Vancil vs Belmes G.R. No.

132223 June 19 2001 FACTS: The RTC appointed Bonifacia Vancil, an American citizen, as legal and judicial guardian over the persons and estate of Valerie and Vincent, the children of her deceased son Reeder. Helen Belmes, the natural mother of the minor children, instituted a motion for removal of Guardianship and Appointment of a new one, asserting that she is the natural mother in custody of and exercising parental authority over the subject minors. Trial court rejected Belmes'petition. The CA reversed the RTC order. Since Valerie had reached the age of majority at the time the case reached the SC, the Court resolves to determine who between the mother and grandmother of minor Vincent should be his guardian. ISSUE: Whether Helen Belmes or Bonifacia Vancil is the sole guardian of the minor Vincent. RULING: Belmes, being the natural mother of Vincent, has the preferential right to be his guardian. Art. 211 of the FC states: "The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order to the contrary. xxx." Vancil, as the surviving grandparent, can exercise substitute parental authority only in case of death, absence or unsuitability of Belmes. Assuming that Belmes is unfit as a guardian of Vincent, still Vancil cannot qualify as a substitute guardian. As the Court held in Guerrero vs Teran, the courts should not appoint persons as guardians who are not within the jurisdiction of the courts as they will find it difficult to protect the wards.

Tamargo vs CA G.R. No. 85044 June 3 1992 FACTS: Adelberto, a minor, shot and killed Jennifer Tamargo with an air rifle. Jennifer's natural parents filed civil complaints for damages with the RTC against Bundoc's natural parents. A month after the shooting incident, the spouses Rapisura's petition to adopt Adelberto was granted. Adelberto's parents, in their Answer, claimed that the spouses Rapisura were indispensable parties to the action since parental authority had shifted to them from the moment the petition for adoption was decreed. Trial court dismissed the spouses Tamargo's petition. ISSUE: Whether or not the effects of adoption, insofar as parental authority is concerned may be given retroactive effect so as to make the adopting parents the indispensable parties in a damage case filed against their adopted child when actual custody was yet lodged with the natural parents. RULING: No. In Article 221 of the Family Code states that: Art. "Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law." In the case at bar, parental authority over Adelberto was still lodged with the natural parents at the time the shooting incident happened. It follows that the natural parents are the indispensable parties to the suit for damages. SC held that parental authority had not been retroactively transferred to and vested in the adopting parents, at the time the shooting happened. It do not consider that retroactive effect may be given to the decree of the adoption so as to impose a liability upon the adopting parents accruing at the time when adopting parents had no actual custody over the adopted child. Retroactive affect may be essential if it permit the accrual of some benefit or advantage in favor of the adopted child.

Sagala-Eslao vs CA G.R. No. 116773 January 16 1997 FACTS: When Maria Paz's husband Reynaldo Eslao died, she entrusted custody of her youngest child Angelica to her grieving mother-in-law while she took custody over Leslie, her firstborn. Years later, Maria Paz got married to a Japanese-American and followed him to the US. After this she returned to the Philippines to be reunited with her children and bring them to the US. She then informed Teresita about her desire to take custody of Angelica and to explained to her new husband's willingness to adopt her children. Teresita refused, and accused Maria of having abandoned Angelica when she was 10 days old, so Maria instituted an action against Teresita over the return of the custody of Angelica to her. After the trial on the merits, the trial court granted the petition. CA affirmed in the full decision of the trial court. ISSUE: Whether or not Teresita Sagala-Eslao should be given the custody of the child RULING: No. The right of parents to the custody of their minor children is one of the natural rights incident to parenthood, a right supported by law and sound public policy. The right is an inherent one, which is not created by the state or decisions of the courts, but derives from the nature of the parental relationship. Thus, when Maria entrusted the custody of Angelica to Teresita, what she gave to the latter was merely temporary custody and it did not constitute abandonment or renunciation of parental authority. The law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution.

Libi vs IAC G.R. No. 70890 September 18 1992 Wendell Libi shot his lover Julie Ann Giotong, both minors, before he turned the firearm on himself. As a result, the parents of Julie Ann filed against Wendell's parents to recover damages. The trial court rendered judgment dismissing the complaint for insufficiency of evidence. CA reversed the decision. ISSUE: Whether or not the parents of Wendell Libi liable for vicarious liability. RULING: Yes. The subsidiary liability of parents for damages cause by their minor children is imposed by Article 2180 of the New Civil Code, which covers obligations arising from both quasi-delicts and criminal offenses. The parents' liability as being primary and not subsidiary and liability shall ceased if the parents can prove that they observe all the diligence of a good father to prevent damage. The parents had not exercised due diligence in supervising the activities of their son. It was only at the time of Wendell's death that they allegedly discovered that he was drug informant of CANU and that the gun used in the shooting incident was missing from the safety deposit box. Having been grossly negligent in preventing Wendell from having access to said gun, the Libis are subsidiary liable for the natural consequence of the criminal act of said minor who was living in their company.

Amador va CA G.R. No. L-47745 April 15 1988 FACTS: 17 year old Alfredo Amadora was shot and killed by his classmate Pablito Daffon. Daffon was convicted of homicide thru reckless imprudence. The parents filed a civil action for damages under Article 2180 of the Civil Code against the USJR, its high school principal, the dean of boys, the physics teacher, Daffon and two other students, through their respective parents. The complaints against the students was later dropped. Upon appeal to CA, the decision was reversed and all the defendants were completely absolved. ISSUE: Whether or not the school should be held liable for the acts of its students. RULING: The responsibility of the school authorities over the student continues even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends. Under the article 2180 of the Family Code, it is the teacher-in charge is the one who is imposed on the liability of his/her students and not the school. As long as defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Art. 2180.

