FIRST DIVISION

LUISA KHO MONTAER, G.R. No. 174975

ALEJANDRO MONTAER, JR.,
LILLIBETH MONTAER-
BARRIOS, AND RHODORA
ELEANOR MONTAER- Present:
DALUPAN,
Petitioners, PUNO, C.J., Chairperson,
CARPIO,
CORONA,
- versus - AZCUNA, and
LEONARDO-DE CASTRO, JJ.

SHARIA DISTRICT COURT,

FOURTH SHARIA JUDICIAL
DISTRICT, MARAWI CITY,
LILING DISANGCOPAN, AND Promulgated:
ALMAHLEEN LILING S.
MONTAER,
JANUARY 20, 2009
Respondents.

x-----------------------------------------------------------------------------------------x

DECISION

PUNO, C.J.:

This Petition for Certiorari and Prohibition seeks to set aside the Orders of
the Sharia District Court, Fourth Sharia Judicial District, Marawi City, dated August
22, 2006[1] and September 21, 2006.[2]

On August 17, 1956, petitioner Luisa Kho Montaer, a Roman Catholic, married
Alejandro Montaer, Sr. at the Immaculate Conception Parish in Cubao, Quezon
City.[3] Petitioners Alejandro Montaer, Jr., Lillibeth Montaer-Barrios, and Rhodora
Eleanor Montaer-Dalupan are their children.[4] On May 26, 1995, Alejandro
Montaer, Sr. died.[5]

On August 19, 2005, private respondents Liling Disangcopan and her daughter,
Almahleen Liling S. Montaer, both Muslims, filed a Complaint for the judicial
partition of properties before the Sharia District Court.[6] The said complaint was
entitled Almahleen Liling S. Montaer and Liling M. Disangcopan v. the Estates and
Properties of Late Alejandro Montaer, Sr., Luisa Kho Montaer, Lillibeth K. Montaer,
Alejandro Kho Montaer, Jr., and Rhodora Eleanor K. Montaer, and docketed as
Special Civil Action No. 7-05.[7] In the said complaint, private respondents made the
following allegations: (1) in May 1995, Alejandro Montaer, Sr. died; (2) the late
Alejandro Montaer, Sr. is a Muslim; (3) petitioners are the first family of the
decedent; (4) Liling Disangcopan is the widow of the decedent; (5) Almahleen Liling
S. Montaer is the daughter of the decedent; and (6) the estimated value of and a list
of the properties comprising the estate of the decedent.[8] Private respondents prayed
for the Sharia District Court to order, among others, the following: (1) the partition
of the estate of the decedent; and (2) the appointment of an administrator for the
estate of the decedent.[9]

Petitioners filed an Answer with a Motion to Dismiss mainly on the following

grounds: (1) the Sharia District Court has no jurisdiction over the estate of the late
Alejandro Montaer, Sr., because he was a Roman Catholic; (2) private respondents
failed to pay the correct amount of docket fees; and (3) private respondents
complaint is barred by prescription, as it seeks to establish filiation between
Almahleen Liling S. Montaer and the decedent, pursuant to Article 175 of the Family
Code.[10]

On November 22, 2005, the Sharia District Court dismissed the private respondents
complaint. The district court held that Alejandro Montaer, Sr. was not a Muslim, and
its jurisdiction extends only to the settlement and distribution of the estate of
deceased Muslims.[11]
 On December 12, 2005, private respondents filed a Motion for
Reconsideration.[12] On December 28, 2005, petitioners filed an Opposition to the
Motion for Reconsideration, alleging that the motion for reconsideration lacked a
notice of hearing.[13] On January 17, 2006, the Sharia District Court denied
petitioners opposition.[14] Despite finding that the said motion for reconsideration
lacked notice of hearing, the district court held that such defect was cured as
petitioners were notified of the existence of the pleading, and it took cognizance of
the said motion.[15] The Sharia District Court also reset the hearing for the motion
for reconsideration.[16]

In its first assailed order dated August 22, 2006, the Sharia District Court
reconsidered its order of dismissal dated November 22, 2005.[17] The district court
allowed private respondents to adduce further evidence.[18] In its second assailed
order dated September 21, 2006, the Sharia District Court ordered the continuation
of trial, trial on the merits, adducement of further evidence, and pre-trial
conference.[19]

Seeking recourse before this Court, petitioners raise the following issues:

I.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY LACKS

JURISDICTION OVER PETITIONERS WHO ARE ROMAN CATHOLICS
AND NON-MUSLIMS.

II.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY DID NOT

ACQUIRE JURISDICTION OVER THE ESTATES AND PROPERTIES OF THE
LATE ALEJANDRO MONTAER, SR. WHICH IS NOT A NATURAL OR
JURIDICAL PERSON WITH CAPACITY TO BE SUED.

III.

RESPONDENT SHARIA DISTRICT COURT DID NOT ACQUIRE

JURISDICTION OVER THE COMPLAINT OF PRIVATE RESPONDENTS
AGAINST PETITIONERS DUE TO NON-PAYMENT OF THE FILING AND
DOCKETING FEES.
 IV.

RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN IT DENIED THE OPPOSITION OF PETITIONERS
AND THEN GRANTED THE MOTION FOR RECONSIDERATION OF
RESPONDENTS LILING DISANGCOPAN, ET AL. WHICH WAS FATALLY
DEFECTIVE FOR LACK OF A NOTICE OF HEARING.

V.

RESPONDENT SHARIA DISTRICT COURTMARAWI CITY COMMITTED

GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION WHEN IT SET SPL. CIVIL ACTION 7-05 FOR TRIAL EVEN
IF THE COMPLAINT PLAINLY REVEALS THAT RESPONDENT
ALMAHLEEN LILING S. MONTAER SEEKS RECOGNITION FROM
ALEJANDRO MONTAER, SR. WHICH CAUSE OF ACTION PRESCRIBED
UPON THE DEATH OF ALEJANDRO MONTAER, SR. ON MAY 26, 1995.

In their Comment to the Petition for Certiorari, private respondents stress that the
Sharia District Court must be given the opportunity to hear and decide the question
of whether the decedent is a Muslim in order to determine whether it has
jurisdiction.[20]

Jurisdiction: Settlement of the Estate of Deceased Muslims

Petitioners first argument, regarding the Sharia District Courts jurisdiction, is

dependent on a question of fact, whether the late Alejandro Montaer, Sr. is a Muslim.
Inherent in this argument is the premise that there has already been a determination
resolving such a question of fact. It bears emphasis, however, that the assailed
orders did not determine whether the decedent is a Muslim. The assailed orders did,
however, set a hearing for the purpose of resolving this issue.

Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code
of Muslim Personal Laws of the Philippines, provides that the Sharia District Courts
have exclusive original jurisdiction over the settlement of the estate of deceased
Muslims:
 ARTICLE 143. Original jurisdiction. (1) The Shari'a District Court shall have
exclusive original jurisdiction over:

xxxx

(b) All cases involving disposition, distribution and settlement of the estate of
deceased Muslims, probate of wills, issuance of letters of administration or
appointment of administrators or executors regardless of the nature or the aggregate
value of the property.

The determination of the nature of an action or proceeding is controlled by the

averments and character of the relief sought in the complaint or petition. [21] The
designation given by parties to their own pleadings does not necessarily bind the
courts to treat it according to the said designation. Rather than rely on a falsa
descriptio or defective caption, courts are guided by the substantive averments of
the pleadings.[22]

Although private respondents designated the pleading filed before the Sharia
District Court as a Complaint for judicial partition of properties, it is a petition for
the issuance of letters of administration, settlement, and distribution of the estate of
the decedent. It contains sufficient jurisdictional facts required for the settlement of
the estate of a deceased Muslim,[23] such as the fact of Alejandro Montaer, Sr.s death
as well as the allegation that he is a Muslim. The said petition also contains an
enumeration of the names of his legal heirs, so far as known to the private
respondents, and a probable list of the properties left by the decedent, which are the
very properties sought to be settled before a probate court. Furthermore, the reliefs
prayed for reveal that it is the intention of the private respondents to seek judicial
settlement of the estate of the decedent.[24] These include the following: (1) the
prayer for the partition of the estate of the decedent; and (2) the prayer for the
appointment of an administrator of the said estate.

We cannot agree with the contention of the petitioners that the district court
does not have jurisdiction over the case because of an allegation in their answer with
a motion to dismiss that Montaer, Sr. is not a Muslim. Jurisdiction of a court over
the nature of the action and its subject matter does not depend upon the defenses set
forth in an answer[25] or a motion to dismiss.[26]Otherwise, jurisdiction would depend
almost entirely on the defendant[27] or result in having a case either thrown out of
court or its proceedings unduly delayed by simple stratagem.[28] Indeed, the defense
of lack of jurisdiction which is dependent on a question of fact does not render the
court to lose or be deprived of its jurisdiction.[29]

The same rationale applies to an answer with a motion to dismiss.[30] In the

case at bar, the Sharia District Court is not deprived of jurisdiction simply because
petitioners raised as a defense the allegation that the deceased is not a Muslim. The
Sharia District Court has the authority to hear and receive evidence to determine
whether it has jurisdiction, which requires an a prioridetermination that the deceased
is a Muslim. If after hearing, the Sharia District Court determines that the deceased
was not in fact a Muslim, the district court should dismiss the case for lack of
jurisdiction.

Special Proceedings

The underlying assumption in petitioners second argument, that the

proceeding before the Sharia District Court is an ordinary civil action against a
deceased person, rests on an erroneous understanding of the proceeding before the
court a quo. Part of the confusion may be attributed to the proceeding before the
Sharia District Court, where the parties were designated either as plaintiffs or
defendants and the case was denominated as a special civil action. We reiterate that
the proceedings before the court a quo are for the issuance of letters of
administration, settlement, and distribution of the estate of the deceased, which is a
special proceeding. Section 3(c) of the Rules of Court (Rules) defines a special
proceeding as a remedy by which a party seeks to establish a status, a right, or a
particular fact. This Court has applied the Rules, particularly the rules on special
proceedings, for the settlement of the estate of a deceased Muslim.[31] In a petition
for the issuance of letters of administration, settlement, and distribution of estate, the
applicants seek to establish the fact of death of the decedent and later to be duly
recognized as among the decedents heirs, which would allow them to exercise their
right to participate in the settlement and liquidation of the estate of the
decedent.[32] Here, the respondents seek to establish the fact of Alejandro Montaer,
Sr.s death and, subsequently, for private respondent Almahleen Liling S. Montaer to
be recognized as among his heirs, if such is the case in fact.

Petitioners argument, that the prohibition against a decedent or his estate from
being a party defendant in a civil action[33] applies to a special proceeding such as
the settlement of the estate of the deceased, is misplaced. Unlike a civil action which
has definite adverse parties, a special proceeding has no definite adverse party. The
definitions of a civil action and a special proceeding, respectively, in the Rules
illustrate this difference. A civil action, in which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a
wrong[34] necessarily has definite adverse parties, who are either the plaintiff or
defendant.[35] On the other hand, a special proceeding, by which a party seeks to
establish a status, right, or a particular fact,[36] has one definite party, who petitions
or applies for a declaration of a status, right, or particular fact, but no definite adverse
party. In the case at bar, it bears emphasis that the estate of the decedent is not being
sued for any cause of action. As a special proceeding, the purpose of the settlement
of the estate of the decedent is to determine all the assets of the estate, [37] pay its
liabilities,[38] and to distribute the residual to those entitled to the same.[39]

Docket Fees

Petitioners third argument, that jurisdiction was not validly acquired for non-
payment of docket fees, is untenable. Petitioners point to private respondents petition
in the proceeding before the court a quo, which contains an allegation estimating the
decedents estate as the basis for the conclusion that what private respondents paid as
docket fees was insufficient. Petitioners argument essentially involves two aspects:
(1) whether the clerk of court correctly assessed the docket fees; and (2) whether
private respondents paid the correct assessment of the docket fees.
 Filing the appropriate initiatory pleading and the payment of the prescribed
docket fees vest a trial court with jurisdiction over the subject matter.[40] If the party
filing the case paid less than the correct amount for the docket fees because that was
the amount assessed by the clerk of court, the responsibility of making a deficiency
assessment lies with the same clerk of court.[41] In such a case, the lower court
concerned will not automatically lose jurisdiction, because of a partys reliance on
the clerk of courts insufficient assessment of the docket fees.[42] As every citizen has
the right to assume and trust that a public officer charged by law with certain duties
knows his duties and performs them in accordance with law, the party filing the case
cannot be penalized with the clerk of courts insufficient assessment.[43] However, the
party concerned will be required to pay the deficiency.[44]

In the case at bar, petitioners did not present the clerk of courts assessment of
the docket fees. Moreover, the records do not include this assessment. There can be
no determination of whether private respondents correctly paid the docket fees
without the clerk of courts assessment.

Exception to Notice of Hearing

Petitioners fourth argument, that private respondents motion for

reconsideration before the Sharia District Court is defective for lack of a notice of
hearing, must fail as the unique circumstances in the present case constitute an
exception to this requirement. The Rules require every written motion to be set for
hearing by the applicant and to address the notice of hearing to all parties
concerned.[45] The Rules also provide that no written motion set for hearing shall be
acted upon by the court without proof of service thereof.[46] However, the Rules
allow a liberal construction of its provisions in order to promote [the] objective of
securing a just, speedy, and inexpensive disposition of every action and
proceeding.[47] Moreover, this Court has upheld a liberal construction specifically of
the rules of notice of hearing in cases where a rigid application will result in a
manifest failure or miscarriage of justice especially if a party successfully shows that
the alleged defect in the questioned final and executory judgment is not apparent on
its face or from the recitals contained therein.[48] In these exceptional cases, the Court
considers that no party can even claim a vested right in technicalities, and for this
reason, cases should, as much as possible, be decided on the merits rather than on
technicalities.[49]

The case at bar falls under this exception. To deny the Sharia District Court
of an opportunity to determine whether it has jurisdiction over a petition for the
settlement of the estate of a decedent alleged to be a Muslim would also deny its
inherent power as a court to control its process to ensure conformity with the law
and justice. To sanction such a situation simply because of a lapse in fulfilling the
notice requirement will result in a miscarriage of justice.

In addition, the present case calls for a liberal construction of the rules on notice of
hearing, because the rights of the petitioners were not affected. This Court has held
that an exception to the rules on notice of hearing is where it appears that the rights
of the adverse party were not affected.[50] The purpose for the notice of hearing
coincides with procedural due process,[51] for the court to determine whether the
adverse party agrees or objects to the motion, as the Rules do not fix any period
within which to file a reply or opposition.[52] In probate proceedings, what the law
prohibits is not the absence of previous notice, but the absolute absence thereof and
lack of opportunity to be heard.[53] In the case at bar, as evident from the Sharia
District Courts order dated January 17, 2006, petitioners counsel received a copy of
the motion for reconsideration in question. Petitioners were certainly not denied an
opportunity to study the arguments in the said motion as they filed an opposition to
the same. Since the Sharia District Court reset the hearing for the motion for
reconsideration in the same order, petitioners were not denied the opportunity to
object to the said motion in a hearing. Taken together, these circumstances show that
the purpose for the rules of notice of hearing, procedural process, was duly observed.

Prescription and Filiation

Petitioners fifth argument is premature. Again, the Sharia District Court has not yet
determined whether it has jurisdiction to settle the estate of the decedent. In the event
that a special proceeding for the settlement of the estate of a decedent is pending,
questions regarding heirship, including prescription in relation to recognition and
filiation, should be raised and settled in the said proceeding.[54] The court, in its
capacity as a probate court, has jurisdiction to declare who are the heirs of the
decedent.[55] In the case at bar, the determination of the heirs of the decedent depends
on an affirmative answer to the question of whether the Sharia District Court has
jurisdiction over the estate of the decedent.

