AGAPAY vs.

PALANG Facts: Miguel Palang contracted his first marriage with Carlina (or Cornelia) on July 16, 1949. A few months after the wedding, in October 1949, he left for work in Hawaii. Miguel and Carlinas only child, Herminia Palang, was born on May 12, 1950. During his visit in 1964 to the Philippines, he stayed with his brother in Zambales. The trial court found that as early as 1957, Miguel had attempted to divorce Carlina in Hawaii. When he returned for good in 1972, Miguel refused to stay with Carlina but stayed alone in a house in Pozorrubio, Pangasinan. On July 15, 1973, 63 yr old Miguel contracted with second marriage with 19 yr old Erlinda Agapay. Two months earlier, Miguel and Erlinda jointly purchased a parcel of agricultural land located at San Felipe, Binalonan Pangasinan. A house and lot in Binalonan, Pangasinan was also purchased by Erlinda as sole vendee. On October 1975, Miguel and Cornelia Palang executed a deed of donation as a form of compromise agreement. The parties agreed to donate their conjugal property to their only child, Herminia Palang. Miguel and Erlinda had a son, Kristopher A. Palang. In 1979, Miguel and Erlinda were convicted of Concubinage upon Carlinas complaint. Two years later, Miguel died. On July 11, 1979, Carlina Palang and her daughter Herminia filed an action for recovery of ownership and possession of the Riceland and house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation with Erlinda Agapay. The RTC dismissed the case and ruled in favour of Agapay. On appeal, the respondent court reversed the trial courts decision and declared Carlina and Herminia Palang the owners of the properties in question. Issue(s): 1. Whether or not the court erred in granting the ownership of the two parcels of land to Carlina and Herminia Palang? 2. Whether or not the court erred in not declaring Kristopher Palang as Miguels illegitimate son and thus entitled to inherit Miguels estate? 3. Whether or not Kristopher Palang should be considered as party-defendant in the civil case? Decision: 1. No. Under Art 148 of the Family Code of the Philippines, only 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 actual contribution is required in this provision. In the case at bar, Erlinda failed to prove that she contributed money to the purchase of the Riceland in Binalonan, Pangasinan, the court finds no basis to justify her co-ownership with Miguel over the same. Consequently, the Riceland should, as correctly held by the CA, revert to the conjugal partnership property of the deceased Miguel and Carlina Palang. 2. No. The issue is resolved in the respondent courts pronouncement regarding Kristophers heirship and filiation inasmuch as question as to who are the heirs of the decedent, proof of filiation of illegitimate children and the determination of the estate of the latter and claims thereto should be ventilated in the proper probate court or in a special proceeding instituted for that purpose and cannot be adjudicated in the instant ordinary civil action xxx. 3. Yes. The trial court erred gravely. Kristopher, not having been impleaded, was therefore not a party to the case at bar. His mother, Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar. Wherefore, the petition is DENIED and the decision of the Court of Appeals is AFFIRMED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-50127-28 March 30, 1979 VICTOR JUANIZA, Heirs of Josefa P. Leus etc., et al., plaintiffs and appellees, vs. EUGENIO JOSE, THE ECONOMIC INSURANCE COMPANY, INC., and ROSALIA ARROYO, defendants and appellants. Victoriano O. Javier and Ricardo A. Fabros, Jr. for appellees. Luis Viscocho and Francisco E. Rodrigo, Jr. for appellants. DE CASTRO, J.: This case was certified by the Court of Appeals to this Court on the ground that the questions raised in the appeal of the decision of the Court of First Instance of Laguna are purely questions of law. Eugenio Jose was the registered owner and operator of the passenger jeepney involved in an accident of collision with a freight train of the Philippine National Railways that took place on November 23, 1969 which resulted in the death to seven (7) and physical injuries to five (5) of its passengers. At the time of the accident, Eugenio Jose was legally married to Socorro Ramos but had been cohabiting with defendant-appellant, Rosalia Arroyo, for sixteen (16) years in a relationship akin to that of husband and wife. In the resulting cages for damages filed in the Court of First Instance of Laguna, decision was rendered, the dispositive part of which reads as follows: (4) In Civil Case No. SP-867 ordering defendants Eugenio Jose and Rosalia Arroyo jointly and severally to pay plaintiff Victor Juaniza the sum of P1,600.00 plus legal interest from date of complaint until fully paid and costs of suit; (5) In Civil Case No. SP-872, ordering defendants Eugenio Jose and Rosalia Arroyo jointly and severally to pay the respective heirs of the deceased Josefa P. Leus, Fausto Retrita, Nestor del Rosario Aonuevo and Arceli de la Cueva in the sum of P12,000.00 for the life of each of said deceased, with legal interest from date of complaint, and costs of suit. (pp. 47-48, Rello). Motion for reconsideration was filed by Rosalia Arroyo praying that the decision be reconsidered insofar as it condemns her to pay damages jointly and severally with her co-defendant, but was denied. The lower court based her liability on the provision of Article 144 of the Civil Code which reads: When a man and woman driving 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 co-ownership. Rosalia Arroyo then filed her appeal with the Court of Appeals which, as previously stated, certified the same to Us, the question raised being purely legal as may be seen from the lone assigned error as follows: The lower court erred in holding defendant-appellant Rosalia Arroyo liable 'for damages resulting from the death and physical injuries suffered by the passengers' of the jeepney registered in the name of Eugenio Jose, on the

erroneous theory that Eugenio Jose and Rosalia Arroyo, having lived together as husband and wife, without the benefit of marriage, are coowners of said jeepney. (p. 2, Appellant's Brief). The issues thus to be resolved are as follows: (1) whether or not Article 144 of the Civil Code is applicable in a case where one of the parties in a common-law relationship is incapacitated to marry, and (2) whether or not Rosalia who is not a registered owner of the jeepney can be held jointly and severally liable for damages with the registered owner of the same. It has been consistently ruled by this Court that the co-ownership contemplated in Article 144 of the Civil Code requires that the man and the woman living together must not in any way be incapacitated to contract marriage. (Camporedondo vs. Aznar, L-11483, February 4, 1958, 102 Phil. 1055, 1068; Osmea vs. Rodriguez, 54 OG 5526; Malajacan vs. Rubi, 42 OG 5576). Since Eugenio Jose is legally married to Socorro Ramos, there is an impediment for him to contract marriage with Rosalia Arroyo. Under the aforecited provision of the Civil Code, Arroyo cannot be a co-owner of the jeepney. The jeepney belongs to the conjugal partnership of Jose and his legal wife. There is therefore no basis for the liability of Arroyo for damages arising from the death of, and physical injuries suffered by, the passengers of the jeepney which figured in the collision. Rosalia Arroyo, who is not the registered owner of the jeepney can neither be liable for damages caused by its operation. It is settled in our jurisprudence that only the registered owner of a public service vehicle is responsible for damages that may arise from consequences incident to its operation, or maybe caused to any of the passengers therein. (De Peralta vs. Mangusang, L18110, July 31, 1964, 11 SCRA 598; Tamayo vs. Aquino, L-12634 and L-12720, May 29, 1959; Roque vs. Malibay Transit, L-8561, November 18,1955; Montoya vs. Ignacio, L-5868, December 29, 1953). WHEREFORE, in view of the foregoing, Rosalia Arroyo is hereby declared free from any liability for damages and the appealed decision is hereby modified accordingly. No costs. Tumlos vs. Fernandez FACTS: 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; "[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 Mario Fernandez. She then asked for the dismissal of the complaint. 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]. ISSUE: Is the petitioner a co-owner of the property?

HELD: Petitioner is not a Co-Owner Under Article 144 of the Civil Code. Even considering the evidence presented before the MTC and the RTC, we cannot accept petitioners submission that she is a co-owner of the disputed property pursuant to Article 144 of the Civil Code. As correctly held by the CA, the applicable law is not Article 144 of the Civil Code, but Article 148 of the Family Code. Article 144 of the 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 beginning. 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. 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." x-sc chanrobles virtual law library 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. 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. 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. WHEREFORE , the Petition is DENIED and the appealed Decision AFFIRMED. SO ORDERED.

DOCENA VS. LAPESURA FACTS: 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. 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. ISSUE : Whether or not it is sufficient that the certification of non-forum shopping was signed by only one of the petitioners. HELD: 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 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. 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 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 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. 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.

