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Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1967 May 28, 1951

Probate of the will of the late Faustino Neri San Jose. PAZ NERI SAN JOSE, petitioner.
MATILDE MENCIANO, in her behalf and in behalf of the minors CARLO MAGNO NERI and FAUSTINO NERI,
Jr., plaintiffs-appellees,
vs.
PAZ NERI SAN JOSE and RODOLFO PELAEZ, defendants-appellants.

Claro M. Recto, Francisco R. Capistrano, Pelaez, Pelaez and Pelaez and Ernesto V. Chavez for appellants.
Pineda, Hermosisima and Neri for appellees.

JUGO, J.:

In the course of the proceedings for the settlement of the estate of the deceased Faustino Neri San Jose, Special
Proceedings No. 6-A of the Court First Instance of Misamis Oriental, Matilde Menciano, in her behalf and in behalf of
the minors Carlo Magno Neri and Faustino Neri, Jr., filed a motion for declaration of heirs, alleging that she is the
widow of the deceased Faustino Neri San Jose, to whom she was married according to the rites of the Roman
Catholic Church on September 28, 1944, before Rev. Father Isaias Edralin, S. J.; that before the marriage the
deceased and she lived together as husband and wife, there having been no impediment to their marriage; that as a
result of their cohabitation before the marriage the child Carlo Magno Neri was born on March 9, 1940 and was later
baptized, said child having enjoyed the status of a recognized natural child; that their second child Faustino Neri, Jr.,
was born on April 24, 1945; and that Carlo Magno Neri was legitimized by the subsequent matrimony of his parents
and Faustino Neri, Jr., is a legitimate child born in lawful wedlock.

Paz Neri San Jose, then executrix of the estate of the deceased Faustino Neri San Jose, and Rodolfo Pelaez,
designated universal heir in the will of the deceased dated December 19, 1940, filed an amended answer with the
permission of the court, in which they denied the substantial allegations of the abovementioned motion for
declaration of heirs and further alleged in substance that the deceased Faustino Neri San Jose, from the year 1943,
was suffering from senile dementia caused by anemia which became worse from September 9, 1944, when the
Province of Misamis Oriental where the deceased lived was bombarded by American planes; that the marriage
between said deceased and Matilde Menciano, if it was solemnized, was in violation of the legal provisions and
requisites, for he (the deceased) was deprived of his free will due to his age, sickness, and bombardment, and
Matilde Menciano, taking advantage of the deceased's condition, by intrigue and threat of abandoning him, forced
Neri by means of deceit (dolo) and threat to marry her; and that the deceased was sterile, unable to procreate, and
was impotent and congenitally sterile, the same as his brothers Anastasio, Filomeno, Pedro, and his sister Conchita,
who had no children. The defendants also filed a counterclaim for the sum of P286,000 in cash, and for jewels and
certain properties, which, as alleged, were retained and illegally disposed of by Matilde Menciano.

The above allegations of the parties give rise to the following issues:

(1) Was the marriage between the deceased Faustino Neri San Jose and Matilde Menciano valid?;

(2) Are, the children Faustino Neri, Jr. and Carlo Magno Neri the legitimate children of the deceased Faustino
Neri San Jose and Matilde Menciano?; and

(3) Did Matilde Menciano have in her possession and illegally disposed of the cash, jewels, and certain
properties above mentioned?

The marriage between the deceased and Matilde Menciano is evidenced by Exhibit I-C, which is an application for a
marriage license, dated September 28, 1944, signed by Faustino Neri San Jose, to marry Matilde Menciano; Exhibit
1-B, also an application for a marriage license dated September 28, 1944, signed by Matilde Menciano, to marry
Faustino Neri San Jose; Exhibit 1-D, certificate for immediate issuance of the marriage license applied for, signed by
the Acting Local Civil Registrar and Faustino Neri San Jose and Matilde Menciano; and Exhibit 1-A, the marriage
contract signed by Faustino Neri San Jose and Matilde Menciano as contracting parties, Rev. Isaias Edralin, as
solemnizing officer, and the witnesses L. B. Castaños and Samson Pañgan.

