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[G.R. No. 11796. August 5, 1918. ]

In the matter of the estate of Samuel Bischoff Werthmuller. ANA M. RAMIREZ, executrix-appellant, v. OTTO GMUR, as guardian of the minors Esther Renate Mory, Carmen Maria Mory, and Leontina Elizabeth, claimant-appellant.

C. Lozano for executrix and Appellant.

Thos. D. Aitken for claimant and Appellant.


1. PARENT AND CHILD; ILLEGITIMACY; PRESUMPTION AS TO CAPACITY OF PARENTS TO MARRY. — Where an illegitimate child is in fact recognized by the father, the presumption is that the parents had the capacity to marry at the time the child was born or begotten, and that the child is a natural child and therefore capable of recognition. The burden of proof to show the contrary is upon the party impugning the legality of the act of recognition.

2. SUCCESSIONS; RECOGNIZED CHILD AS FORCED HER. — Where a person dies testate but without legitimate descendants or ascendants a recognized natural child for whom no provision is made in the will is a forced heir and as such entitled to one-third of the estate. (Art. 842, Civil Code.)

3. DIVORCE; DOMICILE OF PARTIES; JURISDICTION OF FOREIGN COURT — The court of a country in which neither of the spouses is domiciled and to which one or both of them may resort merely for the purpose of obtaining a divorce has no jurisdiction to determine their matrimonial status; and a divorce granted by such a court is not entitled to recognition elsewhere. The voluntary appearance of the defendant before such a tribunal does not invest the court with jurisdiction.

4. SUCCESSIONS; ADULTEROUS CHILDREN INCAPABLE OF INHERITING. — The right to inherit is limited to legitimate, legitimated, and acknowledged natural children, the offspring of adulterous relations being excluded. The word "descendants," as used in article 941 of the Civil Code, cannot be interpreted to include illegitimates born of adulterous relations.

5. WILLS AND ADMINISTRATION; LEGITIME OF FORCED HEIR; EFFECT OF DECREE OF PROBATE. — The right of a forced heir to his legitime is not divested b~ a decree admitting a will to probate in which no provision is made for him. The decree of probate is conclusive only as regards the due execution of the will. The question of the intrinsic validity of its provisions is in no wise determined thereby.

6. EXECUTORS AND ADMINISTRATORS; DISTRIBUTION OF ESTATE RIGHT OF HEIR TO PARTICIPATE IN FINAL DIVISION. — An heir who is not a party to the proceedings for the probate of a will and the distribution of the testator’s estate may intervene at any time while the court yet retains jurisdiction over the estate and establish his right to participate in the final division thereof.



Samuel Bischoff Werthmuller, native of the Republic of Switzerland, but for many years a resident of the Philippine Islands, died in the city of Iloilo on June 29, 1913, leaving a valuable estate of which he disposed by will. A few days after his demise the will was offered for probate in the Court of First Instance of Iloilo and, upon publication of notice, was duly allowed and established by the court. His is widow, Doña Ana M. Ramirez, was named as executrix in the will, and to her accordingly letters testamentary were issued. By the will everything was given to the widow, with the exception of a piece of real property located in the City of Thun, Switzerland, which was devised to the testator’s brothers and sisters.

The first clause of the will contains a statement to the effect that inasmuch as the testator had no children from his marriage with Ana M. Ramirez he was therefore devoid of forced heirs. In making this statement the testator ignored the possible claims of two sets of children, born to his natural daughter, Leona Castro.

The pertinent biographical facts concerning Leona Castro are these: As appears from the original baptismal entry made in the church record of Bacolod, she was born in that pueblo on April 11, 1875, her mother being Felisa Castro, and father "unknown." Upon the margin of this record there is written in Spanish an additional annotation of the following tenor: "According to a public document (escritura) which was exhibited, she was recognized by Samuel Bischoff on June 22, 1877." This annotation as well as the original entry is authenticated by the signature of Father Ferrero, whose deposition was taken in this case. He testifies that the word "escritura" in this entry means a public document; and he says that such document was exhibited to him when the marginal note which has been quoted was added to the baptismal record and supplied the basis for the annotation in question.

As the years passed Leona Castro was taken into the family of Samuel Bischoff and brought up by him and his wife as a member of the family; and it is sufficiently shown by the evidence adduced in this case that Samuel Bischoff tacitly recognized Leona as his daughter and treated her as such. In the year 1895 Leona Castro was married to Frederick von Kauffman, a British subject, born in Hongkong, who had come to live in the city of Iloilo. Three children were born of this marriage, namely, Elena, Federico, and Ernesto, the youngest having been born on November 10, 1898. In the month of April 1899, Leona Castro was taken by her husband from Iloilo to the City of Thun, Switzerland, for the purpose of recuperating her health. She was there placed in a sanatorium, and on August 20th the husband departed for the Philippine Islands, where he arrived on October 10, 1899.

Leona Castro continued to remain in Switzerland, and a few years later informed her husband, whom she had not seen again, that she desired to remain free and would not resume life in common with him. As a consequence, in the year 1904, Mr. Kauffman went to the City of Paris, France, for the purpose of obtaining a divorce from his wife under the French laws; and there is submitted in evidence in this case a certified copy of an extract from the minutes of the Court of First Instance of the Department of the Seine, from which it appears that a divorce was there decreed on January 5, 1905, in favor of Mr. Kauffman and against his wife, Leona, in default. Though the record recites that Leona was then in fact residing at No. 6, Rue Donizetti, Paris, there is no evidence that she had acquired a permanent domicile in that city.

