DISSENTING OPINION OE
MR. CHIEE JUSTICE HERNANDEZ.In this case an action was brought for the annulment of the designation of heirs made in favor of the defendants by Ramón Pérez Villamil, since deceased, on the ground that the plaintiffs, who allege that they are the acknowledged natural children of Pérez Villamil, were omitted from his will by said testator.
The first question arising for consideration is whether the plaintiffs could maintain an action for the annulment of the designation of heirs without bringing previously, or at least concurrently, an action for acknowledgment.
In' deciding the case of Amsterdam v. Puente on June 17, *8431910, (16 P. R. R., 527), we' established the following, doctrine :
“¥e think it is a fair deduction from the provisions of the Civil Code, heretofore in existence, as well as the practice and jurisprudence in this regard that, without some authentic act which reveals the will of the father to give the child a status, the child has only a right of action to compel the father to confer such status. Section 135 of the Spanish- Civil Code and section 189 of the Porto Rican Civil Code provide for the cases when a father is compelled to acknowledge his illegitimate child. He can be compelled by an action, and the 'necessity for such action can only be said to be dispensed with when there are some solemn acts on the part of the father, which show that this obligation has already been performed. It is the plain inference from these sections that although a father may have done, as in the case before us, any number of acts to show that a particular person was his child, yet 'he cannot be said to have acknowledged him according to the legal use of the word ‘acknowledgment.’ If he may be compelled then before such compulsion the desideratum has not been, attained. Until there is some- solemn act or some declaration on the part of a court a child cannot be said to have acquired the civil status of an acknowledged natural child. In the case under consideration there was no satisfactory evidence of any intention on the part of the father to acknowledge his natural children with all its legal effects. ’ ’
Again, in the cáse of Puente et al. v. Puente et al. (16 P. R. R., 556), we said:
“In order for the appellant, in this case, to have successfully alleged her condition of an acknowledged natural daughter, and make opposition as such, and as such be declared an heir, it was necessary that her acknowledgment should be clearly shown to have been made by the father in a voluntary and formal manner, or that if she had the right to be acknowledged under the law and the father failed to make the formal acknowledgment or declined to do so, that she had obtained a final judgment in her favor from a court of competent jurisdiction and under -the proper ‘contentious’ proceeding.
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“It has been the constant practice that when a father fails or declines to make the acknowledgment, that the son must have recourse *844to a court of competent jurisdiction and exercise an action for filiation, to secure a judgment of the court declaring what the father failed •or declined to declare.”
In another case entitled Rijos v. Folgueras et al. (16 P. R. R., 593), we expressed ourselves as follows:
“A legitimate child derives his status as such from the marriage •of his parents. In order that the marriage may be considered to have been effected, the'intention of the man and woman to contract is not sufficient, nor that they are living together and have had children, but it is necessary that the act take place in one of the solemn forms authorized by the law and that an authentic and trustworthy record thereof be made.
“A natural child derives his right from the acknowledgment and in order that the acknowledgment may be considered to have been made, it is necessary that it be made in a formal manner by the father with the firm intention of making such acknowledgment, and that the proper authentic and trustworthy record thereof appear. When the father performed acts tending to establish his paternity, which acts in themselves did not constitute a formal acknowledgment and of which no authentic and trustworthy record appears, in accordance with the Laws of Toro; when, the cases mentioned in section 137 •occurred, under the former Civil Code, and when the acts referred to in section 189 of the Revised Civil Code (had been performed), then the action for filiation should and must appear in the former (formal) final judgment of a court of competent jurisdiction.
“Parents who in the fulfilment of their duties wish to transmit to their natural children their surname and property, or the part thereof to which they may be entitled, must make the acknowledgment a matter of record in an authentic and trustworthy manner, for •example, in the record of the birth, in a public document, in their will, in a declaration made in due form before an official or court, etc., in order that the natural acknowledged child may prove his ¡status as such in the same manner as the legitimate child.
“When the parents do not recognize (the) natural children in the manner mentioned, then the children must bring an action for filiation and obtain a judicial declaration of their right.
“If the parents and children were negligent, in such case they must suffer the consequences of their acts and blame themselves and not the law which regulated these questions, which are of such great social importance, in a uniform manner and for the good of all.”