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. HONTIVEROS VS. RTC FACTS: 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. 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. 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. ISSUE: 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. HELD: 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. 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. 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 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: Religious relationship and relationship by affinity are not given any legal effect in this jurisdiction. 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. Manalo vs. CA FACTS: 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. 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 with the respondent Regional Trial Court of Manila 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. ISSUE: 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. HELD: Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an ordinary civil action involving members of the same family.It is a fundamental rule that in the determination of the nature of an action or proceeding, the averments and the character of the relief sought 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. 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. 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 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. Article 222 of the Civil Code of the Philippines 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. 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. WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit, Costs against petitioners. SO ORDERED. ALBANO VS. GAPUSAN FACTS: 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). ISSUE: Whether or not Judge Gapusan should be censured because of notarizing the void agreement between the spouses Albano. HELD: 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. Modequillo vs. Breva 185 SCRA 766 Facts: On January 29, 1988, a judgment was rendered by the Court of Appeals entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al. The said judgment having become final and executory, a writ of execution was issued by the RTC of Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo and Benito Malubay at Davao del Sur. The sheriff levied on a parcel of residential land located at Davao del Sur registered in the name of defendant and a parcel of agricultural land located at Malalag, Davao del Sur. A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein that the residential land located at Poblacion Malalag is where the family home is built since 1969 prior to the commencement of this case and as such is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof, and that the judgment debt sought to be enforced against the family home of defendant is not one of those enumerated under Article 155 of the Family Code. An opposition thereto was filed by the plaintiffs. Issue: Whether or not a final judgment in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code. Ruling: Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 97898 August 11, 1997 FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E & L MERCANTILE, INC., respondents. PANGANIBAN, J.: May a writ of execution of a final and executory judgment issued before the effectivity of the Family Code be executed on a house and lot constituted as a family home under the provision of said Code? State of the Case This is the principal question posed by petitioner in assailing the Decision of Respondent Court of Appeals 1 in CA-G.R. SP No. 18906 promulgated on February 21, 1990 and its Resolution promulgated on March 21, 1991, affirming the orders issued by the trial court commanding the issuance of various writs of execution to enforce the latter's decision in Civil Case No. 53271. The Facts Petitioner Florante F. Manacop and his wife Eulaceli purchased on March 10, 1972 a 446-square-meter residential lot with a bungalow, in consideration of P75,000.00. 3 The property, located in Commonwealth Village, Commonwealth Avenue, Quezon City, is covered by Transfer Certificate of Title No. 174180. On March 17, 1986, Private Respondent E & L Merchantile, Inc. filed a complaint against petitioner and F.F. Manacop Construction Co., Inc. before the Regional Trial Court of Pasig, Metro Manila to collect an indebtedness of P3,359,218.45. Instead of filing an answer, petitioner and his company entered into a compromise agreement with private respondent, the salient portion of which provides: c. That defendants will undertake to pay the amount of P2,000,000.00 as and when their means permit, but expeditiously as possible as their collectibles will be collected. (sic) On April 20, 1986, the trial court rendered judgment approving the aforementioned compromise agreement. It enjoined the parties to comply with the agreement in good faith. On July 15, 1986, private respondent filed a motion for execution which the lower court granted on September 23, 1986. However, execution of the judgment was delayed. Eventually, the sheriff levied on several vehicles and other personal properties of petitioner. In partial satisfaction of the judgment debt, these chattels were sold at public auction for which certificates of sale were correspondingly issued by the sheriff. On August 1, 1989, petitioner and his company filed a motion to quash the alias writs of execution and to stop the sheriff from continuing to enforce them on the ground that the judgment was not yet executory. They alleged that the compromise agreement had not yet matured as there was no showing that they had the means to pay the indebtedness or that their receivables had in fact been collected. They buttressed their motion with supplements and other pleadings.
2

On August 11, 1989, private respondent opposed the motion on the following grounds: (a) it was too late to question the September 23, 1986 Order considering that more than two years had elapsed; (b) the second alias writ of execution had been partially implemented; and (c) petitioner and his company were in bad faith in refusing to pay their indebtedness notwithstanding that from February 1984 to January 5, 1989, they had collected the total amount of P41,664,895.56. On September 21, 1989, private respondent filed an opposition to petitioner and his company's addendum to the motion to quash the writ of execution. It alleged that the property covered by TCT No. 174180 could not be considered a family home on the grounds that petitioner was already living abroad and that the property, having been acquired in 1972, should have been judicially constituted as a family home to exempt it from execution. On September 26, 1989, the lower court denied the motion to quash the writ of execution and the prayers in the subsequent pleadings filed by petitioner and his company. Finding that petitioner and his company had not paid their indebtedness even though they collected receivables amounting to P57,224,319.75, the lower court held that the case had become final and executory. It also ruled that petitioner's residence was not exempt from execution as it was not duly constituted as a family home, pursuant to the Civil Code. Hence, petitioner and his company filed with the Court of Appeals a petition for certiorari assailing the lower court's Orders of September 23, 1986 and September 26, 1989. On February 21, 1990, Respondent Court of Appeals rendered its now questioned Decision dismissing the petition for certiorari. The appellate court quoted with approval the findings of the lower court that: (a) the judgment based on the compromise agreement had become final and executory, stressing that petitioner and his company had collected the total amount of P57,224,319.75 but still failed to pay their indebtedness and (b) there was no showing that petitioner's residence had been duly constituted as a family home to exempt it from execution. On the second finding, the Court of Appeals added that: . . . . We agree with the respondent judge that there is no showing in evidence that petitioner Maacop's residence under TCT 174180 has been duly constituted as a family home in accordance with law. For one thing, it is the clear implication of Article 153 that the family home continues to be so deemed constituted so long as any of its beneficiaries enumerated in Article 154 actually resides therein. Conversely, it ceases to continue as such family home if none of its beneficiaries actually occupies it. There is no showing in evidence that any of its beneficiaries is actually residing therein. On the other hand, the unrefuted assertion of private respondent is that petitioner Florante Maacop had already left the country and is now, together with all the members of his family, living in West Covina, Los Angeles, California, U.S.A. Petitioner and his company filed a motion for reconsideration of this Decision on the ground that the property covered by TCT No. 174180 was exempt from execution. On March 21, 1991, the Court of Appeals rendered the challenged Resolution denying the motion. It anchored its ruling on Modequillo v. Breva, 4 which held that "all existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code." Applying the foregoing pronouncements to this case, the Court of Appeals explained: The record of the present case shows that petitioners incurred the debt of P3,468,000.00 from private respondent corporation on February 18, 1982 (Annex "A", Petition). The judgment based upon the compromise agreement was rendered by the court on April 18, 1986 (Annex "C", ibid). Paraphrasing the aforecited Modequillo case, both the debt and the judgment preceded the effectivity of the Family Code on August 3, 1988. Verily, the case at bar

does not fall under the exemptions from execution provided under Article 155 of the Family Code. Undeterred, petitioner filed the instant petition for review on certiorari arguing that the Court of Appeals misapplied Modequillo. He contends that there was no need for him to constitute his house and lot as a family home for it to be treated as such since he was and still is a resident of the same property from the time "it was levied upon and up to this moment." The Issue As stated in the opening sentence of this Decision, the issue in this case boils down to whether a final and executory decision promulgated and a writ of execution issued before the effectivity of the Family Code can be executed on a family home constituted under the provisions of the said Code. The Court's Ruling We answer the question in the affirmative. The Court of Appeals committed no reversible error. On the contrary, its Decision and Resolution are supported by law and applicable jurisprudence. No Novel Issue At the outset, the Court notes that the issue submitted for resolution in the instant case is not entirely new. In Manacop v. Court of Appeals, 5 petitioner himself as a party therein raised a similar question of whether this very same property was exempt from preliminary attachment for the same excuse that it was his family home. In said case, F.F. Cruz & Co., Inc. filed a complaint for a sum of money. As an incident in the proceedings before it, the trial court issued writ of attachment on the said house and lot. In upholding the trial court (and the Court of Appeals) in that case, we ruled that petitioner incurred the indebtedness in 1987 or prior to the effectively of the Family Code on August 3, 1988. Hence, petitioner's family home was not exempt from attachment "by sheer force of exclusion embodied in paragraph 2, Article 155 of the Family Code cited in Modequillo," where the Court categorically ruled: Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. Article 155 of the Family Code also provides as follows: Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborer, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building.