Silverio vs Republic G.R. No. 174689 October 22 2007 FACTS: Rommel Jacinto Dantes Silverio having undergone a sex reassignment surgery, sought to have his first name changed from Rommel to Mely, and his sex from male to female. Trial court granted his petition. CA, however, upon appeal filed by the Republic of the Philippines thru the OSG, reversed the trial court decision, holding that there is no law allowing the change of entries of either name or sex in the birth certificate by reason of sex alteration. ISSUE: Whether or not Rommel's first name and sex be changed on the ground of sex reassignment. RULING: No. There is no law authorizes the change of entry as of sex and first name through the intervention of sex reassignment surgery. Article 376 of the Civil Code as amended by RA 9048 (Clerical Error Law), together with Article 412 of the same Code, change of name or sex in the birth certificate is allowed by the courts so long as clerical or typographical errors are involved. Changes sought by Silverio will have serious legal and public policy consequences. To grant this petition filed by Silverio will greatly alter the laws on marriage and family relations. Second, there will be major changes in statutes that underscore the public policy in relation to women.

SAN JUAN DELA CRUZ VS GRACIA Posted by kaye lee on 10:15 PM Jenie San Juan dela Cruz vs Ronald Paul S. Gracia, in his capacity as City Civil Registrar G.R. No. 177728, July 31, 2009 FACTS: Jenie was denied the registration of her child's birth because the document attached to the Affidavit to use the Surname of the Father (AUSF) entitled "Autobiography," did not include the signature of the deceased father, and because he was born out of wedlock and the father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child. Jenie and the child promptly filed a complaint for injunction/registration of name against Gracia. The trial court held that even if Dominique, the father, was the author of the unsigned handwritten Autobiography, the same does not contain any express recognition of paternity.

ISSUE: Whether or not the unsigned handwritten instrument of the deceased father of minor Christian can be considered as a recognition of paternity. RULING: Yes. Article 176 of the Family Code, as amended by RA 9255, permits an illegitimate child to use the surname of his/her father if the latter had previously recognized him/her as his offspring through an admission made in a pubic of private handwritten instrument. Article 176, as amended, does not explicitly state that there must be a signature by the putative father in the private handwritten instrument. The following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made: 1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and 2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.

TEOFISTA BABIERA VS PRES ENTACION CATOTAL G.R. No. 138493 June 15 2000 FACTS: Presentacion questioned the authenticity of the entry of birth of Teofista. She asserted that the birth certificate is void ab initio, as it was totally a simulated birt h, the signature of informant forged, and contained false ent ries, to wit: That Teofista is the legitimate child of the late spouses Eugenio Babiera and Hermogena Cariosa; Signature of the mot her, Hermogena, is falsified; Teofista's correct family name is GUINTO, not Babiera; Her real mother was Flora Guinto, and her status is an illegitimate child; It was clinically and medically impossible for Hermogena to bore a child at 54 years of age; her last child birth was when Presentacion was born. Presentacion ask the court to declare Teofista's certificate of birth void and ineffective, and to o rder the City Civil Registrar to cancel the same as it affect the hereditary rights of Presentacion who inherited the estate. Teofista countered that she and Presentacion are full-blooded sisters, as showed therein her certificat e of birth, Certificate of Baptism, and her School Report Card. She also filed a motion on the grounds that: the petition states no cause of action, being an attack on her legitimacy as the child of Hermogena and Eugenio; that Presentacion has no legal capacity to file the petition pursuant to Art. 171 of the Family Code; and that the petition was barred from prescription in accordance with Art. 170 of the Family Code. The trial court ruled in favor of Presentacion. CA affirmed the decision of the trial court. ISSUE: 1. Whether or not Presentacion has legal capacity to file the special proc eedings pursuant to Art. 171; 2. Whether or not the special proceedings is improper and barred by the statute of limitation; 3. Whether or not the public rec ord of Teofista's birth is superior to the oral testimony of Presentacion. RULING: Petition is not meritorious. 1. No. Article 171 of the Family Code shows that it applies to instances whic h the father impugns the legitimacy of his wife's child. The provision, however, presupposes that the c hild was the undisput ed child of the mot her. Present case alleges and shows that Hermogena did not give birth to Teofista. The present action does not impugn Teofista's filiation to Eugenio and Hermogeno, be there is no blood relation to impugn in the first place. 2. Article 170 of the FC does not apply. The provision provides a prescriptive period for action to impugn the legitimacy of the child. The present action involves the cancellation of Teofista's Birth Certificate, it does not impugn her legitimacy. The action to nullify the birth certificate does not prescribe because it was allegedly declared void ab initio. 3. The specific attendant in the case at bar and the totality of the evidence presented during trial, sufficiently negates the presumption of regularity in the issuance of birth certificate. First, the birth certificate was not signed by the local civil registrar, and the mother's signature was different from other signatures. Second, no medical records or doctor's prescription that provide as evidence of Hermogena's pregnancy. It was impossible for her to have given birth at 54 years of age. Third, the disposition of Hermogena which states that she did not give brith to Teofista and that the latter was not hers of Eugenio.

