but
not of the veracity of the statements therein contained with respect to the relationship
19 | P a g e
 EVIDENCE
of the person baptized, the one exhibited by respondents (Exhibit E), relative to
Eduardo Ortiga, does not prove that the latter is a legitimate son of Apolonia Ortiga
and Pablo Ortiga, as recorded in said document, and so much the less credence
should be placed in said certificate, with respect to this particular matter of the
relationship of Eduardo with Pablo Ortiga and Apolonia Remigio, since it is also set
forth in the baptismal certificate, petitioner's Exhibit 7, that Pablo Dalmacio Ortiga is
the legitimate son of these same spouses Pablo Ortiga and Apolonia Remigio,
whereas it was proven that the child known under that name, that is, Pablito, was also
one of the children born of Vicentica Lopez while she lived in the home of those
spouses on Calle Dasmarias, and this child was born, not in that house, but, on
account of some trouble Pablo Ortiga then had with his wife, Apolonia Remigio, in
another house which Pablo had in Paco.

In conclusion, respondents have not proved that they are the children of Apolonia
Remigio, or, in other words, that they were born of her womb; the presumption that
they were, based upon her various acts, some of them positive and others of
tolerance, on the assumption that such acts constituted an acknowledgment of such
filiation, has been completely negatived by the evidence adduced by petitioner that
one of the respondents, Santiago Ortiga, was bought in China by the spouses Pablo
Ortiga and Apolonia Remigio, he being the son of pagan parents, natives of
Chincang, China, and that the other two appellees, Eduardo Ortiga and Alfonso
Ortiga, were born of a woman other than said Apolonia Remigio. The presumed
acknowledgment, therefore, has no force or value for the object sought by the
respondents in these proceedings.

By reason of the foregoing, we revoke the order appealed from and declared that the
parties named Santiago Ortiga, Eduardo Ortiga, and Alfonso Ortiga are not entitled to
share in the estate of the deceased Apolonia Remigio, as requested by them in their
petition of January 8, 1913. No special findings is made with respect to the costs in
this instance. So ordered.

G.R. No. L-22378 June 29, 1968

CLEMENTE FORTUS, ET AL. vs. ROSARIO NOVERO and JULIA T. FORTUS

20 | P a g e

Appeal by certiorari from the decision of the Court of Appeals in G.R. L-22378,
affirming the one rendered by the Court of First Instance of Lipa City in its Special
Proceedings No. 610.
The proceedings for the summary settlement of the intestate estate of the late Ciriaca
Angelo, who died sometime in the year 1930 in the municipality of Rosario, province
of Batangas, were commenced by Rosario Novero who claimed to be an illegitimate
child of the deceased Victorino Fortus (Ciriaca's grandson), born on April 4, 1922 out
of Victorino's alleged illicit relations with Patricia Novero. Her claim was opposed, on
the one hand, by Julia T. Fortus, the surviving widow of Victorino, and on the other, by
Clemente, Zoilo, Faustina, Catalino, Pio, Demetria, Francisca and Roman, all
surnamed Fortus, hereinafter referred to as the Fortuses, who claimed to be half
brothers and sisters of said deceased. After the required notice by publication and
subsequent trial the aforesaid Court of First Instance rendered judgment as follows:
WHEREFORE, judgment is hereby rendered dismissing the claims of petitioner and
the Fortus brothers and sisters to succeed to the estate left by Victorino Fortus, and
declaring Julia T. Fortus as the sole heir and the absolute owner of all the properties
left by Victorino Fortus. Julia T. Fortus is hereby ordered to reimburse Felicidad Pea
Gonzales the amount of P1,303.04. No pronouncement as to cost is hereby made.
Rosario Novero and the Fortuses appealed to the Court of Appeals who in due time
rendered the appealed decision. As the first did not appeal, said decision must now
be deemed final, as far as she is concerned. The Fortuses, however, interposed the
present appeal by certiorari and urge Us to reverse the appealed decision claiming
that the Court of Appeals committed the following errors:
The trial court erred in finding that petitioners' parents, Fermin Fortus and Jacoba
Aguil, were not legally married:
(1) By holding that the legal presumption of marriage was overcome by Exhibit 5 and
by the testimony of Clemente Barbosa;
EVIDENCE
(2) By construing the certification Exhibit 5 without reference to Act No. 3022 and the
explanatory testimony of David de Jesus, Jr. of the Bureau of Public Libraries;
(3) By holding that Exhibits 2, 4, 9-B and 9-C did not constitute a proof of marriage
between Fermin Fortus and Tacoba Aguil, much less a proof of the legitimacy of the
oppositors Fortuses; and
(4) By not applying the law and applicable decisions of the Supreme Court to the
undisputed facts of the case.