The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein. In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1960 is not welltaken. Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code, Article 162 does not state that provisions of Chapter 2, Title V have a retroactive effect . Is the family home of petitioner exempt from execution of the money judgment aforecited? No. The debt or liability which was the basis of the judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions from execution provided in the Family Code. 6 (Emphasis supplied.) Article 153 of the Family Code Has No Retroactive Effect Petitioner contends that the trial court erred in holding that his residence was not exempt from execution in view of his failure to show that the property involved "has been duly constituted as a family home in accordance with law." He asserts that the Family Code and Modequillo require simply the occupancy of the property by the petitioner, without need for its judicial or extrajudicial constitution as a family home. 7 Petitioner is only partly correct. True, under the Family Code which took effect on August 3, 1988, 8 the subject property became his family home under the simplified process embodied in Article 153 of said code. However, Modequillo explicitly ruled that said provision of the Family Code does not have retroactive effect. In other words, prior to August 3, 1988, the procedure mandated by the Civil Code 9 had to be followed for a family home to be constituted as such. There being absolutely no proof that the subject property was judicially or extrajudicially constituted as a family home, it follows that the law's protective mantle cannot be availed of by petitioner. Since the debt involved herein was incurred and the assailed orders of the trial court issued prior to August 3, 1988, the petitioner cannot be shielded by the benevolent provisions of the Family Code.

List of Beneficiary-Occupants Restricted to Those Enumerated in the Code In view of the foregoing discussion, there is no reason to address the other arguments of petitioner other than to correct his misconception of the law. Petitioner contends that he should be deemed residing in the family home because his stay in the United States is merely temporary. He asserts that the person staying in the house is his overseer and that whenever his wife visited this country, she stayed in the family home. This contention lacks merit. The law explicitly provides that occupancy of the family home either by the owner thereof or by "any of its beneficiaries" must be actual. That which is "actual" is something real, or actually existing, as opposed to something merely possible, or to something which is presumptive or constructive. 10 Actual occupancy, however, need not be by the owner of the house specifically. Rather, the property may be occupied by the "beneficiaries" enumerated by Article 154 of the Family Code. Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of the family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for lead support. This enumeration may include the in-laws where the family home is constituted jointly by the husband and wife. 11 But the law definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code. Consequently, occupancy of a family home by an overseer like Carmencita V. Abat in this case 12 is insufficient compliance with the law. WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is immediately executory. Double costs against petitioner. SO ORDERED. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 156879 January 20, 2004

On December 19, 1959, Patricio Prado, Sr. died. Narcisa subsequently married Bonifacio Calpatura. In order to support her minor children with her first husband, Narcisa and her brotherin-law, Tomas Calpatura, Sr., executed on April 26, 1968 an Agreement of Purchase and Sale whereby the former agreed to sell to the latter the northern half portion of the property for the sum of P10,500.00.1 On July 28, 1973, Narcisa executed a Deed of Absolute Sale in favor of Tomas over the said property.2 In 1976, Tomas daughter, Flordeliza Calpatura Flora, built a two -storey duplex with firewall3 on the northern half portion of the property. Respondents, who occupied the southern half portion of the land, did not object to the construction. Flordeliza Flora and her husband Wilfredo declared the property for taxation purposes4 and paid the corresponding taxes thereon.5 Likewise, Maximo Calpatura, the son of Tomas cousin, built a small house on the northern portion of the property. On April 8, 1991, respondents filed a complaint for declaration of nullity of sale and delivery of possession of the northern half portion of the subject property against petitioners Flordeliza Calpatura Flora, Dominador Calpatura and Tomas Calpatura, Jr. before the Regional Trial Court of Quezon City, Branch 100, docketed as Civil Case No. Q-91-8404.6 Respondents alleged that the transaction embodied in the Agreement to Purchase and Sale between Narcisa and Tomas was one of mortgage and not of sale; that Narcisas children tried to redeem the mortgaged property but they learned that the blank document which their mother had signed was transformed into a Deed of Absolute Sale; that Narcisa could not have sold the northern half portion of the property considering that she was prohibited from selling the same within a period of 25 years from its acquisition, pursuant to the condition annotated at the back of the title; 7 that Narcisa, as natural guardian of her children, had no authority to sell the northern half portion of the property which she and her children co-owned; and that only P5,000.00 out of the consideration of P10,500.00 was paid by Tomas. In their answer, petitioners countered that Narcisa owned 9/14 of the property, consisting of as her share in the conjugal partnership with her first husband and 1/7 as her share in the estate of her deceased husband; that the consideration of the sale in the amount of P10,500.00 had been fully paid as of April 1, 1968; that Narcisa sold her conjugal share in order to support her minor children; that Narcisas claim was barred by laches and prescription; and that the Philippine Homesite and Housing Corporation, not the respondents, was the real party in interest to question the sale within the prohibited period. On April 2, 1997, the court a quo8 dismissed the complaint. It found that the sale was valid; that the Agreement to Purchase and Sale and the Deed of Absolute Sale were duly executed; that the sum of P10,500.00 as selling price for the subject property was fully paid there being no demand for the payment of the remaining balance; that the introduction of improvements thereon by the petitioners was without objection from the respondents; and that Roberto and Erlinda failed to contest the transaction within four years after the discovery of the alleged fraud and reaching the majority age in violation of Article 1391 of the Civil Code. 9 Petitioners appealed the decision to the Court of Appeals, where it was docketed as CA-G.R. CV No. 56843. On October 3, 2002, a decision10 was rendered by the Court of Appeals declaring that respondents were co-owners of the subject property, thus the sale was valid only insofar as Narcisas 1/7 undivided share thereon was concerned. The dispositive portion of the said decision reads: WHEREFORE, the appealed Decision is AFFIRMED, with the MODIFICATION that the sale in dispute is declared valid only with respect to the one-seventh (1/7) share of plaintiff-appellant NARCISA H. PRADO in the subject property, which is equivalent to 78.8857 square meters. In all other respects, the same decision stands. No pronouncement as to costs. SO ORDERED.11

FLORDELIZA CALPATURA FLORA, DOMINADOR CALPATURA and TOMAS CALPATURA, JR., Heirs of TOMAS CALPATURA, SR., Petitioners, vs. ROBERTO, ERLINDA, DANIEL, GLORIA, PATRICIO, JR. and EDNA, all surnamed PRADO and NARCISA PRADO, Respondents. DECISION YNARES-SANTIAGO, J.: The property under litigation is the northern half portion of a residential land consisting of 552.20 square meters, more or less, situated at 19th Avenue, Murphy, Quezon City and covered by Transfer Certificate of Title No. 71344 issued on August 15, 1963 by the Register of Deeds of Quezon City in the name of Narcisa Prado and her children by her first husband, Patricio Prado, Sr., namely, Roberto, Erlinda, Daniel, Gloria, Patricio, Jr. and Edna, respondents herein. The pertinent facts are as follows:

Petitioner filed a motion for reconsideration which was denied in a Resolution dated January 14, 2003.12 Hence this petition for review on the following assigned errors: I THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THAT, ASIDE FROM THE DECLARATION OF THE VALIDITY OF THE SALE, THE PETITIONERS HEREIN HAVE TAKEN ACTUAL POSSESSION OF THE SAID ONE-HALF (1/2) TO THE EXCLUSION OF THE RESPONDENTS AND INTRODUCED IMPROVEMENTS THEREON. II THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THE CLEAR AND UNEQUIVOCAL STATEMENT IN THE SALE THAT THE SAME PERTAINS TO THE CONJUGAL SHARE OF RESPONDENT NARCISA PRADO AND THE OTHER RESPONDENTS HAD NO FINANCIAL CAPACITY TO ACQUIRE THE SAID PROPERTY SINCE THEY WERE MINORS THEN AT THE ISSUANCE OF THE SAID TCT NO. 71344 ON AUGUST 15, 1963. III THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN NOT DECLARING THE HEREIN RESPONDENTS GUILTY OF LACHES IN FILING THE INSTANT CASE ONLY ON APRIL 8, 1991, THAT IS 18 YEARS AFTER THE SAID SALE WITH THE PETITIONERS TAKING ACTUAL POSSESSION OF SAID PORTION OF THE PROPERTY. IV THAT THE DECISION OF THE HON. COURT OF APPEALS WILL UNDULY ENRICH THE RESPONDENTS AT THE EXPENSE OF THE HEREIN PETITIONERS.13 At the outset, it must be stressed that only questions of law may be raised in petitions for review before this Court under Rule 45 of the Rules of Court.14 It was thus error for petitioners to ascribe to the Court of Appeals grave abuse of discretion. This procedural lapse notwithstanding, in the interest of justice, this Court shall treat the issues as cases of reversible error.15 The issues for resolution are: (1) Is the subject property conjugal or paraphernal? (2) Is the transaction a sale or a mortgage? (3) Assuming that the transaction is a sale, what was the area of the land subject of the sale? Article 160 of the Civil Code, which was in effect at the time the sale was entered into, 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 to the wife. Proof of acquisition during the marriage is a condition sine qua non in order for the presumption in favor of conjugal ownership to operate.16 In the instant case, while Narcisa testified during cross-examination that she bought the subject property from Peoples Homesite Housing Corporation with her own funds, 17 she, however admitted in the Agreement of Purchase and Sale and the Deed of Absolute Sale that the property was her conjugal share with her first husband, Patricio, Sr. 18 A verbal assertion that she bought the land with her own funds is inadmissible to qualify the terms of a written agreement under the parole evidence rule.19 The so-called parole evidence rule forbids any addition to or contradiction of the terms of a written instrument by testimony or other evidence purporting to show that, at or before the execution of the parties written agreement, other or different terms

