Heirs of Cruet v. Mandés

DISSENTING OPINION OP

MR. JUSTICE AUDREY, IN WHICH MR. JUSTICE FRANCO SOTO CONCURRED.

Isabelino Mandes y Montes appeared in tbe Civil Registry of Guayama on March 19, 1914, and caused the birth of the child Iris to be recorded as having occurred on the 17th of February of the same year, and the said child as being his legitimate daughter by his wife, Victoria Cruet Colón, and the grandchild of José Cruet Arroyo. Victoria Cruet Colón died six years later and two years thereafter, or on the 14th of June, 3922, José Cruet Arroyo, father of "Victoria Cruet, also died. In 1924 the widow of José Cruet Arroyo and the children of that marriage sued Isabelino Mandés and the child Iris, averring in their complaint the facts hereinbefore stated and, besides, that when the said Isabelino Mandés caused the child Iris to be recorded as his legitimate daughter by his wife Victoria Cruet he knew that the said child was not their daughter, inasmuch as they did not have any living children on the date of the registration, nor thereafter; that they believe in good faith, from information they have, that the said child Iris is the illegitimate daughter of Antonia Rivera and Juan Montero, her birth having taken place at a house of Juan Bautista Soto, in Gua-yama; that the said child Iris was born some time prior to the date set forth as the date of her birth in the entry in the civil registry; that said child was picked up by Victoria Cruet, wife of Mandés, at the moment when her mother, through her mental derangement, was trying to sink her in the Guamani river when the child was fifteen or twenty days old, and that Victoria Cruet at the time of her death had no descendants; that the real and true mother of Iris was .Antonia Rivera, who died at Guayama on the 15th of May, 1913; that the plaintiffs, having to proceed to the partition of the inheritance of José Cruet Arroyo, who died after the *775death of his daughter Victoria, have not been able to carry out said partition because it becomes necessary to declare void and of no effect the status of legitimate daughter of the child Iris, inasmuch as her registration as legitimate daughter is false, and because, if that record should stand, the child Iris would be entitled to inherit from José Cruet Arroyo in representation of his daughter Victoria, said record thus impairing the rights of the widow and children of José Cruet Arroyo. On those averments the plaintiffs prayed the court to adjudge void and of no legal effect the status of legitimate daughter of the said child Iris appearing in the entry of her birth in the civil registry.

The plaintiffs petitioned the district court to appoint as guardian ad litem for the child Iris her uncle Francisco Aponte, but the court appointed the district attorney. The default of the defendant Isabelino Mandés was entered, there appearing from the record before this court no answer filed by the guardian ad litem. Finally the case was tried, there being present the guardian ad litem, and the court rendered judgment dismissing the complaint. From this judgment the plaintiffs have taken this appeal.

The ground on which the appellants base their appeal is that the lower court, in dismissing the complaint, committed manifest error in weighing the evidence and was moved by prejudice.

The prejudice of a court when deciding questions submitted to it is not always based on improper, illegitimate or noxious motives against one of the parties, but it may originate from the nature of the question at issue, from an exr cessive zeal for what one believes is just, and especially from a kind disposition towards childhood, the sex and other analogous tender conditions. In cases like this in which the judge is under the impression that the true purpose of the suit is not to clear up and determine whether the little girl Iris is the legitimate daughter of the Mandés-Cruet marriage, to the end that, if she should not be, she may not be reckoned *776as an iieir wherein slie could only intervene as the legitimate daughter of such marriage, but simply to deprive thereby a child of her inheritance, in these cases the zeal for the protection of the child’s inheritance gives birth to a prejudice in the judge’s mind, not of a venal character, but rather altruistic and unconscious, but a prejudice nevertheless and one that places the judge in a position of not being able to weigh calmly the evidence before him to decide the true question, which is whether or not as a matter of reality the child in question is the legitimate daughter of certain persons. And that is what happened in this case. The judge of the lower court, in his zeal to protect the inheritance of the minor child as the legitimate offspring of the Mandés-Cruet marriage, was all through, the trial under the impression that this suit had been brought, not for the purpose of deciding the primal question of relationship, but to take away from this minor her inheritance, as may be seen from his questions at the trial, which we will now proceed to examine.

