1. ARCABA vs. TABANCURA VDA. DE BATOCAEL G.R. No.

146683

November 22, 2001

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 146683
November 22, 2001
CIRILA ARCABA, petitioner,
vs.
ERLINDA TABANCURA VDA. DE BATOCAEL, SEIGFREDO C. TABANCURA, DORIS C.
TABANCURA, LUZELLI C. TABANCURA, BELEN C. TABANCURA, RAUL A. COMILLE,
BERNADETTE A. COMILLE, and ABNER A. COMILLE, respondents.
MENDOZA, J.:
Petitioner Cirila Arcaba seeks review on certiorari of the decision 1 of the Court of Appeals, which
affirmed with modification the decision2 of the Regional Trial Court, Branch 10, Dipolog City,
Zamboanga del Norte in Civil Case No. 4593, declaring as void a deed of donation inter vivos
executed by the late Francisco T. Comille in her favor and its subsequent resolution 3 denying
reconsideration.
The facts are as follows:
On January 16, 1956, Francisco Comille and his wife Zosima Montallana became the registered
owners of Lot No. 437-A located at the corner of Calle Santa Rosa (now Balintawak Street) and
Calle Rosario (now Rizal Avenue) in Dipolog City, Zamboanga del Norte. The total area of the
lot was 418 square meters.4 After the death of Zosima on October 3, 1980, Francisco and his
mother-in-law, Juliana Bustalino Montallana, executed a deed of extrajudicial partition with
waiver of rights, in which the latter waived her share consisting of one-fourth (1/4) of the
property to Francisco.5 On June 27, 1916, Francisco registered the lot in his name with the
Registry of Deeds.6
Having no children to take care of him after his retirement, Francisco asked his niece Leticia
Bellosillo,7 the latter's cousin, Luzviminda Paghacian, 8 and petitioner Cirila Arcaba, then a
widow, to take care of his house, as well as the store inside.9
Conflicting testimonies were offered as to the nature of the relationship between Cirila and
Francisco. Leticia Bellosillo said Francisco and Cirila were lovers since they slept in the same
room,10 while Erlinda Tabancura,11 another niece of Francisco, claimed that the latter had told
her that Cirila was his mistress.12 On the other hand, Cirila said she was a mere helper who
could enter the master's bedroom only when the old man asked her to and that Francisco in any
case was too old for her. She denied they ever had sexual intercourse.13
It appears that when Leticia and Luzviminda were married, only Cirila was left to take care of
Francisco.14 Cirila testified that she was a 34-year old widow while Francisco was a 75-year old
widower when she began working for the latter; that he could still walk with her assistance at
that time;15 and that his health eventually deteriorated and he became bedridden. 16 Erlinda
Tabancura testified that Francisco's sole source of income consisted of rentals from his lot near
the public streets.17 He did not pay Cirila a regular cash wage as a househelper , though he
provided her family with food and lodging.18
On January 24, 1991, a few months before his death, Francisco executed an instrument
denominated "Deed of Donation Inter Vivos," in which he ceded a portion of Lot 437-A,
consisting of 150 square meters, together with his house, to Cirila, who accepted the donation in
the same instrument. Francisco left the larger portion of 268 square meters in his name. The
deed stated that the donation was being made in consideration of "the faithful services [Cirila
Arcaba] had rendered over the past ten (10) years." The deed was notarized by Atty. Vic T.
Lacaya, Sr.19 and later registered by Cirila as its absolute owner .20

On October 4, 1991, Francisco died without any children. In 1993, the lot which Cirila received
from Francisco had a market value of P57,105.00 and an assessed value of P28,550.00.21
On February 18, 1993, respondents filed a complaint against petitioner 'for declaration of nullity
of a deed of donation inter vivos, recovery of possession, and damages. Respondents, who are
the decedent's nephews and nieces and his heirs by intestate succession, alleged that Cirila
was the common-law wife of Francisco and the donation inter vivos made by Francisco in her
favor is void under Article 87 of the Family Code, which provides:
Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during
the marriage shall be void, except moderate gifts which the spouses may give each other on the
occasion of any family rejoicing. The prohibition shall also apply to persons living together as
husband and wife without a valid marriage.
On February 25, 1999, the trial court rendered judgment in favor of respondents, holding the
donation void under this provision of the Family Code. The trial court reached this conclusion
based on the testimony of Erlinda Tabancura and certain documents bearing the signature of
one "Cirila Comille." The documents were (1) an application for a business permit to operate as
real estate lessor, dated January 8, 1991, with a carbon copy of the signature "Cirila Comille"; 22
(2) a sanitary permit to operate as real estate lessor with a health certificate showing the
signature "Cirila Comille" in black ink;23 and (3) the death certificate of the decedent with the
signature "Cirila A. Comille" written in black ink. 24 The dispositive portion of the trial court's
decision states:
WHEREFORE, in view of the foregoing, judgment is rendered:
1. Declaring the Deed of Donation Inter Vivos executed by the late Francisco Comille recorded
as Doc. No. 7; Page No. 3; Book No. V; Series of 1991 in the Notarial Register of Notary Public
Vic T. Lacaya (Annex " A " to the Complaint) null and void;
2. Ordering the defendant to deliver possession of the house and lot subject of the deed unto
the plaintiffs within thirty (30) days after finality of this decision; and finally
3. Ordering the defendant to pay attorney's fees in the sum of P10,000.00.
SO ORDERED.25
Petitioner appealed to the Court of Appeals, which rendered on June 19, 2000 the decision
subject of this appeal. As already stated, the appeals court denied reconsideration. Its
conclusion was based on (1) the testimonies of Leticia, Erlinda, and Cirila; (2) the copies of
documents purportedly showing Cirila's use of Francisco's surname; (3) a pleading in another
civil case mentioning payment of rentals to Cirila as Francisco's common-law wife; and (4) the
fact that Cirila did not receive a regular cash wage.
Petitioner assigns the following errors as having been committed by the Court of Appeals:
(a) The judgment of the Court of Appeals that petitioner was the common-law wife of the late
Francisco Comille is not correct and is a reversible error because it is based on a
misapprehension of facts, and unduly breaks the chain of circumstances detailed by the totality
of the evidence, its findings being predicated on totally incompetent or hearsay evidence, and
grounded on mere speculation, conjecture or possibility. (Salazar v. Gutierrez, 33 SCRA 243
and other cases; cited in Quiason, Philippine Courts and their J urisdictions, 1993 ed., p. 604)
(b) The Court of Appeals erred in shifting the burden of evidence from the plaintiff to defendant.
(Bunyi v. Reyes, 39 SCRA 504; Quiason, id.)
(c) The Court of Appeals decided the case in away probably not in accord with law or with the
applicable jurisprudence in Rodriguez v. Rodriguez, 20 SCRA 908, and Liguez v. CA, 102 Phil.
577, 584.26
The issue in this case is whether the Court of Appeals correctly applied Art. 87 of the Family
Code to the circumstances of this case. After a review of the records, we rule in the affirmative.
The general rule is that only questions of law may be raised in a petition for review under Rule
45 of the Rules of Court, subject only to certain exceptions: (a) when the conclusion is a finding
grounded entirely on speculations, surmises, or conjectures; (b) when the inference made is

manifestly mistaken, absurd, or impossible; (c) where there is grave abuse of discretion; (d)
when the judgment is based on a misapprehension of facts; (e) when the findings of fact are
conflicting; (f) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same are contrary to the admissions of both appellant and appellee; (g) when the
findings of the Court of Appeals are contrary to those of the trial court; (h) when the findings of
fact are conclusions without citation of specific evidence on which they are based; (i) when the
finding of fact of the Court of Appeals is premised on the supposed absence of evidence but is
contradicted by the evidence on record; and G) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered,
would justify a different conclusion.27 It appearing that the Court of Appeals based its findings on
evidence presented by both parties, the general rule should apply.
In Bitangcor v. Tan,28 we held that the term "cohabitation" or "living together as husband and
wife" means not only residing under one roof, but also having repeated sexual intercourse.
Cohabitation, of course, means more than sexual intercourse, especially when one of the
parties is already old and may no longer be interested in sex. At the very least, cohabitation is
public assumption by a man and a woman of the marital relation, and dwelling together as man
and wife, thereby holding themselves out to the public as such. Secret meetings or nights
clandestinely spent together, even if often repeated, do not constitute such kind of cohabitation;
they are merely meretricious.29 In this jurisdiction, this Court has considered as sufficient proof
of common-law relationship the stipulations between the parties, 30 a conviction of
concubinage,31 or the existence of legitimate children.32
Was Cirila Francisco's employee or his common-law wife? Cirila admitted that she and
Francisco resided under one roof for a long time, It is very possible that the two consummated
their relationship, since Cirila gave Francisco therapeutic massage and Leticia said they slept in
the same bedroom. At the very least, their public conduct indicated that theirs was not just a
relationship of caregiver and patient, but that of exclusive partners akin to husband and wife.
Aside from Erlinda Tabancura's testimony that her uncle told her that Cirila was his mistress,
there are other indications that Cirila and Francisco were common-law spouses. Seigfredo
Tabancura presented documents apparently signed by Cirila using the surname "Comille." As
previously stated, these are an application for a business permit to operate as a real estate
lessor,33 a sanitary permit to operate as real estate lessor with a health certificate, 34 and the
death certificate of Francisco.35 These documents show that Cirila saw herself as Francisco's
common-law wife, otherwise, she would not have used his last name. Similarly, in the answer
filed by Francisco's lessees in "Erlinda Tabancura, et al. vs. Gracia Adriatico Sy and Antonio Sy,"
RTC Civil Case No.4719 (for collection of rentals), these lessees referred to Cirila as "the
common-law spouse of Francisco." Finally, the fact that Cirila did not demand from Francisco a
regular cash wage is an indication that she was not simply a caregiver-employee, but
Francisco's common law spouse. She was, after all, entitled to a regular cash wage under the
law.36 It is difficult to believe that she stayed with Francisco and served him out of pure
beneficence. Human reason would thus lead to the conclusion that she was Francisco's
common-law spouse.
Respondents having proven by a preponderance of evidence that Cirila and Francisco lived
together as husband and wife without a valid marriage, the inescapable conclusion is that the
donation made by Francisco in favor of Cirila is void under Art. 87 of the Family
Code.1wphi1.nt
WHEREFORE, the decision of the Court of Appeals affirming the decision of the trial court is
hereby AFFIRMED.
SO ORDERED.
Bellosillo, Quisumbing, Buena, De Leon, Jr., JJ., concur.

2. SAN LUIS vs. SAN LUIS G.R. No. 133743

February 6, 2007

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 133743
February 6, 2007
EDGAR SAN LUIS, Petitioner,
vs.
FELICIDAD SAN LUIS, Respondent.
x ---------------------------------------------------- x
G.R. No. 134029
February 6, 2007
RODOLFO SAN LUIS, Petitioner,
vs.
FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.
DECISION
YNARES-SANTIAGO, J.:
Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the
Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12,
1995 2 and January 31, 1996 3 Resolutions of the Regional Trial Court of Makati City, Branch
134 in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners motion for
reconsideration.
The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who
was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted
three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were
born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963,
Virginia predeceased Felicisimo.
Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a
son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint
for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of
America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child
Custody on December 14, 1973. 6
On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed
Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire
Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived with
her for 18 years from the time of their marriage up to his death on December 18, 1992.
Thereafter, respondent sought the dissolution of their conjugal partnership assets and the
settlement of Felicisimos estate. On December 17, 1993, she filed a petition for letters of
administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M3708 which was raffled to Branch 146 thereof.
Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the
decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila;
that the decedents surviving heirs are respondent as legal spouse, his six children by his first
marriage, and son by his second marriage; that the decedent left real properties, both conjugal
and exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any
unpaid debts. Respondent prayed that the conjugal partnership assets be liquidated and that
letters of administration be issued to her.
On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first
marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a

cause of action. Rodolfo claimed that the petition for letters of administration should have been
filed in the Province of Laguna because this was Felicisimos place of residence prior to his
death. He further claimed that respondent has no legal personality to file the petition because
she was only a mistress of Felicisimo since the latter, at the time of his death, was still legally
married to Merry Lee.
On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in
seeking the dismissal 10 of the petition. On February 28, 1994, the trial court issued an Order 11
denying the two motions to dismiss.
Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her
opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo
exercised the powers of his public office in Laguna, he regularly went home to their house in
New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she
presented the decree of absolute divorce issued by the Family Court of the First Circuit, State of
Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus,
she claimed that Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13
Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14
Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for
reconsideration from the Order denying their motions to dismiss. 15 They asserted that
paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to validate
respondents bigamous marriage with Felicisimo because this would impair vested rights in
derogation of Article 256 16 of the Family Code.
On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to
disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.
On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration.
It ruled that respondent, as widow of the decedent, possessed the legal standing to file the
petition and that venue was properly laid. Meanwhile, the motion for disqualification was
deemed moot and academic 18 because then Acting Presiding Judge Santos was substituted by
Judge Salvador S. Tensuan pending the resolution of said motion.
Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date,
Edgar also filed a motion for reconsideration 20 from the Order denying their motion for
reconsideration arguing that it does not state the facts and law on which it was based.
On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition.
The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.
On April 24, 1995, 22 the trial court required the parties to submit their respective position papers
on the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995,
Edgar manifested 23 that he is adopting the arguments and evidence set forth in his previous
motion for reconsideration as his position paper. Respondent and Rodolfo filed their position
papers on June 14, 24 and June 20, 25 1995, respectively.
On September 12, 1995, the trial court dismissed the petition for letters of administration. It held
that, at the time of his death, Felicisimo was the duly elected governor and a resident of the
Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in
Makati City. It also ruled that respondent was without legal capacity to file the petition for letters
of administration because her marriage with Felicisimo was bigamous, thus, void ab initio. It
found that the decree of absolute divorce dissolving Felicisimos marriage to Merry Lee was not
valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that
paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it would
impair the vested rights of Felicisimos legitimate children.
Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but
said motions were denied. 28
Respondent appealed to the Court of Appeals which reversed and set aside the orders of the
trial court in its assailed Decision dated February 4, 1998, the dispositive portion of which

states:
WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby
REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are
REINSTATED; and the records of the case is REMANDED to the trial court for further
proceedings. 29
The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place
of residence" of the decedent, for purposes of fixing the venue of the settlement of his estate,
refers to the personal, actual or physical habitation, or actual residence or place of abode of a
person as distinguished from legal residence or domicile. It noted that although Felicisimo
discharged his functions as governor in Laguna, he actually resided in Alabang, Muntinlupa.
Thus, the petition for letters of administration was properly filed in Makati City.
The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue
of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and
Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was
validly dissolved by virtue of the decree of absolute divorce issued by the Family Court of the
First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was
capacitated to contract a subsequent marriage with respondent. Thus
With the well-known rule express mandate of paragraph 2, Article 26, of the Family Code of
the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the
enactment of E.O. No. 227, there is no justiciable reason to sustain the individual view
sweeping statement of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code,
contravenes the basic policy of our state against divorce in any form whatsoever." Indeed,
courts cannot deny what the law grants. All that the courts should do is to give force and effect
to the express mandate of the law. The foreign divorce having been obtained by the Foreigner
on December 14, 1992, 32 the Filipino divorcee, "shall x x x have capacity to remarry under
Philippine laws". For this reason, the marriage between the deceased and petitioner should not
be denominated as "a bigamous marriage.
Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can
institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33
Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were denied by
the Court of Appeals.
On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35
Rodolfo later filed a manifestation and motion to adopt the said petition which was granted. 36
In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject
petition for letters of administration was improperly laid because at the time of his death,
Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in
Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous
with "domicile" which denotes a fixed permanent residence to which when absent, one intends
to return. They claim that a person can only have one domicile at any given time. Since
Felicisimo never changed his domicile, the petition for letters of administration should have been
filed in Sta. Cruz, Laguna.
Petitioners also contend that respondents marriage to Felicisimo was void and bigamous
because it was performed during the subsistence of the latters marriage to Merry Lee. They
argue that paragraph 2, Article 26 cannot be retroactively applied because it would impair
vested rights and ratify the void bigamous marriage. As such, respondent cannot be considered
the surviving wife of Felicisimo; hence, she has no legal capacity to file the petition for letters of
administration.
The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has
legal capacity to file the subject petition for letters of administration.
The petition lacks merit.
Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the

estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he
resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down
the doctrinal rule for determining the residence as contradistinguished from domicile of the
decedent for purposes of fixing the venue of the settlement of his estate:
[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal
residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic
and should be interpreted in the light of the object or purpose of the statute or rule in which it is
employed. In the application of venue statutes and rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature residence rather than domicile is the significant factor. Even
where the statute uses the word "domicile" still it is construed as meaning residence and not
domicile in the technical sense. Some cases make a distinction between the terms "residence"
and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and
convey the same meaning as the term "inhabitant." In other words, "resides" should be viewed
or understood in its popular sense, meaning, the personal, actual or physical habitation of a
person, actual residence or place of abode. It signifies physical presence in a place and actual
stay thereat. In this popular sense, the term means merely residence, that is, personal
residence, not legal residence or domicile. Residence simply requires bodily presence as an
inhabitant in a given place, while domicile requires bodily presence in that place and also an
intention to make it ones domicile. No particular length of time of residence is required though;
however, the residence must be more than temporary. 41 (Emphasis supplied)
It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the
settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and
Romualdez are inapplicable to the instant case because they involve election cases. Needless
to say, there is a distinction between "residence" for purposes of election laws and "residence"
for purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are
treated as synonymous terms, that is, the fixed permanent residence to which when absent, one
has the intention of returning. 42 However, for purposes of fixing venue under the Rules of Court,
the "residence" of a person is his personal, actual or physical habitation, or actual residence or
place of abode, which may not necessarily be his legal residence or domicile provided he
resides therein with continuity and consistency. 43 Hence, it is possible that a person may have
his residence in one place and domicile in another.
In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz,
Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa from
1982 up to the time of his death. Respondent submitted in evidence the Deed of Absolute Sale
44
dated January 5, 1983 showing that the deceased purchased the aforesaid property. She also
presented billing statements 45 from the Philippine Heart Center and Chinese General Hospital
for the period August to December 1992 indicating the address of Felicisimo at "100 San
Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of membership of the
deceased in the Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letterenvelopes 48 from 1988 to 1990 sent by the deceaseds children to him at his Alabang address,
and the deceaseds calling cards 49 stating that his home/city address is at "100 San Juanico,
Ayala Alabang Village, Muntinlupa" while his office/provincial address is in "Provincial Capitol,
Sta. Cruz, Laguna."
From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes
of fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of
administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over
Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time,
Muntinlupa was still a municipality and the branches of the Regional Trial Court of the National
Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in
Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was
validly filed before the Regional Trial Court of Makati City.

Anent the issue of respondent Felicidads legal personality to file the petition for letters of
administration, we must first resolve the issue of whether a Filipino who is divorced by his alien
spouse abroad may validly remarry under the Civil Code, considering that Felicidads marriage
to Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on
August 3, 1988. In resolving this issue, we need not retroactively apply the provisions of the
Family Code, particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis
allowing us to rule in the affirmative.
The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino
wife, which marriage was subsequently dissolved through a divorce obtained abroad by the
latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that
his interest in the properties from their conjugal partnership should be protected. The Court,
however, recognized the validity of the divorce and held that the alien spouse had no interest in
the properties acquired by the Filipino wife after the divorce. Thus:
In this case, the divorce in Nevada released private respondent from the marriage from the
standards of American law, under which divorce dissolves the marriage. As stated by the
Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
"The purpose and effect of a decree of divorce from the bond of matrimony by a competent
jurisdiction are to change the existing status or domestic relation of husband and wife, and to
free them both from the bond. The marriage tie, when thus severed as to one party, ceases to
bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When
the law provides, in the nature of a penalty, that the guilty party shall not marry again, that party,
as well as the other, is still absolutely freed from the bond of the former marriage."
Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He
would have no standing to sue in the case below as petitioners husband entitled to exercise
control over conjugal assets. As he is bound by the Decision of his own countrys Court, which
validly exercised jurisdiction over him, and whose decision he does not repudiate, he is
estopped by his own representation before said Court from asserting his right over the alleged
conjugal property. 53
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longer be
considered married to the alien spouse. Further, she should not be required to perform her
marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged
to live together with, observe respect and fidelity, and render support to private respondent. The
latter should not continue to be one of her heirs with possible rights to conjugal property. She
should not be discriminated against in her own country if the ends of justice are to be
served. 54 (Emphasis added)
This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the
validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a
proper party in filing the adultery suit against his Filipino wife. The Court stated that "the
severance of the marital bond had the effect of dissociating the former spouses from each other,
hence the actuations of one would not affect or cast obloquy on the other." 56
Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his
naturalized foreign spouse, the ruling in Van Dorn applies. 58 Although decided on December 22,
1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were
still in effect.
The significance of the Van Dorn case to the development of limited recognition of divorce in the
Philippines cannot be denied. The ruling has long been interpreted as severing marital ties
between parties in a mixed marriage and capacitating the Filipino spouse to remarry as a
necessary consequence of upholding the validity of a divorce obtained abroad by the alien

spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner
obtains a valid foreign divorce, the Filipino spouse shall have capacity to remarry under
Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the aforementioned case in
relation to Article 26. 61
In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent
behind paragraph 2, Article 26 of the Family Code were discussed, to wit:
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order No. 209,
otherwise known as the "Family Code," which took effect on August 3, 1988. Article 26 thereof
states:
All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive Order No. 227
was likewise signed into law, amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now provides:
ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force
in the country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law. (Emphasis supplied)
xxxx
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the intent of
Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of the Civil Code
Revision Committee, is to avoid the absurd situation where the Filipino spouse remains married
to the alien spouse who, after obtaining a divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van Dorn v.
Romillo, Jr. The Van Dorn case involved a marriage between a Filipino citizen and a
foreigner. The Court held therein that a divorce decree validly obtained by the alien
spouse is valid in the Philippines, and consequently, the Filipino spouse is capacitated to
remarry under Philippine law. 63 (Emphasis added)
As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly
obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2,
Article 26 thereof, our lawmakers codified the law already established through judicial
precedent.1awphi1.net
Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to
one of the parties and productive of no possible good to the community, relief in some way
should be obtainable. 64 Marriage, being a mutual and shared commitment between two parties,
cannot possibly be productive of any good to the society where one is considered released from
the marital bond while the other remains bound to it. Such is the state of affairs where the alien
spouse obtains a valid divorce abroad against the Filipino spouse, as in this case.
Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under
Philippine law insofar as Filipinos are concerned. However, in light of this Courts rulings in the
cases discussed above, the Filipino spouse should not be discriminated against in his own
country if the ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the
Court stated:
But as has also been aptly observed, we test a law by its results; and likewise, we may add, by
its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the
judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law

should never be interpreted in such a way as to cause injustice as this is never within the
legislative intent. An indispensable part of that intent, in fact, for we presume the good motives
of the legislature, is to render justice.
Thus, we interpret and apply the law not independently of but in consonance with justice. Law
and justice are inseparable, and we must keep them so. To be sure, there are some laws that,
while generally valid, may seem arbitrary when applied in a particular case because of its
peculiar circumstances. In such a situation, we are not bound, because only of our nature and
functions, to apply them just the same, in slavish obedience to their language. What we do
instead is find a balance between the word and the will, that justice may be done even as the
law is obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is
worded, yielding like robots to the literal command without regard to its cause and
consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are
warned, by Justice Holmes again, "where these words import a policy that goes beyond them."
xxxx
More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to
render every one his due." That wish continues to motivate this Court when it assesses the facts
and the law in every case brought to it for decision. Justice is always an essential ingredient of
its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice,
presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed
with justice. 69
Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry
Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal
personality to file the present petition as Felicisimos surviving spouse. However, the records
show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee
as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v.
Recio, 70 the Court laid down the specific guidelines for pleading and proving foreign law and
divorce judgments. It held that presentation solely of the divorce decree is insufficient and that
proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of
Rule 132, a writing or document may be proven as a public or official record of a foreign country
by either (1) an official publication or (2) a copy thereof attested by the officer having legal
custody of the document. If the record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine
foreign service stationed in the foreign country in which the record is kept and (b) authenticated
by the seal of his office. 71
With regard to respondents marriage to Felicisimo allegedly solemnized in California, U.S.A.,
she submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family
Law Act of California which purportedly show that their marriage was done in accordance with
the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws
as they must be alleged and proved. 73
Therefore, this case should be remanded to the trial court for further reception of evidence on
the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo.
Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless,
we find that the latter has the legal personality to file the subject petition for letters of
administration, as she may be considered the co-owner of Felicisimo as regards the properties
that were acquired through their joint efforts during their cohabitation.
Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to
the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:
SEC. 2. Contents of petition for letters of administration. A petition for letters of administration
must be filed by an interested person and must show, as far as known to the petitioner: x x x.
An "interested person" has been defined as one who would be benefited by the estate, such as

an heir, or one who has a claim against the estate, such as a creditor. The interest must be
material and direct, and not merely indirect or contingent. 75
In the instant case, respondent would qualify as an interested person who has a direct interest
in the estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied
by petitioners. If she proves the validity of the divorce and Felicisimos capacity to remarry, but
fails to prove that her marriage with him was validly performed under the laws of the U.S.A.,
then she may be considered as a co-owner under Article 144 76 of the Civil Code. This provision
governs the property relations between parties who live together as husband and wife without
the benefit of marriage, or their marriage is void from the beginning. It provides that the property
acquired by either or both of them through their work or industry or their wages and salaries
shall be governed by the rules on co-ownership. In a co-ownership, it is not necessary that the
property be acquired through their joint labor, efforts and industry. Any property acquired during
the union is prima facie presumed to have been obtained through their joint efforts. Hence, the
portions belonging to the co-owners shall be presumed equal, unless the contrary is proven. 77
Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the
applicable provision would be Article 148 of the Family Code which has filled the hiatus in Article
144 of the Civil Code by expressly regulating the property relations of couples living together as
husband and wife but are incapacitated to marry. 78 In Saguid v. Court of Appeals, 79 we held that
even if the cohabitation or the acquisition of property occurred before the Family Code took
effect, Article 148 governs. 80 The Court described the property regime under this provision as
follows:
The regime of limited co-ownership of property governing the union of parties who are not
legally capacitated to marry each other, but who nonetheless live together as husband and wife,
applies to properties acquired during said cohabitation in proportion to their respective
contributions. Co-ownership will only be up to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent thereof, their contributions and
corresponding shares shall be presumed to be equal.
xxxx
In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of coownership of properties acquired by the parties to a bigamous marriage and an adulterous
relationship, respectively, we ruled that proof of actual contribution in the acquisition of the
property is essential. x x x
As in other civil cases, the burden of proof rests upon the party who, as determined by the
pleadings or the nature of the case, asserts an affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on the strength of the partys own evidence and
not upon the weakness of the opponents defense. x x x 81
In view of the foregoing, we find that respondents legal capacity to file the subject petition for
letters of administration may arise from her status as the surviving wife of Felicisimo or as his
co-owner under Article 144 of the Civil Code or Article 148 of the Family Code.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and
affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners
motion to dismiss and its October 24, 1994 Order which dismissed petitioners motion for
reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further
proceedings.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
MA. ALICIA AUSTRIA-MARTINEZ
ROMEO J. CALLEJO,
Associate Justice
Asscociate Justice
MINITA V. CHICO-NAZARIO

Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
3. UY vs. COURT OF APPEALS G.R. No. 109557

November 29, 2000

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 109557
November 29, 2000
JOSE UY and his Spouse GLENDA J. UY and GILDA L. JARDELEZA, petitioners,
vs.
COURT OF APPEALS and TEODORO L. JARDELEZA, respondents.
DECISION
PARDO, J.:
The case is an appeal via certiorari from the decision1 of the Court of Appeals and its resolution
denying reconsideration2 reversing that of the Regional Trial Court, Iloilo, Branch 323 and
declaring void the special proceedings instituted therein by petitioners to authorize petitioner
Gilda L. Jardeleza, in view of the comatose condition of her husband, Ernesto Jardeleza, Sr.,
with the approval of the court, to dispose of their conjugal property in favor of co-petitioners,
their daughter and son in law, for the ostensible purpose of "financial need in the personal,
business and medical expenses of her incapacitated husband."
The facts, as found by the Court of Appeals, are as follows:
"This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the one hand,
against his mother Gilda L. Jardeleza, and sister and brother-in-law, the spouses Jose Uy and
Glenda Jardeleza (herein petitioners) on the other hand. The controversy came about as a
result of Dr. Ernesto Jardeleza, Sr.s suffering of a stroke on March 25, 1991, which left him
comatose and bereft of any motor or mental faculties. Said Ernesto Jardeleza, Sr. is the father
of herein respondent Teodoro Jardeleza and husband of herein private respondent Gilda
Jardeleza.
"Upon learning that one piece of real property belonging to the senior Jardeleza spouses was
about to be sold, petitioner Teodoro Jardeleza, on June 6, 1991, filed a petition (Annex "A")
before the R.T.C. of Iloilo City, Branch 25, where it was docketed as Special Proceeding No.
4689, in the matter of the guardianship of Dr. Ernesto Jardeleza, Sr. The petitioner averred
therein that the present physical and mental incapacity of Dr. Ernesto Jardeleza, Sr. prevent him
from competently administering his properties, and in order to prevent the loss and dissipation
of the Jardelezas real and personal assets, there was a need for a court-appointed guardian to
administer said properties. It was prayed therein that Letters of Guardianship be issued in favor
of herein private respondent Gilda Ledesma Jardeleza, wife of Dr. Ernesto Jardeleza, Sr. It was
further prayed that in the meantime, no property of Dr. Ernesto Jardeleza, Sr. be negotiated,

mortgaged or otherwise alienated to third persons, particularly Lot No. 4291 and all the
improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by T.C.T. No.
47337.
"A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself filed a petition
docketed as Special Proceeding NO. 4691, before Branch 32 of the R.T.C. of Iloilo City,
regarding the declaration of incapacity of Ernesto Jardeleza, Sr., assumption of sole powers of
administration of conjugal properties, and authorization to sell the same (Annex "B"). Therein,
the petitioner Gilda L. Jardeleza averred the physical and mental incapacity of her husband,
who was then confined for intensive medical care and treatment at the Iloilo Doctors Hospital.
She signified to the court her desire to assume sole powers of administration of their conjugal
properties. She also alleged that her husbands medical treatment and hospitalization expenses
were piling up, accumulating to several hundred thousands of pesos already. For this, she
urgently needed to sell one piece of real property, specifically Lot No. 4291 and its
improvements. Thus, she prayed for authorization from the court to sell said property.
"The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an Order (Annex
"C") finding the petition in Spec. Proc. No. 4691 to be sufficient in form and substance, and
setting the hearing thereof for June 20, 1991. The scheduled hearing of the petition proceeded,
attended by therein petitioner Gilda Jardeleza, her counsel, her two children, namely Ernesto
Jardeleza, Jr., and Glenda Jardeleza Uy, and Dr. Rolando Padilla, one of Ernesto Jardeleza,
Sr.s attending physicians.
"On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered its Decision
(Annex "D"), finding that it was convinced that Ernesto Jardeleza, Sr. was truly incapacitated to
participate in the administration of the conjugal properties, and that the sale of Lot No. 4291 and
the improvements thereon was necessary to defray the mounting expenses for treatment and
Hospitalization. The said court also made the pronouncement that the petition filed by Gilda L.
Jardeleza was "pursuant to Article 124 of the Family Code, and that the proceedings thereon
are governed by the rules on summary proceedings sanctioned under Article 253 of the same
Code x x x.
"The said court then disposed as follows:
"WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991, the
Court hereby renders judgment as follows:
"1) declaring Ernesto Jardeleza, Sr., petitioners husband, to be incapacitated and unable to
participate in the administration of conjugal properties;
"2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of administration of their
conjugal properties; and
"3) authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey of Iloilo, situated
in Iloilo City and covered by TCT No. 47337 issued in the names of Ernesto Jardeleza, Sr. and
Gilda L. Jardeleza and the buildings standing thereof.
"SO ORDERED.
"On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the proceedings
before Branch 32 in Spec. Proc. Case No. 4691, said petitioner being unaware and not knowing
that a decision has already been rendered on the case by public respondent.
"On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for reconsideration of the
judgment in Spec. Proc. No. 4691 and a motion for consolidation of the two cases (Annex "F").
He propounded the argument that the petition for declaration of incapacity, assumption of sole
powers of administration, and authority to sell the conjugal properties was essentially a petition
for guardianship of the person and properties of Ernesto Jardeleza, Sr. As such, it cannot be
prosecuted in accordance with the provisions on summary proceedings set out in Article 253 of
the Family Code. It should follow the rules governing special proceedings in the Revised Rules
of Court which require procedural due process, particularly the need for notice and a hearing on
the merits. On the other hand, even if Gilda Jardelezas petition can be prosecuted by summary

proceedings, there was still a failure to comply with the basic requirements thereof, making the
decision in Spec. Proc. No. 4691 a defective one. He further alleged that under the New Civil
Code, Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal partner, and that these
rights cannot be impaired or prejudiced without his consent. Neither can he be deprived of his
share in the conjugal properties through mere summary proceedings. He then restated his
position that Spec. Proc. No. 4691 should be consolidated with Spec. Proc. No. 4689 which was
filed earlier and pending before Branch 25.
"Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and the
improvements thereon supposedly to pay the accumulated financial obligations arising from
Ernesto Jardeleza, Sr.s hospitalization. He alleged that the market value of the property would
be around Twelve to Fifteen Million Pesos, but that he had been informed that it would be sold
for much less. He also pointed out that the building thereon which houses the Jardeleza Clinic is
a monument to Ernesto Jardeleza Sr.s industry, labor and service to his fellowmen. Hence, the
said property has a lot of sentimental value to his family. Besides, argued Teodoro Jardeleza,
then conjugal partnership had other liquid assets to pay off all financial obligations. He
mentioned that apart from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo Doctors Hospital
which can be off-set against the cost of medical and hospital bills. Furthermore, Ernesto
Jardeleza, Sr. enjoys certain privileges at the said hospital which allows him to pay on
installment basis. Moreover, two of Ernesto Jardeleza Sr.s attending physicians are his own
sons who do not charge anything for their professional services.
"On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to his motion
for reconsideration (Annex "G"). He reiterated his contention that summary proceedings was
irregularly applied. He also noted that the provisions on summary proceedings found in Chapter
2 of the Family Code comes under the heading on "Separation in Fact Between Husband and
Wife" which contemplates of a situation where both spouses are of disposing mind. Thus, he
argued that were one spouse is "comatose without motor and mental faculties," the said
provisions cannot be made to apply.
"While the motion for reconsideration was pending, Gilda Jardeleza disposed by absolute sale
Lot No. 4291 and all its improvements to her daughter, Ma. Glenda Jardeleza Uy, for Eight
Million Pesos (P8,000,000.00), as evidenced by a Deed Absolute Sale dated July 8, 1991
executed between them (p. 111, Rollo). Under date of July 23, 1991, Gilda Jardeleza filed an
urgent ex-parte motion for approval of the deed of absolute sale.
"On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for approval of the
deed of sale on the grounds that: (1) the motion was prematurely filed and should be held in
abeyance until the final resolution of the petition; (2) the motion does not allege nor prove the
justifications for the sale; and (3) the motion does not allege that had Ernesto Jardeleza, Sr.
been competent, he would have given his consent to the sale.
"Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent Court, who had
penned the decision in Spec. Proc. No. 4691 had in the meantime formally inhibited herself from
further acting in this case (Annex "I"). The case was then reraffled to Branch 28 of the said
court.
"On December 19, 1991, the said court issued an Order (Annex "M") denying herein petitioners
motion for reconsideration and approving respondent Jardelezas motion for approval of the
deed of absolute sale. The said court ruled that:
"After a careful and thorough perusal of the decision, dated June 20, 1991, the Motion for
Reconsideration, as well as its supplements filed by "oppositor", Teodoro L. Jardeleza, through
counsel, and the opposition to the Motion for Reconsideration, including its supplements, filed
by petitioner, through counsel, this Court is of the opinion and so holds, that her Honor, Amelita
K. del Rosario-Benedicto, Presiding Judge of Branch 32, of this Court, has properly observed
the procedure embodied under Article 253, in relation to Article 124, of the Family Code, in
rendering her decision dated June 20, 1991.

"Also, as correctly stated by petitioner, through counsel, that "oppositor" Teodor L. Jardeleza
does not have the personality to oppose the instant petition considering that the property or
properties, subject of the petition, belongs to the conjugal partnership of the spouses Ernesto
and Gilda Jardeleza, who are both still alive.
"In view thereof, the Motion for Reconsideration of "oppositor" Teodoro L. Jardeleza, is hereby
denied for lack of merit.
"Considering the validity of the decision dated June 20, 1991, which among others, authorized
Gilda L. Jardeleza to sell Lot No. 4291 of the Cadastral Survey of Iloilo, covered by Transfer
Certificate of Title No. 47337 issued in the names of Ernesto Jardeleza, Sr., and Gilda L.
Jardeleza and the building standing thereon, the Urgent Ex-Parte Motion for Approval of Deed
of Absolute Sale dated July 23, 1991, filed by petitioner, through counsel, is hereby granted and
the deed of absolute sale, executed and notarized on July 8, 1991, by and between Gilda L.
Jardeleza, as vendor, and Ma. Glenda Jardeleza, as vendee, is hereby approved, and the
Register of Deeds of Iloilo City, is directed to register the sale and issue the corresponding
transfer certificate of title to the vendee.
"SO ORDERED."4
On December 9, 1992, the Court of Appeals promulgated its decision reversing the appealed
decision and ordering the trial court to dismiss the special proceedings to approve the deed of
sale, which was also declared void.5
On December 29, 1992, petitioners filed a motion for reconsideration,6 however, on March 29,
1993, the Court of Appeals denied the motion, finding no cogent and compelling reason to
disturb the decision.7
Hence, this appeal.8
The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr.
who suffered a stroke, a cerebrovascular accident, rendering him comatose, without motor and
mental faculties, and could not manage their conjugal partnership property may assume sole
powers of administration of the conjugal property under Article 124 of the Family Code and
dispose of a parcel of land with its improvements, worth more than twelve million pesos, with the
approval of the court in a summary proceedings, to her co-petitioners, her own daughter and
son-in-law, for the amount of eight million pesos.
The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the procedural
rules on summary proceedings in relation to Article 124 of the Family Code are not applicable.
Because Dr. Jardeleza, Sr. was unable to take care of himself and manage the conjugal
property due to illness that had rendered him comatose, the proper remedy was the
appointment of a judicial guardian of the person or estate or both of such incompetent, under
Rule 93, Section 1, 1964 Revised Rules of Court. Indeed, petitioner earlier had filed such a
petition for judicial guardianship.
Article 124 of the Family Code provides as follows:
"ART. 124. The administration and enjoyment of the conjugal partnership property shall belong
to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to
recourse to the court by the wife for a proper remedy which must be availed of within five years
from the date of the contract implementing such decision.
"In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other spouse. In the absence
of such authority or consent, the disposition or encumbrance shall be void. However, the
transaction shall be construed as a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract upon the acceptance by the other
spouse or authorization by the court before the offer is withdrawn by either or both offerors.
(165a)."

In regular manner, the rules on summary judicial proceedings under the Family Code govern the
proceedings under Article 124 of the Family Code. The situation contemplated is one where the
spouse is absent, or separated in fact or has abandoned the other or consent is withheld or
cannot be obtained. Such rules do not apply to cases where the non-consenting spouse is
incapacitated or incompetent to give consent. In this case, the trial court found that the subject
spouse "is an incompetent" who was in comatose or semi-comatose condition, a victim of
stroke, cerebrovascular accident, without motor and mental faculties, and with a diagnosis of
brain stem infarct.9 In such case, the proper remedy is a judicial guardianship proceedings
under Rule 93 of the 1964 Revised Rules of Court.
Even assuming that the rules of summary judicial proceedings under the Family Code may
apply to the wife's administration of the conjugal property, the law provides that the wife who
assumes sole powers of administration has the same powers and duties as a guardian under
the Rules of Court.10
Consequently, a spouse who desires to sell real property as such administrator of the conjugal
property must observe the procedure for the sale of the wards estate required of judicial
guardians under Rule 95, 1964 Revised Rules of Court, not the summary judicial proceedings
under the Family Code.
In the case at bar, the trial court did not comply with the procedure under the Revised Rules of
Court.1wphi1 Indeed, the trial court did not even observe the requirements of the summary
judicial proceedings under the Family Code. Thus, the trial court did not serve notice of the
petition to the incapacitated spouse; it did not require him to show cause why the petition should
not be granted.
Hence, we agree with the Court of Appeals that absent an opportunity to be heard, the decision
rendered by the trial court is void for lack of due process. The doctrine consistently adhered to
by this Court is that a denial of due process suffices to cast on the official act taken by whatever
branch of the government the impress of nullity.11 A decision rendered without due process is
void ab initio and may be attacked directly or collaterally.12 "A decision is void for lack of due
process if, as a result, a party is deprived of the opportunity of being heard."13 "A void decision
may be assailed or impugned at any time either directly or collaterally, by means of a separate
action, or by resisting such decision in any action or proceeding where it is invoked."14
WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G. R. SP No.
26936, in toto.
Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.
4. DE LEON vs. DE LEON G.R. No. 185063

July 23, 2009

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 185063
July 23, 2009
SPS. LITA DE LEON and FELIX RIO TARROSA, Petitioners,
vs.
ANITA B. DE LEON, DANILO B. DE LEON, and VILMA B. DE LEON, Respondents.
DECISION
VELASCO, JR., J.:
The Case
Before us is a Petition for Review on Certiorari under Rule 45 assailing and seeking to set aside
the Decision1 and Resolution2 dated August 27, 2008 and October 20, 2008, respectively, of the

Court of Appeals (CA) in CA-G.R. CV No. 88571. The CA affirmed with modification the October
4, 2006 Decision3 in Civil Case No. Q04-51595 of the Regional Trial Court (RTC), Branch 22 in
Quezon City.
The Facts
On July 20, 1965, Bonifacio O. De Leon, then single, and the Peoples Homesite and Housing
Corporation (PHHC) entered into a Conditional Contract to Sell for the purchase on installment
of a 191.30 square-meter lot situated in Fairview, Quezon City. Subsequently, on April 24, 1968,
Bonifacio married Anita de Leon in a civil rite officiated by the Municipal Mayor of Zaragosa,
Nueva Ecija. To this union were born Danilo and Vilma.
Following the full payment of the cost price for the lot thus purchased, PHHC executed, on June
22, 1970, a Final Deed of Sale in favor of Bonifacio. Accordingly, Transfer Certificate of Title
(TCT) No. 173677 was issued on February 24, 1972 in the name of Bonifacio, "single."
Subsequently, Bonifacio, for PhP 19,000, sold the subject lot to her sister, Lita, and husband
Felix Rio Tarrosa (Tarrosas), petitioners herein. The conveying Deed of Sale dated January 12,
1974 (Deed of Sale) did not bear the written consent and signature of Anita.
Thereafter, or on May 23, 1977, Bonifacio and Anita renewed their vows in a church wedding at
St. John the Baptist Parish in San Juan, Manila.
On February 29, 1996, Bonifacio died.
Three months later, the Tarrosas registered the Deed of Sale and had TCT No. 173677
canceled. They secured the issuance in their names of TCT No. N-173911 from the Quezon City
Register of Deeds.
Getting wind of the cancellation of their fathers title and the issuance of TCT No. N-173911,
Danilo and Vilma filed on May 19, 2003 a Notice of Adverse Claim before the Register of Deeds
of Quezon City to protect their rights over the subject property. Very much later, Anita, Danilo,
and Vilma filed a reconveyance suit before the RTC in Quezon City. In their complaint, Anita and
her children alleged, among other things, that fraud attended the execution of the Deed of Sale
and that subsequent acts of Bonifacio would show that he was still the owner of the parcel of
land. In support of their case, they presented, inter alia, the following documents:
a. A Real Estate Mortgage execution by Bonifacio in favor of spouses Cesar Diankinay and
Filomena Almero on July 22, 1977.
b. A Civil Complaint filed by Bonifacio against spouses Cesar Diankinay and Filomena Almero
on November 27, 1979 for nullification of the Real Estate Mortgage.
c. The Decision issued by the Court of First Instance of Rizal, Quezon City, promulgated on July
30, 1982, nullifying the Real Estate Mortgage.4
The Tarrosas, in their Answer with Compulsory Counterclaim, averred that the lot Bonifacio sold
to them was his exclusive property inasmuch as he was still single when he acquired it from
PHHC. As further alleged, they were not aware of the supposed marriage between Bonifacio
and Anita at the time of the execution of the Deed of Sale.
After several scheduled hearings, both parties, assisted by their respective counsels, submitted
a Joint Stipulation of Facts with Motion, to wit:
1. The parties have agreed to admit the following facts:
a. Bonifacio O. De Leon, while still single x x x, purchased from the [PHHC] through a
Conditional Contract to Sell on July 20, 1965 a parcel of land with an area of 191.30 square
meters situated in Fairview, Quezon City for P841.72;
b. On April 24, 1968, Bonifacio O. De Leon married plaintiff Anita B. De Leon before the
Municipal Mayor of Zaragosa, Nueva Ecija. Both parties stipulate that said marriage is valid and
binding under the laws of the Philippines;
c. On June 22, 1970, Bonifacio O. De Leon paid [PHHC] the total amount of P1,023.74 x x x.
The right of ownership over the subject parcel of land was transferred to the late Bonifacio O.
De Leon on June 22, 1970, upon the full payment of the total [price] of P1,023.74 and upon
execution of the Final Deed of Sale;

d. After full payment, Bonifacio O. De Leon was issued [TCT] No. 173677 on February 24, 1972;
e. On January 12, 1974, Bonifacio O. De Leon executed a Deed of Sale in favor of defendantsspouses Felix Rio Tarrosa and Lita O. De Leon disposing the parcel of land under TCT No.
173677 for valuable consideration amount of P19,000.00 and subscribed before Atty. Salvador
R. Aguinaldo who was commissioned to [notarize] documents on said date. The parties stipulate
that the Deed of Sale is valid and genuine. However, plaintiff Anita De Leon was not a signatory
to the Deed of Sale executed on January 12, 1974;
f. That plaintiff Anita B. De Leon and the late Bonifacio O. De Leon were married in church rites
on May 23, 1977 x x x;
g. The late Bonifacio O. De Leon died on February 29, 1996 at the UST Hospital, Espaa,
Manila;
h. The said "Deed of Sale" executed on January 12, 1974 was registered on May 8, 1996 before
the Office of the Register of Deeds of Quezon City and [TCT] No. N-173911 was issued to Lita
O. De Leon and Felix Rio Tarrosa.5
The Ruling of the Trial Court
On October 4, 2006, the RTC, on the finding that the lot in question was the conjugal property of
Bonifacio and Anita, rendered judgment in favor of Anita and her children. The dispositive
portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiffs and
against defendants in the following manner:
(1) Declaring the Deed of Sale dated January 12, 1974 executed by the late Bonifacio O. De
Leon in favor of defendants-spouses Lita De Leon and Felix Rio Tarrosa void ab initio;
(2) Directing the Register of Deed of Quezon City to cancel Transfer Certificate of Title No. N173911 in the name of "Lita O. De Leon, married to Felix Rio Tarrosa" and restore Transfer
Certificate of Title No. 173667 in the name of "Bonifacio O. De Leon";
(3) Ordering the defendants-spouses to pay plaintiffs the following sums:
(a) P25,000.00 as moral damages;
(b) P20,000.00 as exemplary damages;
(c) P50,000.00 as attorneys fees plus appearance fee of P2,500.00 per court appearance;
(d) Costs of this suit.
SO ORDERED.
Aggrieved, the Tarrosas appealed to the CA. As they would submit, the RTC erred:
(1) in finding for the plaintiffs-appellees by declaring that the land subject matter of the case is
conjugal property;
(2) in not declaring the land as the exclusive property of Bonifacio O. De Leon when sold to
defendant-appellants;
(3) in ruling that defendant-appellants did not adduce any proof that the property was acquired
solely by the efforts of Bonifacio O. De Leon;
(4) in declaring that one-half of the conjugal assets does not vest to Bonifacio O. De Leon
because of the absence of liquidation;
(5) in cancelling TCT No. N-173911 and restored TCT No. [173677] in the name of Bonifacio O.
De Leon;
(6) in awarding moral and exemplary damages and attorneys fees to the plaintiffs-appellees.6
The Ruling of the Appellate Court
On August 27, 2008, the CA rendered a decision affirmatory of that of the RTC, save for the
award of damages, attorneys fees, and costs of suit which the appellate court ordered deleted.
The fallo of the CA decision reads:
WHEREFORE, in view of the foregoing, the assailed decision dated October 4, 2006, of the
Regional Trial Court, Branch 22, Quezon City in Civil Case No. Q-04-51595 is hereby
AFFIRMED with MODIFICATION, in that the award of moral and exemplary damages as well as
attorneys fees, appearance fee and costs of suit are hereby DELETED.

SO ORDERED.
Just like the RTC, the CA held that the Tarrosas failed to overthrow the legal presumption that
the parcel of land in dispute was conjugal. The appellate court held further that the cases they
cited were inapplicable.
As to the deletion of the grant of moral and exemplary damages, the CA, in gist, held that no
evidence was adduced to justify the award. Based on the same reason, it also deleted the
award of attorneys fees and costs of suit.
The Tarrosas moved but was denied reconsideration by the CA in its equally assailed resolution
of October 20, 2008.
Hence, they filed this petition.
The Issues
I
Whether the [CA] gravely erred in concluding that the land purchased on installment by
Bonifacio O. De Leon before marriage although some installments were paid during the
marriage is conjugal and not his exclusive property.
II
Whether the [CA] gravely erred in ruling that the Lorenzo, et al. vs. Nicolas, et al., and Alvarez
vs. Espiritu cases do not apply in the case at bar because in the latter the land involved is not a
friar land unlike in the former.
III
Whether the [CA] gravely erred in affirming the decision of the trial court a quo which ruled that
petitioners did not adduce any proof that the land was acquired solely by the efforts of Bonifacio
O. De Leon.
IV
Whether the court of appeals gravely erred in affirming the decision of the trial court which ruled
that one-half (1/2) of the conjugal assets do not vest to Bonifacio O. De Leon because of the
absence of liquidation.
Our Ruling
The petition lacks merit.
The Subject Property is the
Conjugal Property of Bonifacio and Anita
The first three issues thus raised can be summed up to the question of whether or not the
subject property is conjugal.
Petitioners assert that, since Bonifacio purchased the lot from PHHC on installment before he
married Anita, the land was Bonifacios exclusive property and not conjugal, even though some
installments were paid and the title was issued to Bonifacio during the marriage. In support of
their position, petitioners cite Lorenzo v. Nicolas7 and Alvarez v. Espiritu.8
We disagree.
Article 160 of the 1950 Civil Code, the governing provision in effect at the time Bonifacio and
Anita contracted marriage, provides that all property of the marriage is presumed to belong to
the conjugal partnership unless it is proved that it pertains exclusively to the husband or the
wife. For the presumption to arise, it is not, as Tan v. Court of Appeals9 teaches, even necessary
to prove that the property was acquired with funds of the partnership. Only proof of acquisition
during the marriage is needed to raise the presumption that the property is conjugal. In fact,
even when the manner in which the properties were acquired does not appear, the presumption
will still apply, and the properties will still be considered conjugal.10
In the case at bar, ownership over what was once a PHHC lot and covered by the PHHCBonifacio Conditional Contract to Sell was only transferred during the marriage of Bonifacio and
Anita. It is well settled that a conditional sale is akin, if not equivalent, to a contract to sell. In
both types of contract, the efficacy or obligatory force of the vendors obligation to transfer title is
subordinated to the happening of a future and uncertain event, usually the full payment of the

purchase price, so that if the suspensive condition does not take place, the parties would stand
as if the conditional obligation had never existed.11 In other words, in a contract to sell ownership
is retained by the seller and is not passed to the buyer until full payment of the price, unlike in a
contract of sale where title passes upon delivery of the thing sold.12
Such is the situation obtaining in the instant case. The conditional contract to sell executed by
and between Bonifacio and PHHC on July 20, 1965 provided that ownership over and title to the
property will vest on Bonifacio only upon execution of the final deed of sale which, in turn, will be
effected upon payment of the full purchase price, to wit:
14. Titles to the property subject of this contract remains with the CORPORATION and shall
pass to, and be transferred in the name of the APPLICANT only upon the execution of the final
Deed of Sale provided for in the next succeeding paragraph.
15. Upon the full payment by the APPLICANT of the price of the lot above referred to together
with all the interest due thereon, taxes and other charges, and upon his faithful compliance with
all the conditions of this contract the CORPORATION agrees to execute in favor of the
APPLICANT a final deed of sale of the aforesaid land, and the APPLICANT agrees to accept
said deed, as full performance by the CORPORATION of its covenants and undertakings
hereunder.13 x x x
Evidently, title to the property in question only passed to Bonifacio after he had fully paid the
purchase price on June 22, 1970. This full payment, to stress, was made more than two (2)
years after his marriage to Anita on April 24, 1968. In net effect, the property was acquired
during the existence of the marriage; as such, ownership to the property is, by law, presumed to
belong to the conjugal partnership.
Such presumption is rebuttable only with strong, clear, categorical, and convincing evidence.14
There must be clear evidence of the exclusive ownership of one of the spouses,15 and the
burden of proof rests upon the party asserting it.16
Petitioners argument that the disputed lot was Bonifacios exclusive property, since it was
registered solely in his name, is untenable. The mere registration of a property in the name of
one spouse does not destroy its conjugal nature.17 What is material is the time when the
property was acquired.
Thus, the question of whether petitioners were able to adduce proof to overthrow the
presumption is a factual issue best addressed by the trial court. As a matter of long and sound
practice, factual determinations of the trial courts,18 especially when confirmed by the appellate
court, are accorded great weight by the Court and, as rule, will not be disturbed on appeal,
except for the most compelling reasons.19 Petitioners have not, as they really cannot, rebut the
presumptive conjugal nature of the lot in question. In this regard, the Court notes and quotes
with approval the following excerpts from the trial courts disposition:
The defendants, however, did not adduce any proof that the property in question was acquired
solely by the efforts of [Bonifacio]. The established jurisprudence on the matter leads this Court
to the conclusion that the property involved in this dispute is indeed the conjugal property of the
deceased [Bonifacio] De Leon.
In fact, defendant even admitted that [Bonifacio] brought into his marriage with plaintiff Anita the
said land, albeit in the concept of a possessor only as it was not yet registered in his name. The
property was registered only in 1972 during the existence of the marriage. However, the
absence of evidence on the source of funding has called for the application of the presumption
under Article 160 in favor of the plaintiffs.20
The cases petitioners cited are without governing applicability to this case simply because they
involved a law specifically enacted to govern the disposition of and ownership of friar lands. In
Lorenzo, the Court held that the pervading legislative intent of Act No. 1120 is "to sell the friar
lands acquired by the Government to actual settlers and occupants of the same."21 The Court
went on further to say in Alvarez that "under the Friar Lands Act of 1120, the equitable and
beneficial title to the land passes to the purchaser the moment the first installment is paid and a

certificate of sale is issued."22 Plainly, the said cases are not applicable here considering that the
disputed property is not friar land.1awph!1
There can be no quibbling that Anitas conformity to the sale of the disputed lot to petitioners
was never obtained or at least not formally expressed in the conveying deed. The parties
admitted as much in their Joint Stipulation of Facts with Motion earlier reproduced. Not lost on
the Court of course is the fact that petitioners went to the process of registering the deed after
Bonifacios death in 1996, some 22 years after its execution. In the interim, petitioners could
have had workbut did nottowards securing Anitas marital consent to the sale.
It cannot be over-emphasized that the 1950 Civil Code is very explicit on the consequence of
the husband alienating or encumbering any real property of the conjugal partnership without the
wifes consent.23 To a specific point, the sale of a conjugal piece of land by the husband, as
administrator, must, as a rule, be with the wifes consent. Else, the sale is not valid. So it is that
in several cases we ruled that the sale by the husband of property belonging to the conjugal
partnership without the consent of the wife is void ab initio, absent any showing that the latter is
incapacitated, under civil interdiction, or like causes. The nullity, as we have explained,
proceeds from the fact that sale is in contravention of the mandatory requirements of Art. 166 of
the Code.24 Since Art. 166 of the Code requires the consent of the wife before the husband may
alienate or encumber any real property of the conjugal partnership, it follows that the acts or
transactions executed against this mandatory provision are void except when the law itself
authorized their validity.25
Accordingly, the Deed of Sale executed on January 12, 1974 between Bonifacio and the
Tarrosas covering the PHHC lot is void.
Interest in the Conjugal Partnership Is
Merely Inchoate until Liquidation
As a final consideration, the Court agrees with the CA that the sale of one-half of the conjugal
property without liquidation of the partnership is void. Prior to the liquidation of the conjugal
partnership, the interest of each spouse in the conjugal assets is inchoate, a mere expectancy,
which constitutes neither a legal nor an equitable estate, and does not ripen into a title until it
appears that there are assets in the community as a result of the liquidation and settlement.26
The interest of each spouse is limited to the net remainder or "remanente liquido" (haber
ganancial) resulting from the liquidation of the affairs of the partnership after its dissolution.27
Thus, the right of the husband or wife to one-half of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal partnership, or after dissolution of the marriage, when
it is finally determined that, after settlement of conjugal obligations, there are net assets left
which can be divided between the spouses or their respective heirs.28
Therefore, even on the supposition that Bonifacio only sold his portion of the conjugal
partnership, the sale is still theoretically void, for, as previously stated, the right of the husband
or the wife to one-half of the conjugal assets does not vest until the liquidation of the conjugal
partnership.
Nevertheless, this Court is mindful of the fact that the Tarrosas paid a valuable consideration in
the amount of PhP 19,000 for the property in question. Thus, as a matter of fairness and equity,
the share of Bonifacio after the liquidation of the partnership should be liable to reimburse the
amount paid by the Tarrosas. It is a well-settled principle that no person should unjustly enrich
himself at the expense of another.29
WHEREFORE, the petition is DENIED. The CA Decision in CA-G.R. CV No. 88571 is
AFFIRMED. Costs against petitioners.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO

Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
ANTONIO EDUARDO B. NACH
Associate Justice
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
5.
6.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-61464
May 28, 1988
BA FINANCE CORPORATION, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, AUGUSTO YULO, LILY YULO (doing business
under the name and style of A & L INDUSTRIES), respondents.
GUTIERREZ, JR., J.:
This is a petition for review seeking to set aside the decision of the Court of Appeals which
affirmed the decision of the then Court of First Instance of Manila, dismissing the complaint
instituted by the petitioner and ordering it to pay damages on the basis of the private
respondent's counterclaim.
On July 1, 1975, private respondent Augusto Yulo secured a loan from the petitioner in the
amount of P591,003.59 as evidenced by a promissory note he signed in his own behalf and as
representative of the A & L Industries. Respondent Yulo presented an alleged special power of
attorney executed by his wife, respondent Lily Yulo, who manages A & L Industries and under
whose name the said business is registered, purportedly authorizing Augusto Yulo to procure
the loan and sign the promissory note. About two months prior to the loan, however, Augusto
Yulo had already left Lily Yulo and their children and had abandoned their conjugal home. When
the obligation became due and demandable, Augusto Yulo failed to pay the same.
On October 7, 1975, the petitioner filed its amended complaint against the spouses Augusto and
Lily Yulo on the basis of the promissory note. It also prayed for the issuance of a writ of
attatchment alleging that the said spouses were guilty of fraud in contracting the debt upon
which the action was brought and that the fraud consisted of the spouses' inducing the

petitioner to enter into a contract with them by executing a Deed of Assignment in favor of the
petitioner, assigning all their rights, titles and interests over a construction contract executed by
and between the spouses and A. Soriano Corporation on June 19, 1974 for a consideration of
P615,732.50 when, in truth, the spouses did not have any intention of remitting the proceeds of
the said construction contract to the petitioner because despite the provisions in the Deed of
Assignment that the spouses shall, without compensation or costs, collect and receive in trust
for the petitioner all payments made upon the construction contract and shall remit to the
petitioner all collections therefrom, the said spouses failed and refuse to remit the collections
and instead, misappropriated the proceeds for their own use and benefit, without the knowledge
or consent of the petitioner.
The trial court issued the writ of attachment prayed for thereby enabling the petitioner to attach
the properties of A & L Industries. Apparently not contented with the order, the petitioner filed
another motion for the examination of attachment debtor, alleging that the properties attached
by the sheriff were not sufficient to secure the satisfaction of any judgment that may be
recovered by it in the case. This was likewise granted by the court.
Private respondent Lily Yulo filed her answer with counterclaim, alleging that although Augusta
Yulo and she are husband and wife, the former had abandoned her and their children five (5)
months before the filing of the complaint; that they were already separated when the promissory
note was executed; that her signature in the special power of attorney was forged because she
had never authorized Augusto Yulo in any capacity to transact any business for and in behalf of
A & L Industries, which is owned by her as a single proprietor, that she never got a single
centavo from the proceeds of the loan mentioned in the promissory note; and that as a result of
the illegal attachment of her properties, which constituted the assets of the A & L Industries, the
latter closed its business and was taken over by the new owner.
After hearing, the trial court rendered judgment dismissing the petitioner's complaint against the
private respondent Lily Yulo and A & L Industries and ordering the petitioner to pay the
respondent Lily Yulo P660,000.00 as actual damages; P500,000.00 as unrealized profits;
P300,000.00 as exemplary damages; P30,000.00 as and for attorney's fees; and to pay the
costs.
The petitioner appealed. The Court of Appeals affirmed the trial court's decision except for the
exemplary damages which it reduced from P300,000.00 to P150,000.00 and the attorney's fees
which were reduced from P30,000.00 to P20,000.00.
In resolving the question of whether or not the trial court erred in holding that the signature of
respondent Lily Yulo in the special power of attorney was forged, the Court of Appeals said:
The crucial issue to be determined is whether or not the signatures of the appellee Lily Yulo in
Exhibits B and B-1 are forged. Atty. Crispin Ordoa, the Notary Public, admitted in open court
that the parties in the subject documents did not sign their signatures in his presence. The same
were already signed by the supposed parties and their supposed witnesses at the time they
were brought to him for ratification. We quote from the records the pertinent testimony of Atty.
Ordoa, thus:
Q. This document marked as Exhibit B-1, when this was presented to you by that common
friend, June Enriquez, it was already typewritten, it was already accomplished, all typewritten.?
A. Yes, sir.
Q And the parties had already affixed their signatures in this document?
A. Yes, sir.
Q. In this document marked as Exhibit B although it appears here that this is an
acknowledgment, you have not stated here that the principal actually acknowledged this
document to be her voluntary act and deed?
A This in one of those things that escaped my attention. Actually I have not gone over the
second page. I believed it was in order I signed it. (TSN pp. 13-14, Hearing of Nov. 26, 1976).
The glaring admission by the Notary Public that he failed to state in the acknowledgment portion

of Exhibit B-1 that the appellee Lily Yulo acknowledged the said document to be her own
voluntary act and deed, is a very strong and commanding circumstance to show that she did not
appear personally before the said Notary Public and did not sign the document.
Additionally, the Notary Public admitted that, while June Enriquez is admittedly a mutual friend
of his and the defendant Augusta Yulo, and who is also an instrumental witness in said Exhibit
B-1., he could not recognize or tell which of the two signatures appearing therein, was the
signature of this June Enriquez.
Furthermore, as the issue is one of credibility of a witness, the findings and conclusions of the
trial court before whom said witness, Atty. Crispin Ordoa, the Notary Public before whom the
questioned document was supposedly ratified and acknowledged, deserve great respect and
are seldom disturbed on appeal by appellate tribunals, since it is in the best and peculiar
advantage of determining and observing the conduct, demeanor and deportment of a particular
witness while he is testifying in court, an opportunity not enjoyed by the appellate courts who
merely have to rely on the recorded proceedings which transpired in the court below, and the
records are bare of any circumstance of weight, which the trial court had overlooked and which
if duly considered, may radically affect the outcome of the case.
On the other hand, the appellee Lily Yulo, to back up her claim of forgery of her signature in
Exhibit B-1, presented in court a handwriting expert witness in the person of Police Captain
Yakal Giron of the Integrated National Police Training Command, and who is also a Document
Examiner of the same Command's Crime Laboratory at Fort Bonifacio, Metro Manila. His
experience as an examiner of questioned and disputed documents, in our mind, is quite
impressive. To qualify him as a handwriting expert, he declared that he underwent extensive
and actual studies and examination of disputed or questioned document, both at the National
Bureau of Investigation Academy and National Bureau of Investigation Questioned Document
Laboratory, respectively, from July 1964, up to his appointment as Document Examiner in June,
1975, and, to further his experience along this line, he attended the 297th Annual Conference of
the American Society of Questioned Docurnent Examiners held at Seattle, Washington, in
August 1971, as a representative of the Philippines, and likewise conducted an observation of
the present and modern trends of crime laboratories in the West Coast, U.S.A., in 1971; that he
likewise had conducted actual tests and examination of about 100,000 documents, as
requested by the different courts, administrative, and governmental agencies of the
Government, substantial portions of which relate to actual court cases.
In concluding that the signatures of the appellee Lily Yulo, in the disputed document in question
(Exh. B-1), were all forgeries, and not her genuine signature, the expert witness categorically
recited and specified in open court what he observed to be about twelve (12) glaring and
material significant differences, in his comparison of the signatures appearing in the genuine
specimen signatures of the said appellee and with those appearing in the questioned document
(Exhibit B-1). Indeed, we have likewise seen the supposed notable differences, found in the
standard or genuine signatures of the appellee which were lifted and obtained in the official files
of the government, such as the Bureau of Internal Revenue on her income tax returns, as
compared to the pretended signature of the appellee appearing in Exhibits B, B-1. It is also
noteworthy to mention that the appellant did not even bother to conduct a cross-examination of
the handwriting expert witness, Capt. Giron, neither did the appellant present another
handwriting expert, at least to counter-act or balance the appellee's handwriting expert.
Prescinding from the foregoing facts, we subscribe fully to the lower court's observations that
the signatures of the appellee Lily Yulo in the questioned document (Exh. B-1) were forged.
Hence, we find no factual basis to disagree. (pp. 28-30, Rollo)
As to the petitioner's contention that even if the signature of Lily Yulo was forged or even if the
attached properties were her exclusive property, the same can be made answerable to the
obligation because the said properties form part of the conjugal partnership of the spouses Yulo,
the appellate court held that these contentions are without merit because there is strong

preponderant evidence to show that A & L Industries belongs exclusively to respondent Lily
Yulo, namely: a) The Certificate of Registration of A & L Industries, issued by the Bureau of
Commerce, showing that said business is a single proprietorship, and that the registered owner
thereof is only Lily Yulo; b) The Mayor's Permit issued in favor of A & L Industries, by the
Caloocan City Mayor's Office showing compliance by said single proprietorship company with
the City Ordinance governing business establishments; and c) The Special Power of Attorney
itself, assuming but without admitting its due execution, is tangible proof that Augusto Yulo has
no interest whatsoever in the A & L Industries, otherwise, there would have been no necessity
for the Special Power of Attorney if he is a part owner of said single proprietorship.
With regard to the award of damages, the Court of Appeals affirmed the findings of the trial court
that there was bad faith on the part of the petitioner as to entitle the private respondent to
damages as shown not only by the fact that the petitioner did not present the Deed of
Assignment or the construction agreement or any evidence whatsoever to support its claim of
fraud on the part of the private respondent and to justify the issuance of a preliminary
attachment, but also by the following findings:
Continuing and elaborating further on the appellant's mala fide actuations in securing the writ of
attachment, the lower court stated as follows:
Plaintiff not satisfied with the instant case where an order for attachment has already been
issued and enforced, on the strength of the same Promissory Note (Exhibit"A"), utilizing the
Deed of Chattel Mortgage (Exhibit "4"), filed a foreclosure proceedings before the Office of the
Sheriff of Caloocan (Exhibit"6") foreclosing the remaining properties found inside the premises
formerly occupied by the A & L Industries. A minute examination of Exhibit "4" will show that the
contracting parties thereto, as appearing in par. 1 thereof, are Augusto Yulo, doing business
under the style of A & L Industries (should be A & L Glass Industries Corporation), as mortgagor
and BA Finance Corporation as mortgagee, thus the enforcement of the Chattel Mortgage
against the property of A & L Industries exclusively owned by Lily T. Yulo appears to be without
any factual or legal basis whatsoever. The chattel mortgage, Exhibit "4" and the Promissory
Note, Exhibit A, are based on one and the same obligation. Plaintiff tried to enforce as it did
enforce its claim into two different modes a single obligation.
Aware that defendant Lily Yulo, filed a Motion to Suspend Proceedings by virtue of a complaint
she filed with the Court of First Instance of Caloocan, seeking annulment of the Promissory
Note, the very basis of the plaintiff in filing this complaint, immediately after the day it filed a
Motion for the Issuance of an Alias Writ of Preliminary Attachment . . .Yet, inspite of the
knowledge and the filing of this Motion to Suspend Proceedings, the Plaintiff still filed a Motion
for the Issuance of a Writ of Attachment dated February 6, 1976 before this court. To add insult
to injury, plaintiff even filed a Motion for Examination of the Attachment Debtor, although aware
that Lily Yulo had already denied participation in the execution of Exhibits "A" and "B". These
incidents and actions taken by plaintiff, to the thinking of the court, are sufficient to prove and
establish the element of bad faith and malice on the part of plaintiff which may warrant the
award of damages in favor of defendant Lily Yulo. (Ibid., pp. 102-103).<re||an1w>
Indeed, the existence of evident bad faith on the appellant's part in proceeding against the
appellee Lily Yulo in the present case, may likewise be distressed on the fact that its officer Mr.
Abraham Co, did not even bother to demand the production of at least the duplicate original of
the Special Power of Attorney (Exhibit B) and merely contended himself with a mere xerox copy
thereof, neither did he require a more specific authority from the A & L Industries to contract the
loan in question, since from the very content and recitals of the disputed document, no authority,
express or implied, has been delegated or granted to August Yulo to contract a loan, especially
with the appellant. (pp. 33-34, Rollo)
Concerning the actual damages, the appellate court ruled that the petitioner should have
presented evidence to disprove or rebut the private respondent's claim but it remained quiet and
chose not to disturb the testimony and the evidence presented by the private respondent to

prove her claim.