were agreed upon by the parties, varying the purport of the written contract. Whatever is not found in the writing is understood to have been waived and abandoned.20 Anent the second issue, the Deed of Absolute Sale executed by Narcisa in favor of Tomas is contained in a notarized21 document. In Spouses Alfarero, et al. v. Spouses Sevilla, et al. ,22 it was held that a public document executed and attested through the intervention of a notary public is evidence of the facts in a clear, unequivocal manner therein expressed. Otherwise stated, public or notarial documents, or those instruments duly acknowledged or proved and certified as provided by law, may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. In order to contradict the presumption of regularity of a public document, evidence must be clear, convincing, and more than merely preponderant. It is well-settled that in civil cases, the party that alleges a fact has the burden of proving it. 23 Except for the bare allegation that the transaction was one of mortgage and not of sale, respondents failed to adduce evidence in support thereof. Respondents also failed to controvert the presumption that private transactions have been fair and regular. 24 Furthermore, Narcisa, in fact did not deny that she executed an Affidavit allowing spouses Wilfredo and Flordeliza Flora to construct a firewall between the two-storey duplex and her house sometime in 1976. The duplex was made of strong materials, the roofing being galvanized sheets. While the deed of sale between Tomas and Narcisa was never registered nor annotated on the title, respondents had knowledge of the possession of petitioners of the northern half portion of the property. Obviously, respondents recognized the ownership of Tomas, petitioners predecessor-in-interest. Respondents belatedly claimed that only P5,000.00 out of the P10,500.00 consideration was paid.1wphi1 Both the Agreement of Purchase and Sale and the Deed of Absolute Sale state that said consideration was paid in full. Moreover, the presumption is that there was sufficient consideration for a written contract.25 The property being conjugal, upon the death of Patricio Prado, Sr., one-half of the subject property was automatically reserved to the surviving spouse, Narcisa, as her share in the conjugal partnership. Particios rights to the other half, in turn, were transmitted upon his death to his heirs, which includes his widow Narcisa, who is entitled to the same share as that of each of the legitimate children. Thus, as a result of the death of Patricio, a regime of co-ownership arose between Narcisa and the other heirs in relation to the property. The remaining one-half was transmitted to his heirs by intestate succession. By the law on intestate succession, his six children and Narcisa Prado inherited the same at one-seventh (1/7) each pro indiviso.26 Inasmuch as Narcisa inherited one-seventh (1/7) of her husband's conjugal share in the said property and is the owner of one-half (1/2) thereof as her conjugal share, she owns a total of 9/14 of the subject property. Hence, Narcisa could validly convey her total undivided share in the entire property to Tomas. Narcisa and her children are deemed co-owners of the subject property. Neither can the respondents invoke the proscription of encumbering the property within 25 years from acquisition. In Sarmiento, et al. v. Salud, et al.,27 it was held that: xxx The condition that the appellees Sarmiento spouses could not resell the property except to the Peoples Homesite and Housing Corporation (PHHC for short) within the next 25 years after appellees purchasing the lot is manifestly a condition in favor of the PHHC, and not one in favor of the Sarmiento spouses. The condition conferred no actionable right on appellees herein, since it operated as a restriction upon their jus disponendi of the property they bought, and thus limited their right of ownership. It follows that on the assumption that the mortgage to appellee Salud and the foreclosure sale violated the condition in the Sarmiento contract, only the PHHC was entitled to invoke the condition aforementioned, and not the Sarmientos. The validity or invalidity of the sheriff's foreclosure sale to appellant Salud thus depended exclusively on the PHHC; the latter could attack the sale as violative of its right of exclusive reacquisition; but it (PHHC) also

could waive the condition and treat the sale as good, in which event, the sale can not be assailed for breach of the condition aforestated. Finally, no particular portion of the property could be identified as yet and delineated as the object of the sale considering that the property had not yet been partitioned in accordance with the Rules of Court.28 While Narcisa could validly sell one half of the subject property, her share being 9/14 of the same, she could not have particularly conveyed the northern portion thereof before the partition, the terms of which was still to be determined by the parties before the trial court. WHEREFORE, the Decision of the Court of Appeals on October 3, 2002, as well as the Resolution dated January 14, 2003 is PARTLY AFFIRMED subject to the following MODIFICATIONS: 1) Narcisa Prado is entitled to 9/14 of the residential land consisting of 552.20 square meters, more or less, situated at 19th Avenue, Murphy, Quezon City and covered by Transfer Certificate of Title No. 71344; 2) the sale of the undivided one half portion thereof by Narcisa Prado in favor of Tomas Calpatura, Sr. is valid. Furthermore, the case is REMANDED to the court of origin, only for the purpose of determining the specific portion being conveyed in favor of Tomas Calpatura, Sr. pursuant to the partition that will be agreed upon by the respondents. SO ORDERED. SUPREME COURT Manila THIRD DIVISION G.R. No. 177703 January 28, 2008

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 ex-parte 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.

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;

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. xxxx

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.

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. 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 val id 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 m oved 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. 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
19

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.

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, 2002 1 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 man-andwife. 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 cert ificate 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.

The complaint alleges that Mariano Andal is the surviving son of Emiliano Andal and Maria Dueas; that Emiliano Andal died on September 24, 1942; that Emiliano Andal was the owner of the parcel of land in question having acquired it from his mother Eduvigis Macaraig by virtue of a donation propter nuptias executed by the latter in favor of the former; that Emiliano Andal had been in possession of the land from 1938 up to 1942, when Eduvigis Macaraig, taking advantage of the abnormal situation then prevailing, entered the land in question. The lower court rendered judgment in favor of the plaintiffs (a) declaring Mariano Andal the legitimate son of Emiliano Andal and such entitled to inherit the land in question; (b) declaring Mariano Andal owner of said land; and (c) ordering the defendant to pay the costs of suit. Defendant took the case to this Court upon the plea that only question of law are involved. It appears undisputed that the land in question was given by Eduvigis Macaraig to her son Emiliano Andal by virtue of a donation propter nuptias she has executed in his favor on the occasion of his marriage to Maria Dueas. If the son born to the couple is deemed legitimate, then he is entitled to inherit the land in question. If otherwise, then the land should revert back to Eduvigis Macaraig as the next of kin entitled to succeed him under the law. The main issue, therefore, to be determined hinges on the legitimacy of Mariano Andal in so far as his relation to Emiliano Andal is concerned. The determination of this issue much depends upon the relationship that had existed between Emiliano Andal and his wife during the period of conception of the child up to the date of his birth in connection with the death of the alleged father Emiliano Andal. The following facts appear to have been proven: Emiliano Andal became sick of tuberculosis in January 1941. Sometime thereafter, his brother, Felix, went to live in his house to help him work his house to help him work his farm. His sickness became worse that on or about September 10, 1942, he became so weak that he could hardly move and get up from his bed. On September 10, 1942, Maria Duenas, his wife, eloped with Felix, and both went to live in the house of Maria's father, until the middle of 1943. Since May, 1942, Felix and Maria had sexual intercourse and treated each other as husband and wife. On January 1, 1943, Emiliano died without the presence of his wife, who did not even attend his funeral. On June 17, 1943, Maria Dueas gave birth to a boy, who was given the name of Mariano Andal. Under these facts, can the child be considered as the legitimate son of Emiliano? Article 108 of the Civil Code provides: Children born after the one hundred and eighty days next following that of the celebration of marriage or within the three hundred days next following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2474 May 30, 1951

This presumption may be rebutted only by proof that it was physically impossible for the husband to have had access to his wife during the first one hundred and twenty days of the three hundred next preceding the birth of the child. Since the boy was born on June 17, 1943, and Emiliano Andal died on January 1, 1943, that boy is presumed to be the legitimate son of Emiliano and his wife, he having been born within three hundred (300) days following the dissolution of the marriage. This presumption can only be rebutted by proof that it was physically impossible for the husband to have had access to his wife during the first 120 days of the 300 next preceding the birth of the child. Is there any evidence to prove that it was physically impossible for Emiliano to have such access? Is the fact that Emiliano was sick of tuberculosis and was so weak that he could hardly move and get up from his bed sufficient to overcome this presumption? Manresa on this point says: Impossibility of access by husband to wife would include (1) absence during the initial period of conception, (2) impotence which is patent, continuing and incurable, and (3) imprisonment, unless it can be shown that cohabitation took place through corrupt violation of prison regulations. Manresa, 492-500, Vol. I, cited by Dr. Arturo Tolentino in his book "Commentaries and Jurisprudence on the Civil Code, Vol. 1, p.90)."