IN VIEW WHEREOF, the petition is DENIED. The Orders of the Sharia

District Court, dated August 22, 2006 and September 21, 2006 respectively, are
AFFIRMED. Cost against petitioners.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18799 March 31, 1964

HON. JOSE F. FERNANDEZ, Judge of the Court of First Instance, Negros Occidental,
ASUNCION MARAVILLA, ET AL., petitioners,
vs.
HERMINIO MARAVILLA, respondent.

Jose Gutierrez David, A. Aveto, A. Mirasol and P. C. Ramos for petitioners.

Paredes, Poblador, Cruz and Nazareno for respondent.

BARRERA, J.:

Petitioners herein appeal by certiorari from the decision of the Court of Appeals (in CA-G.R. No.
27200-R) wherein, over their objection, raising the question of jurisdiction petition, the appellate
court took cognizance of the petition for certiorari and prohibition filed by Herminio Maravilla and, in
consequence thereof, set aside the appointment of petitioner Eliezar Lopez as a special co-
administrator of the estate of the deceased Digna Maravilla. The pertinent antecedent facts are as
follows:
On August 25, 1958, respondent Herminio Maravilla filed with he Court of First Instance of Negros
Occidental a petition for probate of the will (Spec. Proc. No. 4977) of his deceased wife Digna
Maravilla who died on August 12 of that same year. In the will the surviving spouse was named as
the universal heir and executor.

On September 30, 1958, Pedro, Asuncion, and Regina Maravilla (brother and sisters of the
deceased Digna Maravilla) filed an opposition to the probate of the will, on the ground, inter alia, that
the will was not signed on each page by the testatrix in the presence of the attesting witnesses and
of one another.

On March 16, 1959, on motion of respondent Herminio, which was opposed by Pedro, Asuncion,
and Regina Maravilla, the court issued an order appointing him special administrator of the estate of
the deceased, for the reason that:

... all the properties subject of the will are conjugal properties of the petitioner and his late
wife, Digna Maravilla, and before any partition of the conjugal property is done, the Court
cannot pinpoint which of the property subject of the Will belongs to Digna Maravilla,
exclusively, that shall be administered by the special administrator. Hence, although it is true
that the petitioner Herminio Maravilla has an adverse interest in the property subject of the
Will, the Court finds it impossible for the present time to appoint any person other than the
petitioner as special administrator of the property until after the partition is ordered, for the
reason that the properties mentioned in the Will are in the name of the petitioner who is the
surviving spouse of the deceased.

On February 8, 1960, the court rendered a decision denying probate of the will, as it was not duly
signed on each page by the testatrix in the presence of the attesting witnesses and of one another.

On February 17, 1960, Pedro, Asuncion, and Regina Maravilla, filed with the court a petition for
appointment of Eliezar Lopez (son of Asuncion Maravilla) as special co-administrator to protect their
interests, on the ground that the will, having been denied probate, they are the legal heirs of the
decedent. Said petition was heard on February 20, at which hearing, respondent's counsel orally
moved for postponement, because respondent's principal counsel (Salonga) had not been notified
and was not present. The court ordered presentation of oral evidence, consisting of the testimonies
of Eliezar Lopez, and Regina and Francisco Maravilla.

On February 26, 1960, respondent filed with the court his notice of appeal, appeal bond and record
on appeal, from the decision denying probate of the will. Some devisees under the will, likewise,
appealed from said decision.

On February 25, 1960, Pedro, Asuncion, and Regina Maravilla, filed with the court a petition for the
removal of respondent as special administrator, as he failed to file an inventory within 3 months from
his appointment and qualification as special administrator, as provided for in Section 1, Rule 84, of
the Rules of Court. To this petition, respondent filed an opposition, on the ground that said provision
of the Rules of Court does not apply to a special administrator, and an inventory had already been
submitted by him, before said petition for his removal was filed.1äwphï1.ñët

On February 27, 1960, the devisees Conchita and Rose Marie Kohlhaas filed with the court a
petition for appointment of Conchita as special co-administratrix. Devisee Adelina Sajo, likewise,
filed a similar petition February 29.

On March 5, 1960, the court held a joint hearing the (1) petition to appoint Eliezar Lopez as special
administrator, (2) approval of respondent's record appeal and appeal bond, (3) petition to remove
respondent as special administrator, (4) petition to appoint Conchita Kohlhaas as special co-
administratrix, and (5) petition to appoint Adelina Sajo as special co-administrator. At said hearing,
respondent objected to the appointment of Eliezar Lopez was special co-administratrix, on grounds
that (a) the law allows only one special co-administrator (b) the order of March 16, 1959 estops the
court from appointing Eliezar Lopez as special co-administrator (c) such appointment is unfair to
respondent, because owns at least 3/4 of the whole property, conjugal nature, which would be
subjected to the administrate of a stranger, and (d) a deadlock between two special administrators
would ruin the management of the property, including those of respondent. On cross-examination of
Eliezar Lopez, respondent's counsel elicited the facts that (1) Lopez was employed full time in the
PCAPE, with office in Manila. and could not discharge the functions of a co-administrator, and (2)
there was merely intention on Lopez part to resign from office.

After said joint hearing, the court appointed Eliezar Lopez as special co-administrator in an order
dictated open court, to protect the interests of Pedro, Asuncion and Regina Maravilla.

From this order, respondent, on March 7, 1960, filed with the Court of Appeals a petition
for certiorari and prohibition (with prayer for preliminary injunction) to annul the order appointing
Eliezar Lopez as special co-administrator, and to prohibit the probate court from further proceeding
with the petition for the removal of respondent as special administrator. The Court of Appeals issued
a writ of preliminary injunction on March 9, 1960 which was amended on March 11, 1960 to make it
more specific.

On October 6, 1960, petitioners Regina Maravilla, et al. filed with the Court of Appeals a petition to
certify the case to the Supreme Court, on the grounds that the principal amount in controversy in this
case exceeds P200,000.00, and the writs (of certiorari and prohibition) prayed for are not in aid of
appellate jurisdiction of the Court of Appeals, since the probate case is not on appeal before it. To
this petition, respondent filed an opposition. on the grounds that the amount in controversy is less
than P200,000.00 and the decision of the probate court (of February 8, 1960) is now on appeal
before the Court of Appeals (CA-G.R. No. 27478-R); hence, the writ prayed for is in aid of its
appellate jurisdiction, and the present case does not involve title to or possession of real estate
exceeding in value P200,000.00.1

On May 16, 1961, the Court of Appeals rendered a decision granting the writs (certiorari and
prohibition) prayed for by respondent, and declaring null and void the appointment of Eliezar Lopez
as special co-administrator.

Petitioners Regina Maravilla, et al. filed a motion for reconsideration of said decision, but it was
denied by the Court of Appeals. Hence, this appeal.

Petitioners claim that the Court of Appeals had no jurisdiction to issue the writs of certiorari and
prohibition prayed for by respondent, the same not being in aid of its appellate jurisdiction.

We agree with petitioners. The Court of Appeals, in the decision appealed from, assumed jurisdiction
over the present case on the theory that "the amount in controversy relative to the appointment of
Eliezar Lopez as special co-administrator to protect the interests of respondents (herein petitioners)
is only P90,000.00 more or less, i.e., one fourth of the conjugal property" (of respondent and the
deceased Digna Maravilla) which, is per inventory submitted by respondent as special administrator
is valued at P362,424.90. This theory is untenable. Note that the proceedings had on the
appointment of Eliezar Lopez as special co-administrator are merely incidental to the probate or
testate proceedings of the deceased Digna Maravilla presently on appeal before the Court of
Appeals (CA-G.R. No. 27478-R) where petitioners' motion to elevate the same to the Supreme
Court, on the ground that the amount herein involved is within the latter's exclusive jurisdiction, is still
pending, resolution. That the Court of Appeals has no appellate jurisdiction over said testate
proceedings cannot be doubted, considering that the properties therein involved are valued at
P362,424,90, as per inventory of the special administrator.

Under Section 2, Rule 75, of the Rules of Court, the property to be administered and liquidated in
testate or intestate proceedings of the deceased spouse is, not only that part of the conjugal estate
pertaining to the deceased spouse, but the entire conjugal estate. This Court has already held that
even if the deceased had left no debts, upon the dissolution of the marriage by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated in the
testate or intestate proceedings of the deceased spouse (Vda. de Roxas v. Pecson, et al., L-2211,
December 20, 1948; 82 Phil. 407; see also Vda. de Chantengco v. Chantengco, et al., L-10663,
October 31, 1958). In a number of cases where appeal was taken from an order of a probate court
disallowing a will, this Court, in effect, recognized that the amount or value involved or in controversy
therein is that of the entire estate (Suntay v. Suntay, L-3087, July 31, 1954, 50 O.G. 5321; Vano v.
Vda. de Garces, et al., L-6303, June 30, 1954, 50 O.G. 3045). Not having appellate jurisdiction over
the proceedings in probate (CA-G.R. No. 27478-R), considering that the amount involved therein is
more than P200,000.00, the Court of Appeals cannot also have original jurisdiction to grant the writs
of certiorari and prohibition prayed for by respondent in the instant case, which are merely incidental
thereto.

In the United States, the rule is that "proceedings in probate are appealable where the amount or
value involved is reducible to a pecuniary standard, the amount involved being either the appellant's
interest or the value of the entire estate according as the issues on appeal involve only the
appellant's rights or the entire administration of the estate. ... In a contest for administration of an
estate the amount or value of the assets of the estate is the amount in controversy for purposes of
appeal." (4 C.J.S. 204). In line with this ruling, it is to be observed that respondent's interest as
appellant in the probate proceedings (CA-G.R. No. 27478-R) is, according to his theory, the whole
estate amounting to P362,424.90, or, at least more than 3/4 thereof, or approximately P270,000.00.
Such interest, reduced to a pecuniary standard on the basis of the inventory, is the amount or value
of the matter in controversy, and such amount being more than P200,000.00, it follows that the
appeal taken in said proceedings falls within the exclusive jurisdiction of the Supreme Court and
should, therefore, be certified to it pursuant to Section 17 of the Judiciary Act of 1948, as amended.

Note also that the present proceedings under review were for the annulment of the appointment of
Eliezar Lopez as special co-administrator and to restrain the probate court from removing
respondent as special administrator. It is therefore, a contest for the administration of the estate and,
consequently, the amount or value of the assets of the whole estate is the value in controversy (4
C.J.S. 204). It appearing that the value of the estate in dispute is much more than P200,000.00, the
Court of Appeals clearly had no original jurisdiction to issue the writs in question.

The Court of Appeals, in the decision appealed from, arrived at the amount of "P90,000.00 more or
less", as the amount involved in the case, upon authority of the case of Vistan v. Archbishop (73
Phil. 20). But this case is inapplicable, as it does not refer to the question of administration of the
estate, nor to an order denying probate of a will, but only to the recovery of a particular legacy
consisting of the rentals of a fishpond belonging to the estate. In an analogous case involving the
administration of a trust fund, the United States Supreme Court held:

Where the trust fund administered and ordered to be distributed by the circuit court, in a suit
to compel the stockholders of a corporation to pay their subscriptions to stock to realize the
fund, amounts to more than $5,000.00, this court has jurisdiction of the appeal, which is not
affected by the fact that the amounts decreed to some of the creditors are less than that sum
(Handly et al. vs. Stutz, et al., 34 Law Ed. 706).
Respondent also contends that appeals in special proceedings, as distinguished from ordinary civil
cases, are within the exclusive appellate jurisdiction of the Court of Appeals, since they are not
enumerated in Section 17 of the Judiciary Act, as amended. Granting, arguendo, that a special
proceeding is not a civil action, it has never been decided that a special proceeding is not a "civil
case" (Carpenter v. Jones, 121 Cal. 362; 58 p. 842). On the other hand, it has been held that the
term "civil case" includes special proceedings (Herkimer v. Keeler, 100 Iowa 680, N.W. 178).
Moreover, Section 2, Rule 73, of the Rules of Court provides that the rules on ordinary civil actions
are applicable in special proceedings where they are not inconsistent with, or when they may serve
to supplement the provisions relating to special proceedings. Consequently, the procedure of appeal
is the same in civil actions as in special proceedings. (See Moran's Comments on the Rules of
Court, Vol. II, 1957 Ed., p. 326.)

The cases cited by respondent where this Court ruled that the separate total claim of the parties and
not the combined claims against each other determine the appellate jurisdictional amount, are not
applicable to, the instant case, because Section 2, Rule 75 of the Rules of Court is explicit that the
amount or value involved or in controversy in probate proceedings is that of the entire estate.
Assuming, arguendo, that the rule in the cases cited by respondent is here applicable, it should be
noted that respondent claims the whole estate of at least more than 3/4 thereof. Said claim, reduced
to a pecuniary standard, on the basis of the inventory, would amount to more than P200,000.00 and,
consequently, within the exclusive jurisdiction of the Supreme Court.

The case of Ledesma v. Natividad (L-6115, May 10, 1954) cited by respondent in his brief, is also
inapplicable, because unlike the instant case, it did not involve a contest in the administration of the
estate.

While it is true that questions of fact have been raised in the probate proceedings (Spec. Proc. No.
4977, CFI of Negros Occidental) which was appealed by respondent to the Court of Appeals, it
becomes immaterial, in view of Sections 17 and 31 of the Judiciary Act of 1948, as amended,
providing that the Supreme Court shall have exclusive appellate jurisdiction over "all cases in which
the value in controversy exceeds two hundred thousand pesos, exclusive of interests and costs",
and that "all cases which may be erroneously brought to the Supreme Court, or to the Court of
Appeals shall be sent to the proper court, which shall hear the same as if it had originally been
brought before it".

On the question of the appointment of petitioner Eliezar Lopez as special administrator, we agree
with respondent that there was no need for it. Note that the Rules of Court contain no provision on
special co-administrator, the reason being, that the appointment of such special administrator is
merely temporary and subsists only until a regular executor or administrator is duly appointed. Thus,
it would not only be unnecessary but also impractical, if for the temporary duration of the need for a
special administrator, another one is appointed aside from the husband, in this case, upon whom the
duty to liquidate the community property devolves merely to protect the interests of petitioners who,
in the event that the disputed will is allowed to probate, would even have no right to participate in the
proceedings at all. (Roxas v. Pecson, 82 Phil. 407.)

In view of the conclusion herein reached, in connection with the amount involved in the controversy,
it is suggested that appropriate steps be taken on the appeal pending in the Court of Appeals
involving the probate of the will (CA-G.R. No. 27478-R) to comply with the provisions of the Judiciary
Act on the matter.

WHEREFORE, the decision of the Court of Appeals of May 16, 1961 is set aside and another one
entered also setting aside the order of the trial court of March 5, 1960, appointing Eliezar Lopez as
special co-administrator. Without costs. So ordered.
Bengzon, C.J., Padilla Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, Dizon and
Regala, JJ., concur.
Makalintal, J., took no part.

Footnote

1 Said Petition to certify is still pending resolution by the Court of Appeals.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 157912 December 13, 2007

ALAN JOSEPH A. SHEKER, Petitioner,

vs.
ESTATE OF ALICE O. SHEKER, VICTORIA S. MEDINA-Administratrix, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

This resolves the Petition for Review on Certiorari seeking the reversal of the Order1 of the Regional
Trial Court of Iligan City, Branch 6 (RTC) dated January 15, 2003 and its Omnibus Order dated April
9, 2003.

The undisputed facts are as follows.

