1. NATURAL CHILDREN; BIRTH; OBLIGATION OF FATHER. — Prior to the Civil Code the mere fact of the birth of a natural child imposed no legal obligation upon the father except in the cases mentioned in the Penal Code.

2. ID; RECOGNITION. — In determining whether the father has performed acts which amount to a recognition of a natural child, the law in force at the time the acts are performed must be considered, and not the law in force at the birth of the child.

3. ID; ID; EXPRESS RECOGNITION. — The writing referred to in article 135, first paragraph, of the Civil Code, must contain an express recognition of the paternity. The letter quoted in the opinion is not sufficient as such a writing.

4. ID; EVIDENCE OF CONTINUING STATUS. — The facts proven in the case and stated in the opinion do not show that the natural child was in the continuous possession of the status of a natural child. (Art. 135 par. 2, Civil Code.)

5. CIVIL CODE. — Article 135 of the Civil Code has not been repealed by the Code of Civil Procedure.

Conrado Cerrudo was born on the 13th of November, 1884. His mother is Dolores Cerrudo. Telesforo Chuidian died on the 11th of April, 1903. On the 8th of December, 1903, Conrado Cerrudo, by his guardian, Emilio Buenaventura, brought this action against the heirs of Telesforo Chuidian to compel the recognition of Conrado as the natural child of Don Telesforo. He based his complaint upon paragraphs 1 and 2 of article 135 of the Civil Code. Judgment was rendered in the court below in favor of the plaintiff, based upon paragraph 2 of said article, and the defendants have brought the case here by a bill of exceptions.

There is a contention between the parties as to the law which should govern the decision of this case. It is claimed by the defendants that that law is found in the Civil Code. It is claimed by the plaintiff that inasmuch as the child was born in 1884, his rights must be determined by the law then in force, which, so far as relates to natural children, was law 11 of Toro. That law is as follows:jgc:chanrobles.com.ph

"E porque no se puede dubdar cuales son fijos naturales, ordenamos e mandamos que entonces se digan ser los fijos naturales, cuando all tiempo que nascieren o fueren concebidos, sus padres podian casar con sus madres justamente, sin dispensacion, con tanto que el padre lo reconozca por su fijo, puesto que no haya tenido la muger de quien lo ovo en su casa, ni sen una sola: ca concurriendo en el fijo las calidades susodichas mandamos que sea fijo natural."cralaw virtua1aw library

It will be seen that this law, in a case like the one at bar, requires a recognition on the part of the father before the child acquires the status of a natural child. Under this law the fact the Don Telesforo was the father of the plaintiff gave to the latter no right to be recognized by him as such natural child. The mere fact of birth gave no legal right to the child, and imposed no legal duty upon the father, except, perhaps, in cases arising under the criminal law, which are always considered as being excepted in this opinion. The father was not, prior to the Civil Code, and is not now, bound to recognize his natural son by reason of the mere fact that he is its father. The recognition is and always has been a purely voluntary act on the part of the father. This is not true in regard to the mother. We have already held that, under the law in force prior to the Civil Code, proof of the maternity was sufficient to impose upon the mother the duty of recognizing the child. (Llorente v. Rodriguez, 1 2 Off. Gaz., 535.) The same thing is provided by article 136 of the Civil Code. But as to the father the question is, and always has been, Has he performed any acts which indicate his intention to recognize the child as his? What acts will be sufficient to prove such intention depends upon the law relating to that matter, and that law must necessarily be the law in force when the acts are performed. In order to determine, in the case of a father, what law is applicable, the date of the birth of the child has no importance. This fact is no way fixes the status of the child. That which does fix his status in the conduct of the father after the birth. The birth of the plaintiff before the Civil Code went into effect gave to him no vested right. He did not by that act acquire a vested right that the law concerning recognition should continue during his life the same as it was when he was born. Acts performed by the father before December, 1889, when the Civil Code went into effect, which amounted to a recognition, might give the child vested rights, but acts performed by the father since 1889 must be referred to the law in force when they were performed — that is, to the Civil Code.

A careful examination of the proofs in this case will show that what was done by the father in the way of recognition prior to the 8th day of December, 1889, was not sufficient to prove a recognition under the law of Toro. Of all the witnesses produced by the plaintiff, the testimony of two only relates to that period. One of these was Fabian Diestor. He testified that the mother of the plaintiff was living in his house when she became pregnant, but that she left it before the plaintiff was born. He undertook to testify as to the treatment which the son received from Don Telesforo after this departure, but on cross examination it appeared that everything which he testified to was hearsay. He stated that he knew these facts because his wife was in the habit of frequenting the house where plaintiff lived with his mother, and also stated that after the plaintiff’s mother left his house, before the birth of the plaintiff, be (the witness) had nothing to do with her.

The other witness was Francisco Chuidian. He does not in his testimony fix any definite dates. He testifies that he knew the plaintiff when he was very small; that he saw Don Telesforo in the house of her mother of the plaintiff. It appears in other parts of the evidence that the plaintiff lived with his mother for seven years after he was born, which would cover a period of two years after the Civil Code went into effect. It does not appear from the testimony of this witness whether it was during this time that he saw Don Telesforo in the house of his mother, or whether it was prior to 1889. It appears in the evidence that all the acts of the father upon which a judgment favorable to the plaintiff could be based, were performed by him after the year 1889. The law applicable to the case is therefore article 135 of the Civil Code.

There is nothing in the two decisions of this court which is opposed to this conclusion. In the case of Llorente v. Rodriguez, above cited, the question turned upon the recognition by the mother. In the case of Mijares v. Nery Et. Al. 2 (2 Off. Gaz., 387) we held that a natural child born prior to the Civil Code did not acquire vested rights to such an extent that the legislature could not afterwards change the law so as to give the quality of natural children to persons who did not possess it at the time the plaintiff was born.

As has been said, the plaintiff relied upon paragraph 1 of article 135, and produced a letter, not signed, but which was proved to be in the handwriting of Don Telesforo. The letter is as follows:jgc:chanrobles.com.ph

"26 DE JULIO DE 1901.

"ESTIMADO CONRADO: He recibido tu carta y celebro lo que dices que te has matriculado en las clases de inles y aritmetica mercantil. Dios quiera que slagas aprovenchado y consignas tener un oficio, dejar esa vida de holgazan a que te has acostumbrado.

"Si sales aprovechado y cambias de conducta; si consigues obtener buenas notas, y veo practicamente tu aprovechamiento, puedes contar entonces con mi proteccion y aprecio; pero mientras tanto, no vea tu cambio de conducta, no cuentes conmigo ni esperes nada de mi.