PATRICIO vs.

DARIO This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside the Resolution of the Court of Appeals dated December 9, 2005 [1] in CA-G.R. CV No. 80680, which dismissed the complaint for partition filed by petitioner for being contrary to law and evidence. On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife, petitioner Perla G. Patricio and their two sons, Marcelino Marc Dario and private respondent Marcelino G. Dario III. Among the properties he left was a parcel of land with a residential house and a preschool building built thereon situated at 91 Oxford corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced by Transfer Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City Registry of Deeds, covering an area of seven hundred fifty five (755) square meters, more or less. [2] On August 10, 1987, petitioner, Marcelino Marc and private respondent, extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT No. RT-30731 (175992) was cancelled and TCT No. R213963 was issued in the names of petitioner, private respondent and Marcelino Marc. Thereafter, petitioner and Marcelino Marc formally advised private respondent of their intention to partition the subject property and terminate the co-ownership. Private respondent refused to partition the property hence petitioner and Marcelino Marc instituted an action for partition before the Regional Trial Court of Quezon City which was docketed as Civil Case No. Q-01-44038 and raffled to Branch 78. On October 3, 2002, [3] the trial court ordered the partition of the subject property in the following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the property by public auction wherein all parties concerned may put up their bids. In case of failure, the subject property should be distributed accordingly in the aforestated manner. [4] Private respondent filed a motion for reconsideration which was denied by the trial court on August 11, 2003, [5] hence he appealed before the Court of Appeals, which denied the same on October 19, 2005. However, upon a motion for reconsideration filed by private respondent on December 9, 2005, the appellate court partially reconsidered the October 19, 2005 Decision. In the now assailed Resolution, the Court of Appeals dismissed the complaint for partition filed by petitioner and Marcelino Marc for lack of merit. It held that the family home should continue despite the death of one or both spouses as long as there is a minor beneficiary thereof. The heirs could not partition the property unless the court found compelling reasons to rule otherwise. The appellate court also held that the minor son of private respondent, who is a grandson of spouses Marcelino V. Dario and Perla G. Patricio, was a minor beneficiary of the family home. [6] Hence, the instant petition on the following issues: I. THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005 WHICH AFFIRMED IN TOTO THE DECISION OF THE TRIAL COURT DATED 03 OCTOBER 2002 GRANTING THE PARTITION AND SALE BY PUBLIC AUCTION OF THE SUBJECT PROPERTY. II. COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154 OF THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE 494 IN RELATION TO ARTICLES 495 AND 498 OF THE NEW CIVIL CODE ON CO-OWNERSHIP. [7] The sole issue is whether partition of the family home is proper where one of the co-owners refuse to accede to such partition on the ground that a minor beneficiary still resides in the said home. Private respondent claims that the subject property which is the family home duly constituted by spouses Marcelino and Perla Dario cannot be partitioned while a minor beneficiary is still living therein namely, his 12-year-old son, who is the grandson of the decedent. He argues that as long as the minor is living in the family home, the same continues as such until the beneficiary becomes of age. Private respondent insists that even after the expiration of ten years from the date of death of Marcelino on July 5, 1987, i.e., even after July 1997, the subject property continues to be considered as the family home considering that his minor son, Marcelino Lorenzo R. Dario IV, who is a beneficiary of the said family home, still resides in the premises. On the other hand, petitioner alleges that the subject property remained as a family home of the surviving heirs of the late Marcelino V. Dario only up to July 5, 1997, which was the 10th year from the date of death of the decedent. Petitioner argues that the brothers Marcelino Marc and private respondent Marcelino III were already of age at the time of the death of their father, [8] hence there is no more minor beneficiary to speak of. The family home is a sacred symbol of family love and is the repository of cherished memories that last during ones lifetime. [9] It is the dwelling house where husband and wife, or by an unmarried head of a family, reside, including the land on which it is situated. [10] It is constituted jointly by the husband and the wife or by an unmarried head of a family. [11] The family home is deemed constituted from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. [12] The law explicitly provides that occupancy of the family home either by the owner thereof or by any of its beneficiaries must be actual. That which is actual is something real, or actually existing, as opposed to something merely possible, or to something which is presumptive or constructive. Actual occupancy, however, need not be by the owner of the house specifically. Rather, the property may be occupied by the beneficiaries enumerated in Article 154 of the Family Code, which may include the in-laws where the family home is constituted jointly by the husband and wife. But the law definitely excludes maids and overseers. They are not the beneficiaries contemplated by the Code. [13] Article 154 of the Family Code enumerates who are the beneficiaries of a family home: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. To be a beneficiary of the family home, three requisites must concur: (1) they must be among the relationships enumerated in Art. 154 of the Family Code; (2) they live in the family home; and (3) they are dependent for legal support upon the head of the family. Moreover, Article 159 of the Family Code provides that the family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of 10 years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. Article 159 of the Family Code applies in situations where death occurs to persons who constituted the family home. Dr. Arturo M. Tolentino comments on the effect of death of one or both spouses or the unmarried head of a family on the continuing existence of the family home: Upon the death of the spouses or the unmarried family head who constituted the family home, or of the spouse who consented to the constitution of his or her separate property as family home, the property will remain as family home for ten years or for as long as there is a minor beneficiary living in it. If there is no more beneficiary left at the time of death, we believe the family home will be dissolved or cease, because there is no more reason for its existence. If there are beneficiaries who survive living in the family home, it will continue for ten years, unless at the expiration of the ten years, there is still a minor beneficiary, in which case the family home continues until that beneficiary becomes of age. After these periods lapse, the property may be partitioned by the heirs. May the heirs who are beneficiaries of the family home keep it intact by not partitioning the property after the period provided by this article? We believe that although the heirs will continue in ownership by not partitioning the property, it will cease to be a family home. [14] (Emphasis supplied) Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner: The family home shall continue to exist despite the death of one or both spouses or of the unmarried head of the family. Thereafter, the length of its continued existence is dependent upon whether there is still a minorbeneficiary residing therein. For as long as there is one beneficiary even if the head of the family or both spouses are already dead, the family home will continue to exist (Arts. 153, 159). If there is no minor-beneficiary, it will subsist until 10 years and within this period, the heirs cannot partition the same except when there are compelling reasons which will justify the

partition. This rule applies regardless of whoever owns the property or who constituted the family home. [15] (Emphasis supplied) The rule in Article 159 of the Family Code may thus be expressed in this wise: If there are beneficiaries who survive and are living in the family home, it will continue for 10 years, unless at the expiration of 10 years, there is still a minor beneficiary, in which case the family home continues until that beneficiary becomes of age. It may be deduced from the view of Dr. Tolentino that as a general rule, the family home may be preserved for a minimum of 10 years following the death of the spouses or the unmarried family head who constituted the family home, or of the spouse who consented to the constitution of his or her separate property as family home. After 10 years and a minor beneficiary still lives therein, the family home shall be preserved only until that minor beneficiary reaches the age of majority. The intention of the law is to safeguard and protect the interests of the minor beneficiary until he reaches legal age and would now be capable of supporting himself. However, three requisites must concur before a minor beneficiary is entitled to the benefits of Art. 159: (1) the relationship enumerated in Art. 154 of the Family Code; (2) they live in the family home, and (3) they are dependent for legal support upon the head of the family. Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the minor son of private respondent, can be considered as a beneficiary under Article 154 of the Family Code. As to the first requisite, the beneficiaries of the family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate. The term descendants contemplates all descendants of the person or persons who constituted the family home without distinction; hence, it must necessarily include the grandchildren and great grandchildren of the spouses who constitute a family home. Ubi lex non distinguit nec nos distinguire debemos. Where the law does not distinguish, we should not distinguish. Thus, private respondents minor son, who is also the grandchild of deceased Marcelino V. Dario satisfies the first requisite. As to the second requisite, minor beneficiaries must be actually living in the family home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV, also known as Ino, the son of private respondent and grandson of the decedent Marcelino V. Dario, has been living in the family home since 1994, or within 10 years from the death of the decedent, hence, he satisfies the second requisite. However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand support from his paternal grandmother if he has parents who are capable of supporting him. The liability for legal support falls primarily on Marcelino Lorenzo R. Dario IVs parents, especially his father, herein private respondent who is the head of his immediate family. The law first imposes the obligation of legal support upon the shoulders of the parents, especially the father, and only in their default is the obligation imposed on the grandparents. Marcelino Lorenzo R. Dario IV is dependent on legal support not from his grandmother, but from his father. Thus, despite residing in the family home and his being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be considered as beneficiary contemplated under Article 154 because he did not fulfill the third requisite of being dependent on his grandmother for legal support. It is his father whom he is dependent on legal support, and who must now establish his own family home separate and distinct from that of his parents, being of legal age. Legal support, also known as family support, is that which is provided by law, comprising everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. [16] Legal support has the following characteristics: (1) It is personal, based on family ties which bind the obligor and the obligee; (2) It is intransmissible; (3) It cannot be renounced; (4) It cannot be compromised; (5) It is free from attachment or execution; (6) It is reciprocal; (7) It is variable in amount. [17] Professor Pineda is of the view that grandchildren cannot demand support directly from their grandparents if they have parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to follow the order of support under Art. 199. [18] We agree with this view. The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the relationship of the relatives, the stronger the tie that binds them. Thus, the obligation to support under Art. 199 which outlines the

order of liability for support is imposed first upon the shoulders of the closer relatives and only in their default is the obligation moved to the next nearer relatives and so on. There is no showing that private respondent is without means to support his son; neither is there any evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandsons legal support. On the contrary, herein petitioner filed for the partition of the property which shows an intention to dissolve the family home, since there is no more reason for its existence after the 10-year period ended in 1997. With this finding, there is no legal impediment to partition the subject property. The law does not encourage co-ownerships among individuals as oftentimes it results in inequitable situations such as in the instant case. Coowners should be afforded every available opportunity to divide their coowned property to prevent these situations from arising. As we ruled in Santos v. Santos, [19] no co-owner ought to be compelled to stay in a co-ownership indefinitely, and may insist on partition on the common property at any time. An action to demand partition is imprescriptible or cannot be barred by laches. Each co-owner may demand at any time the partition of the common property. [20] Since the parties were unable to agree on a partition, the court a quo should have ordered a partition by commissioners pursuant to Section 3, Rule 69 of the Rules of Court. Not more than three competent and disinterested persons should be appointed as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without great prejudice to the interest of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such sum or sums of money as the commissioners deem equitable, unless one of the parties interested ask that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale, and the commissioners shall sell the same accordingly. [21] The partition of the subject property should be made in accordance with the rule embodied in Art. 996 of the Civil Code. [22] Under the law of intestate succession, if the widow and legitimate children survive, the widow has the same share as that of each of the children. However, since only onehalf of the conjugal property which is owned by the decedent is to be allocated to the legal and compulsory heirs (the other half to be given exclusively to the surviving spouse as her conjugal share of the property), the widow will have the same share as each of her two surviving children. Hence, the respective shares of the subject property, based on the law on intestate succession are: (1) Perla Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6. In Vda. de Daffon v. Court of Appeals, [23] we held that an action for partition is at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the properties involved. If the court after trial should find the existence of co-ownership among the parties, the court may and should order the partition of the properties in the same action. [24] WHEREFORE, the petition is GRANTED. The Resolution of the Court of Appeals in CA-G.R. CV No. 80680 dated December 9, 2005, is REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Quezon City, Branch 78, who is directed to conduct a PARTITION BY COMMISSIONERS and effect the actual physical partition of the subject property, as well as the improvements that lie therein, in the following manner: Perla G. Dario, 4/6; Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is DIRECTED to appoint not more than three (3) competent and disinterested persons, who should determine the technical metes and bounds of the property and the proper share appertaining to each heir, including the improvements, in accordance with Rule 69 of the Rules of Court. When it is made to the commissioners that the real estate, or a portion thereof, cannot be divided without great prejudice to the interest of the parties, the court a quo may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such sum or sums of money as the commissioners deem equitable, unless one of the parties interested ask that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale, and the commissioners shall sell the same accordingly, and thereafter distribute the proceeds of the sale appertaining to the just share of each heir. No pronouncement as to costs. --

ARRIOLA vs. ARRIOLA Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the November 30, 2006 Decision [1] and April 30, 2007 Resolution [2] of the Court of Appeals in CA-G.R. SP No. 93570. The relevant facts are culled from the records. John Nabor C. Arriola (respondent) filed Special Civil Action No. 03-0010 with the Regional Trial Court, Branch 254, Las Pias City (RTC) against Vilma G. Arriola and Anthony Ronald G. Arriola (petitioners) for judicial partition of the properties of decedent Fidel Arriola (the decedent Fidel). Respondent is the son of decedent Fidel with his first wife Victoria C. Calabia, while petitioner Anthony is the son of decedent Fidel with his second wife, petitioner Vilma. On February 16, 2004, the RTC rendered a Decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered: 1. Ordering the partition of the parcel of land covered by Transfer Certificate of Title No. 383714 (84191) left by the decedent Fidel S. Arriola by and among his heirs John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola in equal shares of one-third (1/3) each without prejudice to the rights of creditors or mortgagees thereon, if any; 2. Attorney's fees in the amount of TEN THOUSAND (P10,000.00) PESOS is hereby awarded to be reimbursed by the defendants to the plaintiff; 3. Costs against the defendants. SO ORDERED. [3] The decision became final on March 15, 2004. [4] As the parties failed to agree on how to partition among them the land covered by TCT No. 383714 (subject land), respondent sought its sale through public auction, and petitioners acceded to it. [5] Accordingly, the RTC ordered the public auction of the subject land. [6] The public auction sale was scheduled on May 31, 2003 but it had to be reset when petitioners refused to include in the auction the house (subject house) standing on the subject land. [7] This prompted respondent to file with the RTC an Urgent Manifestation and Motion for Contempt of Court, [8] praying that petitioners be declared in contempt. The RTC denied the motion in an Order [9] dated August 30, 2005, for the reason that petitioners were justified in refusing to have the subject house included in the auction, thus: The defendants [petitioners] are correct in holding that the house or improvement erected on the property should not be included in the auction sale. A cursory reading of the aforementioned Decision and of the evidence adduced during the ex-parte hearing clearly show that nothing was mentioned about the house existing on the land subject matter of the case. In fact, even plaintiff's [respondent's] initiatory Complaint likewise did not mention anything about the house. Undoubtedly therefore, the Court did not include the house in its adjudication of the subject land because it was plaintiff himself who failed to allege the same. It is a well-settled rule that the court can not give a relief to that which is not alleged and prayed for in the complaint. To hold, as plaintiff argued, that the house is considered accessory to the land on which it is built is in effect to add to plaintiff's [a] right which has never been considered or passed upon during the trial on the merits.

In the absence of any other declaration, obvious or otherwise, only the land should be partitioned in accordance to[sic] the aforementioned Decision as the house can not be said to have been necessarily adjudicated therein. Thus, plaintiff can not be declared as a co-owner of the same house without evidence thereof and due hearing thereon. The Decision of the Court having attained its finality, as correctly pointed out, judgment must stand even at the risk that it might be erroneous. WHEREFORE, the Urgent Manifestation and Motion for Contempt of Court filed by plaintiff is hereby DENIED for lack of merit. SO ORDERED. [10] The RTC, in its Order dated January 3, 2006, denied respondent's Motion for Reconsideration. [11] Respondent filed with the CA a Petition for Certiorari [12] where he sought to have the RTC Orders set aside, and prayed that he be allowed to proceed with the auction of the subject land including the subject house. In its November 30, 2006 Decision, the CA granted the Petition for Certiorari, to wit: WHEREFORE, the petition is GRANTED. The assailed orders dated August 30, 2005 and January 3, 2006 issued by the RTC, in Civil Case No. SCA 03-0010, are REVERSED and SET ASIDE, and the sheriff is ordered to proceed with the public auction sale of the subject lot covered by TCT No. 383714, including the house constructed thereon. SO ORDERED. [13] (Emphasis supplied.) Petitioners filed a motion for reconsideration but the CA denied the same in its Resolution [14] of April 30, 2007. Hence, the present petition on the sole ground that the CA erred in holding that the RTC committed grave abuse of discretion in denying the motion for contempt of court. The assailed CA Decision and Resolution must be modified for reasons other than those advanced by petitioners. The contempt proceeding initiated by respondent was one for indirect contempt. Section 4, Rule 71 of the Rules of Court prescribes the procedure for the institution of proceedings for indirect contempt, viz: Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (Emphases supplied.) Under the aforecited second paragraph of the Rules, the requirements for initiating an indirect contempt proceeding are a) that it be initiated by way of a verified petition and b) that it should fully comply with the requirements for filing initiatory pleadings for civil actions. In Regalado v. Go, [15] we held: As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with the requirements for the filing of initiatory pleading, is mandatory x x x:

This new provision clarifies with a regularity norm the proper procedure for commencing contempt proceedings. While such proceeding has been classified as special civil action under the former Rules, the heterogenous practice tolerated by the courts, has been for any party to file a motion without paying any docket or lawful fees therefore and without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of this amended section. xxxx Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a formal charge by the offended court, all charges shall be commenced by a verified petition with full compliance with the requirements therefore and shall be disposed in accordance with the second paragraph of this section. xxxx Even if the contempt proceedings stemmed from the main case over which the court already acquired jurisdiction, the rules direct that the petition for contempt be treated independently of the principal action. Consequently, the necessary prerequisites for the filing of initiatory pleadings, such as the filing of a verified petition, attachment of a certification on non-forum shopping, and the payment of the necessary docket fees, must be faithfully observed. xxxx The provisions of the Rules are worded in very clear and categorical language. In case where the indirect contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the requirements on initiatory pleadings is a prerequisite. Beyond question now is the mandatory requirement of a verified petition in initiating an indirect contempt proceeding. Truly, prior to the amendment of the 1997 Rules of Civil Procedure, mere motion without complying with the requirements for initiatory pleadings was tolerated by the courts. At the onset of the 1997 Revised Rules of Civil Procedure, however, such practice can no longer be countenanced. [16] (Emphasis ours.) The RTC erred in taking jurisdiction over the indirect contempt proceeding initiated by respondent. The latter did not comply with any of the mandatory requirements of Section 4, Rule 71. He filed a mere Urgent Manifestation and Motion for Contempt of Court, and not a verified petition. He likewise did not conform with the requirements for the filing of initiatory pleadings such as the submission of a certification against forum shopping and the payment of docket fees. Thus, his unverified motion should have been dismissed outright by the RTC. It is noted though that, while at first the RTC overlooked the infirmities in respondent's unverified motion for contempt, in the end, it dismissed the motion, albeit on substantive grounds. The trouble is that, in the CA decision assailed herein, the appellate court committed the same oversight by delving into the merits of respondent's unverified motion and granting the relief sought therein. Thus, strictly speaking, the proper disposition of the present petition ought to be the reversal of the CA decision and the dismissal of respondent's unverified motion for contempt filed in the RTC for being in contravention of Section 4, Rule 71. However, such simplistic disposition will not put an end to the dispute between the parties. A seed of litigation has already been sown that will likely sprout into another case between them at a later time. We refer to the question of whether the subject house should be included in the public auction of the subject land. Until this question is finally resolved, there will be no end to litigation between the parties. We must therefore deal with it squarely, here and now. The RTC and the CA differed in their views on whether the public auction should include the subject house. The RTC excluded the subject house because respondent never alleged its existence in his complaint for partition or established his co-ownership thereof. [17] On the other hand, citing Articles 440, [18] 445 [19] and 446 [20] of the Civil Code, the CA held that as the deceased owned the subject land, he also owned the subject house which is a mere accessory to the land. Both properties form part of

the estate of the deceased and are held in co-ownership by his heirs, the parties herein. Hence, the CA concludes that any decision in the action for partition of said estate should cover not just the subject land but also the subject house. [21] The CA further pointed out that petitioners themselves implicitly recognized the inclusion of the subject house in the partition of the subject land when they proposed in their letter of August 5, 2004, the following swapping-arrangement: Sir: Thank you very much for accommodating us even if we are only poor and simple people. We are very much pleased with the decision of Presiding Judge Manuel B. Fernandez, Jr., RTC Br. 254, Las Pias, on the sharing of one-third (1/3) each of a land covered by Transfer Certificate of Title No. 383714 (84191) in Las Pias City. However, to preserve the sanctity of our house which is our residence for more than twenty (20) years, we wish to request that the 1/3 share of John Nabor C. Arriola be paid by the defendants depending on the choice of the plaintiff between item (1) or item (2), detailed as follows: (1) x. (2) Swap with a 500-square meters [sic] lot located at Baras Rizal x x Cash of P205,700.00 x x x.

x x x x. [22] We agree that the subject house is covered by the judgment of partition for reasons postulated by the CA. We qualify, however, that this ruling does not necessarily countenance the immediate and actual partition of the subject house by way of public auction in view of the suspensive proscription imposed under Article 159 of The Family Code which will be discussed forthwith. It is true that the existence of the subject house was not specifically alleged in the complaint for partition. Such omission notwithstanding, the subject house is deemed part of the judgment of partition for two compelling reasons. First, as correctly held by the CA, under the provisions of the Civil Code, the subject house is deemed part of the subject land. The Court quotes with approval the ruling of the CA, to wit: The RTC, in the assailed Order dated August 30, 2005 ratiocinated that since the house constructed on the subject lot was not alleged in the complaint and its ownership was not passed upon during the trial on the merits, the court cannot include the house in its adjudication of the subject lot. The court further stated that it cannot give a relief to[sic] which is not alleged and prayed for in the complaint. We are not persuaded. To follow the foregoing reasoning of the RTC will in effect render meaningless the pertinent rule on accession. In general, the right to accession is automatic (ipso jure), requiring no prior act on the part of the owner or the principal. So that even if the improvements including the house were not alleged in the complaint for partition, they are deemed included in the lot on which they stand, following the principle of accession. Consequently, the lot subject of judicial partition in this case includes the house which is permanently attached thereto, otherwise, it would be absurd to divide the principal, i.e., the lot, without dividing the house which is permanently attached thereto. [23] (Emphasis supplied) Second, respondent has repeatedly claimed that the subject house was built by the deceased. [24] Petitioners never controverted such claim. There is then no dispute that the subject house is part of the estate of the deceased; as such, it is owned in common by the latter's heirs, the parties herein, [25] any one of whom, under Article 494 [26] of the Civil Code, may, at any time, demand the partition of the subject house. [27] Therefore, respondent's recourse to the partition of the subject house cannot be

hindered, least of all by the mere technical omission of said common property from the complaint for partition. That said notwithstanding, we must emphasize that, while we treat the subject house as part of the co-ownership of the parties, we stop short of authorizing its actual partition by public auction at this time. It bears emphasis that an action for partition involves two phases: first, the declaration of the existence of a state of co-ownership; and second, the actual termination of that state of co-ownership through the segregation of the common property. [28] What is settled thus far is only the fact that the subject house is under the co-ownership of the parties, and therefore susceptible of partition among them. Whether the subject house should be sold at public auction as ordered by the RTC is an entirely different matter, depending on the exact nature of the subject house. Respondent claims that the subject house was built by decedent Fidel on his exclusive property. [29] Petitioners add that said house has been their residence for 20 years. [30] Taken together, these averments on record establish that the subject house is a family home within the contemplation of the provisions of The Family Code, particularly: Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Article 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (Emphasis supplied.) One significant innovation introduced by The Family Code is the automatic constitution of the family home from the time of its occupation as a family residence, without need anymore for the judicial or extrajudicial processes provided under the defunct Articles 224 to 251 of the Civil Code and Rule 106 of the Rules of Court. Furthermore, Articles 152 and 153 specifically extend the scope of the family home not just to the dwelling structure in which the family resides but also to the lot on which it stands. Thus, applying these concepts, the subject house as well as the specific portion of the subject land on which it stands are deemed constituted as a family home by the deceased and petitioner Vilma from the moment they began occupying the same as a family residence 20 years back. [31] It being settled that the subject house (and the subject lot on which it stands) is the family home of the deceased and his heirs, the same is shielded from immediate partition under Article 159 of The Family Code, viz: Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (Emphasis supplied.) The purpose of Article 159 is to avert the disintegration of the family unit following the death of its head. To this end, it preserves the family home as the physical symbol of family love, security and unity by imposing the following restrictions on its partition: first, that the heirs cannot extrajudicially partition it for a period of 10 years from the death of one or both spouses or of the unmarried head of the family, or for a longer period, if there is still a minor beneficiary residing therein; and second, that the heirs cannot judicially partition it during the aforesaid periods unless the court finds compelling reasons therefor. No compelling reason has been alleged by the parties; nor has the RTC found any compelling reason to order the partition of the family home, either by physical segregation or assignment to any of the heirs or through auction sale as suggested by the parties. More importantly, Article 159 imposes the proscription against the immediate partition of the family home regardless of its ownership. This

signifies that even if the family home has passed by succession to the coownership of the heirs, or has been willed to any one of them, this fact alone cannot transform the family home into an ordinary property, much less dispel the protection cast upon it by the law. The rights of the individual co-owner or owner of the family home cannot subjugate the rights granted under Article 159 to the beneficiaries of the family home.

Set against the foregoing rules, the family home -- consisting of the subject house and lot on which it stands -- cannot be partitioned at this time, even if it has passed to the co-ownership of his heirs, the parties herein. Decedent Fidel died on March 10, 2003. [32] Thus, for 10 years from said date or until March 10, 2013, or for a longer period, if there is still a minor beneficiary residing therein, the family home he constituted cannot be partitioned, much less when no compelling reason exists for the court to otherwise set aside the restriction and order the partition of the property. The Court ruled in Honrado v. Court of Appeals [33] that a claim for exception from execution or forced sale under Article 153 should be set up and proved to the Sheriff before the sale of the property at public auction. Herein petitioners timely objected to the inclusion of the subject house although for a different reason. To recapitulate, the evidence of record sustain the CA ruling that the subject house is part of the judgment of co-ownership and partition. The same evidence also establishes that the subject house and the portion of the subject land on which it is standing have been constituted as the family home of decedent Fidel and his heirs. Consequently, its actual and immediate partition cannot be sanctioned until the lapse of a period of 10 years from the death of Fidel Arriola, or until March 10, 2013. It bears emphasis, however, that in the meantime, there is no obstacle to the immediate public auction of the portion of the subject land covered by TCT No. 383714, which falls outside the specific area of the family home. WHEREFORE, the petition is PARTLY GRANTED and the November 30, 2006 Decision and April 30, 2007 Resolution of the Court of Appeals are MODIFIED in that the house standing on the land covered by Transfer Certificate of Title No. 383714 is DECLARED part of the coownership of the parties John Nabor C. Arriola, Vilma G. Arriola and Anthony Ronald G. Arriola but EXEMPTED from partition by public auction within the period provided for in Article 159 of the Family Code. -JOSE MODEQUILLO vs. HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN and DEPUTY SHERIFF FERNANDO PLATA The issue in this petition is whether or not a final judgment of the Court of Appeals in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code. The facts are undisputed. On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No. 09218 entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part of which read as follows: WHEREFORE, the decision under appeal should be, as it is hereby, reversed and set aside. Judgment is hereby rendered finding the defendants-appellees Jose Modequillo and Benito Malubay jointly and severally liable to plaintiffs-appellants as hereinbelow set forth. Accordingly, defendants-appellees are ordered to pay jointly and severally to: 1. Plaintiffs-appellants, the Salinas spouses: a. the amount of P30,000.00 by way of compensation for the death of their son Audie Salinas;

b. P10,000.00 for the loss of earnings by reason of the death of said Audie Salinas; c. the sum of P5,000.00 as burial expenses of Audie Salinas; and d. the sum of P5,000.00 by way of moral damages. 2. Plaintiffs-appellants Culan-Culan: a. the sum of P5,000.00 for hospitalization expenses of Renato Culan- Culan; and b. P5,000.00 for moral damages. 3. Both plaintiff-appellants Salinas and Culan-Culan, P7,000.00 for attorney's fees and litigation expenses. All counterclaims and other claims are hereby dismissed.
1

of the Family Code does not state that the provisions of Chapter 2, Title V have a retroactive effect. Articles 152 and 153 of the Family Code provide as follows: Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home. Article 155 of the Family Code also provides as follows:

The said judgment having become final and executory, a writ of execution was issued by the Regional Trial Court of Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo and Benito Malubay at Malalag, Davao del Sur. On July 7, 1988, the sheriff levied on a parcel of residential land located at Poblacion Malalag, Davao del Sur containing an area of 600 square meters with a market value of P34,550.00 and assessed value of P7,570.00 per Tax Declaration No. 87008-01359, registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur; and a parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of 3 hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax Declaration No. 87-08-01848 registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur. 2 A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein that the residential land located at Poblacion Malalag is where the family home is built since 1969 prior to the commencement of this case and as such is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities mentioned in Article 155 thereof, and that the judgment debt sought to be enforced against the family home of defendant is not one of those enumerated under Article 155 of the Family Code. As to the agricultural land although it is declared in the name of defendant it is alleged to be still part of the public land and the transfer in his favor by the original possessor and applicant who was a member of a cultural minority was not approved by the proper government agency. An opposition thereto was filed by the plaintiffs. In an order dated August 26, 1988, the trial court denied the motion. A motion for reconsideration thereof was filed by defendant and this was denied for lack of merit on September 2, 1988. Hence, the herein petition for review on certiorari wherein it is alleged that the trial court erred and acted in excess of its jurisdiction in denying petitioner's motion to quash and/or to set aside levy on the properties and in denying petitioner' motion for reconsideration of the order dated August 26, 1988. Petitioner contends that only a question of law is involved in this petition. He asserts that the residential house and lot was first occupied as his family residence in 1969 and was duly constituted as a family home under the Family Code which took effect on August 4, 1988. Thus, petitioner argues that the said residential house and lot is exempt from payment of the obligation enumerated in Article 155 of the Family Code; and that the decision in this case pertaining to damages arising from a vehicular accident took place on March 16, 1976 and which became final in 1988 is not one of those instances enumerated under Article 155 of the Family Code when the family home may be levied upon and sold on execution. It is further alleged that the trial court erred in holding that the said house and lot became a family home only on August 4, 1988 when the Family Code became effective, and that the Family Code cannot be interpreted in such a way that all family residences are deemed to have been constituted as family homes at the time of their occupancy prior to the effectivity of the said Code and that they are exempt from execution for the payment of obligations incurred before the effectivity of said Code; and that it also erred when it declared that Article 162

Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For non-payment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building. The exemption provided as aforestated is effective from the time of the constitution of the family home as such, and lasts so long as any of its beneficiaries actually resides therein. In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not welltaken. Under Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect. Is the family home of petitioner exempt from execution of the money judgment aforecited No. The debt or liability which was the basis of the

judgment arose or was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This case does not fall under the exemptions from execution provided in the Family Code. As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to be made by the sheriff shall be on whatever rights the petitioner may have on the land. WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs. -JUANITA TRINIDAD RAMOS, ALMA RAMOS WORAK, MANUEL T. RAMOS, JOSEFINA R. ROTHMAN, SONIA R. POST, ELVIRA P. MUNAR, and OFELIA R. LIM vs. DANILO PANGILINAN, RODOLFO SUMANG, LUCRECIO BAUTISTA and ROLANDO ANTENOR CARPIO MORALES, J.: Respondents filed in 2003 a complaint1 for illegal dismissal against E.M. Ramos Electric, Inc., a company owned by Ernesto M. Ramos (Ramos), the patriarch of herein petitioners. By Decision2 of April 15, 2005, the Labor Arbiter ruled in favor of respondents and ordered Ramos and the company to pay the aggregate amount of P1,661,490.30 representing their backwages, separation pay, 13th month pay & service incentive leave pay. The Decision having become final and executory and no settlement having been forged by the parties, the Labor Arbiter issued on September 8, 2005 a writ of execution3 which the Deputy Sheriff of the National Labor Relations Commission (NLRC) implemented by levying a property in Ramos name covered by TCT No. 38978, situated in Pandacan, Manila (Pandacan property). Alleging that the Pandacan property was the family home, hence, exempt from execution to satisfy the judgment award, Ramos and the company moved to quash the writ of execution.4 Respondents, however, averred that the Pandacan property is not the Ramos family home, as it has another in Antipolo, and the Pandacan property in fact served as the companys business address as borne by the companys letterhead. Respondents added that, assuming that the Pandacan property was indeed the family home, only the value equivalent to P300,000 was exempt from execution. By Order5 of August 2, 2006, the Labor Arbiter denied the motion to quash, hence, Ramos and the company appealed to the NLRC which affirmed the Labor Arbiters Order. Ramos and the company appealed to the Court of Appeals during the pendency of which Ramos died and was substituted by herein petitioners. Petitioners also filed before the NLRC, as third-party claimants, a Manifestation questioning the Notice to Vacate issued by the Sheriff, alleging that assuming that the Pandacan property may be levied upon, the family home straddled two (2) lots, including the lot covered by TCT No. 38978, hence, they cannot be asked to vacate the house. The Labor Arbiter was later to deny, by Decision of May 7, 2009, the third-party claim, holding that Ramos death and petitioners substitution as his compulsory heirs would not nullify the sale at auction of the Pandacan property. And the NLRC6 would later affirm the Labor Arbiters ruling, noting that petitioners failed to exercise their right to redeem the Pandacan property within the one 1 year period or until January 16, 2009. The NLRC brushed aside petitioners contention that they should have been given a fresh period of 1 year from the time of Ramos death on July 29, 2008 or until July 30, 2009 to redeem the property, holding that to do so would give petitioners, as mere heirs, a better right than the Ramos. As to petitioners claim that the property was covered by the regime of conjugal partnership of gains and as such only Ramos share can be levied upon, the NLRC ruled that petitioners failed to substantiate such claim and that the phrase in the TCT indicating the registered owner as "Ernesto Ramos, married to Juanita Trinidad, Filipinos," did not mean that both owned the property, the phrase having merely described Ramos civil status.

Before the appellate court, petitioners alleged that the NLRC erred in ruling that the market value of the property was P2,177,000 as assessed by the City Assessor of Manila and appearing in the documents submitted before the Labor Arbiter, claiming that at the time the Pandacan property was constituted as the family home in 1944, its value was way below P300,000; and that Art. 153 of the Family Code was applicable, hence, they no longer had to resort to judicial or extrajudicial constitution. In the assailed Decision7 of September 24, 2008, the appellate court, in denying petitioners appeal, held that the Pandacan property was not exempted from execution, for while "Article 1538 of the Family Code provides that the family home is deemed constituted on a house and lot from the time it is occupied as a family residence, [it] did not mean that the article has a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the effectivity of the Family Code." The appellate court went on to hold that what was applicable law were Articles 224 to 251 of the Civil Code, hence, there was still a need to either judicially or extrajudicially constitute the Pandacan property as petitioners family home before it can be exempted; and as petitioners failed to comply therewith, there was no error in denying the motion to quash the writ of execution. The only question raised in the present petition for review on certiorari is the propriety of the Court of Appeals Decision holding that the levy upon the Pandacan property was valid. The petition is devoid of merit. Indeed, the general rule is that the family home is a real right which is gratuitous, inalienable and free from attachment, constituted over the dwelling place and the land on which it is situated, which confers upon a particular family the right to enjoy such properties, which must remain with the person constituting it and his heirs. It cannot be seized by creditors except in certain special cases.9 Kelley, Jr. v. Planters Products, Inc.10 lays down the rules relative to the levy on execution over the family home, viz: No doubt, a family home is generally exempt from execution provided it was duly constituted as such. There must be proof that the alleged family home was constituted jointly by the husband and wife or by an unmarried head of a family. It must be the house where they and their family actually reside and the lot on which it is situated. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent, or on the property of the unmarried head of the family. The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000 in urban areas and P200,000 in rural areas. Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. The exemption is effective from the time of the constitution of the family home as such and lasts as long as any of its beneficiaries actually resides therein. Moreover, the debts for which the family home is made answerable must have been incurred after August 3, 1988. Otherwise (that is, if it was incurred prior to August 3, 1988), the alleged family home must be shown to have been constituted either judicially or extrajudicially pursuant to the Civil Code. (emphasis supplied) For the family home to be exempt from execution, distinction must be made as to what law applies based on when it was constituted and what requirements must be complied with by the judgment debtor or his successors claiming such privilege. Hence, two sets of rules are applicable. If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it must have been constituted either judicially or extra-judicially as provided under Articles 225, 229-231 and 233 of the Civil Code.11 Judicial constitution of the family home requires the filing of a verified petition before the courts and the registration of the courts order with

the Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by Articles 240 to 24212 of the Civil Code and involves the execution of a public instrument which must also be registered with the Registry of Property. Failure to comply with either one of these two modes of constitution will bar a judgment debtor from availing of the privilege. On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988, there is no need to constitute extrajudicially or judicially, and the exemption is effective from the time it was constituted and lasts as long as any of its beneficiaries under Art. 15413 actually resides therein. Moreover, the family home should belong to the absolute community or conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of the other, and its value must not exceed certain amounts depending upon the area where it is located. Further, the debts incurred for which the exemption does not apply as provided under Art. 15514 for which the family home is made answerable must have been incurred after August 3, 1988.1avvphi1 And in both cases, whether under the Civil Code or the Family Code, it is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved.15 In the present case, since petitioners claim that the family home was constituted prior to August 3, 1988, or as early as 1944, they must comply with the procedure mandated by the Civil Code. There being absolutely no proof that the Pandacan property was judicially or extrajudicially constituted as the Ramos family home, the laws protective mantle cannot be availed of by petitioners. Parenthetically, the records show that the sheriff exhausted all means to execute the judgment but failed because Ramos bank accounts 16 were already closed while other properties in his or the companys name had already been transferred,17 and the only property left was the Pandacan property. WHEREFORE, the petition is DENIED. -SIMEON CABANG, VIRGINIA CABANG and VENANCIO CABANG ALIAS "DONDON" vs. MR. & MRS. GUILLERMO BASAY YNARES-SANTIAGO, J.:

big portion of Lot No. 7778 was used by the government as a public road and as there were many discrepancies in the areas occupied, it was then discovered that defendant-appellees were actually occupying Lot No. 7777. On June 23, 1992, plaintiff-appellants filed a Complaint docketed as Civil Case No. 92-20-127 for Recovery of Property against defendant-appellees. On July 19, 1996, the trial court rendered its decision, the dispositive portion of which reads, thus: WHEREFORE, judgment is hereby rendered in favor of the defendants and against the plaintiff 1. Holding that the rights of the plaintiffs to recover the land registered in their names, have been effectively barred by laches; and 2. Ordering the dismissal of the above-entitled case. No pronouncement as to cost. SO ORDERED. Aggrieved, plaintiff-appellants filed an appeal before the Court of Appeals assailing the above-decision. Said appeal was docketed as CA-G.R. CV No. 55207. On December 23, 1998, the Court of Appeals, through the then Second Division, rendered a Decision reversing the assailed decision and decreed as follows: WHEREFORE, the judgment herein appealed from is hereby REVERSED, and judgment is hereby rendered declaring the plaintiffs-appellants to be entitled to the possession of Lot No. 7777 of the Molave Townsite, subject to the rights of the defendants-appellees under Article (sic) 448, 546, 547 and 548 of the New Civil Code. The records of this case are hereby ordered remanded to the court of origin for further proceedings to determine the rights of the defendants-appellees under the aforesaid article (sic) of the New Civil Code, and to render judgment thereon in accordance with the evidence and this decision. No pronouncement as to costs.

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to annul and set aside the Decision of the Court of Appeals in CA-G.R. CV No. 767551 dated May 31, 20072 which reversed the Order3 of the Regional Trial Court of Molave, Zamboanga Del Sur, Branch 23 in Civil Case No. 99-20-127 which denied respondents motion for execution on the ground that petitioners family home was still subsisting. Also assailed is the Resolution dated September 21, 2007 denying the motion for reconsideration. The facts as summarized by the appellate court: Deceased Felix Odong was the registered owner of Lot No. 7777, Ts- 222 located in Molave, Zamboanga del Sur. Said lot was covered by Original Certificate of Title No. 0-2,768 pursuant to Decree No. N-64 and issued on March 9, 1966. However, Felix Odong and his heirs never occupied nor took possession of the lot. On June 16, 1987, plaintiff-appellants bought said real property from the heirs of Felix Odong for P8,000.00. Consequently, OCT No. 0-2,768 was cancelled and in its stead, Transfer Certificate of Title No. T-22,048 was issued on August 6, 1987 in the name of plaintiff-appellants. The latter also did not occupy the said property. Defendant-appellees, on the other hand, had been in continuous, open, peaceful and adverse possession of the same parcel of land since 1956 up to the present. They were the awardees in the cadastral proceedings of Lot No. 7778 of the Molave Townsite, Ts-222. During the said cadastral proceedings, defendant-appellees claimed Lot No. 7778 on the belief that the area they were actually occupying was Lot No. 7778. As it turned out, however, when the Municipality of Molave relocated the townsite lots in the area in 1992 as a

SO ORDERED. Defendant-appellees thereafter filed a petition for review on certiorari under Rule 45 of the Rules of Court before the Supreme Court docketed as G.R. No. 139601. On October 18, 1999, the Supreme Court issued a Resolution denying the petition for late filing and lack of appropriate service. Subsequently, or on February 15, 2000, the Supreme Court Resolution had become final and executory. Consequently, the case was remanded to the court a quo and the latter commissioned the Municipal Assessor of Molave, Zamboanga del Sur to determine the value of the improvements introduced by the defendantappellees. The Commissioners Report determined that at the time of ocular inspection, there were three (3) residential buildings constructed on the property in litigation. During the ocular inspection, plaintiff-appellants son, Gil Basay, defendant-appellee Virginia Cabang, and one Bernardo Mendez, an occupant of the lot, were present. In the report, the following appraised value of the improvements were determined, thus: lawphil.net Owner Virginia Lot No. 7777 Area (sq.m.) 32.55 Improvement Building Appraised Value P21,580.65

Cabang Jovencio Capuno Amelito Mata 7777 7777 15.75 14.00 Building Building Toilet Plants & Trees TOTAL 18,663.75 5,658.10 1,500.00 2,164.00

Respondents thereafter elevated their cause to the appellate court which reversed the trial court in its May 31, 2007 Decision in CA-G.R. CV No. 76755. Petitioners Motion for Reconsideration was denied by the Court of Appeals in its Resolution5 dated September 21, 2007. Hence, this petition. Petitioners insist that the property subject of the controversy is a duly constituted family home which is not subject to execution, thus, they argue that the appellate tribunal erred in reversing the judgment of the trial court. The petition lacks merit.

P49,566.50 It bears stressing that the purpose for which the records of the case were remanded to the court of origin was for the enforcement of the appellate courts final and executory judgment6 in CA-G.R. CV No. 55207 which, among others, declared herein respondents entitled to the possession of Lot No. 7777 of the Molave Townsite subject to the provisions of Articles 448,7 546,8 5479 an 54810 of the Civil Code. Indeed, the decision explicitly decreed that the remand of the records of the case was for the court of origin "[t]o determine the rights of the defendants-appellees under the aforesaid article[s] of the New Civil Code, and to render judgment thereon in accordance with the evidence and this decision." A final and executory judgment may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions of fact or law and whether it will be made by the court that rendered it or by the highest court in the land.11 The only exceptions to this rule are the correction of (1) clerical errors; (2) the so-called nunc pro tunc entries which cause no prejudice to any party, and (3) void judgments.12 Well-settled is the rule that there can be no execution until and unless the judgment has become final and executory, i.e. the period of appeal has lapsed without an appeal having been taken, or, having been taken, the appeal has been resolved and the records of the case have been returned to the court of origin, in which event, execution shall issue as a matter of right. 13 In short, once a judgment becomes final, the winning party is entitled to a writ of execution and the issuance thereof becomes a courts ministerial duty. 14 Furthermore, as a matter of settled legal principle, a writ of execution must adhere to every essential particulars of the judgment sought to be executed.15 An order of execution may not vary or go beyond the terns of the judgment it seeks to enforce.16 A writ of execution must conform to the judgment and if it is different from, goes beyond or varies the tenor of the judgment which gives it life, it is a nullity.17 Otherwise stated, when the order of execution and the corresponding writ issued pursuant thereto is not in harmony with and exceeds the judgment which gives it life, they have pro tanto no validity18 to maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law.19 As aptly pointed out by the appellate court, from the inception of Civil Case No. 99-20-127, it was already of judicial notice that the improvements introduced by petitioners on the litigated property are residential houses not family homes. Belatedly interposing such an extraneous issue at such a late stage of the proceeding is tantamount to interfering with and varying the terms of the final and executory judgment and a violation of respondents right to due process because As a general rule, points of law, theories and issues not brought to the attention of the trial court cannot be raised for the first time on appeal. For a contrary rule would be unfair to the adverse party who would have no opportunity to present further evidence material to the new theory, which it could have done had it been aware of if at the time of the hearing before the trial court.20lawphil.net The refusal, therefore, of the trial court to enforce the execution on the ground that the improvements introduced on the litigated property are family homes goes beyond the pale of what it had been expressly tasked to do, i.e. its ministerial duty of executing the judgment in accordance with its essential particulars. The foregoing factual, legal and jurisprudential scenario reduces the raising of the issue of whether or not the improvements introduced by petitioners are family homes into a mere afterthought.

Thereafter, upon verbal request of defendant-appellees, the court a quo in its Order declared that the tie point of the survey should be the BLLM (Bureau of Lands Location Monument) and authorized the official surveyor of the Bureau of Lands to conduct the survey of the litigated property. Pursuant to the above Order, the Community Environment and Natural Resources Office (CENRO) of the Department of Environment and Natural Resources (DENR)-Region XI designated Geodetic Engineer Diosdado L. de Guzman to [act] as the official surveyor. On March 2002, Engr. De Guzman submitted his survey report which stated, inter alia: 1. That on September 18, 2001, the undersigned had conducted verification survey of Lot 7777, Ts-222 and the adjacent lots for reference purposes-with both parties present on the survey; 2. That the survey was started from BLLM #34, as directed by the Order, taking sideshots of lot corners, existing concrete fence, road and going back to BLLM #34, a point of reference; 3. Considering that there was only one BLLM existing on the ground, the undersigned conducted astronomical observation on December 27, 2001 in order to check the carried Azimuth of the traverse; 4. That per result of the survey conducted, it was found out and ascertained that the area occupied by Mrs. Virginia Cabang is a portion of Lot 7777, with lot assignment to be known as Lot 7777-A with an area of 303 square meters and portion of Lot 7778 with lot assignment to be known as Lot 7778-A with an area of 76 square meters. On the same lot, portion of which is also occupied by Mr. Bernardo Mendez with lot assignment to be known as Lot 7777-B with an area of 236 square meters and Lot 7778-B with an area of 243 square meters as shown on the attached sketch for ready reference; 5. That there were three (3) houses made of light material erected inside Lot No. 7777-A, which is owned by Mrs. Virginia Cabang and also a concrete house erected both on portion of Lot No. 7777B and Lot No. 7778-B, which is owned by Mr. Bernardo Mendez. x x x; 6. That the existing road had been traversing on a portion of Lot 7778 to be know (sic) as Lot 7778-CA-G.R. SP No. with an area of 116 square meters as shown on attached sketch plan. During the hearing on May 10, 2002, plaintiff-appellants offer to pay P21,000.00 for the improvement of the lot in question was rejected by defendant-appellees. The court a quo disclosed its difficulty in resolving whether or not the houses may be subject of an order of execution it being a family home. On June 18, 2002, plaintiff-appellants filed their Manifestation and Motion for Execution alleging therein that defendant-appellees refused to accept payment of the improvements as determined by the court appointed Commissioner, thus, they should now be ordered to remove said improvements at their expense or if they refused, an Order of Demolition be issued. On September 6, 2002, the court a quo issued the herein assailed Order denying the motion for execution.4

Even squarely addressing the issue of whether or not the improvements introduced by petitioners on the subject land are family homes will not extricate them from their predicament. As defined, "[T]he family home is a sacred symbol of family love and is the repository of cherished memories that last during ones lifetime.21 It is the dwelling house where the husband and wife, or an unmarried head of a family reside, including the land on which it is situated.22 It is constituted jointly by the husband and the wife or by an unmarried head of a family." 23 Article 153 of the Family Code provides that The family home is deemed constituted from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. The actual value of the family home shall not exceed, at the time of its constitution, the amount of P300,000.00 in urban areas and P200,000.00 in rural areas.24 Under the afore-quoted provision, a family home is deemed constituted on a house and a lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially.25 There can be no question that a family home is generally exempt from execution,26 provided it was duly constituted as such. It is likewise a given that the family home must be constituted on property owned by the persons constituting it. Indeed as pointed out in Kelley, Jr. v. Planters Products, Inc. 27 "[T]he family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latters consent, or on the property of the unmarried head of the family."28 In other words: The family home must be established on the properties of (a) the absolute community, or (b) the conjugal partnership, or (c) the exclusive property of either spouse with the consent of the other. It cannot be established on property held in co-ownership with third persons. However, it can be established partly on community property, or conjugal property and partly on the exclusive property of either spouse with the consent of the latter.1avvphi1 If constituted by an unmarried head of a family, where there is no communal or conjugal property existing, it can be constituted only on his or her own property.29 (Emphasis and italics supplied) Therein lies the fatal flaw in the postulate of petitioners. For all their arguments to the contrary, the stark and immutable fact is that the property on which their alleged family home stands is owned by respondents and the question of ownership had been long laid to rest with the finality of the appellate courts judgment in CA-G.R. CV No. 55207. Thus, petitioners continued stay on the subject land is only by mere tolerance of respondents. All told, it is too late in the day for petitioners to raise this issue. Without doubt, the instant case where the family home issue has been vigorously pursued by petitioners is but a clear-cut ploy meant to forestall the enforcement of an otherwise final and executory decision. The execution of a final judgment is a matter of right on the part of the prevailing party whose implementation is mandatory and ministerial on the court or tribunal issuing the judgment.30 The most important phase of any proceeding is the execution of judgment. 31 Once a judgment becomes final, the prevailing party should not, through some clever maneuvers devised by an unsporting loser, be deprived of the fruits of the verdict.32 An unjustified delay in the enforcement of a judgment sets at naught the role of courts in disposing of justiciable controversies with finality.33 Furthermore, a judgment if not executed would just be an empty victory for the prevailing party because execution is the fruit and end of the suit and very aptly called the life of the law.34 The issue is moreover factual and, to repeat that trite refrain, the Supreme Court is not a trier of facts. It is not the function of the Court to review, examine and evaluate or weigh the probative value of the evidence presented. A question of fact would arise in such event. Questions of fact cannot be raised in an appeal via certiorari before the Supreme Court and are not proper for its consideration.35 The rationale behind this doctrine is that a review of the findings of fact of the appellate tribunal is not a function this Court normally undertakes. The Court will not weigh the evidence all over

again unless there is a showing that the findings of the lower court are totally devoid of support or are clearly erroneous so as to constitute serious abuse of discretion.36 Although there are recognized exceptions37 to this rule, none exists in this case to justify a departure therefrom. WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May 31, 2007 in CA-G.R. CV No. 76755 declaring respondents entitled to the writ of execution and ordering petitioners to vacate the subject property, as well as the Resolution dated September 21, 2007 denying the motion for reconsideration, are AFFIRMED. Costs against petitioners. -EQUITABLE PCI BANK, INC. vs. OJ-MARK TRADING, INC. and SPOUSES OSCAR AND EVANGELINE MARTINEZ Before us is a petition for review on certiorari filed by petitioner under Rule 45 of the 1997 Rules of Civil Procedure, as amended, praying for the reversal of the Decision1 dated October 29, 2004 of the Court of Appeals (CA) in CAG.R. SP No. 77703, which denied its petition for certiorari assailing the trial courts orders granting respondents application for a writ of preliminary injunction. The factual antecedents: Respondent-spouses Oscar and Evangeline Martinez obtained loans from petitioner Equitable PCI Bank, Inc. in the aggregate amount of Four Million Forty-Eight Thousand Eight Hundred Pesos (P4,048,800.00). As security for the said amount, a Real Estate Mortgage (REM) was executed over a condominium unit in San Miguel Court, Valle Verde 5, Pasig City, Metro Manila where the spouses are residing. Respondent Oscar Martinez signed the REM both as principal debtor and as President of the registered owner and third-party mortgagor, respondent OJ-Mark Trading, Inc. The REM was annotated on Condominium Certificate of Title No. PT-21363 of the Registry of Deeds of Pasig City.2 Respondent-spouses defaulted in the payment of their outstanding loan obligation, which as of October 31, 2002 stood at P4,918,160.03.3 In a letter dated May 15, 2002, they offered to settle their indebtedness "with the assignment to the Bank of a commercial lot of corresponding value" and also requested for recomputation at a lower interest rate and condonation of penalties.4 While petitioners officers held a meeting with respondent Oscar Martinez, the latter however failed to submit the required documents such as certificates of title and tax declarations so that the bank can evaluate his proposal to pay the mortgage debt via dacion en pago.5 Consequently, petitioner initiated the extrajudicial foreclosure of the real estate mortgage by filing an ex parte petition before the Office of the Executive Judge, Regional Trial Court (RTC) of Pasig City.6 On January 23, 2003, respondents filed Civil Case No. 69294 for "Temporary Restraining Order (TRO), Injunction and Annulment of Extrajudicial Foreclosure Sale" in the RTC of Pasig City. On January 27, 2003, the trial court granted a TRO effective for twenty (20) days. In their Complaint With Application for Temporary Restraining Order,7 respondents sought to enjoin the impending foreclosure sale alleging that the same was hasty, premature, unreasonable and unwarranted, and also claiming defects in the execution of the REM. Respondents imputed bad faith on the part of petitioner who did not officially inform them of the denial or disapproval of their proposal to settle the loan obligation by "dacion via assignment of a commercial property." Respondents maintained that aside from the REM being illegally notarized, incomplete and unenforceable, the obligation subject thereof had been extinguished by the dacion proposal considering that the value of the property offered was more than sufficient to pay for the mortgage debt. It was further averred that the subject property is being used and occupied by respondent-spouses as a family home. In his Order dated February 17, 2003, Judge Mariano M. Singzon, Jr. granted the application for a writ of preliminary injunction.8 Petitioner filed a motion for reconsideration which was denied under the Order dated April 21, 2003. 9 Petitioner questioned the issuance of preliminary injunction before the CA arguing that the respondents are not entitled to injunctive relief after having admitted that they were unable to settle their loan obligations. By Decision dated October 29, 2004, the appellate court sustained the assailed orders, holding that:

...respondent spouses have sufficiently shown that they have a right over the condominium unit which is subject of the mortgage. This proprietary right over the condominium is what they are trying to protect when they applied for preliminary injunction. As respondent spouses have alleged in their complaint, the issuance of notice of foreclosure sale is at most premature as there are still several factual issues that need to be resolved before a foreclosure can be effected. Such already constitute the ostensible right which respondent spouses possess in order for the foreclosure sale to be temporarily enjoined.10 Hence, this petition raising the following grounds: I THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN HOLDING THAT THE TRIAL COURT DID NOT COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN ISSUING THE ASSAILED WRIT OF PRELIMINARY INJUNCTION II THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN HOLDING THAT INDIVIDUAL RESPONDENTS SPS. MARTINEZ HAVE PROPRIETARY RIGHT OVER THE MORTGAGED CONDOMINIUM UNIT III THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE REVERSIBLE ERROR IN HOLDING THAT SUCH PURPORTED PROPRIETARY RIGHT OF RESPONDENTS SPS. MARTINEZ DESERVES THE PROTECTIVE MANTLE OF A WRIT OF PRELIMINARY INJUNCTION DESPITE THEIR CLEAR AND UNEQUIVOCAL ADMISSION OF THE OUTSTANDING LOANS AND THEIR DELINQUENCY IV THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THERE ARE STILL SEVERAL FACTUAL ISSUES TO BE RESOLVED IN A FULL-BLOWN TRIAL BEFORE PETITIONER EPCIB COULD EXERCISE ITS STATUTORY AND EQUITABLE RIGHT TO FORECLOSE11 The sole issue to be resolved is whether or not the respondents have shown a clear legal right to enjoin the foreclosure and public auction of the thirdparty mortgagors property while the case for annulment of REM on said property is being tried. Petitioner argued that the appellate courts conclusion that respondents possess proprietary right over the mortgaged property subject of foreclosure is utterly baseless, for the following reasons: first, while the condominium unit is supposedly a family home, it is admittedly owned by respondent corporation and not by the conjugal partnership or absolute community of respondent-spouses; and second, even assuming that OJ-Mark Trading, Inc. is a family corporation, respondents stance contravenes the established rule that properties registered in the name of the corporation are owned by it as an entity separate and distinct from its members or stockholders. 12 As to the alleged proposal of respondent Oscar Martinez to assign commercial lots by dacion en pago to settle their loan obligations, petitioner pointed out that the properties offered for dacion are not owned, and much less to be owned by him, but purportedly owned by another corporation (developer), the president of which supposedly owes him a sum of money. Respondent Oscar Martinez likewise admitted during the hearings before the trial court his unpaid loan with petitioner. Moreover, with the filing of a petition for extrajudicial foreclosure of the real estate mortgage by petitioner, it serves more than a formal rejection of respondents dacion en pago offer. 13 On their part, the respondents contended that the petition raises factual issues not proper in an appeal by certiorari under Rule 45. They asserted that the trial court correctly found sufficient legal basis to grant the writ of preliminary injunction after conducting a summary hearing in which both parties actively participated and submitted oral and documentary evidence. Such evidence adduced by respondents, as well as the Affidavit dated January 24, 2003 of Atty. Oscar Martinez (adopted in the February 7, 2003

hearing) fully supported their application and hence the trial court did not act precipitately or arbitrarily in granting injunctive relief.14 Respondents argued that they appear to be entitled to the relief demanded by their Complaint "because petitioner was in bad faith when it proceeded to foreclose while there was still a pending written proposal to pay." They stand to lose a prime property, and thus made a serious and sincere offer by way of dacion en pago. To show good faith and as required by petitioner to continue the negotiations for dacion, respondent Atty. Oscar Martinez even paid P100,000.00 in October 2002, which petitioner accepted. But petitioner maliciously, fraudulently and hastily proceeded to foreclose the renovated mortgaged property, apparently motivated by its discovery after re-appraisal that the floor area of the townhouse and number of its rooms had doubled (from 180.750 sq. m. with three [3] bedrooms, it is now 350 sq. m. with six [6] bedrooms). Respondents contended that as creditor, it was petitioners duty not to sit on respondents dacion offer and should have informed them in writing that said offer is rejected. By hanging on the dacion talks, petitioner thus prevented the respondents repayment of the loan, in malicious haste to acquire the condominium unit as asset.15 Respondents further claimed that the extrajudicial foreclosure will cause grave injustice and irreparable injury to respondent-spouses and their four (4) young children because their family home, in which they were residing since 1997, at least insofar as the unencumbered area in excess of 180.750 sq. m., is exempt from forced sale or execution under Article 155 of the Family Code. Petitioner, on the other hand, will not suffer any loss if the foreclosure will not proceed.16 With respect to the commercial lots offered in dacion, respondents fault the petitioner in deliberately ignoring the fact that the Blue Mountains Subdivision located at Antipolo City was already approved by the Land Registration Authority; although the subdivided lots have already been applied, the individual titles had not yet been issued. It was therefore impossible for respondents to deliver these titles to petitioner by October 21, 2002 considering the normal time it takes to secure land titles. Respondents deplored the sudden filing of the petition for extrajudicial foreclosure, which was unfair as the negotiations had already reached the stage when petitioner scheduled an ocular inspection for the appraisal of the lots. However, for unknown reasons, petitioner did not push through with the inspection. 17 We grant the petition. Section 3, Rule 58 of the Rules of Court provides that: SEC. 3. Grounds for issuance of preliminary injunction.A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. As such, a writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action. The twin requirements of a valid injunction are the existence of a right and its actual or threatened violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation against that right must be shown.18 A writ of preliminary injunction may be issued only upon clear showing of an actual existing right to be protected during the pendency of the principal action.19 The issuance of a preliminary injunction rests entirely within the discretion of the court taking cognizance of the case and is generally not interfered with except in cases of manifest abuse.20 For the issuance of the writ of preliminary injunction to be proper, it must be shown that the invasion of the

right sought to be protected is material and substantial, that the right of complainant is clear and unmistakable and that there is an urgent and paramount necessity for the writ to prevent serious damage. In the absence of a clear legal right, the issuance of a writ of injunction constitutes grave abuse of discretion.21 The possibility of irreparable damage without proof of actual existing right is no ground for an injunction.22 Hence, it is not sufficient for the respondents to simply harp on the serious damage they stand to suffer if the foreclosure sale is not stayed. They must establish such clear and unmistakable right to the injunction. In Duvaz Corporation v. Export and Industry Bank,23 we emphasized that it is necessary for the petitioner to establish in the main case its rights on an alleged dacion en pago agreement before those rights can be deemed actual and existing, which would justify the injunctive writ. Thus: In Almeida v. Court of Appeals, the Court stressed how important it is for the applicant for an injunctive writ to establish his right thereto by competent evidence: Thus, the petitioner, as plaintiff, was burdened to adduce testimonial and/or documentary evidence to establish her right to the injunctive writs. It must be stressed that injunction is not designed to protect contingent or future rights, and, as such, the possibility of irreparable damage without proof of actual existing right is no ground for an injunction. A clear and positive right especially calling for judicial protection must be established. Injunction is not a remedy to protect or enforce contingent, abstract, or future rights; it will not issue to protect a right not in esse and which may never arise, or to restrain an action which did not give rise to a cause of action. There must be an existence of an actual right. Hence, where the plaintiffs right or title is doubtful or disputed, injunction is not proper. An injunctive remedy may only be resorted to when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation. The possibility of irreparable damage without proof of an actual existing right would not justify injunctive relief in his favor. xxx xxx xxx

real estate mortgage when the principal obligation is not paid when due, the mortgagee has the right to foreclose the mortgage and to have the property seized and sold with the view of applying the proceeds to the payment of the obligation.27 This Court has denied the application for a Writ of Preliminary Injunction that would enjoin an extrajudicial foreclosure of a mortgage, and declared that foreclosure is proper when the debtors are in default of the payment of their obligation. Where the parties stipulated in their credit agreements, mortgage contracts and promissory notes that the mortgagee is authorized to foreclose the mortgaged properties in case of default by the mortgagors, the mortgagee has a clear right to foreclosure in case of default, making the issuance of a Writ of Preliminary Injunction improper.28 In these cases, unsubstantiated allegations of denial of due process and prematurity of a loan are not sufficient to defeat the mortgagees unmistakable right to an extrajudicial foreclosure.29 We cannot agree with respondents position that petitioners act of initiating extrajudicial foreclosure proceeding while they negotiated for a dacion en pago was illegal and done in bad faith. As respondent-spouses themselves admitted, they failed to comply with the documentary requirements imposed by the petitioner for proper evaluation of their proposal. In any event, petitioner had found the subdivision lots offered for dacion as unacceptable, not only because the lots were not owned by respondents as in fact, the lots were not yet titled but also for the reason that respondent Oscar Martinezs claimed right therein was doubtful or inchoate, and hence not in esse. Requests by debtors-mortgagors for extensions to pay and proposals for restructuring of the loans, without acceptance by the creditor-mortgagee, remain as that. Without more, those proposals neither novated the parties mortgage contract nor suspended its execution.30 In the same vein, negotiations for settlement of the mortgage debt by dacion en pago do not extinguish the same nor forestall the creditor-mortgagees exercise of its right to foreclose as provided in the mortgage contract. As we held in Tecnogas Philippines Manufacturing Corporation v. Philippine National Bank31 -Dacion en pago is a special mode of payment whereby the debtor offers another thing to the creditor who accepts it as equivalent of payment of an outstanding obligation. The undertaking is really one of sale, that is, the creditor is really buying the thing or property of the debtor, payment for which is to be charged against the debtors debt. As such, the essential elements of a contract of sale, namely, consent, object certain, and cause or consideration must be present. It is only when the thing offered as an equivalent is accepted by the creditor that novation takes place, thereby, totally extinguishing the debt. On the first issue, the Court of Appeals did not err in ruling that Tecnogas has no clear legal right to an injunctive relief because its proposal to pay by way of dacion en pago did not extinguish its obligation. Undeniably, Tecnogas proposal to pay by way of dacion en pago was not accepted by PNB. Thus, the unaccepted proposal neither novates the parties mortgage contract nor suspends its execution as there was no meeting of the minds between the parties on whether the loan will be extinguished by way of dacion en pago. Necessarily, upon Tecnogas default in its obligations, the foreclosure of the REM becomes a matter of right on the part of PNB, for such is the purpose of requiring security for the loans. [emphasis supplied.] Respondent-spouses alleged "proprietary right" in the mortgaged condominium unit appears to be based merely on respondents averment that respondent OJ-Mark Trading, Inc. is a family corporation. However, there is neither allegation nor evidence to show prima facie that such purported right, whether as majority stockholder or creditor, was superior to that of petitioner as creditor-mortgagee. The rule requires that in order for a preliminary injunction to issue, the application should clearly allege facts and circumstances showing the existence of the requisites. It must be emphasized that an application for injunctive relief is construed strictly against the pleader.32 We note that the claim of exemption under Art. 153 of the Family Code, thereby raising issue on the mortgaged condominium unit being a family home and not corporate property, is entirely inconsistent with the clear contractual agreement of the REM.33 Assuming arguendo that the mortgaged condominium unit constitutes respondents family home, the same will not exempt it from foreclosure as Article 155 (3) of the same Code allows the execution or forced sale of a family home "for debts secured by mortgages

x x x. In the absence of a clear legal right, the issuance of the injunctive writ constitutes grave abuse of discretion. As the Court had the occasion to state in Olalia v. Hizon, 196 SCRA 665 (1991): It has been consistently held that there is no power the exercise of which is more delicate, which requires greater caution, deliberation and sound discretion, or more dangerous in a doubtful case, than the issuance of an injunction. It is the strong arm of equity that should never be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. Every court should remember that an injunction is a limitation upon the freedom of action of the defendant and should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it.1avvphi1 We are in full accord with the CA when it struck down, for having been issued with grave abuse of discretion, the RTCs Order of September 25, 2002, granting petitioners prayer for a writ of preliminary injunction during the pendency of the main case, Civil Case No. 02-1029. The reason therefor is that the right sought to be protected by the petitioner in this case through the writ of preliminary injunction is merely contingent and not in esse. It bears stressing that the existing written contract between petitioner and respondent was admittedly one of loan restructuring; there is no mention whatsoever or even a slightest reference in that written contract to a supposed agreement of dacion en pago. In fine, it is still necessary for petitioner to establish in the main case its rights on the alleged dacion en pago before those rights become in esse or actual and existing. Only then can the injunctive writ be properly issued. It cannot be the other way around. Otherwise, it will be like putting the cart before the horse.24 [emphasis supplied.] In the case at bar, respondents failed to show that they have a right to be protected and that the acts against which the writ is to be directed are violative of the said right. On the face of their clear admission that they were unable to settle their obligations which were secured by the mortgage, petitioner has a clear right to foreclose the mortgage. 25 Foreclosure is but a necessary consequence of non-payment of a mortgage indebtedness.26 In a

on the premises before or after such constitution." Respondents thus failed to show an ostensible right that needs protection of the injunctive writ. Clearly, the appellate court seriously erred in sustaining the trial courts orders granting respondents application for preliminary injunction. Anent the grave and irreparable injury which respondents alleged they will suffer if no preliminary injunction is issued, this Court has previously declared that all is not lost for defaulting mortgagors whose properties were foreclosed by creditors-mortgagees, viz: In any case, petitioners will not be deprived outrightly of their property. Pursuant to Section 47 of the General Banking Law of 2000, mortgagors who have judicially or extrajudicially sold their real property for the full or partial payment of their obligation have the right to redeem the property within one year after the sale. They can redeem their real estate by paying the amount due, with interest rate specified, under the mortgage deed; as well as all the costs and expenses incurred by the bank. Moreover, in extrajudicial foreclosures, petitioners have the right to receive any surplus in the selling price. This right was recognized in Sulit v. CA, in which the Court held that "if the mortgagee is retaining more of the proceeds of the sale than he is entitled to, this fact alone will not affect the validity of the sale but simply gives the mortgagor a cause of action to recover such surplus.34 WHEREFORE, the petition is GRANTED. The Decision dated October 29, 2004 of the Court of Appeals in CA-G.R. SP No. 77703 is hereby REVERSED and SET ASIDE. Respondents application for a writ of preliminary injunction is DENIED. -DE MESA vs. ACERO Nature of the Petition This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by the Spouses Araceli Oliva-De Mesa (Araceli) and Ernesto S. De Mesa (Ernesto), assailing the Court of Appeals (CA) Decision1 dated June 6, 2008 and Resolution2 dated October 23, 2008 in CA-G.R. CV No. 79391 entitled Spouses Araceli Oliva-De Mesa and Ernesto De Mesa v. Spouses Claudio Acero, Jr., et al. The Antecedent Facts This involves a parcel of land situated at No. 3 Forbes Street, Mount Carmel Homes Subdivision, Iba, Meycauayan, Bulacan, which was formerly covered by Transfer Certificate of Title (TCT) No. T-76.725 (M) issued by the Register of Deeds of Meycauayan, Bulacan and registered under Aracelis name. The petitioners jointly purchased the subject property on April 17, 1984 while they were still merely cohabiting before their marriage. A house was later constructed on the subject property, which the petitioners thereafter occupied as their family home after they got married sometime in January 1987. Sometime in September 1988, Araceli obtained a loan from Claudio D. Acero, Jr. (Claudio) in the amount of P100,000.00, which was secured by a mortgage over the subject property. As payment, Araceli issued a check drawn against China Banking Corporation payable to Claudio. When the check was presented for payment, it was dishonored as the account from which it was drawn had already been closed. The petitioners failed to heed Claudios subsequent demand for payment. Thus, on April 26, 1990, Claudio filed with the Prosecutor's Office of Malolos, Bulacan a complaint for violation of Batas Pambansa Blg. 22 (B.P. 22) against the petitioners. After preliminary investigation, an information for violation of B.P. 22 was filed against the petitioners with the Regional Trial Court (RTC) of Malolos, Bulacan. On October 21, 1992, the RTC rendered a Decision3 acquitting the petitioners but ordering them to pay Claudio the amount of P100,000.00 with legal interest from date of demand until fully paid. On March 15, 1993, a writ of execution was issued and Sheriff Felixberto L. Samonte (Sheriff Samonte) levied upon the subject property. On March 9, 1994, the subject property was sold on public auction; Claudio was the highest bidder and the corresponding certificate of sale was issued to him.

Sometime in February 1995, Claudio leased the subject property to the petitioners and a certain Juanito Oliva (Juanito) for a monthly rent of P5,500.00. However, the petitioners and Juanito defaulted in the payment of the rent and as of October 3, 1998, their total accountabilities to Claudio amounted to P170,500.00. Meanwhile, on March 24, 1995, a Final Deed of Sale4 over the subject property was issued to Claudio and on April 4, 1995, the Register of Deeds of Meycauayan, Bulacan cancelled TCT No. T-76.725 (M) and issued TCT No. T-221755 (M)5 in his favor. Unable to collect the aforementioned rentals due, Claudio and his wife Ma. Rufina Acero (Rufina) (collectively referred to as Spouses Acero) filed a complaint for ejectment with the Municipal Trial Court (MTC) of Meycauayan, Bulacan against the petitioners and Juanito. In their defense, the petitioners claimed that Spouses Acero have no right over the subject property. The petitioners deny that they are mere lessors; on the contrary, they are the lawful owners of the subject property and, thus cannot be evicted therefrom. On July 22, 1999, the MTC rendered a Decision,6 giving due course to Spouses Aceros complaint and ordering the petitioners and Juanito to vacate the subject property. Finding merit in Spouses Aceros claims, the MTC dismissed the petitioners' claim of ownership over the subject property. According to the MTC, title to the subject property belongs to Claudio as shown by TCT No. T-221755 (M). The MTC also stated that from the time a Torrens title over the subject property was issued in Claudios name up to the time the complaint for ejectment was filed, the petitioners never assailed the validity of the levy made by Sheriff Samonte, the regularity of the public sale that was conducted thereafter and the legitimacy of Claudios Torrens title that was resultantly issued. The petitioners appealed the MTCs July 22, 1999 Decision to the RTC. This appeal was, however, dismissed in a Decision dated November 22, 1999 due to the petitioners failure to submit their Memorandum. The petitioners sought reconsideration of the said decision but the same was denied in an Order dated January 31, 2000. Consequently, the petitioners filed a petition for review7 with the CA assailing the RTCs November 22, 1999 Decision and January 31, 2000 Order. In a December 21, 2006 Decision,8 the CA denied the petitioners petition for review. This became final on July 25, 2007.9 In the interregnum, on October 29, 1999, the petitioners filed against the respondents a complaint10 to nullify TCT No. T-221755 (M) and other documents with damages with the RTC of Malolos, Bulacan. Therein, the petitioners asserted that the subject property is a family home, which is exempt from execution under the Family Code and, thus, could not have been validly levied upon for purposes of satisfying the March 15, 1993 writ of execution. On September 3, 2002, the RTC rendered a Decision,11 which dismissed the petitioners complaint. Citing Article 155(3) of the Family Code, the RTC ruled that even assuming that the subject property is a family home, the exemption from execution does not apply. A mortgage was constituted over the subject property to secure the loan Araceli obtained from Claudio and it was levied upon as payment therefor. The petitioners sought reconsideration of the RTCs September 3, 2002 Decision but this was denied in a Resolution12 dated January 14, 2003. On appeal, the CA affirmed the RTCs disposition in its Decision13 dated June 6, 2008. The CA ratiocinated that the exemption of a family home from execution, attachment or forced sale under Article 153 of the Family Code is not automatic and should accordingly be raised and proved to the Sheriff prior to the execution, forced sale or attachment. The appellate court noted that at no time did the petitioners raise the supposed exemption of the subject property from execution on account of the same being a family home. The petitioners then sought reconsideration of the said June 6, 2008 Decision but the same was denied by the CA in its Resolution14 dated October 23, 2008. Aggrieved, the petitioners filed the instant petition for review, praying for the cancellation of TCT No. T-221755 (M). They insist that the execution sale that was conducted is a nullity considering that the subject property is a family home. The petitioners assert that, contrary to the disposition of the CA, a prior demonstration that the subject property is a family home is not required before it can be exempted from execution.

In their Comment,15 Spouses Acero claimed that this petition ought to be denied on the ground of forum-shopping as the issues raised had already been determined by the MTC in its July 22, 1999 Decision on the complaint for ejectment filed by them, which had already become final and executory following the petitioners failure to appeal the CAs December 21, 2006 Decision affirming it. Issues The threshold issues for resolution are the following: (a) whether the petitioners are guilty of forum-shopping; and (b) whether the lower courts erred in refusing to cancel Claudios Torrens title TCT No. T-221755 (M) over the subject property. The Courts Ruling First Issue: Forum-Shopping On the first issue, we find that the petitioners are not guilty of forumshopping. There is forum-shopping when as a result of an adverse decision in one forum, or in anticipation thereof, a party seeks a favorable opinion in another forum through means other than an appeal or certiorari. Forum-shopping exists when two or more actions involve the same transactions, essential facts, and circumstances; and raise identical causes of action, subject matter, and issues.16 Forum-shopping exists where the elements of litis pendentia are present, and where a final judgment in one case will amount to res judicata in the other. The elements of forum-shopping are: (a) identity of parties, or at least such parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.17 There is no identity of issues and reliefs prayed for in the ejectment case and in the action to cancel TCT No. T-221755 (M). Verily, the primordial issue in the ejectment case is who among the contending parties has a better right of possession over the subject property while ownership is the core issue in an action to cancel a Torrens title. It is true that the petitioners raised the issue of ownership over the subject property in the ejectment case. However, the resolution thereof is only provisional as the same is solely for the purpose of determining who among the parties therein has a better right of possession over the subject property. Accordingly, a judgment rendered in an ejectment case is not a bar to action between the same parties respecting title to the land or building. Neither shall it be conclusive as to the facts therein. This issue is far from being novel and there is no reason to depart from this Courts previous pronouncements. In Malabanan v. Rural Bank of Cabuyao, Inc.,18 this Court had previously clarified that a decision in an ejectment case is not res judicata in an annulment of title case and vice-versa given the provisional and inconclusive nature of the determination of the issue of ownership in the former. Forum-shopping exists where the elements of litis pendentia are present, namely: (a) identity of parties or at least such as representing the same interests in both actions; (b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts; and (c) the identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amounts to res judicata in the other. Petitioner and respondent are the same parties in the annulment and ejectment cases. The issue of ownership was likewise being contended, with same set of evidence being presented in both cases. However, it cannot be inferred that a judgment in the ejectment case would amount to res judicata in the annulment case, and vice-versa. This issue is hardly a novel one. It has been laid to rest by heaps of cases iterating the principle that a judgment rendered in an ejectment case shall not bar an action between the same parties respecting title to the land or building nor shall it be conclusive as to the facts therein found in a case between the same parties upon a different cause of action involving possession. It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto. Therefore, the provisional

determination of ownership in the ejectment case cannot be clothed with finality. Corollarily, the incidental issue of whether a pending action for annulment would abate an ejectment suit must be resolved in the negative. A pending action involving ownership of the same property does not bar the filing or consideration of an ejectment suit, nor suspend the proceedings. This is so because an ejectment case is simply designed to summarily restore physical possession of a piece of land or building to one who has been illegally or forcibly deprived thereof, without prejudice to the settlement of the parties' opposing claims of juridical possession in appropriate proceedings.19 (citations omitted) Second Issue: Nullification of TCT No. T-221755 (M) Anent the second issue, this Court finds that the CA did not err in dismissing the petitioners complaint for nullification of TCT No. T-221755 (M). The subject property is a family home.

The petitioners maintain that the subject property is a family home and, accordingly, the sale thereof on execution was a nullity. In Ramos v. Pangilinan,20 this Court laid down the rules relative to exemption of family homes from execution: For the family home to be exempt from execution, distinction must be made as to what law applies based on when it was constituted and what requirements must be complied with by the judgment debtor or his successors claiming such privilege. Hence, two sets of rules are applicable. If the family home was constructed before the effectivity of the Family Code or before August 3, 1988, then it must have been constituted either judicially or extra-judicially as provided under Articles 225, 229-231 and 233 of the Civil Code. Judicial constitution of the family home requires the filing of a verified petition before the courts and the registration of the courts order with the Registry of Deeds of the area where the property is located. Meanwhile, extrajudicial constitution is governed by Articles 240 to 242 of the Civil Code and involves the execution of a public instrument which must also be registered with the Registry of Property. Failure to comply with either one of these two modes of constitution will bar a judgment debtor from availing of the privilege. On the other hand, for family homes constructed after the effectivity of the Family Code on August 3, 1988, there is no need to constitute extrajudicially or judicially, and the exemption is effective from the time it was constituted and lasts as long as any of its beneficiaries under Art. 154 actually resides therein. Moreover, the family home should belong to the absolute community or conjugal partnership, or if exclusively by one spouse, its constitution must have been with consent of the other, and its value must not exceed certain amounts depending upon the area where it is located. Further, the debts incurred for which the exemption does not apply as provided under Art. 155 for which the family home is made answerable must have been incurred after August 3, 1988.21 (citations omitted)

In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22 we stressed that: Under the Family Code, there is no need to constitute the family home judicially or extrajudicially. All family homes constructed after the effectivity of the Family Code (August 3, 1988) are constituted as such by operation of law. All existing family residences as of August 3, 1988 are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code.23 (emphasis supplied and citation omitted)

The foregoing rules on constitution of family homes, for purposes of exemption from execution, could be summarized as follows: First, family residences constructed before the effectivity of the Family Code or before August 3, 1988 must be constituted as a family home either judicially or extrajudicially in accordance with the provisions of the Civil Code in order to be exempt from execution; Second, family residences constructed after the effectivity of the Family Code on August 3, 1988 are automatically deemed to be family homes and thus exempt from execution from the time it was constituted and lasts as long as any of its beneficiaries actually resides therein;

Third, family residences which were not judicially or extrajudicially constituted as a family home prior to the effectivity of the Family Code, but were existing thereafter, are considered as family homes by operation of law and are prospectively entitled to the benefits accorded to a family home under the Family Code. Here, the subject property became a family residence sometime in January 1987. There was no showing, however, that the same was judicially or extrajudicially constituted as a family home in accordance with the provisions of the Civil Code. Still, when the Family Code took effect on August 3, 1988, the subject property became a family home by operation of law and was thus prospectively exempt from execution. The petitioners were thus correct in asserting that the subject property was a family home. The family homes exemption from execution must be set up and proved to the Sheriff before the sale of the property at public auction.

Under the cited provision, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence; there is no need to constitute the same judicially or extrajudicially. The settled rule is that the right to exemption or forced sale under Article 153 of the Family Code is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself before the sale of the property at public auction. It is not sufficient that the person claiming exemption merely alleges that such property is a family home. This claim for exemption must be set up and proved to the Sheriff. x x x.28 (emphasis supplied and citations omitted)

Having failed to set up and prove to the sheriff the supposed exemption of the subject property before the sale thereof at public auction, the petitioners now are barred from raising the same. Failure to do so estop them from later claiming the said exemption. Indeed, the family home is a sacred symbol of family love and is the repository of cherished memories that last during ones lifetime.29 It is likewise without dispute that the family home, from the time of its constitution and so long as any of its beneficiaries actually resides therein, is generally exempt from execution, forced sale or attachment.30 The family home is a real right, which is gratuitous, inalienable and free from attachment. It cannot be seized by creditors except in certain special cases.31 However, this right can be waived or be barred by laches by the failure to set up and prove the status of the property as a family home at the time of the levy or a reasonable time thereafter. In this case, it is undisputed that the petitioners allowed a considerable time to lapse before claiming that the subject property is a family home and its exemption from execution and forced sale under the Family Code. The petitioners allowed the subject property to be levied upon and the public sale to proceed. One (1) year lapsed from the time the subject property was sold until a Final Deed of Sale was issued to Claudio and, later, Aracelis Torrens title was cancelled and a new one issued under Claudios name, still, the petitioner remained silent. In fact, it was only after the respondents filed a complaint for unlawful detainer, or approximately four (4) years from the time of the auction sale, that the petitioners claimed that the subject property is a family home, thus, exempt from execution. For all intents and purposes, the petitioners negligence or omission to assert their right within a reasonable time gives rise to the presumption that they have abandoned, waived or declined to assert it. Since the exemption under Article 153 of the Family Code is a personal right, it is incumbent upon the petitioners to invoke and prove the same within the prescribed period and it is not the sheriffs duty to presume or raise the status of the subject property as a family home. The petitioners negligence or omission renders their present assertion doubtful; it appears that it is a mere afterthought and artifice that cannot be countenanced without doing the respondents injustice and depriving the fruits of the judgment award in their favor. Simple justice and fairness and equitable considerations demand that Claudios title to the property be respected. Equity dictates that the petitioners are made to suffer the consequences of their unexplained negligence. WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Decision dated June 6, 2008 of the Court of Appeals in CA-G.R. CV No. 79391, which affirmed the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, in Civil Case No. 1058-M-99 and dismissed the complaint for declaration of nullity of TCT No. 221755 (M) and other documents, and the October 23, 2008 Resolution denying reconsideration, are AFFIRMED. -SPOUSES CHARLIE FORTALEZA and OFELIA FORTALEZA vs. SPOUSES RAUL LAPITAN and RONA LAPITAN Unless a case falls under recognized exceptions provided by law and jurisprudence, courts should maintain the ex parte, non-adversarial, summary and ministerial nature of the issuance of a writ of possession. Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court is the Decision2 of the Court of Appeals (CA) dated January 10, 2007 in CA-G.R. CV No. 86287 which affirmed the Order3 of the Regional Trial Court (RTC) of Calamba City Branch 35, dated September 16, 2005 in SLRC Case No. 2528-2004-C granting an ex parte petition for the issuance of writ

Despite the fact that the subject property is a family home and, thus, should have been exempt from execution, we nevertheless rule that the CA did not err in dismissing the petitioners complaint for nullification of TCT No. T221755 (M). We agree with the CA that the petitioners should have asserted the subject property being a family home and its being exempted from execution at the time it was levied or within a reasonable time thereafter. As the CA aptly pointed out: In the light of the facts above summarized, it is evident that appellants did not assert their claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on exemption, does not mean a time after the expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on execution, otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of execution to put an end to litigation. x x x.24 The foregoing disposition is in accord with the Courts November 25, 2005 Decision in Honrado v. Court of Appeals,25 where it was categorically stated that at no other time can the status of a residential house as a family home can be set up and proved and its exemption from execution be claimed but before the sale thereof at public auction: While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved to the Sheriff before the sale of the property at public auction. Failure to do so would estop the party from later claiming the exemption. As this Court ruled in Gomez v. Gealone: Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-settled that the right of exemption is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself at the time of the levy or within a reasonable period thereafter; In the absence of express provision it has variously held that claim (for exemption) must be made at the time of the levy if the debtor is present, that it must be made within a reasonable time, or promptly, or before the creditor has taken any step involving further costs, or before advertisement of sale, or at any time before sale, or within a reasonable time before the sale, or before the sale has commenced, but as to the last there is contrary authority. In the light of the facts above summarized, it is self-evident that appellants did not assert their claim of exemption within a reasonable time. Certainly, reasonable time, for purposes of the law on exemption, does not mean a time after the expiration of the one-year period provided for in Section 30 of Rule 39 of the Rules of Court for judgment debtors to redeem the property sold on execution, otherwise it would render nugatory final bills of sale on execution and defeat the very purpose of executionto put an end to litigation. We said before, and We repeat it now, that litigation must end and terminate sometime and somewhere, and it is essential to an effective administration of justice that, once a judgment has become final, the winning party be not, through a mere subterfuge, deprived of the fruits of the verdict. We now rule that claims for exemption from execution of properties under Section 12 of Rule 39 of the Rules of Court must be presented before its sale on execution by the sheriff.26 (citations omitted)

Reiterating the foregoing in Spouses Versola v. Court of Appeals,27 this Court stated that:

of possession. Likewise assailed is the CA Resolution4 dated June 6, 2007 which denied the Motion for Reconsideration5 of the said assailed Decision. Factual Antecedents Spouses Charlie and Ofelia Fortaleza (spouses Fortaleza) obtained a loan from spouses Rolando and Amparo Lapitan (creditors) in the amount of P1.2 million subject to 34% interest per annum. As security, spouses Fortaleza executed on January 28, 1998 a Deed of Real Estate Mortgage6 over their residential house and lot situated in Barrio Anos, Municipality of Los Baos, Laguna (subject property) registered under Transfer Certificate of Title (TCT) No. T-412512.7 When spouses Fortaleza failed to pay the indebtedness including the interests and penalties, the creditors applied for extrajudicial foreclosure of the Real Estate Mortgage before the Office of the Clerk of Court and ExOfficio Sheriff of Calamba City. The public auction sale was set on May 9, 2001. At the sale, the creditors son Dr. Raul Lapitan and his wife Rona (spouses Lapitan) emerged as the highest bidders with the bid amount of P2.5 million. Then, they were issued a Certificate of Sale8 which was registered with the Registry of Deeds of Calamba City and annotated at the back of TCT No. T412512 under Entry No. 615683 on November 15, 2002.9 The one-year redemption period expired without the spouses Fortaleza redeeming the mortgage. Thus, spouses Lapitan executed an affidavit of consolidation of ownership on November 20, 2003 and caused the cancellation of TCT No. T-412512 and the registration of the subject property in their names under TCT No. T-53594510 on February 4, 2004. Despite the foregoing, the spouses Fortaleza refused spouses Lapitans formal demand11 to vacate and surrender possession of the subject property. Proceedings before the Regional Trial Court On August 27, 2004, spouses Lapitan filed an ex parte petition for the issuance of writ of possession with Branch 35 of the RTC of Calamba City docketed as SLRC Case No. 2528-2004-C.12 As new registered owners of the subject property, spouses Lapitan claimed that they were entitled to its possession pursuant to Section 7 of Act No. 3135,13 as amended by Act No. 4118. In their opposition,14 spouses Fortaleza questioned the validity of the real estate mortgage and the foreclosure sale. They argued that the mortgage was void because the creditors bloated the principal amount by the imposition of exorbitant interest. Spouses Fortaleza added that the foreclosure proceeding was invalid for non-compliance with the posting requirement. Later, for repeated failure of spouses Fortaleza to appear at the scheduled hearings, the RTC allowed spouses Lapitan to present evidence ex parte. Eventually, on September 16, 2005, the RTC ordered the issuance of a writ of possession explaining that it is a ministerial duty of the court especially since the redemption period had expired and a new title had already been issued in the name of the spouses Lapitan, thus: WHEREFORE, premises considered, the Opposition with counterclaim filed by the respondents is denied while this instant petition is hereby granted. Accordingly, the Branch Clerk of Court is hereby ordered to issue a Writ of Possession directing the provincial sheriff of Laguna to place the petitioner in possession of the above described property free from any adverse occupants thereof. SO ORDERED.15 Spouses Fortaleza moved for reconsideration,16 claiming that the subject property is their family home and is exempt from foreclosure sale. On October 11, 2005, however, the RTC issued an Order17 denying their motion. Accordingly, the branch clerk of court issued the Writ of Possession18 and the sheriff served the corresponding Notice to Vacate19 against spouses Fortaleza.