The above assignment of errors make it obvious that the only issue involved in this
appeal is one of fact: whether or not Fermin Fortus and Jacoba Aguil were legally
married. Indeed, at page 8 (last paragraph) of their brief the Fortuses openly admit
that "the sole question in this case" is "whether petitioners' mother, Jacoba Aguil, was
legally married to Fermin Fortus". The Court of Appeals' (1) holding that the legal
presumption of marriage was overcome by Exhibit 5 and by the testimony of
Clemente Barbosa"; (2) said court's "construing the certification Exhibit 5 without
reference to Act No. 3022 and the explanatory testimony of David de Jesus, Jr., of the
Bureau of Public Libraries"; (3) its "Holding that Exhibits 2, 4, 9-B and 9-C did not
constitute a proof of marriage between Fermin Fortus and Jacoba Aguil, much less a
proof of the legitimacy of the oppositors Fortuses" involve nothing more than
evaluation of evidence and are but the reasons that led said court to declare as a fact
that Fermin and Jacoba were never married. The evaluation made by the Court of all
or part of the evidence of record; its finding of fact that the persons just named
were never legally married , even if wrong, may not now be reviewed by Us, the
present being an appeal by certiorari. We have held in a long line of cases that in
appeals of this nature We pass upon and decide only questions of law (Cabrera vs.
Lopez, 84 Phil. 834-5; Pacheco vs. Arro, 85 Phil. 505-15; Celesto vs. People, G.R. L-
3935, Dec. 21, 1951; Traders, etc. vs. Golangco G.R. L-6442, Sept. 21, 1954). In the
recent case of Jesusa Lacson Vda. de Arroyo vs. Beaterio etc., we held:
According to the decision of the Court of Appeals, the lone assignment of error
submitted by the appellants in their brief argued "for the sufficiency of plaintiffs-
appellants' evidence as a fair and reasonable basis for restinga finding that the
donation in question is inofficious." It is clear, therefore, that the only issue submitted
to said court, and by it decided, was purely one of fact.
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In this connection it is a matter removed from dispute that We can review decisions of
the Court of Appeals only on errors of law, its findings of fact being conclusive.
A question of law has been declared as one not calling for the examination of the
probative value of the evidence presented by the parties (Goduco vs. Court of
Appeals, et al., (G.R. No. L-17647, February 28, 1964; Air France etc. vs.
Carrascoso, et al., G.R. No. L-21438, September 28, 1966). Moran's Comments on
the subject (Rules of Court, Volume II, 1963 Edition, p. 412) are to the effect that "For
a question to be one of law, it must involve no examination of the probative value of
the evidence presented by the litigants or any of them
In a case similar to the one at bar (Lim vs. Calaguas, G.R. No. L-2031, May 30, 1949,
40 O.G., 11 Supp. 247, 83 Phil, 796) We held:
Our review should be confined to the facts and circumstances found by the Court of
Appeals. And we agree that such facts and circumstances in this case do not sustain
the theory of the appellant. Indeed it is seriously to be doubted whether we could
reverse the conclusion of the appellate court to the effect that those facts and
circumstances are not "enough evidence" to show clearly and beyond doubt that the
parties intended the contract to be a mortgage instead of a conditional conveyance.
That conclusion is obviously ONE OF FACT, not a bit different from the verdict of a
jury in a murder trial that the circumstantial evidence presented by the prosecution
has proved, or has not proved that the accused had killed the deceased.
In disputes of this nature, the pivotal inquiry is: Do the circumstances show beyond
doubt that the parties made a contract different from the express terms of the
document they signed? Is the evidence clear, convincing and satisfactory that the
deal was a mortgage instead of a sale with pacto de retro? (Cuyugan v. Santos, 34
Phil. 100; Tolentino v. Gonzales, 50 Phil. 558). That query necessarily invites
calibration of the whole "evidence", considering mainly the credibility of witnesses,
existence and relevancy of specific surrounding circumstances, their relation to each
other and to the whole and the probabilities of the situation. Consequently the
question must be deemed factual for the Appeals' Court to solve.