MARIANO ANDAL, assisted by mother Maria Dueas as guardian ad litem, and MARIA DUEAS, plaintiffs, vs. EDUVIGIS MACARAIG, defendant. Reyes and Dy-Liaco for appellants. Tible, Tena and Borja for appellees. BAUTISTA ANGELO, J.: Mariano Andal, a minor, assisted by his mother Maria Dueas, as guardian ad litem, brought an action in the Court of First Instance of Camarines Sur for the recovery of the ownership and possession of a parcel of land situated in the barrio of Talacop, Calabanga, Camarines Sur.

There was no evidence presented that Emiliano Andal was absent during the initial period of conception, specially during the period comprised between August 21, 1942 and September 10, 1942, which is included in the 120 days of the 300 next preceding the birth of the child Mariano Andal. On the contrary, there is enough evidence to show that during that initial period, Emiliano Andal and his wife were still living under the marital roof. Even if Felix, the brother, was living in the same house, and he and the wife were indulging in illicit intercourse since May, 1942, that does not preclude cohabitation between Emiliano and his wife. We admit that Emiliano was already suffering from tuberculosis and his condition then was so serious that he could hardly move and get up from bed, his feet were swollen and his voice hoarse. But experience shows that this does not prevent carnal intercourse. There are cases where persons suffering from this sickness can do the carnal act even in the most crucial stage because they are more inclined to sexual intercourse. As an author has said, "the reputation of the tuberculosis towards eroticism (sexual propensity) is probably dependent more upon confinement to bed than the consequences of the disease." (An Integrated Practice of Medicine, by Hyman, Vol. 3, p.2202). There is neither evidence to show that Emiliano was suffering from impotency, patent, continuous and incurable, nor was there evidence that he was imprisoned. The presumption of legitimacy under the Civil Code in favor of the child has not, therefore, been overcome. We can obtain the same result viewing this case under section 68, par. (c) of Rule 123, of the Rules of Court, which is practically based upon the same rai'son d'etre underlying the Civil Code. Said section provides: The issue of a wife cohabiting with the husband who is not impotent, is indisputably presumed to be legitimate, if not born within one hundred eighty days immediately succeeding the marriage, or after the expiration of three hundred days following its dissolution. We have already seen that Emiliano and his wife were living together, or at least had access one to the other, and Emiliano was not impotent, and the child was born within three (300) days following the dissolution of the marriage. Under these facts no other presumption can be drawn than that the issue is legitimate. We have also seen that this presumption can only be rebutted by clear proof that it was physically or naturally impossible for them to indulge in carnal intercourse. And here there is no such proof. The fact that Maria Dueas has committed adultery can not also overcome this presumption (Tolentino's Commentaries on the Civil Code, Vol. I, p. 92). In view of all the foregoing, we are constrained to hold that the lower court did not err in declaring Mariano Andal as the legitimate son of the spouses Emiliano Andal and Maria Dueas. Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.

ISSUE: WON petitioners certificate of live birth will suffice to establish her legitimacy.

HELD:

The Court dismissed the case for lack of merit. The mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption. It does not confer upon the child the status of an adopted child and her legal rights. Such act amounts to simulation of the child's birth or falsification of his or her birth certificate, which is a public document.

It is worthy to note that Vicente and brother of the deceased wife executed a Deed of ExtraJudicial Settlement of the Estate of the latter. In the notarized document, they stated that they were the sole heirs of the deceased because she died without descendants and ascendants. In executing such deed, Vicente effectively repudiated the Certificate of Live Birth of the petitioner where it appeared thathe was the petitioners father. REYES vs. MIJARES [G.R. NO. 143826. AUGUST 28, 2003.]

YNARES-SANTIAGO FACTS: In 1960, Vicente Reyes married Ignacia Aguilar but they had been separated de facto in 1974. One of their conjugal properties is Lot No. 4349 B-2 and the apartment built thereon. The said lot was registered in the name of Spouses Vicente Reyes and Ignacia Aguilar-Reyes. Vicente Reyes filed a petition for administration and appointment of guardian with the MTC. In the said petition, he misrepresented that his wife, Ignacia, died on March 12, 1982 and that he and their minor children were her only heirs. The court appointed Vicente as guardian of their minor children and subsequently authorized Vicente to sell the estate of Ignacia. On March 1, 1983, respondent Spouses Cipriano and Florentina Mijares bought Lot No. 4349-B-2 for P110,000. As a consequence of which, the certificate of title in the name of Vicente and Ignacia Agilar-Reyes was cancelled and a new title was issued in the name of respondent-spoues. These circumstances were discovered by Ignacia sometime in 1984. Ignacia then sent a letter to respondent-spouses demanding the return of her share in the lot. Failing to settle the matter amicably, Ignacia instituted a complaint for annulment of sale against respondent-spouses and Vicente was included as one of the defendants. In their answer, respondents claimed that they are purchasers in good faith and that the sale was valid because the same was duly approved by the court. After trial on the merits, the court a quo rendered a decision declaring the sale of Lot No. 4349-B-2 void with respect to the share of Ignacia. A motion for modification of the decision was filed by Ignacia praying that the sale be declared void in its entirety and that the respondents be ordered to reimburse the rentals collected on the apartments. The trial court granted the motion for modification. Both Ignacia and respondent-spouses appealed to the Court of Appeals. Pending the appeal, Ignacia died and was substituted by her compulsory heirs. The appellate court reversed the decision of the ocurt a quo, ruling that, notwithstanding the absence of Iganacias consent to the sale, the same must be held valid in favor of respondent-spouses because they were innocent purchasers for value.

Benitez-Badua vs. CA GR No. 105625, January 24, 1994

FACTS: Spouses Vicente Benitez and Isabel Chipongian were owners of various properties located in Laguna. Isabel died in 1982 while his husband died in 1989. Vicentes sister and nephew filed a complaint for the issuance of letters of administration of Vicentes estate in favor of the nephew, herein private respondent. The petitioner, Marissa Benitez-Badua, was raised and cared by the deceased spouses since childhood, though not related to them by blood, nor legally adopted. The latter to prove that she is the only legitimate child of the spouses submitted documents such as her certificate of live birth where the spouses name were reflected as her parents. She even testified that said spouses continuously treated her as their legitimate daughter. On the other hand, the relatives of Vicente declared that said spouses were unable to physically procreate hence the petitioner cannot be the biological child. Trial court decided in favor of the petitioner as the legitimate daughter and sole heir of the spouses.

ISSUES: 1. What is the status of the sale of Lot No. 4349-B-2 to respondent-spouses? 2. Would the sale, if voidable, be annulled in its entirety? 3. Were respondent-spouses purchasers in good faith?

spouse who is bound thereby, "should have no exclusive property or if it should be insufficient." These are considerations that go beyond the mere equitable share of the wife in the property. These are reasons enough for the husband to be stopped from disposing of the conjugal property without the consent of the wife. Even more fundamental is the fact that the nullity is decreed by the Code not on the basis of prejudice but lack of consent of an indispensable party to the contract under Article 166.