MARISS A BENITEZ-BADUA VS CA Posted by kaye lee on 11:03 AM G.R. No. 105625 January 24 1994 [Article 163-171 - Legitimate Children] FACTS: Spouses Vicente Benitez and Isabel Chipongian had various properties. They both died intestate. The special proceedings for administration of the properties were filed with the trial court. Vicente's sister Victoria B. Lirio filed for issuance of letters of administration in favor of the nephew. Marissa opposed the petition, saying that she is the sole heir of deceased Vicente and that she is capable of administering his estate. She submitted the pieces of documentary evidence and testified that the spouses treated her as their own daughter. The relatives of Vicente tried to prove through testimonial evidence, that the spouses failed to beget a child during their marriage. Victoria categoric ally declared that Marissa was not the biological child of the spous es who were unable to physically procreate. Trial court relied on Arts. 166 and 170 of the Family Code and ruled in favor of Marissa. On appeal, the CA reversed the lower court decision and declared Marissa Benit ez -Badua is not the biological child of the late spouses. ISSUE: Whether or not Marissa Benitez-B adua is the legitimate child and the sole heir of the late spouses. RULING: No. The S C find no merit to the petition. Articles 164, 166, 170 and 171 of the Family Code cannot be applied in the case at bar. The above provisions do not contemplate a situation where a child is alleged not to be the biological child of a certain coupl e. In Article 166, it is the husband who can impugn the legitimacy of the child by: (1) it was physically impossible for him to have sexual intercourse, with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child; (2) that for biological or other scientific reasons, the child could not have been his child; (3) that in case of children conceived through artificial insemination, the written authorization or ratification by either parent was obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170 and 171 speak of the prescription period within which the husband or any of his heirs should file an action impugning the legitimacy of the child. In this case, it is not where the heirs of the late Vicente are contending that Marissa is not his child or a child by Isabel, but they are contending that Marissa was not born to Vicente and Isabel. Marissa was not the biological child of the dead spouses. Marissa's Certificate of Live Birth was repudiated by the Deed of Extra-Judicial Settlement of the Estate of the late Isabel by Vicente, saying that he and his brother -in-law are the sole heirs of the estate.

ANTONIO MACADANGDANG VS CA (SEPTEMBER 12, 1980) G.R. No. L-49542 September 12 1980 [Paternity and Filiation : Legitimate Children] FACTS: Elizabeth Mejias, married to Crispin Anahaw, had sex with Antonio Macadangdang sometime in March 1967. Because of the affair, she and her husband allegedly separated. On October 30, 1967, she gave birth to a baby boy named Rolando Macadangdang. Elizabeth filed with the CFI a recognition and support against Antonio. The lower court dismissed the complaint, applying the provisions of Articles 255 and 256 of the Civil Code. CA reversed the decision and declared Rolando to be an illegitimate son of Antonio. CA denied Vicente's motion for reconsideration for lack of merit. ISSUES: 1) Whether or not Rolando is conclusively presumed the legitimate child of Elizabeth and Crispin. 2) Whether or not Elizabeth may institute an action that would bastardized her child without giving her husband, the legally presumed father, an opportunity to be heard. RULING: SC held that CA made judgement based on misapprehension of facts and the its finding of facts contradicted by evidence on record. Under the Article 255 of the Civil Code, the child Rolando is presumed to be the legitimate son of Elizabeth and Crispin. Rolando was born only 7 months after the incident took place, and also 7 months after their alleged separation. The birth of Rolando came more than 180 days following the celebration of said marriage and before 300 days following the alleged separation between the spouses. The fact that the child was born in the rented house, normal ly delivered, and raised normally by the ya ya, according to the testimony of the ya ya Patrocinia Avila. If he was otherwise born prematurely, he would have needed to be placed under special care, attended by a physician. The child Rolando is presumed to be the legitimate son of respondent and her spouse. This presumption becomes conclusive in the absence of proof that there was physical impossibility of access between the spouses in the first 120 days of the 300 which preceded the birth of the child. This presumption is actually quasi-conclusive and may be rebutted or refuted by only one evidence the physical impossibility of access between husband and wife within the first 120 days of the 300 which preceded the birth of the child. This physical impossibility of access may be caused by any of these: 1. 2. Impotence of the husband; Living separately in such a way that access was impossible and

3. Serious illness of the husband. Article 256 of the Civil Code which provides that the child is presumed legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. Hence, good morals and public policy require that a mother should not be permitted to assert the illegitimacy of a child born in wedlock in order to obtain some benefit for herself. The law is not willing that the child be declared illegitimate to suit the whims and purposes of either parent, nor Merely up on evidence that no actual act of sexual intercourse occurred between hus band and wife at or about the time the wife became pregnant. Thus, where the husband denies having any intercourse with his wife, the child was still presumed legitimate. With respect to Article 257, it must be emphasized that adultery on the part of the w ife, in itself, cannot destroy the presumption of legitimacy of her child, because it is still possible that the child is that of the husband. It has been held that the admission of the wife's testimony on the point would be unseemly and scandalous, not on ly because it reveals immoral conduct on her part, but also because of the effect it may have on the child, who is in no fault, but who nevertheless must be the chief sufferer thereby. 2. No. only the husband can contest the legitimacy of a child born to his wife. He is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should decide whether to conceal that infidelity or e xpose it, in view of the moral or economic interest involved (Tolentino, citing Bevilaqua, Familia, p. 314). The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged father, who is the husband of the mother and can be exercised only by him or his heirs, within a fixed time, and in certain cases, and only in a direct suit brought for the purpose. Thus the mother has no right to disavow a child because maternity is never uncertain; she can only contest the Identity of th e child Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held to be admissible in evidence; but the general rule now is that they are inadmissible to bastardize the child, regardless of statutory provisions obviating incompetency on the ground of interest, or the fact that the co nception was antenuptial. The rule is said to be founded in decency, morality and public policy.