EVIDENCE
In the United States where questions of law are for the jury, it is held that if the
question whether a given transaction amounts to a conditional sale or mere mortgage
depends upon written instruments alone, it is a question for the court; but if
extraneous evidence is required or received for the purpose of ascertaining the real
intention of the parties, the question is for the jury (41 C.J. 361 citing many cases,
particularly Bogk v. Gasset, 149 U.S. 17, Howard v. Kopperl, 74 Tex. 194; 5 SW 627
and Kinnert v. Strong, 103 Wis. 70; 79 N.W. 32) and "an issue involving determination
of the ... intent of a person or persons with respect to acts done by them is a question
of fact for the jury. (64 C.J. 365). emphasis ours.
In Rapatan vs. Chicano G.R. No. L-13828, February 25, 1960, We likewise said:
But the trial court did not merely dismiss the complaint, proceeded to receive
evidence on the counterclaim of defendants. In this respect the trial court said "With
respect to the counterclaim alleged in the amended answer of the said defendants,
the preponderance of evidence discloses that the imputations contained in the
complaint that the late Escolastico G. Chicano, husband of Coleta de Chicano and
father of Elpidio Chicano had acquired the land in question from the plaintiffs through
fraud and that the said defendants "taking advantage of the ignorance of the plaintiffs
herein managed fraudulently to transfer the tax declaration of the land in question in
the name of the plaintiffs to the name of defendants, are false, malicious and
defamatory to the memory of the late Escolastico Chicano and the reputation of his
heirs, Elpidio Chicano and Coleta de Chicano, thus causing the latter mental anguish,
besmirched, reputation, wounded feelings, moral shock and similar injuries," and
accordingly, ordered plaintiffs to pay the sum of P5,000.00 as moral damages.
Considering that the foregoing finding is a question of fact which involves an
evaluation of the evidence and the same is now assigned as error, we are of the
opinion that this case comes within the appellate jurisdiction of the Court of Appeals.
We have also held, however, that, in extreme cases calling for the exercise of our
supervisory jurisdiction, We may disturb or reverse any particular finding of fact of the
Court of Appeals should We find it to be arbitrary or whimsical or entirely outside the
issues raised by the parties in their respective pleadings.
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In De Luna vs. Linatoc, 74 Phil. 15, answering our own question: "When may the
Supreme Court review such deduction of fact based on uncontroverted or plain
evidence?", We said:
... Only when reasonable men readily agree that the inference is manifestly mistaken,
absurd or impossible. If however, fair-minded men may differ on whether or not the
main conclusion of fact is rightly drawn from the undisputed evidence, the Supreme
Court should not, as a rule, inquire into the discretion exercised by the Courts of
Appeals. The instant case is of the latter category, because the findings of the Court
of Appeals that there has been no deceit may or may not be persuasive, according to
one's own reasoning after reading the decision and resolution of that court. It cannot
be said that fairminded men will not differ in this case on the existence of fraud.
Then, in Evangelista vs. Alto Surety and Insurance Co., Inc., speaking through the
present Chief Justice, We said:
Considering, therefore, that neither the pleadings, nor the briefs in the Court of
Appeals, raised an issue on whether or not copies of the writ of attachment and notice
of attachment had been served upon Rivera; that the defendants had impliedly
admitted in said pleadings and briefs, as well as by their conduct during the entire
proceedings, prior to the rendition of the decision of the Court of Appeals that
Rivera had received copies of said documents; and that, for this reason, evidently, no
proof was introduced thereon, we are of the opinion, an so hold that the finding of the
Court of Appeals to the effect that said copies had not been served upon Rivera is
based upon a misapprehension of the specific issues involved therein and goes
beyond the range of such issues, apart from being contrary to the aforementioned
admission by the parties, and that, accordingly, a grave abuse of discretion was
committed in making said finding, which is, furthermore, inaccurate.
In connection with all the foregoing, the following facts are either undisputed or fully
borne by the evidence.
