Bianchi Martínez Rosafá v. Heirs of Bianchi Rosafá

67 P.R. 557
CourtSupreme Court of Puerto Rico
DecidedJuly 11, 1947
DocketNo. 9365
StatusPublished

This text of 67 P.R. 557 (Bianchi Martínez Rosafá v. Heirs of Bianchi Rosafá) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bianchi Martínez Rosafá v. Heirs of Bianchi Rosafá, 67 P.R. 557 (prsupreme 1947).

Opinion

Mr. Justice Marrero

delivered the opinion of the Court.

In the amended complaint filed in this case it is alleged, in substance, that the predecessor in interest of the defendant heirs, Francisco Bianchi Bosafá, died on April 12, 1945; that the plaintiff is an acknowledged natural child of said predecessor in interest and was born as the result of the sexual relations .between the latter and plaintiff’s mother Carmen Tomasa Martínez Bovira, both his parents being single at that time, and there being no impediment to their contracting marriage at the time of his conception and birth, which took place on May 13, 1912; that Alfonsia Courtier, in her capacity as midwife, assisted the mother of the plaintiff at the request of his father Francisco Bianchi Bosafá, who paid said midwife for the services rendered by her; that Francisco Bianchi Bosafá always recognized the plaintiff as his natural son and accorded to him privately and publicly, the intimate and manifest treatment of an acknowledged natural child; that when plaintiff was six years old, he and his mother moved to the city of Ponce, where she continued to receive financial assistance from Francisco Bianchi Bosafá for the support of the plaintiff, and that Bianchi Bosafá continued this practice until the year 1923, when plaintiff’s mother died; that after his mother died plaintiff moved to the home of his uncle Dario Bovira, in San Juan, and during [559]*559that time he continued to receive financial aid from his. father, personally and by mail; that upon the death of his uncle Darío Rovira in 1929, the plaintiff requested formal acknowledgment by his father, but that the latter always answered that he would acknowledge him at the opportune time; that the relatives of Bianchi Rosafá are aware that the plaintiff is an acknowledged natural son of that gentleman, the formal acknowledgment not having been carried out due to the firm resolution of his father to do it at the opportune time; that due to the affection and respect in which the plaintiff had always held his father, he, at all times, relied on the statements of the latter, but that since his father died without having complied with his offer, he has been forced to claim the right belonging to him.

The defendants Maria Bianchi Suárez, Jaime Bianchi. Ló-pez, and Luis Guasp Bianchi answered the. complaint and denied the essential averments thereof. The remaining defendants are in default.

The issue having been thus joined, the ease went to trial, and ample oral and documentary evidence was introduced. Afterward the lower court rendered an extensive opinion declaring the plaintiff an acknowledged natural child of Francisco Bianchi Rosafá with all the rights pertaining to that status. Feeling aggrieved by that decision, Juan Bianchi López and Luis Guasp Bianchi have appealed to this Court.

In support of their appeal they have assigned four errors, to wit: (1) that the lower court erred in holding that Frán-cisco Bianchi Rosafá lived in concubinage with plaintiff’s mother; (2) in declaring that the plaintiff has been in the uninterrupted possession of the status of a natural child of Francisco Bianchi Rosafá; (3) in rejecting and ignoring the allegation of the defendants-appellants that since the plaintiff took steps through his friends Pedro Blanch and Waldemar Bithorn to obtain his acknowledgment as a child of Francisco Bianchi Rosafá, and since the latter did not include the [560]*560plaintiff as a son and heir in Ms will, there arose a question of law, consisting in that the decedent expressly and by means of a privileged (sic) document, denied his acknowledgment to the plaintiff, the oral testimony regarding snch acknowledgment, which was the only evidence introduced on this point, being thus discredited; and (4) that the oral testimony introduced by the plaintiff did not establish either the concubinage or the uninterrupted status of an acknowledged natural son, and therefore the court a quo committed manifest error in the weighing of that evidence, and its conclusions of law are not only not supported by the evidence but are against the weight thereof.

Since the errors numbered 1, 2, and 4 relate to the weighing of the evidence by the lower court, it is necessary to make the following summary thereof:

Rafael Bianchi Martinez is the plaintiff herein and was, born on May 13, 1912, in Mayagiiez, Carmen Tomasa Mar-tínez being his mother. He remembers that Francisco Bian-chi Rosafá visited his mother from time to time and treated him “as my father, since he was my father.” He called him “Rafaelito my son” and he called Bianchi Rosafá “father.” After he moved to Ponce with his mother, Bianchi Rosafá visited her and treated him as his child. He always called Bianchi “father.” While 'his mother lived in Ponce his father supported her and after her death, plaintiff came to live to San Juan with his uncle Darío Rovira, until the latter died in 1929. After the death of his uncle, he had occasion to see his father in San Juan and when he called on him in San Juan, Bianchi Rosafá used to give him $25 or $50. He always helped the plaintiff and treated him as his father, since he was such, “with much affection and as if I were his son.” The plaintiff went on various occasions to Maya-giiez and he always stayed in the home of his brother Juan Bianchi Ramos. In Mayagiiez he was introduced by Bianchi [561]*561Bamos to other children of Bianchi Bosafá. When introducing him Bianchi Bamos always said “this is a brother of ours.”

José Antonio Fabrogas was an employee of Francisco Bianchi Bosafá for 27 years and a man whom he fully trusted. He remembers that the plaintiff wrote requesting help and he sent to him $50 by order of Mr. Bianchi Bosafá. In his letters the plaintiff alleged that he was a son of Don Francisco, and when the witness read the letters to the latter ■ — Bianchi was almost blind — he would remark “leave that matter for later.” His impression is that “Martínez Bo-vira” is a son of Bianchi Bosafá. Bianchi did not state that the plaintiff was his son; he did not admit it, but he did not deny it, either.

Pedro Blanch testified that he and Francisco Bianchi Bo-safá were intimate friends and that he knew Carmen Tomasa Martínez since he was a child; that Bianchi Bosafá and Carmen Tomasa were sweethearts and afterwards cohabited in No. 2 Liceo Street, Mayagiiez; that their love affair started in 1911; that Don Paco — referring to Bianchi Bo-safá — visited her frequently and that on various occasions he' found him visiting there; that Cannencita, who was at that time fourteen or fifteen years of age was the mistress of Don Paco and that when she gave birth she was assisted by a midwife called Alfonsia Courtier; that he saw when Bianchi gave an envelope to said midwife but that he did not know what it contained; that Cannencita continued to be the mistress of Don Paco, while he lived in Mayagiiez, and that he moved to San Juan in 1913; that Cannencita had a child and Don Paco called him his son; that while he was in San. Juan the minor was introduced to him by Darío Bovira and that he recognized him by a birthmark that plaintiff has; that on one occasion he went with Dario to the Palace Hotel in order to see Don Paco Bianchi regarding the acknowledgment of the child and Don Paco answered “I will fix that [562]

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67 P.R. 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bianchi-martinez-rosafa-v-heirs-of-bianchi-rosafa-prsupreme-1947.