TIJING VS CA Posted by kaye lee on 1: 45 PM G.R. No. 125901, Marc h 8, 2001 [Habeas Corpus] FACTS: Edgardo and Bienvenida Tijing filed a petition for habeas corpus in order to recover their youngest child, Edgardo Jr., whom they did not see for 4 years. Trial court granted the petition and ordered Angelita Diamante to immediat ely release the child, now named John Thomas D. Lopez, and turn him over to his parents. CA reversed and set aside the decision rendered by the lower court. It questioned the propriety of the habeas corpus in this case. ISSUE:Whether or not habeas corpus is the proper remedy to regain custody of the minor. RULING: Yes. SC upheld the decision of the trial court. The writ of habeas corpus extends to all cases of illegal confinement or det ention by which any person is deprived of his liberty, or by the right ful custody of any person withheld from the persons ent itled thereto. The writ of habeas corpus is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of his own free will. It must be stressed out that in habeas corpus proceeding, the question of identity is relevant and material, subject to the usual presumption, including those as identity of the person. The trial court was correct in its judgment based on the evidence established by the parents and by the witness who is the brother of the late common-law husband of Angelita. Furthermore, there are no clinical records, log book or discharge from the clinic where John Thomas was allegedly born were presented. Strong evidence directly proves that Thomas Lopez, Angela's "husband", was not capable of siring a child. Moreover, his first marriage produc ed no offspring even after almost 15 years of living together with his legal wife. His 14 year affair with Angelita also bore no offspring. The birth certificate of John Thomas Lopez were attended by irregularities. It was filed by Thomas Lopez, the alleged father. Under Sec. 4, Act No. 3753 (Civil Register Law), the attending physician or midwife in attendance of the birth should cause the registration of such birth. Only in default of the physician or midwife, can the parent register the birth of his child. Certificat e must be filed with the LCR within 30 days after the birt h. The status of Thomas and Angelita on the birt h certificate were typed in as legally married, which is false b ecause A ngelita herself had admitted that she is a "common -law wife." Trial court also observed several times that when the child and Bienvenida were both in court, the two had strong similarities in their faces. Resemblanc e between a minor and his alleged parent is competent and mat erial evidence to establish parent age. Lastly, the spouses present ed clinical records and testimony of the midwife who attended Bienvenida's childbirth.

ESTATE OF ROGELIO ONG VS JOANNE RODGIN DI AZ Posted by kaye lee on 2: 28 PM G.R. No. 171713 December 17 2007 FACTS: The Estate of Rogelio Ong opposed on the CA order directing the Estate and Joanne Rodgin Diaz for DNA analysis for determining the paternity of the minor Joanne. Trial court formerly rendered a decision and declar ed the minor to be the illegitimate child of Rogelio Ong with Jinky Diaz, and ordering him to support the child until she reaches the age of majority. Rogelio died during the pendency of the case with the CA. The Estate filed a motion for reconsideration with the CA. They contended that a dead person cannot be subject to testing. CA justified that "DNA pat ernity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute." ISSUE: Whether or not DNA analysis can still be done despite the death of Rogelio. RULI NG: Yes. The death of Rogelio does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA. New Rules on DNA E vi denc e allows the conduct of DNA testing by using biological samples--organic material originating from the person's body, ie., blood, saliva, other body fluids, tissues, hair, bones, even inorganic materials- that is susceptible to DNA testing. In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obt ain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resort ed to. (People vs Umanito, citing Tecson vs Comelec 424 SCRA 277)

JANICE MARIE J AO VS CA Posted by kaye lee on 3:34 PM G.R. No. L-49162 July 28 1987 FACTS: Arlene Salgado, Janice Marie's mother, filed a case for recognition and support against Perico V. Jao. Jao denied the paternity so they agreed to a blood grouping test which was in due course conducted by the NBI. The test came out indicating that Janice could not have been the possible offspring of Jao and Arlene. Upon Arlene's motion for re consideration, the Juvenile and Domestic Relations Court declared the child the offspring of Jao. Jao appealed to the CA, arguing that the blood grouping test could have been conclusive and disputable evidence of his non -paternity, because there was no showing of irregularity or mistake in the conduct of the tests. CA upheld Jao's contention and reversed the trial court decision. ISSUE:Whether or not the result of blood grouping test is admissible and conclusive to prove paternity. RULING: Yes. SC denied the petition for review. Supreme Court had given weight to the findings of the NBI in its blood grouping test. Thus, it cannot be gainsaid that the competency of the NBI to conduct blood grouping tests has been recognized as early as the 1950's . (Co Tao vs. CA, 101 Phil. 188) In this jurisdiction, the result of blood tests, among other evidence, to, affirm paternity was dealt with in Co Tao v. C A. I n said case, the NBI expert"s report of the blood tests stated that "from their blood groups and types, the defendant Co Tao is a possible father of the child." From this statement the defendant contended that the child must have been the child of another man. The Court noted: "For obvious reasons, the NBI expert cannot give assurance that the appellant was the father of the child; he can only give his opinion that he is a "possible father." This possibility, coupled with the other facts and circum stances brought out during the trial, tends to definitely establish that appellant is the father of the child." Where the issue is admissibility and conclusiveness of blood grouping tests to disprove paternity, rulings have been much more definite in their conclusions. For the past three decades, the use of blood typing in cases of disputed parentage has already become an important legal procedure. There is now almost universal scientific agreement that blood grouping tests are conclusive as to non-paternity, although inconclusive as to paternity that is, the fact that the blood type of the child is a possible product of the mother and alleged father does not conclusively prove that the child is born by such parents; but, if the blood type of the child is not the possible blood type when the blood of the mother and that of the alleged father are crossmatched, then the child cannot possibly be that of the alleged father. In the United States jurisdiction, the admissibility of blood tests results to prove non -paternity has already been passed upon in several cases. The positive results of blood tests excluding paternity, in a case in which it was shown that proper safeguards were drawn around the testing procedures, were recognized as final on the question of paternity (Gilpin v. Gilpin). Evidence of non-paternity consisting of the result of blood grouping tests was admitted despite a finding that the alleged father had cohabited with the mother within the period of gestation (Cuneo v. Cuneo). The Court said that the competent medical testimony was overwhelmingly in favor of the plaintiff, and to reject such testimony would be tantamount to rejecting scientific fact.