As all the above four exhibits are official and public documents, their validity can be successfully assailed only by
strong, clear, and convincing oral testimony. In the case of Arroyo vs. Granada (18 Phil, 484), it was held:

1. CANCELLATION OF INSTRUMENTS; SUFFICIENCY OF PROOF. — To justify the setting aside of an

instrument solemnly executed and voluntarily delivered, upon the ground that its execution was obtained by
false and fraudulent representations, the proof must be clear and convincing. (Syllabus)

In the case of Sy Tiangco vs. Pablo and Apao (59 Phil., 119), this Court declared:

1. PUBLIC DOCUMENT; EXECUTION; DENIAL OF ALLEGED SIGNER; BURDEN OF PROOF. — Plaintiff's

attorneys vigorously contend that when the plaintiff denied having signed the deed it was incumbent upon the
defendants to can the witnesses thereto. The execution of a document that has been ratified before a notary
public cannot be disproved by the mere denial of the alleged signer. No inference unfavorable to the
defendant arises from their failure to call the subscribing witnesses. (Syllabus)

Is the oral evidence presented by the defendants of sufficient force and weight to overcome the above official
documents?

The witnesses for the defendants testified in substance that the deceased Faustino Neri was so weak and sick that
he could not even talk coherently and intelligibly. Their testimony is too sweeping, because they refer to a general
period of time. There must have been times when the deceased may have been unable to attend to business or
even to converse on account of his sickness, and even Father Edralin did not solemnize the marriage on a certain
date on account of the weak condition of Faustino Neri and waited for about two days to perform the ceremony
when the old man, although somewhat weak, had a clear mind. Father Edralin's testimony is strongly corroborated
by the form of the signatures of Faustino Neri in the above mentioned Exhibits 1-A, 1-C, and 1-D. A mere glance at
those signatures will convince anyone that they could not have been written by a man who is almost unconscious
and physically and intellectually incapacitated, as the defendants' witnesses represent him to have been. It should
be noted that his signature is complicated, containing many flourishes, such that it can not be signed by one who is
not of sound mind and of fair physical condition. He may have been sick at that time, but not to such a degree as to
render him unconscious of what he was doing. If the signatures of the deceased in Exhibits 1-A, 1-C, and 1-D are
compared with each other it will be readily seen that they are practically uniform, which could not have been
accomplished by a man who is a nervous wreck. There is no sign of trembling of the hands or fingers of the person
who affixed those signatures, which usually happens to a very sick man. In the case of Torres et al. vs. Lopez (48
Phil., 772), this court made the following pronouncement:

3. ID.; ID TESTS OF CAPACITY. — Neither old age, physical infirmities, feebleness of mind, weakness of the
memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show testamentary
incapacity. The nature and rationally of the will is of some practical utility in determining capacity. Each case
rests on its own facts and must be decided by its own facts. (Syllabus, p. 773.)

xxx xxx xxx

11. ID.; ID.; ID.; ID.; CASE AT BAR. — On January 3, 1924, when the testator, Tomas Rodriguez, made his
will, he was 76 years old, physically decrepit, weak of intellect, suffering from a loss of memory, had a
guardian of his person and his person and his property, and was eccentric, but he still possessed that spark of
reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity." Two of the subscribing witnesses testified
clearly to the regular manner in which the will was executed, and one did not. The attending physicians and
three other doctors who were present at the execution of the will expressed opinions entirely favorable to the
capacity of the testator. Three other members of the medical profession expressed opinions entirely
unfavorable to the capacity of the testator and certified that he was of unsound mind. Held, That Tomas
Rodriguez on January 3, 1924, possessed sufficient mentality to make a will which would meet the legal test
regarding testamentary capacity; that the proponents of the will have carried successfully the burden of proof
and have shown him of sound mind on that date; and that it was reversible error on the part of the trial court
not to admit his will to probate. (Syllabus, p. 774)

In Sancho vs. Abella (58 Phil., 728), this court said:

1. WILLS; PROBATE; CAPACITY TO MAKE A WILL. — Neither senile debility, nor deafness, nor blindness,
nor poor memory, is by itself sufficient to establish the presumption that the person suffering therefrom is not
 in the full enjoyment of his mental faculties, when there is sufficient evidence of his mental sanity at the time
of the execution of the will.

2. ID.; ID.; ID.; — Neither the facts of her being given accommodations in a convent, nor the presence of the
parish priest, nor a priest acting as a witness, constitutes undue influence sufficient to justify the annulment of
a legacy in favor of a bishop of a diocese, made in her will by a testatrix 88 years of age, suffering from
defective eyesight and hearing, while she is stopping in a convent within the aforesaid diocese. (Syllabi)

Although the above doctrine relates to testamentary capacity, there is no reason why it should not be applied to the
capacity to contract marriage, which requires the same mental condition. Consequently, the court below did not err
in declaring valid the marriage of Faustino Neri San Jose and Matilde Menciano.

