G.R. No.

L-5426 May 29, 1953

RAMON JOAQUIN, petitioner,

Agrava, Peralta & Agrava for petitioner.

TUASON, J.:

This three proceedings was instituted in the Court of First Instance of Manila in the summary
settlement of states of Joaquin Navarro, Sr., his wife Angela Joaquin de Navarro, Joaquin Navarro,
Jr., and Pilar Navarro, deceased. All of them having been heard jointly, Judge Rafael Amparo handed
down a single decision which was appealed to the Court of Appeals, whose decision, modifying that
the Court of First Instance, in turn was elevated to the Supreme Court for review.

The main question represented in the first two courts related to the sequence of the deaths of Joaquin
Navarro, Sr., his wife, and their children, all of whom were killed in the massacre of civilians by
Japanese troops in Manila in February 1945. The trial court found the deaths of this persons to have
accurred in this order: 1st. The Navarro girls, named Pilar, Concepcion and Natividad; 2nd. Joaquin
Navarro, Jr.; 3rd. Angela Joaquin de Navarro, and 4th, Joaquin Navarro, Sr. The Court of Appeals
concurred with the trial court except that, with regard to Angela Joaquin de Navarro and Joaquin
Navarro, Jr., the latter was declared to have survived his mother.

It is this modification of the lower court's finding which is now being contested by the petitioner. The
importance of the question whether Angela Joaquin de Navarro died before Joaquin Navarro, Jr., or
vice versa, lies in the fact that it radically affects the rights of succession of Ramon Joaquin, the present
petitioner who was an acknowledged natural child of Angela Joaquin and adopted child of the
deceased spouses, and Antonio C. Navarro, respondent, son of Joaquin Navarro, Sr. by first marriage.

The facts, which is not disputed, are outlined in the statement in the decision of the Court of Appeals
as follows:

"On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin
Navarro, Sr. and Angela Joaquin, together with their three daughters, Pilar, Concepcion, and
Natividad, and their son Joaquin Navarro, Jr., and the latter's wife, Adela Conde, sought refuge in the
ground floor of the building known as the German Club, at the corner of San Marcelino and San Luis
Streets of this City. During their stay, the building was packed with refugees, shells were exploding
around, and the Club was set on fire. Simultaneously, the Japanese started shooting at the people
inside the building, especially those who were trying to escape. The three daughters were hit and fell
of the ground near the entrance; and Joaquin Navarro, Sr., and his son decided to abandon the
premises to seek a safer heaven. They could not convince Angela Joaquin who refused to join them;
and son Joaquin Navarro, Sr., his son, Joaquin Navarro, Jr., and the latter's wife, Angela Conde, and
a friend and former neighbor, Francisco Lopez, dashed out of the burning edifice. As they came out,
Joaquin Navarro, Jr. was shot in the head by a Japanese soldier and immediately dropped. The others
lay flat on the ground in front of the Club premises to avoid the bullets. Minutes later, the German Club,
already on fire, collapsed, trapping many people inside, presumably including Angela Joaquin.

"Joaquin Navarro, Sr., Mrs. Joaquin Navarro, Jr., and Francisco Lopez managed to reach an air raid
shelter nearby, the stayed there about three days, until February 10, 1915, when they were forced to
leave the shelter be- cause the shelling tore it open. They flied toward the St. Theresa Academy in
San Marcelino Street, but unfortunately met Japanese Patrols, who fired at the refugees, killing
Joaquin Navarro, Sr., and his daughter-in-law.

"At the time of the masaccre, Joaquin Navarro, Sr. was aged 70; his wife Angela Joaquin was about
67 years old; Joaquin Navarro, Jr., about 30; Pilar Navarro was two or three years older than her
brother; while the other sisters, Concepcion and Natividad Navarro y Joaquin, were between 23 and
25."