In this petition for certiorari, the petitioner raises three issues. The first issue deals with the
appellate court's affirmance of the trial court's findings that the signature of the private
respondent on the Special Power of Attorney was forged. According to the petitioner, the Court
of Appeals disregarded the direct mandate of Section 23, Rule 132 of the Rules of Court which
states in part that evidence of handwriting by comparison may be made "with writings admitted
or treated as genuine by the party against whom the evidence is offered, or proved to be
genuine to the satisfaction of the judge," and that there is no evidence on record which proves
or tends to prove the genuineness of the standards used.
There is no merit in this contention.
The records show that the signatures which were used as "standards" for comparison with the
alleged signature of the private respondent in the Special Power of Attorney were those from the
latter's residence certificates in the years 1973, 1974 and 1975, her income tax returns for the
years 1973 and 1975 and from a document on long bond paper dated May 18, 1977. Not only
were the signatures in the foregoing documents admitted by the private respondent as hers but
most of the said documents were used by the private respondent in her transactions with the
government. As was held in the case of Plymouth Saving & Loan Assn. No. 2 v. Kassing (125
NE 488, 494):
We believe the true rule deduced from the authorities to be that the genuineness of a "standard"
writing may be established (1) by the admission of the person sought to be charged with the
disputed writing made at or for the purposes of the trial or by his testimony; (2) by witnesses
who saw the standards written or to whom or in whose hearing the person sought to be charged
acknowledged the writing thereof; (3) by evidence showing that the reputed writer of the
standard has acquiesced in or recognized the same, or that it has been adopted and acted upon
by him his business transactions or other concerns....
Furthermore, the judge found such signatures to be sufficient as standards. In the case of
Taylor-Wharton Iron & Steel Co. v. Earnshaw (156 N.E. 855, 856), it was held:
When a writing is offered as a standard of comparison it is for the presiding judge to decide
whether it is the handwriting of the party to be charged. Unless his finding is founded upon error
of law, or upon evidence which is, as matter of law, insufficient to justify the finding, this court
will not revise it upon exceptions." (Costelo v. Crowell, 139 Mass. 588, 590, 2 N.E. 648; Nuez
v. Perry, 113 Mass, 274, 276.)
We cannot find any error on the part of the trial judge in using the above documents as
standards and also in giving credence to the expert witness presented by the private respondent
whose testimony the petitioner failed to rebut and whose credibility it likewise failed to impeach.
But more important is the fact that the unrebutted handwriting expert's testimony noted twelve
(12) glaring and material differences in the alleged signature of the private respondent in the
Special Power of Attorney as compared with the specimen signatures, something which the
appellate court also took into account. In Cesar v. Sandiganbayan (134 SCRA 105, 132), we
ruled:
Mr. Maniwang pointed to other significant divergences and distinctive characteristics between
the sample signatures and the signatures on the questioned checks in his report which the
court's Presiding Justice kept mentioning during Maniwang's testimony.
In the course of his cross-examination, NBI expert Tabayoyong admitted that he saw the
differences between the exemplars used and the questioned signatures but he dismissed the
differences because he did not consider them fundamental. We rule that significant differences
are more fundamental than a few similarities. A forger always strives to master some similarities.
The second issue raised by the petitioner is that while it is true that A & L Industries is a single
proprietorship and the registered owner thereof is private respondent Lily Yulo, the said
proprietorship was established during the marriage and its assets were also acquired during the
same. Therefore, it is presumed that this property forms part of the conjugal partnership of the

spouses Augusto and Lily Yulo and thus, could be held liable for the obligations contracted by
Augusto Yulo, as administrator of the partnership.
There is no dispute that A & L Industries was established during the marriage of Augusta and
Lily Yulo and therefore the same is presumed conjugal and the fact that it was registered in the
name of only one of the spouses does not destroy its conjugal nature (See Mendoza v. Reyes,
124 SCRA 161, 165). However, for the said property to be held liable, the obligation contracted
by the husband must have redounded to the benefit of the conjugal partnership under Article
161 of the Civil Code. In the present case, the obligation which the petitioner is seeking to
enforce against the conjugal property managed by the private respondent Lily Yulo was
undoubtedly contracted by Augusto Yulo for his own benefit because at the time he incurred the
obligation he had already abandoned his family and had left their conjugal home. Worse, he
made it appear that he was duly authorized by his wife in behalf of A & L Industries, to procure
such loan from the petitioner. Clearly, to make A & L Industries liable now for the said loan would
be unjust and contrary to the express provision of the Civil Code. As we have ruled in Luzon
Surety Co., Inc. v. De Gracia (30 SCRA 111, 115-117):
As explained in the decision now under review: "It is true that the husband is the administrator of
the conjugal property pursuant to the provisions of Art. 163 of the new Civil Code. However, as
such administrator the only obligations incurred by the husband that are chargeable against the
conjugal property are those incurred in the legitimate pursuit of his career, profession or
business with the honest belief that he is doing right for the benefit of the family. This is not true
in the case at bar for we believe that the husband in acting as guarantor or surety for another in
an indemnity agreement as that involved in this case did not act for the benefit of the conjugal
partnership. Such inference is more emphatic in this case, when no proof is presented that
Vicente Garcia in acting as surety or guarantor received consideration therefore, which may
redound to the benefit of the conjugal partnership.(Ibid, pp. 46-47).
xxx xxx xxx
xxx xxx xxx
In the most categorical language, a conjugal partnership under that provision is liable only for
such "debts and obligations contracted by the husband for the benefit of the conjugal
partnership." There must be the requisite showing then of some advantage which clearly
accrued to the welfare of the spouses. There is none in this case.
xxx xxx xxx
Moreover, it would negate the plain object of the additional requirement in the present Civil
Code that a debt contracted by the husband to bind a conjugal partnership must redound to its
benefit. That is still another provision indicative of the solicitude and tender regard that the law
manifests for the family as a unit. Its interest is paramount; its welfare uppermost in the minds of
the codifiers and legislators.
We, therefore, rule that the petitioner cannot enforce the obligation contracted by Augusto Yulo
against his conjugal properties with respondent Lily Yulo. Thus, it follows that the writ of
attachment cannot issue against the said properties.
Finally, the third issue assails the award of actual damages according to the petitioner, both the
lower court and the appellate court overlooked the fact that the properties referred to are still
subject to a levy on attachment. They are, therefore, still under custodia legis and thus, the
assailed decision should have included a declaration as to who is entitled to the attached
properties and that assuming arguendo that the attachment was erroneous, the lower court
should have ordered the sheriff to return to the private respondent the attached properties
instead of condemning the petitioner to pay the value thereof by way of actual damages.
In the case of Lazatin v. Twao (2 SCRA 842, 847), we ruled:
xxx xxx xxx
... It should be observed that Sec. 4 of Rule 59, does not prescribed the remedies available to
the attachment defendant in case of a wrongful attachment, but merely provides an action for

recovery upon the bond, based on the undertaking therein made and not upon the liability
arising from a tortuous act, like the malicious suing out of an attachment. Under the first, where
malice is not essential, the attachment defendant, is entitled to recover only the actual damages
sustained by him by reason of the attachment. Under the second, where the attachment is
maliciously sued out, the damages recoverable may include a compensation for every injury to
his credit, business or feed (Tyler v. Mahoney, 168 NC 237, 84 SE 362; Pittsburg etc. 5
Wakefield, etc., 135 NC 73, 47 SE 234). ...
The question before us, therefore, is whether the attachment of the properties of A & L
Industries was wrongful so as to entitle the petitioner to actual damages only or whether the
said attachment was made in bad faith and with malice to warrant the award of other kinds of
damages. Moreover, if the private respondent is entitled only to actual damages, was the court
justified in ordering the petitioner to pay for the value of the attached properties instead of
ordering the return of the said properties to the private respondent Yulo ?
Both the trial and appellate courts found that there was bad faith on the part of the petitioner in
securing the writ of attachment. We do not think so. "An attachment may be said to be wrongful
when, for instance, the plaintiff has no cause of action, or that there is no true ground therefore,
or that the plaintiff has a sufficient security other than the property attached, which is tantamout
to saying that the plaintiff is not entitled to attachment because the requirements of entitling him
to the writ are wanting. (7 C.J.S., 664)" (p. 48, Section 4, Rule 57, Francisco, Revised Rules of
Court).
Although the petitioner failed to prove the ground relied upon for the issuance of the writ of
attachment, this failure cannot be equated with bad faith or malicious intent. The steps which
were taken by the petitioner to ensure the security of its claim were premised, on the firm belief
that the properties involved could be made answerable for the unpaid obligation due it. There is
no question that a loan in the amount of P591,003.59 was borrowed from the bank.
We, thus, find that the petitioner is liable only for actual damages and not for exemplary
damages and attorney's fees. Respondent Lily Yulo has manifested before this Court that she
no longer desires the return of the attached properties since the said attachment caused her to
close down the business. From that time she has become a mere employee of the new owner of
the premises. She has grave doubts as to the running condition of the attached machineries and
equipments considering that the attachment was effected way back in 1975. She states as a
matter of fact that the petitioner has already caused the sale of the machineries for fear that
they might be destroyed due to prolonged litigation. We, therefore, deem it just and equitable to
allow private respondent Lily Yulo to recover actual damages based on the value of the attached
properties as proven in the trial court, in the amount of P660,000.00. In turn, if there are any
remaining attached properties, they should be permanently released to herein petitioner.
We cannot, however, sustain the award of P500,000.00 representing unrealized profits because
this amount was not proved or justified before the trial court. The basis of the alleged unearned
profits is too speculative and conjectural to show actual damages for a future period. The private
respondent failed to present reports on the average actual profits earned by her business and
other evidence of profitability which are necessary to prove her claim for the said amount (See
G. A. Machineries, Inc. v. Yaptinchay, 126 SCRA 78, 88).
The judgment is therefore set aside insofar as it holds the petitioner liable for P500,000.00
actual damages representing unrealized profits, P150,000.00 for exemplary damages and
P20,000.00 for attorney's fees. As stated earlier, the attached properties, should be released in
favor of the petitioner.
WHEREFORE, the decision of the Court of Appeals is hereby SET ASIDE and the petitioner is
ordered to pay the private respondent Lily Yulo the amount of SIX HUNDRED SIXTY
THOUSAND PESOS (P660,000.00) as actual damages. The remaining properties subject of the
attachment are ordered released in favor of the petitioner.
SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes JJ., concur.

7.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 102692 September 23, 1996
JOHNSON & JOHNSON (PHILS.), INC., petitioner,
vs.
COURT OF APPEALS and ALEJO M. VINLUAN, respondents.
PANGANIBAN, J.:
May a husband be held liable for the debts of his wife which were incurred without his consent
and which did not benefit the conjugal partnership? May a judgment declaring a wife solely
liable, be executed upon conjugal property, over the objection of the husband?
These are the main questions raised in the instant petition for review on certiorari under Rule 45
of the Rules of Court which seeks nullification of the Decision 1 in CA-G.R. SP No. 19178 of the
Court of Appeals, 2 the dispositive portion of which reads:
WHEREFORE, in view of all the foregoing, the instant petition is hereby GRANTED, and the
orders dated July 24, 1989 and October 4, 1989 of the Regional Trial Court of Makati, Branch
137, in Civil Case No. 4186, as well as the notices of levy issued by the Provincial Sheriff of
Rizal dated February 8, 1989, are hereby declared null and void and set aside. No costs.
The Facts
This case was initiated in the trial court by a complaint 3 filed by petitioner against spouses
Delilah A. Vinluan, owner of Vinluan Enterprises, and her husband Capt. Alejo M. Vinluan (the
private respondent before us), for collection of a sum of money with damages, which was
docketed as Civil Case No. 4186 and tried in the Regional Trial Court of Makati, Branch 137. 4
The respondent appellate Court found the antecedent facts, to be as follows: 5
The plaintiff-respondent Johnson & Johnson (Phils.), Incorporated (hereinafter referred to as the
corporation) is engaged in the manufacturing and selling of various cosmetics, health, and body
care products, as well as medical drugs. On several occasions in the year 1982, the defendant,
Delilah Vinluan, purchased products of the plaintiff-respondent corporation, as she was also
engaged in the business of retailing Johnson products, among others. The defendants, under
the name and style of "Vinluan Enterprises," thus incurred an obligation of Two Hundred ThirtyFive Thousand Eight Hundred Eighty Pesos and Eighty-Nine (P235,880.89) Centavos, for which
she issued seven (7) Philippine Banking Corporation checks of varying amounts and due dates.
When presented on their respective due dates, however, the checks given in payment of the
obligation bounced and were dishonored for having been drawn against insufficient funds.
Several demands thereafter for payment were to no avail, despite the accommodations given by
the plaintiff-respondent corporation by granting several extensions to the defendant spouses to
settle the obligation. It was only on January 5, 1983 that the defendants made a partial payment
of Five Thousand (P5,000.00) Pesos, thereby reducing their principal obligation to P230,880.89.
When no further payments were made to settle the obligation despite repeated demands, the
plaintiff-respondent corporation was constrained to file a complaint (Annex "A") on June 8, 1983
against defendant spouses Vinluan, for collection of the principal obligation plus interest, with
damages. Filed before the respondent Regional Trial Court of Makati, Branch 137, it was
docketed as Civil Case No. 4186.
After trial on the merits, on February 5, 1985, the respondent court rendered its Decision (Annex
"C"), the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered sentencing the defendant DELILAH A. VINLUAN

to pay plaintiff Johnson & Johnson (Phils.), Inc, the sum of P242,482.40 with interest and
penalty charges at the rate of 2% per month from 30 January 1983 until fully paid, and the sum
of P30,000.00 as attorney's fees, and to pay the costs.
Defendants' counterclaim is hereby dismissed for lack of sufficient merit.
In arriving at the sole liability of defendant Delilah A. Vinluan, the trial court found after
"meticulous scrutiny and careful evaluation of the evidence on record" that there was "no privity
of contract, whether direct or indirect, between plaintiff and defendant-husband regarding the
obligations incurred by defendant-wife." According to the trial court, "(i)n fact, the acts
performed, and the statements made, by defendant-husband, and from which plaintiff derived
the notion that said defendant is a co-owner of VINLUAN ENTERPRISES, took place after the
obligation involved in this action had been incurred or contracted by the defendant-wife, albeit
without the husband's knowledge or consent, as there was no allegation in the complaint that
said obligations were incurred by defendant-wife with her husband's consent, or that it was
incurred for the benefit of the family. . . ." 6
The trial court also found that private respondent never intimated in his conversations or
meetings with, or in any of his letters to, petitioner that "he was a co-owner of VINLUAN
ENTERPRISES, much less did he represent himself as such co-owner, to the plaintiff and to
plaintiff's counsel . . . ." When private respondent personally negotiated with petitioner and
proposed a settlement of the subject obligations, these actuations were not to be considered as
admission of co-ownership of VINLUAN ENTERPRISES for "(a)fter all, common sense and our
inborn mores of conduct dictate that a husband must give aid and comfort to his distressed
wife." 7 The trial court further held that the defendant spouses had sufficiently established that
the defendant wife was sole owner of the business venture, that the conjugal partnership never
derived any benefit therefrom, and that the same closed due to continued losses. In sum, the
court a quo held that private respondent could not legally be held liable for the obligations
contracted by the wife.
Thus, the court below issued a writ of execution 8 on February 3, 1989, directing the Provincial
Sheriff of Rizal to execute the judgment on
the properties of the defendant-wife. However, the two notices of levy on execution 9 issued on
February 8, 1989 covered not only her exclusive or paraphernal properties, but also the real and
personal properties of the conjugal partnership of the spouses Vinluan. The next day, her
husband (herein private respondent) filed a third-party claim 10 seeking the lifting of the levy on
the conjugal properties, followed by another third-party claim reiterating the same demand with
threat of possible lawsuit. Subsequently, petitioner corporation filed a motion dated February 14,
1989 asking the court to fix the value of the properties levied upon by the sheriff. In response to
the third-party claims of private respondent, a comment and/or opposition dated March 6, 1989
was filed by petitioner.
Private respondent moved on July 1, 1989 to quash the levy on execution on the ground that
the notices of levy on execution did not conform to the final decision of the court and to the writ
of execution. As expected, petitioner opposed the motion. On July 24, 1989, the trial court
issued the first assailed Order fixing the value of the levied personal properties at P300,000.00,
and denying the third-party claim and the motion to quash the levy on execution. Citing the last
sentence of Article 117 11 of the Civil Code, the court a quo ruled that: 12
Since Alejo Vinluan did not seek the intervention of the Court to air his objections in his wife's
engaging in business, coupled by the fact that he made several representations for the
settlement of his wife's account, Alejo Vinluan's consent thereto became evident. As such, even
his own capital may be liable, together with the conjugal and paraphernal property (I Paras 363,
1987 ed., p. 6; Art. 6-10, Code of Commerce). Withal, Article 172 of the New Civil Code
categorically declares that
The wife cannot bind the conjugal partnership without the husband's consent, except in the
cases provided by law.

Granting arguendo that Alejo Vinluan did not give his consent, expressly or impliedly, the
paraphernal and conjugal property may still be held liable but not his capital (I Paras 363, 1978
ed.).
Petitioner's motion for reconsideration of the abovequoted first order (on the ground that it
directly contravened the decision itself which had already become final and executory) was
denied via the second contested Order dated October 4, 1989, where the trial court ruled: 13
The Court finds untenable movant-defendant's assertion that Art. 172 of the New Civil Code is
not in point. The consent of the husband is indeed vital in determining what properties shall be
subsidiarily liable in the event the paraphernal properties of Delilah Vinluan should turn out to be
insufficient to cover the judgment debt, as fully explained in the Order dated 24 July 1989.
Art. 122 of the Family Code which party provides that
Art. 122. The payment of personal debts contracted by the husband or the wife before or during
the marriage shall not be charged to the conjugal partnership except insofar as they redounded
to the benefit of the family.
xxx xxx xxx
is not applicable in that
This Code (Family Code) shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws (Art. 255, Family
Code; emphasis supplied).
Plaintiff (petitioner herein), having acquired a vested right prior to the effectivity of the Family
Code, said code is not a propos (sic). Even granting arguendo that the same is befitting, movant
defendant failed to realize that although Delilah Vinluan suffered losses in her legitimate
business, the experience she has gained redounded to the benefit of the family, and as such,
the conjugal partnership must bear the indebtedness and losses (I Paras 464, 1981 ed.).
Moreover, had the business Delilah Vinluan engaged in been a success, all profits would have
been considered conjugal; it is therefore but fair that the risks of the business should be borne
by the conjugal partnership (Miravite, Bar Review Materials in Commercial Law, 1986 ed., p. 89;
J.N. Nolledo, Commercial Law Reviewer, 1986 ed., pp. 6, 7; U.P. Law Complex, Answers to Bar
Questions In Commercial Law, 1986 ed., pp. 174, 175; Vitug, Commercial Law Reviewer, 1984,
ed., p. 5).
There is a wide-embracing oversight when movant-defendant asserted that to hold the conjugal
partnership property liable for the indebtedness incurred solely by his wife would in effect modify
the Decision dated 5 Feb 1985 which is now final and executory. As afore-discussed, the
conjugal property is subsidiarily liable.
As indicated above, the private respondent elevated the matter to the respondent appellate
Court, charging the trial court with grave abuse of discretion for effectively reversing its own final
judgment. The respondent Court upheld the private respondent in its now-assailed Decision,
and denied herein petitioner's subsequent motion for reconsideration. Thus, petitioner is now
before us seeking review under Rule 45.
The Issues
Petitioner raised the following "issues of law" for consideration of this Court, to wit: 14
1. Whether or not the decision of the honorable trial court dated February 5, 1985 exonerating
(sic) defendant husband, private respondent herein, from the obligation contracted by the wife in
the pursuit of her business also absolves the conjugal partnership from liability.
2. Whether or not the subsequent order of the honorable trial court dated July 24, 1989 and
October 4, 1989 is a reversal of its own original decision as found out by the honorable public
respondent.
The pivotal issues in this case may be re-stated thus: whether or not the order of the trial court
denying private respondent's third-party claim and motion to quash levy on execution in effect
amended the dispositive portion of the trial court's decision which had long become final and
executory, and if so, whether same is proper or not. These issues shall be ruled upon together.

The Court's Ruling

Petitioner contends 15 that the purpose of impleading private respondent as co-defendant in
petitioner's complaint was to bind not only the defendant-spouses' conjugal partnership but also
private respondent's capital. The trial court resolved that it was not necessary that private
respondent (as husband) be joined as party-defendant in the suit below. Inasmuch as it
appeared from the allegations in the complaint that private respondent may be a co-owner of
Vinluan Enterprises, the trial court nonetheless did not exclude private respondent but passed
upon the issue of such co-ownership to determine whether he may be held liable in the same
manner as his wife. Petitioner insists that the trial court in its decision merely made a finding that
the private respondent husband was not a co-owner of the business venture of his wife, which
conclusion ("exoneration") only exempted his capital from the adjudged liability, but not the
conjugal properties of the spouses. Petitioner further argues that nowhere in the trial court's
decision can there be found any pronouncement absolving the conjugal property from liability,
contrary to the findings of the respondent Court.
Also, petitioner reasons that the enforcement of the decision against the conjugal property is
merely compliance with law, and that this Court in a long line of cases 16 held that a judgment is
not confined to what appears upon the face of the decision but also those necessarily included
therein or necessary thereto. 17 Additionally, petitioner pleads that the trial court's order did not
modify its final and executory decision but only clarified an ambiguity in the decision as to what
properties are liable. As authority, it cites Republic vs. De los Angeles. 18
Petitioner's contentions are devoid of merit.
Respondent Court correctly ruled that the trial court cannot, in the guise of deciding the thirdparty claim, reverse its final decision. Commenting on the trial court's very patent "about-face"
on the issues of consent of the husband, benefit to the family, and the husband's liability for
obligations contracted by his wife, the appellate Court held, and we quote: 19
We see in these stark contradictions an attempt by the respondent Court to reverse itself, even
when the decision sought to be executed had already become final. The respondent Court has
no authority to modify or vary the terms and conditions of a final and executory judgment (Vda.
de Nabong vs. Sadang, 167 SCRA 232) and this attempt to thwart the rules cannot be allowed
to pass. Even if the respondent Court feels that it needed to reverse its findings to correct itself,
the decision, whether erroneous or not, has become the law of the case between the parties
upon attaining finality (Balais vs. Balais, 159 SCRA 37). the respondent Court has no choice but
to order the execution of the final decision according to what is ordained and decreed in the
dispositive portion of the decision (National Steel Corp. vs. NLRC, 165 SCRA 452).
The dispositive portion of the decision charges the defendant Delilah Vinluan alone to pay the
plaintiff corporation, having already declared that the defendant-husband cannot be held legally
liable for his wife's obligations. Perhaps, when it was later discovered that the defendant Delilah
Vinluan did not have sufficient property of her own to settle the obligation, the conjugal
properties of the defendant-spouses became the object of the levy. But in order to bind the
conjugal partnership and its properties, the New Civil Code provides that the debts and
obligations contracted by the husband (or the wife) must be for the benefit of the conjugal
partnership (Article 161, par. 1); and that the husband must consent to his wife's engaging in
business (Article 117).
Thus, we see a belated effort on the part of the respondent Court to reverse itself by declaring
that the obligations incurred by the defendant wife redounded to the benefit of the family and
that the defendant husband had given his consent, in order to bind the conjugal partnership.
As We stated earlier, this cannot be done because the decision, along with the respondent
Court's original findings, had already become final and indisputable. The respondent Court
already found that the defendant husband did not give his consent; neither did the obligation
incurred by the defendant wife redound to the benefit of the family. Hence, the conjugal
partnership, as well as the defendant husband, cannot be held liable. As originally decreed by

the Court, only the defendant wife and her paraphernal property can be held liable. Since the
power of the court in execution of judgments extends only to properties unquestionably
belonging to the judgment debtor alone (Republic vs. Enriquez, 166 SCRA 608), the conjugal
properties and the capital of the defendant husband cannot be levied upon.
The settled rule is that a judgment which has acquired finality becomes immutable and
unalterable, and hence may no longer be modified in any respect except only to correct clerical
errors or mistakes all the issues between the parties being deemed resolved and laid to rest.
20
This is meant to preserve the stability of decisions rendered by the courts, and to dissuade
parties from trifling with court processes. One who has submitted his case to a regular court
necessarily commits himself to abide by whatever decision the court may render. Any error in
the decision which has not been considered in a timely motion for reconsideration or appeal
cannot be impugned when such error becomes apparent only during execution. This rule
applies with more force in the case of to decision judge who has limited prerogative during
execution of the judgment. For as correctly held by herein public respondent, aside from
ordering the enforcement of the dispositive portion of the decision, the trial judge can do nothing
about the errors in the ratiocination of the decision or even alter the dispositive portion by mere
order issued subsequent to the finality of the decision. The issue having been laid to rest, the
court cannot on the pretext of determining the validity of the third-party claim and the motion to
quash levy on execution alter the scope of the dispositive portion of the decision sought to be
implemented.
Petitioner's arguments notwithstanding, the trial court's order cannot be said to be merely
clarificatory in nature. There is no ambiguity at all in the decision, for it categorically declared
defendant Delilah A. Vinluan solely liable, without any recourse provided against her husband.
Thus, the case of Republic vs. Delos Angeles, 21 holding that doubtful or ambiguous judgments
are to have a reasonable intendment to do justice and avoid wrong, does not apply here. as was
later held in Filinvest Credit Corporation vs. Court of Appeals, 22 "(w)here there is an ambiguity,
a judgment shall be read in connection with the entire record and construed accordingly. In such
a case, it is proper to consider the pleadings and the evidence." (Emphasis supplied). But the
text of the trial court's decision points to no other person liable but Delilah Vinluan, and in fact
made a rather lengthy discussion on the exemption from liability of the conjugal partnership;
hence, there can be no ambiguity to speak of in the decision. And even more clearly, the body of
the decision of the trial court expressly exempted private respondent from liability by
categorically ruling that "the defendant-husband cannot, together, with co-defendant, legally be
held liable for the obligations contracted by the wife." 23 Further, the trial court expounded: 24
. . . . What is more, it is an admitted fact that the subject obligations had partially been paid by
the defendant-wife herself. Thus, plaintiff implicitly averred that "defendant Delilah Vinluan, ding
business under the name and style of VINLUAN ENTERPRISES is one of the various
customers of the plaintiff's products' (Cf. p. 1, Plaintiff's Pre-Trial Brief); that "Delilah Vinluan . . .
purchased different Johnson products . . . , thus incurring an obligation of P235,880.89" (Cf. par.
III, Complaint); that "defendant Delilah Vinluan tried to pay (her) obligations . . . when she issued
Philippine Banking Checks . . . , but which checks upon presentment to the Bank were
dishonored for the reason "Drawn Against Insufficient Funds" (Cf. par. V, id.); that " . . . ,
defendant Delilah A. Vinluan appealed to the company and also represented that she be given
an opportunity to settle the accountability" (Cf. par. VI, id.); that "defendant sent a letter to the
company where she alleged that payment cannot be made because they are "victims of some
bad practices in the trade and that they are working on some means to settle their accounts and
all that they ask is time to settle." (Cf. par. VI, id.).
We take this occasion to reiterate the ruling of this Court in an early
case 25 that litigations must end and terminate sometime and somewhere, it being essential to
the effective and efficient administration of justice that once a judgment has become final, the
winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. Hence,

courts must guard against any scheme calculated to bring about that result, for, constituted as
they are to put an end to controversies, courts should frown upon any attempt to prolong them.
Furthermore, public policy and sound practice demand that at the risk of occasional errors,
judgments of courts should become final and irrevocable at some definite date fixed by law. And
this is better observed if the court executing the judgment would refrain from creating further
controversy by effectively modifying and altering the dispositive portion of the decision, thus
further delaying the satisfaction of the judgment. No matter how just the intention of the trial
court, it cannot legally reverse what has already been settled. Holding the conjugal partnership
liable in the order after the finality of the decision is evidently not just correcting a mere clerical
error; it goes into the merits of the case. And this is prohibited by the rules and jurisprudence.
We have elsewhere ruled that "should judgment of lower courts which may normally be
subject to review by higher tribunals become final and executory before, or without,
exhaustion of all recourse of appeal, they, too, become inviolable, impervious to modification.
They may, then, no longer be reviewed, or in any way modified directly or indirectly, by a higher
court, not even by the Supreme Court, much less by any other official, branch or department of
Government." 26
. . . (N)othing is more settled in the law than that when a final judgment becomes executory, it
thereby becomes immutable and unalterable. The judgment may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an erroneous
conclusion of fact or law, and regardless of whether the modification is attempted to be made by
the Court rendering it or by the highest Court of land. They only recognized exceptions are the
correction of clerical errors or the making of so-called nunc pro tunc entries which cause no
prejudice to any party, and, of course, where the judgment is void.
Furthermore, "(a)ny amendment or alteration which substantially affects a final and executory
judgment is null and void for lack of jurisdiction, including the entire proceedings held for that
purpose." 27
The respondent Court also commented on the sheriff's actuations as follows: 28
Furthermore, it is the duty of the sheriff to ensure that only that portion of the decision ordained
and decreed in the dispositive part should be the subject of the execution (Cunanan vs. Cruz,
167 SCRA 674). The writ of execution itself states that only the properties of the defendant wife
were to be levied upon. There was no mention even of conjugal properties. Hence, in levying on
the properties that did not exclusively belong to the judgment debtor, the notices of levy failed to
conform to the decree of the decision, and are, therefore, irregular and contrary to the Rules
(Canlas vs. CA, 164 SCRA 160).
It is a rule firmly established in our jurisprudence that a sheriff is not authorized to attach or levy
on property not belonging to the judgment debtor. 29 A sheriff even incurs liability if he wrongfully
levies upon the property of a third person. 30 A sheriff has no authority to attach the property of
any person under execution except that of the judgment debtor. The sheriff maybe liable for
enforcing execution on property belonging to a third party. 31 If he does so, the writ of execution
affords him no justification, for the action is not in obedience to the mandate of the writ.
WHEREFORE, in view of the foregoing considerations, the herein petition is hereby DENIED,
and the Decision of the respondent Court is AFFIRMED. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
8.
9.
10.
11.
Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 146504
April 9, 2002
HONORIO L. CARLOS, petitioner,
vs.
MANUEL T. ABELARDO, respondent.
KAPUNAN, J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the
decision of the Court of Appeals dated November 10, 2000 in CA-G.R. CV No. 54464 which
reversed and set aside the decision of the Regional Trial Court of Valenzuela, Branch 172, and
dismissed for insufficiency of evidence the complaint for a sum of money and damages filed by
herein petitioner Honorio Carlos against respondent Manuel Abelardo, his son-in-law, and the
latters wife, Maria Theresa Carlos-Abelardo.
Petitioner averred in his complaint filed on October 13, 1994 that in October 1989, respondent
and his wife Maria Theresa Carlos-Abelardo approached him and requested him to advance the
amount of US$25,000.00 for the purchase of a house and lot located at #19952 Chestnut
Street, Executive Heights Village, Paranaque, Metro Manila. To enable and assist the spouses
conduct their married life independently and on their own, petitioner, in October 31, 1989, issued
a check in the name of a certain Pura Vallejo, seller of the property, who acknowledged receipt
thereof.1 The amount was in full payment of the property.
When petitioner inquired from the spouses in July 1991 as to the status of the amount he loaned
to them, the latter acknowledged their obligation but pleaded that they were not yet in a position
to make a definite settlement of the same. 2Thereafter, respondent expressed violent resistance
to petitioners inquiries on the amount to the extent of making various death threats against
petitioner.3
On August 24, 1994, petitioner made a formal demand for the payment of the amount of
US$25,000.00 but the spouses failed to comply with their obligation. 4Thus, on October 13,
1994, petitioner filed a complaint for collection of a sum of money and damages against
respondent and his wife before the Regional Trial Court of Valenzuela, Branch 172, docketed as
Civil Case No. 4490-V-94. In the complaint, petitioner asked for the payment of the
US$25,000.00 or P625,000.00, its equivalent in Philippine currency plus legal interest from date
of extra-judicial demand.5Petitioner likewise claimed moral and exemplary damages, attorneys
fees and costs of suit from respondent.6
As they were separated in fact for more than a year prior to the filing of the complaint,
respondent and his wife filed separate answers. Maria Theresa Carlos-Abelardo admitted
securing a loan together with her husband, from petitioner.7She claimed, however, that said loan
was payable on a staggered basis so she was surprised when petitioner demanded immediate
payment of the full amount.8
In his separate Answer, respondent admitted receiving the amount of US$25,000.00 but claimed
that:
xxx
a. Defendant (respondent) xxx revived that otherwise dormant construction firm H.L. CARLOS
CONSTRUCTION of herein plaintiff which suffered tremendous setback after the assassination
of Senator Benigno Aquino;
b. Working day and night and almost beyond human endurance, defendant devoted all his
efforts and skill, used all his business and personal connection to be able to revive the
construction business of plaintiff;
c. Little-by-little, starting with small construction business, defendant was able to obtain various
construction jobs using the name H.L. CARLOS CONSTRUCTION and the income derived
therefrom were deposited in the name of such firm of plaintiff,

d. Defendant xxx was made to believe that the earnings derived from such construction will be
for him and his family since he was the one working to secure the contract and its completion,
he was allowed to use the facilities of the plaintiff;
e. The plaintiff seeing the progress brought about by defendant xxx to his company proposed a
profit sharing scheme to the effect that all projects amounting to more than P10 million shall be
for the account of plaintiff; lower amount shall be for defendants account but still using H.L.
CARLOS CONSTRUCTION.
f. But, to clear account on previous construction contracts that brought income to H.L.CARLOS
CONSTRUCTION, out of which defendant derived his income, plaintiff gave the amount of
US$25,000.00 to defendant to square off account and to start the arrangement in paragraph (e)
supra;
g. That, the said US$25,000.00 was never intended as loan of defendant. It was his share of
income on contracts obtained by defendant;
xxx 9
Respondent denied having made death threats to petitioner and by way of compulsory
counterclaim, he asked for moral damages from petitioner for causing the alienation of his wifes
love and affection, attorneys fees and costs of suit.10
On June 26, 1996, the Regional Trial Court rendered a decision in favor of petitioner, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered as follows:
1. Ordering the defendants to pay plaintiff the amount of US$25,000.00 or its equivalent in
Philippine Currency at the time of its payment, plus legal interest thereon from August 24, 1994
until fully paid;
2. Ordering the defendant Manuel T. Abelardo to pay the plaintiff the amount of P500,000.00
representing moral damages and the further amount of P50,000.00 as exemplary damages; and
3. Ordering the defendants to pay the plaintiff the amount of P100,000.00 as attorneys fees,
plus the costs of suit.
SO ORDERED.11
Respondent appealed the decision of the trial court to the Court of Appeals. On November 10,
2000, the Court of Appeals reversed and set aside the trial courts decision and dismissed the
complaint for insufficiency of evidence to show that the subject amount was indeed loaned by
petitioner to respondent and his wife. The Court of Appeals found that the amount of
US$25,000.00 was respondents share in the profits of H.L. Carlos Construction. The dispositive
portion of the Court of Appeals decision states:
WHEREFORE, premises considered, the Decision of the Regional Trial Court of Valenzuela,
Branch 172 in Civil Case No. 4490-V-94 is hereby REVERSED and SET ASIDE and a new one
entered DISMISSING the Complaint for insufficiency of evidence.
The claim for damages by defendant-appellant is likewise DISMISSED, also for insufficiency of
evidence, because of his failure to present substantial evidence to prove that plaintiff-appellee
caused the defendant-spouses separation.
Costs against the plaintiff-appellee.
SO ORDERED.12
A motion for reconsideration of the above decision having been denied on, petitioner brought
this appeal assigning the following errors:
THE COURT OF APPEALS ERRED IN FINDING INSUFFICIENT EVIDENCE TO PROVE THAT
THE AMOUNT OF US$25,000.00 WAS A LOAN OBTAINED BY PRIVATE RESPONDENT AND
HIS WIFE FROM PETITIONER.
THE COURT OF APPEALS ERRED IN HOLDING THAT THE US$25,000.00 WAS GIVEN AS
PRIVATE RESPONDENTS SHARE IN THE PROFITS OF H.L. CARLOS CONSTRUCTION,
INC. AND THAT THE FILING OF THE COMPLAINT IS A HOAX.
THE COURT OF APPEALS ERRED IN NULLIFYING THE AWARD OF DAMAGES FOR LACK

OF PROOF THEREOF.
We find merit in the petition.
As gleaned from the records, the following facts are undisputed: (1) there was a check in the
amount of US$25,000.00 issued by petitioner; (2) this amount was received by respondent and
his wife and given to a certain Pura Vallejo for the full payment of a house and lot located at
#19952 Chestnut Street, Executive Heights Village, Paranaque, Metro Manila; (3) this house
and lot became the conjugal dwelling of respondent and his wife; and (4) respondents wife
executed an instrument acknowledging the loan but which respondent did not sign.
To prove his claim that the amount was in the nature of a loan or an advance he extended to
respondent and his wife, petitioner presented Bankers Trust Check No. 337 in the amount of
US$25,000.00 he issued on October 31, 1989 to Pura Vallejo. 13 He also introduced in evidence
an instrument executed by respondents wife on July 31, 1991 acknowledging her and her
husbands accountability to petitioner for the said amount which was advanced in payment of a
house and lot located at #19952 Chestnut Street, Executive Heights Subdivision, Paranaque. 14
A formal demand letter by counsel for petitioner dated August 24, 1994 sent to and received by
respondent was also on record.15
All these pieces of evidence, taken together with respondents admission that he and his wife
received the subject amount and used the same to purchase their house and lot, sufficiently
prove by a preponderance of evidence petitioners claim that the amount of US$25,000.00 was
really in the nature of a loan.
Respondent tried to rebut petitioners evidence by claiming that the US$25,000.00 was not a
loan but his share in the profits of H.L. Carlos Construction. He alleged that he received money
from petitioner amounting to almost P3 million as his share in the profits of the corporation. To
prove this, he presented ten (10) Bank of the Philippine Islands (BPI) checks allegedly given to
him by petitioner.16He argued that if indeed, he and his wife were indebted to petitioner, the
latter could have easily deducted the amount of the said loan from his share of the profits.
Respondent fails to convince this Court.
All the checks presented by respondent, which he claims to be his share in the profits of
petitioners company, were all in the account of H.L. Carlos Construction. 17 On the other hand,
the Bankers Trust Check in the amount of US$25,000.00 was drawn from the personal account
of petitioner.18Assuming to be true that the checks presented by respondent were his profits
from the corporation, then all the more does this prove that the amount of US$25,000.00 was
not part of such profits because it was issued by petitioner from his own account. Indeed, if such
amount was respondents share of the profits, then the same should have been issued under
the account of H.L. Carlos Construction.
Moreover, respondent failed to substantiate his claim that he is entitled to the profits and income
of the corporation. There was no showing that respondent was a stockholder of H.L. Carlos
Construction. His name does not appear in the Articles of Incorporation as well as the
Organizational Profile of said company either as stockholder or officer.19 Not being a
stockholder, he cannot be entitled to the profits or income of said corporation. Neither did
respondent prove that he was an employee or an agent so as to be entitled to salaries or
commissions from the corporation.
We quote with favor the disquisition of the trial court on this point:
Early in time, it must be noted that payment of personal debts contracted by the husband or the
wife before or during the marriage shall not be charged to the conjugal partnership except
insofar as they redounded to the benefit of the family. The defendants never denied that the
check of US$25,000.00 was used to purchase the subject house and lot. They do not deny that
the same served as their conjugal home, thus benefiting the family. On the same principle,
acknowledgment of the loan made by the defendant-wife binds the conjugal partnership since
its proceeds redounded to the benefit of the family. Hence, defendant-husband and defendantwife are jointly and severally liable in the payment of the loan.

Defendant-husband cannot allege as a defense that the amount of US $25,000.00 was received
as his share in the income or profits of the corporation and not as a loan. Firstly, defendanthusband does not appear to be a stockholder nor an employee nor an agent of the corporation,
H. L. Carlos Construction, Inc. Since he is not a stockholder, he has no right to participate in the
income or profits thereof. In the same manner that as he is not an employee nor an agent of H.
L. Carlos Construction, Inc., he has no right to receive any salary or commission therefrom.
Secondly, the amount advanced for the purchase of the house and lot came from the personal
account of the plaintiff. If, indeed, it was to be construed as defendant-husbands share in the
profits of the corporation, the checks should come from the corporations account and not from
the plaintiffs personal account, considering that the corporation has a personality separate and
distinct from that of its stockholders and officers.1wphi1.nt
Even granting that the checks amount to US $3,000.000.00 given by the plaintiff to the
defendant-spouses was their share in the profits of the corporation, still there is no sufficient
evidence to establish that the US $25,000.00 is to be treated similarly. Defendant-husband in
invoking the defense of compensation argued that if indeed they were indebted to the plaintiff,
the latter could have applied their share in the proceeds or income of the corporation to the
concurrent amount of the alleged loan, instead of giving the amount of P3,000,000.00 to them.
This argument is untenable. Article 1278 of the Civil Code provides that compensation shall take
place when two persons, in their own right, are debtors and creditors of each other. As its
indicates, compensation is a sort of balancing between two obligations. In the instant case, the
plaintiff and the defendant-husband are not debtors and creditors of each other. Even granting
that the defendant-husbands claim to the profits of the corporation is justified, still
compensation cannot extinguish his loan obligation to the plaintiff because under such
assumption, the defendant is dealing with the corporation and not with the plaintiff in his
personal capacity. Hence, compensation cannot take place.
The Court of Appeals, thus, erred in finding that respondents liability was not proved by
preponderance of evidence. On the contrary, the evidence adduced by petitioner sufficiently
established his claim that the US$25,000.00 he advanced to respondent and his wife was a
loan.
The loan is the liability of the conjugal partnership pursuant to Article 121 of the Family Code:
Article 121. The conjugal partnership shall be liable for:
xxx
(2) All debts and obligations contracted during the marriage by the designated administratorspouse for the benefit of the conjugal partnership of gains, or by both spouses or by one of them
with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the
extent that the family may have been benefited;
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.
xxx
While respondent did not and refused to sign the acknowledgment executed and signed by his
wife, undoubtedly, the loan redounded to the benefit of the family because it was used to
purchase the house and lot which became the conjugal home of respondent and his family.
Hence, notwithstanding the alleged lack of consent of respondent, under Art. 21 of the Family
Code, he shall be solidarily liable for such loan together with his wife.
We also find sufficient basis for the award of damages to petitioner, contrary to the findings of
the Court of Appeals that petitioner is not entitled thereto.
Petitioners allegations of verbal and written threats directed against him by respondent is duly
supported by evidence on record. He presented two witnesses, Irineo Pajarin and Randy Rosal,
who testified on separate incidents where threats were made by respondent against petitioner.
Randy Rosal, driver of petitioner, declared that around three o clock in the afternoon of

September 15, 1991, he was sent by respondents wife on an errand to deliver the
acknowledgment letter to respondent for him to sign. Respondent did not sign the
acknowledgment and instead, wrote a letter addressed to petitioner threatening him. He
narrated what took place thereafter:
xxx
Q
When you were requested by Ma. Theresa C. Abelardo to bring a letter to herein
defendant Manuel Abelardo for him to sign the same, do you know whether that letter was
actually signed by Manuel Abelardo?
A
No, sir.
xxx
Q
And what happened when Manuel Abelardo refused to sign that letter coming from the
other defendant?
A
He made me wait and he prepared a letter to Mr. Honorio Carlos, sir.
xxx
Q
Where were you at the time when this defendant Manuel Abelardo prepared this letter?
A
In his house, sir.
Q
And where did he actually prepare that letter?
A
At the dining table, sir.
Q
How far were you from Manuel Abelardo from the dining table at the time when he was
preparing a letter.
A
Around 1 meter, sir.
Q
And do you know where in, what particular paper did Mr. Abelardo prepare or write this
letter?
A
He wrote it in a Manila envelope, sir.
xxx
Q
What happened after Manuel Abelardo prepared this letter in a Manila envelope?
A
He got a small envelope and placed there the name of Mr. Carlos as the addressee, sir.
xxx
Q
After preparing this letter on a Manila envelope and then getting another envelope and
writing on it the address of herein plaintiff, what did the defendant Manuel Abelardo do, if any?
A
He instructed me to mail the letter which he prepared, sir.
xxx
Q
And did you actually accede to the request of herein defendant Manuel Abelardo for you
to mail that letter to Engr. Carlos?
A
I got the envelope but I did not mail it, sir.
xxx
Q
May we know from you the reason why you did not mail said letter?
A
Because Engr. Carlos might become frightened, sir.
Q
What did you do with that letter, although you did not mail it?
A
I kept it, sir.
xxx
Q
And what did you do next after keeping the letter for several days?
A
I gave the letter personally to Engr. Carlos, sir.
Q
What prompted you to give that letter to Engr. Carlos instead of mailing it?
A
So that Engr. Carlos can prepare, sir.
x
x
x20
This incident was duly entered and recorded in the Police Blotter on October 7, 1991 by a
certain Sgt. Casile of the Valenzuela Police Station.21 A photocopy of this written threat was also
attached to the Police Report and presented in evidence.22
Another witness, Irineo Pajarin, recounted an incident which occurred in the afternoon of May
25, 1994, to wit:

xxx
Q
Now Mr. Witness, on May 25, 1994 at around 2:30 in the afternoon do you recall where
you were on that particular date and time?
A
I was at B.F. Homes, Paranaque, sir.
Q
What were you doing at that time?
A
I was waiting for Sargie Cornista, sir.
xxx
Q
Will you please narrate to this Honorable Court that unusual incident?
A
Manuel Abelardo passed by and when he saw me he called me. I approached him while
he was then on board his car and asked me who was my companion, sir.
Q
And what was your answer to him?
A
I told him it was Sargie, sir.
Q
And what was his reply if any?
A
He again asked me if I have in my company one of his children, sir.
Q
What was your reply?
A
I answered none, sir.
Q
Incidentally Mr. Witness, where or in what particular place did this conversation between
you and Manuel T. Abelardo take place?
A
Parking Area of Academy I, Gov. Santos corner Aguirre St., sir.
Q
Now, what else happened after you talk[ed] with this Manuel T. Abelardo?
A
He said I may be fooling him because he said I once fooled him when I ran away with his
children which he is going to take back, sir.
Q
And what was your reply to that?
A
I answered I did not do that and he said that once he discovered that I did it he would box
me, sir.
Q
What else if any did he tell you at that time?
A
He asked me who instructed me, sir.
Q
Instructed you about what?
A
To run away with the children, sir.
Q
And what was your reply?
A
None, he was the one who said "was it your Ate Puppet?" But I did not answer, sir.
Q
What happened next when you failed to answer?
A
"Or my father in law?"
Q
And when he said his father in law to whom was he referring at that time?
A
Mr. Honorio Carlos, sir.
Q
After mentioning the name of his father-in-law Mr. Honorio Carlos what happened next?
A
He told me "Sabihin mo sa biyenan ko babarilin ko siya pag nakita ko siya."
Q
Where was Manuel Abelardo at that particular time when he told this threatening remark
against Honorio Carlos?
A
He was inside his car in Aguirre St., sir.
Q
How about you where were you approximately at that particular time when he narrated
that message to you threatening the herein plaintiff?
A
I was outside looking in his vehicle at Aguirre St., sir.
xxx
Q
And what was your reply or reaction when he made this threatening remarks?
A
None, because he left. I was left behind, sir.23
This testimony was in part corroborated by an entry dated May 28, 1994 in the Police Blotter of
the Paranaque Police Station narrating the aforementioned incident.24
The testimonies of these witnesses on the two separate incidents of threat are positive, direct
and straightforward. Petitioner also declared on the witness stand that on several occasions, he
received telephone calls from respondent cursing and threatening him. 25These incidents of

threat were also evidenced by a letter written by respondents wife and addressed to her fatherin-law (father of respondent).26The letter recounted the instances when threats were made by
her husband against petitioner, particularly, the incident reported by Pajarin and the threats
made by respondent through the telephone.27
All these circumstances sufficiently establish that threats were directed by respondent against
petitioner justifying the award of moral damages in favor of petitioner. However, the Court finds
the amount of P500,000.00 as moral damages too exorbitant under the circumstances and the
same is reduced to P50,000.00. The exemplary damages and attorneys fees are likewise
reduced to P20,000.00 and P50,000.00, respectively.
WHEREFORE, the petition is hereby GRANTED and the decision of the Court of Appeals in CA
GR-CV No. 54464 is MODIFIED in that respondent is ordered to pay petitioner the amounts of
(1) US$25,000 or its equivalent in Philippine currency at the time of payment, plus legal interest
from August 4, 1994, until fully paid; (2) P50,000.00 as moral damages; (3) P20,000.00 as
exemplary damages; and (4) P50,000.00 as attorneys fees.1wphi1.nt
SO ORDERED.
Davide, Jr., Puno, and Ynares-Santiago, JJ., concur.
12.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 124642
February 23, 2004
ALFREDO CHING and ENCARNACION CHING, petitioners
vs.
THE HON. COURT OF APPEALS and ALLIED BANKING CORPORATION, respondents.
DECISION
CALLEJO, SR., J.:
This petition for review, under Rule 45 of the Revised Rules of Court, assails the Decision1 of
the Court of Appeals (CA) dated November 27, 1995 in CA-G.R. SP No. 33585, as well as the
Resolution2 on April 2, 1996 denying the petitioners motion for reconsideration. The impugned
decision granted the private respondents petition for certiorari and set aside the Orders of the
trial court dated December 15, 19933 and February 17, 19944 nullifying the attachment of
100,000 shares of stocks of the Citycorp Investment Philippines under the name of petitioner
Alfredo Ching.
The following facts are undisputed:
On September 26, 1978, the Philippine Blooming Mills Company, Inc. (PBMCI) obtained a loan
of P9,000,000.00 from the Allied Banking Corporation (ABC). By virtue of this loan, the PBMCI,
through its Executive Vice-President Alfredo Ching, executed a promissory note for the said
amount promising to pay on December 22, 1978 at an interest rate of 14% per annum.5 As
added security for the said loan, on September 28, 1978, Alfredo Ching, together with Emilio
Taedo and Chung Kiat Hua, executed a continuing guaranty with the ABC binding themselves
to jointly and severally guarantee the payment of all the PBMCI obligations owing the ABC to
the extent of P38,000,000.00.6 The loan was subsequently renewed on various dates, the last
renewal having been made on December 4, 1980.7
Earlier, on December 28, 1979, the ABC extended another loan to the PBMCI in the amount of
P13,000,000.00 payable in eighteen months at 16% interest per annum. As in the previous loan,
the PBMCI, through Alfredo Ching, executed a promissory note to evidence the loan maturing
on June 29, 1981.8 This was renewed once for a period of one month.9
The PBMCI defaulted in the payment of all its loans. Hence, on August 21, 1981, the ABC filed a
complaint for sum of money with prayer for a writ of preliminary attachment against the PBMCI
to collect the P12,612,972.88 exclusive of interests, penalties and other bank charges.

