Ortiz v. American Railroad

9 P.R. Fed. 273

• Court: District Court, D. Puerto Rico
• Decided: December 18, 1916
• Docket: No. 1163
• Status: Published

Opinion

HamiltoN, Judge,

delivered the following opinion:

This suit comes on for hearing upon the motion of plaintiff to strike from the answer the allegation “that if the said Francisco Vazquez, known as Carmona, was the son of plaintiff, he was an illegitimate or natural child, and hence plaintiff is not entitled to recover, in accordance with the laws of Porto Rico,” etc.

1. It has been decided by this court in the case of Vargas v. Ezuaga, 8 Porto Rico Fed. Rep. 625, that when a suit is brought by a mother under § 60 of the Code of Civil Procedure, the recovery can be had only if the child is legitimate. In this the court followed the construction of the Supreme Court of Porto Rico in the case of Diaz v. Porto Rico R. Light, & P. Co. 21 P. R. R. 78. The principle there involved was that, where relationships are mentioned in the statute, they are to be construed as referring to legal or legitimate relationships. At common law — and both §§ 60 and 61 are of common-law origin — a bastard has no father and is considered the son of nobody, filius nullius. Simmons v. Bull, 21 Ala. 501, 56 Am. Dec. 257; McDonald v. Pittsburgh, C. C. & St. L. R. Co. 144 Ind. 459, 32 L.R.A. 309, 55 Am. St. Rep. 185, 43 N. E. 447.

2. The present question, however, comes up under § 61 of the Code of Civil Procedure, which permits recovery by an “heir,” and under §§ 1 and 16 of the Porto Rican Act of March 9, 1905, an illegitimate child may transmit his rights to his parents, or either of them, in the event of there being no legitimate relation and in the event the child has been legally acknowledged by the parent in question.

There can be no supposition in this case that the father or mother must be beir of a legitimate child, for the law provides for the very case of the absence of such relationship.

The recognition in question is provided for in Civil Code, § 193, as amended March 9,1911, as follows:

“The natural child may he recognized by the father and mother conjointly or by one of them only either in the record of birth or in the testament or in any other public instrument. . . . The child, if of age, cannot he recognized without his consent. When the recognition of the minor is not made at the time of recording the birth or in the testament, the approval of the judge of the district where the child resides with the concurrence of the fiscal shall he necessary.”

It follows, therefore, that a mother may he the heir of an illegitimate child for the purposes of suit under § 61 of the Code of Civil Procedure.

3. In the case at bar the question does not come up on the facts, hut upon a motion to strike a part of the answer which says that the decedent’s son was an illegitimate or natural child, and hence the plaintiff was not entitled to recover. This allegation is argumentative, and even as an argument does not go far enough. A child may he illegitimate and nevertheless, under some circumstances prescribed in the Porto Rican law, may have rights of inheritance under the Porto Rican law.

On the argument an offer was made to amend the answer by adding the statutory provision as to recognition by mother, and this was done in general terms. This could he so expressed as to he a defense to the allegation of heirship, and no reason appears why it must he expressed as merely a denial of heirship. It might he expressed in a detailed manner so as to show why she was not such heir. But the proposed amendment is not full enough, to meet the case. Suffice it that the allegation in its present form, even as amended, is not a proper answer to the complaint, and so should be struck out of the answer.

The motion is therefore granted. It is so ordered.