Ciriaca Angelo was the owner of the parcel of land located in barrio Alpaye, Rosario,
Batangas, with an area of approximately 20,102 sq.m., subject of the petition for
summary settlement mentioned at the beginning of this decision. It was registered in
her name under Original Certificate of Title No. 370. She had only one child, a
EVIDENCE
daughter by the name of Crisanta Ilagan, married to Fermin Fortus. This couple had
an only son, the deceased Victorino Fortus. As Crisanta Ilagan predeceased her
mother, Ciriaca Angelo, who died intestate sometime in the year 1930, the property
aforesaid passed on to Victorino Fortus as the lone surviving heir of his grandmother.
It is a fact, however, that he never caused the original certificate of title covering the
property to be cancelled and to have another issued in his name.
It is not disputed that Victorino Fortus and Julia T. Fortus were husband and wife and
that up to Victorino's death on January 8, 1954 they were childless. It is similarly
admitted that at the time of his death, Victorino had been estranged from his wife for a
number of years and had been living maritally with another woman named Felicidad
Gonzales Pena. Out of this illicit relation, however, no issue was begotten.
That the property is now covered by transfer certificate of title No. 6831 issued by the
Registrar of Deeds of Batangas is due to the fact that upon Victorino's death, his
widow, Julia T. Fortus, executed the required affidavit of extra-judicial summary
settlement and had it registered in accordance with law. By reason thereof, original
certificate of title No. 370 was cancelled and the transfer certificate of title already
referred to was issued in Julia's name. In this connection, the Fortuses (page 7 of the
their brief) make the claim that in her affidavit in connection with the extra-judicial
settlement of the estate of Ciriaca Angelo, Julia had "falsely represented the original
owner Ciriaca Angelo to be her grandmother." While this alleged falsehood is
unsubstantial, We venture the observation that Julia's statement contained no real
falsehood, for, indeed, Ciriaca was the grandmother of her husband and therefore her
own grandmother-in-law.
As Rosario Novero did not appeal from the decision of the Court of Appeals, it is now
proper to say something only about the claim of the Fortuses that they are
Victorino's legitimate half-brothers and sisters, being the legitimate children of Fermin
Fortus (father of Victorino) and Jacoba Aguil who were allegedly married sometime
between 1902 and 1905 before Isabelo Bolanos, at that time justice of the peace of
the municipality of Rosario, Batangas.
As correctly held by the court of origin (Court of First Instance of Lipa City) it was
incumbent upon the Fortuses to prove their affirmative allegations that Fermin and
Jacoba were legally married and that they, the Fortuses, are their legitimate children.
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According to the record, the presentation of the evidence of the parties began before
Judge Conrado Vasquez; was later continued before Judge Luis B. Reyes; and when
both were transferred to other judicial districts the hearings were continued before
Judge Damaso S. Tengco, who penned the decision of the court. These
circumstances are here stated to show that Judge Tengco cannot be said to have
rendered his decision relying only upon the transcript of the testimonial evidence.
In connection with the vital question of fact involved, His Honor's decision says:
Are the Fortuses legitimate half-brothers and sisters of Victorino Fortus? The property
involved in this proceeding came from Ciriaca Angelo, and passed to Victorino Fortus
through his mother Crisanta Ilagan, daughter of the former. The Fortus brothers and
sisters are children of Fermin Fortus, father of Victorino Fortus, and a certain woman
by the name of Jacoba Aguil. The Fortuses maintained that the petitioner not being an
illegitimate daughter of Victorino Fortus, they are entitled to inherit the one-half
portion of the property left by their deceased brother, Victorino Fortus. Their right is
based upon their assertion that their father Fermin Fortus and Jacoba Aguil were
legally married.
The Fortuses brothers and sisters failed to present a valid document of marriage
between Fermin Fortus and Jacoba Aguil. They maintained that it was lost during the
last global war. In many cases it has been observed by this Court that a party who is
claiming a right by virtue of a document usually finds it convenient to allege that the
said document was lost during the last global war, when in fact and in truth there was
no such document. The instant case is one of the many cases wherein a party allege
to have lost a document which never existed.
Attempts were made by the Fortuses brothers to lay the basis for the introduction of a
secondary evidence as to the existence of a marriage contract and/or celebration
thereof, but said evidence did not satisfy the requisites required by law. Section 51,
Rule 123 of the Rules of Court, provides that when the original writing has been lost
or destroyed, upon proof of its execution and loss or destruction, its contents may be
proved by a copy or by a recital of its contents in some authentic document, or by
collection of witnesses. The question at issue now is, were the oppositors Fortuses
EVIDENCE
able to prove the due execution of the alleged marriage contract between Fermin
Fortus and Jacoba Aguil or to present satisfactory secondary evidence to that effect.