Impleaded as co-defendants in the complaint were Alfredo Ching, Emilio Taedo and Chung
Kiat Hua in their capacity as sureties of the PBMCI.
The case was docketed as Civil Case No. 142729 in the Regional Trial Court of Manila, Branch
XVIII.10 In its application for a writ of preliminary attachment, the ABC averred that the
"defendants are guilty of fraud in incurring the obligations upon which the present action is
brought11 in that they falsely represented themselves to be in a financial position to pay their
obligation upon maturity thereof."12 Its supporting affidavit stated, inter alia, that the
"[d]efendants have removed or disposed of their properties, or [are] ABOUT to do so, with intent
to defraud their creditors."13
On August 26, 1981, after an ex-parte hearing, the trial court issued an Order denying the ABCs
application for a writ of preliminary attachment. The trial court decreed that the grounds alleged
in the application and that of its supporting affidavit "are all conclusions of fact and of law" which
do not warrant the issuance of the writ prayed for.14 On motion for reconsideration, however, the
trial court, in an Order dated September 14, 1981, reconsidered its previous order and granted
the ABCs application for a writ of preliminary attachment on a bond of P12,700,000. The order,
in relevant part, stated:
With respect to the second ground relied upon for the grant of the writ of preliminary attachment
ex-parte, which is the alleged disposal of properties by the defendants with intent to defraud
creditors as provided in Sec. 1(e) of Rule 57 of the Rules of Court, the affidavits can only barely
justify the issuance of said writ as against the defendant Alfredo Ching who has allegedly bound
himself jointly and severally to pay plaintiff the defendant corporations obligation to the plaintiff
as a surety thereof.
WHEREFORE, let a writ of preliminary attachment issue as against the defendant Alfredo Ching
requiring the sheriff of this Court to attach all the properties of said Alfredo Ching not exceeding
P12,612,972.82 in value, which are within the jurisdiction of this Court and not exempt from
execution upon, the filing by plaintiff of a bond duly approved by this Court in the sum of Twelve
Million Seven Hundred Thousand Pesos (P12,700,000.00) executed in favor of the defendant
Alfredo Ching to secure the payment by plaintiff to him of all the costs which may be adjudged in
his favor and all damages he may sustain by reason of the attachment if the court shall finally
adjudge that the plaintiff was not entitled thereto.
SO ORDERED.15
Upon the ABCs posting of the requisite bond, the trial court issued a writ of preliminary
attachment. Subsequently, summonses were served on the defendants,16 save Chung Kiat Hua
who could not be found.
Meanwhile, on April 1, 1982, the PBMCI and Alfredo Ching jointly filed a petition for suspension
of payments with the Securities and Exchange Commission (SEC), docketed as SEC Case No.
2250, at the same time seeking the PBMCIs rehabilitation.17
On July 9, 1982, the SEC issued an Order placing the PBMCIs business, including its assets
and liabilities, under rehabilitation receivership, and ordered that "all actions for claims listed in
Schedule "A" of the petition pending before any court or tribunal are hereby suspended in
whatever stage the same may be until further orders from the Commission."18 The ABC was
among the PBMCIs creditors named in the said schedule.
Subsequently, on January 31, 1983, the PBMCI and Alfredo Ching jointly filed a Motion to
Dismiss and/or motion to suspend the proceedings in Civil Case No. 142729 invoking the
PBMCIs pending application for suspension of payments (which Ching co-signed) and over
which the SEC had already assumed jurisdiction.19 On February 4, 1983, the ABC filed its
Opposition thereto.20
In the meantime, on July 26, 1983, the deputy sheriff of the trial court levied on attachment the
100,000 common shares of Citycorp stocks in the name of Alfredo Ching.21
Thereafter, in an Order dated September 16, 1983, the trial court partially granted the
aforementioned motion by suspending the proceedings only with respect to the PBMCI. It

denied Chings motion to dismiss the complaint/or suspend the proceedings and pointed out
that P.D. No. 1758 only concerns the activities of corporations, partnerships and associations
and was never intended to regulate and/or control activities of individuals. Thus, it directed the
individual defendants to file their answers.22
Instead of filing an answer, Ching filed on January 14, 1984 a Motion to Suspend Proceedings
on the same ground of the pendency of SEC Case No. 2250. This motion met the opposition
from the ABC.23
On January 20, 1984, Taedo filed his Answer with counterclaim and cross-claim.24 Ching
eventually filed his Answer on July 12, 1984.25
On October 25, 1984, long after submitting their answers, Ching filed an Omnibus Motion,26
again praying for the dismissal of the complaint or suspension of the proceedings on the ground
of the July 9, 1982 Injunctive Order issued in SEC Case No. 2250. He averred that as a surety
of the PBMCI, he must also necessarily benefit from the defenses of his principal. The ABC
opposed Chings omnibus motion.
Emilio Y. Taedo, thereafter, filed his own Omnibus Motion27 praying for the dismissal of the
complaint, arguing that the ABC had "abandoned and waived" its right to proceed against the
continuing guaranty by its act of resorting to preliminary attachment.
On December 17, 1986, the ABC filed a Motion to Reduce the amount of his preliminary
attachment bond from P12,700,000 to P6,350,000.28 Alfredo Ching opposed the motion,29 but on
April 2, 1987, the court issued an Order setting the incident for further hearing on May 28, 1987
at 8:30 a.m. for the parties to adduce evidence on the actual value of the properties of Alfredo
Ching levied on by the sheriff.30
On March 2, 1988, the trial court issued an Order granting the motion of the ABC and rendered
the attachment bond of P6,350,000.31
On November 16, 1993, Encarnacion T. Ching, assisted by her husband Alfredo Ching, filed a
Motion to Set Aside the levy on attachment. She alleged inter alia that the 100,000 shares of
stocks levied on by the sheriff were acquired by her and her husband during their marriage out
of conjugal funds after the Citycorp Investment Philippines was established in 1974.
Furthermore, the indebtedness covered by the continuing guaranty/comprehensive suretyship
contract executed by petitioner Alfredo Ching for the account of PBMCI did not redound to the
benefit of the conjugal partnership. She, likewise, alleged that being the wife of Alfredo Ching,
she was a third-party claimant entitled to file a motion for the release of the properties.32 She
attached therewith a copy of her marriage contract with Alfredo Ching.33
The ABC filed a comment on the motion to quash preliminary attachment and/or motion to
expunge records, contending that:
2.1 The supposed movant, Encarnacion T. Ching, is not a party to this present case; thus, she
has no personality to file any motion before this Honorable Court;
2.2 Said supposed movant did not file any Motion for Intervention pursuant to Section 2, Rule 12
of the Rules of Court;
2.3 Said Motion cannot even be construed to be in the nature of a Third-Party Claim
conformably with Sec. 14, Rule 57 of the Rules of Court.
3. Furthermore, assuming in gracia argumenti that the supposed movant has the required
personality, her Motion cannot be acted upon by this Honorable Court as the above-entitled
case is still in the archives and the proceedings thereon still remains suspended. And there is no
previous Motion to revive the same.34
The ABC also alleged that the motion was barred by prescription or by laches because the
shares of stocks were in custodia legis.
During the hearing of the motion, Encarnacion T. Ching adduced in evidence her marriage
contract to Alfredo Ching to prove that they were married on January 8, 1960;35 the articles of
incorporation of Citycorp Investment Philippines dated May 14, 1979;36 and, the General
Information Sheet of the corporation showing that petitioner Alfredo Ching was a member of the

Board of Directors of the said corporation and was one of its top twenty stockholders.
On December 10, 1993, the Spouses Ching filed their Reply/Opposition to the motion to
expunge records.
Acting on the aforementioned motion, the trial court issued on December 15, 1993 an Order37
lifting the writ of preliminary attachment on the shares of stocks and ordering the sheriff to return
the said stocks to the petitioners. The dispositive portion reads:
WHEREFORE, the instant Motion to Quash Preliminary Attachment, dated November 9, 1993,
is hereby granted. Let the writ of preliminary attachment subject matter of said motion, be
quashed and lifted with respect to the attached 100,000 common shares of stock of Citycorp
Investment Philippines in the name of the defendant Alfredo Ching, the said shares of stock to
be returned to him and his movant-spouse by Deputy Sheriff Apolonio A. Golfo who effected the
levy thereon on July 26, 1983, or by whoever may be presently in possession thereof.
SO ORDERED.38
The plaintiff Allied Banking Corporation filed a motion for the reconsideration of the order but
denied the same on February 17, 1994. The petitioner bank forthwith filed a petition for certiorari
with the CA, docketed as CA-G.R. SP No. 33585, for the nullification of the said order of the
court, contending that:
1. The respondent Judge exceeded his authority thereby acted without jurisdiction in taking
cognizance of, and granting a "Motion" filed by a complete stranger to the case.
2. The respondent Judge committed a grave abuse of discretion in lifting the writ of preliminary
attachment without any basis in fact and in law, and contrary to established jurisprudence on the
matter.39
On November 27, 1995, the CA rendered judgment granting the petition and setting aside the
assailed orders of the trial court, thus:
WHEREFORE, premises considered, the petition is GRANTED, hereby setting aside the
questioned orders (dated December 15, 1993 and February 17, 1994) for being null and void.
SO ORDERED.40
The CA sustained the contention of the private respondent and set aside the assailed orders.
According to the CA, the RTC deprived the private respondent of its right to file a bond under
Section 14, Rule 57 of the Rules of Court. The petitioner Encarnacion T. Ching was not a party
in the trial court; hence, she had no right of action to have the levy annulled with a motion for
that purpose. Her remedy in such case was to file a separate action against the private
respondent to nullify the levy on the 100,000 Citycorp shares of stocks. The court stated that
even assuming that Encarnacion T. Ching had the right to file the said motion, the same was
barred by laches.
Citing Wong v. Intermediate Appellate Court,41 the CA ruled that the presumption in Article 160
of the New Civil Code shall not apply where, as in this case, the petitioner-spouses failed to
prove the source of the money used to acquire the shares of stock. It held that the levied shares
of stocks belonged to Alfredo Ching, as evidenced by the fact that the said shares were
registered in the corporate books of Citycorp solely under his name. Thus, according to the
appellate court, the RTC committed a grave abuse of its discretion amounting to excess or lack
of jurisdiction in issuing the assailed orders. The petitioners motion for reconsideration was
denied by the CA in a Resolution dated April 2, 1996.
The petitioner-spouses filed the instant petition for review on certiorari, asserting that the RTC
did not commit any grave abuse of discretion amounting to excess or lack of jurisdiction in
issuing the assailed orders in their favor; hence, the CA erred in reversing the same. They aver
that the source of funds in the acquisition of the levied shares of stocks is not the controlling
factor when invoking the presumption of the conjugal nature of stocks under Art. 160,42 and that
such presumption subsists even if the property is registered only in the name of one of the
spouses, in this case, petitioner Alfredo Ching.43 According to the petitioners, the suretyship
obligation was not contracted in the pursuit of the petitioner-husbands profession or business.44

And, contrary to the ruling of the CA, where conjugal assets are attached in a collection suit on
an obligation contracted by the husband, the wife should exhaust her motion to quash in the
main case and not file a separate suit.45 Furthermore, the petitioners contend that under Art. 125
of the Family Code, the petitioner-husbands gratuitous suretyship is null and void ab initio,46
and that the share of one of the spouses in the conjugal partnership remains inchoate until the
dissolution and liquidation of the partnership.47
In its comment on the petition, the private respondent asserts that the CA correctly granted its
petition for certiorari nullifying the assailed order. It contends that the CA correctly relied on the
ruling of this Court in Wong v. Intermediate Appellate Court. Citing Cobb-Perez v. Lantin and GTractors, Inc. v. Court of Appeals, the private respondent alleges that the continuing guaranty
and suretyship executed by petitioner Alfredo Ching in pursuit of his profession or business.
Furthermore, according to the private respondent, the right of the petitioner-wife to a share in
the conjugal partnership property is merely inchoate before the dissolution of the partnership; as
such, she had no right to file the said motion to quash the levy on attachment of the shares of
stocks.
The issues for resolution are as follows: (a) whether the petitioner-wife has the right to file the
motion to quash the levy on attachment on the 100,000 shares of stocks in the Citycorp
Investment Philippines; (b) whether or not the RTC committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the assailed orders.
On the first issue, we agree with the petitioners that the petitioner-wife had the right to file the
said motion, although she was not a party in Civil Case No. 142729.48
In Ong v. Tating,49 we held that the sheriff may attach only those properties of the defendant
against whom a writ of attachment has been issued by the court. When the sheriff erroneously
levies on attachment and seizes the property of a third person in which the said defendant holds
no right or interest, the superior authority of the court which has authorized the execution may
be invoked by the aggrieved third person in the same case. Upon application of the third person,
the court shall order a summary hearing for the purpose of determining whether the sheriff has
acted rightly or wrongly in the performance of his duties in the execution of the writ of
attachment, more specifically if he has indeed levied on attachment and taken hold of property
not belonging to the plaintiff. If so, the court may then order the sheriff to release the property
from the erroneous levy and to return the same to the third person. In resolving the motion of
the third party, the court does not and cannot pass upon the question of the title to the property
with any character of finality. It can treat the matter only insofar as may be necessary to decide
if the sheriff has acted correctly or not. If the claimants proof does not persuade the court of the
validity of the title, or right of possession thereto, the claim will be denied by the court. The
aggrieved third party may also avail himself of the remedy of "terceria" by executing an affidavit
of his title or right of possession over the property levied on attachment and serving the same to
the office making the levy and the adverse party. Such party may also file an action to nullify the
levy with damages resulting from the unlawful levy and seizure, which should be a totally
separate and distinct action from the former case. The above-mentioned remedies are
cumulative and any one of them may be resorted to by one third-party claimant without availing
of the other remedies.50
In this case, the petitioner-wife filed her motion to set aside the levy on attachment of the
100,000 shares of stocks in the name of petitioner-husband claiming that the said shares of
stocks were conjugal in nature; hence, not liable for the account of her husband under his
continuing guaranty and suretyship agreement with the PBMCI. The petitioner-wife had the right
to file the motion for said relief.
On the second issue, we find and so hold that the CA erred in setting aside and reversing the
orders of the RTC. The private respondent, the petitioner in the CA, was burdened to prove that
the RTC committed a grave abuse of its discretion amounting to excess or lack of jurisdiction.
The tribunal acts without jurisdiction if it does not have the legal purpose to determine the case;

there is excess of jurisdiction where the tribunal, being clothed with the power to determine the
case, oversteps its authority as determined by law. There is grave abuse of discretion where the
tribunal acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of its
judgment and is equivalent to lack of jurisdiction.51
It was incumbent upon the private respondent to adduce a sufficiently strong demonstration that
the RTC acted whimsically in total disregard of evidence material to, and even decide of, the
controversy before certiorari will lie. A special civil action for certiorari is a remedy designed for
the correction of errors of jurisdiction and not errors of judgment. When a court exercises its
jurisdiction, an error committed while so engaged does not deprive it of its jurisdiction being
exercised when the error is committed.52
After a comprehensive review of the records of the RTC and of the CA, we find and so hold that
the RTC did not commit any grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing the assailed orders.
Article 160 of the New Civil Code provides that all the properties acquired during the marriage
are presumed to belong to the conjugal partnership, unless it be proved that it pertains
exclusively to the husband, or to the wife. In Tan v. Court of Appeals,53 we held that it is not even
necessary to prove that the properties were acquired with funds of the partnership. As long as
the properties were acquired by the parties during the marriage, they are presumed to be
conjugal in nature. In fact, even when the manner in which the properties were acquired does
not appear, the presumption will still apply, and the properties will still be considered conjugal.
The presumption of the conjugal nature of the properties acquired during the marriage subsists
in the absence of clear, satisfactory and convincing evidence to overcome the same.54
In this case, the evidence adduced by the petitioners in the RTC is that the 100,000 shares of
stocks in the Citycorp Investment Philippines were issued to and registered in its corporate
books in the name of the petitioner-husband when the said corporation was incorporated on
May 14, 1979. This was done during the subsistence of the marriage of the petitioner-spouses.
The shares of stocks are, thus, presumed to be the conjugal partnership property of the
petitioners. The private respondent failed to adduce evidence that the petitioner-husband
acquired the stocks with his exclusive money.55 The barefaced fact that the shares of stocks
were registered in the corporate books of Citycorp Investment Philippines solely in the name of
the petitioner-husband does not constitute proof that the petitioner-husband, not the conjugal
partnership, owned the same.56 The private respondents reliance on the rulings of this Court in
Maramba v. Lozano57 and Associated Insurance & Surety Co., Inc. v. Banzon58 is misplaced. In
the Maramba case, we held that where there is no showing as to when the property was
acquired, the fact that the title is in the wifes name alone is determinative of the ownership of
the property. The principle was reiterated in the Associated Insurance case where the
uncontroverted evidence showed that the shares of stocks were acquired during the marriage of
the petitioners.
Instead of fortifying the contention of the respondents, the ruling of this Court in Wong v.
Intermediate Appellate Court59 buttresses the case for the petitioners. In that case, we ruled that
he who claims that property acquired by the spouses during their marriage is not conjugal
partnership property but belongs to one of them as his personal property is burdened to prove
the source of the money utilized to purchase the same. In this case, the private respondent
claimed that the petitioner-husband acquired the shares of stocks from the Citycorp Investment
Philippines in his own name as the owner thereof. It was, thus, the burden of the private
respondent to prove that the source of the money utilized in the acquisition of the shares of
stocks was that of the petitioner-husband alone. As held by the trial court, the private
respondent failed to adduce evidence to prove this assertion.
The CA, likewise, erred in holding that by executing a continuing guaranty and suretyship
agreement with the private respondent for the payment of the PBMCI loans, the petitionerhusband was in the exercise of his profession, pursuing a legitimate business. The appellate

court erred in concluding that the conjugal partnership is liable for the said account of PBMCI
under Article 161(1) of the New Civil Code.
Article 161(1) of the New Civil Code (now Article 121[2 and 3]60 of the Family Code of the
Philippines) provides:
Art. 161. The conjugal partnership shall be liable for:
(1) All debts and obligations contracted by the husband for the benefit of the conjugal
partnership, and those contracted by the wife, also for the same purpose, in the cases where
she may legally bind the partnership.
The petitioner-husband signed the continuing guaranty and suretyship agreement as security for
the payment of the loan obtained by the PBMCI from the private respondent in the amount of
P38,000,000. In Ayala Investment and Development Corp. v. Court of Appeals,61 this Court ruled
"that the signing as surety is certainly not an exercise of an industry or profession. It is not
embarking in a business. No matter how often an executive acted on or was persuaded to act
as surety for his own employer, this should not be taken to mean that he thereby embarked in
the business of suretyship or guaranty."
For the conjugal partnership to be liable for a liability that should appertain to the husband
alone, there must be a showing that some advantages accrued to the spouses. Certainly, to
make a conjugal partnership responsible for a liability that should appertain alone to one of the
spouses is to frustrate the objective of the New Civil Code to show the utmost concern for the
solidarity and well being of the family as a unit. The husband, therefore, is denied the power to
assume unnecessary and unwarranted risks to the financial stability of the conjugal
partnership.62
In this case, the private respondent failed to prove that the conjugal partnership of the
petitioners was benefited by the petitioner-husbands act of executing a continuing guaranty and
suretyship agreement with the private respondent for and in behalf of PBMCI. The contract of
loan was between the private respondent and the PBMCI, solely for the benefit of the latter. No
presumption can be inferred from the fact that when the petitioner-husband entered into an
accommodation agreement or a contract of surety, the conjugal partnership would thereby be
benefited. The private respondent was burdened to establish that such benefit redounded to the
conjugal partnership.63
It could be argued that the petitioner-husband was a member of the Board of Directors of
PBMCI and was one of its top twenty stockholders, and that the shares of stocks of the
petitioner-husband and his family would appreciate if the PBMCI could be rehabilitated through
the loans obtained; that the petitioner-husbands career would be enhanced should PBMCI
survive because of the infusion of fresh capital. However, these are not the benefits
contemplated by Article 161 of the New Civil Code. The benefits must be those directly resulting
from the loan. They cannot merely be a by-product or a spin-off of the loan itself.64
This is different from the situation where the husband borrows money or receives services to be
used for his own business or profession. In the Ayala case, we ruled that it is such a contract
that is one within the term "obligation for the benefit of the conjugal partnership." Thus:
(A) If the husband himself is the principal obligor in the contract, i.e., he directly received the
money and services to be used in or for his own business or his own profession, that contract
falls within the term " obligations for the benefit of the conjugal partnership." Here, no actual
benefit may be proved. It is enough that the benefit to the family is apparent at the time of the
signing of the contract. From the very nature of the contract of loan or services, the family
stands to benefit from the loan facility or services to be rendered to the business or profession
of the husband. It is immaterial, if in the end, his business or profession fails or does not
succeed. Simply stated, where the husband contracts obligations on behalf of the family
business, the law presumes, and rightly so, that such obligation will redound to the benefit of the
conjugal partnership.65
The Court held in the same case that the rulings of the Court in Cobb-Perez and G-Tractors,

Inc. are not controlling because the husband, in those cases, contracted the obligation for his
own business. In this case, the petitioner-husband acted merely as a surety for the loan
contracted by the PBMCI from the private respondent.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and Resolution of
the Court of Appeals are SET ASIDE AND REVERSED. The assailed orders of the RTC are
AFFIRMED.
SO ORDERED.
Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.
13.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 145222
April 24, 2009
SPOUSES ROBERTO BUADO and VENUS BUADO, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS, Former Division, and ROMULO NICOL,
Respondents.
DECISION
TINGA, J.:
Before this Court is a petition for certiorari assailing the Decision1 of the Court of Appeals in CAG.R. CV No. 47029 and its Resolution denying the motion for reconsideration thereof.
The case stemmed from the following factual backdrop:
On 30 April 1984, Spouses Roberto and Venus Buado (petitioners) filed a complaint for
damages against Erlinda Nicol (Erlinda) with Branch 19 of the Regional Trial Court (RTC) of
Bacoor, Cavite, docketed as Civil Case No. 84-33. Said action originated from Erlinda Nicols
civil liability arising from the criminal offense of slander filed against her by petitioners.
On 6 April 1987, the trial court rendered a decision ordering Erlinda to pay damages. The
dispositive portion reads:
Wherefore, judgment is hereby rendered in favor of the plaintiff[s] and against defendant
ordering the latter to pay the former the amount of thirty thousand (P30,000.00) pesos as moral
damages, five thousand (P5,000.00) pesos as attorneys fees and litigation expenses, another
five thousand (P5,000.00) pesos as exemplary damages and the cost of suit.2
Said decision was affirmed, successively, by the Court of Appeals and this Court. It became final
and executory on 5 March 1992.
On 14 October 1992, the trial court issued a writ of execution, a portion of which provides:
Now, therefore, you are commanded that of the goods and chattels of the defendant Erlinda
Nicol, or from her estates or legal heirs, you cause the sum in the amount of forty thousand
pesos (P40,000.00), Philippine Currency, representing the moral damages, attorneys fees and
litigation expenses and exemplary damages and the cost of suit of the plaintiff aside from your
lawful fees on this execution and do likewise return this writ into court within sixty (60) days from
date, with your proceedings endorsed hereon.
But if sufficient personal property cannot be found whereof to satisfy this execution and lawful
fees thereon, then you are commanded that of the lands and buildings of said defendant you
make the said sum of money in the manner required by the Rules of Court, and make return of
your proceedings with this writ within sixty (60) days from date.3
Finding Erlinda Nicols personal properties insufficient to satisfy the judgment, the Deputy Sheriff
issued a notice of levy on real property on execution addressed to the Register of Deeds of
Cavite. The notice of levy was annotated on the Transfer Certificate of Title No. T-125322.
On 20 November 1992, a notice of sheriffs sale was issued.
Two (2) days before the public auction sale on 28 January 1993, an affidavit of third-party claim

from one Arnulfo F. Fulo was received by the deputy sheriff prompting petitioners to put up a
sheriffs indemnity bond. The auction sale proceeded with petitioners as the highest bidder.
On 4 February 1993, a certificate of sale was issued in favor of petitioners.
Almost a year later on 2 February 1994, Romulo Nicol (respondent), the husband of Erlinda
Nicol, filed a complaint for annulment of certificate of sale and damages with preliminary
injunction against petitioners and the deputy sheriff. Respondent, as plaintiff therein, alleged
that the defendants, now petitioners, connived and directly levied upon and execute his real
property without exhausting the personal properties of Erlinda Nicol. Respondent averred that
there was no proper publication and posting of the notice of sale. Furthermore, respondent
claimed that his property which was valued at P500,000.00 was only sold at a "very low price" of
P51,685.00, whereas the judgment obligation of Erlinda Nicol was only P40,000.00. The case
was assigned to Branch 21 of the RTC of Imus, Cavite.
In response, petitioners filed a motion to dismiss on the grounds of lack of jurisdiction and that
they had acted on the basis of a valid writ of execution. Citing De Leon v. Salvador,4 petitioners
claimed that respondent should have filed the case with Branch 19 where the judgment
originated and which issued the order of execution, writ of execution, notice of levy and notice of
sheriffs sale.
In an Order5 dated 18 April 1994, the RTC dismissed respondents complaint and ruled that
Branch 19 has jurisdiction over the case, thus:
As correctly pointed out by the defendants, any flaw in the implementation of the writ of
execution by the implementing sheriff must be brought before the court issuing the writ of
execution. Besides, there are two (2) remedies open to the plaintiff, if he feels that the property
being levied on belongs to him and not to the judgment debtor. The first remedy is to file a thirdparty claim. If he fails to do this, a right is reserved to him to vindicate his claim over the
property by any proper action. But certainly, this is not the proper action reserved to the plaintiff
to vindicate his claim over the property in question to be ventilated before this court. As earlier
stated, this case should have been addressed to Branch 19, RTC Bacoor as it was that court
which issued the writ of execution.6
Respondent moved for reconsideration but it was denied on 26 July 1994.
On appeal, the Court of Appeals reversed the trial court and held that Branch 21 has jurisdiction
to act on the complaint filed by appellant. The dispositive portion reads:
WHEREFORE, the Orders appealed from are hereby REVERSED and SET ASIDE. This case is
REMANDED to the Regional Trial Court of Imus, Cavite, Branch 21 for further proceedings.
SO ORDERED.7
Petitioners motion for reconsideration was denied on 23 August 2000. Hence, the instant
petition attributing grave abuse of discretion on the part of the Court of Appeals.
A petition for certiorari is an extraordinary remedy that is adopted to correct errors of jurisdiction
committed by the lower court or quasi-judicial agency, or when there is grave abuse of
discretion on the part of such court or agency amounting to lack or excess of jurisdiction. Where
the error is not one of jurisdiction, but of law or fact which is a mistake of judgment, the proper
remedy should be appeal. In addition, an independent action for certiorari may be availed of
only when there is no appeal or any plain, speedy and adequate remedy in the ordinary course
of law.8
Nowhere in the petition was it shown that the jurisdiction of the Court of Appeals was
questioned. The issue devolves on whether the husband of the judgment debtor may file an
independent action to protect the conjugal property subject to execution. The alleged error
therefore is an error of judgment which is a proper subject of an appeal.
Nevertheless, even if we were to treat this petition as one for review, the case should still be
dismissed on substantive grounds.
Petitioners maintain that Branch 19 retained jurisdiction over its judgment to the exclusion of all
other co-ordinate courts for its execution and all incidents thereof, in line with De Leon v.

Salvador. Petitioners insist that respondent, who is the husband of the judgment debtor, is not
the "third party" contemplated in Section 17 (now Section 16), Rule 39 of the Rules of Court,
hence a separate action need not be filed. Furthermore, petitioners assert that the obligation of
the wife redounded to the benefit of the conjugal partnership and cited authorities to the effect
that the husband is liable for the tort committed by his wife.
Respondent on the other hand merely avers that the decision of the Court of Appeals is
supported by substantial evidence and in accord with law and jurisprudence.9
Verily, the question of jurisdiction could be resolved through a proper interpretation of Section
16, Rule 39 of the Rules of Court, which reads:
Sec. 16. Proceedings where property claimed by third person.
If the property levied on is claimed by any person other than the judgment obligor or his agent,
and such person makes an affidavit of his title thereto or right to the possession thereof, stating
the grounds of such right or title, and serves the same upon the officer making the levy and a
copy thereof upon the judgment obligee, the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property levied on. In
case of disagreement as to such value, the same shall be determined by the court issuing the
writ of execution. No claim for damages for the taking or keeping of the property may be
enforced against the bond unless the action therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the property, to any thirdparty claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property in a separate action, or prevent the
judgment obligee from claiming damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim.
When the writ of execution is issued in favor of the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall not be required, and in case the sheriff or
levying officer is sued for damages as a result of the levy, he shall be represented by the
Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be
paid by the National Treasurer out of such funds as may be appropriated for the purpose.
(Emphasis Supplied)
Apart from the remedy of terceria available to a third-party claimant or to a stranger to the
foreclosure suit against the sheriff or officer effecting the writ by serving on him an affidavit of his
title and a copy thereof upon the judgment creditor, a third-party claimant may also resort to an
independent separate action, the object of which is the recovery of ownership or possession of
the property seized by the sheriff, as well as damages arising from wrongful seizure and
detention of the property. If a separate action is the recourse, the third-party claimant must
institute in a forum of competent jurisdiction an action, distinct and separate from the action in
which the judgment is being enforced, even before or without need of filing a claim in the court
that issued the writ.101awphi1.zw+
A third-party claim must be filed a person other than the judgment debtor or his agent. In other
words, only a stranger to the case may file a third-party claim.
This leads us to the question: Is the husband, who was not a party to the suit but whose
conjugal property is being executed on account of the other spouse being the judgment obligor,
considered a "stranger?"
In determining whether the husband is a stranger to the suit, the character of the property must
be taken into account. In Mariano v. Court of Appeals,11 which was later adopted in Spouses
Ching v. Court of Appeals,12 this Court held that the husband of the judgment debtor cannot be
deemed a "stranger" to the case prosecuted and adjudged against his wife for an obligation that
has redounded to the benefit of the conjugal partnership.13 On the other hand, in Naguit v. Court
of Appeals14 and Sy v. Discaya,15 the Court stated that a spouse is deemed a stranger to the

action wherein the writ of execution was issued and is therefore justified in bringing an
independent action to vindicate her right of ownership over his exclusive or paraphernal
property.lawphil.net
Pursuant to Mariano however, it must further be settled whether the obligation of the judgment
debtor redounded to the benefit of the conjugal partnership or not.
Petitioners argue that the obligation of the wife arising from her criminal liability is chargeable to
the conjugal partnership. We do not agree.
There is no dispute that contested property is conjugal in nature. Article 122 of the Family
Code16 explicitly provides that payment of personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to the conjugal partnership except insofar as
they redounded to the benefit of the family.
Unlike in the system of absolute community where liabilities incurred by either spouse by reason
of a crime or quasi-delict is chargeable to the absolute community of property, in the absence or
insufficiency of the exclusive property of the debtor-spouse, the same advantage is not
accorded in the system of conjugal partnership of gains. The conjugal partnership of gains has
no duty to make advance payments for the liability of the debtor-spouse.
Parenthetically, by no stretch of imagination can it be concluded that the civil obligation arising
from the crime of slander committed by Erlinda redounded to the benefit of the conjugal
partnership.
To reiterate, conjugal property cannot be held liable for the personal obligation contracted by
one spouse, unless some advantage or benefit is shown to have accrued to the conjugal
partnership.17
In Guadalupe v. Tronco,18 this Court held that the car which was claimed by the third party
complainant to be conjugal property was being levied upon to enforce "a judgment for support"
filed by a third person, the third-party claim of the wife is proper since the obligation which is
personal to the husband is chargeable not on the conjugal property but on his separate
property.
Hence, the filing of a separate action by respondent is proper and jurisdiction is thus vested on
Branch 21. Petitioners failed to show that the Court of Appeals committed grave abuse of
discretion in remanding the case to Branch 21 for further proceedings.
WHEREFORE, the petition is DISMISSED. The Decision of the Court of Appeals is AFFIRMED.
Costs against petitioners.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
CONCHITA CARPIO MORALES*

Associate Justice
Acting Chairperson
PRESBITERO J. VELASCO, JR.
TERESITA LEONARDO DE CAS
Associate Justice
Associate Justice
ARTURO D. BRION
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
CONCHITA CARPIO MORALES
Associate Justice
Acting Chairperson, Second Division
C E R T I F I C AT I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting Chairpersons
Attestation, it is hereby certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
14.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 136803
June 16, 2000
EUSTAQUIO MALLILIN, JR., petitioner,
vs.
MA. ELVIRA CASTILLO, respondent.
MENDOZA, J.:
This is a petition for review of the amended decision1 of the Court of Appeals dated May 7, 1998
in CA G.R. CV No. 48443 granting respondent's motion for reconsideration of its decision dated
November 7, 1996, and of the resolution dated December 21, 1998 denying petitioner's motion
for reconsideration.
The factual and procedural antecedents are as follows:
On February 24, 1993, petitioner Eustaquio Mallilin, Jr. filed a complaint2 for "Partition and/or
Payment of Co-Ownership Share, Accounting and Damages" against respondent Ma. Elvira
Castillo. The complaint, docketed as Civil Case No. 93-656 at the Regional Trial Court in Makati
City, alleged that petitioner and respondent, both married and with children, but separated from
their respective spouses, cohabited after a brief courtship sometime in 1979 while their
respective marriages still subsisted. During their union, they set up the Superfreight Customs
Brokerage Corporation, with petitioner as president and chairman of the board of directors, and
respondent as vice-president and treasurer. The business flourished and petitioner and
respondent acquired real and personal properties which were registered solely in respondent's
name. In 1992, due to irreconcilable differences, the couple separated. Petitioner demanded
from respondent his share in the subject properties, but respondent refused alleging that said
properties had been registered solely in her name.
In her Amended Answer,3 respondent admitted that she engaged in the customs brokerage
business with petitioner but alleged that the Superfreight Customs Brokerage Corporation was
organized with other individuals and duly registered with the Securities and Exchange
Commission in 1987. She denied that she and petitioner lived as husband and wife because the
fact was that they were still legally married to their respective spouses. She claimed to be the
exclusive owner of all real personal properties involved in petitioner's action for partition on the
ground that they were acquired entirely out of her own money and registered solely in her name.
On November 25, 1994, respondent filed a Motion for Summary Judgment,4 in accordance with
Rule 34 of the Rules of Court.5 She contended that summary judgment was proper, because the
issues raised in the pleadings were sham and not genuine, to wit:
A.
The main issue is Can plaintiff validly claim the partition and/or payment of co-ownership
share, accounting and damages, considering that plaintiff and defendant are admittedly both
married to their respective spouses under still valid and subsisting marriages, even assuming as
claimed by plaintiff, that they lived together as husband and wife without benefit of marriage? In
other words, can the parties be considered as co-owners of the properties, under the law,
considering the present status of the parties as both married and incapable of marrying each
other, even assuming that they lived together as husband and wife (?)
B.

As a collateral issue, can the plaintiff be considered as an unregistered co-owner of the real
properties under the Transfer Certificates of Title duly registered solely in the name of defendant
Ma. Elvira Castillo? This issue is also true as far as the motor vehicles in question are
concerned which are also registered in the name of defendant.6
On the first point, respondent contended that even if she and petitioner actually cohabited,
petitioner could not validly claim a part of the subject real and personal properties because Art.
144 of the Civil Code, which provides that the rules on co-ownership shall govern the properties
acquired by a man and a woman living together as husband and wife but not married, or under
a marriage which is void ab initio, applies only if the parties are not in any way incapacitated to
contract marriage.7 In the parties' case, their union suffered the legal impediment of a prior
subsisting marriage. Thus, the question of fact being raised by petitioner, i.e., whether they lived
together as husband and wife, was irrelevant as no co-ownership could exist between them.
As to the second issue, respondent maintained that petitioner cannot be considered an
unregistered co-owner of the subject properties on the ground that, since titles to the land are
solely in her name, to grant petitioner's prayer would be to allow a collateral attack on the
validity of such titles.
Petitioner opposed respondent's Motion for Summary Judgment.8 He contended that the case
presented genuine factual issues and that Art. 144 of the Civil Code had been repealed by the
Family Code which now allows, under Art. 148, a limited co-ownership even though a man and
a woman living together are not capacitated to marry each other. Petitioner also asserted that
an implied trust was constituted when he and respondent agreed to register the properties
solely in the latter's name although the same were acquired out of the profits made from their
brokerage business. Petitioner invoked the following provisions of the Civil Code:
Art. 1452. If two or more persons agree to purchase property and by common consent the legal
title is taken in the name of one of them for the benefit of all, a trust is created by force of law in
favor of the others in proportion to the interest of each.
Art. 1453. When the property is conveyed to a person in reliance upon his declared intention to
hold it for, or transfer it to another grantor, there is an implied trust in favor of the person whose
benefit is contemplated.
On January 30, 1995, the trial court rendered its decision9 granting respondent's motion for
summary judgment. It ruled that an examination of the pleadings shows that the issues involved
were purely legal. The trial court also sustained respondent's contention that petitioner's action
for partition amounted to a collateral attack on the validity of the certificates of title covering the
subject properties. It held that even if the parties really had cohabited, the action for partition
could not be allowed because an action for partition among co-owners ceases to be so and
becomes one for title if the defendant, as in the present case, alleges exclusive ownership of the
properties in question. For these reasons, the trial court dismissed Civil Case No. 93-656.
On appeals, the Court of Appeals on November 7, 1996, ordered the case remanded to the
court of origin for trial on the merits. It cited the decision in Roque v. Intermediate Appellate
Court 10 to the effect that an action for partition is at once an action for declaration of coownership and for segregation and conveyance of a determinate portion of the properties
involved. If the defendant asserts exclusive title over the property, the action for partition should
not be dismissed. Rather, the court should resolve the case and if the plaintiff is unable to
sustain his claimed status as a co-owner, the court should dismiss the action, not because the
wrong remedy was availed of, but because no basis exists for requiring the defendant to submit
to partition. Resolving the issue whether petitioner's action for partition was a collateral attack on
the validity of the certificates of title, the Court of Appeals held that since petitioner sought to
compel respondent to execute documents necessary to effect transfer of what he claimed was
his share, petitioner was not actually attacking the validity of the titles but in fact, recognized
their validity. Finally, the appellate court upheld petitioner's position that Art. 144 of the Civil
Code had been repealed by Art. 148 of the Family Code.

Respondent moved for reconsideration of the decision of Court of Appeals. On May 7, 1998,
nearly two years after its first decision, the Court of Appeals granted respondent's motion and
reconsidered its prior decision. In its decision now challenged in the present petition, it held
Prefatorily, and to better clarify the controversy on whether this suit is a collateral attack on the
titles in issue, it must be underscored that plaintiff-appellant alleged in his complaint that all the
nine (9) titles are registered in the name of defendant-appellee, Ma. Elvira T. Castillo, except
one which appears in the name of Eloisa Castillo (see par. 9, Complaint). However, a
verification of the annexes of such initiatory pleading shows some discrepancies, to wit:
1. TCT No. 149046 (Annex A) = Elvira T. Castillo, single
2. TCT No. 168208 (Annex B) = do
3. TCT No. 37046 (Annex C) = do
4. TCT No. 37047 (Annex D) = do
5. TCT No. 37048 (Annex E) = do
6. TCT No. 30368 (Annex F) = Steelhaus Realty & Dev. Corp.
7. TCT No. 30369 (Annex G) = do
8. TCT No. 30371 (Annex F) = do
9. TCT No. (92323) 67881 (Annex I) = Eloisa Castillo
In this action, plaintiff-appellant seeks to be declared as 1/2 co-owner of the real properties
covered by the above listed titles and eventually for their partition [par. (a), Prayer; p. 4
Records]. Notably, in order to achieve such prayer for a joint co-ownership declaration, it is
unavoidable that the individual titles involved be altered, changed, cancelled or modified to
include therein the name of the appellee as a registered 1/2 co-owner. Yet, no cause of action or
even a prayer is contained filed. Manifestly, absent any cause or prayer for the alteration,
cancellation, modification or changing of the titles involved, the desired declaration of coownership and eventual partition will utterly be an indirect or collateral attack on the subject
titled in this suit.
It is here that We fell into error, such that, if not rectified will surely lead to a procedural lapse
and a possible injustice. Well settled is the rules that a certificate of title cannot be altered,
modified or cancelled except in a direct proceeding in accordance with law.
In this jurisdiction, the remedy of the landowner whose property has been wrongfully or
erroneously registered in another name is, after one year from the date of the decree, not to set
aside the decree, but respecting it as incontrovertible and no longer open to review, to bring an
action for reconveyance or, if the property had passed into the hands of an innocent purchaser
for value, for damages. Verily, plaintiff-appellant should have first pursued such remedy or any
other relief directly attacking the subject titles before instituting the present partition suit.
Apropos, the case at bench appears to have been prematurely filed.
Lastly, to grant the partition prayed for by the appellant will in effect rule and decide against the
properties registered in the names of Steelhouse Realty and Development Corporation and
Eloisa Castillo, who are not parties in the case. To allow this to happen will surely result to
injustice and denial of due process of law. . . . 11
Petitioner moved for reconsideration but his motion was denied by the Court of Appeals in its
resolution dated December 21, 1998. Hence this petition.
Petitioner contends that: (1) the Court of Appeals, in its first decision of November 7, 1996, was
correct in applying the Roque ruling and in rejecting respondent's claim that she was the sole
owner of the subject properties and that the partition suit was a collateral attack on the titles; (2)
the Court of Appeals correctly rules in its first decision that Art. 148 of the Family Code governs
the co-ownership between the parties, hence, the complaint for partition is proper; (3) with
respect to the properties registered in the name of Steelhouse Realty, respondent admitted
ownership thereof and, at the very least, these properties could simply be excluded and the
partition limited to the remaining real and personal properties; and (4) the Court of Appeals
erred in not holding that under the Civil Code, there is an implied trust in his favor. 12

The issue in this case is really whether summary judgment, in accordance with Rule 35 of the
Rules of Court, is proper. We rule in the negative.
First. Rule 35, 3 of the Rules of Court provides that summary judgment is proper only when,
based on the pleadings, depositions, and admissions on file, and after summary hearing, it is
shown that except as to the amount of damages, there is no veritable issue regarding any
material fact in the action and the movant is entitled to judgment as a matter of law. 1
Conversely, where the pleadings tender a genuine issue, i.e., an issue of fact the resolution of
which calls for the presentation of evidence, as distinguished from an issue which is sham,
fictitious, contrived, set-up in bad faith, or patently unsubstantial, summary judgment is not
proper. 14
In the present case, we are convinced that genuine issues exist. Petitioner anchors his claim of
co-ownership on two factual grounds: first, that said properties were acquired by him and
respondent during their union from 1979 to 1992 from profits derived from their brokerage
business; and second, that said properties were registered solely in respondent's name only
because they agreed to that arrangement, thereby giving rise to an implied trust in accordance
with Art. 1452 and Art. 1453 of the Civil Code. These allegations are denied by respondent. She
denies that she and petitioner lived together as husband and wife. She also claims that the
properties in question were acquired solely by her with her own money and resources. With
such conflicting positions, the only way to ascertain the truth is obviously through the
presentation of evidence by the parties.
The trial court ruled that it is immaterial whether the parties actually lived together as husband
and wife because Art. 144 of the Civil Code can not be made to apply to them as they were both
incapacitated to marry each other. Hence, it was impossible for a co-ownership to exist between
them.
We disagree.
Art. 144 of the Civil Code provides:
When a man and a woman live together as husband and wife, but they are not married, or their
marriage is void from the beginning, the property acquired by either or both of them through
their work or industry or their wages and salaries shall be governed by the rules on coownership.
This provision of the Civil Code, applies only to cases in which a man and a woman live
together as husband and wife without the benefit of marriage provided they are not
incapacitated or are without impediment to marry each other, 15 or in which the marriage is void
ab initio, provided it is not bigamous. Art. 144, therefore, does not cover parties living in an
adulterous relationship. However, Art. 148 of the Family Code now provides for a limited coownership in cases where the parties in union are incapacitated to marry each other. It states:
In cases of cohabitation not falling under the preceding article, 16 only the properties acquired by
both of the parties through their actual joint contribution of money, property or industry shall be
owned by them in common in proportion to their respective contributions. In the absence of
proof to the contrary, their contributions and corresponding shares are presumed to be equal.
The same rule and presumption shall apply to joint deposits of money and evidences of credits.
If one of the parties is validly married to another, his or her share in the co-ownership shall
accrue to the absolute community or conjugal partnership existing in such valid marriage. If the
party who acted in bad faith is not validly married to another, his or her share shall be forfeited in
the manner provided in the last paragraph of the preceding article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
It was error for the trial court to rule that, because the parties in this case were not capacitated
to marry each other at the time that they were alleged to have been living together, they could
not have owned properties in common. The Family Code, in addition to providing that a coownership exists between a man and a woman who live together as husband and wife without
the benefit of marriage, likewise provides that, if the parties are incapacitated to marry each

other, properties acquired by them through their joint contribution of money, property or industry
shall be owned by them in common in proportion to their contributions which, in the absence of
proof to the contrary, is presumed to be equal. There is thus co-ownership eventhough the
couple are not capacitated to marry each other.
In this case, there may be a co-ownership between the parties herein. Consequently, whether
petitioner and respondent cohabited and whether the properties involved in the case are part of
the alleged co-ownership are genuine and material. All but one of the properties involved were
alleged to have been acquired after the Family Code took effect on August 3, 1988. With
respect to the property acquired before the Family Code took effect if it is shown that it was
really acquired under the regime of the Civil Code, then it should be excluded.
Petitioner also alleged in paragraph 7 of his complaint that:
Due to the effective management, hardwork and enterprise of plaintiff assisted by defendant,
their customs brokerage business grew and out of the profits therefrom, the parties acquired
real and personal properties which were, upon agreement of the parties, listed and registered in
defendant's name with plaintiff as the unregistered co-owner of all said properties. 17
On the basis of this, he contends that an implied trust existed pursuant to Art. 1452 of the Civil
Code which provides that "(I)f two or more persons agree to purchase property and by common
consent the legal title is taken in the name of one of them for the benefit of all, a trust is created
by force of law in favor of the others in proportion to the interest of each." We do not think this is
correct. The legal relation of the parties is already specifically covered by Art. 148 of the Family
Code under which all the properties acquired by the parties out of their actual joint contributions
of money, property or industry shall constitute a co-ownership. Co-ownership is a form of trust
and every co-owner is a trustee for the other. 18 The provisions of Art. 1452 and Art. 1453 of the
Civil Code, then are no longer material since a trust relation already inheres in a co-ownership
which is governed under Title III, Book II of the Civil Code.
Second. The trial court likewise dismissed petitioner's action on the ground that the same
amounted to a collateral attack on the certificates of title involved. As already noted, at first, the
Court of Appeals ruled that petitioner's action does not challenge the validity of respondent's
titles. However, on reconsideration, it reversed itself and affirmed the trial court. It noted that
petitioner's complaint failed to include a prayer for the alteration, cancellation, modification, or
changing of the titles involved. Absent such prayer, the appellate court ruled that a declaration of
co-ownership and eventual partition would involve an indirect or collateral attack on the titles.
We disagree.
A torrens title, as a rule, is conclusive and indefeasible. Proceeding from this, P.D. No. 1529, 19
48 provides that a certificate of title shall not be subject to collateral attack and can not be
altered, modified, or canceled except in a direct proceeding. When is an action an attack on a
title? It is when the object of the action or proceeding is to nullify the title, and thus challenge the
judgment pursuant to which the title was decreed. The attack is direct when the object of an
action or proceeding is to annul or set aside such judgment, or enjoin its enforcement. On the
other hand, the attack is indirect or collateral when, in an action to obtain a different relief, an
attack on the judgment is nevertheless made as an incident thereof. 20
In his complaint for partition, consistent with our ruling in Roque regarding the nature of an
action for partition, petitioner seeks first, a declaration that he is a co-owner of the subject
properties; and second, the conveyance of his lawful shares. He does not attack respondent's
titles. Petitioner alleges no fraud, mistake, or any other irregularity that would justify a review of
the registration decree in respondent's favor. His theory is that although the subject properties
were registered solely in respondent's name, but since by agreement between them as well as
under the Family Code, he is co-owner of these properties and as such is entitled to the
conveyance of his shares. On the premise that he is a co-owner, he can validly seek the
partition of the properties in co-ownership and the conveyance to him of his share.
Thus, in Guevara v. Guevara, 21 in which a parcel of land bequeathed in a last will and

testament was registered in the name of only one of the heirs, with the understanding that he
would deliver to the others their shares after the debts of the original owner had been paid, this
Court ruled that notwithstanding the registration of the land in the name of only one of the heirs,
the other heirs can claim their shares in "such action, judicial or extrajudicial, as may be
necessary to partition the estate of the testator." 22
Third. The Court of Appeals also reversed its first decision on the ground that to order partition
will, in effect, rule and decide against Steelhouse Realty Development Corporation and Eloisa
Castillo, both strangers to the present case, as to the properties registered in their names. This
reasoning, however, ignores the fact that the majority of the properties involved in the present
case are registered in respondent's name, over which petitioner claims rights as a co-owner.
Besides, other than the real properties, petitioner also seeks partition of a substantial amount of
personal properties consisting of motor vehicles and several pieces of jewelry. By dismissing
petitioner's complaint for partition on grounds of due process and equity, the appellate court
unwittingly denied petitioner his right to prove ownership over the claimed real and personal
properties. The dismissal of petitioner's complaint is unjustified since both ends may be amply
served by simply excluding from the action for partition the properties registered in the name of
Steelhouse Realty and Eloisa Castillo.
WHEREFORE, the amended decision of the Court of Appeals, dated May 7, 1998, is
REVERSED and the case is REMANDED to the Regional Trial Court, Branch 59, Makati City for
further proceedings on the merits.
SO ORDERED.
Bellosillo, Quisumbing and De Leon, Jr., JJ., concur.Buena, J., took no part.
15.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 151967
February 16, 2005
JOSEFINA C. FRANCISCO, petitioner,
vs.
MASTER IRON WORKS & CONSTRUCTION CORPORATION and ROBERTO V. ALEJO,
Sheriff IV, Regional Trial Court of Makati City, Branch 142, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in
CA-G.R. No. CV No. 59045, which reversed and set aside the Decision2 of the Regional Trial
Court (RTC) of Paraaque, Metro Manila, Branch 260, in Civil Case No. 94-2260 and the
Resolution of the CA denying the petitioners motion for reconsideration of the said decision.
Josefina Castillo was only 24 years old when she and Eduardo G. Francisco were married on
January 15, 1983.3 Eduardo was then employed as the vice president in a private corporation. A
little more than a year and seven months thereafter, or on August 31, 1984, the Imus Rural
Bank, Inc. (Imus Bank) executed a deed of absolute sale for P320,000.00 in favor of Josefina
Castillo Francisco, married to Eduardo Francisco, covering two parcels of residential land with a
house thereon located at St. Martin de Porres Street, San Antonio Valley I, Sucat, Paraaque,
Metro Manila. One of the lots was covered by Transfer Certificate of Title (TCT) No. 36519, with
an area of 342 square meters, while the other lot, with an area of 360 square meters, was
covered by TCT No. 36518.4 The purchase price of the property was paid to the Bank via Check
No. 002334 in the amount of P320,000.00 drawn and issued by the Commercial Bank of Manila,
for which the Imus Bank issued Official Receipt No. 121408 on August 31, 1984.5 On the basis
of the said deed of sale, TCT Nos. 36518 and 36519 were cancelled and, on September 4,
1984, the Register of Deeds issued TCT Nos. 87976 (60550) and 87977 (60551) in the name of

"Josefina Castillo Francisco married to Eduardo G. Francisco."6

On February 15, 1985, the Register of Deeds made of record Entry No. 85-18003 at the dorsal
portion of the said titles. This referred to an Affidavit of Waiver executed by Eduardo where he
declared that before his marriage to Josefina, the latter purchased two parcels of land, including
the house constructed thereon, with her own savings, and that he was waiving whatever claims
he had over the property.7 On January 13, 1986, Josefina mortgaged the said property to
Leonila Cando for a loan of P157,000.00.8 It appears that Eduardo affixed his marital conformity
to the deed.9
On June 11, 1990, Eduardo, who was then the General Manager and President of Reach Out
Trading International, bought 7,500 bags of cement worth P768,750.00 from Master Iron Works
& Construction Corporation (MIWCC) but failed to pay for the same. On November 27, 1990,
MIWCC filed a complaint against him in the RTC of Makati City for the return of the said
commodities, or the value thereof in the amount of P768,750.00. The case was docketed as
Civil Case No. 90-3251. On January 8, 1992, the trial court rendered judgment in favor of
MIWCC and against Eduardo. The fallo of the decision reads:
Accordingly, the Court renders judgment in favor of the plaintiff Master Iron Works And
Construction Corporation against the defendant [Eduardo] Francisco ordering the latter as
follows:
1. To replace to plaintiff 7,500 bags at 50 kilos/bag of Portland cement or, in the alternative, to
pay the plaintiff the amount of P768,750.00;
2. In either case, to pay liquidated damages by way of interest at 12% per annum from June 21,
1990 until fully paid;
3. To pay P50,000.00 as actual damages; and
4. To pay attorneys fees of P153,750.00 and litigation expenses of P20,000.00.
SO ORDERED.10
The decision in Civil Case No. 90-3251 became final and executory and, on June 7, 1994, the
court issued a writ of execution.11 On June 14, 1994, Sheriff Roberto Alejo sold at a public
auction one stainless, owner-type jeep for P10,000.00 to MIWCC.12 Sheriff Alejo issued a Notice
of Levy on Execution/Attachment over the lots covered by TCT No. 87976 (60550) and 87977
(60551) for the recovery of the balance of the amount due under the decision of the trial court in
Civil Case No. 90-3251.13 On June 24, 1994, the sale of the property at a public auction was set
to August 5, 1994.14
On July 3, 1994, Josefina executed an Affidavit of Third Party Claim15 over the two parcels of
land in which she claimed that they were her paraphernal property, and that her husband
Eduardo had no proprietary right or interest over them as evidenced by his affidavit of waiver, a
copy of which she attached to her affidavit. She, likewise, requested Sheriff Alejo to cause the
cancellation of the notice of levy on execution/attachment earlier issued by him.
On July 7, 1994, Josefina filed the said Affidavit of Third Party Claim in the trial court and served
a copy thereof to the sheriff. MIWCC then submitted an indemnity bond16 in the amount of
P1,361,500.00 issued by the Prudential Guarantee and Assurance, Inc. The sale at public
auction proceeded. MIWCC made a bid for the property for the price of P1,350,000.00.17
On July 28, 1994, Josefina filed a Complaint against MIWCC and Sheriff Alejo in the RTC of
Paraaque for damages with a prayer for a writ of preliminary injunction or temporary restraining
order, docketed as Civil Case No. 94-2260. She alleged then that she was the sole owner of the
property levied on execution by Sheriff Alejo in Civil Case No. 90-3251; hence, the levy on
execution of the property was null and void. She reiterated that her husband, the defendant in
Civil Case No. 90-3251, had no right or proprietary interest over the said property as evidenced
by his affidavit of waiver annotated at the dorsal portion of the said title. Josefina prayed that the
court issue a temporary restraining order/writ of preliminary injunction to enjoin MIWCC from
causing the sale of the said property at public auction. Considering that no temporary restraining
order had as yet been issued by the trial court, the sheriff sold the subject property at public

auction to MIWCC for P1,350,000.00 on August 5, 1994.18 However, upon the failure of MIWCC
to remit the sheriffs commission on the sale, the latter did not execute a sheriffs certificate of
sale over the property. The RTC of Paraaque, thereafter, issued a temporary restraining order19
on August 16, 1994.
When Josefina learned of the said sale at public auction, she filed an amended complaint
impleading MIWCC, with the following prayer:
WHEREFORE, premises considered, it is most respectfully prayed to this Honorable Court that,
after hearing, judgment be rendered in favor of the plaintiff and against the defendants and the
same be in the following tenor:
1. Ordering the defendants, jointly and severally, to pay the plaintiff the following amounts:
A. The sum of P50,000.00 representing as actual damages;
B. The sum of P200,000.00 representing as moral damages;
C. The sum of P50,000.00 or such amount which this Honorable Court deems just as exemplary
damages;
D. The sum of P60,000.00 as and for attorneys fees.
2. Declaring the levying and sale at public auction of the plaintiffs properties null and void;
3. To issue writ of preliminary injunction and makes it permanent;
4. Order the cancellation of whatever entries appearing at the titles as a result of the
enforcement of the writ of execution issued in Civil Case No. 90-3251.
Plaintiff further prays for such other reliefs as may be just under the premises.20
In its answer to the complaint, MIWCC cited Article 116 of the Family Code of the Philippines
and averred that the property was the conjugal property of Josefina and her husband Eduardo,
who purchased the same on August 31, 1984 after their marriage on January 14, 1983. MIWCC
asserted that Eduardo executed the affidavit of waiver to evade the satisfaction of the decision
in Civil Case No. 90-3251 and to place the property beyond the reach of creditors; hence, the
said affidavit was null and void.
Before she could commence presenting her evidence, Josefina filed a petition to annul her
marriage to Eduardo in the RTC of Paraaque, Metro Manila, on the ground that when they
were married on January 15, 1983, Eduardo was already married to one Carmelita Carpio. The
case was docketed as Civil Case No. 95-0169.
Josefina and Carmelita testified in Civil Case No. 95-0169. Josefina declared that during her
marriage to Eduardo, she acquired the property covered by TCT Nos. 87976 (60550) and 87977
(60551), through the help of her sisters and brother, and that Eduardo had no participation
whatsoever in the said acquisition. She added that Eduardo had five children, namely, Mary
Jane, Dianne, Mary Grace Jo, Mark Joseph and Mary Cecille, all surnamed Francisco.
On September 9, 1996, the RTC of Paraaque rendered judgment21 in Civil Case No. 95-0169,
declaring the marriage between Josefina and Eduardo as null and void for being bigamous.
In the meantime, Josefina testified in Civil Case No. 94-2260, declaring, inter alia, that she was
able to purchase the property from the Bank when she was still single with her mothers
financial assistance; she was then engaged in recruitment when Eduardo executed an affidavit
of waiver; she learned that he was previously married when they already had two children;
nevertheless, she continued cohabiting with him and had three more children by him; and
because of Eduardos first marriage, she decided to have him execute the affidavit of waiver.
Eduardo testified that when his wife bought the property in 1984, he was in Davao City and had
no knowledge of the said purchases; he came to know of the purchase only when Josefina
informed him a week after his arrival from Davao;22 Josefinas sister, Lolita Castillo, told him that
she would collect from him the money his wife borrowed from her and their mother to buy the
property;23 when he told Lolita that he had no money, she said that she would no longer collect
from him, on the condition that he would have no participation over the property,24 which
angered Eduardo;25 when Josefina purchased the property, he had a gross monthly income of
P10,000.00 and gave P5,000.00 to Josefina for the support of his family;26 Josefina decided that

he execute the affidavit of waiver because her mother and sister gave the property to her.27
On December 20, 1997, the trial court rendered judgment finding the levy on the subject
property and the sale thereof at public auction to be null and void. The fallo of the decision
reads:
WHEREFORE, PREMISES CONSIDERED, THIS COURT finds the Levying and sale at public
auction of the plaintiffs properties null and void.
The court orders the defendants to, jointly and severally, pay plaintiff the following amounts:
a. The sum of P50,000.00 as actual damages;
b. The sum of P50,000.00 representing as moral damages;
c. The sum of P50,000.00 as exemplary damages;
d. The sum of P60,000.00 as and for attorneys fees.
The court orders the cancellation of whatever entries appearing at the Titles as a result of the
enforcement of the writ of execution issued in Civil Case No. 90-3251.
SO ORDERED.28
The trial court held that the property levied by Sheriff Alejo was the sole and exclusive property
of Josefina, applying Articles 144, 160, 175 and 485 of the New Civil Code. The trial court also
held that MIWCC failed to prove that Eduardo Francisco contributed to the acquisition of the
property.
MIWCC appealed the decision to the CA in which it alleged that:
I. THE TRIAL COURT ERRED IN RULING THAT THE REAL ESTATE PROPERTIES SUBJECT
OF THE AUCTION SALE ARE PARAPHERNAL PROPERTIES OWNED BY PLAINTIFFAPPELLEE JOSEFINA FRANCISCO;
II. THE TRIAL COURT ERRED IN ALLOWING THE RECEPTION OF REBUTTAL EVIDENCE
WITH REGARD TO THE ANNULMENT OF PLAINTIFF-APPELLEES MARRIAGE WITH
EDUARDO FRANCISCO;
III. THE TRIAL COURT ERRED IN RULING THAT THE LEVY ON EXECUTION OF PLAINTIFFAPPELLEES PROPERTIES SUBJECT OF THE PRESENT CONTROVERSY IS NULL AND
VOID;
IV. THE TRIAL COURT ERRED IN ORDERING DEFENDANT-APPELLANT TO PAY DAMAGES
TO PLAINTIFF-APPELLEE FOR ALLEGED IMPROPER LEVY ON EXECUTION.29
The CA rendered judgment setting aside and reversing the decision of the RTC on September
20, 2001. The fallo of the decision reads:
WHEREFORE, premises considered, the Decision, dated 20 December 1997, of the Regional
Trial Court of Paraaque, Branch 260, is hereby REVERSED and SETASIDE and a new one
entered dismissing Civil Case No. 94-0126.
SO ORDERED.30
The CA ruled that the property was presumed to be the conjugal property of Eduardo and
Josefina, and that the latter failed to rebut such presumption. It also held that the affidavit of
waiver executed by Eduardo was contrary to Article 146 of the New Civil Code and, as such,
had no force and effect. Josefina filed a motion for reconsideration of the decision, which was,
likewise, denied by the CA.
Josefina, now the petitioner, filed the present petition for review, alleging that:
A. THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THERE EXISTS A
CONJUGAL PARTNERSHIP BETWEEN PETITIONER AND EDUARDO FRANCISCO;
B. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE SUBJECT
PROPERTIES WERE NOT PARAPHERNAL PROPERTIES OF PETITIONER;
C. THE HONORABLE COURT OF APPEALS ERRED IN DISTURBING THE FINDINGS OF
FACTS AND CONCLUSION BY THE TRIAL COURT IN ITS DECISION OF DECEMBER 20,
1997, THE SAME BEING IN ACCORDANCE WITH LAW AND JURISPRUDENCE.31
The threshold issues for resolution are as follows: (a) whether or not the subject property is the
conjugal property of Josefina Castillo and Eduardo Francisco; and (b) whether or not the subject

properties may be held to answer for the personal obligations of Eduardo.