The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter issued an order
for all the creditors to file their respective claims against the estate. In compliance therewith,
petitioner filed on October 7, 2002 a contingent claim for agent's commission due him amounting to
approximately ₱206,250.00 in the event of the sale of certain parcels of land belonging to the estate,
and the amount of ₱275,000.00, as reimbursement for expenses incurred and/or to be incurred by
petitioner in the course of negotiating the sale of said realties.

The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal of said money
claim against the estate on the grounds that (1) the requisite docket fee, as prescribed in Section
7(a), Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to attach a certification
against non-forum shopping; and (3) petitioner failed to attach a written explanation why the money
claim was not filed and served personally.

On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice the money
claim based on the grounds advanced by respondent. Petitioner's motion for reconsideration was
denied per Omnibus Order dated April 9, 2003.

Petitioner then filed the present petition for review on certiorari, raising the following questions:

(a) must a contingent claim filed in the probate proceeding contain a certification against
non-forum shopping, failing which such claim should be dismissed?
 (b) must a contingent claim filed against an estate in a probate proceeding be dismissed for
failing to pay the docket fees at the time of its filing thereat?

(c) must a contingent claim filed in a probate proceeding be dismissed because of its failure
to contain a written explanation on the service and filing by registered mail?2

Petitioner maintains that the RTC erred in strictly applying to a probate proceeding the rules
requiring a certification of non-forum shopping, a written explanation for non-personal filing, and the
payment of docket fees upon filing of the claim. He insists that Section 2, Rule 72 of the Rules of
Court provides that rules in ordinary actions are applicable to special proceedings only in a
suppletory manner.

The Court gave due course to the petition for review on certiorari although directly filed with this
Court, pursuant to Section 2(c), Rule 41 of the Rules of Court.3

The petition is imbued with merit.

However, it must be emphasized that petitioner's contention that rules in ordinary actions are only
supplementary to rules in special proceedings is not entirely correct.

Section 2, Rule 72, Part II of the same Rules of Court provides:

Sec. 2. Applicability of rules of Civil Actions. - In the absence of special provisions, the rules
provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings.

Stated differently, special provisions under Part II of the Rules of Court govern special proceedings;
but in the absence of special provisions, the rules provided for in Part I of the Rules governing
ordinary civil actions shall be applicable to special proceedings, as far as practicable.

The word "practicable" is defined as: possible to practice or perform; capable of being put into
practice, done or accomplished.4 This means that in the absence of special provisions, rules in
ordinary actions may be applied in special proceedings as much as possible and where doing so
would not pose an obstacle to said proceedings. Nowhere in the Rules of Court does it categorically
say that rules in ordinary actions are inapplicable or merely suppletory to special proceedings.
Provisions of the Rules of Court requiring a certification of non-forum shopping for complaints and
initiatory pleadings, a written explanation for non-personal service and filing, and the payment of
filing fees for money claims against an estate would not in any way obstruct probate proceedings,
thus, they are applicable to special proceedings such as the settlement of the estate of a deceased
person as in the present case.

Thus, the principal question in the present case is: did the RTC err in dismissing petitioner's
contingent money claim against respondent estate for failure of petitioner to attach to his motion a
certification against non-forum shopping?

The Court rules in the affirmative.

The certification of non-forum shopping is required only for complaints and other initiatory
pleadings. The RTC erred in ruling that a contingent money claim against the estate of a decedent
is an initiatory pleading. In the present case, the whole probate proceeding was initiated upon
the filing of the petition for allowance of the decedent's will. Under Sections 1 and 5, Rule 86 of
the Rules of Court, after granting letters of testamentary or of administration, all persons having
money claims against the decedent are mandated to file or notify the court and the estate
administrator of their respective money claims; otherwise, they would be barred, subject to certain
exceptions.5

Such being the case, a money claim against an estate is more akin to a motion for creditors' claims
to be recognized and taken into consideration in the proper disposition of the properties of the
estate. In Arquiza v. Court of Appeals,6the Court explained thus:

x x x The office of a motion is not to initiate new litigation, but to bring a material but
incidental matter arising in the progress of the case in which the motion is filed. A motion
is not an independent right or remedy, but is confined to incidental matters in the progress of a
cause. It relates to some question that is collateral to the main object of the action and is
connected with and dependent upon the principal remedy.7(Emphasis supplied)

A money claim is only an incidental matter in the main action for the settlement of the decedent's
estate; more so if the claim is contingent since the claimant cannot even institute a separate action
for a mere contingent claim. Hence, herein petitioner's contingent money claim, not being an
initiatory pleading, does not require a certification against non-forum shopping.

On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,8 that the trial court has
jurisdiction to act on a money claim (attorney's fees) against an estate for services rendered by a
lawyer to the administratrix to assist her in fulfilling her duties to the estate even without payment of
separate docket fees because the filing fees shall constitute a lien on the judgment pursuant to
Section 2, Rule 141 of the Rules of Court, or the trial court may order the payment of such filing fees
within a reasonable time.9 After all, the trial court had already assumed jurisdiction over the action for
settlement of the estate. Clearly, therefore, non-payment of filing fees for a money claim against the
estate is not one of the grounds for dismissing a money claim against the estate.

With regard to the requirement of a written explanation, Maceda v. De Guzman Vda. de

Macatangay10 is squarely in point. Therein, the Court held thus:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of Rule 13 of the
Rules of Court, held that a court has the discretion to consider a pleading or paper as not filed if said
rule is not complied with.

Personal service and filing are preferred for obvious reasons. Plainly, such should expedite action
or resolution on a pleading, motion or other paper; and conversely, minimize, if not eliminate, delays
likely to be incurred if service or filing is done by mail, considering the inefficiency of the postal
service. Likewise, personal service will do away with the practice of some lawyers who, wanting to
appear clever, resort to the following less than ethical practices: (1) serving or filing pleadings by
mail to catch opposing counsel off-guard, thus leaving the latter with little or no time to prepare, for
instance, responsive pleadings or an opposition; or (2) upon receiving notice from the post office that
the registered mail containing the pleading of or other paper from the adverse party may be claimed,
unduly procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing
undue delay in the disposition of such pleading or other papers.

If only to underscore the mandatory nature of this innovation to our set of adjective rules requiring
personal service whenever practicable, Section 11 of Rule 13 then gives the court the discretion to
consider a pleading or paper as not filed if the other modes of service or filing were not resorted to
and no written explanation was made as to why personal service was not done in the first place. The
exercise of discretion must, necessarily consider the practicability of personal service, for Section 11
itself begins with the clause "whenever practicable".
We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of Civil
Procedure, personal service and filing is the general rule, and resort to other modes of service and
filing, the exception. Henceforth, whenever personal service or filing is practicable, in the light of the
circumstances of time, place and person, personal service or filing is mandatory. Only when
personal service or filing is not practicable may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service or filing was not practicable to
begin with. In adjudging the plausibility of an explanation, a court shall likewise consider the
importance of the subject matter of the case or the issues involved therein, and the prima facie merit
of the pleading sought to be expunged for violation of Section 11. (Emphasis and italics supplied)

In Musa v. Amor, this Court, on noting the impracticality of personal service, exercised its discretion
and liberally applied Section 11 of Rule 13:

"As [Section 11, Rule 13 of the Rules of Court] requires, service and filing of pleadings must be done
personally whenever practicable. The court notes that in the present case, personal service would
not be practicable. Considering the distance between the Court of Appeals and Donsol,
Sorsogon where the petition was posted, clearly, service by registered mail [sic] would have entailed
considerable time, effort and expense. A written explanation why service was not done personally
might have been superfluous. In any case, as the rule is so worded with the use of "may",
signifying permissiveness, a violation thereof gives the court discretion whether or not to
consider the paper as not filed. While it is true that procedural rules are necessary to secure
an orderly and speedy administration of justice, rigid application of Section 11, Rule 13 may be
relaxed in this case in the interest of substantial justice. (Emphasis and italics supplied)1âwphi1

In the case at bar, the address of respondent’s counsel is Lopez, Quezon, while petitioner Sonia’s
counsel’s is Lucena City. Lopez, Quezon is 83 kilometers away from Lucena City. Such distance
makes personal service impracticable. As in Musa v. Amor, a written explanation why service was
not done personally "might have been superfluous."

As this Court held in Tan v. Court of Appeals, liberal construction of a rule of procedure has been
allowed where, among other cases, "the injustice to the adverse party is not commensurate with the
degree of his thoughtlessness in not complying with the procedure prescribed."11 (Emphasis
supplied)

In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for
respondent and the RTC which rendered the assailed orders are both in Iligan City. The lower court
should have taken judicial notice of the great distance between said cities and realized that it is
indeed not practicable to serve and file the money claim personally. Thus, following Medina v. Court
of Appeals,12 the failure of petitioner to submit a written explanation why service has not been done
personally, may be considered as superfluous and the RTC should have exercised its discretion
under Section 11, Rule 13, not to dismiss the money claim of petitioner, in the interest of substantial
justice.

The ruling spirit of the probate law is the speedy settlement of estates of deceased persons for the
benefit of creditors and those entitled to residue by way of inheritance or legacy after the debts and
expenses of administration have been paid.13 The ultimate purpose for the rule on money claims was
further explained in Union Bank of the Phil. v. Santibañez,14 thus:

The filing of a money claim against the decedent’s estate in the probate court is mandatory. As we
held in the vintage case of Py Eng Chong v. Herrera:
x x x This requirement is for the purpose of protecting the estate of the deceased by
informing the executor or administrator of the claims against it, thus enabling him to examine
each claim and to determine whether it is a proper one which should be allowed. The plain and
obvious design of the rule is the speedy settlement of the affairs of the deceased and the early
delivery of the property to the distributees, legatees, or heirs. The law strictly requires the prompt
presentation and disposition of the claims against the decedent's estate in order to settle the
affairs of the estate as soon as possible, pay off its debts and distribute the residue.15 (Emphasis
supplied)

The RTC should have relaxed and liberally construed the procedural rule on the requirement of a
written explanation for non-personal service, again in the interest of substantial justice.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Iligan City,
Branch 6 dated January 15, 2003 and April 9, 2003, respectively, are REVERSED and SET ASIDE.
The Regional Trial Court of Iligan City, Branch 6, is hereby DIRECTED to give due course and take
appropriate action on petitioner's money claim in accordance with Rule 82 of the Rules of Court.

No pronouncement as to costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

RUBEN T. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it
is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice

Republic of the Philippines

Supreme Court
Baguio City
FIRST DIVISION

NILO OROPESA, G.R. No. 184528

Petitioner,
Present:

CORONA, C.J.,
Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
- versus -
DEL CASTILLO, and
VILLARAMA, JR., JJ.

Promulgated:

CIRILO OROPESA,
April 25, 2012
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
 DECISION

LEONARDO-DE CASTRO, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure of the Decision[1] dated February 29, 2008, as well as the
Resolution[2] dated September 16, 2008, both rendered by the Court of Appeals in
CA-G.R. CV No. 88449, entitled NILO OROPESA vs. CIRILO OROPESA. The Court of
Appeals issuances affirmed the Order[3] dated September 27, 2006 and the
Order[4] dated November 14, 2006 issued by the Regional Trial Court (RTC) of
Paraaque City, Branch 260 in SP. Proc. Case No. 04-0016, which dismissed
petitioner Nilo Oropesas petition for guardianship over the properties of his father,
respondent Cirilo Oropesa (a widower), and denied petitioners motion for
reconsideration thereof, respectively.

The facts of this case, as summed in the assailed Decision, follow:

On January 23, 2004, the (petitioner) filed with the Regional Trial Court of Paraaque City,
a petition for him and a certain Ms. Louie Ginez to be appointed as guardians over the
property of his father, the (respondent) Cirilo Oropesa. The case was docketed as SP Proc.
No. 04-0016 and raffled off to Branch 260.

In the said petition, it is alleged among others that the (respondent) has been afflicted
with several maladies and has been sickly for over ten (10) years already having suffered
a stroke on April 1, 2003 and June 1, 2003, that his judgment and memory [were] impaired
and such has been evident after his hospitalization; that even before his stroke, the
(respondent) was observed to have had lapses in memory and judgment, showing signs
of failure to manage his property properly; that due to his age and medical condition, he
cannot, without outside aid, manage his property wisely, and has become an easy prey
for deceit and exploitation by people around him, particularly Ms. Ma. Luisa Agamata, his
girlfriend.
 In an Order dated January 29, 2004, the presiding judge of the court a quo set the case
for hearing, and directed the court social worker to conduct a social case study and submit
a report thereon.

Pursuant to the abovementioned order, the Court Social Worker conducted her social
case study, interviewing the (petitioner) and his witnesses. The Court Social Worker
subsequently submitted her report but without any finding on the (respondent) who
refused to see and talk to the social worker.

On July 6, 2004, the (respondent) filed his Opposition to the petition for guardianship. On
August 3, 2004, the (respondent) filed his Supplemental Opposition.

Thereafter, the (petitioner) presented his evidence which consists of his testimony, and
that of his sister Gianina Oropesa Bennett, and the (respondents) former nurse, Ms. Alma
Altaya.

After presenting evidence, the (petitioner) filed a manifestation dated May 29, 2006
resting his case. The (petitioner) failed to file his written formal offer of evidence.

Thus, the (respondent) filed his Omnibus Motion (1) to Declare the petitioner to have
waived the presentation of his Offer of Exhibits and the presentation of his Evidence
Closed since they were not formally offered; (2) To Expunge the Documents of the
Petitioner from the Record; and (3) To Grant leave to the Oppositor to File Demurrer to
Evidence.

In an Order dated July 14, 2006, the court a quo granted the (respondents) Omnibus
Motion. Thereafter, the (respondent) then filed his Demurrer to Evidence dated July 23,
2006.[5] (Citations omitted.)

The trial court granted respondents demurrer to evidence in an Order dated

September 27, 2006. The dispositive portion of which reads:
 WHEREFORE, considering that the petitioner has failed to provide sufficient evidence to
establish that Gen. Cirilo O. Oropesa is incompetent to run his personal affairs and to
administer his properties, Oppositors Demurrer to Evidence is GRANTED, and the case is
DISMISSED.[6]

Petitioner moved for reconsideration but this was denied by the trial court
in an Order dated November 14, 2006, the dispositive portion of which states:

WHEREFORE, considering that the Court record shows that petitioner-movant has
failed to provide sufficient documentary and testimonial evidence to establish that Gen.
Cirilo Oropesa is incompetent to run his personal affairs and to administer his properties,
the Court hereby affirms its earlier Order dated 27 September 2006.

Accordingly, petitioners Motion for Reconsideration is DENIED for lack of merit.[7]

Unperturbed, petitioner elevated the case to the Court of Appeals but his
appeal was dismissed through the now assailed Decision dated February 29, 2008,
the dispositive portion of which reads:

WHEREFORE, premises considered the instant appeal is DISMISSED. The assailed

orders of the court a quo dated September 27, 2006 and November 14, 2006 are
AFFIRMED.[8]

A motion for reconsideration was filed by petitioner but this was denied by
the Court of Appeals in the similarly assailed Resolution dated September 16,
2008. Hence, the instant petition was filed.

Petitioner submits the following question for consideration by this Court:

 WHETHER RESPONDENT IS CONSIDERED AN INCOMPETENT PERSON AS DEFINED UNDER
SECTION 2, RULE 92 OF THE RULES OF COURT WHO SHOULD BE PLACED UNDER
GUARDIANSHIP[9]

After considering the evidence and pleadings on record, we find the petition
to be without merit.