The Court of Appeals' finding were all taken from the testimony of Francisco Lopez, who miraculously
survived the holocaust, and upon them the Court of Appeals opined that, "as between the mother
Angela Joaquin and the son Joaquin Navarro, Jr., the evidence of the survivorship is uncertain and
insufficient" and the statutory presumption must be applied. The appellate Court's reasoning for its
conclusion is thus stated:

"It does not require argument to show that survivorship cannot be established by proof of the death of
only one of the parties; but that there must be adequate proof that one was alive when the other had
already died. Now in this case before us, the testimony of the sole witness Lopez is to the effect that
Joaquin Navarro, Jr. was shot and died shortly after the living the German Club in the company of his
father and the witness, and that the burning edified entirely collapsed minutes after the shooting of the
son; but there is not a scintilla of evidence, direct or circumstantial, from which we may infer the
condition of the mother, Angela Joaquin, during the appreciable interval from the instant his son turned
his back to her, to dash out to the Club, until he died. All we can glean from the evidence is that Angela
Joaquin was unhurt when her son left her to escape from the German Club; but she could have died
almost immediately after, from a variety of causes. She might have been shot by the Japanese, like
her daughters, killed by falling beams from the burning edifice, overcome by the fumes, or fatally struck
by splinters from the exploding shells. We cannot say for certain. No evidence is available on the point.
All we can decide is that no one saw her alive after her son left her aside, and that there is no proof
when she died. Clearly, this circumstance alone cannot support a finding that she died latter than her
son, and we are thus compelled to fall back upon the statutory presumption. In deed, it could be said
that the purpose of the presumption of survivorship would be precisely to afford a solution to
uncertainties like these. Hence the son Joaquin Navarro, Jr. aged 30, must be deemed to have
survived his mother, Angela Joaquin, who was admittedly above 60 years of age (Rule 123, sec. 69,
subsec. (ii), Rules of Court).

"The total lack of evidence on how Angela Joaquin died likewise disposes of the question whether she
and her deceased children perished in the same calamity. There being no evidence to the contrary,
the only guide is the occasion of the deaths, which is identical for all of them; that battle for the
liberation of Manila. A second reason is that the law, in declaring that those fallen in the same battle
are to be regarded as perishing in the same calamity, could not overlooked that a variety of cause of
death can ( and usually do) operate in the source of combats. During the same battle, some may die
from wounds, other from gages, fire, or drowning. It is clear that the law disregards episodic details,
and treats the battle as an overall cause of death in applying the presumption of survivorship.

"We are thus led the conclusion that the order in which the members of the Navarro-Joaquin family
met their end is as follows: first, the three daughters Pilar, Concepcion, and Natividad; then the mother
Angela Joaquin; then the son Joaquin Navarro, Jr., and days later (of which there is no doubt), the
father Joaquin Navarro, Sr."

Much space in the briefs is taken in a discussion of whether section 334(37) of Act No. 129, now
section 69 (ii) of Rule 123 of the Rules of Court, has repealed article 33 of the civil code of 1889, now
article 43 of the New Civil Code. It is the contention of the petitioner that it did not, and that on the
assumption that there is total lack of evidence, as the Court of Appeals said, then Angela Joaquin and
Joaquin Navarro, Jr. should, under article 33, be held to have died at the same time.

The point is not of much if any relevancy and will be left open for the consideration when obsolute
necessity there for arises. We say irrelevant because our opinion is that neither of the two provisions
is applicable for the reasons to be presently set forth.

Rule 123, section 69 (ii) of the Revised Rules of Court, reads:

When two person perish in the same calamity, such as wreck, battle or conflagration, and it is
not (1) shown who died first, and there are no (2) particular circumstances from when it can
be inferred, the survivorship is presumed from the probabilities resulting from the strength and
ages of the sexes, according to the following rules:

xxx xxx xxx

Article 33 of the Civil Code of 1889 of the following tenor:

Whenever a doubt arises as to which was the first to die to the two or more persons who would
inherent one from the other, the persons who alleges the prior death of either must prove the
allegation; in the absence of proof the presumption shall be that they died at the same time,
and no transmission of rights from one to the other shall take place.