We shall deal with the issues simultaneously as they are closely related.
The petitioner asserts that inasmuch as her marriage to Eduardo is void ab initio, there is no
occasion that would give rise to a regime of conjugal partnership of gains. The petitioner adds
that to rule otherwise would render moot and irrelevant the provisions on the regime of special
co-ownership under Articles 147 and 148 of the Family Code of the Philippines, in relation to
Article 144 of the New Civil Code.
The petitioner avers that since Article 148 of the Family Code governs their property
relationship, the respondents must adduce evidence to show that Eduardo actually contributed
to the acquisition of the subject properties. The petitioner asserts that she purchased the
property before her marriage to Eduardo with her own money without any contribution from him;
hence, the subject property is her paraphernal property.l^vvphi1.net Consequently, such
property is not liable for the debts of Eduardo to private respondent MIWCC.
The respondents, on the other hand, contend that the appellate court was correct in ruling that
the properties are conjugal in nature because there is nothing in the records to support the
petitioners uncorroborated claim that the funds she used to purchase the subject properties
were her personal funds or came from her mother and sister. The respondents point out that if,
as claimed by the petitioner, the subject properties were, indeed, not conjugal in nature, then,
there was no need for her to obtain marital (Eduardos) consent when she mortgaged the
properties to two different parties sometime in the first quarter of 1986, or after Eduardo
executed the affidavit of waiver.
We note that the only questions raised in this case are questions of facts. Under Rule 45 of the
Rules of Court, only questions of law may be raised in and resolved by the Court. The Court
may, however, determine and resolve questions of facts in cases where the findings of facts of
the trial court and those of the CA are inconsistent, where highly meritorious circumstances are
present, and where it is necessary to give substantial justice to the parties. In the present action,
the findings of facts and the conclusions of the trial court and those of the CA are opposite.
There is thus an imperative need for the Court to delve into and resolve the factual issues, in
tandem with the questions of law raised by the parties.
The petition has no merit.
The petitioner failed to prove that she acquired the property with her personal funds before her
cohabitation with Eduardo and that she is the sole owner of the property. The evidence on
record shows that the Imus Bank executed a deed of absolute sale over the property to the
petitioner on August 31, 1984 and titles over the property were, thereafter, issued to the latter as
vendee on September 4, 1984 after her marriage to Eduardo on January 15, 1983.1vvphi1.nt
We agree with the petitioner that Article 144 of the New Civil Code does not apply in the present
case. This Court in Tumlos v. Fernandez32 held that Article 144 of the New Civil Code applies
only to a relationship between a man and a woman who are not incapacitated to marry each
other, or to one in which the marriage of the parties is void from the very beginning. It does not
apply to a cohabitation that is adulterous or amounts to concubinage, for it would be absurd to
create a co-ownership where there exists a prior conjugal partnership or absolute community
between the man and his lawful wife. In this case, the petitioner admitted that when she and
Eduardo cohabited, the latter was incapacitated to marry her.
Article 148 of the Family Code of the Philippines, on which the petitioner anchors her claims,
provides as follows:
Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties
acquired by both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective contributions. In the
absence of proof to the contrary, their contributions and corresponding shares are presumed to
be equal. The same rule and presumption shall apply to joint deposits of money and evidences
of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall
accrue to the absolute community or conjugal partnership existing in such valid marriage. If the
party who acted in bad faith is not validly married to another, his or her share shall be forfeited in
the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall, likewise, apply even if both parties are in bad faith.
Indeed, the Family Code has filled the hiatus in Article 144 of the New Civil Code by expressly
regulating in Article 148 the property relations of couples living in a state of adultery or
concubinage. Under Article 256 of the Family Code, the law can be applied retroactively if it
does not prejudice vested or acquired rights. The petitioner failed to prove that she had any
vested right over the property in question.33
Since the subject property was acquired during the subsistence of the marriage of Eduardo and
Carmelita, under normal circumstances, the same should be presumed to be conjugal
property.34 Article 105 of the Family Code of the Philippines provides that the Code shall apply to
conjugal partnership established before the code took effect, without prejudice to vested rights
already acquired under the New Civil Code or other laws.35 Thus, even if Eduardo and Carmelita
were married before the effectivity of the Family Code of the Philippines, the property still cannot
be considered conjugal property because there can only be but one valid existing marriage at
any given time.36 Article 148 of the Family Code also debilitates against the petitioners claim
since, according to the said article, a co-ownership may ensue in case of cohabitation where, for
instance, one party has a pre-existing valid marriage provided that the parents prove their actual
joint contribution of money, property or industry and only to the extent of their proportionate
interest thereon.37
We agree with the findings of the appellate court that the petitioner failed to adduce
preponderance of evidence that she contributed money, property or industry in the acquisition of
the subject property and, hence, is not a co-owner of the property:
First of all, other than plaintiff-appellees bare testimony, there is nothing in the record to support
her claim that the funds she used to purchase the subject properties came from her mother and
sister. She did not, for instance, present the testimonies of her mother and sister who could
have corroborated her claim. Furthermore, in her Affidavit of Third-Party Claim (Exh. "C"), she
stated that the subject properties "are my own paraphernal properties, including the
improvements thereon, as such are the fruits of my own exclusive efforts ," clearly implying
that she used her own money and contradicting her later claim that the funds were provided by
her mother and sister. She also stated in her affidavit that she acquired the subject properties
before her marriage to Eduardo Francisco on 15 January 1983, a claim later belied by the
presentation of the Deed of Absolute Sale clearly indicating that she bought the properties from
Imus Rural Bank on 31 August 1984, or one year and seven months after her marriage (Exh.
"D"). In the face of all these contradictions, plaintiff-appellees uncorroborated testimony that she
acquired the subject properties with funds provided by her mother and sister should not have
been given any weight by the lower court.
It is to be noted that plaintiff-appellee got married at the age of 23. At that age, it is doubtful if
she had enough funds of her own to purchase the subject properties as she claimed in her
Affidavit of Third Party Claim. Confronted with this reality, she later claimed that the funds were
provided by her mother and sister, clearly an afterthought in a desperate effort to shield the
subject properties from appellant Master Iron as judgment creditor.38
Aside from her bare claims, the petitioner offered nothing to prove her allegation that she
borrowed the amount of P320,000.00 from her mother and her sister, which she paid to the
Imus Bank on August 31, 1984 to purchase the subject property. The petitioner even failed to
divulge the name of her mother and the sources of her income, if any, and that of her sister.
When she testified in Civil Case No. 95-0169, the petitioner declared that she borrowed part of
the purchase price of the property from her brother,39 but failed to divulge the latters name, let
alone reveal how much money she borrowed and when. The petitioner even failed to adduce

any evidence to prove that her mother and sister had P320,000.00 in 1984, which, considering
the times, was then quite a substantial amount. Moreover, the petitioners third-party-claim
affidavit stating that the properties "are the fruits of my own exclusive effort before I married
Eduardo Francisco" belies her testimony in the trial court and in Civil Case No. 950169.1awphi1.nt
We note that, as gleaned from the receipt issued by the Imus Bank, the payment for the subject
property was drawn via Check No. 002334 and issued by the Commercial Bank of Manila in the
amount of P320,000.00.40 The petitioner failed to testify against whose account the check was
drawn and issued, and whether the said account was owned by her and/or Eduardo Francisco
or her mother, sister or brother. She even failed to testify whether the check was a managers
check and, if so, whose money was used to purchase the same.
We also agree with the findings of the CA that the affidavit of waiver executed by Eduardo on
February 15, 1985, stating that the property is owned by the petitioner, is barren of probative
weight. We are convinced that he executed the said affidavit in anticipation of claims by third
parties against him and hold the property liable for the said claims. First, the petitioner failed to
prove that she had any savings before her cohabitation with Eduardo. Second, despite
Eduardos affidavit of waiver, he nevertheless affixed his marital conformity to the real estate
mortgage executed by the petitioner over the property in favor of Leonila on January 13, 1986.41
Third, the petitioner testified that she borrowed the funds for the purchase of the property from
her mother and sister.42 Fourth, the petitioner testified that Eduardo executed the affidavit of
waiver because she discovered that he had a first marriage.43 Lastly, Eduardo belied the
petitioners testimony when he testified that he executed the affidavit of waiver because his
mother-in-law and sister-in-law had given the property to the petitioner.44
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The Decision of
the Court of Appeals reversing the decision of the Regional Trial Court is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
16.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 146294
July 31, 2006
JOHN ABING, petitioner,
vs.
JULIET WAEYAN, respondent.
DECISION
GARCIA, J.:
In this appeal by way of a petition for review under Rule 45 of the Rules of Court, petitioner John
Abing (John, hereafter) seeks to set aside the Decision1 dated October 24, 2000 of the Court of
Appeals (CA) in CA-G.R. SP No. 48675, reversing that of the Regional Trial Court (RTC) of
Benguet, Branch 64, which affirmed an earlier decision of the Municipal Trial Court (MTC) of
Mankayan, Benguet in an ejectment suit thereat commenced by the petitioner against the
respondent.
In the main, the controversy is between a man and a woman who, during the good old days,
lived together as husband and wife without the benefit of marriage. During their cohabitation,
they acquired properties. Later, they parted ways, and with it this litigation between them
involving one of their common properties.
The facts:
Sometime in 1986, John and respondent Juliet Waeyan (Juliet, for short) met and fell in love

with each other. In time, the duo cohabited as husband and wife without the benefit of marriage.
Together, the couple bought a 2-storey residential house from one Benjamin Macua which was
erected on a lot owned by a certain Alejandro Dio on Aurora Street, Mankayan, Benguet.
Consequent to the purchase, the tax declaration of the 2-storey house was transferred in the
name of Juliet.
On December 2, 1991, Juliet left for overseas employment in Korea. She would send money to
John who deposited the same in their joint bank account.
In 1992, the original 2-storey residential house underwent renovation. To it was annexed a new
structure which housed a sari-sari store. This new structure and the sari-sari store thereat are
the properties involved in this case.
In 1994, Juliet returned from Korea and continued to live with John. She managed the sari-sari
store while John worked as a mine employee of the Lepanto Consolidated Mining, Inc.
In 1995, the relationship between the two turned from bad to worse. Hence, they decided to
partition their properties. For the purpose, they executed on October 7, 1995 a Memorandum of
Agreement. Unfortunately, the document was left unsigned by the parties although signed by
the witnesses thereto. Under their unsigned agreement, John shall leave the couples' dwelling
with Juliet paying him the amount of P428,870.00 representing John's share in all their
properties. On the same date October 7, 1995 Juliet paid John the sum of P232,397.66 by
way of partial payment of his share, with the balance of P196,472.34 to be paid by Juliet in
twelve monthly installment beginning November 1995.
Juliet, however, failed to make good the balance. On account thereof, John demanded of her to
vacate the annex structure housing the sari-sari store. Juliet refused, prompting John to file an
ejectment suit against her before the MTC of Mankayan, Benguet.
In his complaint, John alleged that he alone spent for the construction of the annex structure
with his own funds and thru money he borrowed from his relatives. In fact, he added that the tax
declaration for the structure was under his name. On this premise, John claimed exclusive
ownership of the subject structure, which thereby gave him the right to eject Juliet therefrom
upon the latter's failure to pay the agreed balance due him under the aforementioned
Memorandum of Agreement.
In her answer, Juliet countered that their original house was renovated thru their common funds
and that the subject structure annexed thereto was merely an attachment or an extension of
their original residential house, hence the same pertained to the two of them in common.
In a decision2 dated March 15, 1997, the MTC, on its finding that the money used in the
construction of the structure in question solely came from John, ruled that the same exclusively
pertained to the latter, and accordingly ordered Juliet's eviction therefrom, including the sari-sari
store thereat, and required her to surrender possession thereof to John, thus:
WHEREFORE, judgment is rendered in favor of the plaintiff (John) and against the defendant
(Juliet).
Defendant is hereby ordered to vacate the premises of the store in litigation covered by Tax
Declaration No. 96-001-00445 in the name of the Plaintiff and turn over possession thereof to
the latter.
Defendant is hereby further ordered to pay the Plaintiff the sum of P2,500.00 a month from the
time she withheld possession of the store in litigation in June 1996 until she vacates the same
and turn over possession thereof to the Plaintiff.
Defendant is finally ordered, to pay the sum of P5,000.00 to the Plaintiff by way of Attorney's
fees; and to pay the costs.
SO ORDERED.
On Juliet's appeal to the RTC, the latter, in its decision of July 29, 1995, affirmed that of the
MTC. Undaunted, Juliet then went to the CA in CA-G.R. SP No. 48675.
As stated at the threshold hereof, the CA, in its Decision of October 24, 2000,3 reversed that of
the RTC, to wit:

WHEREFORE, the petition is GRANTED. The assailed decision of the Regional Trial Court is
hereby reversed and set aside. Petitioner, Juliet Waeyan is entitled to possess the property and
maintain therein her business.
SO ORDERED.
Partly says the CA in its reversal disposition:
It is undisputed that the parties lived together as husband and wife without the benefit of
marriage from 1986 to 1995 and that they acquired certain properties which must be divided
between them upon the termination of their common law relationship.
xxx
xxx
xxx
. . . their property relations cannot be governed by the provision of the Civil Code on conjugal
partnership... but by the rule on co-ownership.
xxx
xxx
xxx
. . . the parties' share in respect of the properties they have accumulated during their
cohabitation shall be equal unless there is proof to the contrary.
To the CA, John's evidence failed to establish that he alone spent for the construction of the
annex structure. Hence, the same pertained to both, and being a co-owner herself, Juliet cannot
be evicted therefrom, adding that if ever, John's cause of action should have been for a sum of
money "because he claims that Juliet still owes him the payment for the extension." According
to the CA, ejectment cannot lie against Juliet because Juliet's possession of the premises in
dispute was not by virtue of a contract, express or implied, nor did she obtain such possession
thru force, intimidation, threat, strategy or stealth.
Hence, John's present recourse, submitting that the CA erred in
1. not giving effect to the parties' Memorandum of Agreement which should have been binding
between them albeit unsigned by both;
2. in holding that the subject premises (annex structure housing the sari-sari store) is owned by
the two of them in common;
3. in ruling that the parties should settle their common properties in a separate action for
partition even as the community character of the subject premises has not been proven.
We AFFIRM with modification.
Essentially, the issues raised center on the core question of whether or not the property subject
of the suit pertains to the exclusive ownership of petitioner, John. Departing from the factual
findings of the two courts before it, the CA found that the premises in dispute is owned in
common by Juliet and John, the latter having failed to establish by the required quantum of
proof that the money spent for the construction thereof solely came from him. Being a co-owner
of the same structure, Juliet may not be ejected therefrom.
While the question raised is essentially one of fact, of which the Court normally eschews from,
yet, given the conflicting factual findings of the three courts below, the Court shall go by the
exception4 to the general rule and proceed to make its own assessment of the evidence.
First and foremost, it is undisputed that the parties hereto lived together as husband and wife
from 1986 to 1995 without the benefit of marriage. Neither is it disputed that sometime in
December 1991, Juliet left for Korea and worked thereat, sending money to John which the
latter deposited in their joint account. In fact, Juliet was still in Korea when the annex structure
was constructed in 1992.
Other than John's bare allegation that he alone, thru his own funds and money he borrowed
from his relatives, spent for the construction of the annex structure, evidence is wanting to
support such naked claim. For sure, John even failed to reveal how much he spent therefor.
Neither did he divulge the names of the alleged relatives from whom he made his borrowings,
let alone the amount of money he borrowed from them. All that petitioner could offer by way of
reinforcing his claim of spending his own funds and borrowed money in putting up the subject
structure was the affidavit executed by a certain Manuel Macaraeg to the effect that petitioner
borrowed P30,000.00 from him. Even then, Macaraeg stated in his affidavit that it was sometime

in 1990 when John borrowed said amount from him. With the petitioner's own admission that
the subject structure was constructed only in 1992, or two years after he borrowed P30,000.00
from Macaraeg, it is even doubtful whether the amount he allegedly borrowed from the latter
went into the construction of the structure in dispute. More, it is noted that while petitioner was
able to present in evidence the Macaraeg affidavit, he failed to introduce similar affidavits, if any,
of his close relatives from whom he claimed to have made similar borrowings. For sure, not a
single relative came forward to confirm petitioner's tale. In short, there is a paucity of evidence,
testimonial or documentary, to support petitioner's self-serving allegation that the annex
structure which housed the sari-sari store was put up thru his own funds and/or money
borrowed by him. Sure, petitioner has in his favor the tax declaration covering the subject
structure. We have, however, ruled time and again that tax declarations do not prove ownership
but at best an indicia of claims of ownership.5 Payment of taxes is not proof of ownership, any
more than indicating possession in the concept of an owner.6 Neither tax receipts nor
declaration of ownership for taxation purposes are evidence of ownership or of the right to
possess realty when not supported by other effective proofs.7
In this connection, Article 147 of the Family Code is instructive. It reads:
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void marriage,
their wages and salaries shall be owned by them in equal shares and the property acquired by
both of them through their work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a party who did not participate in the
acquisition by other party of any property shall be deemed to have contributed jointly in the
acquisition thereof if the former's efforts consisted in the care and maintenance of the family and
of the household.
The law is clear. In the absence, as here, of proofs to the contrary, any property acquired by
common-law spouses during their period of cohabitation is presumed to have been obtained
thru their joint efforts and is owned by them in equal shares. Their property relationship is
governed by the rules on co-ownership. And under this regime, they owned their properties in
common "in equal shares." Being herself a co-owner of the structure in question, Juliet, as
correctly ruled by the CA, may not be ejected therefrom.
True it is that under Article 4878 of the Civil Code, a co-owner may bring an action for ejectment
against a co-owner who takes exclusive possession and asserts exclusive ownership of a
common property. It bears stressing, however, that in this case, evidence is totally wanting to
establish John's or Juliet's exclusive ownership of the property in question. Neither did Juliet
obtain possession thereof by virtue of a contract, express or implied, or thru intimidation, threat,
strategy or stealth. As borne by the record, Juliet was in possession of the subject structure and
the sari-sari store thereat by virtue of her being a co-owner thereof. As such, she is as much
entitled to enjoy its possession and ownership as John.
We, however, disagree with the ruling of the CA that the subject Memorandum of Agreement,
being unsigned by Juliet and John, has no binding effect between them.
It is a matter of record that pursuant to said Agreement, Juliet did pay John the amount of
P232,397.66, as initial payment for John's share in their common properties, with the balance of
P196,472.34 payable in twelve monthly installments beginning November 1995. It is also a
matter of record that the Agreement was signed by the witnesses thereto. Hence, the irrelevant
circumstances that the Agreement was left unsigned by Juliet and John cannot adversely affect
its binding force or effect between them, as evidently, Juliet's initial payment of P232,397.66 to
John was in fulfillment of what the parties had agreed upon thereunder. However, and as
correctly held by the CA, Juliet's failure to pay John the balance of the latter's share in their
common properties could at best give rise to an action for a sum of money against Juliet, or for

rescission of the said agreement and not for ejectment.

WHEREFORE, the petition is DENIED and the assailed CA Decision is AFFIRMED, except that
portion thereof denying effect to the parties' Memorandum of Agreement for being unsigned by
both.
Costs against petitioner.
SO ORDERED.
Puno, Chairperson, Sandoval-Gutierrez, Corona, Azcuna, J.J., concur.
17.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 137650
April 12, 2000
GUILLERMA TUMLOS, petitioner,
vs.
SPOUSES MARIO FERNANDEZ and LOURDES FERNANDEZ, respondents.
PANGANIBAN, J.:
Under Article 148 of the Family Code, a man and a woman who are not legally capacitated to
marry each other, but who nonetheless live together conjugally, may be deemed co-owners of a
property acquired during the cohabitation only upon proof that each made an actual contribution
to its acquisition. Hence, mere cohabitation without proof of contribution will not result in a coownership.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the November
19, 1998 Decision of the Court of Appeals 1 (CA), which reversed the October 7, 1997 Order of
the Regional Trial Court (RTC). 2 The dispositive part of the CA Decision reads:
WHEREFORE, the instant petition is GRANTED, and the questioned orders of the court a quo
dated October 7, 1997 and November 11, 1997, are hereby REVERSED and SET ASIDE. The
judgment of the court a quo dated June 5, 1997 is hereby REINSTATED. Costs against the
private respondents.3
The assailed Order of the RTC disposed as follows:
Wherefore, the decision of this Court rendered on June 5, 1997 affirming in toto the appealed
judgment of the [MTC] is hereby reconsidered and a new one is entered reversing said decision
of the [MTC] and dismissing the complaint in the above-entitled case. 4
Petitioner also assails the February 14, 1999 CA Resolution denying the Motion for
Reconsideration.
The Facts
The Court of Appeals narrates the facts as follows:
[Herein respondents] were the plaintiffs in Civil Case No. 6756, an action for ejectment filed
before Branch 82 of the MTC of Valenzuela, Metro Manila against [herein Petitioner] Guillerma
Tumlos, Toto Tumlos, and Gina Tumlos. In their complaint dated July 5, 1996, the said spouses
alleged that they are the absolute owners of an apartment building located at ARTE
SUBDIVISION III, Lawang Bato, Valenzuela, Metro Manila; that through tolerance they had
allowed the defendants-private respondents to occupy the apartment building for the last seven
(7) years, since 1989, without the payment of any rent; that it was agreed upon that after a few
months, defendant Guillerma Tumlos will pay P1,600.00 a month while the other defendants
promised to pay P1,000.00 a month, both as rental, which agreement was not complied with by
the said defendants; that they have demanded several times [that] the defendants . . . vacate
the premises, as they are in need of the property for the construction of a new building; and that
they have also demanded payment of P84,000.00 from Toto and Gina Tumlos representing

rentals for seven (7) years and payment of P143,600.00 from Guillerma Tumlos as unpaid
rentals for seven (7) years, but the said demands went unheeded. They then prayed that the
defendants be ordered to vacate the property in question and to pay the stated unpaid rentals,
as well as to jointly pay P30,000.00 in attorneys fees.
[Petitioner] Guillerma Tumlos was the only one who filed an answer to the complaint. She
averred therein that the Fernandez spouses had no cause of action against her, since she is a
co-owner of the subject premises as evidenced by a Contract to Sell wherein it was stated that
she is a co-vendee of the property in question together with [Respondent] Mario Fernandez.
She then asked for the dismissal of the complaint.
After an unfruitful preliminary conference on November 15, 1996, the MTC required the parties
to submit their affidavits and other evidence on the factual issues defined in their pleadings
within ten (10) days from receipt of such order, pursuant to section 9 of the Revised Rule on
Summary Procedure. [Petitioner] Guillerma Tumlos submitted her affidavit/position paper on
November 29, 1996, while the [respondents] filed their position paper on December 5, 1996,
attaching thereto their marriage contract, letters of demand to the defendants, and the Contract
to Sell over the disputed property. The MTC thereafter promulgated its judgment on January 22,
1997[.]
xxx
xxx
xxx
Upon appeal to the [RTC], [petitioner and the two other] defendants alleged in their
memorandum on appeal that [Respondent] Mario Fernandez and [Petitioner] Guillerma had an
amorous relationship, and that they acquired the property in question as their "love nest." It was
further alleged that they lived together in the said apartment building with their two (2) children
for around ten (10) years, and that Guillerma administered the property by collecting rentals
from the lessees of the other apartments, until she discovered that [Respondent Mario]
deceived her as to the annulment of his marriage. It was also during the early part of 1996 when
[Respondent Mario] accused her of being unfaithful and demonstrated his baseless [jealousy].
In the same memorandum, [petitioner and the two other] defendants further averred that it was
only recently that Toto Tumlos was temporarily accommodated in one of the rooms of the
subject premises while Gina Tumlos acted as a nanny for the children. In short, their presence
there [was] only transient and they [were] not tenants of the Fernandez spouses.
On June 5, 1997, the [RTC] rendered a decision affirming in toto the judgment of the MTC.
The [petitioner and the two other defendants] seasonably filed a motion for reconsideration on
July 3, 1997, alleging that the decision of affirmance by the RTC was constitutionally flawed for
failing to point out distinctly and clearly the findings of facts and law on which it was based vis-vis the statements of issues they have raised in their memorandum on appeal. They also
averred that the Contract to Sell presented by the plaintiffs which named the buyer as "Mario P.
Fernandez, of legal age, married to Lourdes P. Fernandez," should not be given credence as it
was falsified to appear that way. According to them, the Contract to Sell originally named
"Guillerma Fernandez" as the spouse of [Respondent Mario]. As found by the [RTC] in its
judgment, a new Contract to Sell was issued by the sellers naming the [respondents] as the
buyers after the latter presented their marriage contract and requested a change in the name of
the vendee-wife. Such facts necessitate the conclusion that Guillerma was really a co-owner
thereof, and that the [respondents] manipulated the evidence in order to deprive her of her
rights to enjoy and use the property as recognized by law.
xxx
xxx
xxx
The [RTC], in determining the question of ownership in order to resolve the issue of possession,
ruled therein that the Contract to Sell submitted by the Fernandez spouses appeared not to be
authentic, as there was an alteration in the name of the wife of [Respondent] Mario Fernandez.
Hence, the contract presented by the [respondents] cannot be given any weight. The court
further ruled that Guillerma and [Respondent Mario] acquired the property during their
cohabitation as husband and wife, although without the benefit of marriage. From such findings,

the court concluded that [Petitioner] Guillerma Tumlos was a co-owner of the subject property
and could not be ejected therefrom.
The [respondents] then filed a motion for reconsideration of the order of reversal, but the same
was denied by the [RTC]. 5
As earlier stated, the CA reversed the RTC. Hence, this Petition filed by Guillerma Tumlos only. 6
Ruling of the Court of Appeals
The CA rejected petitioner's claim that she and Respondent Mario Fernandez were co-owners
of the disputed property. The CA ruled:
From the inception of the instant case, the only defense presented by private respondent
Guillerma is her right as a co-owner of the subject property[.]
xxx
xxx
xxx
This claim of co-ownership was not satisfactorily proven by Guillerma, as correctly held by the
trial court. No other evidence was presented to validate such claim, except for the said
affidavit/position paper. As previously stated, it was only on appeal that Guillerma alleged that
she cohabited with the petitioner-husband without the benefit of marriage, and that she bore him
two (2) children. Attached to her memorandum on appeal are the birth certificates of the said
children. Such contentions and documents should not have been considered by the . . . (RTC),
as they were not presented in her affidavit/position paper before the trial court (MTC).
xxx
xxx
xxx
However, even if the said allegations and documents could be considered, the claim of coownership must still fail. As [herein Respondent] Mario Fernandez is validly married to
[Respondent] Lourdes Fernandez (as per Marriage Contract dated April 27, 1968, p. 45, Original
Record), Guillerma and Mario are not capacitated to marry each other. Thus, the property
relations governing their supposed cohabitation is that found in Article 148 of Executive Order
No. 209, as amended, otherwise known as the Family Code of the Philippines[.]
xxx
xxx
xxx
It is clear that actual contribution is required by this provision, in contrast to Article 147 of the
Family Code which states that efforts in the care and maintenance of the family and household
are regarded as contributions to the acquisition of common property by one who has no salary
or income or work or industry (Agapay v. Palang, 276 SCRA 340). The care given by one party
[to] the home, children, and household, or spiritual or moral inspiration provided to the other, is
not included in Article 148 (Handbook on the Family Code of the Philippines by Alicia V. SempioDiy, 1988 ed., p. 209). Hence, if actual contribution of the party is not proved, there will be no
co-ownership and no presumption of equal shares (Agapay, supra at p. 348, citing
Commentaries and Jurisprudence on the Civil Code of the Philippines Volume I by Arturo M.
Tolentino, 1990 ed., p. 500).
In the instant case, no proof of actual contribution by Guillerma Tumlos in the purchase of the
subject property was presented. Her only evidence was her being named in the Contract to Sell
as the wife of [Respondent] Mario Fernandez. Since she failed to prove that she contributed
money to the purchase price of the subject apartment building, We find no basis to justify her
co-ownership with [Respondent Mario]. The said property is thus presumed to belong to the
conjugal partnership property of Mario and Lourdes Fernandez, it being acquired during the
subsistence of their marriage and there being no other proof to the contrary (please see Article
116 of the Family Code).
The court a quo (RTC) also found that [Respondent Mario] has two (2) children with Guillerma
who are in her custody, and that to eject them from the apartment building would be to run
counter with the obligation of the former to give support to his minor illegitimate children, which
indispensably includes dwelling. As previously discussed, such finding has no leg to stand on, it
being based on evidence presented for the first time on appeal.
xxx
xxx
xxx
Even assuming arguendo that the said evidence was validly presented, the RTC failed to

consider that the need for support cannot be presumed. Article 203 of the Family Code
expressly provides that the obligation to give support shall be demandable from the time the
person who has a right to receive the same needs it for maintenance, but it shall not be paid
except from the date of judicial or extrajudicial demand. . . .1wphi1.nt
In contrast to the clear pronouncement of the Supreme Court, the RTC instead presumed that
Guillerma and her children needed support from [Respondent Mario]. Worse, it relied on
evidence not properly presented before the trial court (MTC).
With regard to the other [defendants], Gina and Toto Tumlos, a close perusal of the records
shows that they did not file any responsive pleading. Hence, judgment may be rendered against
them as may be warranted by the facts alleged in the complaint and limited to what is prayed for
therein, as provided for in Section 6 of the Revised Rules on Summary Procedure. There was
no basis for the public respondent to dismiss the complaint against them. 7 (emphasis in the
original)
The Issues
In her Memorandum, petitioner submits the following issues for the consideration of the Court:
I. The Court of Appeals gravely erred and abused its discretion in not outrightly dismissing the
petition for review filed by respondents.
II. The Court of Appeals erred in finding that petitioner is not the co-owner of the property in litis.
III. Corollary thereto, the Court of Appeals erred in applying Art. 148 of the Family Code in the
case at bar.
IV. The Court of Appeals erred in disregarding the substantive right of support vis--vis the
remedy of ejectment resorted to by respondents. 8
In resolving this case, we shall answer two questions: (a) Is the petitioner a co-owner of the
property? (b) Can the claim for support bar this ejectment suit? We shall also discuss these
preliminary matters: (a) whether the CA was biased in favor of respondents and (b) whether the
MTC had jurisdiction over the ejectment suit.
The Courts Ruling
The Petition has no merit.
Preliminary Matters
Petitioner submits that the CA exhibited partiality in favor of herein respondents. This bias, she
argues, is manifest in the following:
1. The CA considered the respondents Petition for Review 9 despite their failure to attach
several pleadings as well as the explanation for the proof of service, despite the clear mandate
of Section 11 10 of Rule 13 of the Revised Rules of Court and despite the ruling in Solar Team
Entertainment, Inc. v. Ricafort. 11
2. It allowed respondents to submit the pleadings that were not attached.
3. It considered respondents' Reply dated May 20, 1998, which had allegedly been filed out of
time.
4. It declared that the case was submitted for decision without first determining whether to give
due course to the Petition, pursuant to Section 6, Rule 42 of the Rules of Court. 12
The CA, for its part, succinctly dismissed these arguments in this wise:
It is too late in the day now to question the alleged procedural error after we have rendered the
decision. More importantly, when the private respondent filed their comment to the petition on
April 26, 1998, they failed to question such alleged procedural error. Neither have they
questioned all the resolutions issued by the Court after their filing of such comment. They
should, therefore, be now considered in estoppel to question the same. 13
We agree with the appellate court. Petitioner never raised these matters before the CA. She
cannot be allowed now to challenge its Decision on grounds of alleged technicalities being
belatedly raised as an afterthought. In this light, she cannot invoke Solar 14 because she never
raised this issue before the CA.
More important, we find it quite sanctimonious indeed on petitioners part to rely, on the one

hand, on these procedural technicalities to overcome the appealed Decision and, on the other
hand, assert that the RTC may consider the new evidence she presented for the first time on
appeal. Such posturing only betrays the futility of petitioner's assertion, if not its absence of
merit.
One other preliminary matter. Petitioner implies that the court of origin, the Municipal Trial Court
(MTC), did not have jurisdiction over the "nature of the case," alleging that the real question
involved is one of ownership. Since the issue of possession cannot be settled without passing
upon that of ownership, she maintains that the MTC should have dismissed the case.
This contention is erroneous. The issue of ownership may be passed upon by the MTC to settle
the issue of possession. 15 Such disposition, however, is not final insofar as the issue of
ownership is concerned, 16 which may be the subject of another proceeding brought specifically
to settle that question.
Having resolved these preliminary matters, we now move on to petitioners substantive
contentions.
First Issue:
Petitioner as Co-owner
Petitioners central theory and main defense against respondents' action for ejectment is her
claim of co-ownership over the property with Respondent Mario Fernandez. At the first instance
before the MTC, she presented a Contract to Sell indicating that she was his spouse. The MTC
found this document insufficient to support her claim. The RTC, however, after considering her
allegation that she had been cohabiting with Mario Fernandez as shown by evidence presented
before it, 17 ruled in her favor.
On the other hand, the CA held that the pieces of evidence adduced before the RTC could no
longer be considered because they had not been submitted before the MTC. Hence, the
appellate court concluded that "[t]he claim of co-ownership was not satisfactorily proven . . ." 18
We agree with the petitioner that the RTC did not err in considering the evidence presented
before it. Nonetheless, we reject her claim that she was a co-owner of the disputed property.
Evidence Presented onAppeal Before the RTC
In ruling that the RTC erred in considering on appeal the evidence presented by petitioner, the
CA relied on the doctrine that issues not raised during trial could not be considered for the first
time during appeal. 19
We disagree. In the first place, there were no new matters or issues belatedly raised during the
appeal before the RTC. The defense invoked by petitioner at the very start was that she was a
co-owner. To support her claim, she presented a Contract to Sell dated November 14, 1986,
which stated that Mario Fernandez was legally married to her. The allegation that she was
cohabiting with him was a mere elaboration of her initial theory.
In the second place, procedural rules are generally premised on considerations of fair play.
Respondents never objected when the assailed evidence was presented before the RTC. Thus,
they cannot claim unfair surprise or prejudice.
Petitioner Not a Co-Owner UnderArticle 144 of the Civil Code
Even considering the evidence presented before the MTC and the RTC, we cannot accept
petitioner's submission that she is a co-owner of the disputed property pursuant to Article 144 of
the Civil Code. 20 As correctly held by the CA, the applicable law is not Article 144 of the Civil
Code, but Article 148 of the Family Code which provides:
Art. 148. In cases of cohabitation not falling under the preceding Article, 21 only the properties
acquired by both of the parties through their actual joint contribution of money, property, or
industry shall be owned by them in common in proportion to their respective contributions. In the
absence of proof to the contrary, their contributions and corresponding shares are presumed to
be equal. The same rule and presumption shall apply to joint deposits of money and evidences
of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall

accrue to the absolute community or conjugal partnership existing in such valid marriage. If the
party who acted in bad faith is not validly married to another, his or her share shall be forfeited in
the manner provided in the last paragraph of the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
Art. 144 of the Civil Code applies only to a relationship between a man and a woman who are
not incapacitated to marry each other, 22 or to one in which the marriage of the parties is void 23
from the beginning. 24 It does not apply to a cohabitation that amounts to adultery or
concubinage, for it would be absurd to create a co-ownership where there exists a prior conjugal
partnership or absolute community between the man and his lawful wife. 25
Based on evidence presented by respondents, as well as those submitted by petitioner herself
before the RTC, it is clear that Mario Fernandez was incapacitated to marry petitioner because
he was legally married to Lourdes Fernandez. It is also clear that, as readily admitted by
petitioner, she cohabited with Mario in a state of concubinage. Therefore, Article 144 of the Civil
Code is inapplicable.
As stated above, the relationship between petitioner and Respondent Mario Fernandez is
governed by Article 148 of the Family Code. Justice Alicia V. Sempio-Diy points out 26 that "[t]he
Family Code has filled the hiatus in Article 144 of the Civil Code by expressly regulating in its
Article 148 the property relations of couples living in a state of adultery or concubinage.
Hence, petitioners argument that the Family Code is inapplicable because the cohabitation
and the acquisition of the property occurred before its effectivity deserves scant
consideration. Suffice it to say that the law itself states that it can be applied retroactively if it
does not prejudice vested or acquired rights. 27 In this case, petitioner failed to show any vested
right over the property in question. Moreover, to resolve similar issues, we have applied Article
148 of the Family Code retroactively. 28
No Evidence of Actual JointContribution
Another consideration militates against petitioners claim that she is a co-owner of the property.
In Agapay, 29 the Court ruled:
Under Article 148, only the properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in common in proportion to
their respective contributions. It must be stressed that the actual contribution is required by this
provision, in contrast to Article 147 which states that efforts in the care and maintenance of the
family and household, are regarded as contributions to the acquisition of common property by
one who has no salary or income or work or industry. If the actual contribution of the party is not
proved, there will be no co-ownership and no presumption of equal shares. (emphasis ours)
In this case, petitioner fails to present any evidence that she had made an actual contribution to
purchase the subject property. Indeed, she anchors her claim of co-ownership merely on her
cohabitation with Respondent Mario Fernandez.
Likewise, her claim of having administered the property during the cohabitation is
unsubstantiated. In any event, this fact by itself does not justify her claim, for nothing in Article
148 of the Family Code provides that the administration of the property amounts to a
contribution in its acquisition.
Clearly, there is no basis for petitioners claim of co-ownership. The property in question belongs
to the conjugal partnership of respondents. Hence, the MTC and the CA were correct in ordering
the ejectment of petitioner from the premises.
Second Issue:
Support versus Ejectment
Petitioner contends that since Respondent Mario Fernandez failed to repudiate her claim
regarding the filiation of his alleged sons, Mark Gil and Michael Fernandez, his silence on the
matter amounts to an admission. Arguing that Mario is liable for support, she advances the
theory that the childrens right to support, which necessarily includes shelter, prevails over the
right of respondents to eject her.

We disagree. It should be emphasized that this is an ejectment suit whereby respondents seek
to exercise their possessory right over their property. It is summary in character and deals solely
with the issue of possession of the property in dispute. Here, it has been shown that they have a
better right to possess it than does the petitioner, whose right to possess is based merely on
their tolerance.1wphi1.nt
Moreover, Respondent Mario Fernandez' alleged failure to repudiate petitioner's claim of filiation
is not relevant to the present case.1wphi1 Indeed, it would be highly improper for us to rule on
such issue. Besides, it was not properly taken up below. 30 In any event, Article 298 31 of the Civil
Code requires that there should be an extrajudicial demand. 32 None was made here. The CA
was correct when it said:
Even assuming arguendo that the said evidence was validly presented, the RTC failed to
consider that the need for support cannot be presumed. Article [298] of the [New Civil Code]
expressly provides that the obligation to give support shall be demandable from the time the
person who has a right to receive the same need it for maintenance, but it shall not be paid
except from the date of judicial and extrajudicial demand. 33
WHEREFORE, the Petition is DENIED and the appealed Decision AFFIRMED. Costs against
petitioner.
SO ORDERED.
Melo, Purisima and Gonzaga-Reyes, JJ., concur.Vitug, J., abroad-on official business.
18.
Republic of the Philippines
SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 140153
March 28, 2001
ANTONIO DOCENA and ALFREDA DOCENA, petitioners,
vs.
HON. RICARDO P. LAPESURA, in his capacity as Presiding Judge of the RTC, Branch III,
Guian, Eastern Samar; RUFINO M. GARADO, Sheriff IV; and CASIANO HOMBRIA,
respondents.
GONZAGA-REYES, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the
nullification of the Court of Appeals1 Resolutions dated June 18, 1999 and September 9, 1999
which dismissed the Petition for Certiorari and Prohibition2 under Rule 65 and denied the
corresponding motion for reconsideration, respectively.
The antecedent facts are as follows:
On June 1, 1977, private respondent Casiano Hombria filed a Complaint .for the recovery of a
parcel of land against his lessees, petitioner-spouses Antonio and Alfreda Docena.3 The
petitioners claimed ownership of the land based on occupation since time immemorial.4 A
certain Guillermo Abuda intervened in the case. In a Decision dated November 24, 1989, the
trial court ruled in favor of the petitioners and the intervenor Abuda.5 On appeal, the Court of
Appeals reversed the judgment of the trial court and ordered the petitioners "to vacate the land
they have leased from the plaintiff-appellant [private respondent Casiano Hombria], excluding
the portion which the petitioners reclaimed from the sea and forms part of the shore, as shown
in the Commissioner's Report, and to pay the plaintiff-appellant the agreed rental of P1.00 per
year from the date of the filing of the Complaint until they shall have actually vacated the
premises."6 The Complaint in Intervention of Abuda was dismissed.7
On May 22, 1995, private respondent Hombria filed a Motion for Execution of the above
decision which has already become final and executory.8 The motion was granted by the public
respondent judge, and a Writ of Execution was issued therefor. However, the public respondent
sheriff subsequently filed a Manifestation requesting that he "be clarified in the determination of

that particular portion which is sought to be excluded prior to the delivery of the land adjudged
in favor of plaintiff Casiano Hombria" in view of the defects in the Commissioner's Report and
the Sketches attached thereto.9 After requiring the parties to file their Comment on the sheriff's
Manifestation, the public respondent judge, in a Resolution dated August 30, 1996, held that
"xxx no attempt should be made to alter or modify the decision of the Court of Appeals. What
should be delivered therefore to the plaintiff xxx is that portion leased by the defendantappellees from the plaintiff-appellant excluding the portion that the defendant-appellee have
reclaimed from the sea and forms part of the shore as shown in the commissioner's report
xxx."10 Pursuant to the Resolution, the public respondent sheriff issued an alias Writ of
Demolition. The petitioners filed a Motion to Set Aside or Defer the Implementation of Writ of
Demolition. This motion was denied by the public respondent judge in an Order dated
November 18, 1998, a copy of which was received by the petitioners on December 29, 1998.11
Also on December 29, 1998, the public respondent judge, in open court, granted the petitioners
until January 13, 1999 to file a Motion for Reconsideration.12 On January 13, 1999, petitioners
moved for an extension of the period to file a motion for reconsideration until January 28,
1999.13 The motion was finally filed by the petitioners on January 27, 1999, but was denied by
the trial court in an Order dated March 17, 1999.14 A copy of the Order was received by the
petitioners on May 4, 1999.15
A Petition for Certiorari and Prohibition was filed by the petitioners with the Court of Appeals,
alleging grave abuse of discretion on the part of the trial court judge in issuing the Orders dated
November 18, 1998 and March 17, 1999, and of the sheriff in issuing the alias Writ of
Demolition. In a Resolution dated 4 June 18, 1999, the Court of Appeals dismissed the petition
on the grounds that the petition was filed beyond the 60-day period provided under Section 4 of
Rule 65 of the 1997 Revised Rules of Civil Procedure as amended by Bar Matter No. 803
effective September 1, 1998, and that the certification of non-forum shopping attached thereto
was signed by only one of the petitioners.16 The Motion for Reconsideration filed by the
petitioners was denied by the Court of Appeals in a Resolution dated September 9, 1999.17
Hence this petition. 1wphi1.nt
The sole issue in this case is whether or not the Court of Appeals erred in dismissing the
Petition for Certiorari and Prohibition.
The petition is meritorious.
The Court of Appeals dismissed the Petition for Certiorari upon the following grounds, viz: (1)
the petition was filed beyond the 60-day period provided under Sec. 4, Rule 65 of the 1997
Revised Rules of Civil Procedure as amended by Bar Matter No. 803 effective September l,
1998; and (2) the certification of non-forum shopping was signed by only one of the petitioners.
Upon the first ground, the Court of Appeals stated in its Resolution dated June 18, 1999 that:
xxx the 60-day period is counted not from the receipt of the Order denying their Motion for
Reconsideration but from the date of receipt of the Order of November 18, 1998 which was on
December 29, 1998, interrupted by the filing of the Motion for Reconsideration on January 27,
1999. The Motion for "Reconsideration was denied in an Order dated March 17, 1999 received
by the petitioners on May 4, 1999. Counting the remaining period, this petition should have been
filed on June 4, 1999 but it was filed only on June 14, 1999 or ten (10) days beyond the 60-day
period computed in accordance with Bar Matter No. 803.
xxx
xxx
xxx18
The petitioners agree that the counting of the 60-day period should commence on December
29, 1998, the date of the receipt by the petitioners of the assailed trial court order, interrupted by
the filing of a motion for reconsideration on January 27, 1999, and resume upon receipt by the
petitioners of the denial of the motion by the trial court on May 4, 1999; however, the petitioners
contend that from December 29, 1998 up to January 27, 1999, only the 15-day period allowed
for the filing of a motion for reconsideration19 should be deemed to have elapsed considering
the grant by the trial court of an extension of the period to file the motion until January 13, 1999.

Hence, on May 4, 1999, .the petitioners still had 45 days to file a petition for certiorari and/or
prohibition, and the filing made on June 14, 1999 was timely.
We hold that the Petition for Certiorari and Prohibition has been timely filed.
A.M. No. 00-2-03-SC, which took effect on September 1, 2000, amended Section 4 of Rule 65
of the 1997 Revised Rules of Civil Procedure20 to provide thus:
SEC. 4. When and where petition filed. -- The petition shall be filed not later than sixty (60) days
from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial
is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted
from notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower
court or of a corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed
in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted except for compelling reason and in no
case exceeding fifteen (15) days. [Emphasis ours]
In the case of Systems Factors Corporation versus NLRC,21 we held that the abovequoted
Resolution, being procedural in nature, is applicable to actions pending and undetermined at the
time of their passage. The retroactive application of procedural laws such as this Resolution is
not violative of any right of a person who may feel adversely affected thereby, as no vested right
may attach to nor arise from procedural laws.22 The ruling in the Systems Factors case was
reiterated in the recent case of Unity Fishing Development Corporation, et. al. vs. Court of
Appeals, et. al.23 Applying the Resolution to the case at bar, the 60-day period for the filing of a
petition for certiorari and prohibition should be reckoned from the date of receipt of the order
denying the motion for reconsideration, i.e., May 4, 1999, and thus, the filing made on June 14,
1999 was well within the 60-day reglementary period.
Anent the ground that the certification of non-forum shopping was signed by only one of the
petitioners, it is the contention of the petitioners that the same is sufficient compliance with the
requirements of Sections 1 and 2 of Rule 65 (Petition for Certiorari and Prohibition) in relation to
Section 3 of Rule 46 (Original Cases Filed in the Court of Appeals). The petitioners argue that
since they are spouses with joint or indivisible interest over the alleged conjugal property subject
of the original action which gave rise to the petition for certiorari and prohibition, the signing of
the certificate of non-forum shopping by only one of them would suffice, especially considering
the long distance they had to travel just to sign the said certificate.24 Moreover, there is
substantial compliance with the Rules of Court where the certification was signed by the
husband who is the statutory administrator of the conjugal property.25
It has been our previous ruling that the certificate of non-forum shopping should be signed by all
the petitioners or plaintiffs in a case, and that the signing by only one of them is insufficient. In
the case of Efren Loquias, et. al. vs. Office of the Ombudsman, et. al.,26 we held that the signing
of the Verification and the Certification on Non-Forum Shopping by only one of the petitioners
constitutes a defect in the petition.27 The attestation contained in the certification on non- forum
shopping requires personal knowledge by the party executing the same,28 and the lone signing
petitioner cannot be presumed to have personal knowledge of the filing or non-filing by his copetitioners of any action or claim the same as or similar to the current petition. To merit the
Court's consideration, petitioners must show reasonable cause for failure to personally sign the
certification.
In the case at bar, however, we hold that the subject Certificate of Non-Forum Shopping signed
by the petitioner Antonio Docena alone should be deemed to constitute substantial compliance
with the rules.29 There are only two petitioners in this case and they are husband and wife. Their

residence is the subject property alleged to be conjugal in the instant verified petition. The
Verification/Certification on Non-Forum Shopping30 attached to the Petition for Certiorari and
Prohibition was signed only by the husband who certified, inter alia, that he and his wife have
not commenced any other action or proceeding involving the same issues raised in the petition
in any court, tribunal or quasi- judicial agency; that to the best of their knowledge no such action
is pending therein; and that he and his wife undertake to inform the Court within five (5) days
from notice of any similar action or proceeding which may have been filed.
The property subject of the original action for recovery is conjugal. Whether it is conjugal under
the New Civil Code or the Family Code, a fact that cannot be determined from the records
before us, it is believed that the certificate on non-forum shopping filed in the Court of Appeals
constitutes sufficient compliance with the rules on forum-shopping.
Under the New Civil Code, the husband is the administrator of the conjugal partnership.31 In
fact, he is the sole administrator, and the wife is not entitled as a matter of right to join him in this
endeavor.32 The husband may defend the conjugal partnership in a suit or action without being
joined by the wife. 33 Corollarily, the husband alone may execute the necessary certificate of
non-forum shopping to accompany the pleading. The husband as the statutory administrator of
the conjugal property could have filed the petition for certiorari and prohibition34 alone, without
the concurrence of the wife. If suits to defend an interest in the conjugal properties may be filed
by the husband alone, with more reason, he may sign the certificate of non-forum shopping to
be attached to the petition.
Under the Family Code, the administration of the conjugal property belongs to the husband and
the wife jointly.35 However, unlike an act of alienation or encumbrance where the consent of both
spouses is required, joint management or administration does not require that the husband and
wife always act together. Each spouse may validly exercise full power of management alone,
subject to the intervention of the court in proper cases as provided under Article 124 of the
Family Code.36 It is believed that even under the provisions of the Family Code, the husband
alone could have filed the petition for certiorari and prohibition to contest the writs of demolition
issued against the conjugal property with the Court of Appeals without being joined by his wife.
The signing of the attached certificate of non-forum shopping only by the husband is not a fatal
defect.
More important, the signing petitioner here made the certification in his behalf and that of his
wife. The husband may reasonably be presumed to have personal knowledge of the filing or
non-filing by his wife of any action or claim similar to the petition for certiorari and prohibition
given the notices and legal processes involved in a legal proceeding involving real property. We
also see no justifiable reason why he may not lawfully undertake together with his wife to inform
the court of any similar action or proceeding which may be filed. If anybody may repudiate the
certification or undertaking for having been incorrectly made, it is the wife who may conceivably
do so.
In view of the circumstances of this case, namely, the property involved is a conjugal property,
the petition questioning the writ of demolition thereof originated from an action for recovery
brought against the spouses, and is clearly intended for the benefit of the conjugal partnership,
and the wife, as pointed out in the Motion for Reconsideration in respondent court, was in the
province of Guian, Samar, whereas the petition was prepared in Metro Manila, a rigid
application of the rules on forum shopping that would disauthorize a husband's signing the
certification in his behalf and that of his wife is too harsh and is clearly uncalled for.
It bears stressing that the rules on forum shopping, which were designed to promote and
facilitate the orderly administration of justice, should not be interpreted with such absolute
literalness as to subvert its own ultimate and legitimate objective.37
The petitioner's motion for the issuance of a temporary restraining order to put on hold the
demolition of the subject property is principally anchored on their alleged right to the nullification
of the assailed orders and writs issued by the public respondents.38 As the existence of the right

being asserted by the petitioners is a factual issue proper for determination by the Court of
Appeals, the motion based thereon should likewise be addressed to the latter court.
WHEREFORE, premises considered, the petition is hereby GRANTED. The Court of Appeals
Resolutions dated June 18, 1999 and September 9, 1999 are hereby SET ASIDE and the case
is REMANDED to the Court of Appeals for further proceedings.
SO ORDERED.
Melo, Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.
19.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 125465 June 29, 1999
SPOUSES AUGUSTO HONTIVEROS and MARIA HONTIVEROS, petitioners,
vs.
REGIONAL TRIAL COURT, Branch 25, Iloilo City and SPOUSES GREGORIO HONTIVEROS
and TEODORA AYSON, respondents.
MENDOZA, J.:
On December 3, 1990, petitioners, the spouses Augusto and Maria Hontiveros, filed a complaint
for damages against private respondents Gregorio Hontiveros and Teodora Ayson before the
Regional Trial Court of Iloilo City, Branch 25, where it was docketed as Civil Case No. 19504. In
said complaint, petitioners alleged that they are the owners of a parcel of land, in the town of
Jamindan, Province of Capiz, as shown by OCT No. 0-2124, issued pursuant to the decision of
the Intermediate. Appellate Court, dated April 12, 1984, which modified the decision of the Court
of First Instance of Capiz, dated January 23, 1975, in a land registration case 1 filed by private
respondent Gregorio Hontiveros; that petitioners were deprived of income from the land as a
result of the filing of the land registration case; that such income consisted of rentals from
tenants of the land in the amount of P66,000.00 per year from 1968 to 1987, and P595,000.00
per year thereafter; and that private respondents filed the land registration case and withheld
possession of the land from petitioners in bad faith. 2
In their answer, private respondents denied that they were married and alleged that private
respondent Hontiveros was a widower while private respondent Ayson was single. They denied
that they had deprived petitioners of possession of and income from the land. On the contrary,
they alleged that possession of the property in question had already been transferred to
petitioners on August 7, 1985, by virtue of a writ of possession, dated July 18, 1985, issued by
the clerk of court of the Regional Trial Court of Capiz, Mambusao, the return thereof having
been received by petitioners' counsel; that since then, petitioners have been directly receiving
rentals from the tenants of the land, that the complaint failed to state a cause of action since it
did not allege that earnest efforts towards a compromise had been made, considering that
petitioner Augusto Hontiveros and private respondent Gregorio Hontiveros are brothers; that the
decision of the Intermediate Appellate Court in Land Registration Case No. N-581-25 was null
and void since it was based upon a ground which was not passed upon by the trial court; that
petitioners' claim for damages was barred by prescription with respect to claims before 1984;
that there were no rentals due since private respondent Hontiveros was a possessor in good
faith and for value; and that private respondent Ayson had nothing to do with the case as she
was not married to private respondent Gregorio Hontiveros and did not have any proprietary
interest in the subject property. Private respondents prayed for the dismissal of the complaint
and for an order against petitioners to pay damages to private respondents by way of
counterclaim, as well as reconveyance of the subject land to private respondents. 3

On May 16, 1991, petitioners filed an Amended Complaint to insert therein an allegation that
"earnest efforts towards a compromise have been made between the parties but the same were
unsuccessful."
In due time, private respondents filed an Answer to Amended Complaint with Counterclaim, in
which they denied, among other things, that earnest efforts had been made to reach a
compromise but the parties was unsuccessful.
On July 19, 1995, petitioners moved for a judgment on the pleadings on the ground that private
respondents' answer did not tender an issue or that it otherwise admitted the material
allegations of the complaint. 4 Private respondents opposed the motion alleging that they had
denied petitioners' claims and thus tendered certain issues of fact which could only be resolved
after
trial. 5
On November 23, 1995, the trial court denied petitioners' motion. At the same time, however, it
dismissed the case on the ground that the complaint was not verified as required by Art. 151 of
the Family Code and, therefore, it did not believe that earnest efforts had been made to arrive at
a compromise. The order of the trial court reads: 6
The Court, after an assessment of the diverging views and arguments presented by both
parties, is of the opinion and so holds that judgment on the pleadings is inappropriate not only
for the fact that the defendants in their answer, particularly in its paragraph 3 to the amended
complaint, specifically denied the claim of damages against them, but also because of the ruling
in De Cruz vs. Cruz, G.R. No. 27759, April 17, 1970 (32 SCRA 307), citing Rili vs. Chunaco, 98
Phil. 505, which ruled that the party claiming damages must satisfactorily prove the amount
thereof and that though the rule is that failure to specifically deny the allegations in the
complaint or counter-claim is deemed an admission of said allegations, there is however an
exception to it, that is, that when the allegations refer to the amount of damages, the allegations
must still be proved. This ruling is in accord with the provision of Section 1, Rule 9 of the Rules
of Court.
That while the plaintiffs in their amended complaint alleged that earnest efforts towards a
compromise with the defendants were made, the fact is that their complaint was not verified as
provided in Article 151 of the Family Code. Besides, it is not believed that there were indeed
earnest efforts made to patch up and/or reconcile the two feuding brothers, Gregorio and
Augusto, both surnamed Hontiveros.
The submission of the plaintiffs that, assuming no such earnest efforts were made, the same is
not necessary or jurisdictional in the light of the ruling in Rufino Magbaleta, et al., petitioner, vs.
Hon. Arsenio M. Ganong, et al., respondents, No. L-44903, April 22, 1977, is, to the mind of this
Court, not applicable to the case at bar for the fact is the rationale in that case is not present in
the instant case considering these salient points:
a) Teodora Ayson, the alleged wife of defendant Gregorio Hontiveros and allegedly not a
member of the Hontiveros Family, is not shown to be really the wife of Gregorio also denied in
their verified answer to the amended complaint.
b) Teodora Ayson has not been shown to have acquired any proprietary right or interest in the
land that was litigated by Gregorio and Augusto, unlike the cited case of Magbaleta where it was
shown that a stranger to the family acquired certain right;
c) In the decision rendered by the appellate court no mention was made at all of the name of
Teodora Ayson as part-awardee of Lot 37 that was adjudged to Gregorio other than himself who
was therein described as a widower. Moreover, Teodora was never mentioned in said decision,
nor in the amended complaint and in the amended motion for judgment on the pleadings that
she ever took any part in the act of transaction that gave rise to the damages allegedly suffered
by the plaintiffs for which they now claim some compensation.
WHEREFORE, in the light of all the foregoing premises, the Court orders, as it hereby orders,
the dismissal of this case with cost against the plaintiffs.

SO ORDERED.
Petitioners moved for a reconsideration of the order of dismissal, but their motion was denied. 7
Hence, this petition for review on certiorari. Petitioner contend:
I. THE REGIONAL TRIAL COURT PALPABLY ERRED IN DISMISSING THE COMPLAINT ON
THE GROUND THAT IT DOES NOT ALLEGE UNDER OATH THAT EARNEST EFFORTS
TOWARD A COMPROMISE WERE MADE PRIOR TO THE FILING THEREOF AS REQUIRED
BY ARTICLE 151 OF THE FAMILY CODE.
II. THE REGIONAL TRIAL COURT PALPABLY ERRED IN NOT DENYING THE MOTION FOR
JUDGMENT ON THE PLEADINGS AND ORDERING A TRIAL ON THE MERITS.
Private respondents raise a preliminary question. They argue that petitioners should have
brought this case on appeal to the Court of Appeals since the order of the trial court judge was
actually a decision on the merits. On the other hand, even if petition for certiorari were the
proper remedy, they contend that the petition is defective because the judge of the trial court
has not been impleaded as a respondent. 8
Private respondents' contention is without merit. The petition in this case was filed pursuant to
Rule 45 of the Rules of Court. As explained in Atlas Consolidated Mining Development
Corporation v. Court of Appeals: 9
Under Section 5, subparagraph (2)(e), Article VIII of the 1987 Constitution, the Supreme Court is
vested with the power to review, revise, reverse, modify, or affirm on appeal or certiorari as the
law or the Rules of Court may provide, final judgments and orders of lower courts in all cases in
which only an error or question of law is involved. A similar provision is contained in Section 17,
fourth paragraph, subparagraph (4) of the Judiciary Act of 1948, as amended by Republic Act
No. 5440. And, in such cases where only questions of law are involved, Section 25 of the
Interim Rules and Guidelines implementing Batas Pambansa Blg. 129, in conjunction with
Section 3 of Republic Act No. 5440, provides that the appeal to the Supreme Court shall be
taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court.
The rule, therefore, is that direct appeals to this Court from the trial court on questions of law
have to be through the filing of a petition for review on certiorari. It has been held that:
. . . when a CFI (RTC) adjudicates a case in the exercise of its original jurisdiction, the correct
mode of elevating the judgment to the Court of Appeals is by ordinary appeal, or appeal by writ
of error, involving merely the filing of a notice of appeal except only if the appeal is taken in
special proceedings and other cases wherein multiple appeals are allowed under the law, in
which even the filing of a record on appeal is additionally required. Of course, when the appeal
would involve purely questions of law or any of the other cases (except criminal cases as stated
hereunder) specified in Section 5(2), Article X of the Constitution, it should be taken to the
Supreme Court by petition for review on certiorari in accordance with Rules 42 and 45 of the
Rules of Court.
By way of implementation of the aforestated provisions of law, this Court issued on March 9,
1930 Circular No. 2-90, paragraph 2 of which provides:
2. Appeals from Regional Courts to the Supreme Court. Except in criminal cases where the
penalty imposed is life imprisonment or reclusion perpetua, judgments of regional trial courts
may be appealed to the Supreme Court only by petition for review on certiorari in accordance
with Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act of 1948, as
amended, this being the clear intendment of the provision of the Interim Rules that (a)ppeals to
the Supreme Court shall be taken by petition for certiorari which shall be governed by Rule 45 of
the Rules of Court.
Under the foregoing considerations, therefore, the inescapable conclusion is that herein
petitioner adopted the correct mode of appeal in G.R. No. 88354 by filing with this Court petition
to review on certiorari the decision of the Regional Trail Court of Pasig in Civil Case No. 25528
and raising therein purely questions of law.
In Meneses v. Court of Appeals, it was held: 10

It must also be stressed that the trial court's order of 5 June 1992 dismissing the petitioner's
complaint was, whether it was right or wrong, a final order because it had put an end to the
particular matter resolved, or settled definitely the matter therein disposed of and left nothing
more to be done by the trial court except the execution of the order. It is a firmly settled rule that
the remedy against such order is the remedy of appeal and not certiorari. That appeal may be
solely on questions of law, in which case it may be taken only to this Court; or on questions of
fact and law, in which case the appeal should be brought to the Court of Appeals. Pursuant to
Murillo v. Consul, the appeal to this Court should be by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court.
As private respondents themselves admit, the order of November 23, 1995 is a final order from
which an appeal can be taken. It is final in the sense that it disposes of the pending action
before the court and puts an end to the litigation so that nothing more was left for the trial court
to do. 11 Furthermore, as the questions raised as the questions of law, petition for review on
certiorari is the proper mode of appeal. These questions are: (1) whether after denying
petitioners' motion for judgment on the pleadings, the trial court could dismiss their complaint
motu proprio for failure to comply with Art. 151 of the Family Code which provides that no suit
between members of the same family shall prosper unless it appears from the complaint, which
must be verified, that earnest efforts towards a compromise have been made but the same have
failed; and (2) whether Art. 151 applies to this case. These questions do not require an
examination of the probative value of evidence presented and the truth or falsehood of facts
asserted which questions of fact would entail. 12
On the other hand, petitioners contend that the trial court erred in dismissing the complaint
when no motion to that effect was made by any of the parties. They point out that, in opposing
the motion for judgment on the pleadings, private respondents did not seek the dismissal of the
case but only the denial of petitioners' motion. Indeed, what private respondents asked was that
trial be held on the merits.
Of course, there are instances when the trial court may order the dismissal of the case even
without a motion to that effect filed by any of the parties. In Baja v. Macandog, 13 this Court
mentioned these cases, to wit:
The court cannot dismiss a case motu proprio without violating the plaintiff's right to be heard,
except in the following instances: if the plaintiff fails to appear at the time of the trial; if he fails to
prosecute his action for unreasonable length of time; or if he fails to comply with the rules or any
order of the court; or if the court finds that it has no jurisdiction over the subject matter of the
suit.
However, none of these exceptions appears in this case.
Moreover, the trial court itself found that "judgment on the pleadings is inappropriate not only for
the fact that [private respondents] in their answer . . . specifically denied the claim of damages
against them, but also because of the [rule] . . . that the party claiming damages must
satisfactorily prove the amount thereof. . . . " Necessarily, a trial must be held.
Rule 19 of the Rules of Court provides: 14
Sec. 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise
admits the material allegation of the adverse party's pleadings, the court may, on motion of the
party, direct judgment on such pleading. But in actions for annulment of marriage or for legal
separation the material facts alleged in the complaint shall always be proved.
Under the rules, if there is no controverted matter in the case after the answer is filed, the trial
court has the discretion to grant a motion for judgment on the pleadings filed by a party. 15 When
there are actual issues raised in the answer, such as one involving damages, which require the
presentation of evidence and assessment thereof by the trial court, it is improper for the judge to
render judgment based on the pleadings alone. 16 In this case, aside from the amount of
damages, the following factual issues have to be resolved, namely, (1) private respondent
Teodora Ayson's participation and/or liability, if any to petitioners and (2) the nature, extent, and

duration of private respondents' possession of the subject property. The trial court, therefore,
correctly denied petitioners' motion for judgment on the pleadings.
However, the trial court erred in dismissing petitioners' complaint on the ground that, although it
alleged that earnest efforts had been made toward the settlement of the case but they proved
futile, the complaint was not verified for which reason the trial court could not believe the
veracity of the allegation.
The absence of the verification required in Art. 151 does not affect the jurisdiction of the court
over the subject matter of the complaint. The verification is merely a formal requirement
intended to secure an assurance that matters which are alleged are true and correct. If the court
doubted the veracity of the allegations regarding efforts made to settle the case among
members of the same family, it could simply have ordered petitioners to verify them. As this
Court has already ruled, the court may simply order the correction of unverified pleadings or act
on it and waive strict compliance with the rules in order that the ends of justice may be served.
17
Otherwise, mere suspicion or doubt on the part of the trial court as to the truth of the
allegation that earnest efforts had been made toward a compromise but the parties' efforts
proved unsuccessful is not a ground for the dismissal of an action. Only if it is later shown that
such efforts had not really been exerted would the court be justified in dismissing the action.
Thus, Art. 151 provides:
No suit between members of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a compromise have been made, but that
the same have failed. It if is shown that no such efforts were in fact made, the case must be
dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the Civil
Code.
Moreover, as petitioners contend, Art. 151 of the Family Code does not apply in this case since
the suit is not exclusively among the family members. Citing several cases 18 decided by this
Court, petitioners claim that whenever a stranger is a party in the case involving the family
members, the requisite showing the earnest efforts to compromise is no longer mandatory. They
argue that since private respondent Ayson is admittedly a stranger to the Hontiveros family, the
case is not covered by the requirements of Art. 151 of the Family Code.
We agree with petitioners. The inclusion of private respondent Ayson as defendant and
petitioner Maria Hontiveros as plaintiff takes the case out of the ambit of Art. 151 of the Family
Code. Under this provision, the phrase "members of the same family" refers to the husband and
wife, parents and children, ascendants and descendants, and brothers and sisters, whether full
or half-blood. 19 As this Court held in Guerrero v. RTC, Ilocos Norte, Br. XVI: 20
As early as two decades ago, we already ruled in Gayon v. Gayon that the enumeration of
"brothers and sisters" as member of the same family does not comprehend "sisters-in-law." In
that case, then Chief Justice Concepcion emphasized that "sisters-in-law" (hence, also "brotherin-law") are not listed under Art. 217 of the New Civil Code as members of the same family.
Since Art. 150 of the Family Code repeats essentially the same enumeration of "members of the
family," we find no reason to alter existing jurisprudence on the mater. Consequently, the court a
quo erred in ruling that petitioner Guerrero, being a brother-in-law of private respondent
Hernando, was required to exert earnest efforts towards a compromise before filing the present
suit.
Religious relationship and relationship by affinity are not given any legal effect in this jurisdiction.
21
Consequently, private respondent Ayson, who is described in the complaint as the spouse of
respondent Hontiveros, and petitioner Maria Hontiveros, who is admittedly the spouse of
petitioner Augusto Hontiveros, are considered strangers to the Hontiveros family, for purposes
of Art. 151.
Petitioners finally question the constitutionality of Art. 151 of the Family Code on the ground that
it in effect amends the Rules of Court. This, according to them, cannot be done since the

Constitution reserves in favor of the Supreme Court the power to promulgate rules of pleadings
and procedure. Considering the conclusion we have reached in this case, however, it is
unnecessary for present purposes to pass upon this question. Courts do not pass upon
constitutional questions unless they are the very lis mota of the case.
WHEREFORE, the petition is GRANTED and the Order, dated November 23, 1995 of the
Regional Trial Court of Iloilo City, Branch 25 is SET ASIDE and the case is remanded to the trial
court for further proceedings not inconsistent with this decision.1wphi1.nt
SO ORDERED.
Bellosillo, Puno, Quisumbing and Buena, JJ., concur.
20.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 1022-MJ May 7, 1976
REDENTOR ALBANO, complainant,
vs.
MUNICIPAL JUDGE PATROCINIO C. GAPUSAN of Dumalneg, Ilocos Norte, respondent.
RESOLUTION
AQUINO, J.:
Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal Judge
Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos Norte (1) with incompetence and
Ignorance of the law for having prepared and notarized a document providing for tile personal
separation of husband and wife and the extrajudicial liquidation of their conjugal partnership and
(2) with having allegedly influenced Judge Zacarias A. Crispin of the Court of First Instance of
Ilocos Norte in deciding two criminal cases.
Malpractice as a notary. In 1941 or five years before his appointment to the bench,
respondent Gapusan notarized a document for the personal separation of the spouses
Valentina Andres and Guillermo Maligta of Barrio 6, Vintar, Ilocos Norte and for the extrajudicial
liquidation of their conjugal partnership.
It was stipulated in that document that if either spouse should commit adultery or concubinage,
as the case may be, then the other should refrain from filing an action against the other.
Judge Gapusan denied that he drafted the agreement. He explained that the spouses had been
separated for a long time when they signed the separation agreement and that the wife had
begotten children with her paramour. He said that there was a stipulation in the agreement that
the spouses would live together in case of reconciliation. His belief was that the separation
agreement forestalled the occurrence of violent incidents between the spouses.
Albano in filing the malpractice charge is in effect asking this Court to take belated disciplinary
action against Judge Gapusan as a member of the bar or as a notary. (He was admitted to the
bar in 1937).
There is no question that the covenents contained in the said separation agreement are
contrary to law, morals and good customs (Biton vs. Momongan, 62 Phil. 7). Those stipulations
undermine the institutions of marriage and the family, "Marriage is not a mere contract but an
inviolable social institution". "The family is a basic social institution which public policy cherishes
and protects." (Arts. 52 and 216, Civil Code). Marriage and the family are the bases of human
society throughout the civilized world (Adong vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs.
Gmur, 42 Phil. 855, 864; Goitia vs. Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102
Phil. 168).
To preserve the institutions of marriage and the family, the law considers as void "any contract
for personal separation between husband and wife" and "every extrajudicial agreement, during
the marriage, for the dissolution of the conjugal partnership" (Art. 221, Civil Code). Before the

new Civil Code, it was held that the extrajudicial dissolution of the conjugal partnership without
judicial sanction was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc, 74 Phil. 15).
A notary should not facilitate the disintegration of a marriage and the family by encouraging the
separation of the spouses and extrajudically dissolving the conjugal partnership. Notaries were
severely censured by this Court for notarizing documents which subvert the institutions of
marriage and the family (Selanova vs. Mendoza, Adm. Matter No. 804-CJ, May 19, 1975, 64
SCRA 69; Miranda vs. Fuentes, Adm. Case No. 241, April 30, 1966, 16 SCRA 802; Biton vs.
Momongan, supra,, Panganiban vs. Borromeo, 58 Phil. 367; In re Santiago, 70 Phil. 66; Balinon
vs. De Leon, 94 Phil. 277).
Respondent Gapusan as a member of the bar should be censured for having notarized the void
separation agreement already mentioned.
However, his notarization of that document does not warrant any disciplinary action against him
as a municipal judge (he was appointed in 1946 as justice of the peace) especially considering
that his appointment to the judiciary was screened by the Commission on Appointments (See Ty
vs. San Diego, Adm. Matter No. 169-J, June 29, 1972).
Alleged misconduct in influencing CFI Judge. Albano complains that Judge Gapusan took
advantage of his intimacy with Judge Crispin. He implies that by reason of that intimacy Judge
Crispin acquitted of frustrated murder the defendants in Criminal Case No. 102-III, People vs.
Freddie Gapusan Gamboa, et al. and convicted Albano (complainant herein) of double
frustrated murder with triple attempted murder in Criminal Case No. 70-III.
Albano said that Freddie Gapusan, an accused in the first criminal case above-mentioned and a
complaining witness in the other case against Albano, is a relative of Judge Gapusan. He
revealed that after the acquittal decision was rendered by Judge Crispin in Criminal Case No.
102 III, the relatives of the accused in that case were saying that their relationship to Judge
Gapusan, a friend of Judge Crispin, proved to be "worthwhile and useful".
Judge Gapusan admitted in his answer that he is close to Judge Crispin because they used to
be members of the Municipal Judges League (when it was headed by Judge Crispin) and
because the latter used to be an Executive Judge (with supervision over municipal judges).
Respondent said that his association with Judge Crispin "was purely official".
Judge Gapusan also admitted that Freddie Gapusan is his distant relative. He denied that he
influenced Judge Crispin in rendering his decisions in the two criminal cases.
It is manifest that Alliano's imputation that Judge Gapusan influenced Judge Crispin is anchored
on mere suspicion. If he has any evidence that Judge Crispin committed any irregularity due to
the alleged influence exerted by Judge Gapusan, then Albano should have complained against
Judge Crispin's actuations. He should riot vent his ire on Judge Gapusan alone.
When an officer or court allows itself to enter upon the sea of suspicion, it permits itself to enter
upon a sea which has no shore, and the embarkation is without a rudder or compass to control
the direction or to ascertain its bearing." (Dy Keng vs. Collector of Customs, 40 Phil, 118, 123).
A person has freedom to choose his friends and to hobnob with them. It is not a crime nor
unethical per se for a municipal judge to fraternize with a Judge of the Court of First Instance.
Whether the fraternization resulted in an unjust verdict rendered by the Judge of the Court of
First Instance due to the sinister or corruptive influence of the municipal judge cannot be shown
by mere inference, or conjecture. It should be Substantiated by solid evidence. The unjustness
of the decision should be indubitably established.
The second charge should be dismissed for being speculative and unfair to Judge Crispin. (He
retired in September, 1975).
WHEREFORE, the respondent, as a member of the bar, is for having notarized the abovementioned void agreement. The second charge is dismissed.
SO ORDERED.
Fernando, Actg. C.J., Antonio and Martin, JJ, concur.
Concepcion, Jr., J., is on leave.

