dissenting.
The complaint in this case was presented by Josefa Colón as mother of her minor son Alberto Colón, is addressed against the mother of Alberto J. Tristani, as his sole and universal heir, and its object is that her son be declared the acknowledged natural son Alberto J. Tristani, for these two reasons: 1, that he was engendered and born while his mother lived in concubinage with Alberto J. Tristani, while both wbre single; 2, that the said minor enjoys the uninterrupted condition as of a natural son of his alleged father, justified by the acts of the latter. The nullity of the declaration of heir-ship made in favor of Tristani’s mother is also sought.
The judgment rendered herein by the lower court dismissed the complaint and this appeal was taken.
Concubinage is the cohabitation by a man and a woman, who, being single, live in the same house just as if they were husband and w;ife. It is a status similar to that of the marriage but without the celebration thereof. As we said in the case of Medina v. Heirs of Bird, 30 P.R.R. 151, the concubinage to which the Civil Code alludes, refers to the condition of a man and a woman living as husband and wife without being really married, it being insufficient for the existence of a concubinage that a man have a toman in a house and visit her frequently, if the man has his own and independent home. As this Court said in the case of Gerena v. Heirs of Suau, 36 P.R.R.. 151, when a man lives in a house different from that of a woman with whom he has sexual intercourse, concubinage does not exist even though he visits her in certain occasions.
In the present case it appears from the evidence that Alberto J. Tristani and Josefa Colón, mother of the minor in whose name the complaint for filiation is brought, did not live together in a house as husband and wife, but on the contrary, that at the time in which the child was engendered and born, Tristani lived, and had his home, in the house of his mother; Josefa Colón living in another house in the com-*202paxiy of a sister -who was the mistress of another man; and that Tristani visited Josefa at night and left for his house about one o’clock in the morning. This evidence, which was unanimous, does not show the existence of a concubinage between them, but solely that Josefa Colón was the mistress of Tristani.
The opinion which serves as basis to the judgment of the majority of this Court, in reversing that of the court below, admits that Tristani did not live in concubinage with the mother of the minor, and says that Josefa Colón w'as the mistress of Tristani; and although that does not establish a legal presumption of paternity when concubinage is not shown, once illegal sexual intercourse is established, a moral presumption arises so hard to rebut as in cases of concubinage. In other words an attempt is made to consider the relations, of a man with his mistress as equivalent to the' status of concubinage, with a presuniption not existing in law.
The secret of paternity has compelled the law to make use of presumptions with regard to the children and for this reason those born during the marriage have the presumption that they are the children of the husband and those engendered and born during concubinage enjoy the presumption in our law that they are the children of the paramour, owing to the similarity existing between both status, but the law has not considered the children of a mistress similar to those of a concubine. The law has even admitted that the children born from the concubinage are the children of the paramour, but it has not gone beyond that, nor declared that the children of a mistress are the children of the man who has sexual intercouse with her. Who can presume in law who is the father of the children of a Woman who does not live with a man under the same roof? Consequently, from the fact that a man has sexual intercourse with' a woman as his mistress, no presumption arises, not even a moral one, unknown to the law. Concubinage is easy to prove, but it was not shown in this case. For a concubinage, the same as for a marriage, *203the evidence with regard to the legal stains of the children is the marriage alone or the state of concubinage and in either case it is unnecessary to prove sexual intercourse, because the law presumes it. Consequently, evidence of sexual intercourse between a man and his mistress creates no presumption of paternity in so far as the man is concerned.
Evidence of the uninterrupted condition as of a natural child of a man is more difficult. In several cases we have held that such evidence should be strong and convincing, and it should be understood that it must he so, because it tends to introduce in a family and in an estate, a person which is not a part thereof until by judgment he is declared to be the natural son of the father imputed to him. And in cases like the present, in which the person to whom paternity is attributed is dead, evidence should be considered with caution because it should be borne in mind that it is difficult, if not impossible, for the heirs of the alleged father to contradict the words and deeds attributed to the alleged father. Torres v. Heirs of Caballero, 39 P.R.R,. 654. This does not mean that after the death of the alleged father it may not be held that a person is his natural child by reason of the acts and statement of the alleged father, but solely that evidence of that kind should be examined and weighed with great care.
The affair between Tristani and Josefa began in 1922; on January 16, 1924, the child in whose name the complaint is brought, was born; these relations ended in 1924 and Tris-tani died in October, 1928; consequently, the child was a year old when said relations concluded.
Alberto J. Tristani paid half of the rent of the house in Which Josefa Colón lived and paid for a small house which she bought; these being acts which do not imply an acknowledgment of the child born, but only the support and welfare of his mistress. The payment of the fees of the midwife who attended Josefa, by itself is neither an act of acknowl*204edgment of the paternity of tlie child. Some witnesses testified that Tristani told them that the child had by Josefa Colón was his son.' The lower court, which heard the witnesses testify and saw the manner in which they expressed themselves, was in a better position than this court to weigh their credibility, and in onr opinion a manifest error has not been shown which would justify the reversal of the judgment rendered by it. As a general rule, in cases like the present we do not reverse the conclusions reached by the lower court, as we said in Mercado v. Heirs of Mangual, 35 P.R.R. 388, wherein w!e cited the cases of Castro v. Quiñones, 29 P.R.R. 692 and of Montalvo v. Montalvo, 25 P.R.R. 800. The fact that the lower court did not doubt the good, faith with which the witness Fortier testified, although saying that it could not forget that he was the paramour of Josefa’s sister, and the fact that at the time he testified said relations had ended, is not by itself a ground for reversing the judgment. And neither that the court stated that Petrona Suárez testified the Josefa Colón had had a son in New York after her relations with Tristani ended, when this does not appear from her testimony, for the manner in which she answered, judging from the record, could have led the court to believe that that was a fact, although she refrained from saying so.
With the evidence presented regarding the acts and statements of Tristani and with the weight given to it by the lower court, I am of the opinion that the judgment appealed from should not have been reversed.
I shall not go into the evidence of reputation, and just like the court below, I am not considering the evidence given by the physicians.
I am authorized to state that Mr. Justice Wolf concurs in this opinion.