The testimony of David de Jesus, Jr. of the Division of Archives, National Library,
Manila, who identified Exhibit "5" clearly established that there existed no records of
such marriage. This statement was corroborated by Clemente Barbosa, a clerk in the
office of the Municipal Treasurer of Rosario, Batangas that there were no records of
such marriage from 1902 to 1922 of the Municipality of Rosario, Batangas. So that
the conclusion is now inevitable that when the pre-war records were burned as per
Exhibit "7", the imaginary record of marriage of Fermin Fortus and Jacoba Aguil could
not have been included, as it never existed at all.
The testimony of Jacoba Aguil which is purely self-serving and which was
contradicted by a sincere witness, Felicidad Blay, cannot serve as a basis to establish
the celebration of the marriage in question. Neither could said marriage be
established by the contradicting statements of Clemente Fortus and Pio Fortus. Both
claimed to have seen the marriage contract. Clemente Fortus said that it was written
in Tagalog while Pio said it was written in Spanish.
The Court was at a loss to understand who of them was really sincere. Considering
that both Clemente and Pio were presented as material witness to prove the
existence of the alleged marriage contract and the fact that they materially
contradicted each other on the substantial contents of the said contract, the
conclusion is imperative that neither one of them should be believed. Viewed from
these findings, the Court could not sustain the fact that secondary evidence has been
established by the Fortuses brothers and therefore there can be no basis for their
claim of legitimacy.
Disregarding the principle of primary or best and secondary evidence, still the Court
believes that the other testimonial evidence as well as documentary evidence
adduced do not establish their claim. Jacoba Aguil's testimony was replete with
inconsistencies and impossibilities. She could not remember on what part of the page
of the marriage contract she placed her thumbmark; that she placed her thumbmark
only once, which is rather contrary to the practice that it should be more than one;
that she could not state whether the alleged marriage contract was not in longhand or
typewritten or printed; that she never went to Batangas, Batangas, and knew nobody
there, contrary to the statement given by Felicidad Blay who has no false motive to
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tell a lie and also found to be a sincere witness; that she never saw again the
marriage contract she allegedly thumbmarked since they were married, (Clemente
and Pio declared though that they saw it in the aparador and also saw that the
aparador together with the controversial marriage contract were burned during the
Japanese occupation) and that it was lost only during the Japanese time. By all these
testimonies Jacoba Aguil has failed to make this Court believe in the existence of her
marriage.
The deposition of Victoriana Guerro was presented. Victoriana Guerro was a relative
of Jacoba Aguil and she could not be expected to be unbiased. Her description of the
celebration of marriage between Fermin and Jacoba was contrary to the existing
procedure prescribed by the then existing marriage law. The marriage law which was
then in existence was general orders No. 68 which took effect on December 24, 1929.
The formalities mentioned by Victoriana Guerro and Jacoba Aguil were the formalities
prescribed in the present law, Act No. 3613, and therefore the conclusion is inevitable
that these witnesses were telling a lie. In the year 1902 or 1903 when the alleged
marriage of Fermin Fortus and Jacoba Aguil was celebrated General Orders No. 68
which was then the law on marriage did not require the contracting parties or the so-
called witnesses or padrinos to sign the marriage contract. What the law then
required only as to the proof of the celebration of marriage was a certificate of the
parish priest or the justice of the peace or judge containing the full names of the
parties, their residence, ages and the consent of the father and mother or guardian
and nothing else. It was only the father who signed a form giving consent to his or her
child of minor age to the contract of marriage. Nothing more was necessary. On this
score that Court believes that the witnesses for the Fortuses brothers and sisters and
the Fortuses themselves made a story which was of their own concoction. In the light
of these findings and observations the Court was of the considered opinion that
Fermin Fortus and Jacoba Aguil were not legally married. And if they were not legally
married, the Fortuses brothers and sisters were illegitimate children and have no right
to succeed to the properties of either Ciriaca Angelo or that of Victorino Fortus. Article
992 of the New Civil Code provides that an illegitimate child has no right to inherit ab
intestato from the legitimate children and relative of his father and mother, nor such
children or relative inherit in the same manner from the illegitimate children.