Most provisions, as their language plainly implies, are intended as a substitute for lacks and so are
not to be available when there are facts. With particular reference to section 69 (ii) of Rule 123, "the
situation which it present is one in which the facts are not only unknown but unknowable. By
hypothesis, there is no specific evidence as to the time of death . . . ." . . . it is assumed that no
evidence can be produced. . . . Since the facts are unknown and unknowable, the law may apply the
law of fairness appropriate to the different legal situation that arises." (IX Wigmore on Evidence, 1940
ed., 483.)

In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals cited the applied with the respect
to the deaths of the Navarro girls, pointing out that "our rule is taken from the Fourth Division of sec.
1936 of the California Code of Civil Procedure," the Supreme Court of California said:
 When the statue speaks of "particular circumstances from which it can be inferred" that one
died before the other it means that there are circumstances from which the fact of death by
one before the other may be inferred as a relation conclusion from the facts proven. The statue
does not mean circumstances which would shown, or which would tend to show, probably that
one died before the other. Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28, 96 Pac. 22. When
by circumstantial evidence alone, a party seeks to prove a survivorship contrary to the statutory
presumption, the circumstances by which it is sought to prove the survivorship must be such
as are competent and sufficient when tested by the general rules of evidence in civil cases.
The inference of survivorship cannot rest upon mere surmise, speculation, or conjecture. As
was said in Grand Lodge vs. Miller, supra, "if the matter is left to probably, then the statue of
the presumption."

It is manifest from the language of section 69 (ii) of Rule 123 and of that of the foregoing decision that
the evidence of the survivorship need not be direct; it may be indirect, circumstantial, or inferential.
Where there are facts, known or knowable, from which a rational conclusion can be made, the
presumption does not step in, and the rule of preponderance of evidence controls.

Are there particular circumstances on record from which reasonable inference of survivorship between
Angela Joaquin and her son can be drawn? Is Francisco Lopez' testimony competent and sufficient
for this purpose? For a better appreciation of this issue, it is convenient and necessary to detail the
testimony, which was described by the trial court as "disinterested and trustworthy" and by the Court
of Appeals as "entitled to credence."

Lopez testified:

Q. You said you were also heat at that time as you leave the German Club with Joaquin
Navarro, Sr., Joaquin Navarro, Jr. and the latter's wife?- A. Yes, sir.

Q. Did you fall? — A. I fell down.

Q. And you said you fell down close to Joaquin Navarro, Jr.? A. Yes, sir.

Q. When the German Club collapsed where were you? — A. We were out 15 meters away
from the building but I could see what was going on.

xxx xxx xxx

Q. Could there have been an interval of fifteen minutes between the two events, that is the
shooting of Joaquin Navarro, Jr. and the collapse of the German Club? — A. Yes, sir, I could
not say exactly, Occasions like that, you know, you are confused.

Q. Could there (have) been an interval of an hour instead of fifteen minutes? — A. Possible,
but not probable.

Q. Could it have been 40 minutes? — A. Yes, sir, about 40 minutes.

xxx xxx xxx

Q. You also know that Angela Joaquin is already dead? — A. Yes, sir.

Q. Can you tell the Honorable Court when did Angela Joaquin die? — A. Well, a few minutes
after we have dashed out, the German Club, which was burning, collapsed over them,
including Mrs. Joaquin Navarro, Sr.

xxx xxx xxx

Q. From your testimony it would appear that while you can give positive evidence to the fact
that Pilar, Concepcion and Natividad Navarro, and Joaquin Navarro, Jr. died, you can not give
the same positive evidence to the fact that Angela Joaquin also died? — A. Yes, sir, in the
sense that I did not see her actually die, but when the building collapsed over her I saw and I
am positive and I did not see her come out of that building so I presumed she died there.

xxx xxx xxx

Q. Why did you have to dash out of the German Club, you, Mr. Joaquin Navarro, Sr. and Mr.
Joaquin Navarro Jr. and the latter's wife? — A. Because the Japanese had set fire to the Club
and they were shooting people outside, so we thought of running away rather than be roasted.
 xxx xxx xxx

Q. You mean to say that before you jumped out of the German Club all the Navarro girls, Pilar,
Concepcion, and Natividad, were already wounded? — A. to my knowledge, yes.