*845Quoting from a judgment of the Supreme Court of Spain of April 16, 1864:
“The status of natural child must be based necessarily on the spontaneous and legally proven acknowledgment by the father; or,, in case of his failure or refusal to make such acknowledgment, on a formal judicial declaration of such status.”
And from a judgment of the Supreme Court of Spain of June 28, 1864:
“The filiation of natural children must appear necessarily either from the acknowledgment by their parents or from a formal judicial decree. ’ ’
The same doctrine has been ratified in the cases of Calaf et al. v. Calaf (17 P. R. R., 185); Peñagarícano v. Peñagarícano et al., ante p. 472, and Figueroa v. Díaz et al., ante p. 683..
As will be seen, there is no discrepancy, but perfect harmony, between the doctrine followed in the judgments of the-Supreme Court of Porto Rico and in those of the Supreme Court of Spain on the same legal point, rendered when the Spanish Civil Code was not in force.
It may be deduced from the said doctrine that in order1 that a presumptive natural child may claim any rights in the estate of a deceased person he-must rely on an express,, voluntary and solemn acknowledgment of his filiation appearing in an authentic and genuine form, or on a judicial declaration of such filiation. In the absence of such an acknowledgment or of a judicial decree compelling the same, a natural child must bring an action of filiation before or at the time when he institutes proceedings to establish - his hereditary rights.
Let us now see whether the plaintiffs come within any of the specified cases which would relieve them of the necessity of bringing an action for acknowledgment.
In order to prove the acknowledgment of their, filiation by Ramón Pérez Villamil, the plaintiffs presented the record of *846an. oral civil suit brought by Telesfora Quiñones against Ramón Pérez Villamil in the Justice of the Peace Court of Rio Grande in November of 1873 to recover funds for the maintenance of the three children, Angel, Adelina and Plácida, whom the plaintiff alleged she had by the defendant, and the amount of a prize drawn by a ticket in the provincial lottery. At the trial of the case -the claim was extended to include ftve cows and a mare.
In his answer to the complaint Pérez Villamil stated:
“That he had never denied that the plaintiff had lived in his house, nor had he denied the three children mentioned by her, and that for their support he had been paying her five pesos monthly since the termination of their former amorous relations. That as regards the live stock and the lottery prize (he did not remember the number of the ticket), he had given her some two years before a document setting forth the particulars concerning them and he did not consider it prudent to deliver to the plaintiff what she asked for, because he should keep this small capital in his possession to manage and increase it for his children as it was acquired by the plaintiff during the time she lived with him, and, further, because as the plaintiff is a woman of little ability she would spend all of it in a short time and this he could not consent to as it would be like jiouring water into a sieve.
“The plaintiff replied that what Villamil had just said was not true, for although he has been.paying her five pesos monthly in goods from his store, as stated, it was as interest on the amount of the lottery prize which she delivered "to him, and nothing else, and that amount does not begin to meet her needs, because as the children grow up her expenses are increased and the plaintiff can scarcely support them with that amount and the two pesos monthly which she earns as a hired cook, and that although she has asked the defendant several times to give her a larger amount, he has refused to do so and she has been compelled to bring this action against her will and without any ill feeling toward Villamil in order to secure that which she claims with urgent necessity and perfect right.
“The defendant rejoined that in view of the observations of the judge and in order that this matter should not take the aspect which certain gentlemen of the locality wish to give it, he would agree to pay to the plaintiff, if she were, willing, ten pesos monthly for the *847children and give them a change of clothing and shoes every three months, and lie considered this sufficient for them if the plaintiff would give them all the assistance she could also.
‘ ‘ The plaintiff stated that she would accept the offer of the defendant, Ramón Pérez Villamil, if he would be sure to live up to it at all times.
“At this stage of the case the judge declared the trial terminated and stated that as the parties had been able to arrive at an agreement, at which he,was pleased, the judgment of the court would be to ratify the agreement made between the plaintiff, Telesfora Quiñones, and the defendant, Ramón Pérez Villamil, in this suit as res judicata before a court of competent jurisdiction, with the costs against the defendant. ’ ’
The record of the trial, composed of the allegations of the parties and the judgment of the court, is signed by the judge, by the parties to the suit (Tomás Benoyt signing for the plaintiff at her request) and by the clerks who acted in the place of the challenged secretary.