Petitioner comes before the Court arguing that the assailed rulings of the
Court of Appeals should be set aside as it allegedly committed grave and reversible
error when it affirmed the erroneous decision of the trial court which purportedly
disregarded the overwhelming evidence presented by him showing respondents
incompetence.
In Francisco v. Court of Appeals,[10] we laid out the nature and purpose of
guardianship in the following wise:

A guardianship is a trust relation of the most sacred character, in which one

person, called a guardian acts for another called the ward whom the law regards as
incapable of managing his own affairs. A guardianship is designed to further the wards
well-being, not that of the guardian. It is intended to preserve the wards property, as well
as to render any assistance that the ward may personally require. It has been stated that
while custody involves immediate care and control, guardianship indicates not only those
responsibilities, but those of one in loco parentis as well.[11]

In a guardianship proceeding, a court may appoint a qualified guardian if the

prospective ward is proven to be a minor or an incompetent.

A reading of Section 2, Rule 92 of the Rules of Court tells us that persons

who, though of sound mind but by reason of age, disease, weak mind or other
similar causes, are incapable of taking care of themselves and their property
without outside aid are considered as incompetents who may properly be placed
under guardianship. The full text of the said provision reads:
 Sec. 2. Meaning of the word incompetent. Under this rule, the word incompetent
includes persons suffering the penalty of civil interdiction or who are hospitalized lepers,
prodigals, deaf and dumb who are unable to read and write, those who are of unsound
mind, even though they have lucid intervals, and persons not being of unsound mind, but
by reason of age, disease, weak mind, and other similar causes, cannot, without outside
aid, take care of themselves and manage their property, becoming thereby an easy prey
for deceit and exploitation.

We have held in the past that a finding that a person is incompetent should
be anchored on clear, positive and definite evidence.[12] We consider that
evidentiary standard unchanged and, thus, must be applied in the case at bar.

In support of his contention that respondent is incompetent and, therefore,

should be placed in guardianship, petitioner raises in his Memorandum[13] the
following factual matters:

a. Respondent has been afflicted with several maladies and has been sickly for
over ten (10) years already;

b. During the time that respondent was hospitalized at the St. Lukes Medical
Center after his stroke, he purportedly requested one of his former colleagues
who was visiting him to file a loan application with the Armed Forces of the
Philippines Savings and Loan Association, Inc. (AFPSLAI) for payment of his
hospital bills, when, as far as his children knew, he had substantial amounts of
money in various banks sufficient to cover his medical expenses;

c. Respondents residence allegedly has been left dilapidated due to lack of care
and management;

d. The realty taxes for respondents various properties remain unpaid and therefore
petitioner and his sister were supposedly compelled to pay the necessary taxes;

e. Respondent allegedly instructed petitioner to sell his Nissan Exalta car for the
reason that the former would be purchasing another vehicle, but when the car
had been sold, respondent did not procure another vehicle and refused to
account for the money earned from the sale of the old car;
 f. Respondent withdrew at least $75,000.00 from a joint account under his name
and his daughters without the latters knowledge or consent;

g. There was purportedly one occasion where respondent took a kitchen knife to
stab himself upon the orders of his girlfriend during one of their fights;

h. Respondent continuously allows his girlfriend to ransack his house of groceries

and furniture, despite protests from his children.[14]

Respondent denied the allegations made by petitioner and cited petitioners

lack of material evidence to support his claims. According to respondent, petitioner
did not present any relevant documentary or testimonial evidence that would
attest to the veracity of his assertion that respondent is incompetent largely due to
his alleged deteriorating medical and mental condition. In fact, respondent points
out that the only medical document presented by petitioner proves that he is
indeed competent to run his personal affairs and administer his
properties. Portions of the said document, entitled Report of Neuropsychological
Screening,[15] were quoted by respondent in his Memorandum[16] to illustrate that
said report in fact favored respondents claim of competence, to wit:

General Oropesa spoke fluently in English and Filipino, he enjoyed and

participated meaningfully in conversations and could be quite elaborate in his responses
on many of the test items. He spoke in a clear voice and his articulation was generally
comprehensible. x x x.

xxxx

General Oropesa performed in the average range on most of the domains that
were tested. He was able to correctly perform mental calculations and keep track of
number sequences on a task of attention. He did BEST in visuo-constructional tasks where
he had to copy geometrical designs using tiles. Likewise, he was able to render and read
the correct time on the Clock Drawing Test. x x x.

xxxx

x x x Reasoning abilities were generally intact as he was able to suggest effective

solutions to problem situations. x x x.[17]
 With the failure of petitioner to formally offer his documentary evidence, his
proof of his fathers incompetence consisted purely of testimonies given by himself
and his sister (who were claiming interest in their fathers real and personal
properties) and their fathers former caregiver (who admitted to be acting under
their direction). These testimonies, which did not include any expert medical
testimony, were insufficient to convince the trial court of petitioners cause of
action and instead lead it to grant the demurrer to evidence that was filed by
respondent.

Even if we were to overlook petitioners procedural lapse in failing to make a

formal offer of evidence, his documentary proof were comprised mainly of
certificates of title over real properties registered in his, his fathers and his sisters
names as co-owners, tax declarations, and receipts showing payment of real estate
taxes on their co-owned properties, which do not in any way relate to his fathers
alleged incapacity to make decisions for himself. The only medical document on
record is the aforementioned Report of Neuropsychological Screening which was
attached to the petition for guardianship but was never identified by any witness
nor offered as evidence. In any event, the said report, as mentioned earlier, was
ambivalent at best, for although the report had negative findings regarding
memory lapses on the part of respondent, it also contained findings that supported
the view that respondent on the average was indeed competent.

In an analogous guardianship case wherein the soundness of mind of the

proposed ward was at issue, we had the occasion to rule that where the sanity of a
person is at issue, expert opinion is not necessary [and that] the observations of
the trial judge coupled with evidence establishing the persons state of mental
sanity will suffice.[18]

Thus, it is significant that in its Order dated November 14, 2006 which denied
petitioners motion for reconsideration on the trial courts unfavorable September
27, 2006 ruling, the trial court highlighted the fatal role that petitioners own
documentary evidence played in disproving its case and, likewise, the trial court
made known its own observation of respondents physical and mental state, to wit:
 The Court noted the absence of any testimony of a medical expert which states
that Gen. Cirilo O. Oropesa does not have the mental, emotional, and physical capacity to
manage his own affairs. On the contrary, Oppositors evidence includes a
Neuropsychological Screening Report which states that Gen. Oropesa, (1) performs on
the average range in most of the domains that were tested; (2) is capable of mental
calculations; and (3) can provide solutions to problem situations. The Report concludes
that Gen. Oropesa possesses intact cognitive functioning, except for mildly impaired
abilities in memory, reasoning and orientation. It is the observation of the Court that
oppositor is still sharp, alert and able.[19] (Citation omitted; emphasis supplied.)

It is axiomatic that, as a general rule, only questions of law may be raised in

a petition for review on certiorari because the Court is not a trier of facts.[20] We
only take cognizance of questions of fact in certain exceptional
circumstances;[21] however, we find them to be absent in the instant case. It is also
long settled that factual findings of the trial court, when affirmed by the Court of
Appeals, will not be disturbed by this Court. As a rule, such findings by the lower
courts are entitled to great weight and respect, and are deemed final and
conclusive on this Court when supported by the evidence on record.[22] We
therefore adopt the factual findings of the lower court and the Court of Appeals
and rule that the grant of respondents demurrer to evidence was proper under the
circumstances obtaining in the case at bar.

Section 1, Rule 33 of the Rules of Court provides:

Section 1. Demurrer to evidence. After the plaintiff has completed the

presentation of his evidence, the defendant may move for dismissal on the ground that
upon the facts and the law the plaintiff has shown no right to relief. If his motion is denied,
he shall have the right to present evidence. If the motion is granted but on appeal the
order of dismissal is reversed he shall be deemed to have waived the right to present
evidence.
 A demurrer to evidence is defined as an objection by one of the parties in an
action, to the effect that the evidence which his adversary produced is insufficient
in point of law, whether true or not, to make out a case or sustain the issue.[23] We
have also held that a demurrer to evidence authorizes a judgment on the merits of
the case without the defendant having to submit evidence on his part, as he would
ordinarily have to do, if plaintiffs evidence shows that he is not entitled to the relief
sought.[24]

There was no error on the part of the trial court when it dismissed the
petition for guardianship without first requiring respondent to present his evidence
precisely because the effect of granting a demurrer to evidence other than
dismissing a cause of action is, evidently, to preclude a defendant from presenting
his evidence since, upon the facts and the law, the plaintiff has shown no right to
relief.

WHEREFORE, premises considered, the petition is hereby DENIED. The

assailed Decision dated February 29, 2008 as well as the Resolution dated
September 16, 2008 of the Court of Appeals in CA-G.R. CV No. 88449
are AFFIRMED.

SO ORDERED.

FIRST DIVISION

CECILIO C. HERNANDEZ, G.R. No. 166470

MA. VICTORIA C. HERNANDEZ-
SAGUN, TERESA C. HERNANDEZ-
VILLA ABRILLE[1] and NATIVIDAD Present:
CRUZ-HERNANDEZ,
Petitioners, PUNO, C.J., Chairperson,
CARPIO,
CORONA,
LEONARDO-DE CASTRO and
- v e r s u s - BERSAMIN, JJ.

JOVITA SAN JUAN-SANTOS,

Respondent.

x---------------------x

CECILIO C. HERNANDEZ, G.R. No. 169217

MA. VICTORIA C. HERNANDEZ-
SAGUN and TERESA C.
HERNANDEZ-VILLA ABRILLE,
Petitioners,

-versus-

JOVITA SAN JUAN-SANTOS,[2]

Respondent. Promulgated:
August 7, 2009
x--------------------------------------------------x

DECISION
CORONA, J.:

Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the
spouses Felix Hernandez and Maria San Juan Hernandez. Unfortunately, the latter
died due to complications during childbirth. After Maria's death, Felix left Lulu in
the care of her maternal uncle, Sotero C. San Juan.

On December 16, 1951, Felix married Natividad Cruz. The union produced three
children, petitioners Cecilio C. Hernandez, Ma. Victoria C. Hernandez-Sagun and
Teresa C. Hernandez-Villa Abrille.

Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu
inherited valuable real properties from the San Juan family (conservatively
estimated at P50 million in 1997).
 Sometime in 1957, Lulu went to live with her father and his new family. She
was then 10 years old and studying at La Consolacion College. However, due to her
violent personality, Lulu stopped schooling when she reached Grade 5.

In 1968, upon reaching the age of majority, Lulu was given full control of her
estate.[3] Nevertheless, because Lulu did not even finish her elementary education,
Felix continued to exercise actual administration of Lulus properties. Upon Felix's
death in 1993, petitioners took over the task of administering Lulu's properties.

During the period of their informal administration (from 1968 until 1993),
Felix and petitioners undertook various projects involving Lulus real properties. In
1974, Felix allegedly purchased one of Lulus properties for an undisclosed amount
to develop the Marilou Subdivision.[4] In 1995, Ma. Victoria informed Lulu that her
11-hectare Montalban, Rizal property[5] was under litigation. Thus, Lulu signed a
special power of attorney[6] (SPA) believing that she was authorizing Ma. Victoria to
appear in court on her behalf when she was in fact unknowingly authorizing her
half-sister to sell the said property to the Manila Electric Company
for P18,206,400.[7] Thereafter, Cecilio asked Lulu to authorize him to lease her 45-
hectare property in Montalban, Rizal to Oxford Concrete Aggregates for P58,500
per month so that she could have a car and driver at her disposal.

In September 1998, Lulu sought the assistance of her maternal first cousin,
respondent Jovita San Juan-Santos, after learning that petitioners had been
dissipating her estate. She confided to Jovita that she was made to live in the
basement of petitioners Montalban, Rizal home and was receiving a measly daily
allowance of P400 for her food and medication.

Respondent was appalled as Lulu was severely overweight, unkempt and

smelled of urine. She later found out that Lulu was occupying a cramped room lit
by a single fluorescent lamp without running water. Since she had not been given
a proper toilet, Lulu urinated and defecated in the garden. Due to Lulu's poor
hygiene, respondent brought her to several physicians for medical examination.
Lulu was found to be afflicted with tuberculosis, rheumatism and diabetes from
which she was suffering several complications.[8]

Thereafter, the San Juan family demanded an inventory and accounting of

Lulus estate from petitioners.[9] However, the demand was ignored.

On October 2, 1998, respondent filed a petition for guardianship[10] in the

Regional Trial Court (RTC) of San Mateo, Rizal, Branch 76. She alleged that Lulu was
incapable of taking care of herself and managing her estate because she was of
weak mind.

Subsequently, petitioners moved to intervene in the proceedings to oppose

the same.

Natividad denied that Marilou Subdivision belonged to Lulu. Since she and
her late husband were the registered owners of the said property, it was allegedly
part of their conjugal partnership.
 Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulus
competency had been settled in 1968 (upon her emancipation) when the court
ordered her legal guardian and maternal uncle, Ciriaco San Juan, to deliver the
properties for her to manage.

They likewise asserted that Lulu was literate and, for that reason, aware of
the consequences of executing an SPA. Furthermore, whether or not Cecilio and
Ma. Victoria acted within the scope of their respective authorities could not be
determined in a guardianship proceeding, such matter being the proper subject of
an ordinary civil action.

Petitioners also admitted that the property developed into the Marilou
Subdivision was among those parcels of land Lulu inherited from the San Juan
family. However, because the sale between Felix and Lulu had taken place in 1974,
questions regarding its legality were already barred by the statute of limitations.
Thus, its validity could no longer be impugned, or so they claimed.

During the hearing, Lulu was presented and asked to testify on her genealogy
and experiences with the San Juan and Hernandez families. Lulu identified and
described her parents, stepmother, half-siblings and maternal relatives. She
claimed inheriting tracts of land from the San Juan family. However, these
properties were dissipated by the Hernandez family as they lived a luxurious
lifestyle. When asked to explain this allegation, Lulu said that her stepmother and
half-siblings rode in cars while she was made to ride a tricycle.
 Medical specialists testified to explain the results of Lulus examinations
which revealed the alarming state of her health.[11] Not only was Lulu severely
afflicted with diabetes mellitus and suffering from its complications,[12] she also had
an existing artheroselorotic cardiovascular disease (which was aggravated by her
obesity). Furthermore, they unanimously opined that in view of Lulus intelligence
level (which was below average) and fragile mental state, she would not be able to
care for herself and self-administer her medications.

In a decision dated September 25, 2001,[13] the RTC concluded that, due to
her weak physical and mental condition, there was a need to appoint a legal
guardian over the person and property of Lulu. Thus, it declared Lulu an
incompetent and appointed respondent as guardian over the person and property
of Lulu on a P1 million bond.

Petitioners moved for reconsideration asserting that the P1 million bond was
grossly insufficient to secure Lulus P50-million estate against fraudulent loss or
dissipation.[14] The motion, however, was denied.[15]

On July 2, 2002, petitioners appealed the September 25, 2001 decision of the
RTC to the Court of Appeals (CA).[16] The appeal was docketed as CA-G.R. CV No.
75760.

On December 29, 2004, the CA issued a decision affirming the September 25,
2001 decision of the RTC (in the petition for guardianship) in toto.[17] It held that
respondent presented sufficient evidence to prove that Lulu, because of her
illnesses and low educational attainment, needed assistance in taking care of
herself and managing her affairs considering the extent of her estate. With regard
to the respondents appointment as the legal guardian, the CA found that, since Lulu
did not trust petitioners, none of them was qualified to be her legal guardian.
Because guardianship was a trust relationship, the RTC was bound to appoint
someone Lulu clearly trusted.

Petitioners now assail the December 29, 2004 decision of the CA in this Court
in a petition for review on certiorari docketed as G.R. No. 166470.[18]

Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina

apartment) and was provided with two housemaids tasked to care for her.
Sometime in November 2003, Lulu was abducted from her Marikina apartment.
Jovita immediately sought the assistance of the Police Anti-Crime Emergency
Response (PACER) division of the Philippine National Police.