Exhibit "2" is not an evidence of legitimacy much less of marriage between Fermin
Fortus and Jacoba Aguil. It is a baptismal certificate and it does not serve as proof of
relationship of or filiation of the child baptized. "The record of baptism as a general
rule, in all documents, attest to the fact which give rise to its issue, and the date
thereof, to wit, the fact of the administration of the sacrament on the date stated, but
not the truth of the statements therein made as to the parentage of the child
baptized." (Basa, et al. vs. Arquiza, et al., 5 Phil. 187.) "The aforementioned canonical
EVIDENCE
certificate is conclusive proof only of the baptism administered, in conformity with the
rites of the Catholic Church by the priest who baptized the child but it does not prove
the veracity of the declarations and statements contained in the said certificate that
concern the relationship of the person baptized. Such declarations and statements, in
order that their truth may be admitted, must indispensably be shown by some of the
kinds of proof recognized by law." (Adriano vs. de Jesus, 23 Phil. 353)
Exhibit "4" likewise is not a proof of marriage nor could it be a prima facie evidence of
legitimacy of Roman Fortus, the eighth child of Jacoba Aguil had with Fermin Fortus.
The authority cited by the Fortuses brothers and sisters to wit: Crisolo vs. Judge
Macadaeg, L-7017, promulgated April 29, 1954, is not square on the point, because
while that case was decided under the authority of Act 3753 which took effect on
February 26, 1931, Roman Fortus was born on February 28, 1922, long before the
effectivity of the subsequent law. Even assuming that Act No. 3753 is applicable to
Roman Fortus, it was only a prima facie proof which oppositor Julia T. Fortus had
overcome by satisfactory evidence to the effect that Fermin Fortus and Jacoba Aguil
were never married and hence all of their children are not legitimate brothers or half-
brothers and therefore have no right to inherit from Victorino Fortus under Article No.
992 of the New Civil Code. Likewise, Exhibit "9-B" and "9-C" could not support the
claim that Fermin Fortus was married to Jacoba Aguil, because even granting that
Fermin Fortus got married, the name Jacoba Aguil was not mentioned as the name of
the woman who became his wife. Of all the children of Jacoba Aguil, it was only the
baptism and/or birth certificate of Roman Fortus that was presented. The status of
Catalino, Demetria, Clemente, Zoilo, Pio and Francisco Fortus were left out.
The brief filed by the Fortuses in the Court of Appeals makes the following
assignment of errors:
The trial court erred in finding that petitioners' parents, Fermin Fortus and Jacoba
Aguil, were not legally married:
(1) By holding that the legal presumption of marriage was overcome by Exhibit 5 and
by the testimony of Clemente Barbosa;
(2) By construing the certification Exhibit 5 without reference to Act No. 3022 and the
explanatory testimony of David de Jesus, Jr. of the Bureau of Public Libraries;
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(3) By holding that Exhibits 2, 4, 9-B and 9-C did not constitute a proof of marriage
between Fermin Fortus and Jacoba Aguil, much less a proof of the legitimacy of the
oppositors Fortuses; and
(4) By not applying the law and applicable decisions of the Supreme Court to the
undisputed facts of this case.
The above assignment of errors makes it obvious that the only issues submitted to
the Court of Appeals were factual, namely, whether or not Fermin Fortus and Jacoba
Aguil were ever married, and whether or not the Fortuses had established their
contention by at least preponderance of evidence. That the first question is one of fact
need not be demonstrated the same being obvious. It is likewise beyond doubt that
the second issue is factual, because it involves evaluation of the conflicting evidence
presented by the contending parties.
Considering the nature of the issues before it, the Court of Appeals made a thorough
review of the evidence in the light of the respective contentions of the parties, and
thereafter said the following:
The Fortuses brothers and sisters, who are one of the oppositors in this case, claimed
that they were all the legitimate half-brothers and sisters of the deceased Victorino
Fortus as they were the legitimate children of Fermin Fortus who is also the father
of Victorino Fortus and Jacoba Aguil who were legally married between 1902 and
1905 before Isabelo Belenos, then the Justice of the Peace in the poblacion of
Rosario, Batangas, in the house of Victoriana Guerro that after the solemnization of
the marriage the couple was issued marriage contract but the same was burned
during the Japanese occupation. For this purpose, to prove the existence of marriage
between Fermin Fortus and Jacoba Aguil as well as the unavailability of the record of
births of their children the Fortuses a certification to the effect that all pre-war
public documents in the municipality of Rosario, Batangas, were burned (Exhibit 7)
was offered as evidence. Thus, these oppositors tried to establish by secondary
evidence the weight and credence of which we shall discuss later on the
existence of the marriage between Fermin Fortus and Jacoba Aguil whom they
alleged lived together as husband and wife for almost 30 years and were never
separated during their marital union.