Proceedings before the Court of Appeals Dissatisfied, spouses Fortaleza elevated the case to the CA via Rule 41 of the Rules of Court docketed as CA-G.R. CV No. 86287. With the perfection of an appeal, the RTC held in abeyance the implementation of the writ. 20 After the parties submitted their respective briefs, the CA rendered the assailed Decision21 dated January 10, 2007 dismissing the appeal: WHEREFORE, the appeal is hereby DISMISSED. The Order dated September 16, 2005 of the Regional Trial Court, Branch 35, Calamba City in SLRC Case No. 2528-2004-SC, is AFFIRMED. The court a quo is DIRECTED to enforce the Writ of Possession it issued on October 24, 2005. SO ORDERED.22 In affirming the ruling of the RTC, the CA stressed that any question regarding the regularity and validity of the mortgage or its foreclosure cannot be raised as a justification for opposing the issuance of the writ of possession since the proceedings is ex parte and non-litigious. Moreover, until the foreclosure sale is annulled, the issuance of the writ of possession is ministerial. Issues Unsuccesful with their quest to have the CA reconsider its Decision,23 spouses Fortaleza filed this petition for review on certiorari24 raising the following errors: I WHETHER X X X THE HONORABLE COURT OF APPEALS VIOLATED THE TWO (2)-RAFFLE RULE PRESCRIBED BY AND LONG ESTABLISHED UNDER THE REVISED INTERNAL RULES OF THE COURT OF APPEALS WHEN IT IMMEDIATELY RENDERED THE ASSAILED DECISION BARELY AFTER THE SUBMISSION OF THE PARTIES BRIEFS. IN SO DOING, THE HONORABLE COURT OF APPEALS ENGAGED IN PROCEDURAL SHORTCUTS AND ACTED WITH UNDUE HASTE AND INDECENT SPEED, THUS RENDERING ITS DECISION AS NULL AND VOID AND CHARACTERIZED BY MANIFEST BIAS AND PARTIALITY TO THE RESPONDENTS. II WHETHER X X X THE HONORABLE COURT OF APPEALS COMMITTED A SERIOUS REVERSIBLE ERROR IN UPHOLDING THE TRIAL COURTS ISSUANCE OF A WRIT OF POSSESSION DESPITE THE FACT THAT THE RESPONDENTS FAILED TO ESTABLISH THEIR ENTITLEMENT TO THE ISSUANCE OF SAID WRIT, THE NON-COMPLIANCE BY THE ORIGINAL MORTGAGORS AND THE RESPONDENTS OF THE STATUTORY REQUIREMENTS OF EXTRAJUDICIAL FORECLOSURE OF MORTGAGE UNDER ACT NO. 3135, AND THE FATAL DEFECTS OF THE FORECLOSURE PROCEEDINGS. III THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING THAT THE PETITIONERS WERE PREVENTED BY THE RESPONDENTS FROM EXERCISING THEIR RIGHT OF REDEMPTION OVER THE FORECLOSED PROPERTY BY DEMANDING A REDEMPTION PRICE OF A HIGHLY INEQUITABLE AND MORE THAN DOUBLE THE AMOUNT OF THE FORECLOSED PROPERTY, ESPECIALLY THAT THE FORECLOSED MORTGAGED PROPERTY IS THE FAMILY HOME OF PETITIONERS AND THEIR CHILDREN.25 First, spouses Fortaleza point out that the CA violated its own 2002 Internal Rules of Procedure when it decided the case without passing the two-raffle system. They claim that the justice assigned in the completion stage also decided the case on the merits. This procedural shortcut, according to spouses Fortaleza, evinces the appellate courts bias and prejudgment in favor of the spouses Lapitan. Second, citing Barican v. Intermediate Appellate Court26 and Cometa v. Intermediate Appellate Court,27 and reiterating the irregularities that allegedly attended the foreclosure sale, the spouses Fortaleza insist that the issuance

of writ of possession is not always ministerial and the trial court should have accorded them opportunity to present contrary evidence. Last, spouses Fortaleza maintain that the subject property is a family home exempt from forced sale. Hence, in the spirit of equity and following the rulings in Tolentino v. Court of Appeals,28 and De los Reyes v. Intermediate Appellate Court,29 the Court should allow them to exercise the right of redemption even after the expiration of the one-year period. Our Ruling

We also find that personal bias and prejudgment cannot be inferred from the alleged breach of internal rules. It is settled that clear and convincing evidence is required to prove bias and prejudice.36 Bare allegations and mere suspicions of partiality are not enough in the absence of evidence to overcome the presumption that a member of the court will undertake his noble role to dispense justice according to law and evidence and without fear or favor.37 Moreover, no acts or conduct of the division or the ponente was shown to indicate any arbitrariness against the spouses Fortaleza. What is extant is that the opinions formed in the course of judicial proceedings are all based on the evidence presented. On the Issuance of Writ of Possession

On Matters of Procedure True, under the 2002 Internal Rules of the Court of Appeals (IRCA), appealed civil cases undergo two-raffle system. First, a preliminary raffle is held to determine the Justice to whom the case will be assigned for completion of records. After completion, a second raffle is conducted to determine the Justice to whom the case will be assigned for study and report. "Each stage is distinct and it may happen that the Justice to whom the case was initially raffled for completion may not be the same Justice who will write the decision thereon."30 Thus: Section 2. Raffle of Cases. (a) Assignment of cases to a Justice, whether for completion of records or for study and report, shall be by raffle, subject to the following rules: (1) Appealed cases for completion of records shall be raffled to individual Justices; (Sec. 5(a), Rule 3, RIRCA [a]) (1.1) Records are deemed completed upon filing of the required briefs or memoranda or the expiration of the period for the filing thereof and resolution of all pending incidents. Thereupon, the Division Clerk of Court shall report the case to the Justice concerned for the issuance of a resolution declaring the case submitted for decision and referring the same to the Raffle Committee for raffle to a Justice for study and report; (Sec. 5(b), Rule 3, RIRCA [a]).31 (Emphasis supplied.) However, the two-raffle system is already abandoned under the 2009 IRCA. As the rule now stands, the Justice to whom a case is raffled shall act on it both at the completion stage and for the decision on the merits, thus: SEC. 2. Raffle of Cases. (a) Cases shall be assigned to a Justice by raffle for completion of records, study and report, subject to the following rules: (1) Cases, whether original or appealed, shall be raffled to individual justices; (1.1) Records are deemed completed upon filing of the required pleadings, briefs or memoranda or the expiration of the period for the filing thereof and resolution of all pending incidents. Upon such completion, the Division Clerk of Court shall report the case to the Justice concerned for the issuance of a resolution declaring the case submitted for decision.32 (Emphasis supplied.) Corollarily, the alleged defect in the processing of this case before the CA has been effectively cured. We stress that rules of procedure may be modified at any time and become effective at once, so long as the change does not affect vested rights.33 Moreover, it is equally axiomatic that there are no vested rights to rules of procedure.34 Thus, unless spouses Fortaleza can establish a right by virtue of some statute or law, the alleged violation is not an actionable wrong.35 At any rate, the 2002 IRCA does not provide for the effect of non-compliance with the two-raffle system on the validity of the decision. Notably too, it does not prohibit the assignment by raffle of a case for study and report to a Justice who handled the same during its completion stage. Spouses Fortaleza claim that the RTC grievously erred in ignoring the apparent nullity of the mortgage and the subsequent foreclosure sale. For them, the RTC should have heard and considered these matters in deciding the case on its merits. They relied on the cases of Barican38 and Cometa39 in taking exception to the ministerial duty of the trial court to grant a writ of possession. But the cited authorities are not on all fours with this case. In Barican, we held that the obligation of a court to issue a writ of possession ceases to be ministerial if there is a third party holding the property adversely to the judgment debtor. Where such third party exists, the trial court should conduct a hearing to determine the nature of his adverse possession. And in Cometa, there was a pending action where the validity of the levy and sale of the properties in question were directly put in issue which this Court found preemptive of resolution. For if the applicant for a writ of possession acquired no interest in the property by virtue of the levy and sale, then, he is not entitled to its possession. Moreover, it is undisputed that the properties subject of said case were sold at an unusually lower price than their true value. Thus, equitable considerations motivated this Court to withhold the issuance of the writ of possession to prevent injustice on the other party. Here, there are no third parties holding the subject property adversely to the judgment debtor. It was spouses Fortaleza themselves as debtorsmortgagors who are occupying the subject property. They are not even strangers to the foreclosure proceedings in which the ex parte writ of possession was applied for. Significantly, spouses Fortaleza did not file any direct action for annulment of the foreclosure sale of the subject property. Also, the peculiar circumstance of gross inadequacy of the purchase price is absent. Accordingly, unless a case falls under recognized exceptions provided by law40 and jurisprudence,41 we maintain the ex parte, non-adversarial, summary and ministerial nature of the issuance of a writ of possession as outlined in Section 7 of Act No. 3135, as amended by Act No. 4118, which provides: SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court of First Instance of the province or place where the property or any part thereof is situated, to give him possession thereof during the redemption period, furnishing bond in an amount equivalent to the use of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale was made without violating the mortgage or without complying with the requirements of this Act. Such petition shall be made under oath and filed in form of an ex parte motion x x x and the court shall, upon approval of the bond, order that a writ of possession issue, addressed to the sheriff of the province in which the property is situated, who shall execute said order immediately. (Emphasis supplied.) Under the provision cited above, the purchaser in a foreclosure sale may apply for a writ of possession during the redemption period. Notably, in this case, the one-year period for the spouses Fortaleza to redeem the mortgaged property had already lapsed. Furthermore, ownership of the subject property had already been consolidated and a new certificate of title had been issued under the name of the spouses Lapitan. Hence, as the new registered owners of the subject property, they are even more entitled to its possession and have the unmistakable right to file an ex parte motion for the issuance of a writ of possession. As aptly explained in Edralin v. Philippine Veterans Bank,42 the duty of the trial court to grant a writ of possession in such instances is ministerial, and the court may not exercise discretion or judgment, thus: Consequently, the purchaser, who has a right to possession after the expiration of the redemption period, becomes the absolute owner of the property when no redemption is made. x x x The purchaser can demand possession at any time following the consolidation of ownership in his name

and the issuance to him of a new TCT. After consolidation of title in the purchasers name for failure of the mortgagor to redeem the property, the purchasers right to possession ripens into the absolute right of a confirmed owner. At that point, the issuance of a writ of possession, upon proper application and proof of title becomes merely a ministerial function. Effectively, the court cannot exercise its discretion. (Emphasis in the original.) In this case, spouses Lapitan sufficiently established their right to the writ of possession. More specifically, they presented the following documentary exhibits: (1) the Certificate of Sale and its annotation at the back of spouses Fortalezas TCT No. T-412512; (2) the Affidavit of Consolidation proving that spouses Fortaleza failed to redeem the property within the one-year redemption period; (3) TCT No. T-535945 issued in their names; and, (4) the formal demand on spouses Fortaleza to vacate the subject property. Lastly, we agree with the CA that any question regarding the regularity and validity of the mortgage or its foreclosure cannot be raised as a justification for opposing the petition for the issuance of the writ of possession. 43 The said issues may be raised and determined only after the issuance of the writ of possession.44 Indeed, "[t]he judge with whom an application for writ of possession is filed need not look into the validity of the mortgage or the manner of its foreclosure."45 The writ issues as a matter of course. "The rationale for the rule is to allow the purchaser to have possession of the foreclosed property without delay, such possession being founded on the right of ownership."46 To underscore this mandate, Section 847 of Act No. 3135 gives the debtor-mortgagor the right to file a petition for the setting aside of the foreclosure sale and for the cancellation of a writ of possession in the same proceedings where the writ was issued within 30 days after the purchaser-mortgagee was given possession. The courts decision thereon may be appealed by either party, but the order of possession shall continue in effect during the pendency of the appeal. "Clearly then, until the foreclosure sale of the property in question is annulled by a court of competent jurisdiction, the issuance of a writ of possession remains the ministerial duty of the trial court. The same is true with its implementation; otherwise, the writ will be a useless paper judgment a result inimical to the mandate of Act No. 3135 to vest possession in the purchaser immediately."48 On exemption of the subject property and the exercise of right of redemption Spouses Fortalezas argument that the subject property is exempt from forced sale because it is a family home deserves scant consideration. As a rule, the family home is exempt from execution, forced sale or attachment. 49 However, Article 155(3) of the Family Code explicitly allows the forced sale of a family home "for debts secured by mortgages on the premises before or after such constitution." In this case, there is no doubt that spouses Fortaleza voluntarily executed on January 28, 1998 a deed of Real Estate Mortgage over the subject property which was even notarized by their original counsel of record. And assuming that the property is exempt from forced sale, spouses Fortaleza did not set up and prove to the Sheriff such exemption from forced sale before it was sold at the public auction. As elucidated in Honrado v. Court of Appeals:50 While it is true that the family home is constituted on a house and lot from the time it is occupied as a family residence and is exempt from execution or forced sale under Article 153 of the Family Code, such claim for exemption should be set up and proved to the Sheriff before the sale of the property at public auction. Failure to do so would estop the party from later claiming the exemption. As this Court ruled in Gomez v. Gealone: Although the Rules of Court does not prescribe the period within which to claim the exemption, the rule is, nevertheless, well-settled that the right of exemption is a personal privilege granted to the judgment debtor and as such, it must be claimed not by the sheriff, but by the debtor himself at the time of the levy or within a reasonable period thereafter. 51 (Emphasis supplied.) Certainly, reasonable time for purposes of the law on exemption does not mean a time after the expiration of the one-year period for a judgment debtor to redeem the property.52 Equally without merit is spouses Fortalezas reliance on the cases of Tolentino53 and De Los Reyes54 in praying for the exercise of the right of redemption even after the expiration of the one-year period. In Tolentino, we held that an action to redeem filed within the period of redemption, with a

simultaneous deposit of the redemption money tendered to the sheriff, is equivalent to an offer to redeem and has the effect of preserving the right to redemption for future enforcement even beyond the one-year period.55 And in De Los Reyes, we allowed the mortgagor to redeem the disputed property after finding that the tender of the redemption price to the sheriff was made within the one-year period and for a sufficient amount. The circumstances in the present case are far different. The spouses Fortaleza neither filed an action nor made a formal offer to redeem the subject property accompanied by an actual and simultaneous tender of payment. It is also undisputed that they allowed the one-year period to lapse from the registration of the certificate of sale without redeeming the mortgage. For all intents and purposes, spouses Fortaleza have waived or abandoned their right of redemption.1wphi1 Although the rule on redemption is liberally interpreted in favor of the original owner of the property, we cannot apply the privilege of liberality to accommodate the spouses Forteza due to their negligence or omission to exercise the right of redemption within the prescribed period without justifiable cause. WHEREFORE, premises considered, the petition is DENIED. The Decision dated January 10, 2007 and Resolution dated June 6, 2007 of the Court of Appeals in CA-G.R. CV No. 86287 are AFFIRMED. -VOLTAIRE ARBOLARIO, LUCENA ARBOLARIO TA-ALA, FE ARBOLARIO, EXALTACION ARBOLARIO, CARLOS ARBOLARIO, and Spouses ROSALITA RODRIGUEZ and CARLITO SALHAY, petitioners, vs. COURT OF APPEALS, IRENE COLINCO, RUTH COLINCO, ORPHA COLINCO and GOLDELINA COLINCO, respondents. Once a valid marriage is established, it is deemed to continue until proof that it has been legally ended is presented. Thus, the mere cohabitation of the husband with another woman will not give rise to a presumption of legitimacy in favor of the children born of the second union, until and unless there be convincing proof that the first marriage had been lawfully terminated; and the second, lawfully entered into. The Case Before us is a Petition for Review [1] under Rule 45 of the Rules of Court, challenging the February 28, 1995 Decision [2] and the March 5, 1997 Resolution [3] of the Court of Appeals (CA) in CA-GR No. 38583. The assailed Decision disposed as follows: WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED and a new one is accordingly entered (a) claim]; in Civil Case No. 385, DISMISSING the complaint and [counter-

(b) in Civil Case No. 367, ORDERING the defendant spouses to vacate the premises occupied within Lot 323, Ilog Cadastre, registered under T.C.T. No. 140081 in favor of Irene Colinco, Ruth Colinco, Orpha Colinco and Goldelina Colinco. [4] On the other hand, the assailed Resolution denied reconsideration: [5] The Facts The facts of the case are summarized by the CA as follows: The original owners of the controverted lot, spouses Anselmo Baloyo and Macaria Lirazan had five (5) children, namely: (1) Agueda Colinco, (2) Catalina Baloyo, (3) Eduardo Baloyo, (4) Gaudencia Baloyo, and (5) Julian Baloyo. All of the above-named persons are now dead. The first child, Agueda Colinco, was survived by her two children, namely, Antonio Colinco and [respondent] Irene Colinco. Antonio Colinco predeceased his three daughters, herein [respondents], Ruth, Orpha, and Goldelina, all surnamed Colinco.

The second child, Catalina Baloyo, was married to Juan Arbolario. Their union was blessed with the birth of only one child, Purificacion Arbolario, who, in 1985, died a spinster and without issue. Records disclose moreover that decedent Purificacions father, Juan Arbolario, consorted with another woman by the name of Francisca Malvas. From this cohabitation was born the [petitioners], viz, Voltaire Arbolario, Lucena Arbolario Taala, Fe Arbolario, Exaltacion Arbolario, and Carlos Arbolario (referred to hereinafter as Arbolarios). It is significant to note, at this juncture, that all the foregoing [petitioners] were born well before the year 1951. In 1946, it appears that the third child, Eduardo Baloyo, sold his entire interest in Lot 323 to his sister, Agueda Baloyo Colinco, by virtue of a notarized document acknowledged before Notary Public Deogracias Riego. In 1951, a notarized declaration of heirship was executed by and between Agueda, Catalina, Gaudencia, and their brothers Eduardo and Julian, who extrajudicially declared themselves to be the only heirs of the late spouses Anselmo Baloyo and Macaria Lirazan. The fourth child, Gaudencia Baloyo, conveyed her interest in the said lot in favor of her two nieces, Irene Colinco to one-half (1/2) and Purificacion Arbolario to the other half. And as far as Julian Baloyo -- the fifth and last child --was concerned, records could only show that he was married to a certain Margarita Palma; and that he died, presumably after 1951 without any issue. Purificacion Arbolario was then allowed to take possession of a portion of the disputed parcel until her death sometime in 1984 or 1985. It was under the foregoing set of facts that [respondents] Irene Colinco, Ruth Colinco, Orpha Colinco, and Goldelina Colinco, believing themselves to be the only surviving heirs of Anselmo Baloyo and Macaria Lirazan, executed a Declaration of Heirship and Partition Agreement, dated May 8, 1987 where they adjudicated upon themselves their proportionate or ideal shares in O.C.T. No. 16361, viz: Irene Colinco, to one-half (1/2); while the surviving daughters of her (Irenes) late brother Antonio, namely Ruth, Orpha, and Goldelina Colinco, to share in equal, ideal proportions to the remaining half (1/2). This forthwith brought about the cancellation of O.C.T. No. 16361, and the issuance of T.C.T. No. T-140018 in their names and conformably with the aforesaid distribution. On October 2, 1987, the Colincos filed Civil Case No. 367 against Spouses Rosalita Rodriguez Salhay and Carlito Salhay, seeking to recover possession of a portion of the aforesaid lot occupied by [respondent] spouses (Salhays hereinafter) since 1970. The Salhays alleged in their defense that they have been the lawful lessees of the late Purificacion Arbolario since 1971 up to 1978; and that said spouses allegedly purchased the disputed portion of Lot No. 323 from the deceased lessor sometime in [September] 1978. Meanwhile, or on May 9, 1988 -- before Civil Case No. 367 was heard and tried on the merits -- Voltaire M. Arbolario, Fe Arbolario, Lucena Arbolario Taala, Exaltacion Arbolario, Carlos Arbolario (Arbolarios, collectively) and spouses Carlito Salhay and Rosalita Rodriguez Salhay (the same defendants in Civil Case No. 367), filed Civil Case No. 385 [f]or Cancellation of Title with Damages, against the plaintiffs in Civil Case No. 367. The Arbolarios, joined by the Salhays, contend that the Declaration of Heirship and Partition Agreement executed by the Colincos was defective and thus voidable as they (Arbolarios) were excluded therein. The Arbolarios claim that they succeeded intestate to the inheritance of their alleged half-sister, Purificacion Arbolario; and, as forced heirs, they should be included in the distribution of the aforesaid lot. [6] Ruling of the Trial Court

WHEREFORE, premises considered, judgment is hereby rendered in favor of the [Arbolarios] and against the [Colincos] in Civil Case No. 385 -1) Declaring that the Declaration of Heirship and Partition Agreement, dated May 8, 1987, executed by Irene, Ruth, Orpha and Goldelina, all surnamed Colinco, as null and void and of no effect insofar as the share of Purificacion Arbolario in Lot No. 323 is concerned[;] 2) Ordering the Register of Deeds of Negros Occidental to cancel Transfer Certificate of Title No. T-140018 and issue a new one in the names of Voltaire Arbolario, Lucena Arbolario Ta-ala, Carlos Arbolario, Fe Arbolario and Exaltacion Arbolario, 3/8 share or One thousand Six Hundred Forty Three Point Five (1,643.5) square meters, and the remaining 5/8 share or One Thousand Seventy Two Point Five (1,072.5) square meters in the names of Irene Colinco, Ruth Colinco, Orpha Colinco and Goldelina Colingco or other heirs, if any[;] 3) Ordering the [Respondents] Irene, Ruth, Orpha and Goldelina, all surnamed Colinco, to pay jointly and severally to [Petitioners] Voltaire M. Arbolario, et al., the sum of Ten Thousand Pesos (P10,000.00) as moral damages, Five Thousand Pesos (P5,000.00) as attorneys fees and the x x x sum of One Thousand Pesos (P1,500.00) as appearance fees; and in Civil Case No. 367 -1) Ordering the dismissal of [respondents] complaint and the [petitioners] counter-claim for lack of legal basis. In both cases -1) Ordering the Colincos to pay costs. [8]

The trial court held that the Arbolarios were the brothers and the sisters of the deceased Purificacion Arbolario, while the Colincos were her cousins and nieces. Pursuant to Article 1009 of the Civil Code, the Colincos could not inherit from her, because she had half-brothers and half-sisters. Their 1987 Declaration of Heirship and Partition Agreement was made in bad faith, because they knew all along the existence of, and their relationship with, the Arbolarios. The Salhays, on the other hand, had no document to prove their acquisition and possession of a portion of the disputed lot. Ruling of the Court of Appeals On appeal, the CA rejected the contention of petitioners that the cohabitation of their father with their natural mother, Francisca Malvas, was by virtue of a valid marriage. The appellate court observed that the Arbolarios had all been born before the death of Catalina Baloyo, as shown by the Deed of Declaration of Heirship, which she had executed in 1951. No evidence was ever presented showing that her conjugal union with Juan Arbolario had been judicially annulled or lawfully ended before that year. Because it was also in 1951 when Juan Arbolario cohabited with Francisca Malvas, their union was presumably extramarital. Consequently, their children are illegitimate halfbrothers and half-sisters of Purificacion, the daughter of Juan and Catalina. Illegitimate children are barred by Article 992 of the Civil Code from inheriting intestate from the legitimate children and relatives of their father or mother. As the illegitimate siblings of the late Purificacion Arbolario, petitioners cannot conveniently undermine the legal limitations by insisting that they were treated as half-brothers and half-sisters by the deceased. On the other hand, there is no impediment for respondents to declare themselves as the sole and forced heirs of Anselmo Baloyo and Macaria Lirazan. Moreover, there is no clear and reliable evidence to support the allegation of the Salhays that they purchased from the decedent, Purificacion Arbolario, the lot that they have been occupying since 1970. Hence, this Petition. [9]

After a full-blown trial on the consolidated cases, the Regional Trial Court (RTC) of Kabankalan, Negros Occidental (Branch 61) [7] rendered its judgment, the dispositive portion of which reads thus:

Issues In their Memorandum, petitioners raise the following issues for our consideration:

I The Honorable Court of Appeals committed grave and serious error in considering the Arbolarios illegitimate children and not entitled to inherit from their half-sister Purificacion Arbolario. II The Honorable Court of Appeals committed grave and serious error in considering the purchase of the property by Rosela Rodriguez and subsequent acquisition by Petitioners Rosalita Rodriguez and Carlito Salhay improper. III The Honorable Court of Appeals committed grave and serious error in deciding that the court a quo had no right to distribute the said property. [10] In other words, petitioners are questioning the CA pronouncements on (1) the illegitimacy of their relationship with Purificacion; (2) the validity of the Salhays purchase of a portion of the disputed lot; and (3) the impropriety of the RTC Order partitioning that lot. This Courts Ruling The Petition has no merit. First Issue: Illegitimacy of Petitioners Petitioners contend that their illegitimacy is a far-fetched and scurrilous claim that is not supported by the evidence on record. They maintain that the CA declared them illegitimate on the unproven allegation that Catalina Baloyo had signed the Declaration of Heirship in 1951. They aver that this 1951 Declaration does not contain her signature, and that she died in 1903: Que Agueda Baloyo, Catalina Baloyo y Eduardo Baloyo murieron ab intestate en Ilog, Negros Occ.; la primera fallecio en 11 de Noviembre de 1940, la segunda murio el ano 1903 y el ultimo en 28 de Marzo de 1947 x x x. [11] We are not persuaded. We begin our ruling with the general principle that the Supreme Court is not a trier of facts. [12] However, where the trial court and the CA arrived at different factual findings, a review of the evidence on record may become necessary. [13] Petitioners, in effect, are asking us to evaluate the 1951 Declaration of Heirship, deduce that Catalina Baloyo had long been dead before it was ever executed, and conclude that the Arbolarios are legitimate half-brothers and half-sisters of Juan and Catalinas only daughter, Purificacion. What we see, on the other hand, is a series of non sequiturs. First, a review of the 1951 Declaration reveals that the year of Catalinas death was intercalated. The first two numbers (1 and 9) and the last digit (3) are legible; but the third digit has been written over to make it look like a 0. Further, the paragraph quoted by petitioners should show a chronological progression in the heirs years of death: Agueda died in 1940 and Eduardo in 1947. Hence, if Catalina had indeed died in 1903, why then was her name written after Aguedas and not before it? Moreover, the document, being in Spanish, requires an official translation. We cannot readily accept the English translation proffered by petitioners, since respondents did not agree to its correctness. Besides, it consisted of only a paragraph of the whole document. Second, there is no solid basis for the argument of petitioners that Juan Arbolarios marriage to Francisca Malvas was valid, supposedly because Catalina Baloyo was already dead when they were born. It does not follow that just because his first wife has died, a man is already conclusively married to the woman who bore his children. A marriage certificate or other

generally accepted proof is necessary to establish the marriage as an undisputable fact. Third, clear and substantial evidence is required to support the claim of petitioners that they were preterited from the 1951 Declaration of Heirship. The RTC Decision merely declared that they were half-brothers and halfsisters of Purificacion, while respondents were her cousins and nieces (collateral relatives). It made no pronouncement as to whether they were her legitimate or illegitimate siblings. We quote the appellate court: x x x. Therefore, in the absence of any fact that would show that conjugal union of Juan Arbolario and Catalina Baloyo had been judicially annulled before 1951, or before Juan Arbolario cohabited with Francisca Malvas, it would only be reasonable to conclude that the foregoing union which resulted in the birth of the [Arbolarios] was extra-marital. And consequently, x x x Voltaire Arbolario, et al., are illegitimate children of Juan Arbolario. There is no presumption of legitimacy or illegitimacy in this jurisdiction (Article 261, New Civil Code); and whoever alleges the legitimacy or illegitimacy of a child born after the dissolution of a prior marriage or the separation of the spouses must introduce such evidence to prove his or her allegation (Ibid.; Sec. 4, Rule 131, New Rules on Evidence). It is the x x x Arbolarios, claiming to be born under a validly contracted subsequent marriage, who must show proof of their legitimacy. But this, they have miserably failed to do. [14] Paternity or filiation, or the lack of it, is a relationship that must be judicially established. [15] It stands to reason that children born within wedlock are legitimate. [16] Petitioners, however, failed to prove the fact (or even the presumption) of marriage between their parents, Juan Arbolario and Francisca Malvas; hence, they cannot invoke a presumption of legitimacy in their favor. As it is, we have to follow the settled rule that the CAs factual findings cannot be set aside, because they are supported by the evidence on record. [17] As held by the appellate court, without proof that Catalina died in 1903, her marriage to Juan is presumed to have continued. Even where there is actual severance of the filial companionship between spouses, their marriage subsists, and either spouses cohabitation with any third party cannot be presumed to be between husband and wife. [18] Second Issue: Evidence of Purchase Petitioners contend that the CA committed a serious error when it disregarded the testimony that the Salhays had purchased the portion of the lot they had been occupying since 1970. This issue, according to them, was not even raised by respondents in the latters appeal to the CA. We disagree. Although the sale was not expressly assigned as an error in their Brief, respondents (as petitioners in the CA) still assailed the existence of the sale when they argued thus: As to the spouses Carlito Salhay and Rosalita R. Salhay, they could not present any written contract to support their claim to having purchased a portion of Lot 323 where their house stands. Rosalita R. Salhay on the witness stand testified under oath that she has no contract of sale in her favor because it was her mother, Rosela Rodriguez who had purchased the land, but she was not able to produce any evidence of such sale in favor of her mother. She declared that she has never paid land taxes for the land. [19] Hence, they prayed for the reversal of the appealed RTC Decision in toto. The CA, on the other hand, categorically ruled that no clear and reliable evidence had been introduced to prove such bare [allegation] that a portion of the disputed lot had ever been purchased by the Salhays. Besides, no favorable supporting evidence was cited by petitioners in their Memorandum. Thus, we find no reason to overturn the CAs factual finding on this point. Third Issue: Partition

Petitioners also contend that the Court of Appeals overstepped its bounds when it ruled that since respondents did not raise the issue of partition on appeal, the RTC had no jurisdiction to divide the disputed lot. The CA held, however, that the partition of the property had not been contemplated by the parties, because respondents merely sought recovery of possession of the parcel held by the Salhays, while petitioners sought the annulment of the Deed of Partition respondents had entered into. We agree with the appellate court. The purpose of partition is to put an end to co-ownership. It seeks a severance of the individual interests of coowners, vesting in each of them a sole estate in a specific property and a right to enjoy the allotted estate without supervision or interference. [20] Petitioners in this case were unable to establish any right to partition, because they had failed to establish that they were legitimate half-brothers and half-sisters of the deceased Purificacion. Questions as to the determination of the heirs of a decedent, the proof of filiation, and the determination of the estate of a decedent and claims thereto should be brought up before the proper probate court or in special proceedings instituted for the purpose. Such issues cannot be adjudicated in an ordinary civil action for the recovery of ownership and possession. [21] WHEREFORE, the Petition is DENIED, and the appealed Decision AFFIRMED. Costs against petitioners. -TAN v. TROCIO Facts: School owner and directress, Felicidad Barian Tan filed a complaint seeking disbarment of Atty. Galileo Trocio for immorality and conduct unbecoming of a lawyer. She alleged that Trocio, who is the legal counsel of the school, overpowered her inside the office and against her will, succeeded in having carnal knowledge of her. And as a result, she begot a son whom she named Jewel Tan. She further alleged that he used to support Jewel but subsequently lost interest and stopped. She claimed she filed the complaint only after 8 years from the incident because of Trocio threatened her with the deportation of her alien husband and due to the fact that she was married with eight children. Trocio files his answer stating that he was indeed counsel of the school as well as of Tan and her family but denies he sexually assaulted her. The lower Court and the Solicitor General completed the required pleadings and thus forwarded the case to the SC

More importantly, Jewel Tan was born during the wedlock of Complainant and her husband and the presumption should b in favor of legitimacy unless physical access between the couple was impossible. From the evidence on hand, the presumption has not been overcome by adequate and convincing proof. In fact, Jewel was registered in his birth certificate as the legitimate child of the Felicidad and her husband, Tan Le Pok.

-ANGELES vs. MAGLAYA In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Belen Sagad Angeles seeks to set aside the Decision dated May 29, 2002[1] of the Court of Appeals in CA G.R. CV No. 66037, reversing an earlier Order of the Regional Trial Court at Caloocan City which dismissed the petition for the settlement of the intestate estate of Francisco Angeles, thereat commenced by the herein respondent Aleli Corazon Angeles-Maglaya. The legal dispute between the parties started when, on March 25, 1998, in the Regional Trial Court (RTC) at Caloocan City, respondent filed a petition[2] for letters of administration and her appointment as administratrix of the intestate estate of Francisco M. Angeles (Francisco, hereinafter). In the petition, docketed as Special Proceedings No. C-2140 and raffled to Branch 120 of the court, respondent alleged, among other things, the following: 1. That Francisco, a resident of 71 B. Serrano St., Grace Park, Caloocan, died intestate on January 21, 1998 in the City of Manila, leaving behind four (4) parcels of land and a building, among other valuable properties; 2. That there is a need to appoint an administrator of Franciscos estate; 3. That she (respondent) is the sole legitimate child of the deceased and Genoveva Mercado, and, together with petitioner, Belen S. Angeles, decedents wife by his second marriage, are the surviving heirs of the decedent; and 4. That she has all the qualifications and none of the disqualifications required of an administrator. Petitioner opposed the basic petition and prayed that she, instead of respondent, be made the administratrix of Franciscos estate.[3] In support of her opposition and plea, petitioner alleged having married Francisco on August 7, 1948 before Judge Lucio M. Tianco of the Municipal Court of Rizal, a union which was ratified two (2) months later in religious rites at the Our Lady of Grace Parish in Caloocan City, and that Francisco represented in their marriage contract that he was single at that time. Petitioner also averred that respondent could not be the daughter of Francisco for, although she was recorded as Franciscos legitimate daughter, the corresponding birth certificate was not signed by him. Pressing on, petitioner further alleged that respondent, despite her claim of being the legitimate child of Francisco and Genoveva Mercado, has not presented the marriage contract between her supposed parents or produced any acceptable document to prove such union. And evidently to debunk respondents claim of being the only child of Francisco, petitioner likewise averred that she and Francisco had, during their marriage, legally adopted Concesa A. Yamat, et al. Petitioner thus urged that she, being the surviving spouse of Francisco, be declared as possessed of the superior right to the administration of his estate. In her reply to opposition, respondent alleged, inter alia, that per certification of the appropriate offices, the January to December 1938 records of marriages of the Civil Registrar of Bacolor, Pampanga where the alleged 1938 Francisco-Genoveva wedding took place, were destroyed. In the same reply, respondent dismissed as of little consequence the adoption adverted to owing to her having interposed with the Court of Appeals a petition to nullify the decree of adoption entered by the RTC at Caloocan.[4] Issues having been joined, trial ensued. Respondent, as petitioner a quo, commenced the presentation of her evidence by taking the witness stand. She testified having been born on November 20, 1939 as the legitimate child of Francisco M. Angeles and Genoveva Mercado, who died in January 1988.[5] She also testified having been in open and continuous possession of the status of a legitimate child. Four (4) other witnesses testified on her behalf, namely: Tomas Angeles,[6] Francisco Yaya,[7] Jose O. Carreon[8] and Paulita Angeles de la Cruz.[9] Respondent also offered in evidence her birth certificate which contained an entry stating that she was born at the Mary Johnston Hospital, Tondo, Manila, to Francisco Angeles and Genoveva Mercado and whereon the handwritten word Yes appears on the space below the question Legitimate? (Legitimo?); pictures taken during respondents wedding as bride to Atty. Guillermo T. Maglaya; and a copy of her marriage contract. Likewise offered were her scholastic and government service records.

Issue: WON he had, in fact, sexually assaulted the Complainant, as a consequence of which the latter begot a child by him (and is thus a ground for Trocios disbarment for immoral conduct) Held: Complaint for disbarment dismissed The court found insufficient basis for the allegations The alleged threat to deport her husband could not hold because she admitted having lost contact with her husband when he learned of the respondents transgression that very same evening. The fear had thus become inexistent Even after the alleged incident, she continued having dealings with the respondentwith Trocio acting as her personal and familys legal counselas though nothing happened. Complainants contention that Respondent continued supporting the child for several years for which reason she desisted from charging him criminally, has not been substantiate. In fact, the fact that she kept her peace for so many years can even be construed as condonation. It is likewise strange that an unwanted son, as the child would normally have been, should, of all names, be called Jewel. Witness, Elueterias (domestic help) testimony did not hold as how near she was to the crime scene, considering it allegedly happened in school premises, has not been shown. Testimonies of Felicidad and witness Marilou (another domestic help) to show unusual closeness between Trocio and Jewel, like playing with him and giving him toys, are not convincing enough to prove paternity. Pictures of Jewel and Trocio showing allegedly their physical likeness to each other is inconclusive evidence to prove paternity, and much less would it prove violation of Complainants person

Following is an excerpt from Tison: After respondent rested her case following her formal offer of exhibits, petitioner filed a Motion to Dismiss under Section 1(g), Rule 16 of the Rules of Court. In it, she prayed for the dismissal of the petition for letters of administration on the ground that the petition failed to state or prove a cause of action, it being her stated position that [P]etitioner [Corzaon], by her evidence, failed to establish her filiation vis--vis the decedent, i.e., that she is in fact a legitimate child of Francisco M. Angeles.[10] To the motion to dismiss, respondent interposed an opposition, followed by petitioners reply, to which respondent countered with a rejoinder. Eventually, in an Order dated July 12, 1999,[11] the trial court, on its finding that respondent failed to prove her filiation as legitimate child of Francisco, dismissed the petition, thus: WHEREFORE, the instant petition is hereby ordered DISMISSED for failure of the [respondent] to state a cause of action in accordance with Section 1(g) of Rule 16 of the 1997 Rules of Civil of Procedure. (Word in bracket added] Respondent then moved for reconsideration, which motion was denied by the trial court in its Order of December 17, 1999.[12] Therefrom, respondent went on appeal to the Court of Appeals where her recourse was docketed as CA-G.R. CV No. 66037. As stated at the threshold hereof, the Court of Appeals, in its assailed Decision dated May 29, 2002,[13] reversed and set aside the trial courts order of dismissal and directed it to appoint respondent as administratrix of the estate of Francisco, to wit: WHEREFORE, the appealed order of dismissal is REVERSED. The Trial Court is hereby ordered to appoint petitioner-appellant Aleli Corazon Angeles as administratrix of the intestate estate of Francisco Angeles. SO ORDERED. Code . . . actually fixes a status for the child born in wedlock, and that civil status cannot be attacked collaterally. xxx xxx xxx xxx It seems that both the court a quo and respondent appellate court have regrettably overlooked the universally recognized presumption on legitimacy. There is no presumption of the law more firmly established and founded on sounder morality and more convincing than the presumption that children born in wedlock are legitimate. And well-settled is the rule that the issue of legitimacy cannot be attacked collaterally. The rationale for this rule has been explained in this wise: The presumption of legitimacy in the Family

Upon the expiration of the periods provided in Article 170 [of the Family Code], the action to impugn the legitimacy of a child can no longer be bought. The status conferred by the presumption, therefore, becomes fixed, and can no longer be questioned. The obvious intention of the law is to prevent the status of a child born in wedlock from being in a state of uncertainty. It also aims to force early action to settle any doubt as to the paternity of such child so that the evidence material to the matter . . . may still be easily available. x x x x x x xxx Only the husband can contest the legitimacy of a child born to his wife . . . .(Words in bracket added; Emphasis ours)

The appellate court predicated its ruling on the interplay of the following main premises: 1. Petitioners Motion to Dismiss filed with the trial court, albeit premised on the alleged failure of the underlying petition for letter of administration to state or prove a cause of action, actually partakes of a demurrer to evidence under Section 1 of Rule 33;[14] 2. Petitioners motion being a demurer, it follows that she thereby waived her right to present opposing evidence to rebut respondents testimonial and documentary evidence; and 3. Respondent has sufficiently established her legitimate filiation with the deceased Francisco. Hence, petitioners instant petition for review on certiorari, on the submission that the Court of Appeals erred: (1) in reversing the trial courts order of dismissal;[15] (2) in treating her motion to dismiss as a demurrer to evidence; (3) in holding that respondent is a legitimate daughter of Francisco; and (4) in decreeing respondents appointment as administratrix of Franciscos intestate estate. We resolve to grant the petition. The principal issue tendered in this case boils down to the question of whether or not respondent is the legitimate child of decedent Francisco M. Angeles and Genoveva Mercado. The Court of Appeals resolved the issue in the affirmative and, on the basis of such determination, ordered the trial court to appoint respondent as administratrix of Franciscos estate. We are unable to lend concurrence to the appellate courts conclusion on the legitimate status of respondent, or, to be precise, on her legitimate filiation to the decedent. A legitimate child is a product of, and, therefore, implies a valid and lawful marriage. Remove the element of lawful union and there is strictly no legitimate filiation between parents and child. Article 164 of the Family Code cannot be more emphatic on the matter: Children conceived or born during the marriage of the parents are legitimate. In finding for respondent, the Court of Appeals, citing and extensibly quoting from Tison vs. Court of Appeals,[16] stated that since petitioner opted not to present any contrary evidence, the presumption on respondents legitimacy stands unrebutted.[17]

Contextually, the correct lesson of Tison, which the appellate court evidently misapplied, is that: (a) a child is presumed legitimate only if conceived or born in wedlock; and (b) the presumptive legitimacy of such child cannot be attacked collaterally. A party in whose favor the legal presumption exists may rely on and invoke such legal presumption to establish a fact in issue. He need not introduce evidence to prove that fact.[18] For, a presumption is prima facie proof of the fact presumed. However, it cannot be over-emphasized, that while a fact thus prima facie established by legal presumption shall, unless overthrown, stand as proved,[19] the presumption of legitimacy under Article 164 of the Family Code[20] may be availed only upon convincing proof of the factual basis therefor, i.e., that the childs parents were legally married and that his/her conception or birth occurred during the subsistence of that marriage. Else, the presumption of law that a child is legitimate does not arise. In the case at bench, the Court of Appeals, in its decision under review, did not categorically state from what facts established during the trial was the presumption of respondents supposed legitimac y arose. But even if perhaps it wanted to, it could not have possibly done so. For, save for respondents gratuitous assertion and an entry in her certificate of birth, there is absolutely no proof of the decedents marriage to respondents mother, Genoveva Mercado. To stress, no marriage certificate or marriage contract doubtless the best evidence of Franciscos and Genovevas marriage, if one had been solemnized[21] was offered in evidence. No priest, judge, mayor, or other solemnizing authority was called to the witness box to declare that he solemnized the marriage between the two. None of the four (4) witnesses respondent presented could say anything about, let alone affirm, that supposed marriage. At best, their testimonies proved that respondent was Franciscos daughter. For example, Tomas Angeles and Paulita Angeles de la Cruz testified that they know respondent to be their cousin because his (Tomas) father and her (Paulitas) mother, who are both Franciscos siblings, told them so.[22] And one Jose Carreon would testify seeing respondent in 1948 in Franciscos house in Caloocan, the same Francisco who used to court Genoveva before the war.[23] In all, no evidence whatsoever was presented of the execution of the Francisco Angeles-Genoveva Mercado marriage contract; when and where their

marriage was solemnized; the identity of the solemnizing officer; the persons present, and like significant details. While perhaps not determinative of the issue of the existence of marriage between Francisco and Genoveva, we can even go to the extent of saying that respondent has not even presented a witness to testify that her putative parents really held themselves out to the public as man-and-wife. Clearly, therefore, the Court of Appeals erred in crediting respondent with the legal presumption of legitimacy which, as above explained, should flow from a lawful marriage between Francisco and Genevova. To reiterate, absent such a marriage, as here, there is no presumption of legitimacy and, therefore, there was really nothing for petitioner to rebut. Parenthetically, for all her unyielding stance that her mother and Francisco Angeles were married in 1938, respondent never, thru the years, even question what would necessarily be a bigamous Francisco-Belen Sagad marriage. Ironical as it may seem, respondent herself undermined her very own case. As it were, she made certain judicial admission negating her own assertion as well as the appellate courts conclusion - that Francisco was legally married to Genoveva. As may be recalled, respondent had declared that her mother Genoveva died in 1988, implying, quite clearly, that when Francisco contracted marriage with petitioner Belen S. Angeles in 1948, Genoveva and Francisco were already spouses. Now, then, if, as respondent maintained despite utter lack of evidence, that Genoveva Mercado and Francisco were married in 1938, it follows that the marriage of Francisco to petitioner Belen Angeles in 1948, or prior to Genovevas death, would necessarily have to be bigamous, hence void,[24] in which case petitioner could not be, as respondent alleged in her petition for letters of administration, a surviving spouse of the decedent. We quote the pertinent allegation: 4. The surviving heirs of decedent are the petitioner [Corazon] herself who is 58 years old, and BELEN S. Angeles, the surviving spouse of deceased Francisco M. Angeles by his second marriage, who is about 77 years old . . . .YEARS OLD . . . (Emphasis and word in bracket added)

The contention commends itself for concurrence. The reason is as simple as it is elementary: the Birth Certificate presented was not signed by Francisco against whom legitimate filiation is asserted. Not even by Genoveva. It was signed by the attending physician, one Rebecca De Guzman, who certified to having attended the birth of a child. Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child.[25] Jurisprudence teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses.[26] Dr. Arturo Tolentino, commenting on the probative value of the entries in a certificate of birth, wrote: xxx if the alleged father did not intervene in the making of the birth certificate, the putting of his name by the mother or doctor or registrar is void; the signature of the alleged father is necessary.[27] The conclusion reached by the Court of Appeals that the Birth Certificate of respondent, unsigned as it were by Francisco and Genoveva, establishes and indubitably at that - not only respondents filiation to Francisco but even her being a legitimate daughter of Francisco and Genoveva, taxes credulity to the limit. In a very real sense, the appellate court regarded such certificate as defining proof of filiation, and not just filiation but of legitimate filiation, by inferring from it that Francisco and Genoveva are legally married. In the apt words of petitioner, the appellate court, out of a Birth Certificate signed by a physician who merely certified having attended the birth of a child who was born alive at 3:50 P.M. , created a marriage that of Francisco and Genoveva, and filiation (that said child) is the daughter of Francisco[28] It cannot be over-emphasized that the legitimate filiation of a child is a matter fixed by law itself.[29] It cannot, as the decision under review seems to suggest, be made dependent on the declaration of the attending physician or midwife, or that of the mother of the newborn child. For then, an unwed mother, with or without the participation of a doctor or midwife, could veritably invest legitimate status to her offspring through the simple expedient of writing the putative fathers name in the appropriate space in the birth certificate. A long time past, this Court cautioned against according a similar unsigned birth certificate prima facie evidentiary value of filiation: Give this certificate evidential relevancy, and we thereby pave the way for any scheming unmarried mother to extort money for her child (and herself) from any eligible bachelor or affluent pater familias. How? She simply causes the midwife to state in the birth certificate that the newborn babe is her legitimate offspring with that individual and the certificate will be accepted for registration . . . . And any lawyer with sufficient imagination will realize the exciting possibilities from such mischief of such prima facie evidence when and if the father dies in ignorance of the fraudulent design xxx[30]

We can concede, because Article 172 of the Family Code appears to say so, that the legitimate filiation of a child can be established by any of the modes therein defined even without direct evidence of the marriage of his/her supposed parents. Said article 172 reads: Art. 172. The filiation of legitimate children is established by any of the following: 1. The record of birth appearing in the civil register or a final judgments; or An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

2.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by: 1. The open and continuous possession of the status of a legitimate child; or

Just like her Birth Certificate, respondent can hardly derive comfort from her marriage contract to Atty. Maglaya and from her student and government records which indicated or purported to show that Francisco Angeles is her father. The same holds true for her wedding pictures which showed Francisco giving respondents hands in marriage. These papers or documents, unsigned as they are by Francisco or the execution of which he had no part, are not sufficient evidence of filiation or recognition.[31] And needless to stress, they cannot support a finding of the legitimate union of Francisco and Genoveva.

2.

Any other means allowed by the Rules of Court and special laws.

Here, respondent presented, in support of her claim of legitimacy, a copy of her Birth Certificate dated November 23, 1939 issued by the Civil Registrar of the City of Manila (Exh. E). In it, her birth was recorded as the legitimate child of Francisco Angeles and Genoveva Mercado. And the word married is written in the certificate to indicate the union of Francisco and Genoveva. Petitioner, however, contends, citing jurisprudence, that [I]t was error for the Court of Appeals to have ruled . . . that [respondents] Birth Certificate indubitably establishes that she is the legitimate daughter of Francisco and Genoveva who are legally married.

The argument may be advanced that the aforesaid wedding pictures, the school and service records and the testimony of respondents witnesses lend support to her claim of enjoying open and continuous possession of the status of a child of Francisco. The Court can even concede that respondent may have been the natural child of Francisco with Genoveva. Unfortunately, however, that angle is not an, or at issue in the case before us. For, respondent peremptorily predicated her petition for letters of administration on her being a legitimate child of Francisco who was legally married to her mother, Genoveva, propositions which we have earlier refuted herein. If on the foregoing score alone, this Court could very well end this disposition were it not for another compelling consideration which petitioner has raised and which we presently take judicially notice of.

As may be recalled, respondent, during the pendency of the proceedings at the trial court, filed with the Court of Appeals a petition for the annulment of the decision of the RTC Caloocan granting the petition of spouses Francisco Angeles and petitioner Belen S. Angeles for the adoption of Concesa A. Yamat and two others. In that petition, docketed with the appellate court as CA-G.R. SP No. 47832 and captioned Aleli Corazon Angeles Maglaya vs. Hon Jaime T. Hamoy, Consesa A. Yamat, Teodora A. Santos, Franco Angeles and Belen S. Angeles, respondent alleged that as legitimate daughter of Francisco, she should have been notified of the adoption proceedings. Following a legal skirmish, the Court of Appeals referred the aforementioned annulment case to RTC, Caloocan for reception of evidence. Eventually, in a Decision[32] dated December 17, 2003, the Court of Appeals dismissed CA-G.R. SP No. 47832 on the ground, inter alia, that herein respondent is not, contrary to her claim, a legitimate daughter of Francisco, nor a child of a lawful wedlock between Francisco M. Angeles and Genoveva Y. Mercado. Wrote the appellate court in that case: Petitioner [Aleli Corazon Maglaya] belabors with repetitious persistence the argument that she is a legitimate child or the only daughter of Francisco M. Angeles and Genoveva Y. Mercado . . . . In the case at bench, other than the selfserving declaration of the petitioner, there is nothing in the record to support petitioners claim that she is indeed a legitimate child of the late Francisco M. Angeles and Genoveva Y. Mercado. xxx In other words, Francisco M. Angeles was never married before or at anytime prior to his marriage to Belen Sagad, contrary to the claim of petitioner that Francisco M. Angeles and Genoveva Y. Mercado were married in 1938 While petitioner may have submitted certifications to the effect that the records of marriages during the war years . . . were totally destroyed, no secondary evidence was presented by petitioner to prove the existence of the marriage between Francisco M. Angeles and Genoveva Y. Mercado, even as no witness was presented to confirm the celebration of such marriage . . . . Petitioner presented pictures. x x x However, it is already settled law that photographs are not sufficient evidence of filiation or acknowledgment. To be sure, very little comfort is provided by petitioners birth certificate and even her marriage contract.. . . Reason: These documents were not signed by Francisco . . . . Equally inconsequential are petitioners school records . . . . all these lacked the signatures of both Francisco and Genoveva . . . . xxx xxx xxx

has thereby become res judicata and may not again be resurrected or litigated between herein petitioner and respondent or their privies in a subsequent action, regardless of the form of the latter.[36] Lest it be overlooked, the same ruling of the appellate court in CAG.R. SP No. 47832, as sustained by this Court in G.R. No. 163124, virtually confirms the ratio of the trial courts order of dismissal in Special Proceedings (SP) No. C-2140, i.e, that respondent failed to establish that she is in fact a legitimate child of Francisco. Accordingly, the question of whether or not the Motion to Dismiss[37] interposed by herein petitioner, as respondent in SP No. C-2140, is in the nature of a demurer to evidence has become moot and academic. It need not detain us any minute further. Finally, it should be noted that on the matter of appointment of administrator of the estate of the deceased, the surviving spouse is preferred over the next of kin of the decedent.[38] When the law speaks of next of kin, the reference is to those who are entitled, under the statute of distribution, to the decedents property;[39] one whose relationship is such that he is entitled to share in the estate as distributed,[40] or, in short, an heir. In resolving, therefore, the issue of whether an applicant for letters of administration is a next of kin or an heir of the decedent, the probate court perforce has to determine and pass upon the issue of filiation. A separate action will only result in a multiplicity of suits. Upon this consideration, the trial court acted within bounds when it looked into and pass upon the claimed relationship of respondent to the late Francisco Angeles. WHEREFORE, the herein assailed decision of the Court of Appeals is hereby REVERSED and SET ASIDE, and the order of the trial court dismissing Special Proceedings No. C-2140 REINSTATED. -SOCIAL SECURITY SYSTEM vs. ROSANNA H. AGUAS, JANET H. AGUAS, and minor JEYLNN H. AGUAS, represented by her Legal Guardian, ROSANNA H. AGUAS Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 66531 and its Resolution denying the motion for reconsideration thereof. The antecedents are as follows: Pablo Aguas, a member of the Social Security System (SSS) and a pensioner, died on December 8, 1996. Pablos surviving spouse, Rosanna H. Aguas, filed a claim with the SSS for death benefits on December 13, 1996. Rosanna indicated in her claim that Pablo was likewise survived by his minor child, Jeylnn, who was born on October 29, 1991.2 Her claim for monthly pension was settled on February 13, 1997.3 Sometime in April 1997, the SSS received a sworn letter4 dated April 2, 1997 from Leticia Aguas-Macapinlac, Pablos sister, contesting Rosannas claim for death benefits. She alleged that Rosanna abandoned the family abode approximately more than six years before, and lived with another man on whom she has been dependent for support. She further averred that Pablo had no legal children with Rosanna, but that the latter had several children with a certain Romeo dela Pea. In support of her allegation, Leticia enclosed a notarized copy of the original birth certificate5 of one Jefren H. dela Pea, showing that the latter was born on November 15, 1996 to Rosanna Y. Hernandez and Romeo C. dela Pea, and that the two were married on November 1, 1990. As a result, the SSS suspended the payment of Rosanna and Jeylnns monthly pension in September 1997. It also conducted an investigation to verify Leticias allegations. In a Memorandum 6 dated November 18, 1997, the Social Security Officer who conducted the investigation reported that, based on an interview with Mariquita D. Dizon, Pablos first cousin and neighbor, and Jessie Gonzales (also a neighbor). She learned that the deceased had no legal children with Rosanna; Jenelyn7 and Jefren were Rosannas children with one Romeo C. dela Pea; and Rosanna left the deceased six years before his death and lived with Romeo while she was still pregnant with Jenelyn, who was born on October 29, 1991. Mariquita also confirmed that Pablo was not capable of having a child as he was under treatment. On the basis of the report and an alleged confirmation by a certain Dr. Manuel Macapinlac that Pablo was infertile, the SSS denied Rosannas request to resume the payment of their pensions. She was advised to refund to the SSS within 30 days the amount of P10,350.00 representing the total death benefits released to her and Jenelyn from December 1996 to August 1997 at P1,150.00 per month.8

Having failed to prove that she is the legitimate daughter or acknowledged natural child of the late Francisco M. Angeles, petitioner cannot be a real party in interest in the adoption proceedings, as her consent thereto is not essential or required. (Emphasis in the original; words in bracket added)

Significantly, the aforesaid December 17, 2003 Decision of the appellate court in CA-G.R. SP No.47832 was effectively affirmed by this Court via its Resolution dated August 9, 2004 in G.R. No. 163124, denying Aleli Corazon Maglayas petition for Review on Certiorari,[33] and Resolution dated October 20, 2004,[34] denying with FINALITY her motion for reconsideration. Another Resolution dated January 24, 2005 resolved to NOTE WITHOUT ACTION Maglayas second motion for reconsideration. In the light of the ruling of the Court of Appeals in CA-G.R. SP No. 47832, as affirmed with finality by this Court in G.R. No. 163124, there can be no serious objection to applying in this case the rule on conclusiveness of judgment,[35] one of two (2) concepts embraced in the res judicata principle. Following the rule on conclusiveness of judgment, herein respondent is precluded from claiming that she is the legitimate daughter of Francisco and Genoveva Mercado. In fine, the issue of herein respondents legitimate filiation to Francisco and the latters marriage to Genoveva, having been judicially determined in a final judgment by a court of competent jurisdiction,

Rosanna and Jeylnn, through counsel, requested for a reconsideration of the said decision.9 However, in its Letter dated February 6, 1998, the SSS denied the claim.10 This prompted Rosanna and Jeylnn to file a claim/petition for the Restoration/Payment of Pensions with the Social Security Commission (SSC) on February 20, 1998.11 Janet H. Aguas, who also claimed to be the child of the deceased and Rosanna, now joined them as claimant. The case was docketed as SSC Case No. 3-14769-98. The claimants appended to their petition, among others, photocopies of the following: (1) Pablo and Rosannas marriage certificate; (2) Janets certificate of live birth; (3) Jeylnns certificate of live birth; and (4) Pablos certificate of death. In its Answer, the SSS averred that, based on the sworn testimonies and documentary evidence showing the disqualification of the petitioners as primary beneficiaries, the claims were barren of factual and legal basis; as such, it was justified in denying their claims.12 In their Position Paper, the claimants averred that Jeylnn was a legitimate child of Pablo as evidenced by her birth certificate bearing Pablos signature as Jeylnns father. They asserted that Rosanna never left Pablo and that they lived together as husband and wife under one roof. In support thereof, they attached a Joint Affidavit13 executed by their neighbors, Vivencia Turla and Carmelita Yangu, where they declared that Rosanna and Pablo lived together as husband and wife until the latters death. In Janets birth certificate, which was registered in the Civil Registry of San Fernando, it appears that her father was Pablo and her mother was Rosanna. As to the alleged infertility of Pablo, the claimants averred that Dr. Macapinlac denied giving the opinion precisely because he was not an expert on such matters, and that he treated the deceased only for tuberculosis. The claimant likewise claimed that the information the SSS gathered from the doctor was privileged communication.14 In compliance with the SSCs order, the SSS secured Confirmation Reports 15 signed by clerks from the corresponding civil registers confirming (1) the fact of marriage between Pablo and Rosanna on December 4, 1977; (2) the fact of Jefren dela Peas birth on November 15, 1996; (3) the fact of Jeylnns birth on October 29, 1991; and (4) the fact of Pablos death on December 8, 1996. The SSC decided to set the case for hearing. It also directed the SSS to verify the authenticity of Pablos signature as appearing on Jeylnns birth certificate from his claim records, particularly his SSS Form E-1 and retirement benefit application.16 The SSS complied with said directive and manifested to the SSC that, based on the laboratory analysis conducted, Pablos signature in the birth certificate was made by the same person who signed the members record and other similar documents submitted by Pablo.17 The SSC then summoned Vivencia Turla, Carmelita Yangu and Leticia Aguas-Macapinlac for clarificatory questions with regard to their respective sworn affidavits.18 Vivencia testified that she had known Pablo and Rosanna for more than 30 years already; the couple were married and lived in Macabacle, Dolores, San Fernando, Pampanga; she was a former neighbor of the spouses, but four years after their marriage, she (Vivencia) and her family moved to Sto. Nio Triangulo, San Fernando, Pampanga; she would often visit the two, especially during Christmas or fiestas; the spouses real child was Jeylnn; Janet was only an adopted child; the spouse later transferred residence, not far from their old house, and Janet, together with her husband and son, remained in the old house.19 On the other hand, Carmelita testified that she had been a neighbor of Pablo and Rosanna for 15 years and that, up to the present, Rosanna and her children, Janet, Jeylnn and Jefren, were still her neighbors; Janet and Jeylnn were the children of Pablo and Rosanna but she did not know whose child Jefren is.20 According to Leticia, Janet was not the real child of Pablo and Rosanna; she was just taken in by the spouses because for a long time they could not have children;21 however, there were no legal papers on Janets adoption.22 Later on, Rosanna got pregnant with Jeylnn; after the latters baptism, there was a commotion at the house because Romeo dela Pea was claiming that he was the father of the child and he got mad because the child was named after Pablo; the latter also got mad and even attempted to shoot Rosanna; he drove them away from the house; since then, Pablo and Rosanna

separated;23 she knew about this because at that time their mother was sick, and she would often visit her at their ancestral home, where Pablo and Rosanna were also staying; Rosanna was no longer living in their ancestral home but Janet resided therein; she did not know where Rosanna was staying now but she knew that the latter and Romeo dela Pea were still living together.24 Subsequently, Mariquita Dizon and Jessie Gonzales were also summoned for clarificatory questions.25 During the hearing, Mariquita brought with her photocopies of two baptismal certificates: that of Jeylnn Aguas, 26 child of Pablo Aguas and Rosanna Hernandez born on October 29, 1991, and that of Jenelyn H. dela Pea,27 child of Romeo dela Pea and Rosanna Hernandez, born on January 29, 1992. On March 14, 2001, the SSC rendered a decision denying the claims for lack of merit and ordering Rosanna to immediately refund to the SSS the amount of P10,350.00 erroneously paid to her and Jeylnn as primary beneficiaries of the deceased. The SSC likewise directed the SSS to pay the death benefit to qualified secondary beneficiaries of the deceased, and in their absence, to his legal heirs.28 The SSC ruled that Rosanna was no longer qualified as primary beneficiary, it appearing that she had contracted marriage with Romeo dela Pea during the subsistence of her marriage to Pablo. The SSC based its conclusion on the birth certificate of Jefren dela Pea stating that his mother, Rosanna, and father, Romeo dela Pea, were married on November 1, 1990. The SSC declared that Rosanna had a child with Romeo dela Pea while she was still married to Pablo (as evidenced by the baptismal certificate of Jenelyn H. dela Pea showing that she was the child of Rosanna Hernandez and Romeo dela Pea and that she was born on January 29, 1992). The SSC concluded that Rosanna was no longer entitled to support from Pablo prior to his death because of her act of adultery. As for Jeylnn, the SSC ruled that, even if her birth certificate was signed by Pablo as her father, there was more compelling evidence that Jeylnn was not his legitimate child. The SSC deduced from the records that Jeylnn and Jenelyn was one and the same person and concluded, based on the latters baptismal certificate, that she was the daughter of Rosanna and Romeo dela Pea. It also gave credence to the testimonies of Leticia and Mariquita that Jeylnn was the child of Rosanna and Romeo dela Pea. As for Janet, the SSC relied on Leticias declaration that she was only adopted by Pablo and Rosanna. 29 The claimants filed a motion for reconsideration of the said decision but their motion was denied by the SSC for lack of merit and for having been filed out of time.30 The claimants then elevated the case to the CA via a petition for review under Rule 43 of the Rules of Court. On September 9, 2003, the CA rendered a decision in favor of petitioners. The fallo of the decision reads: WHEREFORE, the resolution and order appealed from are hereby REVERSED and SET ASIDE, and a new one is entered DECLARING petitioners as ENTITLED to the SSS benefits accruing from the death of Pablo Aguas. The case is hereby REMANDED to public respondent for purposes of computing the benefits that may have accrued in favor of petitioners after the same was cut and suspended in September 1997. SO ORDERED.31 In so ruling, the CA relied on the birth certificates of Janet and Jeylnn showing that they were the children of the deceased. According to the appellate court, for judicial purposes, these records were binding upon the parties, including the SSS. These entries made in public documents may only be challenged through adversarial proceedings in courts of law, and may not be altered by mere testimonies of witnesses to the contrary. As for Rosanna, the CA found no evidence to show that she ceased to receive support from Pablo before he died. Rosannas alleged affair with Romeo dela Pea was not properly proven. In any case, even if Rosanna married Romeo dela Pea during her marriage to Pablo, the same would have been a void marriage; it would not have ipso facto made her not dependent for support upon Pablo and negate the presumption that, as the surviving spouse, she is entitled to support from her husband.32 The SSS filed a motion for reconsideration of the decision, which the CA denied for lack of merit.33 Hence, this petition.

Petitioner seeks a reversal of the decision of the appellate court, contending that it I GRAVELY ERRED IN HOLDING THAT ROSANNA AGUAS IS ACTUALLY DEPENDENT FOR SUPPORT UPON THE MEMBER DURING HIS LIFETIME TO QUALIFY AS PRIMARY BENEFICIARY WITHIN THE INTENDMENT OF SECTION 8(e), IN RELATION TO SECTION (k) OF THE SSS LAW, AS AMENDED. II ERRED IN HOLDING THAT JANET AGUAS AND JEYLNN AGUAS ARE ENTITLED TO THE PENSION BENEFIT ACCRUING FROM THE DEATH OF PABLO AGUAS.34 Petitioner invokes Section 8 of Republic Act No. 1161, as amended by Presidential Decree No. 735, which defines a dependent spouse as "the legitimate spouse dependent for support upon the employee." According to petitioner, Rosanna forfeited her right to be supported by Pablo when she engaged in an intimate and illicit relationship with Romeo dela Pea and married the latter during her marriage to Pablo. Such act constitutes abandonment, which divested her of the right to receive support from her husband. It asserts that her act of adultery is evident from the birth certificate of Jefren H. dela Pea showing that he was born on November 15, 1996 to Rosanna and Romeo dela Pea. Petitioner submits that Rosanna cannot be considered as a dependent spouse of Pablo; consequently, she is not a primary beneficiary.35 As for Janet and Jeylnn, petitioner maintains that they are not entitled to the pension because, based on the evidence on record, particularly the testimonies of the witnesses, they are not the legitimate children of Pablo. It argues that, in the exercise of its quasi-judicial authority under Section 5(a) of the Social Security Act, the SSC can pass upon the legitimacy of respondents relationship with the member to determine whether they are entitled to the benefits, even without correcting their birth certificates.36 Respondents, for their part, assert that petitioner failed to prove that Rosanna committed acts of adultery or that she married another man after the death of her husband. They contend that Janet and Jeylnns legitimacy may be impugned only on the grounds stated in Article 166 of the Family Code, none of which were proven in this case.37 The issue to be resolved in this case is whether Rosanna, Jeylnn and Janet are entitled to the SSS death benefits accruing from the death of Pablo. The petition is partly meritorious. The general rule is that only questions of law may be raised by the parties and passed upon by the Court in petitions for review under Rule 45 of the Rules of Court.38 In an appeal via certiorari, the Court may not review the factual findings of the CA.39 It is not the Courts function under Rule 45 to review, examine, and evaluate or weigh the probative value of the evidence presented.40 However, the Court may review findings of facts in some instances, such as, when the judgment is based on a misapprehension of facts, when the findings of the CA are contrary to those of the trial court or quasi-judicial agency, or when the findings of facts of the CA are premised on the absence of evidence and are contradicted by the evidence on record. 41 The Court finds these instances present in this case. At the time of Pablos death, the prevailing law was Republic Act No. 1161, as amended by Presidential Decree No. 735. Section 13 of the law enumerates those who are entitled to death benefits: Sec.13. Death benefits. Effective July 1, 1975, upon the covered employees death, (a) his primary beneficiaries shall be entitled to the basic monthly pension, and his dependents to the dependents pension: Provided, That he has paid at least thirty-six monthly contributions prior to the semester of death: Provided, further, That if the foregoing condition is not satisfied, or if he has no primary beneficiaries, his secondary beneficiaries shall be entitled to a lump sum benefit equivalent to thirty times the basic monthly pension: Provided, however, That the death benefit shall not be less than the total contributions paid by him and his employer on his behalf nor less than five

hundred pesos: Provided, finally, That the covered employee who dies in the month of coverage shall be entitled to the minimum benefit. Section 8(k) and (e), in turn, defines dependents and primary beneficiaries of an SSS member as follows: SECTION 8. Terms defined. For the purposes of this Act the following terms shall, unless the context indicates otherwise, have the following meanings: xxxx (e) Dependent. The legitimate, legitimated, or legally adopted child who is unmarried, not gainfully employed, and not over twenty-one years of age provided that he is congenitally incapacitated and incapable of self-support physically or mentally; the legitimate spouse dependent for support upon the employee; and the legitimate parents wholly dependent upon the covered employee for regular support. xxxx (k) Beneficiaries. The dependent spouse until he remarries and dependent children, who shall be the primary beneficiaries. In their absence, the dependent parents and, subject to the restrictions imposed on dependent children, the legitimate descendants and illegitimate children who shall be the secondary beneficiaries. In the absence of any of the foregoing, any other person designated by the covered employee as secondary beneficiary. Whoever claims entitlement to such benefits should establish his or her right thereto by substantial evidence. Substantial evidence, the quantum of evidence required to establish a fact in cases before administrative or quasijudicial bodies, is that level of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.42 The Court has reviewed the records of the case and finds that only Jeylnn has sufficiently established her right to a monthly pension. Jeylnns claim is justified by the photocopy of her birth certificate which bears the signature of Pablo. Petitioner was able to authenticate the certification from the Civil Registry showing that she was born on October 29, 1991. The records also show that Rosanna and Pablo were married on December 4, 1977 and the marriage subsisted until the latters death on December 8, 1996. It is therefore evident that Jeylnn was born during Rosanna and Pablos marriage. It bears stressing that under Article 164 of the Family Code, children conceived or born during the marriage of the parents are legitimate. This Court, in De Jesus v. Estate of Decedent Juan Gamboa Dizon, 43 extensively discussed this presumption There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate. This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse. Quite remarkably, upon the expiration of the periods set forth in Article 170,44 and in proper cases Article 171,45 of the Family Code (which took effect on 03 August 1988), the action to impugn the legitimacy of the child would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable. 46 Indeed, impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his heirs.47 In this case, there is no showing that Pablo challenged the legitimacy of Jeylnn during his lifetime. Hence, Jeylnns status as a legitimate child of Pablo can no longer be contested. The presumption that Jeylnn is a legitimate child is buttressed by her birth certificate bearing Pablos signature, which was verified from his specimen signature on file with petitioner. A birth certificate signed by the father is a competent evidence of paternity.48

The presumption of legitimacy under Article 164, however, can not extend to Janet because her date of birth was not substantially proven. Such presumption may be availed only upon convincing proof of the factual basis therefor, i.e., that the childs parents were legally married and that his/her conception or birth occurred during the subsistence of that marriage.49 It should be noted that respondents likewise submitted a photocopy of Janets alleged birth certificate. However, the Court cannot give said birth certificate the same probative weight as Jeylnns because it was not verified in any way by the civil register. It stands as a mere photocopy, without probative weight. Unlike Jeylnn, there was no confirmation by the civil register of the fact of Janets birth on the date stated in the certificate. In any case, a record of birth is merely prima facie evidence of the facts contained therein.50 Here, the witnesses were unanimous in saying that Janet was not the real child but merely adopted by Rosanna and Pablo. Leticia also testified that Janets adoption did not undergo any legal proceedings; hence, there were no papers to prove it. Under Section 8(e) of Republic Act No. 1161, as amended, only "legally adopted" children are considered dependent children. Absent any proof that the family has legally adopted Janet, the Court cannot consider her a dependent child of Pablo, hence, not a primary beneficiary. On the claims of Rosanna, it bears stressing that for her to qualify as a primary beneficiary, she must prove that she was "the legitimate spouse dependent for support from the employee." The claimant-spouse must therefore establish two qualifying factors: (1) that she is the legitimate spouse, and (2) that she is dependent upon the member for support. In this case, Rosanna presented proof to show that she is the legitimate spouse of Pablo, that is, a copy of their marriage certificate which was verified with the civil register by petitioner. But whether or not Rosanna has sufficiently established that she was still dependent on Pablo at the time of his death remains to be resolved. Indeed, a husband and wife are obliged to support each other,51 but whether one is actually dependent for support upon the other is something that has to be shown; it cannot be presumed from the fact of marriage alone. In a parallel case52 involving a claim for benefits under the GSIS law, the Court defined a dependent as "one who derives his or her main support from another. Meaning, relying on, or subject to, someone else for support; not able to exist or sustain oneself, or to perform anything without the will, power, or aid of someone else." It should be noted that the GSIS law likewise defines a dependent spouse as "the legitimate spouse dependent for support upon the member or pensioner." In that case, the Court found it obvious that a wife who abandoned the family for more than 17 years until her husband died, and lived with other men, was not dependent on her husband for support, financial or otherwise, during that entire period. Hence, the Court denied her claim for death benefits. The obvious conclusion then is that a wife who is already separated de facto from her husband cannot be said to be "dependent for support" upon the husband, absent any showing to the contrary. Conversely, if it is proved that the husband and wife were still living together at the time of his death, it would be safe to presume that she was dependent on the husband for support, unless it is shown that she is capable of providing for herself. Rosanna had the burden to prove that all the statutory requirements have been complied with, particularly her dependency on her husband for support at the time of his death. Aside from her own testimony, the only evidence adduced by Rosanna to prove that she and Pablo lived together as husband and wife until his death were the affidavits of Vivencia Turla and Carmelita Yangu where they made such declaration. Still, the affidavits of Vivencia and Carmelita and their testimonies before the SSC will not prevail over the categorical and straightforward testimonies of the other witnesses who testified that Rosanna and Pablo had already separated for almost six years before the latter died. Except for the bare assertion of Carmelita that the couple never separated, there was no further statement regarding the witnesses assertion in their affidavits that the couple lived together until Pablos death. On the contrary, Leticia narrated that the two separated after Jeylnns baptism as a result of an argument regarding Romeo dela Pea. According to Leticia, there was a commotion at their ancestral house because Romeo dela Pea was grumbling why Jeylnn was named after Pablo when he was the father, and as a result, Pablo drove them away. The SSCs observation and conclusion on the two baptismal certificates of Jeylnn and Jenelyn convinces this Court to further believe Leticias testimony on why Pablo and Rosanna separated. As noted by the SSC:

It appears from the records that Jeylnn Aguas and Jenelyn H. dela Pea are one and the same person. Jeylnn Aguas, born on October 29, 1991 was baptized at the Metropolitan Cathedral of San Fernando, Pampanga, on November 24, 1991 as the child of Pablo Aguas and Rosanna Hernandez. Jenelyn H dela Pea, on the other hand, was born on January 29, 1992 to spouses Rosanna Hernandez and Romeo dela Pea and baptized on February 9, 1992. It will be noted that Jenelyn dela Pea was born approximately three months after the birth of Jeylnn Aguas. It is physically impossible for Rosanna to have given birth successively to two children in so short a time. x x x The testimony of Leticia Aguas-Macapinlac that Rosanna was driven away by Pablo after the baptism of Jeylnn because of the commotion that was created by Romeo dela Pea who wanted Jeylnn to be baptized using his name explains why Jeylnn was again baptized in the Parish of Sto. Nio in San Fernando using the name Jenelyn dela Pea. They changed her date of birth also to make it appear in the record of the parish that she is another child of Rosanna.53 On the other hand, Mariquita categorically affirmed that Rosanna was no longer living at Pablos house even before he died, and that she is still living with Romeo dela Pea up to the present. Mariquita testified as follows: Hearing Officer: Nagsama ba si Rosanna at Romeo? Mrs. Dizon: Ngayon at kahit na noon. Hearing Officer: Kailan namatay si Pablo? Mrs. Dizon: 1996. Hearing Officer: Noong bago mamatay si Pablo? Mrs. Dizon: Nagsasama na sila Romeo at Rosanna noon. Hearing Officer: So, buhay pa si Pablo Mrs. Dizon: . nagsasama na sila ni Romeo. Hearing Officer: Kailan nagkahiwalay si Romeo at Rosanna? Mrs. Dizon: Hindi na sila nagkahiwalay. Hearing Officer: Hindi, ibig ko sabihin si Pablo at Rosana? Mrs. Dizon: Hindi ko alam kasi hindi ako madalas pumunta sa kanila eh, dahil namatay na yung nanay ni Kuya Pabling, yung tiyahin ko, kapatid ng nanay ko. Noon madalas ako noong buhay pa yung nanay ni Kuya Pabling dahil kami ang nag aalaga sa kanya. Hearing Officer: Bago namatay si Pablo, nagsasama ba sina Romeo at Rosanna? Mrs. Dizon: Oo. Hearing Officer: Sa ngayon, may alam ka pa ba kung nagsasama pa sila Romeo at Rosanna? Mrs. Dizon: Oo, nagsasama sila, may bahay sila. Hearing Officer: Saan naman? Mrs. Dizon: Doon sa malapit sa amin sa may riles ng tren.54 In conclusion, the Court finds that, among respondents, only Jeylnn is entitled to the SSS death benefits accruing from the death of Pablo, as it was established that she is his legitimate child. On the other hand, the records show that Janet was merely "adopted" by the spouses, but there are no legal papers to prove it; hence, she cannot qualify as a primary beneficiary. Finally, while Rosanna was the legitimate wife of Pablo, she is likewise not qualified as a primary beneficiary since she failed to present any proof to show that at the time of his death, she was still dependent on him for support even if they were already living separately. IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision and Resolution of the Court of Appeals are AFFIRMED WITH MODIFICATION. Only Jeylnn H. Aguas is declared entitled to the SSS death benefits accruing from the death of Pablo Aguas. --

ELINO RIVERA, DOMINADOR CLAUREN, SOLEDAD CLAUREN DE RIVERA, TEOFILA RIVERA and CECILIA RIVERA vs. HEIRS OF ROMUALDO VILLANUEVA* represented by MELCHOR VILLANUEVA, ANGELINA VILLANUEVA, VICTORIANO DE LUNA, CABANATUAN CITY RURAL BANK, INC. and REGISTER OF DEEDS OF NUEVA ECIJA This petition for review on certiorari1 from a decision2 and a resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 51449 touches upon questions of filiation, presumptions of co-equal acquisition and res judicata. Petitioners are allegedly the half-brothers (Elino and Dominador), the halfsister-in-law (Soledad), and the children of a half-brother (Teofila and Cecilia) of the deceased Pacita Gonzales (hereinafter Gonzales). Respondents Catalino, Lucia, Purificacion and Melchor, all surnamed Villanueva, and Arnaldo V. Avendano are allegedly the siblings, full and half-blood of Romualdo Villanueva (hereinafter Villanueva).4 They are denominated as the heirs of Villanueva and are represented by Melchor. They were allowed to substitute for Villanueva upon his death.5 The remaining respondents, Angelina Villanueva (hereinafter respondent Angelina) and husband Victoriano de Luna, are allegedly the daughter and the son-in-law, respectively, of the late Villanueva. From 1927 until her death in 1980, Gonzales cohabited with Villanueva without the benefit of marriage because the latter was married to one Amanda Musngi who died on April 20, 1963.6 In the course of their cohabitation, they acquired several properties including the properties contested in this case. The disputed properties are: (a) Lot No. 266-B-1, with an area of 1,787 square meters, more or less, and covered by Transfer Certificate of Title No. NT-21446 [in the names of Villanueva and Gonzales], together with the residential house erected thereon and other improvements; (b) Lot No. 266-B-3 [included in the coverage of transfer Certificate of Title No. NT-21446], with an area of 5,353 square meters, more or less, situated at Poblacion, Talavera, Nueva Ecija; (c) [Lot 801-A covered by] Transfer Certificate of Title No. NT12201 [in the names of Villanueva and Gonzales], with [an] area of 15.400 hectares, more or less, situated at Llanera, Nueva Ecija; (d) [Lot 3-A covered by] Transfer Certificate of Title No. NT-51899 [in the names of Villanueva and Gonzales], with an area of 4.0019 hectares, more or less, situated at Calipahan, Talavera, Nueva Ecija; (e) [Lot No. 838 covered by] Transfer Certificate of Title No. NT17193 [in the names of Villanueva, Gonzales and one Soledad Alarcon vda. de Rivera], with an area of 3.8718 hectares, more or less, situated at Talavera, Nueva Ecija; (f) [Lot 884-B covered by] Transfer Certificate of Title No. NT26670 [in the name of Gonzales], with an area of 3.5972 hectares, more or less, situated at Talavera, Nueva Ecija; (g) Subdivision lots situated at Talavera, Nueva Ecija, covered by Transfer Certificates of Title Nos. 106813 to 106931, inclusive, although the land covered by TCT No. NT-106827 was already sold to one Pastor Barlaan; (h) Shares of stocks, tractor, jewelries and other chattels, with an approximate value of at least P100,000; and (i) Savings deposit with the [Philippine] National Bank, in the amount of P118,722.61.7 Gonzales died on July 3, 1980 without leaving a will. On August 8, 1980, Villanueva and respondent Angelina executed a deed of extrajudicial partition with sale,8 that is, an extrajudicial settlement of Gonzales' estate comprising a number of the aforementioned properties. In this document, Villanueva, for the amount of P30,000, conveyed his interests in the estate to Angelina.

Petitioners (Gonzales' half-brothers, etc.) filed a case for partition of Gonzales' estate and annulment of titles and damages, with the Regional Trial Court (RTC) of Santo Domingo, Nueva Ecija, Branch 37. It was docketed as Civil Case No. SD-857 (SD-857). In dismissing the complaint, the RTC made two findings: (1) Gonzales was never married to Villanueva and (2) respondent Angelina was her illegitimate child by Villanueva and therefore her sole heir, to the exclusion of petitioners.9 Not satisfied with the trial court's decision, petitioners appealed to the CA which affirmed it. Hence, this petition. Petitioners contend that the RTC and CA erred in finding that respondent Angelina was Gonzales' illegitimate daughter despite the RTC's ruling in another case, Special Proceedings No. SD-144 (SD-144), entitled In the Matter of the Intestate Estate of the late Pacita C. Gonzales, Epifanio C. Rivera, petitioner, v. Romualdo Villanueva, oppositor, in which the trial court appointed Epifanio Rivera as administrator of Gonzales' estate.10 They argue that the trial court's decision in SD-144, to the effect that respondent Angelina was neither the adopted nor the illegitimate daughter of Gonzales, should have operated as res judicata on the matter of respondent Angelina's status. The first issue here is whether or not the findings regarding respondent Angelina's filiation in SD-144 are conclusive on SD-857 and therefore res judicata. The second is the determination of her real status in relation to Gonzales. Finally, there is the question of whether or not the real properties acquired by Villanueva and Gonzales were equally owned by them. We resolve the first issue in the negative. Res judicata literally means "a matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment." It sets forth the rule that an existing final judgment or decree rendered on the merits and without fraud or collusion by a court of competent jurisdiction, upon any matter within its jurisdiction, is conclusive of the rights of the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction on the points and matters in issue in the first suit.11 For res judicata to apply, the following elements must be present: (1) the judgment sought to bar the new action must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3) the disposition of the case must be a judgment on the merits and (4) there, must be as between the first and second action, identity of parties, subject matter and causes of action.12 A number of factors militate against the existence of res judicata. First, the parties in the two cases are different. Epifanio C. Rivera, who incidentally is not a party in this petition, filed SD-144 seeking letters of administration over his dead sister's estate. Villanueva was his lone opponent. On the other hand, although both Villanueva and respondent Angelina were parties in SD857, Epifanio Rivera was not. Petitioners never alleged that Epifanio represented their interests, and vice versa. Furthermore, in SD-144, the trial court never actually acquired jurisdiction over respondent Angelina's person. She was not even a party there, given that Villanueva did not represent her interest when he opposed Epifanio Rivera's petition. Finally and most significantly, there was no identity of cause of action between the two suits. By their very nature, they were entirely distinct from each other. SD-144 was a special proceeding while SD-857 was an ordinary civil case. The former was concerned with the issuance of letters of administration in favor of Epifanio Rivera while the latter was for partition and annulment of titles, and damages. Clearly, then, there was no res judicata. Nevertheless, this still begged the question of whether or not it was proven, as the CA held, that respondent

Angelina was the illegitimate daughter of the decedent Gonzales. On this issue, we find merit in the petition. Both the trial court and the CA ruled that respondent Angelina was the illegitimate daughter of the decedent, based solely on her birth certificate. According to the assailed decision, "the birth certificate clearly discloses that Pacita Gonzales was the mother of Angelina Villanueva while municipal treasurer Romualdo Villanueva was denominated therein as her father."13 The CA found this to be adequate proof that respondent Angelina was Gonzales' illegitimate child. However, a closer examination of the birth certificate14 reveals that respondent Angelina was listed as "adopted" by both Villanueva and Gonzales. As a general rule, the Supreme Court is not a trier of facts.15 However, one of the exceptions to this rule is when the judgment of the CA is based on a misapprehension of facts.16 We believe this to be just such an instance. In Benitez-Badua v. Court of Appeals,17 Marissa Benitez-Badua, in attempting to prove that she was the sole heir of the late Vicente Benitez, submitted a certificate of live birth, a baptismal certificate, income tax returns and an information sheet for membership in the Government Service Insurance System of the decedent naming her as his daughter, and her school records. She also testified that she had been reared and continuously treated as Vicente's daughter. By testimonial evidence alone, to the effect that Benitez-Badua's alleged parents had been unable to beget children, the siblings of Benitez-Badua's supposed father were able to rebut all of the documentary evidence indicating her filiation. One fact that was counted against Benitez-Badua was that her supposed mother Isabel Chipongian, unable to bear any children even after ten years of marriage, all of a sudden conceived and gave birth to her at the age of 36. Of great significance to this controversy was the following pronouncement: But definitely, the mere registration of a child in his or her birth certificate as the child of the supposed parents is not a valid adoption, does not confer upon the child the status of an adopted child and the legal rights of such child, and even amounts to simulation of the child's birth or falsification of his or her birth certificate, which is a public document. (emphasis ours)18 Furthermore, it is well-settled that a record of birth is merely a prima facie evidence of the facts contained therein.19 It is not conclusive evidence of the truthfulness of the statements made there by the interested parties. 20 Following the logic of Benitez, respondent Angelina and her co-defendants in SD-857 should have adduced evidence of her adoption, in view of the contents of her birth certificate. The records, however, are bereft of any such evidence. There are several parallels between this case and Benitez-Badua that are simply too compelling to ignore. First, both Benitez-Badua and respondent Angelina submitted birth certificates as evidence of filiation. Second, both claimed to be children of parents relatively advanced in age. Third, both claimed to have been born after their alleged parents had lived together childless for several years. There are, however, also crucial differences between Benitez-Badua and this case which ineluctably support the conclusion that respondent Angelina was not Gonzales' daughter, whether illegitimate or adopted. Gonzales, unlike Benitez-Badua's alleged mother Chipongian, was not only 36 years old but 44 years old, and on the verge of menopause21 at the time of the alleged birth. Unlike Chipongian who had been married to Vicente Benitez for only 10 years, Gonzales had been living childless with Villanueva for 20 years. Under the circumstances, we hold that it was not sufficiently established that respondent Angelina was Gonzales' biological daughter, nor even her adopted daughter. Thus, she cannot inherit from Gonzales. Since she could not have validly participated in Gonzales' estate, the extrajudicial partition which she executed with Villanueva on August 8, 1980 was invalid. Finally, we come to the question of whether or not the properties acquired by Gonzales and Villanueva during their cohabitation were equally owned by them. According to the trial court in SD-857,22 Gonzales and Villanueva lived

together without the benefit of marriage and therefore their property relations were governed by Article 144 of the Civil Code: Art. 144. When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. However, the contending parties agreed that the relationship of Villanueva and Gonzales was adulterous, at least until the death of Amanda Musngi, Villanueva's legal wife, on April 20, 1963. In their appeal brief, petitioners made the following admission: From 1927 until her death, Pacita [Gonzales] lived together with defendant Romualdo Villanueva ("Romualdo") as husband and wife without the benefit of marriage. Earlier, or sometime in 1913 or 1914, Romualdo was married to Amanda Musngi (or "Amanda"). Amanda died on April 20, 1963.23 (emphasis supplied) Respondent Angelina, in her memorandum in SD-857, actually agreed with petitioners on the nature of Villanueva's relationship with Gonzales:24 While Romualdo Villanueva claimed that he and Pacita C. Gonzales lived as husband and wife and that they were married, it turned out that he was not legally married to the latter, for then, his marriage in the year 1927, was still subsisting with one Amanda Musngi. (emphasis supplied) Because the cohabitation of Villanueva and Gonzales from 1927 to 1963 was adulterous, their property relations during those 36 years were not governed by Article 144 of the Civil Code which applies only if the couple living together is not in any way incapacitated from getting married.25 According to the doctrine laid down by Juaniza v. Jose,26 no co-ownership exists between parties to an adulterous relationship. In Agapay v. Palang,27 we expounded on this doctrine by declaring that in such a relationship, it is necessary for each of the partners to prove his or her actual contribution to the acquisition of property in order to be able to lay claim to any portion of it. Presumptions of co-ownership and equal contribution do not apply. In Agapay, Miguel Palang and his paramour Erlinda Agapay bought a parcel of riceland in Pangasinan which they registered in their names. However, because Agapay failed to prove that she contributed money to the purchase price of the riceland, she could not rightfully claim co-ownership over the same. Here, the records show only four properties acquired by Villanueva and Gonzales between 1927 and 1963 which they registered in both their names.28 Following Agapay, these can only be apportioned according to the actual contributions of each. Unfortunately, the records are devoid of any evidence that Gonzales contributed anything to the acquisition of these properties. Petitioners merely asserted that she acquired these properties through her own industry29 without a shred of evidence to support the allegation. On the other hand, it was clearly demonstrated that Villanueva was the municipal treasurer of Talavera for many years and therefore the lone breadwinner. In accordance with Agapay, none of these four parcels of land should accrue to petitioners. There is only one parcel of land, covered by Transfer Certificate of Title (TCT) No. NT-26670,30 registered solely in Gonzales' name, which was acquired between 1927 and 1963.31 This fact of registration created a conclusiveness of title in favor of the person in whose name it was registered.32 In SD-857, although Villanueva sought to prove that he alone had purchased the properties and that only he could have done so during the period of cohabitation (since he was the sole breadwinner), he never actually challenged the validity of the registration in her name. Thus the efficacy of the title in Gonzales' name remained unrebutted. As Gonzales' sole property, this should accrue entirely to her heirs. The only property acquired after Musngi's death in 1963 and registered in the names of both Villanueva and Gonzales was Lot 3-A covered by TCT No. NT-51899.33 This was governed by the rules on co-ownership pursuant to Article 144 of the Civil Code. Half of it should pertain to Gonzales' heirs and the other half, to Villanueva.