Isabelino Mandes testified at the trial that from his marriage with Victoria Cruet, and upon her death, there were no children; that Iris had been picked up by them when she was seven days old, when the mother was drowning her in the river; that the child’s mother was named Antonia Rivera, who died in the hospital, and her father was Juan Mon-tero, who was living; that he loved the child as if she were his own child; that his wife picked up that child and he recorded her in good faith as the legitimate daughter of their marriage, to complete the charitable act, as they had no offspring; that after the child had been recorded as the legitimate daughter of their marriage he consulted a lawyer who told him that he should have consulted the matter with the court and that they should have adopted the child, without recording her as a legitimate daughter; that Victoria’s father, the supposed grandfather of the child, died leaving some children and his wife, and when asked the reason why *777he was now saying that the child was not his daughter, he replied that the heirs of Victoria’s father wanted to arrange their testamentary matters;, whereupon the following dialogue was held between the judge and the witness: “Judge: Why did you wait till now to do this? Why did you not do this before? — Witness: I should have done it before. — Judge: Are you a widower? — Witness: Yes, sir. — Judge: So that... who would inherit from your wife at present, as things stand now? — Witness: Her relatives. — Judge: But at present, if that child was a legitimate child, who would inherit from her, would it not be Iris? — Witness: Yes, sir. — Judge: So that at present what they are seeking to clo is to disinherit ¿ris. And if you had done this before your wife perhaps would have adopted her, or might have left her a legacy?— Witness: I should have done this before. — Judge: And you did not do it to crush that little girl. That is the point, and now, when the mother is dead, there is nothing that can be done, and Iris will be left on the street. . . You may retire.” When this was over counsel for the plaintiffs asked the witness if he was not living on a piece of land which belonged to his wife, and he replied in the affirmative, and that the same was going to be passed over to Iris. Thereupon the judge intervened once more, the witness replying to him that the land consisted of seven and a half cuerdas, and that that was what he and his wife held, the judge forthwith asserting: “What they have doné thereby is to crush that child. You say that you love the child as her father? —Witness: Yes, sir, I love her as my daughter. — Judge: You may withdraw.” After other witnesses had testified Isabelino Mandes was again called to the stand, the following questions only having been put to him: “Judge: Who is José Cruet Arroyo? — Witness-: My father-in-law, he died. —Judge: And Ramona Colón, who is she? — Witness: My mother-in-law, she is living. — Judge: And Julio, Monserrate, Domingo, Marcolina, and Carmen Cruet y Colón, are they brothers and sisters .of your wife? — Witness: Yes, sir.— *778Judge: So that what they are discussing here is your wife’s inheritance to take it away from that little girl? — Witness: Yes, sir. — Judge: You may go.” Later on the judge, in Ms written opinion in the case to dismiss the complaint, asserts that this is a special case where it is intended to deprive a child from twelve to fifteen years old of her rights hy legitimation and, with them, of her share in the inheritance of her grandfather, and the child is entirely in the hands of parties antagonistic to her rights.

What we have transcribed here will convince us of the fact that from the beginning to the end of this suit the judge was laboring under the idea that the purpose of the suit was solely to deprive this child of the inheritance to which she might be entitled out of José Cruet Arroyo’s estate as the legal representative of Victoria, and not to ascertain the fact whether or not the child was really, the daughter of said Victoria and her husband Isabelino Mandes, an idea which prompts the judge to state in his opinion that if he had before him the said Victoria, Antonia Eivera and Juan Mon-tero perhaps he would change his opinion, when from the evidence he knew that to be impossible, because both women were dead and because Juan Montero was not compelled to give an answer to a question that might subject him to prosecution for adultery. And that prejudice was what led the judge to state in his opinion that said Victoria had accomplished the legitimation of Iris and repeat further on that it was she who legitimated the child, when as' a matter of fact the said Victoria did not do such a thing, but it was her husband who did it by recording the child as his legitimate daughter of his marriage with said Victoria. These statements the judge repeats once more when he says that said Victoria is charged with the false legitimation that is now contested. And this prejudice in the judge’s mind also leads him to error in the weighing of the evidence, which, in our opinion, was sufficient to sustain the complaint, as may he seen from the abstract that we will make of.it.