Separate Opinions
BARREDO, J., concurring:
Because offense was committed thirty-five years ago, otherwise, there would have been a
heavier sanction.

Separate Opinions
BARREDO, J., concurring:
Because offense was committed thirty-five years ago, otherwise, there would have been a
heavier sanction.
21.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 162084
June 28, 2005
APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA MARTINEZ, petitioners,
vs.
RODOLFO G. MARTINEZ, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R.
SP No. 59420 setting aside and reversing the decision of the Regional Trial Court (RTC) of
Manila, Branch 30, in Civil Case No. 00-96962 affirming, on appeal, the decision of the
Metropolitan Trial Court (MTC) of Manila in Civil Case No. 164761 (CV) for ejectment.
The Antecedents
The spouses Daniel P. Martinez, Sr. and Natividad de Guzman-Martinez were the owners of a
parcel of land identified as Lot 18-B-2 covered by Transfer Certificate of Title (TCT) No. 54334,
as well as the house constructed thereon.2 On March 6, 1993, Daniel, Sr. executed a Last Will
and Testament3 directing the subdivision of the property into three lots, namely, Lots 18-B-2-A,
18-B-2-B and 18-B-2-C. He then bequeathed the three lots to each of his sons, namely,
Rodolfo, Manolo and Daniel, Jr.; Manolo was designated as the administrator of the estate.
In May 1995, Daniel, Sr. suffered a stroke which resulted in the paralysis of the right side of his
body. Natividad died on October 26, 1996.4 Daniel, Sr. passed away on October 6, 1997.5
On September 16, 1998, Rodolfo found a deed of sale purportedly signed by his father on
September 15, 1996, where the latter appears to have sold Lot 18-B-2 to Manolo and his wife
Lucila.6 He also discovered that TCT No. 237936 was issued to the vendees based on the said
deed of sale.7
Rodolfo filed a complaint8 for annulment of deed of sale and cancellation of TCT No. 237936
against his brother Manolo and his sister-in-law Lucila before the RTC. He also filed a criminal
complaint for estafa through falsification of a public document in the Office of the City
Prosecutor against Manolo, which was elevated to the Department of Justice.9
On motion of the defendants, the RTC issued an Order10 on March 29, 1999, dismissing the
complaint for annulment of deed of sale on the ground that the trial court had no jurisdiction over
the action since there was no allegation in the complaint that the last will of Daniel Martinez, Sr.

had been admitted to probate. Rodolfo appealed the order to the CA.11
On October 4, 1999, Rodolfo filed a Petition with the RTC of Manila for the probate of the last
will of the deceased Daniel Martinez, Sr.12
In the meantime, the spouses Manolo and Lucila Martinez wrote Rodolfo, demanding that he
vacate the property. Rodolfo ignored the letter and refused to do so. This prompted the said
spouses to file a complaint for unlawful detainer against Rodolfo in the MTC of Manila. They
alleged that they were the owners of the property covered by TCT No. 237936, and that
pursuant to Presidential Decree (P.D.) No. 1508, the matter was referred to the barangay for
conciliation and settlement, but none was reached. They appended the certification to file action
executed by the barangay chairman to the complaint.
In his Answer13 to the complaint filed on October 11, 1999, Rodolfo alleged, inter alia, that the
complaint failed to state a condition precedent, namely, that earnest efforts for an amicable
settlement of the matter between the parties had been exerted, but that none was reached. He
also pointed out that the dispute had not been referred to the barangay before the complaint
was filed.
On October 20, 1999, the spouses Martinez filed an Amended Complaint in which they alleged
that earnest efforts toward a settlement had been made, but that the same proved futile.
Rodolfo filed his opposition thereto, on the ground that there was no motion for the admission of
the amended complaint. The trial court failed to act on the matter.
The spouses Martinez alleged in their position paper that earnest efforts toward a compromise
had been made and/or exerted by them, but that the same proved futile.14 No amicable
settlement was, likewise, reached by the parties during the preliminary conference because of
irreconcilable differences. The MTC was, thus, impelled to terminate the conference.15
On February 21, 2000, the trial court rendered judgment in favor of the spouses Martinez. The
fallo of the decision reads:
WHEREFORE, premises considered, judgment is rendered in favor of plaintiff. The defendant,
including any person claiming right under him, is ordered:
1) To vacate the subject premises;
2) To pay plaintiff the sum of P10,000.00 a month starting July 17, 1999, the date of last
demand until he vacates the same;
3) To pay the sum of P10,000.00 as and for attorneys fees; and
4) Costs of suit.
SO ORDERED.16
The trial court declared that the spouses Martinez had substantially complied with Article 151 of
the Family Code of the Philippines17 based on the allegations of the complaint and the
appended certification to file action issued by the barangay captain.
Rodolfo appealed the decision to the RTC. On May 31, 2000, the RTC rendered judgment
affirming the appealed decision. He then filed a petition for review of the decision with the CA,
alleging that:
1. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND WITHOUT
MERIT THE DEFENSE OF PETITIONER THAT THERE IS NO ALLEGATION IN THE
COMPLAINT THAT PETITIONER HAS UNLAWFULLY WITHHELD POSSESSION OF THE
PROPERTY FROM RESPONDENTS A REQUIREMENT IN [AN] UNLAWFUL DETAINER
SUIT.
2. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT
PETITIONERS POSSESSION OF THE PROPERTY IS BY MERE TOLERANCE OF
RESPONDENTS.
3. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE
RESPONDENTS HAVE A CAUSE OF ACTION.
4. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH DID NOT
RESOLVE THE SIXTH ISSUE, TO WIT, "Whether or not this Court has jurisdiction over this

case considering that the allegations in the complaint makes out a case of accion publiciana."
5. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH HAS NO
JURISDICTION OVER THE CASE.
6. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE
MANDATORY REQUIREMENT OF CONCILIATION HAS BEEN COMPLIED WITH.
7. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT
THERE WAS SUBSTANTIAL COMPLIANCE WITH THE KATARUNGANG PAMBARANGAY
LAW.
8. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH FOUND THAT THE
PENDENCY OF CIVIL CASE NO. 98-91147 AND SPECIAL PROCEEDINGS NO. 99-95281,
INVOLVING THE PETITIONER AND RESPONDENTS AND INVOLVING THE SAME
PROPERTY DID NOT DIVEST THE MTC OF AUTHORITY TO DECIDE THE CASE.
9. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC WHICH GRANTED THE
RELIEF PRAYED FOR BY THE RESPONDENTS.
10. THE RTC ERRED IN AFFIRMING THE DECISION OF THE MTC.18
On November 27, 2003, the CA rendered judgment granting the petition and reversing the
decision of the RTC. The appellate court ruled that the spouses Martinez had failed to comply
with Article 151 of the Family code. The CA also held that the defect in their complaint before
the MTC was not cured by the filing of an amended complaint because the latter pleading was
not admitted by the trial court.
Upon the denial of their motion for reconsideration of the said decision, the spouses Martinez
filed the present petition for review on certiorari, in which they raise the following issues:
I.
WHETHER OR NOT THE CERTIFICATION TO FILE ACTION AND THE ALLEGATIONS IN
THE COMPLAINT THAT THE CASE PASSED [THROUGH] THE BARANGAY BUT NO
SETTLEMENT WAS REACHED, ARE SUFFICIENT COMPLIANCE TO PROVE THAT,
INDEED, EARNEST EFFORTS WERE, IN FACT, MADE BUT THE SAME HAVE FAILED
PRIOR TO THE FILING OF THE COMPLAINT.
II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN
FINDING THAT THERE WAS NON-COMPLIANCE WITH THE REQUIREMENT PROVIDED
FOR UNDER ARTICLE 151 OF THE FAMILY CODE, CONSIDERING THAT ONE OF THE
PARTIES TO A SUIT IN THIS CASE IS NOT A MEMBER OF THE SAME FAMILY.19
The petitioners alleged that they substantially complied with Article 151 of the Family Code,
since they alleged the following in their original complaint:
2. In compliance with P.D. 1508, otherwise known as the "Katarungang Pambarangay," this
case passed [through] the Barangay and no settlement was forged between plaintiffs and
defendant as a result of which Certification to File Action was issued by Barangay 97, Zone 8,
District I, Tondo, Manila. xxx" (Underscoring supplied)20
Further, the petitioners averred, they alleged in their position paper that they had exerted
earnest efforts towards a compromise which proved futile. They also point out that the MTC
resolved to terminate the preliminary conference due to irreconcilable difference between the
parties. Besides, even before they filed their original complaint, animosity already existed
between them and the respondent due to the latters filing of civil and criminal cases against
them; hence, the objective of an amicable settlement could not have been attained. Moreover,
under Article 150 of the Family Code, petitioner Lucila Martinez had no familial relations with the
respondent, being a mere sister-in-law. She was a stranger to the respondent; hence, there was
no need for the petitioners21 to comply with Article 151 of the Family Code.
The petition is meritorious.
Article 151 of the Family Code provides:
Art. 151. No suit between members of the same family shall prosper unless it should appear

from the verified complaint or petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such efforts were, in fact, made, the
case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under the Civil
Code.
The phrase "members of the family" must be construed in relation to Article 150 of the Family
Code, to wit:
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half-blood.
Article 151 of the Family code must be construed strictly, it being an exception to the general
rule. Hence, a sister-in-law or brother-in-law is not included in the enumeration.22
As pointed out by the Code Commission, it is difficult to imagine a sadder and more tragic
spectacle than a litigation between members of the same family. It is necessary that every effort
should be made toward a compromise before a litigation is allowed to breed hate and passion in
the family and it is known that a lawsuit between close relatives generates deeper bitterness
than between strangers.23
Thus, a partys failure to comply with Article 151 of the Family Code before filing a complaint
against a family member would render such complaint premature.
In this case, the decision of the CA that the petitioners were mandated to comply with Article
151 of the Family code and that they failed to do so is erroneous.
First. Petitioner Lucila Martinez, the respondents sister-in-law, was one of the plaintiffs in the
MTC. The petitioner is not a member of the same family as that of her deceased husband and
the respondent:
As regards plaintiffs failure to seek a compromise, as an alleged obstacle to the present case,
Art. 222 of our Civil Code provides:
"No suit shall be filed or maintained between members of the same family unless it should
appear that earnest efforts toward a compromise have been made, but that the same have
failed, subject to the limitations in Article 2035."
It is noteworthy that the impediment arising from this provision applies to suits "filed or
maintained between members of the same family." This phrase, "members of the same family,"
should, however, be construed in the light of Art. 217 of the same Code, pursuant to which:
"Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters."
Mrs. Gayon is plaintiffs sister-in-law, whereas her children are his nephews and/or nieces.
Inasmuch as none of them is included in the enumeration contained in said Art. 217 which
should be construed strictly, it being an exception to the general rule and Silvestre Gayon
must necessarily be excluded as party in the case at bar, it follows that the same does not come
within the purview of Art. 222, and plaintiffs failure to seek a compromise before filing the
complaint does not bar the same.24
Second. The petitioners were able to comply with the requirements of Article 151 of the Family
Code because they alleged in their complaint that they had initiated a proceeding against the
respondent for unlawful detainer in the Katarungang Pambarangay, in compliance with P.D. No.
1508; and that, after due proceedings, no amicable settlement was arrived at, resulting in the
barangay chairmans issuance of a certificate to file action.25 The Court rules that such
allegation in the complaint, as well as the certification to file action by the barangay chairman, is

sufficient compliance with article 151 of the Family Code. It bears stressing that under Section
412(a) of Republic Act No. 7160, no complaint involving any matter within the authority of the
Lupon shall be instituted or filed directly in court for adjudication unless there has been a
confrontation between the parties and no settlement was reached.26
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 59420 is REVERSED AND SET ASIDE. The Decision of the
Metropolitan Trial Court of Manila, as affirmed on appeal by the Regional Trial Court of Manila,
Branch 30, in Civil Case No. 164761(CV) is REINSTATED. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
22.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. NO. 129242
January 16, 2001
PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and
ISABELITA MANALO ,petitioners,
vs.
HON. COURT OF APPEALS, HON. REGIONAL TRIAL COURT OF MANILA (BRANCH 35),
PURITA S. JAYME, MILAGROS M. TERRE, BELEN M. ORILLANO, ROSALINA M. ACUIN,
ROMEO S. MANALO, ROBERTO S. MANALO, AMALIA MANALO and IMELDA MANALO,
respondents.
DE LEON, JR., J.:
This is a petition for review on certiorari filed by petitioners Pilar S. Vda De Manalo, et. Al.,
seeking to annul the Resolution 1 of the Court of Appeals 2 affirming the Orders 3 of the Regional
Trial Court and the Resolution 4 which denied petitioner' motion for reconsideration.
The antecedent facts 5 are as follows:
Troadio Manalo, a resident of 1996 Maria Clara Street, Sampaloc, Manila died intestate on
February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his eleven (11) children,
namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre, Belen M. Orillano, Isabelita
Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo, Orlando Manalo
and Imelda Manalo, who are all of legal age.1wphi1.nt
At the time of his death on February 14, 1992, Troadio Manalo left several real properties
located in Manila and in the province of Tarlac including a business under the name and style
Manalo's Machine Shop with offices at No. 19 Calavite Street, La Loma, Quezon City and at
NO. 45 General Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.
On November 26, 1992, herein respondents, who are eight (8) of the surviving children of the
late Troadio Manalo, namely; Purita, Milagros, Belen Rocalina, Romeo, Roberto, Amalia, and
Imelda filed a petition 6 with the respondent Regional Trial Court of Manila 7 of the judicial
settlement of the estate of their late father, Troadio Manalo, and for the appointment of their
brother, Romeo Manalo, as administrator thereof.
On December 15, 1992, the trial court issued an order setting the said petition for hearing on
February 11, 1993 and directing the publication of the order for three (3) consecutive weeks in a
newspaper of general circulation in Metro Manila, and further directing service by registered
mail of the said order upon the heirs named in the petition at their respective addresses
mentioned therein.
On February 11, 1993, the date set for hearing of the petition, the trial court issued an order
'declaring the whole world in default, except the government," and set the reception of evidence
of the petitioners therein on March 16, 1993. However, the trial court upon motion of set this
order of general default aside herein petitioners (oppositors therein) namely: Pilar S. Vda. De

Manalo, Antonio, Isabelita and Orlando who were granted then (10) days within which to file
their opposition to the petition.
Several pleadings were subsequently filed by herein petitioners, through counsel, culminating in
the filling of an Omnibus Motion8 on July 23, 1993 seeking; (1) to seat aside and reconsider the
Order of the trial court dated July 9, 1993 which denied the motion for additional extension of
time file opposition; (2) to set for preliminary hearing their affirmative defenses as grounds for
dismissal of the case; (3) to declare that the trial court did not acquire jurisdiction over the
persons of the oppositors; and (4) for the immediate inhibition of the presiding judge.
On July 30, 1993, the trial court issued an order9 which resolved, thus:
A. To admit the so-called Opposition filed by counsel for the oppositors on July 20, 1993, only
for the purpose of considering the merits thereof;
B. To deny the prayer of the oppositors for a preliminary hearing of their affirmative defenses as
ground for the dismissal of this proceeding, said affirmative defenses being irrelevant and
immaterial to the purpose and issue of the present proceeding;
C. To declare that this court has acquired jurisdiction over the persons of the oppositors;
D. To deny the motion of the oppositors for the inhibition of this Presiding Judge;
E. To set the application of Romeo Manalo for appointment as regular administrator in the
intestate estate of the deceased Troadio Manalo for hearing on September 9, 1993 at 2:00
o'clock in the afternoon.
Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court with the Court
of Appeals, docketed as CA-G.R. SP. No. 39851, after the trial court in its Order 10 dated
September 15, 1993. In their petition for improperly laid in SP. PROC. No. 92-63626; (2) the trial
court did not acquire jurisdiction over their persons; (3) the share of the surviving spouse was
included in the intestate proceedings; (4) there was absence of earnest efforts toward
compromise among members of the same family; and (5) no certification of non-forum shopping
was attached to the petition.
Finding the contentions untenable, the Court of Appeals dismissed the petition for certiorari in its
Resolution11 promulgated on September 30, 1996. On May 6, 1997 the motion for
reconsideration of the said resolution was likewise dismissed.12
The only issue raised by herein petitioners in the instant petition for review is whether or not the
respondent Court of Appeals erred in upholding the questioned orders of the respondent trial
court which denied their motion for the outright dismissal of the petition for judicial settlement of
estate despite the failure of the petitioners therein to aver that earnest efforts toward a
compromise involving members of the same family have been made prior to the filling of the
petition but that the same have failed.
Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an ordinary civil
action involving members of the same family. They point out that it contains certain averments,
which, according to them, are indicative of its adversarial nature, to wit:
X
X
X
Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his father, TROADIO
MANALO, had not made any settlement, judicial or extra-judicial of the properties of the
deceased father TROADIO MANALO.
Par. 8. xxx the said surviving son continued to manage and control the properties
aforementioned, without proper accounting, to his own benefit and advantage xxx.
X
X
X
Par. 12. That said ANTONIO MANALO is managing and controlling the estate of the deceased
TROADIO MANALO to his own advantage and to the damage and prejudice of the herein
petitioners and their co-heirs xxx.
X
X
X
Par. 14. For the protection of their rights and interests, petitioners were compelled to bring this
suit and were forced to litigate and incur expenses and will continue to incur expenses of not

less than, P250,000.00 and engaged the services of herein counsel committing to pay
P200,000.00 as and attorney's fees plus honorarium of P2,500.00 per appearance in court
xxx.13
Consequently, according to herein petitioners, the same should be dismissed under Rule 16,
Section 1(j) of the Revised Rules of Court which provides that a motion to dismiss a complaint
may be filed on the ground that a condition precedent for filling the claim has not been complied
with, that is, that the petitioners therein failed to aver in the petition in SP. PROC. No. 92-63626,
that earnest efforts toward a compromise have been made involving members of the same
family prior to the filling of the petition pursuant to Article 222 14 of the Civil Code of the
Philippines.
The instant petition is not impressed with merit.
It is a fundamental rule that in the determination of the nature of an action or proceeding, the
averments15 and the character of the relief sought 16 in the complaint, or petition, as in the case
at bar, shall be controlling. A careful srutiny of the Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estatein SP. PROC. No. 92-63626 belies herein
petitioners' claim that the same is in the nature of an ordinary civil action. The said petition
contains sufficient jurisdictional facts required in a petition for the settlement of estate of a
deceased person such as the fat of death of the late Troadio Manalo on February 14, 1992, as
well as his residence in the City of Manila at the time of his said death. The fact of death of the
decedent and of his residence within he country are foundation facts upon which all the
subsequent proceedings in the administration of the estate rest. 17 The petition is SP.PROC No.
92-63626 also contains an enumeration of the names of his legal heirs including a tentative list
of the properties left by the deceased which are sought to be settled in the probate proceedings.
In addition, the relief's prayed for in the said petition leave no room for doubt as regard the
intention of the petitioners therein (private respondents herein) to seek judicial settlement of the
estate of their deceased father, Troadio Manalo, to wit;
PRAYER
WHEREFORE, premises considered, it is respectfully prayed for of this Honorable Court:
a. That after due hearing, letters of administration be issued to petitioner ROMEO MANALO for
the administration of the estate of the deceased TROADIO MANALO upon the giving of a bond
in such reasonable sum that this Honorable Court may fix.
b. That after all the properties of the deceased TROADIO MANALO have been inventoried and
expenses and just debts, if any, have been paid and the legal heirs of the deceased fully
determined, that the said estate of TROADIO MANALO be settled and distributed among the
legal heirs all in accordance with law.
c. That the litigation expenses of these proceedings in the amount of P250,000.00 and
attorney's fees in the amount of P300,000.00 plus honorarium of P2,500.00 per appearance in
court in the hearing and trial of this case and costs of suit be taxed solely against ANTONIO
MANALO.18
Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which may be
typical of an ordinary civil action. Herein petitioners, as oppositors therein, took advantage of the
said defect in the petition and filed their so-called Opposition thereto which, as observed by the
trial court, is actually an Answer containing admissions and denials, special and affirmative
defenses and compulsory counterclaims for actual, moral and exemplary damages, plus
attorney's fees and costs 19 in an apparent effort to make out a case of an ordinary civil action
and ultimately seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis--vis,
Article 222 of civil of the Civil Code.
It is our view that herein petitioners may not be allowed to defeat the purpose of the essentially
valid petition for the settlement of the estate of the late Troadio Manalo by raising matters that
as irrelevant and immaterial to the said petition. It must be emphasized that the trial court, siting
as a probate court, has limited and special jurisdiction 20 and cannot hear and dispose of

collateral matters and issues which may be properly threshed out only in an ordinary civil action.
In addition, the rule has always been to the effect that the jurisdiction of a court, as well as the
concomitant nature of an action, is determined by the averments in the complaint and not by the
defenses contained in the answer. If it were otherwise, it would not be too difficult to have a
case either thrown out of court or its proceedings unduly delayed by simple strategem. 21 So it
should be in the instant petition for settlement of estate.
Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be
considered as a special proceeding for the settlement of estate of a deceased person, Rule 16,
Section 1(j) of the Rules of Court vis--vis Article 222 of the Civil Code of the Philippines would
nevertheless apply as a ground for the dismissal of the same by virtue of ule 1, Section 2 of the
Rules of Court which provides that the 'rules shall be liberally construed in order to promote
their object and to assist the parties in obtaining just, speedy and inexpensive determination of
every action and proceedings.' Petitioners contend that the term "proceeding" is so broad that it
must necessarily include special proceedings.
The argument is misplaced. Herein petitioners may not validly take refuge under the provisions
of Rule 1, Section 2, of the Rules of Court to justify the invocation of Article 222 of the Civil Code
of the Philippines for the dismissal of the petition for settlement of the estate of the deceased
Troadio Manalo inasmuch as the latter provision is clear enough. To wit:
Art. 222. No suit shall be filed or maintained between members of the same family unless it
should appear that earnest efforts toward a compromise have been made, but that the same
have failed, subject to the limitations in Article 2035(underscoring supplied).22
The above-quoted provision of the law is applicable only to ordinary civil actions. This is clear
from the term 'suit' that it refers to an action by one person or persons against another or other
in a court of justice in which the plaintiff pursues the remedy which the law affords him for the
redress of an injury or the enforcement of a right, whether at law or in equity. 23 A civil action is
thus an action filed in a court of justice, whereby a party sues another for the enforcement of a
right, or the prevention or redress of a wrong.24 Besides, an excerpt form the Report of the Code
Commission unmistakably reveals the intention of the Code Commission to make that legal
provision applicable only to civil actions which are essentially adversarial and involve members
of the same family, thus:
It is difficult to imagine a sadder and more tragic spectacle than a litigation between members of
the same family. It is necessary that every effort should be made toward a compromise before
litigation is allowed to breed hate and passion in the family. It is know that lawsuit between close
relatives generates deeper bitterness than stranger.25
It must be emphasized that the oppositors (herein petitioners) are not being sued in SP. PROC.
No. 92-63626 for any cause of action as in fact no defendant was imploded therein. The Petition
for issuance of letters of Administration, Settlement and Distribution of Estate in SP. PROC. No.
92-63626 is a special proceeding and, as such, it is a remedy whereby the petitioners therein
seek to establish a status, a right, or a particular fact. 26 the petitioners therein (private
respondents herein) merely seek to establish the fat of death of their father and subsequently to
be duly recognized as among the heirs of the said deceased so that they can validly exercise
their right to participate in the settlement and liquidation of the estate of the decedent consistent
with the limited and special jurisdiction of the probate court.1wphi1.nt
WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit, Costs
against petitioners.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing, Buena, JJ., concur.
23.
24.
25.
Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 177703
January 28, 2008
VILMA G. ARRIOLA and ANTHONY RONALD G. ARRIOLA, petitioners,
vs.
JOHN NABOR C. ARRIOLA, respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the November 30, 2006 Decision1 and April 30, 2007 Resolution2 of the Court of
Appeals in CA-G.R. SP No. 93570.
The relevant facts are culled from the records.
John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial
Court, Branch 254, Las Pias City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola
(petitioners) for judicial partition of the properties of decedent Fidel Arriola (the decedent Fidel).
Respondent is the son of decedent Fidel with his first wife Victoria C. Calabia, while petitioner
Anthony is the son of decedent Fidel with his second wife, petitioner Vilma.
On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered:
1. Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714
(84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola,
Vilma G. Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without
prejudice to the rights of creditors or mortgagees thereon, if any;
2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded
to be reimbursed by the defendants to the plaintiff;
3. Costs against the defendants.
SO ORDERED.3
The decision became final on March 15, 2004.4
As the parties failed to agree on how to partition among them the land covered by TCT No.
383714 (subject land), respondent sought its sale through public auction, and petitioners
acceded to it.5 Accordingly, the RTC ordered the public auction of the subject land.6 The public
auction sale was scheduled on May 31, 2003 but it had to be reset when petitioners refused to
include in the auction the house (subject house) standing on the subject land.7 This prompted
respondent to file with the RTC an Urgent Manifestation and Motion for Contempt of Court,8
praying that petitioners be declared in contempt.
The RTC denied the motion in an Order9 dated August 30, 2005, for the reason that petitioners
were justified in refusing to have the subject house included in the auction, thus:
The defendants [petitioners] are correct in holding that the house or improvement erected on the
property should not be included in the auction sale.
A cursory reading of the aforementioned Decision and of the evidence adduced during the exparte hearing clearly show that nothing was mentioned about the house existing on the land
subject matter of the case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise did
not mention anything about the house. Undoubtedly therefore, the Court did not include the
house in its adjudication of the subject land because it was plaintiff himself who failed to allege
the same. It is a well-settled rule that the court can not give a relief to that which is not alleged
and prayed for in the complaint.
To hold, as plaintiff argued, that the house is considered accessory to the land on which it is
built is in effect to add to plaintiff's [a] right which has never been considered or passed upon
during the trial on the merits.
In the absence of any other declaration, obvious or otherwise, only the land should be

partitioned in accordance to[sic] the aforementioned Decision as the house can not be said to
have been necessarily adjudicated therein. Thus, plaintiff can not be declared as a co-owner of
the same house without evidence thereof and due hearing thereon.
The Decision of the Court having attained its finality, as correctly pointed out, judgment must
stand even at the risk that it might be erroneous.
WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is
hereby DENIED for lack of merit.
SO ORDERED.10
The RTC, in its Order dated January 3, 2006, denied respondent's Motion for Reconsideration.11
Respondent filed with the CA a Petition for Certiorari12 where he sought to have the RTC Orders
set aside, and prayed that he be allowed to proceed with the auction of the subject land
including the subject house.
In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit:
WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and
January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET
ASIDE, and the sheriff is ordered to proceed with the public auction sale of the subject lot
covered by TCT No. 383714, including the house constructed thereon.
SO ORDERED.13 (Emphasis supplied.)
Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution14 of
April 30, 2007.
Hence, the present petition on the sole ground that the CA erred in holding that the RTC
committed grave abuse of discretion in denying the motion for contempt of court.
The assailed CA Decision and Resolution must be modified for reasons other than those
advanced by petitioners.
The contempt proceeding initiated by respondent was one for indirect contempt. Section 4, Rule
71 of the Rules of Court prescribes the procedure for the institution of proceedings for indirect
contempt, viz:
Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated
motu proprio by the court against which the contempt was committed by an order or any other
formal charge requiring the respondent to show cause why he should not be punished for
contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out of or
are related to a principal action pending in the court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard and decided separately, unless the court in its
discretion orders the consolidation of the contempt charge and the principal action for joint
hearing and decision. (Emphases supplied.)
Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect
contempt proceeding are a) that it be initiated by way of a verified petition and b) that it should
fully comply with the requirements for filing initiatory pleadings for civil actions. In Regalado v.
Go,15 we held:
As explained by Justice Florenz Regalado, the filing of a verified petition that has complied
with the requirements for the filing of initiatory pleading, is mandatory x x x:
This new provision clarifies with a regularity norm the proper procedure for commencing
contempt proceedings. While such proceeding has been classified as special civil action under
the former Rules, the heterogenous practice tolerated by the courts, has been for any party to
file a motion without paying any docket or lawful fees therefore and without complying with the
requirements for initiatory pleadings, which is now required in the second paragraph of this
amended section.

xxxx
Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a
formal charge by the offended court, all charges shall be commenced by a verified petition with
full compliance with the requirements therefore and shall be disposed in accordance with the
second paragraph of this section.
xxxx
Even if the contempt proceedings stemmed from the main case over which the court
already acquired jurisdiction, the rules direct that the petition for contempt be treated
independently of the principal action. Consequently, the necessary prerequisites for the
filing of initiatory pleadings, such as the filing of a verified petition, attachment of a
certification on non-forum shopping, and the payment of the necessary docket fees,
must be faithfully observed.
xxxx
The provisions of the Rules are worded in very clear and categorical language. In case where
the indirect contempt charge is not initiated by the courts, the filing of a verified petition which
fulfills the requirements on initiatory pleadings is a prerequisite. Beyond question now is the
mandatory requirement of a verified petition in initiating an indirect contempt proceeding. Truly,
prior to the amendment of the 1997 Rules of Civil Procedure, mere motion without complying
with the requirements for initiatory pleadings was tolerated by the courts. At the onset of the
1997 Revised Rules of Civil Procedure, however, such practice can no longer be
countenanced.16 (Emphasis ours.)
The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by
respondent. The latter did not comply with any of the mandatory requirements of Section 4, Rule
71. He filed a mere Urgent Manifestation and Motion for Contempt of Court, and not a verified
petition. He likewise did not conform with the requirements for the filing of initiatory pleadings
such as the submission of a certification against forum shopping and the payment of docket
fees. Thus, his unverified motion should have been dismissed outright by the RTC.
It is noted though that, while at first the RTC overlooked the infirmities in respondent's unverified
motion for contempt, in the end, it dismissed the motion, albeit on substantive grounds. The
trouble is that, in the CA decision assailed herein, the appellate court committed the same
oversight by delving into the merits of respondent's unverified motion and granting the relief
sought therein. Thus, strictly speaking, the proper disposition of the present petition ought to be
the reversal of the CA decision and the dismissal of respondent's unverified motion for contempt
filed in the RTC for being in contravention of Section 4, Rule 71.
However, such simplistic disposition will not put an end to the dispute between the parties. A
seed of litigation has already been sown that will likely sprout into another case between them
at a later time. We refer to the question of whether the subject house should be included in the
public auction of the subject land. Until this question is finally resolved, there will be no end to
litigation between the parties. We must therefore deal with it squarely, here and now.
The RTC and the CA differed in their views on whether the public auction should include the
subject house. The RTC excluded the subject house because respondent never alleged its
existence in his complaint for partition or established his co-ownership thereof.17 On the other
hand, citing Articles 440,18 44519 and 44620 of the Civil Code, the CA held that as the deceased
owned the subject land, he also owned the subject house which is a mere accessory to the
land. Both properties form part of the estate of the deceased and are held in co-ownership by
his heirs, the parties herein. Hence, the CA concludes that any decision in the action for partition
of said estate should cover not just the subject land but also the subject house.21 The CA further
pointed out that petitioners themselves implicitly recognized the inclusion of the subject house in
the partition of the subject land when they proposed in their letter of August 5, 2004, the
following swapping-arrangement:
Sir:

Thank you very much for accommodating us even if we are only poor and simple people. We
are very much pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br.
254, Las Pias, on the sharing of one-third (1/3) each of a land covered by Transfer Certificate
of Title No. 383714 (84191) in Las Pias City.
However, to preserve the sanctity of our house which is our residence for more than twenty (20)
years, we wish to request that the 1/3 share of John Nabor C. Arriola be paid by the defendants
depending on the choice of the plaintiff between item (1) or item (2), detailed as follows:
(1) Swap with a 500-square meters [sic] lot located at Baras Rizal x x x.
(2) Cash of P205,700.00 x x x.
x x x x.22
We agree that the subject house is covered by the judgment of partition for reasons postulated
by the CA. We qualify, however, that this ruling does not necessarily countenance the immediate
and actual partition of the subject house by way of public auction in view of the suspensive
proscription imposed under Article 159 of The Family Code which will be discussed forthwith.
It is true that the existence of the subject house was not specifically alleged in the complaint for
partition. Such omission notwithstanding, the subject house is deemed part of the judgment of
partition for two compelling reasons.
First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is
deemed part of the subject land. The Court quotes with approval the ruling of the CA, to wit:
The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house
constructed on the subject lot was not alleged in the complaint and its ownership was not
passed upon during the trial on the merits, the court cannot include the house in its adjudication
of the subject lot. The court further stated that it cannot give a relief to[sic] which is not alleged
and prayed for in the complaint.
We are not persuaded.
To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule
on accession. In general, the right to accession is automatic (ipso jure), requiring no prior
act on the part of the owner or the principal. So that even if the improvements including
the house were not alleged in the complaint for partition, they are deemed included in the
lot on which they stand, following the principle of accession. Consequently, the lot
subject of judicial partition in this case includes the house which is permanently
attached thereto, otherwise, it would be absurd to divide the principal, i.e., the lot,
without dividing the house which is permanently attached thereto.23 (Emphasis supplied)
Second, respondent has repeatedly claimed that the subject house was built by the deceased.24
Petitioners never controverted such claim. There is then no dispute that the subject house is
part of the estate of the deceased; as such, it is owned in common by the latter's heirs, the
parties herein,25 any one of whom, under Article 49426 of the Civil Code, may, at any time,
demand the partition of the subject house.27 Therefore, respondent's recourse to the partition of
the subject house cannot be hindered, least of all by the mere technical omission of said
common property from the complaint for partition.
That said notwithstanding, we must emphasize that, while we treat the subject house as
part of the co-ownership of the parties, we stop short of authorizing its actual partition
by public auction at this time. It bears emphasis that an action for partition involves two
phases: first, the declaration of the existence of a state of co-ownership; and second, the actual
termination of that state of co-ownership through the segregation of the common property.28
What is settled thus far is only the fact that the subject house is under the co-ownership of the
parties, and therefore susceptible of partition among them.
Whether the subject house should be sold at public auction as ordered by the RTC is an entirely
different matter, depending on the exact nature of the subject house.
Respondent claims that the subject house was built by decedent Fidel on his exclusive
property.29 Petitioners add that said house has been their residence for 20 years.30 Taken

together, these averments on record establish that the subject house is a family home within the
contemplation of the provisions of The Family Code, particularly:
Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried
head of a family, is the dwelling house where they and their family reside, and the land on which
it is situated.
Article 153. The family home is deemed constituted on a house and lot from the time it is
occupied as a family residence. From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home continues to be such and is exempt from
execution, forced sale or attachment except as hereinafter provided and to the extent of the
value allowed by law. (Emphasis supplied.)
One significant innovation introduced by The Family Code is the automatic constitution of the
family home from the time of its occupation as a family residence, without need anymore for the
judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil
Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153 specifically extend
the scope of the family home not just to the dwelling structure in which the family resides but
also to the lot on which it stands. Thus, applying these concepts, the subject house as well as
the specific portion of the subject land on which it stands are deemed constituted as a family
home by the deceased and petitioner Vilma from the moment they began occupying the same
as a family residence 20 years back.31
It being settled that the subject house (and the subject lot on which it stands) is the family home
of the deceased and his heirs, the same is shielded from immediate partition under Article 159
of The Family Code, viz:
Article 159. The family home shall continue despite the death of one or both spouses or of the
unmarried head of the family for a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless the court finds compelling
reasons therefor. This rule shall apply regardless of whoever owns the property or
constituted the family home. (Emphasis supplied.)
The purpose of Article 159 is to avert the disintegration of the family unit following the death of
its head. To this end, it preserves the family home as the physical symbol of family love, security
and unity by imposing the following restrictions on its partition: first, that the heirs cannot extrajudicially partition it for a period of 10 years from the death of one or both spouses or of the
unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing
therein; and second, that the heirs cannot judicially partition it during the aforesaid periods
unless the court finds compelling reasons therefor. No compelling reason has been alleged by
the parties; nor has the RTC found any compelling reason to order the partition of the family
home, either by physical segregation or assignment to any of the heirs or through auction sale
as suggested by the parties.
More importantly, Article 159 imposes the proscription against the immediate partition of the
family home regardless of its ownership. This signifies that even if the family home has passed
by succession to the co-ownership of the heirs, or has been willed to any one of them, this fact
alone cannot transform the family home into an ordinary property, much less dispel the
protection cast upon it by the law. The rights of the individual co-owner or owner of the family
home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family
home.
Set against the foregoing rules, the family home -- consisting of the subject house and lot on
which it stands -- cannot be partitioned at this time, even if it has passed to the co-ownership of
his heirs, the parties herein. Decedent Fidel died on March 10, 2003.32 Thus, for 10 years from
said date or until March 10, 2013, or for a longer period, if there is still a minor beneficiary
residing therein, the family home he constituted cannot be partitioned, much less when no
compelling reason exists for the court to otherwise set aside the restriction and order the
partition of the property.

The Court ruled in Honrado v. Court of Appeals33 that a claim for exception from execution or
forced sale under Article 153 should be set up and proved to the Sheriff before the sale of the
property at public auction. Herein petitioners timely objected to the inclusion of the subject
house although for a different reason.
To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of the
judgment of co-ownership and partition. The same evidence also establishes that the subject
house and the portion of the subject land on which it is standing have been constituted as the
family home of decedent Fidel and his heirs. Consequently, its actual and immediate partition
cannot be sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola, or
until March 10, 2013.
It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public
auction of the portion of the subject land covered by TCT No. 383714, which falls outside the
specific area of the family home.
WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and
April 30, 2007 Resolution of the Court of Appeals are MODIFIED in that the house standing on
the land covered by Transfer Certificate of Title No. 383714 is DECLARED part of the coownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola
but EXEMPTED from partition by public auction within the period provided for in Article 159 of
the Family Code.
No costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
*

RENATO C. CORONA
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice
RUBEN T. REYES

Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
26.

Republic of the Philippines

SUPREME COURT
THIRD DIVISION
G.R. No. 153798 September 2, 2005
BELEN SAGAD ANGELES, Petitioners,
vs.
ALELI "CORAZON" ANGELES MAGLAYA, Respondent.
DECISION
GARCIA, J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Belen
Sagad Angeles seeks to set aside the Decision dated May 29, 20021 of the Court of Appeals in
CA G.R. CV No. 66037, reversing an earlier Order of the Regional Trial Court at Caloocan City
which dismissed the petition for the settlement of the intestate estate of Francisco Angeles,
thereat commenced by the herein respondent Aleli "Corazon" Angeles-Maglaya.
The legal dispute between the parties started when, on March 25, 1998, in the Regional Trial
Court (RTC) at Caloocan City, respondent filed a petition2 for letters of administration and her
appointment as administratrix of the intestate estate of Francisco M. Angeles (Francisco,
hereinafter). In the petition, docketed as Special Proceedings No. C-2140 and raffled to Branch
120 of the court, respondent alleged, among other things, the following:
1. That Francisco, a resident of 71 B. Serrano St., Grace Park, Caloocan, died intestate on
January 21, 1998 in the City of Manila, leaving behind four (4) parcels of land and a building,
among other valuable properties;
2. That there is a need to appoint an administrator of Franciscos estate;
3. That she (respondent) is the sole legitimate child of the deceased and Genoveva Mercado,
and, together with petitioner, Belen S. Angeles, decedents wife by his second marriage, are the
surviving heirs of the decedent; and
4. That she has all the qualifications and none of the disqualifications required of an
administrator.
Petitioner opposed the basic petition and prayed that she, instead of respondent, be made the
administratrix of Franciscos estate.3 In support of her opposition and plea, petitioner alleged
having married Francisco on August 7, 1948 before Judge Lucio M. Tianco of the Municipal
Court of Rizal, a union which was ratified two (2) months later in religious rites at the Our Lady
of Grace Parish in Caloocan City, and that Francisco represented in their marriage contract that
he was single at that time. Petitioner also averred that respondent could not be the daughter of
Francisco for, although she was recorded as Franciscos legitimate daughter, the corresponding
birth certificate was not signed by him. Pressing on, petitioner further alleged that respondent,
despite her claim of being the legitimate child of Francisco and Genoveva Mercado, has not
presented the marriage contract between her supposed parents or produced any acceptable
document to prove such union. And evidently to debunk respondents claim of being the only
child of Francisco, petitioner likewise averred that she and Francisco had, during their marriage,
legally adopted Concesa A. Yamat, et al. Petitioner thus urged that she, being the surviving
spouse of Francisco, be declared as possessed of the superior right to the administration of his
estate.
In her reply to opposition, respondent alleged, inter alia, that per certification of the appropriate
offices, the January to December 1938 records of marriages of the Civil Registrar of Bacolor,
Pampanga where the alleged 1938 Francisco-Genoveva wedding took place, were destroyed.
In the same reply, respondent dismissed as of little consequence the adoption adverted to
owing to her having interposed with the Court of Appeals a petition to nullify the decree of
adoption entered by the RTC at Caloocan.4
Issues having been joined, trial ensued. Respondent, as petitioner a quo, commenced the
presentation of her evidence by taking the witness stand. She testified having been born on

November 20, 1939 as the legitimate child of Francisco M. Angeles and Genoveva Mercado,
who died in January 1988.5 She also testified having been in open and continuous possession
of the status of a legitimate child. Four (4) other witnesses testified on her behalf, namely:
Tomas Angeles,6 Francisco Yaya,7 Jose O. Carreon8 and Paulita Angeles de la Cruz.9
Respondent also offered in evidence her birth certificate which contained an entry stating that
she was born at the Mary Johnston Hospital, Tondo, Manila, to Francisco Angeles and
Genoveva Mercado and whereon the handwritten word "Yes" appears on the space below the
question "Legitimate? (Legitimo?)"; pictures taken during respondents wedding as bride to Atty.
Guillermo T. Maglaya; and a copy of her marriage contract. Likewise offered were her scholastic
and government service records.
After respondent rested her case following her formal offer of exhibits, petitioner filed a "Motion
to Dismiss" under Section 1(g), Rule 16 of the Rules of Court. In it, she prayed for the dismissal
of the petition for letters of administration on the ground that the petition failed "to state or prove
a cause of action", it being her stated position that "[P]etitioner [Corzaon], by her evidence,
failed to establish her filiation vis--vis the decedent, i.e., that she is in fact a legitimate child of
Francisco M. Angeles."10
To the motion to dismiss, respondent interposed an opposition, followed by petitioners reply, to
which respondent countered with a rejoinder.
Eventually, in an Order dated July 12, 1999,11 the trial court, on its finding that respondent failed
to prove her filiation as legitimate child of Francisco, dismissed the petition, thus:
WHEREFORE, the instant petition is hereby ordered DISMISSED for failure of the [respondent]
to state a cause of action in accordance with Section 1(g) of Rule 16 of the 1997 Rules of Civil
of Procedure. (Word in bracket added]
Respondent then moved for reconsideration, which motion was denied by the trial court in its
Order of December 17, 1999.12 Therefrom, respondent went on appeal to the Court of Appeals
where her recourse was docketed as CA-G.R. CV No. 66037.
As stated at the threshold hereof, the Court of Appeals, in its assailed Decision dated May 29,
2002,13 reversed and set aside the trial courts order of dismissal and directed it to appoint
respondent as administratrix of the estate of Francisco, to wit:
WHEREFORE, the appealed order of dismissal is REVERSED. The Trial Court is hereby
ordered to appoint petitioner-appellant Aleli "Corazon" Angeles as administratrix of the intestate
estate of Francisco Angeles.
SO ORDERED.
The appellate court predicated its ruling on the interplay of the following main premises:
1. Petitioners Motion to Dismiss filed with the trial court, albeit premised on the alleged failure of
the underlying petition for letter of administration to state or prove a cause of action, actually
partakes of a demurrer to evidence under Section 1 of Rule 33;14
2. Petitioners motion being a demurer, it follows that she thereby waived her right to present
opposing evidence to rebut respondents testimonial and documentary evidence; and
3. Respondent has sufficiently established her legitimate filiation with the deceased Francisco.
Hence, petitioners instant petition for review on certiorari, on the submission that the Court of
Appeals erred: (1) in reversing the trial courts order of dismissal;15 (2) in treating her motion to
dismiss as a demurrer to evidence; (3) in holding that respondent is a legitimate daughter of
Francisco; and (4) in decreeing respondents appointment as administratrix of Franciscos
intestate estate.
We resolve to grant the petition.
The principal issue tendered in this case boils down to the question of whether or not
respondent is the legitimate child of decedent Francisco M. Angeles and Genoveva Mercado.
The Court of Appeals resolved the issue in the affirmative and, on the basis of such
determination, ordered the trial court to appoint respondent as administratrix of Franciscos
estate.

We are unable to lend concurrence to the appellate courts conclusion on the legitimate status
of respondent, or, to be precise, on her legitimate filiation to the decedent. A legitimate child is a
product of, and, therefore, implies a valid and lawful marriage. Remove the element of lawful
union and there is strictly no legitimate filiation between parents and child. Article 164 of the
Family Code cannot be more emphatic on the matter: "Children conceived or born during the
marriage of the parents are legitimate."
In finding for respondent, the Court of Appeals, citing and extensibly quoting from Tison vs.
Court of Appeals,16 stated that since petitioner "opted not to present any contrary evidence", the
presumption on respondents legitimacy stands "unrebutted."17
Following is an excerpt from Tison:
It seems that both the court a quo and respondent appellate court have regrettably overlooked
the universally recognized presumption on legitimacy. There is no presumption of the law more
firmly established and founded on sounder morality and more convincing than the presumption
that children born in wedlock are legitimate. And well-settled is the rule that the issue of
legitimacy cannot be attacked collaterally.
The rationale for this rule has been explained in this wise:
The presumption of legitimacy in the Family Code . . .
actually fixes a status for the child born in wedlock, and that civil status cannot be attacked
collaterally. xxx
xxx xxx xxx
Upon the expiration of the periods provided in Article 170 [of the Family Code], the action to
impugn the legitimacy of a child can no longer be bought. The status conferred by the
presumption, therefore, becomes fixed, and can no longer be questioned. The obvious intention
of the law is to prevent the status of a child born in wedlock from being in a state of
uncertainty. It also aims to force early action to settle any doubt as to the paternity of such child
so that the evidence material to the matter . . . may still be easily available.
xxxxxxxxx
Only the husband can contest the legitimacy of a child born to his wife . . . .(Words in bracket
added; Emphasis ours)
Contextually, the correct lesson of Tison, which the appellate court evidently misapplied, is that:
(a) a child is presumed legitimate only if conceived or born in wedlock; and (b) the presumptive
legitimacy of such child cannot be attacked collaterally.
A party in whose favor the legal presumption exists may rely on and invoke such legal
presumption to establish a fact in issue. He need not introduce evidence to prove that fact. 18
For, a presumption is prima facie proof of the fact presumed. However, it cannot be overemphasized, that while a fact thus prima facie established by legal presumption shall, unless
overthrown, stand as proved,19 the presumption of legitimacy under Article 164 of the Family
Code20 may be availed only upon convincing proof of the factual basis therefor, i.e., that the
childs parents were legally married and that his/her conception or birth occurred during the
subsistence of that marriage. Else, the presumption of law that a child is legitimate does not
arise.
In the case at bench, the Court of Appeals, in its decision under review, did not categorically
state from what facts established during the trial was the presumption of respondents supposed
legitimacy arose. But even if perhaps it wanted to, it could not have possibly done so. For, save
for respondents gratuitous assertion and an entry in her certificate of birth, there is absolutely
no proof of the decedents marriage to respondents mother, Genoveva Mercado. To stress, no
marriage certificate or marriage contract doubtless the best evidence of Franciscos and
Genovevas marriage, if one had been solemnized21 was offered in evidence. No priest, judge,
mayor, or other solemnizing authority was called to the witness box to declare that he
solemnized the marriage between the two. None of the four (4) witnesses respondent presented
could say anything about, let alone affirm, that supposed marriage. At best, their testimonies

proved that respondent was Franciscos daughter. For example, Tomas Angeles and Paulita
Angeles de la Cruz testified that they know respondent to be their cousin because his (Tomas)
father and her (Paulitas) mother, who are both Franciscos siblings, told them so. 22 And one
Jose Carreon would testify seeing respondent in 1948 in Franciscos house in Caloocan, the
same Francisco who used to court Genoveva before the war.23 In all, no evidence whatsoever
was presented of the execution of the Francisco Angeles-Genoveva Mercado marriage contract;
when and where their marriage was solemnized; the identity of the solemnizing officer; the
persons present, and like significant details.
While perhaps not determinative of the issue of the existence of marriage between Francisco
and Genoveva, we can even go to the extent of saying that respondent has not even presented
a witness to testify that her putative parents really held themselves out to the public as manand-wife. Clearly, therefore, the Court of Appeals erred in crediting respondent with the legal
presumption of legitimacy which, as above explained, should flow from a lawful marriage
between Francisco and Genevova. To reiterate, absent such a marriage, as here, there is no
presumption of legitimacy and, therefore, there was really nothing for petitioner to rebut.
Parenthetically, for all her unyielding stance that her mother and Francisco Angeles were
married in 1938, respondent never, thru the years, even question what would necessarily be a
bigamous Francisco-Belen Sagad marriage. Ironical as it may seem, respondent herself
undermined her very own case. As it were, she made certain judicial admission negating her
own assertion as well as the appellate courts conclusion - that Francisco was legally married
to Genoveva. As may be recalled, respondent had declared that her mother Genoveva died in
1988, implying, quite clearly, that when Francisco contracted marriage with petitioner Belen S.
Angeles in 1948, Genoveva and Francisco were already "spouses". Now, then, if, as respondent
maintained despite utter lack of evidence, that Genoveva Mercado and Francisco were married
in 1938, it follows that the marriage of Francisco to petitioner Belen Angeles in 1948, or prior to
Genovevas death, would necessarily have to be bigamous, hence void, 24 in which case
petitioner could not be, as respondent alleged in her petition for letters of administration, a
"surviving spouse" of the decedent. We quote the pertinent allegation:
4. The surviving heirs of decedent are the petitioner [Corazon] herself who is 58 years old, and
BELEN S. Angeles, the surviving spouse of deceased Francisco M. Angeles by his second
marriage, who is about 77 years old . . . .YEARS OLD . . . " (Emphasis and word in bracket
added)
We can concede, because Article 172 of the Family Code appears to say so, that the legitimate
filiation of a child can be established by any of the modes therein defined even without direct
evidence of the marriage of his/her supposed parents. Said article 172 reads:
Art. 172. The filiation of legitimate children is established by any of the following:
1. The record of birth appearing in the civil register or a final judgments; or
2. An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1. The open and continuous possession of the status of a legitimate child; or
2. Any other means allowed by the Rules of Court and special laws.
Here, respondent presented, in support of her claim of legitimacy, a copy of her Birth Certificate
dated November 23, 1939 issued by the Civil Registrar of the City of Manila (Exh. "E"). In it, her
birth was recorded as the legitimate child of Francisco Angeles and Genoveva Mercado. And
the word "married" is written in the certificate to indicate the union of Francisco and Genoveva.
Petitioner, however, contends, citing jurisprudence, that "[I]t was error for the Court of Appeals
to have ruled . . . that [respondents] Birth Certificate indubitably establishes that she is the
legitimate daughter of Francisco and Genoveva who are legally married".
The contention commends itself for concurrence. The reason is as simple as it is elementary:
the Birth Certificate presented was not signed by Francisco against whom legitimate filiation is

asserted. Not even by Genoveva. It was signed by the attending physician, one Rebecca De
Guzman, who certified to having attended the birth of a child. Such certificate, albeit considered
a public record of a private document is, under Section 23, Rule 132 of the Rules of Court,
evidence only of the fact which gave rise to its execution: the fact of birth of a child. 25
Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity
and as an instrument of recognition, must be signed by the father and mother jointly, or by the
mother alone if the father refuses.26 Dr. Arturo Tolentino, commenting on the probative value of
the entries in a certificate of birth, wrote:
xxx if the alleged father did not intervene in the making of the birth certificate, the putting of his
name by the mother or doctor or registrar is void; the signature of the alleged father is
necessary.27
The conclusion reached by the Court of Appeals that the Birth Certificate of respondent,
unsigned as it were by Francisco and Genoveva, establishes and "indubitably" at that - not
only respondents filiation to Francisco but even her being a legitimate daughter of Francisco
and Genoveva, taxes credulity to the limit. In a very real sense, the appellate court regarded
such certificate as defining proof of filiation, and not just filiation but of legitimate filiation, by
inferring from it that Francisco and Genoveva are legally married. In the apt words of petitioner,
the appellate court, out of a Birth Certificate signed by a physician who merely certified having
attended "the birth of a child who was born alive at 3:50 P.M. ", created " a marriage that of
Francisco and Genoveva, and filiation (that said child) is the daughter of Francisco"28
It cannot be over-emphasized that the legitimate filiation of a child is a matter fixed by law
itself.29 It cannot, as the decision under review seems to suggest, be made dependent on the
declaration of the attending physician or midwife, or that of the mother of the newborn child. For
then, an unwed mother, with or without the participation of a doctor or midwife, could veritably
invest legitimate status to her offspring through the simple expedient of writing the putative
fathers name in the appropriate space in the birth certificate. A long time past, this Court
cautioned against according a similar unsigned birth certificate prima facie evidentiary value of
filiation:
Give this certificate evidential relevancy, and we thereby pave the way for any scheming
unmarried mother to extort money for her child (and herself) from any eligible bachelor or
affluent pater familias. How? She simply causes the midwife to state in the birth certificate that
the newborn babe is her legitimate offspring with that individual and the certificate will be
accepted for registration . . . . And any lawyer with sufficient imagination will realize the exciting
possibilities from such mischief of such prima facie evidence when and if the "father" dies in
ignorance of the fraudulent design xxx30
Just like her Birth Certificate, respondent can hardly derive comfort from her marriage contract
to Atty. Maglaya and from her student and government records which indicated or purported to
show that Francisco Angeles is her father. The same holds true for her wedding pictures which
showed Francisco giving respondents hands in marriage. These papers or documents,
unsigned as they are by Francisco or the execution of which he had no part, are not sufficient
evidence of filiation or recognition.31 And needless to stress, they cannot support a finding of the
legitimate union of Francisco and Genoveva.
The argument may be advanced that the aforesaid wedding pictures, the school and service
records and the testimony of respondents witnesses lend support to her claim of enjoying open
and continuous possession of the status of a child of Francisco. The Court can even concede
that respondent may have been the natural child of Francisco with Genoveva. Unfortunately,
however, that angle is not an, or at issue in the case before us. For, respondent peremptorily
predicated her petition for letters of administration on her being a legitimate child of Francisco
who was legally married to her mother, Genoveva, propositions which we have earlier refuted
herein.
If on the foregoing score alone, this Court could very well end this disposition were it not for

another compelling consideration which petitioner has raised and which we presently take
judicially notice of.
As may be recalled, respondent, during the pendency of the proceedings at the trial court, filed
with the Court of Appeals a petition for the annulment of the decision of the RTC Caloocan
granting the petition of spouses Francisco Angeles and petitioner Belen S. Angeles for the
adoption of Concesa A. Yamat and two others. In that petition, docketed with the appellate court
as CA-G.R. SP No. 47832 and captioned "Aleli Corazon Angeles Maglaya vs. Hon Jaime T.
Hamoy, Consesa A. Yamat, Teodora A. Santos, Franco Angeles and Belen S. Angeles",
respondent alleged that as legitimate daughter of Francisco, she should have been notified of
the adoption proceedings.
Following a legal skirmish, the Court of Appeals referred the aforementioned annulment case to
RTC, Caloocan for reception of evidence. Eventually, in a Decision32 dated December 17, 2003,
the Court of Appeals dismissed CA-G.R. SP No. 47832 on the ground, inter alia, that herein
respondent is not, contrary to her claim, a "legitimate daughter" of Francisco, nor "a child of a
lawful wedlock between Francisco M. Angeles and Genoveva Y. Mercado". Wrote the appellate
court in that case:
Petitioner [Aleli "Corazon Maglaya] belabors with repetitious persistence the argument that she
is a legitimate child or the only daughter of Francisco M. Angeles and Genoveva Y.
Mercado . . . .
In the case at bench, other than the self-serving declaration of the petitioner, there is nothing in
the record to support petitioners claim that she is indeed a legitimate child of the late Francisco
M. Angeles and Genoveva Y. Mercado. xxx In other words, Francisco M. Angeles was never
married before or at anytime prior to his marriage to Belen Sagad, contrary to the claim of
petitioner that Francisco M. Angeles and Genoveva Y. Mercado were married in 1938
While petitioner may have submitted certifications to the effect that the records of marriages
during the war years . . . were totally destroyed, no secondary evidence was presented by
petitioner to prove the existence of the marriage between Francisco M. Angeles and Genoveva
Y. Mercado, even as no witness was presented to confirm the celebration of such marriage . . . .
Petitioner presented pictures. x x x However, it is already settled law that photographs are not
sufficient evidence of filiation or acknowledgment.
To be sure, very little comfort is provided by petitioners birth certificate and even her marriage
contract.. . . Reason: These documents were not signed by Francisco . . . . Equally
inconsequential are petitioners school records . . . . all these lacked the signatures of both
Francisco and Genoveva . . . .
xxx xxx xxx
Having failed to prove that she is the legitimate daughter or acknowledged natural child of the
late Francisco M. Angeles, petitioner cannot be a real party in interest in the adoption
proceedings, as her consent thereto is not essential or required. (Emphasis in the original;
words in bracket added)
Significantly, the aforesaid December 17, 2003 Decision of the appellate court in CA-G.R. SP
No.47832 was effectively affirmed by this Court via its Resolution dated August 9, 2004 in G.R.
No. 163124, denying Aleli "Corazon" Maglayas petition for Review on Certiorari, 33 and
Resolution dated October 20, 2004,34 denying with "FINALITY" her motion for reconsideration.
Another Resolution dated January 24, 2005 resolved to "NOTE WITHOUT ACTION" Maglayas
second motion for reconsideration.
In the light of the ruling of the Court of Appeals in CA-G.R. SP No. 47832, as affirmed with
finality by this Court in G.R. No. 163124, there can be no serious objection to applying in this
case the rule on conclusiveness of judgment,35 one of two (2) concepts embraced in the res
judicata principle. Following the rule on conclusiveness of judgment, herein respondent is
precluded from claiming that she is the legitimate daughter of Francisco and Genoveva
Mercado. In fine, the issue of herein respondents legitimate filiation to Francisco and the latters

marriage to Genoveva, having been judicially determined in a final judgment by a court of

competent jurisdiction, has thereby become res judicata and may not again be resurrected or
litigated between herein petitioner and respondent or their privies in a subsequent action,
regardless of the form of the latter.36
Lest it be overlooked, the same ruling of the appellate court in CA-G.R. SP No. 47832, as
sustained by this Court in G.R. No. 163124, virtually confirms the ratio of the trial courts order
of dismissal in Special Proceedings (SP) No. C-2140, i.e, that respondent failed to establish that
she is in fact a legitimate child of Francisco. Accordingly, the question of whether or not the
Motion to Dismiss37 interposed by herein petitioner, as respondent in SP No. C-2140, is in the
nature of a demurer to evidence has become moot and academic. It need not detain us any
minute further.
Finally, it should be noted that on the matter of appointment of administrator of the estate of the
deceased, the surviving spouse is preferred over the next of kin of the decedent. 38 When the law
speaks of "next of kin", the reference is to those who are entitled, under the statute of
distribution, to the decedents property;39 one whose relationship is such that he is entitled to
share in the estate as distributed,40 or, in short, an heir. In resolving, therefore, the issue of
whether an applicant for letters of administration is a next of kin or an heir of the decedent, the
probate court perforce has to determine and pass upon the issue of filiation. A separate action
will only result in a multiplicity of suits. Upon this consideration, the trial court acted within
bounds when it looked into and pass upon the claimed relationship of respondent to the late
Francisco Angeles.
WHEREFORE, the herein assailed decision of the Court of Appeals is hereby REVERSED and
SET ASIDE, and the order of the trial court dismissing Special Proceedings No. C-2140
REINSTATED.
No costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman
ANGELINA SANDOVAL-GUTIERREZ
RENATO C. CORONA
Associate Justice
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
ATTESTATION
I attest that the conclusions in the above decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Associate Justice
Chairman, Third Division
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it
is hereby certified that the conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.
HILARIO G. DAVIDE, JR.
Chief Justice
27.

