Elicier v. Heirs of Cautiño Insua

70 P.R. 407

• Court: Supreme Court of Puerto Rico
• Decided: July 29, 1949
• Docket: No. 9863
• Status: Published

Opinions

Mr. Justice Marrero

delivered the opinion of the Court.

Zaida Elicier alleged four causes of action in the complaint filed by her against the Heirs of Genaro Cautiño In-sua, composed of his widow Monserrate Bruno Domínguez de Cautiño and his son Genaro Cautiño Bruno. In the first she mantained that on or about the years 1918 and 1920, Genaro Cautiño Insua and Margarita Elicier had sexual relations as a result of which she was born on February 19,1920; that during all the time which elapsed since her conception and birth up to the death of Genaro Cautiño Insua on May 1,1946, he had considered her as a daughter; that by virtue of that voluntary action of Genaro Cautiño Insua she acquired the capacity of his acknowledged natural child; and that the defendants, by their voluntary action also have acknowledged her as a daughter of Genaro Cautiño Insua, defendant Genaro Cautiño Bruno having always treated her as his sister. In the second cause she' alleged that Genaro Cautiño Insua died under a will executed on April 21, 1946, and that he instituted the defendants as his sole and universal heirs; that at his death he was owner of real and personal property situated in Puerto Rico having a total value of $3,000,000; that the defendants are carrying out the partition of said estate and making the operations of inventory, liquidation, and division thereof behind her back; and that they have refused to give her the fruits and rents which belong to her from said estate and to render accounts thereon. In the third, she set up that the defendants have been receiving for their own benefit the fruits and rent of the estate left by her predecessor in interest. And in the fourth, that she and the defendants have not been able to reach an agreement as to the form of making the inventory, valuation, distribution, and partitional transactions of said estate.

To said complaint the defendant Cautiño Bruno filed a motion to dismiss for lack of facts sufficient to constitute a cause of action, and attached thereto a faithful copy of the certificate of the only marriage held, on July 16, 1905, between Genaro Cautiño Insua and the codefendant Monse-rrate Bruno Dominguez, with whom, as it was alleged, Cau-tiño Insua was married until, the time of his death. Upon sustaining that motion, the lower court stated in the course of its decision that “. . . the parties orally agreed and stipulated in open court that the complaint should be considered as stating that the alleged acknowledgment of the plaintiff as daughter of the predecessor in interest by voluntary action of the latter and of the defendants, does not appear from any record, will, or any public document of the predecessor or of the• defendants." (Italics ours.) Subsequently, and on petition of both defendants, the court rendered judgment in their favor and dismissed the second, third, and fourth causes of action of the complaint, without prejudice to leaving open the first cause of action to be litigated by the parties.

From that judgment the plaintiff has appealed and now contends that the lower court erred (1) in sustaining the motion of defendant Cautiño Bruno for dismissal of the second, third, and fourth causes of action of the complaint, and (2) in sustaining the motion of the defendants praying that judgment be rendered dismissing the complaint as to the causes of action above mentioned, since they do not state facts sufficient to constitute a cause of action.

In discussing the preceding errors, the plaintiff contends that we should reverse the case of Correa v. Heirs of Pizá, 64 P.R.R. 938, as well as those of Cruz v. Andrini, 66 P.R.R. 119, Fernandez v. Heirs of Fernandez, 66 P.R.R. 831, which followed the former. Moreover, he argues that it is not true that Act No. 229 of May 12, 1942 (Laws of 1942, p. 1296) "was approved in the light of our Civil Code, especially of § 125 thereof, and that the debate in the session room of the Senate among Senators Géigel Polanco and Iriarte did not involve H. B. No 242 — which when subsequently presented as a substitute bill in the Senate became Act No. 229 of 1942 — but S. B. No. 340, which was never approved by the Legislature.

Section 2 of Act No. 229, supra, as amended by Act No. 243 of May 12, 1945 (Laws of 1945, p. 814), provides :

“Section 2. — Children born out of wedlock prior to the date this Act takes effect, and who lack the qualifications of natural children according to previous legislation, may be recognized for all legal purposés by the voluntary .action of their parents, and in their default, by that of the persons having the right to inherit therefrom. These children will be legitimized by the subsequent marriage of the parents to each other.

“In case the children referred to in this Section are not recognized by the voluntary action of their parents, and in default of the latter, by that of the persons haying the right to inherit' therefrom, said children shall be considered as natural children for the sole purpose of bearing the surname of their parents. The action for this recognition shall be prosecuted in accordance with the procedure fixed by the Civil Code of Puerto Rico for the recognition of natural children; It being understood, however, That such a recognition shall only have the scope herein expressed.”

The record shows that when the plaintiff was born her alleged father was married to Monserrate Bruno Dominguez. Consequently, at the date of her birth and under the Act then in force, she was an illegitimate child without any right to request her acknowledgment.¹ The Section above cited allows, however, that the children born out of wedlock prior to its taking effect who lacked the qualification of natural children according to previous legislation, be recognized for all legal purposes by the voluntary action of their parents, and in their default, by that of the persons having the right to inherit therefrom. It also provides that when such recognition is not made by voluntary action of the father or of his heirs, the natural child may institute an action of his recognition for the sole purpose of bearing the surname of his father.