*779Besides tlie testimony of Isabelino Mandes, which we have quoted before, there were other witnesses who testified for the plaintiffs at the trial held on- April 24, 1924. Francisca Vicente testified that Antonia Bivera lived in her honse, in a room rented by her paramour Jnan Montero, and there they had the child Iris, who was born there some twelve years ago, the said Antonia Bivera having* been assisted during* childbirth by Antonia Beyes, who died some three years ago; that about nine days after the child was born the mother became insane and as her husband was at his work, the witness’ husband hired laborer Eladio Ortiz to take her over to the house of Lupe Aponte, her Uncle; that she witnessed the birth of that child, and that about eight days thereafter she was taken to Mandes’ house because her mother had become insane. Eladio Ortiz testified that he knew the child Iris; that she is the daughter of Antonia Bivera and was born in the house of Francisca Vicente; that he did not witness her birth, but that about nine days thereafter he was hired to take Antonia Bivera to the house of her uncle Lupe Aponte, where he took her with her daughter, the person who is present at this trial. Adolfo Poventud testified to have known Antonia Bivera and Juan Montero; that he was their neighbor and he knew that the child Iris came into the house of Isabelino Mandes and his wife Victoria Cruet because the mother of the child, Antonia Bivera, having become insane, was taken to the house of her uncle Gruadalupe Aponte, and the witness being standing by a brook, the mother plunged with her child into the deep pond, whereupon the witness ran and took the child from the insane woman, after which her uncle offered the child to the witness, but he did not accept her because his wife had given him twins, and it was then that the uncle spoke to said Victoria and she took the child; that Juan Montero was living with Antonia Bivera as her husband before the child was born and it was then that he saw Antonia Bivera pregnant; that he also saw Antonia Bivera after the childbirth; that that child is the same one *780the said Victoria picked up; that' the child is thirteen years old, which fact he knows because his wife had given him twins on the same date, and his son is thirteen years old and was born in 1912; that that child was taken to Isabelino Mandes’ house when she was about twenty days old; that her mother died insane in the Guayama Hospital; that he saw when Guadalupe Aponte took the child to Mandes’ house, to be taken in as a daughter, when the mother was still living*, and that Juan Montero was in the house when the child was bom, but afterwards he left for Comerlo; that he was a married man and was working as a mechanic in the Irrigation Works of Guayama. Estefanía Poventud did not know Antonia Eivera, but she saw her when she became insane, and she knows that Iris was very small when she was turned over to the spouses Mandés-Cruet; that Victoria said to her at the time: “See what the Three Kings have brought me”; that the witness was in Mandes’ house and was the person charged with looking after the child, and Mandes had warned her not to say to the child that they were not her parents; that that child was not the daughter of the spouses Mandés-Cruet, who never had any children, but they brought her up; that the child’s mother she saw on two occasions, when she went to see her daughter. Francisco Aponte, uncle of Antonia Eivera, testified that the child Iris is a relative of his, because she is the daughter of his niece Antonia Eivera, and that he knew Juan Montero, who is the father of the child, and he knows that they lived together on the property of Francisca, the wife of Bautista Soto; that he had spoken to the child and told her that they were relatives because she asked him, and that he knows it to be a fact that that child is not the daughter of the Mandés-Cruet spouses, but that they brought her up since she was horn. Julio Cruet testified that his sister Victoria left no children when she died; that she is not the mother of Iris; that he knew the child’s parents; that his sister Victoria left a landed estate and it was the intention of José Cruet’s heirs to leave this estate *781to tlie child, because the person who brought the child up had intimated that when this business should be terminated the said property should be conveyed to the child although she was not her daughter, and that if Iris were the daughter of Victoria she would be entitled to about one thousand dollars out of the estate of José Cruet Arroyo.

From the documentary evidence also appears as proved the death of José Cruet Arroyo, which occurred on the 15th of May, 1913, and from his will that the plaintiffs herein are his heirs. The assessment made by the Treasurer of the property left by José Cruet Arroyo aggregates $10,050, and as half of this amount is community property belonging to the widow, there will be a remnant of $5,025 to be divided among her six children, and if Iris should be the legitimate daughter of Victoria, then that amount would have to be divided among seven heirs, the sum of $717 to be allotted to each, should there be no reduction of the inheritance.

. It is true that the evidence in cases of this nature should be strong, robust and convincing; 'but, in our opinion, those requirements are met in the evidence submitted at the trial of this case, since all of the witnesses, among whom are relatives of the child, testified that she is not the daughter of the spouses Mandés-Cruet, there being no contradiction among them, and being worthy of credit the testimony of Isabelino Mandés because he testified against his own interest, inasmuch as if Iris were the legitimate offspring of his marriage with Victoria the child would be entitled to a share in the inheritance of José Cruet Arroyo. And the interest of said Isabelino Mandés in the share falling to Iris is not limited to the usufruct of it during the minority of the child, but he would have over said share the right of inheritance in case the death of the child occurred before she had any offspring.

It is urged in the opinion of the majority of this court that Mandés did not explain why he did not follow the advice given to him by attorney Dominguez, but that explana-*782üoii can be found among Ms own words, since be testified that be had consulted the lawyer after be bad recorded the child as bis legitimate daughter, and that the lawyer limited himself to saying that in place of that registration be should have adopted the cMld as his daughter, but he did not advise him what to do to set aside what had been wrongly done. It is also said that this lawyer should have been brought in as a witness to corroborate Mandes’ statement, but this witness could not be permitted to testify, his testimony being res inter alios acta.