28.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 105625 January 24, 1994
MARISSA BENITEZ-BADUA, petitioner,
vs.
COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND FEODOR BENITEZ AGUILAR,
respondents.
Reynaldo M. Alcantara for petitioner.
Augustus Cesar E. Azura for private respondents.
PUNO, J.:
This is a petition for review of the Decision of the 12th Division of the Court of Appeals in CAG.R. No. CV No. 30862 dated May 29, 1992. 1
The facts show that the spouses Vicente Benitez and Isabel Chipongian owned various
properties especially in Laguna. Isabel died on April 25, 1982. Vicente followed her in the grave
on November 13, 1989. He died intestate.
The fight for administration of Vicente's estate ensued. On September 24, 1990, private
respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar (Vicente's sister and nephew,
respectively) instituted Sp. Proc. No. 797 (90) before the RTC of San Pablo City, 4th Judicial
Region, Br. 30. They prayed for the issuance of letters of administration of Vicente's estate in
favor of private respondent Aguilar. They alleged, inter alia, viz.:
xxx xxx xxx
4. The decedent is survived by no other heirs or relatives be they ascendants or descendants,
whether legitimate, illegitimate or legally adopted; despite claims or representation to the
contrary, petitioners can well and truly establish, given the chance to do so, that said decedent
and his spouse Isabel Chipongian who pre-deceased him, and whose estate had earlier been
settled extra-judicial, were without issue and/or without descendants whatsoever, and that one
Marissa Benitez-Badua who was raised and cared by them since childhood is, in fact, not
related to them by blood, nor legally adopted, and is therefore not a legal heir; . . .
On November 2, 1990, petitioner opposed the petition. She alleged that she is the sole heir of
the deceased Vicente Benitez and capable of administering his estate. The parties further
exchanged reply and rejoinder to buttress their legal postures.
The trial court then received evidence on the issue of petitioner's heirship to the estate of the
deceased. Petitioner tried to prove that she is the only legitimate child of the spouses Vicente
Benitez and Isabel Chipongian. She submitted documentary evidence, among others: (1) her
Certificate of Live Birth (Exh. 3); (2) Baptismal Certificate (Exh. 4); (3) Income Tax Returns and
Information Sheet for Membership with the GSIS of the late Vicente naming her as his daughter
(Exhs. 10 to 21); and (4) School Records (Exhs. 5 & 6). She also testified that the said spouses
reared an continuously treated her as their legitimate daughter. On the other hand, private
respondents tried to prove, mostly thru testimonial evidence, that the said spouses failed to
beget a child during their marriage; that the late Isabel, then thirty six (36) years of age, was
even referred to Dr. Constantino Manahan, a noted obstetrician-gynecologist, for treatment.
Their primary witness, Victoria Benitez-Lirio, elder sister of the late Vicente, then 77 years of
age, 2 categorically declared that petitioner was not the biological child of the said spouses who
were unable to physically procreate.
On December 17, 1990, the trial court decided in favor of the petitioner. It dismissed the private
respondents petition for letters and administration and declared petitioner as the legitimate

daughter and sole heir of the spouses Vicente O. Benitez and Isabel Chipongian. The trial court
relied on Articles 166 and 170 of the Family Code.
On appeal, however, the Decision of the trial court was reversed on May 29, 1992 by the 17th
Division of the Court of Appeals. The dispositive portion of the Decision of the appellate court
states:
WHEREFORE, the decision appealed from herein is REVERSED and another one entered
declaring that appellee Marissa Benitez is not the biological daughter or child by nature of the
spouse Vicente O. Benitez and Isabel Chipongian and, therefore, not a legal heir of the
deceased Vicente O. Benitez. Her opposition to the petition for the appointment of an
administrator of the intestate of the deceased Vicente O. Benitez is, consequently, DENIED;
said petition and the proceedings already conducted therein reinstated; and the lower court is
directed to proceed with the hearing of Special proceeding No. SP-797 (90) in accordance with
law and the Rules.
Costs against appellee.
SO ORDERED.
In juxtaposition, the appellate court held that the trial court erred in applying Articles 166 and
170 of the Family Code.
In this petition for review, petitioner contends:
1. The Honorable Court of Appeals committed error of law and misapprehension of facts when it
failed to apply the provisions, more particularly, Arts. 164, 166, 170 and 171 of the Family Code
in this case and in adopting and upholding private respondent's theory that the instant case
does not involve an action to impugn the legitimacy of a child;
2. Assuming arguendo that private respondents can question or impugn directly or indirectly, the
legitimacy of Marissa's birth, still the respondent appellate Court committed grave abuse of
discretion when it gave more weight to the testimonial evidence of witnesses of private
respondents whose credibility and demeanor have not convinced the trial court of the truth and
sincerity thereof, than the documentary and testimonial evidence of the now petitioner Marissa
Benitez-Badua;
3. The Honorable Court of Appeals has decided the case in a way not in accord with law or with
applicable decisions of the supreme Court, more particularly, on prescription or laches.
We find no merit to the petition.
Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171 of the Family Code
to the case at bench cannot be sustained. These articles provide:
Art. 164. Children conceived or born during the marriage of the parents are legitimate.
Children conceived as a result of artificial insemination of the wife with sperm of the husband or
that of a donor or both are likewise legitimate children of the husband and his wife, provided,
that both of them authorized or ratified such insemination in a written instrument executed and
signed by them before the birth of the child. The instrument shall be recorded in the civil registry
together with the birth certificate of the child.
Art. 166. Legitimacy of child may be impugned only on the following grounds:
1) That it was physically impossible for the husband to have sexual intercourse with his wife
within the first 120 days of the 300 days which immediately preceded the birth of the child
because of:
a) the physical incapacity of the husband to have sexual intercourse with his wife;
b) the fact that the husband and wife were living separately in such a way that sexual
intercourse was not possible; or
c) serious illness of the husband, which absolutely prevented sexual intercourse.
2) That it is proved that for biological or other scientific reasons, the child could not have been
that of the husband except in the instance provided in the second paragraph of Article 164; or
3) That in case of children conceived through artificial insemination, the written authorization or
ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue

influence.
Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from
the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case,
any of his heirs, should reside in the city or municipality where the birth took place or was
recorded.
If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in
the first paragraph or where it was recorded, the period shall be two years if they should reside
in the Philippines; and three years if abroad. If the birth of the child has been concealed from or
was unknown to the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth, which ever is earlier.
Art. 171. The heirs of the husband may impugn the filiation of the child within the period
prescribed in the preceding Article only in the following case:
1) If the husband should die before the expiration of the period fixed for bringing his action;
2) If he should die after the filing of the complaint, without having desisted therefrom; or
3) If the child was born after the death of the husband.
A careful reading of the above articles will show that they do not contemplate a situation, like in
the instant case, where a child is alleged not to be the child of nature or biological child of a
certain couple. Rather, these articles govern a situation where a husband (or his heirs) denies
as his own a child of his wife. Thus, under Article 166, it is the husband who can impugn the
legitimacy of said child by proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days which immediately preceded
the birth of the child; (2) that for biological or other scientific reasons, the child could not have
been his child; (3) that in case of children conceived through artificial insemination, the written
authorization or ratification by either parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce this reading as they speak of the
prescriptive period within which the husband or any of his heirs should file the action impugning
the legitimacy of said child. Doubtless then, the appellate court did not err when it refused to
apply these articles to the case at bench. For the case at bench is not one where the heirs of
the late Vicente are contending that petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs.
Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is apropos,
viz.:
Petitioners' recourse to Article 263 of the New Civil Code [now Article 170 of the Family Code] is
not well-taken. This legal provision refers to an action to impugn legitimacy. It is inapplicable to
this case because this is not an action to impugn the legitimacy of a child, but an action of the
private respondents to claim their inheritance as legal heirs of their childless deceased aunt.
They do not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased,
but that she is not the decedent's child at all. Being neither legally adopted child, nor an
acknowledged natural child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a
legal heir of the deceased.
We now come to the factual finding of the appellate court that petitioner was not the biological
child or child of nature of the spouses Vicente Benitez and Isabel Chipongian. The appellate
court exhaustively dissected the evidence of the parties as follows:
. . . And on this issue, we are constrained to say that appellee's evidence is utterly insufficient to
establish her biological and blood kinship with the aforesaid spouses, while the evidence on
record is strong and convincing that she is not, but that said couple being childless and desirous
as they were of having a child, the late Vicente O. Benitez took Marissa from somewhere while
still a baby, and without he and his wife's legally adopting her treated, cared for, reared,
considered, and loved her as their own true child, giving her the status as not so, such that she
herself had believed that she was really their daughter and entitled to inherit from them as such.
The strong and convincing evidence referred to us are the following:

First, the evidence is very cogent and clear that Isabel Chipongian never became pregnant and,
therefore, never delivered a child. Isabel's own only brother and sibling, Dr. Lino Chipongian,
admitted that his sister had already been married for ten years and was already about 36 years
old and still she has not begotten or still could not bear a child, so that he even had to refer her
to the late Dr. Constantino Manahan, a well-known and eminent obstetrician-gynecologist and
the OB of his mother and wife, who treated his sister for a number of years. There is likewise
the testimony of the elder sister of the deceased Vicente O. Benitez, Victoria Benitez Lirio, who
then, being a teacher, helped him (he being the only boy and the youngest of the children of
their widowed mother) through law school, and whom Vicente and his wife highly respected and
consulted on family matters, that her brother Vicente and his wife Isabel being childless, they
wanted to adopt her youngest daughter and when she refused, they looked for a baby to adopt
elsewhere, that Vicente found two baby boys but Isabel wanted a baby girl as she feared a boy
might grow up unruly and uncontrollable, and that Vicente finally brought home a baby girl and
told his elder sister Victoria he would register the baby as his and his wife's child. Victoria
Benitez Lirio was already 77 years old and too weak to travel and come to court in San Pablo
City, so that the taking of her testimony by the presiding judge of the lower court had to be held
at her residence in Paraaque, MM. Considering, her advanced age and weak physical
condition at the time she testified in this case, Victoria Benitez Lirio's testimony is highly
trustworthy and credible, for as one who may be called by her Creator at any time, she would
hardly be interested in material things anymore and can be expected not to lie, especially under
her oath as a witness. There were also several disinterested neighbors of the couple Vicente O.
Benitez and Isabel Chipongian in Nagcarlan, Laguna (Sergio Fule, Cecilia Coronado, and
Benjamin C. Asendido) who testified in this case and declared that they used to see Isabel
almost everyday especially as she had drugstore in the ground floor of her house, but they
never saw her to have been pregnant, in 1954 (the year appellee Marissa Benitez was allegedly
born, according to her birth certificate Exh. "3") or at any time at all, and that it is also true with
the rest of their townmates. Ressureccion A. Tuico, Isabel Chipongian's personal beautician who
used to set her hair once a week at her (Isabel's) residence, likewise declared that she did not
see Isabel ever become pregnant, that she knows that Isabel never delivered a baby, and that
when she saw the baby Marissa in her crib one day she went to Isabel's house to set the latter's
hair, she was surprised and asked the latter where the baby came from, and "she told me that
the child was brought by Atty. Benitez and told me not to tell about it" (p. 10, tsn, Nov. 29, 1990).
The facts of a woman's becoming pregnant and growing big with child, as well as her delivering
a baby, are matters that cannot be hidden from the public eye, and so is the fact that a woman
never became pregnant and could not have, therefore, delivered a baby at all. Hence, if she is
suddenly seen mothering and caring for a baby as if it were her own, especially at the rather late
age of 36 (the age of Isabel Chipongian when appellee Marissa Benitez was allegedly born), we
can be sure that she is not the true mother of that baby.
Second, appellee's birth certificate Exh. "3" with the late Vicente O. Benitez appearing as the
informant, is highly questionable and suspicious. For if Vicente's wife Isabel, who wads already
36 years old at the time of the child's supposed birth, was truly the mother of that child, as
reported by Vicente in her birth certificate, should the child not have been born in a hospital
under the experienced, skillful and caring hands of Isabel's obstetrician-gynecologist Dr.
Constantino Manahan, since delivery of a child at that late age by Isabel would have been
difficult and quite risky to her health and even life? How come, then, that as appearing in
appellee's birth certificate, Marissa was supposedly born at the Benitez home in Avenida Rizal,
Nagcarlan, Laguna, with no physician or even a midwife attending?
At this juncture, it might be meet to mention that it has become a practice in recent times for
people who want to avoid the expense and trouble of a judicial adoption to simply register the
child as their supposed child in the civil registry. Perhaps Atty. Benitez, though a lawyer himself,
thought that he could avoid the trouble if not the expense of adopting the child Marissa through

court proceedings by merely putting himself and his wife as the parents of the child in her birth
certificate. Or perhaps he had intended to legally adopt the child when she grew a little older but
did not come around doing so either because he was too busy or for some other reason. But
definitely, the mere registration of a child in his or her birth certificate as the child of the
supposed parents is not a valid adoption, does not confer upon the child the status of an
adopted child and the legal rights of such child, and even amounts of simulation of the child's
birth or falsification of his or her birth certificate, which is a public document.
Third, if appellee Marissa Benitez is truly the real, biological daughter of the late Vicente O.
Benitez and his wife Isabel Chipongian, why did he and Isabel's only brother and sibling Dr. Nilo
Chipongian, after Isabel's death on April 25, 1982, state in the extrajudicial settlement
Exh. "E" that they executed her estate, "that we are the sole heirs of the deceased ISABEL
CHIPONGIAN because she died without descendants or ascendants?" Dr. Chipongian, placed
on a witness stand by appellants, testified that it was his brother-in-law Atty. Vicente O. Benitez
who prepared said document and that he signed the same only because the latter told him to do
so (p. 24, tsn, Nov. 22, 1990). But why would Atty. Benitez make such a statement in said
document, unless appellee Marissa Benitez is not really his and his wife's daughter and
descendant and, therefore, not his deceased wife's legal heir? As for Dr. Chipongian, he lamely
explained that he signed said document without understanding completely the meaning of the
words "descendant and ascendant" (p. 21, tsn, Nov. 22, 1990). This we cannot believe, Dr.
Chipongian being a practicing pediatrician who has even gone to the United States (p. 52, tsn,
Dec. 13, 1990). Obviously,
Dr. Chipongian was just trying to protect the interests of appellee, the foster-daughter of his
deceased sister and brother-in-law, as against those of the latter's collateral blood relatives.
Fourth, it is likewise odd and strange, if appellee Marissa Benitez is really the daughter and only
legal heir of the spouses Vicente O. Benitez and Isabel Chipongian, that the latter, before her
death, would write a note to her husband and Marissa stating that:
even without any legal papers, I wish that my husband and my child or only daughter will inherit
what is legally my own property, in case I die without a will,
and in the same handwritten note, she even implored her husband
that any inheritance due him from my property when he die to make our own daughter his
sole heir. This do [sic] not mean what he legally owns or his inherited property. I leave him to
decide for himself regarding those.
(Exhs. "F-1", "F-1-A" and "F-1-B")
We say odd and strange, for if Marissa Benitez is really the daughter of the spouses Vicente O.
Benitez and Isabel Chipongian, it would not have been necessary for Isabel to write and plead
for the foregoing requests to her husband, since Marissa would be their legal heir by operation
of law. Obviously, Isabel Chipongian had to implore and supplicate her husband to give appellee
although without any legal papers her properties when she dies, and likewise for her husband to
give Marissa the properties that he would inherit from her (Isabel), since she well knew that
Marissa is not truly their daughter and could not be their legal heir unless her (Isabel's) husband
makes her so.
Finally, the deceased Vicente O. Benitez' elder sister Victoria Benitez Lirio even testified that her
brother Vicente gave the date
December 8 as Marissa's birthday in her birth certificate because that date is the birthday of
their (Victoria and Vicente's) mother. It is indeed too much of a coincidence for the child Marissa
and the mother of Vicente and Victoria to have the same birthday unless it is true, as Victoria
testified, that Marissa was only registered by Vicente as his and his wife's child and that they
gave her the birth date of Vicente's mother.
We sustain these findings as they are not unsupported by the evidence on record. The weight of
these findings was not negated by documentary evidence presented by the petitioner, the most
notable of which is her Certificate of Live Birth (Exh. "3") purportedly showing that her parents

were the late

Vicente Benitez and Isabel Chipongian. This Certificate registered on December 28, 1954
appears to have been signed by the deceased Vicente Benitez. Under Article 410 of the New
Civil Code, however, "the books making up the Civil Registry and all documents relating thereto
shall be considered public documents and shall be prima facie evidence of the facts therein
stated." As related above, the totality of contrary evidence, presented by the private
respondents sufficiently rebutted the truth of the content of petitioner's Certificate of Live Birth.
of said rebutting evidence, the most telling was the Deed of Extra-Judicial Settlement of the
Estate of the Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by Vicente
Benitez, and
Dr. Nilo Chipongian, a brother of Isabel. In their notarized document, they stated that "(they) are
the sole heirs of the deceased Isabel Chipongian because she died without descendants or
ascendants". In executing this Deed, Vicente Benitez effectively repudiated the Certificate of
Live Birth of petitioner where it appeared that he was petitioner's father. The repudiation was
made twenty-eight years after he signed petitioner's Certificate of Live Birth.
IN VIEW WHEREOF, the petition for review is dismissed for lack of merit. Costs against
petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, JJ., concur.
Nocon, J., is on leave.
29. Republic of the Philippines
SUPREME COURT
THIRD DIVISION
G.R. No. 123450. August 31, 2005
GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA ALMONTE, Respondent.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs special safeguard and care,
including appropriate legal protection before as well as after birth.1 In case of assault on his
rights by those who take advantage of his innocence and vulnerability, the law will rise in his
defense with the single-minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa
Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on
December 29, 1989.2 After their marriage, they lived with Ma. Theresas parents in Fairview,
Quezon City.3 Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose
Gerardo.4
Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On December 19,
1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of
bigamy.5 He alleged that nine years before he married Ma. Theresa on December 10, 1980, she
had married one Mario Gopiao, which marriage was never annulled.6 Gerardo also found out
that Mario was still alive and was residing in Loyola Heights, Quezon City.7
Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however,
averred that the marriage was a sham and that she never lived with Mario at all.8
The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting when she
married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of the child was awarded to Ma.
Theresa while Gerardo was granted visitation rights.9
Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She held
him responsible for the bastardization of Gerardo. She moved for the reconsideration of the

above decision "INSOFAR ONLY as that portion of the decision which grant(ed) to the
petitioner so-called visitation rights between the hours of 8 in the morning to 12:00 p.m. of
any Sunday."10 She argued that there was nothing in the law granting "visitation rights in favor of
the putative father of an illegitimate child."11 She further maintained that Jose Gerardos
surname should be changed from Concepcion to Almonte, her maiden name, following the rule
that an illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation rights and the retention of
Concepcion as Jose Gerardos surname.
Applying the "best interest of the child" principle, the trial court denied Ma. Theresas motion and
made the following observations:
It is a pity that the parties herein seem to be using their son to get at or to hurt the other,
something they should never do if they want to assure the normal development and well-being
of the boy.
The Court allowed visitorial rights to the father knowing that the minor needs a father, especially
as he is a boy, who must have a father figure to recognize something that the mother alone
cannot give. Moreover, the Court believes that the emotional and psychological well-being of the
boy would be better served if he were allowed to maintain relationships with his father.
There being no law which compels the Court to act one way or the other on this matter, the
Court invokes the provision of Art. 8, PD 603 as amended, otherwise known as the Child and
Youth Welfare Code, to wit:
"In all questions regarding the care, custody, education and property of the child, his welfare
shall be the paramount consideration."
WHEREFORE, the respondents Motion for Reconsideration has to be, as it is hereby
DENIED.12
Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial
court granting visitation rights to Gerardo. She likewise opposed the continued use of Gerardos
surname (Concepcion) despite the fact that Jose Gerardo had already been declared
illegitimate and should therefore use her surname (Almonte). The appellate court denied the
petition and affirmed in toto the decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative
father visitation rights over his illegitimate child, the appellate court affirmed the "best interest of
the child" policy invoked by the court a quo. It ruled that "[a]t bottom, it (was) the childs welfare
and not the convenience of the parents which (was) the primary consideration in granting
visitation rights a few hours once a week."14
The appellate court likewise held that an illegitimate child cannot use the mothers surname
motu proprio. The child, represented by the mother, should file a separate proceeding for a
change of name under Rule 103 of the Rules of Court to effect the correction in the civil
registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate
court. She also filed a motion to set the case for oral arguments so that she could better
ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the parties, the appellate court
resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo
was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage:
It is, therefore, undeniable established by the evidence in this case that the appellant [Ma.
Theresa] was married to Mario Gopiao, and that she had never entered into a lawful marriage
with the appellee [Gerardo] since the so-called "marriage" with the latter was void ab initio. It
was [Gerardo] himself who had established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8,
1990. Therefore, the child Jose Gerardo under the law is the legitimate child of the legal and
subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the

illegitimate child of the void and non-existent marriage between [Ma. Theresa] and [Gerardo],
but is said by the law to be the child of the legitimate and existing marriage between [Ma.
Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly saying
that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo.
Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it would tend
to destroy the existing marriage between [Ma. Theresa] and Gopiao, would prevent any possible
rapproachment between the married couple, and would mean a judicial seal upon an illegitimate
relationship.16
The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that
Jose Gerardo was their son. It gave little weight to Jose Gerardos birth certificate showing that
he was born a little less than a year after Gerardo and Ma. Theresa were married:
We are not unaware of the movants argument that various evidence exist that appellee and the
appellant have judicially admitted that the minor is their natural child. But, in the same vein, We
cannot overlook the fact that Article 167 of the Family Code mandates:
"The child shall be considered legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her
legitimate status on the bare declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who are the legitimate or illegitimate
children for ones legitimacy or illegitimacy cannot ever be compromised. Not even the
birth certificate of the minor can change his status for the information contained therein are
merely supplied by the mother and/or the supposed father. It should be what the law says and
not what a parent says it is.17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same
was denied.18 Hence, this appeal.
The status and filiation of a child cannot be compromised.19 Article 164 of the Family Code is
clear. A child who is conceived or born during the marriage of his parents is legitimate.20
As a guaranty in favor of the child21 and to protect his status of legitimacy, Article 167 of the
Family Code provides:
Article 167. The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress.
The law requires that every reasonable presumption be made in favor of legitimacy.22 We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals23:
The presumption of legitimacy does not only flow out of a declaration in the statute but is based
on the broad principles of natural justice and the supposed virtue of the mother. It is grounded
on the policy to protect the innocent offspring from the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He cannot. He has no standing in law
to dispute the status of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper case,25
his heirs, who can contest the legitimacy of the child Jose Gerardo born to his wife.26 Impugning
the legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his
heirs.27 Since the marriage of Gerardo and Ma. Theresa was void from the very beginning, he
never became her husband and thus never acquired any right to impugn the legitimacy of her
child.
The presumption of legitimacy proceeds from the sexual union in marriage, particularly during
the period of conception.28 To overthrow this presumption on the basis of Article 166 (1)(b) of the
Family Code, it must be shown beyond reasonable doubt that there was no access that could
have enabled the husband to father the child.29 Sexual intercourse is to be presumed where
personal access is not disproved, unless such presumption is rebutted by evidence to the
contrary.30
The presumption is quasi-conclusive and may be refuted only by the evidence of physical

impossibility of coitus between husband and wife within the first 120 days of the 300 days which
immediately preceded the birth of the child.31
To rebut the presumption, the separation between the spouses must be such as to make marital
intimacy impossible.32 This may take place, for instance, when they reside in different countries
or provinces and they were never together during the period of conception.33 Or, the husband
was in prison during the period of conception, unless it appears that sexual union took place
through the violation of prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon
City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola
Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all
was presented to disprove personal access between them. Considering these circumstances,
the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as
to make it physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should
be presented by him who asserts the contrary. There is no such evidence here. Thus, the
presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma.
Theresa and Mario, stands.
Gerardo relies on Ma. Theresas statement in her answer35 to the petition for annulment of
marriage36 that she never lived with Mario. He claims this was an admission that there was
never any sexual relation between her and Mario, an admission that was binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose Gerardo is not her legitimate son with
Mario but her illegitimate son with Gerardo. This declaration an avowal by the mother that her
child is illegitimate is the very declaration that is proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother against the legitimacy of
her child cannot affect the legitimacy of a child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that there was never an
instance where Ma. Theresa could have been together with Mario or that there occurred
absolutely no intercourse between them. All she said was that she never lived with Mario. She
never claimed that nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the time material to Jose
Gerardos conception and birth. Far from foreclosing the possibility of marital intimacy, their
proximity to each other only serves to reinforce such possibility. Thus, the impossibility of
physical access was never established beyond reasonable doubt.
Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto herself a
right exclusively lodged in the husband, or in a proper case, his heirs.37 A mother has no right to
disavow a child because maternity is never uncertain.38 Hence, Ma. Theresa is not permitted by
law to question Jose Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married woman cannot say that she had
no intercourse with her husband and that her offspring is illegitimate.39 The proscription is in
consonance with the presumption in favor of family solidarity. It also promotes the intention of
the law to lean toward the legitimacy of children.40
Gerardos insistence that the filiation of Jose Gerardo was never an issue both in the trial court
and in the appellate court does not hold water. The fact that both Ma. Theresa and Gerardo
admitted and agreed that Jose Gerardo was born to them was immaterial. That was, in effect,
an agreement that the child was illegitimate. If the Court were to validate that stipulation, then it
would be tantamount to allowing the mother to make a declaration against the legitimacy of her
child and consenting to the denial of filiation of the child by persons other than her husband.
These are the very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and filiation of a child.41

Otherwise, the child will be at the mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no evidentiary
value in this case because it was not offered in evidence before the trial court. The rule is that
the court shall not consider any evidence which has not been formally offered.42
Moreover, the law itself establishes the status of a child from the moment of his birth.43 Although
a record of birth or birth certificate may be used as primary evidence of the filiation of a child,44
as the status of a child is determined by the law itself, proof of filiation is necessary only when
the legitimacy of the child is being questioned, or when the status of a child born after 300 days
following the termination of marriage is sought to be established.45
Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be
contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs.
Hence, the presentation of proof of legitimacy in this case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of the facts contained therein.46 As
prima facie evidence, the statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with respect to the truthfulness of the
statements made therein by the interested parties.47 Between the certificate of birth which is
prima facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of law
(rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not
only does it bear more weight, it is also more conducive to the best interests of the child and in
consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos
illegitimacy while claiming that they both had the childs interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable to the child. In the eyes of the
law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the
surnames of both his father and mother, full support and full inheritance.48 On the other hand, an
illegitimate child is bound to use the surname and be under the parental authority only of his
mother. He can claim support only from a more limited group and his legitime is only half of that
of his legitimate counterpart.49 Moreover (without unwittingly exacerbating the discrimination
against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark
of dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo
favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the very
persons who were passionately declaring their concern for him. The paradox was that he was
made to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What is specially tragic is that an
innocent child is involved. Jose Gerardo was barely a year old when these proceedings began.
He is now almost fifteen and all this time he has been a victim of incessant bickering. The law
now comes to his aid to write finis to the controversy which has unfairly hounded him since his
infancy.
Having only his best interests in mind, we uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario
and mother Ma. Theresa, in conformity with the provisions of the Civil Code on surnames.50 A
persons surname or family name identifies the family to which he belongs and is passed on
from parent to child.51 Hence, Gerardo cannot impose his surname on Jose Gerardo who is, in
the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the corrections of the entries in the
civil register regarding his paternity and filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family Code
grants visitation rights to a parent who is deprived of custody of his children. Such visitation

rights flow from the natural right of both parent and child to each others company. There being
no such parent-child relationship between them, Gerardo has no legally demandable right to
visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the
Child and Youth Welfare Code, is clear and unequivocal:
Article 8. Childs Welfare Paramount. In all questions regarding the care, custody, education
and property of the child, his welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines is
a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.
The State as parens patriae affords special protection to children from abuse, exploitation and
other conditions prejudicial to their development. It is mandated to provide protection to those of
tender years.52 Through its laws, the State safeguards them from every one, even their own
parents, to the end that their eventual development as responsible citizens and members of
society shall not be impeded, distracted or impaired by family acrimony. This is especially
significant where, as in this case, the issue concerns their filiation as it strikes at their very
identity and lineage.
WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10, 1996
resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur.
Carpio-Morales, J., no part.
30.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 138961
March 7, 2002
WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, petitioner,
vs.
JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L. TAN AND LINDA
CHRISTINA LIYAO, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the
Court of Appeals in CA-G.R. C.V. No. 453941 which reversed the decision of the Regional Trial
Court (RTC) of Pasig, Metro Manila, Branch 167 in declaring William Liyao, Jr. as the illegitimate
(spurious) son of the deceased William Liyao and ordering Juanita Tanhoti-Liyao, Pearl
Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to recognize and acknowledge
William Liyao, Jr. as a compulsory heir of the deceased William Liyao and entitled to all
successional rights as such and to pay the costs of the suit.
On November 29,1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed
Civil Case No. 24943 before the RTC of Pasig, Branch 167 which is an action for compulsory
recognition as "the illegitimate (spurious) child of the late William Liyao" against herein
respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina
Liyao.2 The complaint was later amended to include the allegation that petitioner "was in
continuous possession and enjoyment of the status of the child of said William Liyao," petitioner

having been "recognized and acknowledged as such child by the decedent during his lifetime."3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more than
ten (10) years at the time of the institution of the said civil case. Corazon cohabited with the late
William Liyao from 1965 up to the time of Williams untimely demise on December 2, 1975. They
lived together in the company of Corazons two (2) children from her subsisting marriage,
namely:
Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in Quezon City
and Manila. This was with the knowledge of William Liyaos legitimate children, Tita Rose L. Tan
and Linda Christina Liyao-Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao. Tita
Rose and Christina were both employed at the Far East Realty Investment, Inc. of which
Corazon and William were then vice president and president, respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of
her husband, Ramon Yulo, to show his consent to the aforesaid sale. She failed to secure his
signature and, had never been in touch with him despite the necessity to meet him. Upon the
advice of William Liyao, the sale of the parcel of land located at the Valle Verde Subdivision was
registered under the name of Far East Realty Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial
Hospital. During her three (3) day stay at the hospital, William Liyao visited and stayed with her
and the new born baby, William, Jr. (Billy). All the medical and hospital expenses, food and
clothing were paid under the account of William Liyao. William Liyao even asked his confidential
secretary, Mrs. Virginia Rodriguez, to secure a copy of Billys birth certificate. He likewise
instructed Corazon to open a bank account for Billy with the Consolidated Bank and Trust
Company4 and gave weekly amounts to be deposited therein.5 William Liyao would bring Billy to
the office, introduce him as his good looking son and had their pictures taken together.6
During the lifetime of William Liyao, several pictures were taken showing, among others, William
Liyao and Corazon together with Billys godfather, Fr. Julian Ruiz, William Liyaos legal staff and
their wives while on vacation in Baguio.7 Corazon also presented pictures in court to prove that
that she usually accompanied William Liyao while attending various social gatherings and other
important meetings.8 During the occasion of William Liyaos last birthday on November 22, 1975
held at the Republic Supermarket, William Liyao expressly acknowledged Billy as his son in the
presence of Fr. Ruiz, Maurita Pasion and other friends and said, "Hey, look I am still young, I
can still make a good looking son."9 Since birth, Billy had been in continuous possession and
enjoyment of the status of a recognized and/or acknowledged child of William Liyao by the
latters direct and overt acts. William Liyao supported Billy and paid for his food, clothing and
other material needs. However, after William Liyaos death, it was Corazon who provided sole
support to Billy and took care of his tuition fees at La Salle, Greenhills. William Liyao left his
personal belongings, collections, clothing, old newspaper clippings and laminations at the house
in White Plains where he shared his last moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia and
William Liyao who were godparents to her children. She used to visit Corazon and William Liyao
from 1965-1975. The two children of Corazon from her marriage to Ramon Yulo, namely,
Bernadette and Enrique (Ike), together with some housemaids lived with Corazon and William
Liyao as one family. On some occasions like birthdays or some other celebrations, Maurita
would sleep in the couples residence and cook for the family. During these occasions, she
would usually see William Liyao in sleeping clothes. When Corazon, during the latter part of
1974, was pregnant with her child Billy, Maurita often visited her three (3) to four (4) times a
week in Greenhills and later on in White Plains where she would often see William Liyao. Being
a close friend of Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of
Billy. She continuously visited them at White Plains and knew that William Liyao, while living
with her friend Corazon, gave support by way of grocery supplies, money for household

expenses and matriculation fees for the two (2) older children, Bernadette and Enrique. During
William Liyaos birthday on November 22, 1975 held at the Republic Supermarket Office, he
was carrying Billy and told everybody present, including his two (2) daughters from his legal
marriage, "Look, this is my son, very guapo and healthy."10 He then talked about his plan for the
baptism of Billy before Christmas. He intended to make it "engrande" and "make the bells of
San Sebastian Church ring."11 Unfortunately, this did not happen since William Liyao passed
away on December 2, 1975. Maurita attended Mr. Liyaos funeral and helped Corazon pack his
clothes. She even recognized a short sleeved shirt of blue and gray12 which Mr. Liyao wore in a
photograph13 as well as another shirt of lime green14 as belonging to the deceased. A note was
also presented with the following inscriptions: "To Cora, Love From William."15 Maurita
remembered having invited the couple during her mothers birthday where the couple had their
pictures taken while exhibiting affectionate poses with one another. Maurita knew that Corazon
is still married to Ramon Yulo since her marriage has not been annulled nor is Corazon legally
separated from her said husband. However, during the entire cohabitation of William Liyao with
Corazon Garcia, Maurita had not seen Ramon Yulo or any other man in the house when she
usually visited Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is
the son of her neighbors, William Liyao and Corazon Garcia, the latter being one of her
customers. Gloria met Mr. Liyao at Corazons house in Scout Delgado, Quezon City in the
Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and
even more so when the couple transferred to White Plains, Quezon City from 1974-1975. At the
time Corazon was conceiving, Mr. Liyao was worried that Corazon might have another
miscarriage so he insisted that she just stay in the house, play mahjong and not be bored.
Gloria taught Corazon how to play mahjong and together with Atty. Brillantes wife and sister-inlaw, had mahjong sessions among themselves. Gloria knew that Mr. Liyao provided Corazon
with a rented house, paid the salary of the maids and food for Billy. He also gave Corazon
financial support. Gloria knew that Corazon is married but is separated from Ramon Yulo
although Gloria never had any occasion to see Mr. Yulo with Corazon in the house where Mr.
Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the time
that the latter abandoned and separated from his family. Enrique was about six (6) years old
when William Liyao started to live with them up to the time of the latters death on December 2,
1975. Mr. Liyao was very supportive and fond of Enriques half brother, Billy. He identified
several pictures showing Mr. Liyao carrying Billy at the house as well as in the office. Enriques
testimony was corroborated by his sister, Bernadette Yulo, who testified that the various pictures
showing Mr. Liyao carrying Billy could not have been superimposed and that the negatives were
in the possession of her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of the story.
Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao,
were legally married.16 Linda grew up and lived with her parents at San Lorenzo Village, Makati,
Metro Manila until she got married; that her parents were not separated legally or in fact and
that there was no reason why any of her parents would institute legal separation proceedings in
court. Her father lived at their house in San Lorenzo Village and came home regularly. Even
during out of town business trips or for conferences with the lawyers at the office, her father
would change his clothes at home because of his personal hygiene and habits. Her father
reportedly had trouble sleeping in other peoples homes. Linda described him as very
conservative and a strict disciplinarian. He believed that no amount of success would
compensate for failure of a home. As a businessman, he was very tough, strong, fought for what
he believed in and did not give up easily. He suffered two strokes before the fatal attack which
led to his death on December 2, 1975. He suffered a stroke at the office sometime in April-May
1974 and was attended by Dr. Santiago Co. He then stayed in the house for two (2) to three (3)

months for his therapy and acupuncture treatment. He could not talk, move, walk, write or sign
his name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the office. She
handled the collection of rents while her sister referred legal matters to their lawyers. William
Liyao was bedridden and had personally changed. He was not active in business and had
dietary restrictions. Mr. Liyao also suffered a milder stroke during the latter part of September to
October 1974. He stayed home for two (2) to three (3) days and went back to work. He felt
depressed, however, and was easily bored. He did not put in long hours in the office unlike
before and tried to spend more time with his family.
Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not
legally separated from her husband and the records from the Local Civil Registrar do not
indicate that the couple obtained any annulment17 of their marriage. Once in 1973, Linda
chanced upon Ramon Yulo picking up Corazon Garcia at the company garage. Immediately
after the death of Lindas father, Corazon went to Lindas office for the return of the formers
alleged investments with the Far East Realty Investment, Inc. including a parcel of land sold by
Ortigas and Company. Linda added that Corazon, while still a Vice-President of the company,
was able to take out documents, clothes and several laminated pictures of William Liyao from
the office. There was one instance when she was told by the guards, "Mrs. Yulo is leaving and
taking out things again."18 Linda then instructed the guards to bring Mrs. Yulo to the office
upstairs but her sister, Tita Rose, decided to let Corazon Garcia go. Linda did not recognize any
article of clothing which belonged to her father after having been shown three (3) large suit
cases full of mens clothes, underwear, sweaters, shorts and pajamas.
Tita Rose Liyao-Tan testified that her parents were legally married and had never been
separated. They resided at No. 21 Hernandez Street, San Lorenzo Village, Makati up to the time
of her fathers death on December 2, 1975.19 Her father suffered two (2) minor cardio-vascular
arrests (CVA) prior to his death. During the first heart attack sometime between April and May
1974, his speech and hands were affected and he had to stay home for two (2) to three (3)
months under strict medication, taking aldomet, serpadil and cifromet which were prescribed by
Dr. Bonifacio Yap, for high blood pressure and cholesterol level control.20 Tita Rose testified that
after the death of Mr. Liyao, Corazon Garcia was paid the amount of One Hundred Thousand
Pesos (P100,000.00) representing her investment in the Far East Realty Investment Inc. Tita
Rose also stated that her family never received any formal demand that they recognize a certain
William Liyao, Jr. as an illegitimate son of her father, William Liyao. After assuming the position
of President of the company, Tita Rose did not come across any check signed by her late father
representing payment to lessors as rentals for the house occupied by Corazon Garcia. Tita
Rose added that the laminated photographs presented by Corazon Garcia are the personal
collection of the deceased which were displayed at the latters office.
The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of
William Liyao from 1962 to 1974, who said that he usually reported for work at San Lorenzo
Village, Makati to pick up his boss at 8:00 oclock in the morning. At past 7:00 oclock in the
evening, either Carlos Palamigan or Serafin Villacillo took over as night shift driver. Sometime
between April and May 1974, Mr. Liyao got sick. It was only after a month that he was able to
report to the office. Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime
in September 1974, Mr. Liyao suffered from another heart attack. Mr. Pineda added that as a
driver and bodyguard of Mr. Liyao, he ran errands for the latter among which was buying
medicine for him like capasid and aldomet. On December 2, 1975, Mr. Pineda was called inside
the office of Mr. Liyao. Mr. Pineda saw his employer leaning on the table. He tried to massage
Mr. Liyaos breast and decided later to carry and bring him to the hospital but Mr. Liyao died
upon arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-Ortiga were the first to arrive at
the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the
Republic Supermarket. People in the office knew that she was married. Her husband, Ramon

Yulo, would sometimes go to the office. One time, in 1974, Mr. Pineda saw Ramon Yulo at the
office garage as if to fetch Corazon Garcia. Mr. Yulo who was also asking about cars for sale,
represented himself as car dealer.
Witness Pineda declared that he did not know anything about the claim of Corazon. He freely
relayed the information that he saw Mr. Yulo in the garage of Republic Supermarket once in
1973 and then in 1974 to Atty. Quisumbing when he went to the latters law office. Being the
driver of Mr. Liyao for a number of years, Pineda said that he remembered having driven the
group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a
vacation together with the lawyers wives. During his employment, as driver of Mr. Liyao, he
does not remember driving for Corazon Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads as
follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants
as follows:
(a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the minor
William Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the deceased
William Liyao;
(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and
Christian Liyao, to recognize, and acknowledge the minor William Liyao, Jr. as a compulsory
heir of the deceased William Liyao, entitled to all succesional rights as such; and
(d) Costs of suit.21
In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence
that the deceased William Liyao sired William Liyao, Jr. since the latter was conceived at the
time when Corazon Garcia cohabited with the deceased. The trial court observed that herein
petitioner had been in continuous possession and enjoyment of the status of a child of the
deceased by direct and overt acts of the latter such as securing the birth certificate of petitioner
through his confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging
petitioner as his son; providing sustenance and even introducing herein petitioner to his
legitimate children.
The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors
the legitimacy rather than the illegitimacy of the child and "the presumption of legitimacy is
thwarted only on ethnic ground and by proof that marital intimacy between husband and wife
was physically impossible at the period cited in Article 257 in relation to Article 255 of the Civil
Code." The appellate court gave weight to the testimonies of some witnesses for the
respondents that Corazon Garcia and Ramon Yulo who were still legally married and have not
secured legal separation, were seen in each others company during the supposed time that
Corazon cohabited with the deceased William Liyao. The appellate court further noted that the
birth certificate and the baptismal certificate of William Liyao, Jr. which were presented by
petitioner are not sufficient to establish proof of paternity in the absence of any evidence that the
deceased, William Liyao, had a hand in the preparation of said certificates and considering that
his signature does not appear thereon. The Court of Appeals stated that neither do family
pictures constitute competent proof of filiation. With regard to the passbook which was
presented as evidence for petitioner, the appellate court observed that there was nothing in it to
prove that the same was opened by William Liyao for either petitioner or Corazon Garcia since
William Liyaos signature and name do not appear thereon.
His motion for reconsideration having been denied, petitioner filed the present petition.
It must be stated at the outset that both petitioner and respondents have raised a number of
issues which relate solely to the sufficiency of evidence presented by petitioner to establish his
claim of filiation with the late William Liyao. Unfortunately, both parties have consistently
overlooked the real crux of this litigation: May petitioner impugn his own legitimacy to be able to

claim from the estate of his supposed father, William Liyao?

We deny the present petition.
Under the New Civil Code, a child born and conceived during a valid marriage is presumed to
be legitimate.22 The presumption of legitimacy of children does not only flow out from a
declaration contained in the statute but is based on the broad principles of natural justice and
the supposed virtue of the mother. The presumption is grounded in a policy to protect innocent
offspring from the odium of illegitimacy.23
The presumption of legitimacy of the child, however, is not conclusive and consequently, may be
overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code24 provides:
Article 255. Children born after one hundred and eighty days following the celebration of the
marriage, and before three hundred days following its dissolution or the separation of the
spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of the physical
impossibility of the husband having access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such a way that access was not
possible;
3) By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years
from her husband, Ramon Yulo, at the time that she cohabited with the late William Liyao and it
was physically impossible for her to have sexual relations with Ramon Yulo when petitioner was
conceived and born. To bolster his claim, petitioner presented a document entitled, "Contract of
Separation,"25 executed and signed by Ramon Yulo indicating a waiver of rights to any and all
claims on any property that Corazon Garcia might acquire in the future.26
The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the
time petitioner was conceived and born is of no moment. While physical impossibility for the
husband to have sexual intercourse with his wife is one of the grounds for impugning the
legitimacy of the child, it bears emphasis that the grounds for impugning the legitimacy of the
child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in
proper cases, his heirs under the conditions set forth under Article 262 of the Civil Code.27
Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional
cases, his heirs for the simple reason that he is the one directly confronted with the scandal and
ridicule which the infidelity of his wife produces and he should be the one to decide whether to
conceal that infidelity or expose it in view of the moral and economic interest involved. 28 It is only
in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these
cases, none - even his heirs - can impugn legitimacy; that would amount o an insult to his
memory.29
It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of
the then minor, herein petitioner, to compel recognition by respondents of petitioner William
Liyao, Jr, as the illegitimate son of the late William Liyao cannot prosper. It is settled that a child
born within a valid marriage is presumed legitimate even though the mother may have declared
against its legitimacy or may have been sentenced as an adulteress. 30 We cannot allow
petitioner to maintain his present petition and subvert the clear mandate of the law that only the
husband, or in exceptional circumstances, his heirs, could impugn the legitimacy of a child born
in a valid and subsisting marriage. The child himself cannot choose his own filiation. If the
husband, presumed to be the father does not impugn the legitimacy of the child, then the status
of the child is fixed, and the latter cannot choose to be the child of his mothers alleged
paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot
elect the paternity of the husband who successfully defeated the presumption.31

Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with
Ramon Yulo, in testifying for herein petitioner amount to impugnation of the legitimacy of the
latter?
We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are
allowed to contest the legitimacy of the child. There is nothing on the records to indicate that
Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of
the initiation of this proceedings. Notably, the case at bar was initiated by petitioner himself
through his mother, Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled
that the legitimacy of the child can be impugned only in a direct action brought for that purpose,
by the proper parties and within the period limited by law.1wphi1
Considering the foregoing, we find no reason to discuss the sufficiency of the evidence
presented by both parties on the petitioners claim of alleged filiation with the late William Liyao.
In any event, there is no clear, competent and positive evidence presented by the petitioner that
his alleged father had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals in
CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.
31.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 157037
May 20, 2004
ROSALINA P. ECETA, petitioner,
vs.
MA. THERESA VELL LAGURA ECETA, respondent.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari assails the Decision1 of the Court of Appeals in CA-G.R. CV
No. 50449 which affirmed with modification the trial courts ruling that respondent Maria Theresa
Vell Lagura Eceta is entitled to one-eight (1/8) portion of the disputed property.
The antecedent facts are as follows:
Petitioner Rosalina P. Vda. De Eceta was married to Isaac Eceta sometime in 1926. During the
subsistence of their marriage, they begot a son, Vicente. The couple acquired several
properties, among which is the disputed property located at Stanford, Cubao, Quezon City
covered by Transfer Certificate of Title No. 61036. Isaac died in 1967 leaving behind Rosalina
and Vicente as his compulsory heirs.
In 1977, Vicente died. During his lifetime, however, he sired Maria Theresa, an illegitimate
daughter. Thus at the time of his death, his compulsory heirs were his mother, Rosalina, and
illegitimate child, Maria Theresa.
In 1991, Maria Theresa filed a case before the Regional Trial Court of Quezon City, Branch 218,
for "Partition and Accounting with Damages"2 against Rosalina alleging that by virtue of her
fathers death, she became Rosalinas co-heir and co-owner of the Cubao property. The case
was docketed as Civil Case No. Q-91-8922.
In her answer, Rosalina alleged that the property is paraphernal in nature and thus belonged to
her exclusively.
During the pre-trial conference, the parties entered into a stipulation of facts wherein they both
admitted their relationship to one another, i.e., that Rosalina is Maria Theresas grandmother.3
After trial on the merits, the court a quo rendered judgment, the dispositive portion of which
reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

a) Theresa Eceta and Rosalina Eceta are the only surviving co-heirs and co-owners over the
parcel of land and improvements thereon subject of this case;
b) Maria Theresa Eceta is entitled to one fourth share of said property;
c) Rosalina Eceta is ordered to account for the value corresponding to the one-fourth undivided
share of Theresa Eceta in the monthly rentals of the property with interest and must commence
from the filing of this case;
d) Parties are ordered within fifteen days from receipt of this decision to amicably agree upon a
written partition and to submit the same for approval, parties shall appoint a commissioner to
effect said partition of the property between the parties;
e) The counterclaim by defendant Rosalina is hereby dismissed.4
Rosalina appealed the decision to the Court of Appeals, which affirmed with modification the
trial courts ruling, thus:
WHEREFORE, premises considered, the appealed Decision is hereby AFFIRMED subject to
the MODIFICATION that the one-fourth (1/4) share erroneously decreed to Appellee is hereby
REDUCED to one-eight (1/8) undivided share of the entire disputed property, covered by TCT
No. 61036, in accordance with law.
Her motion for reconsideration having been denied, Rosalina is now before us by way of petition
for review wherein she submits the following issues:
a. Whether the certified xerox copy from a xerox copy of the certificate of live birth (Exhibit A) is
competent evidence to prove the alleged filiation of the respondent as an "illegitimate daughter"
of her alleged father Vicente Eceta.
b. Whether the admission made by petitioner that respondent is her granddaughter is enough to
prove respondents filiation with Vicente Eceta, the only son of petitioner.
c. Whether the action for recognition has already prescribed.
The petition has no merit.
We note Rosalinas attempt to mislead the Court by representing that this case is one for
compulsory recognition, partition and accounting with damages.5 Notably, what was filed and
tried before the trial court and the Court of Appeals is one for partition and accounting with
damages only. The filiation, or compulsory recognition by Vicente Eceta of Maria Theresa, was
never put in issue. In fact, both parties have already agreed and admitted, as duly noted in the
trial courts pre-trial order,6 that Maria Theresa is Rosalinas granddaughter.
Notwithstanding, Maria Theresa successfully established her filiation with Vicente by presenting
a duly authenticated birth certificate.7 Vicente himself signed Maria Theresas birth certificate
thereby acknowledging that she is his daughter. By this act alone, Vicente is deemed to have
acknowledged his paternity over Maria Theresa, thus:
The filiation of illegitimate children, like legitimate children, is established by (1) the record of
birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation
in a public document or a private handwritten instrument and signed by the parent concerned. In
the absence thereof, filiation shall be proved by (1) the open and continuous possession of the
status of a legitimate child; or (2) any other means allowed by the Rules of Court and special
laws. The due recognition of an illegitimate child in a record of birth, a will, a statement before a
court of record, or in any authentic writing is, in itself, a consummated act of acknowledgement
of the child, and no further court action is required. In fact, any authentic writing is treated not
just a ground for compulsory recognition; it is in itself a voluntary recognition that does not
require a separate action for judicial approval.8
In view of the foregoing, we find no necessity to discuss the other issues submitted.
WHEREFORE, the petition for review on certiorari is DENIED. The decision of the Court of
Appeals in CA-G.R. CV No. 50449, which affirmed with modification the decision of the
Regional Trial Court of Quezon City, Branch 218 in Civil Case No. Q-91-8922, is AFFIRMED in
toto.

SO ORDERED.
Davide, Jr.*, Panganiban**, Carpio, and Azcuna, JJ., concur.
32.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 140500
January 21, 2002
ERNESTINA BERNABE, petitioner,
vs.
CAROLINA ALEJO as guardian ad litem for the minor ADRIAN BERNABE, respondent.
DECISION
PANGANIBAN, J.:
The right to seek recognition granted by the Civil Code to illegitimate children who were still
minors at the time the Family Code took effect cannot be impaired or taken away. The minors
have up to four years from attaining majority age within which to file an action for recognition.
Statement of the Case
Before us is a Petition1 for Review on Certiorari under Rule 45 of the Rules of Court, praying for
(1) the nullification of the July 7, 1999 Court of Appeals2 (CA) Decision3 in CA-GR CV No. 51919
and the October 14, 1999 CA Resolution4 denying petitioners Motion for Reconsideration, as
well as (2) the reinstatement of the two Orders issued by the Regional Trial Court (RTC) of
Pasay City (Branch 109) concerning the same case. The dispositive portion of the assailed
Decision reads as follows:
"WHEREFORE, premises considered, the order of the lower court dismissing Civil Case No. 940562 is REVERSED and SET ASIDE. Let the records of this case be remanded to the lower
court for trial on the merits."5
The Facts
The undisputed facts are summarized by the Court of Appeals in this wise:
"The late Fiscal Ernesto A. Bernabe allegedly fathered a son with his secretary of twenty-three
(23) years, herein plaintiff-appellant Carolina Alejo. The son was born on September 18, 1981
and was named Adrian Bernabe. Fiscal Bernabe died on August 13, 1993, while his wife
Rosalina died on December 3 of the same year, leaving Ernestina as the sole surviving heir.
"On May 16, 1994, Carolina, in behalf of Adrian, filed the aforesaid complaint praying that Adrian
be declared an acknowledged illegitimate son of Fiscal Bernabe and as such he (Adrian) be
given his share in Fiscal Bernabes estate, which is now being held by Ernestina as the sole
surviving heir.
"On July 16, 1995, the Regional Trial Court dismissed the complaint, ruling that under the
provisions of the Family Code as well as the case of Uyguangco vs. Court of Appeals, the
complaint is now barred x x x."6
Orders of the Trial Court
In an Order dated July 26, 1995, the trial court granted Ernestina Bernabes Motion for
Reconsideration of the trial courts Decision and ordered the dismissal of the Complaint for
recognition. Citing Article 175 of the Family Code, the RTC held that the death of the putative
father had barred the action.
In its Order dated October 6, 1995, the trial court added that since the putative father had not
acknowledged or recognized Adrian Bernabe in writing, the action for recognition should have
been filed during the lifetime of the alleged father to give him the opportunity to either affirm or
deny the childs filiation.
Ruling of the Court of Appeals
On the other hand, the Court of Appeals ruled that in the interest of justice, Adrian should be
allowed to prove that he was the illegitimate son of Fiscal Bernabe. Because the boy was born

in 1981, his rights are governed by Article 285 of the Civil Code, which allows an action for
recognition to be filed within four years after the child has attained the age of majority. The
subsequent enactment of the Family Code did not take away that right.
Hence, this appeal.7
Issues
In her Memorandum,8 petitioner raises the following issues for our consideration:
I
"Whether or not respondent has a cause of action to file a case against petitioner, the legitimate
daughter of the putative father, for recognition and partition with accounting after the putative
fathers death in the absence of any written acknowledgment of paternity by the latter.
II
"Whether or not the Honorable Court of Appeals erred in ruling that respondents had four years
from the attainment of minority to file an action for recognition as provided in Art. 285 of the Civil
Code, in complete disregard of its repeal by the [express] provisions of the Family Code and the
applicable jurisprudence as held by the Honorable Court of Appeals.
III
"Whether or not the petition for certiorari filed by the petition[er] is fatally defective for failure to
implead the Court of Appeals as one of the respondents."9
The Courts Ruling
The Petition has no merit.
First and Second Issues: Period to File Action for Recognition
Because the first and the second issues are interrelated, we shall discuss them jointly.
Petitioner contends that respondent is barred from filing an action for recognition, because
Article 285 of the Civil Code has been supplanted by the provisions of the Family Code. She
argues that the latter Code should be given retroactive effect, since no vested right would be
impaired. We do not agree.
Article 285 of the Civil Code provides the period for filing an action for recognition as follows:
"ART. 285. The action for the recognition of natural children may be brought only during the
lifetime of the presumed parents, except in the following cases:
(1) If the father or mother died during the minority of the child, in which case the latter may file
the action before the expiration of four years from the attainment of his majority;
(2) If after the death of the father or of the mother a document should appear of which nothing
had been heard and in which either or both parents recognize the child.
"In this case, the action must be commenced within four years from the finding of the
document."
The two exceptions provided under the foregoing provision, have however been omitted by
Articles 172, 173 and 175 of the Family Code, which we quote:
"ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
"In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws."
"ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime
and shall be transmitted to the heirs should the child die during minority or in a state of insanity.
In these cases, the heirs shall have a period of five years within which to institute the action.
"The action already commenced by the child shall survive notwithstanding the death of either or
both of the parties."
"ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same, evidence as legitimate children.

"The action must be brought within the same period specified in Article 173, except when the
action is based on the second paragraph of Article 172, in which case the action may be brought
during the lifetime of the alleged parent."
Under the new law, an action for the recognition of an illegitimate child must be brought within
the lifetime of the alleged parent. The Family Code makes no distinction on whether the former
was still a minor when the latter died. Thus, the putative parent is given by the new Code a
chance to dispute the claim, considering that "illegitimate children are usually begotten and
raised in secrecy and without the legitimate family being aware of their existence. x x x The
putative parent should thus be given the opportunity to affirm or deny the childs filiation, and
this, he or she cannot do if he or she is already dead."10
Nonetheless, the Family Code provides the caveat that rights that have already vested prior to
its enactment should not be prejudiced or impaired as follows:
"ART. 255. This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance with the Civil Code or other laws."
The crucial issue to be resolved therefore is whether Adrians right to an action for recognition,
which was granted by Article 285 of the Civil Code, had already vested prior to the enactment of
the Family Code. Our answer is affirmative.
A vested right is defined as "one which is absolute, complete and unconditional, to the exercise
of which no obstacle exists, and which is immediate and perfect in itself and not dependent
upon a contingency x x x."11 Respondent however contends that the filing of an action for
recognition is procedural in nature and that "as a general rule, no vested right may attach to [or]
arise from procedural laws."12
Bustos v. Lucero13 distinguished substantive from procedural law in these words:
"x x x. Substantive law creates substantive rights and the two terms in this respect may be said
to be synonymous. Substantive rights is a term which includes those rights which one enjoys
under the legal system prior to the disturbance of normal relations. Substantive law is that part
of the law which creates, defines and regulates rights, or which regulates the rights and duties
which give rise to a cause of action; that part of the law which courts are established to
administer; as opposed to adjective or remedial law, which prescribes the method of enforcing
rights or obtains redress for their invasion."14 (Citations omitted)
Recently, in Fabian v. Desierto,15 the Court laid down the test for determining whether a rule is
procedural or substantive:
"[I]n determining whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test is
whether the rule really regulates procedure, that is, the judicial process for enforcing rights and
duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the
rule creates a right such as the right to appeal, it may be classified as a substantive matter; but
if it operates as a means of implementing an existing right then the rule deals merely with
procedure."16
Applying the foregoing jurisprudence, we hold that Article 285 of the Civil Code is a substantive
law, as it gives Adrian the right to file his petition for recognition within four years from attaining
majority age. Therefore, the Family Code cannot impair or take Adrians right to file an action for
recognition, because that right had already vested prior to its enactment.
Uyguangco v. Court of Appeals17 is not applicable to the case at bar, because the plaintiff therein
sought recognition as an illegitimate child when he was no longer a minor. On the other hand, in
Aruego Jr. v. Court of Appeals18 the Court ruled that an action for recognition filed while the Civil
Code was in effect should not be affected by the subsequent enactment of the Family Code,
because the right had already vested.
Not Limited to Natural Children
To be sure, Article 285 of the Civil Code refers to the action for recognition of "natural" children.

