Article 43. If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to other. (33)

-      There must be a showing that there is a death by positive evidence. However, it can be done by circumstantial evidence.

In Joaquin v. Navarro, 93 Phil 257, where the death of the mother and her son occurred during the massacre of civilians in February 1945 and at the time when Manila was being bombarded during the war, The Supreme Court upheld the ruling of the trial court which was reversed by the Court of Appeals that, from the evidence presented the son died ahead of mother.

RAMON JOAQUIN vs. ANTONIO C. NAVARRO

G.R No. L-5426, May 29, 1953

Facts

On February 6, 1945, while the battle for the liberation of Manila was raging, the spouses Joaquin Navarro Sr. aged 70, Angela Joaquin aged 67, with their three daughters, Pilar, Concepcion and Natividad and their son Joaquin Navarro Jr. aged 30 and his wife Adela Conde sought refuge in the ground floor of the building known as German Club. During their stay the club was set on fire and Japanese started shooting at the people inside the building, which hit the three daughters and fell of the ground near the entrance.

Joaquin Navarro Sr., his son Joaquin Navarro Jr with his wife Adela Conde, friend and former neighbor Francisco Lopez decided to abandon the premises but could not convince Angela Joaquin to join them. They dashed out of the burning edifice and 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., Adela Joaquin and Francisco Lopez managed to reach an air raid shelter nearby. They stayed there about three days until they are forced to leave the shelter because the shelling tore it open. But unfortunately met Japanese Patrols, who fired at the refugees, killing Joaquin Navarro Sr and his daughter-in-law.

Issue

          Whether or not Angela Joaquin Navarro died before her son Joaquin Navarro Jr or vice versa as it radically affects the rights of succession of Ramon Joaquin (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.

Held

The testimony of Francisco Lopez contains facts 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 light of the conditions painted by Lopez, a fair and reasonable interference can be arrived at, namely; that Joaquin Navarro Jr, died before his mother.

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

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.)

Illustration:

        A and B, father and son, died on the same day but the exact hours of their death cannot be ascertained. Then, it is presumed that they died at the same time and there shall be no transmission of rights, one in favor of another.

        However, if it can be established that A died ahead of B, then B can inherit from A, but since he is already dead, his heirs can represent him.

Similar presumption in Rule 131, Section 3, paragraph (jj) of the Rules of Court, which provides:

“That except for purposes of succession when two persons perish in the same calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and age of the sexes, according to the following rules:

1)   If both were under the age of 15 years, the older is presumed to have

survived;

2) If both were above the age of 60, the younger is deemed to have        

    survived;

3)   If one is under 15 and the other above 60, the former is deemed to have survived;

4)   If both be over 15 and under 60, and the sex be different, the male is

deemed to have survived; if the sex be the same, the older;

5)   If one be under 15 or over 60, and the other between those ages, the latter is deemed to have survived.”

Sources: 

Family Code of the Philippines by Judge Albano