Q. They were wounded? — A. Yes, sir.

Q. Were they lying on the ground or not? — A. On the ground near the entrance, because
most of the people who were shot by the Japanese were those who were trying to escape,
and as far as I can remember they were among those killed.

xxx xxx xxx

Q. So you noticed that they were killed or shot by the Japanese a few minutes before you left
the place? — A. That is what I think, because those Japanese soldiers were shooting the
people inside especially those trying to escape.

xxx xxx xxx

Q. And none of them was not except the girls, is that what you mean? A — . There were many
people shot because they were trying to escape.

xxx xxx xxx

Q. How come that these girls were shot when they were inside the building, can you explain
that? — A. They were trying to escape probably.

It is our opinion that the preceding testimony contains facts quite adequate to solve the problem of
survivorship between Angela Joaquin and Joaquin Navarro, Jr. and keep the statutory presumption
out of the case. It is believed that in the light of the conditions painted by Lopez, a fair and reasonable
inference can be arrived at, namely: that Joaquin Navarro, Jr. died before his mother.

While the possibility that the mother died before the son can not be ruled out, it must be noted that this
possibility is entirely speculative and must yield to the more rational deduction from proven facts that
it was the other way around. Joaquin Navarro, Jr., it will be recalled, was killed, while running, in front
of, and 15 meters from, the German Club. Still in the prime of life, 30, he must have negotiated that
distance in five seconds or less, and so died within that interval from the time he dashed out of the
building. Now, when Joaquin Navarro, Jr. with his father and wife started to flee from the clubhouse,
the old lady was alive and unhurt, so much so that the Navarro father and son tried hard to have her
come along. She could have perished within those five or fewer seconds, as stated, but the
probabilities that she did seem very remote. True, people in the building were also killed but these,
according to Lopez, were mostly refugees who had tried to slip away from it and were shot by
Japanese troops. It was not very likely that Mrs. Joaquin Navarro, Sr. made an attempt to escape. She
even made frantic efforts to dissuade her husband and son from leaving the place and exposing
themselves to gun fire.

This determination of Mrs. Angela Joaquin to stay where she was may well give an idea, at the same
time, of a condition of relative safety in the clubhouse at the moment her husband, son, and daughter-
in-law left her. It strongly tends to prove that, as the situation looked to her, the perils of death from
staying were not so imminent. And it lends credence to Mr. Lopez' statement that the collapse of the
clubhouse occurred about 40 minutes after Joaquin Navarro the son was shot in the head and dropped
dead, and that it was the collapse that killed Mrs. Angela Navarro. The Court of Appeals said the
interval between Joaquin Navarro's death and the breaking down of the edifice was "minutes". Even
so, it was much longer than five seconds, long enough to warrant the inference that Mrs. Angela
Joaquin was sill alive when her son expired

The Court of Appeals mentioned several causes, besides the collapse of the building, by which Mrs.
Navarro could have been killed. All these are speculative , and the probabilities, in the light of the
known facts, are against them. Dreading Japanese sharpshooters outside as evidenced by her refusal
to follow the only remaining living members of her family, she could not have kept away form protective
walls. Besides, the building had been set on fire trap the refugees inside, and there was no necessity
for the Japanese to was their ammunition except upon those who tried to leave the premises. Nor was
Angela Joaquin likely to have been killed by falling beams because the building was made of concrete
and its collapse, more likely than not, was sudden. As to fumes, these do not cause instantaneous
death; certainly not within the brief space of five seconds between her son's departure and his death.