The PACER subsequently discovered that petitioners were keeping Lulu

somewhere in Rodriguez, Rizal. Despite their initial hostility to the investigation,
Ma. Victoria and Cecilio subsequently contacted the PACER to inform them that
Lulu voluntarily left with Natividad because her guardian had allegedly been
maltreating her.[19]

On December 15, 2003, respondent filed a petition for habeas corpus[20] in

the CA alleging that petitioners abducted Lulu and were holding her captive in an
undisclosed location in Rodriguez, Rizal.
 On April 26, 2005, the CA granted the petition for habeas corpus, ruling that
Jovita, as her legal guardian, was entitled to her custody. [21]

Petitioners moved for the reconsideration of the said decision but it was
denied in a resolution dated July 12, 2005.[22] Aggrieved, they filed this petition for
review on certiorari docketed as G.R. No. 169217. This was consolidated with G.R.
No. 166470.

The basic issue in petitions of this nature is whether the person is an

incompetent who requires the appointment of a judicial guardian over her person
and property.

Petitioners claim that the opinions of Lulu's attending physicians[23] regarding

her mental state were inadmissible in evidence as they were not experts in
psychiatry. Respondent therefore failed to prove that Lulu's illnesses rendered her
an incompetent. She should have been presumed to be of sound mind and/or in
full possession of her mental capacity. For this reason, Lulu should be allowed to
live with them since under Articles 194 to 196 of the Family Code,[24] legitimate
brothers and sisters, whether half-blood or full-blood are required to support each
other fully.

Respondent, on the other hand, reiterated her arguments before the

courts a quo. She disclosed that Lulu had been confined in Recovery.com, a
psychosocial rehabilitation center and convalescent home care facility in Quezon
City, since 2004 due to violent and destructive behavior. She also had delusions of
being physically and sexually abused by Boy Negro and imaginary pets she called
Michael and Madonna.[25] The November 21, 2005 medical report[26] stated Lulu had
unspecified mental retardation with psychosis but claimed significant
improvements in her behavior.

We find the petition to be without merit.

Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his
opinion on the mental sanity of a person with whom he is sufficiently
acquainted.[27] Lulu's attending physicians spoke and interacted with her. Such
occasions allowed them to thoroughly observe her behavior and conclude that her
intelligence level was below average and her mental stage below normal. Their
opinions were admissible in evidence.

Furthermore, where the sanity of a person is at issue, expert opinion is not

necessary.[28] The observations of the trial judge coupled with
evidence[29] establishing the person's state of mental sanity will suffice.[30] Here, the
trial judge was given ample opportunity to observe Lulu personally when she
testified before the RTC.

Under Section 2, Rule 92 of the Rules of Court,[31] persons who, though of sound
mind but by reason of age, disease, weak mind or other similar causes are incapable
of taking care of themselves and their property without outside aid, are considered
as incompetents who may properly be placed under guardianship. The RTC and the
CA both found that Lulu was incapable of taking care of herself and her properties
without outside aid due to her ailments and weak mind. Thus, since determining
whether or not Lulu is in fact an incompetent would require a reexamination of the
evidence presented in the courts a quo, it undoubtedly involves questions of fact.

As a general rule, this Court only resolves questions of law in a petition for review.
We only take cognizance of questions of fact in exceptional circumstances, none of
which is present in this case.[32] We thus adopt the factual findings of the RTC as
affirmed by the CA.

Similarly, we see no compelling reason to reverse the trial and appellate courts
finding as to the propriety of respondent's appointment as the judicial guardian of
Lulu.[33] We therefore affirm her appointment as such. Consequently, respondent is
tasked to care for and take full custody of Lulu, and manage her estate as well.[34]

Inasmuch as respondents appointment as the judicial guardian of Lulu was proper,

the issuance of a writ of habeas corpus in her favor was also in order.

A writ of habeas corpus extends to all cases of illegal confinement or detention or

by which the rightful custody of person is withheld from the one entitled
thereto.[35] Respondent, as the judicial guardian of Lulu, was duty-bound to care for
and protect her ward. For her to perform her obligation, respondent must have
custody of Lulu. Thus, she was entitled to a writ of habeas corpus after she was
unduly deprived of the custody of her ward.[36]

WHEREFORE, the petitions are hereby DENIED.

Petitioners are furthermore ordered to render to respondent, Lulus legal guardian,
an accurate and faithful accounting of all the properties and funds they unlawfully
appropriated for themselves from the estate of Maria Lourdes San Juan Hernandez,
within thirty (30) days from receipt of this decision. If warranted, the proper
complaints should also be filed against them for any criminal liability in connection
with the dissipation of Maria Lourdes San Juan Hernandezs estate and her unlawful
abduction from the custody of her legal guardian.

Treble costs against petitioners.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 110427 February 24, 1997

The Incompetent, CARMEN CAÑIZA, represented by her legal guardian, AMPARO

EVANGELISTA, petitioner,
vs.
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife, LEONORA
ESTRADA, respondents.

NARVASA, C.J.:

On November 20, 1989, being then ninety-four (94) years of age, Carmen Cañiza, a spinster, a
retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University
of the Philippines, was declared incompetent by judgment1 of the Regional Trial Court of Quezon
City, Branch 107,2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista.3 She
was so adjudged because of her advanced age and physical infirmities which included cataracts in
both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person
and estate.

Cañiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17,
1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC)
of Quezon City (Branch 35) to eject the spouses Pedro and Leonora Estrada from said
premises.4 The complaint was later amended to identify the incompetent Cañiza as plaintiff, suing
through her legal guardian, Amparo Evangelista.

The amended Complaint5 pertinently alleged that plaintiff Cañiza was the absolute owner of the
property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada
Spouses, their children, grandchildren and sons-in-law to temporarily reside in her house, rent-free;
that Cañiza already had urgent need of the house on account of her advanced age and failing
health, "so funds could be raised to meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Cañiza had asked the Estradas verbally and in writing to
vacate the house but they had refused to do so; and that "by the defendants' act of unlawfully
depriving plaintiff of the possession of the house in question, they . . (were) enriching themselves at
the expense of the incompetent, because, while they . . (were) saving money by not paying any rent
for the house, the incompetent . . (was) losing much money as her house could not be rented by
others." Also alleged was that the complaint was "filed within one (1) year from the date of of first
letter of demand dated February 3, 1990."

In their Answer with Counterclaim, the defendants declared that they had been living in Cañiza's
house since the 1960's; that in consideration of their faithful service they had been considered by
Cañiza as her own family, and the latter had in fact executed a holographic will on September 4,
1988 by which she "bequeathed" to the Estradas the house and lot in question.

Judgment was rendered by the MetroTC on April 13, 1992 in Cañiza's favor,6 the Estradas being
ordered to vacate the premises and pay Cañiza P5,000.00 by way of attorney's fees.

But on appeal,8 the decision was reversed by the Quezon City Regional Trial Court, Branch 96.9 By
judgment rendered on October 21, 1992, 10 the RTC held that the "action by which the issue of
defendants' possession should be resolved is accion publiciana, the obtaining factual and legal
situation . . demanding adjudication by such plenary action for recovery of possession cognizable in
the first instance by the Regional Trial Court."

Cañiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in
that attempt. In a decision 11 promulgated on June 2, 1993, the Appellate Court 12 affirmed the RTC's
judgment in toto. It ruled that (a) the proper remedy for Cañiza was indeed an accion publiciana in
the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the
subject premises as mere tenants or occupants by tolerance, they have been there as a sort of
adopted family of Carmen Cañiza," as evidenced by what purports to be the holographic will of the
plaintiff; and (b) while "said will, unless and until it has passed probate by the proper court, could not
be the basis of defendants' claim to the property, . . it is indicative of intent and desire on the part of
Carmen Cañiza that defendants are to remain and are to continue in their occupancy and
possession, so much so that Cañiza's supervening incompetency can not be said to have vested in
her guardian the right or authority to drive the defendants out." 13

Through her guardian, Cañiza came to this Court praying for reversal of the Appellate Court's
judgment. She contends in the main that the latter erred in (a) holding that she should have pursued
an accion publiciana, and not an accion interdictal; and in (b) giving much weight to "a xerox copy of
an alleged holographic will, which is irrelevant to this case." 14
In the responsive pleading filed by them on this Court's requirement, 15 the Estradas insist that the
case against them was really not one of unlawful detainer; they argue that since possession of the
house had not been obtained by them by any "contract, express or implied," as contemplated by
Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one
"terminable upon mere demand (and hence never became unlawful) within the context of the law."
Neither could the suit against them be deemed one of forcible entry, they add, because they had
been occupying the property with the prior consent of the "real owner," Carmen Cañiza, which
"occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Cañiza
is admitted to probate." They conclude, on those postulates, that it is beyond the power of Cañiza's
legal guardian to oust them from the disputed premises.

Carmen Cañiza died on March 19, 1994, 16 and her heirs — the aforementioned guardian, Amparo
Evangelista, and Ramon C. Nevado, her niece and nephew, respectively — were by this Court's
leave, substituted for her. 17

Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial
remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper,
whether or not Evangelista, as Cañiza's legal guardian had authority to bring said action; and (c)
assuming an affirmative answer to both questions, whether or not Evangelista may continue to
represent Cañiza after the latter's death.

It is axiomatic that what determines the nature of an action as well as which court has jurisdiction
over it, are the allegations of the complaint and the character of the relief sought. 18 An inquiry into
the averments of the amended complaint in the Court of origin is thus in order. 19

The amended Complaint alleges: 20

6. That the plaintiff Carmen Cañiza, is the sole and absolute owner of a house and
lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this
complaint;

xxx xxx xxx

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to
live temporarily in the house of plaintiff Carmen Cañiza, for free, out of her kindness;

10. That the plaintiff, through her legal guardian, has duly notified the defendants, for
them to vacate the said house, but the two (2) letters of demand were ignored and
the defendants refused to vacate the same. . .

11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made
another demand on the defendants for them to vacate the premises, before
Barangay Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but
after two (2) conferences, the result was negative and no settlement was reached. A
photocopy of the Certification to File Action dated July 4, 1990, issued by said
Barangay Captain is attached, marked Annex "D" and made an integral part hereof;
 12. That the plaintiff has given the defendants more than thirty (30) days to vacate
the house, but they still refused to vacate the premises, and they are up to this time
residing in the said place;

13. That this complaint is filed within one (1) year from the date of first letter of
demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants,
by her legal guardian — Amparo Evangelista;

14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the
house in question, they are enriching themselves at the expense of the
incompetent plaintiff because, while they are saving money by not paying any rent for
the house, the plaintiff is losing much money as her house could not be rented by
others;

15. That the plaintiff's health is failing and she needs the house urgently, so that
funds could be raised to meet her expenses for her support, maintenance and
medical treatment;

16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias,
Quezon City, the plaintiff, through her legal guardian, was compelled to go to court
for justice, and she has to spend P10,000.00 as attorney's fees.

Its prayer 21 is quoted below:

WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Cañiza,
represented by her legal guardian, Amparo Evangelista, respectfully prays to this
Honorable Court, to render judgment in favor of plaintiff and against the defendants
as follows:

1. To order the defendants, their children, grandchildren, sons-in-law and other

persons claiming under them, to vacate the house and premises at No. 6 1 Scout
Tobias, Quezon City, so that its possession can be restored to the plaintiff Carmen
Cañiza; and

2. To pay attorney's fees in the amount of P10,000.00;

3. To pay the costs of the suit.

In essence, the amended complaint states:

1) that the Estradas were occupying Cañiza's house by tolerance — having been
"allowed to live temporarily . . (therein) for free, out of . . (Cañiza's) kindness;"

2) that Cañiza needed the house "urgently" because her "health . . (was) failing and
she . . (needed) funds . . to meet her expenses for her support, maintenance and
medical treatment;"

3) that through her general guardian, Cañiza requested the Estradas several times,
orally and in writing, to give back possession of the house;
 4) that the Estradas refused and continue to refuse to give back the house to Cañiza,
to her continuing prejudice; and

5) that the action was filed within one (1) year from the last demand to vacate.

Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an
action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding
possession from the plaintiff is deemed sufficient, 22 and a complaint for unlawful detainer is sufficient
if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily
employing the terminology of the law. 23

The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the
Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the
possession of any land or building is unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or implied." They contend that since they
did not acquire possession of the property in question "by virtue of any contract, express or implied"
— they having been, to repeat, "allowed to live temporarily . . (therein) for free, out of . . (Cañiza's)
kindness" — in no sense could there be an "expiration or termination of . . (their) right to hold
possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie
against them, since there is no claim that they had "deprived (Cañiza) of the possession of . . (her
property) by force, intimidation, threat, strategy, or stealth.

The argument is arrant sophistry. Cañiza's act of allowing the Estradas to occupy her house, rent-
free, did not create a permanent and indefeasible right of possession in the latter's favor. Common
sense, and the most rudimentary sense of fairness clearly require that that act of liberality be
implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning
the house to Cañiza upon her demand. More than once has this Court adjudged that a person who
occupies the land of another at the latter's tolerance or permission without any contract between
them is necessarily bound by an implied promise that he will vacate upon demand, failing which a
summary action for ejectment is the proper remedy against him. 24 The situation is not much different
from that of a tenant whose lease expires but who continues in occupancy by tolerance of the owner,
in which case there is deemed to be an unlawful deprivation or withholding of possession as of the
date of the demand to vacate. 25 In other words, one whose stay is merely tolerated becomes a
deforciant illegally occupying the land or property the moment he is required to leave. 26 Thus,
in Asset Privatization Trust vs. Court of Appeals, 27 where a company, having lawfully obtained
possession of a plant upon its undertaking to buy the same, refused to return it after failing to fulfill
its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, . .
(its) continuing possession . . became illegal and the complaint for unlawful detainer filed by the
. . (plant's owner) was its proper remedy.

It may not be amiss to point out in this connection that where there had been more than one demand
to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from
the date of the last demand, 28the reason being that the lessor has the option to waive his right of
action based on previous demands and let the lessee remain meanwhile in the premises. 29 Now, the
complaint filed by Cañiza's guardian alleges that the same was "filed within one (1) year from the
date of the first letter of demand dated February 3, 1990." Although this averment is not in accord
with law because there is in fact a second letter of demand to vacate, dated February 27, 1990, the
mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within
one year from the second (last) written demand to vacate.

The Estradas' possession of the house stemmed from the owner's express permission. That
permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the
withdrawal was made through her judicial guardian, the latter being indisputably clothed with
authority to do so. Nor is it of any consequence that Carmen Cañiza had executed a will
bequeathing the disputed property to the Estradas; that circumstance did not give them the right to
stay in the premises after demand to vacate on the theory that they might in future become owners
thereof, that right of ownership being at best inchoate, no transfer of ownership being possible
unless and until the will is duly probated.

Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the
property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the
right of possession by sufferance; that had been legally ended. They could not assert any right of
possession flowing from their ownership of the house; their status as owners is dependent on the
probate of the holographic will by which the property had allegedly been bequeathed to them — an
event which still has to take place; in other words, prior to the probate of the will, any assertion of
possession by them would be premature and inefficacious.

In any case, the only issue that could legitimately be raised under the circumstances was that
involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore
incorrect to postulate that the proper remedy for Cañiza is not ejectment but accion publiciana, a
plenary action in the RTC or an action that is one for recovery of the right to possession de jure.

II

The Estradas insist that the devise of the house to them by Cañiza clearly denotes her intention that
they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo
Evangelista, from evicting them therefrom, since their ouster would be inconsistent with the ward's
will.