HELD: 1. VOIDABLE. Pursuant to the foregoing provisions (Articles 166 and 173 of the Civil Code), the husband could not alienate or encumber any conjugal real property without the consent, express or implied, of the wife otherwise, the contract is voidable. Indeed, in several cases the Court had ruled that such alienation or encumbrance by the husband is void. The better view, however, is to consider the transaction as merely voidable and not void. This is consistent with Article 173 of the Civil Code pursuant to which the wife could, during the marriage and within 10 years from the questioned transaction, seek its annulment. In Spouses Guiang v. Court of Appeals, the Court quoted with approval the ruling of the trial court that under the Civil Code, the encumbrance or alienation of a conjugal real property by the husband absent the wife's consent, is voidable and not void. Thus . . . Under Article 166 of the Civil Code, the husband cannot generally alienate or encumber any real property of the conjugal partnership without the wife's consent. The alienation or encumbrance if so made however is not null and void. It is merely voidable. The offended wife may bring an action to annul the said alienation or encumbrance. In the case at bar, there is no dispute that Lot No. 4349-B-2, is a conjugal property having been purchased using the conjugal funds of the spouses during the subsistence of their marriage. It is beyond cavil therefore that the sale of said lot to respondent spouses without the knowledge and consent of Ignacia is voidable. Her action to annul the March 1, 1983 sale which was filed on June 4, 1986, before her demise is perfectly within the 10 year prescriptive period under Article 173 of the Civil Code. Even if we reckon the period from November 25, 1978 which was the date when Vicente and the respondent spouses entered into a contract concerning Lot No. 4349-B-2, Ignacia's action would still be within the prescribed period.

3. NO. The Court finds that respondent spouses are not purchasers in good faith. A purchaser in good faith is one who buys property of another, without notice that some other person has a right to, or interest in, such property and pays full and fair price for the same, at the time of such purchase, or before he has notice of the claim or interest of some other persons in the property. He buys the property with the belief that the person from whom he receives the thing was the owner and could convey title to the property. A purchaser cannot close his eyes to facts which should put a reasonable man on his guard and still claim he acted in good faith. In the instant case, there existed circumstances that should have placed respondent spouses on guard. The death certificate of Ignacia, shows that she died on March 22, 1982. The same death certificate, however, reveals that (1) it was issued by the Office of the Civil Registrar of Lubao Pampanga on March 10, 1982; (2) the alleged death of Ignacia was reported to the Office of the Civil Registrar on March 4, 1982; and (3) her burial or cremation would be on March 8, 1982. These obvious flaws in the death certificate should have prompted respondents to investigate further, especially so that respondent Florentina Mijares admitted on crossexamination that she asked for the death certificate of Ignacia because she was suspicious that Ignacia was still alive. Moreover, respondent spouses had all the opportunity to verify the claim of Vicente that he is a widower because it was their lawyer, Atty. Rodriguito S. Saet, who represented Vicente in the special proceedings before the Metropolitan Trial Court. Liyao vs. Liyao FACTS: William Liyao Jr., the illegitimate son of the deceased, as represented by her mother (Corazon), filed a petition ordering Juanita Tanhoti-Liyao, Pearl L. Tan, Tita L. Tan and Linda Liyao to recognize and acknowledge the former as a compulsory heir of the deceased and to be entitled to all successional rights. Liyao Jr. was in continuous possession and enjoyment of the status as the child of the deceased having been recognized and acknowledged as such child by the decedent during his lifetime. There were two sides of the story. Corazon maintained that she and the deceased were legally married but living separately for more than 10 years and that they cohabited from 1965 until the death of the deceased. On the other hand, one of the chidren of the deceased stated that her mom and the deceased were legally married and that her parents were not separated legally or in fact. ISSUE: WON the petitioner can impugn his own legitimacy to be able to claim from the estate of the deceased. HELD: Impugning the legitimacy of the child is a strictly personal right of the husband, or in exceptional cases, his heirs for the reason that he was the one directly confronted with the scandal and ridicule which the infidelity of his wife produced 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. Hence, it was then settled that the legitimacy of the child can only be impugned in a direct action brought for that purpose, by the proper parties and within the period limited by law. Furthermore, the court held that there was no clear, competent and positive evidence presented by the petitioner that his alleged father had admitted or recognized his paternity.

2. YES. The trial court correctly annulled the voidable sale of Lot No. 4349-B-2 in its entirety. In Bucoy v. Paulino, a case involving the annulment of sale with assumption of mortgages executed by the husband without the consent of the wife, it was held that the alienation or encumbrance must be annulled in its entirety and not only insofar as the share of the wife in the conjugal property is concerned. Although the transaction in the said case was declared void and not merely voidable, the rationale for the annulment of the whole transaction is the same thus The plain meaning attached to the plain language of the law is that the contract, in its entirety, executed by the husband without the wife's consent, may be annulled by the wife. Had Congress intended to limit such annulment in so far as the contract shall "prejudice" the wife, such limitation should have been spelled out in the statute. It is not the legitimate concern of this Court to recast the law. As Mr. Justice Jose B.L. Reyes of this Court and Judge Ricardo C. Puno of the Court of First Instance correctly stated, "the rule in the first sentence of Article 173 revokes Baello vs. Villanueva, 54 Phil. 213 and Coque vs. Navas Sioca, 45 Phil. 430," in which cases annulment was held to refer only to the extent of the one-half interest of the wife. The necessity to strike down the contract of July 5, 1963 as a whole, not merely as to the share of the wife, is not without its basis in the common-sense rule. To be underscored here is that upon the provisions of Articles 161, 162 and 163 of the Civil Code, the conjugal partnership is liable for many obligations while the conjugal partnership exists. Not only that. The conjugal property is even subject to the payment of debts contracted by either spouse before the marriage, as those for the payment of fines and indemnities imposed upon them after the responsibilities in Article 161 have been covered (Article 163, par. 3), if it turns out that the

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 157037 May 20, 2004

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 representi ng 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.

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

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

On September 11, 1975, Ivan Mendez filed his answer to the amended complaint reiterating his previous answer denying that Michael Constantino is his illegitimate son. After hearing, the trial court rendered a decision dated June 21, 1976, the dispositive portion of which reads, viz: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff Amelita Constantino and against defendant Ivan Mendez, ordering the latter to pay Amelita Constantino the sum of P8,000.00 by way of actual and moral damages; and, the sum of P3,000.00, as and by way of attorney's fees. The defendant shall pay the costs of this suit. SO ORDERED. From the above decision, both parties filed their separate motion for reconsideration. Ivan Mendez anchored his motion on the ground that the award of damages was not supported by evidence. Amelita Constantino, on the other hand, sought the recognition and support of her son Michael Constantino as the illegitimate son of Ivan Mendez. In its resolution dated October 21, 1976, the trial court granted Amelita Constantino's motion for reconsideration, and amended the dispositive portion of its decision dated June 21, 1976 to read as follows, viz: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff Amelita Constantino and plaintiff-minor Michael Constantino, and against defendant Ivan Mendez ordering the latter to pay Amelita Constantino the sum of P8,000.00 by way of actual and moral damages and the sum of P200.00 as and by way of payment of the hospital and medical bills incurred during the delivery of plaintiff-minor Michael Constantino; to recognize as his own illegitimate child the plaintiff-minor Michael Constantino who shall be entitled to all the rights, privileges and benefits appertaining to a child of such status; to give a permanent monthly support in favor of plaintiff Michael Constantino the amount of P300.00; and the sum of P5,000.00 as and by way of attorney's fees. The defendant shall pay the costs of this suit. Let this Order form part of the decision dated June 21, 1976. SO ORDERED. On appeal to the Court of Appeals, the above amended decision was set aside and the complaint was dismissed. Hence, this petition for review. Basically, the issue to be resolved in the case at bar is whether or not the Court of Appeals committed a reversible error in setting aside the decision of the trial court and in dismissing the complaint. Petitioners contend that the Court of Appeals erred in reversing the factual findings of the trial and in not affirming the decision of the trial court. They also pointed out that the appellate court committed a misapprehension of facts when it concluded that Ivan did not have sexual access with Amelita during the first or second week of November, 1976 (should be 1974), the time of the conception of the child. It must be stressed at the outset that factual findings of the trial court have only a persuasive and not a conclusive effect on the Court of Appeals. In the exercise of its appellate jurisdiction, it is the duty of the Court of Appeals to review the factual findings of the trial court and rectify the errors it committed as may have been properly assigned and as could be established by a reexamination of the evidence on record. It is the factual findings of the Court of Appeals, not those of the trial court, that as a rule are considered final and conclusive even on this Court (Hermo v. Hon. Court of Appeals, et al., 155 SCRA 24 [1987]). This being a petition for certiorari under Rule 45 of the Rules of Court, this Court will review only errors of law committed by the Court of Appeals. It is not the function of this Court to re-examine all over again the oral and

G.R. No. 57227 May 14, 1992 AMELITA CONSTANTINO and MICHAEL CONSTANTINO, the latter represented herein by the former, his mother and natural guardian, petitioners, vs. IVAN MENDEZ and the HONORABLE COURT OF APPEALS, respondents. Roberto M. Sarenas for petitioners. Bienvinido D. Cariaga for private respondent.