EVIDENCE
We now come to the Fortuses brothers and sisters who all claim to be the half-
brothers and sisters of Victorino Fortus. There seem to be no dispute on the evidence
on record that the Fortuses were the children of Fermin Fortus and Jacoba Aguil. The
only question to be passed upon in this instance is whether or not the spouse Fermin
Fortus and Jacoba Aguil were legally married to entitle their children to successional
rights and inherit from their alleged brother Victorino Fortus. This is so because Article
992 of the New Civil Code provides that an illegitimate child has no right to inherit ab
intestato from the legitimate children and relative of his father and mother nor such
children or relative inherit in the same manner from the illegitimate children. The
Fortuses maintained that their parents were legally married, but that the marriage
certificate issued to said couple was burned during the second global war. Thus, they
tried to establish by secondary evidence the existence of said marriage contract or
the solemnization of said marriage. At this instance the oppositors Fortuses invoked
that since for the past 30 years their parents had deported themselves in public as
husband and wife and had been living under the same roof, the legal presumption is
that they had entered into a lawful marriage. This presumption, however, is only
applicable where there is no clear and concrete evidence showing otherwise. In this
case, however, there is a certificate from the Division of Archives (Exhibit "5") to the
effect that "no copy of the marriage record of spouses Fermin Fortus and Jacoba
Aguil supposed to have been solemnized in the year 1902 and 1905 in the
Municipality of Rosario, Batangas had been received by said office for file", and this
certification is further strengthened by the affirmation of Clemente Barbosa, a clerk in
the office of the municipal treasurer of Rosario, Batangas, that there was no record of
such marriage supposedly contracted between the spouses Fermin Fortus and
Jacoba Aguil from 1902 and 1922 of the Municipality of Rosario, Batangas. Such
being the case, if it were true that the parents of the Fortuses contracted marriage
sometime in the year 1902 to 1905 said marriage should have been recorded and a
copy thereof should have been filed either in the Civil Registrar's Office of said
municipality or in our Archives Division where public records are officially kept intact.
It is true that Jacoba Aguil on the witness stand categorically stated that they were
legally married before Isabelo Beleos, who was then the Justice of the Peace of
poblacion Rosario, Batangas, in the house of Victoriana Guerro; that during the
solemnization of the marriage, they were even required to raise their hands after
Jacoba Aguil was required to thumbmark only once the marriage contract; and that
after the solemnization of the marriage, a marriage contract was issued in their favor
but which unfortunately was burned during the Japanese occupation. In corroboration
to the testimony of Jacoba Aguil who resolutely averred her marriage with her
husband, a deposition of Victoriana Guerro was presented. We find, however, the
versions of Jacoba Aguil and Victoriana Guerro to be replete of inconsistencies and
improbabilities after painstakingly examining their entire testimonies and/or versions.
It is noteworthy to observe that at the time when said spouses allegedly contracted
marriage, the law which was then in force to those who would contract marriage was
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General Orders No. 68. Under this law, neither the contracting parties, witnesses or
padrinos were required to sign the marriage contract. What the law required then was
only for the father to sign a form giving his consent to his son or his daughter of minor
age to the contract of marriage, as to the proof of the celebration of marriage, no
marriage certificate was issued to the contracting parties, but merely a certification of
the Parish Priest or Justice of the Peace or Judge, containing the full names of the
parties, their residence, ages, and the consent of the father and mother or guardian,
attesting to the celebration of marriage. Accordingly, therefore, the formalities
mentioned by Jacoba Aguil as well as her witness Victoriana Guerro were the
formalities required under the present law. And for this matter, it is clear that the
pretension of Jacoba Aguil as to the existence of her marriage with Fermin Fortus is
highly improbable and incredible, which do not deserve even a scant consideration.