G.R. No. 148311. March 31, 2005 IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA HONORATO B. CATINDIG, petitioner. FACTS: Honorato Catindig filed a petition to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He prayed that the child's middle name Astorga be changed to Garcia, her mother's surname, and that her surname Garcia be changed to Catindig, his surname. Trial court granted the petition and declared Stephanie as his legitimate child and heir, and pursuant to Art. 189 of the Family Code, she is now known as Stephanie Nathy Catindig. Honorato filed a motion for clarification and/or reconsideration that Stephanie should be allowed to use the surname Garcia as her middle name. The Republic, through the OSG, agreed with Honorato for her relationship with her natural mother should be maintained and preserved, to prevent any confusion and hardship in the future, and under Article 189 she remains to be an intestate heir of her mother. ISSUE: Whether or not an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name. RULING: Yes. There is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be allowed to do so. Article 176 of the Family Code, as amended by Republic Act No. 9255, (An Act Allowing Illegitimate Children To Use The Surname Of Their Father) is silent as to what middle name a child may use. Article 365 of the CC merely provides that an adopted child shall bear the surname of the adopter. Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter. Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, an legitimate child by virtue of her adoption, Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother.

G.R. No. 143989

July 14, 2003

ISABELITA S. LAHOM vs. JOSE MELVIN SIBULO FACTS: Mrs. Lahom commenced a petition to rescind the decree of adoption of her nephew Jose Melvin Sibulo because, despite of her pleas and of her husband, Jose refused to use the surname Lahom and continued to use Sibulo in all his dealing and activities. of his indifference, ingratitude and lack of concern to his adopting parents. These turn of events revealing Jose's callous indifference, ingratitude and lack of care and concern prompted Lahom to file a petition in Court in 1999 to rescind the decree of adoption previously issued way back in1972. When Lahom filed said petition there was already a new law on adoption, specifically R.A. 8552 also known as the Domestic Adoption Act passed on March 22,1998, wherein it was provided that: "Adoption, being in the interest of the child, shall not be subject to rescission by the adopter(s). However the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code" (Section 19). ISSUE: Whether or not the subject adoption still be revoked or rescinded by an adopter after the effectivity of R.A. No. 8552, and if in the affirmative, whether or not the adopters action prescribed? RULING: It was months after the effectivity of RA 8552 that Lahom filed an action to revoke the decree of adoption granted in 1972. By then the new law had already abrogated and repealed the right of the adopter under the Civil Code and the family Code to rescind a decree of adoption. So the rescission of the adoption decree, having been initiated by Lahom after RA 8552 had come into force, could no longer be pursued. Besides, even before the passage of RA8552, an action to set aside the adoption is subject to the five year bar rule under Rule 100 of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to protection. Rights are considered vested when the right to the enjoyment is a present interest, absolute, unconditional and perfect or fixed and irrefutable. Matters relating to adoption, including the withdrawal of the right of the adopter to nullify the adoption decree, are subject to State regulation. Concomitantly, a right of action given by a statute may be taken away at any time before it has been exercised. But an adopter, while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child, like denying him his legitime, and by will and testament, may expressly exclude him from having a share in the disposable portion of his estate.

Herbert Cang vs CA G.R. No. 105308, September 25 1998 FACTS: Anna Marie filed a petition for legal separation upon learning of her husband's extramarital affairs, which the trial court approved the petition. Herbert sought a divorce from Anna Marie in the United States. The court granted sole custody of the 3 minor children to Anna, reserving the rights of visitation to Herbert. The brother and sister-in-law of Anna filed for the adoption of the 3 minor children. Upon hearing the said action for adoption, Herbert flew back to the Philippines to contest the adoption, but the petition was already granted by the court. CA affirmed the decree of adoption, holding that Art. 188 of the FC requires the written consent of the natural parents of the children to be adopted, but the consent of the parent who has abandoned the child is not necessary. It held that Herbert failed to pay monthly support to his children. ISSUE: Whether or not the minor children be legally adopted without the written consent of a natural parent on the ground that he has abandoned them. RULING: Yes. Article 188 amended the statutory provision on consent for adoption, the written consent of the natural parent to the adoption has remained a requisite for its validity. Rule 99 of the Rules of the Court requires a written consent to the adoption signed by the child, xxx and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned the child. Article 256 of the Family Code requires the written consent of the natural parent for the decree of adoption to be valid unless the parent has abandoned the child or that the parent is "insane or hopelessly intemperate." In reference to abandonment of a child by his parent, the act of abandonment imports "any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child." It means "neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children." In this case, however, Herbert did not manifest any conduct that would forego his parental duties and relinquish all parental claims over his children as to, constitute abandonment. Physical abandonment alone, without financial and moral desertion, is not tantamount to abandonment. While Herbert was physically absent, he was not remiss in his natural and legal obligations of love, care and support for his children. The Court find pieces of documentary evidence that he maintained regular communications with his wife and children through letters and telephone, and send them packages catered to their whims.