In Correa v. Heirs of Pizá, supra, we held that the voluntary action of the father contemplated by § 2 of Act No. 229 of 1942, requires the acknowledgment' by the father by a birth certificate or the execution by the putative father of a will or any other public document. The repeated and careful study we have made of appellant’s brief, of the arguments set forth therein, of the citations made, and of the' legislative process which culminated in the approval of the bill, which upon being signed by the Governor of Puerto Rico bears No. 229 of the Laws of 1942, does not convince us that we should change our views on the matter and, therefore, reverse our decision in said case or the following ones. It is true that the debate between Senators Géigel Polanco and Iriarte turned on $.B. 340 and not on the Senate Bill substituted for H. B. 242, which finally became Act No. 229 of 1942.² However, there is nothing in this debate which indicates to us that some member of the Legislature believed that any of said bills had as its purpose a different result than that which we reached in the case of Pizá. Be it as it may, statutes should be interpreted on the basis of what the Legislature did, and not on what it did not do, nor on the personal action of one of its members. 70 A.L.R. 26, 28; State v. Marxhausen, 171 N.W. 557, 3 A.L.R. 1505; Reed v. Piston, 132 Pac. 109; Ann. Cas. 1515A, 1237; 50 Am. Jur. 318, § 326. Our view continues to be that Act No. 229, as amended, operates prospectively only and that although the persons born prior to its taking effect, who in accordance with the prior legislation lacked the status of natural children, may under the Act in force be acknowledged by voluntary action and enjoy by virtue thereof all the rights conferred by law on the legally acknowledged natural children, however, such recognition by voluntary action should be based on the second paragraph of § 125 of the Civil Code, 1930 ed., which requires a recognition in the birth, certificate, in a will, or in any other public instrument. The uninterrupted possession of the status of natural child of the defendant father, prior or subsequent to the taking effect of Act No. 229 of 1942, by express provision of said Section, may only serve as a basis for a judicial action for the obligatory recognition of the child by the alleged father or by his heirs, but in a case like the present one for the sole purpose, of course, of bearing the surname of the father. The acknowledgment by judicial action, is not, consequently, the acknowledgment by voluntary action referred to in § 2 of Act No. 229.

The rule set forth in Correa v. Heirs of Pizá, supra, to the effect that under § 125 of the Civil Code, 1930 ed., status as natural child is granted (1) by voluntary action of the father but only by means of public instrument; (2) by involuntary action through a judicial proceeding which compels the putative father to recognize him, was not new in this jurisdiction. Since 1910 we stated in Armsterdam et al. v. Puente et al., 16 P.R.R. 527, 533, the following:

“It is conceded that there have always been two kinds of acknowledgments, one voluntary and one obligatory. The distinction between these two kinds of acknowledgments is drawn in the Gual3 case, when it speaks of the rights consequent upon a solemn and authentic recognition of natural affiliation. .

“We 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.” (Italics ours.)

See also Puente et al. v. Puente et al., 16 P.R.R. 556, 559; Matienzo v. Morales et al., 16 P.R.R. 553; Rijos v. Folgueras et al., 16 P.R.R. 593, 598; Calaf etal. v. Calaf, 17 P.R.R. 185, 197; Rivera v. Cámara, 17 P.R.R. 503 (reversed on other grounds in Sampedro v. Fournier, 69 P.R.R. 543); Peñagarícano v. Peñagarícano et al., 19 P.R.R. 472, 475; Figueroa v. Diaz et al., 19 P.R.R. 683, 691; González et al. v. López et al., 19 P.R.R. 1056, 1059; Figueroa v. Díaz et al., 20 P.R.R. 270, 273; López v. López et al., 23 P.R.R. 766, 769. Ignorance of the interpretation which through the years and in a series of uninterrupted cases we have given to § 125 of the Civil Code and the purpose of implicitly repealing it can not be attributed to the lawmaker. In approving Act No. 229 of 1942, he did it in the light of the. construction given to that Section.

The plaintiff admitted in the stipulation made in open court that she has not been recognized in the birth certificate, or by will, or any other public document. There has not been, therefore, an acknowledgment by voluntary action. Therefore, the second, third, and fourth causes of action of the complaint fall from their own basis.

What we stated above and what we stated in Correa v. Heirs of Pizá, supra, in connection with the recognition by voluntary action on the part of a supposed father is applicable mutatis mutandis to the acknowledgment by voluntary action of his heirs. The lower, court did not commit the errors assigned.

The judgment appealed from should be affirmed.

1 See §§ 112, 119, and 125 of the Civil Code, 1930 ed.

2 The appellant states in his brief that the contention of Senator Iriarte in said debate was that S. B. 340 should be amended in such a manner that its operation be both retroactive and prospective, and that its provisions should benefit the adulterous children born before the said legislation took effect as well as the adulterous children born after its taking effect; and that after the debate concerning S. B. 340 the Senate considered H. B. 242 and then Senator Iriarte did not raise any objection and voted in favor of S. B. 242 as amended, as well as in favor of the substitute bill that later became Act No. 229 of 1942. The appellant goes on to state that “The conclusion is immediately noticed: If the only objection of Senator Iriarte to S. B. 340 was that it only operated prospectively when he voted in favor of H. B. 242 as amended and of its substitute bill, it was because H. B. 242 had a retroactive effect.” She then reaches the. conclusion that the legislative intent was to liberalize prior legislation as to the children born out of wedlock and that the voluntary action of paragraph 2 of § 125 is identical to the voluntary action provided in subdivisions first, second, and fourth of the second paragraph of said Section, except in that they have different forms of expression.

3 Gual et al. v. Bonafoux et al., 15 P.R.R. 545, 553.