The rest of the properties registered solely in Gonzales' name were also acquired after the death of Amanda Musngi in 1963. The records show that the subdivision lots situated in Talavera, Nueva Ecija covered by TCTs Nos. 106813 to 106931 were acquired in 1971.34 These properties were governed by co-ownership under Article 144 of the Civil Code. Again, half should accrue to Gonzales' heirs and the other half, to Villanueva. Significantly, the trial court in SD-857 did not establish the exact relationship between petitioners and Gonzales, a relationship defendants therein (now respondents) vigorously denied. In view of this, there is a need to remand the case to the court of origin for the proper determination and identification of Gonzales' heirs. WHEREFORE, the petition is hereby GRANTED. The decision and resolution of the Court of Appeals in CA-G.R. CV No. 51449 are reversed and set aside, and a new one entered ANNULLING the deed of extrajudicial partition with sale and REMANDING the case to the court of origin for the determination and identification of Pacita Gonzales' heirs and the corresponding partition of her estate. -SUNTAY vs. SUNTAY Unlike Pope Alexander VI [1] who, faced with the impasse between Spain and Portugal, deftly and literally divided the exploration, or more appropriately, the riches of the New World by issuing the Inter Caetera, [2] we are confronted with the difficult, albeit, all too familiar tale of another family imbroglio over the estate of a decedent. [3] This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 74949, [4] reversing the decision of the Regional Trial Court (RTC), Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. [5] Before anything else, we disentangle the facts.

Significantly, Federico, after the death of his spouse, Cristina, or on September 27, 1993, adopted their illegitimate grandchildren, Emilio III and Nenita. [7] On October 26, 1995, respondent filed a petition for the issuance of letters of administration in her favor, containing the following allegations: [A]t the time of [the decedents] death, [she] was a resident of the Municipality of Hagonoy, Province of Bulacan; that the [decedent] left an estate of real and personal properties, with a probable gross value of P29,000,000.00; that the names, ages and residences of the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89 years old, surviving spouse and a resident of x x x; (2) Isabel Cojuangco-Suntay, 36 years old, legitimate granddaughter and a resident of x x x; (3) Margarita Cojuangco-Suntay, 39 years old, legitimate granddaughter and a resident of x x x; and (4) Emilio Cojuangco-Suntay, 35 years old, legitimate grandson and a resident of x x x; and that as far as [respondent] knew, the decedent left no debts or obligation at the time of her death. [8] Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico filed his opposition on December 21, 1995, alleging, among others, that: [B]eing the surviving spouse of Cristina, he is capable of administering her estate and he should be the one appointed as its administrator; that as part owner of the mass of conjugal properties left by Cristina, he must be accorded legal preference in the administration thereof; that Isabel and her family had been alienated from their grandparents for more than thirty (30) years; that the enumeration of heirs in the petition was incomplete as it did not mention the other children of his son[,] namely: Emilio III and Nenita S. Taedo; that he is better situated to protect the integrity of the estate of Cristina as even before the death of his wife[,] he was already the one who managed their conjugal properties; that the probable value of the estate as stated in the petition was grossly overstated (sic); and that Isabels allegation that some of the properties are in the hands of usurpers is untrue. [9]

On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr. Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death, Cristina was survived by her husband, Federico, and several grandchildren, including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three children, namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio Is marriage to Isabel Cojuangco was subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Taedo (Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively. Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old, by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged natural child of Emilio I and was likewise brought up by the spouses Federico and Cristina. As previously adverted to, the marriage between Emilio I and Isabel was annulled. [6] Consequently, respondent and her siblings Margarita and Emilio II, lived with their mother on Balete Drive, Quezon City, separately from their father and paternal grandparents. Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights over his grandchildren: respondent Isabel, Margarita, and Emilio II. Although the Juvenile and Domestic Relations Court in Quezon City granted the petition and allowed Federico one hour of visitation monthly, initially reduced to thirty minutes, it was altogether stopped because of a manifestation filed by respondent Isabel, articulating her sentiments on the unwanted visits of her grandparents.

Meanwhile, after a failed attempt by the parties to settle the proceedings amicably, Federico filed a Manifestation dated March 13, 1999, nominating his adopted son, Emilio III, as administrator of the decedents estate on his behalf, in the event he would be adjudged as the one with a better right to the letters of administration. Subsequently, the trial court granted Emilio IIIs Motion for Leave to Intervene considering his interest in the outcome of the case. Emilio III filed his Opposition-In-Intervention, which essentially echoed the allegations in his grandfathers opposition, alleging that Federico, or in his stead, Emilio III, was better equipped than respondent to administer and manage the estate of the decedent, Cristina. Additionally, Emilio III averred his own qualifications that: [he] is presently engaged in aquaculture and banking; he was trained by the decedent to work in his early age by involving him in the activities of the Emilio Aguinaldo Foundation which was established in 1979 in memory of her grandmothers father; the significant work experiences outside the family group are included in his curriculum vitae; he was employed by the oppositor [Federico] after his graduation in college with management degree at F.C.E. Corporations and Hagonoy Rural Bank; x x x. [10] In the course of the proceedings, on November 13, 2000, Federico died. After the testimonies of both parties witnesses were heard and evidence on their respective allegations were adduced, the trial court rendered a decision on November 9, 2001, appointing herein petitioner, Emilio III, as administrator of decedent Cristinas intestate estate, to wit: WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the Opposition[-]in[-]Intervention is GRANTED. Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby appointed administrator of the estate of the decedent Cristina Aguinaldo Suntay, who shall enter upon the execution of his trust upon the filing of a bond in the amount of P200,000.00, conditioned as follows:

(1) inventory;

To make and return within three (3) months, a true and complete

(2) To administer the estate and to pay and discharge all debts, legatees, and charge on the same, or dividends thereon; (3) To render a true and just account within one (1) year, and at any other time when required by the court, and (4) To perform all orders of the Court.

Once the said bond is approved by the court, let Letters of Administration be issued in his favor. SO ORDERED. [11] Aggrieved, respondent filed an appeal before the CA, which reversed and set aside the decision of the RTC, revoked the Letters of Administration issued to Emilio III, and appointed respondent as administratrix of the intestate estate of the decedent, Cristina, to wit: WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001 of Branch 78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is REVERSED and SET ASIDE and the letters of administration issued by the said court to Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel Cojuangco[-]Suntay is hereby appointed administratrix of the intestate estate of Cristina Aguinaldo Suntay. Let letters of administration be issued in her favor upon her filing of a bond in the amount of Two Hundred Thousand (P200,000.00) Pesos. No pronouncement as to costs. SO ORDERED. [12]

As between [respondent] and the oppositor [Federico], the latter is accorded preference as the surviving spouse under Sec 6(a), Rule 78, Rules of Court. On the basis of such preference, he vigorously opposed the appointment of the petitioner and instead nominated [Emilio III], his grandchild and adopted child. Such nomination, absent any valid and justifiable reason, should not be imperiously set aside and insouciantly ignored, even after the oppositor [Federico] has passed away, in order to give effect to the order of preference mandated by law. Moreover, from the viewpoint of the estate, the nomination of [Emilio III] appear[s] intrinsically meritorious. For the benefit of the estate and its claimants, creditors, as well as heirs, the administrator should be one who is prepared, academically and by experience, for the demands and responsibilities of the position. While [respondent], a practicing physician, is not unqualified, it is clear to the court that when it comes to management of real estate and the processing and payment of debts, [Emilio III], a businessman with an established track record as a manager has a decided edge and therefore, is in a position to better handle the preservation of the estate. [14]

In marked contrast, the CA zeroed in on Emilio IIIs status as an illegitimate child of Emilio I and, thus, barred from representing his deceased father in the estate of the latters legitimate mother, the decedent. On the whole, the CA pronounced that Emilio III, who was merely nominated by Federico, and which nomination hinged upon the latters appointment as administrator of the decedents estate, cannot be appointed as the administrator of the decedents estate for the following reasons: [15] 1. The appointment of Emilio III was subject to a suspensive condition, i.e., Federicos appointment as administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico before his appointment as administrator of Cristinas estate rendered his nomination of Emilio III inoperative; 2. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedents son, Emilio I, respondent is preferred, being the next of kin referred to by Section 6, Rule 78 of the Rules of Court, and entitled to share in the distribution of Cristinas estate as an heir; 3. Jurisprudence has consistently held that Article 992 [16] of the Civil Code bars the illegitimate child from inheriting ab intestato from the legitimate children and relatives of his father or mother. Thus, Emilio III, who is barred from inheriting from his grandmother, cannot be preferred over respondent in the administration of the estate of their grandmother, the decedent; and 4. Contrary to the RTCs finding, respondent is as much competent as Emilio III to administer and manage the subject estate for she possesses none of the disqualifications specified in Section 1, [17] Rule 78 of the Rules of Court. The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to act as administrator of the decedents estate. We cannot subscribe to the appellate courts ruling excluding Emilio III in the administration of the decedents undivided estate. Mistakenly, the CA glosses over several undisputed facts and circumstances: 1. The underlying philosophy of our law on intestate succession is to give preference to the wishes and presumed will of the decedent, absent a valid and effective will; 2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar rule, [18] is quite the opposite scenario in the facts obtaining herein for the actual relationship between Federico and Cristina, on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate relatives; 3. Emilio III was reared from infancy by the decedent, Cristina, and her husband, Federico, who both acknowledged him as their grandchild;

The motion for reconsideration of Emilio III having been denied, he appeals by certiorari to this Court, raising the following issues: A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF RULE 78 OF THE RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE APPLIES; and B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE DECEDENT AND HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW CIVIL CODE APPLIES SO AS TO BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF THE DECEDENTS ESTATE. [13]

In ruling against the petition of herein respondent, the RTC ratiocinated, thus: Evidence objectively assessed and carefully evaluated, both testimonial and documentary, the court opines that it is to the best interest of the estate of the decedent and all claimants thereto, that the Intervenor, Emilio A.M. Suntay III, be appointed administrator of the estate in the aboveentitled special proceedings. Based on the evidence and demeanor of the parties in court, [respondents immediate] family and that of the decedent are apparently estranged. The root cause of which, is not for this court to ascertain nor is this the right time and the proper forum to dwell upon. What matters most at this time is the welfare of the estate of the decedent in the light of such unfortunate and bitter estrangement. The Court honestly believes that to appoint the petitioner would go against the wishes of the decedent who raised [Emilio III] from infancy in her home in Baguio City as her own child. Certainly, it would go against the wishes of the surviving spouse x x x who nominated [Emilio III] for appointment as administrator.

4. Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming part of their conjugal partnership of gains during the subsistence of their marriage; 5. Cristinas properties forming part of her estate are still commingled with that of her husband, Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains undetermined and unliquidated; and 6. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latters estate as a direct heir, one degree from Federico, not simply representing his deceased illegitimate father, Emilio I. From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration of the decedents estate. As Federicos adopted son, Emilio IIIs interest in the estate of Cristina is as much apparent to this Court as the interest therein of respondent, considering that the CA even declared that under the law, [Federico], being the surviving spouse, would have the right of succession over a portion of the exclusive property of the decedent, aside from his share in the conjugal partnership. Thus, we are puzzled why the CA resorted to a strained legal reasoning Emilio IIIs nomination was subject to a suspensive condition and rendered inoperative by reason of Federicos death wholly inapplicable to the case at bar. Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment of an administrator of an estate: SEC. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

siblings of respondent Isabel, Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs, and the unliquidated conjugal partnership of Cristina and Federico which forms part of their respective estates, we are impelled to move in only one direction, i.e., joint administration of the subject estate. One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil Code, the successional bar between the legitimate and illegitimate relatives of a decedent, does not apply in this instance where facts indubitably demonstrate the contrary Emilio III, an illegitimate grandchild of the decedent, was actually treated by the decedent and her husband as their own son, reared from infancy, educated and trained in their businesses, and eventually legally adopted by decedents husband, the original oppositor to respondents petition for letters of administration. We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law concerning the bone of contention that is Article 992 of the Civil Code, beginning with the eminent Justice J.B.L. Reyes:

In the Spanish Civil Code of 1889 the right of representation was admitted only within the legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate child can not inherit ab intestato from the legitimate children and relatives of his father and mother. The Civil Code of the Philippines apparently adhered to this principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in the intestate succession of the grandparent, the illegitimates of an illegitimate child can now do so. This difference being indefensible and unwarranted, in the future revision of the Civil Code we shall have to make a choice and decide either that the illegitimate issue enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or contrariwise maintain said article and modify Articles 995 and 998. The first solution would be more in accord with an enlightened attitude vis--vis illegitimate children. [23]

Manresa explains the basis for the rules on intestate succession: The law [of intestacy] is founded on the presumed will of the deceased Love, it is said, first descends, then ascends, and, finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants, and finally the collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased would have done so had he manifested his last will Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or educational institutions, and thus contribute to the welfare of humanity. [24]

However, the order of preference is not absolute for it depends on the attendant facts and circumstances of each case. [19] Jurisprudence has long held that the selection of an administrator lies in the sound discretion of the trial court. [20] In the main, the attendant facts and circumstances of this case necessitate, at the least, a joint administration by both respondent and Emilio III of their grandmothers, Cristinas, estate. In the case of Uy v. Court of Appeals, [21] we upheld the appointment by the trial court of a co-administration between the decedents son and the decedents brother, who was likewise a creditor of the decedents estate. In the same vein, we declared in Delgado Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian [22] that: [i]n the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. The order of preference does not rule out the appointment of co-administrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, a situation which obtains here. Similarly, the subject estate in this case calls to the succession other putative heirs, including another illegitimate grandchild of Cristina and Federico, Nenita Taedo, but who was likewise adopted by Federico, and the two (2)

Indeed, the factual antecedents of this case accurately reflect the basis of intestate succession, i.e., love first descends, for the decedent, Cristina, did not distinguish between her legitimate and illegitimate grandchildren. Neither did her husband, Federico, who, in fact, legally raised the status of Emilio III from an illegitimate grandchild to that of a legitimate child. The peculiar circumstances of this case, painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in Article 992 of the Civil Code that there exist animosity and antagonism between legitimate and illegitimate descendants of a deceased. Nonetheless, it must be pointed out that judicial restraint impels us to refrain from making a final declaration of heirship and distributing the presumptive shares of the parties in the estates of Cristina and Federico, considering that the question on who will administer the properties of the long deceased couple has yet to be settled. Our holding in Capistrano v. Nadurata [25] on the same issue remains good law:

[T]he declaration of heirs made by the lower court is premature, although the evidence sufficiently shows who are entitled to succeed the deceased. The estate had hardly been judicially opened, and the proceeding has not as yet reached the stage of distribution of the estate which must come after the inheritance is liquidated. Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition: Sec. 1. When order for distribution of residue is made. x x x. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases. No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 74949 is REVERSED and SET ASIDE. Letters of Administration over the estate of decedent Cristina AguinaldoSuntay shall issue to both petitioner Emilio A.M. Suntay III and respondent Isabel Cojuangco-Suntay upon payment by each of a bond to be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to make a determination and to declare the heirs of decedent Cristina Aguinaldo-Suntay according to the actual factual milieu as proven by the parties, and all other persons with legal interest in the subject estate. It is further directed to settle the estate of decedent Cristina Aguinaldo-Suntay with dispatch. No costs. -G.R. No. 132524 December 29, 1998

With regard to counterclaim, in view of the manifestation of counsel that the third party defendants are willing to pay P50,000.00 for damages and that defendant is willing to accept the offer instead of her original demand for P130,000.00, the defendant is awarded said sum of P50,000.00 as her counterclaim and to pay attorney's fees in the amount of P5.000.00. SO ORDERED. 4 (Emphasis supplied). As basis thereof, the CFI said: From February 1965 thru December 1965 plaintiff was confined in the Veterans Memorial Hospital. Although at the time of the trial of parricide case (September 8, 1967) the patient was already out of the hospital he continued to be under observation and treatment. It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuropsychiatrist (sic) treatment; that even if the subject has shown marked progress, the remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiffs mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95. (sic) A marriage may be annulled for nay of the following causes after (sic) existing at the time of the marriage: xxx xxx xxx

FEDERICO C. SUNTAY vs. ISABEL COJUANGCO-SUNTAY * and HON. GREGORIO S. SAMPAGA, Presiding Judge, Branch 78, Regional Trial Court, Malolos, Bulacan Which should prevail between the ratio decidendi and the fallo of a decision is the primary issue in this petition for certiorari under Rule 65 filed by petitioner Federico C. Suntay who opposes respondent Isabel's petition for appointment as administratrix of her grandmother's estate by virtue of her right of representation. The suit stemmed from the following: On July 9, 1958, Emilio Aguinaldo Suntay (son of petitioner Federico Suntay) and Isabel Cojuangco-Suntay were married in the Portuguese Colony of Macao. Out of this marriage, three children were born namely: Margarita Guadalupe, Isabel Aguinaldo and Emilio Aguinaldo all surnamed Cojuangco Suntay. After 4 years, the marriage soured so that in 1962, Isabel CojuangcoSuntay filed a criminal case 1 against her husband Emilio Aguinaldo Suntay. In retaliation, Emilio Aguinaldo filed before the then Court of First Instance (CFI) 2 a complaint for legal separation against his wife, charging her, among others, with infidelity and praying for the custody and care of their children who were living with their mother. 3 The suit was docketed as civil case number Q-7180. On October 3, 1967, the trial court rendered a decision the dispositive portion of which reads: WHEREFORE, the marriage celebrated between Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay on July 9, 1958 is hereby declared null and void and of no effect as between the parties. It being admitted by the parties and shown by the record that the question of the case and custody of the three children have been the subject of another case between the same parties in another branch of this Court in Special Proceeding No. 6428, the same cannot be litigated in this case.

(3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife. There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very complaint add emphasis to the findings of the neuro-psychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic). 5 (Emphasis supplied). On June 1, 1979, Emilio Aguinaldo Suntay predeceased his mother, the decedent Cristina Aguinaldo-Suntay. The latter is respondent Isabel's paternal grandmother. The decedent died on June 4, 1990 without leaving a will. 6 Five years later or on October 26, 1995, respondent Isabel Aguinaldo Cojuangco Suntay filed before the Regional Trial Court (RTC) 7 a petition for issuance in her favor of Letters of Administration of the Intestate Estate of her late grandmother Cristina Aguinaldo-Suntay which case was docketed as Special Proceeding Case No. 117-M-95. In her petition, she alleged among others, that she is one of the legitimate grandchildren of the decedent and prayed that she be appointed as administratrix of the estate. 8 On December 15, 1995, petitioner filed an Opposition claiming that he is the surviving spouse of the decedent, that he has been managing the conjugal properties even while the decedent has been alive and is better situated to protect the integrity of the estate than the petitioner, that petitioner and her family have been alienated from the decedent and the Oppositor for more than thirty (30) years and thus, prayed that Letters of Administration be issued instead to him. 9

On September 22, 1997 or almost two years after filing an opposition, petitioner moved to dismiss the special proceeding case alleging in the main that respondent Isabel should not be appointed as administratrix of the decedent's estate. In support thereof, petitioner argues that under Article 992 of the Civil Code an illegitimate child has no right to succeed by right of representation the legitimate relatives of her father or mother. Emilio Aguinaldo Suntay, respondent Isabel's father predeceased his mother, the late Cristina Aguinaldo Suntay and thus, opened succession by representation. Petitioner contends that as a consequence of the declaration by the then CFI of Rizal that the marriage of respondent Isabel's parents is "null and void," the latter is an illegitimate child, and has no right nor interest in the estate of her paternal grandmother the decedent. 10 On October 16, 1997, the trial court issued the assailed order denying petitioner's Motion to Dismiss. 11 When his motion for reconsideration was denied by the trial court in an order dated January 9, 1998, 12 petitioner, as mentioned above filed this petition. Petitioner imputes grave abuse of discretion to respondent court in denying his motion to dismiss as well as his motion for reconsideration on the grounds that: (a) a motion to dismiss is appropriate in a special proceeding for the settlement of estate of a deceased person; (b) the motion to dismiss was timely filed; (c) the dispositive portion of the decision declaring the marriage of respondent Isabel's parents "null and void" must be upheld; and (d) said decision had long become final and had, in fact, been executed. On the other hand, respondent Isabel asserts that petitioner's motion to dismiss was alte having been filed after the opposition was already filed in court, the counterpart of an answer in an ordinary civil action and that petitioner in his opposition likewise failed to specifically deny respondent Isabel's allegation that she is a legitimate child of Emilio Aguinaldo Suntay, the decedent's son. She further contends that petitioner proceeds from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion because in an action for annulment of a marriage, the court either sustains the validity of the marriage or nullifies it. It does not, after hearing declare a marriage "voidable" otherwise, the court will fail to decide and lastly, that the status of marriages under Article 85 of the Civil Code before they are annulled is "voidable." The petition must fail. Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. 13 There must be a capricious, arbitrary and whimsical exercise of power for it to prosper. 14 A reading of the assailed order, however, shows that the respondent court did not abuse its discretion in denying petitioner's motion to dismiss, pertinent portions of which are quoted thereunder, to wit: The arguments of both parties judiciously and objectively assessed and the pertinent laws applied, the Court finds that a motion to dismiss at this juncture is inappropriate considering the peculiar nature of this special proceeding as distinguished from an ordinary civil action. At the outset, this proceeding was not adversarial in nature and the petitioner was not called upon to assert a cause of action against a particular defendant. Furthermore, the State has a vital interest in the maintenance of the proceedings, not only because of the taxes due it, but also because if no heirs qualify, the State shall acquire the estate by escheat. xxx xxx xxx The court rules, for the purpose of establishing the personality of the petitioner to file and maintain this special proceedings, that in the case bench, the body of the decision determines the nature of the action which is for annulment, not declaration of nullity. The oppositor's contention that the fallo of the questioned decision (Annex "A" Motion) prevails over

the body thereof is not without any qualification. It holds true only when the dispositive portion of a final decision is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction. Where there is ambiguity or uncertainty, the opinion or body of the decision may be referred to for purposes of construing the judgment (78 SCRA 541 citing Morelos v. Go Chin Ling; and Heirs of Juan Presto v. Galang). The reason is that the dispositive portion must find support from the decision's ratio decidendi. Per decision of the Court of First Instance Branch IX of Quezon City, marked as Annex "A" of oppositor's motion, the marriage of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay was annulled on the basis of Art. 85 par. 3 of the Civil Code which refers to marriages which are considered voidable. Petitioner being conceived and born of a voidable marriage before the decree of annulment, she is considered legitimate (Art. 89, par. 2, Civil Code of the Phils.). 15 The trial court correctly ruled that "a motion to dismiss at this juncture is inappropriate." The 1997 Rules of Civil Procedure governs the procedure to be observed in actions, civil or criminal and special proceedings. 16 The Rules do not only apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not therein provided for. Special proceedings being one of the actions under the coverage of the Rules on Civil Procedure, a motion to dismiss filed thereunder would fall under Section 1, Rule 16 thereof. Said rule provides that the motion to dismiss may be filed "within the time for but before filing the answer to the complaint." Clearly, the motion should have been filed on or before the filing of petitioner's opposition 17 which is the counterpart of an answer in ordinary civil actions. Not only was petitioner's motion to dismiss filed out of time, it was filed almost two years after respondent Isabel was already through with the presentation of her witnesses and evidence and petitioner had presented two witnesses. The filing of the motion to dismiss is not only improper but also dilatory. The respondent court, far from deviating or straying off course from established jurisprudence on this matter, as petitioner asserts, had in fact faithfully observed the law and legal precedents in this case. In fact, the alleged conflict between the body of the decision and the dispositive portion thereof which created the ambiguity or uncertainty in the decision of the CFI of Rizal is reconcilable. The legal basis for setting aside the marriage of respondent Isabel's parents is clear under paragraph 3, Article 85 of the New Civil Code, the law in force prior to the enactment of the Family Code. Petitioner, however, strongly insists that the dispositive portion of the CFI decision has categorically declared that the marriage of respondent Isabel's parents is "null and void" and that the legal effect of such declaration is that the marriage from its inception is void and the children born out of said marriage are illegitimate. Such argument cannot be sustained. Articles 80, 81, 82 and 83 18 of the New Civil Code classify what marriages are void while Article 85 enumerates the causes for which a marriage may be annulled. 19 The fundamental distinction between void and voidable marriages is that a void marriage is deemed never to have taken place at all. The effects of void marriages, with respect to property relations of the spouses are provided for under Article 144 of the Civil Code. Children born of such marriages who are called natural children by legal fiction have the same status, rights and obligations as acknowledged natural children under Article 89 20 irrespective of whether or not the parties to the void marriage are in good faith or in bad faith. On the other hand, a voidable marriage, is considered valid and produces all its civil effects, until it is set aside by final judgment of a competent court in an action for annulment. Juridically, the annulment of a marriage dissolves the special contract as if it had never been entered into but the law makes express provisions to prevent the effects of the marriage from being totally wiped out. The status of children born in voidable marriages is governed by the second paragraph of Article 89 which provides that:

Children conceived of voidable marriages before the decree of annulment shall be considered legitimate; and children conceived thereafter shall have the same status, rights and obligations as acknowledged natural children, and are also called natural children by legal fiction. 21 (Emphasis supplied). Stated otherwise, the annulment of "the marriage by the court abolishes the legal character of the society formed by the putative spouses, but it cannot destroy the juridical consequences which the marital union produced during its continuance." 22 Indeed, the terms "annul" and "null and void" have different legal connotations and implications, Annul means to reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with 23 whereas null and void is something that does not exist from the beginning. A marriage that is annulled presupposes that it subsists but later ceases to have legal effect when it is terminated through a court action. But in nullifying a marriage, the court simply declares a status or condition which already exists from the very beginning. There is likewise no merit in petitioner's argument that it is the dispositive portion of the decision which must control as to whether or not the marriage of respondent Isabel's parents was void or voidable. Such argument springs from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion. Parenthetically, it is an elementary principle of procedure that the resolution of the court in a given issue as embodied in the dispositive part of a decision or order is the controlling factor as to settlement of rights of the parties and the questions presented, notwithstanding statement in the body of the decision or order which may be somewhat confusing, 24 the same is not without a qualification. The foregoing rule holds true only when the dispositive part of a final decision or order is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction-which usually is "the case where the order or decision in question is that of a court not of record which is not constitutionally required to state the facts and the law on which the judgment is based." 25 Assuming that a doubt or uncertainty exists between the dispositive portion and the body of the decision, effort must be made to harmonize the whole body of the decision in order to give effect to the intention, purpose and judgment of the court. In Republic v. de los Angeles 26 the Court said: Additionally, Article 10 of the Civil Code states that "[i]n case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This mandate of law, obviously cannot be any less binding upon the courts in relation to its judgments. . . .The judgment must be read in its entirety, and must be construed as a whole so as to bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation and so as to give effect to every word and part if possible, and to effectuate the intention and purpose of the Court, consistent with the provisions of the organic law. (49 C.J.S., pp. 863-864) [Emphasis supplied]. Thus, a reading of the pertinent portions of the decision of the CFI of Rizal quoted earlier shows that the marriage is voidable: It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuropsychiatrict (sic) treatment; that even if the subject has shown marked progress, he remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiff's mental illness had set in. This fact would justify

a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95 (sic) A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife; xxx xxx xxx There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic). 27 Inevitably, the decision of the CFI of Rizal declared null and void the marriage of respondent Isabel's parents based on paragraph 3, Article 85 of the New Civil Code. The legal consequences as to the rights of the children are therefore governed by the first clause of the second paragraph of Article 89. A contrary interpretation would be anathema to the rule just above-mentioned. Based on said provision the children of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay who were conceived and born prior to the decree of the trial court setting aside their marriage on October 3, 1967 are considered legitimate. For purposes of seeking appointment as estate administratrix, the legitimate grandchildren, including respondent Isabel, may invoke their successional right of representation the estate of their grandmother Cristina Aguinaldo Suntay after their father, Emilio Aguinaldo Suntay, had predeceased their grandmother. This is, however, without prejudice to a determination by the courts of whether the Letters of Administration may be granted to her. Neither do the Court adjudged herein the successional rights of the personalities involved over the decedent's estate. It would not therefore be amiss to reiterate at this point what the Court, speaking through Chief Justice Ruiz Castro, emphasized to "all magistrates of all levels of the judicial hierarchy that extreme degree of care should be exercised in the formulation of the dispositive portion of a decision, because it is this portion that is to be executed once the decision becomes final. The adjudication of the rights and obligations of thoe parties, and the dispositions made as well as the directions and instructions given by the court in the premises in conformity with the body of the decision, must all be spelled out clearly, distinctly and unequivocally leaving absolutely no room for dispute, debate or interpretation. 28 WHEREFORE, finding no grave abuse of discretion, the instant petition is DISIMISSED. -ARTURIO TRINIDAD, petitioner, vs. COURT OF APPEALS, FELIX TRINIDAD (deceased) and LOURDES TRINIDAD, respondents. In the absence of a marriage contract and a birth certificate, how may marriage and filiation be proven? The Case This is the main question raised in this petition for review on certiorari challenging the Court of Appealsi[1] Decision promulgated on December 1, 1994ii[2] and Resolution promulgated on February 8, 1995iii[3] in CA-GR CV No. 23275, which reversed the decision of the trial court and dismissed petitioners action for partition and damages. On August 10, 1978, Petitioner Arturio Trinidad filed a complaintiv[4] for partition and damages against Private Respondents Felix and Lourdes, both surnamed Trinidad, before the Court of First Instance of Aklan, Branch I.v[5]

On October 28, 1982, Felix died without issue, so he was not substituted as a party.vi[6] On July 4, 1989, the trial court rendered a twenty-page decisionvii[7] in favor of the petitioner, in which it ruled:viii[8] Considering therefore that this court is of the opinion that plaintiff is the legitimate son of Inocentes Trinidad, plaintiff is entitled to inherit the property left by his deceased father which is 1/3 of the 4 parcels of land subject matter of this case. Although the plaintiff had testified that he had been receiving [his] share from said land before and the same was stopped, there was no evidence introduced as to what year he stopped receiving his share and for how much. This court therefore cannot rule on that. In its four-page Decision, Respondent Court reversed the trial court on the ground that petitioner failed to adduce sufficient evidence to prove that his parents were legally married to each other and that acquisitive prescription against him had set in. The assailed Decision disposed:ix[9] WHEREFORE, the Court REVERSES the appealed decision. In lieu thereof, the Court hereby DISMISSES the [petitioners] complaint and the counterclaim thereto. Without costs. Respondent Court denied reconsideration in its impugned Resolution which reads:x[10] The Court DENIES defendants-appellants motion for reconsideration, dated December 15, 1994, for lack of merit. There are no new or substantial matters raised in the motion that merit the modification of the decision. Hence, this petition.xi[11] The Facts The assailed Decision recites the factual background of this case, as follows:xii[12] On August 10, 1978, plaintiff [herein petitioner] filed with the Court of First Instance of Aklan, Kalibo, Aklan, an action for partition of four (4) parcels of land, described therein, claiming that he was the son of the late Inocentes Trinidad, one of three (3) children of Patricio Trinidad, who was the original owner of the parcels of land. Patricio Trinidad died in 1940, leaving the four (4) parcels of land to his three (3) children, Inocentes, Lourdes and Felix. In 1970, plaintiff demanded from the defendants to partition the land into three (3) equal shares and to give him the one-third (1/3) individual share of his late father, but the defendants refused. In their answer, filed on September 07, 1978, defendants denied that plaintiff was the son of the late Inocentes Trinidad. Defendants contended that Inocentes was single when he died in 1941, before plaintiffs birth. Defendants also denied that plaintiff had lived with them, and claimed that the parcels of land described in the complaint had been in their possession since the death of their father in 1940 and that they had not given plaintiff a share in the produce of the land. Patricio Trinidad and Anastacia Briones were the parents of three (3) children, namely, Inocentes, Lourdes and Felix. When Patricio died in 1940, survived by the above named children, he left four (4) parcels of land, all situated at Barrio Tigayon, Kalibo Aklan. Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son of the late Inocentes Trinidad. Arturio got married in 1966 to Candelaria Gaspar, at the age of twenty three (23). Sometime after the marriage, Arturio demanded from the defendants that the above-mentioned parcels of land be partitioned into three (3) equal shares and that he be given the one-third (1/3) individual shares of his late father, but defendants refused.

In order to appreciate more clearly the evidence adduced by both parties, this Court hereby reproduces pertinent portions of the trial courts decision:xiii[13] EVIDENCE FOR THE PLAINTIFF: Plaintiff presented as his first witness, Jovita Gerardo, 77 years old, (at the time she testified in 1981) who is the barangay captain of barrio Tigayon, Kalibo, Aklan, since 1972. She testified that before being elected as barrio captain she held the position of barrio council-woman for 4 years. Also she was [a member of the] board of director[s] of the Parent-Teachers Association of Tigayon, Kalibo, Aklan. That she knows the plaintiff because they are neighbors and she knows him from the time of his birth. She knows the father of the plaintiff as Inocentes Trinidad and his mother Felicidad Molato; both were already dead, Inocentes having died in 1944 and his wife died very much later. Witness recalls plaintiff was born in 1943 in Barrio Tigayon, Kalibo, Aklan, on July 21, 1943. At the time of the birth of the plaintiff, the house of the witness was about 30 meters away from plaintiffs parents[] house and she used to go there 2 or 3 times a week. That she knows both the defendants as they are also neighbors. That both Felix and Lourdes Trinidad are the uncle and aunt of Arturio because Inocentes Trinidad who is the father of the plaintiff is the brother of the defendants, Felix and Lourdes Trinidad. She testified she also knows that the father of Inocentes, Felix and Lourdes[,] all surnamed Trinidad[,] was Patricio Trinidad who is already dead but left several parcels of land which are the 4 parcels subject of this litigation. That she knows all these [parcels of] land because they are located in Barrio Tigayon. When asked about the adjoining owners or boundaries of the 4 parcels of land, witness answered and mentioned the respective adjoining owners. That she knew these 4 parcels belonged to Patricio Trinidad because said Patricio Trinidad was a native also of Barrio Tigayon. Said Patricio died before the [war] and after his death the land went to his 3 children, namely: Inocentes, Felix and Lourdes. Since then the land was never partitioned or divided among the 3 children of Patricio. A picture, Exhibit A, was shown to the witness for identification and she identified a woman in the picture as the defendant, Lourdes Trinidad. A man with a hat holding a baby was identified by her as Felix Trinidad, the defendant. The other woman in the picture was pointed by the witness as the wife of the plaintiff, Arturio Trinidad. When asked if Arturio Trinidad and Lourdes Trinidad and Felix Trinidad pointed to by her in the picture are the same Arturio, Felix and Lourdes, who are the plaintiff and the defendants in this case, witness answered yes. Another picture marked as Exhibit B was presented to the witness for identification. She testified the woman in this picture as Lourdes Trinidad. In said picture, Lourdes Trinidad was holding a child which witness identified as the child Arturio Trinidad. When asked by the court when xxx the picture [was] taken, counsel for the plaintiff answered, in 1966. When asked if Arturio Trinidad was baptized, witness answered yes, as she had gone to the house of his parents. Witness then identified the certificate of baptism marked as Exhibit C. The name Arturio Trinidad was marked as Exhibit C-1 and the name of Inocentes Trinidad and Felicidad Molato as father and mother respectively, were marked as Exhibit C-2. The date of birth being July 21, 1943 was also marked. The signature of Monsignor Iturralde was also identified. On cross-examination, witness testified that she [knew] the land in question very well as she used to pass by it always. It was located just near her house but she cannot exactly tell the area as she merely passes by it. When asked if she [knew] the photographer who took the pictures presented as Exhibit A and B, witness answered she does not know as she was not present during the picture taking. However, she can identify everybody in the picture as she knows all of them. At this stage of the trial, Felix Trinidad [died] without issue and he was survived by his only sister, Lourdes Trinidad, who is his co-defendant in this case. Next witness for the plaintiff was ISABEL MEREN who was 72 years old and a widow. She testified having known Inocentes Trinidad as the father of Arturio Trinidad and that Inocentes, Felix and Lourdes are brothers and sister and that their father was Patricio Trinidad who left them 4 parcels of land. That she knew Inocentes Trinidad and Felicidad Molato who are the parents of Arturio, the plaintiff, were married in New Washington, Aklan, by a protestant pastor by the name of Lauriano Lajaylajay. That she knows Felicidad Molato and Lourdes Trinidad very well because as a farmer she also owns a parcel of land [and] she used to invite Felicidad and Lourdes to

help her during planting and harvesting season. That she knows that during the lifetime of Inocentes the three of them, Inocentes, Felix and Lourdes possessed and usufructed the 4 parcels they inherited from their father, Patricio. That upon the death of Inocentes, Lourdes Trinidad was in possession of the property without giving the widow of Inocentes any share of the produce. As Lourdes outlived her two brothers, namely: Felix and Inocentes, she was the one possessing and usufructing the 4 parcels of land up to the present. The witness testified that upon the death of Inocentes, Lourdes took Arturio and cared for him when he was still small, about 3 years old, until Arturio grew up and got married. That while Arturio was growing up, he had also enjoyed the produce of the land while he was being taken care of by Lourdes Trinidad. That a misunderstanding later on arose when Arturio Trinidad wanted to get his fathers share but Lourdes Trinidad will not give it to him. Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness. He testified that defendants, Lourdes and Felix Trinidad, are his aunt and uncle, they being the brother and sister of his father. That the parents of his father and the defendants were Patricio Trinidad and Anastacia Briones. That both his father, Inocentes Trinidad, and mother, Felicidad Molato, were already dead having died in Tigayon, his father having died in 1944 and his mother about 25 years ago. As proof that he is the son of Inocentes Trinidad and Felicidad Molato, he showed a certificate of baptism which had been previously marked as Exhibit C. That his birth certificate was burned during World War 2 but he has a certificate of loss issued by the Civil Registrar of Kalibo, Aklan. When he was 14 years old, the defendants invited him to live with them being their nephew as his mother was already dead. Plaintiffs mother died when he was 13 years old. They treated him well and provided for all his needs. He lived with defendants for 5 years. At the age of 19, he left the house of the defendants and lived on his own. He got married at 23 to Candelaria Gaspar and then they were invited by the defendants to live with them. So he and his wife and children lived with the defendants. As proof that he and his family lived with the defendants when the latter invited him to live with them, he presented a picture previously marked as Exhibit B where there appears his aunt, Lourdes Trinidad, carrying plaintiffs daughter, his uncle and his wife. In short, it is a family picture according to him. Another family picture previously marked Exhibit A shows his uncle, defendant Felix Trinidad, carrying plaintiffs son. According to him, these 2 pictures were taken when he and his wife and children were living with the defendants. That a few years after having lived with them, the defendants made them vacate the house for he requested for partition of the land to get his share. He moved out and looked for [a] lawyer to handle his case. He testified there are 4 parcels of land in controversy of which parcel 1 is an upland. Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit bearing. The harvest is 100 coconuts every 4 months and the cost of coconuts is P2.00 each. The boundaries are : East-Federico Inocencio; West-Teodulo Dionesio; North-Teodulo Dionesio; and South-Bulalio Briones; located at Tigayon. Parcel 2 is an upland with an area of 500 square meters; it has only 1 coconut tree and 1 bamboo groove; also located in Tigayon, Kalibo, Aklan. Adjoining owners are : East-Ambrosio Trinidad; North-Federico Inocencio; West-Patricio Trinidad and South-Gregorio Briones. Parcel 3 is about 12,000 square meters and 1/4 of that belongs to Patricio Trinidad, the deceased father of the defendants and Inocentes, the father of the plaintiff. Parcel 4 is a riceland with an area of 5,000 square meters. The harvest is 40 cavans two times a years [sic]. Adjoining owners are: East-Gregorio Briones; West-Bulalio Briones; South-Federico Inocencio and North-Digna Carpio. Parcel 1 is Lot No. 903. Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only Lot 864-A with an area of 540 square meters is the subject of litigation. Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by Tax Decl. No. 703310 with reference to one of the owners of the land, Patricio Trinidad married to Anastacia Briones, one-half share.

Parcel 4 is covered by Original Certificate of Title No. 22502 RO-174 covering Lot No. 863 of the cadastral survey of Kalibo. The title is in the name of Patricio Trinidad married to Anastacia Briones. Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio Trinidad while parcel 2 is covered by Tax Decl. No. 10626 in the name of Anastacia Briones and another Tax Declaration No. 11637 for Parcel 3 in the name of Ambrosio Trinidad while Parcel 4 is covered by Tax Decl. No. 16378 in the name of Patricio Trinidad. On cross-examination, plaintiff testified that during the lifetime of his mother they were getting the share in the produce of the land like coconuts, palay and corn. Plaintiff further testified that his father is Inocentes Trinidad and his mother was Felicidad Molato. They were married in New Washington, Aklan, by a certain Atty. Lajaylajay. When asked if this Atty. Lajaylajay is a municipal judge of New Washington, Aklan, plaintiff answered he does not know because he was not yet born at that time. That he does not have the death certificate of his father who died in 1944 because it was wartime. That after the death of his father, he lived with his mother and when his mother died[,] he lived with his aunt and uncle, the defendants in this case. That during the lifetime of his mother, it was his mother receiving the share of the produce of the land. That both defendants, namely Lourdes and Felix Trinidad, are single and they have no other nephews and nieces. That [petitioners] highest educational attainment is Grade 3. EVIDENCE FOR THE DEFENDANTS: First witness for the defendants was PEDRO BRIONES, 68 years old, unemployed and a resident of Nalook, Kalibo, Aklan. He testified having known the defendants, Felix and Lourdes Trinidad. They being his first cousins because the mother of Lourdes and Felix by the name of Anastacia Briones and his father are sister and brother. That he also knew Inocentes Trinidad being the brother of Felix and Lourdes and he is already dead. According to the witness, Inocentes Trinidad [died] in 1940 and at the time of his death Inocentes Trinidad was not married. That he knew this fact because at the time of the death of Inocentes Trinidad he was then residing with his aunt, Nanay Taya, referring to Anastacia Briones who is mother of the defendants, Felix and Lourdes Trinidad, as well as Inocentes Trinidad. That at the time of the death of Inocentes Trinidad, according to this witness he stayed with his aunt, Anastacia Trinidad, and with his children before 1940 for only 3 months. When asked if he knew Inocentes Trinidad cohabited with anybody before his death, he answered, That I do not know, neither does he kn[o]w a person by the name of Felicidad Molato. Furthermore, when asked if he can recall if during the lifetime of Inocentes Trinidad witness knew of anybody with whom said Inocentes Trinidad had lived as husband and wife, witness, Pedro Briones, answered that he could not recall because he was then in Manila working. That after the war, he had gone back to the house of his aunt, Anastacia, at Tigayon, Kalibo, as he always visit[s] her every Sunday, however, he does not know the plaintiff, Arturio Trinidad. When asked if after the death of Inocentes Trinidad, he knew anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad, witness, Pedro Briones, answered: I do not know about that.. On cross examination, witness testified that although he was born in Tigayon, Kalibo, Aklan, he started to reside in Nalook, Kalibo, as the hereditary property of their father was located there. When asked if he was aware of the 4 parcels of land which is the subject matter of this case before the court, witness answered that he does not know. What he knew is that among the 3 children of Patricio Trinidad, Inocentes is the eldest. And that at the time of the death of Inocentes in 1940, according to the witness when cross examined, Inocentes Trinidad was around 65 years old. That according to him, his aunt, Anastacia Briones, was already dead before the war. When asked on cross examination if he knew where Inocentes Trinidad was buried when he died in 1940, witness answered that he was buried in their own land because the Japanese forces were roaming around the place. When confronted with Exhibit A which is the alleged family picture of the plaintiff and the defendants, witness was able to identify the lady in the picture, which had been marked as Exhibit A-1, as Lourdes Trinidad, and the man wearing a hat on the said picture marked as Exhibit 2-A is Felix Trinidad. However, when asked if he knew the plaintiff, Arturio Trinidad, he said he does not know him.

Next witness for the defendants was the defendant herself, LOURDES TRINIDAD. She stated that she is 75 years old, single and jobless. She testified that Inocentes Trinidad was her brother and he is already dead and he died in 1941 in Tigayon, Kalibo, Aklan. That before the death of her brother, Inocentes Trinidad, he had gone to Manila where he stayed for a long time and returned to Tigayon in 1941. According to her, upon arrival from Manila in 1941 his brother, Inocentes Trinidad, lived only for 15 days before he died. While his brother was in Manila, witness testified she was not aware that he had married anybody. Likewise, when he arrived in Tigayon in 1941, he also did [not] get married. When asked if she knew one by the name of Felicidad Molato, witness answered she knew her because Felicidad Molato was staying in Tigayon. However, according to her[,] she does not kn[o]w if her brother, Inocentes Trinidad, had lived with Felicidad Molato as husband and wife. When asked if she knew the plaintiff, Arturio Trinidad, she said, Yes, but she denied that Arturio Trinidad had lived with them. According to the witness, Arturio Trinidad did not live with the defendants but he stayed with his grandmother by the name of Maria Concepcion, his mother, Felicidad Molato, having died already. When asked by the court if there had been an instance when the plaintiff had lived with her even for days, witness answered, he did not. When further asked if Arturio Trinidad went to visit her in her house, witness also said, He did not. Upon cross examination by counsel for the plaintiff, Lourdes Trinidad testified that her parents, Anastacia Briones and Patricio Trinidad, had 3 children, namely: Inocentes Trinidad, Felix Trinidad and herself. But inasmuch as Felix and Inocentes are already dead, she is the only remaining daughter of the spouses Patricio Trinidad and Anastacia Briones. Defendant, Lourdes Trinidad, testified that her brother, Felix Trinidad, died without a wife and children, in the same manner that her brother, Inocentes Trinidad, died without a wife and children. She herself testified that she does not have any family of her own for she has [no] husband or children. According to her[,] when Inocentes Trinidad [died] in 1941, they buried him in their private lot in Tigayon because nobody will carry his coffin as it was wartime and the municipality of Kalibo was occupied by the Japanese forces. When further cross-examined that I[t] could not be true that Inocentes Trinidad died in March 1941 because the war broke out in December 1941 and March 1941 was still peace time, the witness could not answer the question. When she was presented with Exhibit A which is the alleged family picture wherein she was holding was [sic] the child of Arturio Trinidad, she answered; Yes. and the child that she is holding is Clarita Trinidad, child of Arturio Trinidad. According to her, she was only requested to hold this child to be brought to the church because she will be baptized and that the baptism took place in the parish church of Kalibo. When asked if there was a party, she answered; Maybe there was. When confronted with Exhibit A-1 which is herself in the picture carrying the child, witness identified herself and explained that she was requested to bring the child to the church and that the picture taken together with her brother and Arturio Trinidad and the latters child was taken during the time when she and Arturio Trinidad did not have a case in court yet. She likewise identified the man with a hat holding a child marked as Exhibit A-2 as her brother, Felix. When asked if the child being carried by her brother, Felix Trinidad, is another child of the plaintiff, witness answered she does not know because her eyes are already blurred. Furthermore, when asked to identify the woman in the picture who was at the right of the child held by her brother, Felix, and who was previously identified by plaintiff, Arturio Trinidad, as his wife, witness answered that she cannot identify because she had a poor eyesight neither can she identify plaintiff, Arturio Trinidad, holding another child in the picture for the same reason. When asked by counsel for the plaintiff if she knows that the one who took this picture was the son of Ambrosio Trinidad by the name of Julito Trinidad who was also their cousin, witness testified that she does not know. Third witness for the defendants was BEATRIZ TRINIDAD SAYON who testified that she knew Arturio Trinidad because he was her neighbor in Tigayon. In the same manner that she also knew the defendants, Felix and Lourdes, and Inocentes all surnamed Trinidad because they were her cousins. She testified that a few months after the war broke out Inocentes Trinidad died in their lolas house whose names was Eugenia Rufo Trinidad. She further testified that Inocentes Trinidad had lived almost in his lifetime in Manila and he went home only when his father fetched him in Manila because he was already sick. That according to

her, about 1 months after his arrival from Manila, Inocentes Trinidad died. She also testified that she knew Felicidad Molato and that Felicidad Molato had never been married to Inocentes Trinidad. According to her, it was in 1941 when Inocentes Trinidad died. According to her she was born in 1928, therefore, she was 13 or 14 years old when the war broke out. When asked if she can remember that it was only in the early months of the year 1943 when the Japanese occupied Kalibo, she said she [was] not sure. She further testified that Inocentes Trinidad was buried in their private lot because Kalibo was then occupied by the Japanese forces and nobody would carry his body to be buried in the Poblacion. For rebuttal evidence, [petitioner] presented ISABEL MEREN, who was 76 years old and a resident of Tigayon. Rebuttal witness testified that xxx she knew both the [petitioner] and the [private respondents] in this case very well as her house is only around 200 meters from them. When asked if it is true that according to Lourdes Trinidad, [Inocentes Trinidad] arrived from Manila in 1941 and he lived only for 15 days and died, witness testified that he did not die in that year because he died in the year 1944, and that Inocentes Trinidad lived with his sister, Lourdes Trinidad, in a house which is only across the street from her house. According to the said rebuttal witness, it is not true that Inocentes Trinidad died single because he had a wife by the name of Felicidad Molato whom he married on May 5, 1942 in New Washington, Aklan. That she knew this fact because she was personally present when couple was married by Lauriano Lajaylajay, a protestant pastor. On cross examination, rebuttal witness testified that when Inocentes Trinidad arrived from Manila he was in good physical condition. That she knew both Inocentes Trinidad and Felicidad Molato to be Catholics but that according to her, their marriage was solemnized by a Protestant minister and she was one of the sponsors. That during the marriage of Inocentes Trinidad and Felicidad Molato, Lourdes Trinidad and Felix Trinidad were also present. When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal witness, he was not able to present a marriage contract of his parents but instead a certification dated September 5, 1978 issued by one Remedios Eleserio of the Local Civil Registrar of the Municipality of New Washington, Aklan, attesting to the fact that records of births, deaths, and marriages in the municipality of New Washington were destroyed during the Japanese time. Respondent Courts Ruling In finding that petitioner was not a child, legitimate or otherwise, of the late Inocentes Trinidad, Respondent Court ruled:xiv[14] We sustain the appeal on the ground that plaintiff has not adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad. But the action to claim legitimacy has not prescribed. Plaintiff has not established that he was recognized, as a legitimate son of the late Inocentes Trinidad, in the record of birth or a final judgment, in a public document or a private handwritten instrument, or that he was in continuous possession of the status of a legitimate child. Two witnesses, Pedro Briones and Beatriz Trinidad Sayon, testified for the defendants that Inocentes Trinidad never married. He died single in 1941. One witness, Isabel Maren, testified in rebuttal for the plaintiff, that Inocentes Trinidad married Felicidad Molato in New Washington, Aklan, on May 5, 1942, solemnized by a pastor of the protestant church and that she attended the wedding ceremony (t.s.n. Sept. 6, 1988, p. 4). Hence, there was no preponderant evidence of the marriage, nor of Inocentes acknowledgment of plaintiff as his son, who was born on July 21, 1943. The right to demand partition does not prescribe (de Castro vs. Echarri, 20 Phil. 23). Where one of the interested parties openly and adversely occupies the property without recognizing the coownership (Cordova vs. Cordova, L-9936, January 14, 1958) acquisitive prescription may set in (Florenz D. Regalado, Remedial Law Compendium, Vol. I, Fifth Revised Edition, 1988, p. 497). Admittedly, the defendants have been in possession of the

parcels of land involved in the concept of owners since their father died in 1940. Even if possession be counted from 1964, when plaintiff attained the age of majority, still, defendants possessed the land for more than ten (10) years, thus acquiring ownership of the same by acquisitive prescription (Article 1134, Civil Code of the Philippines). The Issues Petitioner submits the following issues for resolution:xv[15] 1. Whether or not petitioner (plaintiff-appellee) has proven by preponderant evidence the marriage of his parents. 2. Whether or not petitioner (plaintiff-appellee) has adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad, brother of private respondents (defendants-appellants) Felix and Lourdes Trinidad. 3. Whether or not the Family Code is applicable to the case at bar[,] the decision of the Regional Trial Court having been promulgated on July 4, 1989, after the Family Code became effective on August 3, 1988. 4. Whether or not petitioners status as a legitimate child can be attacked collaterally by the private respondents. 5. Whether or not private respondent (defendants-appellants) have acquired ownership of the properties in question by acquisitive prescription. Simply stated, the main issues raised in this petition are: 1. Did petitioner present sufficient evidence of his parents marriage and of his filiation? 2. Was petitioners status as a legitimate child subject to collateral attack in the action for partition? 3. Was his claim time-barred under the rules on acquisitive prescription? The Courts Ruling The merits of this petition are patent. The partition of the late Patricios real properties requires preponderant proof that petitioner is a co-owner or co-heir of the decedents estate.xvi[16] His right as a co-owner would, in turn, depend on whether he was born during the existence of a valid and subsisting marriage between his mother (Felicidad) and his putative father (Inocentes). This Court holds that such burden was successfully discharged by petitioner and, thus, the reversal of the assailed Decision and Resolution is inevitable. First and Second Issues: Evidence of and Collateral Attack on Filiation At the outset, we stress that an appellate courts assessment of the evidence presented by the parties will not, as a rule, be disturbed because the Supreme Court is not a trier of facts. But in the face of the contradictory conclusions of the appellate and the trial courts, such rule does not apply here. So, we had to meticulously pore over the records and the evidence adduced in this case.xvii[17] Petitioners first burden is to prove that Inocentes and his mother (Felicidad) were validly married, and that he was born during the subsistence of their marriage. This, according to Respondent Court, he failed to accomplish. This Court disagrees. Pugeda vs. Triasxviii[18] ruled that when the question of whether a marriage has been contracted arises in litigation, said marriage may be proven by relevant evidence. To prove the fact of marriage, the following would constitute competent evidence: the testimony of a witness to the matrimony, the couples public and open cohabitation as husband and wife after the alleged wedlock, the birth and the baptismal certificates of children born during such union, and the mention of such nuptial in subsequent documents.xix[19]

In the case at bar, petitioner secured a certificationxx[20] from the Office of the Civil Registrar of Aklan that all records of births, deaths and marriages were either lost, burned or destroyed during the Japanese occupation of said municipality. This fact, however, is not fatal to petitioners case. Although the marriage contract is considered the primary evidence of the marital union, petitioners failure to present it is not proof that no marriage took place, as other forms of relevant evidence may take its place.xxi[21] In place of a marriage contract, two witnesses were presented by petitioner: Isabel Meren, who testified that she was present during the nuptial of Felicidad and Inocentes on May 5, 1942 in New Washington, Aklan; and Jovita Gerardo, who testified that the couple deported themselves as husband and wife after the marriage. Gerardo, the 77-year old barangay captain of Tigayon and former board member of the local parent-teachers association, used to visit Inocentes and Felicidads house twice or thrice a week, as she lived only thirty meters away.xxii[22] On July 21, 1943, Gerardo dropped by Inocentes house when Felicidad gave birth to petitioner. She also attended petitioners baptismal party held at the same house.xxiii[23] Her testimony constitutes evidence of common reputation respecting marriage.xxiv[24] It further gives rise to the disputable presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage.xxv[25] Petitioner also presented his baptismal certificate (Exhibit C) in which Inocentes and Felicidad were named as the childs father and mother.xxvi[26] On the other hand, filiation may be proven by the following: ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. ART. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws.xxvii[27] Petitioner submitted in evidence a certificationxxviii[28] that records relative to his birth were either destroyed during the last world war or burned when the old town hall was razed to the ground on June 17, 1956. To prove his filiation, he presented in evidence two family pictures, his baptismal certificate and Gerardos testimony. The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second daughter and his wife (Exhibit A-4) together with the late Felix Trinidad (Exhibit A-2) carrying petitioners first daughter, and Lourdes Trinidad (Exhibit A-1). Exhibit B is another picture showing Lourdes Trinidad (Exhibit B-1) carrying petitioners first child (Exhibit B-2). These pictures were taken before the case was instituted. Although they do not directly prove petitioners filiation to Inocentes, they show that petitioner was accepted by the private respondents as Inocentes legitimate son ante litem motam. Lourdes denials of these pictures are hollow and evasive. While she admitted that Exhibit B shows her holding Clarita Trinidad, the petitioners daughter, she demurred that she did so only because she was requested to carry the child before she was baptized.xxix[29] When shown Exhibit A, she recognized her late brother -- but not petitioner, his wife and the couples children -- slyly explaining that she could not clearly see because of an alleged eye defect.xxx[30] Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one of the other means allowed under the Rules of Court and special laws to show pedigree, as this Court ruled in Mendoza vs. Court of Appeals:xxxi[31] What both the trial court and the respondent court did not take into account is that an illegitimate child is allowed to establish his claimed filiation by any other means allowed by the Rules of Court and special laws, according to the Civil Code, or by evidence of proof in his favor that the defendant is her father, according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimony of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of

Court. [Justice Alicia Sempio-Diy, Handbook on the Family Code of the Phil. 1988 ed., p. 246] Concededly, because Gerardo was not shown to be a member of the Trinidad family by either consanguinity or affinity,xxxii[32] her testimony does not constitute family reputation regarding pedigree. Hence, it cannot, by itself, be used to establish petitioners legitimacy. Be that as it may, the totality of petitioners positive evidence clearly preponderates over private respondents self-serving negations. In sum, private respondents thesis is that Inocentes died unwed and without issue in March 1941. Private respondents witness, Pedro Briones, testified that Inocentes died in 1940 and was buried in the estate of the Trinidads, because nobody was willing to carry the coffin to the cemetery in Kalibo, which was then occupied by the Japanese forces. His testimony, however, is far from credible because he stayed with the Trinidads for only three months, and his answers on direct examination were noncommittal and evasive:xxxiii[33] Q: At the time of his death, can you tell the Court if this Inocentes Trinidad was married or not? A: Not married. Q: In 1940 at the time of death of Inocentes Trinidad, where were you residing? A: I was staying with them. Q: A: When you said them, to whom are you referring to [sic]? My aunt Nanay Taya, Anastacia. xxx xxx xxx

Taking judicial notice that World War II did not start until December 7, 1941 with the bombing of Pearl Harbor in Hawaii, the trial court was not convinced that Inocentes died in March 1941.xxxv[35] The Japanese forces occupied Manila only on January 2, 1942;xxxvi[36] thus, it stands to reason that Aklan was not occupied until then. It was only then that local residents were unwilling to bury their dead in the cemetery in Kalibo, because of the Japanese soldiers who were roaming around the area.xxxvii[37] Furthermore, petitioner consistently used Inocentes surname (Trinidad) without objection from private respondents -- a presumptive proof of his status as Inocentes legitimate child.xxxviii[38] Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party.xxxix[39] Compared to the detailed (even if awkwardly written) ruling of the trial court, Respondent Courts holding that petitioner failed to prove his legitimate filiation to Inocentes is unconvincing. In determining where the preponderance of evidence lies, a trial court may consider all the facts and circumstances of the case, including the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts, the probability or improbability of their testimony, their interest or want thereof, and their personal credibility.xl[40] Applying this rule, the trial court significantly and convincingly held that the weight of evidence was in petitioners favor. It declared: xxx [O]ne thing sure is the fact that plaintiff had lived with defendants enjoying the status of being their nephew xxx before plaintiff [had] gotten married and had a family of his own where later on he started demanding for the partition of the share of his father, Inocentes. The fact that plaintiff had so lived with the defendants xxx is shown by the alleged family pictures, Exhibits A & B. These family pictures were taken at a time when plaintiff had not broached the idea of getting his fathers share. xxxx His demand for the partition of the share of his father provoked the ire of the defendants, thus, they disowned him as their nephew. xxxx In this case, the plaintiff enjoyed the continuous possession of a status of the child of the alleged father by the direct acts of the defendants themselves, which status was only broken when plaintiff demanded for the partition xxx as he was already having a family of his own. xxxx. However, the disowning by the defendant [private respondent herein], Lourdes Trinidad, of the plaintiff [petitioner herein] being her nephew is offset by the preponderance of evidence, among them the testimony of witness, Jovita Gerardo, who is the barrio captain. This witness was already 77 years old at the time she testified. Said witness had no reason to favor the plaintiff. She had been a PTA officer and the court sized her up as a civic minded person. She has nothing to gain in this case as compared to the witness for the defendants who are either cousin or nephew of Lourdes Trinidad who stands to gain in the case for defendant, Lourdes Trinidad, being already 75 years old, has no husband nor children.xli[41] Doctrinally, a collateral attack on filiation is not permitted.xlii[42] Rather than rely on this axiom, petitioner chose to present evidence of his filiation and of his parents marriage. Hence, there is no more need to rule on the application of this doctrine to petitioners cause. Third Issue: No Acquisitive Prescription Respondent Court ruled that, because acquisitive prescription sets in when one of the interested parties openly and adversely occupies the property without recognizing the co-ownership, and because private respondents had been in possession -- in the concept of owners -- of the parcels of land in issue since Patricio died in 1940, they acquired ownership of these parcels. The Court disagrees. Private respondents have not acquired ownership of the property in question by acquisitive prescription. In a co-ownership, the act of one benefits all the other co-owners, unless the former repudiates the co-ownership.xliii[43] Thus, no prescription runs in favor of a co-owner or coheir against his or her co-owners or co-heirs, so long as he or she expressly or impliedly recognizes the co-ownership. In this particular case, it is undisputed that, prior to the action for partition, petitioner, in the concept of a co-owner, was receiving from private respondents his share of the produce of the land in dispute. Until such time, recognition of the co-ownership by private respondents was beyond question.

Q: Will you please tell the Court for how long did you stay with your aunt Anastacia Trinidad and his children before 1940? A: For only three months. Q: Now, you said at the time of his death, Inocentes Trinidad was single. Do you know if he had cohabited with anybody before his death? A: [T]hat I do not know. Q: A: You know a person by the name of Felicidad Molato? No, sir.

Q: Can you recall if during the lifetime of Inocentes Trinidad if you have known of anybody with whom he has lived as husband and wife? A: I could not recall because I was then in Manila working. Q: After the war, do you remember having gone back to the house of your aunt Anastacia at Tigayon, Kalibo, Aklan? A: Yes, sir, Q: A: How often did you go to the house of your aunt? Every Sunday. xxx Q: A: xxx xxx

You know the plaintiff Arturio Trinidad? I do not know him.

Q: After the death of Inocentes Trinidad, do you know if there was anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad? A: I do not know about that. Beatriz Sayon, the other witness of private respondent, testified that, when the Japanese occupied Kalibo in 1941, her father brought Inocentes from Manila to Tigayon because he was sick. Inocentes stayed with their grandmother, Eugenia Roco Trinidad, and died single and without issue in March 1941, one and a half months after his return to Tigayon. She knew Felicidad Molato, who was also a resident of Tigayon, but denied that Felicidad was ever married to Inocentes.xxxiv[34]

There is no evidence, either, of their repudiation, if any, of the co-ownership of petitioners father Inocentes over the land. Further, the titles of these pieces of land were still in their fathers name. Although private respondents had possessed these parcels openly since 1940 and had not shared with petitioner the produce of the land during the pendency of this case, still, they manifested no repudiation of the co-ownership. In Mariategui vs. Court of Appeals, the Court held:xliv[44] x x x Corollarily, prescription does not run again private respondents with respect to the filing of the action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. In the other words, prescription of an action for partition does not lie except when the co-ownership is properly repudiated by the coowner (Del Banco vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]). Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of coownership duly communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 (1987). On the other hand, an action for partition may be seen to be at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118 [1988]). Considering the foregoing, Respondent Court committed reversible error in holding that petitioners claim over the land in dispute was time-barred. WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET ASIDE. The trial courts decision dated July 4, 1989 is REINSTATED. No costs. -JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE JESUS, minors, represented by their mother, CAROLINA A. DE JESUS, petitioners, vs. THE ESTATE OF DECEDENT JUAN GAMBOA DIZON, ANGELINA V. DIZON, CARLOS DIZON, FELIPE DIZON, JUAN DIZON, JR. and MARYLIN DIZON and as proper parties: FORMS MEDIA CORP., QUAD MANAGEMENT CORP., FILIPINAS PAPER SALES CO., INC. and AMITY CONSTRUCTION & INDUSTRIAL ENTERPRISES, INC., respondents. The petition involves the case of two illegitimate children who, having been born in lawful wedlock, claim to be the illegitimate scions of the decedent in order to enforce their respective shares in the latters estate under the rules on succession. Danilo B. de Jesus and Carolina Aves de Jesus got married on 23 August 1964. It was during this marriage that Jacqueline A. de Jesus and Jinkie Christie A. de Jesus, herein petitioners, were born, the former on 01 March 1979 and the latter on 06 July 1982. In a notarized document, dated 07 June 1991, Juan G. Dizon acknowledged Jacqueline and Jinkie de Jesus as being his own illegitimate children by Carolina Aves de Jesus. Juan G. Dizon died intestate on 12 March 1992, leaving behind considerable assets consisting of shares of stock in various corporations and some real property. It was on the strength of his notarized acknowledgment that petitioners filed a complaint on 01 July 1993 for Partition with Inventory and Accounting of the Dizon estate with the Regional Trial Court, Branch 88, of Quezon City. Respondents, the surviving spouse and legitimate children of the decedent Juan G. Dizon, including the corporations of which the deceased was a stockholder, sought the dismissal of the case, arguing that the complaint, even while denominated as being one for partition, would nevertheless call for altering the status of petitioners from being the legitimate children of the spouses Danilo de Jesus and Carolina de Jesus to instead be the illegitimate children of Carolina de Jesus and deceased Juan Dizon. The trial court denied, due to lack of merit, the motion to dismiss and the subsequent motion for reconsideration on, respectively, 13 September 1993 and 15 February 1994. Respondents assailed the denial of said motions before the Court of Appeals.

On 20 May 1994, the appellate court upheld the decision of the lower court and ordered the case to be remanded to the trial court for further proceedings. It ruled that the veracity of the conflicting assertions should be threshed out at the trial considering that the birth certificates presented by respondents appeared to have effectively contradicted petitioners allegation of illegitimacy. On 03 January 2000, long after submitting their answer, pre-trial brief and several other motions, respondents filed an omnibus motion, again praying for the dismissal of the complaint on the ground that the action instituted was, in fact, made to compel the recognition of petitioners as being the illegitimate children of decedent Juan G. Dizon and that the partition sought was merely an ulterior relief once petitioners would have been able to establish their status as such heirs. It was contended, in fine, that an action for partition was not an appropriate forum to likewise ascertain the question of paternity and filiation, an issue that could only be taken up in an independent suit or proceeding. Finding credence in the argument of respondents, the trial court, ultimately, dismissed the complaint of petitioners for lack of cause of action and for being improper.xlv[1] It decreed that the declaration of heirship could only be made in a special proceeding inasmuch as petitioners were seeking the establishment of a status or right. Petitioners assail the foregoing order of the trial court in the instant petition for review on certiorari. Basically, petitioners maintain that their recognition as being illegitimate children of the decedent, embodied in an authentic writing, is in itself sufficient to establish their status as such and does not require a separate action for judicial approval following the doctrine enunciated in Divinagracia vs. Bellosillo.xlvi[2] In their comment, respondents submit that the rule in Divinagracia being relied by petitioners is inapplicable to the case because there has been no attempt to impugn legitimate filiation in Divinagracia. In praying for the affirmance of dismissal of the complaint, respondents count on the case of Sayson vs. Court of Appeals,xlvii[3] which has ruled that the issue of legitimacy cannot be questioned in a complaint for partition and accounting but must be seasonably brought up in a direct action frontally addressing the issue. The controversy between the parties has been pending for much too long, and it is time that this matter draws to a close. The filiation of illegitimate children, like legitimate children, is established by (1) the record of birth appearing in the civil register or a final judgment; or (2) an admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence thereof, filiation shall be proved by (1) the open and continuous possession of the status of a legitimate child; or (2) any other means allowed by the Rules of Court and special laws.xlviii[4] The due recognition of an illegitimate child in a record of birth, a will, a statement before a court of record, or in any authentic writing is, in itself, a consummated act of acknowledgment of the child, and no further court action is required.xlix[5] In fact, any authentic writing is treated not just a ground for compulsory recognition; it is in itself a voluntary recognition that does not require a separate action for judicial approval.l[6] Where, instead, a claim for recognition is predicated on other evidence merely tending to prove paternity, i.e., outside of a record of birth, a will, a statement before a court of record or an authentic writing, judicial action within the applicable statute of limitations is essential in order to establish the childs acknowledgment.li[7] A scrutiny of the records would show that petitioners were born during the marriage of their parents. The certificates of live birth would also identify Danilo de Jesus as being their father. There is perhaps no presumption of the law more firmly established and founded on sounder morality and more convincing reason than the presumption that children born in wedlock are legitimate.lii[8] This presumption indeed becomes conclusive in the absence of proof that there is physical impossibility of access between the spouses during the first 120 days of the 300 days which immediately precedes the birth of the child due to (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife are living separately in such a way that sexual intercourse is not possible; or (c) serious illness of the husband, which absolutely prevents sexual intercourse.liii[9] Quite remarkably, upon the expiration of the periods set forth in Article 170,liv[10] and in proper cases Article 171,lv[11] of the Family Code (which took effect

on 03 August 1988), the action to impugn the legitimacy of a child would no longer be legally feasible and the status conferred by the presumption becomes fixed and unassailable.lvi[12] Succinctly, in an attempt to establish their illegitimate filiation to the late Juan G. Dizon, petitioners, in effect, would impugn their legitimate status as being children of Danilo de Jesus and Carolina Aves de Jesus. This step cannot be aptly done because the law itself establishes the legitimacy of children conceived or born during the marriage of the parents. The presumption of legitimacy fixes a civil status for the child born in wedlock, and only the father,lvii[13] or in exceptional instances the latters heirs,lviii[14] can contest in an appropriate action the legitimacy of a child born to his wife. Thus, it is only when the legitimacy of a child has been successfully impugned that the paternity of the husband can be rejected. Respondents correctly argued that petitioners hardly could find succor in Divinagracia. In said case, the Supreme Court remanded to the trial court for further proceedings the action for partition filed by an illegitimate child who had claimed to be an acknowledged spurious child by virtue of a private document, signed by the acknowledging parent, evidencing such recognition. It was not a case of legitimate children asserting to be somebody elses illegitimate children. Petitioners totally ignored the fact that it was not for them, given the attendant circumstances particularly, to declare that they could not have been the legitimate children, clearly opposed to the entries in their respective birth certificates, of Danilo and Carolina de Jesus. The rule that the written acknowledgment made by the deceased Juan G. Dizon establishes petitioners alleged illegitimate filiation to the decedent cannot be validly invoked to be of any relevance in this instance. This issue, i.e., whether petitioners are indeed the acknowledged illegitimate offsprings of the decedent, cannot be aptly adjudicated without an action having been first been instituted to impugn their legitimacy as being the children of Danilo B. de Jesus and Carolina Aves de Jesus born in lawful wedlock. Jurisprudence is strongly settled that the paramount declaration of legitimacy by law cannot be attacked collaterally,lix[15] one that can only be repudiated or contested in a direct suit specifically brought for that purpose.lx[16] Indeed, a child so born in such wedlock shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as having been an adulteress.lxi[17] WHEREFORE, the foregoing disquisitions considered, the instant petition is DENIED. No costs. -ONG vs. DIAZ This is a petition for Review on Certiorari under Rule 45 of the Revised Rules of Civil Procedure assailing (1) the Decision [1] of the Court of Appeals dated 23 November 2005 and (2) the Resolution [2] of the same court dated 1 March 2006 denying petitioners Motion for Reconsideration in CA-G.R. CV No. 70125. A Complaint [3] for compulsory recognition with prayer for support pending litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky prayed that judgment be rendered: (a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his daughter. (b) Ordering defendant to give plaintiff monthly support of P20,000.00 pendente lite and thereafter to fix monthly support. (c) Ordering the defendant to pay plaintiff attorneys fees in the sum of P100,000.00. (d) Granting plaintiff such other measure of relief as maybe just and equitable in the premises. [4]

From January 1994 to September 1998, Jinky and Rogelio cohabited and lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac City. From this live-in relationship, minor Joanne Rodjin Diaz was conceived and on 25 February 1998 was born at the Central Luzon Doctors Hospital, Tarlac City. Rogelio brought Jinky to the hospital and took minor Joanne and Jinky home after delivery. Rogelio paid all the hospital bills and the baptismal expenses and provided for all of minor Joannes needs recognizing the child as his. In September 1998, Rogelio abandoned minor Joanne and Jinky, and stopped supporting minor Joanne, falsely alleging that he is not the father of the child. Rogelio, despite Jinkys remonstrance, failed and refused and continued failing and refusing to give support for the child and to acknowledge her as his daughter, thus leading to the filing of the heretofore adverted complaint. After summons had been duly served upon Rogelio, the latter failed to file any responsive pleading despite repeated motions for extension, prompting the trial court to declare him in default in its Order dated 7 April 1999. Rogelios Answer with Counterclaim and Special and Affirmative Defenses was received by the trial court only on 15 April 1999. Jinky was allowed to present her evidence ex parte on the basis of which the trial court on 23 April 1999 rendered a decision granting the reliefs prayed for in the complaint. In its Decision [6] dated 23 April 1999, the RTC held: WHEREFORE, judgment is hereby rendered: 1. child; 2. Ordering defendant to provide plaintiff with a monthly support of P10,000.00 and further 3. Ordering defendant to pay reasonable attorneys fees in the amount of P5,000.00 and the cost of the suit. Ordering defendant to recognize plaintiff as his natural

On 28 April 1999, Rogelio filed a motion to lift the order of default and a motion for reconsideration seeking the courts understanding, as he was then in a quandary on what to do to find a solution to a very difficult problem of his life. [7] On 29 April 1999, Rogelio filed a motion for new trial with prayer that the decision of the trial court dated 23 April 1999 be vacated and the case be considered for trial de novo pursuant to the provisions of Section 6, Rule 37 of the 1997 Rules of Civil Procedure. [8] On 16 June 1999, the RTC issued an Order granting Rogelios Motion for New Trial: WHEREFORE, finding defendants motion for new trial to be impressed with merit, the same is hereby granted. The Order of this court declaring defendant in default and the decision is this court dated April 23, 1999 are hereby set aside but the evidence adduced shall remain in record, subject to cross-examination by defendant at the appropriate stage of the proceedings. In the meantime defendants answer is hereby admitted, subject to the right of plaintiff to file a reply and/or answer to defendants counterclaim within the period fixed by the Rules of Court. Acting on plaintiffs application for support pendente lite which this court finds to be warranted, defendant is hereby ordered to pay to plaintiff immediately the sum of P2,000.00 a month from January 15, 1999 to May 1999 as support pendente lite in arrears and the amount of P4,000.00 every month thereafter as regular support pendente lite during the pendency of this case. [9] The RTC finally held: The only issue to be resolved is whether or not the defendant is the father of the plaintiff Joanne Rodjin Diaz.

As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she and Rogelio got acquainted. This developed into friendship and later blossomed into love. At this time, Jinky was already married to a Japanese national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February 1993 by Municipal Trial Court Judge Panfilo V. Valdez. [5]

Since it was duly established that plaintiffs mother Jinky Diaz was married at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code). The child is still presumed legitimate even if the mother may have declared against her legitimacy (Article 167, Ibid). The legitimacy of a child may be impugned only on the following grounds provided for in Article 166 of the same Code. Paragraph 1 of the said Article provides that there must be physical impossibility for the husband to have sexual intercourse with the wife within the first 120 days of the 300 days following the birth of the child because of a) physical incapacity of the husband to have sexual intercourse with his wife; b) husband and wife were living separately in such a way that sexual intercourse was not possible; c) serious illness of the husband which prevented sexual intercourse.

Rodjin Diaz, upon consultation and in coordination with laboratories and experts on the field of DNA analysis. No pronouncement as to costs. [16]

Petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated 1 March 2006. In disposing as it did, the Court of Appeals justified its Decision as follows: In this case, records showed that the late defendant-appellant Rogelio G. Ong, in the early stage of the proceedings volunteered and suggested that he and plaintiffs mother submit themselves to a DNA or blood testing to settle the issue of paternity, as a sign of good faith. However, the trial court did not consider resorting to this modern scientific procedure notwithstanding the repeated denials of defendant that he is the biological father of the plaintiff even as he admitted having actual sexual relations with plaintiffs mother. We believe that DNA paternity testing, as current jurisprudence affirms, would be the most reliable and effective method of settling the present paternity dispute. Considering, however, the untimely demise of defendant-appellant during the pendency of this appeal, the trial court, in consultation with out laboratories and experts on the field of DNA analysis, can possibly avail of such procedure with whatever remaining DNA samples from the deceased defendant alleged to be the putative father of plaintiff minor whose illegitimate filiations is the subject of this action for support. [17]

It was established by evidence that the husband is a Japanese national and that he was living outside of the country (TSN, Aug. 27, 1999, page 5) and he comes home only once a year. Both evidence of the parties proved that the husband was outside the country and no evidence was shown that he ever arrived in the country in the year 1997 preceding the birth of plaintiff Joanne Rodjin Diaz. While it may also be argued that plaintiff Jinky had a relationship with another man before she met the defendant, there is no evidence that she also had sexual relations with other men on or about the conception of Joanne Rodjin. Joanne Rodjin was her second child (see Exh. A), so her first child, a certain Nicole (according to defendant) must have a different father or may be the son of Hasegawa K[u]tsuo. The defendant admitted having been the one who shouldered the hospital bills representing the expenses in connection with the birth of plaintiff. It is an evidence of admission that he is the real father of plaintiff. Defendant also admitted that even when he stopped going out with Jinky, he and Jinky used to go to motels even after 1996. Defendant also admitted that on some instances, he still used to see Jinky after the birth of Joanne Rodjin. Defendant was even the one who fetched Jinky after she gave birth to Joanne. On the strength of this evidence, the Court finds that Joanne Rodjin is the child of Jinky and defendant Rogelio Ong and it is but just that the latter should support plaintiff. [10]

Hence, this petition which raises the following issues for resolution: I WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DISMISS RESPONDENTS COMPLAINT FOR COMPULSORY RECOGNITION DESPITE ITS FINDING THAT THE EVIDENCE PRESENTED FAILED TO PROVE THAT ROGELIO G. ONG WAS HER FATHER. II WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID NOT DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF JINKY C. DIAZ AND HER JAPANESE HUSBAND, CONSIDERING THAT RESPONDENT FAILED TO REBUT THE PRESUMPTION OF HER LEGITIMACY. III

On 15 December 2000, the RTC rendered a decision and disposed: WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz. The Order of this Court awarding support pendente lite dated June 15, 1999, is hereby affirmed and that the support should continue until Joanne Rodjin Diaz shall have reached majority age. [11] WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT REMANDED THE CASE TO THE COURT A QUO FOR DNA ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE TO THE DEATH OF ROGELIO G. ONG. [18]

Rogelio filed a Motion for Reconsideration, which was denied for lack of merit in an Order of the trial court dated 19 January 2001. [12] From the denial of his Motion for Reconsideration, Rogelio appealed to the Court of Appeals. After all the responsive pleadings had been filed, the case was submitted for decision and ordered re-raffled to another Justice for study and report as early as 12 July 2002. [13] During the pendency of the case with the Court of Appeals, Rogelios counsel filed a manifestation informing the Court that Rogelio died on 21 February 2005; hence, a Notice of Substitution was filed by said counsel praying that Rogelio be substituted in the case by the Estate of Rogelio Ong, [14] which motion was accordingly granted by the Court of Appeals. [15] In a Decision dated 23 November 2005, the Court of Appeals held: WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision dated December 15, 2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is hereby SET ASIDE. The case is hereby REMANDED to the court a quo for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor Joanne

Petitioner prays that the present petition be given due course and the Decision of the Court of Appeals dated November 23, 2005 be modified, by setting aside the judgment remanding the case to the trial court for DNA testing analysis, by dismissing the complaint of minor Joanne for compulsory recognition, and by declaring the minor as the legitimate child of Jinky and Hasegawa Katsuo. [19] From among the issues presented for our disposition, this Court finds it prudent to concentrate its attention on the third one, the propriety of the appellate courts decision remanding the case to the trial court for the conduct of DNA testing. Considering that a definitive result of the DNA testing will decisively lay to rest the issue of the filiation of minor Joanne, we see no reason to resolve the first two issues raised by the petitioner as they will be rendered moot by the result of the DNA testing. As a whole, the present petition calls for the determination of filiation of minor Joanne for purposes of support in favor of the said minor. Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child. [20]

A child born to a husband and wife during a valid marriage is presumed legitimate. [21] As a guaranty in favor of the child and to protect his status of legitimacy, Article 167 of the Family Code provides: Article 167. The children shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

whom the sample is taken. This DNA profile is unique for each person, except for identical twins. Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts. The chemical structure of DNA has four bases. They are known as A (Adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her physical make up. And since DNA is a double stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called genes. Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as polymorphic loci, which are the areas analyzed in DNA typing (profiling, tests, fingerprinting). In other words, DNA typing simply means determining the polymorphic loci. How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; DNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion. Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the known print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called allele, one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father. [26]

The law requires that every reasonable presumption be made in favor of legitimacy. We explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals [22]: The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded on the policy to protect the innocent offspring from the odium of illegitimacy.

The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by evidence to the contrary. Hence, Article 255 of the New Civil Code [23] provides: Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husbands having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of the child. This physical impossibility may be caused: 1) By the impotence of the husband; 2) By the fact that husband and wife were living separately in such a way that access was not possible; 3) By the serious illness of the husband. [24]

The relevant provisions of the Family Code provide as follows: ART. 172. The filiation of legitimate children is established by any of the following: (1) judgment; or The record of birth appearing in the civil register or a final

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) special laws. Any other means allowed by the Rules of Court and

In the newly promulgated rules on DNA evidence it is provided: SEC. 3 Definition of Terms. For purposes of this Rule, the following terms shall be defined as follows: xxxx

ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children.

There had been divergent and incongruent statements and assertions bandied about by the parties to the present petition. But with the advancement in the field of genetics, and the availability of new technology, it can now be determined with reasonable certainty whether Rogelio is the biological father of the minor, through DNA testing. DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity. [25] DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from

(c) DNA evidence constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; (d) DNA profile means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; (e) DNA testing means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct

biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and (f) Probability of Parentage means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population.

allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation, thus: SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case;

Amidst the protestation of petitioner against the DNA analysis, the resolution thereof may provide the definitive key to the resolution of the issue of support for minor Joanne. Our articulation in Agustin v. Court of Appeals [27] is particularly relevant, thus: Our faith in DNA testing, however, was not quite so steadfast in the previous decade. In Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA 1), promulgated in 1997, we cautioned against the use of DNA because DNA, being a relatively new science, (had) not as yet been accorded official recognition by our courts. Paternity (would) still have to be resolved by such conventional evidence as the relevant incriminating acts,verbal and written, by the putative father. In 2001, however, we opened the possibility of admitting DNA as evidence of parentage, as enunciated in Tijing v. Court of Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA 17]: x x x Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies, one copy from the mother and the other from the father. The DNA from the mother, the alleged father and child are analyzed to establish parentage. Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply the results of science when competently obtained in aid of situations presented, since to reject said results is to deny progress. The first real breakthrough of DNA as admissible and authoritative evidence in Philippine jurisprudence came in 2002 with out en banc decision in People v. Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA 192] where the rape and murder victims DNA samples from the bloodstained clothes of the accused were admitted in evidence. We reasoned that the purpose of DNA testing (was) to ascertain whether an association exist(ed) between the evidence sample and the reference sample. The samples collected (were) subjected to various chemical processes to establish their profile. A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA 584], we acquitted the accused charged with rape for lack of evidence because doubts persist(ed) in our mind as to who (were) the real malefactors. Yes, a complex offense (had) been perpetrated but who (were) the perpetrators? How we wish we had DNA or other scientific evidence to still our doubts. In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and 161824, 3 March 2004, 424 SCRA 277], where the Court en banc was faced with the issue of filiation of then presidential candidate Fernando Poe, Jr., we stated: In case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. A positive match would clear up filiation or paternity. In Tijing v. Court of Appeals, this Court has acknowledged the strong weight of DNA testing... Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19 May 2004, 428 SCRA 504], we affirmed the conviction of the accused for rape with homicide, the principal evidence for which included DNA test results. x x x.

(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique;

(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.

From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA. As defined above, the term biological sample means any organic material originating from a persons body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones. [29] Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing. And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito, [30] citing Tecson v. Commission on Elections, [31] this Court held: The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March 2004, 424 SCRA 277] likewise reiterated the acceptance of DNA testing in our jurisdiction in this wise: [i]n case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to. It is obvious to the Court that the determination of whether appellant is the father of AAAs child, which may be accomplished through DNA testing, is material to the fair and correct adjudication of the instant appeal. Under Section 4 of the Rules, the courts are authorized, after due hearing and notice, motu proprio to order a DNA testing. However, while this Court retains jurisdiction over the case at bar, capacitated as it is to receive and act on the matter in controversy, the Supreme Court is not a trier of facts and does not, in the course of daily routine, conduct hearings. Hence, it would be more appropriate that the case be remanded to the RTC for reception of evidence in appropriate hearings, with due notice to the parties. (Emphasis supplied.)

As we have declared in the said case of Agustin v. Court of Appeals [32]: x x x [F]or too long, illegitimate children have been marginalized by fathers who choose to deny their existence. The growing sophistication of DNA testing technology finally provides a much needed equalizer for such ostracized and abandoned progeny. We have long believed in the merits of DNA testing and have repeatedly expressed as much in the past. This case comes at a perfect time when DNA testing has finally evolved into a dependable and authoritative form of evidence gathering. We therefore take this opportunity to forcefully reiterate our stand that DNA testing is a valid means of determining paternity.