BIDIN, J.: This is a petition for review on certiorari questioning the decision 1 dated April 30, 1981 of the Court of Appeals in CA-G.R. No. 61552-R which dismissed petitioner's complaint and set aside the resolution 2 dated October 21, 1976 of the then Court of First Instance of Davao, 16th Judicial District, amending the dispositive portion of its decision dated June 21, 1976 and ordering private respondent Ivan Mendez: (1) to acknowledge the minor Michael Constantino as his illegitimate child; (2) to give a monthly support of P300.00 to the minor child; (3) to pay complainant Amelita Constantino the sum of P8,200.00 as actual and moral damages; and (4) to pay attorney's fees in the sum of P5,000 plus costs. It appears on record that on June 5, 1975, petitioner Amelita Constantino filed an action for acknowledgment, support and damages against private respondent Ivan Mendez. The case was filed with the then CFI of Davao, 10th Judicial District and docketed as Civil Case No. 8881. In her complaint, Amelita Constantino alleges, among others, that sometime in the month of August, 1974, she met Ivan Mendez at Tony's Restaurant located at Sta. Cruz, Manila, where she worked as a waitress; that the day following their first meeting, Ivan invited Amelita to dine with him at Hotel Enrico where he was billeted; that while dining, Ivan professed his love and courted Amelita; that Amelita asked for time to think about Ivan's proposal; that at about 11:00 o'clock in the evening, Amelita asked Ivan to bring her home to which the latter agreed, that on the pretext of getting something, Ivan brought Amelita inside his hotel room and through a promise of marriage succeeded in having sexual intercourse with the latter; that after the sexual contact, Ivan confessed to Amelita that he is a married man; that they repeated their sexual contact in the months of September and November, 1974, whenever Ivan is in Manila, as a result of which Amelita got pregnant; that her pleas for help and support fell on deaf ears; that Amelita had no sexual relations with any other man except Ivan who is the father of the child yet to be born at the time of the filing of the complaint; that because of her pregnancy, Amelita was forced to leave her work as a waitress; that Ivan is a prosperous businessman of Davao City with a monthly income of P5,000 to P8,000. As relief, Amelita prayed for the recognition of the unborn child, the payment of actual, moral and exemplary damages, attorney's fees plus costs. In his answer dated August 5, 1975, Ivan admitted that he met Amelita at Tony's Cocktail Lounge but denied having sexual knowledge or illicit relations with her. He prayed for the dismissal of the complaint for lack of cause of action. By way of counterclaim, he further prayed for the payment of exemplary damages and litigation expense including attorney's fees for the filing of the malicious complaint. On September 1, 1975, Amelita Constantino filed a motion for leave to amend the complaint impleading as co-plaintiff her son Michael Constantino who was born on August 3, 1975. In its order dated September 4, 1975, the trial court admitted the amended complaint.

documentary evidence submitted by the parties unless the findings of facts of the Court of Appeals is not supported by the evidence on record or the judgment is based on misapprehension of facts (Remalante v. Tibe, et al., 158 SCRA 138 [1988]; Hernandez v. Court of Appeals, et al., 149 SCRA 97 [1987]). It is the conclusion of the Court of Appeals, based on the evidence on record, that Amelita Constantino has not proved by clear and convincing evidence her claim that Ivan Mendez is the father of her son Michael Constantino. Such conclusion based on the evaluation of the evidence on record is controlling on this Court as the same is supported by the evidence on record. Even the trial court initially entertained such posture. It ordered the recognition of Michael as the illegitimate son of Ivan only when acting on the motions for reconsideration, it reconsidered, on October 21, 1976, its earlier decision dated June 21, 1976. Amelita's testimony on crossexamination that she had sexual contact with Ivan in Manila in the first or second week of November, 1974 (TSN, December 8, 1975, p. 108) is inconsistent with her response that she could not remember the date of their last sexual intercourse in November, 1974 ( Ibid, p. 106). Sexual contact of Ivan and Amelita in the first or second week of November, 1974 is the crucial point that was not even established on direct examination as she merely testified that she had sexual intercourse with Ivan in the months of September, October and November, 1974. Michael Constantino is a full-term baby born on August 3, 1975 (Exhibit 6) so that as correctly pointed out by private respondent's counsel, citing medical science (Williams Obstetrics, Tenth Ed., p. 198) to the effect that "the mean duration of actual pregnancy, counting from the day of conception must be close to 267 days", the conception of the child (Michael) must have taken place about 267 days before August 3, 1975 or sometime in the second week of November, 1974. While Amelita testified that she had sexual contact with Ivan in November, 1974, nevertheless said testimony is contradicted by her own evidence (Exh. F), the letter dated February 11, 1975, addressed to Ivan Mendez requesting for a conference, prepared by her own counsel Atty. Roberto Sarenas to whom she must have confided the attendant circumstances of her pregnancy while still fresh in her memory, informing Ivan that Amelita is four (4) months pregnant so that applying the period of the duration of actual pregnancy, the child was conceived on or about October 11, 1974. Petitioner's assertion that Ivan is her first and only boyfriend (TSN, December 8, 1975, p. 65) is belied by Exhibit 2, her own letter addressed to Mrs. Mendez where she revealed the reason for her attachment to Ivan who possessed certain traits not possessed by her boyfriend. She also confided that she had a quarrel with her boyfriend because of gossips so she left her work. 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. The burden of proof is on Amelita to establish her affirmative allegations that Ivan is the father of her son. Consequently, in the absence of clear and convincing evidence establishing paternity or filiation, the complaint must be dismissed. As regards Amelita's claim for damages which is based on Articles 19 3 & 21 4 of the Civil Code on the theory that through Ivan's promise of marriage, she surrendered her virginity, we cannot but agree with the Court of Appeals that more sexual intercourse is not by itself a basis for recovery. Damages could only be awarded if sexual intercourse is not a product of voluntariness and mutual desire. At the time she met Ivan at Tony's Restaurant, Amelita was already 28 years old and she admitted that she was attracted to Ivan (TSN, December 3, 1975, p. 83). Her attraction to Ivan is the reason why she surrendered her womanhood. Had she been induced or deceived because of a promise of marriage, she could have immediately severed her relation with Ivan when she was informed after their first sexual contact sometime in August, 1974, that he was a married man. Her declaration that in the months of September, October and November, 1974, they repeated their sexual intercourse only indicates that passion and not the alleged promise of marriage was the moving force that made her submit herself to Ivan. WHEREFORE, the instant petition is Dismissed for lack of merit. SO ORDERED.

Bernabe vs. Alejo GR No. 140500, January 21, 2002 FACTS: The late Fiscal Ernesto Bernabe allegedly fathered a son with his secretary Carolina Alejo and was named Adrian Bernabe who was born on September 18, 1981. After Ernesto Bernabe and Rosalina (legal wife) died, the sole surviving heir left was Ernestina. Carolina, in behalf of his son Adrian, filed a complaint that Adrian be declared an acknowledged illegitimate son of Fiscal Bernabe and be given a share of his fathers estate. Trial courts ruling: Under the new law, an action for the recognition of an illegitimate child must be brought within the lifetime of the alleged parent to give the latter an opportunity to either affirm or deny the childs filiation. CA ruling: The rights of Adrian are governed under Article 285 of the Civil Code which allows an action for recognition to be filed within 4 years after the child has attained the age of majority and that subsequent enactment of the Family Code did not take away his right. ISSUE: Whether or not Adrian Bernabe may be declared an acknowledged illegitimate son. HELD: 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. Furthermore, the grounds or instances for the acknowledgment of natural children are utilized to establish the filiation of spurious children. Jison vs. CA GR No. 124853, February 24, 1998 FACTS: Private respondent, Monina Jison, instituted a complaint against petitioner, Francisco Jison, for recognition as illegitimate child of the latter. The case was filed 20 years after her mothers death and when she was already 39 years of age. Petitioner was married to Lilia Lopez Jison since 1940 and sometime in 1945, he impregnated Esperanza Amolar, Moninas mother. Monina alleged that since childhood, she had enjoyed the continuous, implied recognition as the illegitimate child of petitioner by his acts and that of his family. It was likewise alleged that petitioner supported her and spent for her education such that she became a CPA and eventually a Central Bank Examiner. Monina was able to present total of 11 witnesses. ISSUE: WON Monina should be declared as illegitimate child of Francisco Jison. HELD: Under Article 175 of the Family Code, illegitimate filiation 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. 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. The following facts was established based on the testimonial evidences offered by Monina: 1. That Francisco was her father and she was conceived at the time when her mother was employed by the former; 2. That Francisco recognized Monina as his child through his overt acts and conduct.