It will be said that all this is indulging in inferences that are not conclusive. Section 69(ii) of Rule 123
does not require that the inference necessary to exclude the presumption therein provided be certain.
It is the "particular circumstances from which it (survivorship) can be inferred" that are required to be
certain as tested by the rules of evidence. In speaking of inference the rule can not mean beyond
doubt, for "inference is never certainty, but if may be plain enough to justify a finding of fact." (In re
Bohenko's Estate, 4 N.Y.S. 2nd. 427, citing Tortora vs. State of New York, 269 N.Y. 199 N.E. 44;
Hart vs. Hudson River Bridge Co., 80 N.Y.). 622.) As the California courts have said, it is enough that
"the circumstances by which it is sought to prove the survivorship must be such as are competent and
sufficient when tested by the general rules of evidence in civil cases." (In re Wallace's Estate, supra.)
"Juries must often reason," says one author, "according to probabilities, drawing an inference that the
main fact in issue existed from collateral facts not directly proving, but strongly tending to prove, its
existence. The vital question in such cases is the cogency of the proof afforded by the secondary facts.
How likely, according to experience, is the existence of the primary fact if certain secondary facts
exist?" (1 Moore on Facts, Sec. 596.) The same author tells us of a case where "a jury was justified in
drawing the inference that the person who was caught firing a shot at an animal trespassing on his
land was the person who fired a shot about an hour before at the same animal also trespassing." That
conclusion was not airtight, but rational. In fact, the circumstances in the illustration leave greater room
for another possibility than do the facts of the case at hand.

In conclusion the presumption that Angela Joaquin de Navarro died before her son is based purely on
surmises, speculations, or conjectures without any sure foundation in the evidence. the opposite
theory — that the mother outlived her son — is deduced from established facts which, weighed by
common experience, engender the inference as a very strong probability. Gauged by the doctrine of
preponderance of evidence by, which civil cases are decided, this inference ought to prevail. It can
not be defeated as in an instance, cited by Lord Chief Justice Kenyon, "bordering on the ridiculous,
where in an action on the game laws it was suggested that the gun with which the defendant fired was
not charged with shot, but that the bird might have died in consequence of the fright." (1 Moore on
Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.)

It is said that part of the decision of the Court of Appeals which the appellant impugns, and which has
been discussed, involves findings of fact which can not be disturbed. The point is not, in our judgment,
well considered. The particular circumstances from which the parties and the Court of Appeals drew
conclusions are, as above seen, undisputed, and this being the case, the correctness or incorrectness
of those conclusions raises a question of law, not of fact, which the Supreme Court has jurisdiction to
look into. As was said in 1 Moran Commentaries on the Rules of ?Court, 3rd Ed. 856, 857, "Undisputed
evidence is one thing, and contradicted evidence is another. An incredible witness does not cease to
be such because he is not impeached or contradicted. But when the evidence is purely documentary,
the authenticity of which is not questioned and the only issue is the construction to be placed thereon,
or where a case is submitted upon an agreement of facts, or where all the facts are stated in the
judgment and the issue is the correctness of the conclusions drawn therefrom, the question is one of
law which may be reviewed by the Supreme Court."

The question of whether upon given facts the operation of the statutory presumption is to be invoked
is a question of law.

The prohibition against intermeddling with decisions on questions of evidence refers to decisions
supported by substantial evidence. By substantial evidence is meant real evidence or at least evidence
about which reasonable men may disagree. Findings grounded entirely on speculations, surmises, or
conjectures come within the exception to the general rule.

We are constrained to reverse the decision under review, and hold that the distribution of the
decedents' estates should be made in accordance with the decision of the trial court. This result
precludes the necessity of passing upon the question of "reserva troncal" which was put forward on
the hypothetical theory that Mrs. Joaquin Navarro's death preceded that of her son. Without costs.