Tumlos vs Fernandez G.R. No. 137650 April 12 2000 Petitioner: Guillerma Tumlos, Toto Tumlos, Gina Tumlos Respondents /Plaintiffs: Mario and Lourdes Fernandez FACTS: Sp. Fernandez filed an action for ejectment against the Tumlos . Said spous es alleged that they are the absolute owners of an apartment building located in Valenz uela, Metro Manila; that they allowed the Tumlos to occupy the apartment building since 1989, without any payment of any rent. It was agreed that Guillerma Tumlos would pay P1,600/mo while the other defendants promised to pay P1,000/mo for the rental, which was not fulfilled by the Tumlos. When the Fernandez demanded the payment from the Tumlos of P84,000 from Toto and Gina Tumlos as unpaid rentals for 7 years and P 143,600.00 from Guillerma as unpaid rentals for 7 years, but said demand were unheeded. Then they prayed that the Tumlos be ordered to vacate the property in question and to pay the stated unpaid rentals, as well as to jointly pay P30,000 in attorney 's fees. Guillerma filed an ans wer to the complaint, claiming that she is also the co-owner and co-vendee of the apartment in question together with Mario Fernandez, as evidenced by a Contract to Sell. MTC promulgated its decision in January 1997. Upon appeal to the RTC Guillerma et al alleged that Mario Fernandez and Guillerma had an amorous relationship, and that they bought the property as their love nest; that they lived together in the property with their 2 children and that Guillerma administered the property by collecting rentals, until she discovered that Mario deceived her as to the annulment of his marriage. RTC affirmed with the judgment of the MTC. CA reversed the RTC Decision. ISSUE: Whether or not that petitioner is the co-owner of the apartment. RULI NG: "Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. "If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal part ners hip existing in such valid marriage. If the part y who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article. "The foregoing rules on forf eiture shall lik ewise apply even if both parties are in bad faith." Article 144 of the Civil Code applies only to a relationship bet ween a man and a woman who are not incapacitated to marry eac h other, or to one in which the marriage of the parties is void from the beginning. It does not apply to a cohabit ation that amounts to adultery or concubinage, for it would be absurd to creat e a co-ownership where there exists a prior conjugal partnership or absolute community between the man and his lawful wife. The relations hip bet ween Guillerma Tumlos and Mario Fernandez is governed by Article 148 of the Family Code, the property relations of couples living in a state of adultery or concubinage. She fails to present any evidenc e that she had made an actual contribution to purchase the subject property. Likewise, he claim of having administered the property during the cohabitation is unsubstantiat ed. In any event, this fact by itself does not justify her claim, for nothing in Article 148 of the FC provides that the administration of the property amounts to a contribution in its acquisition.

Elna Marcado-Fehr vs Bruno Fehr G.R. No. 152716 October 23, 2003 [Article 47 Property Regime of Unions Without Marriage] FACTS: After due proceedings, the trial court declared the marriage between Elna Mercado-Fehr and Bruno Fehr dated March 14 1985 void ab initio under Article 36 of the Family Code and ordered the dissolution of their conjugal partnership of property. Furthermore, Suite 204, LCG Condominium covered by Condominium Certificate of Title NO. 14735 acquired on an installment basis dated July 26 1983 is hereby declared the EXCLUSIVE PROPERTY of respondent, BRUNO FRANZ FEHR. Accordingly, Elna is hereby directed to transfer ownership of Suite 204 in the name of Bruno. Elna filed a motion for reconsideration of said Order with respect to the adjudication of Suite 204, LCG Condominium alleging that Suite 204 was purchased when Elna and Bruno were living together without the benefit of marriage, hence the rules on co-ownership should apply in accordance with Article 147 of the Family Code. She proposed that the Upper Basement and the Lower Ground Floor of the LCG Condominium be adjudicated to her so that she could use the income from the lease of said premises for the support of the children. The court noted that the parties have already agreed in principle to divide the properties and/or proceeds from the sale thereof proportionately among them and their children as follows: 1/3 for her, 1/3 for Bruno and 1/3 for the children. It also affirmed its previous ruling that Suite 204 of LCG Condominium was acquired prior to the couples cohabitation and therefore pertained solely to Bruno. Elna filed special civil action for certiorari and prohibition with the Court of Appeals. The CA in its Decision dismissed the petition for review for lack of merit.

ISSUE: Whether or not the Suite 204 of LGC Condominium is the exclusive property of Bruno Fehr. RULING: No. SC held that Suite 204 was acquired during the parties cohabitation. Accordingly, under Article 147 of the Family Code, said property should be governed by the rules on co-ownership. The disputed property, Suite 204 of LCG Condominium, was purchased on installment basis on July 26, 1983, at the time when Elna and Bruno were already living together. Hence, it should be considered as common property of the two parties. As regards the settlement of the common properties of the two partiess, we hold that the Civil Code provisions on co-ownership should apply. There is nothing in the records that support the pronouncement of the trial court that the parties have agreed to divide the properties into three 1/3 share each to the petitioner, the respondent and their children. Elna, in fact, alleges in her petition before this Court that the parties have agreed on a four-way division of the properties 1/4 share each to the parties, and 1/4 share each to their two children. In sum, SC rule in favor of Elna. We hold that Suite 204 of LCG Condominium is a common property of ex-couples and the property regime of the parties should be divided in accordance with the law on coownership.

Francisco Gonzales vs Erminda F. Gonzales G.R. No. 159521 December 16 2005 FACTS: After two years of living together, Francisco and Erminda got married in 1979. Four children were born from this union. During the time they lived together, they acquired properties, and Erlinda managed their pizza business. In 1992, She prays for the declaration of the nullity of their marriage and for the dissolution of the conjugal partnership of gains. Mario denied she was the one who managed the pizza business and claimed that he exclusively owns the properties "existing during their marriage." In 1997 the trial court rendered its decision, rendered its judgment and ordered the dissolution of the conjugal partnership of gains and divide the conjugal properties between Francisco and Erminda. Not satisfied with the manner their properties were divided, Francisco appealed to the CA, which in turn affirmed the trial court decision. ISSUE: Whether or not Mario exclusively own the properties existing during their marriage. RULING: Their property relation shall be governed by the provisions of Article 147 of the Family Code. These provisions enumerate the two instances when the property relations between spouses shall be governed by the rules on co-ownership. These are: (1) when a man and woman capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage; and (2) when a man and woman live together under a void marriage. Under this property regime of coownership, properties acquired by both parties during their union, in the absence of proof to the contrary, are presumed to have been obtained through the joint efforts of the parties and will be owned by them in equal shares.