Analyzing further the credibility of Jacoba Aguil, the lower court had keenly observed
that
She could not even remember on what part of the marriage contract she placed her
thumbmark; that she placed her thumbmark only once which is rather contrary to the
practice that it should be more than one; that she could not state whether the alleged
marriage contract was in long hand or typewritten or printed; that she never went to
Batangas, Batangas, and knew nobody there contrary to the statement given by
Felicidad Blay who has no false motive to tell a lie and was found to be a sincere
witness; that she never saw the marriage contract she allegedly thumbmarked since
they were married, (Clemente and Pio declared though that they saw it in the
aparador and also saw the aparador together with the controversial marriage contract
were burned during the Japanese occupation.)
Finding this observation of the trial court to be in accordance with the evidence
obtaining in this case, we do not feel justified to disturb its findings in not giving
credence to the versions of Jacoba Aguil, there being no circumstance of weight or
influence that was misinterested or overlooked upon by the court below in
appreciating her credibility.
Further, in their vain attempt to prove the contractual marriage between Fermin Fortus
and Jacoba Aguil, the Fortuses adduced secondary evidence consisting of Exhibits
"2", 4, 9-B and 9-C. All these exhibits, however, do not clearly show nor the same
constitute as a proof of marriage between Fermin Fortus and Jacoba Aguil, much less
a proof of the legitimacy of the oppositors Fortuses. The court below correctly ruled
that Exhibit "2" is not an evidence of legitimacy much less of marriage between Fortus
and Jacoba Aguil. For it is merely a true copy of a baptismal certificate of oppositor
EVIDENCE
appellant Roman Fortus. The rule is settled that the record of baptism attests to the
fact of the administration of the sacrament on the date stated therein, but certainly not
the truth of the statements therein made as to the parentage of the child baptized. As
held by the Supreme Court: "Neither are the baptismal certificates (Exhibits C and D)
public documents or public writings, because the parochial records of baptisms are
not public or official records, as they are not kept by public officers, and are not proof
of relationship or filiation of the child baptized." (Adriano vs. de Jesus, 23 Phil. 353;
Pareja vs. Paraiso, et al., G.R. No. L-5624, May 31, 1954). As regards Exhibit '4', the
court below in declaring the same not a proof of marriage nor could it be a prima facie
evidence of legitimacy of Roman Fortus, who is the eight child of Jacoba Aguil which
she had with Fermin Fortus, reasoned out, to which we subscribe, that:
The authority cited by the Fortuses brothers and sisters to wit: Crisolo vs. Judge
Macaraeg L-7017, promulgated April 29, 1954, is not square on the point, because
while that case was decided under the authority of Act 3753 which took effect on
February 26, 1921, Roman Fortus was born on February 28, 1922, long before the
effectivity of the subsequent law. Even assuming that Act No. 3753 is applicable to
Roman Fortus, it was only a prima facie proof which oppositor Julia T. Fortus had
overcome by satisfactory evidence to the effect that Fermin Fortus and Jacoba Aguil
were never married and hence all of their children are not legitimate brothers or half
brothers and therefore have no right to inherit from Victorino Fortus under Article No.
922 of the New Civil Code.
With respect to Exhibits 9-B and 9C which was a "Escritura de Compra y Venta"
executed by Fermin Fortus; and wherein Fermin Fortus was reflected as a married
man, the same does not clearly establish the claim of the oppositors Fortuses that
their parents were legally married, for the name Jacoba Aguil was not mentioned
therein as the spouse of Fermin Fortus. On the contrary, this piece of evidence is
obviously the reflection of his actual being married with his lawful wife Julia Fortus.
It is obvious from the foregoing quotations that the trial court and the Court of
Appeals, relying upon similar if not identical reasons, found that Victorino Fortus and
Jacoba Aguil were never married. We do not believe anyone can say that "reasonable
men (will) readily agree" that such finding of fact is "manifestly mistaken, absurd or
impossible" (De Luna vs. Linatoc, supra). To the contrary, We are of the opinion that
fair minded men may differ on whether or not such finding of fact is right, or "is rightly
drawn from the undisputed evidence" (idem). Consequently, the present case is not
one calling for the exercise of either our appellate or supervisor jurisdiction for the
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 EVIDENCE
purpose of reversing the finding of fact aforesaid made by the Court of Appeals and,
before it, by the trial court.
WHEREFORE, the appealed decision is hereby affirmed, with costs.

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