The estrangement between the von Kauffman spouses is explained by the fact that Leona Castro had become attracted to Dr. Ernest Emil Mory, the physician in charge of the sanatorium in Switzerland where she was originally placed; and soon after the decree of divorce was entered, as aforesaid, Doctor Mory and Leona Castro repaired to the City of London, England, and on May 5, 1905, in the registrar’s. office in the district of Westminster, went through the forms of a marriage ceremony before an officer duly qualified to celebrate marriages under the English law. It appears that Doctor Mory himself had been previously married to one Helena Wolpman, and had been divorced from her; but how or under what circumstances this divorce had been obtained does not appear.

Prior to the celebration of this ceremony of marriage a daughter, named Leontina Elizabeth, had been born (July 21, 1900) to Doctor Mory and Leona Castro, in Thun, Switzerland. On July 2, 1906, a second daughter, named Carmen Maria, was born to them in Berne, Switzerland, now the place of their abode; and on June 10, 1909, a third daughter was born, named Esther. On October 6, 1910, the mother died.

In the present proceedings Otto Gmur has appeared as the guardian of the three Mory claimants, while Frederick von Kauffman has appeared as the guardian of his own three children, Elena, Federico, and Ernesto.

As will be surmised from the foregoing statement, the claims of both sets of children are founded upon the contention that Leona Castro was the recognized natural daughter of Samuel Bischoff and that as such she would, if living, at the time of her father’s death, have been a forced heir of his estate and would have been entitled to participate therein to the extent of a one-third interest. Ana M. Ramirez, as the widow of Samuel Bischoff and residuary legatee under his will, insists — at least as against the Mory claimants, — that Leona Castro had never been recognized at all by Samuel Bischoff.

In behalf of Leontina, the oldest of the Mory claimants, it was originally insisted in the court below, that, having been born while her mother still passed as the wife of Frederick von Kauffman, she was to be considered as a legitimate daughter of the wedded pair. This contention has been abandoned on this appeal as untenable; and it is now contended here merely that, being originally-the illegitimate daughter of Doctor Mory and Leona Castro, she was legitimated by their subsequent marriage.

In behalf of Carmen Maria and Esther Renate, the two younger of the Mory claimants, it is argued that the bonds of matrimony which united Frederick von Kauffman and Leona Castro were dissolved by the decree of divorce granted by the Paris court on January 5, 1905; that the marriage ceremony which was soon thereafter celebrated between Doctor Mory and Leona in London was in all respects valid; and that therefore these claimants are to be considered the legitimate offspring of their mother.

In behalf of the children of Frederick von Kauffman it is insisted that the decree of divorce was wholly invalid, that all three of the Mory children are the offspring of adulterous relations, and that the von Kauffman children, as the legitimate offspring of Leona Castro, are alone entitled to participate in the division of such part of the estate of Samuel Bischoff as would have been inherited by their mother, if living.

We are of the opinion that the status of Leona Castro as a recognized natural daughter of Samuel Bischoff is fully and satisfactorily shown. It is proved that prior to her marriage with Frederick von Kauffman she was in an uninterrupted enjoyment of the de facto status of a natural child and was treated as such by Samuel Bischoff and his kindred. The proof of tacit recognition is full and complete.

From the memorandum made by Padre Ferrero in the record of the birth, as well as from the testimony of this priest, taken upon the deposition, it also appears that Samuel Bischoff had executed a document, authenticated by a notarial act, recognizing Leona as his daughter, that said document was presented to the priest, as custodian of the church records, and upon the faith of that document the marginal note was added to the baptismal record, showing the fact of such recognition. The original document itself was not produced in evidence but it is shown that diligent search was made to discover its whereabouts, without avail. This was sufficient to justify the introduction of secondary evidence concerning its contents; and the testimony of the priest shows that the fact of recognition was therein stated. Furthermore, the memorandum in the baptismal record itself constitutes original and substantive proof of the facts therein recited.

It will be observed that the recognition of Leona Castro as the daughter of Samuel Bischoff occurred prior to the date when the Civil Code was put in force in these Islands; and consequently her rights as derived from that recognition must be determined under the law as it then existed, that is, under Law 11 of Toro, which afterwards became Law 1, title 5, book 10, of the Novisima Recopilacion. (See Capistrano v. Estate of Gabino, 8 Phil., 135, 139, where this statute is quoted in the opinion written by Mr. Justice Torres.) Under that law recognition could be established by proof of acts on the part of the parent unequivocally recognizing the status of his offspring. (Cosio v. Pili, 10 Phil., 72, 77.) In other words at tacit recognition was sufficient. Under article 131 of the present Civil Code, the acknowledgment of a natural child must be made in the record of birth, by will, or in other public instrument. We are of the opinion that the recognition of Leona Castro is sufficiently shown whether the case be judged by the one provision or the other.

But it is contended by counsel for Doña Ana Ramirez that only children born o
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