Arturo Abalos vs Dr. Galicano S. Macatangay, Jr. G.R. No. 155043 September 30 2004 FACTS: Spouses Arturo and Esther Abalos are the registered owners of a parcel of land with improvements covered by (TCT) No. 145316 located in Makati City. Arturo made a Receipt and Memorandum of Agreement dated October 17 1989, in favor of Macatangay, binding himself to sell to latter the subject property and not to offer the same to any other party within 30 days from date. Full payment would also be effected as soon as possession of the property shall have been turned over to Macatangay. Macatangay gave an earnest money amounting to P5,000.00 to be deducted from the purchase price of P1,300,000.00 in favor of the spouses. Arturo and Esther had a marital squabble going on at that time and Macatangay, to protect his interest, made an annotation in the title of the property. Esther, through her SPA, executed in favor of Macatangay, a Contract to sell the property to the extent of her conjugal interest for the sum of P650,000 less the sum already received by her and Arturo. She agreed to surrender the property to Macatangay within 20 days along with the deed of absolute sale upon full payment, while he promised to pay the balance of the purchase price for P1, 290,000.00 after receiving the property. Macatangay informed them that he was ready to pay the amount in full. The couple failed to deliver the property so he sued the spouses. RTC dismissed the complaint, because the SPA could not have authorized Arturo to sell the property to Macatangay as it was falsified. CA reversed the decision, ruling the SPA in favor of Arturo, assuming it was void, cannot affect the transaction between Esther and Macatangay. On the other hand, the CA considered the RMOA executed by Arturo valid to effect the sale of his conjugal share in the property. ISSUE: Whether or not the sale of property is valid. RULING: No. Arturo and Esther appear to have been married before the effectivity of the Family Code. There being no indication that they have adopted a different property regime, their property relations would automatically be governed by the regime of conjugal partnership of gains. The subject land which had been admittedly acquired during the marriage of the spouses forms part of their conjugal partnership. Under the Civil Code, the husband is the administrator of the conjugal partnership. This right is clearly granted to him by law. More, the husband is the sole administrator. The wife is not entitled as of right to joint administration. The husband, even if he is statutorily designated as administrator of the conjugal partnership, cannot validly alienate or encumber any real property of the conjugal partnership without the wifes consent. Similarly, the wife cannot dispose of any property belonging to the conjugal partnership without the conformity of the husband. The law is explicit that the wife cannot bind the conjugal partnership without the husbands consent, except in cases provided by law. More significantly, it has been held that prior to the liquidation of the conjugal partnership, the interest of each spouse in the conjugal assets is inchoate, a mere expectancy, which constitutes neither a legal nor an equitable estate, and does not ripen into title until it appears that there are assets in the community as a result of the liquidation and settlement. The interest of each spouse is limited to the net remainder or remanente liquido (haber ganancial) resulting from the liquidation of the affairs of the partnership after its dissolution. Thus, the right of the husband or wife to one-half of the conjugal assets does not vest until the dissolution and liquidation of the conjugal partnership, or after dissolution of the

marriage, when it is finally determined that, after settlement of conjugal obligations, there are net assets left which can be divided between the spouses or their respective heirs. The Family Code has introduced some changes particularly on the aspect of the administration of the conjugal partnership. The new law provides that the administration of the conjugal partnership is now a joint undertaking of the husband and the wife. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal partnership, the other spouse may assume sole powers of administration. However, the power of administration does not include the power to dispose or encumber property belonging to the conjugal partnership. In all instances, the present law specifically requires the written consent of the other spouse, or authority of the court for the disposition or encumbrance of conjugal partnership property without which, the disposition or encumbrance shall be void. Inescapably, herein Arturo s action for specific performance must fail. Even on the supposition that the parties only disposed of their respective shares in the property, the sale, assuming that it exists, is still void for as previously stated, the right of the husband or the wife to one-half of the conjugal assets does not vest until the liquidation of the conjugal partnership. Nemo dat qui non habet. No one can give what he has not.

Beatriz Acre vs Evangeline Yuttikki G.R. No. 153029 September 27 2007 FACTS: Beatriz Acre and Sofronio Acre, Jr. were married on November 8 1957. The union produced six children. Sofronio later married Evangeline Yuttiki on May 18 1972. The union lasted for more than 24 years before he died in 1996. During their union, the couple acquired properties; a motor vehicle and two parcels of land registered in the names of Evangeline and one parcel issued under the names of Evangeline and Nellie Y. del Mar. Beatriz et al filed with the RTC Court Cebu City, a complaint for reconveyance and recovery of properties and/or partition with damages. They alleged that Sofronio alone acquired the subject properties with this funds. The trial court dismissed the petition. The case was appealed to CA which also dismissed due to lack of merit. ISSUE: Whether or not Evangeline is the owner of the contested properties. RULING: The marriage between Evangeling and Sofronio is bigamous considering that their union was celebrated while he was still married to Beatriz. As such, their property regime is covered by Article 148 of the Family Code providing that all properties acquired by the parties out of their actual joint contribution of money, property, or industry shall be governed by the rules on co-ownership. Hence, if there is no contribution from either or both of the spouses, there can be no co-ownership. The Acres failed to present any evidence to establish that Sofronio made an actual contributio in acquiring the contested properties. Clearly, co-ownership does not exist here.