A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or
revoked; 30 and until admitted to probate, it has no effect whatever and no right can be claimed
thereunder, the law being quite explicit: "No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court" (ART. 838, id.). 31 An owner's intention to
confer title in the future to persons possessing property by his tolerance, is not inconsistent with the
former's taking back possession in the meantime for any reason deemed sufficient. And that in this
case there was sufficient cause for the owner's resumption of possession is apparent: she needed to
generate income from the house on account of the physical infirmities afflicting her, arising from her
extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person
and the estate of her aunt, Carmen Cañiza. Her Letters of Guardianship 32 dated December 19, 1989
clearly installed her as the "guardian over the person and properties of the incompetent CARMEN
CANIZA with full authority to take possession of the property of said incompetent in any province or
provinces in which it may be situated and to perform all other acts necessary for the management of
her properties . . " 33 By that appointment, it became Evangelista's duty to care for her aunt's person,
to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her
person in preference to relatives and friends. 34 It also became her right and duty to get possession
of, and exercise control over, Cañiza's property, both real and personal, it being recognized principle
that the ward has no right to possession or control of his property during her incompetency. 35 That
right to manage the ward's estate carries with it the right to take possession thereof and recover it
from anyone who retains it, 36 and bring and defend such actions as may be needful for this
purpose. 37
Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend
to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4,
Rule 96 of the Rules of Court, viz.:

Sec. 4. Estate to be managed frugally, and proceeds applied to maintenance of

ward. — A guardian must manage the estate of his ward frugally and without waste,
and apply the income and profits thereof, so far as maybe necessary, to the
comfortable and suitable maintenance of the ward and his family, if there be any; and
if such income and profits be insufficient for that purpose, the guardian may sell or
encumber the real estate, upon being authorized by order to do so, and apply to such
of the proceeds as may be necessary to such maintenance.

Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment action, that as
the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises
the question of ownership in his pleadings and the question of possession cannot be resolved
without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts nevertheless have the undoubted competence to resolve "the issue of
ownership . . only to determine the issue of possession." 38

III

As already stated, Carmen Cañiza passed away during the pendency of this appeal. The Estradas
thereupon moved to dismiss the petition, arguing that Cañiza's death automatically terminated the
guardianship, Amaparo Evangelista lost all authority as her judicial guardian, and ceased to have
legal personality to represent her in the present appeal. The motion is without merit.

While it is indeed well-established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward, 39 the rule affords no advantage to the
Estradas. Amparo Evangelista, as niece of Carmen Cañiza, is one of the latter's only two (2)
surviving heirs, the other being Cañiza's nephew, Ramon C. Nevado. On their motion and by
Resolution of this Court 40 of June 20, 1994, they were in fact substituted as parties in the appeal at
bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 41

Sec. 18. Death of a party. — After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and be substituted for the deceased within a period of thirty (30)
days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the deceased within a time to be specified
by the court, and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such appointment,
if defrayed by the opposing party, may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for the deceased, without requiring the
appointment of an executor or administrator and the court may appoint guardian ad
litemfor the minor heirs.

To be sure, an ejectment case survives the death of a party. Cañiza's demise did not extinguish
the desahucio suit instituted by her through her guardian. 42 That action, not being a purely personal
one, survived her death; her heirs have taken her place and now represent her interests in the
appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on
June 2, 1993 — affirming the Regional Trial Court's judgment and dismissing petitioner's petition
for certiorari — is REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the
Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and
AFFIRMED. Costs against private respondents.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.

THIRD DIVISION

[G.R. No. 132223. June 19, 2001]

BONIFACIA P. VANCIL, petitioner, vs. HELEN G. BELMES, respondent.

DECISION
SANDOVAL-GUTIERREZ, J.:

Petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. CV No.
45650, In the Matter of Guardianship of Minors Valerie Vancil and Vincent Vancil Bonifacia P.
Vancil, Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant, promulgated on July 29,
1997, and its Resolution dated December 18, 1997 denying the motion for reconsideration of the
said Decision.
The facts of the case as summarized by the Court of Appeals in its Decision are:

Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of

the United States of America who died in the said country on December 22, 1986.
During his lifetime, Reeder had two (2) children named Valerie and Vincent by his
common-law wife, Helen G. Belmes.

Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial
Court of Cebu City a guardianship proceedings over the persons and properties of
minors Valerie and Vincent docketed as Special Proceedings No. 1618-CEB. At the
time, Valerie was only 6 years old while Vincent was a 2-year old child. It is claimed
in the petition that the minors are residents of Cebu City, Philippines and have an
estate consisting of proceeds from their fathers death pension benefits with a probable
value of P100,000.00.
Finding sufficiency in form and in substance, the case was set for hearing after a 3-
consecutive-weekly publications with the Sunstar Daily.

On July 15, 1987, petitioner, Bonifacia Vancil was appointed legal and judicial
guardian over the persons and estate of Valerie Vancil and Vincent Vancil Jr.

On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an
opposition to the subject guardianship proceedings asseverating that she had already
filed a similar petition for guardianship under Special Proceedings No. 2819 before
the Regional Trial Court of Pagadian City.

Thereafter, on June 27, 1988, Helen Belmes followed her opposition with a motion for
the Removal of Guardian and Appointment of a New One, asserting that she is the
natural mother in actual custody of and exercising parental authority over the subject
minors at Maralag, Dumingag, Zamboanga del Sur where they are permanently
residing; that the petition was filed under an improper venue; and that at the time the
petition was filed Bonifacia Vancil was a resident of 140 Hurliman Court, Canon
City, Colorado, U.S.A. being a naturalized American citizen.

On October 12, 1988, after due proceedings, the trial court rejected and denied
Belmes motion to remove and/or to disqualify Bonifacia as guardian of Valerie and
Vincent Jr. and instead ordered petitioner Bonifacia Vancil to enter the office and
perform her duties as such guardian upon the posting of a bond of P50,000.00. The
subsequent attempt for a reconsideration was likewise dismissed in an Order dated
November 24, 1988.[1]

On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC order of
October 12, 1988 and dismissing Special Proceedings No. 1618-CEB.
The Court of Appeals held:

Stress should likewise be made that our Civil Code considers parents, the father, or in
the absence, the mother, as natural guardian of her minor children. The law on
parental authority under the Civil Code or P.D. 603 and now the New Family Code,
(Article 225 of the Family Code) ascribe to the same legal pronouncements. Section 7
of Rule 93 of the Revised Rules of Court confirms the designation of the parents
as ipso facto guardian of their minor children without need of a court appointment and
only for good reason may another person be named. Ironically, for the petitioner, there
is nothing on record of any reason at all why Helen Belmes, the biological mother,
should be deprived of her legal rights as natural guardian of her minor children. To
give away such privilege from Helen would be an abdication and grave violation of
the very basic fundamental tenets in civil law and the constitution on family
solidarity.[2]
 On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising the
following legal points:

1. The Court of Appeals gravely erred in ruling that the preferential right of a
parent to be appointed guardian over the persons and estate of the minors is
absolute, contrary to existing jurisprudence.

2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes,
the biological mother, should be appointed the guardian of the minors despite the
undisputed proof that under her custody, her daughter minor Valerie Vancil was
raped seven times by Oppositors live-in partner.

3. The respondent (sic) Court of Appeals gravely erred when it disqualified

petitioner Bonifacia P. Vancil to be appointed as judicial guardian over the
persons and estate of subject minors despite the fact that she has all the
qualifications and none of the disqualifications as judicial guardian, merely on the
basis of her U.S. citizenship which is clearly not a statutory requirement to
become guardian.

At the outset, let it be stressed that in her Manifestation/Motion, dated September 15, 1998,
respondent Helen Belmes stated that her daughter Valerie turned eighteen on September 2, 1998
as shown by her Birth Certificate.[3]Respondent thus prayed that this case be dismissed with respect
to Valerie, she being no longer a proper subject of guardianship proceedings. The said
Manifestation/Motion was noted by this Court in its Resolution dated November 11, 1998.
Considering that Valerie is already of major age, this petition has become moot with respect
to her. Thus, only the first and third legal points raised by petitioner should be resolved.
The basic issue for our resolution is who between the mother and grandmother of minor
Vincent should be his guardian.
We agree with the ruling of the Court of Appeals that respondent, being the natural mother of
the minor, has the preferential right over that of petitioner to be his guardian. This ruling finds
support in Article 211 of the Family Code which provides:

Art. 211. 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.

Indeed, being the natural mother of minor Vincent, respondent has the corresponding natural
and legal right to his custody. In Sagala-Eslao vs. Court of Appeals,[4] this Court held:

Of considerable importance is the rule long accepted by the courts that 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.

Petitioner contends that she is more qualified as guardian of Vincent.

Petitioners claim to be the guardian of said minor can only be realized by way of substitute
parental authority pursuant to Article 214 of the Family Code, thus:

Art. 214. In case of death, absence or unsuitability of the parents, substitute parental
authority shall be exercised by the surviving grandparent. xxx.

In Santos, Sr. vs. Court of Appeals,[5] this Court ruled:

The law vests on the father and mother joint parental authority over the persons of
their common children. In case of absence or death of either parent, the parent present
shall continue exercising parental authority. Only in case of the parents death,
absence or unsuitability may substitute parental authority be exercised by the
surviving grandparent.

Petitioner, as the surviving grandparent, can exercise substitute parental authority only in case
of death, absence or unsuitability of respondent. Considering that respondent is very much alive
and has exercised continuously parental authority over Vincent, petitioner has to prove, in asserting
her right to be the minors guardian, respondents unsuitability. Petitioner, however, has not
proffered convincing evidence showing that respondent is not suited to be the guardian of
Vincent. Petitioner merely insists that respondent is morally unfit as guardian of Valerie
considering that her (respondents) live-in partner raped Valerie several times. But Valerie, being
now of major age, is no longer a subject of this guardianship proceeding.
Even assuming that respondent is unfit as guardian of minor Vincent, still petitioner cannot
qualify as a substitute guardian. It bears stressing that she is an American citizen and a resident of
Colorado. Obviously, she will not be able to perform the responsibilities and obligations required
of a guardian. In fact, in her petition, she admitted the difficulty of discharging the duties of a
guardian by an expatriate, like her. To be sure, she will merely delegate those duties to someone
else who may not also qualify as a guardian.
Moreover, we observe that respondents allegation that petitioner has not set foot in the
Philippines since 1987 has not been controverted by her. Besides, petitioners old age and her
conviction of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal Case No. CBU-
16884[6] filed by one Danilo R. Deen, will give her a second thought of staying here. Indeed, her
coming back to this country just to fulfill the duties of a guardian to Vincent for only two years is
not certain.
Significantly, this Court has held that courts should not appoint persons as guardians who are
not within the jurisdiction of our courts for they will find it difficult to protect the
wards. In Guerrero vs. Teran,[7] this Court held:
Doa Maria Muoz y Gomez was, as above indicated, removed upon the theory that her
appointment was void because she did not reside in the Philippine Islands. There is
nothing in the law which requires the courts to appoint residents only as
administrators or guardians. However, notwithstanding the fact that there are no
statutory requirements upon this question, the courts, charged with the responsibilities
of protecting the estates of deceased persons, wards of the estate, etc., will find much
difficulty in complying with this duty by appointing administrators and guardians who
are not personally subject to their jurisdiction. Notwithstanding that there is no
statutory requirement, the courts should not consent to the appointment of persons as
administrators and guardians who are not personally subject to the jurisdiction of our
courts here.

WHEREFORE, the appealed Decision is hereby AFFIRMED, with modification in the

sense that Valerie, who has attained the age of majority, will no longer be under the guardianship
of respondent Helen Belmes.
Costs against petitioner.
SO ORDERED.
Melo, (Chairman), Panganiban, and Gonzaga-Reyes, JJ., concur.
Vitug, J., see concurring opinion.
THIRD DIVISION

[G.R. No. 154994. June 28, 2005]

JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO

RAFAELITO GUALBERTO V, respondent.

[G.R. No. 156254. June 28, 2005]

CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF

APPEALS; Hon. HELEN B. RICAFORT, Presiding Judge, Regional
Trial Court Paraaque City, Branch 260; and JOYCELYN D. PABLO-
GUALBERTO, respondents.

DECISION
PANGANIBAN, J.:
 When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The
Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years of age. There
being no sufficient proof of any compelling reason to separate the minor from
his mother, custody should remain with her.

The Case

Before us are two consolidated petitions. The first is a Petition for

Review[1] filed by Joycelyn Pablo-Gualberto under Rule 45 of the Rules of Court,
assailing the August 30, 2002 Decision[2] of the Court of Appeals (CA) in CA-
GR SP No. 70878. The assailed Decision disposed as follows:

WHEREFORE, premises considered, the Petition for Certiorari is

hereby GRANTED. The assailed Order of May 17, 2002 is hereby SET
ASIDE and ANNULLED. The custody of the child is hereby ordered returned to
[Crisanto Rafaelito G. Gualberto V].

The [respondent] court/Judge is hereby directed to consider, hear and resolve

[petitioners] motion to lift the award of custody pendente lite of the child to
[respondent].[3]

The second is a Petition for Certiorari[4] filed by Crisanto Rafaelito Gualberto

V under Rule 65 of the Rules of Court, charging the appellate court with grave
abuse of discretion for denying his Motion for Partial Reconsideration of the
August 30, 2002 Decision. The denial was contained in the CAs November 27,
2002 Resolution, which we quote:

We could not find any cogent reason why the [last part of the dispositive portion of
our Decision of August 30, 2002] should be deleted, hence, subject motion is hereby
DENIED.[5]

The Facts

The CA narrated the antecedents as follows:

x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the
Regional Trial Court of Paraaque City] a petition for declaration of nullity of his
marriage to x x x Joycelyn D. Pablo Gualberto, with an ancillary prayer for
custody pendente lite of their almost 4-year-old son, minor Rafaello (the child, for
brevity), whom [Joycelyn] allegedly took away with her from the conjugal home and
his school (Infant Toddlers Discovery Center in Paraaque City) when [she] decided to
abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2, 2002,
[RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for
custody pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite
notice, [Crisanto], a certain Col. Renato Santos, and Ms. Cherry Batistel, testified
before the x x x Judge; x x x documentary evidence [was] also presented[.] x x x [O]n
April 3, 2002, x x x [the] Judge awarded custody pendente lite of the child to
[Crisanto.] [T]he Order partly read x x x:

x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their

minor child with her to Caminawit, San Jose, Occidental Mindoro. At that time, the
minor was enrolled at B.F. Homes, Paraaque City. Despite effort[s] exerted by him, he
has failed to see his child. [Joycelyn] and the child are at present staying with the
formers step-father at the latters [residence] at Caminawit, San Jose, Occidental
Mindoro.

Renato Santos, President of United Security Logistic testified that he was

commissioned by [Crisanto] to conduct surveillance on [Joycelyn] and came up with
the conclusion that [she] is having lesbian relations with one Noreen Gay Cuidadano
in Cebu City.

The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper
of the spouses who stated that [the mother] does not care for the child as she very
often goes out of the house and on one occasion, she saw [Joycelyn] slapping the
child.

Art. 211 of the Family Code provides as follows:

The father and the mother shall jointly exercise parental authority over the persons of
their children. In the case of disagreement, the fathers decision shall prevail, unless
there is a judicial order to the contrary.

The authority of the father and mother over their children is exercised jointly. This
recognition, however, does not place her in exactly the same place as the father; her
authority is subordinated to that of the father.

In all controversies regarding the custody of minors, the sole and foremost
consideration is the physical, educational, social and moral welfare of the child, taking
into account the respective resources and social and moral situations of the contending
parties.