Coming now to the issue of remand of the case to the trial court, petitioner questions the appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogelio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioners argument is without basis especially as the New Rules on DNA Evidence [28]

WHEREFORE, the instant petition is DENIED for lack of merit. The Decision of the Court of Appeals dated 23 November 2005 and its Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner. --

LEE vs. CA This case is about the grounds for quashing a subpoena ad testificandum and a parents right not to testify in a case against his children.

certificate of birth of petitioner Emma Lee to show that she is not Kehs daughter. The Ruling of the Court Petitioner Emma Lee claims that the RTC correctly quashed the subpoena ad testificandum it issued against Tiu on the ground that it was unreasonable and oppressive, given the likelihood that the latter would be badgered on oral examination concerning the Lee-Keh childrens theory that she had illicit relation with Lee and gave birth to the other Lee children. But, as the CA correctly ruled, the grounds citedunreasonable and oppressiveare proper for subpoena ad duces tecum or for the production of documents and things in the possession of the witness, a command that has a tendency to infringe on the right against invasion of privacy. Section 4, Rule 21 of the Rules of Civil Procedure, thus provides: SECTION 4. Quashing a subpoena. The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books, documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. Notably, the Court previously decided in the related case of Lee v. Court of Appeals [6] that the Lee-Keh children have the right to file the action for correction of entries in the certificates of birth of Lees other children, Emma Lee included. The Court recognized that the ultimate object of the suit was to establish the fact that Lees other children were not children of Keh. Thus: It is precisely the province of a special proceeding such as the one outlined under Rule 108 of the Revised Rules of Court to establish the status or right of a party, or a particular fact. The petitions filed by private respondents for the correction of entries in the petitioners' records of birth were intended to establish that for physical and/or biological reasons it was impossible for Keh Shiok Cheng to have conceived and given birth to the petitioners as shown in their birth records. Contrary to petitioners' contention that the petitions before the lower courts were actually actions to impugn legitimacy, the prayer therein is not to declare that petitioners are illegitimate children of Keh Shiok Cheng, but to establish that the former are not the latter's children. There is nothing to impugn as there is no blood relation at all between Keh Shiok Cheng and petitioners. [7] (Underscoring supplied) Taking in mind the ultimate purpose of the Lee-Keh childrens action, obviously, they would want Tiu to testify or admit that she is the mother of Lees other children, including petitioner Emma Lee. Keh had died and so could not give testimony that Lees other children were not hers. The LeeKeh children have, therefore, a legitimate reason for seeking Tius testimony and, normally, the RTC cannot deprive them of their right to compel the attendance of such a material witness. But petitioner Emma Lee raises two other objections to requiring Tiu to come to court and testify: a) considering her advance age, testifying in court would subject her to harsh physical and emotional stresses; and b) it would violate her parental right not to be compelled to testify against her stepdaughter. 1. Regarding the physical and emotional punishment that would be inflicted on Tiu if she were compelled at her age and condition to come to court to testify, petitioner Emma Lee must establish this claim to the satisfaction of the trial court. About five years have passed from the time the Lee-Keh children sought the issuance of a subpoena for Tiu to appear before the trial court. The RTC would have to update itself and determine if Tius current physical condition makes her fit to undergo the ordeal of coming to court and being questioned. If she is fit, she must obey the subpoena issued to her. Tiu has no need to worry that the oral examination might subject her to badgering by adverse counsel. The trial courts duty is to protect every witness against oppressive behavior of an examiner and this is especially true where the witness is of advanced age. [8] 2. Tiu claimed before the trial court the right not to testify against her stepdaughter, petitioner Emma Lee, invoking Section 25, Rule 130 of the Rules of Evidence, which reads: SECTION 25. Parental and filial privilege.- No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants. The above is an adaptation from a similar provision in Article 315 of the Civil Code that applies only in criminal cases. But those who revised the Rules of Civil Procedure chose to extend the prohibition to all kinds of actions,

The Facts and the Case Spouses Lee Tek Sheng (Lee) and Keh Shiok Cheng (Keh) entered the Philippines in the 1930s as immigrants from China. They had 11 children, namely, Rita K. Lee, Leoncio K. Lee, Lucia K. Lee-Ong, Julian K. Lee, Martin K. Lee, Rosa Lee-Vanderlek, Melody Lee-Chin, Henry K. Lee, Natividad Lee-Miguel, Victoriano K. Lee, and Thomas K. Lee (collectively, the Lee-Keh children). In 1948, Lee brought from China a young woman named Tiu Chuan (Tiu), supposedly to serve as housemaid. The respondent Lee-Keh children believe that Tiu left the Lee-Keh household, moved into another property of Lee nearby, and had a relation with him. Shortly after Keh died in 1989, the Lee-Keh children learned that Tius children with Lee (collectively, the Lees other children) claimed that they, too, were children of Lee and Keh. This prompted the Lee-Keh children to request the National Bureau of Investigation (NBI) to investigate the matter. After conducting such an investigation, the NBI concluded in its report: [I]t is very obvious that the mother of these 8 children is certainly not KEH SHIOK CHENG, but a much younger woman, most probably TIU CHUAN. Upon further evaluation and analysis by these Agents, LEE TEK SHENG is in a quandary in fixing the age of KEH SHIOK CHENG possibly to conform with his grand design of making his 8 children as their own legitimate children, consequently elevating the status of his second family and secure their future. The doctor lamented that this complaint would not have been necessary had not the father and his second family kept on insisting that the 8 children are the legitimate children of KEH SHIOK CHENG. [1] The NBI found, for example, that in the hospital records, the eldest of the Lees other children, Marcelo Lee (who was recorded as the 12th child of Lee and Keh), was born of a 17-year-old mother, when Keh was already 38 years old at the time. Another of the Lees other children, Mariano Lee, was born of a 23-year-old mother, when Keh was then already 40 years old, and so forth. In other words, by the hospital records of the Lees other children, Kehs declared age did not coincide with her actual age when she supposedly gave birth to such other children, numbering eight. On the basis of this report, the respondent Lee-Keh children filed two separate petitions, one of them before the Regional Trial Court (RTC) of Caloocan City [2] in Special Proceeding C-1674 for the deletion from the certificate of live birth of the petitioner Emma Lee, one of Lees other children, the name Keh and replace the same with the name Tiu to indicate her true mothers name. In April 2005 the Lee-Keh children filed with the RTC an ex parte request for the issuance of a subpoena ad testificandum to compel Tiu, Emma Lees presumed mother, to testify in the case. The RTC granted the motion but Tiu moved to quash the subpoena, claiming that it was oppressive and violated Section 25, Rule 130 of the Rules of Court, the rule on parental privilege, she being Emma Lees stepmother. [3] On August 5, 2005 the RTC quashed the subpoena it issued for being unreasonable and oppressive considering that Tiu was already very old and that the obvious object of the subpoena was to badger her into admitting that she was Emma Lees mother. Because the RTC denied the Lee-Keh childrens motion for reconsideration, they filed a special civil action of certiorari before the Court of Appeals (CA) in CA-G.R. SP 92555. On December 29, 2006 the CA rendered a decision, [4] setting aside the RTCs August 5, 2005 Order. The CA ruled that only a subpoena duces tecum, not a subpoena ad testificandum, may be quashed for being oppressive or unreasonable under Section 4, Rule 21 of the Rules of Civil Procedure. The CA also held that Tius advanced age alone does not render her incapable of testifying. The party seeking to quash the subpoena for that reason must prove that she would be unable to withstand the rigors of trial, something that petitioner Emma Lee failed to do. Since the CA denied Emma Lees motion for reconsideration by resolution of May 8, 2007, [5] she filed the present petition with this Court. The Question Presented The only question presented in this case is whether or not the CA erred in ruling that the trial court may compel Tiu to testify in the correction of entry case that respondent Lee-Keh children filed for the correction of the

whether civil, criminal, or administrative, filed against parents and other direct ascendants or descendants. But here Tiu, who invokes the filial privilege, claims that she is the stepmother of petitioner Emma Lee. The privilege cannot apply to them because the rule applies only to direct ascendants and descendants, a family tie connected by a common ancestry. A stepdaughter has no common ancestry by her stepmother. Article 965 thus provides: Art. 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. Consequently, Tiu can be compelled to testify against petitioner Emma Lee. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision and resolution of the Court of Appeals in CA-G.R. SP 92555. -MAKATI SHANGRI-LA HOTEL AND RESORT, INC. vs. ELLEN JOHANNE HARPER, JONATHAN CHRISTOPHER HARPER, and RIGOBERTO GILLERA The hotel owner is liable for civil damages to the surviving heirs of its hotel guest whom strangers murder inside his hotel room. The Case Petitioner, the owner and operator of the 5-star Shangri-La Hotel in Makati City (Shangri-La Hotel), appeals the decision promulgated on October 21, 2009,1 whereby the Court of Appeals (CA) affirmed with modification the judgment rendered on October 25, 2005 by the Regional Trial Court (RTC) in Quezon City holding petitioner liable for damages for the murder of Christian Fredrik Harper, a Norwegian national.2 Respondents Ellen Johanne Harper and Jonathan Christopher Harper are the widow and son of Christian Harper, while respondent Rigoberto Gillera is their authorized representative in the Philippines. Antecedents In the first week of November 1999, Christian Harper came to Manila on a business trip as the Business Development Manager for Asia of ALSTOM Power Norway AS, an engineering firm with worldwide operations. He checked in at the Shangri-La Hotel and was billeted at Room 1428. He was due to check out on November 6, 1999. In the early morning of that date, however, he was murdered inside his hotel room by still unidentified malefactors. He was then 30 years old. How the crime was discovered was a story in itself. A routine verification call from the American Express Card Company to cardholder Harpers residence in Oslo, Norway (i.e., Bygdoy Terasse 16, 0287 Oslo, Norway) led to the discovery. It appears that at around 11:00 am of November 6, 1999, a Caucasian male of about 3032 years in age, 54" in height, clad in maroon long sleeves, black denims and black shoes, entered the Alexis Jewelry Store in Glorietta, Ayala Center, Makati City and expressed interest in purchasing a Cartier ladys watch valued at P 320,000.00 with the use of two Mastercard credit cards and an American Express credit card issued in the name of Harper. But the customers difficulty in answering the queries phoned in by a credit card representative sufficiently aroused the suspicion of saleslady Anna Liza Lumba (Lumba), who asked for the customers passport upon suggestion of the credit card representative to put the credit cards on hold. Probably sensing trouble for himself, the customer hurriedly left the store, and left the three credit cards and the passport behind. In the meanwhile, Harpers family in Norway must have called him at his hotel room to inform him about the attempt to use his American Express card. Not getting any response from the room, his family requested Raymond Alarcon, the Duty Manager of the Shangri-La Hotel, to check on Harpers room. Alarcon and a security personnel went to Room 1428 at 11:27 a.m., and were shocked to discover Harpers lifeless body on the bed. Col. Rodrigo de Guzman (de Guzman), the hotels Security Manager, initially investigated the murder. In his incident report, he concluded from the several empty bottles of wine in the trash can and the number of cigarette butts in the toilet bowl that Harper and his visitors had drunk that much and smoked that many cigarettes the night before.3

The police investigation actually commenced only upon the arrival in the hotel of the team of PO3 Carmelito Mendoza4 and SPO4 Roberto Hizon. Mendoza entered Harpers room in the company of De Guzman, Alarcon, Gami Holazo (the hotels Executive Assistant Manager), Norge Rosales (the hotels Executive Housekeeper), and Melvin Imperial (a security personnel of the hotel). They found Harpers body on the bed covered with a blanket, and only the back of the head could be seen. Lifting the blanket, Mendoza saw that the victims eyes and mouth had been bound with electrical and packaging tapes, and his hands and feet tied with a white rope. The body was identified to be that of hotel guest Christian Fredrik Harper. Mendoza subsequently viewed the closed circuit television (CCTV) tapes, from which he found that Harper had entered his room at 12:14 a.m. of November 6, 1999, and had been followed into the room at 12:17 a.m. by a woman; that another person, a Caucasian male, had entered Harpers room at 2:48 a.m.; that the woman had left the room at around 5:33 a.m.; and that the Caucasian male had come out at 5:46 a.m. On November 10, 1999, SPO1 Ramoncito Ocampo, Jr. interviewed Lumba about the incident in the Alexis Jewelry Shop. During the interview, Lumba confirmed that the person who had attempted to purchase the Cartier ladys watch on November 6, 1999 had been the person whose picture was on the passport issued under the name of Christian Fredrik Harper and the Caucasian male seen on the CCTV tapes entering Harpers hotel room. Sr. Insp. Danilo Javier of the Criminal Investigation Division of the Makati City Police reflected in his Progress Report No. 25 that the police investigation showed that Harpers passport, credit cards, laptop and an undetermined amount of cash had been missing from the crime scene; and that he had learned during the follow-up investigation about an unidentified Caucasian males attempt to purchase a Cartier ladys watch from the Alexis Jewelry Store in Glorietta, Ayala Center, Makati City with the use of one of Harpers credit cards. On August 30, 2002, respondents commenced this suit in the RTC to recover various damages from petitioner,6 pertinently alleging: xxx 7. The deceased was to check out and leave the hotel on November 6, 1999, but in the early morning of said date, while he was in his hotel room, he was stabbed to death by an (sic) still unidentified male who had succeeded to intrude into his room. 8. The murderer succeeded to trespass into the area of the hotels private rooms area and into the room of the said deceased on account of the hotels gross negligence in providing the most basic security system of its guests, the lack of which owing to the acts or omissions of its employees was the immediate cause of the tragic death of said deceased. xxx 10. Defendant has prided itself to be among the top hotel chains in the East claiming to provide excellent service, comfort and security for its guests for which reason ABB Alstom executives and their guests have invariably chosen this hotel to stay.7 xxx Ruling of the RTC On October 25, 2005, the RTC rendered judgment after trial,8 viz: WHEREFORE, finding the defendant hotel to be remiss in its duties and thus liable for the death of Christian Harper, this Court orders the defendant to pay plaintiffs the amount of: PhP 43,901,055.00 as and by way of actual and compensatory damages; PhP 739,075.00 representing the expenses of transporting the remains of Harper to Oslo, Norway;

PhP 250,000.00 attorneys fees; and to pay the cost of suit. SO ORDERED. Ruling of the CA

II. WHETHER OR NOT THE APPELLEES WERE ABLE TO PROVE WITH COMPETENT EVIDENCE THE AFFIRMATIVE ALLEGATIONS IN THE COMPLAINT THAT THERE WAS NEGLIGENCE ON THE PART OF THE APPELLANT AND ITS SAID NEGLIGENCE WAS THE PROXIMATE CAUSE OF THE DEATH OF MR. CHRISTIAN HARPER. III.

Petitioner appealed, assigning to the RTC the following errors, to wit: I THE TRIAL COURT ERRED IN RULING THAT THE PLAINTIFFSAPPELLEES ARE THE HEIRS OF THE LATE CHRISTIAN HARPER, AS THERE IS NO COMPETENT EVIDENCE ON RECORD SUPPORTING SUCH RULING. II THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANTAPPELLANTSNEGLIGENCE WAS THE PROXIMATE CAUSE OF THE DEATH OF MR. HARPER, OR IN NOT RULING THAT IT WAS MR. CHRISTIAN HARPERS OWN NEGLIGENCE WHICH WAS THE SOLE, PROXIMATE CAUSE OF HIS DEATH. III THE TRIAL COURT ERRED IN AWARDING TO THE PLAINTIFFSAPPELLEES THE AMOUNTOF PHP 43,901,055.00, REPRESENTING THE ALLEGED LOST EARNING OF THE LATE CHRISTIAN HARPER, THERE BEING NO COMPETENT PROOF OF THE EARNING OF MR. HARPER DURING HIS LIFETIME AND OF THE ALLEGATION THAT THE PLAINTIFFS-APPELLEES ARE MR. HARPERS HEIRS. IV THE TRIAL COURT ERRED IN AWARDING TO THE PLAINTIFFSAPPELLEES THE AMOUNT OF PHP 739,075.00, REPRESENTING THE ALLEGED COST OF TRANSPORTING THE REMAINS OF MR. CHRISTIAN HARPER TO OSLO, NORWAY, THERE BEING NO PROOF ON RECORD THAT IT WAS PLAINTIFFS-APPELLEES WHO PAID FOR SAID COST. V THE TRIAL COURT ERRED IN AWARDING ATTORNEYS FEES AND COST OF SUIT TO THE PLAINTIFFS-APPELLEES, THERE BEING NO PROOF ON RECORD SUPPORTING SUCH AWARD. On October 21, 2009, the CA affirmed the judgment of the RTC with modification,9 as follows: WHEREFORE, the assailed Decision of the Regional Trial Court dated October 25, 2005 is hereby AFFIRMED with MODIFICATION. Accordingly, defendant-appellant is ordered to pay plaintiffs-appellees the amounts of P 52,078,702.50, as actual and compensatory damages; P 25,000.00, as temperate damages; P 250,000.00, as attorneys fees; and to pay the costs of the suit. SO ORDERED.10 Issues Petitioner still seeks the review of the judgment of the CA, submitting the following issues for consideration and determination, namely: I. WHETHER OR NOT THE PLAINTIFFS-APPELLEES WERE ABLE TO PROVE WITH COMPETENT EVIDENCE THE AFFIRMATIVE ALLEGATIONS IN THE COMPLAINT THAT THEY ARE THE WIDOW AND SON OF MR. CHRISTIAN HARPER. WHETHER OR NOT THE PROXIMATE CAUSE OF THE DEATH OF MR. CHRISTIAN HARPER WAS HIS OWN NEGLIGENCE. Ruling The appeal lacks merit. I. Requirements for authentication of documents establishing respondents legal relationship with the victim as his heirs were complied with As to the first issue, the CA pertinently held as follows: The documentary evidence that plaintiffs-appellees offered relative to their heirship consisted of the following 1. Exhibit "Q" - Birth Certificate of Jonathan Christopher Harper, son of Christian Fredrik Harper and Ellen Johanne Harper; 2. Exhibit "Q-1" - Marriage Certificate of Ellen Johanne Clausen and Christian Fredrik Harper; 3. Exhibit "R" - Birth Certificate of Christian Fredrick Harper, son of Christopher Shaun Harper and Eva Harper; and 4. Exhibit "R-1" - Certificate from the Oslo Probate Court stating that Ellen Harper was married to the deceased, Christian Fredrick Harper and listed Ellen Harper and Jonathan Christopher Harper as the heirs of Christian Fredrik Harper. Defendant-appellant points out that plaintiffs-appellees committed several mistakes as regards the above documentary exhibits, resultantly making them incompetent evidence, to wit, (a) none of the plaintiffs-appellees or any of the witnesses who testified for the plaintiffs gave evidence that Ellen Johanne Harper and Jonathan Christopher Harper are the widow and son of the deceased Christian Fredrik Harper; (b) Exhibit "Q" was labeled as Certificate of Marriage in plaintiffs-appellees Formal Offer of Evidence, when it appears to be the Birth Certificate of the late Christian Harper; (c) Exhibit "Q-1" is a translation of the Marriage Certificate of Ellen Johanne Harper and Christian Fredrik Harper, the original of which was not produced in court, much less, offered in evidence. Being a mere translation, it cannot be a competent evidence of the alleged fact that Ellen Johanne Harper is the widow of Christian Fredrik Harper, pursuant to the Best Evidence Rule. Even assuming that it is an original Marriage Certificate, it is not a public document that is admissible without the need of being identified or authenticated on the witness stand by a witness, as it appears to be a document issued by the Vicar of the Parish of Ullern and, hence, a private document; (d) Exhibit "R" was labeled as Probate Court Certificate in plaintiffs-appellees Formal Offer of Evidence, when it appears to be the Birth Certificate of the deceased, Christian Fredrik Harper; and (e) Exhibit "R-1" is a translation of the supposed Probate Court Certificate, the original of which was not produced in court, much less, offered in evidence. Being a mere translation, it is an incompetent evidence of the alleged fact that plaintiffs-appellees are the heirs of Christian Fredrik Harper, pursuant to the Best Evidence Rule. Defendant-appellant further adds that Exhibits "Q-1" and "R-1" were not duly attested by the legal custodians (by the Vicar of the Parish of Ullern for Exhibit "Q-1" and by the Judge or Clerk of the Probate Court for Exhibit "R1") as required under Sections 24 and 25, Rule 132 of the Revised Rules of Court. Likewise, the said documents are not accompanied by a certificate that such officer has the custody as also required under Section 24 of Rule 132. Consequently, defendant-appellant asseverates that Exhibits "Q-1" and "R-1" as private documents, which were not duly authenticated on the

witness stand by a competent witness, are essentially hearsay in nature that have no probative value. Therefore, it is obvious that plaintiffs-appellees failed to prove that they are the widow and son of the late Christian Harper. Plaintiffs-appellees make the following counter arguments, viz, (a) Exhibit "Q1", the Marriage Certificate of Ellen Johanne Harper and Christian Fredrik Harper, was issued by the Office of the Vicar of Ullern with a statement that "this certificate is a transcript from the Register of Marriage of Ullern Church." The contents of Exhibit "Q-1" were translated by the Government of the Kingdom of Norway, through its authorized translator, into English and authenticated by the Royal Ministry of Foreign Affairs of Norway, which in turn, was also authenticated by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden; (b) Exhibit "Q", the Birth Certificate of Jonathan Christopher Harper, was issued and signed by the Registrar of the Kingdom of Norway, as authenticated by the Royal Ministry of Foreign Affairs of Norway, whose signature was also authenticated by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden; and (c) Exhibit "R1", the Probate Court Certificate was also authenticated by the Royal Ministry of Foreign Affairs of Norway, whose signature was also authenticated by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden. They further argue that since Exhibit "Q-1", Marriage Certificate, was issued by the vicar or parish priest, the legal custodian of parish records, it is considered as an exception to the hearsay rule. As for Exhibit "R-1", the Probate Court Certificate, while the document is indeed a translation of the certificate, it is an official certification, duly confirmed by the Government of the Kingdom of Norway; its contents were lifted by the Government Authorized Translator from the official record and thus, a written official act of a foreign sovereign country. WE rule for plaintiffs-appellees. The Revised Rules of Court provides that public documents may be evidenced by a copy attested by the officer having the legal custody of the record. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. If the record is not kept in the Philippines, the attested copy must be accompanied with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. The documents involved in this case are all kept in Norway. These documents have been authenticated by the Royal Norwegian Ministry of Foreign Affairs; they bear the official seal of the Ministry and signature of one, Tanja Sorlie. The documents are accompanied by an Authentication by the Consul, Embassy of the Republic of the Philippines in Stockholm, Sweden to the effect that, Tanja Sorlie is duly authorized to legalize official documents for the Ministry. Exhibits "Q" and "R" are extracts of the register of births of both Jonathan Christopher Harper and the late Christian Fredrik Harper, respectively, wherein the former explicitly declares that Jonathan Christopher is the son of Christian Fredrik and Ellen Johanne Harper. Said documents bear the signature of the keeper, Y. Ayse B. Nordal with the official seal of the Office of the Registrar of Oslo, and the authentication of Tanja Sorlie of the Royal Ministry of Foreign Affairs, Oslo, which were further authenticated by Philippine Consul Marian Jocelyn R. Tirol. In addition, the latter states that said documents are the birth certificates of Jonathan Christopher Harper and Christian Fredrik Harper issued by the Registrar Office of Oslo, Norway on March 23, 2004. Exhibits "Q-1", on the other hand, is the Marriage Certificate of Christian Fredrik Harper and Ellen Johanne Harper issued by the vicar of the Parish of Ullern while Exhibit "R-1" is the Probate Court Certificate from the Oslo Probate Court, naming Ellen Johanne Harper and Jonathan Christopher Harper as the heirs of the deceased Christian Fredrik Harper. The documents are certified true translations into English of the transcript of the said marriage certificate and the probate court certificate. They were likewise signed by the authorized government translator of Oslo with the seal of his office; attested by Tanja Sorlie and further certified by our own Consul.

In view of the foregoing, WE conclude that plaintiffs-appellees had substantially complied with the requirements set forth under the rules. WE would also like to stress that plaintiffs-appellees herein are residing overseas and are litigating locally through their representative. While they are not excused from complying with our rules, WE must take into account the attendant reality that these overseas litigants communicate with their representative and counsel via long distance communication. Add to this is the fact that compliance with the requirements on attestation and authentication or certification is no easy process and completion thereof may vary depending on different factors such as the location of the requesting party from the consulate and the office of the record custodian, the volume of transactions in said offices and even the mode of sending these documents to the Philippines. With these circumstances under consideration, to OUR minds, there is every reason for an equitable and relaxed application of the rules on the issuance of the required attestation from the custodian of the documents to plaintiffs-appellees situation. Besides, these questioned documents were duly signed by the officers having custody of the same. 11 Petitioner assails the CAs ruling that respondents substantially complied with the rules on the authentication of the proofs of marriage and filiation set by Section 24 and Section 25 of Rule 132 of the Rules of Court when they presented Exhibit Q, Exhibit Q-1, Exhibit R and Exhibit R-1, because the legal custodian did not duly attest that Exhibit Q-1 and Exhibit R-1 were the correct copies of the originals on file, and because no certification accompanied the documents stating that "such officer has custody of the originals." It contends that respondents did not competently prove their being Harpers surviving heirs by reason of such documents being hearsay and incompetent. Petitioners challenge against respondents documentary evidence on marriage and heirship is not well-taken. Section 24 and Section 25 of Rule 132 provide: Section 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Section 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. Although Exhibit Q,12 Exhibit Q-1,13 Exhibit R14 and Exhibit R-115 were not attested by the officer having the legal custody of the record or by his deputy in the manner required in Section 25 of Rule 132, and said documents did not comply with the requirement under Section 24 of Rule 132 to the effect that if the record was not kept in the Philippines a certificate of the person having custody must accompany the copy of the document that was duly attested stating that such person had custody of the documents, the deviation was not enough reason to reject the utility of the documents for the purposes they were intended to serve. Exhibit Q and Exhibit R were extracts from the registry of births of Oslo, Norway issued on March 23, 2004 and signed by Y. Ayse B. Nordal, Registrar, and corresponded to respondent Jonathan Christopher Harper and victim Christian Fredrik Harper, respectively.16 Exhibit Q explicitly stated that Jonathan was the son of Christian Fredrik Harper and Ellen Johanne Harper, while Exhibit R attested to the birth of Christian Fredrik Harper on December 4, 1968. Exhibit Q and Exhibit R were authenticated on March 29, 2004 by the signatures of Tanja Sorlie of the Royal Ministry of Foreign Affairs of Norway as well as by the official seal of that office. In turn, Consul Marian Jocelyn R. Tirol of the Philippine Consulate in Stockholm, Sweden authenticated the signatures of Tanja Sorlie and the official seal of the Royal Ministry of Foreign Affairs of Norway on Exhibit Q and Exhibit R, explicitly certifying to the authority of Tanja Sorlie "to legalize official documents for the Royal Ministry of Foreign Affairs of Norway."17

Exhibit Q-1,18 the Marriage Certificate of Ellen Johanne Clausen Harper and Christian Fredrik Harper, contained the following data, namely: (a) the parties were married on June 29, 1996 in Ullern Church; and (b) the certificate was issued by the Office of the Vicar of Ullern on June 29, 1996. Exhibit Q-1 was similarly authenticated by the signature of Tanja Sorlie of the Royal Ministry of Foreign Affairs of Norway, with the official seal of that office. Philippine Consul Tirol again expressly certified to the capacity of Sorlie "to legalize official documents for the Royal Ministry of Foreign Affairs of Norway,"19 and further certified that the document was a true translation into English of a transcript of a Marriage Certificate issued to Christian Frederik Harper and Ellen Johanne Clausen by the Vicar of the Parish of Ullern on June 29, 1996. Exhibit R-1,20 a Probate Court certificate issued by the Oslo Probate Court on February 18, 2000 through Morten Bolstad, its Senior Executive Officer, was also authenticated by the signature of Tanja Sorlie and with the official seal of the Royal Ministry of Foreign Affairs of Norway. As with the other documents, Philippine Consul Tirol explicitly certified to the capacity of Sorlie "to legalize official documents for the Royal Ministry of Foreign Affairs of Norway," and further certified that the document was a true translation into English of the Oslo Probate Court certificate issued on February 18, 2000 to the effect that Christian Fredrik Harper, born on December 4, 1968, had reportedly died on November 6, 1999.21 The Oslo Probate Court certificate recited that both Ellen Johanne Harper and Christopher S. Harper were Harpers heirs, to wit: The above names surviving spouse has accepted responsibility for the commitments of the deceased in accordance with the provisions of Section 78 of the Probate Court Act (Norway), and the above substitute guardian has agreed to the private division of the estate. The following heir and substitute guardian will undertake the private division of the estate: Ellen Johanne Harper Christopher S. Harper This probate court certificate relates to the entire estate. Oslo Probate Court, 18 February 2000.22 The official participation in the authentication process of Tanja Sorlie of the Royal Ministry of Foreign Affairs of Norway and the attachment of the official seal of that office on each authentication indicated that Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 were documents of a public nature in Norway, not merely private documents. It cannot be denied that based on Philippine Consul Tirols official authentication, Tanja Sorlie was "on the date of signing, duly authorized to legalize official documents for the Royal Ministry of Foreign Affairs of Norway." Without a showing to the contrary by petitioner, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 should be presumed to be themselves official documents under Norwegian law, and admissible as prima facie evidence of the truth of their contents under Philippine law. At the minimum, Exhibit Q, Exhibit R, Exhibit Q-1 and Exhibit R-1 substantially met the requirements of Section 24 and Section 25 of Rule 132 as a condition for their admission as evidence in default of a showing by petitioner that the authentication process was tainted with bad faith. Consequently, the objective of ensuring the authenticity of the documents prior to their admission as evidence was substantially achieved. In Constantino-David v. Pangandaman-Gania,23 the Court has said that substantial compliance, by its very nature, is actually inadequate observance of the requirements of a rule or regulation that are waived under equitable circumstances in order to facilitate the administration of justice, there being no damage or injury caused by such flawed compliance. The Court has further said in Constantino-David v. Pangandaman-Gania that the focus in every inquiry on whether or not to accept substantial compliance is always on the presence of equitable conditions to administer justice effectively and efficiently without damage or injury to the spirit of the legal obligation.24 There are, indeed, such equitable conditions attendant here, the foremost of which is that respondents had gone to great lengths to submit the documents. As the CA observed, respondents compliance with the requirements on attestation and authentication of the documents had not been easy; they had to contend with many difficulties (such as the distance of

Oslo, their place of residence, from Stockholm, Sweden, where the Philippine Consulate had its office; the volume of transactions in the offices concerned; and the safe transmission of the documents to the Philippines). 25 Their submission of the documents should be presumed to be in good faith because they did so in due course. It would be inequitable if the sincerity of respondents in obtaining and submitting the documents despite the difficulties was ignored. The principle of substantial compliance recognizes that exigencies and situations do occasionally demand some flexibility in the rigid application of the rules of procedure and the laws.26 That rules of procedure may be mandatory in form and application does not forbid a showing of substantial compliance under justifiable circumstances,27 because substantial compliance does not equate to a disregard of basic rules. For sure, substantial compliance and strict adherence are not always incompatible and do not always clash in discord. The power of the Court to suspend its own rules or to except any particular case from the operation of the rules whenever the purposes of justice require the suspension cannot be challenged.28 In the interest of substantial justice, even procedural rules of the most mandatory character in terms of compliance are frequently relaxed. Similarly, the procedural rules should definitely be liberally construed if strict adherence to their letter will result in absurdity and in manifest injustice, or where the merits of a partys cause are apparent and outweigh considerations of non-compliance with certain formal requirements.29 It is more in accord with justice that a party-litigant is given the fullest opportunity to establish the merits of his claim or defense than for him to lose his life, liberty, honor or property on mere technicalities. Truly, the rules of procedure are intended to promote substantial justice, not to defeat it, and should not be applied in a very rigid and technical sense.30 Petitioner urges the Court to resolve the apparent conflict between the rulings in Heirs of Pedro Cabais v. Court of Appeals31 (Cabais) and in Heirs of Ignacio Conti v. Court of Appeals32 (Conti) establishing filiation through a baptismal certificate.33 Petitioners urging is not warranted, both because there is no conflict between the rulings in Cabais and Conti, and because neither Cabais nor Conti is relevant herein. In Cabais, the main issue was whether or not the CA correctly affirmed the decision of the RTC that had relied mainly on the baptismal certificate of Felipa C. Buesa to establish the parentage and filiation of Pedro Cabais. The Court held that the petition was meritorious, stating: A birth certificate, being a public document, offers prima facie evidence of filiation and a high degree of proof is needed to overthrow the presumption of truth contained in such public document. This is pursuant to the rule that entries in official records made in the performance of his duty by a public officer are prima facie evidence of the facts therein stated. The evidentiary nature of such document must, therefore, be sustained in the absence of strong, complete and conclusive proof of its falsity or nullity. On the contrary, a baptismal certificate is a private document, which, being hearsay, is not a conclusive proof of filiation. It does not have the same probative value as a record of birth, an official or public document. In US v. Evangelista, this Court held that church registers of births, marriages, and deaths made subsequent to the promulgation of General Orders No. 68 and the passage of Act No. 190 are no longer public writings, nor are they kept by duly authorized public officials. Thus, in this jurisdiction, a certificate of baptism such as the one herein controversy is no longer regarded with the same evidentiary value as official records of birth. Moreover, on this score, jurisprudence is consistent and uniform in ruling that the canonical certificate of baptism is not sufficient to prove recognition.34 The Court sustained the Cabais petitioners stance that the RTC had apparently erred in relying on the baptismal certificate to establish filiation, stressing the baptismal certificates limited evidentiary value as proof of filiation inferior to that of a birth certificate; and declaring that the baptismal certificate did not attest to the veracity of the statements regarding the kinsfolk of the one baptized. Nevertheless, the Court ultimately ruled that it was respondents failure to present the birth certificate, more than anything else, that lost them their case, stating that: "The unjustified failure to present the birth certificate instead of the baptismal certificate now under consideration or to otherwise prove filiation by any other means recognized by law weigh heavily against respondents."35 In Conti, the Court affirmed the rulings of the trial court and the CA to the effect that the Conti respondents were able to prove by preponderance of

evidence their being the collateral heirs of deceased Lourdes Sampayo. The Conti petitioners disagreed, arguing that baptismal certificates did not prove the filiation of collateral relatives of the deceased. Agreeing with the CA, the Court said: We are not persuaded. Altogether, the documentary and testimonial evidence submitted xxx are competent and adequate proofs that private respondents are collateral heirs of Lourdes Sampayo. xxx Under Art. 172 of the Family Code, the filiation of legitimate children shall be proved by any other means allowed by the Rules of Court and special laws, in the absence of a record of birth or a parents admission of such legitimate filiation in a public or private document duly signed by the parent. Such other proof of ones filiation may be a baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimonies of witnesses and other kinds of proof admissible under Rule 130 of the Rules of Court. By analogy, this method of proving filiation may also be utilized in the instant case. Public documents are the written official acts, or records of the official act of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or a foreign country. The baptismal certificates presented in evidence by private respondents are public documents. Parish priests continue to be the legal custodians of the parish records and are authorized to issue true copies, in the form of certificates, of the entries contained therein. The admissibility of baptismal certificates offered by Lydia S. Reyes, absent the testimony of the officiating priest or the official recorder, was settled in People v. Ritter, citing U.S. v. de Vera (28 Phil. 105 1914, thus: .... The entries made in the Registry Book may be considered as entries made in the course of business under Section 43 of Rule 130, which is an exception to the hearsay rule. The baptisms administered by the church are one of its transactions in the exercise of ecclesiastical duties and recorded in the book of the church during this course of its business. It may be argued that baptismal certificates are evidence only of the administration of the sacrament, but in this case, there were four (4) baptismal certificates which, when taken together, uniformly show that Lourdes, Josefina, Remedios and Luis had the same set of parents, as indicated therein. Corroborated by the undisputed testimony of Adelaida Sampayo that with the demise of Lourdes and her brothers Manuel, Luis and sister Remedios, the only sibling left was Josefina Sampayo Reyes, such baptismal certificates have acquired evidentiary weight to prove filiation. 36 Obviously, Conti did not treat a baptismal certificate, standing alone, as sufficient to prove filiation; on the contrary, Conti expressly held that a baptismal certificate had evidentiary value to prove filiation if considered alongside other evidence of filiation. As such, a baptismal certificate alone is not sufficient to resolve a disputed filiation. Unlike Cabais and Conti, this case has respondents presenting several documents, like the birth certificates of Harper and respondent Jonathan Harper, the marriage certificate of Harper and Ellen Johanne Harper, and the probate court certificate, all of which were presumably regarded as public documents under the laws of Norway. Such documentary evidence sufficed to competently establish the relationship and filiation under the standards of our Rules of Court. II Petitioner was liable due to its own negligence Petitioner argues that respondents failed to prove its negligence; that Harpers own negligence in allowing the killers into his hotel room was the proximate cause of his own death; and that hotels were not insurers of the safety of their guests. The CA resolved petitioners arguments thuswise: Defendant-appellant contends that the pivotal issue is whether or not it had committed negligence and corollarily, whether its negligence was the

immediate cause of the death of Christian Harper. In its defense, defendantappellant mainly avers that it is equipped with adequate security system as follows: (1) keycards or vingcards for opening the guest rooms, (2) two CCTV monitoring cameras on each floor of the hotel and (3) roving guards with handheld radios, the number of which depends on the occupancy rate of the hotel. Likewise, it reiterates that the proximate cause of Christian Harpers death was his own negligence in inviting to his room the two (2) still unidentified suspects. Plaintiffs-appellees in their Brief refute, in that, the liability of defendantappellant is based upon the fact that it was in a better situation than the injured person, Christian Harper, to foresee and prevent the happening of the injurious occurrence. They maintain that there is no dispute that even prior to the untimely demise of Christian Harper, defendant-appellant was duly forewarned of its security lapses as pointed out by its Chief Security Officer, Col. Rodrigo De Guzman, who recommended that one roving guard be assigned on each floor of the hotel considering the length and shape of the corridors. They posit that defendant-appellants inaction constitutes negligence. This Court finds for plaintiffs-appellees. As the action is predicated on negligence, the relevant law is Article 2176 of the Civil Code, which states that "Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there was no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions of this chapter." Negligence is defined as the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. The Supreme Court likewise ruled that negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. In determining whether or not there is negligence on the part of the parties in a given situation, jurisprudence has laid down the following test: Did defendant, in doing the alleged negligent act, use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, the person is guilty of negligence. The law, in effect, adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law. The test of negligence is objective. WE measure the act or omission of the tortfeasor with a perspective as that of an ordinary reasonable person who is similarly situated. The test, as applied to the extant case, is whether or not defendant-appellant, under the attendant circumstances, used that reasonable care and caution which an ordinary reasonable person would have used in the same situation. WE rule in the negative. In finding defendant-appellant remiss in its duty of exercising the required reasonable care under the circumstances, the court a quo reasoned-out, to wit: "Of the witnesses presented by plaintiffs to prove its (sic) case, the only one with competence to testify on the issue of adequacy or inadequacy of security is Col. Rodrigo De Guzman who was then the Chief Security Officer of defendant hotel for the year 1999. He is a retired police officer and had vast experience in security jobs. He was likewise a member of the elite Presidential Security Group. He testified that upon taking over the job as the chief of the security force of the hotel, he made an assessment of the security situation. Col. De Guzman was not satisfied with the security set-up and told the hotel management of his desire to improve it. In his testimony, De Guzman testified that at the time he took over, he noticed that there were few guards in the elevated portion of the hotel where the rooms were located. The existing security scheme then was one guard for 3 or 4 floors. He likewise testified that he recommended to the hotel management that at least one guard must be assigned per floor especially considering that the hotel has a long "L-shaped" hallway, such that one cannot see both ends of the hallway. He further opined that "even one

guard in that hallway is not enough because of the blind portion of the hallway." On cross-examination, Col. De Guzman testified that the security of the hotel was adequate at the time the crime occurred because the hotel was not fully booked. He qualified his testimony on direct in that his recommendation of one guard per floor is the "ideal" set-up when the hotel is fully-booked. Be that as it may, it must be noted that Col. De Guzman also testified that the reason why the hotel management disapproved his recommendation was that the hotel was not doing well. It is for this reason that the hotel management did not heed the recommendation of Col. De Guzman, no matter how sound the recommendation was, and whether the hotel is fullybooked or not. It was a business judgment call on the part of the defendant. Plaintiffs anchor its (sic) case on our law on quasi-delicts. Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict. Liability on the part of the defendant is based upon the fact that he was in a better situation than the injured person to foresee and prevent the happening of the injurious occurrence. There is no dispute that even prior to the untimely demise of Mr. Harper, defendant was duly forewarned of the security lapses in the hotel. Col. De Guzman was particularly concerned with the security of the private areas where the guest rooms are. He wanted not just one roving guard in every three or four floors. He insisted there must be at least one in each floor considering the length and the shape of the corridors. The trained eyes of a security officer was (sic) looking at that deadly scenario resulting from that wide security breach as that which befell Christian Harper. The theory of the defense that the malefactor/s was/were known to Harper or was/were visitors of Harper and that there was a shindig among [the] three deserves scant consideration. The NBI Biology Report (Exh. "C" & "D") and the Toxicology Report (Exh. "E") belie the defense theory of a joyous party between and among Harper and the unidentified malefactor/s. Based on the Biology Report, Harper was found negative of prohibited and regulated drugs. The Toxicology Report likewise revealed that the deceased was negative of the presence of alcohol in his blood. The defense even suggests that the malefactor/s gained entry into the private room of Harper either because Harper allowed them entry by giving them access to the vingcard or because Harper allowed them entry by opening the door for them, the usual gesture of a room occupant to his visitors. While defendants theory may be true, it is more likely, under the circumstances obtaining that the malefactor/s gained entry into his room by simply knocking at Harpers door and the latter opening it probably thinking it was hotel personnel, without an inkling that criminal/s could be in the premises. The latter theory is more attuned to the dictates of reason. If indeed the female "visitor" is known to or a visitor of Harper, she should have entered the the room together with Harper. It is quite unlikely that a supposed "visitor" would wait three minutes to be with a guest when he/she could go with the guest directly to the room. The interval of three minutes in Harpers entry and that of the alleged female visitor belies the "theory of acquaintanceship". It is most likely that the female "visitor" was the one who opened the door to the male "visitor", undoubtedly, a co-conspirator. In any case, the ghastly incident could have been prevented had there been adequate security in each of the hotel floors. This, coupled with the earlier recommendation of Col. De Guzman to the hotel management to act on the security lapses of the hotel, raises the presumption that the crime was foreseeable. Clearly, defendants inaction constitutes negligence or want of the reasonable care demanded of it in that particular situation.

In a case, the Supreme Court defined negligence as: The failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance, which the circumstances justly demand, whereby such person suffers injury. Negligence is want of care required by the circumstances. It is a relative or comparative, not an absolute term, and its application depends upon the situation of the parties, and the degree of care and vigilance which the circumstances reasonably impose. Where the danger is great, a high degree of care is necessary. Moreover, in applying the premises liability rule in the instant case as it is applied in some jurisdiction (sic) in the United States, it is enough that guests are injured while inside the hotel premises to make the hotelkeeper liable. With great caution should the liability of the hotelkeeper be enforced when a guest died inside the hotel premises. It also bears stressing that there were prior incidents that occurred in the hotel which should have forewarned the hotel management of the security lapses of the hotel. As testified to by Col. De Guzman, "there were minor incidents" (loss of items) before the happening of the instant case. These "minor" incidents may be of little significance to the hotel, yet relative to the instant case, it speaks volume. This should have served as a caveat that the hotel security has lapses. Makati Shangri-La Hotel, to stress, is a five-star hotel. The "reasonable care" that it must exercise for the safety and comfort of its guests should be commensurate with the grade and quality of the accommodation it offers. If there is such a thing as "five-star hotel security", the guests at Makati Shangri-La surely deserves just that! When one registers (as) a guest of a hotel, he makes the establishment the guardian of his life and his personal belongings during his stay. It is a standard procedure of the management of the hotel to screen visitors who call on their guests at their rooms. The murder of Harper could have been avoided had the security guards of the Shangri-La Hotel in Makati dutifully observed this standard procedure." WE concur. Well settled is the doctrine that "the findings of fact by the trial court are accorded great respect by appellate courts and should not be disturbed on appeal unless the trial court has overlooked, ignored, or disregarded some fact or circumstances of sufficient weight or significance which, if considered, would alter the situation." After a conscientious sifting of the records, defendant-appellant fails to convince US to deviate from this doctrine. It could be gleaned from findings of the trial court that its conclusion of negligence on the part of defendant-appellant is grounded mainly on the latters inadequate hotel security, more particularly on the failure to deploy sufficient security personnel or roving guards at the time the ghastly incident happened. A review of the testimony of Col. De Guzman reveals that on direct examination he testified that at the time he assumed his position as Chief Security Officer of defendant-appellant, during the early part of 1999 to the early part of 2000, he noticed that some of the floors of the hotel were being guarded by a few guards, for instance, 3 or 4 floors by one guard only on a roving manner. He then made a recommendation that the ideal-set up for an effective security should be one guard for every floor, considering that the hotel is L-shaped and the ends of the hallways cannot be seen. At the time he made the recommendation, the same was denied, but it was later on considered and approved on December 1999 because of the Centennial Celebration. On cross-examination, Col. De Guzman confirmed that after he took over as Chief Security Officer, the number of security guards was increased during the first part of December or about the last week of November, and before the incident happened, the security was adequate. He also qualified that as to his direct testimony on "ideal-set up", he was referring to one guard for every floor if the hotel is fully booked. At the time he made his recommendation in the early part of 1999, it was disapproved as the hotel was not doing well and it was not fully booked so the existing security was

adequate enough. He further explained that his advice was observed only in the late November 1999 or the early part of December 1999. It could be inferred from the foregoing declarations of the former Chief Security Officer of defendant-appellant that the latter was negligent in providing adequate security due its guests. With confidence, it was repeatedly claimed by defendant-appellant that it is a five-star hotel. Unfortunately, the record failed to show that at the time of the death of Christian Harper, it was exercising reasonable care to protect its guests from harm and danger by providing sufficient security commensurate to it being one of the finest hotels in the country. In so concluding, WE are reminded of the Supreme Courts enunciation that the hotel business like the common carriers business is imbued with public interest. Catering to the public, hotelkeepers are bound to provide not only lodging for hotel guests but also security to their persons and belongings. The twin duty constitutes the essence of the business. It is clear from the testimony of Col. De Guzman that his recommendation was initially denied due to the fact that the business was then not doing well. The "one guard, one floor" recommended policy, although ideal when the hotel is fully-booked, was observed only later in November 1999 or in the early part of December 1999, or needless to state, after the murder of Christian Harper. The apparent security lapses of defendant-appellant were further shown when the male culprit who entered Christian Harpers room was never checked by any of the guards when he came inside the hotel. As per interview conducted by the initial investigator, PO3 Cornelio Valiente to the guards, they admitted that nobody know that said man entered the hotel and it was only through the monitor that they became aware of his entry. It was even evidenced by the CCTV that before he walked to the room of the late Christian Harper, said male suspect even looked at the monitoring camera. Such act of the man showing wariness, added to the fact that his entry to the hotel was unnoticed, at an unholy hour, should have aroused suspicion on the part of the roving guard in the said floor, had there been any. Unluckily for Christian Harper, there was none at that time. Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces, the injury, and without which the result would not have occurred. More comprehensively, proximate cause is that cause acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. Defendant-appellants contention that it was Christian Harpers own negligence in allowing the malefactors to his room that was the proximate cause of his death, is untenable. To reiterate, defendant-appellant is engaged in a business imbued with public interest, ergo, it is bound to provide adequate security to its guests. As previously discussed, defendant-appellant failed to exercise such reasonable care expected of it under the circumstances. Such negligence is the proximate cause which set the chain of events that led to the eventual demise of its guest. Had there been reasonable security precautions, the same could have saved Christian Harper from a brutal death. The Court concurs entirely with the findings and conclusions of the CA, which the Court regards to be thorough and supported by the records of the trial. Moreover, the Court cannot now review and pass upon the uniform findings of negligence by the CA and the RTC because doing so would require the Court to delve into and revisit the factual bases for the finding of negligence, something fully contrary to its character as not a trier of facts. In that regard, the factual findings of the trial court that are supported by the evidence on record, especially when affirmed by the CA, are conclusive on the Court. 37 Consequently, the Court will not review unless there are exceptional circumstances for doing so, such as the following: (a) When the findings are grounded entirely on speculation, surmises or conjectures; (b) When the inference made is manifestly mistaken, absurd or impossible; (c) When there is grave abuse of discretion;

(d) When the judgment is based on a misapprehension of facts; (e) When the findings of facts are conflicting; (f) When in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (g) When the findings are contrary to the trial court; (h) When the findings are conclusions without citation of specific evidence on which they are based; (i) When the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (j) When the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (k) When the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.38 None of the exceptional circumstances obtains herein. Accordingly, the Court cannot depart from or disturb the factual findings on negligence of petitioner made by both the RTC and the CA.39 Even so, the Court agrees with the CA that petitioner failed to provide the basic and adequate security measures expected of a five-star hotel; and that its omission was the proximate cause of Harpers death. The testimony of Col. De Guzman revealed that the management practice prior to the murder of Harper had been to deploy only one security or roving guard for every three or four floors of the building; that such ratio had not been enough considering the L-shape configuration of the hotel that rendered the hallways not visible from one or the other end; and that he had recommended to management to post a guard for each floor, but his recommendation had been disapproved because the hotel "was not doing well" at that particular time.40 Probably realizing that his testimony had weakened petitioners position in the case, Col. De Guzman soon clarified on cross-examination that petitioner had seen no need at the time of the incident to augment the number of guards due to the hotel being then only half-booked. Here is how his testimony went: ATTY MOLINA: I just forgot one more point, Your Honor please. Was there ever a time, Mr. Witness, that your recommendation to post a guard in every floor ever considered and approved by the hotel? A: Yes, Sir. Q: When was this? A: That was on December 1999 because of the Centennial Celebration when the hotel accepted so many guests wherein most of the rooms were fully booked and I recommended that all the hallways should be guarded by one guard.41 xxx ATTY COSICO: Q: So at that time that you made your recommendation, the hotel was halffilled. A: Maybe.

Q: And even if the hotel is half-filled, your recommendation is that each floor shall be maintained by one security guard per floors? A: Yes sir. Q: Would you agree with me that even if the hotel is half-filled, there is no need to increase the guards because there were only few customers? A: I think so. Q: So you will agree with me that each floor should be maintained by one security guard if the rooms are filled up or occupied? A: Yes sir. Q: Now, you even testified that from January 1999 to November 1999 thereof, only minor incidents were involved? A: Yes sir. Q: So it would be correct to say that the security at that time in February was adequate? A: I believe so. Q: Even up to November when the incident happened for that same reason, security was adequate? A: Yes, before the incident. Q: Now, you testified on direct that the hotel posted one guard each floor? A: Yes sir. Q: And it was your own recommendation? A: Yes, because we are expecting that the hotel will be filled up. Q: In fact, the hotel was fully booked? A: Yes sir.42 Petitioner would thereby have the Court believe that Col. De Guzmans initial recommendation had been rebuffed due to the hotel being only half-booked; that there had been no urgency to adopt a one-guard-per-floor policy because security had been adequate at that time; and that he actually meant by his statement that "the hotel was not doing well" that the hotel was only half-booked. We are not convinced. The hotel business is imbued with public interest. Catering to the public, hotelkeepers are bound to provide not only lodging for their guests but also security to the persons and belongings of their guests. The twin duty constitutes the essence of the business.43 Applying by analogy Article 2000,44 Article 200145 and Article 200246 of the Civil Code (all of which concerned the hotelkeepers degree of care and responsibility as to the personal effects of their guests), we hold that there is much greater reason to apply the same if not greater degree of care and responsibility when the lives and personal safety of their guests are involved. Otherwise, the hotelkeepers would simply stand idly by as strangers have unrestricted access to all the hotel rooms on the pretense of being visitors of the guests, without being held liable should anything untoward befall the unwary guests. That would be absurd, something that no good law would ever envision. In fine, the Court sees no reversible-error on the part of the CA. WHEREFORE, the Court AFFIRMS the judgment of the Court of Appeals; and ORDERS petitioner to pay the costs of suit.

-REYES vs. MAURICIO Subject of this petition is the Decision [1] of the Court of Appeals dated 10 August 2006 in CA-G.R. SP No. 87148, affirming the Decision dated 7 July 1998 and Resolution dated 28 September 2004 of the Department of Agrarian Reform Adjudication Board (DARAB). Eugenio Reyes (Eugenio) was the registered owner of a parcel of land located at Turo, Bocaue, Bulacan, with an area of four thousand five hundred twenty-seven (4,527) square meters, more or less, and covered by Transfer Certificate of Title (TCT) No. 109456(M). Said title came from and cancelled TCT No. T-62290 registered in the name of Eufracia and Susana Reyes, siblings of Eugenio. The subject property was adjudicated to Eugenio by virtue of an extrajudicial settlement among the heirs following the death of his parents. The controversy stemmed from a complaint filed before the DARAB of Malolos, Bulacan by respondents Librada F. Mauricio (Librada), now deceased, and her alleged daughter Leonida F. Mauricio (Leonida) for annulment of contract denominated as Kasunduan and between Librada and Eugenio as parties. Respondents also prayed for maintenance of their peaceful possession with damages. Respondents alleged that they are the legal heirs of the late Godofredo Mauricio (Godofredo), who was the lawful and registered tenant of Eugenio through his predecessors-in-interest to the subject land; that from 1936 until his death in May 1994, Godofredo had been working on the subject land and introduced improvements consisting of fruit-bearing trees, seasonal crops, a residential house and other permanent improvements; that through fraud, deceit, strategy and other unlawful means, Eugenio caused the preparation of a document denominated as Kasunduan dated 28 September 1994 to eject respondents from the subject property, and had the same notarized by Notary Public Ma. Sarah G. Nicolas in Pasig, Metro Manila; that Librada never appeared before the Notary Public; that Librada was illiterate and the contents of the Kasunduan were not read nor explained to her; that Eugenio took undue advantage of the weakness, age, illiteracy, ignorance, indigence and other handicaps of Librada in the execution of the Kasunduan rendering it void for lack of consent; and that Eugenio had been employing all illegal means to eject respondents from the subject property. Respondents prayed for the declaration of nullity of the Kasunduan and for an order for Eugenio to maintain and place them in peaceful possession and cultivation of the subject property. Respondents likewise demanded payment of damages. [2] During trial, respondents presented a leasehold contract executed between Susana and Godofredo to reaffirm the existing tenancy agreement. [3] Eugenio averred that no tenancy relationship existed between him and respondents. He clarified that Godofredos occupation of the subject premises was based on the formers mere tolerance and accommodation. Eugenio denied signing a tenancy agreement, nor authorizing any person to sign such an agreement. He maintained that Librada, accompanied by a relative, voluntarily affixed her signature to the Kasunduan and that she was fully aware of the contents of the document. Moreover, Librada received P50,000.00 from Eugenio on the same day of the execution of the Kasunduan. Eugenio also questioned the jurisdiction of the DARAB since the principal relief sought by respondents is the annulment of the contract, over which jurisdiction is vested on the regular courts. Eugenio also asserted that Leonida had no legal personality to file the present suit. [4] Based on the evidence submitted by both parties, the Provincial Adjudicator [5] concluded that Godofredo was the tenant of Eugenio, and Librada, being the surviving spouse, should be maintained in peaceful possession of the subject land. The dispositive portion of the decision reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff Librada Mauricio and against defendant Eugenio R. Reyes and order is hereby issued: 1. Declaring the kasunduan null and void; 2. Ordering defendant to respect the peaceful possession of herein plaintiff Librada Mauricio over the subject landholding;

3. defendant; 4.

Ordering plaintiff to return the amount of P50,000.00 to herein No pronouncement as to costs. [6]

On appeal, two issues were presented to and taken up by the DARAB, namely: (1) Whether or not there is tenancy relation between the parties; and (2) whether or not the Kasunduan dated 28 September 1994 is valid and enforceable. The DARAB held that the Mauricios are former tenants of Spouses Reyes. It found that when Spouses Reyes died, siblings Eufracia, Susana and Eugenio, among others inherited the subject property. Under the law, they were subrogated to the rights and substituted to the obligations of their late parents as the agricultural lessors over the farmholding tenanted by respondents. Moreover, the DARAB banked on the Kasunduang Buwisan sa Sakahan or the leasehold contract executed by Susana in favor of Godofredo to support the tenancy relationship. Furthermore, the DARAB declared the other Kasunduan as void by relying on the evaluation of the Provincial Adjudicator as to the legal incapacity of Librada to enter into such a contract. [7] Eugenio filed a motion for reconsideration which was denied by the DARAB on 28 September 2004. [8] Aggrieved by the DARAB ruling, Eugenio filed a petition for review with the Court of Appeals. On 10 July 2006, the Court of Appeals issued a resolution regarding the status of Leonida as a legal heir and allowed her to substitute Librada, who died during the pendency of the case. [9] On 10 August 2006, the Court of Appeals affirmed the decision and resolution of the DARAB. It sustained the factual findings of the DARAB with respect to the tenancy relation between Godofredo and Spouses Reyes and the nullity of the Kasunduan. [10] Undaunted, Eugenio filed the instant petition. Eugenio submits that no tenancy relationship exists between him and respondents. He insists that the Kasunduang Buwisan sa Sakahan allegedly executed between Godofredo and Susana in 1993 giving the former the right to occupy and cultivate the subject property is unenforceable against Eugenio, having been entered into without his knowledge and consent. Eugenio further asserts that per records of the Department of Agrarian Reform (DAR), no leasehold contract was entered into by Godofredo and Eugenio with respect to the disputed property. Eugenio attributes error on the part of the Court of Appeals in concluding that a tenancy relationship existed between the parties despite the absence of some of the essential requisites of a tenancy relationship such as personal cultivation and the subject land being agricultural. Finally, Eugenio defends the validity of the Kasunduan entered into between him and Librada wherein the latter agreed to vacate the subject property, in that it was voluntarily entered into and the contents thereof were mutually understood by the parties. [11] In a Resolution dated 7 February 2007, this Court denied the petition for failure to show that the Court of Appeals committed reversible error in its challenged decision and resolution. The Court also dismissed the issues raised as factual. However, upon filing of a motion for reconsideration by Eugenio, this Court reinstated the petition and required respondent Leonida to comment on the petition. [12] In her comment, respondent prayed for the denial of the petition because the jurisdiction of this Court is limited to review of errors of law and not of facts. [13] In the main, Eugenio insists that no tenancy relationship existed between him and Godofredo. This is a question of fact beyond the province of this Court in a petition for review under Rule 45 of the Rules of Court in which only questions of law may be raised. [14] Absent any of the obtaining exceptions [15] to this rule, the findings of facts of the Provincial Adjudicator, as affirmed by DARAB and especially by the Court of Appeals, are binding on this Court. The DARAB ruling outlined how the tenancy relationship between Godofredo and the Mauricios came about, thus:

This Board, after a thorough evaluation of the evidences, is convinced that the Mauricios are former tenants of the parents of the herein DefendantAppeallant. A perusal of Exhibit H which is the Tax Declaration of the property in controversy proves that upon the death of the parents of Defendant-Appellant, the property was the subject matter of their extrajudicial partition/settlement and this property was initially under the ownership of the appellants sisters, Eufracia and Susana Reyes until the same property was finally acquired/transferred in the name of Respondent-Appellant. Obviously, in order to re-affirm the fact that the Mauricios are really the tenants, Susana Reyes had voluntarily executed the Leasehold Contract with Godofredo Librada being the tenant on the property and to prove that she (Susana Reyes) was the predecessor-in-interest of Respondent-Appeallant Eugenio Reyes. x x x. The Kasunduang Buwisan sa Sakahan alleging that their tenancy relationship began in the year 1973 and their agreement as to the rental shall remain until further revised. [16] This is a contest of Kasunduans. Respondents rely on a Kasunduan of tenancy. Petitioners swear by a Kasunduan of termination of tenancy. Librada claims that her late husband had been working on the land since 1936 until his death in 1994. She presented the Kasunduang Buwisan sa Sakahan dated 26 May 1993 and executed by Godofredo and Susana which reaffirmed the leasehold tenancy over the subject land. On the other hand, Eugenio disputes the claims of Librada and presented another Kasunduan executed between him and Librada on 28 September 1994 which effectively terminates the leasehold tenancy when the latter allegedly agreed to vacate the subject premises in exchange of monetary considerations. This second Kasunduan is the subject of the instant complaint. In its disquisition, the DARAB nullified the second Kasunduan, to wit: x x x Insofar as this Kasunduan is concerned, and after reading the transcript of the testimony of the old woman Librada Mauricio, this Board is convinced that indeed the purpose of the document was to eject her from the farmholding but that Librada Mauricio wanted to return the money she received because the contents of the document was never explained to her being illiterate who cannot even read or write. This Board is even further convinced after reading the transcript of the testimonies that while the document was allegedly signed by the parties in Turo, Bocaue, Bulacan, the same document was notarized in Pasig, Metro Manila, thus, the Notary Public was not in a position to explain much less ascertain the veracity of the contents of the alleged Kasunduan as to whether or not Plaintiff -Appellee Librada Mauricio had really understood the contents thereof. This Board further adheres to the principle that it cannot substitute its own evaluation of the testimony of the witnesses with that of the personal evaluation of the Adjudicator a quo who, in the case at bar, had the best opportunity to observe the demeanor of the witness Librada Mauricio while testifying on the circumstances relevant to the execution of the alleged Kasunduan. Furthermore, this Board adheres to the principle that in all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, mental weakness or other handicap, the courts (and in the case at bar, this Board) must be vigilant for his protection (Art. 24, New Civil Code). In the case at bar, Plaintiff-Appellee is already eighty-one (81) years old who can neither read nor write, thus, she just simply signs her name with her thumbmark. [17] Applying the principle that only questions of law may be entertained by this Court, we defer to the factual ruling of the Provincial Adjudicator, as affirmed by DARAB and the Court of Appeals, which clearly had the opportunity to closely examine the witnesses and their demeanor on the witness stand. Assuming that the leasehold contract between Susana and Godofredo is void, our conclusion remains. We agree with the Court of Appeals that a tenancy relationship cannot be extinguished by mere expiration of term or period in a leasehold contract; or by the sale, alienation or the transfer of legal possession of the landholding. Section 9 of Republic Act No. 1199 or the Agricultural Tenancy Act provides: SECTION 9. Severance of Relationship. The tenancy relationship is extinguished by the voluntary surrender of the land by, or the death or

incapacity of, the tenant, but his heirs or the members of his immediate farm household may continue to work the land until the close of the agricultural year. The expiration of the period of the contract as fixed by the parties, and the sale or alienation of the land does not of themselves extinguish the relationship. In the latter case, the purchaser or transferee shall assume the rights and obligations of the former landholder in relation to the tenant. In case of death of the landholder, his heir or heirs shall likewise assume his rights and obligations. (Emphasis supplied) Moreover, Section 10 of Republic Act No. 3844 (Code of Agrarian Reforms of the Philippines) likewise provides: SEC. 10. Agricultural Leasehold Relation Not Extinguished by Expiration of Period, etc. The agricultural leasehold relation under this Code shall not be extinguished by mere expiration of the term or period in a leasehold contract nor by the sale, alienation or transfer of the legal possession of the landholding. In case the agricultural lessor sells, alienates or transfers the legal possession of the landholding, the purchaser or transferee thereof shall be subrogated to the rights and substituted to the obligations of the agricultural lessor. (Emphasis supplied) As an incidental issue, Leonidas legal standing as a party was also assailed by Eugenio. Eugenio submitted that the complaint was rendered moot with the death of Librada, Godofredos sole compulsory heir. Eugenio contended that Leonida is a mere ward of Godofredo and Librada, thus, not a legal heir. [18] We are in full accord with the Court of Appeals when it ruled that Eugenio cannot collaterally attack the status of Leonida in the instant petition. [19] It is settled law that filiation cannot be collaterally attacked. [20] Well-known civilista Dr. Arturo M. Tolentino, in his book Civil Code of the Philippines, Commentaries and Jurisprudence, noted that the aforecited doctrine is rooted from the provisions of the Civil Code of the Philippines. He explained thus: The legitimacy of the child cannot be contested by way of defense or as a collateral issue in another action for a different purpose. The necessity of an independent action directly impugning the legitimacy is more clearly expressed in the Mexican code (article 335) which provides: The contest of the legitimacy of a child by the husband or his heirs must be made by proper complaint before the competent court; any contest made in any other way is void. This principle applies under our Family Code. Articles 170 and 171 of the code confirm this view, because they refer to the action to impugn the legitimacy. This action can be brought only by the husband or his heirs and within the periods fixed in the present articles. [21] In Braza v. City Civil Registrar of Himamaylan City, Negros Occidental, [22] the Court stated that legitimacy and filiation can be questioned only in a direct action seasonably filed by the proper party, and not through collateral attack. [23] The same rule is applied to adoption such that it cannot also be made subject to a collateral attack. In Reyes v. Sotero, [24] this Court reiterated that adoption cannot be assailed collaterally in a proceeding for the settlement of a decedents estate. [25] Furthermore, in Austria v. Reyes, [26] the Court declared that the legality of the adoption by the testatrix can be assailed only in a separate action brought for that purpose and cannot be subject to collateral attack. [27] Against these jurisprudential backdrop, we have to leave out the status of Leonida from the case for annulment of the Kasunduan that supposedly favors petitioners cause. WHEREFORE, based on the foregoing premises, the instant petition for review on certiorari is DENIED and the Decision dated 10 August 2006 of the Court of Appeals in CA-G.R. SP No. 87148 is AFFIRMED. -REPUBLIC OF THE PHILIPPINES, Petitioner, vs.

JULIAN EDWARD EMERSON COSETENG-MAGPAYO (A.K.A. JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG Born in Makati on September 9, 1972, Julian Edward Emerson Coseteng Magpayo (respondent) is the son of Fulvio M. Magpayo Jr. and Anna Dominique Marquez-Lim Coseteng who, as respondents certificate of live birth1 shows, contracted marriage on March 26, 1972. Claiming, however, that his parents were never legally married, respondent filed on July 22, 2008 at the Regional Trial Court (RTC) of Quezon City a Petition to change his name to Julian Edward Emerson Marquez Lim Coseteng. The petition, docketed as SPP No. Q-0863058, was entitled "IN RE PETITION FOR CHANGE OF NAME OF JULIAN EDWARD EMERSON COSETENG MAGPAYO TO JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG." In support of his petition, respondent submitted a certification from the National Statistics Office stating that his mother Anna Dominique "does not appear in [its] National Indices of Marriage."2 Respondent also submitted his academic records from elementary up to college3 showing that he carried the surname "Coseteng," and the birth certificate of his child where "Coseteng" appears as his surname.4 In the 1998, 2001 and 2004 Elections, respondent ran and was elected as Councilor of Quezon Citys 3rd District using the name "JULIAN M.L. COSETENG."5 On order of Branch 77 of the Quezon City RTC,6 respondent amended his petition by alleging therein compliance with the 3-year residency requirement under Section 2, Rule 103] of the Rules of Court.7 The notice setting the petition for hearing on November 20, 2008 was published in the newspaper Broadside in its issues of October 31-November 6, 2008, November 7-13, 2008, and November 14-20, 2008.8 And a copy of the notice was furnished the Office of the Solicitor General (OSG). No opposition to the petition having been filed, an order of general default was entered by the trial court which then allowed respondent to present evidence ex parte.9 By Decision of January 8, 2009,10 the trial court granted respondents petition and directed the Civil Registrar of Makati City to: 1. Delete the entry "March 26, 1972" in Item 24 for "DATE AND PLACE OF MARRIAGE OF PARTIES" [in herein respondents Certificate of live Birth]; 2. Correct the entry "MAGPAYO" in the space for the Last Name of the [respondent] to "COSETENG"; 3. Delete the entry "COSETENG" in the space for Middle Name of the [respondent]; and 4. Delete the entry "Fulvio Miranda Magpayo, Jr." in the space for FATHER of the [respondent] (emphasis and underscoring supplied; capitalization in the original) The Republic of the Philippines (Republic) filed a motion for reconsideration but it was denied by the trial court by Order of July 2, 2009,11 hence, it, thru the OSG, lodged the present petition for review to the Court on pure question of law. The Republic assails the decision in this wise: I. . . . THE PETITION FOR CHANGE OF NAMEINVOLVES THE CHANGE OF [RESPONDENTS] CIVIL STATUS FROM LEGITIMATE TO ILLEGITIMATE AND, THEREFORE, SHOULD BE MADE THROUGH APPROPRIATE ADVERSARIAL PROCEEDINGS II. THE TRIAL COURT EXCEEDED ITS JURISDICTION WHEN IT DIRECTED THE DELETION OF THE NAME OF RESPONDENTS FATHER FROM HIS BIRTH CERTIFICATE.12 (emphasis and underscoring supplied)

The Republic contends that the deletion of the entry on the date and place of marriage of respondents parents from his birth certificate has the effect of changing his civil status from legitimate to illegitimate, hence, any change in civil status of a person must be effected through an appropriate adversary proceeding.13 The Republic adds that by ordering the deletion of respondents parents date of marriage and the name of respondents father from the entries in respondents birth certificate,14 the trial court exceeded its jurisdiction, such order not being in accord with respondents prayer reading: WHEREFORE, premises considered, it is most respectfully prayed that the Honorable Court issue an order allowing the change of name of petitioner from JULIAN EDWARD EMERSON COSETENG MAGPAYO to JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG, and that the Honorable Court order the Local Civil Registrar and all other relevant government agencies to reflect the said change of name in their records. Petitioner prays for other reliefs deemed proper under the premises. 15 (underscoring supplied) Respondent counters that the proceeding before the trial court was adversarial in nature. He cites the serving of copies of the petition and its annexes upon the Civil Registrar of Makati, the Civil Registrar General, and the OSG; the posting of copies of the notice of hearing in at least four public places at least ten days before the hearing; the delegation to the OSG by the City Prosecutor of Quezon City to appear on behalf of the Republic; the publication of the notice of hearing in a newspaper of general circulation for three consecutive weeks; and the fact that no oppositors appeared on the scheduled hearing.16 The petition is impressed with merit. A person can effect a change of name under Rule 103 (CHANGE OF NAME) using valid and meritorious grounds including (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence such as legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.17 Respondents reason for changing his name cannot be considered as one of, or analogous to, recognized grounds, however. The present petition must be differentiated from Alfon v. Republic of the Philippines.18 In Alfon, the Court allowed the therein petitioner, Estrella Alfon, to use the name that she had been known since childhood in order to avoid confusion. Alfon did not deny her legitimacy, however. She merely sought to use the surname of her mother which she had been using since childhood. Ruling in her favor, the Court held that she was lawfully entitled to use her mothers surname, adding that the avoidance of confusion was justification enough to allow her to do so. In the present case, however, respondent denies his legitimacy. The change being sought in respondents petition goes so far as to affect his legal status in relation to his parents. It seeks to change his legitimacy to that of illegitimacy. Rule 103 then would not suffice to grant respondents supplication. Labayo-Rowe v. Republic19 categorically holds that "changes which may affect the civil status from legitimate to illegitimate . . . are substantial and controversial alterations which can only be allowed after appropriate adversary proceedings . . ." Since respondents desired change affects his civil status from legitimate to illegitimate, Rule 108 applies. It reads: SECTION 1. Who may file petition.Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the [RTC] of the province where the corresponding civil registry is located.

xxxx SEC. 3. Parties.When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. (emphasis, italics and underscoring supplied) Rule 108 clearly directs that a petition which concerns ones civil status should be filed in the civil registry in which the entry is sought to be cancelled or corrected that of Makati in the present case, and "all persons who have or claim any interest which would be affected thereby" should be made parties to the proceeding. As earlier stated, however, the petition of respondent was filed not in Makati where his birth certificate was registered but in Quezon City. And as the above-mentioned title of the petition filed by respondent before the RTC shows, neither the civil registrar of Makati nor his father and mother were made parties thereto. Respondent nevertheless cites Republic v. Capote20 in support of his claim that his change of name was effected through an appropriate adversary proceeding. Republic v. Belmonte,21 illuminates, however: The procedure recited in Rule 103] regarding change of name and in Rule 108 concerning the cancellation or correction of entries in the civil registry are separate and distinct. They may not be substituted one for the other for the sole purpose of expediency. To hold otherwise would render nugatory the provisions of the Rules of Court allowing the change of ones name or the correction of entries in the civil registry only upon meritorious grounds. . . . (emphasis, capitalization and underscoring supplied) Even assuming arguendo that respondent had simultaneously availed of these two statutory remedies, respondent cannot be said to have sufficiently complied with Rule 108. For, as reflected above, aside from improper venue, he failed to implead the civil registrar of Makati and all affected parties as respondents in the case. Republic v. Labrador22 mandates that "a petition for a substantial correction or change of entries in the civil registry should have as respondents the civil registrar, as well as all other persons who have or claim to have any interest that would be affected thereby." It cannot be gainsaid that change of status of a child in relation to his parents is a substantial correction or change of entry in the civil registry. Labayo-Rowe23 highlights the necessity of impleading indispensable parties in a petition which involves substantial and controversial alterations. In that case, the therein petitioner Emperatriz Labayo-Rowe (Emperatriz) filed a petition for the correction of entries in the birth certificates of her children, Vicente Miclat, Jr. and Victoria Miclat, in the Civil Registry of San Fernando, Pampanga. Emperatriz alleged that her name appearing in the birth certificates is Beatriz, which is her nickname, but her full name is Emperatriz; and her civil status appearing in the birth certificate of her daughter Victoria as "married" on "1953 Bulan" are erroneous because she was not married to Vicente Miclat who was the one who furnished the data in said birth certificate. The trial court found merit in Emperatrizs petition and accordingly directed the local civil registrar to change her name appearing in her childrens birth certificates from Beatriz to Emperatriz; and to correct her civil status in Victorias birth certificate from "married" to "single" and the date and place of marriage to "no marriage." On petition before this Court after the Court of Appeals found that the order of the trial court involved a question of law, the Court nullified the trial courts order directing the change of Emperatriz civil status and the filiation of her child Victoria in light of the following observations:

x x x x Aside from the Office of the Solicitor General, all other indispensable parties should have been made respondents. They include not only the declared father of the child but the child as well, together with the paternal grandparents, if any, as their hereditary rights would be adversely affected thereby. All other persons who may be affected by the change should be notified or represented. The truth is best ascertained under an adversary system of justice. The right of the child Victoria to inherit from her parents would be substantially impaired if her status would be changed from "legitimate" to "illegitimate." Moreover, she would be exposed to humiliation and embarrassment resulting from the stigma of an illegitimate filiation that she will bear thereafter. The fact that the notice of hearing of the petition was published in a newspaper of general circulation and notice thereof was served upon the State will not change the nature of the proceedings taken. Rule 108, like all the other provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making authority under Section 13, Article VIII of the 1973 Constitution, which directs that such rules "shall not diminish, increase or modify substantive rights." If Rule 108 were to be extended beyond innocuous or harmless changes or corrections of errors which are visible to the eye or obvious to the understanding, so as to comprehend substantial and controversial alterations concerning citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, without observing the proper proceedings as earlier mentioned, said rule would thereby become an unconstitutional exercise which would tend to increase or modify substantive rights. This situation is not contemplated under Article 412 of the Civil Code.24 (emphasis, italics and underscoring supplied) As for the requirement of notice and publication, Rule 108 provides: SEC. 4. Notice and publication.Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. SEC. 5. Opposition.The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto. (emphasis and underscoring supplied) A reading of these related provisions readily shows that Rule 108 clearly mandates two sets of notices to different "potential oppositors." The first notice is that given to the "persons named in the petition" and the second (which is through publication) is that given to other persons who are not named in the petition but nonetheless may be considered interested or affected parties, such as creditors. That two sets of notices are mandated under the above-quoted Section 4 is validated by the subsequent Section 5, also above-quoted, which provides for two periods (for the two types of "potential oppositors") within which to file an opposition (15 days from notice or from the last date of publication). This is the overriding principle laid down in Barco v. Court of Appeals.25 In that case, Nadina Maravilla (Nadina) filed a petition for correction of entries in the birth certificate of her daughter June from June Salvacion Maravilla to June Salvacion "Gustilo," Armando Gustilo being, according to Nadina, her daughters real father. Gustilo in fact filed before the trial court a "CONSTANCIA" wherein he acknowledged June as his daughter. The trial court granted the petition. After Gustilo died, his son Jose Vicente Gustilo filed with the Court of Appeals a petition for annulment of the Order of the trial court granting the change of Junes family name to Gustilo. Milagros Barco (Barco), natural guardian of her minor daughter Mary Joy Ann Gustilo, filed before the appellate court a motion for intervention, alleging that Mary Joy had a legal interest in the annulment of the trial courts Order as Mary Joy was, by Barcos claim, also fathered by Gustilo. The appellate court dismissed the petition for annulment and complaint-inintervention. On appeal by Barco, this Court ruled that she should have been impleaded in Nadinas petition for correction of entries of the birth certificate of Mary Joy.

But since a petitioner, like Nadina, is not expected to exhaustively identify all the affected parties, the subsequent publication of the notice cured the omission of Barco as a party to the case. Thus the Court explained: Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108.1awphi1 Her interest was affected by the petition for correction, as any judicial determination that June was the daughter of Armando would affect her wards share in the estate of her father. It cannot be established whether Nadina knew of Mary Joys existence at the time she filed the petition for correction. Indeed, doubt may always be cast as to whether a petitioner under Rule 108 would know of all the parties whose interests may be affected by the granting of a petition. For example, a petitioner cannot be presumed to be aware of all the legitimate or illegitimate offsprings of his/her spouse or paramour. x x x x. xxxx The purpose precisely of Section 4, Rule 108 is to bind the whole world to the subsequent judgment on the petition. The sweep of the decision would cover even parties who should have been impleaded under Section 3, Rule 108 but were inadvertently left out. x x x x.26 (emphasis, italics and underscoring supplied) Meanwhile, in Republic v. Kho,27 Carlito Kho (Carlito) and his siblings named the civil registrar as the sole respondent in the petition they filed for the correction of entries in their respective birth certificates in the civil registry of Butuan City, and correction of entries in the birth certificates of Carl itos minor children. Carlito and his siblings requested the correction in their birth certificates of the citizenship of their mother Epifania to "Filipino," instead of "Chinese," and the deletion of the word "married" opposite the phrase "Date of marriage of parents" because their parents Juan and Epifania were not married. And Carlito requested the correction in the birth certificates of their children of his and his wifes date of marriage to reflect the actual date of their marriage as appearing in their marriage certificate. In the course of the hearing of the petition, Carlito also sought the correction of the name of his wife from Maribel to "Marivel." The Khos mother Epifania took the witness stand where she declared that she was not married to Juan who died before the filing of the Khos petition. The trial court granted the petition. On the issue of whether the failure to implead Marivel and the Khos parents rendered the trial of the petition short of the required adversary proceedings and the trial courts judgment void, this Court held that when all the procedural requirements under Rule 108 are followed, the publication of the notice of hearing cures the failure to implead an indispensable party. In so ruling, the Court noted that the affected parties were already notified of the proceedings in the case since the petitioner-siblings Khos were the ones who initiated the petition respecting their prayer for correction of their citizenship, and Carlito respecting the actual date of his marriage to his wife; and, with respect to the Khos petition for change of their civil status from legitimate to illegitimate, their mother Epifania herself took the witness stand declaring that she was not married to their father. What is clear then in Barco and Kho is the mandatory directive under Section 3 of Rule 108 to implead the civil registrar and the parties who would naturally and legally be affected by the grant of a petition for correction or cancellation of entries. Non-impleading, however, as party-respondent of one who is inadvertently left out or is not established to be known by the petitioner to be affected by the grant of the petition or actually participates in the proceeding is notified through publication. IN FINE, when a petition for cancellation or correction of an entry in the civil register involves substantial and controversial alterations including those on citizenship, legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements of Rule 108 of the Rules of Court is mandated. WHEREFORE, the petition is, in light of the foregoing discussions, GRANTED. The January 8, 2009 Decision of Branch 77 of the Regional Trial Court of Quezon City in SP Proc. No. Q-0863058 is NULLIFIED. --

MARIANO ANDAL, assisted by mother Maria Dueas as guardian ad litem, and MARIA DUEAS vs. EDUVIGIS MACARAIG Mariano Andal, a minor, assisted by his mother Maria Dueas, as guardian ad litem, brought an action in the Court of First Instance of Camarines Sur for the recovery of the ownership and possession of a parcel of land situated in the barrio of Talacop, Calabanga, Camarines Sur. The complaint alleges that Mariano Andal is the surviving son of Emiliano Andal and Maria Dueas; that Emiliano Andal died on September 24, 1942; that Emiliano Andal was the owner of the parcel of land in question having acquired it from his mother Eduvigis Macaraig by virtue of a donation propter nuptias executed by the latter in favor of the former; that Emiliano Andal had been in possession of the land from 1938 up to 1942, when Eduvigis Macaraig, taking advantage of the abnormal situation then prevailing, entered the land in question. The lower court rendered judgment in favor of the plaintiffs (a) declaring Mariano Andal the legitimate son of Emiliano Andal and such entitled to inherit the land in question; (b) declaring Mariano Andal owner of said land; and (c) ordering the defendant to pay the costs of suit. Defendant took the case to this Court upon the plea that only question of law are involved. It appears undisputed that the land in question was given by Eduvigis Macaraig to her son Emiliano Andal by virtue of a donation propter nuptias she has executed in his favor on the occasion of his marriage to Maria Dueas. If the son born to the couple is deemed legitimate, then he is entitled to inherit the land in question. If otherwise, then the land should revert back to Eduvigis Macaraig as the next of kin entitled to succeed him under the law. The main issue, therefore, to be determined hinges on the legitimacy of Mariano Andal in so far as his relation to Emiliano Andal is concerned. The determination of this issue much depends upon the relationship that had existed between Emiliano Andal and his wife during the period of conception of the child up to the date of his birth in connection with the death of the alleged father Emiliano Andal. The following facts appear to have been proven: Emiliano Andal became sick of tuberculosis in January 1941. Sometime thereafter, his brother, Felix, went to live in his house to help him work his house to help him work his farm. His sickness became worse that on or about September 10, 1942, he became so weak that he could hardly move and get up from his bed. On September 10, 1942, Maria Duenas, his wife, eloped with Felix, and both went to live in the house of Maria's father, until the middle of 1943. Since May, 1942, Felix and Maria had sexual intercourse and treated each other as husband and wife. On January 1, 1943, Emiliano died without the presence of his wife, who did not even attend his funeral. On June 17, 1943, Maria Dueas gave birth to a boy, who was given the name of Mariano Andal. Under these facts, can the child be considered as the legitimate son of Emiliano? Article 108 of the Civil Code provides: Children born after the one hundred and eighty days next following that of the celebration of marriage or within the three hundred days next following its dissolution or the separation of the spouses shall be presumed to be legitimate. This presumption may be rebutted only by proof that it was physically impossible for the husband to have had access to his wife during the first one hundred and twenty days of the three hundred next preceding the birth of the child. Since the boy was born on June 17, 1943, and Emiliano Andal died on January 1, 1943, that boy is presumed to be the legitimate son of Emiliano and his wife, he having been born within three hundred (300) days following the dissolution of the marriage. This presumption can only be rebutted by proof that it was physically impossible for the husband to have had access to his wife during the first 120 days of the 300 next preceding the birth of the child. Is there any evidence to prove that it was physically impossible for Emiliano to have such access? Is the fact that Emiliano was sick of tuberculosis and was so weak that he could hardly move and get up from his bed sufficient to overcome this presumption? Manresa on this point says: Impossibility of access by husband to wife would include (1) absence during the initial period of conception, (2) impotence

which is patent, continuing and incurable, and (3) imprisonment, unless it can be shown that cohabitation took place through corrupt violation of prison regulations. Manresa, 492-500, Vol. I, cited by Dr. Arturo Tolentino in his book "Commentaries and Jurisprudence on the Civil Code, Vol. 1, p.90)." There was no evidence presented that Emiliano Andal was absent during the initial period of conception, specially during the period comprised between August 21, 1942 and September 10, 1942, which is included in the 120 days of the 300 next preceding the birth of the child Mariano Andal. On the contrary, there is enough evidence to show that during that initial period, Emiliano Andal and his wife were still living under the marital roof. Even if Felix, the brother, was living in the same house, and he and the wife were indulging in illicit intercourse since May, 1942, that does not preclude cohabitation between Emiliano and his wife. We admit that Emiliano was already suffering from tuberculosis and his condition then was so serious that he could hardly move and get up from bed, his feet were swollen and his voice hoarse. But experience shows that this does not prevent carnal intercourse. There are cases where persons suffering from this sickness can do the carnal act even in the most crucial stage because they are more inclined to sexual intercourse. As an author has said, "the reputation of the tuberculosis towards eroticism (sexual propensity) is probably dependent more upon confinement to bed than the consequences of the disease." (An Integrated Practice of Medicine, by Hyman, Vol. 3, p.2202). There is neither evidence to show that Emiliano was suffering from impotency, patent, continuous and incurable, nor was there evidence that he was imprisoned. The presumption of legitimacy under the Civil Code in favor of the child has not, therefore, been overcome. We can obtain the same result viewing this case under section 68, par. (c) of Rule 123, of the Rules of Court, which is practically based upon the same rai'son d'etre underlying the Civil Code. Said section provides: The issue of a wife cohabiting with the husband who is not impotent, is indisputably presumed to be legitimate, if not born within one hundred eighty days immediately succeeding the marriage, or after the expiration of three hundred days following its dissolution. We have already seen that Emiliano and his wife were living together, or at least had access one to the other, and Emiliano was not impotent, and the child was born within three (300) days following the dissolution of the marriage. Under these facts no other presumption can be drawn than that the issue is legitimate. We have also seen that this presumption can only be rebutted by clear proof that it was physically or naturally impossible for them to indulge in carnal intercourse. And here there is no such proof. The fact that Maria Dueas has committed adultery can not also overcome this presumption (Tolentino's Commentaries on the Civil Code, Vol. I, p. 92). In view of all the foregoing, we are constrained to hold that the lower court did not err in declaring Mariano Andal as the legitimate son of the spouses Emiliano Andal and Maria Dueas. Wherefore, the decision appealed from is affirmed, without pronouncement as to costs. -GERARDO B. CONCEPCION, petitioner, vs. COURT OF APPEALS and MA. THERESA ALMONTE, respondents. The child, by reason of his mental and physical immaturity, needs special safeguard and care, including appropriate legal protection before as well as after birth.[1] In case of assault on his rights by those who take advantage of his innocence and vulnerability, the law will rise in his defense with the singleminded purpose of upholding only his best interests. This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on December 29, 1989.[2] After their marriage, they lived with Ma. Theresas parents in Fairview, Quezon City.[3] Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose Gerardo.[4] Gerardo and Ma. Theresas relationship turned out to be short -lived, however. On December 19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground of bigamy.[5] He alleged

that nine years before he married Ma. Theresa on December 10, 1980, she had married one Mario Gopiao, which marriage was never annulled.[6] Gerardo also found out that Mario was still alive and was residing in Loyola Heights, Quezon City.[7] Ma. Theresa did not deny marrying Mario when she was twenty years old. She, however, averred that the marriage was a sham and that she never lived with Mario at all.[8] The trial court ruled that Ma. Theresas marriage to Mario was valid and subsisting when she married Gerardo and annulled her marriage to the latter for being bigamous. It declared Jose Gerardo to be an illegitimate child as a result. The custody of the child was awarded to Ma. Theresa while Gerardo was granted visitation rights.[9] Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage annulled. She held him responsible for the bastardization of Gerardo. She moved for the reconsideration of the above decision INSOFAR ONLY as that portion of the decision which grant(ed) to the petitioner so-called visitation rights between the hours of 8 in the morning to 12:00 p.m. of any Sunday.[10] She argued that there was nothing in the law granting visitation rights in favor of the putative father of an illegitimate child.[11] She further maintained that Jose Gerardos surname should be changed from Concepcion to Almonte, her maiden name, following the rule that an illegitimate child shall use the mothers surname. Gerardo opposed the motion. He insisted on his visitation rights and the retention of Concepcion as Jose Gerardos surname. Applying the best interest of the child principle, the trial court denied Ma. Theresas motion and made the following observations: It is a pity that the parties herein seem to be using their son to get at or to hurt the other, something they should never do if they want to assure the normal development and well-being of the boy. The Court allowed visitorial rights to the father knowing that the minor needs a father, especially as he is a boy, who must have a father figure to recognize something that the mother alone cannot give. Moreover, the Court believes that the emotional and psychological well-being of the boy would be better served if he were allowed to maintain relationships with his father. There being no law which compels the Court to act one way or the other on this matter, the Court invokes the provision of Art. 8, PD 603 as amended, otherwise known as the Child and Youth Welfare Code, to wit: In all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration. WHEREFORE, the respondents Motion for Reconsideration has to be, as it is hereby DENIED.[12] Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of the trial court granting visitation rights to Gerardo. She likewise opposed the continued use of Gerardos surname (Concepcion) despite the fact that Jose Gerardo had already been declared illegitimate and should therefore use her surname (Almonte). The appellate court denied the petition and affirmed in toto the decision of the trial court.[13] On the issue raised by Ma. Theresa that there was nothing in the law that granted a putative father visitation rights over his illegitimate child, the appellate court affirmed the best interest of the child policy invoked by the court a quo. It ruled that [a]t bottom, it (was) the childs welfare and not the convenience of the parents which (was) the primary consideration in granting visitation rights a few hours once a week.[14] The appellate court likewise held that an illegitimate child cannot use the mothers surname motu proprio. The child, represented by the mother, should file a separate proceeding for a change of name under Rule 103 of the Rules of Court to effect the correction in the civil registry.[15] Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate court. She also filed a motion to set the case for

oral arguments so that she could better ventilate the issues involved in the controversy. After hearing the oral arguments of the respective counsels of the parties, the appellate court resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage: It is, therefore, undeniable established by the evidence in this case that the appellant [Ma. Theresa] was married to Mario Gopiao, and that she had never entered into a lawful marriage with the appellee [Gerardo] since the socalled marriage with the latter was void ab initio. It was [Gerardo] himself who had established these facts. In other words, [Ma. Theresa] was legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8, 1990. Therefore, the child Jose Gerardo under the law is the legitimate child of the legal and subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the illegitimate child of the void and non-existent marriage between [Ma. Theresa] and [Gerardo], but is said by the law to be the child of the legitimate and existing marriage between [Ma. Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly saying that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo. Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis (even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it would tend to destroy the existing marriage between [Ma. Theresa] and Gopiao, would prevent any possible rapproachment between the married couple, and would mean a judicial seal upon an illegitimate relationship.[16] The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that Jose Gerardo was their son. It gave little weight to Jose Gerardos birth certificate showing that he was born a little less than a year after Gerardo and Ma. Theresa were married: We are not unaware of the movants argument that various evidence exist that appellee and the appellant have judicially admitted that the minor is their natural child. But, in the same vein, We cannot overlook the fact that Article 167 of the Family Code mandates: The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (underscoring ours) Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her legitimate status on the bare declaration of the mother and/or even much less, the supposed father. In fine, the law and only the law determines who are the legitimate or illegitimate children for ones legitimacy or illegitimacy cannot ever be compromised. Not even the birth certificate of the minor can change his status for the information contained therein are merely supplied by the mother and/or the supposed father. It should be what the law says and not what a parent says it is.[17] (Emphasis supplied) Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same was denied.[18] Hence, this appeal. The status and filiation of a child cannot be compromised.[19] Article 164 of the Family Code is clear. A child who is conceived or born during the marriage of his parents is legitimate.[20] As a guaranty in favor of the child[21] and to protect his status of legitimacy, Article 167 of the Family Code provides: Article 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. The law requires that every reasonable presumption be made in favor of legitimacy.[22] We explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals[23]: The presumption of legitimacy does not only flow out of a declaration in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. It is grounded on the policy to protect the innocent offspring from the odium of illegitimacy.

Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has no standing in law to dispute the status of Jose Gerardo. Only Ma. Theresas husband Mario or, in a proper case,[25] his heirs, who can contest the legitimacy of the child Jose Gerardo born to his wife.[26] Impugning the legitimacy of a child is a strictly personal right of the husband or, in exceptional cases, his heirs.[27] Since the marriage of Gerardo and Ma. Theresa was void from the very beginning, he never became her husband and thus never acquired any right to impugn the legitimacy of her child. The presumption of legitimacy proceeds from the sexual union in marriage, particularly during the period of conception.[28] To overthrow this presumption on the basis of Article 166 (1)(b) of the Family Code, it must be shown beyond reasonable doubt that there was no access that could have enabled the husband to father the child.[29] Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary.[30] The presumption is quasi-conclusive and may be refuted only by the evidence of physical impossibility of coitus between husband and wife within the first 120 days of the 300 days which immediately preceded the birth of the child.[31] To rebut the presumption, the separation between the spouses must be such as to make marital intimacy impossible.[32] This may take place, for instance, when they reside in different countries or provinces and they were never together during the period of conception.[33] Or, the husband was in prison during the period of conception, unless it appears that sexual union took place through the violation of prison regulations.[34] Here, during the period that Gerardo and Ma. Theresa were living together in Fairview, Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview and Loyola Heights are only a scant four kilometers apart. Not only did both Ma. Theresa and Mario reside in the same city but also that no evidence at all was presented to disprove personal access between them. Considering these circumstances, the separation between Ma. Theresa and her lawful husband, Mario, was certainly not such as to make it physically impossible for them to engage in the marital act. Sexual union between spouses is assumed. Evidence sufficient to defeat the assumption should be presented by him who asserts the contrary. There is no such evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa and Mario, stands. Gerardo relies on Ma. Theresas statement in her answer[35] to the petition for annulment of marriage[36] that she never lived with Mario. He claims this was an admission that there was never any sexual relation between her and Mario, an admission that was binding on her. Gerardos argument is without merit. First, the import of Ma. Theresas statement is that Jose Gerardo is not her legitimate son with Mario but her illegitimate son with Gerardo. This declaration an avowal by the mother that her child is illegitimate is the very declaration that is proscribed by Article 167 of the Family Code. The language of the law is unmistakable. An assertion by the mother against the legitimacy of her child cannot affect the legitimacy of a child born or conceived within a valid marriage. Second, even assuming the truth of her statement, it does not mean that there was never an instance where Ma. Theresa could have been together with Mario or that there occurred absolutely no intercourse between them. All she said was that she never lived with Mario. She never claimed that nothing ever happened between them. Telling is the fact that both of them were living in Quezon City during the time material to Jose Gerardos conception and birth. Far from foreclosing the possibility of marital intimacy, their proximity to each other only serves to reinforce such possibility. Thus, the impossibility of physical access was never established beyond reasonable doubt.

Third, to give credence to Ma. Theresas statement is to allow her to arrogate unto herself a right exclusively lodged in the husband, or in a proper case, his heirs.[37] A mother has no right to disavow a child because maternity is never uncertain.[38] Hence, Ma. Theresa is not permitted by law to question Jose Gerardos legitimacy. Finally, for reasons of public decency and morality, a married woman cannot say that she had no intercourse with her husband and that her offspring is illegitimate.[39] The proscription is in consonance with the presumption in favor of family solidarity. It also promotes the intention of the law to lean toward the legitimacy of children.[40] Gerardos insistence that the filiation of Jose Gerardo was never an issue both in the trial court and in the appellate court does not hold water. The fact that both Ma. Theresa and Gerardo admitted and agreed that Jose Gerardo was born to them was immaterial. That was, in effect, an agreement that the child was illegitimate. If the Court were to validate that stipulation, then it would be tantamount to allowing the mother to make a declaration against the legitimacy of her child and consenting to the denial of filiation of the child by persons other than her husband. These are the very acts from which the law seeks to shield the child. Public policy demands that there be no compromise on the status and filiation of a child.[41] Otherwise, the child will be at the mercy of those who may be so minded to exploit his defenselessness. The reliance of Gerardo on Jose Gerardos birth certificate is misplaced. It has no evidentiary value in this case because it was not offered in evidence before the trial court. The rule is that the court shall not consider any evidence which has not been formally offered.[42] Moreover, the law itself establishes the status of a child from the moment of his birth.[43] Although a record of birth or birth certificate may be used as primary evidence of the filiation of a child,[44] as the status of a child is determined by the law itself, proof of filiation is necessary only when the legitimacy of the child is being questioned, or when the status of a child born after 300 days following the termination of marriage is sought to be established.[45] Here, the status of Jose Gerardo as a legitimate child was not under attack as it could not be contested collaterally and, even then, only by the husband or, in extraordinary cases, his heirs. Hence, the presentation of proof of legitimacy in this case was improper and uncalled for. In addition, a record of birth is merely prima facie evidence of the facts contained therein.[46] As prima facie evidence, the statements in the record of birth may be rebutted by more preponderant evidence. It is not conclusive evidence with respect to the truthfulness of the statements made therein by the interested parties.[47] Between the certificate of birth which is prima facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of law (rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail. Not only does it bear more weight, it is also more conducive to the best interests of the child and in consonance with the purpose of the law. It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos illegitimacy while claiming that they both had the childs interests at heart. The law, reason and common sense dictate that a legitimate status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the surnames of both his father and mother, full support and full inheritance.[48] On the other hand, an illegitimate child is bound to use the surname and be under the parental authority only of his mother. He can claim support only from a more limited group and his legitime is only half of that of his legitimate counterpart.[49] Moreover (without unwittingly exacerbating the discrimination against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark of dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo favors his interest. It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the very persons who were passionately declaring their concern for him. The paradox was that he was made to suffer supposedly for his own sake. This madness should end.

This case has been pending for a very long time already. What is specially tragic is that an innocent child is involved. Jose Gerardo was barely a year old when these proceedings began. He is now almost fifteen and all this time he has been a victim of incessant bickering. The law now comes to his aid to write finis to the controversy which has unfairly hounded him since his infancy. Having only his best interests in mind, we uphold the presumption of his legitimacy. As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario and mother Ma. Theresa, in conformity with the provisions of the Civil Code on surnames.[50] A persons surname or family name identifies the family to which he belongs and is passed on from parent to child.[51] Hence, Gerardo cannot impose his surname on Jose Gerardo who is, in the eyes of the law, not related to him in any way. The matter of changing Jose Gerardos name and effecting the corrections of the entries in the civil register regarding his paternity and filiation should be threshed out in a separate proceeding. In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family Code grants visitation rights to a parent who is deprived of custody of his children. Such visitation rights flow from the natural right of both parent and child to each others company. There being no such parentchild relationship between them, Gerardo has no legally demandable right to visit Jose Gerardo. Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the Child and Youth Welfare Code, is clear and unequivocal: Article 8. Childs Welfare Paramount. In all questions regarding the care, custody, education and property of the child, his welfare shall be the paramount consideration. Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic: Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. The State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development. It is mandated to provide protection to those of tender years.[52] Through its laws, the State safeguards them from every one, even their own parents, to the end that their eventual development as responsible citizens and members of society shall not be impeded, distracted or impaired by family acrimony. This is especially significant where, as in this case, the issue concerns their filiation as it strikes at their very identity and lineage. WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED. -LUCAS vs. LUCAS

On July 26, 2007, petitioner, Jesse U. Lucas, filed a Petition to Establish Illegitimate Filiation (with Motion for the Submission of Parties to DNA Testing) [2] before the Regional Trial Court (RTC), Branch 72, Valenzuela City. Petitioner narrated that, sometime in 1967, his mother, Elsie Uy (Elsie), migrated to Manila from Davao and stayed with a certain Ate Belen (Belen) who worked in a prominent nightspot in Manila. Elsie would oftentimes accompany Belen to work. On one occasion, Elsie got acquainted with respondent, Jesus S. Lucas, at Belens workplace, and an intimate relationship developed between the two. Elsie eventually got pregnant and, on March 11, 1969, she gave birth to petitioner, Jesse U. Lucas. The name of petitioners father was not stated in petitioners certificate of live bi rth. However, Elsie later on told petitioner that his father is respondent. On August 1, 1969, petitioner was baptized at San Isidro Parish, Taft Avenue, Pasay City. Respondent allegedly extended financial support to Elsie and petitioner for a period of about two years. When the relationship of Elsie and respondent ended, Elsie refused to accept respondents offer of support and decided to raise petitioner on her own. While petitioner was growing up, Elsie made several attempts to introduce petitioner to respondent, but all attempts were in vain. Attached to the petition were the following: (a) petitioners certificate of live birth; (b) petitioners baptismal certificate; (c) petitioners college diploma, showing that he graduated from Saint Louis University in Baguio City with a degree in Psychology; (d) his Certificate of Graduation from the same school; (e) Certificate of Recognition from the University of the Philippines, College of Music; and (f) clippings of several articles from different newspapers about petitioner, as a musical prodigy. Respondent was not served with a copy of the petition. Nonetheless, respondent learned of the petition to establish filiation. His counsel therefore went to the trial court on August 29, 2007 and obtained a copy of the petition. Petitioner filed with the RTC a Very Urgent Motion to Try and Hear the Case. Hence, on September 3, 2007, the RTC, finding the petition to be sufficient in form and substance, issued the Order [3] setting the case for hearing and urging anyone who has any objection to the petition to file his opposition. The court also directed that the Order be published once a week for three consecutive weeks in any newspaper of general circulation in the Philippines, and that the Solicitor General be furnished with copies of the Order and the petition in order that he may appear and represent the State in the case.

On September 4, 2007, unaware of the issuance of the September 3, 2007 Order, respondent filed a Special Appearance and Comment. He manifested inter alia that: (1) he did not receive the summons and a copy of the petition; (2) the petition was adversarial in nature and therefore summons should be served on him as respondent; (3) should the court agree that summons was required, he was waiving service of summons and making a voluntary appearance; and (4) notice by publication of the petition and the hearing was improper because of the confidentiality of the subject matter. [4] On September 14, 2007, respondent also filed a Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Respondent reiterated that the petition for recognition is adversarial in nature; hence, he should be served with summons. After learning of the September 3, 2007 Order, respondent filed a motion for reconsideration. [5] Respondent averred that the petition was not in due form and substance because petitioner could not have personally known the matters that were alleged therein. He argued that DNA testing cannot be had on the basis of a mere allegation pointing to respondent as petitioners father. Moreover, jurisprudence is still unsettled on the acceptability of DNA evidence. On July 30, 2008, the RTC, acting on respondents motion for reconsideration, issued an Order [6] dismissing the case. The court remarked that, based on the case of Herrera v. Alba, [7] there are four significant procedural aspects of a traditional paternity action which the parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. The court opined that petitioner must first establish these four procedural aspects

Is a prima facie showing necessary before a court can issue a DNA testing order? In this petition for review on certiorari, we address this question to guide the Bench and the Bar in dealing with a relatively new evidentiary tool. Assailed in this petition are the Court of Appeals (CA) Decision [1] dated September 25, 2009 and Resolution dated December 17, 2009. The antecedents of the case are, as follows:

before he can present evidence of paternity and filiation, which may include incriminating acts or scientific evidence like blood group test and DNA test results. The court observed that the petition did not show that these procedural aspects were present. Petitioner failed to establish a prima facie case considering that (a) his mother did not personally declare that she had sexual relations with respondent, and petitioners statement as to what his mother told him about his father was clearly hearsay; (b) the certificate of live birth was not signed by respondent; and (c) although petitioner used the surname of respondent, there was no allegation that he was treated as the child of respondent by the latter or his family. The court opined that, having failed to establish a prima facie case, respondent had no obligation to present any affirmative defenses. The dispositive portion of the said Order therefore reads: WHEREFORE, for failure of the petitioner to establish compliance with the four procedural aspects of a traditional paternity action in his petition, his motion for the submission of parties to DNA testing to establish paternity and filiation is hereby DENIED. This case is DISMISSED without prejudice. SO ORDERED. [8] Petitioner seasonably filed a motion for reconsideration to the Order dated July 30, 2008, which the RTC resolved in his favor. Thus, on October 20, 2008, it issued the Order [9] setting aside the courts previous order, thus: WHEREFORE, in view of the foregoing, the Order dated July 30, 2008 is hereby reconsidered and set aside. Let the Petition (with Motion for the Submission of Parties to DNA Testing) be set for hearing on January 22, 2009 at 8:30 in the morning. xxxx SO ORDERED. [10]

Accordingly, the case docketed as SP. Proceeding Case No. 30-V-07 is DISMISSED. [14] The CA held that the RTC did not acquire jurisdiction over the person of respondent, as no summons had been served on him. Respondents special appearance could not be considered as voluntary appearance because it was filed only for the purpose of questioning the jurisdiction of the court over respondent. Although respondent likewise questioned the courts jurisdiction over the subject matter of the petition, the same is not equivalent to a waiver of his right to object to the jurisdiction of the court over his person. The CA remarked that petitioner filed the petition to establish illegitimate filiation, specifically seeking a DNA testing order to abbreviate the proceedings. It noted that petitioner failed to show that the four significant procedural aspects of a traditional paternity action had been met. The CA further held that a DNA testing should not be allowed when the petitioner has failed to establish a prima facie case, thus: While the tenor [of Section 4, Rule on DNA Evidence] appears to be absolute, the rule could not really have been intended to trample on the substantive rights of the parties. It could have not meant to be an instrument to promote disorder, harassment, or extortion. It could have not been intended to legalize unwarranted expedition to fish for evidence. Such will be the situation in this particular case if a court may at any time order the taking of a DNA test. If the DNA test in compulsory recognition cases is immediately available to the petitioner/complainant without requiring first the presentation of corroborative proof, then a dire and absurd rule would result. Such will encourage and promote harassment and extortion. xxxx At the risk of being repetitious, the Court would like to stress that it sees the danger of allowing an absolute DNA testing to a compulsory recognition test even if the plaintiff/petitioner failed to establish prima facie proof. x x x If at anytime, motu proprio and without pre-conditions, the court can indeed order the taking of DNA test in compulsory recognition cases, then the prominent and well-to-do members of our society will be easy prey for opportunists and extortionists. For no cause at all, or even for [sic] casual sexual indiscretions in their younger years could be used as a means to harass them. Unscrupulous women, unsure of the paternity of their children may just be taking the chances-just in case-by pointing to a sexual partner in a long past one-time encounter. Indeed an absolute and unconditional taking of DNA test for compulsory recognition case opens wide the opportunities for extortionist to prey on victims who have no stomach for scandal. [15] Petitioner moved for reconsideration. On December 17, 2009, the CA denied the motion for lack of merit. [16] In this petition for review on certiorari, petitioner raises the following issues: I. WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RESOLVED THE ISSUE OF LACK OF JURISDICTION OVER THE PERSON OF HEREIN RESPONDENT ALBEIT THE SAME WAS NEVER RAISED IN THE PETITION FOR CERTIORARI. I.A WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT JURISDICTION WAS NOT ACQUIRED OVER THE PERSON OF THE RESPONDENT. I.B WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT FAILED TO REALIZE THAT THE RESPONDENT HAD ALREADY SUBMITTED VOLUNTARILY TO THE JURISDICTION OF THE COURT A QUO. I.C WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT THE TITLE OF A PLEADING, RATHER THAN ITS BODY, IS CONTROLLING. II.

This time, the RTC held that the ruling on the grounds relied upon by petitioner for filing the petition is premature considering that a full-blown trial has not yet taken place. The court stressed that the petition was sufficient in form and substance. It was verified, it included a certification against forum shopping, and it contained a plain, concise, and direct statement of the ultimate facts on which petitioner relies on for his claim, in accordance with Section 1, Rule 8 of the Rules of Court. The court remarked that the allegation that the statements in the petition were not of petitioners personal knowledge is a matter of evidence. The court also dismissed respondents arguments that there is no basis for the taking of DNA test, and that jurisprudence is still unsettled on the acceptability of DNA evidence. It noted that the new Rule on DNA Evidence [11] allows the conduct of DNA testing, whether at the courts instance or upon application of any person who has legal interest in the matter in litigation. Respondent filed a Motion for Reconsideration of Order dated October 20, 2008 and for Dismissal of Petition, [12] reiterating that (a) the petition was not in due form and substance as no defendant was named in the title, and all the basic allegations were hearsay; and (b) there was no prima facie case, which made the petition susceptible to dismissal. The RTC denied the motion in the Order dated January 19, 2009, and rescheduled the hearing. [13] Aggrieved, respondent filed a petition for certiorari with the CA, questioning the Orders dated October 20, 2008 and January 19, 2009. On September 25, 2009, the CA decided the petition for certiorari in favor of respondent, thus: WHEREFORE, the instant petition for certiorari is hereby GRANTED for being meritorious. The assailed Orders dated October 20, 2008 and January 19, 2009 both issued by the Regional Trial Court, Branch 172 of Valenzuela City in SP. Proceeding Case No. 30-V-07 are REVERSED and SET ASIDE.

WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ORDERED THE DISMISSAL OF THE PETITION BY REASON OF THE MOTION (FILED BY THE PETITIONER BEFORE THE COURT A QUO) FOR THE CONDUCT OF DNA TESTING. II.A WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT ESSENTIALLY RULED THAT DNA TESTING CAN ONLY BE ORDERED AFTER THE PETITIONER ESTABLISHES PRIMA FACIE PROOF OF FILIATION. III. WHETHER OR NOT THE COURT OF APPEALS ERRED WITH ITS MISPLACED RELIANCE ON THE CASE OF HERRERA VS. ALBA, ESPECIALLY AS REGARDS THE FOUR SIGNIFICANT PROCEDURAL ASPECTS OF A TRADITIONAL PATERNITY ACTION. [17] Petitioner contends that respondent never raised as issue in his petition for certiorari the courts lack of jurisdiction over his person. Hence, the CA had no legal basis to discuss the same, because issues not raised are deemed waived or abandoned. At any rate, respondent had already voluntarily submitted to the jurisdiction of the trial court by his filing of several motions asking for affirmative relief, such as the (a) Motion for Reconsideration of the Order dated September 3, 2007; (b) Ex Parte Motion to Resolve Motion for Reconsideration of the Order dated November 6, 2007; and (c) Motion for Reconsideration of the Order dated October 20, 2008 and for Dismissal of Petition. Petitioner points out that respondent even expressly admitted that he has waived his right to summons in his Manifestation and Comment on Petitioners Very Urgent Motion to Try and Hear the Case. Hence, the issue is already moot and academic. Petitioner argues that the case was adversarial in nature. Although the caption of the petition does not state respondents name, the body of the petition clearly indicates his name and his known address. He maintains that the body of the petition is controlling and not the caption. Finally, petitioner asserts that the motion for DNA testing should not be a reason for the dismissal of the petition since it is not a legal ground for the dismissal of cases. If the CA entertained any doubt as to the propriety of DNA testing, it should have simply denied the motion. [18] Petitioner points out that Section 4 of the Rule on DNA Evidence does not require that there must be a prior proof of filiation before DNA testing can be ordered. He adds that the CA erroneously relied on the four significant procedural aspects of a paternity case, as enunciated in Herrera v. Alba. [19] Petitioner avers that these procedural aspects are not applicable at this point of the proceedings because they are matters of evidence that should be taken up during the trial. [20] In his Comment, respondent supports the CAs ruling on most issues raised in the petition for certiorari and merely reiterates his previous arguments. However, on the issue of lack of jurisdiction, respondent counters that, contrary to petitioners assertion, he raised the issue before the CA in relation to his claim that the petition was not in due form and substance. Respondent denies that he waived his right to the service of summons. He insists that the alleged waiver and voluntary appearance was conditional upon a finding by the court that summons is indeed required. He avers that the assertion of affirmative defenses, aside from lack of jurisdiction over the person of the defendant, cannot be considered as waiver of the defense of lack of jurisdiction over such person. The petition is meritorious. Primarily, we emphasize that the assailed Orders of the trial court were orders denying respondents motion to dismiss the petition for illegitimate filiation. An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally disposes of a case, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari, which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a

motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In a number of cases, the court has granted the extraordinary remedy of certiorari on the denial of the motion to dismiss but only when it has been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction. [21] In the present case, we discern no grave abuse of discretion on the part of the trial court in denying the motion to dismiss. The grounds for dismissal relied upon by respondent were (a) the courts lack of jurisdiction over his person due to the absence of summons, and (b) defect in the form and substance of the petition to establish illegitimate filiation, which is equivalent to failure to state a cause of action. We need not belabor the issues on whether lack of jurisdiction was raised before the CA, whether the court acquired jurisdiction over the person of respondent, or whether respondent waived his right to the service of summons. We find that the primordial issue here is actually whether it was necessary, in the first place, to serve summons on respondent for the court to acquire jurisdiction over the case. In other words, was the service of summons jurisdictional? The answer to this question depends on the nature of petitioners action, that is, whether it is an action in personam, in rem, or quasi in rem. An action in personam is lodged against a person based on personal liability; an action in rem is directed against the thing itself instead of the person; while an action quasi in rem names a person as defendant, but its object is to subject that person's interest in a property to a corresponding lien or obligation. A petition directed against the "thing" itself or the res, which concerns the status of a person, like a petition for adoption, annulment of marriage, or correction of entries in the birth certificate, is an action in rem. [22] In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. In a proceeding in rem or quasi in rem, jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court, provided that the latter has jurisdiction over the res. Jurisdiction over the res is acquired either (a) by the seizure of the property under legal process, whereby it is brought into actual custody of the law, or (b) as a result of the institution of legal proceedings, in which the power of the court is recognized and made effective. [23] The herein petition to establish illegitimate filiation is an action in rem. By the simple filing of the petition to establish illegitimate filiation before the RTC, which undoubtedly had jurisdiction over the subject matter of the petition, the latter thereby acquired jurisdiction over the case. An in rem proceeding is validated essentially through publication. Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort to the right sought to be established. [24] Through publication, all interested parties are deemed notified of the petition. If at all, service of summons or notice is made to the defendant, it is not for the purpose of vesting the court with jurisdiction, but merely for satisfying the due process requirements. [25] This is but proper in order to afford the person concerned the opportunity to protect his interest if he so chooses. [26] Hence, failure to serve summons will not deprive the court of its jurisdiction to try and decide the case. In such a case, the lack of summons may be excused where it is determined that the adverse party had, in fact, the opportunity to file his opposition, as in this case. We find that the due process requirement with respect to respondent has been satisfied, considering that he has participated in the proceedings in this case and he has the opportunity to file his opposition to the petition to establish filiation. To address respondents contention that the petition should have been adversarial in form, we further hold that the herein petition to establish filiation was sufficient in form. It was indeed adversarial in nature despite its caption which lacked the name of a defendant, the failure to implead respondent as defendant, and the non-service of summons upon respondent. A proceeding is adversarial where the party seeking relief has given legal warning to the other party and afforded the latter an opportunity to contest it. [27] In this petitionclassified as an action in remthe notice requirement for an

adversarial proceeding was likewise satisfied by the publication of the petition and the giving of notice to the Solicitor General, as directed by the trial court. The petition to establish filiation is sufficient in substance. It satisfies Section 1, Rule 8 of the Rules of Court, which requires the complaint to contain a plain, concise, and direct statement of the ultimate facts upon which the plaintiff bases his claim. A fact is essential if it cannot be stricken out without leaving the statement of the cause of action inadequate. [28] A complaint states a cause of action when it contains the following elements: (1) the legal right of plaintiff, (2) the correlative obligation of the defendant, and (3) the act or omission of the defendant in violation of said legal right. [29] The petition sufficiently states the ultimate facts relied upon by petitioner to establish his filiation to respondent. Respondent, however, contends that the allegations in the petition were hearsay as they were not of petitioners personal knowledge. Such matter is clearly a matter of evidence that cannot be determined at this point but only during the trial when petitioner presents his evidence. In a motion to dismiss a complaint based on lack of cause of action, the question submitted to the court for determination is the sufficiency of the allegations made in the complaint to constitute a cause of action and not whether those allegations of fact are true, for said motion must hypothetically admit the truth of the facts alleged in the complaint. [30] The inquiry is confined to the four corners of the complaint, and no other. [31] The test of the sufficiency of the facts alleged in the complaint is whether or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance with the prayer of the complaint. [32] If the allegations of the complaint are sufficient in form and substance but their veracity and correctness are assailed, it is incumbent upon the court to deny the motion to dismiss and require the defendant to answer and go to trial to prove his defense. The veracity of the assertions of the parties can be ascertained at the trial of the case on the merits. [33] The statement in Herrera v. Alba [34] that there are four significant procedural aspects in a traditional paternity case which parties have to face has been widely misunderstood and misapplied in this case. A party is confronted by these so-called procedural aspects during trial, when the parties have presented their respective evidence. They are matters of evidence that cannot be determined at this initial stage of the proceedings, when only the petition to establish filiation has been filed. The CAs observation that petitioner failed to establish a prima facie casethe first procedural aspect in a paternity caseis therefore misplaced. A prima facie case is built by a partys evidence and not by mere allegations in the initiatory pleading. Clearly then, it was also not the opportune time to discuss the lack of a prima facie case vis--vis the motion for DNA testing since no evidence has, as yet, been presented by petitioner. More essentially, it is premature to discuss whether, under the circumstances, a DNA testing order is warranted considering that no such order has yet been issued by the trial court. In fact, the latter has just set the said case for hearing. At any rate, the CAs view that it would be dangerous to allow a DNA testing without corroborative proof is well taken and deserves the Courts attention. In light of this observation, we find that there is a need to supplement the Rule on DNA Evidence to aid the courts in resolving motions for DNA testing order, particularly in paternity and other filiation cases. We, thus, address the question of whether a prima facie showing is necessary before a court can issue a DNA testing order. The Rule on DNA Evidence was enacted to guide the Bench and the Bar for the introduction and use of DNA evidence in the judicial system. It provides the prescribed parameters on the requisite elements for reliability and validity (i.e., the proper procedures, protocols, necessary laboratory reports, etc.), the possible sources of error, the available objections to the admission of DNA test results as evidence as well as the probative value of DNA evidence. It seeks to ensure that the evidence gathered, using various methods of DNA analysis, is utilized effectively and properly, [and] shall not be misused and/or abused and, more importantly, shall continue to ensure

that DNA analysis serves justice and protects, rather than prejudice the public. [35] Not surprisingly, Section 4 of the Rule on DNA Evidence merely provides for conditions that are aimed to safeguard the accuracy and integrity of the DNA testing. Section 4 states: SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced. This does not mean, however, that a DNA testing order will be issued as a matter of right if, during the hearing, the said conditions are established. In some states, to warrant the issuance of the DNA testing order, there must be a show cause hearing wherein the applicant must first present sufficient evidence to establish a prima facie case or a reasonable possibility of paternity or good cause for the holding of the test. [36] In these states, a court order for blood testing is considered a search, which, under their Constitutions (as in ours), must be preceded by a finding of probable cause in order to be valid. Hence, the requirement of a prima facie case, or reasonable possibility, was imposed in civil actions as a counterpart of a finding of probable cause. The Supreme Court of Louisiana eloquently explained Although a paternity action is civil, not criminal, the constitutional prohibition against unreasonable searches and seizures is still applicable, and a proper showing of sufficient justification under the particular factual circumstances of the case must be made before a court may order a compulsory blood test. Courts in various jurisdictions have differed regarding the kind of procedures which are required, but those jurisdictions have almost universally found that a preliminary showing must be made before a court can constitutionally order compulsory blood testing in paternity cases. We agree, and find that, as a preliminary matter, before the court may issue an order for compulsory blood testing, the moving party must show that there is a reasonable possibility of paternity. As explained hereafter, in cases in which paternity is contested and a party to the action refuses to voluntarily undergo a blood test, a show cause hearing must be held in which the court can determine whether there is sufficient evidence to establish a prima facie case which warrants issuance of a court order for blood testing. [37] The same condition precedent should be applied in our jurisdiction to protect the putative father from mere harassment suits. Thus, during the hearing on the motion for DNA testing, the petitioner must present prima facie evidence or establish a reasonable possibility of paternity. Notwithstanding these, it should be stressed that the issuance of a DNA testing order remains discretionary upon the court. The court may, for example, consider whether there is absolute necessity for the DNA testing. If there is already preponderance of evidence to establish paternity and the DNA test result would only be corroborative, the court may, in its discretion, disallow a DNA testing. WHEREFORE, premises considered, the petition is GRANTED. The Court of Appeals Decision dated September 25, 2009 and Resolution dated December 17, 2009 are REVERSED and SET ASIDE. The Orders dated

October 20, 2008 and January 19, 2009 of the Regional Trial Court of Valenzuela City are AFFIRMED. -PEOPLE OF THE PHILIPPINES, plaintiff-appellee, QUITORIANO y BRIONES, accused-appellant. vs. EDGARDO

Accused-appellant filed this appeal with its lone assignment of error: The trial court erred in convicting the accused of rape beyond reasonable doubt. [6] We affirm the judgment of conviction. Private complainant's testimony is clear and detailed. Even in the cross-examination, her answers were consistent and unwavering. It is settled that in rape cases, the lone testimony of the victim, if credible, is enough to sustain a conviction. [7] Accused-appellant's alibi cannot prevail over private complainant's testimony. First, private complainant positively identified accused-appellant as the rapist. The kitchen was sufficiently illuminated by a gas lamp when accusedappellant entered. Then, he stood in front of private complainant and stared at her for a moment before dragging her to the bamboo bed, thus allowing her to see his face.[8] Second, accused-appellant failed to prove that it was physically impossible for him to be at the crime scene at the time of its commission. The felony was committed on December 24, 1992, around 9:00 in the evening, in private complainant's house in Barangay Pakaskasan, Torrijos, Marinduque. Accused-appellant testified that on that date, from 7:00 to 10:00 in the evening, he was having a drinking session with Reynaldo Rioflorido in the latter's house. At 10:00, they proceeded to Jose Ampiloquio's residence to attend a party. The house of Rioflorido and that of Ampiloquio are both located in Barangay Pakaskasan. Rioflorido's house is only 200 meters away from private complainant's house.[9] Accused-appellant and Reynaldo even passed by private complainant's house in going to Ampiloquio's house.[10] Accused-appellant also admitted that he could walk a distance of 200 meters in five minutes. [11] Thus, it was not impossible for accusedappellant to slip from Rioflorido's house to go to private complainant's house to carry out his evil deed. Third, accused-appellant failed to show any motive on the part of private complainant to indict him for rape, unless the charges were true. He testified: Q: Do you know of any reason why AAA would accuse you falsely of such serious crime as Rape? A: None, sir.

Accused-appellant Edgardo Quitoriano y Briones was charged before the Regional Trial Court of XXX, Marinduque with the crime of Rape allegedly committed as follows: That on or about the 24th day of December 1992 at around 9:00 o'clock in the evening at barangay XXX, municipality of XXX, province of Marinduque, Philippines and within the jurisdiction of this Honorable Court, the above named accused, armed with a fan knife, entered the dwelling of complainant, who was then alone, and by means of force, intimidation and threats against her life, wilfully, unlawfully and feloniously did lie and succeed in having carnal knowledge of complainant, against her will, and to her damage and prejudice. CONTRARY TO LAW. [1] Accused-appellant pleaded "not guilty". Hence, trial ensued. Private complainant AAA testified that in the evening of December 24, 1992, she was in the kitchen located at the back of their house in Barangay XXX, XXX, Marinduque. The kitchen is about three (3) arms length away from the main house. At about 9:00 in the evening, accused-appellant entered the kitchen, poked a knife on her neck, and dragged her to the bamboo bed ("papag") about one-half arms length from the stove. Accusedappellant laid her down and removed her short pants and underwear. He then took off his pants and had sexual intercourse with her. Private complainant trembled because of fear. Thereafter, accused-appellant warned her not to tell anybody about the incident, or else, he would kill her. Private complainant kept the incident to herself. However, in June 1993, her aunt, BBB discovered that she was pregnant. Thus, private complainant was forced to tell her aunt and her parents about the sexual assault committed against her by accused-appellant on December 24, 1992. On August 2, 1993, private complainant filed a complaint for rape against accusedappellant. [2]Private complainant gave birth on October 31, 1993. [3] Accused-appellant interposed the defense of alibi. He testified that from 7:00 until 10:00 in the evening on December 24, 1992, he was at the house of Paulino Rioflorido in Barangay Pakaskasan, Torrijos, Marinduque. He was then having a drinking session with Reynaldo Rioflorido, the son of Paulino. At 10:00, they attended a party at the house of Jose Ampiloquio which was about 400 meters from the Rioflorido residence. The party ended at around 1:00 in the morning, after which, they proceeded to accusedappellant's house. [4] The trial court found accused-appellant guilty and sentenced him to reclusion perpetua, thus: WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Rape defined and punished under Art. 325 of the Revised Penal Code, committed with the use of a deadly weapon, he should be sentenced to suffer the penalty ranging from reclusion perpetua to death. However, since when the act was committed the death penalty cannot be imposed, he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA (Art. 27, RPC). There being no claim for moral damages, no pronouncement of the same is hereby made. The accused shall be credited with the full extent of his preventive imprisonment under Article 29 of the Revised Penal Code. The accused is likewise ordered to suffer the accessory penalty for reclusion perpetua. The bond posted by the accused for his provisional liberty is hereby cancelled. The body of the accused is hereby committed to the custody of the Director of the Bureau of Corrections, National Penitentiary, Muntinlupa, Metro Manila, thru the Provincial Warden of Marinduque. SO ORDERED. [5]

Q: You have not courted her at any time prior to December 24, 1992? A: No, sir.

Q: In all those occasions you associated once in a while as you said with AAA, you did not find any indication that she loves you? A: No, sir. xxx Court to the witness: Q: Is there any grudge existing between you and AAAs family? A: None, Your Honor. xxx [12] Private complainant's delay in reporting the sexual assault should not be taken against her because accused-appellant threatened to kill her if she tells anybody about it. Private complainant heeded accused-appellant's threat and kept mum about the incident. Her pregnancy, however, forced her to disclose to her aunt and later to her parents, the sexual attack committed against her by accused-appellant. Delay in the filing of a criminal complaint does not necessarily impair the credibility of the witness if such delay is satisfactorily explained.[13] The fact that private complainant gave birth more than ten months after the alleged rape does not discredit her testimony. Dr. Honesto Marquez, a physician from the Marinduque Provincial Hospital, explained that the normal gestation period is 40 weeks or 280 days, but it can also extend beyond 40 weeks if the woman is having her first pregnancy. [14] It is undisputed that the child delivered by private complainant on October 31, 1993 was her first. Hence, it is not impossible that the child was conceived in December, 1992, the date of the alleged rape.

The trial court, therefore, did not err in finding accused-appellant guilty beyond reasonable doubt of the crime of rape. It, however, erred in not awarding moral damages to private complainant. Under our existing jurisprudence, victims of rape are entitled to moral damages of P50,000.00. [15] IN VIEW WHEREOF, the appealed decision is AFFIRMED with the MODIFICATION ordering accused-appellant to pay P50,000.00 to private complainant as moral damages. Costs against accused-appellant. -UY vs. NGO CHUA This is a Petition for Review under Rule 45 of the Rules of Court assailing the Resolution dated 25 June 2008 of the Regional Trial Court (RTC) of Cebu City, Branch 24, which granted the demurrer to evidence of respondent Jose Ngo Chua, resulting in the dismissal of Special Proceeding No. 12562-CEB. Petitioner Joanie Surposa Uy filed on 27 October 2003 before the RTC a Petition [1] for the issuance of a decree of illegitimate filiation against respondent. The Complaint was docketed as Special Proceeding No. 12562CEB, assigned to RTC-Branch 24. Petitioner alleged in her Complaint that respondent, who was then married, had an illicit relationship with Irene Surposa (Irene). Respondent and Irene had two children, namely, petitioner and her brother, Allan. Respondent attended to Irene when the latter was giving birth to petitioner on 27 April 1959, and instructed that petitioners birth certificate be filled out with the following names: ALFREDO F. SURPOSA as father and IRENE DUCAY as mother. Actually, Alfredo F. Surposa was the name of Irenes father, and Ducay was the maiden surname of Irenes mother. Respondent financially supported petitioner and Allan. Respondent had consistently and regularly given petitioner allowances before she got married. He also provided her with employment. When petitioner was still in high school, respondent required her to work at the Cebu Liberty Lumber, a firm owned by his family. She was later on able to work at the Gaisano- Borromeo Branch through respondents efforts. Petitioner and Allan were introduced to each other and became known in the Chinese community as respondents illegitimate children. During petitioners wedding, respondent sent his brother Catalino Chua (Catalino) as his representative, and it was the latter who acted as father of the bride. Respondents relatives even attended the baptism of petitioners daughter. [2] In his Answer [3] to the Complaint, filed on 9 December 2003, respondent denied that he had an illicit relationship with Irene, and that petitioner was his daughter. [4] Hearings then ensued during which petitioner testified that respondent was the only father she knew; that he took care of all her needs until she finished her college education; and that he came to visit her on special family occasions. She also presented documentary evidence to prove her claim of illegitimate filiation. Subsequently, on 27 March 2008, respondent filed a Demurrer to Evidence [5] on the ground that the Decision dated 21 February 2000 of RTC-Branch 9 in Special Proceeding No. 8830CEB had already been barred by res judicata in Special Proceeding No. 12562-CEB before RTC-Branch 24. It turned out that prior to instituting Special Proceeding No. 12562-CEB on 27 October 2003, petitioner had already filed a similar Petition for the issuance of a decree of illegitimate affiliation against respondent. It was docketed as Special Proceeding No. 8830-CEB, assigned to RTC-Branch 9. Petitioner and respondent eventually entered into a Compromise Agreement in Special Proceeding No. 8830-CEB, which was approved by RTC-Branch 9 in a Decision [6] dated 21 February 2000. The full contents of said Decision reads: Under consideration is a Compromise Agreement filed by the parties on February 18, 2000, praying that judgment be rendered in accordance therewith, the terms and conditions of which follows: 1. Petitioner JOANIE SURPOSA UY declares, admits and acknowledges that there is no blood relationship or filiation between petitioner and her brother Allan on one hand and [herein respondent] JOSE NGO CHUA on the other. This declaration, admission or acknowledgement

is concurred with petitioners brother Allan, who although not a party to the case, hereby affixes his signature to this pleading and also abides by the declaration herein. 2. As a gesture of goodwill and by way of settling petitioner and her brothers (Allan) civil, monetary and similar claims but without admitting any liability, [respondent] JOSE NGO CHUA hereby binds himself to pay the petitioner the sum of TWO MILLION PESOS (P2,000,000.00) and another TWO MILLION PESOS (P2,000,000.00) to her brother, ALLAN SURPOSA. Petitioner and her brother hereby acknowledge to have received in full the said compromise amount. 3. Petitioner and her brother (Allan) hereby declare that they have absolutely no more claims, causes of action or demands against [respondent] JOSE NGO CHUA, his heirs, successors and assigns and/or against the estate of Catalino Chua, his heirs, successors and assigns and/or against all corporations, companies or business enterprises including Cebu Liberty Lumber and Joe Lino Realty Investment and Development Corporation where defendant JOSE NGO CHUA or CATALINO NGO CHUA may have interest or participation. 4. [Respondent] JOSE NGO CHUA hereby waives all counterclaim or counter-demand with respect to the subject matter of the present petition. 5. Pursuant to the foregoing, petitioner hereby asks for a judgment for the permanent dismissal with prejudice of the captioned petition. [Respondent] also asks for a judgment permanently dismissing with prejudice his counterclaim. Finding the said compromise agreement to be in order, the Court hereby approves the same. Judgment is rendered in accordance with the provisions of the compromise agreement. The parties are enjoined to comply with their respective undertakings embodied in the agreement. [7]

With no appeal having been filed therefrom, the 21 February 2000 Decision of RTC-Branch 9 in Special Proceeding 8830-CEB was declared final and executory. Petitioner filed on 15 April 2008 her Opposition [8] to respondents Demurrer to Evidence in Special Proceeding No. 12562-CEB. Thereafter, RTC-Branch 24 issued its now assailed Resolution dated 25 June 2008 in Special Proceeding No. 12562-CEB, granting respondents Demurrer. RTC-Branch 24 summarized the arguments of respondent and petitioner in the Demurrer and Opposition, respectively, as follows: This is to resolve the issues put across in the Demurrer to the Evidence submitted to this Court; the Opposition thereto; the Comment on the Opposition and the Rejoinder to the Comment. xxxx 1. The instant case is barred by the principle of res judicata because there was a judgment entered based on the Compromise Agreement approved by this multiple-sala Court, branch 09, on the same issues and between the same parties. 2. That such decision of Branch 09, having attained finality, is beyond review, reversal or alteration by another Regional Trial Court and not even the Supreme Court, no matter how erroneous. 3. Judicial Admissions or admission in petitioners pleadings to the effect that there is no blood relationship between petitioner and respondent, which is a declaration against interest, are conclusive on her and she should not be permitted to falsify. 4. That the Certificate of Live Birth showing that petitioners father is Alfredo Surposa is a public document which is the evidence of the facts therein stated, unless corrected by judicial order.

5. After receiving the benefits and concessions pursuant to their compromise agreement, she is estopped from refuting on the effects thereof to the prejudice of the [herein respondent]. The summary of the Opposition is in this wise: 1. That the illegitimate filiation of petitioner to respondent is established by the open, and continuous possession of the status of an illegitimate child. 2. The Demurrer to the evidence cannot set up the affirmative grounds for a Motion to Dismiss. 3. The question on the civil status, future support and future legitime can not be subject to compromise. 4. The decision in the first case does not bar the filing of another action asking for the same relief against the same defendant. [9]

relief. This is only proper, given that petitioner is raising pure questions of law in her instant Petition. Section 1, Rule 45 of the Rules of Court provides: SECTION 1. Filing of petition with Supreme Court. A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

Clearly, a party may directly appeal to this Court from a decision or final order or resolution of the trial court on pure questions of law. A question of law lies, on one hand, when the doubt or difference arises as to what the law is on a certain set of facts; a question of fact exists, on the other hand, when the doubt or difference arises as to the truth or falsehood of the alleged facts. Here, the facts are not disputed; the controversy merely relates to the correct application of the law or jurisprudence to the undisputed facts. [15] The central issue in this case is whether the Compromise Agreement entered into between petitioner and respondent, duly approved by RTC-Branch 9 in its Decision dated 21 February 2000 in Special Proceeding No. 8830-CEB, constitutes res judicata in Special Proceeding No. 12562-CEB still pending before RTC-Branch 24. The doctrine of res judicata is a rule that pervades every well- regulated system of jurisprudence and is founded upon two grounds embodied in various maxims of the common law, namely: (1) public policy and necessity, which makes it in the interest of the State that there should be an end to litigation, interest reipublicae ut sit finis litium, and (2) the hardship of the individual that he should be vexed twice for the same cause, nemo debet bis vexari pro eadem causa. [16] For res judicata, to serve as an absolute bar to a subsequent action, the following requisites must concur: (1) there must be a final judgment or order; (2) the court rendering it must have jurisdiction over the subject matter and the parties; (3) it must be a judgment or order on the merits; and (4) there must be, between the two cases, identity of parties, subject matter, and causes of action. [17] It is undeniable that Special Proceeding No. 8830-CEB, previously before RTC-Branch 9, and Special Proceeding No. 12562-CEB, presently before RTC-Branch 24, were both actions for the issuance of a decree of illegitimate filiation filed by petitioner against respondent. Hence, there is apparent identity of parties, subject matter, and causes of action between the two cases. However, the question arises as to whether the other elements of res judicata exist in this case. The court rules in the negative.

Taking into consideration the aforementioned positions of the parties, RTCBranch 24 held that: Looking at the issues from the viewpoint of a judge, this Court believes that its hands are tied. Unless the Court of Appeals strikes down the Compromise Judgment rendered by Branch 09 of the Regional Trial Court of Cebu City, this Court will not attempt to vacate, much more annul, that Judgment issued by a co-equal court, which had long become final and executory, and in fact executed. This court upholds the Policy of Judicial Stability since to do otherwise would result in patent abuse of judicial discretion amounting to lack of jurisdiction. The defense of lack of jurisdiction cannot be waived. At any rate, such is brought forth in the Affirmative Defenses of the Answer. This Court, saddled with many cases, suffers the brunt of allowing herein case involving same parties to re-litigate on the same issues already closed. [10]

In the end, RTC-Branch 24 decreed:

WHEREFORE, in view of the foregoing, the Demurrer to the Evidence is hereby given due course, as the herein case is hereby ordered DISMISSED. [11]

RTC-Branch 24 denied petitioners Motion for Reconsideration [12] in a Resolution [13] dated 29 July 2008. Petitioner then filed the instant Petition raising the following issues for resolution of this Court: I Whether or not the principle of res judicata is applicable to judgments predicated upon a compromise agreement on cases enumerated in Article 2035 of the Civil Code of the Philippines;

A compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already commenced. [18] In Estate of the late Jesus S. Yujuico v. Republic, [19] the Court pronounced that a judicial compromise has the effect of res judicata. A judgment based on a compromise agreement is a judgment on the merits. It must be emphasized, though, that like any other contract, a compromise agreement must comply with the requisites in Article 1318 of the Civil Code, to wit: (a) consent of the contracting parties; (b) object certain that is the subject matter of the contract; and (c) cause of the obligation that is established. And, like any other contract, the terms and conditions of a compromise agreement must not be contrary to law, morals, good customs, public policy and public order. Any compromise agreement that is contrary to law or public policy is null and void, and vests no rights in and holds no obligation for any party. It produces no legal effect at all. [20] In connection with the foregoing, the Court calls attention to Article 2035 of the Civil Code, which states:

II Whether or not the compromise agreement entered into by the parties herein before the Regional Trial Court, Branch 09 of Cebu City effectively bars the filing of the present case. [14]

At the outset, the Court notes that from the RTC Resolution granting respondents Demurrer to Evidence, petitioner went directly to this Court for

ART. 2035. No compromise upon the following questions shall be valid: (1) (2) (3) (4) (5) (6) The civil status of persons; The validity of a marriage or a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; Future legitime. (Emphases ours.)

under any circumstances to adjudicate a claim against the defendant. And where there is want of jurisdiction of the subject-matter, a judgment is void as to all persons, and consent of parties can never impart to it the vitality which a valid judgment derives from the sovereign state, the court being constituted, by express provision of law, as its agent to pronounce its decrees in controversies between its people. (7 R. C. L., 1039.)

A judgment void for want of jurisdiction is no judgment at all. It cannot be the source of any right or the creator of any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Hence, it can never become final, and any writ of execution based on it is void. It may be said to be a lawless thing that can be treated as an outlaw and slain on sight, or ignored wherever and whenever it exhibits its head. [26] In sum, Special Proceeding No. 12562-CEB before RTC-Branch 24 is not barred by res judicata, since RTC-Branch 9 had no jurisdiction to approve, in its Decision dated 21 February 2000 in Special Proceeding No. 8830-CEB, petitioner and respondents Compromise Agreement, which was contrary to law and public policy; and, consequently, the Decision dated 21 February 2000 in Special Proceeding No. 8830-CEB, being null and void for having been rendered by RTC-Branch 9 without jurisdiction, could not have attained finality or been considered a judgment on the merits. Nevertheless, the Court must clarify that even though the Compromise Agreement between petitioner and respondent is void for being contrary to law and public policy, the admission petitioner made therein may still be appreciated against her in Special Proceeding No. 12562-CEB. RTC-Branch 24 is only reminded that while petitioners admission may have evidentiary value, it does not, by itself, conclusively establish the lack of filiation. [27] Proceeding from its foregoing findings, the Court is remanding this case to the RTC-Branch 24 for the continuation of hearing on Special Proceedings No. 12562-CEB, more particularly, for respondents presentation of evidence. Although respondents pleading was captioned a Demurrer to Evidence, it was more appropriately a Motion to Dismiss on the ground of res judicata. Demurrer to Evidence is governed by Rule 33 of the Rules of Court, Section 1 of which is reproduced in full below: 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.

The Compromise Agreement between petitioner and respondent, executed on 18 February 2000 and approved by RTC-Branch 9 in its Decision dated 21 February 2000 in Special Proceeding No. 8830-CEB, obviously intended to settle the question of petitioners status and filiation, i.e., whether she is an illegitimate child of respondent. In exchange for petitioner and her brother Allan acknowledging that they are not the children of respondent, respondent would pay petitioner and Allan P2,000,000.00 each. Although unmentioned, it was a necessary consequence of said Compromise Agreement that petitioner also waived away her rights to future support and future legitime as an illegitimate child of respondent. Evidently, the Compromise Agreement dated 18 February 2000 between petitioner and respondent is covered by the prohibition under Article 2035 of the Civil Code. Advincula v. Advincula [21] has a factual background closely similar to the one at bar. Manuela Advincula (Manuela) filed, before the Court of First Instance (CFI) of Iloilo, Civil Case No. 3553 for acknowledgment and support, against Manuel Advincula (Manuel). On motion of both parties, said case was dismissed. Not very long after, Manuela again instituted, before the same court, Civil Case No. 5659 for acknowledgment and support, against Manuel. This Court declared that although Civil Case No. 3553 ended in a compromise, it did not bar the subsequent filing by Manuela of Civil Case No. 5659, asking for the same relief from Manuel. Civil Case No. 3553 was an action for acknowledgement, affecting a persons civil status, which cannot be the subject of compromise. It is settled, then, in law and jurisprudence, that the status and filiation of a child cannot be compromised. Public policy demands that there be no compromise on the status and filiation of a child. [22] Paternity and filiation or the lack of the same, is a relationship that must be judicially established, and it is for the Court to declare its existence or absence. It cannot be left to the will or agreement of the parties. [23] Being contrary to law and public policy, the Compromise Agreement dated 18 February 2000 between petitioner and respondent is void ab initio and vests no rights and creates no obligations. It produces no legal effect at all. The void agreement cannot be rendered operative even by the parties' alleged performance (partial or full) of their respective prestations. [24] Neither can it be said that RTC-Branch 9, by approving the Compromise Agreement, in its Decision dated 21 February 2000 in Special Proceeding No. 8830-CEB, already made said contract valid and legal. Obviously, it would already be beyond the jurisdiction of RTC-Branch 9 to legalize what is illegal. RTC-Branch 9 had no authority to approve and give effect to a Compromise Agreement that was contrary to law and public policy, even if said contract was executed and submitted for approval by both parties. RTCBranch 9 would not be competent, under any circumstances, to grant the approval of the said Compromise Agreement. No court can allow itself to be used as a tool to circumvent the explicit prohibition under Article 2035 of the Civil Code. The following quote in Francisco v. Zandueta [25] is relevant herein: It is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction in a matter which is excluded by the laws of the land. In such a case the question is not whether a competent court has obtained jurisdiction of a party triable before it, but whether the court itself is competent

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 plaintiff's evidence shows that he is not entitled to the relief sought. Demurrer, therefore, is an aid or instrument for the expeditious termination of an action, similar to a motion to dismiss, which the court or tribunal may either grant or deny. [28] The Court has recently established some guidelines on when a demurrer to evidence should be granted, thus: A demurrer to evidence may be issued when, upon the facts and the law, the plaintiff has shown no right to relief. Where the plaintiff's evidence together with such inferences and conclusions as may reasonably be drawn therefrom does not warrant recovery against the defendant, a demurrer to evidence should be sustained. A demurrer to evidence is likewise sustainable when, admitting every proven fact favorable to the plaintiff and indulging in his favor all conclusions fairly and reasonably inferable therefrom, the plaintiff has failed to make out one or more of the material elements of his case, or when there is no evidence to support an allegation necessary to his claim. It should be sustained where the plaintiff's evidence is prima facie insufficient for a recovery. [29]

The essential question to be resolved in a demurrer to evidence is whether petitioner has been able to show that she is entitled to her claim, and it is incumbent upon RTC-Branch 24 to make such a determination. A perusal of the Resolution dated 25 June 2008 of RTC-Branch 24 in Special Proceeding No. 12562-CEB shows that it is barren of any discussion on this matter. It did not take into consideration any of the evidence presented by petitioner. RTCBranch 24 dismissed Special Proceedings No. 12562-CEB on the sole basis of res judicata, given the Decision dated 21 February 2000 of RTC-Branch 9 in Special Proceeding No. 8830-CEB, approving the Compromise Agreement between petitioner and respondent. Hence, the Resolution dated 25 June 2008 of RTC-Branch 24 should be deemed as having dismissed Special Proceeding No. 12562-CEB on the ground of res judicata rather than an adjudication on the merits of respondents demurrer to evidence. Necessarily, the last line of Section 1, Rule 33 of the Rules of Court should not apply herein and respondent should still be allowed to present evidence before RTC-Branch 24 in Special Proceedings No. 12562-CEB. It must be kept in mind that substantial justice must prevail. When there is a strong showing that grave miscarriage of justice would result from the strict application of the Rules, this Court will not hesitate to relax the same in the interest of substantial justice. The Rules of Court were conceived and promulgated to set forth guidelines in the dispensation of justice but not to bind and chain the hand that dispenses it, for otherwise, courts will be mere slaves to or robots of technical rules, shorn of judicial discretion. That is precisely why courts in rendering real justice have always been, as they in fact ought to be, conscientiously guided by the norm that when on the balance, technicalities take backseat against substantive rights, and not the other way around. [30] WHEREFORE, premises considered, the Resolution dated 25 June 2008 of the Regional Trial Court of Cebu City, Branch 24, in Special Proceeding No. 12562-CEB is REVERSED and SET ASIDE. This case is ordered REMANDED to the said trial court for further proceedings in accordance with the ruling of the Court herein. No costs. -DOLORES MONTEFALCON & LAURENCE MONTEFALCON vs. RONNIE S. VASQUEZ This petition for review assails the September 29, 2003 Decision1 and the July 19, 2004 Resolution2 of the Court of Appeals in CA-G.R. CV No. 71944, which had reversed the May 28, 2001 Decision3 of the Regional Trial Court (RTC), Branch 19, of Naga City in Civil Case No. RTC '99-4460. The facts culled from the records are as follows. In 1999, petitioner Dolores P. Montefalcon filed a Complaint4 for acknowledgment and support against respondent Ronnie S. Vasquez before the RTC of Naga City. Alleging that her son Laurence is the illegitimate child of Vasquez, she prayed that Vasquez be obliged to give support to copetitioner Laurence Montefalcon, whose certificate of live birth he signed as father.5 According to petitioners, Vasquez only gave a total of P19,000 as support for Laurence since Laurence was born in 1993. Vasquez allegedly also refused to give him regular school allowance despite repeated demands. Petitioner Dolores added that she and Vasquez are not legally married, and that Vasquez has his own family. A sheriff tried to serve the summons and complaint on Vasquez in Aro-aldao, Nabua, Camarines Sur. Vasquez's grandfather received them as Vasquez was in Manila. Vasquez's mother returned the documents to the clerk of court, who informed the court of the non-service of summons.6 Petitioners then filed a motion to declare Vasquez in default. The court denied it for lack of proper service of summons.7 In 2000, the court issued an alias summons on Vasquez at "10 Int. President Garcia St., Zone 6, Signal Village, Taguig, Metro Manila" upon petitioners' motion. Albeit a Taguig deputy sheriff served it by substituted service on Vasquez's caretaker Raquel Bejer, the sheriff's return incorrectly stated "Lazaro" as Vasquez's surname.8

Another alias summons9 was issued, also received by Bejer. The second sheriff's return states: THIS IS TO CERTIFY THAT on the 19th day of July 2000 the undersigned sheriff caused the service of summons issued by the court in the above-entitled case together with the copy of the complaint and annexes attached thereon upon defendant RONNIE S. VASQUEZ, by substituted service, thru his caretaker, RAQUEL BEJER, a person of sufficient discretion, who acknowledged the receipt thereof at No. 10 Int. President Garcia St. Zone 6, Signal Village, Taguig, Metro Manila, as evidenced by her signature appearing at the lower portion of the original copy of summons. WHEREFORE, said summons is hereby returned to the court of origin DULY SERVED for its records and information. Taguig for Naga City, July 19, 2000

(SGD.) ERNESTO G. RAYMUNDO, JR., Deputy Sheriff MTC BR 74 Taguig, Metro Manila10

On petitioners' motion, the trial court declared Vasquez in default for failure to file an answer despite the substituted service of summons. Vasquez was furnished with court orders and notices of the proceedings at his last known address, but these were returned as he had allegedly moved to another place and left no new address.11 In 2001, the court granted petitioners' prayers, explaining that they had no illmotive and that Dolores gave a truthful testimony. The court added that Vasquez admitted the truth of the allegations by his silence. It further explained that Laurence's certificate of live birth, being a public document, is irrefutably a prima facie evidence of illegitimate filiation. The trial court decreed: WHEREFORE, by preponderant evidence, judgment is hereby rendered in favor of the plaintiffs Dolores Montefalcon and her minor child Laurence Montefalcon and against defendant Ronnie S. Vasquez who is hereby ordered to: 1. Acknowledge plaintiff Laurence Montefalcon as his illegitimate child with Dolores Montefalcon; 2. Give support to the said minor in the amount of FIVE THOUSAND (P5,000.00) PESOS monthly commencing on June 1, 1993, the past support for eight (8) years in the amount of FOUR HUNDRED EIGHTY THOUSAND (P480,000.00) PESOS less the amount of NINETEEN THOUSAND (P19,000.00) PESOS previously given, shall be paid promptly and the monthly support of FIVE THOUSAND (P5,000.00) PESOS shall be paid not later than the end of each month beginning on July 31, 2001 and every end of the month thereafter as prayed for in the complaint; and 3. Pay the sum of TEN THOUSAND (P10,000.00) PESOS and THREE THOUSAND (P3,000.00) PESOS as attorney's and appearance fees, respectively, and litigation expenses of ONE THOUSAND (P1,000.00) PESOS. SO ORDERED.12 In the same year, Vasquez surfaced. He filed a notice of appeal to which petitioners opposed. Appeal was granted by the court.13 Before the appellate court, he argued that the trial court erred in trying and deciding the case as it "never" acquired jurisdiction over his person, as well as in awarding P5,000per-month support, which was allegedly "excessive and exorbitant." The appellate court noted that the service of summons on Vasquez was "defective" as there was no explanation of impossibility of personal service and an attempt to effect personal service, and decreed as follows: WHEREFORE, based on the foregoing premises, the instant appeal is GRANTED. The appealed May 28, 2001 Decision of the Regional Trial Court of Naga City in Civil Case No. RTC '99-4460

is hereby NULLIFIED and SET ASIDE. Accordingly, let this case be REMANDED to the court a quo for further proceedings. SO ORDERED.14 Petitioners argued in their motion for reconsideration15 that any attempt at personal service of summons was needless as Vasquez already left for abroad. The appellate court, however, denied the motion. Hence, this petition. Petitioners assign two appellate court errors: I. THE COURT OF APPEALS ERRED IN HOLDING THAT THE RESPONDENT IN THIS CASE WAS NOT VALIDLY SERVED WITH THE SUMMONS AND COMPLAINT IN CIVIL CASE NO. RTC '99-4460; AND THAT II. THE COURT OF APPEALS ERRED IN ANNUL[L]ING AND SETTING ASIDE THE TRIAL COURT'S DECISION (ANNEX "B") FOR LACK OF JURISDICTION.16 Petitioners justify the validity of substituted service as Vasquez had left as overseas seafarer when the sheriff served the summons on July 19, 2000 in Taguig. Noting that Vasquez's seaman's book indicated that he left the country on January 24, 2000 and came back on October 12, 2000, they criticize the appellate court for anchoring its rulings on mere technicality. Vasquez counters that because he was abroad, service of summons should have been personal or by publication as substituted service is proper only if a defendant is in the country. Vasquez also added that the sheriff's return did not state that he exerted efforts to personally serve the summons. 17 In their reply, petitioners insist that a substituted service is the normal method if one is temporarily away from the country as personal service abroad or by publication are not ordinary means of service.18 Simply put, the issues now for resolution are: (1) whether there is a valid substituted service of summons on Vasquez to clothe the trial court with jurisdiction over his person; and (2) whether he is obliged to give support to co-petitioner Laurence. To acquire jurisdiction over the person of a defendant, service of summons must be personal,19 or if this is not feasible within a reasonable time, then by substituted service.20 It is of judicial notice that overseas Filipino seafarers are contractual employees. They go back to the country once their contracts expire, and wait for the signing of another contract with the same or new manning agency and principal if they wish. It is therefore common knowledge that a Filipino seaman often has a temporary residence in the urban areas like Metro Manila, where majority of the manning agencies hold offices, aside from his home address in the province where he originates. In this case, respondent Vasquez hails from Camarines Sur but he has lived in Taguig City when the complaint was filed. Notice may then be taken that he has established a residence in either place. Residence is a place where the person named in the summons is living at the time when the service was made, even though he was temporarily abroad at the time. As an overseas seafarer, Vasquez was a Filipino resident temporarily out of the country. Hence, service of summons on him is governed by Rule 14, Section 16 of the Rules of Court: SEC. 16. Residents temporarily out of the Philippines. When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the Philippines, as under the preceding section. (Emphasis supplied.) The preceding section referred to states: SEC. 15. Extraterritorial service. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or relates to, or the subject of which

is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by personal service as under section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days after notice, within which the defendant must answer. Because Section 16 of Rule 14 uses the words "may" and "also," it is not mandatory. Other methods of service of summons allowed under the Rules may also be availed of by the serving officer on a defendant-seaman. Ideally, Vasquez must be personally served summons. But was personal service of summons practicable? Conversely, was substituted service of summons justified? Obviously, personal service of summons was not practicable since the defendant was temporarily out of the country. To proceed with personal service of summons on a defendant-seaman who went on overseas contract work would not only be impractical and futile it would also be absurd. The impossibility of prompt personal service was shown by the fact that the Naga City-based sheriff purposely went to a barrio in Camarines Sur to serve the summons personally on Vasquez. When service of summons failed, said sheriff ascertained the whereabouts of Vasquez. Upon being informed that Vasquez was in Manila, the Naga court commissioned a Taguig City-based sheriff to serve the summons. Both the Naga and Taguig sheriffs inquired about Vasquez's whereabouts, signifying that they did not immediately resort to substituted service. There was no undue haste in effecting substituted service. The fact that the Naga court allowed a reasonable time to locate Vasquez to as far as Taguig shows that there was indeed no precipitate haste in serving the summons. In this case, we agree that the substituted service in Taguig was valid and justified because previous attempts were made by the sheriffs to serve the summons, but to no avail. Diligent efforts were evidently exerted in the conduct of the concerned sheriffs in the performance of their official duty. Also, the person who received the alias summons was of suitable age and discretion, then residing at Vasquez's dwelling. There is no quarrel that it was really Vasquez's residence, as evidenced by his employment contract, executed under the supervision and authority of the Philippine Overseas Employment Administration (POEA). Vasquez cannot deny that in his contract of employment and seafarer's information sheet, both bearing POEA's letterhead, his address in Metro Manila was what was correctly mentioned in the alias summons that Bejer received. She must have informed Vasquez one way or another of the suit upon his return in October 2000 after finishing his nine-month contract with Fathom Ship Management. Thus, it is reasonable to conclude that he had enough time to have the default order set aside. The default judgment was rendered on May 28, 2001. He also had enough time to file a motion for reconsideration. But he did nothing. The interregnum between the first but failed attempt at personal service by the RTC of Naga City in Vasquez's place in Camarines Sur to the final substituted service in Metro Manila by a Taguig RTC sheriff was almost eight months, a reasonable time long enough to conclude that personal service had failed and was futile. Montalban v. Maximo21 offers a rational and logical solution of the issue. We held in said case that the normal method of service of summons on one temporarily absent is by substituted service because personal service abroad and service by publication are not ordinary means of summoning defendants. Summons in a suit in personam against a temporarily absent resident may be by substituted service as domiciliaries of a State are always amenable to suits in personam therein.22 "Residence" is the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. A plaintiff is merely required to know the defendant's residence, office or regular business place. He need not know where a resident defendant actually is at the very moment of filing suit. He is not even duty-bound to ensure that the person upon whom service was actually made

delivers the summons to the defendant or informs him about it. The law presumes that for him. It is immaterial that defendant does not receive actual notice. As well said in Montalban: . . . A man temporarily absent from this country leaves a definite place of residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be directed and where he is bound to return. Where one temporarily absents himself, he leaves his affairs in the hands of one who may be reasonably expected to act in his place and stead; to do all that is necessary to protect his interests; and to communicate with him from time to time any incident of importance that may affect him or his business or his affairs. It is usual for such a man to leave at his home or with his business associates information as to where he may be contacted in the event a question that affects him crops up. If he does not do what is expected of him, and a case comes up in court against him, he cannot in justice raise his voice and say that he is not subject to the processes of our courts. He cannot stop a suit from being filed against him upon a claim that he cannot be summoned at his dwelling house or residence or his office or regular place of business. Not that he cannot be reached within a reasonable time to enable him to contest a suit against him. There are now advanced facilities of communication. Long distance telephone calls and cablegrams make it easy for one he left behind to communicate with him. 23 Aside from, at present, various forms of texting and short message services by the ubiquitous cellular phones. More importantly, the letter of the law must yield to its spirit. The absence in the final sheriff's return of a statement about the impossibility of personal service does not conclusively prove that the service is invalid. Such failure should not unduly prejudice petitioners if what was undisclosed was in fact done. Proof of prior attempts at personal service may have been submitted by the plaintiff during the hearing of any incident assailing the validity of the substituted service24 had Vasquez surfaced when the case was heard. In fact, he was declared in default. It was only when a judgment against him was rendered by the trial court that he questioned the validity of service of summons before the appellate court. Such failure to appear, and then later to question the court's jurisdiction over his person, should not be taken against herein petitioners. Between Vasquez's self-serving assertion that he only came to know of the case when his mother told him about the trial court's decision and the sheriff's return on the substituted service which carries a presumption of regularity, the latter is undoubtedly deserving of more faith and credit. The sheriff's certificate of service of summons is prima facie evidence of the facts set out in it. Only clear and convincing evidence may overcome its presumption of regularity. Given the circumstances in the present case, we agree that the presumption of regularity in the performance of duty on the part of the sheriff stands.25 On the second issue, the trial court's order must also be sustained. Copetitioner Laurence is legally entitled to support from the respondent, and the amount of P5,000 monthly set by the trial court is neither excessive nor unreasonable. Article 17526 of the Family Code of the Philippines mandates that illegitimate filiation may be established in the same way and on the same evidence as legitimate children. Under Article 172,27 the filiation of legitimate children is established by any of the following: (1) through record of birth appearing in the civil register or a final order; or (2) by admission of filiation in a public document or private handwritten instrument and signed by the parent concerned; or in default of these two, by open and continuous possession of the status of a legitimate child or by any other means allowed by the Rules of Court and special laws. Laurence's record of birth is an authentic, relevant and admissible piece of evidence to prove paternity and filiation. Vasquez did not deny that Laurence is his child with Dolores. He signed as father in Laurence's certificate of live birth, a public document. He supplied the data entered in it. Thus, it is a competent evidence of filiation as he had a hand in its preparation. In fact, if the child had been recognized by any of the modes in the first paragraph of

Article 172, there is no further need to file any action for acknowledgment because any of said modes is by itself a consummated act.28 As filiation is beyond question, support follows as matter of obligation. Petitioners were able to prove that Laurence needs Vasquez's support and that Vasquez is capable of giving such support. Dolores testified that she spent around P200,000 for Laurence; she spends P8,000 a month for his schooling and their subsistence. She told the lower court Vasquez was earning US$535 monthly based on his January 10, 2000 contract of employment29 with Fathom Ship Management and his seafarer information sheet.30 That income, if converted at the prevailing rate, would be more than sufficient to cover the monthly support for Laurence. Under Article 195 (4)31 of the Family Code, a parent is obliged to support his illegitimate child. The amount is variable. There is no final judgment thereof as it shall be in proportion to the resources or means of the giver and the necessities of the recipient.32 It may be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to support. 33 Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.34 Under the premises, the award of P5,000 monthly support to Laurence is reasonable, and not excessive nor exorbitant. In sum, we rule that the Court of Appeals erred in invalidating the substituted service of summons and remanding the case. As there was valid substituted service of summons under the circumstances of this case, the lower court acquired jurisdiction over his person and correctly ordered him to pay past and present monthly support to his illegitimate child as well as attorney's fees and litigation expenses to petitioners. WHEREFORE, the petition is GRANTED. The Decision dated September 29, 2003 and Resolution dated July 19, 2004 of the Court of Appeals in CA-G.R. CV No. 71944 are REVERSED and SET ASIDE. The Decision dated May 28, 2001 of the Regional Trial Court, Branch 19, Naga City in Civil Case No. RTC '99-4460 is hereby REINSTATED. Costs against respondent. -DELA CRUZ vs. GRACIA For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as husband and wife without the benefit of marriage. They resided in the house of Dominiques parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan, Teresa, Rizal. On September 4, 2005, Dominique died. [1] After almost two months, or on November 2, 2005, Jenie, who continued to live with Dominiques parents, gave birth to her herein co-petitioner minor child Christian Dela Cruz Aquino at the Antipolo Doctors Hospital, Antipolo City. Jenie applied for registration of the childs birth, using Dominiques surname Aquino, with the Office of the City Civil Registrar, Antipolo City, in support of which she submitted the childs Certificate of Live Birth, [2] Affidavit to Use the Surname of the Father [3] (AUSF) which she had executed and signed, and Affidavit of Acknowledgment executed by Dominiques father Domingo Butch Aquino. [4] Both affidavits attested, inter alia, that during the lifetime of Dominique, he had continuously acknowledged his yet unborn child, and that his paternity had never been questioned. Jenie attached to the AUSF a document entitled AUTOBIOGRAPHY which Dominique, during his lifetime, wrote in his own handwriting, the pertinent portions of which read: AQUINO, CHRISTIAN DOMINIQUE S.T. AUTOBIOGRAPHY IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19 YEARS OF AGE TURNING 20 THIS COMING OCTOBER 31, 2005. [5] I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN, TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I HAVE ONE BROTHER NAMED

JOSEPH BUTCH STO. TOMAS AQUINO. MY FATHERS NAME IS DOMINGO BUTCH AQUINO AND MY MOTHERS NAME IS RAQUEL STO. TOMAS AQUINO. x x x. xxxx AS OF NOW I HAVE MY WIFE NAMED JENIE DELA CRUZ. WE MET EACH OTHER IN OUR HOMETOWN, TEREZA RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE FELL IN LOVE WITH EACH OTHER, THEN WE BECAME GOOD COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER IN OUR HOUSE NOW. THATS ALL. [6] (Emphasis and underscoring supplied) By letter dated November 11, 2005, [7] the City Civil Registrar of Antipolo City, Ronald Paul S. Gracia (respondent), denied Jenies application for registration of the childs name in this wise: 7. Rule 7 of Administrative Order No. 1, Series of 2004 (Implementing Rules and Regulations of Republic Act No. 9255 [An Act Allowing Illegitimate Children to Use the Surname of their Father, Amending for the Purpose, Article 176 of Executive Order No. 209, otherwise Known as the Family Code of the Philippines]) provides that: Rule 7. Requirements for the Child to Use the Surname of the Father 7.1 For Births Not Yet Registered 7.1.1 The illegitimate child shall use the surname of the father if a public document is executed by the father, either at the back of the Certificate of Live Birth or in a separate document. 7.1.2 If admission of paternity is made through a private handwritten instrument, the child shall use the surname of the father, provided the registration is supported by the following documents: a. AUSF [8] b. Consent of the child, if 18 years old and over at the time of the filing of the document. c. Any two of the following documents showing clearly the paternity between the father and the child: 1. Employment records 2. SSS/GSIS records 3. Insurance 4. Certification of membership in any organization 5. Statement of Assets and Liability 6. Income Tax Return (ITR) In summary, the child cannot use the surname of his father because he was born out of wedlock and the father unfortunately died prior to his birth and has no more capacity to acknowledge his paternity to the child (either through the back of Municipal Form No. 102 Affidavit of Acknowledgment/Admission of Paternity or the Authority to Use the Surname of the Father). (Underscoring supplied)

the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. (Emphasis and underscoring supplied) They maintained that the Autobiography executed by Dominique constitutes an admission of paternity in a private handwritten instrument within the contemplation of the above-quoted provision of law. For failure to file a responsive pleading or answer despite service of summons, respondent was declared in default. Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her common-law relationship with Dominique and affirmed her declarations in her AUSF that during his lifetime, he had acknowledged his yet unborn child. [11] She offered Dominiques handwritten Autobiography (Exhibit A) as her documentary evidence-in-chief. [12] Dominiques lone brother, Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations. [13] By Decision [14] of April 25, 2007, the trial court dismissed the complaint for lack of cause of action as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms) of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations Governing the Implementation of R.A. 9255) which defines private handwritten document through which a father may acknowledge an illegitimate child as follows: 2.2 Private handwritten instrument an instrument executed in the handwriting of the father and duly signed by him where he expressly recognizes paternity to the child. (Underscoring supplied) The trial court held that even if Dominique was the author of the handwritten Autobiography, the same does not contain any express recognition of paternity. Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely legal issue of: WHETHER OR NOT THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF MINOR CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A PRIVATE HANDWRITTEN INSTRUMENT WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS SURNAME. [15] (Underscoring supplied) Petitioners contend that Article 176 of the Family Code, as amended, does not expressly require that the private handwritten instrument containing the putative fathers admission of paternity m ust be signed by him. They add that the deceaseds handwritten Autobiography, though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of the Administrative Order that the admission/recognition must be duly signed by the father is void as it unduly expanded the earlier-quoted provision of Article 176 of the Family Code. [16] Petitioners further contend that the trial court erred in not finding that Dominiques handwritten Autobiography contains a clear and unmistakable recognition of the childs paternity. [17] In its Comment, the Office of the Solicitor General (OSG) submits that respondents position, as affirmed by the trial court, is in consonance with the law and thus prays for the dismissal of the petition. It further submits that Dominiques Autobiography merely acknowledged Jenies pregnancy but not [his] paternity of the child she was carrying in her womb. [18] Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use the surname of his/her father if the latter had expressly recognized him/her as his offspring through the record of birth appearing in the civil register, or through an admission made in a public or private handwritten instrument. The recognition made in any of these

Jenie and the child promptly filed a complaint [9] for injunction/registration of name against respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539, which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial of registration of the childs name is a violation of his right to use the surname of his deceased father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No. 9255, [10] which provides: Article 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by

documents is, in itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action for judicial approval is necessary. [19] Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private handwritten instrument acknowledging the childs paternity must be signed by the putative father. This provision must, however, be read in conjunction with related provisions of the Family Code which require that recognition by the father must bear his signature, thus: Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. x x x x (Emphasis and underscoring supplied)

In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws.

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. This Court's rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father. A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation. However, a student permanent record, a written consent to a father's operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing. Standing alone, neither a certificate of baptism nor family pictures are sufficient to establish filiation. (Emphasis and underscoring supplied.)

That a father who acknowledges paternity of a child through a written instrument must affix his signature thereon is clearly implied in Article 176 of the Family Code. Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely articulated such requirement; it did not unduly expand the import of Article 176 as claimed by petitioners. In the present case, however, special circumstances exist to hold that Dominiques Autobiography, though unsigned by him, substant ially satisfies the requirement of the law. First, Dominique died about two months prior to the childs birth. Second, the relevant matters in the Autobiography, unquestionably handwritten by Dominique, correspond to the facts culled from the testimonial evidence Jenie proffered. [20] Third, Jenies testimony is corroborated by the Affidavit of Acknowledgment of Dominiques father Domingo Aquino and testimony of his brother Joseph Butch Aquino whose hereditary rights could be affected by the registration of the questioned recognition of the child. These circumstances indicating Dominiques paternity of the child give life to his statements in his Autobiography that JENIE DELA CRUZ is MY WIFE as WE FELL IN LOVE WITH EACH OTHER and NOW SHE IS PREGNANT AND FOR THAT WE LIVE TOGETHER. In Herrera v. Alba, [21] the Court summarized the laws, rules, and jurisprudence on establishing filiation, discoursing in relevant part:

Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx ART. 172. the following: The filiation of legitimate children is established by any of

In the case at bar, there is no dispute that the earlier quoted statements in Dominiques Autobiography have been made and written by him. Taken together with the other relevant facts extant herein that Dominique, during his lifetime, and Jenie were living together as common-law spouses for several months in 2005 at his parents house in Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two months after his death, Jenie gave birth to the child they sufficiently establish that the child of Jenie is Dominiques. In view of the pronouncements herein made, the Court sees it fit to adopt the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made: 1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and 2) Where the private handwritten instrument is accompanied by other relevant and competent evidence, it suffices that the claim of filiation therein

(1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence. Our laws instruct that the welfare of the child shall be the paramount consideration in resolving questions affecting him. [22] Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a signatory is similarly emphatic: Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. [23] (Underscoring supplied)

Rights and Participation on October 29, 1980, renouncing her rights over the separate property of her husband in favor of Engracia Manungas. Thereafter, a Decree of Final Distribution was issued in the intestate estate proceedings of Florentino Manungas distributing the properties to Engracia Manungas and Ramon Manungas, the surviving heirs. [6] On October 25, 1995, the RTC, Branch 4 in Panabo City, appointed Parreo, the niece of Engracia Manungas, as the Judicial Guardian of the properties and person of her incompetent aunt. [7] Engracia Manungas, through Parreo, then instituted Civil Case No. 5196-96 against the spouses Diosdado Salinas Manungas and Milagros Pacifico for illegal detainer and damages with the Municipal Trial Court (MTC) in Panabo City. In their answer, the spouses Salinas claimed that Diosdado is the illegitimate son of Florentino Manungas. However, the answer was filed beyond the reglementary period and was not considered by the MTC. Thus, the MTC issued a summary judgment in favor of Engracia Manungas, ordering the spouses to vacate the premises and to restore possession to Engracia Manungas. The Decision was appealed by the spouses Salinas to the RTC of Tagum, Davao City which affirmed in toto the Decision of the MTC. [8] On appeal to this Court, defendants petition was denied for having been filed out of time in a Resolution which became final on April 20, 1998. [9] Thereafter, on August 7, 1998, Diosdado instituted a petition for the issuance of letters of administration over the Estate of Engracia Manungas (Estate of Manungas) in his favor before the RTC, Branch 2 in Tagum City, Davao. He alleged that he, being an illegitimate son of Florentino Manungas, is an heir of Engracia Manungas. [10] The petition was opposed by Margarita Avila Loreto (Loreto) and Parreo alleging that Diosdado was incompetent as an administrator of the Estate of Manungas claiming that he was not a Manungas, that he was not an heir of Engracia Manungas, he was not a creditor of Engracia Manungas or her estate and that he was in fact a debtor of the estate having been found liable to Engracia Manungas for PhP 177,000 by virtue of a Decision issued by the MTC in Civil Case No. 5196-96. On May 15, 2002, the RTC issued an Order appointing Parreo as the administrator of the Estate of Manungas, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, Florencia A. Parreo is hereby appointed as Special Administrator of the property of the late Engracia N. Vda. de Manungas. The Special Administrator is hereby directed to post a bond in the amount of P200,000.00 pursuant to Sec. 4 of Rule 81. SO ORDERED. [11] Diosdado filed a Motion for Reconsideration with a Prayer for Temporary Restraining Order and Preliminary Injunction. [12] In his motion, Diosdado argued that Parreos appointment as special administrator of the Estate of Manungas was by virtue of her being the judicial guardian of the latter but which relation ceased upon Engracia Manungas death, concluding that her appointment as special administrator was without basis. He added that Parreo was not fit to become a special administrator having already been fined by the court for failing to render a timely accounting of Engracia Manungas property as her judicial guardian. Diosdado also reasoned that Parreo is a mere niece, a collateral relative, of Engracia Manungas, while he is the illegitimate son of Florentino Manungas. On November 4, 2002, the RTC issued an Order reversing itself and ordering the revocation of its earlier appointment of Parreo as the administrator of the Estate of Manungas while appointing Diosdado as the Special Administrator. [13] Parreo and Loreto appealed the ruling of the RTC to the CA. The CA issued its assailed April 30, 2009 Decision finding that the RTC acted with grave abuse of discretion in revoking its earlier appointment of Parreo as the administrator of the Estate of Manungas and appointing Diosdado instead. The CA further reinstated Parreo as the special administrator of the estate. The dispositive portion reads: WHEREFORE, premises considered, the petition is GRANTED. The Order dated November 4, 2002 setting aside the appointment of

It is thus (t)he policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children x x x. [24] Too, (t)he State as parens patriae affords special protection to children from abuse, exploitation and other conditions prejudicial to their development. [25]

In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to petitioner minor childs best interests to allow him to bear the surname of the now deceased Dominique and enter it in his birth certificate. WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED to immediately enter the surname of the late Christian Dominique Sto. Tomas Aquino as the surname of petitioner minor Christian dela Cruz in his Certificate of Live Birth, and record the same in the Register of Births. -MANUNGAS vs. LORETO The Case

This Petition for Review on Certiorari under Rule 45 seeks the reversal of the April 30, 2009 Decision [1] and July 21, 2010 Resolution [2] of the Court of Appeals (CA), in CA-G.R. SP No. 74531-MIN, entitled Margarita Avila Loreto and Florencia Avila Parreo v. Hon. Erasto D. Salcedo, Acting Presiding Judge, RTC (Branch 2), Tagum City, and Diosdado Salinas (Manungas). The CA Decision set aside as null and void the Order dated November 4, 2002 [3] of the Regional Trial Court (RTC), Branch 2 in Tagum City, Davao del Norte, in Special Proceedings No. 708 entitled In the Matter of the Intestate Estate of the Deceased Engracia N. Vda de Manungas, Diosdado Manungas, petitioner, wherein the RTC reversed its appointment of respondent Florencia Avila Parreo (Parreo) as the special administrator of the estate of Engracia Manungas and appointed petitioner Diosdado Salinas Manungas (Diosdado) in her stead. The Facts Engracia Manungas was the wife of Florentino Manungas. They had no children. Instead, they adopted Samuel David Avila (Avila) on August 12, 1968. Florentino Manungas died intestate on May 29, 1977, while Avila predeceased his adoptive mother. [4] Avila was survived by his wife Sarah Abarte Vda. de Manungas. Thereafter, Engracia Manungas filed a Motion for Partition of Estate on March 31, 1980 in the intestate estate proceedings of Florentino Manungas, of which she was the administratrix. There, she stated that there are no other legal and compulsory heirs of Florentino Manungas except for herself, Avila and a Ramon Manungas whom she acknowledged as the natural son of Florentino Manungas. [5] Meanwhile, Avilas widow executed a Waiver of

Florencia Parreo as special administrator of the estate of the late Engracia Vda. de Manungas, and denying the property bond posted by Florencia Parreo [is] hereby declared NULL and VOID and SET ASIDE as having been issued by Public Respondent Judge of the Regional Trial Court, Branch 2, Tagum City, Davao del Norte with grave abuse of discretion amounting to lack or excess of jurisdiction. SO ORDERED. [14] Diosdado assailed the CA Decision in a Motion for Reconsideration dated May 15, 2009 [15] which the CA denied in the July 21, 2010 Resolution. Hence, We have this petition. The Issues Diosdado raises the following issues: The Court a Quo utterly disregarded the jurisprudence that certiorari cannot be a substitute for an appeal where the latter remedy is available. [16] The Court a Quo in denying petitioners Motion for Reconsideration grossly violated the rule that once a decision or order is final and executory, it becomes immutable and unalterable. [17] The Court a Quo committed a grave error when it ruled to annul the appointment of petitioner, Diosdado Manungas as judicial administrator and reinstating the appointment of Florencia Parreo as special administrator. [18] The Court a Quo gravely erred in [giving] due course to oppositors petition that is flawed. [19] The Courts Ruling The petition must be denied. The RTC Order dated November 4, 2002 is an interlocutory order The first two issues raised by Diosdado revolve around the issue of whether the RTC Order dated November 4, 2002 is an interlocutory order. Diosdado alleges that, following the ruling of this Court that Certiorari cannot be the substitute for a lost appeal, Parreo should have appealed the RTC Order dated November 4, 2002 to the CA through a petition for review on certiorari under Rule 45 of the Rules of Court. Diosdado contends that the Order dated November 4, 2002 became final and executory, Parreo having failed to file the petition within the reglementary period; thus, the Order cannot be the subject of review even by this Court. However, Diosdados position assumes that the RTC Order dated November 4, 2002 is a final order instead of an interlocutory order. In Philippine Business Bank v. Chua, [20] the Court stated what an interlocutory order is: Conversely, an order that does not finally dispose of the case, and does not end the Courts task of adjudicating the parties contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is interlocutory, e.g., an order denying a motion to dismiss under Rule 16 of the Rules x x x. Unlike a final judgment or order, which is appealable, as above pointed out, an interlocutory order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case. The Court has considered an appointment of a special administrator as an interlocutory or preliminary order to the main case for the grant of letters of administration in a testate or intestate proceeding. In Ocampo v. Ocampo, [21] the Court succinctly held, The appointment or removal of special

administrators, being discretionary, is thus interlocutory and may be assailed through a petition for certiorari under Rule 65 of the Rules of Court. With such categorical ruling of the Court, the Order dated November 4, 2002 is clearly an interlocutory order. As such, the order cannot be the subject of an appeal under Rule 45 of the Rules of Court as argued by petitioner. The proper remedy is the filing of a Petition for Certiorari under Rule 65. Thus, Section 1(c) of Rule 41 states: Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: xxxx (c) An interlocutory order; xxxx In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Verily, respondents made use of the proper mode of review by filing a petition for certiorari under Rule 65 with the CA. Respondents filed the petition well within the prescribed period under this rule. There was no necessity to file a motion for reconsideration As properly noted by petitioner, the general rule is that a motion for reconsideration is required before a decision may be appealed through a petition for certiorari under Rule 65. Under the rule, there must be no other plain, speedy and adequate remedy in the ordinary course of law, such as a motion for reconsideration, to justify the filing of a petition for certiorari. Thus, petitioner argues that respondents failure to move for the reconsideration of the Order dated November 4, 2002 is fatal to an appeal from it. Such general rule, however, admits of exceptions as explained in Delos Reyes v. Flores: [22] We have held in a litany of cases that the extraordinary remedies of certiorari and mandamus are available only when there is no other plain, speedy, and adequate remedy in the ordinary course of law, such as a motion for reconsideration. The writ of certiorari does not lie where another adequate remedy is available for the correction of the error. x x x However, there are several exceptions where a petition for certiorari will lie without the prior filing of a motion for reconsideration, to wit: xxxx i. where the issue raised is one purely of law or where public interest is involved. (Emphasis supplied.) The instant case is clearly an exception to the general rule. An examination of the issues raised by respondents in appealing the Order dated November 4, 2002, reveals that the issues are only questions of law. Ergo, there is no need for a motion for reconsideration. In addition, the Court has even allowed the filing of a petition for certiorari despite the existence of an appeal or other appropriate remedy in several instances, including when the court a quo acted with grave abuse of discretion amounting to lack of or in excess of jurisdiction in issuing the assailed order. [23] Thus, while respondent failed to move for the reconsideration of the November 4, 2002 Order of the RTC, a petition for certiorari may still prosper, as in this case.

The RTC acted with grave abuse of discretion The lower court stated in its November 4, 2002 Order that: After carefully scrutinizing the arguments and grounds raised by both petitioner and oppositors, this Court finds merit in the contention of petitioner. In the case of Gonzales vs. Court of Appeals, 298 SCRA 324, the Supreme Court ruled: The presence of illegitimate children precludes succession by collateral relatives to his estate; Diosdado Manungas, being the illegitimate son of Florentino Manungas inherits the latters property by operation of law; WHEREFORE, in view of the foregoing the order appointing Florencia Parreo as special administrator of the estate of the late Engracia Vda. de Manungas is ordered set aside. Such reasoning is a non sequitur. The fact that Diosdado is an heir to the estate of Florentino Manungas does not mean that he is entitled or even qualified to become the special administrator of the Estate of Manungas. Jurisprudence teaches us that the appointment of a special administrator lies within the discretion of the court. In Heirs of Belinda Dahlia A. Castillo v. Lacuata-Gabriel, [24] it was stated that: It is well settled that the statutory provisions as to the prior or preferred right of certain persons to the appointment of administrator under Section 1, Rule 81, as well as the statutory provisions as to causes for removal of an executor or administrator under section 653 of Act No. 190, now Section 2, Rule 83, do not apply to the selection or removal of special administrator. x x x As the law does not say who shall be appointed as special administrator and the qualifications the appointee must have, the judge or court has discretion in the selection of the person to be appointed, discretion which must be sound, that is, not whimsical or contrary to reason, justice or equity. (Emphasis supplied; citation omitted.) This principle was reiterated in the Ocampo case, where the Court ruled that: While the RTC considered that respondents were the nearest of kin to their deceased parents in their appointment as joint special administrators, this is not a mandatory requirement for the appointment. It has long been settled that the selection or removal of special administrators is not governed by the rules regarding the selection or removal of regular administrators. The probate court may appoint or remove special administrators based on grounds other than those enumerated in the Rules at its discretion, such that the need to first pass upon and resolve the issues of fitness or unfitness and the application of the order of preference under Section 6 of Rule 78, as would be proper in the case of a regular administrator, do not obtain. As long as the discretion is exercised without grave abuse, and is based on reason, equity, justice, and legal principles, interference by higher courts is unwarranted. [25] (Emphasis supplied.) While the trial court has the discretion to appoint anyone as a special administrator of the estate, such discretion must be exercised with reason, guided by the directives of equity, justice and legal principles. It may, therefore, not be remiss to reiterate that the role of a special administrator is to preserve the estate until a regular administrator is appointed. As stated in Sec. 2, Rule 80 of the Rules: Section 2. Powers and duties of special adminsitrator. Such special administrator shall take possession and charge of the goods, chattels, rights, credits, and estate of the deceased and preserve the same for the executors or administrator afterwards appointed, and for that purpose may commence and maintain suits as administrator. He may sell only such perishable and other property as the court orders sold. A special administrator shall not be liable to pay any debts of the deceased unless so ordered by the court.