Erlinda Agapay vs Carlina Palang G.R. No. 116668 July 28 1997 FACTS: Miguel Palang married Calina Vellesterol on July 16 1949 in Pozzorubio, Pangasina, with whom he had 1 child. On July 15 1973, he then contracted his second marriage with Erlinda Agapay, with whom he had a son, born on 1977. The couple purchased a parcel of agricultural land and the transfer certificate was issued in their names. She also purchased a house and lot in Binalonan, where the property was later issued in her name. In 1975, Miguel and Carlina executed a Deed of Donation, wherein they agreed to donate their conjugal property consisting of 6 parcels of land to their only child, Herminia. Miguel died on 1981, and Carlina and Herminia instituted an action for recovery of ownership and possession with damages against Erlinda before the RTC in Urdaneta. Erlinda contended that while the riceland was registered in their names, she had already given her half of the property to their son. She added that the house and lot in Binalonan is her sole property, having bought the same with her own money. RTC dismissed the complaint and ordered the respondents to provide for the intestate shares of the parties, particularly of Erlinda's son. CA reversed the trial court's decision. ISSUE: Whether or not the properties from Miguel's second marriage be granted to Carlina. RULING: The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The provision of law applicable here is Article 148 of the Family Code providing for cases of cohabitation when a man and a woman who are not capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was patently void because the earlier marriage of Miguel and Carlina was still susbsisting and unaffected by the latters de facto separation. Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry shall be owned by them in common in proportion to their respective contributions. It must be stressed that actual contribution is required by this provision, in contrast to Article 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there will be no co-ownership and no presumption of equal shares. Since Erlinda failed to prove that she contributed money to the purchase price of the riceland in Binalonan, Pangasinan, we find 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.

Eustaquio Mallilin Jr. V. Ma. Elvira Castillo G.R. No. 136803 June 16, 2000 FACTS: Mallilin and Castillo, both married and with children, but separated from their respective spouses, cohabited sometime in 1979 while their respective marriage still subsisted. During their union, they set up Superfreight Customs Brokerage Corporation . The business flourished and the couple acquired real and personal properties which were registered solely in Castillo's name. In 1992, the couple separated. Mallilin demanded from Castillo his share in the subject properties but Castillo refused alleging that said properties had been registered solely in her name. Hence, this complaint for partition and payment of co-ownership share. Castillo denied that she and Mallilin lived as husband and wife because they are still legally married with their respective spouses. She claimed to be the exclusive owner of all real personal properties involved in Mallilin's action for partition on the ground that they were acquired entirely out of her own money and registered solely in her name. The trial court dismissed the civil case, reasoning out that even if the parties really had cohabited, the action for partition could not be allowed because an action for partition among co-owners ceases to be so and becomes one for title if Castillo, as in the present case, alleges exclusive ownership of the properties in question. CA remanded the court for trial on the merits. In 1998, upon a motion for reconsideration from Castillo, reconsidered its prior decision. ISSUE: Whether or not co-ownership exist between them. RULING: The legal relation of the parties is already specifically covered by Art. 148 of the Family Code under which all the properties acquired by the parties out of their actual joint contributions of money, property or industry shall constitute a co-ownership. Co-ownership is a form of trust and every co-owner is a trustee for the other. The Family Code, in addition to providing that a co-ownership exists between a man and a woman who live together as husband and wife without the benefit of marriage, likewise provides that, if the parties are incapacitated to marry each other, properties acquired by them through their joint contribution of money, property or industry shall be owned by them in common in proportion to their contributions which, in the absence of proof to the contrary, is presumed to be equal. There is thus co-ownership even though the couple are not capacitated to marry each other. In his complaint for partition regarding the nature of an action for partition, Mallilin seeks first, a declaration that he is a co-owner of the subject properties; and second, the conveyance of his lawful shares.

Nicdao Cario vs Yee Cario G.R. No. 132529 February 2 2001 FACTS: SPO4 Santiago Cario married Susan Nicdao Cario in 1969. They had two children. He married Susan Yee Cario on November 10, 1992, with whom he had no children in their almost ten year cohabitation starting way back in 1982. He passed away on November 23 1992. The two Susans filed with the RTC of Quezon City the claims for monetary benefits and financial assistance pertaining to the deceased from various government agencies. Nicdao collected a total of P146,000.00 while Yee received a total of P21,000.00. In 1993 Yee filed instant case for collection of the half of money acquired by Nicdao, collectively denominated as "death benefits." Yee admitted that her marriage with the deceased took place during the subsistence of, and without first obtaining a judicial declaration of nullity, and the marriage between Nicdao and Cario was solemnized without the required marriage license. She backed the claim with a marriage license without marriage license number and a certification from the LRC. She also claimed that she only found out about the previous marriage on SPO4's funeral. In 1995, the trial court ruled in favor of Yee. Nicdao appealed to the CA, which the CA affirmed the decision of the trial court. ISSUE: Whether or not Yee can claim the death benefit of Cario. RULING: No. SC reversed and set aside the decision of the RTC of QC. The marriage of Nicdao and Cario falls under the marriage void ab initio, as it lacks the marriage license requirement. Under Article 40, for purposes of remarriage, there must first be a prior judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage, otherwise, the second marriage would also be void. The marriage of Yee and the SPO4 therefore, is likewise void ab initio. Considering that the two marriages are void ab initio, the applicable property regime therefore would not be absolute community or conjugal property but the provisions of Article 147 and 148 on "Property Regimes of Unions Without Marriage." Regarding the marriage of Yee and the deceased as bigamous, the application of Art 148 is therefore in order. The disputed P146,000.00 are renumerations, incentives and benefits from governmental agencies earned by the deceased as a police officer. Unless Yee presents proof to the contrary, it could not be said that she contributed money, property or industry in the acquisition of these monetary benefits. Hence, they are not owned in common by Yee and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim the same. By intestate succession, the said death benefits of the deceased shall pass to his legal heirs. And, Yee, not being the legal wife of the deceased is not one of them. As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Fam ily Code governs.

Under the foregoing article, wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other d id not contribute thereto. Conformably, even if the disputed death benefits were earned by the deceased alone as a government employee, Article 147 creates a co ownership in respect thereto, entitling the petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject death benefits under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with Nicdao.