The Court believes that [Joycelyn] had no reason to take the child with her. Moreover,
per Sheriff returns, she is not with him at Caminawit, San Jose, Occidental Mindoro.

WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto
Rafaello P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.

x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of
custody pendente lite of the child to [Crisanto] was set but the former did not
allegedly present any evidence to support her motion. However, on May 17, 2002,
[the] Judge allegedly issued the assailed Order reversing her Order of April 3, 2002
and this time awarding custody of the child to [Joycelyn]. [T]he entire text of the
Order [is] herein reproduced, to wit:

Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and
[Joycelyns] Motion to Dismiss and the respective Oppositions thereto.

[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred
to in the caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn
Pablo Gualberto. [Joycelyn] knows she is the person referred to in the Complaint. As
a matter of fact, the body of the Complaint states her name correct[ly]. The law is
intended to facilitate and promote the administration of justice, not to hinder or delay
it. Litigation should be practicable and convenient. The error in the name of Joycelyn
does not involve public policy and has not prejudiced [her].

This case was filed on March 12, 2002. Several attempts were made to serve
summons on [Joycelyn] as shown by the Sheriffs returns. It appears that on the
4th attempt on March 21, 2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyns
mother and stepfather, respectively,] read the contents of the documents presented
after which they returned the same.

The Court believes that on that day, summons was duly served and this Court
acquired jurisdiction over [Joycelyn].

The filing of [Joycelyns annulment] case on March 26, 2002 was an after thought,
perforce the Motion to [D]ismiss should be denied.

The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years
old. Under Article 213 of the Family Code, he shall not be separated from his mother
unless the Court finds compelling reasons to order otherwise. The Court finds the
reason stated by [Crisanto] not [to] be compelling reasons. The father should however
be entitled to spend time with the minor. These do not appear compelling reasons to
deprive him of the company of his child.

When [Joycelyn] appeared before this Court, she stated that she has no objection to
the father visiting the child even everyday provided it is in Mindoro.

The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P.
Gualberto, with [the] right of [Crisanto] to have the child with him every other
weekend.

WHEREFORE:

1. The [M]otion to Dismiss is hereby DENIED;

2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto
with the right of the father, x x x [Crisanto], to have him every other
week-end.
3. Parties are admonished not to use any other agencies of the government like
the CIDG to interfere in this case and to harass the parties.[6]
In a Petition for Certiorari[7] before the CA, Crisanto charged the Regional
Trial Court (Branch 260) of Paraaque City with grave abuse of discretion for
issuing its aforequoted May 17, 2002 Order. He alleged that this Order
superseded, without any factual or legal basis, the still valid and subsisting April
3, 2002 Order awarding him custody pendente lite of his minor son; and that it
violated Section 14 of Article VII of the 1987 Constitution.

Ruling of the Court of Appeals

Partly in Crisantos favor, the CA ruled that grave abuse of discretion had
been committed by the trial court in reversing the latter courts previous Order
dated April 3, 2002, by issuing the assailed May 17, 2002 Order. The appellate
court explained that the only incident to resolve was Joycelyns Motion to
Dismiss, not the issuance of the earlier Order. According to the CA, the prior
Order awarding provisional custody to the father should prevail, not only
because it was issued after a hearing, but also because the trial court did not
resolve the correct incident in the later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded
from considering and resolving Joycelyns Motion to lift the award of
custody pendente lite to Crisanto, as that Motion had yet to be properly
considered and ruled upon. However, it directed that the child be turned over to
him until the issue was resolved.
Hence, these Petitions.[8]

Issues

In GR No. 154994, Petitioner Joycelyn submits these issues for our

consideration:

1. Whether or not the Respondent Court of Appeals, when it awarded the custody of
the child to the father, violated Art. 213 of the Family Code, which mandates that no
child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.

2. Is it Article 213 or Article 211 which applies in this case involving four-year old
Rafaello?[9]

On the other hand, Crisanto raises the following issues:

A. Did Respondent Court commit grave abuse of discretion amounting to or in excess

of jurisdiction when, in its August 30, 2002 Decision, it ordered respondent
court/Judge to consider, hear and resolve the motion to lift award of custody pendente
lite of the child to petitioner and x x x denied the motion for reconsideration thereof in
its November 27, 2002 Resolution, considering that: (1) there is no such motion ever,
then or now pending, with the court a quo; (2) the November 27, 2002 Resolution is
unconstitutional; and (3) the April 3, 2002 Order of respondent Judge, the validity of
which has been upheld in the August 30, 2002 Decision of the respondent Court, has
become final and executory; and

B. Ought not the ancillary remedies [o]f habeas corpus, because the whereabouts,
physical and mental condition of the illegally detained Minor Rafaello is now
unknown to petitioner and preliminary mandatory injunction with urgent prayer for
immediate issuance of preliminary [injunction], petitioner having a clear and settled
right to custody of Minor Rafaello which has been violated and still is being
continuously violated by [petitioner Joycelyn], be granted by this Honorable Court? [10]

Being interrelated, the procedural challenges and the substantive issues in

the two Petitions will be addressed jointly.
 The Courts Ruling

There is merit in the Petition in GR No. 154994, but not in GR No. 156254.

Preliminary Issue:
The Alleged Prematurity
of the Petition in GR No. 154994

Before going into the merits of the present controversy, the Court shall first
dispose of a threshold issue. In GR No. 154994, therein Respondent Crisanto
contends that the Petition for Review was filed beyond the deadline (October
24, 2002) allowed by the Rules of Court and by this Court. He claims that
Registry Bill No. 88 shows that the Petition was sent by speed mail, only on
November 4, 2002. Furthermore, he assails the Petition for its prematurity,
since his Motion for Partial Reconsideration of the August 30, 2002 CA Decision
was still pending before the appellate court. Thus, he argues that the Supreme
Court has no jurisdiction over Joycelyns Petition.

Timeliness of the Petition

The manner of filing and service Joycelyns Petition by mail is governed by

Sections 3 and 7 of Rule 13 of the Rules of Court, which we quote:

SEC. 3. Manner of filing. The filing of pleadings, appearances, motions, notices,

orders, judgments and all other papers shall be made by presenting the original copies
thereof, plainly indicated as such personally to the clerk of court or by sending them
by registered mail. xxx In the second case, the date of mailing of motions, pleadings
and other papers or payments or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as the date of their filing,
payment, or deposit in court. The envelope shall be attached to the records of the case.

xxxxxxxxx

SEC. 7. Service by mail. Service by registered mail shall be made by depositing the
copy in the office, in a sealed envelope, plainly addressed to the party or his counsel at
his office, if known, otherwise at his residence, if known, with postage fully pre-paid,
and with instructions to the postmaster to return the mail to the sender after ten (10)
days if undelivered. If no registry service is available in the locality of either the
sender of the addressee, service may be done by ordinary mail. (Italics supplied)
 The records disclose that Joycelyn received the CAs August 30, 2002
Decision on September 9, 2002. On September 17, she filed before this Court
a Motion for a 30-day extension of time to file a petition for review on certiorari.
This Motion was granted,[11] and the deadline was thus extended until October
24, 2002.
A further perusal of the records reveals that copies of the Petition were sent
to this Court and to the parties by registered mail[12] at the Bian, Laguna Post
Office on October 24, 2002. This is the date clearly stamped on the face of the
envelope[13] and attested to in the Affidavit of Service[14] accompanying the
Petition. Petitioner Joycelyn explained that the filing and the service had been
made by registered mail due to the volume of delivery assignments and the lack
of a regular messenger.[15]
The Petition is, therefore, considered to have been filed on October 24,
2002, its mailing date as shown by the post office stamp on the envelope. The
last sentence of Section 3 of Rule 13 of the Rules provides that the date of filing
may be shown either by the post office stamp on the envelope or by the registry
receipt. Proof of its filing, on the other hand, is shown by the existence of the
petition in the record, pursuant to Section 12 of Rule 13.[16]
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows
the date November 2, 2002, merely discloses when the mail matters received
by the Bian Post Office on October 24, 2002, were dispatched or sent to the
Central Mail Exchange for distribution to their final destinations.[17] The Registry
Bill does not reflect the actual mailing date. Instead, it is the postal Registration
Book[18] that shows the list of mail matters that have been registered for mailing
on a particular day, along with the names of the senders and the addressees.
That book shows that Registry Receipt Nos. 2832-A and 2832-B, pertaining to
the mailed matters for the Supreme Court, were issued on October 24, 2002.

Prematurity of the Petition

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out

that his Urgent Motion for Partial Reconsideration[19] was still awaiting resolution
by the CA when she filed her Petition before this Court on October 24, 2002.
The CA ruled on the Motion only on November 27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on
September 12, 2002. Thus, on September 17, 2002, when Joycelyn filed her
Motion for Extension of Time to file her Petition for Review, she might have still
been unaware that he had moved for a partial reconsideration of the August 20,
2002 CA Decision. Nevertheless, upon being notified of the filing of his Motion,
she should have manifested that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns
lapse may be excused in the interest of resolving the substantive issues raised
by the parties.

First Issue:
Grave Abuse of Discretion

In GR No. 156254, Crisanto submits that the CA gravely abused its

discretion when it ordered the trial court judge to consider, hear and resolve the
motion to lift the award of custody pendente lite without any proper motion by
Joycelyn and after the April 3, 2002 Order of the trial court had become final
and executory. The CA is also charged with grave abuse of discretion for
denying his Motion for Partial Reconsideration without stating the reasons for
the denial, allegedly in contravention of Section 1 of Rule 36 of the Rules of
Court.

The Order to Hear the Motion

to Lift the Award of Custody
Pendente Lite Proper

To begin with, grave abuse of discretion is committed when an act is 1) done

contrary to the Constitution, the law or jurisprudence;[20] or 2) executed
whimsically or arbitrarily in a manner so patent and so gross as to amount to an
evasion of a positive duty, or to a virtual refusal to perform the duty
enjoined.[21] What constitutes grave abuse of discretion is such capricious and
arbitrary exercise of judgment as that which is equivalent, in the eyes of the law,
to lack of jurisdiction.[22]
On the basis of these criteria, we hold that the CA did not commit grave
abuse of discretion.
First, there can be no question that a court of competent jurisdiction is
vested with the authority to resolve even unassigned issues. It can do so when
such a step is indispensable or necessary to a just resolution of issues raised
in a particular pleading or when the unassigned issues are inextricably linked
or germane to those that have been pleaded.[23] This truism applies with more
force when the relief granted has been specifically prayed for, as in this case.
 Explicit in the Motion to Dismiss[24] filed by Joycelyn before the RTC is her
ancillary prayer for the court to lift and set aside its April 3, 2002 Order awarding
to Crisanto custody pendente lite of their minor son. Indeed, the necessary
consequence of granting her Motion to Dismiss would have been the setting
aside of the Order awarding Crisanto provisional custody of the child. Besides,
even if the Motion to Dismiss was denied -- as indeed it was -- the trial court, in
its discretion and if warranted, could still have granted the ancillary prayer as
an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of
the provisional nature of the April 3, 2002 Order. Under Rule 38[25] of the Rules
of Court, verification is required only when relief is sought from a final and
executory Order. Accordingly, the court may set aside its own orders even
without a proper motion, whenever such action is warranted by the Rules and
to prevent a miscarriage of justice.[26]

Denial of the Motion for

Reconsideration Proper

Second, the requirement in Section 1 of Rule 36 (for judges to state clearly

and distinctly the reasons for their dispositions) refers only to decisions and final
orders on the merits, not to those resolving incidental matters.[27] The provision
reads:

SECTION 1. Rendition of judgments and final orders. A judgment or final order

determining the merits of the case shall be in writing personally and directly prepared
by the judge, stating clearly and distinctly the facts and the law on which it is based,
signed by him, and filed with the clerk of court. (Italics supplied)

Here, the declaration of the nullity of marriage is the subject of the main
case, in which the issue of custody pendente lite is an incident. That custody
and support of common children may be ruled upon by the court while the action
is pending is provided in Article 49 of the Family Code, which we quote :

Art. 49. During the pendency of the action[28] and in the absence of adequate
provisions in a written agreement between the spouses, the Court shall provide for the
support of the spouses and the custody and support of their common children. x x x.

Clearly then, the requirement cited by Crisanto is inapplicable. In any event,

in its questioned Resolution, the CA clearly stated that it could not find any
cogent reason to reconsider and set aside the assailed portion of its August 30,
2002 Decision.

The April 3, 2002 Order Not

Final and Executory

Third, the award of temporary custody, as the term implies, is provisional

and subject to change as circumstances may warrant. In this connection, there
is no need for a lengthy discussion of the alleged finality of the April 3, 2002
RTC Order granting Crisanto temporary custody of his son. For that matter,
even the award of child custody after a judgment on a marriage annulment is
not permanent; it may be reexamined and adjusted if and when the parent who
was given custody becomes unfit.[29]

Second Issue:
Custody of a Minor Child

When love is lost between spouses and the marriage inevitably results in
separation, the bitterest tussle is often over the custody of their children. The
Court is now tasked to settle the opposing claims of the parents for
custody pendente lite of their child who is less than seven years old.[30] On the
one hand, the mother insists that, based on Article 213 of the Family Code, her
minor child cannot be separated from her. On the other hand, the father argues
that she is unfit to take care of their son; hence, for compelling reasons, he must
be awarded custody of the child.
Article 213 of the Family Code[31] provides:

ART. 213. In case of separation of the parents, parental authority shall be exercised by
the parent designated by the court. The court shall take into account all relevant
considerations, especially the choice of the child over seven years of age, unless the
parent chosen is unfit.

No child under seven years of age shall be separated from the mother, unless the court
finds compelling reasons to order otherwise.

This Court has held that when the parents are separated, legally or
otherwise, the foregoing provision governs the custody of their child.[32] Article
213 takes its bearing from Article 363 of the Civil Code, which reads:
Art. 363. In all questions on the care, custody, education and property of children, the
latters welfare shall be paramount. No mother shall be separated from her child under
seven years of age, unless the court finds compelling reasons for such measure.(Italics
supplied)

The general rule that children under seven years of age shall not be
separated from their mother finds its raison detre in the basic need of minor
children for their mothers loving care.[33] In explaining the rationale for Article
363 of the Civil Code, the Code Commission stressed thus:

The general rule is recommended in order to avoid a tragedy where a mother has seen
her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be for
compelling reasons for the good of the child: those cases must indeed be rare, if the
mothers heart is not to be unduly hurt. If she has erred, as in cases of adultery, the
penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient
punishment for her. Moreover, her moral dereliction will not have any effect upon the
baby who is as yet unable to understand the situation. (Report of the Code
Commission, p. 12)

A similar provision is embodied in Article 8 of the Child and Youth Welfare

Code (Presidential Decree No. 603).[34] Article 17 of the same Code is even
more explicit in providing for the childs custody under various circumstances,
specifically in case the parents are separated. It clearly mandates that no child
under five years of age shall be separated from his mother, unless the court
finds compelling reasons to do so. The provision is reproduced in its entirety as
follows:

Art. 17. Joint Parental Authority. The father and the mother shall exercise jointly just
and reasonable parental authority and responsibility over their legitimate or adopted
children. In case of disagreement, the fathers decision shall prevail unless there is a
judicial order to the contrary.

In case of the absence or death of either parent, the present or surviving parent shall
continue to exercise parental authority over such children, unless in case of the
surviving parents remarriage, the court for justifiable reasons, appoints another person
as guardian.