Given this duty on the part of the special administrator, it would, therefore, be prudent and reasonable to appoint someone interested in preserving the estate for its eventual distribution to the heirs. Such choice would ensure that such person would not expose the estate to losses that would effectively diminish his or her share. While the court may use its discretion and depart from such reasoning, still, there is no logical reason to appoint a person who is a debtor of the estate and otherwise a stranger to the deceased. To do so would be tantamount to grave abuse of discretion. Hence, the CA ruled that the trial court erred in issuing the November 4, 2002 Order, acting with grave abuse of discretion in appointing Diosdado as the special administrator of Engracia Manungas estate: In any case, the trial court erred in revoking the appointment of Florencia Avila Parreo as Special Administrator on the ground that it found merit in Diosdados contention that he is the illegitimate child of the late Florentino Manangus. The evidence on record shows that Diosdado is not related to the late Engracia and so he is not interested in preserving the latters estate. On the other hand, Florencia, who is a former Judicial guardian of Engracia when she was still alive and who is also the niece of the latter, is interested in protecting and preserving the estate of her late aunt Engracia, as by doing so she would reap the benefit of a wise administration of the decedents estate. Hence, the Order of the lower court revoking the appointment of Florencia Avila Parreo as special administrator constitutes not only a reversible error, but also a grave abuse of discretion amounting to lack or excess of jurisdiction. In the instant case, the lower court exercised its power in a despotic, arbitrary or capricious manner, as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. [26] (Emphasis supplied.) To reiterate, the subject of the intestate proceedings is the estate of Engracia Manungas. It must be remembered that the estate of Florentino Manungas was already the subject of intestate proceedings that have long been terminated with the proceeds distributed to the heirs with the issuance of a Decree of Final Distribution. [27] With the termination of the intestate estate proceedings of Florentino Manungas, Diosdado, as an illegitimate heir of Florentino Manungas, is still not an heir of Engracia Manungas and is not entitled to receive any part of the Estate of Manungas. In fact, Diosdado is a debtor of the estate and would have no interest in preserving its value. There is no reason to appoint him as its special administrator. The trial court acted with grave abuse of discretion in appointing Diosdado as special administrator of the Estate of Manungas. The CA correctly set aside the November 4, 2002 Order of the RTC. Consequently, with the setting aside of the November 4, 2002 Order of the trial court, reversing its May 15, 2002 Order and appointing Diosdado as the special administrator of Engracia Manungas estate, the May 15, 2002 Order is necessarily reinstated and Parreos appointment as special administrator is revived. WHEREFORE, the petition is hereby DENIED. The CAs April 30, 2009 Decision and July 21, 2010 Resolution in CA-G.R. SP No. 74531-MIN declaring as null and void the November 4, 2002 Order of the RTC in Special Proceedings No. 708 are AFFIRMED. Consequently, the Order dated May 15, 2002 of the RTC is hereby REINSTATED and Florencia Avila Parreo is REINSTATED as the special administrator of the estate of Engracia Manungas. -CHARLES GOTARDO vs. DIVINA BULING We resolve the petition for review on certiorari, 1 filed by petitioner Charles Gotardo, to challenge the March 5, 2004 decision2 and the July 27, 2004 resolution3 of the Court of Appeals (CA) in CA GR CV No. 76326. The CA decision ordered the petitioner to recognize and provide legal support to his minor son, Gliffze 0. Buling. The CA resolution denied the petitioner's subsequent motion for reconsideration. FACTUAL BACKGROUND

On September 6, 1995, respondent Divina Buling filed a complaint with the Regional Trial Court (RTC) of Maasin, Southern Leyte, Branch 25, for compulsory recognition and support pendente lite, claiming that the petitioner is the father of her child Gliffze.4 In his answer, the petitioner denied the imputed paternity of Gliffze. 5 For the parties failure to amicably settle the dispute, the RTC terminated the pre-trial proceedings.6 Trial on the merits ensued. The respondent testified for herself and presented Rodulfo Lopez as witness. Evidence for the respondent showed that she met the petitioner on December 1, 1992 at the Philippine Commercial and Industrial Bank, Maasin, Southern Leyte branch where she had been hired as a casual employee, while the petitioner worked as accounting supervisor.7 The petitioner started courting the respondent in the third week of December 1992 and they became sweethearts in the last week of January 1993.8 The petitioner gave the respondent greeting cards on special occasions, such as on Valentines Day and her birthday; she reciprocated his love and took care of him when he was ill.9 Sometime in September 1993, the petitioner started intimate sexual relations with the respondent in the formers rented room in the boarding house managed by Rodulfo, the respondents uncle, on Tomas Oppus St., Agbao, Maasin, Southern Leyte.10 The petitioner rented the room from March 1, 1993 to August 30, 1994.11 The sexual encounters occurred twice a month and became more frequent in June 1994; eventually, on August 8, 1994, the respondent found out that she was pregnant.12 When told of the pregnancy, the petitioner was happy and made plans to marry the respondent. 13 They in fact applied for a marriage license.14 The petitioner even inquired about the costs of a wedding reception and the bridal gown.15 Subsequently, however, the petitioner backed out of the wedding plans.16 The respondent responded by filing a complaint with the Municipal Trial Court of Maasin, Southern Leyte for damages against the petitioner for breach of promise to marry.17 Later, however, the petitioner and the respondent amicably settled the case.18 The respondent gave birth to their son Gliffze on March 9, 1995. 19 When the petitioner did not show up and failed to provide support to Gliffze, the respondent sent him a letter on July 24, 1995 demanding recognition of and support for their child.20 When the petitioner did not answer the demand, the respondent filed her complaint for compulsory recognition and support pendente lite.21 The petitioner took the witness stand and testified for himself. He denied the imputed paternity,22 claiming that he first had sexual contact with the respondent in the first week of August 1994 and she could not have been pregnant for twelve (12) weeks (or three (3) months) when he was informed of the pregnancy on September 15, 1994.23 During the pendency of the case, the RTC, on the respondents motion,24 granted a P2,000.00 monthly child support, retroactive from March 1995. 25 THE RTC RULING In its June 25, 2002 decision, the RTC dismissed the complaint for insufficiency of evidence proving Gliffzes filiation. It found the respondents testimony inconsistent on the question of when she had her first sexual contact with the petitioner, i.e., "September 1993" in her direct testimony while "last week of January 1993" during her cross-testimony, and her reason for engaging in sexual contact even after she had refused the petitioners initial marriage proposal. It ordered the respondent to return the amount of support pendente lite erroneously awarded, and to pay P10,000.00 as attorneys fees.26 The respondent appealed the RTC ruling to the CA.27 THE CA RULING In its March 5, 2004 decision, the CA departed from the RTC's appreciation of the respondents testimony, concluding that the latter merely made an honest mistake in her understanding of the questions of the petitioners counsel. It noted that the petitioner and the respondent had sexual relationship even before August 1994; that the respondent had only one boyfriend, the petitioner, from January 1993 to August 1994; and that the

petitioners allegation that the respondent had previous relationships with other men remained unsubstantiated. The CA consequently set aside the RTC decision and ordered the petitioner to recognize his minor son Gliffze. It also reinstated the RTC order granting a P2,000.00 monthly child support. 28 When the CA denied29 the petitioners motion for reconsideration,30 the petitioner filed the present petition for review on certiorari. THE PETITION The petitioner argues that the CA committed a reversible error in rejecting the RTCs appreciation of the respondents testimony, and that the evidenc e on record is insufficient to prove paternity. THE CASE FOR THE RESPONDENT The respondent submits that the CA correctly explained that the inconsistency in the respondents testimony was due to an incorrect appreciation of the questions asked, and that the record is replete with evidence proving that the petitioner was her lover and that they had several intimate sexual encounters during their relationship, resulting in her pregnancy and Gliffzes birth on March 9, 1995. THE ISSUE The sole issue before us is whether the CA committed a reversible error when it set aside the RTCs findings and ordered the petitioner to recognize and provide legal support to his minor son Gliffze. OUR RULING We do not find any reversible error in the CAs ruling. We have recognized that "[f]iliation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship, support (as in this case) or inheritance. [In paternity cases, the burden of proof] is on the person who alleges that the putative father is the biological father of the child."31 One can prove filiation, either legitimate or illegitimate, through the record of birth appearing in the civil register or a final judgment, an admission of filiation in a public document or a private handwritten instrument and signed by the parent concerned, or the open and continuous possession of the status of a legitimate or illegitimate child, or any other means allowed by the Rules of Court and special laws.32 We have held that such other proof of one's filiation may be a "baptismal certificate, a judicial admission, a family bible in which [his] name has been entered, common reputation respecting [his] pedigree, admission by silence, the [testimonies] of witnesses, and other kinds of proof [admissible] under Rule 130 of the Rules of Court."33 In Herrera v. Alba,34 we stressed that there are four significant procedural aspects of a traditional paternity action that parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and the child. 35 We explained that a prima facie case exists if a woman declares supported by corroborative proof that she had sexual relations with the putative father; at this point, the burden of evidence shifts to the putative father.36 We explained further that the two affirmative defenses available to the putative father are: (1) incapability of sexual relations with the mother due to either physical absence or impotency, or (2) that the mother had sexual relations with other men at the time of conception.37 In this case, the respondent established a prima facie case that the petitioner is the putative father of Gliffze through testimony that she had been sexually involved only with one man, the petitioner, at the time of her conception. 38 Rodulfo corroborated her testimony that the petitioner and the respondent had intimate relationship.391wphi1 On the other hand, the petitioner did not deny that he had sexual encounters with the respondent, only that it occurred on a much later date than the respondent asserted, such that it was physically impossible for the respondent to have been three (3) months pregnant already in September 1994 when he was informed of the pregnancy.40 However, the petitioner failed to substantiate his allegations of infidelity and insinuations of

promiscuity. His allegations, therefore, cannot be given credence for lack of evidentiary support.1wphi1 The petitioners denial cannot overcome the respondents clear and categorical assertions. The petitioner, as the RTC did, made much of the variance between the respondents direct testimony regarding their first sexual contact as "sometime in September 1993" and her cross-testimony when she stated that their first sexual contact was "last week of January 1993," as follows: ATTY. GO CINCO: When did the defendant, according to you, start courting you? A Q A Q A Third week of December 1992. And you accepted him? Last week of January 1993. And by October you already had your sexual intercourse? Last week of January 1993.

DECISION DAVIDE, JR., J.: This is a petition for review under Rule 45 of the Rules of Court of the 27 April 1995 decision of the Court of Appeals (CA) in CA-G.R. CV No. 32860lxii[1] which reversed the decision of Branch 24 of the Regional Trial Court (RTC) of Iloilo City in Civil Case No. 16373.lxiii[2] The latter dismissed the complaint of private respondent Monina Jison (hereafter MONINA) for recognition as an illegitimate child of petitioner Francisco Jison (hereafter FRANCISCO). In issue is whether or not public respondent Court of Appeals committed reversible error, which, in this instance, necessitates an inquiry into the facts. While as a general rule, factual issues are not within the province of this Court, nevertheless, in light of the conflicting findings of facts of the trial court and the Court of Appeals, this case falls under an exception to this rule.lxiv[3] In her complaintlxv[4] filed with the RTC on 13 March 1985, MONINA alleged that FRANCISCO had been married to a certain Lilia Lopez Jison since 1940. At the end of 1945 or the start of 1946, however, FRANCISCO impregnated Esperanza F. Amolar (who was then employed as the nanny of FRANCISCO's daughter, Lourdes). As a result, MONINA was born on 6 August 1946, in Dingle, Iloilo, and since childhood, had enjoyed the continuous, implied recognition as an illegitimate child of FRANCISCO by his acts and that of his family. MONINA further alleged that FRANCISCO gave her support and spent for her education, such that she obtained a Master's degree, became a certified public accountant (CPA) and eventually, a Central Bank examiner. In view of FRANCISCO's refusal to expressly recognize her, MONINA prayed for a judicial declaration of her illegitimate status and that FRANCISCO support and treat her as such. In his answer,lxvi[5] FRANCISCO alleged that he could not have had sexual relations with Esperanza Amolar during the period specified in the complaint as she had ceased to be in his employ as early as 1944, and did not know of her whereabouts since then; further, he never recognized MONINA, expressly or impliedly, as his illegitimate child. As affirmative and special defenses, FRANCISCO contended that MONINA had no right or cause of action against him and that her action was barred by estoppel, laches and/or prescription. He thus prayed for dismissal of the complaint and an award of damages due to the malicious filing of the complaint. After MONINA filed her reply,lxvii[6] pre-trial was conducted where the parties stipulated on the following issues: 1. Did Francisco Jison have any sexual relation[s] with Esperanza Am[o]lar about the end of 1945 or the start of 1946? 2. Is Monina Jison the recognized illegitimate daughter of Francisco Jison by the latters own acts and those of his family? 3. Is Monina Jison barred from instituting or prosecuting the present action by estoppel, laches and/or prescription? 4. Damages.lxviii[7]

COURT: What do you mean by accepting? A I accepted his offer of love.41

We find that the contradictions are for the most part more apparent than real, having resulted from the failure of the respondent to comprehend the question posed, but this misunderstanding was later corrected and satisfactorily explained. Indeed, when confronted for her contradictory statements, the respondent explained that that portion of the transcript of stenographic notes was incorrect and she had brought it to the attention of Atty. Josefino Go Cinco (her former counsel) but the latter took no action on the matter.42 Jurisprudence teaches that in assessing the credibility of a witness, his testimony must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony is not to consider only its isolated parts and to anchor a conclusion based on these parts. "In ascertaining the facts established by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered."43 Evidently, the totality of the respondent's testimony positively and convincingly shows that no real inconsistency exists. The respondent has consistently asserted that she started intimate sexual relations with the petitioner sometime in September 1993.44 Since filiation is beyond question, support follows as a matter of obligation; a parent is obliged to support his child, whether legitimate or illegitimate. 45 Support consists of everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.46 Thus, the amount of support is variable and, for this reason, no final judgment on the amount of support is made as the amount shall be in proportion to the resources or means of the giver and the necessities of the recipient.47 It may be reduced or increased proportionately according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to support. 48 In this case, we sustain the award of P2,000.00 monthly child support, without prejudice to the filing of the proper motion in the RTC for the determination of any support in arrears, considering the needs of the child, Gliffze, during the pendency of this case. WHEREFORE, we hereby DENY the petition for lack of merit. The March 5, 2004 decision and the July 27, 2004 resolution of the Court of Appeals in CA GR CV No. 76326 are hereby AFFIRMED. Costs against the petitioner. -FRANCISCO L. JISON, petitioner, vs. COURT OF APPEALS and MONINA JISON, respondent.

At trial on the merits, MONINA presented a total of eleven (11) witnesses, namely: herself, Ruben Castellanes, Sr., Adela Casabuena, Arsenio Duatin, Zafiro Ledesma, Danthea Lopez, Romeo Bilbao, Rudy Tingson, Alfredo Baylosis, Dominador Zavariz and Lope Amolar. Ruben Castellanes, Sr., a 63-year old resident of Iloilo City, testified that he had worked for FRANCISCO for a total of six (6) years at Nelly Garden, FRANCISCO's Iloilo residence. Towards the end of the Japanese occupation, FRANCISCOs wife suffered a miscarriage or abortion, thereby depriving FRANCISCO of consortium; thereafter, FRANCISCOs wife managed a nightclub on the ground floor of Nelly Garden which operated daily from 6:00 p.m. till 3:00 a.m. of the following day, thereby allowing FRANCISCO free access to MONINAs mother, Esperanza Amolar, who was nicknamed Pansay. Adela Casabuena, a 61-year old farmer, testified that she served as the yaya (nanny) of Lourdes from July 1946 up to February 1947. Although Pansay had left Nelly Garden two (2) weeks before Adela started working for the Jisons, Pansay returned sometime in September 1946, or about one month after she gave birth to MONINA, to ask FRANCISCO for support. As a result,

Pansay and Lilia Jison, FRANCISCO's wife, quarreled in the living room, and in the course thereof, Pansay claimed that FRANCISCO was the father of her baby. To which, Lilia replied: I did not tell you to make that baby so it is your fault. During the quarrel which lasted from 10:30 till 11:00 a.m., FRANCISCO was supposedly inside the house listening. Arsenio Duatin, a 77-year old retired laborer, testified that from 1947 until 1977, he worked as FRANCISCOs houseboy at the latters house on 12th Street, Capitol Subdivision, Bacolod City. Arsenio met MONINA in 1967, when Felipe Lagarto, the bookkeeper at Nelly Garden, informed Arsenio that MONINA, FRANCISCOs daughter, would arrive at Bacolod City with a letter of introduction from Lagarto. Initially, Arsenio identified seven (7) black-and-white photographs (Exhs. X-5 to X-11) of MONINA,lxix[8] and as he paid for the telephone bills, he likewise identified six (6) telephone cards (Exhs. G to L). Arsenio then declared that when MONINA arrived in Bacolod City, she introduced herself to him as FRANCISCOs daughter. She stayed at FRANCISCOs house, but when the latter and his wife would come over, Arsenio would conceal the presence of MONINA because Mrs. Jison did not like to see her face. Once, Arsenio hid MONINA in the house of FRANCISCOs sister, Mrs. Luisa Jison Alano, in Silay City; another time, at the residence of FRANCISCOs cousin, Mrs. Concha Lopez Cuaycong. Finally, Arsenio declared that the last time he saw MONINA was when she left for Manila, after having finished her schooling at La Salle College in Bacolod City. On re-direct and upon questions by the court, Arsenio disclosed that it was FRANCISCO who instructed that MONINA be hidden whenever FRANCISCO and his wife were around; that although FRANCISCO and MONINA saw each other at the Bacolod house only once, they called each other through long distance; and that MONINA addressed FRANCISCO as Daddy during their lone meeting at the Bacolod house and were affectionate to each other. Arsenio likewise declared that MONINA stayed at FRANCISCO's Bacolod house twice: first for a month, then for about a week the second time. On both occasions, however, FRANCISCO and his wife were abroad. Finally, Arsenio recalled that FRANCISCO likewise bade Arsenio to treat MONINA like his (FRANCISCOs) other daughters. The testimony of Zafiro Ledesma, a 74-year old banker and former mayor of Iloilo City, initially touched on how he and his wife were related to FRANCISCO, FRANCISCO's wife and MONINA. Zafiro first identified Exhibit R, a diagram of the family trees of the Jison and Lopez families, which showed that former Vice-President Fernando Lopez was the first cousin of FRANCISCOs wife, then told the court that the family of Vice-President Lopez treated MONINA very well because she is considered a relative xxx by reputation, by actual perception. Zafiro likewise identified Exhibits X-13 to X-18, photographs taken at the 14 April 1985 birthday celebration of Mrs. Fernando Lopez, which showed MONINA with the former Vice-President and other members of the Lopez family. Zafiro further testified that while MONINA lived with Mrs. Cuaycong, the latter paid for some of MONINAs school needs and even asked MONINA to work in a hospital owned by Mrs. Cuaycong; and that another first cousin of FRANCISCOs wife, a certain Remedios Lopez Franco, likewise helped MONINA with her studies and problems, and even attended MONINAs graduation in 1978 when she obtained a masteral degree in Business Administration, as evidenced by another photograph (Exh. X-12). Moreover, upon Remedios recommendation, MONINA was employed as a secretary at Merchant Financing Company, which was managed by a certain Danthea Lopez, the wife of another first cousin of FRANCISCOs wife, and among whose directors were Zafiro himself, his wife and Dantheas husband. In closing, Zafiro identified MONINAs Social Security Record (Exh. W), which was signed by Danthea as employer and where MONINA designated Remedios as the beneficiary. Danthea Lopez, a 58-year old housekeeper, declared that FRANCISCO was the first cousin of her husband, Eusebio D. Lopez; and that she came to know MONINA in the latter part of 1965 when Remedios Franco recommended MONINA for employment at Merchant Financing Co., which Danthea managed at that time. Remedios introduced MONINA to Danthea as being reputedly the daughter of Mr. Frank Jison; and on several occasions thereafter, Remedios made Danthea and the latters husband understand that MONINA was reputedly the daughter of [FRANCISCO]. While MONINA worked at Merchant Financing, Danthea knew that MONINA lived with Remedios; however, in the latter part of 1966, as Remedios left for Manila and MONINA was still studying at San Agustin University, Danthea and her husband invited MONINA to live with them. During MONINAs 6month stay with them, she was not charged for board and lodging and was treated as a relative, not a mere employee, all owing to what Remedios had

said regarding MONINAs filiation. As Danthea understood, MONINA resigned from Merchant Financing as she was called by Mrs. Cuaycong, a first cousin of Dantheas husband who lived in Bacolod City. Romeo Bilbao, a 43-year old seaman, testified that he had worked for FRANCISCO from 1969 up to 1980 at Nelly Garden in various capacities: as a procurement officer, hacienda overseer and, later, as hacienda administrator. Sometime in May, 1971, Romeo saw and heard MONINA ask her Daddy (meaning FRANCISCO) for the money he promised to give her, but FRANCISCO answered that he did not have the money to give, then told MONINA to go see Mr. Jose Cruz in Bacolod City. Then in the middle of September that year, FRANCISCO told Romeo to pick up Mr. Cruz at the Iloilo pier and bring him to the office of Atty. Benjamin Tirol. At said office, Atty. Tirol, Mr. Cruz and MONINA entered a room while Romeo waited outside. When they came out, Atty. Tirol had papers for MONINA to sign, but she refused. Atty. Tirol said that a check would be released to MONINA if she signed the papers, so MONINA acceded, although Atty. Tirol intended not to give MONINA a copy of the document she signed. Thereafter, Mr. Cruz gave MONINA a check (Exh. Q), then MONINA grabbed a copy of the document she signed and ran outside. Romeo then brought Mr. Cruz to Nelly Garden. As to his motive for testifying, Romeo stated that he wanted to help MONINA be recognized as FRANCISCOS daughter. Rudy Tingson, a 45-year old antique dealer, testified that in 1963-1964, he was employed by FRANCISCOs wife at the Baguio Military Institute in Baguio City; then in 1965, Rudy worked at FRANCISCOs office at Nelly Garden recording hacienda expenses, typing vouchers and office papers, and, at times, acting as paymaster for the haciendas. From the nature of his work, Rudy knew the persons receiving money from FRANCISCOs office, and clearly remembered that in 1965, as part of his job, Rudy gave MONINA her allowance from FRANCISCO four (4) times, upon instructions of a certain Mr. Lagarto to give MONINA P15.00 a month. Rudy likewise recalled that he first met MONINA in 1965, and that she would go to Nelly Garden whenever FRANCISCOs wife was not around. On some of these occasions, MONINA would speak with and address FRANCISCO as Daddy, without objection from FRANCISCO. In fact, in 1965, Rudy saw FRANCISCO give MONINA money thrice. Rudy further declared that in April 1965, FRANCISCOs office paid P250.00 to Funeraria Bernal for the funeral expenses of MONINAs mother. Finally, as to Rudy's motives for testifying, he told the court that he simply wanted to help bring out the truth and nothing but the truth, and that MONINAs filiation was common knowledge among the people in the office at Nelly Garden. On re-direct, Rudy declared that the moneys given by FRANCISCOs office to MONINA were not reflected in the books of the office, but were kept in a separate book, as Mr. Lagarto explained that FRANCISCOs wife and children should not know [of] this. Rudy further revealed that as to the garden meetings between FRANCISCO and MONINA, Rudy saw MONINA kiss FRANCISCO on the cheek both upon arriving and before leaving, and FRANCISCOs reaction upon seeing her was to smile and say in the Visayan dialect: Kamusta ka iha? (How are you, daughter?); and that MONINA was free to go inside the house as the household staff knew of her filiation, and that, sometimes, MONINA would join them for lunch. Alfredo Baylosis, a 62-year old retired accountant, testified that he worked for FRANCISCO at Central Santos-Lopez in Iloilo from 1951 up to 1961, then at Nelly Garden from 1961 until 1972. Alfredo first served FRANCISCO as a bookkeeper, then when Mr. Lagarto died in 1967 or 1969, Alfredo replaced Mr. Lagarto as office manager. Alfredo knew MONINA since 1961 as she used to go to Nelly Garden to claim her P15.00 monthly allowance given upon FRANCISCOs standing order. Alfredo further declared that MONINAs filiation was pretty well-known in the office; that he had seen MONINA and FRANCISCO go from the main building to the office, with FRANCISCOs arm on MONINAs shoulder; and that the office paid for the burial expenses of Pansay, but this was not recorded in the books in order to hide it from FRANCISCOs wife. Alfredo also disclosed that the disbursements for MONINAs allowance started in 1961 and were recorded in a separate cash book. In 1967, the allowances ceased when MONINA stopped schooling and was employed in Bacolod City with Miller, Cruz & Co., which served as FRANCISCOs accountant-auditor. Once, when Alfredo went to the offices of Miller, Cruz & Co. to see the manager, Mr. Atienza, and arrange for the preparation of FRANCISCOs income tax return, Alfredo chanced upon MONINA. When Alfredo asked her how she came to work there, she answered that her Daddy, FRANCISCO, recommended her, a fact confirmed by Mr. Atienza. Alfredo then claimed that Mr. Jose Cruz, a partner at Miller, Cruz & Co., was the most trusted man of FRANCISCO.

Dominador Savariz, a 55-year old caretaker, testified that he worked as FRANCISCOs houseboy at Nelly Garden from November 1953 up to 1965. One morning in April 1954, MONINA and her mother Pansay went to Nelly Garden and spoke with FRANCISCO for about an hour, during which time, Dominador was vacuuming the carpet about six (6) to seven (7) meters away. Due to the noise of the vacuum cleaner, FRANCISCO and MONINA spoke in loud voices, thus Dominador overheard their conversation. As FRANCISCO asked Pansay why they came, Pansay answered that they came to ask for the sustenance of his child MONINA. FRANCISCO then touched MONINA's head and asked: How are you Hija?, to which MONINA answered: Good morning, Daddy. After FRANCISCO told Pansay and MONINA to wait, he pulled something from his wallet and said to Pansay: I am giving this for the child. In May 1954, Dominador saw MONINA at Mr. Lagartos office where Dominador was to get the days expenses, while MONINA was claiming her allowance from Mr. Diasnes. The next month, Dominador saw MONINA at Nelly Garden and heard in the office that MONINA was there to get her allowance from her Daddy. In December 1960, Dominador saw MONINA at Nelly Garden, in the room of Don Vicente (father of FRANCISCOs wife), where she asked for a Christmas gift and she was calling Don Vicente, Lolo (grandfather). At that time, FRANCISCO and his wife were not around. Then sometime in 1961, when Dominador went to Mr. Lagartos office to get the marketing expenses, Dominador saw MONINA once more claiming her allowance. Dominador further testified that in February 1966, after he had stopped working for FRANCISCO, Dominador was at Mrs. Francos residence as she recommended him for employment with her sister, Mrs. Concha Cuaycong. There, he saw MONINA, who was then about 15 years old, together with Mrs. Francos daughter and son. Mrs. Franco pointed at MONINA and asked Dominador if he knew who MONINA was. Dominador answered that MONINA was FRANCISCOs daughter with Pansay, and then Mrs. Franco remarked that MONINA was staying with her (Mrs. Franco) and that she was sending MONINA to school at the University of San Agustin. Lope Amolar, a 50-year old resident of Dingle, Iloilo, and the younger brother of Esperanza Amolar (Pansay), testified that he worked for FRANCISCO as a houseboy from March to November 1945 at Nelly Garden. Thereafter, FRANCISCO sent Lope to work at Elena Apartments in Manila. By November 1945, Pansay was also working at Elena Apartments, where she revealed to Lope that FRANCISCO impregnated her. Lope then confronted FRANCISCO, who told Lope dont get hurt and dont cause any trouble, because I am willing to support your Inday Pansay and my child. Three (3) days after this confrontation, Lope asked for and received permission from FRANCISCO to resign because he (Lope) was hurt. On 21 October 1986, MONINA herself took the witness stand. At that time, she was 40 years old and a Central Bank Examiner. She affirmed that as evidenced by certifications from the Office of the Local Civil Registrar (Exhs. E and F) and baptismal certificates (Exhs. C and D), she was born on 6 August 1946 in Barangay Tabugon, Dingle, Iloilo, to Esperanza Amolar (who passed away on 20 April 1965) and FRANCISCO.lxx[9] MONINA first studied at Sagrado where she stayed as a boarder. While at Sagrado from 1952 until 1955 (up to Grade 4), her father, FRANCISCO, paid for her tuition fees and other school expenses. She either received the money from FRANCISCO or from Mr. Lagarto, or saw FRANCISCO give money to her mother, or Mr. Lagarto would pay Sagrado directly. After Sagrado, MONINA studied in different schools,lxxi[10] but FRANCISCO continuously answered for her schooling. For her college education, MONINA enrolled at the University of Iloilo, but she later dropped due to an accident which required a week's hospitalization. Although FRANCISCO paid for part of the hospitalization expenses, her mother shouldered most of them. In 1963, she enrolled at the University of San Agustin, where she stayed with Mrs. Franco who paid for MONINA's tuition fees. However, expenses for books, school supplies, uniforms and the like were shouldered by FRANCISCO. At the start of each semester, MONINA would show FRANCISCO that she was enrolled, then he would ask her to canvass prices, then give her the money she needed. After finishing two (2) semesters at University of San Agustin, as evidenced by her transcript of records (Exh. Z showing that FRANCISCO was listed as Parent/Guardian [Exh. Z-1]), she transferred to De Paul College, just in front of Mrs. Francos house, and studied there for a year. Thereafter, MONINA enrolled at Western Institute of Technology (WIT), where she obtained a bachelors degree in Commerce in April 1967. During her senior year, she stayed with Eusebio and Danthea Lopez at Hotel Kahirup, owned by said couple. She passed the CPA board exams in 1974, and took up an M.B.A. at De La Salle University as evidenced by her transcript (Exh. AA),

wherein FRANCISCO was likewise listed as Guardian (Exhs. AA-1 and AA2). MONINA enumerated the different members of the household staff at Nelly Garden, to wit: Luz, the household cook; the houseboys Silvestre and Doming; the housemaid Natang; the yaya of the adopted triplets, Deling; the yaya of Lolo Vicente, Adelina; and others. MONINA likewise enumerated the members of the office staff (Messrs. Baylosis, Lagarto, Tingson, Diasnes, Jalandoni, Supertisioso, Doroy, and others), and identified them from a photograph marked as Exhibit X-2. She then corroborated the prior testimony regarding her employment at Merchant Financing Co., and her having lived at Hotel Kahirup and at Mrs. Cuaycongs residence in Bacolod City, while working at the hospital owned by Mrs. Cuaycong. MONINA further testified that in March 1968, she went to Manila and met FRANCISCO at Elena Apartments at the corner of Romero and Salas Streets, Ermita. She told FRANCISCO that she was going for a vacation in Baguio City with Mrs. Francos mother, with whom she stayed up to June 1968. Upon her return from Baguio City, MONINA told FRANCISCO that she wanted to work, so the latter arranged for her employment at Miller & Cruz in Bacolod City. MONINA went to Bacolod City, was interviewed by Mr. Jose Cruz, a partner at Miller & Cruz, who told her she would start working first week of September, sans examination. She resigned from Miller & Cruz in 1971 and lived with Mrs. Cuaycong at her Forbes Park residence in Makati. MONINA went to see FRANCISCO, told him that she resigned and asked him for money to go to Spain, but FRANCISCO refused as she could not speak Spanish and would not be able find a job. The two quarreled and FRANCISCO ordered a helper to send MONINA out of the house. In the process, MONINA broke many glasses at the pantry and cut her hand, after which, FRANCISCO hugged her, gave her medicine, calmed her down, asked her to return to Bacolod City and promised that he would give her the money. MONINA returned to Bacolod City by plane, using a Filipinas Orient Airways plane ticket (Exh. M) which FRANCISCO gave. She called Mr. Cruz, then Atty. Tirol, as instructed by Mr. Cruz. These calls were evidenced by PLDT long distance toll cards (Exhs. G to L), with annotations at the back reading: charged and paid under the name of Frank L. Jison and were signed by Arsenio Duatin (Exhs. G-1 to L-1). PLDT issued a certification as to the veracity of the contents of the toll cards (Exh. BB). Likewise introduced in evidence was a letter of introduction prepared by Mr. Cruz addressed to Atty. Tirol, on MONINA's behalf (Exh. N). MONINA also declared that Atty. Tirol then told her that she would have to go to Iloilo and sign a certain affidavit, before Mr. Cruz would turn over the money promised by FRANCISCO. She went to Atty. Tirols office in Iloilo, but after going over the draft of the affidavit, refused to sign it as it stated that she was not FRANCISCOs daughter. She explained that all she had agreed with FRANCISCO was that he would pay for her fare to go abroad, and that since she was a little girl, she knew about her illegitimacy. She started crying, begged Atty. Tirol to change the affidavit, to which Atty. Tirol responded that he was also a father and did not want this to happen to his children as they could not be blamed for being brought into the world. She then wrote a letter (Exh. O) to FRANCISCO and sent it to the latters Forbes Park residence (Bauhinia Place) by JRS courier service (Exhs. O-5 to O-7). MONINA subsequently met FRANCISCO in Bacolod City where they discussed the affidavit which she refused to sign. FRANCISCO told her that the affidavit was for his wife, that in case she heard about MONINA going abroad, the affidavit would keep her peace. MONINA then narrated that the first time she went to Atty. Tirols office, she was accompanied by one Atty. Fernando Divinagracia, who advised her that the affidavit (Exh. P)lxxii[11] would boomerang against FRANCISCO as it is contrary to law. MONINA returned to Bacolod City, then met with Atty. Tirol once more to reiterate her plea, but Atty. Tirol did not relent. Thus, on the morning of 20 or 21 September 1971, she signed the affidavit as she was jobless and needed the money to support herself and finish her studies. In exchange for signing the document, MONINA received a Bank of Asia check for P15,000.00 (Exh. Q), which was less than the P25,000.00 which FRANCISCO allegedly promised to give. As Atty. Tirol seemed hesitant to give her a copy of the affidavit after notarizing it, MONINA merely grabbed a copy and immediately left. MONINA then prepared to travel abroad, for which purpose, she procured letters of introduction (Exhs. S and T) from a cousin, Mike Alano (son of FRANCISCOs elder sister Luisa); and an uncle, Emilio Jison (FRANCISCOs elder brother), addressed to another cousin, Beth Jison (Emilios daughter), for Beth to assist MONINA. Exhibit S contained a statement (Exh. S-1) expressly recognizing that MONINA was FRANCISCOs

daughter. Ultimately though, MONINA decided not to go abroad, opting instead to spend the proceeds of the P15,000.00 check for her CPA review, board exam and graduate studies. After finishing her graduate studies, she again planned to travel abroad, for which reason, she obtained a letter of introduction from former Vice President Fernando Lopez addressed to then United States Consul Vernon McAnnich (Exh. V). As to other acts tending to show her filiation, MONINA related that on one occasion, as FRANCISCOs wife was going to arrive at the latters Bacolod City residence, FRANCISCO called Arsenio Duatin and instructed Arsenio to hide MONINA. Thus, MONINA stayed with Mrs. Luisa Jison for the duration of the stay of FRANCISCOs wife. MONINA also claimed that she knew Vice President Fernando Lopez and his wife, Mariquit, even before starting to go to school. Thus, MONINA asked for a recommendation letter (Exh. U) from Mrs. Mariquit Lopez for possible employment with Mrs. Rosario Lopez Cooper, another second cousin of FRANCISCO. In Exhibit U, Mrs. Lopez expressly recognized MONINA as FRANCISCOs daughter. As additional proof of her close relationship with the family of Vice President Lopez, MONINA identified photographs taken at a birthday celebration on 14 April 1985. MONINA finally claimed that she knew the three (3) children of FRANCISCO by wife, namely, Lourdes, Francisco, Jr. (Junior) and Elena, but MONINA had met only Lourdes and Junior. MONINA's testimony dealt lengthily on her dealings with Junior and the two (2) occasions when she met with Lourdes. The last time MONINA saw FRANCISCO was in March 1979, when she sought his blessings to get married. In his defense, FRANCISCO offered his deposition taken before then Judge Romeo Callejo of the Regional Trial Court of Manila, Branch 48. As additional witnesses, FRANCISCO presented Nonito Jalandoni, Teodoro Zulla, Iigo Supertisioso, Lourdes Ledesma, Jose Cruz and Dolores Argenal. FRANCISCO declared that Pansays employment ceased as of October, 1944, and that while employed by him, Pansay would sleep with the other female helpers on the first floor of his residence, while he, his wife and daughter slept in a room on the second floor. At that time, his household staff was composed of three (3) female workers and two (2) male workers. After Pansay left in October 1944, she never communicated with him again, neither did he know of her whereabouts. FRANCISCO staunchly denied having had sexual relations with Pansay and disavowed any knowledge about MONINAs birth. In the same vein, he denied having paid for MONINAs tuition fees, in person or otherwise, and asserted that he never knew that Mr. Lagarto paid for these fees. Moreover, FRANCISCO could not believe that Lagarto would pay for these fees despite absence of instructions or approval from FRANCISCO. He likewise categorically denied that he told anyone, be it Danthea Lopez, Zafiro Ledesma, Concha Cuaycong or Remedios Franco, that MONINA was his daughter. FRANCISCO also disclosed that upon his return from the United States in 1971, he fired Alfredo Baylosis upon discovering that Alfredo had taken advantage of his position during the formers absence. FRANCISCO likewise fired Rudy Tingson and Romeo Bilbao, but did not give the reasons therefor. Finally, FRANCISCO denied knowledge of MONINAs long distance calls from his Bacolod residence; nevertheless, when he subsequently discovered this, he fired certain people in his office for their failure to report this anomaly. As regards the caretaker of his Bacolod residence, FRANCISCO explained that since MONINA lived at Mrs. Cuaycongs residence, the caretaker thought that he could allow people who lived at the Cuaycong residence to use the facilities at his (FRANCISCOs) house. Nonito Jalandoni, bookkeeper and paymaster at Nellys Garden from 1963 up to 1974, then from 1980 up to 1986, the assistant overseer of Hacienda Lopez, testified that he did not know MONINA; that he learned of her only in June 1988, when he was informed by FRANCISCO that MONINA had sued him; and that he never saw MONINA at Nellys Garden, neither did he know of any instructions for anyone at Nellys Garden to give money to MONINA. Teodoro Zulla, FRANCISCOs bookkeeper and paymaster from 1951 up to 1986, testified that FRANCISCO dismissed Alfredo Baylosis due to certain unspecified discrepancies; and that he never saw MONINA receive funds from either Mr. Lagarto or Mr. Baylosis. Upon questions from the trial court, however, Teodoro admitted that he prepared vouchers for only one of FRANCISCOs haciendas, and not vouchers pertaining to the latters personal expenses.

Iigo Supertisioso testified that he worked for FRANCISCO at Nellys Garden from 1964 up to 1984 as a field inspector, paymaster, cashier and, eventually, officer-in-charge (OIC). He confirmed Alfredo Baylosis dismissal due to these unspecified irregularities, then denied that FRANCISCO ever ordered that MONINA be given her allowance. Likewise, Iigo never heard FRANCISCO mention that MONINA was his (FRANCISCOs) daughter. Lourdes Ledesma, FRANCISCOs daughter, testified that she saw (but did not know) MONINA at the Our Lady of Mercy Hospital, on the occasion of the birth of Lourdes first son, Mark. Over lunch one day, Lourdes aunt casually introduced Lourdes and MONINA to each other, but they were referred to only by their first names. Then sometime in 1983 or 1984, MONINA allegedly went to Lourdes house in Sta. Clara Subdivision requesting for a letter of introduction or referral as MONINA was then job-hunting. However, Lourdes did not comply with the request. Jose Cruz, a partner at Miller, Cruz & Co., testified that MONINA worked at Miller & Cruz from 1968 up to 1971, however, he did not personally interview her before she was accepted for employment. Moreover, MONINA underwent the usual screening procedure before being hired. Jose recalled that one of the accountants, a certain Mr. Atienza, reported that MONINA claimed to be FRANCISCOs daughter. Jose then told Mr. Atienza to speak with MONINA and see if he (Mr. Atienza) could stop her from spreading this rumor. Mr. Atienza reported that he spoke with MONINA, who told him that she planned to leave for the United States and needed P20,000.00 for that purpose, and in exchange, she would sign a document disclaiming filiation with FRANCISCO. Thus, Jose instructed Mr. Atienza to request that MONINA meet with Jose, and at that meeting, MONINA confirmed Mr. Atienzas report. Jose then informed Atty. Tirol, FRANCISCOs personal lawyer, about the matter. Atty. Tirol told Jose to send MONINA and her lawyer to his (Atty. Tirols) office in Iloilo. Jose then wrote out a letter of introduction for MONINA addressed to Atty. Tirol. Jose relayed Atty. Tirols message to MONINA through Mr. Atienza, then later, Atty. Tirol told Jose to go to Iloilo with a check for P15,000.00. Jose complied, and at Atty. Tirols office, Jose saw MONINA, Atty. Tirol and his secretary reading some documents. MONINA then expressed her willingness to sign the document, sans revisions. Jose alleged that he drew the P15,000.00 from his personal funds, subject to reimbursement from and due to an understanding with FRANCISCO. Dolores Argenal, a househelper at Nelly Garden from May 1944 up to May 1946, testified that she knew that Pansay was Lourdes nanny; that Lourdes slept in her parents room; that she had not seen FRANCISCO give special treatment to Pansay; that there was no unusual relationship between FRANCISCO and Pansay, and if there was any, Dolores would have easily detected it since she slept in the same room as Pansay. Dolores further declared that whenever FRANCISCOs wife was out of town, Pansay would bring Lourdes downstairs at nighttime, and that Pansay would not sleep in the room where FRANCISCO slept. Finally, Dolores declared that Pansay stopped working for FRANCISCO and his wife in October, 1944. The reception of evidence having been concluded, the parties filed their respective memoranda. It need be recalled that Judge Catalino Castaeda, Jr. presided over trial up to 21 October 1986, thereby hearing only the testimonies of MONINAs witnesses and about half of MONINAs testimony on direct examination. Judge Norberto E. Devera, Jr. heard the rest of MONINA's testimony and those of FRANCISCOs witnesses. In its decision of 12 November 1990lxxiii[12] the trial court, through Judge Devera, dismissed the complaint with costs against MONINA. In the opening paragraph thereof, it observed: This is a complaint for recognition of an illegitimate child instituted by plaintiff Monina Jison against defendant Francisco Jison. This complaint was filed on March 13, 1985 at the time when plaintiff, reckoned from her death of birth, was already thirty-nine years old. Noteworthy also is the fact that it was instituted twenty years after the death of plaintiffs mother, Esperanza Amolar. For the years between plaintiffs birth and Esperanzas death, no action of any kind was instituted against defendant either by plaintiff, her mother Esperanza or the latters parents. Neither had plaintiff brought such an action against defendant immediately upon her mothers death on April 20, 1965, considering that she was then already nineteen years old or, within a reasonable time thereafter. Twenty years more had to supervene before this complaint was eventually instituted.

The trial court then proceeded to discuss the four issues stipulated at pretrial, without, however, summarizing the testimonies of the witnesses nor referring to the testimonies of the witnesses other than those mentioned in the discussion of the issues. The trial court resolved the first issue in the negative, holding that it was improbable for witness Lope Amolar to have noticed that Pansay was pregnant upon seeing her at the Elena Apartments in November 1945, since Pansay was then only in her first month of pregnancy; that there was no positive assertion that copulation did indeed take place between Francisco and Esperanza; and that MONINAs attempt to show opportunity on the part of FRANCISCO failed to consider that there was also the opportunity for copulation between Esperanza and one of the several domestic helpers admittedly also residing at Nellys Garden at that time. The RTC also ruled that the probative value of the birth and baptismal certificates of MONINA paled in light of jurisprudence, especially when the misspellings therein were considered. The trial court likewise resolved the second issue in the negative, finding that MONINAs evidence thereon may either be one of three categories, namely: hearsay evidence, incredulous evidence, or self-serving evidence." To the first category belonged the testimonies of Adela Casabuena and Alfredo Baylosis, whose knowledge of MONINAs filiation was based, as to the former, on utterances of defendants wife Lilia and Esperanza allegedly during the heat of their quarrel, while as to the latter, Alfredo's conclusion was based from the rumors going [around] that plaintiff is defendants daughter, from his personal observation of plaintiffs facial appearance which he compared with that of defendants and from the way the two (plaintiff and defendant) acted and treated each other on one occasion that he had then opportunity to closely observe them together. To the second category belonged that of Dominador Savariz, as: At each precise time that Esperanza allegedly visited Nellys Garden and allegedly on those occasions when defendants wife, Lilia was in Manila, this witness was there and allegedly heard pieces of conversation between defendant and Esperanza related to the paternity of the latters child. xxx The RTC then placed MONINAs testimony regarding the acts of recognition accorded her by FRANCISCOs relatives under the third category, since the latter were never presented as witnesses, for which reason the trial court excluded the letters from FRANCISCOs relatives (Exhs. S to V). As to the third issue, the trial court held that MONINA was not barred by prescription for it was of the perception that the benefits of Article 268 accorded to legitimate children may be availed of or extended to illegitimate children in the same manner as the Family Code has so provided; or by laches, which is [a] creation of equity applied only to bring equitable results, and addressed to the sound discretion of the court [and] the circumstances [here] would show that whether plaintiff filed this case immediately upon the death of her mother Esperanza in 1965 or twenty years thereafter in 1985, xxx there seems to be no inequitable result to defendant as related to the situation of plaintiff. The RTC ruled, however, that MONINA was barred by estoppel by deed because of the affidavit (Exh. P/Exh. 2) which she signed when she was already twenty-five years, a professional and under the able guidance of counsel. Finally, the RTC denied FRANCISCOs claim for damages, finding that MONINA did not file the complaint with malice, she having been propelled by an honest belief, founded on probable cause. MONINA seasonably appealed to the Court of Appeals (CA-G.R. CV No. 32860) and sought reversal of the trial courts decision on the grounds that: I THE TRIAL COURT WAS ERRONEOUSLY PREDISPOSED TO ADJUDGE THIS CASE AGAINST APPELLANT DUE TO ITS MISPERCEPTION THAT APPELLANTS DELAY IN FILING HER COMPLAINT WAS FATAL TO HER CASE. II

THE TRIAL COURT ERRED IN ITS REJECTION OF THE TESTIMONIES OF APPELLANTS WITNESSES AS TAILOR-MADE, INADEQUATE AND INCREDIBLE. III THE TRIAL COURT ERRED IN ITS REJECTION OF THE ADMISSIBILITY OF THE CERTIFIED COPIES OF PUBLIC DOCUMENTS PRESENTED BY APPELLANT AS PART OF HER EVIDENCE. IV THE TRIAL COURT ERRED IN ITS REQUIREMENT THAT A WITNESS TO THE ACTUAL ACT OF COPULATION BETWEEN THE APPELLEE AND APPELLANTS MOTHER SHOULD HAVE POSITIVELY TESTIFIED TO SAID EFFECT. V THE TRIAL COURT ERRED IN REJECTING THE ADMISSIBILITY OF THE DULY IDENTIFIED NOTES AND LETTER OF THE RELATIVES OF THE APPELLEE AS HEARSAY. VI THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANTS AFFIDAVIT (EXH. P) SERVED AS A BAR AGAINST HER CLAIM FOR RECOGNITION INSTEAD OF REINFORCING SAID CLAIM.lxxiv[13] Expectedly, FRANCISCO refuted these alleged errors in his Appellees Brief.lxxv[14] In its decision of 27 April 1995,lxxvi[15] the Court of Appeals initially declared that as no vested or acquired rights were affected, the instant case was governed by Article 175, in relation to Articles 172 and 173, of the Family Code.lxxvii[16] While the Court of Appeals rejected the certifications issued by the Local Civil Registrar of Dingle, Iloilo (Exhs. E and F) as FRANCISCO did not sign them, said court focused its discussion on the other means by which illegitimate filiation could be proved, i.e., the open and continuous possession of the status of an illegitimate child or, by any other means allowed by the Rules of Court and special laws, such as the baptismal certificate of the child, a judicial admission, a family bible wherein the name of the child is entered, common reputation respecting pedigree, admission by silence, testimonies of witnesses xxx.lxxviii[17] To the Court of Appeals, the bottom line issue was whether or not MONINA established her filiation as FRANCISCOs illegitimate daughter by preponderance of evidence, as to which issue said court found: [N]ot just preponderant but overwhelming evidence on record to prove that [MONINA] is the illegitimate daughter of [FRANCISCO] and that she had continuously enjoyed such status by direct acts of [FRANCISCO] and/or his relatives. In so ruling, the Court of Appeals observed that the testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz were already sufficient to establish MONINAs filiation: As adverted to earlier, the trial court discredited Lope Amolars testimony by saying that Lope could not have detected Esperanzas pregnant state in November, 1945 since at that point in time [sic] she was still in the initial stage of pregnancy. Apparently, the trial court paid more emphasis on the date mentioned by Lope Amolar than on the tenor and import of his testimony. As xxx Lope xxx was asked about an incident that transpired more than 41 years back, [u]nder the circumstances, it is unreasonable to expect that Lope could still be dead right on the specific month in 1945 that [he] met and confronted his sister. At any rate, what is important is not the month that they met but the essence of his testimony that his sister pointed to their employer [FRANCISCO] as the one responsible for her pregnancy, and that upon being confronted, [FRANCISCO] assured him of support for Esperanza and their child. It would appear then that in an attempt to find fault with Lopes testimony, the trial court has fallen oblivious to the fact that even [FRANCISCO], in his deposition, did not deny that he was confronted by Lope about what he had done to Esperanza, during which he unequivocally acknowledged paternity by assuring Lope of support for both Esperanza and their child.

The Court of Appelas further noted that Casabuena and Savariz testified on something that they personally observed or witnessed, which matters FRANCISCO did not deny or refute. Finally, said court aptly held: Taking into account all the foregoing uncontroverted testimonies xxx let alone such circumstantial evidence as [MONINAs] Birth Certificates xxx and Baptismal Certificates which invariably bear the name of [FRANCISCO] as her father, We cannot go along with the trial courts theory that [MONINAs] illegitimate filiation has not been satisfactorily established. xxx Significantly, [MONINAs] testimony finds ample corroboration from [FRANCISCOs] former employees, Arsenio Duatin, Rudy Tingson and Alfredo Baylosis. xxx xxx Carefully evaluating appellants evidence on her enjoyment of the status of an illegitimate daughter of [FRANCISCO] vis-a-vis [FRANCISCOs] controversion thereof, We find more weight in the former. The positive testimonies of [MONINA] and [her] witnesses xxx all bearing on [FRANCISCOs] acts and/or conduct indubitably showing that he had continuously acknowledged [MONINA] as his illegitimate daughter have not been succeessfully [sic] refuted. In fact, [FRANCISCO] himself, in his deposition, only casually dismissed [MONINAs] exhaustive and detailed testimony as untrue, and with respect to those given by [MONINAs] witnesses, he merely explained that he had fired [them] from their employment. Needless to state, [FRANCISCOs] vague denial is grossly inadequate to overcome the probative weight of [MONINAs] testimonial evidence. Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does not hold sway in the face of [MONINAs] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse xxx. Further, the testimony of Jose Cruz concerning the events that led to the execution of the affidavit xxx could not have been true, for as pointed out by [MONINA], she signed the affidavit xxx almost five months after she had resigned from the Miller, Cruz & Co. xxx At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA]. xxx In fine, We hold that [MONINAs] filiation as [FRANCISCOs] illegitimate daughter has been conclusively established by the uncontroverted testimonies of Lope Amolar, Adela Casabuena and Dominador Savariz to the effect that appellee himself had admitted his paternity of the appellee, and also by the testimonies of appellant, Arsenio Duatin, Romeo Bilbao, Rudy Tingson and Alfredo Baylosis unerringly demonstrating that by his own conduct or overt acts like sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado Corazon de Jesus, defraying appellants hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellants mother, acknowledging appellants paternal greetings and calling appellant his Hija or child, instructing his office personnel to give appellants monthly allowance, recommending appellant for employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5), appellee had continuously recognized appellant as his illegitimate daughter. Added to these are the acts of [FRANCISCOs] relatives acknowledging or treating [MONINA] as [FRANCISCOs] daughter (Exh U) or as their relative (Exhs T & V). On this point, witness Zafiro Ledesma, former Mayor of Iloilo City, whose spouse belongs to the Lopez clan just like [FRANCISCO], testified that [MONINA] has been considered by the Lopezes as a relative. He identified pictures of the appellee in the company of the Lopezes (Exhs X-16 & X-17). Another witness, Danthea H. Lopez, whose husband Eusebio Lopez is appellees first cousin, testified that appellant was introduced to her by appellees cousin, Remedios Lopez Franco, as the daughter of appellee Francisco Jison, for which reason, she took her in as [a] secretary in the Merchants Financing Corporation of which

she was the manager, and further allowed her to stay with her family free of board and lodging. Still on this aspect, Dominador Savariz declared that sometime in February, 1966 appellees relative, Ms. Remedios Lopez Franco pointed to appellant as the daughter of appellee Francisco Jison. Finally, the Certifications of the Local Civil Registrar of Dingle (Exhs E and F) as well as [MONINAs] Baptismal Certificates (Exhs C & D) which the trial ocurt admitted in evidence as part of [MONINAs] testimony, may serve as circumstantial evidence to further reinforce [MONINAs] claim that she is [FRANCISCOs] illegitimate daughter by Esperanza Amolar. True it is that a trial judges assessment of the credibility of witnesses is accorded great respect on appeal. But the rule admits of certain exceptions. One such exception is where the judge who rendered the judgment was not the one who heard the witnesses testify. [citations omitted] The other is where the trial court had overlooked, misunderstood or misappreciated some facts or circumstances of weight and substance which, if properly considered, might affect the result of the case. [citations omitted] In the present case, both exceptions obtain. All of [MONINAs] witnesses xxx whose testimonies were not given credence did not testify before the judge who rendered the disputed judgment. xxx The Court of Appeals then decreed: WHEREFORE, premises considered, the judgment of the trial court is SET ASIDE and another one is hereby entered for appellant Monina Jison, declaring her as the illegitimate daughter of appellee Francisco Jison, and entitled to all rights and privileges granted by law. Costs against appellee. SO ORDERED. His motion for reconsideration having been denied by the Court of Appeals in its resolution of 29 March 1996,lxxix[18] FRANCISCO filed the instant petition. He urges us to reverse the judgment of the Court of Appeals, alleging that said court committed errors of law: I. IN REVERSING THE DECISION OF THE TRIAL COURT AND DECLARING PRIVATE RESPONDENT AS THE ILLEGITIMATE CHILD OF PETITIONER, CONSIDERING [THE] IMPOSSIBILITY OF SEXUAL CONTACT BETWEEN THE PETITIONER AND THE PRIVATE RESPONDENT'S MOTHER AT THE TIME CONCEPTION WAS SUPPOSED TO HAVE OCCURRED. II. IN REVERSING THE TRIAL COURTS FINDING CONSIDERING THAT PRIVATE RESPONDENT'S TESTIMONIAL EVIDENCE OF PATERNITY AND FILIATION IS NOT CLEAR AND CONVINCING. III. IN GIVING CREDENCE TO DOCUMENTARY EVIDENCE PRESENTED BY THE PRIVATE RESPONDENT AS EVIDENCE OF FILIATION CONSIDERING THAT THE SAME ARE HEARSAY, SELF-SERVING AND CANNOT BIND THE PETITIONER UNDER THE BASIC RULES OF EVIDENCE. IV. IN INTERPRETING THE PRIVATE RESPONDENT'S SWORN STATEMENT (EXH. P/EXH. 2) IN A MANNER NOT IN CONSONANCE WITH THE RULINGS OF THE HONORABLE SUPREME COURT. V. IN NOT CONSIDERING THE LONG AND UNEXPLAINED DELAY IN THE FILING OF THE PRESENT PATERNITY SUIT AS EQUIVALENT TO LACHES.

As regards the first error, FRANCISCO insists that taking into account the second paragraph of MONINAs complaint wherein she claimed that he and Pansay had sexual relations by about the end of 1945 or the start of 1946, it was physically impossible for him and Pansay to have had sexual contact which resulted in MONINAs birth, considering that: The normal period of human pregnancy is nine (9) months. If as claimed by private respondent in her complaint that her mother was impregnated by FRANCISCO at the end of 1945 or the start of 1946, she would have been born sometime in late September or early October and not August 6, 1946 xxx. The instant case finds factual and legal parallels in Constantino vs. Mendez,lxxx[19] thus: xxx FRANCISCO further claims that his testimony that Pansay was no longer employed by him at the time in question was unrebutted, moreover, other men had access to Pansay during the time of or even after her employment by him. As to the second error, FRANCISCO submits that MONINAs testimonial evidence is shaky, contradictory and unreliable, and proceeds to attack the credibility of her witnesses by claiming, in the main, that: (a) Lope Amolar could not have detected Pansays pregnancy in November 1945 when they met since she would have been only one (1) month pregnant then; (b) Dominador Savariz did not in fact witness the meeting between FRANCISCO, Pansay and MONINA; (c) Zafiro Ledesma had an ulterior motive in testifying for MONINA as he owned a bank in Iloilo which was then under Central Bank supervision and MONINA was the Bank Examiner assigned to Iloilo; and (d) Danthea Lopez was not related to him by blood and whatever favorable treatment MONINA received from Danthea was due to the formers employment at Merchants Financing Company and additional services rendered at Kahirup Hotel; besides, Danthea admitted that she had no personal knowledge as to the issue of paternity and filiation of the contending parties, hence Sections 39 and 40lxxxi[20] of Rule 130 of the Rules of Court did not come into play. FRANCISCO likewise re-echoes the view of the trial court as regards the testimonies of Adela Casabuena and Alfredo Baylosis. FRANCISCO further asserts that MONINAs testimony that he answered for her schooling was self-serving and uncorroborated by any receipt or other documentary evidence; and assuming he did, such should be interpreted as a manifestation of kindness shown towards the family of a former household helper. Anent the treatment given by his relatives to MONINA as his daughter, FRANCISCO points to the fact that Pansay was the former laundrywoman of Mrs. Franco; MONINA resided with the families of Eusebio Lopez and Concha Cuaycong because she was in their employ at Kahirup Hotel and Our Lady of Mercy Hospital, respectively; MONINA failed to present Mrs. Franco, Eusebio Lopez and Mrs. Cuaycong; and MONINAs employment at the accounting firm of Miller, Cruz & Co. was attributable to her educational attainment, there being absolutely no evidence to prove that FRANCISCO ever facilitated her employment thereat. Hence, in light of Baluyot v. Baluyot,lxxxii[21] the quantum of evidence to prove paternity by clear and convincing evidence, not merely a preponderance thereof, was not met. With respect to the third assigned error, FRANCISCO argues that the Court of Appeals reliance on the certifications of the Local Civil Registrar (Exhs. E and F) and Baptismal Certificates (Exhs. C and D) as circumstantial evidence is misplaced. First, their genuineness could not be ascertained as the persons who issued them did not testify. Second, in light of Reyes v. Court of Appeals,lxxxiii[22] the contents of the baptismal certificates were hearsay, as the data was based only on what was told to the priest who solemnized the baptism, who likewise was not presented as a witness. Additionally, the name of the father appearing therein was Franque Jison, which was not FRANCISCOs name. Third, in both Exhibits E and F, the names of the childs parents were listed as Frank Heson and Esperanza Amador (not Amolar). FRANCISCO further points out that in Exhibit F, the status of the child is listed as legitimate, while the fathers occupation as laborer. Most importantly, there was no showing that FRANCISCO signed Exhibits E and F or that he was the one who reported the childs birth to the Office of the Local Civil Registrar. As to MONINAs educational records, FRANCISCO invokes Baas v. Baaslxxxiv[23] which recognized that school records are prepared by school authorities, not by putative parents, thus incompetent to prove paternity. And, as to the photographs presented by MONINA, FRANCISCO cites Colorado v. Court of Appeals,lxxxv[24] and further asserts that MONINA did not present any of the persons with whom she is seen in the pictures to testify thereon; besides these persons were, at best, mere second cousins of FRANCISCO. He likewise assails the various notes and letters written by his relatives (Exhs. S to V) as they were not identified by the authors. Finally, he

stresses that MONINA did not testify as to the telephone cards (Exhs. G to L) nor did these reveal the circumstances surrounding the calls she made from his residence. Anent the fourth assigned error, FRANCISCO contends that the Court of Appeals interpretation of MONINAs affidavit of 21 September 1971 ran counter to Dequito v. Llamas,lxxxvi[25] and overlooked that at the time of execution, MONINA was more than 25 years old and assisted by counsel. As to the last assigned error, FRANCISCO bewails the Court of Appeals failure to consider the long and unexplained delay in the filing of the case. In her comment, MONINA forcefully refuted FRANCISCOs argum ents, leading FRANCISCO to file his reply thereto. On 20 November 1996, we gave due course to this petition and required the parties to submit their respective memoranda, which they subsequently did. A painstaking review of the evidence and arguments fails to support petitioner. Before addressing the merits of the controversy, we first dispose of preliminary matters relating to the applicable law and the guiding principles in paternity suits. As to the former, plainly, the Family Code of the Philippines (Executive Order No. 209) governs the present controversy. As correctly cited by the Court of Appeals, Uyguangcolxxxvii[26] served as a judicial confirmation of Article 256 of the Family Codelxxxviii[27] regarding its retroactive effect unless there be impairment of vested rights, which does not hold true here, it appearing that neither the putative parent nor the child has passed away and the former having actually resisted the latters claim below. Under Article 175 of the Family Code, illegitimate filiation, such as MONINA's, may be established in the same way and on the same evidence as that of legitimate children. Article 172 thereof provides the various forms of evidence by which legitimate filiation is established, thus: ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or An admission of legitimate filiation in a public document or a private handwritten instrument signed by the parent concerned.

(2)

In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

(2)

This Article reproduces, with amendments, Articles 265, 266 and 267 of the Civil Code. For the success of an action to establish illegitimate filiation under the second paragraph, which MONINA relies upon given that she has none of the evidence mentioned in the first paragraph, a high standard of prooflxxxix[28] is required. Specifically, to prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity. Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously.xc[29] By continuous is meant uninterrupted and consistent, but does not require any particular length of time.xci[30]

The foregoing standard of proof required to establish ones filiation is founded on the principle that an order for recognition and support may create an unwholesome atmosphere or may be an irritant in the family or lives of the parties, so that it must be issued only if paternity or filiation is established by clear and convincing evidence.xcii[31] The foregoing discussion, however, must be situated within the general rules on evidence, in light of the burden of proof in civil cases, i.e., preponderance of evidence, and the shifting of the burden of evidence in such cases. Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs prima facie case, otherwise, a verdict must be returned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a preponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendants. The concept of preponderance of evidence refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probability of truth.xciii[32] With these in mind, we now proceed to resolve the merits of the instant controversy. FRANCISCOs arguments in support of his first assigned error deserve scant consideration. While it has been observed that unlawful intercourse will not be presumed merely from proof of an opportunity for such indulgence,xciv[33] this does not favor FRANCISCO. Akin to the crime of rape where, in most instances, the only witnesses to the felony are the participants in the sexual act themselves, in deciding paternity suits, the issue of whether sexual intercourse actually occurred inevitably redounds to the victims or mothers word, as against the accuseds or putative fathers protestations. In the instant case, MONINAs mother could no longer testify as to the fact of intercourse, as she had, unfortunately, passed away long before the institution of the complaint for recognition. But this did not mean that MONINA could no longer prove her filiation. The fact of her birth and her parentage may be established by evidence other than the testimony of her mother. The paramount question then is whether MONINAs evidence is coherent, logical and natural.xcv[34] The complaint stated that FRANCISCO had carnal knowledge of Pansay by about the end of 1945. We agree with MONINA that this was broad enough to cover the fourth quarter of said year, hence her birth on 6 August 1946 could still be attributed to sexual relations between FRANCISCO and MONINAs mother. In any event, since it was established that her mother was still in the employ of FRANCISCO at the time MONINA was conceived as determined by the date of her birth, sexual contact between FRANCISCO and MONINAs mother was not at all impossible, especially in light of the overwhelming evidence, as hereafter shown, that FRANCISCO fathered MONINA, has recognized her as his daughter and that MONINA has been enjoying the open and continuous possession of the status as FRANCISCOs illegitimate daughter. We readily conclude that the testimonial evidence offered by MONINA, woven by her narration of circumstances and events that occurred through the years, concerning her relationship with FRANCISCO, coupled with the testimonies of her witnesses, overwhelmingly established the following facts: 1) FRANCISCO is MONINAs father and she was conceived at the time when her mother was in the employ of the former; 2) FRANCISCO recognized MONINA as his child through his overt acts and conduct which the Court of Appeals took pains to enumerate, thus: [L]ike sending appellant to school, paying for her tuition fees, school uniforms, books, board and lodging at the Colegio del Sagrado de Jesus, defraying appellants hospitalization expenses, providing her with [a] monthly allowance, paying for the funeral expenses of appellants mother, acknowledging appellants paternal greetings and calling appellant his Hija or child, instructing his office personnel to give appellants monthly allowance, recommending appellant for employment at the Miller, Cruz & Co., allowing appellant to use his house in Bacolod and paying for her long distance telephone calls, having appellant spend her vacation in his apartment in Manila and also at his Forbes residence, allowing appellant to use his surname in

her scholastic and other records (Exhs Z, AA, AA-1 to AA-5, W & W-5) 3) Such recognition has been consistently shown and manifested throughout the years publicly,xcvi[35] spontaneously, continuously and in an uninterrupted manner.xcvii[36] Accordingly, in light of the totality of the evidence on record, the second assigned error must fail. There is some merit, however, in the third assigned error against the probative value of some of MONINAs documentary evidence. MONINAs reliance on the certification issued by the Local Civil Registrar concerning her birth (Exhs. E and F) is clearly misplaced. It is settled that a certificate of live birth purportedly identifying the putative father is not competent evidence as to the issue of paternity, when there is no showing that the putative father had a hand in the preparation of said certificates, and the Local Civil Registrar is devoid of authority to record the paternity of an illegitimate child upon the information of a third person.xcviii[37] Simply put, if the alleged father did not intervene in the birth certificate, e.g., supplying the information himself, the inscription of his name by the mother or doctor or registrar is null and void; the mere certificate by the registrar without the signature of the father is not proof of voluntary acknowledgment on the latters part.xcix[38] In like manner, FRANCISCOs lack of participation in the preparation of the baptismal certificates (Exhs. C and D) and school records (Exhs. Z and AA) renders these documents incompetent to prove paternity, the former being competent merely to prove the administration of the sacrament of baptism on the date so specified.c[39] However, despite the inadmissibility of the school records per se to prove paternity, they may be admitted as part of MONINAs testimony to corroborate her claim that FRANCISCO spent for her education. We likewise disagree with the ruling of the Court of Appeals that the certificates issued by the Local Civil Registrar and the baptismal certificates may be taken as circumstantial evidence to prove MONINAs filiation. Since they are per se inadmissible in evidence as proof of such filiation, they cannot be admitted indirectly as circumstantial evidence to prove the same. As to Exhibits S, T, U and V, the various notes and letters wri tten by FRANCISCOs relatives, namely Mike Alano, Emilio Jison, Mariquit Lopez and Fernando Lopez, respectively, allegedly attesting to MONINAs filiation, while their due execution and authenticity are not in issue,ci[40] as MONINA witnessed the authors signing the documents, nevertheless, under Rule 130, Section 39, the contents of these documents may not be admitted, there being no showing that the declarants-authors were dead or unable to testify, neither was the relationship between the declarants and MONINA shown by evidence other than the documents in question.cii[41] As to the admissibility of these documents under Rule 130, Section 40, however, this requires further elaboration. Rule 130, Section 40, provides: Section 40. Family reputation or tradition regarding pedigree. -- The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engravings on rings, family portraits and the like, may be received as evidence of pedigree. (underscoring supplied) It is evident that this provision may be divided into two (2) parts: the portion containing the first underscored clause which pertains to testimonial evidence, under which the documents in question may not be admitted as the authors thereof did not take the witness stand; and the section containing the second underscored phrase. What must then be ascertained is whether Exhibits S to V, as private documents, fall within the scope of the clause and the like as qualified by the preceding phrase [e]ntries in family bibles or other family books or charts, engravings on rights [and] family portraits. We hold that the scope of the enumeration contained in the second portion of this provision, in light of the rule of ejusdem generis, is limited to objects which are commonly known as family possessions, or those articles which represent, in effect, a familys joint statement of its belief as to the pedigree of a person.ciii[42] These have been described as objects openly exhibited and well known to the family,civ[43] or those which, if preserved in a family, may

be regarded as giving a family tradition.cv[44] Other examples of these objects which are regarded as reflective of a familys reputation or tradition regarding pedigree are inscriptions on tombstones,cvi[45] monuments or coffin plates.cvii[46] Plainly then, Exhibits S to V, as private documents not constituting "family possessions" as discussed above, may not be admitted on the basis of Rule 130, Section 40. Neither may these exhibits be admitted on the basis of Rule 130, Section 41 regarding common reputation,cviii[47] it having been observed that: [T]he weight of authority appears to be in favor of the theory that it is the general repute, the common reputation in the family, and not the common reputation in community, that is a material element of evidence going to establish pedigree. xxx [Thus] matters of pedigree may be proved by reputation in the family, and not by reputation in the neighborhood or vicinity, except where the pedigree in question is marriage which may be proved by common reputation in the community.cix[48] Their inadmissibility notwithstanding, Exhibits S to V, inclusive, may, in like manner as MONINA's school records, properly be admitted as part of her testimony to strengthen her claim that, indeed, relatives of FRANCISCO recognized her as his daughter. We now direct our attention to MONINAs 21 September 1971 affidavit (Exh. P/Exh. 2), subject of the fourth assigned error, where she attests that FRANCISCO is not her father. MONINA contends that she signed it under duress, i.e., she was jobless, had no savings and needed the money to support herself and finish her studies. Moreover, she signed Exhibit P upon the advice of Atty. Divinagracia that filiation could not be waived and that FRANCISCOs ploy would boomerang upon him. On the other hand, FRANCISCO asserts that full credence should be afforded Exhibit P as MONINA was already 25 years old at the time of its execution and was advised by counsel; further, being a notarized document, its genuineness and due execution could not be questioned. He relies on the testimony of Jose Cruz, a partner at the accounting firm of Miller & Cruz, who declared that he intervened in the matter as MONINA was spreading rumors about her filiation within the firm, which might have had deleterious effects upon the relationship between the firm and FRANCISCO. On this issue, we find for MONINA and agree with the following observations of the Court of Appeals: Even the affidavit (Exh 2) which [FRANCISCO] had foisted on the trial court xxx does not hold sway in the face of [MONINAs] logical explanation that she at first did agree to sign the affidavit which contained untruthful statements. In fact, she promptly complained to [FRANCISCO] who, however explained to her that the affidavit was only for the consumption of his spouse xxx. At any rate, if [MONINA] were not his illegitimate daughter, it would have been uncalled for, if not absurd, for [FRANCISCO] or his lawyer to have secured [MONINAs] sworn statement xxx On the contrary, in asking [MONINA] to sign the said affidavit at the cost of P15,000, [FRANCISCO] clearly betrayed his intention to conceal or suppress his paternity of [MONINA]. xxx Indeed, if MONINA were truly not FRANCISCOs illegitimate daughter, it would have been unnecessary for him to have gone to such great lengths in order that MONINA denounce her filiation. For as clearly established before the trial court and properly appreciated by the Court of Appeals, MONINA had resigned from Miller & Cruz five (5) months prior to the execution of the sworn statement in question, hence negating FRANCISCOs theory of the need to quash rumors circulating within Miller & Cruz regarding the identity of MONINAs father. Hence, coupled with the assessment of the credibility of the testimonial evidence of the parties discussed above, it is evident that the standard to contradict a notarial document, i.e., clear and convincing evidence and more than merely preponderant,cx[49] has been met by MONINA. Plainly then, the burden of evidence fully shifted to FRANCISCO. Two (2) glaring points in FRANCISCOs defense beg to be addressed: First, that his testimony was comprised of mere denials, rife with bare, unsubstantiated responses such as That is not true, I do not believe that, or None that I know. In declining then to lend credence to FRANCISCOs

testimony, we resort to a guiding principle in adjudging the credibility of a witness and the truthfulness of his statements, laid down as early as 1921: The experience of courts and the general observation of humanity teach us that the natural limitations of our inventive faculties are such that if a witness undertakes to fabricate and deliver in court a false narrative containing numerous details, he is almost certain to fall into fatal inconsistencies, to make statements which can be readily refuted, or to expose in his demeanor the falsity of his message. For this reason it will be found that perjurers usually confine themselves to the incidents immediately related to the principal fact about which they testify, and when asked about collateral facts by which their truthfulness could be tested, their answers not infrequently take the stereotyped form of such expressions as I dont know or I dont remember. xxxcxi[50] Second, the reasons for the dismissals of Tingson, Baylosis and Savariz were unspecified or likewise unsubstantiated, hence FRANCISCOs attempt to prove ill-motive on their part to falsely testify in MONINAs favor may not succeed. As may be gleaned, the only detail which FRANCISCO could furnish as to the circumstances surrounding the dismissals of his former employees was that Baylosis allegedly took advantage of his position while FRANCISCO was in the United States. But aside from this bare claim, FRANCISCOs account is barren, hence unable to provide the basis for a finding of bias against FRANCISCO on the part of his former employees. As to FRANCISCOs other witnesses, nothing substantial could be obtained either. Nonito Jalandoni avowed that he only came to know of MONINA in June 1988;cxii[51] that during his employment at Nelly Garden from 1963 up to 1974, he did not recall ever having seen MONINA there, neither did he know of any instructions from FRANCISCO nor Mr. Lagarto (FRANCISCOs office manager before passing away) regarding the disbursement of MONINAs allowance.cxiii[52] Teodoro Zulla corroborated Jalandonis testimony regarding not having seen MONINA at Nelly Garden and MONINAs allowance; declared that Alfredo Baylosis was dismissed due to discrepancies discovered after an audit, without any further elaboration, however; but admitted that he never prepared the vouchers pertaining to FRANCISCOs personal expenses, merely those intended for one of FRANCISCOs haciendas.cxiv[53] Then, Iigo Superticioso confirmed that according to the report of a certain Mr. Atienza, Baylosis was dismissed by Mr. Jison for irregularities, while Superticioso was informed by FRANCISCO that Tingson was dismissed for loss of confidence. Superticioso likewise denied that MONINA received money from FRANCISCOs office, neither was there a standing order from FRANCISCO to release funds to her.cxv[54] It is at once obvious that the testimonies of these witnesses for FRANCISCO are likewise insufficient to overcome MONINAs evidence. The former merely consist of denials as regards the latters having gone to Nelly Garden or having received her allowance from FRANCISCOs office, which, being in the form of negative testimony, necessarily stand infirm as against positive testimony;cxvi[55] bare assertions as regards the dismissal of Baylosis; ignorance of FRANCISCOs personal expenses incapable of evincing that FRANCISCO did not provide MONINA with an allowance; or hearsay evidence as regards the cause for the dismissals of Baylosis and Tingson. But what then serves as the coup de grce is that despite Superticiosos claim that he did not know MONINA,cxvii[56] when confronted with Exhibit H, a telephone toll ticket indicating that on 18 May 1971, MONINA called a certain Eing at FRANCISCOs office, Superticioso admitt ed that his nickname was Iing and that there was no other person named Iing in FRANCISCOs office.cxviii[57] All told, MONINAs evidence hurdled the high standard of proof required for the success of an action to establish ones illegitimate filiation when relying upon the provisions regarding open and continuous possession or any other means allowed by the Rules of Court and special laws; moreover, MONINA proved her filiation by more than mere preponderance of evidence. The last assigned error concerning laches likewise fails to convince. The essential elements of laches are: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which the complaint seeks a remedy; (2) delay in asserting the complainants rights, the complainant having had knowledge or notice of the defendants conduct as having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complaint would assert the right in which he bases his suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the complainant, or the suit is not held barred.cxix[58] The last element is the origin of the doctrine that stale

demands apply only where by reason of the lapse of time it would be inequitable to allow a party to enforce his legal rights.cxx[59] As FRANCISCO set up laches as an affirmative defense, it was incumbent upon him to prove the existence of its elements. However, he only succeeded in showing MONINAs delay in asserting her claim, but miserably failed to prove the last element. In any event, it must be stressed that laches is based upon grounds of public policy which requires, for the peace of society, the discouragement of stale claims, and is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted. There is no absolute rule as to what constitutes laches; each case is to be determined according to its particular circumstances. The question of laches is addressed to the sound discretion of the court, and since it is an equitable doctrine, its application is controlled by equitable considerations. It cannot be worked to defeat justice or to perpetuate fraud and injustice.cxxi[60] Since the instant case involves paternity and filiation, even if illegitimate, MONINA filed her action well within the period granted her by a positive provision of law. A denial then of her action on ground of laches would clearly be inequitable and unjust. WHEREFORE, IN VIEW OF THE FOREGOING, the petition is hereby DENIED and the challenged decision of the Court of Appeals of 27 April 1995 in CA-G.R. CV No. 32860 is AFFIRMED. -JOSE RIVERO, JESSIE RIVERO and AMALIA RIVERO, petitioners, vs. COURT OF APPEALS, MARY JANE DY CHIAO*-DE GUZMAN, and BENITO DY CHIAO, JR., represented by his uncle HENRY S. DY CHIAO, This is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No. 44261 annulling the decision of the Regional Trial Court (RTC) of Naga City, Branch 19, in Civil Case No. RTC96-3612. The Antecedents On August 27, 1996, Benedick Arevalo filed a Complaint[2] against Mary Jane Dy Chiao-De Guzman, Benito Dy Chiao, Jr., and Benson Dy Chiao, in the Regional Trial Court (RTC) of Naga City, for compulsory recognition as the illegitimate child of their father, Benito Dy Chiao, Sr., and for the administration and partition of his estate as he had died intestate on July 27, 1995. Since Benedick was a minor, his natural mother and guardian ad litem, Shirley Arevalo, filed the complaint on his behalf. Concepcion, Benito Sr.s wife, was not impleaded as she had died on July 7, 1995. The case was docketed as Civil Case No. RTC 96-3612 and raffled to Branch 19 of the court.[3] Benedick, whose counsel was Atty. Amador L. Simando, made the following allegations in his complaint: During his lifetime, Benito Dy Chiao, Sr. was engaged in business, under the business name Benito Commercial in Naga City. He courted Shirley Arevalo (Benedicks mother) in 1991, assuring her of his sincere love, likewise promising that her college education would be financed and that she would be provided with a better life. Blinded by his promises and assurances of his love for her, Shirley agreed to an amorous relationship with Benito, Sr. True to his word, Benito, Sr. then provided her with a residential house and lot located in Canaman, Camarines Sur, where they cohabited and resided; he also financed her college education in midwifery. On October 5, 1995, Benedick Arevalo Dy Chiao, Jr., the plaintiff, was born, the product of the amorous relationship, whom Benito, Sr. acknowledged as his son. He also continued to give Shirley and their son financial and moral support. It was also alleged that the Dy Chiao siblings recognized Benedick as the illegitimate son of their father. Moreover, when he died intestate, Benito, Sr. left behind residential lands and commercial buildings worth P100,000,000.00, more or less; as such, there was a need for the appointment of an administrator of the estate to preserve his (Benedicks) rights over the same before its partition. It was prayed that upon the filing of the complaint, Benedicks mother be appointed as his guardian ad litem, that an administrator of the estate of the deceased be appointed, and that after due proceedings, judgment be rendered in favor of Benedick, as follows: a. declaring the Plaintiff as the illegitimate son of the late Benito Dy Chiao.

b. ordering herein Defendants to recognize and acknowledge the Plaintiff as the illegitimate son of the late Benito Dy Chiao. c. ordering the Partition of the Estate of Benito Dy Chiao and distributing the same in favor of the Defendants and herein Plaintiff in a manner provided for by law. d. granting the Plaintiff such other reliefs as may be just and equitable under the law.[4] In an answer to the complaint, Mary Jane, through counsel, for herself, and purportedly in behalf of her brothers, denied the allegations that Shirley and her father had an amorous relationship and that Benedick was the illegitimate son of their father for want of knowledge or information; the allegation that they had recognized Benedick as the illegitimate son of their father was, likewise, specifically denied. Finally, she alleged that the plaintiffs action was for a claim against the estate of their father, which should be filed in an action for the settlement of the estate of their deceased parents.[5] On October 28, 1996, Benedick filed a Motion,[6] praying that the court order a mental examination of the Dy Chiao brothers, who were patients at the Don Susano J. Rodriguez Mental Hospital, and for the appointment of their sister as their guardian ad litem in the case. It was, likewise, prayed that the director of the hospital be summoned to appear before the court to inform it of the mental condition of the Dy Chiao brothers. On December 6, 1996, Benedick filed a Motion[7] set for hearing on December 9, 1996, reiterating his plea for the appointment of Mary Jane as guardian ad litem of her brothers. That same day, however, the plaintiff, through counsel, filed a Compromise Agreement dated November 24, 1996, with the following signatories to the agreement: Shirley Arevalo, for the plaintiff and assisted by counsel, Atty. Amador L. Simando; and Mary Jane Dy Chiao-De Guzman, assisted by counsel, Atty. Adan Marcelo B. Botor, purportedly for and in behalf of her brothers. Appended to the agreement was a photocopy of a Special Power of Attorney (SPA)[8] dated September 20, 1995, notarized and certified by Atty. Edmundo L. Simando, purportedly signed by the Dy Chiao brothers, who were then still confined in the hospital. Mary Jane was therein appointed to be their attorney-in-fact, with the following powers: 1. To represent us in negotiations and be our representative with power to sign Agreements or Contracts of Lease involving property and/or assets belonging to the estate of our late father Benito Dy Chiao, Sr. while said estate is not yet settled between (sic) all heirs; as well as to collect rentals and other money due to the estate by reason of said agreements or contracts; 2. To file or cause to be filed the necessary proceedings for the settlement of the estate of our late father, and to ask for letters of administration in her favor as a next of kin or as someone selected by us, next of kin, to be the administrator. On December 13, 1996, the trial court approved the agreement and rendered judgment on the basis thereof, quoted as follows: Before this Court is a COMPROMISE AGREEMENT entered into by and between the parties in this case which is herein below quoted, thus: COMPROMISE AGREEMENT Plaintiff and defendant Maryjane Dy Chiao-De Guzman duly assisted by their respective counsels hereby submit the following Compromise Agreement: 1. That the defendant Maryjane Dy Chiao-De Guzman hereby recognizes the plaintiff as the illegitimate son of her deceased father Benito Dy Chiao, Sr.; 2. That in full satisfaction and settlement of plaintiffs claim from the estate of the late Benito Dy Chiao, Sr., defendant Maryjane Dy Chiao De Guzman for herself and in behalf of her brothers, who are likewise defendants in this case, hereby agree and bind herself to pay the plaintiff the amount of P6,000,000.00 which shall be taken from the estate of the late

Benito Dy Chiao, Sr., which amount shall be payable under the following terms and conditions: a. The amount of P1,500,000.00 shall be payable upon signing of this Compromise Agreement; b. The balance of P4,500,000.00 shall be payable within the period of one year from the date of signing of this Compromise Agreement and for which the defendant Maryjane Dy Chiao-De Guzman shall issue twelve (12) checks corresponding to the said balance in the amount of P375,000.00 per check; 3. That the parties hereby waive other claims and counterclaims against each other; 4. That any violation of this Compromise Agreement shall render the same to be immediately executory. WHEREFORE, it is respectfully prayed of this Honorable Court that the foregoing Compromise Agreement be approved and a decision be rendered in accordance therewith. Naga City, Philippines, November 24, 1996. (SGD.) BENEDICK AREVALO MARYJANE DY CHIAODE GUZMAN Plaintiff Defendant represented by: (SGD.) SHIRLEY AREVALO Natural Guardian & Guardian Ad Litem Assisted by: (SGD.) (SGD.) AMADOR L. SIMANDO ADAN MARCELO BOTOR Counsel for the Plaintiff Counsel for the Defendants WHEREFORE, finding the foregoing Compromise Agreement to be the law between the parties, not being tainted with infirmities, irregularities, fraud and illegalities, and the same not being contrary to law, public order, public policy, morals and good customs, JUDGMENT is hereby rendered APPROVING the same. Parties are hereby enjoined to faithfully abide by the terms and conditions of the foregoing Compromise Agreement. No pronouncement as to costs. SO ORDERED.[9] It appears that a copy of the decision was sent by registered mail to the Dy Chiao brothers to the Benito Commercial Building, Naga City. On December 17, 1996, Mary Jane, through Atty. Simando, (the counsel for Benedick in Civil Case No. RTC96-3612), filed a petition with the RTC for the settlement of the estate of her father and for her appointment as administrator thereto. The case was docketed as Special Proceedings No. RTC96-684 and raffled to Branch 20 of the court; it was later transferred to Branch 19. On April 3, 1997, Benedick filed a Motion for Execution,[10] of the Decision dated November 24, 1996, on the allegation that the defendants had failed to comply with their obligations under the compromise agreement. The trial court granted the motion in an Order[11] dated April 7, 1997. Conformably, it issued a Writ of Execution[12] for the enforcement of the said decision. On April 18, 1997, Benedick terminated the services of Atty. Simando since he was Mary Janes counsel in Special Proceedings No. 96-684.

On April 28, 1997, the sheriff issued a Notice of Sale on Execution of Real Property[13] over five parcels of land titled under Benito Dy Chiao, Sr., including the improvements thereon. The Dy Chiao brothers, represented by their uncle, Henry S. Dy Chiao, then filed with the CA a Petition for Annulment of Judgment with Urgent Prayer for the Issuance of a Temporary Restraining Order dated May 27, 1997, assailing the decision of the RTC in Civil Case No. RTC96-3612, as well as the writ of execution issued pursuant thereto. The petition alleged that the Dy Chiao brothers had no legal capacity to be sued because they were of unsound mind, which impelled their uncle Henry to file a petition for guardianship over their person and property, now pending in the RTC of Naga City, Branch 61, docketed as Special Proceedings No. RTC97-695. They did not authorize their sister Mary Jane to execute any compromise agreement for and in their behalf; yet, in confabulation with Benedicks counsel, she was able to secure a judgment based on a void compromise agreement. It was further alleged that the Dy Chiao brothers were unaware of the complaint against them and that they did not engage the services of the law firm of Botor, Hidalgo & Fernando Associates to represent them as counsel in said cases. As such, the said counsel had no authority to file the answer to the complaint for and in their behalf. It was further pointed out that less than a month before the said compromise agreement was executed by their sister, she filed purportedly in their behalf, on November 22, 1996, a petition for the settlement of the estate of their parents in the RTC of Naga City, with the assistance of Atty. Simando (Benedicks counsel), as well as for the issuance of letters of administration in her favor, docketed as Special Proceedings No. RTC96-684.[14] There was thus collusion between Mary Jane and Atty. Simando. The Dy Chiao brothers, likewise, opposed the appointment of their sister as the administrator of their parents estate.[15] The verification and certification of non-forum shopping in the petition was signed by their uncle Henry as their representative. On May 29, 1997, the CA issued a status quo order. However, before the said order was served on Benedick, several lots covered by Transfer Certificate of Title (TCT) No. 16931 in the name of Benito, Sr. had already been sold at public auction: Lot No. 3, to Jose Rivero for P6,400,000.00; Lot No. 4 to Jessie Rivero for P7,600,000.00 and Lot No. 5, for P7,000,000.00, to Amalia Rivero. Another property covered by TCT No. 5299 had also been sold to Consuelo Dy for P310,000.00.[16] The buyers at public auction had already remitted the amounts of P15,319,364.00 and P162,836.00 to the executing sheriffs,[17] who later remitted P5,711,164.00 to Benedick through his mother, Shirley, in satisfaction of the decision,[18] and the remainder given to the Clerk of Court of the RTC. On June 3, 1997, Sheriffs Arthur S. Cledera and Arnel Jose A. Rubio executed a Provisional Certificate of Sale[19] over the property to the buyers at public auction. The Dy Chiao brothers, through their uncle Henry, then filed a motion for the issuance of a writ of preliminary mandatory injunction with urgent prayer for the issuance of a temporary restraining order, informing the CA of the recent developments in the case below. In a Resolution[20] dated July 14, 1997, the appellate court granted their plea for a writ of preliminary injunction upon the filing of a P500,000.00 bond, directing as follows: (a) the private respondents and/or the sheriffs of the respondent court to deposit before the Branch Clerk of Court of the Regional Trial Court, Branch 19, Naga City, the proceeds of the public auction sale held on June 3, 1997 and to submit to this Court within five (5) days from notice, proof of compliance therewith; (b) Sheriffs Arnel Jose Rubio and Arthur Cledera, through the respondent court, to refrain from issuing any certificate of sale over the properties sold at the public auction sale conducted on the aforementioned date; (c) the respondent court to issue a notice of lis pendens on all the properties affected by [the] public auction sale conducted on June 3, 1997 and cause its registration with the Register of Deeds concerned within five (5) days from notice. The sheriff was, likewise, directed to refrain and/or cease and desist from issuing/effecting any further certificate of sale over the affected properties.[21] On August 15, 1997, the RTC issued an Order[22] directing the Register of Deeds of Naga City to comply with the CA resolution.