We cannot agree either with the statement made by the majority of the judges of this court to the effect that the demeanor of the district judge at the trial was only a timely warning to the plaintiffs that it was incumbent upon them on instituting a suit to be ready with robust and convincing evidence to prove their case, because nothing of that nature can be inferred from Ms words, but only the expression of a fixed idea in his mind that the plaintiffs wanted to take an inheritance away from this child. And the judges of this court, in affirming the judgment appealed from, go as far as supposing, without any basis for it, that the child may be the daughter of Mandés and Antonia Eivera, only because it does not appear from the trial the date of the marriage of Mandés and Victoria, nor the date when Antonia Eivera was divorced. It is also said that Mandés testified that his wife and another man had prevented the child from being drowned, and he had taken possession of her at that moment, and that the true hero on that occasion (Adolfo Poven-tud) does not mention that Victoria, had been present, but said that later on Guadalupe Aponte, uncle of Antonia Ei-vera, asked him if he wanted the child, and that he refused her and suggested to him to pass her over to Victoria, and that it was then that the uncle spoke to Victoria; that he witnessed the turning over of the child some three weeks after, and that Antonia Eivera died just about that time. However, we cannot see those contradictions that it is in*783tended to point out, for what Maudes said was that the mother of the child jumped into the brook, and that on the screaming that ensned his wife and a man ran ont and picked her np, and as she did not have a family, he took her to his house and brought her up; which does not mean that it was then, just at that very moment, that he took up the child, and that the said child might not have been turned over to bim until some days later. Nor does the fact that Poven-tud limited himself to speaking of his intervention in the incident, without referring to Victoria, exclude the possibility of her taking part in the act of -saving the life of the child. And finally the fact that the witnesses did not, agree as to the exact date of Iris ’ birth is no ground either for dismissing the complaint, for that point is an accessory and immaterial fact in this suit, wherein the real and sole question is whether or not the child is the daughter of the spouses Mandés-Cruet. Because the question of dates as a rule is a weak proposition among witnesses, as can be seen from the testimony of Adolfo Poventud, pointed out as the hero on that occasion, who testified at the trial in 1924 that his son. who was of the same age as Iris, was thirteen years hid, stating nevertheless that he was born in 1912, which statement would bring his son down to twelve years old. And because from the testimony of all the witnesses the conclusion is reached that Iris was born in 1913, all of the witnesses testifying as to the insanity of Antonia Rivera shortly after her labor, which fact determined the turning over of the child to somebody else while still so small, and that said Antonia Rivera died shortly thereafter, her death appearing from documentary evidence to have occurred the 15th of May, 1913.

The evidence in this case leads us to the conclusion that this is one of the instances where the generous feeling of a childless marriage would prompt it to record as its legitimate offspring the child of other parents, with the noble aim of protecting a helpless child, and transmitting to it their in*784heritance, never giving any thought to the possibility of the death of either one of the fictitious parents, and with it the impairing of the rights of persons who had nothing to do with the legitimation, and who have no alternative but to attack it or permitting that a strange person get into their family and be the subject of an inheritance to which he or she is not entitled, thereby reducing their share. And when cases of this nature are brought to the cognizance of the courts no thought should be given to speculations as to whether the persons claiming have as sole motive to secure a few hundreds or thousands of dollars more, but the court should have in mind that, independently of that fact, the real question is whether or not the persons recording a child as their legitimate offspring are the true parents of such child. The case would not be a new one where a married couple, ■getting old and impelled by noble feelings, should record as their child the offspring, the natural progeny of a married couple that would not listen to the dictates of their conscience, and the true legitimate children, growing deeply attached to the strange child, have refused to assail such legitimation, permitting that said child be allotted a share in the inheritance as if he really were the offspring of the said married couple.

In fine, we should assert that there is legal nexus between the plaintiffs and the defendants, a fact which was denied in the concurring opinion, because if the child Iris is not the legitimate daughter of the spouses Mandés-Cruet, her appearing as such would impair the rights of José Cruet Arroyo’s heirs, inasmuch as it would reduce the hereditary share of each heir by having to allot to the child a share equal to theirs, and as wherever there is a wrong there is always a remedy, as this court asserted in the ease of García v. García, 18 P.R.R. 932, a case which is very similar to the one under consideration inasmuch as in the former case a child was seeking to annul the registration of its birth in the civil registry as the illegitimate son of a man who was *785not Ms father, hut who recognized him as such through his, affection for him, and in which case the district court was also laboring under the idea that the recognition or acknowledgment of said minor as the son of the defendant could not be assailed.

Finally, we are of the opinion that the judgment appealed from should have been reversed, rendering in lieu thereof another for the plaintiffs.

I am authorized by Mr. Justice Franco Soto to state that he concurs in this dissenting opinion.