The next issue is whether Faustino Neri, Jr., and Carlo Magno Neri are legitimate children of the deceased Faustino
Neri and Matilde Menciano. As above stated, the deceased Faustino Neri and Matilde Menciano were married on
September 28, 1944. Faustino Neri, Jr., was born on April 24, 1945; that is, two hundred eight days, or more than
one hundred eighty days, after the marriage, but less than three hundred days after the death of Faustino Neri San
Jose which occurred on October 11, 1944. There is no question that before and after the marriage, the deceased
and Matilde Menciano co-habitated.

Rule 123, section 68 (c), reads as follows:

SEC. 68. Conclusive presumptions. — The following are instances of conclusive presumptions:

xxx xxx xxx

(c) The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be
legitimate, if not born within the one hundred and eighty days immediately succeeding the marriage, or after
the expiration of three hundred days following its dissolution;

xxx xxx xxx

The above-quoted provision is so clear that it does not require interpretation or construction, but only application.

The requirements for the conclusive presumption that Faustino Neri, Jr. is the legitimate son of the legitimate
marriage of the deceased Faustino Neri and Matilde Menciano exist as above stated, with the possible exception of
the requisite as to potency.

Was the deceased Faustino Neri impotent during his cohabitation with Matilde Menciano?

Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency. The best
evidence that the deceased was potent is the statement of Dr. Antonio Garcia that in order to get a specimen of the
semen of the deceased Faustino Neri for examination as to its contents of spermatozoa, Faustino, following the
doctor's advice, used a rubber sac, commonly called "condom", and a woman. The fact that the deceased was able
to produce the specimen by said means shows conclusively that he was potent. Impotency is not synonymous with
sterility. Impotency is the physical inability to have sexual intercourse; it is different from sterility.

(1) Impotence, in Medical Jurisprudence. — Inability on the part of the male organ of copulation to perform its
proper function. Impotence applies only to disorders affecting the functions of the organ of copulation, while
sterility applies only to lack of fertility in the reproductive elements of either sex. (Dennis, System of Surgery;
Bouvier's Law Dictionary, Rawle's Third Revision, Vol. 11, p. 1514)

(2) Impotencia (L.) Impotence.

Impotencia Coeundi, inability of the male to perform the sexual act.

Impotentia Erigendi, inability to have an erection of the penis.(The American Illustrated Medical Dictionary, by
Dorland 20th Edition, p. 721)

i. Coeundi. Inability of the male to perform the sexual act. i. erigendi, impotence due to the absence of the
power of erection. (Stedman's Practical Medical Dictionary, p. 551)

(4) Impotence.

"3. Law & Med. Incapacity for sexual intercourse." (Webster's New International Dictionary, Second Edition,
Unabridged, p. 1251)
 (5) Impotency or Impotence. — Want of power for copulation, not mere sterility. The absence of complete
power of copulation is an essential element to constitute impotency. (31 C. J., P. 259)

(6) Impotence. — Inability to perform the sexual act may be due to defective organs from abnormal or
incomplete development, or to deficient internal secretions, or to disorders of the nervous system diminishing
the libido. Impotence may or may not be accompanied by sterility. (The Columbia Encyclopedia, 877)

Consequently, the requisite of potency also existed. The necessary conclusion is that the child Faustino Neri, Jr., is
conclusively presumed to be the legitimate son of the deceased Faustino Neri with Matilde Menciano in lawful
wedlock.

The attorney for the plaintiffs correctly objected to the evidence regarding sterility and any other evidence as to
paternity. The objection should not have been overruled.

However, even considering the evidence as to sterility, it results that the examinations of the semen by Drs. Garcia
and Marfori in 1940, to determine the existence of spermatozoa, do not establish that the deceased was sterile.
According to medical jurisprudence, a man may not have spermatozoa at a certain time, but may have had it
previously or may have it subsequently to the examination. The examinations by Drs. Garcia and Marfori were made
in 1940. From that time Faustino Neri San Jose cohabited with Matilde Menciano until his death on October 11,
1944.

Doctor Jose F. Marfori. testified as follows:

Q. How many times did you examine his seminal fluid? — A. Only once.

Q. In other words, from the latter part of 1940 up to his death, you examined only once his seminal fluid? —
A. Yes, sir.

Q. Is it not a fact that you cannot determine sterility or his inability to procreate with one examination? — A. It
would have been better if there was an examination of his seminal fluid every year.

Q. But the truth is that today a man may lack spermatozoa in his seminal fluid, but much later it may appear?
— A. That is possible. (P. 28, t. s. n., Gaane)

It should be noted that Doctor Marfori is a nephew-in-law of the deceased Faustino Neri.