Thus, petitioner contends that the provision cannot be availed of by respondent, because at the
time of his conception, his parents were impeded from marrying each other. In other words, he
is not a natural child.
A "natural child" is one whose parents, at the time of conception, were not disqualified by any
legal impediment from marrying each other. Thus, in De Santos v. Angeles,19 the Court
explained:
"A childs parents should not have been disqualified to marry each other at the time of
conception for him to qualify as a natural child."20
A strict and literal interpretation of Article 285 has already been frowned upon by this Court in
the aforesaid case of Aruego, which allowed minors to file a case for recognition even if their
parents were disqualified from marrying each other. There, the Complaint averred that the late
Jose Aruego Sr., a married man, had an extramarital liason with Luz Fabian. Out of this
relationship were born two illegitimate children who in 1983 filed an action for recognition. The
two children were born in 1962 and 1963, while the alleged putative father died in 1982. In
short, at the time of their conception, the two childrens parents were legally disqualified from
marrying each other. The Court allowed the Complaint to prosper, even though it had been filed
almost a year after the death of the presumed father. At the time of his death, both children were
still minors.
Moreover, in the earlier case Divinagracia v. Rovira,21 the Court said that the rules on voluntary
and compulsory acknowledgment of natural children, as well as the prescriptive period for filing
such action, may likewise be applied to spurious children. Pertinent portions of the case are
quoted hereunder:
"The so-called spurious children, or illegitimate children other than natural children, commonly
known as bastards, include those adulterous children or those born out of wedlock to a married
woman cohabiting with a man other than her husband or to a married man cohabiting with a
woman other than his wife. They are entitled to support and successional rights. But their
filiation must be duly proven.
"How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the
paternity or maternity or spurious children under the circumstances specified in articles 283 and
284 of the Civil Code. The implication is that the rules on compulsory recognition of natural
children are applicable to spurious children.
"Spurious children should not be in a better position than natural children. The rules on proof of
filiation of natural children or the rules on voluntary and compulsory acknowledgment for natural
children may be applied to spurious children.
"That does not mean that spurious children should be acknowledged, as that term is used with
respect to natural children. What is simply meant is that the grounds or instances for the
acknowledgment of natural children are utilized to establish the filiation of spurious children.
"A spurious child may prove his filiation by means of a record of birth, a will, a statement before
a court of record, or in any authentic writing. These are the modes of voluntary recognition of
natural children.
"In case there is no evidence on the voluntary recognition of the spurious child, then his filiation
may be established by means of the circumstances or grounds for compulsory recognition
prescribed in the aforementioned articles 283 and 284.
"The prescriptive period for filing the action for compulsory recognition in the case of natural
children, as provided for in article 285 of the Civil Code, applies to spurious children."22
(Citations omitted, italics supplied)
Thus, under the Civil Code, natural children have superior successional rights over spurious
ones.23 However, Rovira treats them as equals with respect to other rights, including the right to
recognition granted by Article 285.
To emphasize, illegitimate children who were still minors at the time the Family Code took effect
and whose putative parent died during their minority are thus given the right to seek recognition

(under Article 285 of the Civil Code) for a period of up to four years from attaining majority age.
This vested right was not impaired or taken away by the passage of the Family Code.
Indeed, our overriding consideration is to protect the vested rights of minors who could not have
filed suit, on their own, during the lifetime of their putative parents. As respondent aptly points
out in his Memorandum,24 the State as parens patriae should protect a minors right. Born in
1981, Adrian was only seven years old when the Family Code took effect and only twelve when
his alleged father died in 1993. The minor must be given his day in court.
Third Issue: Failure to Implead the CA
Under Section 4(a) of Rule 45 of the current Rules of Court, it is no longer required to implead
"the lower courts or judges x x x either as petitioners or respondents." Under Section 3,
however, the lower tribunal should still be furnished a copy of the petition. Hence, the failure of
petitioner to implead the Court of Appeals as a party is not a reversible error; it is in fact the
correct procedure.
WHEREFORE, the Petition is hereby DENIED and the assailed Decision and Resolution
AFFIRMED. Costs against petitioner.
SO ORDERED.
Melo, (Chairman), Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., no part. Relationship with family.
33.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 124853 February 24, 1998
FRANCISCO L. JISON, petitioner,
vs.
COURT OF APPEALS and MONINA JISON, respondents.
DAVIDE, JR., J.:
This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995 decision of
the Court of Appeals (CA) in CA-G.R. CV No. 32860 1 which reversed the decision of Branch 24
of the Regional Trial Court (RTC) of Iloilo City in Civil Case No. 16373. 2 The latter dismissed the
complaint of private respondent Monina Jison (hereafter MONINA) for recognition as an
illegitimate child of petitioner Francisco Jison (hereafter FRANCISCO).
In issue is whether or not public respondent Court of Appeals committed reversible error, which,
in this instance, necessitates an inquiry into the facts. While as a general rule, factual issues are
not within the province of this Court, nevertheless, in light of the conflicting findings of facts of
the trial court and the Court of Appeals, this case falls under an exception to this rule? 3
In her complaint 4 filed with the RTC on 13 March 1985, MONINA alleged that FRANCISCO had
been married to a certain Lilia Lopez Jison since 1940. At the end of 1945 or the start of 1946,
however, FRANCISCO impregnated Esperanza F. Amolar (who was then employed as the
nanny of FRANCISCO's daughter, Lourdes). As a result, MONINA was born on 6 August 1946,
in Dingle, Iloilo, and since childhood, had enjoyed the continuous, implied recognition as an
illegitimate child of FRANCISCO by his acts and that of his family. MONINA further alleged that
FRANCISCO gave her support and spent for her education, such that she obtained a Master's
degree, became a certified public accountant (CPA) and eventually, a Central Bank examiner. In
view of FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial
declaration of her illegitimate status and that FRANCISCO support and treat her as such.
In his answer, 5 FRANCISCO alleged that he could not have had sexual relations with
Esperanza Amolar during the period specified in the complaint as she had ceased to be in his

employ as early as 1944, and did not know of her whereabouts since then; further, he never
recognized MONINA, expressly or impliedly, as his illegitimate child. As affirmative and special
defenses, FRANCISCO contended that MONINA had no right or cause of action against him
and that her action was barred by estoppel, laches and/or prescription. He thus prayed for
dismissal of the complaint and an award of damages due to the malicious filing of the complaint.
After MONINA filed her reply, 6 pre-trial was conducted where the parties stipulated on the
following issues:
1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar about the end of
1945 or the start of 1946?
2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by the latter's own
acts and those of his family?
3. Is Monina Jison barred from instituting or prosecuting the present action by estoppel, laches
and/or prescription?
4. Damages. 7
At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely: herself,
Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma, Danthea Lopez,
Romeo Bilbao, Rudy Tiangson, Alfredo Baylosis, Dominador Zavariz and Lope Amolar.
Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had worked for
FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's Iloilo residence.
Towards the end of the Japanese occupation, FRANCISCO's wife suffered a miscarriage or
abortion, thereby depriving FRANCISCO of consortium; thereafter, FRANCISCO's wife
managed a nightclub on the ground floor of Nelly Garden which operated daily from 6:00 p.m. till
3:00 a.m. of the following day, thereby allowing FRANCISCO free access to MONINA's mother,
Esperanza Amolar, who was nicknamed Pansay.
Adela Casabuena, a 61-year old farmer, testified that she served as the yaya ("nanny") of
Lourdes from July 1946 up to February 1947. Although Pansay had left Nelly Garden two (2)
weeks before Adela started working for the Jisons, Pansay returned sometime in September
1946, or about one month after she gave birth to MONINA, to ask FRANCISCO for support. As
a result, Pansay and Lilia Jison, FRANCISCO's wife, quarreled in the living room, and in the
course thereof, Pansay claimed that FRANCISCO was the father of her baby. To which, Lilia
replied: "I did not tell you to make that baby so it is your fault." During the quarrel which lasted
from 10:30 till 11:00 a.m., FRANCISCO was supposedly inside the house listening.
Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he worked as
FRANCISCO's houseboy at the latter's house on 12th Street, Capitol Subdivision, Bacolod City.
Arsenio met MONINA in 1967, when Felipe Lagarto, the bookkeeper at Nelly Garden, informed
Arsenio that MONINA, FRANCISCO's daughter, would arrive at Bacolod City with a letter of
introduction from Lagarto.
Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-11) of
MONINA, 8 and as he paid for the telephone bills, he likewise identified six (6) telephone cards
(Exhs. G to L). Arsenio then declared that when MONINA arrived in Bacolod City, she
introduced herself to him as FRANCISCO's daughter. She stayed at FRANCISCO's house, but
when the latter and his wife would come over, Arsenio would "conceal the presence of MONINA
because Mrs. Jison did not like to see her face." Once, Arsenio hid MONINA in the house of
FRANCISCO's sister, Mrs. Luisa Jison Alano, in Silay City; another time, at the residence of
FRANCISCO's cousin, Mrs. Concha Lopez Cuaycong. Finally, Arsenio declared that the last
time he saw MONINA was when she left for Manila, after having finished her schooling at La
Salle College in Bacolod City.
On re-direct and upon questions by the court, Arsenio disclosed that it was FRANCISCO who
instructed that MONINA be hidden whenever FRANCISCO and his wife were around; that
although FRANCISCO and MONINA saw each other at the Bacolod house only once, they
called each other "through long distance;" and that MONINA addressed FRANCISCO as

"Daddy" during their lone meeting at the Bacolod house and were "affectionate" to each other.
Arsenio likewise declared that MONINA stayed at FRANCISCO's Bacolod house twice: first for a
month, then for about a week the second time. On both occasions, however, FRANCISCO and
his wife were abroad. Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat
MONINA like his (FRANCISCO's) other daughters.
The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo City, initially
touched on how he and his wife were related to FRANCISCO, FRANCISCO's wife and
MONINA. Zafiro first identified Exhibit R, a diagram of the family trees of the Jison and Lopez
families, which showed that former Vice-President Fernando Lopez was the first cousin of
FRANCISCO's wife, then told the court that the family of Vice-President Lopez treated MONINA
"very well because she is considered a relative . . . by reputation, by actual perception." Zafiro
likewise identified Exhibits X-13 to X-18, photographs taken at the 14 April 1985 birthday
celebration of Mrs. Fernando Lopez, which showed MONINA with the former Vice-President and
other members of the Lopez family.
Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid for some of
MONINA's school needs and even asked MONINA to work in a hospital owned by Mrs.
Cuaycong; and that another first cousin of FRANCISCO's wife, a certain Remedios Lopez
Franco, likewise helped MONINA with her studies and problems, and even attended MONINA's
graduation in 1978 when she obtained a masteral degree in Business Administration, as
evidenced by another photograph (Exh. X-12). Moreover, upon Remedios' recommendation,
MONINA was employed as a secretary at Merchant Financing Company, which was managed
by a certain Danthea Lopez, the wife of another first cousin of FRANCISCO's wife, and among
whose directors were Zafiro himself, his wife and Danthea's husband. In closing, Zafiro
identified MONINA's Social Security Record (Exh. W), which was signed by Danthea as
employer and where MONINA designated Remedios as the beneficiary.
Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the first cousin of
her husband, Eusebio D. Lopez; and that she came to know MONINA in the latter part of 1965
when Remedios Franco recommended MONINA for employment at Merchant Financing Co.,
which Danthea managed at that time. Remedios introduced MONINA to Danthea "as being
reputedly the daughter of Mr. Frank Jison;" and on several occasions thereafter, Remedios
made Danthea and the latter's husband understand that MONINA was "reputedly the daughter
of [FRANCISCO]" While MONINA worked at Merchant Financing, Danthea knew that MONINA
lived with Remedios; however, in the latter part of 1966, as Remedios left for Manila and
MONINA was still studying at San Agustin University, Danthea and her husband invited
MONINA to live with them. During MONINA's 6-month stay with them, she was not charged for
board and lodging and was treated as a relative, not a mere employee, all owing to what
Remedios had said regarding MONINA's filiation. As Danthea understood, MONINA resigned
from Merchant Financing as she was called by Mrs. Cuaycong, a first cousin of Danthea's
husband who lived in Bacolod City.
Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO from 1969
up to 1980 at Nelly Garden in various capacities: as a procurement officer, hacienda overseer
and, later, as hacienda administrator. Sometime in May, 1971, Romeo saw and heard MONINA
ask "her Daddy" (meaning FRANCISCO) for the money he promised to give her, but
FRANCISCO answered that he did not have the money to give, then told MONINA to go see Mr.
Jose Cruz in Bacolod City. Then in the middle of September that year, FRANCISCO told Romeo
to pick up Mr. Cruz at the Iloilo pier and bring him to the office of Atty. Benjamin Tirol. At said
office, Atty. Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside. When
they came out, Atty. Tirol had papers for MONINA to sign, but she refused. Atty. Tirol said that a
check would be released to MONINA if she signed the papers, so MONINA acceded, although
Atty. Tirol intended not to give MONINA a copy of the document she signed. Thereafter, Mr. Cruz
gave MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she signed and

ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his motive for testifying,
Romeo stated that he wanted to help MONINA be recognized as FRANCISCO'S daughter.
Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was employed by
FRANCISCO's wife at the Baguio Military Institute in Baguio City; then in 1965, Rudy worked at
FRANCISCO's office at Nelly Garden recording hacienda expenses, typing vouchers and office
papers, and, at times, acting as paymaster for the haciendas. From the nature of his work, Rudy
knew the persons receiving money from FRANCISCO's office, and clearly remembered that in
1965, as part of his job, Rudy gave MONINA her allowance from FRANCISCO four (4) times,
upon instructions of a certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise
recalled that he first met MONINA in 1965, and that she would go to Nelly Garden whenever
FRANCISCO's wife was not around. On some of these occasions, MONINA would speak with
and address FRANCISCO as "Daddy," without objection from FRANCISCO. In fact, in 1965,
Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that in April 1965,
FRANCISCO's office paid P250.00 to Funeraria Bernal for the funeral expenses of MONINA's
mother. Finally, as to Rudy's motives for testifying, he told the court that he simply wanted to
held bring out the truth "and nothing but the truth," and that MONINA's filiation was common
knowledge among the people in the office at Nelly Garden.
On re-direct, Rudy declared that the moneys given by FRANCISCO's office to MONINA were
not reflected in the books of the office, but were kept in a separate book, as Mr. Lagarto
explained that FRANCISCO's wife and children "should not know [of] this." Rudy further
revealed that as to the garden "meetings" between FRANCISCO and MONINA, Rudy saw
MONINA kiss FRANCISCO on the cheek both upon arriving and before leaving, and
FRANCISCO's reaction upon seeing her was to smile and say in the Visayan dialect: "Kamusta
ka iha?" ("How are you, daughter?"); and that MONINA was free to go inside the house as the
household staff knew of her filiation, and that, sometimes, MONINA would join them for lunch.
Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for FRANCISCO at
Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly Garden from 1961 until 1972.
Alfredo first served FRANCISCO as a bookkeeper, then when Mr. Lagarto died in 1967 or 1969,
Alfredo replaced Mr. Lagarto as office manager.
Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her P15.00
monthly allowance given upon FRANCISCO's standing order. Alfredo further declared that
MONINA's filiation was pretty well-known in the office, that he had seen MONINA and
FRANCISCO go from the main building to the office, with FRANCISCO's arm on MONINA's
shoulder; and that the office paid for the burial expenses of Pansay, but this was not recorded in
the books in order to hide it from FRANCISCO's wife. Alfredo also disclosed that the
disbursements for MONINA's allowance started in 1961 and were recorded in a separate cash
book. In 1967, the allowances ceased when MONINA stopped schooling and was employed in
Bacolod City with Miller, Cruz & Co., which served as FRANCISCO's accountant-auditor. Once,
when Alfredo went to the offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and
arrange for the preparation of FRANCISCO's income tax return, Alfredo chanced upon
MONINA. When Alfredo asked her how she came to work there, she answered that "her Daddy,"
FRANCISCO, recommended her, a fact confirmed by Mr. Atienza Alfredo then claimed that Mr.
Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of FRANCISCO.
Dominador Savariz, a 55-year old caretaker, testified that he worked as FRANCISCO's
houseboy at Nelly Garden from November 1953 up to 1965. One morning in April 1954,
MONINA and her mother Pansay went to Nelly Garden and spoke with FRANCISCO for about
an hour, during which time, Dominador was vacuuming the carpet about six (6) to seven (7)
meters away. Due to the noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud
voices, thus Dominador overheard their conversation. As FRANCISCO asked Pansay why they
came, Pansay answered that they came to ask for the "sustenance" of his child MONINA.
FRANCISCO then touched MONINA's head and asked: "How are you Hija?," to which MONINA

answered: "Good morning, Daddy." After FRANCISCO told Pansay and MONINA to wait, he
pulled something from his wallet and said to Pansay. "I am giving this for a child."
In May 1954, Dominador saw MONINA at Mr. Lagarto's office where Dominador was to get "the
day's expenses," while MONINA was claiming her allowance from Mr. Diasnes. The next month,
Dominador saw MONINA at Nelly Garden and heard in the office that MONINA was there to get
her allowance "from her Daddy." In December 1960, Dominador saw MONINA at Nelly Garden,
in the room of Don Vicente (father of FRANCISCO's wife), where she asked for a Christmas gift
"and she was calling Don Vicente, Lolo (grandfather)." At that time, FRANCISCO and his wife
were not around. Then sometime in 1961, when Dominador went to Mr. Legarto's office to get
the marketing expenses, Dominador saw MONINA once more claiming her allowance.
Dominador further testified that in February 1966, after he had stopped working for
FRANCISCO, Dominador was at Mrs. Franco's residence as she recommended him for
employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who was then
about 15 years old, together with Mrs. Franco's daughter and son. Mrs. Franco pointed at
MONINA and asked Dominador if he knew who MONINA was. Dominador answered that
MONINA was FRANCISCO's daughter with Pansay, and then Mrs. Franco remarked that
MONINA was staying with her (Mrs. Franco) and that she was sending MONINA to school at the
University of San Agustin.
Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of Esperanza
Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy from March to
November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope to work at Elena
Apartments in Manila. By November 1945, Pansay was also working at Elena Apartments,
where she revealed to Lope that FRANCISCO impregnated her. Lope then confronted
FRANCISCO, who told Lope "don't get hurt and don't cause any trouble, because I am willing to
support your Inday Pansay and my child." Three (3) days after this confrontation, Lope asked for
and received permission from FRANCISCO to resign because he (Lope) was hurt.
On 21 October 1986, MONINA herself took the witness stand. At that time, she was 40 years old
and a Central Bank Examiner. She affirmed that as evidenced by certifications from the Office of
the Local Civil Registrar (Exhs. E and F) and baptismal certificates (Exhs. C and D), she was
born on 6 August 1946 in Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed
away on 20 April 1965) and FRANCISCO. 9 MONINA first studied at Sagrado where she stayed
as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her father, FRANCISCO,
paid for her tuition fees and other school expenses. She either received the money from
FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give money to her mother, or Mr.
Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different schools, 10 but
FRANCISCO continuously answered for her schooling.
For her college education, MONINA enrolled at the University of Iloilo, but she later dropped due
to an accident which required a week's hospitalization. Although FRANCISCO paid for part of
the hospitalization expenses, her mother shouldered most of them. In 1963, she enrolled at the
University of San Agustin, where she stayed with Mrs. Franco who paid for MONINA's tuition
fees. However, expenses for books, school supplies, uniforms and the like were shouldered by
FRANCISCO. At the start of each semester, MONINA would show FRANCISCO that she was
enrolled, then he would ask her to canvass prices, then give her the money she needed. After
finishing two (2) semesters at University of San Agustin, as evidenced by her transcript of
records (Exh. Z showing the FRANCISCO was listed as Parent/Guardian [Exh. Z-1], she
transferred to "De Paul College," just in front of Mrs. Franco's house, and studied there for a
year. Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where she
obtained a bachelor's degree in Commerce in April 1967. During her senior year, she stayed
with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She passed the CPA
board exams in 1974, and took up an M.B.A. at De La Salle University as evidenced by her
transcript (Exh. AA), wherein FRANCISCO was likewise listed as "Guardian" (Exhs. AA-1 and

AA-2).
MONINA enumerated the different members of the household staff at Nelly Garden, to wit: Luz,
the household cook; the houseboys Silvestre and Doming; the housemaid Natang; the yaya of
the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina; and others. MONINA likewise
enumerated the members of the office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes,
Jalandoni, Supertisioso, Doroy, and other), and identified them from a photograph marked as
Exhibit X-2. She then corroborated the prior testimony regarding her employment at Merchant
Financing Co., and her having lived at Hotel Kahirup and at Mrs. Cuaycong's residence in
Bacolod City, while working at the hospital owned by Mrs. Cuaycong.
MONINA further testified that in March 1968, she went to Manila and met FRANCISCO at Elena
Apartments at the corner of Romero and Salas Streets, Ermita. She told FRANCISCO that she
was going for a vacation in Baguio City with Mrs. Franco's mother, with whom she stayed up to
June 1968. Upon her return from Baguio City, MONINA told FRANCISCO that she wanted to
work, so the latter arranged for her employment at Miller & Cruz in Bacolod City. MONINA went
to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told her she
would start working first week of September, sans examination. She resigned from Miller & Cruz
in 1971 and lived with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA went to
see FRANCISCO, told him that she resigned and asked him for money to go to Spain, but
FRANCISCO refused as she could not speak Spanish and would not be able find a job. The two
quarreled and FRANCISCO ordered a helper to send MONINA out of the house. In the process,
MONINA broke many glasses at the pantry and cut her hand, after which, FRANCISCO hugged
her, gave her medicine, calmed her down, asked her to return to Bacolod City and promised that
he would giver her the money.
MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane ticket (Exh.
M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as instructed by Mr. Cruz.
These calls were evidenced by PLDT long distance toll card (Exhs. G to L), with annotations at
the back reading; "charged and paid under the name of Frank L. Jison" and were signed by
Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a certification as to the veracity of the contents
of the toll cards (Exh. BB). Likewise introduced in evidence was a letter of introduction prepared
by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf (Exh. N).
MONINA also declared that Atty. Tirol then told her that she would have to go to Iloilo and sign a
certain affidavit, before Mr. Cruz would turn over the money promised by FRANCISCO. She
went to Atty. Tirol's office in Iloilo, but after going over the draft of the affidavit, refused to sign it
as it stated that she was not FRANCISCO's daughter. She explained that all she had agreed
with FRANCISCO was that he would pay for her fare to go abroad, and that since she was a
little girl, she knew about her illegitimacy. She started crying, begged Atty. Tirol to change the
affidavit, to which Atty. Tirol responded that he was also a father and did not want this to happen
to his children as they could not be blamed for being brought into the world. She then wrote a
letter (Exh. O) to FRANCISCO and sent it to the latter's Forbes Park residence (Bauhinia Place)
by JRS courier service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod
City where they discussed the affidavit which she refused to sign. FRANCISCO told her that the
affidavit was for his wife, that in case she heard about MONINA going abroad, the affidavit
would "keep her peace."
MONINA then narrated that the first time she went to Atty. Tirol's office, she was accompanied
by one Atty. Fernando Divinagracia, who advised her that the affidavit (Exh. P) 11 would
"boomerang" against FRANCISCO "as it is contrary to law." MONINA returned to Bacolod City,
then met with Atty. Tirol once more to reiterate her plea, but Atty. Tirol did not relent. Thus, on
the morning of 20 or 21 September 1971, she signed the affidavit as she was jobless and
needed the money to support herself and finish her studies. In exchange for signing the
document, MONINA received a Bank of Asia check for P15,000.00 (Exh. Q), which was less
than the P25,000.00 which FRANCISCO allegedly promised to give. As Atty. Tirol seemed

hesitant to give her a copy of the affidavit after notarizing it, MONINA merely grabbed a copy
and immediately left.
MONINA then prepared to travel abroad, for which purpose, she procured letters of introduction
(Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCO's elder sister Luisa); and an
uncle, Emilio Jison (FRANCISCO's elder brother), addressed to another cousin, Beth Jison
(Emilio's daughter), for Beth to assist MONINA. Exhibit S contained a statement (Exh. S-1)
expressly recognizing that MONINA was FRANCISCO's daughter. Ultimately though, MONINA
decided not to go abroad, opting instead to spend the proceeds of the P15,000.00 check for her
CPA review, board exam and graduate studies. After finishing her graduate studies, she again
planned to travel abroad, for which reason, she obtained a letter of introduction from former Vice
President Fernando Lopez addressed to then United States Consul Vernon McAnnich (Exh. V).
As to other acts tending to show her filiation, MONINA related that on one occasion, as
FRANCISCO's wife was going to arrive at the latter's Bacolod City residence, FRANCISCO
called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus, MONINA stayed with Mrs.
Luisa Jison for the duration of the stay of FRANCISCO's wife. MONINA also claimed that she
knew Vice President Fernando Lopez and his wife, Mariquit, even before starting to go to
school. Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit Lopez for
possible employment with Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO.
In Exhibit U, Mrs. Lopez expressly recognized MONINA as FRANCISCO's daughter. As
additional proof of her close relationship with the family of Vice President Lopez, MONINA
identified photographs taken at a birthday celebration on 14 April 1985.
MONINA finally claimed that she knew the three (3) children of FRANCISCO by wife, namely,
Lourdes, Francisco, Jr., (Junior) and Elena, but MONINA had met only Lourdes and Junior.
MONINA's testimony dealt lengthily on her dealings with Junior and the two (2) occasions when
she met with Lourdes. The last time MONINA saw FRANCISCO was in March 1979, when she
sought his blessings to get married.
In his defense, FRANCISCO offered his deposition taken before then Judge Romeo Callejo of
the Regional Trial Court of Manila, Branch 48. As additional witnesses, FRANCISCO presented
Nonito Jalandoni, Teodoro Zulla, Iigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores
Argenal.
FRANCISCO declared that Pansay's employment ceased as of October, 1 1944, and that while
employed by him, Pansay would sleep with the other female helpers on the first floor of his
residence, while he, his wife and daughter slept in a room on the second floor. At that time, his
household staff was composed of three (3) female workers and two (2) male workers. After
Pansay left in October 1944, she never communicated with him again, neither did he know of
her whereabouts. FRANCISCO staunchly denied having had sexual relations with Pansay and
disavowed any knowledge about MONINA's birth. In the same vein, he denied having paid for
MONINA's tuition fees, in person or otherwise, and asserted that he never knew that Mr. Lagarto
paid for these fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these
fees despite absence of instructions or approval from FRANCISCO. He likewise categorically
denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or
Remedios Franco, that MONINA was his daughter.
FRANCISCO also disclosed that upon his return from the United States in 1971, he fired Alfredo
Baylosis upon discovering that Alfredo had taken advantage of his position during the former's
absence. FRANCISCO likewise fired Rudy Tingson and Romeo Bilbao, but did not give the
reasons therefor.
Finally, FRANCISCO denied knowledge of MONINA's long distance calls from his Bacolod
residence; nevertheless, when he subsequently discovered this, he fired certain people in his
office for their failure to report this anomaly. As regards the caretaker of his Bacolod residence,
FRANCISCO explained that since MONINA lived at Mrs. Cuaycong's residence, the caretaker
thought that he could allow people who lived at the Cuaycong residence to use the facilities at

his (FRANCISCO's) house.

Nonito Jalandoni, bookkeeper and paymaster at Nelly's Garden from 1963 up to 1974, then
from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified that he did not know
MONINA; that he learned of her only in June 1988, when he was informed by FRANCISCO that
MONINA had sued him; and that he never saw MONINA at Nelly's Garden, neither did he know
of any instructions for anyone at Nelly's Garden to give money to MONINA.
Teodoro Zulla, FRANCISCO's bookkeeper and paymaster from 1951 up to 1986, testified that
FRANCISCO dismissed Alfredo Baylosis due to certain unspecified discrepancies; and that he
never saw MONINA receive funds from either Mr. Lagarto or Mr. Baylosis. Upon questions from
the trial court, however, Teodoro admitted that he prepared vouchers for only one of
FRANCISCO's haciendas, and not vouchers pertaining to the latter's personal expenses.
Iigo Supertisioso testified that he worked for FRANCISCO at Nelly's Garden from 1964 up to
1984 as a field inspector, paymaster, cashier and, eventually, officer-in-charge (OIC). He
confirmed Alfredo Baylosis' dismissal due to these unspecified irregularities, then denied that
FRANCISCO ever ordered that MONINA be given her allowance. Likewise, Iigo never heard
FRANCISCO mention that MONINA was his (FRANCISCO's) daughter.
Lourdes Ledesma, FRANCISCO's daughter, testified that she saw (but did not know) MONINA
at the Our Lady of Mercy Hospital, on the occasion of the birth of Lourdes' first son, Mark. Over
lunch one day, Lourdes' aunt casually introduced Lourdes and MONINA to each other, but they
were referred to only by their first names. Then sometime in 1983 or 1984, MONINA allegedly
went to Lourdes' house in Sta. Clara Subdivision requesting for a letter of introduction or referral
as MONINA was then job-hunting. However, Lourdes did not comply with the request.
Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller & Cruz from
1968 up to 1971, however, he did not personally interview her before she was accepted for
employment. Moreover, MONINA underwent the usual screening procedure before being hired.
Jose recalled that one of the accountants, a certain Mr. Atienza, reported that MONINA claimed
to be FRANCISCO's daughter. Jose then told Mr. Atienza to speak with MONINA and see if he
(Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza reported that he spoke with
MONINA, who told him that she planned to leave for the United States and needed P20,000.00
for that purpose, and in exchange, she would sign a document disclaiming filiation with
FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with Jose, and at
that meeting, MONINA confirmed Mr. Atienza's report. Jose then informed Atty. Tirol,
FRANCISCO's personal lawyer, about the matter.
Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirol's) office in Iloilo. Jose then
wrote out a letter of introduction for MONINA addressed to Atty. Tirol Jose relayed Atty. Tirol's
message to MONINA through Mr. Atienza, then later, Atty. Tirol told Jose to go to Iloilo with a
clerk for P15,000.00 Jose complied, and at Atty. Tirol's office, Jose saw MONINA, Atty. Tirol and
his secretary reading some documents. MONINA then expressed her willingness to sign the
document, sans revisions. Jose alleged that he drew the P15,000.00 from his personal funds,
subject to reimbursement from and due to an understanding with FRANCISCO.
Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946, testified that
she knew that Pansay was Lourdes' nanny; that Lourdes slept in her parents' room; that she
had not seen FRANCISCO give special treatment to Pansay; that there was no "unusual
relationship" between FRANCISCO and Pansay, and if there was any, Dolores would have
easily detected it since she slept in the same room as Pansay. Dolores further declared that
whenever FRANCISCO's wife was out of town, Pansay would bring Lourdes downstairs at
nighttime, and that Pansay would not sleep in the room where FRANCISCO slept. Finally,
Dolores declared that Pansay stopped working for FRANCISCO and his wife in October, 1944.
The reception of evidence having been concluded, the parties filed their respective memoranda.
It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21 October
1986, thereby hearing only the testimonies of MONINA's witnesses and about half of MONINA's

testimony on direct examination. Judge Norberto E. Devera, Jr. heard the rest of MONINA's
testimony and those of FRANCISCO's witnesses.
In its decision of 12 November 1990 12 the trial court, through Judge Devera, dismissed the
complaint with costs against MONINA. In the opening paragraph thereof, it observed:
This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina Jison
against defendant Francisco Jison. This complaint was filed on March 13, 1985 at the time
when plaintiff, reckoned from her death of birth, was already thirty-nine years old. Noteworthy
also is the fact that it was instituted twenty years after the death of plaintiff's mother, Esperanza
Amolar. For the years between plaintiff's birth and Esperanza's death, no action of any kind was
instituted against defendant either by plaintiff, her mother Esperanza or the latter's parents.
Neither had plaintiff brought such an action against defendant immediately upon her mother's
death on April 20, 1965, considering that she was then already nineteen years old or, within a
reasonable time thereafter. Twenty years more had to supervene before this complaint was
eventually instituted.
The trial court then proceeded to discuss the four issues stipulated at pre-trial, without, however,
summarizing the testimonies of the witnesses nor referring to the testimonies of the witnesses
other than those mentioned in the discussion of the issues.
The trial court resolved the first issue in the negative, holding that it was improbable for witness
Lope Amolar to have noticed that Pansay was pregnant upon seeing her at the Elena
Apartments in November 1945, since Pansay was then only in her first month of pregnancy; that
there was no positive assertion that "copulation did indeed take place between Francisco and
Esperanza;" and that MONINA's attempt to show opportunity on the part of FRANCISCO failed
to consider "that there was also the opportunity for copulation between Esperanza and one of
the several domestic helpers admittedly also residing at Nelly's Garden at that time." The RTC
also ruled that the probative value of the birth and baptismal certificates of MONINA paled in
light of jurisprudence, especially when the misspellings therein were considered.
The trial court likewise resolved the second issue in the negative, finding that MONINA's
evidence thereon "may either be one of three categories, namely: hearsay evidence,
incredulous evidence, or self-serving evidence." To the first category belonged the testimonies
of Adela Casabuena and Alfredo Baylosis, whose knowledge of MONINA's filiation was based,
as to the former, on "utterances of defendant's wife Lilia and Esperanza allegedly during the
heat of their quarrel," while as to the latter, Alfredo's conclusion was based "from the rumors
going [around] that plaintiff is defendant's daughter, front his personal observation of plaintiff's
facial appearance which he compared with that of defendant's and from the way the two
(plaintiff and defendant) acted and treated each other on one occasion that he had then
opportunity to closely observe them together." To the second category belonged that of
Dominador Savariz, as:
At each precise time that Esperanza allegedly visited Nelly's Garden and allegedly on those
occasions when defendant's wife, Lilia was in Manila, this witness was there and allegedly
heard pieces of conversation between defendant and Esperanza related to the paternity of the
latter's child. . .
The RTC then placed MONINA's testimony regarding the acts of recognition accorded her by
FRANCISCO's relatives under the third category, since the latter were never presented as
witnesses, for which reason the trial court excluded the letters from FRANCISCO's relatives
(Exhs. S to V).
As to the third issue, the trial court held that MONINA was not barred by prescription for it was of
"the perception . . . that the benefits of Article 268 accorded to legitimate children may be
availed of or extended to illegitimate children in the same manner as the Family Code has so
provided;" or by laches, "which is [a] creation of equity applied only to bring equitable results,
and . . . addressed to the sound discretion of the court [and] the circumstances [here] would
show that whether plaintiff filed this case immediately upon the death of her mother Esperanza

in 1965 or twenty years thereafter in 1985, . . . there seems to be no inequitable result to

defendant as related to the situation of plaintiff."
The RTC ruled, however, that MONINA was barred by estoppel by deed because of the affidavit
(Exh. P/Exh. 2) which she signed "when she was already twenty-five years, a professional
and . . . under the able guidance of counsel."
Finally, the RTC denied FRANCISCO's claim for damages, finding that MONINA did not file the
complaint with malice, she having been "propelled by an honest belief, founded on probable
cause."
MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860) and sought
reversal of the trial court's decision on the grounds that:
I
THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE THIS CASE
AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT APPELLANT'S DELAY IN
FILING HER COMPLAINT WAS FATAL TO HER CASE.
II
THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF APPELLANT'S
WITNESSES AS TAILOR-MADE, INADEQUATE AND INCREDIBLE.
III
THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF THE CERTIFIED
COPIES OF PUBLIC DOCUMENTS PRESENTED BY APPELLANT AS PART OF HER
EVIDENCE.
IV
THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO THE ACTUAL ACT
O COPULATION BETWEEN THE APPELLEE AND APPELLANT'S MOTHER SHOULD HAVE
POSITIVELY TESTIFIED TO SAID EFFECT.
V
THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE DULY IDENTIFIED
NOTES AND LETTER OF THE RELATIVES OF THE APPELLEE AS HEARSAY.
VI
THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT'S AFFIDAVIT (EXH. P)
SERVED AS A BAR AGAINST HER CLAIM FOR RECOGNITION INSTEAD OF REINFORCING
SAID CLAIM. 13
Expectedly, FRANCISCO refuted these alleged errors in his Appellee's Brief. 14
In its decision of 27 April 1995, 15 the Court of Appeals initially declared that as no vested or
acquired rights were affected, the instant case was governed by Article 175, in relation to
Articles 172 and 173, of the Family Code. 16 While the Court of Appeals rejected the
certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E and F) as FRANCISCO
did not sign them, said court focused its discussion on the other means by which illegitimate
filiation could be proved, i.e., the open and continuous possession of the status of an illegitimate
child or, by any other means allowed by the Rules of Court and special laws, such as "the
baptismal certificate of the child, a judicial admission, a family bible wherein the name of the
child is entered, common reputation respecting pedigree, admission by silence, testimonies of
witnesses . . ." 17 To the Court of Appeals, the "bottom line issue" was whether or not MONINA
established her filiation as FRANCISCO's illegitimate daughter by preponderance of evidence,
as to which issue said court found:
[N]ot just preponderant but overwhelming evidence on record to prove that [MONINA] is the
illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed such status by
direct acts of [FRANCISCO] and/or his relatives.
In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar, Adela
Casabuena and Dominador Savariz were already sufficient to establish MONINA's filiation:
As adverted to earlier, the trial court discredited Lope Amolar's testimony by saying that Lope

could not have detected Esperanza's pregnant state in November, 1945 since at that point in
time [sic] she was still in the initial stage of pregnancy. Apparently, the trial court paid more
emphasis on the date mentioned by Lope Amolar than on the tenor and import his testimony. As
. . . Lope . . . was asked about an incident that transpired more than 41 years back, [u]nder the
circumstances, it is unreasonable to expect that Lope could still be dead right on the specific
month in 1945 that [he] met and confronted his sister. At any rate, what is important is not the
month that they met but the essence of his testimony that his sister pointed to their employer
[FRANCISCO] as the one responsible for her pregnancy, and that upon being confronted,
[FRANCISCO] assured him of support for Esperanza and their child. It would appear then that in
an attempt to find fault with Lope's testimony, the trial court has fallen oblivious to the fact that
even [FRANCISCO], in his deposition, did not deny that he was confronted by Lope about what
he had done to Esperanza during which he unequivocally acknowledged paternity by assuring
Lope of support for both Esperanza and their child.
The Court of Appeals further noted that Casabuena and Savariz "testified on something that
they personally observed or witnessed," which matters FRANCISCO "did not deny or refute."
Finally, said court aptly held:
Taking into account all the foregoing uncontroverted testimonies
. . . let alone such circumstantial evidence as [MONINA's] Birth Certificates . . . and Baptismal
Certificates which invariably bear the name of [FRANCISCO] as her father, We cannot go along
with the trial court's theory that [MONINA's] illegitimate filiation has not been satisfactorily
established.
xxx xxx xxx
Significantly, [MONINA's] testimony finds ample corroboration from [FRANCISCO's] former
employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. . . .
xxx xxx xxx
Carefully evaluating appellant's evidence on her enjoyment of the status of an illegitimate
daughter of [FRANCISCO] vis-a-vis [FRANCISCO's] controversion thereof, We find more weight
in the former. The positive testimonies of [MONINA] and [her] witnesses . . . all bearing on
[FRANCISCO's] acts and/or conduct indubitably showing that he had continuously
acknowledged [MONINA] as his illegitimate daughter have not been succeessfully [sic] refuted.
In fact, [FRANCISCO] himself, in his deposition, only casually dismissed [MONINA's] exhaustive
and detailed testimony as untrue, and with respect to those given by [MONINA's] witnesses, he
merely explained that he had fired [them] from their employment. Needless to state,
[FRANCISCO's] vague denial is grossly inadequate to overcome the probative weight of
[MONINA's] testimonial evidence.
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court . . . does not hold
sway in the face of [MONINA's] logical explanation that she at first did agree to sign the affidavit
which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who,
however explained to her that the affidavit was only for the consumption of his spouse . . .
Further, the testimony of Jose Cruz concerning the events that led to the execution of the
affidavit . . . could not have been true, for as pointed out by [MONINA] she signed the affidavit . .
. almost five months after she had resigned from the Miller, Cruz & Co. . . .
At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if
not absurd, for [FRANCISCO] or his lawyer to have secured [MONINA's] sworn statement . . .
On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000.
[FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA] . .
.
In fine, We hold that [MONINA's] filiation as [FRANCISCO's] illegitimate daughter has been
conclusively, established by the uncontroverted testimonies of Lope Amolar, Adela Casabuena
and Dominador Savariz to the effect that appellee himself had admitted his paternity of the
appellee, and also by the testimonies of appellant; Arsenio Duatin, Romeo Bilbao, Rudy Tingson

and Alfredo Baylosis unerringly demonstrating that by his own conduct or overt acts like sending
appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the
Colegio del Sagrado Corazon de Jesus, defraying appellant's hospitalization expenses,
providing her with [a] monthly allowance, paying for the funeral expenses of appellant's mother,
acknowledging appellant's paternal greetings and calling appellant his "Hija" or child, instructing
his office personnel to give appellant's monthly allowance, recommending appellant for
employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and paying
for her long distance telephone calls, having appellant spend her vacation in his apartment in
Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic
and other records (Exhs. Z, AA, AA-1, to AA-5, W & W-5), appellee had continuously recognized
appellant as his illegitimate daughter. Added to these are the acts of [FRANCISCO's] relatives
acknowledging or treating [MONINA] as [FRANCISCO's] daughter (Exh. U) or as their relative
(Exhs. T & V). On this point, witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse
belongs to the Lopez clan just like [FRANCISCO], testified that [MONINA) has been considered
by the Lopezes as a relative. He identified pictures of the appellee in the company of the
Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband Eusebio
Lopez is appellee's first cousin, testified that appellant was introduced to her by appellee's
cousin, Remedios Lopez Franco, as the daughter of appellee Francisco Jison, for which reason,
she took her in as [a] secretary in the Merchant's Financing Corporation of which she was the
manager, and further allowed her to stay with her family free of board and lodging. Still on this
aspect, Dominador Savariz declared that sometime in February, 1966 appellee's relative, Ms.
Remedios Lopez Franco pointed to appellant as the daughter of appellee Francisco Jison.
Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well as
[MONINA's] Baptismal Certificates (Exhs C & D) which the trial court admitted in evidence as
part of [MONINA's] testimony, may serve as circumstantial evidence to further reinforce
[MONINA's] claim that she is [FRANCISCO's] illegitimate daughter by Esperanza Amolar.
True it is that a trial judge's assessment of the credibility of witnesses is accorded great respect
on appeal. But the rule admits of certain exceptions. One such exception is where the judge
who rendered the judgment was not the one who heard the witnesses testify. [citations omitted]
The other is where the trial court had overlooked, misunderstood or misappreciated some facts
or circumstances of weight and substance which, if properly considered, might affect the result
of the case. [citations omitted] In the present case, both exceptions obtain. All of [MONINA's]
witnesses . . . whose testimonies were not given credence did not testify before the judge who
rendered the disputed judgment . . .
The Court of Appeals then decreed:
WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE and another
one is hereby entered for appellant Monina Jison, declaring her as the illegitimate daughter of
appellee Francisco Jison, and entitled to all rights and privileges granted by law.
Costs against appellee.
SO ORDERED.
His motion for reconsideration having been denied by the Court of Appeals in its resolution of 29
March 1996, 18 FRANCISCO filed the instant petition. He urges us to reverse the judgment of
the Court of Appeals, alleging that said court committed errors of law:
I.
. . . IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING PRIVATE
RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER, CONSIDERING [THE]
IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN THE PETITIONER AND THE PRIVATE
RESPONDENTS MOTHER AT THE TIME CONCEPTION WAS SUPPOSED TO HAVE
OCCURRED.
II.
. . . IN REVERSING THE TRIAL COURT'S FINDING CONSIDERING THAT PRIVATE

RESPONDENTS TESTIMONIAL EVIDENCE OF PATERNITY AND FILIATION IS NOT CLEAR

AND CONVINCING.
III.
. . . IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY THE PRIVATE
RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT THE SAME ARE
HEARSAY, SELF-SERVING AND CANNOT BIND THE PETITIONER UNDER THE BASIC
RULES OF EVIDENCE.
IV.
. . . IN INTERPRETING THE PRIVATE RESPONDENTS SWORN STATEMENT (EXH. "P"
/EXH. "2") IN A MANNER NOT IN CONSONANCE WITH THE RULINGS OF THE
HONORABLE SUPREME COURT.
V.
. . . IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE FILING OF THE
PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES.
As regards the first error, FRANCISCO insists that taking into account the second paragraph of
MONINA's complaint wherein she claimed that he and Pansay had sexual relations "by about
the end of 1945 or the start of 1946," it was physically impossable for him and Pansay to have
had sexual contact which resulted in MONINA's birth, considering that:
The normal period of human pregnancy is nine (9) months. If as claimed by private respondent
in her complaint that her mother was impregnated by FRANCISCO "at the end of 1945 or the
start of 1946", she would have been born sometime in late September or early October and not
August 6, 1946 . . . The instant case finds factual and legal parallels in Constantino vs. Mendez,
19
thus: . . .
FRANCISCO further claims that his testimony that Pansay was no longer employed by him at
the time in question was unrebutted, moreover, other men had access to Pansay during the time
of or even after her employment by him.
As to the second error, FRANCISCO submits that MONINA's testimonial evidence is "shaky,
contradictory and unreliable," and proceeds to attack the credibility of her witnesses by claiming,
in the main, that: (a) Lope Amolar could not have detected Pansay pregnancy in November
1945 when they met since she would have been only one (1) month pregnant then; (b)
Dominador Savariz did not in fact witness the meeting between FRANCISCO, Pansay and
MONINA; (c) Zafiro Ledesma had an ulterior motive in testifying for MONINA as he owned a
bank in Iloilo which was then under Central Bank supervision and MONINA was the Bank
Examiner assigned to Iloilo; and (d) Danthea Lopez was not related to him by blood and
whatever favorable treatment MONINA received from Danthea was due to the former's
employment at Merchants' Financing Company and additional services rendered at Kahirup
Hotel; besides Danthea admitted that she had no personal knowledge as to the issue of
paternity and filiation of the contending parties, hence Sections 39 and 40 20 of Rule 130 of the
Rules of Court did not come into play. FRANCISCO likewise re-echoes the view of the trial court
as regards the testimonies of Adela Casabuena and Alfredo Baylosis.
FRANCISCO further asserts that MONINA's testimony that he answered for her schooling was
self-serving and uncorroborated by any receipt or other documentary evidence; and assuming
he did, such should be interpreted as a manifestation of kindness shown towards the family of a
former household helper.
Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO points to
the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA resided with the
families of Eusebio Lopez and Concha Cuaycong because she was in their employ at Kahirup
Hotel and Our Lady of Mercy Hospital, respectively; MONINA failed to present Mrs. Franco,
Eusebio Lopez and Mrs. Cuaycong; and MONINA's employment at the accounting firm of Miller,
Cruz & Co. was attributable to her educational attainment, there being absolutely no evidence to
prove that FRANCISCO ever facilitated her employment thereat. Hence, in light of Baluyot v.

Baluyot, 21 the quantum of evidence to prove paternity by clear and convincing evidence, not
merely a preponderance thereof, was not met.
With respect to the third assigned error, FRANCISCO argues that the Court of Appeals' reliance
on the certifications of the Local Civil Registrar (Exhs. E and F) and Baptismal Certificates
(Exhs. C and D) as circumstantial evidence is misplaced. First, their genuineness could not be
ascertained as the persons who issued them did not testify. Second, in light of Reyes v. Court of
Appeals, 22 the contents of the baptismal certificates were hearsay, as the data was based only
on what was told to the priest who solemnized the baptism, who likewise was not presented as
a witness. Additionally, the name of the father appearing therein was "Franque Jison," which
was not FRANCISCO's name. Third, in both Exhibits E and F, the names of the child's parents
were listed as "Frank Heson" and "Esperanza Amador" (not Amolar). FRANCISCO further
points out that in Exhibit F, the status of the child is listen as "legitimate," while the father's
occupation as "laborer." Most importantly, there was no showing that FRANCISCO signed
Exhibits E and F or that he was the one who reported the child's birth to the Office of the Local
Civil Registrar. As to MONINA's educational records, FRANCISCO invokes Baas v. Baas 23
which recognized that school records are prepared by school authorities, not by putative
parents, thus incompetent to prove paternity. And, as to the photographs presented by
MONINA, FRANCISCO cites Colorado v. Court of Appeals, 24 and further asserts that MONINA
did not present any of the persons with whom she is seen in the pictures to testify thereon;
besides these persons were, at best, mere second cousins of FRANCISCO. He likewise assails
the various notes and letters written by his relatives (Exhs. S to V) as they were not identified by
the authors. Finally, he stresses that MONINA did not testify as to the telephone cards (Exhs. G
to L) nor did these reveal the circumstances surrounding the calls she made from his residence.
Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals' interpretation
of MONINA's affidavit of 21 September 1971 ran counter to Dequito v. Llamas, 25 and
overlooked that at the time of execution, MONINA was more than 25 years old and assisted by
counsel.
As to the last assigned error, FRANCISCO bewails the Court of Appeals' failure to consider the
long and unexplained delay in the filing of the case.
In her comment, MONINA forcefully refuted FRANCISCO's arguments, leading FRANCISCO to
file his reply thereto.
On 20 November 1996, we gave due course to this petition and required the parties to submit
their respective memoranda, which they subsequently did.
A painstaking review of the evidence and arguments fails to support petitioner.
Before addressing the merits of the controversy, we first dispose of preliminary matters relating
to the applicable law and the guiding principles in paternity suits. As to the former, plainly, the
Family Code of the Philippines (Executive Order No. 209) governs the present controversy. As
correctly cited by the Court of Appeals, Uyguangco 26 served as a judicial confirmation of Article
256 of the Family Code 27 regarding its retroactive effect unless there be impairment of vested
rights, which does not hold true here, it appearing that neither the putative parent nor the child
has passed away and the former having actually resisted the latter's claim below.
Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may be
established in the same way and on the same evidence as that of legitimate children. Article 172
thereof provides the various forms of evidence by which legitimate filiation is established, thus:
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.

This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil Code.
For the success of an action to establish illegitimate filiation under the second paragraph. which
MONINA relies upon given that she has none of the evidence mentioned in the first paragraph,
a "high standard of proof" 28 is required. Specifically, to prove open and continuous possession
of the status of an illegitimate child, there must be evidence of the manifestation of the
permanent intention of the supposed father to consider the child as his, by continuous and clear
manifestations of parental affection and care, which cannot be attributed to pure charity. Such
acts must be of such a nature that they reveal not only the conviction of paternity, but also the
apparent desire to have and treat the child as such in all relations in society and in life, not
accidentally, but continuously. 29
By "continuous" is meant uninterrupted and consistent, but does not require any particular
length of time. 30
The foregoing standard of proof required to establish one's filiation is founded on the principle
that an order for recognition and support may create an unwholesome atmosphere or may be
an irritant in the family or lives of the parties, so that it must be issued only if paternity or filiation
is established by clear and convincing evidence. 31
The foregoing discussion, however, must be situated within the general rules on evidence, in
light of the burden of proof in civil cases, i.e., preponderance of evidence, and the shifting of the
burden of evidence in such cases. Simply put, he who alleges the affirmative of the issue has
the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts.
However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his
favor, the duty or the burden of evidence shifts to defendant to controvert plaintiff's prima facie
case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the
party having the burden of proof must produce a preponderance of evidence thereon, with
plaintiff having to rely on the strength of his own evidence and not upon the weakness of the
defendant's. The concept of "preponderance of evidence" refers to evidence which is of greater
weight, or more convincing, that which is offered in opposition to it; at bottom, it means
probability of truth. 32
With these in mind, we now proceed to resolve the merits of the instant controversy.
FRANCISCO's arguments in support of his first assigned error deserve scant consideration.
While it has been observed that unlawful intercourse will not be presumed merely from proof of
an opportunity for such indulgence, 33 this does not favor FRANCISCO. Akin to the crime of rape
where, in most instances, the only witnesses to the felony are the participants in the sexual act
themselves, in deciding paternity suits, the issue of whether sexual intercourse actually
occurred inevitably redounds to the victim's or mother's word, as against the accused's or
putative father's protestations. In the instant case, MONINA's mother could no longer testify as
to the fact of intercourse, as she had, unfortunately, passed away long before the institution of
the complaint for recognition. But this did not mean that MONINA could no longer prove her
filiation. The fact of her birth and her parentage may be established by evidence other than the
testimony of her mother. The paramount question then is whether MONINA's evidence is
coherent, logical and natural. 34
The complaint stated that FRANCISCO had carnal knowledge of Pansay "by about the end of
1945." We agree with MONINA that this was broad enough to cover the fourth quarter of said
year, hence her birth on 6 August 1946 could still be attributed to sexual relations between
FRANCISCO and MONINA's mother. In any event, since it was established that her mother was
still in the employ of FRANCISCO at the time MONINA was conceived as determined by the
date of her birth, sexual contact between FRANCISCO and MONINA's mother was not at all
impossible, especially in light of the overwhelming evidence, as hereafter shown, that
FRANCISCO fathered MONINA, has recognized her as his daughter and that MONINA has
been enjoying the open and continuous possession of the status as FRANCISCO's illegitimate
daughter.

We readily conclude that the testimonial evidence offered by MONINA, woven by her narration
of circumstances and events that occurred through the years, concerning her relationship with
FRANCISCO, coupled with the testimonies of her witnesses, overwhelmingly established the
following facts:
1) FRANCISCO is MONINA's father and she was conceived at the time when her mother was in
the employ of the former;
2) FRANCISCO recognized MONINA as his child through his overt acts and conduct which the
Court of Appeals took pains to enumerate, thus:
[L]ike sending appellant to school, paying for her tuition fees, school uniforms, books, board and
lodging at the Colegio del Sagrado de Jesus, defraying appellant's hospitalization expenses,
providing her with [a] monthly allowance, paying for the funeral expenses of appellant's mother,
acknowledging appellant's paternal greetings and calling appellant his "Hija" or child, instructing
his office personnel to give appellant's monthly allowance, recommending appellant to use his
house in Bacolod and paying for her long distance telephone calls, having appellant spend her
long distance telephone calls, having appellant spend her vacation in his apartment in Manila
and also at his Forbes residence, allowing appellant to use his surname in her scholastic and
other records (Exhs Z, AA, AA-1 to AA-5, W & W-5) . . .
3) Such recognition has been consistently shown and manifested throughout the years publicly,
35
spontaneously, continuously and in an uninterrupted manner. 36
Accordingly, in light of the totality of the evidence on record, the second assigned error must fail.
There is some merit, however, in the third assigned error against the probative value of some of
MONINA's documentary evidence.
MONINA's reliance on the certification issued by the Local Civil Registrar concerning her birth
(Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth purportedly
identifying the putative father is not competent evidence as to the issue of paternity, when there
is no showing that the putative father had a hand in the preparation of said certificates, and the
Local Civil Registrar is devoid of authority to record the paternity of an illegitimate child upon the
information of a third person. 37 Simply put, if the alleged father did not intervene in the birth
certificate, e.g., supplying the information himself, the inscription of his name by the mother or
doctor or registrar is null and void; the mere certificate by the registrar without the signature of
the father is not proof of voluntary acknowledgment on the latter's part. 38 In like manner,
FRANCISCO's lack of participation in the preparation of the baptismal certificates (Exhs. C and
D) and school records (Exhs. Z and AA) renders these documents incompetent to prove
paternity, the former being competent merely to prove the administration of the sacrament of
baptism on the date so specified. 39 However, despite the inadmissibility of the school records
per se to prove the paternity, they may be admitted as part of MONINA's testimony to
corroborate her claim that FRANCISCO spent for her education.
We likewise disagree with the ruling of the Court of Appeals that the certificates issued by the
Local Civil Registrar and the baptismal certificates may be taken as circumstantial evidence to
prove MONINA's filiation. Since they are per se inadmissible in evidence as proof of such
filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same.
As to Exhibits "S," "T," "U" and "V," the various notes and letters written by FRANCISCO's
relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez, respectively,
allegedly attesting to MONINA's filiation, while their due execution and authenticity are not in
issue, 40 as MONINA witnessed the authors signing the documents, nevertheless, under Rule
130, Section 39, the contents of these documents may not be admitted, there being no showing
that the declarants-authors were dead or unable to testify, neither was the relationship between
the declarants and MONINA shown by evidence other than the documents in question. 41 As to
the admissibility of these documents under Rule 130, Section 40, however, this requires further
elaboration.
Rule 130, Section 40, provides:

Sec. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing
in a family previous to the controversy, in respect to the pedigree of any one of its members,
may be received in evidence if the witness testifying thereon be also a member of the family,
either by consanguinity or affinity. Entries in family bibles or other family books or charts,
engravings on rings, family portraits and the like may be received as evidence of pedigree.
(emphasis supplied)
It is evident that this provision may be divided into two (2) parts: the portion containing the first
underscored clause which pertains to testimonial evidence, under which the documents in
question may not be admitted as the authors thereof did not take the witness stand; and the
section containing the second underscored phrase. What must then be ascertained is whether
Exhibits S to V, as private documents, fall within the scope of the clause "and the like" as
qualified by the preceding phrase "[e]ntries in family bibles or other family books or charts,
engravings on rights [and] family portraits,"
We hold that the scope of the enumeration contained in the second portion of this provision, in
light of the rule of ejusdem generis, is limited to objects which are commonly known as "family
possessions," or those articles which represent, in effect, a family's joint statement of its belief
as to the pedigree of a person. 42 These have been described as objects "openly exhibited and
well known to the family," 43 or those "which, if preserved in a family, may be regarded as giving
a family tradition." 44 Other examples of these objects which are regarded as reflective of a
family's reputation or tradition regarding pedigree are inscriptions on tombstones, 45 monuments
or coffin plates. 46
Plainly then, Exhibits S to V, as private documents not constituting "family possessions" as
discussed above, may not be admitted on the basis of Rule 130, Section 40. Neither may these
exhibits be admitted on the basis of Rule 130, Section 41 regarding common reputation, 47 it
having been observed that:
[T]he weight of authority appears to be in favor of the theory that it is the general repute, the
common reputation in the family, and not the common reputation in community, that is a
material element of evidence going to establish pedigree. . . . [Thus] matters of pedigree may be
proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except
where the pedigree in question is marriage which may be proved by common reputation in the
community. 48
Their inadmissibility notwithstanding, Exhibits "S" to "V," inclusive, may, in like manner as
MONINA's school records, properly be admitted as part of her testimony to strengthen her claim
that, indeed, relatives of FRANCISCO recognized her as his daughter.
We now direct our attention to MONINA's 21 September 1971 affidavit (Exh. P/Exh. 2), subject
of the fourth assigned error, where she attests that FRANCISCO is not her father. MONINA
contends that she signed it under duress, i.e., she was jobless, had no savings and needed the
money to support herself and finish her studies. Moreover, she signed Exhibit P upon the advice
of Atty. Divinagracia that filiation could not be waived and that FRANCISCO's ploy would
"boomerang" upon him. On the other hand, FRANCISCO asserts that full credence should be
afforded Exhibit P as MONINA was already 25 years old at the time of its execution and was
advised by counsel; further, being a notarized document, its genuineness and due execution
could not be questioned. He relies on the testimony of Jose Cruz, a partner at the accounting
firm of Miller & Cruz, who declared that he intervened in the matter as MONINA was spreading
rumors about her filiation within the firm, which might have had deleterious effects upon the
relationship between the firm and FRANCISCO.
On this issue, we find for MONINA and agree with the following observations of the Court of
Appeals:
Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court . . . does not hold
sway in the face of [MONINA's] logical explanation that she at first did agree to sign the affidavit
which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who,

however explained to her that the affidavit was only for the consumption of his spouse . . .
At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if
not absurd, for [FRANCISCO] of his lawyer to have secured [MONINA's] sworn statement . . .
On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000.
[FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA] . .
.
Indeed, if MONINA were truly not FRANCISCO's illegitimate daughter, it would have been
unnecessary for him to have gone to such great lengths in order that MONINA denounce her
filiation. For as clearly established before the trial court and properly appreciated by the Court of
Appeals, MONINA had resigned from Miller & Cruz five (5) months prior to the execution of the
sworn statement in question, hence negating FRANCISCO's theory of the need to quash
rumors circulating within Miller & Cruz regarding the identity of MONINA's father. Hence,
coupled with the assessment of the credibility of the testimonial evidence of the parties
discussed above, it is evident that the standard to contradict a notarial document, i.e. clear and
convincing evidence and more than merely preponderant, 49 has been met by MONINA
Plainly then, the burden of evidence fully shifted to FRANCISCO.
Two (2) glaring points in FRANCISCO's defense beg to be addressed: First, that his testimony
was comprised of mere denials, rife with bare, unsubstantiated responses such as "That is not
true," "I do not believe that," or "None that I know." In declining then to lend credence to
FRANCISCO's testimony, we resort to a guiding principle in adjudging the credibility of a witness
and the truthfulness of his statements, laid down as early as 1921:
The experience of courts and the general observation of humanity teach us that the natural
limitations of our inventive faculties are such that if a witness undertakes to fabricate and deliver
in court a false narrative containing numerous details, he is almost certain to fall into fatal
inconsistencies, to make statements which can be readily refuted, or to expose in his demeanor
the falsity of his message.
For this reason it will be found that perjurers usually confine themselves to the incidents
immediately related to the principal fact about which they testify, and when asked about
collateral facts by which their truthfulness could be tested, their answers not infrequently take
the stereotyped form of such expressions as "I don't know" or "I don't remember." . . . 50
Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were unspecified or
likewise unsubstantiated, hence FRANCISCO's attempt to prove ill-motive on their part to falsely
testify in MONINA's favor may not succeed. As may be gleaned, the only detail which
FRANCISCO could furnish as to the circumstances surrounding the dismissals of his former
employees was that Baylosis allegedly "took advantage of his position" while FRANCISCO was
in the United States. But aside from this bare claim, FRANCISCO's account is barren, hence
unable to provide the basis for a finding of bias against FRANCISCO on the part of his former
employees.
As to FRANCISCO's other witnesses, nothing substantial could be obtained either. Nonito
Jalandoni avowed that he only came to know of MONINA in June 1988; 51 that during his
employment at Nelly Garden from 1963 up to 1974, he did not recall ever having seen MONINA
there, neither did he know of any instructions from FRANCISCO nor Mr. Lagarto (FRANCISCO's
office manager before passing away) regarding the disbursement of MONINA's allowance. 52
Teodoro Zulla corroborated Jalandoni's testimony regarding not having seen MONINA at Nelly
Garden and MONINA's allowance; declared that Alfredo Baylosis was dismissed due to
discrepancies discovered after an audit, without any further elaboration, however; but admitted
that he never prepared the vouchers pertaining to FRANCISCO's personal expenses, merely
those intended for one of FRANCISCO's haciendas. 53 Then, Iigo Superticioso confirmed that
according to the report of a certain Mr. Atienza, Baylosis "was dismissed by Mr. Jison for
irregularities," while Superticioso was informed by FRANCISCO that Tingson was dismissed for
loss of confidence. Superticioso likewise denied that MONINA received money from

FRANCISCO's office, neither was there a standing order from FRANCISCO to release funds to
her. 54
It is at once obvious that the testimonies of these witnesses for FRANCISCO are likewise
insufficient to overcome MONINA's evidence. The former merely consist of denials as regards
the latter's having gone to Nelly Garden or having received her allowance from FRANCISCO's
office, which, being in the form of negative testimony, necessarily stand infirm as against
positive testimony; 55 bare assertions as regards the dismissal of Baylosis; ignorance of
FRANCISCO's personal expenses incapable of evincing that FRANCISCO did not provide
MONINA with an allowance; or hearsay evidence as regards the cause for the dismissals of
Baylosis and Tingson. But what then serves as the coup de grace is that despite Superticioso's
claim that he did not know MONINA, 56 when confronted with Exhibit H, a telephone toll ticket
indicating that on 18 May 1971, MONINA called a certain "Eing" at FRANCISCO's office,
Superticioso admitted that his nickname was "Iing" and that there was no other person named
"Iing" in FRANCISCO's office. 57
All told, MONINA's evidence hurdled "the high standard of proof" required for the success of an
action to establish one's illegitimate filiation when relying upon the provisions regarding "open
and continuous possession'' or "any other means allowed by the Rules of Court and special
laws;" moreover, MONINA proved her filiation by more than mere preponderance of evidence.
The last assigned error concerning laches likewise fails to convince. The essential elements of
laches are: (1) conduct on the part of the defendant, or of one under whom he claims, giving
rise to the situation of which the complaint seeks a remedy; (2) delay in asserting the
complainant's rights, the complainant having had knowledge or notice of the defendant's
conduct as having been afforded an opportunity to institute a suit; (3) lack of knowledge or
notice on the part of the defendant that the complaint would assert the right in which he bases
his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the
complaint, or the suit is not held barred. 58 The last element is the origin of the doctrine that sale
demands apply only where by reason of the lapse of time it would be inequitable to allow a party
to enforce his legal rights. 59
As FRANCISCO set up, laches as an affirmative defense, it was incumbent upon him to prove
the existence of its elements. However, he only succeeded in showing MONINA's delay in
asserting her claim, but miserably failed to prove the last element. In any event, it must be
stressed that laches is based upon grounds of public policy which requires, for the peace of
society, the discouragement of state claims, and is principally a question of the inequity or
unfairness of permitting a right or claim to be enforced or asserted. There is no absolute rule as
to what constitutes laches; each case is to be determined according to its particular
circumstances. The question of laches is addressed to the sound discretion of the court, and
since it is an equitable doctrine, its application is controlled by equitable considerations. It
cannot be worked to defeat justice or to perpetuate fraud and injustice. 60 Since the instant case
involves paternity and filiation, even if illegitimate, MONINA filed her action well within the period
granted her by a positive provision of law. A denial then of her action on ground of laches would
clearly be inequitable and unjust.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and the
challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No. 32860 is
AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, Vitug, Panganiban and Quisumbing, JJ., concur.
34.
Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION
G.R. No. 177728
July 31, 2009
JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ "AQUINO,"
represented by JENIE SAN JUAN DELA CRUZ, Petitioners,
vs.
RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo City,
Respondent.
DECISION
CARPIO MORALES, J.:
For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and
then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as
husband and wife without the benefit of marriage. They resided in the house of Dominiques
parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan,
Teresa, Rizal.
On September 4, 2005, Dominique died.1 After almost two months, or on November 2, 2005,
Jenie, who continued to live with Dominiques parents, gave birth to her herein co-petitioner
minor child Christian Dela Cruz "Aquino" at the Antipolo Doctors Hospital, Antipolo City.
Jenie applied for registration of the childs birth, using Dominiques surname Aquino, with the
Office of the City Civil Registrar, Antipolo City, in support of which she submitted the childs
Certificate of Live Birth,2 Affidavit to Use the Surname of the Father3 (AUSF) which she had
executed and signed, and Affidavit of Acknowledgment executed by Dominiques father
Domingo Butch Aquino.4 Both affidavits attested, inter alia, that during the lifetime of Dominique,
he had continuously acknowledged his yet unborn child, and that his paternity had never been
questioned. Jenie attached to the AUSF a document entitled "AUTOBIOGRAPHY" which
Dominique, during his lifetime, wrote in his own handwriting, the pertinent portions of which
read:
AQUINO, CHRISTIAN DOMINIQUE S.T.
AUTOBIOGRAPHY
IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS
COMING OCTOBER 31, 2005.5 I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN,
TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED
JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS DOMINGO BUTCH
AQUINO AND MY MOTHERS NAME IS RAQUEL STO. TOMAS AQUINO. x x x.
xxxx
AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR
HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN
LOVE WITH EACH OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE
IS PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE NOW. THATS ALL. 6
(Emphasis and underscoring supplied)
By letter dated November 11, 2005, 7 the City Civil Registrar of Antipolo City, Ronald Paul S.
Gracia (respondent), denied Jenies application for registration of the childs name in this wise:
7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of
Republic Act No. 9255 ["An Act Allowing Illegitimate Children to Use the Surname of their
Father, Amending for the Purpose, Article 176 of Executive Order No. 209, otherwise Known as
the Family Code of the Philippines"]) provides that:
Rule 7. Requirements for the Child to Use the Surname of the Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the surname of the father if a public document is executed
by the father, either at the back of the Certificate of Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall
use the surname of the father, provided the registration is supported by the following

documents:
a. AUSF8
b. Consent of the child, if 18 years old and over at the time of the filing of the document.
c. Any two of the following documents showing clearly the paternity between the father and the
child:
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his father because he was born out of wedlock
and the father unfortunately died prior to his birth and has no more capacity to acknowledge his
paternity to the child (either through the back of Municipal Form No. 102 Affidavit of
Acknowledgment/Admission of Paternity or the Authority to Use the Surname of the Father).
(Underscoring supplied)
Jenie and the child promptly filed a complaint 9 for injunction/registration of name against
respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539,
which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial of
registration of the childs name is a violation of his right to use the surname of his deceased
father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No. 9255,10
which provides:
Article 176. Illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their filiation has been expressly
recognized by the father through the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the regular courts to prove nonfiliation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the
legitime of a legitimate child. (Emphasis and underscoring supplied)
They maintained that the Autobiography executed by Dominique constitutes an admission of
paternity in a "private handwritten instrument" within the contemplation of the above-quoted
provision of law.
For failure to file a responsive pleading or answer despite service of summons, respondent was
declared in default.
Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her
common-law relationship with Dominique and affirmed her declarations in her AUSF that during
his lifetime, he had acknowledged his yet unborn child. 11 She offered Dominiques handwritten
Autobiography (Exhibit "A") as her documentary evidence-in-chief.12 Dominiques lone brother,
Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations.13
By Decision14 of April 25, 2007, the trial court dismissed the complaint "for lack of cause of
action" as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of
Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations Governing
the Implementation of R.A. 9255) which defines "private handwritten document" through which
a father may acknowledge an illegitimate child as follows:
2.2 Private handwritten instrument an instrument executed in the handwriting of the father and
duly signed by him where he expressly recognizes paternity to the child. (Underscoring
supplied)
The trial court held that even if Dominique was the author of the handwritten Autobiography, the
same does not contain any express recognition of paternity.1avvphi1
Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal

issue of:
WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED
FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION
OF PATERNITY IN A "PRIVATE HANDWRITTEN INSTRUMENT" WITHIN THE
CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255,
WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS SURNAME. 15 (Underscoring
supplied)
Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require
that the private handwritten instrument containing the putative fathers admission of paternity
must be signed by him. They add that the deceaseds handwritten Autobiography, though
unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of the
Administrative Order that the admission/recognition must be "duly signed" by the father is void
as it "unduly expanded" the earlier-quoted provision of Article 176 of the Family Code.16
Petitioners further contend that the trial court erred in not finding that Dominiques handwritten
Autobiography contains a "clear and unmistakable" recognition of the childs paternity.17
In its Comment, the Office of the Solicitor General (OSG) submits that respondents position, as
affirmed by the trial court, is in consonance with the law and thus prays for the dismissal of the
petition. It further submits that Dominiques Autobiography "merely acknowledged Jenies
pregnancy but not [his] paternity of the child she was carrying in her womb."18
Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use
the surname of his/her father if the latter had expressly recognized him/her as his offspring
through the record of birth appearing in the civil register, or through an admission made in a
public or private handwritten instrument. The recognition made in any of these documents is, in
itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action
for judicial approval is necessary.19
Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private
handwritten instrument acknowledging the childs paternity must be signed by the putative
father. This provision must, however, be read in conjunction with related provisions of the Family
Code which require that recognition by the father must bear his signature, thus:
Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the
same evidence as legitimate children.
xxxx
Art. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
x x x x (Emphasis and underscoring supplied)
That a father who acknowledges paternity of a child through a written instrument must affix his
signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of
A.O. No. 1, Series of 2004, merely articulated such requirement; it did not "unduly expand" the
import of Article 176 as claimed by petitioners.
In the present case, however, special circumstances exist to hold that Dominiques
Autobiography, though unsigned by him, substantially satisfies the requirement of the law.
First, Dominique died about two months prior to the childs birth. Second, the relevant matters in
the Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled
from the testimonial evidence Jenie proffered.20 Third, Jenies testimony is corroborated by the
Affidavit of Acknowledgment of Dominiques father Domingo Aquino and testimony of his brother
Joseph Butch Aquino whose hereditary rights could be affected by the registration of the
questioned recognition of the child. These circumstances indicating Dominiques paternity of the
child give life to his statements in his Autobiography that "JENIE DELA CRUZ" is "MY WIFE" as
"WE FELL IN LOVE WITH EACH OTHER" and "NOW SHE IS PREGNANT AND FOR THAT

WE LIVE TOGETHER."
In Herrera v. Alba,21 the Court summarized the laws, rules, and jurisprudence on establishing
filiation, discoursing in relevant part:
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on
the same evidence as legitimate children.
xxxx
ART. 172. The filiation of legitimate children is established by any of the following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child; or
(2) Any other means allowed by the Rules of Court and special laws.
The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130
provide:
SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by birth or marriage,
may be received in evidence where it occurred before the controversy, and the relationship
between the two persons is shown by evidence other than such act or declaration. The word
"pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and
the places where these facts occurred, and the names of the relatives. It embraces also facts of
family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition
existing in a family previous to the controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in family bibles or other family books or charts,
engraving on rings, family portraits and the like, may be received as evidence of pedigree.
This Court's rulings further specify what incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of
paternity still has to be resolved by such conventional evidence as the relevant incriminating
verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing. To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the writing of the putative father. A notarial
agreement to support a child whose filiation is admitted by the putative father was considered
acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures
of the putative father cuddling the child on various occasions, together with the certificate of live
birth, proved filiation. However, a student permanent record, a written consent to a father's
operation, or a marriage contract where the putative father gave consent, cannot be taken as
authentic writing. Standing alone, neither a certificate of baptism nor family pictures are
sufficient to establish filiation. (Emphasis and underscoring supplied.)
In the case at bar, there is no dispute that the earlier quoted statements in Dominiques
Autobiography have been made and written by him. Taken together with the other relevant facts
extant herein that Dominique, during his lifetime, and Jenie were living together as commonlaw spouses for several months in 2005 at his parents house in Pulang-lupa, Dulumbayan,
Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two
months after his death, Jenie gave birth to the child they sufficiently establish that the child of
Jenie is Dominiques.