Respondent further averred that on 20 November 2000, petitioner has caused the annotation of 5 September 1984 affidavit executed by Ismael Tayag declaring the properties to be the paraphernal properties of petitioner. The latter allegedly intends to dispose of these properties to the respondents and her brothers prejudice. Petitioner opposed the petition, asserting that she purchased the properties subject of the petition using her own money. She claimed that she and Ismael Tayag got married in Las Vegas, Nevada, USA on 25 October 1973, and that they have an adopted daughter, Carmela Tayag, who is presently residing in the USA. It is allegedly not true that she is planning to sell the properties. Petitioner prayed for the dismissal of the suit because respondent failed to state a cause of action.4 In a Motion5 dated 31 August 2001, petitioner reiterated her sole ownership of the properties and presented the transfer certificates of title thereof in her name. She also averred that it is necessary to allege that respondent was acknowledged and recognized by Ismael Tayag as his illegitimate child. There being no such allegation, the action becomes one to compel recognition which cannot be brought after the death of the putative father. To prevent further encroachment upon the courts time, petitioner moved for a hearing on her affirmative defenses. The Motion was denied in an Order6 dated 3 April 2003. Petitioners motion for reconsideration was likewise denied in an Order7 dated 16 July 2003. The appellate court, in a Decision8 dated 29 May 2006, upheld the denial of petitioners motion and directed the trial court to proceed with the case with dispatch. The Court of Appeals ruled, in essence, that the allegation that respondent is an illegitimate child suffices for a cause of action, without need to state that she had been recognized and acknowledged as such. However, respondent still has to prove her allegation and, correspondingly, petitioner has the right to refute the allegation in the course of the settlement proceedings. The Court of Appeals denied reconsideration in a Resolution9 dated 28 August 2006. In her Petition10 17 dated September 2006, petitioner asserts that respondent should not be allowed to prove her filiation in the settlement of Ismael Tayag s estate. If, following the case of Uyguanco v. Court of Appeals,11 the claim of filiation may no longer be proved in an action for recognition, with more reason that it should not be allowed to be proved in an action for the settlement of the decedents estate. Thus, petitioner claims, respondent may no longer maintain an action to prove that she is the illegitimate child of the decedent after the latters deat h. Unfortunately, the two-page Comment,12 dated 17 April 2007, fails to shed any more light on the present controversy. The Reply13 dated 3 September 2007 reiterates the arguments in the petition. The main issue in this case is deceptively simple. As crafted by the Court of Appeals, it is whether respondents petition for the issuance of letters of administration sufficiently states a cause of action considering that respondent merely alleged therein that she is an illegitimate child of the decedent, without stating that she had been acknowledged or recognized as such by the latter. The appellate court held that the mere allegation that respondent is an illegitimate child suffices. Rule 79 of the Rules of Court provides that a petition for the issuance of letters of administration must be filed by an interested person. In Saguinsin v. Lindayag,14 the Court defined an interested party 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. This interest, furthermore, must be material and direct, not merely indirect or contingent. Hence, where the right of the person filing a petition for the issuance of letters of administration is dependent on a fact which has not been established or worse, can no longer be established, such contingent interest does not make her an interested party. Here lies the complication in the case which the appellate court had not discussed, although its disposition of the case is correct.1avvphi1

SC ruled that a certificate of live birth purportedly identifying the putative father is not competence evidence as to the issue of paternity. Franciscos lack of participation in the preparation of baptismal certificates and school records render the documents showed as incompetent to prove paternity. With regard to the affidavit signed by Monina when she was 25 years of age attesting that Francisco was not her father, SC was in the position that if Monina were truly not Franciscos illegitimate child, it would be unnecessary for him to have gone to such great lengths in order that Monina denounce her filiation. Moninas evidence hurdles the high standard of proof required for the success of an action to establish ones illegitimate filiation in relying upon the provision on open and continuous possession. Hence, Monina proved her filiation by more than mere preponderance of evidence. 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. Petition was denied. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 174680 March 24, 2008

VICTORIA C. TAYAG, Petitioner, vs. FELICIDAD A. TAYAG-GALLOR, Respondent. DECISION TINGA, J.: This is a petition for review on certiorari seeking the reversal of the Decision of the Court of Appeals dated 29 May 2006, and its Resolution2 dated 28 August 2006 in CA-G.R. SP No. 79205. The antecedents are as follows: On 15 January 2001, respondent herein, Felicidad A. Tayag-Gallor, filed a petition for the issuance of letters of administration over the estate of Ismael Tayag.3 Respondent alleged in the petition, docketed as Special Proceeding No. 5994 (SP 5994), that she is one of the three (3) illegitimate children of the late Ismael Tayag and Ester C. Angeles. The decedent was married to petitioner herein, Victoria C. Tayag, but the two allegedly did not have any children of their own. On 7 September 2000, Ismael Tayag died intestate, leaving behind two (2) real properties both of which are in the possession of petitioner, and a motor vehicle which the latter sold on 10 October 2000 preparatory to the settlement of the decedents estate. Petitioner allegedly promised to give respondent and her brothers P100,000.00 each as their share in the proceeds of the sale. However, petitioner only gave each of them half the amount she promised.
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Essentially, the petition for the issuance of letters of administration is a suit for the settlement of the intestate estate of Ismael Tayag. The right of respondent to maintain such a suit is dependent on whether she is entitled to successional rights as an illegitimate child of the decedent which, in turn, may be established through voluntary or compulsory recognition. Voluntary recognition must be express such as that in a record of birth appearing in the civil register, a final judgment, a public instrument or private handwritten instrument signed by the parent concerned.15 The voluntary recognition of an illegitimate child by his or her parent needs no further court action and is, therefore, not subject to the limitation that the action for recognition be brought during the lifetime of the putative parent. 16 Judicial or compulsory recognition, on the other hand, may be demanded by the illegitimate child of his parents and must be brought during the lifetime of the presumed parents.17 Petitioners thesis is essentially based on her contention that by Ismael Tayags death, respondents illegitimate filiation and necessarily, her interest in the decedents estate which the Rules require to be material and direct, may no longer be established. Petitioner, however, overlooks the fact that respondents successional rights may be established not just by a judicial action to compel recognition but also by proof that she had been voluntarily acknowledged and recognized as an illegitimate child. In Uyguangco v. Court of Appeals, supra, Graciano Uyguangco, claiming to be an illegitimate child of the decedent, filed a complaint for partition against the latters wife and legitimate children. However, an admission was elicited from him in the course of his presentation of evidence at the trial that he had none of the documents mentioned in Article 278 18 of the 1950 Civil Code to show that he was the illegitimate son of the decedent. The wife and legitimate children of the decedent thereupon moved for the dismissal of the case on the ground that he could no longer prove his alleged filiation under the applicable provision of the Civil Code. The Court, applying the provisions of the Family Code which had then already taken effect, ruled that since Graciano was claiming illegitimate filiation under the second paragraph of Article 172 of the Family Code, i.e., open and continuous possession of the status of an illegitimate child, the action was already barred by the death of the alleged father. In contrast, respondent in this case had not been given the opportunity to present evidence to show whether she had been voluntarily recognized and acknowledged by her deceased father because of petitioners opposition to her petition and motion for hearing on affirmative defenses. There is, as yet, no way to determine if her petition is actually one to compel recognition which had already been foreclosed by the death of her father, or whether indeed she has a material and direct interest to maintain the suit by reason of the decedents voluntary acknowledgment or recognition of her illegitimate filiation. We find, therefore, that the allegation that respondent is an illegitimate child of the decedent suffices even without further stating that she has been so recognized or acknowledged. A motion to dismiss on the ground of failure to state a cause of action in the complaint hypothetically admits the truth of the facts alleged therein.19 Assuming the fact alleged to be true, i.e., that respondent is the decedents illegitimate child, her interest in the estate as such would definitely be material and direct. The appellate court was, therefore, correct in allowing the proceedings to continue, ruling that, "respondent still has the duty to prove the allegation (that she is an illegitimate child of the decedent), just as the petitioner has the right to disprove it, in the course of the settlement proceedings." WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals dated 29 May 2006 and its Resolution dated 28 August 2006 are AFFIRMED. No pronouncement as to costs. SO ORDERED.