With regard to the supposed examination made by Doctor Garcia in Cebu on December 9, 1940, Cristobal Lopez,
nephew of Faustino, testified that during said period, December, 1940, the deceased Neri never went out of
Cagayan, Oriental Misamis. We cannot accord much weight to the testimony of Doctor Garcia that he made the
examination.

But even supposing that said doctors made such examinations, still the result is inconclusive, for the reasons above
set forth, and cannot in any way overthrow the conclusive presumption established by Rule 123, section 68 (c).

Carlo Magno Neri was born on March 9, 1940, that is, before the marriage. Both the deceased Faustino and Matilde
Menciano free to marry without any legal impediment. However, the court below declared that Carlo Magno Neri has
not been acknowledged as a natural child and, consequently, cannot be legitimized by the subsequent marriage of
his parents. We cannot review this finding because the plaintiffs did not appeal.

The defendants allege that Matilde Menciano is retaining or has illegally disposed of P286,000, genuine Philippine
currency, certain jewels, and documents. The trial court, after a careful and exhaustive review of the evidence,
correctly reached the conclusion that such allegation has not been substantiated. Let us make a short analysis of
the defendants' evidence on this point.

The principal witness for this claim was Rodolfo Pelaez, who testified that the deceased Faustino in 1939 delivered
to him the sum of P250,000 in small denominations to be exchanged in a bank in Manila for bills of larger
denominations as P500, etc. After having exchanged it with the help of Representative Ozamis (dead on the date of
the trial), he returned to the province and delivered the sum to the deceased Neri. On cross-examination he was not
able to say whether the bills he took to Manila in October, 1939, were treasury certificates or bank bills; that in July,
1944, he visited Cagayan and he saw his uncle Faustino living with Matilde Menciano and Carlo Magno Neri in the
house of a Chinaman on Calle Del Mar; that he saw the sum of P250,000 in a wooden aparador. But when he was
asked whether he actually saw the money in the aparador, he said he was so informed by his uncle. His testimony is
hearsay. Furthermore, there is no reason why his uncle should have accounted to him for the money. His testimony
is contradicted by that of Paz Neri San Jose, his mother, who stated that the deceased Faustino went to the house
of the Chinaman on Calle Del Mar only to fetch certain document which he had left there; that the deceased was not
living in said house; that he went there now and play monte; that the deceased and herself were living in the house
of one Tamparong; that the deceased used to carry with him his money, jewels, and documents, in a sack, wherever
he went to play; that at the time of the air raid by the Americans, the deceased went to the house on Calle Del Mar
carrying the said sack, but he returned to the house of Tamparong, leaving the sack in the house on Calle Del Mar,
but after the air raid he returned on the latter house to fetch the sack. This testimony of Paz Neri, who was a witness
for the defendants and a co-defendant herself, contradicts in essential and important features that of Rodolfo
Pelaez.

The testimony of Paz Neri would show that the deceased Neri was distrustful of relatives and friends when his funds
were concerned. P250,000 in 1939 was quite a fortune in itself and, consisting of cash, could have been easily
disposed of. In 1939 nobody believed for certain that there would be war. Why then should the deceased have
wanted to change the money for bigger denominations when he could have deposited it in a nearby branch of the
Philippine National Bank where the deceased could have gone, for, as alleged by the defendants, he even went to
Cebu in 1940 for examination of his seminal fluid?

It was testified to by Clotilde Galarrita de Labitad that Matilde Menciano showed to her the sum of P284,000 in
genuine Philippine currency and counted the money in her presence. This is unbelievable. Could she not have
counted it without the presence of anybody and thus avoided the danger of theft or robbery?

With regard to the jewels no satisfactory evidence was presented to prove that Matilde Menciano misappropriated
them. She received and had in her possession a few jewels given to her by the deceased Faustino for the benefit of
the children.

As to the revocation of the appointment of Paz Neri San Jose as executrix, the trial court made a reasonable
exercise of its discretion in setting it aside and appointing Matilde Menciano administratrix, in view of the hostility
between them which would cause many incidental questions and delay in the termination of the proceedings if Paz
Neri had continued as executrix. We see no reason for interfering in the case with the discretion of the court.

The appellees contended that the court erred in not completely annulling the institution of universal heir, without
considering Rodolfo Pelaez as a legatee. Inasmuch as the plaintiffs did not appeal, they are bound by the decision
of the trial court.

In view of the foregoing, the judgment appealed from is affirmed in all its parts, with costs against the appellants. It is
so ordered.

Paras, Bengzon, C. J., Feria, Pablo, Montemayor and Bautista Angelo, JJ., concur.

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