In view of the pronouncements herein made, the Court sees it fit to adopt the following rules
respecting the requirement of affixing the signature of the acknowledging parent in any private
handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is
made:
1) Where the private handwritten instrument is the lone piece of evidence submitted to prove
filiation, there should be strict compliance with the requirement that the same must be signed by
the acknowledging parent; and
2) Where the private handwritten instrument is accompanied by other relevant and competent
evidence, it suffices that the claim of filiation therein be shown to have been made and
handwritten by the acknowledging parent as it is merely corroborative of such other evidence.
Our laws instruct that the welfare of the child shall be the "paramount consideration" in resolving
questions affecting him.22 Article 3(1) of the United Nations Convention on the Rights of a Child
of which the Philippines is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.23 (Underscoring supplied)
It is thus "(t)he policy of the Family Code to liberalize the rule on the investigation of the
paternity and filiation of children, especially of illegitimate children x x x."24 Too, "(t)he State as
parens patriae affords special protection to children from abuse, exploitation and other
conditions prejudicial to their development."25
In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to
petitioner minor childs best interests to allow him to bear the surname of the now deceased
Dominique and enter it in his birth certificate.
WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED
to immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the
surname of petitioner minor Christian dela Cruz in his Certificate of Live Birth, and record the
same in the Register of Births.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
TERESITA J. LEONARDO-DE CA
Associate Justice
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the above decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO

Chief Justice
35.
36.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 164948
June 27, 2006
DIWATA RAMOS LANDINGIN Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
DECISION
CALLEJO, SR., J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the
Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the
Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition
for Adoption of the petitioner herein.
The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA),
of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors
Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on
September 7, 1987;5 and Eugene Dizon Ramos who was born on August 5, 1989.6 The minors
are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos.
Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the
children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother,
Amelia, went to Italy, re-married there and now has two children by her second marriage and no
longer communicated with her children by Manuel Ramos nor with her in-laws from the time she
left up to the institution of the adoption; the minors are being financially supported by the
petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000,
petitioner desires to adopt the children; the minors have given their written consent8 to the
adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has
children of her own who are already married, gainfully employed and have their respective
families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and
works as a restaurant server. She came back to the Philippines to spend time with the minors;
her children gave their written consent9 to the adoption of the minors. Petitioners brother,
Mariano Ramos, who earns substantial income, signified his willingness and commitment to
support the minors while in petitioners custody.
Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows:
WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and
hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos,
Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor
childrens name follow the family name of petitioner.
Petitioner prays for such other reliefs, just and equitable under the premises.10
On March 5, 2002, the court ordered the Department of Social Welfare and Development
(DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as
amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial
hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but
deputized the City Prosecutor of Tarlac to appear in its behalf.13 Since her petition was
unopposed, petitioner was allowed to present her evidence ex parte.14
The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the
adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner

marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol,
Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam,
USA, as proof of said consent.16
On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III,
Tarlac, submitted a Child Study Report, with the following recommendation:
In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos,
eligible for adoption because of the following reasons:
1. Minors surviving parent, the mother has voluntarily consented to their adoption by the
paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care,
guidance and support they need. An Affidavit of Consent was executed by the mother which is
hereto attached.
2. The three minors subject for adoption have also expressed their willingness to be adopted
and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto
attached. The minors developed close attachment to the petitioners and they regarded her as
second parent.
3. The minors are present under the care of a temporary guardian who has also family to look
after. As young adolescents they really need parental love, care, guidance and support to
ensure their protection and well being.
In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos,
Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin.
Trial custody is hereby further recommended to be dispensed with considering that they are
close relatives and that close attachments was already developed between the petitioner and
the 3 minors.17
Pagbilao narrated what transpired during her interview, as follows:
The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks
vacation. This is to enable her appear for the personal interview concerning the adoption of her
children.
The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after
the death of their paternal grandmother and guardian. The paternal relatives including the
petitioner who attended the wake of their mother were very much concerned about the wellbeing of the three minors. While preparing for their adoption, they have asked a cousin who has
a family to stay with minors and act as their temporary guardian.
The mother of minors was consulted about the adoption plan and after weighing the benefits of
adoption to her children, she voluntarily consented. She realized that her children need parental
love, guidance and support which she could not provide as she already has a second family &
residing in Italy. Knowing also that the petitioners & her children have been supporting her
children up to the present and truly care for them, she believes her children will be in good
hands. She also finds petitioners in a better position to provide a secured and bright future to
her children.18
However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary
consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary
evidence to prove that Amelia assents to the adoption.
On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision
granting said petition. The dispositive portion reads:
WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon
Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance
from their natural parents and that they be declared for all legal intents and purposes the
children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parentchildren relationship has long been established between the children and the adoptive parents.
Let the surnames of the children be changed from "Dizon-Ramos" to "Ramos-Landingin."
Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect

the corresponding changes/amendment in the birth certificates of the above-mentioned minors.

SO ORDERED.19
The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for
the oppositor-appellant, the OSG raised the following arguments:
I
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE
LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER.
II
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE
LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY
LAW.
III
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE
PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE
PROPOSED ADOPTEES.
On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that
petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens
natural mother. Moreover, the affidavit of consent of the petitioners children could not also be
admitted in evidence as the same was executed in Guam, USA and was not authenticated or
acknowledged before a Philippine consular office, and although petitioner has a job, she was
not stable enough to support the children. The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the
Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and
SET ASIDE.
SO ORDERED.23
Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its
Resolution dated August 12, 2004.25
Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004,
assigning the following errors:
1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME
FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH
IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE.
2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE
PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE
CHILDREN.27
The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is
entitled to adopt the minors without the written consent of their biological mother, Amelia
Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioneradopters children sufficiently complies with the law; and (c) whether or not petitioner is
financially capable of supporting the adoptees.
The Courts Ruling
The petition is denied for lack of merit.
It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v.
Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the
child to be of paramount consideration and are designed to provide homes, parental care and
education for unfortunate, needy or orphaned children and give them the protection of society
and family in the person of the adopter as well as to allow childless couples or persons to
experience the joys of parenthood and give them legally a child in the person of the adopted for
the manifestation of their natural parental instincts. Every reasonable intendment should thus be
sustained to promote and fulfill these noble and compassionate objectives of the law.29
However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this

Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the
law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that
the paramount consideration is the overall benefit and interest of the adopted child, should be
understood in its proper context and perspective. The Courts position should not be
misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and
jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored
solely on best interests of the child but likewise, with due regard to the natural rights of the
parents over the child.31
Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,
provides:
Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and
informed of his/her right to give or withhold his/her approval of the adoption, the written consent
of the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper
government instrumentality which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s)
and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with
said adopter and the latters souse, if any;
(e) The spouse, if any, of the person adopting or to be adopted.
The general requirement of consent and notice to the natural parents is intended to protect the
natural parental relationship from unwarranted interference by interlopers, and to insure the
opportunity to safeguard the best interests of the child in the manner of the proposed adoption.32
Clearly, the written consent of the biological parents is indispensable for the validity of a decree
of adoption. Indeed, the natural right of a parent to his child requires that his consent must be
obtained before his parental rights and duties may be terminated and re-established in adoptive
parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the
adoption.
We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who
arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the
Philippines and Pagbilao was able to interview her, it is incredible that the latter would not
require Amelia Ramos to execute a Written Consent to the adoption of her minor children.
Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition.
Petitioner, nonetheless, argues that the written consent of the biological mother is no longer
necessary because when Amelias husband died in 1990, she left for Italy and never came
back. The children were then left to the guidance and care of their paternal grandmother. It is
the paternal relatives, including petitioner, who provided for the childrens financial needs.
Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further
contends that it was by twist of fate that after 12 years, when the petition for adoption was
pending with the RTC that Amelia and her child by her second marriage were on vacation in the
Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting,
Amelia intimated to the social worker that she conformed to the adoption of her three children by
the petitioner.
Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act
No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the
biological parents cannot be obtained, the written consent of the legal guardian of the minors
will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed
abandoned them, she should, thus have adduced the written consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a
conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect

and refusal to perform the filial and legal obligations of love and support. If a parent withholds
presence, love, care, the opportunity to display filial affection, and neglects to lend support and
maintenance, the parent, in effect, abandons the child.34
Merely permitting the child to remain for a time undisturbed in the care of others is not such an
abandonment.35 To dispense with the requirement of consent, the abandonment must be shown
to have existed at the time of adoption.36
In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her
claim that Amelia Ramos had abandoned her children. Petitioners testimony on that matter
follows:
Q Where is the mother of these three children now?
A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated
with the family?
A None, sir.
Q How about with her children?
A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married with another man.
Q From whom did you learn that?
A From others who came from Italy, sir.
Q Did you come to know whether she has children by her second marriage?
A Yes, sir, she got two kids.37
Elaine, the eldest of the minors, testified, thus:
Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
Q How old were you when your mother left for Italy in 1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your mother communicate with you?
A No, sir.38
However, the Home Study Report of the DSWD Social Worker also stated the following:
IV. Background of the Case:
xxxx
Since the mother left for Italy, minors siblings had been under the care and custody of their
maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased
father now serves as their guardian. The petitioner, together with her children and other relatives
abroad have been supporting the minor children financially, even during the time that they were
still living with their natural parents. Their mother also sends financial support but very minimal.39
xxxx
V. Background Information about the Minors Being Sought for Adoption:
xxxx
As the eldest she tries her best to be a role model to her younger siblings. She helps them in
their lessons, works and has fun with them. She also encourages openness on their problems
and concerns and provides petty counseling. In serious problems she already consult (sic) her
mother and petitioner-aunt.40
xxxx
In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they
had a happy and comfortable life. After the death of her husband, her in-laws which include the

petitioner had continued providing support for them. However being ashamed of just depending
on the support of her husbands relatives, she decided to work abroad. Her parents are also in
need of financial help as they are undergoing maintenance medication. Her parents mortgaged
their farm land which she used in going to Italy and worked as domestic helper.
When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of
her mother-in-law who returned home for good, however she died on November 2000.
While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in
partners since 1995 and have a son John Mario who is now 2 years old. The three of them are
considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of
his marriage and his wife is amenable to it. He is providing his legitimate family regular support.
Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents
who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and
other paternal relatives are continuously providing support for most of the needs & education of
minors up to present.41
Thus, when Amelia left for Italy, she had not intended to abandon her children, or to
permanently sever their mother-child relationship. She was merely impelled to leave the country
by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her
motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed
by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise,
Amelia continues to send financial support to the children, though in minimal amounts as
compared to what her affluent in-laws provide.
Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of
severing all legal ties between the biological mother, Amelia, and the adoptees, and that the
same shall then be vested on the adopter.42 It would thus be against the spirit of the law if
financial consideration were to be the paramount consideration in deciding whether to deprive a
person of parental authority over his/her children. More proof has to be adduced that Amelia has
emotionally abandoned the children, and that the latter will not miss her guidance and counsel if
they are given to an adopting parent.43 Again, it is the best interest of the child that takes
precedence in adoption.
Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence
which has not been formally offered. The purpose for which the evidence is offered must be
specified. The offer of evidence is necessary because it is the duty of the Court to rest its
findings of fact and its judgment only and strictly upon the evidence offered by the parties.
Unless and until admitted by the court in evidence for the purpose or purposes for which such
document is offered, the same is merely a scrap of paper barren of probative weight. Mere
identification of documents and the markings thereof as exhibits do not confer any evidentiary
weight on documents unless formally offered.44
Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent
purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The
joint written consent of petitioners children45 was notarized on January 16, 2002 in Guam, USA;
for it to be treated by the Rules of Court in the same way as a document notarized in this
country it needs to comply with Section 2 of Act No. 2103,46 which states:
Section 2. An instrument or document acknowledged and authenticated in a foreign country
shall be considered authentic if the acknowledgment and authentication are made in
accordance with the following requirements:
(a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of
legation, charg d affaires, consul, vice-consul, or consular agent of the Republic of the
Philippines, acting within the country or place to which he is accredited, or (2) a notary public or
officer duly authorized by law of the country to take acknowledgments of instruments or
documents in the place where the act is done.
(b) The person taking the acknowledgment shall certify that the person acknowledging the

instrument or document is known to him, and that he is the same person who executed it, and
acknowledged that the same is his free act and deed. The certificate shall be under his official
seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the
acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the
preceding paragraph, the certificate of the notary public or the officer taking the
acknowledgment shall be authenticated by an ambassador, minister, secretary of legation,
charg de affaires, consul, vice-consul, or consular agent of the Republic of the Philippines,
acting within the country or place to which he is accredited. The officer making the
authentication shall certify under his official seal that the person who took the acknowledgment
was at the time duly authorized to act as notary public or that he was duly exercising the
functions of the office by virtue of which he assumed to act, and that as such he had authority
under the law to take acknowledgment of instruments or documents in the place where the
acknowledgment was taken, and that his signature and seal, if any, are genuine.
As the alleged written consent of petitioners legitimate children did not comply with the aforecited law, the same can at best be treated by the Rules as a private document whose
authenticity must be proved either by anyone who saw the document executed or written; or by
evidence of the genuineness of the signature or handwriting of the makers.47
Since, in the instant case, no further proof was introduced by petitioner to authenticate the
written consent of her legitimate children, the same is inadmissible in evidence.
In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support
the children and is only relying on the financial backing, support and commitment of her children
and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she
has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with
tips of not less than $1,000.00 a month. Her children and siblings have likewise committed
themselves to provide financial backing should the need arise. The OSG, again in its comment,
banks on the statement in the Home Study Report that "petitioner has limited income."
Accordingly, it appears that she will rely on the financial backing of her children and siblings in
order to support the minor adoptees. The law, however, states that it is the adopter who should
be in a position to provide support in keeping with the means of the family.
Since the primary consideration in adoption is the best interest of the child, it follows that the
financial capacity of prospective parents should also
be carefully evaluated and considered. Certainly, the adopter should be in a position to support
the would-be adopted child or children, in keeping with the means of the family.
According to the Adoption Home Study Report49 forwarded by the Department of Public Health
& Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting
her legitimate children, as the latter are already adults, have individual lives and families. At the
time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a
waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention
in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua
Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that
the limited income might be a hindrance to the adoption proceedings.
Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently
handle the financial aspect of rearing the three children in the US. She only has a part-time job,
and she is rather of age. While petitioner claims that she has the financial support and backing
of her children and siblings, the OSG is correct in stating that the ability to support the adoptees
is personal to the adopter, as adoption only creates a legal relation between the former and the
latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and
her children are financially able and that they are willing to support the minors herein. The
Court, therefore, again sustains the ruling of the CA on this issue.
While the Court recognizes that petitioner has only the best of intentions for her nieces and
nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any

case, petitioner is not prevented from filing a new petition for adoption of the herein minors.
WHEREFORE, premises considered, the petition is hereby DENIED.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO
MA. ALICIA AUSTRIA-MARTIN
Associate Justice
Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions
in the above decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
37.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 168992-93
May 21, 2009
IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,
MONINA P. LIM, Petitioner.
x - - - - - - - - - - - - - - - - - - - - - - -x
IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM,
MONINA P. LIM, Petitioner.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside
the Decision1 dated 15 September 2004 of the Regional Trial Court, General Santos City,
Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without
prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.
The Facts
The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974,
she married Primo Lim (Lim). They were childless. Minor children, whose parents were
unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a
child of their own, petitioner and Lim registered the children to make it appear that they were the
childrens parents. The children2 were named Michelle P. Lim (Michelle) and Michael Jude P.
Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She
was born on 15 March 1977.3 Michael was 11 days old when Ayuban brought him to petitioners
clinic. His date of birth is 1 August 1983.4
The spouses reared and cared for the children as if they were their own. They sent the children
to exclusive schools. They used the surname "Lim" in all their school records and documents.
Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel
Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty5 given under
Republic Act No. 85526 (RA 8552) to those individuals who simulated the birth of a child. Thus,
on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael
before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the
time of the filing of the petitions for adoption, Michelle was 25 years old and already married,
while Michael was 18 years and seven months old.
Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of
Consent.7 Michael also gave his consent to his adoption as shown in his Affidavit of Consent.8
Petitioners husband Olario likewise executed an Affidavit of Consent9 for the adoption of
Michelle and Michael.
In the Certification issued by the Department of Social Welfare and Development (DSWD),
Michelle was considered as an abandoned child and the whereabouts of her natural parents
were unknown.10 The DSWD issued a similar Certification for Michael.11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial
court ruled that since petitioner had remarried, petitioner should have filed the petition jointly
with her new husband. The trial court ruled that joint adoption by the husband and the wife is
mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code.
Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the
Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall
under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that
mere consent of her husband would suffice was untenable because, under the law, there are
additional requirements, such as residency and certification of his qualification, which the
husband, who was not even made a party in this case, must comply.
As to the argument that the adoptees are already emancipated and joint adoption is merely for
the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the
purpose of exercising parental authority because an emancipated child acquires certain rights
from his parents and assumes certain obligations and responsibilities.
Hence, the present petition.
Issue
Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who
has remarried, can singly adopt.
The Courts Ruling
Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the
court and the State to protect the paramount interest and welfare of the child to be adopted.
Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to adoption cases.
She argues that joint parental authority is not necessary in this case since, at the time the
petitions were filed, Michelle was 25 years old and already married, while Michael was already
18 years of age. Parental authority is not anymore necessary since they have been
emancipated having attained the age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for adoption were filed, petitioner had already
remarried. She filed the petitions by herself, without being joined by her husband Olario. We
have no other recourse but to affirm the trial courts decision denying the petitions for adoption.
Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good
moral character, has not been convicted of any crime involving moral turpitude, emotionally and
psychologically capable of caring for children, at least sixteen (16) years older than the adoptee,
and who is in a position to support and care for his/her children in keeping with the means of the

family. The requirement of sixteen (16) year difference between the age of the adopter and
adoptee may be waived when the adopter is the biological parent of the adoptee, or is the
spouse of the adoptees parent;
(b) Any alien possessing the same qualifications as above stated for Filipino nationals:
Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that
he/she has been living in the Philippines for at least three (3) continuous years prior to the filing
of the application for adoption and maintains such residence until the adoption decree is
entered, that he/she has been certified by his/her diplomatic or consular office or any
appropriate government agency that he/she has the legal capacity to adopt in his/her country,
and that his/her government allows the adoptee to enter his/her country as his/her adopted
son/daughter: Provided, further, That the requirements on residency and certification of the
aliens qualification to adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a
relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or
(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That
the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of
the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied)
The use of the word "shall" in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated to the
level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also
insures harmony between the spouses.12
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the
petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed
only by petitioner herself, without joining her husband, Olario, the trial court was correct in
denying the petitions for adoption on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the
children to be adopted are not the legitimate children of petitioner or of her husband Olario.
Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario
are not legally separated from each other.
The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does
not suffice. There are certain requirements that Olario must comply being an American citizen.
He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove
that his country has diplomatic relations with the Republic of the Philippines; (2) he must have
been living in the Philippines for at least three continuous years prior to the filing of the
application for adoption; (3) he must maintain such residency until the adoption decree is
entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to
enter the adopters country as the latters adopted child. None of these qualifications were
shown and proved during the trial.
These requirements on residency and certification of the aliens qualification to adopt cannot
likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the
fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the

legitimate children of petitioner.

Effects of Adoption
Petitioner contends that joint parental authority is not anymore necessary since the children
have been emancipated having reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children for civic consciousness and
efficiency and the development of their moral, mental and physical character and well-being.13
The father and the mother shall jointly exercise parental authority over the persons of their
common children.14 Even the remarriage of the surviving parent shall not affect the parental
authority over the children, unless the court appoints another person to be the guardian of the
person or property of the children.15
It is true that when the child reaches the age of emancipation that is, when he attains the age
of majority or 18 years of age16 emancipation terminates parental authority over the person
and property of the child, who shall then be qualified and responsible for all acts of civil life.17
However, parental authority is merely just one of the effects of legal adoption. Article V of RA
8552 enumerates the effects of adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the
adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the
same shall then be vested on the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them without discrimination of any kind. To
this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the
family.
SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall
have reciprocal rights of succession without distinction from legitimate filiation. However, if the
adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall
govern.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s)
and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the
adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights
and obligations arising from the relationship of parent and child, including but not limited to: (i)
the right of the adopter to choose the name the child is to be known; and (ii) the right of the
adopter and adoptee to be legal and compulsory heirs of each other.18 Therefore, even if
emancipation terminates parental authority, the adoptee is still considered a legitimate child of
the adopter with all the rights19 of a legitimate child such as: (1) to bear the surname of the
father and the mother; (2) to receive support from their parents; and (3) to be entitled to the
legitime and other successional rights. Conversely, the adoptive parents shall, with respect to
the adopted child, enjoy all the benefits to which biological parents are entitled20 such as
support21 and successional rights.22
We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests
and welfare of the child to be of paramount consideration. They are designed to provide homes,
parental care and education for unfortunate, needy or orphaned children and give them the
protection of society and family, as well as to allow childless couples or persons to experience
the joys of parenthood and give them legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every reasonable intendment should be
sustained to promote and fulfill these noble and compassionate objectives of the law.23 But, as
we have ruled in Republic v. Vergara:24
We are not unmindful of the main purpose of adoption statutes, which is the promotion of the
welfare of the children. Accordingly, the law should be construed liberally, in a manner that will

sustain rather than defeat said purpose. The law must also be applied with compassion,
understanding and less severity in view of the fact that it is intended to provide homes, love,
care and education for less fortunate children. Regrettably, the Court is not in a position to affirm
the trial courts decision favoring adoption in the case at bar, for the law is clear and it cannot
be modified without violating the proscription against judicial legislation. Until such time
however, that the law on the matter is amended, we cannot sustain the respondent-spouses
petition for adoption. (Emphasis supplied)1avvphi1.zw+
Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed
the petitions with her husband. We cannot make our own legislation to suit petitioner.
Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption
could no longer be possible because Olario has filed a case for dissolution of his marriage to
petitioner in the Los Angeles Superior Court.
We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is
of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there
is a judicial decree for the dissolution of the marriage between petitioner and Olario, the
marriage still subsists. That being the case, joint adoption by the husband and the wife is
required. We reiterate our ruling above that since, at the time the petitions for adoption were
filed, petitioner was married to Olario, joint adoption is mandatory.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of
the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and
1259. Costs against petitioner.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
RENATO C. CORONA
TERESITA J. LEONARDO-DE CA
Associate Justice
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
38.
39.
40.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 162734 August 29, 2006
MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO B. SALIENTES, and ROSARIO C.
SALIENTES, Petitioners,
vs.

LORAN S.D. ABANILLA, HONORABLE JUDGE PEDRO SABUNDAYO, JR., REGIONAL

TRIAL COURT, BRANCH 203, MUNTINLUPA CITY, Respondents
DECISION
QUISUMBING, J.:
The instant petition assails the Decision 1dated November 10, 2003 of the Court of Appeals in
CA-G.R. SP No. 75680, which dismissed the petition for certiorari against the orders of the
Regional Trial Court in Special Proceedings No. 03-004. Likewise assailed is the Court of
Appeals Resolution 2dated March 19, 2004 denying reconsideration.
The facts of the case are as follows:
Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are
the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonettes
parents, petitioners Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems,
private respondent suggested to his wife that they transfer to their own house, but Marie
Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was prevented
from seeing his son.
Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a
Petition for Habeas Corpus and Custody, 3 docketed as Special Proceedings No. 03-004 before
the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court issued the
following order:
Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie
Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby
directed to produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes
Abanilla on January 31, 2003 at 1:00 oclock in the afternoon and to show cause why the said
child should not be discharged from restraint.
Let this Writ be served by the Sheriff or any authorized representative of this Court, who is
directed to immediately make a return.
SO ORDERED. 4
Petitioners moved for reconsideration which the court denied.
Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same
was dismissed on November 10, 2003. The appellate court affirmed the February 24, 2003
Order of the trial court holding that its January 23, 2003 Order did not award the custody of the
2-year-old child to any one but was simply the standard order issued for the production of
restrained persons. The appellate court held that the trial court was still about to conduct a full
inquiry, in a summary proceeding, on the cause of the minors detention and the matter of his
custody. The Court of Appeals ruled thus:
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED. 5
Petitioners moved for reconsideration, which was denied on March 19, 2004.
Hence, petitioners interposed this appeal by certiorari anchored on the following grounds:
1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his
discretion, amounting to lack or in excess of jurisdiction in issuing an order for the petitionermother to first show cause why her own three-year old child in her custody should not be
discharged from a so-called "restraint" despite no evidence at all of restraint and no evidence of
compelling reasons of maternal unfitness to deprive the petitioner-mother of her minor son of
tender years. The assailed orders, resolutions and decisions of the lower court and the Court of
Appeals are clearly void;
2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his
discretion in issuing a writ of habeas corpus which clearly is not warranted considering that
there is no unlawful restraint by the mother and considering further that the law presumes the
fitness of the mother, thereby negating any notion of such mother illegally restraining or
confining her very own son of tender years. The petition is not even sufficient in substance to

warrant the writ. The assailed orders are clearly void.

3. Contrary to the Court of Appeals decision, the "Sombong vs. CA" case supports rather than
negates the position of the petitioners.
4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tenderyears-rule
5. The Court of Appeals failed to consider that the private respondent failed to present prima
facie proof of any compelling reason of the unfitness of the petitioner-mother;
6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY. 6
Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari
against the trial courts orders dated January 23, 2003 and February 24, 2003?
Petitioners contend that the order is contrary to Article 213 7 of the Family Code, which provides
that no child under seven years of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise. They maintain that herein respondent Loran had the
burden of showing any compelling reason but failed to present even a prima facie proof thereof.
Petitioners posit that even assuming that there were compelling reasons, the proper remedy for
private respondent was simply an action for custody, but not habeas corpus. Petitioners assert
that habeas corpus is unavailable against the mother who, under the law, has the right of
custody of the minor. They insist there was no illegal or involuntary restraint of the minor by his
own mother. There was no need for the mother to show cause and explain the custody of her
very own child.
Private respondent counters that petitioners argument based on Article 213 of the Family Code
applies only to the second part of his petition regarding the custody of his son. It does not
address the first part, which pertains to his right as the father to see his son. He asserts that the
writ of habeas corpus is available against any person who restrains the minors right to see his
father and vice versa. He avers that the instant petition is merely filed for delay, for had
petitioners really intended to bring the child before the court in accordance with the new rules on
custody of minors, they would have done so on the dates specified in the January 23, 2003 and
the February 24, 2003 orders of the trial court.
Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared
custody and parental authority over their son. He alleges that at times when petitioner Marie
Antonette is out of the country as required of her job as an international flight stewardess, he,
the father, should have custody of their son and not the maternal grandparents.
As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial
court did not grant custody of the minor to any of the parties but merely directed petitioners to
produce the minor in court and explain why they are restraining his liberty. The assailed order
was an interlocutory order precedent to the trial courts full inquiry into the issue of custody,
which was still pending before it.
Under Rule 41, Section 1 8 of the Rules of Court, an interlocutory order is not appealable but the
aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must
show that the court gravely abused its discretion in issuing the interlocutory order. In the present
case, it is incumbent upon petitioners to show that the trial court gravely abused its discretion in
issuing the order.
Habeas corpus may be resorted to in cases where rightful custody is withheld from a person
entitled thereto. 9 Under Article 211 10 of the Family Code, respondent Loran and petitioner Marie
Antonette have joint parental authority over their son and consequently joint custody. Further,
although the couple is separated de facto, the issue of custody has yet to be adjudicated by the
court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to
the custody of their child. In the present case, private respondents cause of action is the
deprivation of his right to see his child as alleged in his petition. 11 Hence, the remedy of habeas
corpus is available to him.
In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and

Youth Welfare Code 12 unequivocally provides that in all questions regarding the care and
custody, among others, of the child, his welfare shall be the paramount consideration. 13
Again, it bears stressing that the order did not grant custody of the minor to any of the parties
but merely directed petitioners to produce the minor in court and explain why private respondent
is prevented from seeing his child. This is in line with the directive in Section 9 14 of A.M. 03-0404-SC 15 that within fifteen days after the filing of the answer or the expiration of the period to file
answer, the court shall issue an order requiring the respondent (herein petitioners) to present
the minor before the court. This was exactly what the court did.
Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and
serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a
counter argument for private respondents petition for custody. But it is not a basis for preventing
the father to see his own child. Nothing in the said provision disallows a father from seeing or
visiting his child under seven years of age.
In sum, the trial court did not err in issuing the orders dated January 23, 2003 and February 24,
2003. Hence, the Court of Appeals properly dismissed the petition for certiorari against the said
orders of the trial court.
WHEREFORE, the petition is DENIED. The Decisiondated November 10, 2003 and the
Resolutiondated March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are
AFFIRMED. Costs against petitioners.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO MORALES
DANTE O. TINGA
Associate Justice
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
41.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 143363
February 6, 2002
ST. MARY'S ACADEMY, petitioner,
vs.
WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II,

JAMES DANIEL, SR., and VIVENCIO VILLANUEVA, respondents.

DECISION
PARDO, J.:
The Case
The case is an appeal via certiorari from the decision1 of the Court of Appeals as well as the
resolution denying reconsideration, holding petitioner liable for damages arising from an
accident that resulted in the death of a student who had joined a campaign to visit the public
schools in Dipolog City to solicit enrollment.
The Facts
The facts, as found by the Court of Appeals, are as follows:
"Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William
Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case against James Daniel II and his
parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St.
Marys Academy before the Regional Trial Court of Dipolog City.
"On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its
decision the dispositive portion of which reads as follows:
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following
manner:
1. Defendant St. Marys Academy of Dipolog City, is hereby ordered to pay plaintiffs William
Carpitanos and Luisa Carpitanos, the following sums of money:
a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S.
Carpitanos;
b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by plaintiffs for burial
and related expenses;
c. TEN THOUSAND PESOS (P10,000.00) for attorneys fees;
d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs.
2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are
hereby ordered to pay herein plaintiffs the amount of damages above-stated in the event of
insolvency of principal obligor St. Marys Academy of Dipolog City;
3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who
was under special parental authority of defendant St. Marys Academy, is ABSOLVED from
paying the above-stated damages, same being adjudged against defendants St. Marys
Academy, and subsidiarily, against his parents;
4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not
being in order as earlier discussed in this decision, is hereby DISMISSED.
IT IS SO ORDERED." (Decision, pp. 32-33; Records, pp. 205-206)."
"From the records it appears that from 13 to 20 February 1995, defendant-appellant St. Marys
Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996. A facet
of the enrollment campaign was the visitation of schools from where prospective enrollees were
studying. As a student of St. Marys Academy, Sherwin Carpitanos was part of the campaigning
group. Accordingly, on the fateful day, Sherwin, along with other high school students were
riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan
Elementary School, Larayan, Dapitan City. The jeep was driven by James Daniel II then 15
years old and a student of the same school. Allegedly, the latter drove the jeep in a reckless
manner and as a result the jeep turned turtle.
"Sherwin Carpitanos died as a result of the injuries he sustained from the accident."2
In due time, petitioner St. Marys academy appealed the decision to the Court of Appeals.3
On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual
damages to P25,000.00 but otherwise affirming the decision a quo, in toto.4
On February 29, 2000, petitioner St. Marys Academy filed a motion for reconsideration of the
decision. However, on May 22, 2000, the Court of Appeals denied the motion.5

Hence, this appeal.6

The Issues
1) Whether the Court of Appeals erred in holding the petitioner liable for damages for the death
of Sherwin Carpitanos.
2) Whether the Court of Appeals erred in affirming the award of moral damages against the
petitioner.
The Courts Ruling
We reverse the decision of the Court of Appeals.
The Court of Appeals held petitioner St. Marys Academy liable for the death of Sherwin
Carpitanos under Articles 2187 and 2198 of the Family Code, pointing out that petitioner was
negligent in allowing a minor to drive and in not having a teacher accompany the minor students
in the jeep.
Under Article 218 of the Family Code, the following shall have special parental authority over a
minor child while under their supervision, instruction or custody: (1) the school, its administrators
and teachers; or (2) the individual, entity or institution engaged in child care. This special
parental authority and responsibility applies to all authorized activities, whether inside or outside
the premises of the school, entity or institution. Thus, such authority and responsibility applies to
field trips, excursions and other affairs of the pupils and students outside the school premises
whenever authorized by the school or its teachers.9
Under Article 219 of the Family Code, if the person under custody is a minor, those exercising
special parental authority are principally and solidarily liable for damages caused by the acts or
omissions of the unemancipated minor while under their supervision, instruction, or custody.10
However, for petitioner to be liable, there must be a finding that the act or omission considered
as negligent was the proximate cause of the injury caused because the negligence must have a
causal connection to the accident.11
"In order that there may be a recovery for an injury, however, it must be shown that the injury for
which recovery is sought must be the legitimate consequence of the wrong done; the
connection between the negligence and the injury must be a direct and natural sequence of
events, unbroken by intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of. And the proximate
cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the result would not have
occurred."12
In this case, the respondents failed to show that the negligence of petitioner was the proximate
cause of the death of the victim.
Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident
was not the negligence of petitioner or the reckless driving of James Daniel II, but the
detachment of the steering wheel guide of the jeep.
In their comment to the petition, respondents Daniel spouses and Villanueva admitted the
documentary exhibits establishing that the cause of the accident was the detachment of the
steering wheel guide of the jeep. Hence, the cause of the accident was not the recklessness of
James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva. Respondents,
including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute
the report and testimony of the traffic investigator who stated that the cause of the accident was
the detachment of the steering wheel guide that caused the jeep to turn turtle.
Significantly, respondents did not present any evidence to show that the proximate cause of the
accident was the negligence of the school authorities, or the reckless driving of James Daniel II.
Hence, the respondents reliance on Article 219 of the Family Code that "those given the
authority and responsibility under the preceding Article shall be principally and solidarily liable
for damages caused by acts or omissions of the unemancipated minor" was unfounded.

Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive
the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent
Vivencio Villanueva, who had possession and control of the jeep. He was driving the vehicle and
he allowed James Daniel II, a minor, to drive the jeep at the time of the accident.
Hence, liability for the accident, whether caused by the negligence of the minor driver or
mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minors
parents primarily. The negligence of petitioner St. Marys Academy was only a remote cause of
the accident. Between the remote cause and the injury, there intervened the negligence of the
minors parents or the detachment of the steering wheel guide of the jeep.
"The proximate cause of an injury is that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the result
would not have occurred."13
Considering that the negligence of the minor driver or the detachment of the steering wheel
guide of the jeep owned by respondent Villanueva was an event over which petitioner St. Marys
Academy had no control, and which was the proximate cause of the accident, petitioner may not
be held liable for the death resulting from such accident.
Consequently, we find that petitioner likewise cannot be held liable for moral damages in the
amount of P500,000.00 awarded by the trial court and affirmed by the Court of Appeals.
Though incapable of pecuniary computation, moral damages may be recovered if they are the
proximate result of the defendants wrongful act or omission.14 In this case, the proximate cause
of the accident was not attributable to petitioner.
For the reason that petitioner was not directly liable for the accident, the decision of the Court of
Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted.
Moreover, the grant of attorneys fees as part of damages is the exception rather than the rule.15
The power of the court to award attorneys fees under Article 2208 of the Civil Code demands
factual, legal and equitable justification.16 Thus, the grant of attorneys fees against the petitioner
is likewise deleted.
Incidentally, there was no question that the registered owner of the vehicle was respondent
Villanueva. He never denied and in fact admitted this fact.1wphi1 We have held that the
registered owner of any vehicle, even if not used for public service, would primarily be
responsible to the public or to third persons for injuries caused the latter while the vehicle was
being driven on the highways or streets."17 Hence, with the overwhelming evidence presented
by petitioner and the respondent Daniel spouses that the accident occurred because of the
detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner
of the vehicle who shall be held responsible for damages for the death of Sherwin Carpitanos.
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appeals 18
and that of the trial court.19 The Court remands the case to the trial court for determination of the
liability of defendants, excluding petitioner St. Marys Academy, Dipolog City.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.
Puno, J., in the result.
42.
43.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18008
October 30, 1962
ELISEA LAPERAL, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, oppositor.
Martin B. Laurea and Associates for petitioner.Office of the Solicitor General for oppositor.
BARRERA, J.:
On May 10, 1960, Elisea Laperal filed in the Court of First Instance of Baguio (Sp Proc. No.
433) a petition which reads:
1. That petitioner has been a bona fide resident of the City of Baguio for the last three years
prior to the date of the filing of this petition;
2. That petitioner's maiden name is ELISEA LAPERAL; that on March 24, 1939, she married Mr.
Enrique R. Santamaria; that in a partial decision entered on this Honorable Court on January
18, 1958, in Civil Case No. 356 of this Court, entitled 'Enrique R. Santamaria vs. Elisea L.
Santamaria' Mr. Enrique Santamaria was given a decree of legal separation from her; that the
said partial decision is now final;
3. That during her marriage to Enrique R. Santamaria, she naturally used, instead of her maiden
name, that of Elisea L. Santamaria; that aside from her legal separation from Enrique R.
Santamaria, she has also ceased to live with him for many years now;
4. That in view of the fact that she has been legally separated from Mr. Enrique R. Santamaria
and has likewise ceased to live with him for many years, it is desirable that she be allowed to
change her name and/or be permitted to resume using her maiden name, to wit: ELISEA
LAPERAL.
WHEREFORE, petitioner respectfully prayed that after the necessary proceedings are had, she
be allowed to resume using her maiden name of Elisea Laperal.
The petition was opposed by the City Attorney of Baguio on the ground that the same violates
the provisions of Article 370 (should be 372) of the Civil Code, and that it is not sanctioned by
the Rules of Court.
In its decision of October 31, 1960, the court denied the petition for the reason that Article 372 of
the Civil Code requires the wife, even after she is decreed legally separated from her husband,
to continue using the name and surname she employed before the legal separation. Upon
petitioner's motion, however, the court, treating the petition as one for change of name,
reconsidered its decision and granted the petition on the ground that to allow petitioner, who is a
businesswoman decreed legally separated from her husband, to continue using her married
name would give rise to confusion in her finances and the eventual liquidation of the conjugal
assets. Hence, this appeal by the State.
The contention of the Republic finds support in the provisions of Article 372 of the New Civil
Code which reads:
ART. 372. When legal separation has been granted, the wife shall continue using her name and
surname employed before the legal separation. (Emphasis supplied)
Note that the language of the statute is mandatory that the wife, even after the legal separation
has been decreed, shall continue using her name and surname employed before the legal
separation. This is so because her married status is unaffected by the separation, there being
no severance of the vinculum. It seems to be the policy of the law that the wife should continue
to use the name indicative of her unchanged status for the benefit of all concerned.
The appellee contends, however, that the petition is substantially for change of her name from
Elisea L. Santamaria, the one she has been using, since her marriage, to Elisea Laperal, her
maiden name, giving as reason or cause therefor her being legally separated from the husband
Enrique R. Santamaria, and the fact that they have ceased to live together for many years.
There seems to be no dispute that in the institution of these proceedings, the procedure
prescribed in Rule 103 of the Rules of Court for change of name has been observed. But from
the petition quoted in full at the beginning of these opinion, the only reason relied upon for the
change of name is the fact that petitioner is legally separated from her husband and has, in fact,
ceased to live with him for many years. It is doubtful, to say the least, whether Rule 103 which

refers to change of name in general, may prevail over the specific provisions of Article 372 of
the New Civil Code with regards to married women legally separated from their husbands.
Even, however, applying Rule 103 to this case, the fact of legal separation alone which is the
only basis for the petition at bar is, in our opinion, not a sufficient ground to justify a change
of the name of herein petitioner, for to hold otherwise would be to provide an easy circumvention
of the mandatory provisions of Article 372.
It is true that in the second decision which reconsidered the first it is stated that as the petitioner
owns extensive business interests, the continued used of her husband surname may cause
undue confusion in her finances and the eventual liquidation of the conjugal assets. This finding
is however without basis. In the first place, these were not the causes upon which the petition
was based; hence, obviously no evidence to this effect had been adduced. Secondly, with the
issuance of the decree of legal separation in 1958, the conjugal partnership between petitioner
and her husband had automatically been dissolved and liquidated. (Art. 106[2], Civil Cod).
Consequently, there could be no more occasion for an eventual liquidation of the conjugal
assets.
WHEREFORE, the order of the lower court of December 1, 1960, granting the petition, is
hereby set aside and the petition dismissed. Without costs. So ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon,
Regala and Makalintal, JJ., concur.
44.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32054 May 15, 1974
TERESITA LLANETA (known also as TERESITA LLANETA FERRER and TERESITA
FERRER), petitioner,
vs.
The Honorable CORAZON JULIANO AGRAVA, as Presiding Judge of the Juvenile and
Domestic Relations Court of Manila, respondent.
Pascual G. Mier for petitioner.
Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L.
Pronove, Jr. and Trial Attorney Quirino B. Maglente, Jr. for respondent.
CASTRO, J.:p
From the denial by the respondent Juvenile and Domestic Relations Court of Manila, in its
special proceeding H-00237, of her petition for change of name, Teresita Llaneta has come to
this Court on appeal by certiorari.
Teresita's mother, one Atanacia Llaneta, was once married to Serafin Ferrer with whom she had
but one child named Victoriano Ferrer. In 1942 Serafin Ferrer died, and about four years later
Atanacia had relations with another man out of which Teresita was born. Shortly after Teresita's
birth, Atanacia brought her and Victoriano to Manila where all of them lived with Atanacia's
mother-in-law, Victoria vda. de Ferrer. Teresita was raised in the household of the Ferrer's, using
the surname of Ferrer in all her dealings and throughout her schooling. When she was about
twenty years old, she applied for a copy of her birth certificate in Irosin, Sorsogon, where she
was born, as she was required to present it in connection with a scholarship granted to her by
the Catholic Charities. It was then that she discovered that her registered surname is Llaneta
not Ferrer and that she is the illegitimate child of Atanacia and an unknown father.
On the ground that her use thenceforth of the surname Llaneta, instead of Ferrer which she had
been using since she acquired reason, would cause untold difficulties and confusion, Teresita

petitioned the court below on March 18, 1969 for change of her name from Teresita Llaneta to
Teresita Llaneta Ferrer. After trial duly had, the respondent judge denied her petition; hence the
present recourse.
The petitioner has established that she has been using the surname Ferrer for as long as she
can remember; that all her records, in school and elsewhere, put her name down as Teresita
Ferrer; that her friends and associates know her only as Teresita Ferrer; and that even the late
Serafin Ferrer's nearest of kin (who apparently have kept Teresita's illegitimacy a secret from
her) have tolerated and still approve of her use of the surname Ferrer. Indeed, a sudden shift at
this time by the petitioner to the name Teresita Llaneta (in order to conform to that appearing in
her birth certificate) would result in confusion among the persons and entities she deals with
and entail endless and vexatious explanations of the circumstances of her new surname. 1 In
her official dealings, this would likewise mean a lifelong fending with the necessary affidavits.
Moreover, it is a salutary law that would allow Teresita, inspite of her illegitimate birth, to carry
on in society without her unfortunate status being bandied about at every turn. 2
The respondent court places reliance on the doctrine, expounded in three decisions of this
Court, 3 that disallows such change of name as would give the false impression of family
relationship. The principle remains valid but only to the extent that the proposed change of
name would in great probability cause prejudice or future mischief to the family whose surname
it is that is involved or to the community in general. In the case at bar, however, the late Serafin
Ferrer's widowed mother, Victoria, and his two remaining brothers, Nehemias and Ruben, have
come forward in earnest support of the petition. Adequate publication of the proceeding has not
elicited the slightest opposition from the relatives and friends of the late Serafin Ferrer.
Clearances from various Government agencies show that Teresita has a spotless record. And
the State (represented by the Solicitor General's Office), which has an interest in the name
borne by every citizen within its realm for purposes of identification, interposed no opposition at
the trial after a searching cross-examination, of Teresita and her witnesses. Whether the late
Serafin Ferrer, who died some five years before Teresita was born, would have consented or
objected to her use of his surname is open to speculation. One thing, however, is beyond cavil:
those living who possess the right of action to prevent the surname Ferrer from being smeared
are proud to share it with her.
ACCORDINGLY, the judgment a quo is reversed, and the petition of Teresita Llaneta for change
of her name to Teresita Llaneta Ferrer is hereby granted. Let a copy of this decision be
forwarded to the civil registrar of Irosin, Sorsogon, for this information and proper action. No
costs.
Makalintal, C.J., Teehankee, Esguerra and Muoz Palma, JJ., concur.
Makasiar, J., is on leave.
45.
46.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of Misamis
Oriental, Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the Order of the
respondent Judge, dated 10 December 1986, ordering petitioner to pay support pendente lite to

private respondent (his wife) and their child, and (2) the Order of the same respondent Judge,
dated 5 August 1987, denying petitioner's motion to suspend hearings in the action for legal
separation filed against him by private respondent as well as his motion to inhibit respondent
Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial
Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided
over by respondent Judge, a complaint against petitioner for legal separation, on the ground of
concubinage, with a petition for support and payment of damages. This case was docketed as
Civil Case No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial
Court, General Santos City, a complaint against petitioner for concubinage, which was docketed
on 23 October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the
provisional remedy of support pendente lite, pending a decision in the action for legal
separation, was filed by private respondent in the civil case for legal separation. The respondent
judge, as already stated, on 10 December 1986, ordered The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the incidents
consequent thereto, such as, application for support pendente lite, should be suspended in view
of the criminal case for concubinage filed against him the private respondent. In support of his
contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which
states:
SEC. 3. Other Civil action arising from offenses. Whenever the offended party shall have
instituted the civil action to enforce the civil liability arising from the offense. as contemplated in
the first Section 1 hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the pending civil action arising from the same
offense shall be suspended, in whatever stage it may be found, until final judgment in the
criminal proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position
that such civil action arises from, or is inextricably tied to the criminal action for concubinage, so
that all proceedings related to legal separation will have to be suspended to await conviction or
acquittal for concubinage in the criminal case. Authority for this position is this Court's decision
in the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for legal
separation would be proper if an allegation of concubinage is made therein, relied solely on Sec.
1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by
law, the following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from
the offense charged is impliedly instituted with the criminal action, unless the offended party
expressly waives the civil action or reserves his right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be instituted separately, but
after the criminal action has been commenced the civil action can not be instituted until final
judgment has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action arising from the same offense
can be prosecuted and the same shall be suspended in whatever stage it may be found until
final judgment in the criminal proceeding has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be
suspended, with or upon the filing of a criminal action, is one which is "to enforce the civil liability
arising from the offense". In other words, in view of the amendment under the 1985 Rules on
Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed
ahead of, or simultaneously with, a criminal action for concubinage, because said civil action is
not one "to enforce the civil liability arising from the offense" even if both the civil and criminal

actions arise from or are related to the same offense. Such civil action is one intended to obtain
the right to live separately, with the legal consequences thereof, such as, the dissolution of the
conjugal partnership of gains, custody of offsprings, support, and disqualification from inheriting
from the innocent spouse, among others. As correctly pointed out by the respondent Judge in
his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al.,
L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of
then Rule 107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil action arising from the same offense can
be prosecuted and the same shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to
"civil actions to enforce the civil liability arising from the offense" as contemplated in the first
paragraph of Section 1 of Rule 111-which is a civil action "for recovery of civil liability arising
from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the
recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107
simply referred to "Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is
aimed at the conjugal rights of the spouses and their relations to each other, within the
contemplation of Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first secured before the
action for legal separation can prosper or succeed, as the basis of the action for legal
separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued upon proof by
preponderance of evidence in the action for legal separation. 3 No criminal proceeding or
conviction is necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been modified, as
that case was decided under Act. No. 2710, when absolute divorce was then allowed and had
for its grounds the same grounds for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of defendant spouses had to be established
by final judgment in a criminal action. That requirement has not been reproduced or adopted by
the framers of the present Civil Code, and the omission has been uniformly accepted as a
modification of the stringent rule in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we
find no proof of grave abuse of discretion on the part of the respondent Judge in ordering the
same. Support pendente lite, as a remedy, can be availed of in an action for legal separation,
and granted at the discretion of the judge. 6 If petitioner finds the amount of support pendente
lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the
grant of support pendente lite and the denial of the motion to suspend hearings in the case, are
taken by the petitioner as a disregard of applicable laws and existing doctrines, thereby showing
the respondent Judge's alleged manifest partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case
and a party's counsel, as to applicable laws and jurisprudence, is not a sufficient ground to
disqualify the judge from hearing the case, on the ground of bias and manifest partiality. This is
more so, in this case, where we find the judge's disposition of petitioner's motions to be sound
and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.
47.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10033
December 28, 1956
BENJAMIN BUGAYONG, plaintiff-appellant,
vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant. Numeriano Tanopo, Jr. for appellee.
FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on
motion of the defendant, the case was dismissed. The order of dismissal was appealed to the
Court of Appeals, but said Tribunal certified the case to the Court on the ground that there is
absolutely no question of fact involved, the motion being predicated on the assumption as true
of the very facts testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the
United States Navy, was married to defendant Leonila Ginez on August 27, 1949, at Asingan,
Pangasinan, while on furlough leave. Immediately after their marriage, the couple lived with their
sisters who later moved to Sampaloc, Manila. After some time, or about July, 1951, Leonila
Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone
to reside with her mother in Asingan, Pangasinan, from which place she later moved to
Dagupan City to study in a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco
(plaintiff's sister-in-law) and some from anonymous writers(which were not produced at the
hearing) informing him of alleged acts of infidelity of his wife which he did not even care to
mention. On cross-examination, plaintiff admitted that his wife also informed him by letter, which
she claims to have destroyed, that a certain "Eliong" kissed her. All these communications
prompted him in October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a
legal separation between him and his wife on account of the latter's alleged acts of infidelity, and
he was directed to consult instead the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in
the house of one Mrs. Malalang, defendant's godmother. She came along with him and both
proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-husband, where they
stayed and lived for 2 nights and 1 day as husband and wife. Then they repaired to the plaintiff's
house and again passed the night therein as husband and wife. On the second day, Benjamin
Bugayong tried to verify from his wife the truth of the information he received that she had
committed adultery but Leonila, instead of answering his query, merely packed up and left,
which he took as a confirmation of the acts of infidelity imputed on her. After that and despite
such belief, plaintiff exerted efforts to locate her and failing to find her, he went to Bacarra, Ilocos
Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a
complaint for legal separation against his wife, Leonila Ginez, who timely filed an answer
vehemently denying the averments of the complaint and setting up affirmative defenses. After
the issues were joined and convinced that a reconciliation was not possible, the court set the
case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6
witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant
orally moved for the dismissal of the complaint, but the Court ordered him to file a written motion
to that effect and gave plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth
of the allegations of the commission of "acts of rank infidelity amounting to adultery", the cause

of action, if any, is barred by the statute of limitations; (2) That under the same assumption, the
act charged have been condoned by the plaintiff-husband; and (3) That the complaint failed to
state a cause of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the second
ground of the motion to dismiss i. e., condonation, ordered the dismissal of the action. After the
motion for reconsideration filed by plaintiff was denied, the case was taken up for review to the
Court of Appeals, appellant's counsel maintaining that the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in
the answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of Appeals certified
the case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as
defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage. Where both spouses are
offenders, a legal separation cannot by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except within one year from and after
the date on which the plaintiff became cognizant of the cause and within five years from and
after the date when such cause occurred.
As the only reason of the lower Court for dismissing the action was the alleged condonation of
the charges of adultery that the plaintiff-husband had preferred in the complaint against his wife,
We will disregard the other 2 grounds of the motion to dismiss, as anyway they have not been
raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or,
as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or
remission, by a husband or wife of a matrimonial offense which the latter has committed". It is to
be noted, however, that in defendant's answer she vehemently and vigorously denies having
committed any act of infidelity against her husband, and even if We were to give full weight to
the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and
link such evidence with the averments of the complaint, We would have to conclude that the
facts appearing on the record are far from sufficient to establish the charge of adultery, or, as
the complaint states, of "acts of rank infidelity amounting to adultery" preferred against the
defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-law
Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity
to deserve its production in evidence; nor the anonymous letters which plaintiff also failed to
present; nor the alleged letter that, according to plaintiff, his wife addressed to him admitting that
she had been kissed by one Eliong, whose identity was not established and which admission
defendant had no opportunity to deny because the motion to dismiss was filed soon after
plaintiff finished his testimony in Court, do not amount to anything that can be relied upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct
under the assumption that he really believed his wife guilty of adultery. What did he do in such
state of mind. In August, 1952, he went to Pangasinan and looked for his wife and after finding
her they lived together as husband and wife for 2 nights and 1 day, after which he says that he
tried to verify from her the truth of the news he had about her infidelity, but failed to attain his
purpose because his wife, instead of answering his query on the matter, preferred to desert him,

probably enraged for being subjected to such humiliation. And yet he tried to locate her, though
in vain. Now, do the husband's attitude of sleeping with his wife for 2 nights despite his alleged
belief that she was unfaithful to him, amount to a condonation of her previous and supposed
adulterous acts? In the order appealed from, the Court a quo had the following to say on this
point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell
this Hon. Court why you want to separate from your wife? A. I came to know that my wife is
committing adultery, I consulted the chaplain and he told me to consult the legal adviser. (p. 11,
t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to
the house of our god-mother, and as a husband I went to her to come along with me in our
house but she refused. (p. 12, t.s.n.)lawphil.net
Q. What happened next? A. I persuaded her to come along with me. She consented but I did
not bring her home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong? A. One day and
one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and
wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep together also as husband
and wife? A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? A. Only two nights. (p. 19,
t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the husband as defined
on the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders,
legal separation cannot be claimed by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those portions
quoted above, clearly shows that there was a condonation on the part of the husband for the
supposed "acts of rank infidelity amounting to adultery" committed by defendant-wife. Admitting
for the sake of argument that the infidelities amounting to adultery were committed by the
defendant, a reconciliation was effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she went with him and consented to be
brought to the house of his cousin Pedro Bugayong and together they slept there as husband
and wife for one day and one night, and the further fact that in the second night they again slept
together in their house likewise as husband and wife all these facts have no other meaning in
the opinion of this court than that a reconciliation between them was effected and that there was
a condonation of the wife by the husband. The reconciliation occurred almost ten months after
he came to know of the acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is
implied from sexual intercourse after knowledge of the other infidelity. such acts necessary
implied forgiveness. It is entirely consonant with reason and justice that if the wife freely
consents to sexual intercourse after she has full knowledge of the husband's guilt, her consent
should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars
the right to a divorce. But it is on the condition, implied by the law when not express, that the
wrongdoer shall not again commit the offense; and also that he shall thereafter treat the other
spouse with conjugal kindness. A breach of the condition will revive the original offense as a
ground for divorce. Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different states
of the U. S. that 'a single voluntary act of sexual intercourse by the innocent spouse after
discovery of the offense is ordinarily sufficient to constitute condonation, especially as against
the husband'. (27 Corpus Juris Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above
quoted, and of the various decisions above-cited, the inevitable conclusion is that the present
action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial
judge that the conduct of the plaintiff-husband above narrated despite his belief that his wife
was unfaithful, deprives him, as alleged the offended spouse, of any action for legal separation
against the offending wife, because his said conduct comes within the restriction of Article 100
of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty party,
after the commission of the offense, and with the knowledge or belief on the part of the injured
party of its commission, will amount to conclusive evidence of condonation; but this presumption
may be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is sufficient to
constitute condonation, and where the parties live in the same house, it is presumed that they
live on terms of matrimonial cohabitation (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live together after it
was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual
intercourse after knowledge of adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping
together for a single night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E.
185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption of marital
cohabitation as a basis of condonation will generally be inferred, nothing appearing to the
contrary, from the fact of the living together as husband and wife, especially as against the
husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart from the
doctrines laid down in the decisions of the various supreme courts of the United States above
quoted.
There is no merit in the contention of appellant that the lower court erred in entertaining
condonation as a ground for dismissal inasmuch as same was not raised in the answer or in a
motion to dismiss, because in the second ground of the motion to dismiss. It is true that it was
filed after the answer and after the hearing had been commenced, yet that motion serves to
supplement the averments of defendant's answer and to adjust the issues to the testimony of
plaintiff himself (section 4, Rule 17 of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed,
with costs against appellant. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and
Endencia, JJ., concur.
48.
49.
50.