Meantime, Benson died intestate on June 25, 1997.[23] His brother, Benito, Jr. then filed a Notice of Death and Substitution, and thereafter, a Motion to Admit an Amended Petition to drop Benson as petitioner, and the inclusion of his sister Mary Jane, as party respondent, as well as those who participated in the public auction, namely, Jose Rivero, Jessie Rivero, Amalia Rivero and Consuelo Dy. The CA granted the motion in a Resolution[24] dated January 14, 1998. Thereafter, Atty. Botor, Mary Janes new counsel, filed an Entry of Appearance with Motion to Dismiss,[25] alleging, inter alia, that an extrajudicial settlement between the heirs of the spouses Dy Chiao had already been executed. Benito, Jr., represented by his uncle Henry, opposed the motion,[26] alleging that a dismissal grounded on the extrajudicial settlement alone was improper, since what was being assailed was a decision of a court based on a compromise agreement involving one who is not a party thereto, with third-party bidders acting in bad faith. In a Resolution[27] dated February 27, 1998, the CA directed Mary Jane to submit her reply to the opposition to the motion to dismiss filed by Henry on behalf of Benito, Jr. In her compliance and comment/manifestation,[28] Mary Jane declared that there appeared to be a sound basis for the nullification of the assailed decision since the illegitimate filiation of Benedick could not be the subject of a compromise agreement. She further alleged that the parties thereunder did not recognize the validity of the compromise agreement, as in fact she and the petitioners were exploring the possibility of modifying their extrajudicial settlement.[29] Benedick, represented by his mother Shirley, presented before the appellate court an SPA dated October 31, 1996 executed by Benito, Jr., prepared by Atty. Simando, authorizing Atty. Botor to enter into a compromise agreement in the RTC.[30] On March 31, 1999, the CA rendered judgment in favor of Benito, Jr., granting the petition and nullifying the assailed decision and writ of execution issued by the RTC, including the sale at public auction of the property of the deceased. The appellate court ruled that the RTC had no jurisdiction over Benedicks action for recognition as the illegitimate son of Benito, Sr. and for the partition of his estate. It further held that the filiation of a person could not be the subject of a compromise agreement; hence, the RTC acted without jurisdiction in rendering judgment based thereon. It concluded that the said compromise agreement was procured through extrinsic fraud. The CA ordered the Clerk of Court of the RTC of Naga City to deliver to the trial court within ten days from finality of said judgment, the amount of P15,482,200.00, together with all interests earned therefrom, and to thereafter distribute the aggregate amount to the buyers of the said properties, in proportion to the amounts they had paid. It also ordered Benedick, through his mother Shirley, to turn over to the trial court, within ten days from finality of judgment, the amount of P5,711,164.00 received from Sheriffs Rubio and Cledera, together with all other amounts that she might have been paid pursuant to the compromise agreement. This was, however, without prejudice to the buyers right of recourse against Mary Jane, who was declared subsidiarily liable therefor. The RTC was, likewise, directed to return to the buyers the aggregate amount in the same proportion as above stated; thereafter, the properties would be delivered to the intestate estate of Benito, Sr. for proper disposition by the intestate court.[31] Jose Rivero, Jessie Rivero and Amalia Rivero filed a motion for the reconsideration of the decision, on the following grounds: I. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE COMPROMISE AGREEMENT IS INVALID DUE TO EXTRINSIC FRAUD; II. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENT COURT ACTED WITHOUT JURISDICTION IN RENDERING THE ASSAILED JUDGMENT IN THIS CASE; III. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE PUBLIC AUCTION SALE CONDUCTED ON JUNE 2, 1997 WAS VOID; AND IV. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT PRIVATE RESPONDENTS JOSE, JESSIE AND AMALIA, ALL SURNAMED

RIVERO COULD NOT HAVE LEGALLY BECOME THE OWNERS OF THE PROPERTIES SOLD AT THE PUBLIC AUCTION SALE.[32] Upon the denial of their motion for reconsideration thereof, they filed the present petition for review on certiorari. The Present Petition The petitioners raise the following issues: (1) whether or not Henry Dy Chiao had the authority to file the amended petition for Benito Dy Chiao, Jr.; (2) whether or not the RTC had jurisdiction over the action of Benedick Arevalo for recognition as the illegitimate son of the deceased Benito Dy Chiao, Sr., as well as the action for partition and distribution of the latters estate; and (3) whether the decision of the RTC based on the compromise agreement is null and void for extrinsic fraud and lack of jurisdiction.[33] On the first issue, the petitioners aver that the verification and certification of non-forum shopping contained in the petition with the CA was executed by Henry; hence, it was he and not Benson or Benito, Jr. who filed the petition. Moreover, Henry had no proof of his authority to file the petition for and in behalf of the brothers. The petitioners assert that there was no need for Henry to file the petition with the CA, since the Dy Chiao brothers had the legal capacity to do so, as admitted by their counsel, and Henry himself. Moreover, there was no law mandating Henry to represent his nephews in all actions which may redound to their benefit. The petitioners point out that although Henry sought to remedy the situation by filing an amended petition praying that he be appointed as guardian ad litem for the Dy Chiao brothers, the CA did not take cognizance of the allegations in the petition. The CA was correct in so doing, since the matter of whether one is incompetent should be threshed out in the guardianship proceedings, Special Proceedings No. RTC97-695, and not in the CA via a petition to annul the judgment of the RTC, where Benito, Jr. is also a party respondent. On the other issues, the petitioners maintain that the CA erred in annulling the decision of the RTC based on the compromise agreement on the ground of extrinsic fraud; the alleged fraud was committed by Mary Jane as an incident to the trial. What the CA should have done was to dismiss the petition, without prejudice to the rights of the Dy Chiao brothers to file an action against their sister. The latter was herself a party to the compromise agreement and also a principal party to the case; hence, was bound by it. As a matter of fact, the petitioners aver, Mary Jane was appointed by her brothers as their attorney-in-fact to negotiate for and execute the compromise agreement in their behalf. The petitioners further assert that the RTC had jurisdiction over the petition filed by Benedick in the RTC, and that the latters recourse was based on paragraph 1, Article 172 of the Family Code, although his putative father, Benito Dy Chiao, Sr., was already dead when the complaint was filed. The petitioners thus insist that the public auction sale conducted by the sheriff on the subject properties was valid. In her comment on the petition, Mary Jane avers that the decision of the CA holding that the compromise agreement was vitiated by extrinsic fraud is correct. She claims that she was made to sign the agreement, but was not informed of its intricacies. She insists that she does not have any liability to Benedick in Civil Case No. RTC96-3612, despite her being a signatory to the said agreement. For his part, respondent Benito, Jr., through his uncle Henry, avers that the latters authority to file the amended petition before the CA in their behalf was never questioned by the petitioners. He asserts that the CA admitted the amended petition containing the prayer that his uncle Henry be appointed as his guardian ad litem. Besides, the CA found that he and his brothers were not of sound and disposing minds; hence, the need for a guardian ad litem in the person of his uncle. He further alleges that the compromise agreement was the product of connivance between his sister and Benedick, and their respective counsels. He further points out that Atty. Simando, Benedicks counsel in the RTC, was likewise the counsel for Mary Jane when she filed her petition for letters of administration in the RTC of Naga City on December 17, 1996. He further insists that the ruling of the CA on the issues of extrinsic fraud and lack of jurisdiction of the RTC is in accord with law, and that the decision based on the compromise agreement was null and void for lack of jurisdiction.[34]

The Ruling of the Court The petition is denied for lack of merit. On the first issue, we reject the petitioners contention that Henry was the petitioner who filed the amended petition before the CA. As gleaned from said petition, the petitioners were Benito Dy Chiao, Jr. and Benson Dy Chiao, represented by their uncle Henry S. Dy Chiao. Moreover, Henry had the authority to file the amended petition and sign the requisite certification on non-forum shopping when the CA admitted the amended petition and appointed him as guardian ad litem of his nephews. This was in the January 14, 1998 Resolution of the CA, where the following findings were made: x x x We find the opposition to be devoid of merit, firstly because there is an obvious necessity to amend the petition; and secondly, because the representation of an incompetent need not be by a duly appointed judicial guardian. A guardian ad litem may be appointed by the court. In the instant case, the members of this Court who conducted the several hearings herein, are convinced from an observation of the petitioners that they are not of a sound or disposing mind. x x x[35] In resolving whether to appoint a guardian ad litem for the respondent, the appellate court needed only to determine whether the individual for whom a guardian was proposed was so incapable of handling personal and financial affairs as to warrant the need for the appointment of a temporary guardian. It only needed to make a finding that, based on clear and convincing evidence, the respondent is incompetent and that it is more likely than not that his welfare requires the immediate appointment of a temporary guardian.[36] A finding that the person for whom a guardian ad litem is proposed is incapable of managing his own personal and financial affairs by reason of his mental illness is enough.[37] Guardians ad litem are considered officers of the court in a limited sense, and the office of such guardian is to represent the interest of the incompetent or the minor.[38] Whether or not to appoint a guardian ad litem for the petitioners is addressed to the sound discretion of the court where the petition was filed, taking into account the best interest of the incompetent or the minor.[39] The court has discretion in appointing a guardian ad litem that will best promote the interest of justice.[40] The appointment of a guardian ad litem is designed to assist the court in its determination of the incompetents best interest.[41] The records will show that no less than Benedick Arevalo sought the appointment of Mary Jane Dy Chiao-De Guzman as guardian ad litem for respondent Benito Dy Chiao, Jr. and his brother, Benson Dy Chiao, before the RTC in Civil Case No. RTC96-3612. It must be stressed that the appellate court was not proscribed from appointing Henry as guardian ad litem for the respondents, merely because of the pendency of his petition for appointment as guardian over their person and property before Branch 61 of the RTC. Time was of the essence; the RTC had issued a writ of execution for the enforcement of its decision based on the compromise agreement; the plaintiff therein, Benedick Arevalo, was bent on enforcing the same, and had in fact caused the sale of five parcels of land belonging to the estate of Benito, Sr. worth millions of pesos. Indeed, the sheriff was able to sell at public auction prime real property of the estate of the deceased for P20,000,000.00 before the status quo order of the CA reached him. It goes without saying that the finding of the CA on the mental capacity of the respondents is without prejudice to the outcome of the petition in Special Proceedings No. RTC97-695. The petitioners claims that there was no factual basis for the appellate courts finding that the respondents were incompetent cannot prevail. It must be stressed that the CA conducted a hearing before arriving at the conclusion that respondent Benito, Jr. was incompetent. More importantly, such claim involves a factual issue which cannot be raised before this Court under Rule 45 of the Rules of Court. On the issue of jurisdiction, case law has it that the jurisdiction of the tribunal over the nature and subject matter of an action is to be determined by the allegations of the complaint, the law in effect when the complaint was filed and the character of the relief prayed for by the plaintiff. The caption of the complaint is not determinative of the nature of the action. If a court is authorized by statute to entertain jurisdiction in a particular case only and

undertakes to exercise jurisdiction in a particular case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make a particular judgment is akin to lack of subject-matter jurisdiction.[42] The CA nullified the decision of the RTC on the ground, inter alia, that the filiation of Benedick could not be the subject of a compromise, and that Mary Jane had no authority to execute the compromise agreement for and in behalf of her brothers. The petitioners, for their part, maintain that Mary Janes recognition of Benedick as the illegitimate son of her father was not a compromise, but an affirmation of the allegations in the complaint that the Dy Chiao siblings had, in effect, recognized him as the illegitimate son of their deceased father. The petitioners posit that the admissions in the compromise agreement are likewise binding on the Dy Chiao siblings. The contention of the petitioners is bereft of merit. The Court finds and so holds that the decision of the RTC based on the compromise agreement executed by Mary Jane is null and void. Article 2035(1) of the New Civil Code provides that no compromise upon the civil status of persons shall be valid. As such, paternity and filiation, or the lack of the same, is a relationship that must be judicially established, and it is for the court to determine its existence or absence. It cannot be left to the will or agreement of the parties.[43] A compromise is a contract whereby parties, making reciprocal concerns, avoid litigation or put an end to one already commenced.[44] Like any other contract, it must comply with the requisite provisions in Article 1318 of the New Civil Code, to wit: (a) consent of the contracting parties; (b) object certain which is the subject matter of the contract; and (c) cause of the obligation which is established. Like any other contract, the terms and conditions of a compromise agreement must not be contrary to law, morals, good customs, public policy and public order.[45] Any compromise agreement which is contrary to law or public policy is null and void, and vests no rights and holds no obligation to any party. It produces no legal effect at all.[46] Considering all these, there can be no other conclusion than that the decision of the RTC on the basis of a compromise agreement where Benedick was recognized as the illegitimate child of Benito, Sr. is null and void. Article 1878 of the New Civil Code provides that an SPA is required for a compromise. Furthermore, the power of attorney should expressly mention the action for which it is drawn; as such, a compromise agreement executed by one in behalf of another, who is not duly authorized to do so by the principal, is void and has no legal effect, and the judgment based on such compromise agreement is null and void.[47] The judgment may thus be impugned and its execution may be enjoined in any proceeding by the party against whom it is sought to be enforced.[48] A compromise must be strictly construed and can include only those expressly or impliedly included therein.[49] As previously stated, the Court is convinced that the compromise agreement signed by Mary Jane and Benedick was a compromise relating to the latters filiation. Mary Jane recognized Benedick as the illegitimate son of her deceased father, the consideration for which was the amount of P6,000,000.00 to be taken from the estate, the waiver of other claims from the estate of the deceased, and the waiver by the Dy Chiao siblings of their counterclaims against Benedick. This is readily apparent, considering that the compromise agreement was executed despite the siblings unequivocal allegations in their answer to the complaint filed only two months earlier, that Benedick was merely an impostor: 11. That paragraph 11 is DENIED for the truth of the matter is that they have not recognized any person or impostor who pretends having a filial relation with their deceased father by reason of herein Defendants fathers incapacity to bear children or to engage in any carnal act considering the age and physical state of their father at that time alluded to by the Plaintiff .[50] To stress, the compromise agreement executed by Benedick and Mary Jane is null and void; as such, the decision of the RTC based thereon is also without force and effect. It is, likewise, plain as day that only Mary Jane recognized Benedick as the illegitimate son of her deceased father

1. That the defendant Maryjane Dy Chiao-De Guzman hereby recognizes the plaintiff as the illegitimate son of her deceased father Benito Dy Chiao, Sr.[51] Such recognition, however, is ineffectual, because under the law, the recognition must be made personally by the putative parent and not by any brother, sister or relative.[52] It is conceded that Mary Jane, in her behalf, and purportedly in behalf of her brothers, agreed and bound herself to pay Benedick the amount of P6,000,000.00 to be taken from the estate of their deceased father. However, a cursory reading of the SPA on record will show that the Dy Chiao brothers did not authorize their sister to recognize Benedick as the illegitimate son of their father. They could not have agreed to pay P6,000,000.00 to be taken from the estate, because they had denied that Benedick was the illegitimate son of their father in their answer to the complaint. On the assumption that the Dy Chiao brothers had signed the SPA on September 20, 1995, a cursory reading of the compromise agreement will show that they did not specifically empower their sister to enter into a compromise agreement with Benedick in Civil Case No. RTC96-3612. It bears stressing that the SPA was executed as early as September 20, 1995, while the complaint was filed with the RTC almost a year thereafter, or on August 27, 1996. The trial court acted with precipitate and inordinate speed in approving the compromise agreement. The records show that at about the time when it was executed by Mary Jane, her brothers were patients at the Don Susano J. Rodriguez Mental Hospital, and Benedick had accused her of being a spendthrift by reason of her alleged addiction to drugs.[53] On his belief that the Dy Chiao brothers were incompetent, Benedick even filed a motion for the appointment of a guardian ad litem for them, and for the examination of Mary Jane for drug addiction, as follows: WHEREFORE, it is most respectfully prayed of this Honorable Court that after hearing, an order be issued, as follows: 1. Appointing a Special Administrator and/or Receiver over the Estate of Benito Dy Chiao [Sr.]; 2. Appointing Guardian Ad Litem over the person of Defendants Benito, Jr. and Benson Dy-Chiao; 3. Ordering defendant Maryjane Dy Chiao to submit a medical examination by a medical expert on drugs to be commissioned by the Honorable Court to determine whether or not said defendant is a drug dependent.[54] Indeed, Benedick filed a Motion on November 14, 1996, for the Dy Chiao siblings to appear before the RTC at 8:30 a.m. of November 18, 1996. He, likewise, prayed that the Director of the Don Susano J. Rodriguez Mental Hospital be directed to bring the clinical records of the brothers, which the trial court granted per its Order dated November 12, 1996.[55] Upon Mary Janes failure to appear for the hearing, Benedick even sought to have her cited in contempt of court. Despite his charge that Mary Jane was a drug addict and a spendthrift, he, nevertheless, prayed in his Motion dated December 5, 1996, that she be appointed the special administratrix of the estate of Benito, Sr. and the guardian ad litem of her brothers, thus: WHEREFORE, in light of all the foregoing considerations, it is most respectfully prayed of this Honorable Court that Maryjane Dy Chiao- De Guzman be appointed as Special Administrator over the Estate of the late Benito Dy Chiao, Sr., and as Guardian Ad Litem of defendants Benito, Jr., and Benson Dy Chiao.[56] Barely two weeks earlier, or on November 24, 1996, Mary Jane Dy Chiao-De Guzman (whom Benedick branded as a spendthrift and a drug addict), executed the compromise agreement, not only in her behalf, but also in behalf of her brothers, who were confined in the hospital and whom Benedick considered as mentally incompetent, and needed a guardian ad litem. The trial court ignored all the foregoing proceedings and approved the compromise agreement without bothering to resolve the issue of whether the

Dy Chiao brothers were indeed incompetent, and whether there was a need to appoint a guardian ad litem for them. What is so worrisome is that the counsel of the Dy Chiao siblings, Atty. Botor, did not even bother to file any pleading in his clients behalf, relative to the motions filed by Benedick. Despite the allegations that the Dy Chiao brothers were in the mental hospital and needed a guardian ad litem, and that Mary Jane was a spendthrift and a drug addict, Atty. Botor still proceeded to sign the compromise agreement as their counsel. More ominously, the said counsel knew that it was he who had been empowered by the Dy Chiao brothers to compromise Civil Case No. RTC96-3612 (based on the SPA dated October 31, 1996); yet, he still allowed Mary Jane to execute the same based on an SPA dated September 20, 1995 notarized by no less than Benedicks counsel, Atty. Amador Simando. The Court is convinced that the compromise agreement was the handiwork of Atty. Simando, because it was he who notarized the SPA dated September 20, 1995 purportedly executed by the Dy Chiao brothers. He later became the counsel of Benedick against the Dy Chiao siblings in Civil Case No. RTC96-3612. He signed the compromise agreement as Benedicks counsel, despite his incessant claim that the brothers were incompetent and needed a guardian ad litem. Barely 11 days after the execution of the compromise agreement, Atty. Simando filed a Petition for the Settlement of the Estate of Benito Dy Chiao, Sr., this time as counsel of Mary Jane. It bears stressing that Mary Jane was the defendant in Civil Case No. RTC96-3612, and that as counsel of Benedick, the plaintiff in the said civil case, Atty. Simando had accused her of being a drug addict and a spendthrift. By then of course, his client (Benedick) had already received P6,000,000.00 from the estate of his alleged putative father. Since the decision of the RTC is null and void, the writ of execution issued pursuant thereto and the subsequent sale at public auction of the properties belonging to the estate of Benito Dy Chiao, Sr. are null and void. Considering our foregoing disquisitions, the Court no longer finds the need to still resolve the other issues that were raised. IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against the petitioners. -DELGADO vs. RUSTIA

In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55, [4] in SP Case No. 97668, which was reversed and set aside by the Court of Appeals in its decision [5] dated October 24, 2002.

FACTS OF THE CASE This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado. [6] The main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution. The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters, [7] his nephews and nieces, [8] his illegitimate child, [9] and the de facto adopted child [10] (ampunampunan) of the decedents. THE ALLEGED HEIRS OF JOSEFA DELGADO The deceased Josefa Delgado was the daughter of Felisa [11] Delgado by one Lucio Campo. Aside from Josefa, five other children were born to the couple, namely, Nazario, Edilberta, Jose, Jacoba, and

Gorgonio, all surnamed Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and her full-blood siblings were all natural children of Felisa Delgado. However, Lucio Campo was not the first and only man in Felisa Delgados life. Before him was Ramon Osorio [12] with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which was admittedly one without the benefit of marriage, the legal status of Ramon Osorios and Felisa Delgados union is in dispute. The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants because the answer will determine whether their successional rights fall within the ambit of the rule against reciprocal intestate succession between legitimate and illegitimate relatives. [13] If Ramon Osorio and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate halfblood brother of Josefa Delgado and therefore excluded from the latters intestate estate. He and his heirs would be barred by the principle of absolute separation between the legitimate and illegitimate families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to inherit from Josefa Delgados intestate estate, as they would all be within the illegitimate line. Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they assert that no evidence was ever presented to establish it, not even so much as an allegation of the date or place of the alleged marriage. What is clear, however, is that Felisa retained the surname Delgado. So did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento [14] stated that he was hijo natural de Felisa Delgado (the natural child of Felisa Delgado), [15] significantly omitting any mention of the name and other circumstances of his father. [16] Nevertheless, oppositors (now respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place. Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo Rustia executed an affidavit of selfadjudication of the remaining properties comprising her estate. THE MARRIAGE OF GUILLERMO RUSTIA DELGADO AND JOSEFA

3. Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919; [18] 4. Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa Delgado.

THE ALLEGED HEIRS OF GUILLERMO RUSTIA Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took into their home the youngsters Guillermina Rustia Rustia and Nanie Rustia. These children, never legally adopted by the couple, were what was known in the local dialect as ampun-ampunan. During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child, [19] the intervenor-respondent Guillerma Rustia, with one Amparo Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her fathers demise. In fact, Josefa Delgados obituary which was prepared by Guillermo Rustia, named the intervenor-respondent as one of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as her parent/guardian. [20] Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code. [21] On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition for the adoption [22] of their ampun-ampunan Guillermina Rustia. He stated under oath [t]hat he ha[d] no legitimate, legitimated, acknowledged natural children or natural children by legal fiction. [23] The petition was overtaken by his death on February 28, 1974. Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz, and by the children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and Leticia Rustia Miranda. [24]

Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado [17] but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as Seorita or unmarried woman. The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa on September 8, 1972. During this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. To support their proposition, oppositors presented the following pieces of evidence: 1. Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines; 2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947;

ANTECEDENT PROCEEDINGS On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition for letters of administration of the intestate estates of the spouses Josefa Delgado and Guillermo Rustia with the RTC of Manila, Branch 55. [25] This petition was opposed by the following: (1) the sisters of Guillermo Rustia, namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz; [26] (2) the heirs of Guillermo Rustias late brother, Roman Rustia, Sr., and (3) the ampun-ampunan Guillermina Rustia Rustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other claimants were barred under the law from inheriting from their illegitimate half-blood relative Josefa Delgado. In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was the only surviving

descendant in the direct line of Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the motion was granted. On April 3, 1978, the original petition for letters of administration was amended to state that Josefa Delgado and Guillermo Rustia were never married but had merely lived together as husband and wife. On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the interests of the petitioners and the other claimants remained in issue and should be properly threshed out upon submission of evidence. On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987. On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both estates. [27] The dispositive portion of the decision read: WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in the City of Manila on September 8, 1972, and entitled to partition the same among themselves in accordance with the proportions referred to in this Decision. Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of the oppositors and the other parties hereto. The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and effect. As the estates of both dece[d]ents have not as yet been settled, and their settlement [is] considered consolidated in this proceeding in accordance with law, a single administrator therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA. Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of administration of the subject estates, and is likewise ordered to turn over to the appointed administratix all her collections of the rentals and income due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the petitioner and appointed administratix CARLOTA DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby required to render an accounting of her actual administration of the estates in controversy within a period of sixty (60) days from receipt hereof. SO ORDERED. [28]

then filed a petition for certiorari and mandamus [30] which was dismissed by the Court of Appeals. [31] However, on motion for reconsideration and after hearing the parties oral arguments, the Court of Appeals reversed itself and gave due course to oppositors appeal in the interest of substantial justice. [32] In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the ground that oppositors failure to file the record on appeal within the reglementary period was a jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our decision [33] read: As a rule, periods prescribed to do certain acts must be followed. However, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice. xxx xxx xxx

The respondent court likewise pointed out the trial courts pronouncements as to certain matters of substance, relating to the determination of the heirs of the decedents and the party entitled to the administration of their estate, which were to be raised in the appeal, but were barred absolutely by the denial of the record on appeal upon too technical ground of late filing. xxx xxx xxx

In this instance, private respondents intention to raise valid issues in the appeal is apparent and should not have been construed as an attempt to delay or prolong the administration proceedings. xxx xxx xxx

A review of the trial courts decision is needed. xxx xxx xxx

WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private respondents Record on Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990 decision. SO ORDERED.

Acting on the appeal, the Court of Appeals [34] partially set aside the trial courts decision. Upon motion for reconsideration, [35] the Court of Appeals amended its earlier decision. [36] The dispositive portion of the amended decision read: With the further modification, our assailed decision is RECONSIDERED and VACATED. Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) entitled to partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as administratrix of his estate. The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate estate of Josefa Delgado

On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal was not filed on time. [29] They

shall issue to the nominee of the oppositors-appellants upon his or her qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00). Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of administration of the subject estates and to turn over to the appointed administrator all her collections of the rentals and incomes due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the appointed administrator, immediately upon notice of his qualification and posting of the requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual administration of the estates in controversy within a period of sixty (60) days from notice of the administrators qualification and posting of the bond. The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo Rustia on June 15, 1973 is REMANDED to the trial court for further proceedings to determine the extent of the shares of Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) affected by the said adjudication. Hence, this recourse. The issues for our resolution are: 1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado; 2. who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are; 3. who should be issued letters of administration.

were not married, and a baptismal certificate which referred to Josefa Delgado as Seorita or unmarried woman. [39] We are not persuaded. First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place. [40] Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia, [41] the passport issued to her as Josefa D. Rustia, [42] the declaration under oath of no less than Guillermo Rustia that he was married to Josefa Delgado [43] and the titles to the properties in the name of Guillermo Rustia married to Josefa Delgado, more than adequately support the presumption of marriage. These are public documents which are prima facie evidence of the facts stated therein. [44] No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners. Second, Elisa vda. de Anson, petitioners own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had lived together as husband and wife. This again could not but strengthen the presumption of marriage. Third, the baptismal certificate [45] was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained therein, [46] such as the alleged single or unmarried (Seorita) civil status of Josefa Delgado who had no hand in its preparation. Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume marriage. [47] THE LAWFUL HEIRS OF JOSEFA DELGADO

THE MARRIAGE OF GUILLERMO RUSTIA AND JOSEFA DELGADO

A presumption is an inference of the existence or nonexistence of a fact which courts are permitted to draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions of fact. Presumptions of law are, in turn, either conclusive or disputable. [37] Rule 131, Section 3 of the Rules of Court provides: Sec. 3. Disputable presumptions. The presumptions are satisfactory if uncontradicted, but contradicted and overcome by other evidence: xxx xxx following may be

To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed. As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may overturn them. [48] On the other hand, disputable presumptions, one of which is the presumption of marriage, can be relied on only in the absence of sufficient evidence to the contrary. Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgados and Caridad Concepcions Partida de Casamiento [49] identifying Luis as hijo natural de Felisa Delgado (the natural child of Felisa Delgado). [50] All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado, [51] were her natural children. [52]

xxx

(aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; xxx xxx xxx

In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as spouses. Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness [38] attesting that they

Pertinent to this matter is the following observation: Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally? The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato (from) another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this, however, we submit that succession should be allowed, even when the illegitimate brothers and sisters are only of the half-blood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally. [53]

office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasis supplied)

THE LAWFUL HEIRS OF GUILLERMO RUSTIA

Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child [58] of Guillermo Rustia. As such, she may be entitled to successional rights only upon proof of an admission or recognition of paternity. [59] She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect. Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent. Under the new law, recognition may be compulsory or voluntary. [60] Recognition is compulsory in any of the following cases: (1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception; (2) when the child is in continuous possession of status of a child of the alleged father (or mother) [61] by the direct acts of the latter or of his family; (3) when the child was conceived during the time when the mother cohabited with the supposed father; (4) when the child has in his favor any evidence or proof that the defendant is his father. [62] On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing. [63] Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing. There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts. [64] Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent. [65] On the death of either, the action for compulsory recognition can no longer be filed. [66] In this case, intervenor Guillermas right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia on February 28, 1974. The claim of voluntary recognition (Guillermas second ground) must likewise fail. An authentic writing, for purposes of voluntary recognition, is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his. [67] Did intervenors report card from the University of Santo Tomas and Josefa Delgados obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenors parent/guardian holds no weight since he had no participation in its preparation.

Here, the above-named siblings of Josefa Delgado were related to her by full-blood, except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate, they may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa Delgado. We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces). Consequently, it cannot be exercised by grandnephews and grandnieces. [54] Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right to participate in the inheritance. [55] The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death. Together with Guillermo Rustia, [56] they are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new Civil Code: [57]

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to onehalf of the inheritance and the brothers and sisters or their children to the other one-half.

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedents entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate: SECTION 1. Extrajudicial settlement by agreement between heirs. If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the

Similarly, while witnesses testified that it was Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which was published in the SUNDAY TIMES on September 10, 1972, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenors claim. The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the latters death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. We quote: Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its existence. [68]

In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed. [71] The order of preference does not rule out the appointment of coadministrators, specially in cases where justice and equity demand that opposing parties or factions be represented in the management of the estates, [72] a situation which obtains here. It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively. WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications: 1. Guillermo Rustias June 15, 1973 affidavit of self adjudication is hereby ANNULLED. 2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of Josefa Delgado who survived her and (b) the children of any of Josefa Delgados full- or half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgados grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives of Josefa Delgado who are entitled to share in her estate. 3. Guillermo Rustias estate (including its one -half share of Josefa Delgados estate) shall be inherited by Marciana Rustia vda. de Damian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall be per stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates. 4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such amount as may be determined by the trial court. No pronouncement as to costs. -Heirs of TEOFILO GABATAN, namely: LOLITA GABATAN, POMPEYO GABATAN, PEREGRINO GABATAN, REYNALDO GABATAN, NILA GABATAN AND JESUS JABINIS, RIORITA GABATAN TUMALA and FREIRA GABATAN, vs. Hon. COURT OF APPEALS and LOURDES EVERO PACANA Assailed and sought to be set aside in the instant petition for review on certiorari are the Decision1 dated April 28, 2000, and Resolution2 dated September 12, 2001 of the Court of Appeals (CA), in CA G.R. CV No. 52273. The challenged Decision affirmed the decision3 of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 19, dated October 20, 1995 in Civil Case No. 89-092, an action for Recovery of Property and Ownership and Possession, thereat commenced by respondent Lourdes Evero Pacana against petitioners, heirs of Teofilo Gabatan, Jesus Jabinis and Catalino Acantilado. Subject of the present controversy is a 1.1062 hectare parcel of land, identified as Lot 3095 C-5 and situated at Calinugan, Balulang, Cagayan de Oro City. This lot was declared for taxation in the name of Juan Gabatan. In the complaint before the RTC, respondent alleged that she is the sole owner of Lot 3095 C-5, having inherited the same from her deceased mother, Hermogena Gabatan Evero (Hermogena). Respondent further claimed that her mother, Hermogena, is the only child of Juan Gabatan and his wife, Laureana Clarito. Respondent alleged that upon the death of Juan Gabatan, Lot 3095 C-5 was entrusted to his brother, Teofilo Gabatan (Teofilo), and

Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunan Guillermina Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters, [69] nieces and nephews. [70]

ENTITLEMENT TO LETTERS OF ADMINISTRATION

An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator: Sec. 6. When and to whom letters of administration granted. If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that the administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

Teofilos wife, Rita Gabatan, for administration. It was also claimed that prior to her death Hermogena demanded for the return of the land but to no avail. After Hermogenas death, respondent also did the same but petitioners refused to heed the numerous demands to surrender the subject property. According to respondent, when Teofilo and his wife died, petitioners Jesus Jabinis and Catalino Acantilado took possession of the disputed land despite respondents demands for them to vacate the same. In their answer, petitioners denied that respondents mother Hermogena was the daughter of Juan Gabatan with Laureana Clarito and that Hermogena or respondent is the rightful heir of Juan Gabatan. Petitioners maintained that Juan Gabatan died single in 1934 and without any issue and that Juan was survived by one brother and two sisters, namely: Teofilo (petitioners predecessor-in-interest), Macaria and Justa. These siblings and/or their heirs, inherited the subject land from Juan Gabatan and have been in actual, physical, open, public, adverse, continuous and uninterrupted possession thereof in the concept of owners for more than fifty (50) years and enjoyed the fruits of the improvements thereon, to the exclusion of the whole world including respondent. Petitioners clarified that Jesus Jabinis and Catalino Acantilado have no interest in the subject land; the former is merely the husband of Teofilos daughter while the latter is just a caretaker. Petitioners added that a similar case was previously filed by respondent against Teofilos wife, Rita Vda. de Gabatan, on February 21, 1978, docketed as Civil Case No. 5840 but the case was dismissed on May 3, 1983 for lack of interest. Finally, petitioners contended that the complaint lacks or states no cause of action or, if there was any, the same has long prescribed and/or has been barred by laches. On June 20, 1989, the complaint was amended wherein the heirs of Teofilo were individually named, to wit: Lolita Gabatan, Pompeyo Gabatan, Peregrino Gabatan, Reynaldo Gabatan, Nila Gabatan and Jesus Jabinis, Riorita Gabatan Tumal and Freira Gabatan. On July 30, 1990, petitioners filed an amended answer, additionally alleging that the disputed land was already covered by OCT No. P-3316 in the name of the heirs of Juan Gabatan represented by petitioner Riorita Gabatan (Teofilos daughter). On October 20, 1995, the RTC rendered a decision in favor of respondent, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, declaring the plaintiff the owner of Lot No. 3095 C-5 situated at Calinugan, Balulang, Cagayan de Oro City; and ordering the defendants represented by Riorita Gabatan Tumala to RECONVEY Original Certificate of Title No. P-3316 in favor of plaintiff Lourdes Evero Pacana, free of any encumbrance; ordering the defendants to pay P10,000.00 by way of moral damages; P10,000.00 as Attorneys fees; and P2,000.00 for litigation expenses. SO ORDERED.4 Aggrieved, petitioners appealed to the CA whereat their recourse was docketed as CA-G.R. CV No. 52273. On April 28, 2000, the CA rendered the herein challenged Decision affirming that of the RTC. Dispositively, the Decision reads: WHEREFORE, premises considered, the questioned decision of the lower court dated October 20, 1995 is hereby AFFIRMED. With costs against appellants. SO ORDERED. Discounting petitioners argument that respondent is not related to Juan Gabatan, the CA declared that respondents claim of filiation with Juan Gabatan was sufficiently established during trial. Thus, the CA echoed a long line of jurisprudence that findings of fact of the trial court are entitled to great weight and are not disturbed except for cogent reasons, such as when the findings of fact are not supported by evidence. The CA likewise gave weight to the Deed of Absolute Sale5 executed by Macaria Gabatan de Abrogar, Teofilo, Hermogena and heirs of Justa Gabatan, wherein Hermogena was identified as an heir of Juan Gabatan:

x x x HERMOGENA GABATAN, of legal age, married, Filipino citizen and presently residing at Kolambugan, Lanao del Norte, Philippines, as Heir of the deceased, JUAN GABATAN; x x x. To the CA, the Deed of Absolute Sale on July 30, 1966 containing such declaration which was signed by Teofilo and the latters nearest relatives by consanguinity, is a tangible proof that they acknowledged Hermogenas status as the daughter of Juan Gabatan. Applying Section 38, Rule 1306 of the Rules of Court on the declaration against interest, the CA ruled that petitioners could not deny that even their very own father, Teofilo formally recognized Hermogenas right to heirship from Juan Gabatan which ultimately passed on to respondent. As to the issue of prescription, the CA ruled that petitioners possession of the disputed property could not ripen into acquisitive prescription because their predecessor-in-interest, Teofilo, never held the property in the concept of an owner.lawphil.net Aggrieved, petitioners are now with this Court via the present recourse principally contending that the CA committed the following reversible errors: FIRST ERROR: The lower court erred in not declaring that Juan Gabatan died single and without issue; SECOND ERROR: The lower court erred in declaring the plaintiffappellee (respondent) as the sole and surviving heir of Juan Gabatan, the only child of a certain Hermogena Clareto "GABATAN"; THIRD ERROR: The lower court erred in declaring that a certain Hermogena Clareto "GABATAN" is the child and sole heir of Juan Gabatan; FOURTH ERROR: The lower court erred in failing to appreciate by preponderance of evidence in favor of the defendants-appellants (petitioners) claim that they and the heirs of Justa and Macaria both surnamed Gabatan are the sole and surviving heirs of Juan Gabatan and, therefore, entitled to inherit the land subject matter hereof; FIFTH ERROR: The lower court erred in not declaring that the cause of action of plaintiff-appellee (respondent) if any, has been barred by laches and/or prescription.7 Before proceeding to the merits of the case, we must pass upon certain preliminary matters. In general, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of Court. Questions of fact cannot be the subject of this particular mode of appeal, for this Court is not a trier of facts. 8 It is not our function to examine and evaluate the probative value of the evidence presented before the concerned tribunal upon which its impugned decision or resolution is based.91avvphi1 However, there are established exceptions to the rule on conclusiveness of the findings of fact by the lower courts, such as (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.10 Moreover, our rules recognize the broad discretionary power of an appellate court to waive the lack of proper assignment of errors and to consider errors not assigned. Thus, the Court is clothed with ample authority to review rulings even if they are not assigned as errors in the appeal in these instances: (a)

grounds not assigned as errors but affecting jurisdiction over the subject matter; (b) matters not assigned as errors on appeal but are evidently plain or clerical errors within contemplation of law; (c) matters not assigned as errors on appeal but consideration of which is necessary in arriving at a just decision and complete resolution of the case or to serve the interests of justice or to avoid dispensing piecemeal justice; (d) matters not specifically assigned as errors on appeal but raised in the trial court and are matters of record having some bearing on the issue submitted which the parties failed to raise or which the lower court ignored; (e) matters not assigned as errors on appeal but closely related to an error assigned; and (f) matters not assigned as errors on appeal but upon which the determination of a question properly assigned, is dependent. 11 In the light of the foregoing established doctrines, we now proceed to resolve the merits of the case. The respondents main cause of action in the court a quo is the recovery of ownership and possession of property. It is undisputed that the subject property, Lot 3095 C-5, was owned by the deceased Juan Gabatan, during his lifetime.12 Before us are two contending parties, both insisting to be the legal heir(s) of the decedent. Jurisprudence dictates that the determination of who are the legal heirs of the deceased must be made in the proper special proceedings in court, and not in an ordinary suit for recovery of ownership and possession of property. This must take precedence over the action for recovery of possession and ownership. The Court has consistently ruled that the trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong while a special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact. It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.13 In the early case of Litam, et al. v. Rivera,14 this Court ruled that the declaration of heirship must be made in a special proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio v. Court of Appeals15 where the Court held: xxx where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled t hat such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition. In the more recent case of Milagros Joaquino v. Lourdes Reyes, 16 the Court reiterated its ruling that matters relating to the rights of filiation and heirship must be ventilated in the proper probate court in a special proceeding instituted precisely for the purpose of determining such rights. Citing the case of Agapay v. Palang,17 this Court held that the status of an illegitimate child who claimed to be an heir to a decedents estate could not be adjudicated in an ordinary civil action which, as in this case, was for the recovery of property. However, we are not unmindful of our decision in Portugal v. PortugalBeltran,18 where the Court relaxed its rule and allowed the trial court in a proceeding for annulment of title to determine the status of the party therein as heirs, to wit: It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an administration proceeding. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and

had already in fact presented evidence before the trial court which assumed jurisdiction over the case upon the issues it defined during pre-trial. In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugals estate to administration proceedings since a determination of petitioners status as heirs could be achieved in the civil case filed by petitioners (Vide Pereira v. Court of Appeals, 174 SCRA 154 [1989]; Intestate Estate of Mercado v. Magtibay, 96 Phil. 383 [1955]), the trial court should proceed to evaluate the evidence presented by the parties during the trial and render a decision thereon upon the issues it defined during pre-trial, x x x. (emphasis supplied) Similarly, in the present case, there appears to be only one parcel of land being claimed by the contending parties as their inheritance from Juan Gabatan. It would be more practical to dispense with a separate special proceeding for the determination of the status of respondent as the sole heir of Juan Gabatan, specially in light of the fact that the parties to Civil Case No. 89-092, had voluntarily submitted the issue to the RTC and already presented their evidence regarding the issue of heirship in these proceeding. Also the RTC assumed jurisdiction over the same and consequently rendered judgment thereon. We GRANT the petition. After a meticulous review of the records of this case, we find insufficient and questionable the basis of the RTC in conferring upon respondent the status of sole heir of Juan Gabatan. Respondent, in asserting to be entitled to possession and ownership of the property, pinned her claim entirely on her alleged status as sole heir of Juan Gabatan. It was incumbent upon her to present preponderant evidence in support of her complaint. Under the Civil Code, the filiation of legitimate children is established by any of the following: ART. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment. ART. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child. ART. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. Here, two conflicting birth certificates19 of respondent were presented at the RTC. Respondent, during her direct testimony, presented and identified a purported certified true copy of her typewritten birth certificate which indicated that her mothers maiden name was "Hermogena Clarito Gabatan." Petitioners, on the other hand, presented a certified true copy of respondents handwritten birth certificate which differed from the copy presented by respondent. Among the differences was respondents mothers full maiden name which was indicated as "Hermogena Calarito" in the handwritten birth certificate. In resolving this particular issue, the trial court ruled in this wise: The parties are trying to outdo with (sic) each other by presenting two conflicting Certificate (sic) of Live Birth of plaintiff herein, Lourdes Evero Pacana, which are Exhibit "A" for the plaintiff and Exhibit "1" for the defendants. Which of this (sic) is genuine, and which is falsified. These (sic) issue is crucial and requires serious scrutiny. The Court is of the observation that Exhibit "A" for the plaintiff which is a certified true copy is in due form and bears the "as is and where is" rule. It has the impression of the original certificate. The forms (sic) is an old one used in the 1950s. Her mothers maiden name appearing thereof is Hermogina (sic) Clarito Gabatan. While Exhibit "1", the entries found thereof (sic) is handwritten which is very unusual and of dubious source. The form used is of latest vintage. The entry on the space for mothers maiden name is Hermogena Calarito. There seems to be an apparent attempt to thwart plaintiffs mother filiation with the omission of the surname Gabatan. Considering these circumstances alone

the Court is inclined to believe that Exhibit "A" for the plaintiff is far more genuine and authentic certificate of live birth.20 Having carefully examined the questioned birth certificates, we simply cannot agree with the above-quoted findings of the trial court. To begin with, Exhibit A, as the trial court noted, was an original typewritten document, not a mere photocopy or facsimile. It uses a form of 1950s vintage21 but this Court is unable to concur in the trial courts finding that Exhibit 122 was of a later vintage than Exhibit A which was one of the trial courts bases for doubting the authenticity of Exhibit 1. On the contrary, the printed notation on the upper left hand corner of Exhibit 1 states "Municipal Form No. 102 (Revised, January 1945)" which makes it an older form than Exhibit A. Thus, the trial courts finding regarding which form was of more recent vintage was manifestly contradicted by the evidence on record. No actual signature appears on Exhibit A except that of a certain Maximo P. Noriga, Deputy Local Civil Registrar of the Office of the Local Civil Registrar, Cagayan de Oro City, who purportedly certified on July 6, 1977 that Exhibit A was a true copy of respondents birth certificate. The names of the attendant at birth (Petra Sambaan) and the local civil registrar (J.L. Rivera) in 1950 were typewritten with the notation "(Sgd.)" also merely typewritten beside their names. The words "A certified true copy: July 6, 1977" above the signature of Maximo P. Noriga on Exhibit A appear to be inscribed by the same typewriter as the very entries in Exhibit A. It would seem that Exhibit A and the information stated therein were prepared and entered only in 1977. Significantly, Maximo P. Noriga was never presented as a witness to identify Exhibit A. Said document and the signature of Maximo P. Noriga therein were identified by respondent herself whose self-serving testimony cannot be deemed sufficient authentication of her birth certificate. We cannot subscribe to the trial courts view that since the entries in Exhibit 1 were handwritten, Exhibit 1 was the one of dubious credibility. Verily, the certified true copies of the handwritten birth certificate of respondent (petitioners Exhibits 1 and 8) were duly authenticated by two competent witnesses; namely, Rosita Vidal (Ms. Vidal), Assistant Registration Officer of the Office of the City Civil Registrar, Cagayan de Oro City and Maribeth E. Cacho (Ms. Cacho), Archivist of the National Statistics Office (NSO), Sta. Mesa, Manila. Both witnesses testified that: (a) as part of their official duties they have custody of birth records in their respective offices,23 and (b) the certified true copy of respondents handwritten birth certificate is a faithful reproduction of the original birth certificate registered in their respective offices.24 Ms. Vidal, during her testimony, even brought the original of the handwritten birth certificate before the trial court and respondents counsel confirmed that the certified true copy (which was eventually marked as Exhibit 1) was a faithful reproduction of the original.25 Ms. Vidal likewise categorically testified that no other copy of respondents birth certificate exists in their records except the handwritten birth certificate. 26 Ms. Cacho, in turn, testified that the original of respondents handwritten birth certificate found in the records of the NSO Manila (from which Exhibit 8 was photocopied) was the one officially transmitted to their office by the Local Civil Registry Office of Cagayan de Oro.27 Both Ms. Vidal and Ms. Cacho testified and brought their respective offices copies of respondents birth certificate in compliance with subpoenas issued by the trial court and there is no showing that they were motivated by ill will or bias in giving their testimonies. Thus, between respondents Exhibit A and petitioners Exhibits 1 and 8, the latter documents deserve to be given greater probative weight. Even assuming purely for the sake of argument that the birth certificate presented by respondent (Exhibit A) is a reliable document, the same on its face is insufficient to prove respondents filiation to her alleged grandfather, Juan Gabatan. All that Exhibit A, if it had been credible and authentic, would have proven was that respondents mother was a certain "Hermogena Clarito Gabatan." It does not prove that same "Hermogena Clarito Gabatan" is the daughter of Juan Gabatan. Even the CA held that the conflicting certificates of live birth of respondent submitted by the parties only proved the filiation of respondent to Hermogena.28 It was absolutely crucial to respondents cause of action that she convincingly proves the filiation of her mother to Juan Gabatan. To reiterate, to prove the relationship of respondents mother to Juan Gabatan, our laws dictate that the best evidence of such familial tie was the record of birth appearing in the Civil Register, or an authentic document or a final judgment. In the absence of these, respondent should have presented proof that her mother enjoyed the continuous possession of the status of a legitimate child. Only in the absence of these two classes of evidence is the respondent allowed to present other proof admissible under the Rules of Court of her mothers relationship to Juan Gabatan. However, respondents mothers (Hermogenas) birth certificate, which would have been the best evidence of Hermogenas relationship to Juan Gabatan,

was never offered as evidence at the RTC. Neither did respondent present any authentic document or final judgment categorically evidencing Hermogenas relationship to Juan Gabatan. Respondent relied on the testimony of her witnesses, Frisco Lawan, Felicisima Nagac Pacana and Cecilia Nagac Villareal who testified that they personally knew Hermogena (respondents mother) and/or Juan Gabatan, that they knew Juan Gabatan was married to Laureana Clarito and that Hermogena was the child of Juan and Laureana. However, none of these witnesses had personal knowledge of the fact of marriage of Juan to Laureana or the fact of birth of Hermogena to Juan and Laureana. They were not yet born or were very young when Juan supposedly married Laureana or when Hermogena was born and they all admitted that none of them were present at Juan and Laureanas wedding or Hermogenas birth. These witnesses based their testimony on what they had been told by, or heard from, others as young children. Their testimonies were, in a word, hearsay. Other circumstances prevent us from giving full faith to respondents witnesses testimonies. The records would show that they cannot be said to be credible and impartial witnesses. Frisco Lawan testified that he was the son of Laureana by a man other than Juan Gabatan and was admittedly not at all related to Juan Gabatan.29 His testimony regarding the relationships within the Gabatan family is hardly reliable. As for Felicisima Nagac Pacana and Cecilia Nagac Villareal who are children of Justa Gabatan Nagac, 30 this Court is wary of according probative weight to their testimonies since respondent admitted during her cross-examination that her (respondents) husband is the son of Felicisima Nagac Pacana. 31 In other words, although these witnesses are indeed blood relatives of petitioners, they are also the mother and the aunt of respondents husband. They cannot be said to be entirely disinterested in the outcome of the case. Aside from the testimonies of respondents witnesses, both the RTC and the CA relied heavily on a photocopy of a Deed of Absolute Sale32 (Exhibit H) presented by respondent and which appeared to be signed by the siblings and the heirs of the siblings of Juan Gabatan. In this document involving the sale of a lot different from Lot 3095 C-5, "Hermogena Gabatan as heir of the deceased Juan Gabatan" was indicated as one of the vendors. The RTC deemed the statement therein as an affirmation or recognition by Teofilo Gabatan, petitioners predecessor in interest, that Hermogena Gabatan was the heir of Juan Gabatan.33 The CA considered the same statement as a declaration against interest on the part of Teofilo Gabatan.34 However, the admission of this Deed of Absolute Sale, including its contents and the signatures therein, as competent evidence was vigorously and repeatedly objected to by petitioners counsel for being a mere photocopy and not being properly authenticated.35 After a close scrutiny of the said photocopy of the Deed of Absolute Sale, this Court cannot uphold the admissibility of the same. Under the best evidence rule, when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself.36 Although the best evidence rule admits of exceptions and there are instances where the presentation of secondary evidence would be allowed, such as when the original is lost or the original is a public record, the basis for the presentation of secondary evidence must still be established. Thus, in Department of Education Culture and Sports v. Del Rosario,37 we held that a party must first satisfactorily explain the loss of the best or primary evidence before he can resort to secondary evidence. A party must first present to the court proof of loss or other satisfactory explanation for non-production of the original instrument. In the case at bar, a perusal of the transcript of the testimony of Felicisima Nagac Pacana (who identified the photocopy of the Deed of Absolute Sale) plainly shows that she gave no testimony regarding the whereabouts of the original, whether it was lost or whether it was recorded in any public office. There is an ostensible attempt to pass off Exhibit H as an admissible public document. For this, respondent relied on the stamped notation on the photocopy of the deed that it is a certified true xerox copy and said notation was signed by a certain Honesto P. Velez, Sr., Assessment Officer, who seems to be an officer in the local assessors office. Regarding the authentication of public documents, the Rules of Court 38 provide that the record of public documents, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy. 39 The attestation of the certifying officer must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. 40

To begin with, no proof whatsoever was presented by respondent that an original of Exhibit H was registered or exists in the records of the local assessors office. Furthermore, the stamped certification of Honesto P. Velez is insufficient authentication of Exhibit H since Velezs certification did not state that Exhibit H was a true copy from the original. Even worse, Velez was not presented as a witness to attest that Exhibit H was a true copy from the original. Indeed, it is highly doubtful that Velez could have made such an attestation since the assessors office is not the official repository of original notarized deeds of sale and could not have been the legal custodian contemplated in the rules. It is the notary public who is mandated by law to keep an original of the Deed of Absolute Sale in his notarial register and to forward the same to the proper court. It is the notary public or the proper court that has custody of his notarial register that could have produced the original or a certified true copy thereof. Instead, the Deed of Absolute Sale was identified by Felicisima Nagac Pacana who, despite appearing to be a signatory thereto, is not a disinterested witness and as can be gleaned from her testimony, she had no personal knowledge of the preparation of the alleged certified true copy of the Deed of Absolute Sale. She did not even know who secured a copy of Exhibit H from the assessors office.41 To be sure, the roundabout and defective manner of authentication of Exhibit H renders it inadmissible for the purpose it was offered, i.e. as proof that Teofilo Gabatan acknowledged or admitted the status of Hermogena Gabatan as heir of Juan Gabatan. Even if we are to overlook the lack of proper authentication of Exhibit H and consider the same admissible, it still nonetheless would have only provided proof that a certain Hermogena Gabatan was the heir of Juan Gabatan. Exhibit H does not show the filiation of respondent to either Hermogena Gabatan or Juan Gabatan. As discussed above, the only document that respondent produced to demonstrate her filiation to "Hermogena Gabatan" (respondents Exhibit A) was successfully put in doubt by contrary evidence presented by petitioners. As for the issue of laches, we are inclined to likewise rule against respondent. According to respondents own testimony,42 Juan Gabatan died sometime in 1933 and thus, the cause of action of the heirs of Juan Gabatan to recover the decedents property from third parties or to quiet title to their inheritance accrued in 1933. Yet, respondent and/or her mother Hermogena, if they were truly the legal heirs of Juan Gabatan, did not assert their rights as such. It is only in 1978 that respondent filed her first complaint to recover the subject property, docketed as Civil Case No. 5840, against Rita Gabatan, the widow of Teofilo Gabatan.43 However, that case was dismissed without prejudice for failure to prosecute.44 Again, respondent waited until 1989 to refile her cause of action, i.e. the present case.45 She claimed that she waited until the death of Rita Gabatan to refile her case out of respect because Rita was then already old.46 We cannot accept respondents flimsy reason. It is precisely because Rit a Gabatan and her contemporaries (who might have personal knowledge of the matters litigated in this case) were advancing in age and might soon expire that respondent should have exerted every effort to preserve valuable evidence and speedily litigate her claim. As we held in Republic of the Philippines v. Agunoy: "Vigilantibus, sed non dormientibus, jura subveniunt, the law aids the vigilant, not those who sleep on their rights[O]ne may not sleep on a right while expecting to preserve it in its pristine purity."47 All in all, this Court finds that respondent dismally failed to substantiate, with convincing, credible and independently verifiable proof, her assertion that she is the sole heir of Juan Gabatan and thus, entitled to the property under litigation. Aggravating the weakness of her evidence were the circumstances that (a) she did not come to court with clean hands for she presented a tampered/altered, if not outright spurious, copy of her certificate of live birth and (b) she unreasonably delayed the prosecution of her own cause of action. If the Court cannot now affirm her claim, respondent has her own self to blame. WHEREFORE, the petition is GRANTED. The Court of Appeals Decision in CA-G.R. CV No. 52273, affirming the decision of the Regional Trial Court in Civil Case No. 89-092, is hereby REVERSED and SET ASIDE. The complaint and amended complaint in Civil Case No. 89-092 are DISMISSED for lack of merit. -ANTONIO PERLA vs. MIRASOL BARING and RANDY PERLA

"An order for x x x support x x x must be issued only if paternity or filiation is established by clear and convincing evidence."1 Assailed in this Petition for Review on Certiorari2 is the March 31, 2005 Decision3 of the Court of Appeals (CA) in CA-G.R. CV No. 79312 which dismissed petitioner Antonio Perlas (Antonio) appeal from the February 26, 2003 Decision4 of the Regional Trial Court (RTC) of Antipolo City, Branch 71 in Civil Case No. 96-3952, ordering him to give monthly support to respondent Randy Perla (Randy). Likewise assailed is the CAs May 5, 2006 Resolution5 denying the motion for reconsideration thereto. Factual Antecedents Respondent Mirasol Baring (Mirasol) and her then minor son, Randy (collectively respondents), filed before the RTC a Complaint6 for support against Antonio. They alleged in said Complaint that Mirasol and Antonio lived together as common-law spouses for two years. As a result of said cohabitation, Randy was born on November 11, 1983. However, when Antonio landed a job as seaman, he abandoned them and failed to give any support to his son. Respondents thus prayed that Antonio be ordered to support Randy. In his Answer with Counterclaim,7 Antonio, who is now married and has a family of his own, denied having fathered Randy. Although he admitted to having known Mirasol, he averred that she never became his common-law wife nor was she treated as such. And since Mirasol had been intimidating and pestering him as early as 1992 with various suits by insisting that Randy is his son, Antonio sought moral and exemplary damages by way of counterclaim from respondents. During trial, Mirasol testified that from 1981 to 1983, she lived in Upper Bicutan, Taguig where Antonio was a neighbor.8 In the first week of January 1981, Antonio courted her9 and eventually became her first boyfriend.10 Antonio would then visit her everyday until 1982.11 Upon clarificatory question by the court whether she and Antonio eventually lived together as husband and wife, Mirasol answered that they were just sweethearts. 12 When Mirasol became pregnant in 1983, Antonio assured her that he would support her.13 Eventually, however, Antonio started to evade her.14 Mirasol last saw Antonio in 1983 but could not remember the particular month. 15 On November 11, 1983, Mirasol gave birth to Randy.16 She presented Randys Certificate of Live Birth17 and Baptismal Certificate18 indicating her and Antonio as parents of the child. Mirasol testified that she and Antonio supplied the information in the said certificates.19 Antonio supplied his name and birthplace after Erlinda Balmori (Erlinda), the "hilot" who assisted in Mirasols delivery of Randy, went to his house to solicit the said information. 20 Mirasol also claimed that it was Erlinda who supplied the date and place of marriage of the parents so that the latter can file the birth certificate. 21 Mirasol likewise confirmed that she is the same "Mirasol Perla" who signed as the informant therein.22 Next to take the witness stand was Randy who at that time was just 15 years old.23 Randy claimed that he knew Antonio to be the husband of her mother and as his father.24 He recounted having met him for the first time in 1994 in the house of his Aunt Lelita, Antonios sister, where he was vacationing. 25 During their encounter, Randy called Antonio "Papa" and kissed his hand while the latter hugged him.26 When Randy asked him for support, Antonio promised that he would support him.27 Randy further testified that during his one-week stay in his Aunt Lelitas place, the latter treated him as member of the family.28 For her part, Aurora Ducay testified that she knew both Mirasol and Antonio as they were neighbors in Upper Bicutan, Taguig. Presently, Antonio is still her neighbor in the said place.29 According to her, she knew of Mirasols and Antonios relationship because aside from seeing Antonio frequenting the house of Mirasol, she asked Antonio about it.30 She further narrated that the two have a son named Randy31 and that Antonios mother even tried to get the child from Mirasol.32 Testifying as an adverse witness for the respondents, Antonio admitted having sexual intercourse with Mirasol in February and August 33 of 1981.34 When shown with Randys Certificate of Live Birth and asked whether he had a hand in the preparation of the same, Antonio answered in the negative. 35

Testifying for himself, Antonio denied having courted Mirasol on January 5, 1981 because during that time, he was studying in Iloilo City. He graduated from the Iloilo Maritime Academy in March of 198136 as shown by his diploma.37 It was only in May 1981 or after his graduation that he came to Manila. Further, he denied having any relationship with Mirasol.38 He claimed that he had sexual intercourse with Mirasol only once which happened in the month of September or October of 1981.39 Antonio came to know that he was being imputed as the father of Randy only when Mirasol charged him with abandonment of minor in 1994, which was also the first time he saw Randy.40 Prior to that, neither Mirasol nor her sister, Norma, whom he met a few times told him about the child.41 Anent Randys Certificate of Live Birth, Antonio testified as to several inaccuracies in the entries thereon. According to him, his middle initial is "E" and not "A" as appearing in the said certificate of live birth. 42 Also, he is not a protestant and a laborer as indicated in said certificate.43 Antonio likewise alleged that Mirasol only made up the entries with respect to their marriage on October 28, 1981.44 Daisy Balmori Rodriguez (Daisy), for her part, testified that she came to know Mirasol through her mother Erlinda who was the "hilot" when Mirasol gave birth to Randy.45 She narrated that her mother asked Mirasol the details to be entered in the childs Certificate of Live Birth such as the names of the parents, date and place of marriage, and the intended name of the child.46 Her mother also told her that Mirasols son has no acknowledged father. 47 Daisy likewise claimed that Mirasol later left to her care the then infant Randy until Mirasol took him away without permission when the child was almost five years old.48 Ruling of the Regional Trial Court After trial, the RTC rendered a Decision49 dated February 26, 2003 ordering Antonio to support Randy. The RTC ruled that Mirasol and Randy are entitled to the relief sought since Antonio himself admitted that he had sex with Mirasol. It also noted that when the 15-year old Randy testified, he categorically declared Antonio as his father. The RTC opined that Mirasol would not have gone through the trouble of exposing herself to humiliation, shame and ridicule of public trial if her allegations were untrue. Antonios counterclaim was denied due to the absence of bad faith or ill-motive on the part of Mirasol and Randy. The dispositive portion of the RTC Decision reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff Randy Perla and against the defendant Antonio Perla, ordering the latter to give a reasonable monthly support of P5,000.00 to Randy Perla for his sustenance and support to be given to him from the time of the filing of this Complaint. Defendants counterclaim is DISMISSED. SO ORDERED.50 Antonio filed a Notice of Appeal51 which was given due course by the RTC.52 Ruling of the Court of Appeals In its Decision53 of March 31, 2005, the CA upheld Randys illegitimate filiation based on the certified true copies of his birth certificate and of his baptismal certificate identifying Antonio as his father. According to the appellate court, while these documents do not bear the signature of Antonio, they are proofs that Antonio is the known, imputed and identified father of Randy. The CA also affirmed the trial courts findings on the credibility of the witnesses and its appreciation of facts, as there was nothing to suggest that the RTC erred in such respects. It highlighted Antonios vacillation in his testimony regarding the number of times he had sex with Mirasol and concluded that the same is a clear badge of his lack of candor - a good reason to disregard his denials. Thus: WHEREFORE, the appeal is DISMISSED and the appealed Decision is AFFIRMED. SO ORDERED.54

Antonio filed a Motion for Reconsideration55 which was denied by the CA in its Resolution56 of May 5, 2006. Hence, this Petition for Review on Certiorari. Issue The pivotal issue to be resolved in this case is whether the lower courts correctly ordered Antonio to support Randy. Our Ruling There is merit in the petition. A re-examination of the factual findings of the RTC and the CA is proper in this case. "Generally, factual findings of trial courts, when affirmed by the CA, are binding on this Court."57 However, this rule admits of certain exceptions such as when the finding is grounded entirely on speculations, surmises or conjectures or when the judgment of the CA is based on misapprehension of facts.58 As this case falls under these exceptions, the Court is constrained to re-examine the factual findings of the lower courts. Since respondents complaint for support is anchored on Randys alleged illegitimate filiation to Antonio, the lower courts should have first made a determination of the same. Respondents Complaint for support is based on Randys alleged illegitimate filiation to Antonio. Hence, for Randy to be entitled for support, his filiation must be established with sufficient certainty. A review of the Decision of the RTC would show that it is bereft of any discussion regarding Randys filiation. Although the appellate court, for its part, cited the applicable provision on illegitimate filiation, it merely declared the certified true copies of Randys birth certificate and baptismal certificate both identifying Antonio as the father as good proofs of his filiation with Randy and nothing more. This is despite the fact that the said documents do not bear Antonios signature. "Time and again, this Court has ruled that a high standard of proof is required to establish paternity and filiation. An order for x x x support may create an unwholesome situation or may be an irritant to the family or the lives of the parties so that it must be issued only if paternity or filiation is established by clear and convincing evidence."59 Respondents failed to establish Randys illegitimate filiation to Antonio. The rules for establishing filiation are found in Articles 172 and 175 of the Family Code which provide as follows: Article 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. xxxx

Article 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxxx Respondents presented the Certificate of Live Birth of Randy identifying Antonio as the father. However, said certificate has no probative value to establish Randys filiation to Antonio since the latter had not signed the same.60 It is settled that "a certificate of live birth purportedly identifying the putative father is not competent evidence of paternity when there is no showing that the putative father had a hand in the preparation of said certificate."61 We also cannot lend credence to Mirasols claim that Antonio supplied certain information through Erlinda. Aside from Antonios denial in having any participation in the preparation of the document as well as the absence of his signature thereon, respondents did not present Erlinda to confirm that Antonio indeed supplied certain entries in Randys birth certificate. Besides, the several unexplained discrepancies in Antonios personal circumstances as reflected in the subject birth certificate are manifestations of Antonios non-participation in its preparation. Most important, it was Mirasol who signed as informant thereon which she confirmed on the witness stand. Neither does the testimony of Randy establish his illegitimate filiation. That during their first encounter in 1994 Randy called Antonio "Papa" and kissed his hand while Antonio hugged him and promised to support him; or that his Aunt Lelita treated him as a relative and was good to him during his oneweek stay in her place, cannot be considered as indications of Randys open and continuous possession of the status of an illegitimate child under the second paragraph of Article 172(1). "[T]o prove open and continuous possession of the status of an illegitimate child, there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his, by continuous and clear manifestations of parental affection and care, which cannot be attributed to pure charity. 1wphi1 Such acts must be of such a nature that they reveal not only the conviction of paternity, but also the apparent desire to have and treat the child as such in all relations in society and in life, not accidentally, but continuously."62 Here, the single instance that Antonio allegedly hugged Randy and promised to support him cannot be considered as proof of continuous possession of the status of a child. To emphasize, "[t]he fathers conduct towards his son must be spontaneous and uninterrupted for this ground to exist."63 Here, except for that singular occasion in which they met, there are no other acts of Antonio treating Randy as his son.64 Neither can Antonios paternity be deduced from how his sister Lelita treated Randy. To this Court, Lelitas actuations could have been done due to charity or some other reasons. Anent Randys baptismal certificate, we cannot agree with the CA that the same is a good proof of Antonios paternity of Randy. Just like in a birth certificate, the lack of participation of the supposed father in the preparation of a baptismal certificate renders this document incompetent to prove paternity.65 And "while a baptismal certificate may be considered a public document, it can only serve as evidence of the administration of the sacrament on the date specified but not the veracity of the entries with respect to the childs paternity. Thus, x x x baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same."66 This Court cannot likewise agree with the RTCs conclusion that Antonio fathered Randy merely on the basis of his admission that he had sexual encounters with Mirasol. Neither does it agree with the CA that the inconsistencies in Antonios testimony with regard to the number of times he had sexual intercourse with Mirasol are good reasons to disregard his denials and uphold the respondents claims. It is well to stress that as plaintiff, Mirasol has the burden of proving her affirmative allegation that Antonio is the father of her son Randy.67 She must rely on the strength of her evidence and not on the weakness of the defense.68 As Randy was born on November 11, 1983, it was incumbent upon Mirasol to prove that she had sexual intercourse with Antonio prior to the usual period of pregnancy or nine months before the birth of Randy. This crucial period therefore is during the early part of the first quarter of 1983. However, nothing from Mirasols testimony indicates that she had sexual intercourse with Antonio during that time. She merely testified that she last met with Antonio in 1983 but could not remember the particular month.69 Plainly, this hardly means anything not only because it was not established that the said meeting took place during that crucial period but also because Mirasol never mentioned that they had sexual contact during their meeting.

Antonios admission of sexual intercourse with Mirasol does not likewise by any means strengthen respondents theory that he fathered Randy. When Antonio testified as an adverse witness for the respondents, he stated that he had sexual intercourse with Mirasol in February and August of 1981. Later testifying as witness for his own behalf, he mentioned that he had a one night affair with Mirasol which happened in the month of September or October of 1981. Assuming that he indeed had sexual contact with Mirasol on the dates mentioned, still, none of these sexual congresses could have led to the conception of Randy who was born two years later in 1983. All told, it is clear that respondents failed to establish Randys illegitimate filiation to Antonio. Hence, the order for Antonio to support Randy has no basis. WHEREFORE, the Petition for Review on Certiorari is GRANTED. The assailed Decision dated March 31, 2005 and Resolution dated May 5, 2006 of the Court of Appeals in CA-G.R. CV No. 79312 are REVERSED and SER ASIDE and the Decision dated February 26, 2003 of the Regional Trial Court of Antipolo City, Branch 71, in Civil Case No. 96-3952 is VACATED. A new one is entered DISMISSING the Complaint for Support filed by Mirasol Baring and Randy Perla against Antonio Perla. -PEOPLE OF THE PHILIPPINES vs. RAYMUNDO MAGTIBAY y BACHOCO Before us on appeal is the Decisioncxxii[1] of the Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch XLII, in Criminal Case No. P-5775, finding accused-appellant guilty of rape and imposing upon him the penalty of reclusion perpetua. The Information against accused-appellant states: That on or about the 15th day of September, 1997, at 8:00 oclock in the evening, more or less, in Barangay Sagana, Municipality of Bongabong, province of Oriental Mindoro, Philippines and within the jurisdiction of the Honorable Court, the above-named accused, with lewd and unchaste design, did then and there willfully, unlawfully and feloniously have carnal knowledge of one RACHELLE RECTO y Rafal, by means of force and threats to kill, to the irreparable damage of the said Offended Party. CONTRARY TO ART. 335 of the RPC AS AMENDED BY R.A. 7659.cxxiii[2] When arraigned on July 7, 1998, accused-appellant, with the assistance of counsel, entered a plea of not guilty to the crime charged. Thereafter, trial ensued. The version of the prosecution is as follows: On September 15, 1997, at about 8:00 in the evening in Barangay Sagana, Bongabong, Oriental Mindoro, Rachelle went to the store of Ka Emma Hernandez, about 40 meters from their house to buy cigarette and ice. When she got to the store, she saw accused-appellant standing there. She noticed that the latter kept staring at her. On her way home, when she was some distance from the store, accusedappellant approached her and pulled her right hand. He covered her mouth and told her that he will kill her if she tried to shout for help. Accusedappellant made her lie on a grassy place and removed her shorts and panties. Accused-appellant then undressed, placed himself on top of Rachelle and inserted his penis into her vagina. Because of accused-appellants threat on her life, Rachelle kept silent about the incident. It was not until she became pregnant that she was constrained to tell her mother what happened. She eventually gave birth to a baby boy.cxxiv[3] Rachelles mother, Gaudiosa Recto, testified that she only came to know about the rape incident after Dr. Fetalberto required Rachelle to have an xray examination at Bongabong Hospital. The results showed that Rachelle was pregnant. She also testified that Rachelle refused to tell her about it because accused-appellant threatened to kill her several times whenever he saw her.cxxv[4]

Dr. Ronaldo Fetalberto, the Municipal Health Officer of Bongabong South, Oriental Mindoro, testified that Rachelle was brought to his clinic by her relatives after they noticed that her abdomen was bulging. Rachelle also complained of irregular bowel movement. The laboratory results showed that Rachelle was pregnant. Upon the request of Rachelles relatives, he examined the private parts of the patient.cxxvi[5] The Medico Legal Reportcxxvii[6] stated the following: General Physical Examination: Conscious, coherent, hearing-impaired, abdomen enlarged fundic height of 23 cm. FHT of 130 beats/min. located at RLQ. Genital Examination: Pubic hair minimal growth, vulva purplish, co-aptated labia majora, laceration in the labia minora at 8 oclock position (+) whitish discharge. There is a positive fetus during the radiological examination. xxx Remarks: 1. 2. Fetus (+) in radiologic exam x x x. xxx xxx

THE COURT A QUO ERRED IN GIVING WEIGHT AND CREDENCE TO THE IMPLAUSIBLE AND REHEARSED TESTIMONY OF THE PRIVATE COMPLAINANT. II THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME HAS BEEN PROVEN BEYOND REASONABLE DOUBT.cxxxi[10] In crimes against chastity, the primordial issue hinges on the credibility of the testimony of the complaining witness. When credibility is in issue, we have ruled time and again that absent any showing that the trial courts assessments and conclusions overlooked certain significant facts and circumstances which would have affected the outcome of the case, the reviewing court is generally bound by the trial courts findings. We generally defer to the findings of the trial court considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment during trial.cxxxii[11] After a thorough review of the evidence on record, the transcript of stenographic notes of the testimonies of the witnesses, especially that of Rachelle, and the pleadings of both parties in this appeal, we find no cogent reason to reverse the trial courts judgment of conviction. The prosecution has established by proof beyond reasonable doubt the guilt of the accusedappellant in this case. Contrary to the claim of accused-appellant, his guilt was proven beyond reasonable doubt, as shown by the following: Q: On September 15, 1997, around 8:00 oclock in the evening, where were you? A: I was at the store of Ka Emma. Q: What is the surname of this Ka Emma? A: Hernandez, sir. Q: Why were you there in the store of Emma Hernandez? A: I bought cigarette and ice, sir. Q: While you were buying cigarette and ice in the store of Ka Emma, were there other persons thereat? A: None, sir. Q: How about the accused you pointed a while ago, where was he at that time? A: He was at the store of Ka Emma, sir. xxx xxx xxx FISCAL (Continuing): Q: And what was he doing in the store? A: He was standing, sir. xxx xxx xxx Q: After buying ice and cigarette, where did you go? A: I returned home, sir. Q: How far is the house of Ka Emma to your house? A: 40 meters, more or less, sir. Q: While you were on your way home coming from the store of Ka Emma, do you remember of an unusual incident that transpired? A: Yes, sir. Q: And what was that? Please tell the court? A: He was always looking at me, sir. Q: Who was that person always looking at you? Witness: A: Raymundo Magtibay, sir. FISCAL (Continuing): Q: After looking at you, what happened next? A: When I was a little bit far from the store, he approached me, sir. Q: After the accused approached you, what did he do next? A: He pulled my right hand, sir. Q: After pulling your right hand, what did he do if any? A: He covered my mouth, sir. Q: With what instrument did he cover your mouth? A: He told me that he will kill me if I shout. Q: After telling you that he will kill you if you shout, what did he do next if any? A: He told me that he will kill me. xxx xxx xxx Q: You stated that the accused held your right arm and covered your mouth and thereafter threatened you not to shout or else you will be killed. After doing these things, what else did he do to you if any? Witness: A: He placed himself on top of me and inserted his penis. xxx xxx xxx

In his defense, accused-appellant claimed that he was bedridden due to influenza from September 14, 1997 to September 19, 1997. He was then residing in the house of his parents-in-law at Sitio Suli, Sagana, Bongabong, Oriental Mindoro. On September 15, 1997, his wife, Merlyn Magtibay, asked her mother for medicine. On that same day, while he was recuperating from his sickness, Remuel Gallos, the son of their Brgy. Captain, came over and asked him to drive his tricycle. He refused because of his illness. He also testified that when the alleged rape incident happened he was still in the house of his parents-in-law because of his sickness.cxxviii[7] The wife of accused-appellant, Merlyn Magtibay, corroborated his testimony that he was ill at the time of the alleged rape. She also testified that on September 15, 1997, accused-appellant was bedridden and could hardly stand because he had flu since September 14, 1997. Her husband recovered only on September 19, 1997. Remuel Gallos testified that accused-appellant was the driver of his tricycle since 1996. On September 15, 1997, he went to the house of accusedappellant to ask him to drive his tricycle because he had to work at his farm. He found accused-appellant lying in his bed and suffering from influenza.cxxix[8] On August 5, 1999, the trial court rendered judgment as follows: ACCORDINGLY, accused RAYMUNDO MAGTIBAY y BACHOCO, is hereby sentence (sic) to suffer the penalty of RECLUSION PERPETUA, together with the accessory penalty provided by law and to pay the cost. Accused is likewise ordered to indemnify the victim Rachelle Recto the amount of P50,000.00 without subsidiary imprisonment. Finally, accused shall be entitled to the full term of his preventive imprisonment if he has any to his credit, provided that he shall agree to abide with the disciplinary rules imposed upon convicted prisoners, otherwise he shall be entitled to only four fifths of the preventive imprisonment. SO ORDERED.cxxx[9] Accused-appellant appealed to this Court and contends that: I

Q: Was he successful in inserting his penis? A: Yes, sir. Q: What did you feel after he successfully and forcibly inserted his penis? A: I felt pain, sir. Q: You stated that he placed himself on top of you, what was your position when he placed himself on top of you? A: I was lying faced upward. Q: In what place were you lying upward? A: At the grassy place sir (damuhan). Q: Before he was able to successfully insert his penis, what did he do to you or your garments or pantie (sic)? A: He removed my short and my pantie. xxx xxx xxx FISCAL (Continuing): Q: How about Raymundo Magtibay, what did he do before placing himself on top of you? A: He removed his pants and brief, sir. Q: Because of the threat of the accused that he will kill you if you will reveal this to anybody, will you tell the court if you acceded to the threat of the accused? A: No, sir. Q: What do you mean, no sir? Did you report or reveal this to your mother of father? A: No, sir. Q: Why did you not reveal this to your parents? A: He was threatening me to be killed, sir.cxxxiii[12] The foregoing testimony clearly shows that Rachelle was unable to ward off accused-appellants sexual advances because of fear for her life. While she cowered in terror, accused-appellant succeeded in consummating his bestial acts on her. Rachelles failure to offer adequate resistance or to make an outcry for helpcxxxiv[13] did not negate the commission of rape upon her person. Rachelles fear of physical harm cannot be tested by any hard-and-fast rule. It must instead be viewed in the light of her perception and judgment at the time of the crime.cxxxv[14] The lack or even absence of resistance is not necessary because the law does not impose upon a rape victim the burden of proving resistance.cxxxvi[15] What is necessary is that the force or intimidation is of such a degree as to impel the defenseless and hapless victim to bow into submission, as in this case.cxxxvii[16] The presence and distance of other houses near the locus of the crime is also of no consequence in the commission of rape. Rape is not necessarily committed only in an isolated place, for rapists have no respect for locale or time when they carry out their evil deed. In a long line of cases, it has been shown that rape can be committed in even the unlikeliest of places.cxxxviii[17] It can be committed in places were people congregate, in parks, along the roadside, within school premises, inside an occupied house, and even in a room where other members of the family are also sleeping. There is no rule or norm that a woman can only be raped in seclusion. cxxxix[18] Accused-appellant claims that the testimony of Rachelle was rehearsed, and cites the following excerpts from the testimony during cross-examination: ATTY. JOYA: Q: Is it not a fact that you have made the affidavit you have just identified only on May 5, 1997, am I correct? A: Yes, mam. Q: And that you, together with your parents went to the police station of Bongabong, purposely to give your affidavit thereat. Correct? A: Yes, mam. Q: Who was the police officer who took your statement? A: I do not know him mam. Q: But your are very sure that the one who took your affidavit is a police officer? A: Yes, mam. Q: Is it not a fact that when you arrived at the police station of Bongabong on May 5, 1998, this affidavit of yours has already been prepared? A: Not yet, mam. Q: Because the police officer was just preparing or typewriting (sic) the same when you arrived at the place; Am I correct? A: Yes, mam. Q: And while typewriting (sic) the same, the police officer was occasionally asking questions from your mother. Am I correct? A: Yes, mam.

Q: That the police officer occasionally ask questions to your mother, and not to you? A: Yes, mam. Q: And after that, your affidavit was prepared and asked you to sign your name on top of your typewritten name. Correct? A: Yes, mam. Q: You will agree with me that you have met this Raymundo Magtibay while you were at the police station? A: Yes, mam. Q: That he was presented to you among with other male persons of his age. Am I correct? A: Yes, mam. Q: And that you were asked by the police officers to point Raymundo Magtibay but when you cannot point to Raymundo Magtibay, the police officers instructed you to point Raymundo Magtibay? A: I pointed him. Q: But you have pointed to Raymundo Magtibay after the police officer have instructed you to point Raymundo Magtibay because initially, you cannot point to him? A: Yes, mam. COURT: Q: What do you mean by yes? A: Totoo po. ATTY. JOYA: Q: Before you testified here in Court you have had a chance to talk with your lawyer. Correct? A: Yes, mam. Q: And at his office, he interviewed you as what you are going to testify today? A: Yes, mam. Q: Before you went to the Office of the Provincial Fiscal, along the way and in your house, you and your mother were discussing as to what you are going to testify today? A: Yes, mam. Q: And your mother told you that you should testify in the manner you did, today. Correct? A: Yes, mam. Q: She told you to testify on the manner you did when you were directly examined by the prosecutor? A: Yes, mam. Q: That because you love your parents very much, you will follow your parents. Am I correct? A: Yes, mam.cxl[19] Accused-appellants claim lacks merit. Rachelles testimony on crossexamination did not deviate from, much less impeach, the core of her testimony as to the gravamen of the crime of rape -- sexual congress with a woman by force and without consent.cxli[20] The foregoing crossexamination by accused-appellants counsel merely injected innuendoes of a fabricated charge but failed to clearly demonstrate compelling reason why we should render Rachelles testimony less worthy of belief. Notwithstanding the ambiguous questions asked by accused-appellants counsel to Rachelle, we find her testimony convincing and straightforward. The cross-examination of a young girl, not accustomed to public trial, could produce apparent contradictions on minor details that would nevertheless keep intact the credibility of the victim as to the fact of rape. At any rate, accused-appellants contentions are nothing but indicia of his desperate attempt to evade liability for the crime he committed. As regards the drafting of Rachelles sworn affidavit,cxlii[21] the defense dismally failed to distinctly establish whether all the answers supposedly given by Rachelle were indeed supplied by her mother. It likewise faltered in eliciting convincing proof that the questions asked by the police officer to the mother of Rachelle were questions related to the answers Rachelle gave in her affidavit. The inquiry fell short of exhibiting the verity of its claim that Rachelles answers in her sworn statement were supplied by her mother. Be that as it may, Rachelles ex-parte affidavit will generally be considered incomplete and inaccurate and will not thus prevail over her statements on the stand.cxliii[22] We likewise find nothing objectionable in Rachelles positive identification of her defiler at the Police Station of Bongabong, Oriental Mindoro. The identification made at the police station did not foreclose the admissibility of the independent in-court identification.cxliv[23] Police investigators are presumed to have performed their duties regularly and in good faith and in the absence of adequate proof to overthrow this presumption, the identification of an accused remains free from any taint of irregularity.cxlv[24] The record shows that even before the rape incident took place Rachelle personally knew accused-appellant because the latter was her barrio mate

whom she often sees.cxlvi[25] She even attended accused-appellants wedding day together with her mother on March 19, 1998, roughly six months after the rape incident occurred.cxlvii[26] Once a person gains familiarity of another, identification becomes quite an easy task even from a considerable distance.cxlviii[27] Furthermore, the in-court positive identification of accused-appellant gains more significance when Rachelle categorically narrated that she was forced to lie down on a grassy place facing her attacker, whom she categorically and unflinchingly identified as the accused-appellant. There is no evidence that Rachelles vision of her rapist was obstructed or that she was rendered unconscious at the time of rape. The fact that Rachelle conferred with the government prosecutor before she testified in court is immaterial. The duty of the government prosecutor does not preclude him from meeting and conferring with the complaining witness as to matters concerning a case. Accused-appellant failed to demonstrate any fact or circumstance which would prove that Rachelles testimony were coached or supplied by his counsel. Moreover, accused-appellant failed to cite any law or jurisprudence that prohibits a government prosecutor from conferring with his witnesses with respect to the prosecution of a criminal case. Accused-appellants allegation that Rachelles mother instructed her on what she would say on the witness stand does not diminish the reliability of her statements. A mother whose daughter, more so if still a minor, have been subjected to the beastly act of rape, cannot be expected to learn the details of her daughters harrowing experience. Besides, the record is barren of any evidence to support accused-appellants contention. It is unnatural for a mother to sacrifice her own daughter, a child of tender years, and subject her to the rigors and humiliation of a public trial for rape if she was not driven by an honest desire to have her daughters transgressor punished accordingly.cxlix[28] Aside from this self-serving claim of the accused-appellant that Rachelles testimony was rehearsed, no other reason is shown why the testimony given by Rachelle on the witness stand is not credible. The trial court correctly gave full faith and credence to Rachelles testimony. There was no showing that Rachelle had an improper motive to testify against accused-appellant. The non-attendance of any ill motive on the part of Rachelle gains more weight in the light of Merlyn Magtibays description of Rachelle as a nice person.cl[29] Accused-appellant also had no reason why Rachelle would falsely accuse her of such serious crime as rape if she were not motivated to bring her perpetrator to justice.cli[30] Needless to say, it is settled jurisprudence that testimonies of child-victims are given full weight and credit, since when a woman, more so if she is a minor, says she has been raped, she says in effect all that is necessary to show that rape was committed. Youth and immaturity are generally badges of truth and sincerity.clii[31] A girl of such age as the victim would not concoct a tale of defloration, allow the examination of her private parts, make public the offense, undergo the trouble and humiliation of a public trial, and endure the ordeal of narrating all its gory details, if she had not in fact been raped.cliii[32] If the accusedappellant had really nothing to do with the crime, it would be against the natural order of events and of human nature, and against the presumption of good faith, that a prosecution witness would falsely accuse him of such a serious crime as rape. In the light of the positive identification of accused-appellant, his defense of denial and alibi cannot sustain his acquittal for rape. A mere denial, like alibi, is inherently a weak defense and constitutes self-serving negative evidence which cannot be accorded greater evidentiary weight than the declaration of credible witnesses who testified on affirmative matters.cliv[33] For alibi to prosper, accused-appellant must prove not only that he was somewhere else when the crime was committed but he must likewise demonstrate that it was physically impossible for him to be at the scene of the crime at the time of its commission. As correctly found by the trial court: It is very easy for anybody to pretend to be sick and that headaches cannot be seen or felt except by one who claims to have it. The defense of sickness cannot be taken with much doubt and hesitation.

Accused likewise claims that after taking some medicine, he was able to fully recover. A tablet of paracetamol and neozep doubly taken could easily subside the fever. It openly shows that the sickness accused suffered is not so serious enough for him to be bedridden and incapacitated to leave his house and do his usual course. Accused house is around 100 meters from the scene of the incident, and the required physical impossibility of being present at the situs of the crime therefore becomes unavailing to him. (Citations omitted)clv[34] It appears that there was no allegation of the age and minority of the victim in the Information, hence, the trial court was correct in imposing the penalty of reclusion perpetua. The requisite for complete allegations on the particulars of the indictment is based on the right of the accused to be fully informed of the nature of the charges against him so that he may adequately prepare for his defense, pursuant to the due process clause of the Constitution.clvi[35] However, the award of damages by the trial court must be modified. The trial court ordered the payment of indemnity in the amount of P50,000.00, but failed to take into consideration the prevailing jurisprudence regarding the award of moral damages in the amount of P50,000.00 to a rape victim. Moral damages are awarded in rape cases involving young girls between 13 and 19 years of age, taking into account the immeasurable havoc wrought on their youthful feminine psyche. It may be awarded without need of showing that the victim suffered mental anguish, fright, serious anxiety and the like.clvii[36] Finally, the record shows that when Rachelles mother, Gaudiosa Recto, discovered about her ordeal, Rachelle was already eight months pregnant.clviii[37] She eventually gave birth to a baby boy.clix[38] These facts confirm the commission of rape sometime in September 1997. There was no showing that Rachelle has previously been sexually abused or she had sexual relations with other men during that time. Thus, with respect to the acknowledgment and support of the child born out of rape our recent ruling in People v. Justiniano Glaboclx[39] states: Concerning the acknowledgment and support of the offspring of rape, Article 345 of the Revised Penal Code provides for three kinds of civil liability that may be imposed on the offender: a) indemnification, b) acknowledgment of the offspring, unless the law should prevent him from so doing, and c) in every case to support the offspring. With the passage of the Family Code, the classification of acknowledged natural children and natural children by legal fiction was eliminated and they now fall under the specie of illegitimate children. Since parental authority is vested by Article 176 of the Family Code upon the mother and considering that an offender sentenced to reclusion perpetua automatically loses parental authority over his children, no further positive act is required of the parent as the law itself provides for the childs status. Hence, accused-appellant should only be ordered to indemnify and support the victims child. However, the amount and terms of support shall be determined by the trial court after due notice and hearing in accordance with Article 201 of the Family Code. WHEREFORE, in view of the foregoing, the Decision dated August 5, 1999 of the Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch XLII, in Criminal Case No. P-5775, finding accused-appellant guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua, is AFFIRMED with the MODIFICATION that accused-appellant RAYMUNDO MAGTIBAY y BACHOCO is ordered to pay complainant Rachelle Recto, the amount of P50,000.00 as civil indemnity, and P50,000.00 as moral damages. Accused-appellant is further ordered to provide support to the victims child born out of the rape, subject to the amount and terms to be determined by the trial court in a proper proceeding. -PEOPLE vs. ABELLA Under automatic review is the Decision [1] dated September 21, 2006 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02085 which affirmed with modification the Judgment [2] promulgated on June 3, 2003 by Branch 25 of the Regional Trial Court (RTC) of Naga City convicting accused-appellant Marlon Barsaga Abella of the crime of rape, defined and penalized under Articles 266-A and 266-B of the Revised Penal Code, as amended, sentencing him to suffer the penalty of reclusion perpetua, ordering him to pay civil indemnity and damages, and further ordering him to acknowledge and support his offspring with the private offended party.