We readily admit that the document under consideration is a public one, for judicial proceedings are public documents, and we do not question its genuineness, which has been admitted both by the trial court and by this court. But we cannot agree that said document contains an express, voluntary and solemn acknowledgment of the plaintiffs by Ramón Pérez Villamil. It is clear that it does not contain a judgment ordering said acknowledgment, for the judgment of the Justice of the Peace of Rio Gfrande is limited to approving and ordering the fulfilment of the agreement or contract by virtue of which the defendant binds' himself to pay $10 monthly to the plaintiffs and to give them a change of clothing and shoes every three months. It makes no reference whatever to the acknowledgment by Pérez Villamil of the children of Telesfora Quiñones, nor did she in her complaint include any prayer on this point.
We have examined carefully the document under consid-. eration and do not find it proven in an authentic manner that Pérez Villamil expressly,- voluntarily and solemnly recognized *848Angel, Adelina and Plácida as Ms natural cMldren. It does appear to be shown in a genuine and authentic manner that Pérez Villamil stated during the trial that he had never denied that the plaintiff had lived in his house or the three children for whose support he had been paying her $5 monthly since the termination of their amorous relations, adding that he did not consider it prudent to deliver to Telesfora Lhe amount of the lottery prize and the heads of cattle claimed by her, as he wished this small capital to be preserved for his children and not squandered by a woman of little ability, as the plaintiff was. The foregoing statements made before a judicial authority and set out in a public document constitute an element of written evidence of the acknowledgment of the plaintiffs and at most the possession by Angel, Ade-lina and Plácida of the civil status of natural children of Ramón Pérez Villamil, but this element of proof and possession of status are not sufficient to exempt them from the necessity of bringing an action for acknowledgment, according to the doctrine laid.down by us in Gual et al. v. Bonafoux et al., 15 P. R. R., 545.
The acknowledgment of the plaintiffs by Pérez Villamil which is sought to be deduced from the statements made by him at the trial of the oral civil action would be at most a tacit acknowledgment of the natural filiation of the plaintiffs, but not the express, voluntary and solemn acknowledgment which the jurisprudence established by this court exacts in order that it may be unnecessary to bring an action for acknowledgment.
It cannot be asserted, either grammatically or legally, that Pérez Villamil acknowledged the plaintiffs in an authentic and genuine public document unless such acknowledgment was expressly, voluntarily and solemnly made.
Moreover, the acknowledgment was only incidental, for Telesfora Quiñones did not sue Pérez Villamil for the acknowledgment of the children which she had by him, but for their support, and that merely incidental acknowledgment *849does not merit being qualified as solemn. Nor was it voluntary in the sense that Pérez Villamil desired to acknowledge: bis children at the trial, because, if such had been his intention, he would have made the acknowledgment in a proper document which would serve at any time as proof of the fili-ation of his children.
Furthermore, the fact that Pérez Villamil agreed to support the three children of Telesfora Quinones, with whom he had sustained illicit relations, said agreement being approved by the Justice of the Peace of Bio Grande, does not involve the acknowledgment of their natural filiation even admitting that •the natural paternity of Bamón Pérez Villamil served as the basis of said agreement, because in said suit nothing was established or could be established regarding acknowledgment. Judgment of the Supreme Court of Spain of April 11, 1861. Besides, it is a truism that no one is bound for more than he wished to bind himself for, or for which he is bound judicially.
The civil status of the plaintiffs in relation to Bamón Pérez Villamil was not denied in the oral civil action tried before the Justice of the Peace of Bio Grande, because in that case no decision was rendered on this point and Pérez Villamil only agreed to contribute to their support in view of the observations of the judge and in order that the matter should not take the aspect which certain gentlemen- of the-locality wished to give it. These words of his reveal a lack of spontaneity and intention to make such an important acknowledgment as that of paternity.
There being, then, no authentic and convincing evidence of an express, voluntary and solemn acknowledgment of the plaintiffs by Pérez Villamil, an action for acknowledgment should have been brought before or concurrently with the action for the annulment of the designation of heirs. In an action of this kind the pleas of- prescription and r.es judicata entered by the appellants may be considered.
For the foregoing reason we dissent from the opinion *850held by the majority of this court and think that the judgment appealed from should be reversed and the complaint dismissed without special imposition of costs.