In case of separation of his parents, no child under five years of age shall be
separated from his mother, unless the court finds compelling reasons to do so. (Italics
supplied)
 The above mandates reverberate in Articles 211, 212 and 213 of the Family
Code. It is unmistakable from the language of these provisions that Article
211[35] was derived from the first sentence of the aforequoted Article 17; Article
212,[36] from the second sentence; and Article 213,[37] save for a few additions,
from the third sentence. It should be noted that the Family Code has reverted
to the Civil Code provision mandating that a child below seven years should not
be separated from the mother.[38]

Mandatory Character
of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,[39] the Court held that the use of shall in
Article 363 of the Civil Code and the observations made by the Code
Commission underscore the mandatory character of the word.[40] Holding in that
case that it was a mistake to deprive the mother of custody of her two children,
both then below the age of seven, the Court stressed:

[Article 363] prohibits in no uncertain terms the separation of a mother and her child
below seven years, unless such a separation is grounded upon compelling reasons as
determined by a court.[41]

In like manner, the word shall in Article 213 of the Family Code and Section
6 of Rule 99 of the Rules of Court has been held to connote a mandatory
[42]

character.[43] Article 213 and Rule 99 similarly contemplate a situation in which

the parents of the minor are married to each other, but are separated by virtue
of either a decree of legal separation or a de facto separation.[44] In the present
case, the parents are living separately as a matter of fact.

The Best Interest of the Child

a Primary Consideration

The Convention on the Rights of the Child provides that [i]n 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.[45]
The principle of best interest of the child pervades Philippine cases involving
adoption, guardianship, support, personal status, minors in conflict with the law,
and child custody. In these cases, it has long been recognized that in choosing
the parent to whom custody is given, the welfare of the minors should always
be the paramount consideration.[46] Courts are mandated to take into account
all relevant circumstances that would have a bearing on the childrens well-being
and development. Aside from the material resources and the moral and social
situations of each parent, other factors may also be considered to ascertain
which one has the capability to attend to the physical, educational, social and
moral welfare of the children.[47] Among these factors are the previous care and
devotion shown by each of the parents; their religious background, moral
uprightness, home environment and time availability; as well as the childrens
emotional and educational needs

Tender-Age
Presumption

As pointed out earlier, there is express statutory recognition that, as a

general rule, a mother is to be preferred in awarding custody of children under
the age of seven. The caveat in Article 213 of the Family Code cannot be
ignored, except when the court finds cause to order otherwise.[48]
The so-called tender-age presumption under Article 213 of the Family Code
may be overcome only by compelling evidence of the mothers unfitness. The
mother has been declared unsuitable to have custody of her children in one or
more of the following instances: neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction, maltreatment of the child,
insanity or affliction with a communicable disease.[49]
Here, Crisanto cites immorality due to alleged lesbian relations as the
compelling reason to deprive Joycelyn of custody. It has indeed been held that
under certain circumstances, the mothers immoral conduct may constitute a
compelling reason to deprive her of custody.[50]
But sexual preference or moral laxity alone does not prove parental neglect
or incompetence. Not even the fact that a mother is a prostitute or has been
unfaithful to her husband would render her unfit to have custody of her minor
child.[51] To deprive the wife of custody, the husband must clearly establish that
her moral lapses have had an adverse effect on the welfare of the child or have
distracted the offending spouse from exercising proper parental care.[52]
To this effect did the Court rule in Unson III v. Navarro,[53] wherein the mother
was openly living with her brother-in-law, the childs uncle. Under that
circumstance, the Court deemed it in the nine-year-old childs best interest to
free her from the obviously unwholesome, not to say immoral influence, that the
situation in which the mother ha[d] placed herself might create in [the childs]
moral and social outlook.[54]
In Espiritu v. CA,[55] the Court took into account psychological and case
study reports on the child, whose feelings of insecurity and anxiety had been
traced to strong conflicts with the mother. To the psychologist the child
revealed, among other things, that the latter was disturbed upon seeing her
mother hugging and kissing a bad man who lived in their house and worked for
her father. The Court held that the illicit or immoral activities of the mother had
already caused the child emotional disturbances, personality conflicts, and
exposure to conflicting moral values x x x.
Based on the above jurisprudence, it is therefore not enough for Crisanto to
show merely that Joycelyn was a lesbian. He must also demonstrate that she
carried on her purported relationship with a person of the same sex in the
presence of their son or under circumstances not conducive to the childs proper
moral development. Such a fact has not been shown here. There is no evidence
that the son was exposed to the mothers alleged sexual proclivities or that his
proper moral and psychological development suffered as a result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-
Ricafort, ruled in her May 17, 2002 Order that she had found the reason stated
by [Crisanto] not to be compelling[56] as to suffice as a ground for separating the
child from his mother. The judge made this conclusion after personally
observing the two of them, both in the courtroom and in her chambers on April
16, 2002, and after a chance to talk to the boy and to observe him firsthand.
This assessment, based on her unique opportunity to witness the childs
behavior in the presence of each parent, should carry more weight than a mere
reliance on the records. All told, no compelling reason has been adduced to
wrench the child from the mothers custody.

No Grant of Habeas Corpus

and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her
custody, the writ of habeas corpus and the preliminary mandatory injunction
prayed for by Crisanto have no leg to stand on. A writ of habeas corpus may be
issued only when the rightful custody of any person is withheld from the person
entitled thereto,[57] a situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction
cannot be granted, because Crisantos right to custody has not been proven to
be clear and unmistakable.[58] Unlike an ordinary preliminary injunction, the writ
of preliminary mandatory injunction is more cautiously regarded, since the latter
requires the performance of a particular act that tends to go beyond the
maintenance of the status quo.[59] Besides, such an injunction would serve no
purpose, now that the case has been decided on its merits.[60]
WHEREFORE, the Petition in GR No. 154994 is GRANTED. The assailed
Decision of the Court of Appeals is hereby REVERSED and the May 17, 2002
Regional Trial Court Order REINSTATED. The Petition in GR No. 156254
is DISMISSED. Costs against Petitioner Crisanto Rafaelito Gualberto V.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales, and Garcia, JJ., concur.

SECOND DIVISION

[G.R. No. 122906. February 7, 2002]

DINAH B. TONOG, petitioner, vs. COURT OF APPEALS and EDGAR V.

DAGUIMOL, respondents.

DECISION
DE LEON, JR., J.:

Before us is a petition for review on certiorari seeking the reversal of two (2)
Resolutions dated August 29, 1995 and November 29, 1995 issued by the former Second
Division[1] of the Court of Appeals in CA-G.R. SP No. 35971. The first resolution modified
the appellate courts decision promulgated in the said case, and granted custody of the
minor, Gardin Faith Belarde Tonog, to private respondent. The second resolution denied
petitioners motion for reconsideration.
The pertinent facts are:
On September 23, 1989, petitioner Dinah B. Tonog gave birth[2] to Gardin Faith
Belarde Tonog, her illegitimate daughter with private respondent Edgar V.
Daguimol. Petitioner was then a nursing student while private respondent was a licensed
physician. They cohabited for a time and lived with private respondents parents and sister
in the latters house in Quezon City where the infant, Gardin Faith, was a welcome addition
to the family.
 A year after the birth of Gardin Faith, petitioner left for the United States of America
where she found work as a registered nurse. Gardin Faith was left in the care of her father
(private respondent herein) and paternal grandparents.
On January 10, 1992, private respondent filed a petition for guardianship over Gardin
Faith, docketed as Sp. Proc. No. Q-92-11053, in the Regional Trial Court of Quezon City.
On March 9, 1992, the trial court rendered judgment appointing private respondent as
legal guardian of the minor, Gardin Faith.
Petitioner avers that she learned of the judgment of the trial court rendered in Sp.
Proc. No. Q-92-11053 only on April 1, 1992. Accordingly, on May 27, 1992, she filed a
petition for relief from judgment. In a resolution dated September 15, 1992, the trial court
set aside its original judgment and allowed petitioner to file her opposition to private
respondents petition. The latter, in turn, filed a motion for reconsideration.In a related
incident, petitioner filed on October 4, 1993, a motion to remand custody of Gardin Faith
to her.
On November 18, 1994, the trial court issued a resolution denying private
respondents motion for reconsideration and granting petitioners motion for custody of
their child, Gardin. Petitioner moved for immediate execution of the said resolution.
Due to the adverse turn of events, private respondent filed a petition for certiorari
before the Court of Appeals, docketed as CA-G.R. SP No. 35971, questioning the
actuations of the trial court. On March 21, 1995, the appellate court dismissed the petition
on the ground of lack of merit. However, after private respondent filed a motion for
reconsideration, the appellate court issued a Resolution[3] dated August 29,
1995 modifying its decision, as follows:

Although We do find the Petition dismissible, insofar as it assails the September 15,
1993 Resolution of the respondent Court, giving due course to private respondents
Petition for Relief from Judgment, and the November 18, 1995 Resolution denying his
Motion for Reconsideration, We discern a good ground to let physical custody of
subject child, Gardin Faith Belarde Tonog, continue under the petitioner, with whom
the said child had been living, since birth.

While it is understandable for private respondent, as mother, to assert and seek

enforcement of her legal and natural rights as the natural guardian of her child, the
emotional and psychological effects upon the latter of a change in custody should be
considered. To be sure, transfer of custody of the child from petitioner to private
respondent will be painful for the child who, all her life, has been in the company of
petitioner and her paternal grandparents.

Now, inasmuch as the issue of guardianship and custody over the same child is still
pending determination before the respondent Court, the possibility of petitioners
appointment as the guardian cannot be discounted. It would certainly wreak havoc on
the childs psychological make-up to give her to the custody of private respondent,
only to return her to petitioner should the latter prevail in the main case. Subjecting
the child to emotional seesaw should be avoided. It is thus more prudent to let
physical custody of the child in question be with petitioner until the matter of her
custody shall have been determined by final judgment.

WHEREFORE, the Decision, promulgated here on March 21, 1995 is accordingly

MODIFIED, and status quo with respect to the physical custody of the child, Gardin
Faith Belarde Tonog, is ordered. It is understood that the latter shall remain with
petitioner until otherwise adjudged.

Petitioner thus interposed the instant appeal after the appellate court denied her
motion for reconsideration in its Resolution[4] dated November 29, 1995.
Petitioner contends that she is entitled to the custody of the minor, Gardin Faith, as a
matter of law. First, as the mother of Gardin Faith, the law confers parental authority upon
her as the mother of the illegitimate minor. Second, Gardin Faith cannot be separated
from her since she had not, as of then, attained the age of seven. Employing simple
arithmetic however, it appears that Gardin Faith is now twelve years old.
In custody disputes, it is axiomatic that the paramount criterion is the welfare and
well-being of the child.[5] In arriving at its decision as to whom custody of the minor should
be given, the court must take into account the respective resources and social and moral
situations of the contending parents.[6]
In turn, the parents right to custody over their children is enshrined in law. Article 220
of the Family Code thus provides that parents and individuals exercising parental
authority over their unemancipated children are entitled, among other rights, to keep them
in their company. In legal contemplation, the true nature of the parent-child relationship
encompasses much more than the implication of ascendancy of one and obedience by
the other. We explained this in Santos, Sr. v. Court of Appeals: [7]

The right of custody accorded to parents springs from the exercise of parental
authority. Parental authority or patria potestas in Roman Law is the juridical
institution whereby parents rightfully assume control and protection of their
unemancipated children to the extent required by the latters needs. It is a mass of
rights and obligations which the law grants to parents for the purpose of the childrens
physical preservation and development, as well as the cultivation of their intellect and
the education of their heart and senses. As regards parental authority, there is no
power, but a task; no complex of rights, but a sum of duties; no sovereignty but a
sacred trust for the welfare of the minor.

Parental authority and responsibility are inalienable and may not be transferred or
renounced except in cases authorized by law. The right attached to parental authority,
being purely personal, the law allows a waiver of parental authority only in cases of
adoption, guardianship and surrender to a childrens home or an orphan
institution. When a parent entrusts the custody of a minor to another, such as a friend
or godfather, even in a document, what is given is merely temporary custody and it
does not constitute a renunciation of parental authority. Even if a definite renunciation
is manifest, the law still disallows the same.

Statute sets certain rules to assist the court in making an informed decision. Insofar
as illegitimate children are concerned, Article 176 of the Family Code provides that
illegitimate children shall be under the parental authority of their mother. Likewise, Article
213 of the Family Code provides that [n]o child under seven years of age shall be
separated from the mother, unless the court finds compelling reasons to order
otherwise. It will be observed that in both provisions, a strong bias is created in favor of
the mother. This is specially evident in Article 213 where it may be said that the law
presumes that the mother is the best custodian. As explained by the Code Commission:

The general rule is recommended in order to avoid many a tragedy where a mother
has seen her baby torn away from her. No man can sound the deep sorrows of a
mother who is deprived of her child of tender age. The exception allowed by the rule
has to be for compelling reasons for the good of the child; those cases must indeed be
rare, if the mothers heart is not to be unduly hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the divorce decree (relative divorce) will
ordinarily be sufficient punishment for her. Moreover, moral dereliction will not have
any effect upon the baby who is as yet unable to understand her situation. [8]

This is not intended, however, to denigrate the important role fathers play in the
upbringing of their children. Indeed, we have recognized that both parents complement
each other in giving nurture and providing that holistic care which takes into account the
physical, emotional, psychological, mental, social and spiritual needs of the child.[9] Neither
does the law nor jurisprudence intend to downplay a fathers sense of loss when he is
separated from his child:

While the bonds between a mother and her small child are special in nature, either
parent, whether father or mother, is bound to suffer agony and pain if deprived of
custody. One cannot say that his or her suffering is greater than that of the other
parent. It is not so much the suffering, pride, and other feelings of either parent but the
welfare of the child which is the paramount consideration. [10]

For these reasons, even a mother may be deprived of the custody of her child who is
below seven years of age for compelling reasons. Instances of unsuitability are neglect,
abandonment, unemployment and immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity, and affliction with a communicable illness.[11] If older
than seven years of age, a child is allowed to state his preference, but the court is not
bound by that choice. The court may exercise its discretion by disregarding the childs
preference should the parent chosen be found to be unfit, in which instance, custody may
be given to the other parent, or even to a third person. [12]
 In the case at bar, we are being asked to rule on the temporary custody of the minor,
Gardin Faith, since it appears that the proceedings for guardianship before the trial court
have not been terminated, and no pronouncement has been made as to who should have
final custody of the minor. Bearing in mind that the welfare of the said minor as the
controlling factor, we find that the appellate court did not err in allowing her father (private
respondent herein) to retain in the meantime parental custody over her. Meanwhile, the
child should not be wrenched from her familiar surroundings, and thrust into a strange
environment away from the people and places to which she had apparently formed an
attachment.
Moreover, whether a mother is a fit parent for her child is a question of fact to be
properly entertained in the special proceedings before the trial court. [13] It should be
recalled that in a petition for review on certiorari, we rule only on questions of law. We are
not in the best position to assess the parties respective merits vis--vis their opposing
claims for custody. Yet another sound reason is that inasmuch as the age of the minor,
Gardin Faith, has now exceeded the statutory bar of seven years, a fortiori, her preference
and opinion must first be sought in the choice of which parent should have the custody
over her person.
A word of caution: our pronouncement here should not be interpreted to imply a
preference toward the father (herein private respondent) relative to the final custody of
the minor, Gardin Faith. Nor should it be taken to mean as a statement against petitioners
fitness to have final custody of her said minor daughter. It shall be only understood that,
for the present and until finally adjudged, temporary custody of the subject minor should
remain with her father, the private respondent herein pending final judgment of the trial
court in Sp. Proc. No. Q-92-11053.
WHEREFORE, the instant petition is hereby DENIED. The trial court is directed to
immediately proceed with hearing Sp. Proc. No. Q-92-11053 upon notice of this
decision. No pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, and Buena, JJ., concur.
Quisumbing, J., abroad, on official leave.