In a Minute Resolution [3] dated June 27, 2007, we required the parties to file their respective supplemental briefs. The parties, however, manifested that they have exhausted their arguments before the CA and, thus, will no longer file any supplemental brief. [4] The antecedent facts are culled from the records of this case. Consistent with our ruling in People v. Cabalquinto [5] and People v. Guillermo, [6] this Court withholds the real name of the private offended party and her immediate family members as well as such other personal circumstance or information tending to establish her identity. The initials AAA represent the private complainant and the initials BBB refer to the mother of the private complainant. The accusatory portion of the information reads: That sometime on December 1999, in the afternoon, at Barangay San Vicente, Municipality of Pamplona, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with Balisong and under the influence of liquor, by means of force and intimidation and with lewd design, did then and there willfully and feloniously enter the house of herein complainant and then and there have sexual intercourse with AAA, a woman of feeble mind, against her will to her damage and prejudice. Acts contrary to law. Accused-appellant Abella pleaded not guilty upon arraignment. [7] The pre-trial conference followed and, thereafter, trial ensued. The prosecution presented five (5) witnesses, namely, AAA, [8] BBB, [9] Dr. Emelito Alegre, [10] Dr. Imelda Escuadra [11] and Corazon Alipante, [12] and documentary exhibits consisting of the Ultrasound Report [13] of AAA dated September 14, 2000 issued by Dr. Alegre, the Medical Certificate [14] of AAA dated July 14, 2000 and Clinical Record [15] of AAA dated June 13, 2000 issued by Dr. Alcantara, the Psychiatric Evaluation [16] of AAA dated September 25, 2001 of Dr. Escuadra, and the Certificate of Live Birth [17] of the daughter of AAA issued by the Office of the Civil Registrar of the City of Naga. The defense, on the other hand, presented the testimonies of the accused-appellant [18] and his father, Danilo Abella, [19] and documentary exhibits consisting of two (2) Barangay Blotters [20] dated March 15 and September 16, 2000 issued by the Barangay Captain of San Vicente, Municipality of Pamplona, Province of Camarines Sur. After trial, the RTC convicted the accused-appellant. The trial court found the 38-year old AAA as a credible witness and her testimony candid and truthful despite her moderate mental retardation or intellectual quotient of a 7 to 8-year old child. In contrast, the trial court found that the defenses of denial and alibi of the accused-appellant were flimsy and farfetched. It further ruled that the child conceived and delivered by AAA was fathered by the accused-appellant. The dispositive portion of the judgment reads: WHEREFORE, in view of all the foregoing, judgment is hereby rendered finding accused MARLON ABELLA y BARSAGA guilty beyond reasonable doubt for the crime of Rape, and hereby sentences him to suffer the penalty of reclusion perpetua. Accused is likewise directed to recognize [xxx] as his illegitimate daughter, and provide for her support as soon as his financial means permit. Furthermore, he is hereby ordered to pay complainant the sum of P75,000.00 as indemnity, P50,000.00 as moral damages and P50,000.00 as exemplary damages. With costs de officio. Considering that the accused has been undergoing detention during the pendency of the trial of this case, the same is hereby credited in the service of his sentence. The decision of the RTC was directly elevated to this Court. The accusedappellant filed his Brief [21] on August 23, 2005 while the plaintiff-appellee filed its Brief [22] on December 19, 2005. In a Minute Resolution [23] dated February 15, 2006, we transferred this case to the CA for appropriate action conformably with our ruling in People v. Mateo. [24]

The CA summarized the evidence of the parties as follows: Dr. Emelito Alegre, a radiologist and sonologist, testified that he had conducted an ultrasound examination on AAA on 10 July 2000. Through the conduct of the necessary measurements and ultrasound examination, he confirmed AAAs pregnancy. At the time of the examination, AAA was already 30.7 weeks pregnant. The testimony of the Municipal health Officer, Dr. Marietta Alcantara, in turn, was dispensed with on account of the admission of the defense of the existence and genuineness of the medical certificate that she had executed in relation to the instant case. Dr. Imelda Escuadra of the Women and Children Protection Unit of Bicol Medical Center, Naga City, and a specialist in the field of psychiatry testified that AAA was referred to her clinic for examination and evaluation by the Department of Social Work and Development (DSWD). During the first examination, she noticed that AAA was pregnant, was coughing, but responsive, coherent and relevant with no auditory nor visual hallucinations or delusions shown. AAA, as she had observed, was not psychotic at the time of the examination. Dr. Escuadra added that AAA had recurrent thoughts of the rape incident and the threats to kill her if she would divulge the matter. It was also observed that AAA was not oriented as regards to persons and dates and that she showed poor grasp of general information. During the last examination on 24 July 2000, AAA looked depressed and claimed that her baby was moving. Dr. Escuadra further testified that AAAs mental ability particularly on the arithmetic aspect was poor, as she could not even count from 1-100. She concluded that although AAAs chronological age was 38 years old, she manifested a mental age of between 7-8 years old. AAAs intelligence quotient was only 51, which is classified as moderate mental retardation. Aside from her mental disadvantage, AAA also suffers from dwarfism being only three (3) feet and eight (8) inches tall. Corazon Alipante, a psychologist of the Bicol Medical Center who conducted the psychological testing on AAA, confirmed that the latters mental capacity is functioning within the moderate mental retardation level with an average intelligent quotient of 51 and that her perception of reality is impaired. AAA testified that she knew the appellant personally since he was a child because they lived in the same neighborhood. She narrated that sometime at around 1:00 oclock in the afternoon while she was alone at home the appellant entered their house and started molesting her. Appellant pulled down her shorts with his left hand while covering her mouth with his right hand. Appellant then placed himself on top of her and inserted his penis into her vagina. At that time, she did not shout as the appellant was holding a knife. AAA recalled that when appellant inserted his penis into her vagina, she had felt pain. Afraid for her life, she did not tell her parents about the rape incident. Continuing with her narration, AAA stated that several months after the incident, her stomach became big. Thinking that she was just ill, she drank some bitter solution upon her mothers instruction. As her stomach continued to grow, AAA was forced to tell her mother about the rape incident. Thereafter, AAA consulted a doctor who confirmed that she was pregnant. Consequently she gave birth to a baby girl. BBB, AAAs mother, on the other hand, testified that the appellant is the cousin of her husband. She claimed that she noticed her daughter becoming pale and thinner. She also noticed that AAAs stomach was getting bigger and thus decided to bring her to a doctor, who in turn informed her that her daughter might be pregnant. An ultrasound examination confirmed that AAA was indeed pregnant. BBB then asked her daughter who was responsible for her pregnancy, AAA replied that it was the appellant. BBB further claimed that prior to the confirmation of the pregnancy, the appellant had given her some mahogany seeds which he said AAA should take so that she will have her menstruation. But since the mahogany seeds made AAA weaker, BBB discontinued it and decided to consult a doctor instead. Upon learning that it was the appellant who had raped her daughter,

BBB immediately reported the matter to the Municipal Hall of Pamplona. Thereafter, the appellant was arrested. BBB also testified that appellants parents had tried to settle the case by offering the sum of Twenty Thousand Pesos (P20,000.00). They however declined said offer, as it was not even commensurate to the expenses they have already spent for their daughter and her child. AAA gave birth to a baby girl on 16 August [2000] but the appellant and his family had never given them any financial support. Aside from the testimony of the [accused]-appellant, the defense also called Danilo Abella, appellants father, to the stand. Both testimonies were principally anchored on denial, and attributed that the filing of this case against the accused was ill motivated and was due to the bad blood and personal animosities between their family and that of the complainant. Appellant contends that a certain Mang Ben, a construction worker of the China Geo, was the one responsible in impregnating the complainant. After its review of the evidence, the CA agreed with the findings of the RTC and affirmed the conviction of the accused-appellant. However, as prayed for by the plaintiff-appellee, the appellate court deleted the award of exemplary damages in favor of AAA for lack of basis, thus: WHEREFORE, the foregoing considered, the assailed Decision is AFFIRMED with the MODIFICATION that the award for exemplary damages is DELETED. No costs. The accused-appellant did not move for the reconsideration of the appellate courts judgment. He instead elevated for review his conviction before us. Accused-appellant reiterates the issues and arguments he has raised before the courts below as follows: I The trial court gravely erred in failing to consider the motive behind the filing of the instant case against the accused-appellant. II The court a quo gravely erred in convicting the accused-appellant of the crime charged although his actual participation in the alleged act was not proven with certainty. Accused-appellant asserts that he should be acquitted of the crime charged. AAA allegedly testified unsurely as to the identity of her assailant and that she testified incoherently as to the details surrounding the rape incident. Accused-appellant points out that AAA mentioned that she was raped by a certain Mang Ben. AAA then testified that the accused-appellant was holding a knife while her pants were being pulled by him with his left hand and her mouth being covered with his right hand. She also allegedly said that the accused-appellant opened his knife when he was about to molest her but he left after opening the knife. Accused-appellant insists that AAA was coached to testify against him in furtherance of the hostility between their families. He claims that AAAs mental disability made her so subservient to her parents that she would believe everything that they tell her. He further argues that the alleged P20,000.00 offer of accused-appellants family to settle this criminal case happened before this case was actually filed which proves that the said offer was either concocted by AAAs family or they were extorting money. The plaintiff-appellee maintains that the prosecution has proven the guilt of the accused-appellant of the crime charged. AAA allegedly testified clearly and convincingly that she was raped by accused-appellant. The plaintiffappellee points out that AAA clarified on the witness stand that it was accused-appellant, and not Mang Ben, who raped her; that she did not say that the accused-appellant simultaneously pointed a knife at her, covered her mouth, and pulled down her pants she rather testified that, after her mouth was covered and pants pulled down, the accused-appellant forced her to lay down and then drew a knife; and that AAA said that the accused-appellant left after raping her. Assuming there were inconsistencies in AAAs

testimony, the same pertain to insignificant details which rather support, not destroy, her credibility. The plaintiff-appellee claims that the contention that the crime charged against the accused-appellant was prompted by revenge or ill-motive on the part of AAAs family was baseless and that the mental disability of AAA did not affect her credibility and veracity of her testimony. The psychiatric evaluation of AAA allegedly proves that she was generally coherent and relevant and that her extensive examination on the witness stand shows that she could distinguish good from bad and truth from lies. We affirm the conviction of the accused-appellant. Article 266-A of the Revised Penal Code provides that the crime of rape is committed by a man having carnal knowledge of a woman under any of the following circumstances: (1) through force, threat or intimidation; (2) when the offended party is deprived of reason or otherwise unconscious; (3) by means of fraudulent machination or grave abuse of authority; and (4) when the offended party is under 12 years of age or is demented, even though none of the circumstances mentioned above be present. In People v. Andaya, [25] it was held that sexual intercourse with a woman who is a mental retardate with the mental age of a child below 12 years old constitutes statutory rape with or without the attendance of force, threat, or intimidation. In the case before us, the prosecution has established beyond reasonable doubt that the accused-appellant had carnal knowledge of AAA, a demented person, through force, threat or intimidation. AAA was psychiatrically evaluated as an adult woman with the mental age of a 7 to 8-year old child and that she gave birth to a child despite her mental inability to give her consent to a sexual relationship. These facts support the allegation of sexual abuse. AAA also identified without uncertainty the accused-appellant as her attacker and related distinctly that he forcibly laid her down, held her at knifepoint, and sexually abused her. She testified on direct examination as follows: PROS. TADEO: xxx Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: xxx xxx

Do you know the accused in this case? Yes sir. What is his name? Marlon Abella. Is he in court, please identify him? Yes sir. Please point to him. (Witness pointed to the accused Marlon Abella) Since when have you known Marlon? Since he was a child. Why do you know him? He is my neighbor. Do you have any relationship with Marlon? None sir. How about with the family of Marlon, if you know, by consanguinity? None sir. In the information, it appears that you are the offended party, why are you accusing Marlon for rape? He raped me. Do you remember when was that? No sir.

Q: A: xxx Q: A: Q: house? A: Q: A: Q: A: Q: A: Q: A:

What time was that? 1:00 oclock in the afternoon. xxx xxx

A: Q: A: COURT: Q: A: Q: A:

He also undressed me. How about you, what did you do? I did not shout.

Where were you raped? In our house. Do you mean to say that the accused in this case entered your Yes sir. After he entered your house, what happened next? He raped me. When you said he raped you, how did he start molesting you? He pulled down my shorts. What hands did he use in pulling down your shorts? One hand. What hand, his right or left? Left hand.

Why? I was afraid. Why were you afraid? He had a sharp weapon.

PROS. TADEO: Q: A: Q: A: What kind of sharp weapon was that? A knife. Where did you see that knife, in what part of his body? On his waist.

Q: While he was about to molest you, did he remove that knife from his waist? A: Yes sir. Q: A: Q: A: Q: A: xxx COURT: Where did he place it? He was holding it. What did he do with it? He told me that if I tell the matter he will kill me. Did he tell you those words? Yes sir. xxx xxx

Q: While his left hand was pulling down your short pants, what was his right hand doing? A: He covered my mouth. Q: A: Q: A: Q: A: After your short pants was pulled down, what happened next? He laid on top of me. What happened next? Do you have panty at that time? Yes sir. What happened to your panty? He pulled down my panty.

Q: You said a while ago that he placed himself on top of you, what happened next? A: He laid on top of me. Q: A: Q; A: Q: down? A: Q: A: Q: A: Q: body? A: COURT: Q: A: Where was his shorts? He removed his shorts. Why, what was your position? I was lying down. When you lied down, was it on your own volition? No sir. Who asked you to lie down or did the accused forced you to lie He forced me to lie down. How? He grabbed me by my shoulder. After you were forced to lie down, what did the accused do next? He inserted his organ. Before he inserted his organ, was he wearing something on his Only a T-shirt, without pants.

Q: What do you mean when you said he did something to you? Did he insert his penis to your vagina? A: Yes sir. Q: A: xxx Q: A: Q: A: What did you do when he inserted his penis to your vagina? None because I was afraid. xxx xxx

What did you feel when he inserted his organ to your vagina? Painful. Did you not like it? I did not.

We find no real conflict in the testimony of AAA as to the identity of her assailant. A close scrutiny of the testimony of AAA that a certain Mang Ben raped her shows her evident confusion to the suggestive questions and insinuations of the defense counsel and to the hypothetical questions of the trial court, thus: ATTY. MANLAGNIT: Q: When you first know Marlon you said he was still a child at that time, you have of age, am I correct? A: Yes sir. Q: You said you know Marlon because he lives nearby or he is one of your neighbors, is that correct? A: Yes sir.

PROS. TADEO: xxx Q: xxx xxx

While removing his shorts, what did you do?

Q: house?

And as a matter of fact, there are other neighbors staying near your

A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: xxx COURT: Q: A: Q: truth? A: Q: A: Q: A:

Yes sir. How many neighbors aside from Marlon? Many. Would you say 10? More than. 12? Yes sir. You also know your neighbors? Yes sir. Could you name a few for us? Mang Ben. Who else? Julia. Who else? My sister. And your sister has already a husband? Yes sir. And your sister and her husband are living near your house? Yes sir. xxx xxx

A:

Yes sir.

Q: Aside from Mang Ben, will you tell the court if the penis of Mang Ben was inserted into your vagina? A: Yes sir. Q: How many times did that happen to you that the penis of Mang Ben was inserted into your vagina? A: Only one. Q: Which came first, when Mang Ben raped you or when Marlon raped you? A: Marlon. Q: Do you know of any person who raped you other than Mang Ben and Marlon? A: None. AAAs puzzling answers are understandable considering her undisputed low mental ability to comprehend the true import of the questions. Nonetheless, on further clarificatory questions of the trial court, AAA rectified her answers and testified consistently that she was raped by the accused-appellant, and not by a certain Mang Ben, thus: COURT: xxx Q: A: xxx xxx

Do you know the government prosecutor? Yes sir.

Do you know to distinguish truth from lies? I am not telling a lie. You are not telling a lie because what you are telling us is the Yes sir.

Q: Suppose your mother tells you that you were raped by the government prosecutor, will you tell that to the court? A: No sir. Q: Supposed you were told by your parents that you were not raped by Marlon, will you testify before this court that you were raped by Marlon? A: I will not obey. xxx xxx xxx

Therefore, you can tell the court and distinguish truth from a lie? Yes sir. And you know what is good from what is bad? Yes sir.

Q: On direct examination you said it was only the accused who raped you. However, during the clarificatory question by the court you also said that you were also raped by Mang Ben. Tell the court, which is now correct, was it only Marlon who raped you or it was also Mang Ben who raped you? A: Only Marlon. Q: When you said only Marlon, are you telling the court that Mang Ben did not rape you? A: He did not. Q: A: Are you very sure of your answer? Yes, it was Marlon.

Q: You testified on cross that you obeyed what your parents told you that you were reminded that you were raped by Marlon, is that right? A: Yes sir. Q: A: Q: A: Was that reminder made to you by your parents correct or wrong? Correct. Why do you say that the reminder by your parents was correct? Because they told me.

Q: Supposed your parents told that it was Mang Ben who raped you, will you obey your parents? A: Yes sir. Q: So you will testify before this court that Mang Ben raped you because that was what your parents told you? A: Yes sir. Q: A: Q: A: Q: Did Mang Ben actually rape you? Yes sir. How many times did Mang Ben rape you? Only one. Did you not tell that to your parents that Mang Ben raped you?

Q: Did you not testify on clarificatory question from the court that you were also raped by Mang Ben? A: No, only Marlon. Q: So your answer which you gave to the court a while ago when you were asked whether you were also raped by Mang Ben was not true? A: It is not true. Q: Let us assume that your parents tell you that Mang Ben raped you, will you testify that in court? xxx A: xxx No sir. xxx

Q: So if your parents will tell you something which is not true, will you tell the court that you will not obey your parents?

A:

I will not obey them.

prosecution will rise or fall on the basis of the victims testimony, which the court will consider with utmost caution. In the instant case, victim AAA was a mental retardate, which the court finds, not only on the basis of the expert testimony of Dr. Escuadra but also on the basis of its observations. It noted that even if the victim had a mental age of a 7 to 8 year-old child, yet, she was candid, sincere, straightforward and simple in her testimony in court despite the grueling cross-examination conducted by Atty. Manlangit. The aforesaid demeanor of the complainant only showed that she was telling the truth. Complainant never wavered in her testimony, that it was Marlon who raped her, the circumstances or details under which she was raped; and in positively identifying Marlon in court. The court likewise noted the limited mental ability and poor aptitude of the complainant when she was extensively grilled and cross-examined, and even upon clarificatory questions from the court, thus giving the impression to the court that she was just being obedient and was coached by her parents in filing this instant case against Marlon. She likewise admitted that a certain Mang Ben also raped her, but, later corrected herself. Such was understandable. Even Atty. Manlangit noted that the victim was already tired and exhausted while testifying in court. (TSN, p. 43, Sept. 24, 2002) Besides, there was no testimony from the complainant that she was merely instructed by her parents to file the rape case against Marlon even if the same were not true. The court considered the inconsistencies in complainants testimony as minor inconsistencies which even strengthen her testimony. Xxx xxx xxx The Court notes that the appellate courts own evaluation of the evidence concurred with the findings and conclusions of the trial court as follows: We likewise find no merit in the insinuations made by the [accused]-appellant that the instant complaint was motivated by the malevolent design of the complainants family to put him down or the greedy scheme of the latter to extort money from his family. At best, these insinuations, trivial and inane, are merely conclusory and unfounded. It cannot tarnish AAAs account of how the [accused]-appellant had sexually assaulted her. As aptly observed by the court a quo, it is hard to fathom that a parent would use her children as engines of malice, especially if the same would subject them to humiliation, nay stigma. No mother would expose her child to possible public ridicule if the only motive is to get back at the [accused]appellant. Said the trial court: Marlon and his father, Danilo, attributed ill-will, personal animosities and bad blood between their family and that of the complainant as the reasons behind why a fabricated case was filed against Marlon. It is incomprehensible to the mind of the court that because at one time or another Marlon chased complainants father with a hoe, or the complainants brothers unlawfully entered the premises of the accused, or that they peeped or pried upon Marlons privacy, causing the latter to chase them with a bolo as the reasons why, out of revenge, a rape case was concocted and filed against him. Such are flimsy excuses, which do not deserve belief from any reasonable being. This Court could not, in the exercise of sound judgment, accept the flimsy reasons advanced by the accused that the victim, a mental retardate, was only coached by her parents in implicating the accused as the person responsible for the crime. A mother will never compromise the reputation of her daughter in order to implicate a person with a crime he did not commit. Besides, it was quite absurd and illogical that families in feud would make their mental retardate a tool to give a scripted and concocted testimony in court that she was raped just to send her familys enemy to jail. It is unnatural for a parent to use his offspring as an engine of malice especially if it will subject a daughter to embarrassment and even stigma. No parent in their right mind would possibly stoop so low as to subject their daughter to the hardship and shame concomitant to a rape just to assuage their own hurt feelings. [Citations omitted] The criminal information failed to allege the qualifying circumstance that the accused-appellant knew of the mental disability of the private offended party, thus, his conviction of statutory or simple rape committed with the use of a deadly weapon, instead of qualified rape, is in order.

Moreover, we accord great weight and respect to the conclusion of the trial court that AAA is candid, sincere, straightforward and simple in her testimony as well as to the ruling of the appellate court that the alleged flaws in her statements do not affect her credibility and veracity of her testimony that the accused-appellant raped her, and that the defenses of denial and alibi of the accused-appellant cannot prevail over the positive testimony of AAA. By well-entrenched jurisprudence, the issue of credibility of witnesses is a question best addressed to the province of the trial court because of its unique position of having observed that elusive and incommunicable evidence of the witnesses' deportment on the stand while testifying which opportunity is denied to the appellate courts and [a]bsent any substantial reason which would justify the reversal of the trial court's assessments and conclusions, the reviewing court is generally bound by the former's findings, particularly when no significant facts and circumstances are shown to have been overlooked or disregarded which when considered would have affected the outcome of the case. [26] In People v. Santos, [27] this policy has been emphasized as follows: We stress the well-settled doctrine that the lower court's assessment of the credibility of a witness is accorded great respect owing to its direct opportunity to observe the latter's demeanor during trial. In People v. Ayuda, we held: It is doctrinally settled that the factual findings of the trial court, especially on the credibility of the rape victim, are accorded great weight and respect and will not be disturbed on appeal. This is so because the trial court has the advantage of observing the victim through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a discovered lie, the tremulous mutter of a reluctant answer, the forthright tone of a ready reply, the furtive glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, or the carriage and mien. ... [Emphasis ours] The foregoing doctrine is more stringently applied if the trial court is sustained by the appellate court. It has been stressed, moreover, that the bare denials and uncorroborated alibis of an accused cannot overcome the positive identification of the accused and straightforward recounting of the accuseds commission of a crime. In People v. Nieto, [28] this Court held: It is an established jurisprudential rule that a mere denial, without any strong evidence to support it, can scarcely overcome the positive declaration by the victim of the identity and involvement of appellant in the crimes attributed to him. The defense of alibi is likewise unavailing. Firstly, alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. Unless substantiated by clear and convincing proof, such defense is negative, selfserving, and undeserving of any weight in law. Secondly, alibi is unacceptable when there is a positive identification of the accused by a credible witness. Lastly, in order that alibi might prosper, it is not enough to prove that the accused has been somewhere else during the commission of the crime; it must also be shown that it would have been impossible for him to be anywhere within the vicinity of the crime scene. In the present case, we do not perceive any cogent reason to justify the reversal of the trial and appellate courts high regard of the truthfulness of AAAs testimony and we find the bare denials and uncorroborated alibis of the accused-appellant devoid of any evidentiary value. We quote with approval the pertinent disquisitions of the trial court on the testimonies of the witnesses as follows: By the very nature of the crime of rape, the same precludes any eyewitness to the incident, except the victim and the perpetrator. Hence, to prove the same will depend largely from the testimony of the victim, and the acquittal of the accused will not lie on the strength of his defense. Thus, the case for the

We also accord high respect to the ruling of the trial court, as well as to the appellate courts deference thereto, that the accused-appellant was the biological father of the two-year old daughter of AAA as a result of the rape incident and in view of their striking facial similarities and features. The order to acknowledge and support accused-appellants offspring is in accordance with Article 345 of the Revised Penal Code. This Court, however, modifies the award of civil indemnity and damages in favor of AAA. In line with recent case laws, the compensation to be awarded in favor of the private offended party in cases of statutory rape or simple rape committed with the use of a deadly weapon should be in the amounts of P75,000.00 as civil indemnity and another P75,000.00 as moral damages. [29] Exemplary or corrective damages are imposed by way of example or correction for the public good and when the crime was committed with one or more aggravating circumstances. [30] According to current jurisprudence, exemplary damages should be awarded in favor of the private offended party in the amount of P30,000.00 in statutory or simple rape cases. [31] In the present case, the award of P75,000.00 as civil indemnity and another P75,000.00 as moral damages in favor of AAA is appropriate. The award of P30,000.00 as exemplary damages should also be imposed as a public example in order to protect hapless individuals from [sexual] molestation [32] and because of the presence of the aggravating circumstance of the commission of the crime in the dwelling [33] of AAA. WHEREFORE, in view of the foregoing, the Decision dated September 21, 2006 of the CA in CA-G.R. CR-HC No. 02085, which affirmed with modification the Judgment promulgated on June 3, 2003 by Branch 25 of the RTC of Naga City, is hereby AFFIRMED with the MODIFICATION that accused-appellant is hereby ordered to pay the private offended party civil indemnity in the amount of Seventy-Five Thousand Pesos (P75,000.00), moral damages also in the amount of Seventy-Five Thousand Pesos (P75,000.00), and exemplary damages in the amount of Thirty Thousand Pesos (P30,000.00), plus interest on all damages awarded at the legal rate of 6% from this date until fully paid. No costs. -MA. BLYTH B. ABADILLA, vs. JUDGE JOSE C. TABILIRAN, JR., Presiding Judge, 8th MCTC, Manukan and Jose Dalman, 9th Judicial Region, Manukan, Zamboanga del Norte We have a list of these crooked judges whose actuations have been found to be patently wrong and indefensible. There ought to be no objection or compunction in weeding them out from the service. If they are not booted out now, it will take from here to eternity to clean this Augean stable. 1 Indeed, our judicial structure is supposed to be manned by magistrates chosen for their probity, integrity, impartiality, dedication and learning. And so, any judge wanting in any of these qualities should be broomed off and out of the bench in order to improve the judicial landscape. Screening off the misfits, considering the great number of judges and justices in the country at present, is the arduous and Herculean task of this Court. The effort if dramatized with rectitude and sincerity should bring about the strengthening of the people's abiding faith in democracy and the integrity of our courts of justice. The herein administrative case arose from a complaint, dated September 8, 1992, filed by Ma. Blyth B. Abadilla, a Clerk of Court assigned at the sala of respondent, Judge Jose C. Tabiliran, Jr., of the 8th Municipal Circuit Trial Court, Manukan, Zamboanga del Norte. Respondent stands charged with "gross immorality, deceitful conduct, and corruption unbecoming of a judge." In her verified complaint, complainant Abadilla, in respect to the charge of gross immorality on the part of the respondent, contends that respondent had scandalously and publicly cohabited with a certain Priscilla Q. Baybayan during the existence of his legitimate marriage with Teresita Banzuela. Adding ignominy to an ignominious situation, respondent allegedly shamefacedly contracted marriage with the said Priscilla Baybayan on May 23, 1986. Complainant claims that this was a bigamous union because of the fact that the respondent was then still very much married to Teresita Banzuela.

Furthermore, respondent falsely represented himself as "single" in the marriage contract (Exh. "A") and dispensed with the requirements of a marriage contract by invoking cohabitation with Baybayan for five years. Of persuasive effect on the charge of immorality is the fact that, earlier, respondent's wife filed a complaint in the case entitled, Teresita B. Tabiliran vs. Atty. Jose C. Tabiliran, Jr., 115 SCRA 451. Respondent stood charged therein for abandoning the family home and living with a certain Leonora Pillarion with whom he had a son. In respect of the charge of deceitful conduct, complainant claims that respondent caused to be registered as "legitimate", his three illegitimate children with Priscilla Baybayan, namely: Buenasol B. Tabiliran born on July 14, 1970 Venus B. Tabiliran born on Sept. 7, 1971 Saturn B. Tabiliran born on Sept. 20, 1975 by falsely executing separate affidavits stating that the delayed registration was due to inadvertence, excusable negligence or oversight, when in truth and in fact, respondent knew that these children cannot be legally registered as legitimate. The following acts are alleged to have constituted the charge of corruption: (1) Utilizing his office time, while being a judge, in the private practice of law by the preparation and notarization of documents, out of which he charged fees beyond the authorized rates allowed as Ex-Officio Notary Public. These acts which, according to the charge, amount to the private practice of law, prejudice public interest. Complainant submitted the following documents in support of these allegations: a) Affidavit of Ponciana Geromo (Annex "B"), attesting to the fact that respondent Judge Tabiliran prepared a Simultaneous Deed of Sale, (Annex "C", Doc. No. 901, Page No. 77, Book No. V, Series of 1991 of Ex-Officio Notary Public Jose C. Tabiliran, Jr.) and collect P600.00 from the vendees (par. 10(a) a-1 Complaint, p. 9 records); b) Receipt prepared under instruction of the respondent showing that he received P250.00 thru MCTC Aide Ely O. Inot for preparation and notarization of Joint Affidavit declaring the correct ages of Carlo Manzano, Lodmila Cinco, Kadapi Amad, Jul Samud and Amman Eddai dated November 12, 1991, when the legal fees therefor should have been P10.00 only (Annex "D") (par. 10(a) a2 Complaint, p. 9 records); c) Another receipt (Annex "E") prepared thru the direction of the respondent dated November 12, 1991, showing that said respondent received from Reynaldo Subebe the sum of P150.00 for preparation and notarization by him of a Joint Affidavit declaring the correct age of Agata Luna, Rosie Miranda and Jose Juneser Adrias (par. 10(a) a-c Complaint, p. 9 records); d) Still another receipt (Annex "F") dated November 12, 1991, signed by the respondent himself showing that he received from Nelly Baradas the sum of P50.00 for preparation and notarization of Joint Affidavit attesting to

the correct age of one Luzviminda Jacoba (par. 10(a) a-d Complaint, p. 9 records); e) Another receipt (Annex "G") dated November 12, 1991, issued by the respondent, showing that he received from Torres P. Modai the sum of P50.00, thru the same Ely O. Inot, MCTC Aide, for preparation of Joint Affidavit attesting to the correct age of Flores Jalampangan (par. 10 (a) a-e Complaint, pp. 9 & 10 records). (2) Accepting bribes from parties-litigants in his Court as supported by an affidavit (Annex "M") executed by a certain Calixto Calunod, a court aide, stating that he saw Edna Siton, complainant in a criminal case tried by respondent, hand over to the latter a bag of fish and squid which respondent Judge received. (3) Preparing an Affidavit of Desistance in a case filed with his sala out of which he collected the amount of P500.00 from the accused Antonio Oriola, as supported by the affidavits of Arcelita Salvador, the complainant therein, and Benito Sagario, one of the persons present when the accused perpetrated the acts aforesaid. (Submitted as Annexes "I" and "J", respectively.) Complainant manifests that the commission by the respondent of the foregoing acts renders him unfit to occupy the exalted position of a dispenser of justice. By the example shown by the respondent, the public had allegedly lost confidence in the administration of justice, perceiving as is evident to see that the person occupying the position of a judge lacks the morality and probity required of one occupying such a high office. Respondent, in his comment, dated December 25, 1992, declared that his cohabitation with Priscilla Baybayan is not and was neither bigamous nor immoral because he started living with Priscilla Baybayan only after his first wife had already left and abandoned the family home in 1966 and, since then, and until the present her whereabouts is not known and respondent has had no news of her being alive. He further avers that 25 years had already elapsed since the disappearance of his first wife when he married Priscilla Baybayan in 1986. Respondent cited Sec. 3(w), Rule 131 of the Rules of Court and Art. 390 of the Civil Code in order to show the legality of his acts: After the absence of seven years, it being unknown whether or not the absentee still lives, he is considered dead for all purposes except for those of succession. (Rule 131, Sec. 3(w), Rules of Court.) After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. (Art. 390, Civil Code.) The case of Jones vs. Hortiguela, 64 Phil. 179, where this Court held that for the purpose of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee is to respondent's mind, a case in point. He admits that he indicated in his marriage contract that he was then "single", but he denied the charge that he acted with deceit or false misrepresentation, claiming that, since there were only three words to choose from, namely: Single, Widow or Divorced, he preferred to choose the word "single", it being the most appropriate. Besides, both he and Priscilla executed a joint affidavit wherein his former marriage to Banzuela was honestly divulged. On the charge of corruption, respondent submitted certifications (Annexes "4" & "5") from the Mayor of Manukan, Zamboanga del Norte, attesting to the fact that there was no Notary Public in Manukan and, as such, respondent may be allowed to notarize documents. He denied having charged exorbitant fees. He claims that all the amounts received by him were used to subsidize office expenses, since the funds he had been receiving from the municipal government were not enough to cover expenses in maintaining his office. Respondent submitted a certification (Annex "6") from the Accounting Department of the Municipal Government of Manukan to the effect that his yearly expenditures were more than the yearly appropriations.

Respondent finds support in Canon 4, Rule 4.01 of the Code of Judicial Conduct which states: A Judge may, with due regard to official duties, engage in activities to improve . . . the administration of justice. Respondent vehemently denies the charge of bribery claiming that it was inconceivable for him to receive a bag full of fish and squid since his residence was 42 kilometers from Jose Dalman where his courtroom or office was located. It takes one an hour and a half by bus to reach Katipunan and so, by the time he reaches his house, the fish and the squid should have become rotten. In support of his denials, respondent submitted as Annex "8", an affidavit of Ely D. Inot, their court Interpreter who declared: xxx xxx xxx 3. That last June 6, 1991, I was with the Municipal Judge, Jose C. Tabiliran, Jr., from the morning until we went home in the afternoon and we in fact dined together in the local Carenderia of Jose Dalman as it is the usual ways of the Judge to eat lunch together with the court personnel; 4. That when we went home in the afternoon of that day we were also together riding in a bus, the Lillian Express and until I drop in Roxas and he proceeded to Katipunan where his residence is; 5. That all the time during that day I did not noticed him bringing anything except his "Hand Bag" which he used to carry in going to the office; (Annex "8", Affidavit of Ely O. Inot, December 17, 1992.) xxx xxx xxx Finally, respondent tags as a fabricated lie the charge that he prepared an Affidavit of Desistance in a case pending in his sala and thereafter charged the accused, Antonio Oriola, the sum of P500.00 for legal services. The complainant, he said, was the one who induced Arcelita Salvador (the complainant in the rape case) to execute an affidavit (Annex "I") in support of the charge of corruption against respondent. Complainant's filing of the present case was motivated by revenge and resentment because, earlier, respondent filed an administrative case (A.M. No. P-91-597) against her for "Insubordination and Serious Misconduct". The Supreme Court decided to reprimand her with a warning that a repetition of her acts will be severely dealt with. Respondent claims that the complainant had nevertheless repeatedly continued to do acts of insubordination in the following manner: 1) She continues to keep court records and has kept refusing to hand them over to respondent inspite of verbal and written orders; 2) She refused to receive a memorandum from the ViceMayor requiring the Clerk of Court to submit an Annual report; 3) She refused to prepare the said annual report required of her as Clerk of Court; 4) She continue to refuse to obey just and lawful orders of the Court. On April 12, 1993, by resolution of this Court En Banc, the herein administrative case was referred to Executive Judge Jesus O. Angeles of the Regional Trial Court, Dipolog City, for investigation, report and recommendation. Judge Angeles found respondent guilty only on two (2) counts of corruption: (1) for acting as notary public and collecting fees for his services; and (2) for preparing an affidavit of desistance in a case pending in his Court and receiving payment for it. In his report and recommendation dated August 3, 1993, Executive Judge Angeles found that:

ON GROSS IMMORALITY: In contracting marriage with Priscilla Q. Baybayan on May 23, 1986, (p. 13 of the records), respondent did not hide the fact that he was married to Teresita T. Banzuela, having disclosed it in his affidavit jointly executed with Priscilla Q. Baybayan on May 23, 1986 (p. 115 of the records), particularly paragraph 4 thereof which reads: 4. That affiant Jose C. Tabiliran, Jr., was formerly married to Teresita T. Banzuela but who left and abandoned their family home sometime in 1965 in Katipunan, Zamboanga del Norte, and until now at present her whereabouts is not known. It was therefore a marriage contracted under Article 83 (2) of the Civil Code which, although bigamous, remains valid until automatically terminated by the recording of the affidavit of reappearance of the absent spouse (Art. 42, Family Code). Respondent's assertion that since 1965 to the present, his first wife Teresita T. Banzuela had left their conjugal dwelling and did not return, her whereabouts being unknown, was not controverted. Living as husband and wife pursuant to an authorized bigamous marriage, respondent cannot be said to be acting in an immoral and scandalous manner, and the immoral stigma of extra-marital union since 1969 duly declared in their aforesaid joint affidavit, may be considered cleansed by their marriage in 1986, if Art. 1395 of the Civil Code on ratification on contracts in general is allowed to be applied, it being ratification of marital cohabitation. Article 76 of Civil Code, now Art. 34 of the Family Colde was intended to facilitate and encourage the marriage of persons who have been living in a state of concubinage for more than five years (Tolentino, Civil Code, Book I, 1974 Ed., p. 245, cited in Ernesto L. Pineda, Family Code, 1992 Ed., p. 38). Indicating his civil status in the marriage contract as "single" is hardly considered a misrepresentation of fact, specially to the solemnizing officer, Municipal Mayor Jacinto C. Ruedas, Jr. to whom the aforesaid joint affidavit was submitted. ON DECEITFUL CONDUCT: Respondent's children begotten with Priscilla Q. Baybayan, namely: Buenasol B. Tabiliran, Venus B. Tabiliran and Saturn B. Tabiliran, all of whom were born before their marriage, were disclosed and made known to the solemnizing officer and the latter himself, in his affidavit dated May 23, 1986 (p. 116 of the records) which supports the marriage contract of respondent with Priscilla Q. Baybayan, having shown such fact. Exhibit P which purports to be an affidavit of Lydia T. Zanoria dated May 27, 1993, consisting of three pages, was submitted by the complainant for the purpose of proving her charge that the respondent falsely executed his three separate affidavits, namely: Exhibit K dated May 24, 1983 regarding the late registration of birth of his daughter Buenasol B. Tabiliran; Exhibit M dated May 28, 1988 regarding the late registration of birth of his third child Saturn B. Tabiliran; and his affidavit dated May 27, 1988, Exhibit O, in reference to the late registration of birth of his second child Venus B. Tabiliran, stating inadvertence, excusable negligence or oversight as the reasons for the delayed registration of their births, without however presenting said affiant Mrs. Zanoria, consequently denying respondent the opportunity to cross examine her. Her affidavit is not among those brought out in the pre-hearing conference, and was not discussed during the hearing itself, submitting it only after the investigation proper was terminated. The supposed affiant claimed she was the government midwife who attended to the births of respondent's three children, denying, as the affidavit shows, negligence, inadvertence or oversight on her part to register their birth on time. Not having been presented for respondent

to confront her, or an opportunity to do so, Exhibit P cannot be considered evidence of the charge. An affidavit is hearsay unless the affiant is presented (People vs. Villeza, 127 SCRA 349), or admitted by the party against whom it is presented. ON CORRUPTION: 1. Acting as Notary Public during office hours, and collecting fees: Respondent has admitted having prepared the documents and collected fees, in the instances specified in par. 10 of the complaint, namely: (1) affidavit of Ponciana Geromo; (2) Joint Affidavit of Carlo Manzano, Lodmila Cinco, Kadapi Amad, Jul Samud and Amman Eddai; (3) Joint Affidavit of Agata Luna, Rosie Miranda and Jose Juneser Adrias; (4) Joint Affidavit on the correct age of Luzviminda Jacoba; and (5) Joint Affidavit on the correct age of Flores Jalampangan, but not necessarily on the accuracy of the amounts therein stated as having been collected by him from them (please see Pre-Hearing Order of May 20, 1993 of the Investigating Judge). Seeking justification of his acts, respondent submitted Annexes 4 & 5 of his comments (pp. 118 and 119, records) which are certifications of Manukan Mayor Eugene U. Caballero attesting that in the absence of a Notary Public in Manukan town, respondent who is a Judge thereat was allowed "to prepare and ligalize (sic) documents". He declared "the fees derived from the preparation and notarization of documents were mostly used by respondent to buy supplies and materials of his Office", explaining that his office needs cannot be sustained by the appropriations of the local government which are inadequate. On page 120 of the records, his Annex 6 shows a shortage in his appropriations for supplies. And supplies from the Supreme Court can only be obtained if secured personally but has to assume the expenses for transportation, freight and handling. Respondent Judge maintains that the Code of Judicial conduct does not prohibit him from acting as Notary Public, and the fees he has received were much lower than the rates prescribed by the Integrated Bar of the Philippines, Zamboanga del Norte Chapter, submitting Annex 3, p. 117 of the records, to prove it. Further justifying his act under Canon 4, Rule 4.01 of the Code of Judicial Conduct which provides that a judge may, with due regard to official duties, engaged in activities to improve the administration of justice, respondent claims that due to his efforts, he was able to secure an extension room of his office covering a floor area of 24 square meters, from the Sangguniang Pampook of Region IX based in Zamboanga City, costing P19,000.00 per certification shown in his Annex 7 (page 121 of the records). In the light of 1989 Code of Judicial Conduct vis-a-vis the power of Municipal Trial Court Judges and Municipal Circuit Trial Court Judges to act in the capacity of Notary Public Ex-Officio, the Honorable Supreme Court in A.M. No. 89-11-1303, MTC, Dec. 19, 1989, has ruled: MTC and MCTC Judges assigned to municipalities or circuits with no lawyers or notaries public may, in their capacity as notary public ex-officio perform any act within the competency of a regular Notary Public, provided that: (1) all notarial fees charged be for the account of the Government and turned-over to the municipal treasurer (Lapea, Jr. vs. Marcos, Adm. Matter No. 1969-MJ, June 29, 1982, 114 SCRA 572); and (2) certification be made in the notarized documents attesting to the lack of any lawyer or notary public in such municipality or circuit.

Although absence of a notary public commissioned for, and residing in Manukan town, even in Jose Dalman which is within his circuit is confirmed, respondent Judge while he may be justified in so acting as notary public, did not, however, comply with requirement No. 1 which obliged him to charge for the account of the Government and turn-over to the municipal treasurer all notarial fees. And there is no way of determining the truth of his assertion that the notarial fees he collected were "mostly used" to buy supplies and materials for his office, absent any accounting. 2. Accepting Bribe from Parties-litigants: Admitting the existence of Annex H found on page 21 in the records, respondent, however, denied the imputation therein contained by affiant Calixto Calunod that he received a sando bag full of fish and squid from a certain Edna Siton who had a case with respondent's court as complainant in a certain criminal case. Instead of calling the affiant himself, complainant presented the Court Interpreter Ely O. Inot, who "confirmed that there was squid and fish contained in a plastic bag which was left in Aseniero Carenderia by a person unknown to her and some members of the Court staff. When informed by the carenderia owner that the stuff was intended for Judge Tabiliran, the latter told them to cook it, and they afterwards partook of it without the Judge who already boarded the passenger bus". (Record of Proceedings, p. 1, par. No. 1, dated June 11, 1993). Being her witness, complainant is bound by her testimony. This particular charge is, therefore, not proved. 3. Preparing Affidavit of Desistance and Collecting Fee for his Services: Under this count, two affidavits both sworn before 2nd Asst. Provincial Fiscal Valeriano B. Lagula were submitted: one by Arcelita Salvador, complainant in an attempted rape case who was categorical in her declaration that respondent Judge asked and received from Pitoy Oriola, brother of accused Antonio Oriola the amount of P500.00 after the Judge prepared the affidavit of desistance and motion to dismiss which he made her sign (Annex I, p. 40 records). Benito Sagario who was present executed another separate affidavit, Annex J found on page 41 in the records, confirming it. In admitting the affidavit, respondent, however, denied the imputation, asserting that it is false, but without confronting them or presenting witnesses to dispute their accusation. He could have demanded that the affiants, including the persons they mentioned were present in the transaction, namely: accused Antonio Oriola, his brother Pitoy Oriola, Ignacio Salvador, and INC Minister Antonio Calua be required to appear for his confrontation, but respondent chose not, contented himself only with the explanation that it was just the handiwork of complainant Abadilla and her husband, a major in the military who is an active member of the Iglesia Ni Cristo of which affiant Arcelita Salvador also belonged, which is bare and unsubstantiated. No other conclusion can be drawn other than holding, as the Investigating Judge does, that this particular charge is true. Evidently, Judge Tabiliran wants to avoid meeting them by way of confrontation. If he is innocent, and is certain the charge is fabricated, he will surely raise hell to insist that he confronts them face to face. Clearly, his deportment betrays his insistence of innocence. On Respondent's Counterclaim: It was not proven. On the contrary, the controverting evidence shows that the records of Criminal Case No. 2279 referred to in his Annex 9, p. 123 of the records, were not in the possession of complainant. Quite obviously, Ely O. Inot, respondent's Court Interpreter tried to cover up the fact that the same were already being kept by Judge Tabiliran before he issued the memorandum, Annex 9. Complainant, who is

respondent's Clerk of Court was not, therefore, in a position to comply with his Order. Also, Mrs. Abadilla's failure to prepare the annual report of the Court in 1992 as called for in Annexes 10 and 10A was, contrary to respondent's claim, not by reason of her obstinate refusal to obey her superior but, by sheer impossibility to comply, considering that monthly reports upon which the annual report shall be based, were not prepared by her, not because of her refusal to do so which is among those included in her job description, but because the Judge himself took the work from her for no other reason than to establish the false impression that the complainant is disobedient to the Judge, and does not attend to her duties. By and large, there is no harmony in their office. Complainant and respondent are not in talking terms. They are hostile to each other. Respondent's complaint that Mrs. Abadilla spat saliva in front of him whenever they meet each other; destroying the Court dry seal by throwing it at him one time she was mad; showing face; and sticking out her tongue to him, are all puerile acts which the undersigned cannot conclude as sufficiently established even with the testimony of Mrs. Ely O. Inot which is far from being definite and categorical, whose actuation is understandable because Judge Tabiliran, being her superior, has moral ascendancy over her (Record of Proceedings, June 11, 1993). The undersigned believes that the problem is on Judge Tabiliran, and not on Mrs. Abadilla, who has been in the service as Clerk of Court under a previous Judge of the same Court for quite long without any complaint having been filed. The evidence disputing his counterclaim tends to show that respondent tried to build up a situation of undesirability against his Clerk of Court whom he wanted pulled out from her position in his Court. Other Matters Not Covered By The Complaint And Comments: The authority to investigate being confined only to matters alleged in the complaint on the basis of which respondent filed his comments, other matters not therein covered which complainant brought out by way of presenting documentary exhibits, (from Exhibit AAA to HHH), are not subject of this report and recommendation. RECOMMENDATION: The charge of GROSS IMMORALITY and DECEITFUL CONDUCT have not been proven, but the undersigned believes evidence is sufficient to sustain pronouncement of guilt on two counts of CORRUPTION, namely: acting as notary public and collecting fees for his services in preparing affidavit of desistance of a case in his Court. Likewise, acts of oppression, deceit and false imputation against his Clerk of Court are found duly established. WHEREFORE, suspension of the respondent Judge from the service for a period of three months is recommended. THE FOREGOING CONSIDERED, We hold the respondent culpable for gross immorality, he having scandalously and openly cohabited with the said Priscilla Baybayan during the existence of his marriage with Teresita B. Tabiliran. Contrary to his protestations that he started to cohabit with Priscilla Baybayan only after his first wife, Teresita Tabiliran, had long abandoned him and the conjugal home in 1966, it appears from the record that he had been scandalously and openly living with said Priscilla Baybayan as early as 1970 as shown by the fact that he begot three children by her, namely Buenasol,

Venus and Saturn, all surnamed Tabiliran. Buenasol was born on July 14, 1970; Venus was born on September 7, 1971; while Saturn was born on September 20, 1975. Evidently, therefore, respondent and Priscilla Baybayan had openly lived together even while respondent's marriage to his first wife was still valid and subsisting. The provisions of Sec. 3(w) of the Rules of Court and Art. 390 of the Civil Code which provide that, after an absence of seven years, it being unknown whether or not the absentee still lives, the absent spouse shall be considered dead for all purposes, except for those of succession, cannot be invoked by respondent. By respondent's own allegation, Teresita B. Tabiliran left the conjugal home in 1966. From that time on up to the time that respondent started to cohabit with Priscilla Baybayan in 1970, only four years had elapsed. Respondent had no right to presume therefore that Teresita B. Tabiliran was already dead for all purposes. Thus, respondent's actuation of cohabiting with Priscilla Baybayan in 1970 when his marriage to Teresita B. Tabiliran was still valid and subsisting constitutes gross immoral conduct. It makes mockery of the inviolability and sanctity of marriage as a basic social institution. According to Justice Malcolm: "The basis of human society throughout the civilized world is that of marriage. It is not only a civil contract, but is a new relation, an institution on the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony." (Civil Code 1993 Ed., Volume 1, p. 122, Ramon C. Aquino). By committing the immorality in question, respondent violated the trust reposed on his high office and utterly failed to live up to the noble ideals and strict standards of morality required of the law profession. (Imbing v. Tiongson, 229 SCRA 690). As to respondent's act of eventually marrying Priscilla Baybayan in 1986, We are not in a position to determine the legality thereof, absent all the facts for a proper determination. Sufficient for Our consideration is the finding of the Investigating Judge, that the said marriage is authorized under Art. 83 (2) of the Civil Code. With respect to the charge of deceitful conduct, We hold that the charge has likewise been duly established. An examination of the birth certificates (Exhs. "J", "L", & "M") of respondent's three illegitimate children with Priscilla Baybayan clearly indicate that these children are his legitimate issues. It was respondent who caused the entry therein. It is important to note that these children, namely, Buenasol, Venus and Saturn, all surnamed Tabiliran, were born in the year 1970, 1971, and 1975, respectively, and prior to the marriage of respondent to Priscilla, which was in 1986. As a lawyer and a judge, respondent ought to know that, despite his subsequent marriage to Priscilla, these three children cannot be legitimated nor in any way be considered legitimate since at the time they were born, there was an existing valid marriage between respondent and his first wife, Teresita B. Tabiliran. The applicable legal provision in the case at bar is Article 269 of the Civil Code of the Philippines (R.A. 386 as amended) which provides: Art. 269. Only natural children can be legitimated. Children born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other, are natural. Legitimation is limited to natural children and cannot include those born of adulterous relations (Ramirez vs. Gmur, 42 Phil. 855). The Family Code: (Executive Order, No. 209), which took effect on August 3, 1988, reiterated the above-mentioned provision thus: Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated. The reasons for this limitation are given as follows: 1) The rationale of legitimation would be destroyed; 2) It would be unfair to the legitimate children in terms of successional rights; 3) There will be the problem of public scandal, unless social mores change;

4) It is too violent to grant the privilege of legitimation to adulterous children as it will destroy the sanctity of marriage; 5) It will be very scandalous, especially if the parents marry many years after the birth of the child. (The Family Code, p. 252, Alicia v. Sempio Diy). It is clear, therefore, that no legal provision, whether old or new, can give refuge to the deceitful actuations of the respondent. It is also erroneous for respondent to state that his first wife Teresita disappeared in 1966 and has not been heard from since then. It appears that on December 8, 1969, Teresita filed a complaint against respondent entitled, Tabiliran vs. Tabiliran (G.R. No. 1155451) which was decided by this Court in 1982. In the said case, respondent was sued for abandonment of his family home and for living with another woman with whom he allegedly begot a child. Respondent was, however, exonerated because of the failure of his wife to substantiate the charges. However, respondent was reprimanded for having executed a "Deed of Settlement of Spouses To Live Separately from Bed", with a stipulation that they allow each of the other spouse to live with another man or woman as the case may be, without the objection and intervention of the other. It was also in the same case where respondent declared that he has only two children, namely, Reynald Antonio and Jose III, both surnamed Tabiliran, who are his legitimate issues. Thus, his statements in his affidavits marked as Exhs. "M-4" and "O-4" that Saturn and Venus are his third and second children respectively, are erroneous, deceitful, misleading and detrimental to his legitimate children. With respect to the charge of corruption, We agree with the findings of the Investigating Judge that respondent should be found culpable for two counts of corruption: (1) acting as Notary Public; and (2) collecting legal fees in preparing an Affidavit of Desistance of a case in his court. Respondent himself admitted that he prepared and notarized the documents (Annexes "C", "D", "E", "F" and "G") wherein he charged notarial fees. Though he was legally allowed to notarize documents and charge fees therefor due to the fact that there has been no Notary Public in the town of Manukan, this defense is not sufficient to justify his otherwise corrupt and illegal acts. Section 252 of the Notarial Law expressly provides thus: Sec. 252. Compensation of Notaries Public No fee, compensation, or reward of any sort, except such as is expressly prescribed and allowed by law, shall be collected or received for any service rendered by a notary public. Such money collected by notaries public proper shall belong to them personally. Officers acting as notaries public ex-officio shall charge for their services the fees prescribed by law and account therefor as for Government funds. (Notarial Law, Revised Administrative Code of the Philippines, p. 202.) Respondent's failure to properly account and turn over the fees collected by him as Ex-Officio notary to the municipal government as required by law raises the presumption that he had put such fund to his personal use. With respect to the charge that respondent prepared an Affidavit of Desistance in a rape case filed before his sala for which he collected the amount of P500.00 from the complainant therein, respondent merely denied the said imputation but failed to offer any evidence to support such denial. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters (People v. Amaguin, 229 SCRA 166). It is unfortunate that respondent had failed to adhere to, and let this remind him once again of Canon 2 of the Code of Judicial Conduct, to wit: Canon 2 A judge should avoid impropriety and the appearance of impropriety in all activities.

WHEREFORE, the Court finds respondent Judge Jose C. Tabiliran, Jr. guilty of gross immorality, deceitful conduct and corruption and, consequently, orders his dismissal from the service. Such dismissal shall carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and disqualification from re-employment in the government-service, all without prejudice to criminal or civil liability. -RENATO LAZATIN alias RENATO STA. CLARA vs. HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON and IRMA L. VELOSO The Court dismisses the petition which seeks to overrule respondent judge's orders declaring that petitioner has failed to establish by competent evidence his alleged status as an adopted child of the deceased Lazatin spouses and prays for judgment of this Court "declaring as established the fact of (his) adoption as a son of the deceased spouses entitling him to succeed in their estates as such." Respondent judge correctly ruled that he could not allow petitioner (who had filed a motion to intervene in the proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to settle her estate as her adopted son, after having earlier filed a motion to intervene in the intestate proceedings of her pre-deceased husband as his admitted illegitimate [not natural] son), over the opposition of private respondents, to introduce evidence that he had "enjoyed ... the status of an adopted child of the without his first producing competent and documentary that there had been judicial proceedings for his by the said spouses which resulted in the final judgment of a competent court decreeing his adoption. On January 13, 1974, Dr. Mariano M. Lazatin diamond intestate in Pasay City, survived by his wife, Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon, married to respondent Bernardo de Leon, and respondent Irma Lazatin, married to Francisco Veloso. One month after Mariano's death, his widow, Margarita de Asis, commenced an intestate proceeding before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P. Mariano, Oscar, Virgilio and Yvonne, claiming to be admitted illegitimate (not natural) children of Dr. Lazatin with one Helen Munoz, intervened. Subsequently, one Lily Lazatin also intervened, claiming to be another admitted illegitimate (not natural) child. Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a & holographic will executed on May 29, 1970, providing, among others, for a legacy of cash, jewelry, and stocks to respondent Arlene de Leon, a granddaughter; a legacy of support to Rodolfo Gallardo, a son of her late sister; and a legacy of education to Ramon Sta. Clara, son of petitioner Renato Lazatin alias Renato Sta. Clara. During her lifetime, Margarita de Asis kept a safety deposit box at the People's Bank and Trust Company, Roxas Boulevard branch, which either she or respondent Nora L. de Leon could open. Five days after Margarita's death, respondent Nora L. de Leon, accompanied by her husband, respondent Bernardo de Leon, opened the safety deposit box and removed its contents: (a) shares of stock; (b) her adoption papers and those of her sister, respondent Irma L. Veloso; and (c) jewelry belonging to her and to her mother. Respondent Nora L. de Leon claims that she opened the safety deposit box in good faith, believing that it was held jointly by her and her deceased mother. Her sole reason for opening the box was to get her stock certificates and other small items deposited therein. When she was to close the deposit box, the bank personnel informed her that she needed an authority from the court to do so, in view of her mother's death and so, she removed everything from the box. On June 3, 1974, private respondents filed a petition to probate the will of the late Margarita de Asis, before docketed as Sp. Proc. No. 2341-P of respondent Court, Days after having learned that respondent Nora L. de Leon had opened this safety deposit box, petitioner's son, Ramon Sta. Clara, filed a motion in the probate court, claiming that the deceased had executed a will subsequent to that submitted for probate and demanding its production. He likewise prayed for the opening of the safety deposit box. Respondent Nora L. de Leon admitted that she opened the box but there was no will or any document resembling a will therein. Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the safety deposit box was opened on November 6, 1974, at which time it was found to be empty, because prior thereto respondent Nora L. de Leon had already removed its contents.

On November 22, 1974, or seven months after, the death of Margarita de Asis, petitioner intervened for the first time in the proceedings to settle the estate of the late Dr. Mariano M. Lazatin (Sp. Proc. No. 2326- P), as an admitted illegitimate (not natural) child. Under the same date of November 22, 1974, petitioner's son, Ramon, filed a petition in the estate proceedings of Margarita de Asis to examine private respondents on the contents of the safety deposit box, Whereupon, on January 31, 1975, the probate court ordered respondent Nora L. de Leon to deliver the properties taken from the safety deposit box to the Clerk of Court. Subsequently, however, the two cases (Sp. Proc. No. 2326-P, Mariano Lazatin, and 2341-P, Margarita de Asis) were transferred to the sala of respondent Judge Jose C. Campos, Jr. On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora L. de Leon and Bernardo de Leon to produce all those papers and items removed from the safety deposit box and to deliver the same to the custody of the court within one week. Within the period ordered, respondent Nora L. de Leon deposited with the Clerk of Court, not the items themselves, but two keys to a new safety deposit box which could only be opened upon order of the court. On August 20, 1975, petitioner Renato to Lazatin alias Renato Sta. Clara filed a motion to intervene in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on the basis of an affidavit executed by Benjamin Lazatin, brother of the deceased Dr. Mariano M. Lazatin, the petitioner was an "illegitimate son" of Dr. Lazatin and was later adopted by him. This affidavit was later modified on August 19, 1975 to state that petitioner was adopted by both Mariano M. Lazatin and his wife Margarita de Asis. On September 29, 1975, Judge Campos found respondent' Nora L. de Leon guilty of contempt of court for not complying with the orders of January 31, 1975 and May 29, 1975, requiring her to produce and deliver to the court an the papers and items removed from the safety deposit box. Her former counsel was also found guilty of contempt, sentenced to pay a fine of P00.00 and suspended from appearing in the two cases (Sp. Proc. No. 2326-P, Mariano M. Lazatin, and Sp. Proc. No. 2341-P, Margarita de Asis), on her testimony that she, Nora L. de Leon, acted upon his advice. Respondent court heard petitioner's motion to intervene as an adopted son in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, at which hearings petitioner presented no decree of adoption in his, favor. Instead, petitioner attempted to prove, over private respondents' objections, that he had recognized the deceased spouses as his parents; he had been supported by them until their death; formerly he was known as "Renato Lazatin" but was compelled to change his surname to "Sta. Clara" when the deceased spouses refused to give consent to his marriage to his present wife; that at first, he and his wife stayed at the residence of Engracio de Asis, father of Margarita, but a few months later, they transferred to the Mercy Hospital at Taft Avenue, Manila, owned by the deceased spouses, where they continuously resided up to the present. Photographs were also intended to be presented by petitioner, e.g., photograph of Irma Veloso where she addressed herself as sister of petitioner; photograph of deceased Margarita de Asis and petitioner when he was a boy; document showing that petitioners real name is "Renato Lazatin." 1 Respondent court first reserved its ruling on private respondents' objections to the admission of petitioner's evidence, but on November 14, 1975, when petitioner could not present evidence on the issue of his alleged legal adoption, respondent court discontinued the hearing and gave the parties time to file memoranda on the question of the admissibility of the evidence sought to be introduced by petitioner. On March 4, 1976, respondent court barred the introduction of petitioner's evidence because: t.hqw All the evidence submitted by Renato and Ramon Sta. Clara through their counsel do not prove or have no tendency to prove the existence of any judicial proceeding where the adoption of the parties above named were taken up by any court. Neither do the evidence tend to establish the presence of any record of a proceeding in court where the adoption of the above named persons was held. The evidence, however, tends to prove a status of a recognized natural child which, however, is not the legal basis for which Renato and Ramon seek to intervene in this proceedings. In view

thereof, and taking into consideration the evidence heretofore presented by the petitioners, any further introduction of similar evidence, documentary or oral, would not prove or tend to prove the fact of their adoption but rather of a recognized natural child. Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established the fact of adoption in view of respondent Nora L. de Leon's refusal to comply with the orders of respondent court to deposit the items she had removed from the safety deposit box of Margarita de Asis. As authority therefor, petitioner invokes the sanction of Rule 29, Section 3 of the Rules of Court, since according to him, the order of the court for the production of the items in the safety deposit box can be considered as an order for production and inspection of documents under Rule 27. Private respondents opposed the motion, and on March 26, 1976, respondent court denied petitioner's motion. On April 26, 1976, respondent Nora L. de Leon deposited with respondent court the items she had removed from the safety deposit box. An inventory was conducted by respondent court, with notice to the parties, and the items surrendered consisted only of pieces of jewelry and stock certificates. On June 3,1976, respondent court, ruling on petitioners motion for definite resolution on his previous n declare as established the fact of adoption, issued the f order: t.hqw As far as the case of Renato Sta. Clara is his Petition to establish his status as an adopted child, The Court has ruled that he has failed to establish such status. The any motion for reconsideration unless based on some documentary proof. Hence, the petition at bar. We find the ruling of the respondent court to be in conformity with law and jurisprudence. 1. Adoption is a juridical act, a proceeding in rem 2 which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. 3 Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. 4 It is not of natural law at all, but is wholly and entirely artificial. 5 To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. 6 The fact of adoption is never presumed, but must be affirmatively proved by the person claiming its existence. The destruction by fire of a public building in which the adoption papers would have been filed if existent does not give rise to a presumption of adoption nor is the destruction of the records of an adoption proceeding to be presumed. On the contrary, the absence of a record of adoption has been said to evolve a presumption of its nonexistence. 7 Where, under the provisions of the statute, an adoption is effected by a court order, the records of such court constitute the evidence by which such adoption may be established. 8 2. Petitioner's flow of evidence in the case below does not lead us to any proof of judicial adoption. We can not pluck from his chain of evidence any link to the real existence of a court decree of adoption in his favor. Petitioner's proofs do not show or tend to show that at one time or another a specific court of competent jurisdiction rendered in an adoption proceeding initiated by the late spouses an order approving his adoption as a child of the latter. No judicial records of such adoption or copies thereof are presented or attempted to be presented. Petitioner merely proceeds from a nebulous assumption that he was judicially adopted between the years 1928 and 1932. By what particular court was the adoption decreed or by whom was the petition heard, petitioner does not even manifest, much less show. There are no witnesses cited to that adoption proceeding or to the adoption decree. Apparently on the assumption that the adoption was commenced in Manila, petitioner's counsel secured a certification from the Court of first Instance of Manila which, however, negatively reported "(T)hat among the salvaged records now available in this Office, there has not been found, after a diligent search, any record regarding the adoption of Mr. Renato Lazatin alias Renato Sta. Clara allegedly filed sometime in the years 1928 to 1931 by the spouses Dr. Mariano M. Lazatin and Margarita de Asis Lazatin." The certification of the Local Civil Registrar of Manila "(T)hat our pre-war records relative to decisions of the Court of First Instance were either destroyed or burned during the Liberation of the City of Manila," does not furnish any legal basis for a presumption of adoption in favor of petitioner. This is because there was no proof that petitioner was really adopted in Manila or that an adoption

petition was filed in the Court of first Instance of Manila by the deceased spouses, where, after hearing, a judgment of approval was rendered by said court. Moreover, if there was really such adoption, petitioner could have conveniently secured a copy of the newpaper publication of the adoption as required under Section 4, Rule 99 of the Rules of Court (formerly Section 4, Rule 100) or a certification of the publishing house to that effect. Petitioner's failure on this point is anotherer strong indication of the non-existence of the one who gave the written consent of the non-existence of the adoption paper. We also observed to the adoption (Section 3, Rule 99, Rules of Court), whether the parents or orphanage, does not appear on this point is not so difficult and such proof must be presented if only to prove the real existence of the adoption. And of course, if the war, the clear right and duty of petitioner was to duly reconstitute the records as provided by law. 3. The absence of proof of such order of adoption by the court, as provided by the statute, cannot be substituted by parol evidence that a child has lived with a person, not his parent, and has been treated as a child to establish such adoption. 9 Even evidence of declaration of the deceased, made in his lifetime, that he intended to adopt a child as his heir, and that he had adopted him, and of the fact that the child resided with the deceased, as a member of his family, from infancy until he attained his majority, is not sufficient to establish the fact of adoption. 10 Nor does the fact that the deceased spouses fed, clothed, educated, recognized and referred to one like petitioner as an adopted child, recognized and referred to one like petitioner as an adopted child, necessarily establish adoption of the child. 11 Withal, the attempts of petitioner to prove his adoption by acts and declarations of the deceased do not discharge the mandatory presentation of the judicial decree of adoption. The thrust of petitioner's evidence is rather to establish his status as an admitted illegitimate child, not an adopted child which status of an admitted illegitimate child was the very basis of his petitioner for intervention in the estate proceedings of the late Dr. Lazatin, as above stated. (Supra, at page 3 hereof) We do not discount though that declarations in regard to pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth. 12 Pedigree testimony is admitted because it is the best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission. 13 But, in proving an adoption, there is a better proof available and it should be produced. The whereabouts of the child's family and circulation of the jurisdiction in which they resided and investigation in those courts where adoption are usually granted would surely produce an adoption order, if indeed there was an order. 14 Besides, since the point in favor of receiving hearsay evidence upon matters of family history or pedigree is its reliability, it has been set forth as a condition upon which such evidence is received that it emanate from a source within the family. Pursuant to this view, before a declaration of a deceased person can be admitted to prove pedigree, or ancestry, the relationship of the declarant, by either of blood or affinity to the family in question, or a branch thereof, must ordinarily be established by competent evidence. 15 Section 33 of Rule 130 states: "The act or declaration of a person deceased, or outside of the Philippines, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such actor declaration ..." 4. Secondary evidence is nonetheless admissible where the records of adoption proceedings were actually lost or destroyed. But, prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents; although this order may be changed if necessary in the discretion of the court. 16 The sufficiency of the proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. 17 As earlier pointed out, petitioner failed to establish the former existence of the adoption paper and its subsequent loss or destruction. Secondary proof may only be introduced if it has first beer. established that such adoption paper really existed and was lost. This is indispensable. 18 Petitioner's supposed adoption was only testified to by him and is allegedly to be testified to a brother of the deceased Mariano M. Lazatin or others who have witnessed that the deceased spouses treated petitioner as their child. If adoption was really made, the records thereof should have existed and the same presented at the hearing or subsequent thereto or a reasonable explanation of loss or destruction thereof, if that be the case, adduced. 19 Assuming the mere fact that the deceased spouses treated petitioner as their child does not justify the conclusion that petitioner had been in fact judicially adopted by the spouses nor does it constitute admissible proof of adoption.

We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied to consider as established the fact of his adoption due to the refusal of respondent Nora L. de Leon to produce the document of adoption, because first, the fact or real existence of petitioner's adoption had not been established; second, there is no proof that such document of adoption is in the possession of respondent Nora L. de Leon; third, the motu proprio order of the court for Nora de Leon to produce the items retrieved from the safety deposit box cannot be treated as a mode of discovery of production and inspection of documents under Rule 27; and fourth, the items deposited in the safety deposit box have already been surrendered by respondent Nora L. de Leon on April 26; 1976 and no document of adoption in favor of petitioner was listed as found in the safety deposit box. 5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot properly intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No. 2341-P as an adopted child because of lack of proof thereof. For one to intervene in an estate proceeding, it is a requisite that he has an interest in the estate, either as one who would be benefited as an heir or one who has a claim against the estate like a creditor. 20 A child by adoption cannot inherit from the parent creditor. by adoption unless the act of adoption has been done in strict accord with the statue. Until this is done, no rights are acquired by the child and neither the supposed adopting parent or adopted child could be bound thereby. 21 The burden of proof in establishing adoption is upon the person claiming such relationship. He must prove compliance with the statutes relating to adoption in the jurisdiction where the adoption occurred. 22 A fortiori if no hereditary interest in the estate can be gained by a claimant who failed to submit proof thereof, whether the will is probated or not, intervention should be denied as it would merely result in unnecessary complication. 23 To succeed, a child must be ligitimate, legitimated, adopted, acknowledged illegitimate natural child or natural child by legal fiction or recognized spurious child. 24 In the face of the verified pleadings of record (constituting judicial admissions) which show that petitioner sought to intervene on November 22, 1974 in the estate proceedings of his alleged adoptive father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P) as an admitted illegitimate (not natural) child, 25 while his intervention on August 20, 1975 in the estate of Margarita de Asis, widow of the deceased Dr. Lazatin (Sp. Proc. No. 2341-P) was as her adopted child on the basis of the affidavit of a brother of the deceased Dr. Lazatin, Benjamin Lazatin, executed August 19, 1975 (which affidavit modified a first affidavit executed on May 31, 1975, which failed to estate by "oversight" petitioner, but stated that affiant knew petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him) as a son before the Court of First Instance of Manila sometime between the years 1928 and 1921") and prescinding from the question of whether a natural or spurious child may be legally adopted by the putative father, we hold that no grave abuse of discretion nor error of law as committed by respondent judge in issuing the questioned orders of March 4, 1976, March 26, 1976 and June 3, 1976 denying petitioner's petition "to declare as established in this proceeding the fact of adoption" and denying "any motion for reconsideration unless based on some documentary proof." The Court finds no basis to grant the affirmative relief sought in this proceeding by petitioner for a rendition of judgment "declaring as established the fact of your petitioner's adoption as a son of the deceased spouses entitling him to succeed in their estates as such in accordance with the applicable law on succession as to his inheritance." Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining order; which as amended on July 21, 1976, restrained respondent judge "from proceeding with the hearing scheduled on June 17, 1976 at 8:30 a.m., requiring the submission of evidence to establish heirship in Special Proceedings No. 2326-P entitled 'Intestate Estate of the Late Mariano M. Lazatin' and Special Proceedings No. 2341-P, entitled 'Testate Estate of the late Margarita de Asis Vda. de Lazatin,' and from proceeding with the probate of the alleged holographic will of the deceased Do;a Margarita de Asis Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976 and on any other dates." With the Court's determination of the issues as herein set forth, there is no longer any need for restraining the proceedings below and the said restraining order shall be immediately lifted. On January 24, 1977, the Court upon petitioner's motion resolved to conditionally allow respondent judge "to take the deposition of petitioner's witnesses to perpetuate their testimonies pursuant to Rule 134, Section 7 of the Rules of Court, subject to the Court's ruling in due course on the admissibility of such testimonies." The Court thereby permitted in effect the advance testimonies of petitioner's witnesses, principally among them Rafael Lazatin and Esteban L. Lazatin, both brothers of the deceased Dr. Mariano L. Lazatin and as stated in petitioner's motion of January 11, 1977: t.hqw

Substantially, the testimony of the above-named witnesses will be on the fact that they had been informed by the deceased spouses, Mariano and Margarita Lazatin that your petitioner was their [Mariano's and Margarita's] judicially adopted son and to elicit further from them the fact that your petitioner enjoys the reputation of being their judicially adopted son in the Lazatin family. The Court's resolution allowing the advance testimonies of petitioner's witnesses was but in application of the Court's long standing admonition to trial courts is reaffirmed in Lamagan vs. De la Cruz, 26, "to be liberal in accepting proferred evidence since even if they were to refuse to accept the evidence, the affected party will nevertheless be allowed to spread the excluded evidence on the record, for review on appeal." The Court therein once again stressed the established rule that "it is beyond question that rulings of the trial court on procedural questions and on admissibility of evidence during the course of the trial are interlocutory in nature and may not be the subject of separate appeal or review on certiorari, but are to be assigned as errors and reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case," 27 and that a party's recourse when proferred evidence is rejected by the trial court is to make a offer stating on the record what a party or witness would have testified to were his testimony not excluded, as well as to attach to the record any rejected exhibits. At the continuation of the proceedings below for declaration of heirship and for probate of the alleged holographic the deceased Margarita de Asis Vda. de Lazatin, pet who has failed to establish his status as an alleged ;m child of Margarita de Asis (unless, as reserved to him by the court below, he can show some documentary proof),and whose intervention in the estate of the deceased Dr. Mariano Lazatin is as an admitted illegitimate child, win have to decide whether he will pursue his first theory of having the of such admitted illegitimate child of said deceased. Whatever be his theory and his course of action and whether or not he may be duly snowed to intervene in the proceedings below as such alleged admitted illegitimate child, his recourse in the event of an adverse ruling against him is to make a formal offer of proof and of his excluded evidence, oral and documentary, and seek a reversal on an appeal in due course. ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioner's petition below "to declare as established in this proceeding the fact of [his] adoption" are hereby affirmed. The temporary restraining order issued on June 16, 1976 and amended on July 21, 1976 is ordered lifted, effective immediately. Without costs. -IN THE MATTER OF THE PETITION FOR A WRIT OF HABEAS CORPUS OF MINOR ANGELIE ANNE C. CERVANTES, NELSON L. CERVANTES and ZENAIDA CARREON CERVANTES, vs. GINA CARREON FAJARDO and CONRADO FAJARDO This is a petition for a writ of Habeas Corpus filed with this Court over the person of the minor Angelie Anne Cervantes. In a resolution, dated 5 October 1987, the Court resolved to issue the writ returnable to the Executive Judge, Regional Trial Court of Pasig at the hearing of 12 October 1987 at 8:30 a.m. Said Judge was directed to hear the case and submit his report and recommendation to the Court. On 3 December 1987, said Executive Judge, Regional Trial Court of Pasig submitted to the Court his report and recommendation, also dated 3 December 1987. It appears that the minor was born on 14 February 1987 to respondents Conrado Fajardo and Gina Carreon, who are common-law husband and wife. Respondents offered the child for adoption to Gina Carreon's sister and brother-in-law, the herein petitioners Zenaida Carreon-Cervantes and Nelson Cervantes, spouses, who took care and custody of the child when she was barely two (2) weeks old. An Affidavit of Consent to the adoption of the child by herein petitioners, was also executed by respondent Gina Carreon on 29 April 1987. 1 The appropriate petition for adoption (Sp. Proc. No. 057-B) was filed by herein petitioners over the child before the Regional Trial Court of Rizal, Fourth Judicial District, Branch 67 which, on 20 August 1987, rendered a decision 2 granting the petition. The child was then known as Angelie Anne

Fajardo. The court ordered that the child be "freed from parental authority of her natural parents as well as from legal obligation and maintenance to them and that from now on shall be, for all legal intents and purposes, known as Angelie Anne Cervantes, a child of herein petitioners and capable of inheriting their estate ." 3 Sometime in March or April 1987, the adoptive parents, herein petitioners Nelson and Zenaida Cervantes, received a letter from the respondents demanding to be paid the amount of P150,000.00, otherwise, they would get back their child. Petitioners refused to accede to the demand. As a result, on 11 September 1987, while petitioners were out at work, the respondent Gina Carreon took the child from her "yaya" at the petitioners' residence in Angono, Rizal, on the pretext that she was instructed to do so by her mother. Respondent Gina Carreon brought the child to her house in Paraaque. Petitioners thereupon demanded the return of the child, but Gina Carreon refused, saying that she had no desire to give up her child for adoption and that the affidavit of consent to the adoption she had executed was not fully explained to her. She sent word to the petitioners that she will, however, return the child to the petitioners if she were paid the amount of P150,000.00. Felisa Tansingco, the social worker who had conducted the case study on the adoption and submitted a report thereon to the Regional Trial Court of Rizal in the adoption case, testified on 27 October 1987 before the Executive Judge, Regional Trial Court of Pasig in connection with the present petition. She declared that she had interviewed respondent Gina Carreon on 24 June 1987 in connection with the contemplated adoption of the child. During the interview, said respondent manifested to the social worker her desire to have the child adopted by the petitioners. 4 In all cases involving the custody, care, education and property of children, the latter's welfare is paramount. The provision that no mother shall be separated from a child under five (5) years of age, will not apply where the Court finds compelling reasons to rule otherwise. 5 In all controversies regarding the custody of minors, the foremost consideration is the moral, physical and social welfare of the child concerned, taking into account the resources and moral as well as social standing of the contending parents. Never has this Court deviated from this criterion. 6 It is undisputed that respondent Conrado Fajardo is legally married to a woman other than respondent Gina Carreon, and his relationship with the latter is a common-law husband and wife relationship. His open cohabitation with co-respondent Gina Carreon will not accord the minor that desirable atmosphere where she can grow and develop into an upright and moralminded person. Besides, respondent Gina Carreon had previously given birth to another child by another married man with whom she lived for almost three (3) years but who eventually left her and vanished. For a minor (like Angelie Anne C. Cervantes) to grow up with a sister whose "father" is not her true father, could also affect the moral outlook and values of said minor. Upon the other hand, petitioners who are legally married appear to be morally, physically, financially, and socially capable of supporting the minor and giving her a future better than what the natural mother (herein respondent Gina Carreon), who is not only jobless but also maintains an illicit relation with a married man, can most likely give her. Besides, the minor has been legally adopted by petitioners with the full knowledge and consent of respondents. A decree of adoption has the effect, among others, of dissolving the authority vested in natural parents over the adopted child, except where the adopting parent is the spouse of the natural parent of the adopted, in which case, parental authority over the adopted shall be exercised jointly by both spouses. 7 The adopting parents have the right to the care and custody of the adopted child 8 and exercise parental authority and responsibility over him. 9 ACCORDINGLY, and as recommended by the Executive Judge, Regional Trial Court of Pasig, Hon. Eutropio Migrino, the Petition is GRANTED. The custody and care of the minor Angelie Anne Cervantes are hereby granted to petitioners to whom they properly belong, and respondents are ordered (if they still have not) to deliver said minor to the petitioners immediately upon notice hereof This resolution is immediately executory. -ADOPTION OF MICHELLE LIM

The Case This is a petition for review on certiorari filed by Monina P. Lim (petitioner) seeking to set aside the Decision [1] dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258 and 1259, which dismissed without prejudice the consolidated petitions for adoption of Michelle P. Lim and Michael Jude P. Lim.

The Facts The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager to have a child of their own, petitioner and Lim registered the children to make it appear that they were the childrens parents. The children [2] were named Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the clinic of petitioner. She was born on 15 March 1977. [3] Michael was 11 days old when Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983. [4] The spouses reared and cared for the children as if they were their own. They sent the children to exclusive schools. They used the surname Lim in all their school records and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000, petitioner married Angel Olario (Olario), an American citizen. Thereafter, petitioner decided to adopt the children by availing of the amnesty [5] given under Republic Act No. 8552 [6] (RA 8552) to those individuals who simulated the birth of a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old and already married, while Michael was 18 years and seven months old. Michelle and her husband gave their consent to the adoption as evidenced by their Affidavits of Consent. [7] Michael also gave his consent to his adoption as shown in his Affidavit of Consent. [8] Petitioners husband Olario likewise executed an Affidavit of Consent [9] for the adoption of Michelle and Michael. In the Certification issued by the Department of Social Welfare and Development (DSWD), Michelle was considered as an abandoned child and the whereabouts of her natural parents were unknown. [10] The DSWD issued a similar Certification for Michael. [11]

The Ruling of the Trial Court On 15 September 2004, the trial court rendered judgment dismissing the petitions. The trial court ruled that since petitioner had remarried, petitioner should have filed the petition jointly with her new husband. The trial court ruled that joint adoption by the husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185 of the Family Code. Petitioner filed a Motion for Reconsideration of the decision but the motion was denied in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners argument that mere consent of her husband would suffice was untenable because, under the law, there are additional requirements, such as residency and certification of his qualification, which the husband, who was not even made a party in this case, must comply. As to the argument that the adoptees are already emancipated and joint adoption is merely for the joint exercise of parental authority, the trial court ruled that joint adoption is not only for the purpose of exercising parental authority because an emancipated child acquires certain rights from his parents and assumes certain obligations and responsibilities. Hence, the present petition. Issue Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner, who has remarried, can singly adopt.

legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses. [12] The Courts Ruling Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of the court and the State to protect the paramount interest and welfare of the child to be adopted. Petitioner argues that the legal maxim dura lex sed lex is not applicable to adoption cases. She argues that joint parental authority is not necessary in this case since, at the time the petitions were filed, Michelle was 25 years old and already married, while Michael was already 18 years of age. Parental authority is not anymore necessary since they have been emancipated having attained the age of majority. We deny the petition. Joint Adoption by Husband and Wife It is undisputed that, at the time the petitions for adoption were filed, petitioner had already remarried. She filed the petitions by herself, without being joined by her husband Olario. We have no other recourse but to affirm the trial courts decision denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552 reads: SEC. 7. Who May Adopt. - The following may adopt: (a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptees parent; (b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows the adoptee to enter his/her country as his/her adopted son/daughter: Provided, further, That the requirements on residency and certification of the aliens qualification to adopt in his/her country may be waived for the following: (i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity; or (ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or (iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino spouses; or (c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial accountabilities. Husband and wife shall jointly adopt, except in the following cases: (i) if one spouse seeks to adopt the legitimate son/daughter of the other; or (ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, however, That the other spouse has signified his/her consent thereto; or (iii) if the spouses are legally separated from each other. In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental authority shall be exercised by the spouses. (Emphasis supplied) The use of the word shall in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by petitioner herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground. Neither does petitioner fall under any of the three exceptions enumerated in Section 7. First, the children to be adopted are not the legitimate children of petitioner or of her husband Olario. Second, the children are not the illegitimate children of petitioner. And third, petitioner and Olario are not legally separated from each other. The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent does not suffice. There are certain requirements that Olario must comply being an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as: (1) he must prove that his country has diplomatic relations with the Republic of the Philippines; (2) he must have been living in the Philippines for at least three continuous years prior to the filing of the application for adoption; (3) he must maintain such residency until the adoption decree is entered; (4) he has legal capacity to adopt in his own country; and (5) the adoptee is allowed to enter the adopters country as the latters adopted child. None of these qualifications were shown and proved during the trial. These requirements on residency and certification of the aliens qualification to adopt cannot likewise be waived pursuant to Section 7. The children or adoptees are not relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario. Neither are the adoptees the legitimate children of petitioner.

Effects of Adoption Petitioner contends that joint parental authority is not anymore necessary since the children have been emancipated having reached the age of majority. This is untenable. Parental authority includes caring for and rearing the children for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being. [13] The father and the mother shall jointly exercise parental authority over the persons of their common children. [14] Even the remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. [15] It is true that when the child reaches the age of emancipation that is, when he attains the age of majority or 18 years of age [16] emancipation terminates parental authority over the person and property of the child, who shall then be qualified and responsible for all acts of civil life. [17] However, parental authority is merely just one of the effects of legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus: ARTICLE V EFFECTS OF ADOPTION SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse of the adopter, all legal ties between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s). SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family. SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern. Adoption has, thus, the following effects: (1) sever all legal ties between the biological parent(s) and the adoptee, except when the biological parent is the spouse of the adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and adoptee reciprocal rights and obligations arising from the relationship of parent and child, including but not limited to: (i) the right of the adopter to choose the name the child is to be

known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of each other. [18] Therefore, even if emancipation terminates parental authority, the adoptee is still considered a legitimate child of the adopter with all the rights [19] of a legitimate child such as: (1) to bear the surname of the father and the mother; (2) to receive support from their parents; and (3) to be entitled to the legitime and other successional rights. Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the benefits to which biological parents are entitled [20] such as support [21] and successional rights. [22] We are mindful of the fact that adoption statutes, being humane and salutary, hold the interests and welfare of the child to be of paramount consideration. They are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family, as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law. [23] But, as we have ruled in Republic v. Vergara: [24] We are not unmindful of the main purpose of adoption statutes, which is the promotion of the welfare of the children. Accordingly, the law should be construed liberally, in a manner that will sustain rather than defeat said purpose. The law must also be applied with compassion, understanding and less severity in view of the fact that it is intended to provide homes, love, care and education for less fortunate children. Regrettably, the Court is not in a position to affirm the trial courts decision favoring adoption in the case at bar, for the law is clear and it cannot be modified without violating the proscription against judicial legislation. Until such time however, that the law on the matter is amended, we cannot sustain the respondent-spouses petition for adoption. (Emphasis supplied)

of general circulation in the province of Zambales and City of Olongapo for three (3) consecutive weeks. The principal evidence disclose that private respondent Alvin A. Clouse is a natural born citizen of the United States of America. He married Evelyn, a Filipino on June 4, 1981 at Olongapo City. On August 19, 1988, Evelyn became a naturalized citizen of the United States of America in Guam. They are physically, mentally, morally, and financially capable of adopting Solomon, a twelve (12) year old minor. Since 1981 to 1984, then from November 2, 1989 up to the present, Solomon Joseph Alcala was and has been under the care and custody of private respondents. Solomon gave his consent to the adoption. His mother, Nery Alcala, a widow, likewise consented to the adoption due to poverty and inability to support and educate her son. Mrs. Nila Corazon Pronda, the social worker assigned to conduct the Home and Child Study, favorably recommended the granting of the petition for adoption. Finding that private respondents have all the qualifications and none of the disqualifications provided by law and that the adoption will redound to the best interest and welfare of the minor, respondent judge rendered a decision on June 20, 1990, disposing as follows: WHEREFORE, the Court grants the petition for adoption filed by Spouses Alvin A. Clouse and Evelyn A. Clouse and decrees that the said minor be considered as their child by adoption. To this effect, the Court gives the minor the rights and duties as the legitimate child of the petitioners. Henceforth, he shall be known as SOLOMON ALCALA CLOUSE. The Court dissolves parental authority bestowed upon his natural parents and vests parental authority to the herein petitioners and makes him their legal heir. Pursuant to Article 36 of P.D. 603 as amended, the decree of adoption shall be effective as of the date when the petition was filed. In accordance with Article 53 of the same decree, let this decree of adoption be recorded in the corresponding government agency, particularly the Office of the Local Civil Registrar of Merida, Leyte where the minor was born. The said office of the Local Civil Registrar is hereby directed to issue an amended certificate of live birth to the minor adopted by the petitioners. Let copies of this decision be furnished (sic) the petitioners, DSWD, Zambales Branch, Office of the Solicitor General and the Office of the Local Civil Registrar of Merida, Leyte. SO ORDERED. 2

Petitioner, being married at the time the petitions for adoption were filed, should have jointly filed the petitions with her husband. We cannot make our own legislation to suit petitioner. Petitioner, in her Memorandum, insists that subsequent events would show that joint adoption could no longer be possible because Olario has filed a case for dissolution of his marriage to petitioner in the Los Angeles Superior Court. We disagree. The filing of a case for dissolution of the marriage between petitioner and Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and unless there is a judicial decree for the dissolution of the marriage between petitioner and Olario, the marriage still subsists. That being the case, joint adoption by the husband and the wife is required. We reiterate our ruling above that since, at the time the petitions for adoption were filed, petitioner was married to Olario, joint adoption is mandatory. WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258 and 1259. Costs against petitioner. -REPUBLIC OF THE PHILIPPINES vs. HONORABLE RODOLFO TOLEDANO, in his capacity as Presiding Judge of the Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales and SPOUSES ALVIN A. CLOUSE and EVELYN A. CLOUSE Before us is a petition for review on certiorari of the decision 1 of the Regional Trial Court of Iba, Zambales, Branch 69, in Special Proceeding No. RTC-140I, entitled, "In the Matter of the Adoption of the Minor named Solomon Joseph Alcala", raising a pure question of law. The sole issue for determination concerns the right of private respondents spouses Alvin A. Clouse and Evelyn A. Clouse who are aliens to adopt under Philippine Law. There is no controversy as to the facts. On February 21, 1990, in a verified petition filed before the Regional Trial Court of Iba, Zambales, private respondents spouses Clouse sought to adopt the minor, Solomon Joseph Alcala, the younger brother of private respondent Evelyn A. Clouse. In an Order issued on March 12, 1990, the petition was set for hearing on April 18, 1990. The said Order was published in a newspaper

Petitioner, through the Office of the Solicitor General appealed to us for relief, contending: THE LOWER COURT ERRED IN GRANTING THE PETITION FOR ADOPTION OF ALVIN AND EVELYN CLOUSE, BECAUSE THEY ARE NOT QUALIFIED TO ADOPT UNDER PHILIPPINE LAW. We rule for petitioner. Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as "The Family Code of the Philippines", private respondents spouses Clouse are clearly barred from adopting Solomon Joseph Alcala. Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons who are not qualified to adopt, viz.: (3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoption as may be provided by law. There can be no question that private respondent Alvin A. Clouse is not qualified to adopt Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision. In the first place, he is not a former Filipino citizen but a natural born citizen of the United States of America. In the second place, Solomon Joseph Alcala is neither his relative by consanguinity nor the legitimate child of his spouse. In the third place, when private respondents spouses Clouse jointly filed the petition to adopt Solomon Joseph Alcala on February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino citizen. She lost her Filipino citizenship when she was naturalized as a citizen of the United States in 1988. Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to paragraph 3(a) of Article 184 of E.O. 209. She was a former Filipino citizen. She sought to adopt her younger brother. Unfortunately, the petition for adoption cannot be granted in her favor alone without violating Article 185 which mandates a joint adoption by the husband and wife. It reads: Article 185. Husband and wife must jointly adopt, except in the following cases: (1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. Article 185 requires a joint adoption by the husband and wife, a condition that must be read along together with Article 184. 3 The historical evolution of this provision is clear. Presidential Decree 603 (The Child and Youth Welfare Code), provides that husband and wife "may" jointly adopt. 4 Executive Order No. 91 issued on December 17, 1986 amended said provision of P.D. 603. It demands that both husband and wife "shall" jointly adopt if one of them is an alien. 5 It was so crafted to protect Filipino children who are put up for adoption. The Family Code reiterated the rule by requiring that husband and wife "must" jointly adopt, except in the cases mentioned before. Under the said new law, joint adoption by husband and wife is mandatory. 6 This is in consonance with the concept of joint parental authority over the child, which is the ideal situation. 7 As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also insures harmony between the spouses. 8 In a distinctly similar case, we held: As amended by Executive Order 91, Presidential Decree No. 603, had thus made it mandatory for both the spouses to jointly adopt when one of them was an alien. The law was silent when both spouses were of the same nationality. The Family Code has resolved any possible uncertainty. Article 185 thereof expresses the necessity for a joint adoption by the spouses except in only two instances

(1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. It is in the foregoing cases when Article 186 of the Code, on the parental authority, can aptly find governance. Article 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, jointly parental authority shall be exercised by the spouses in accordance with this Code. 9 Article 185 is all too clear and categorical and there is no room for its interpretation. There is only room for application. 10 We are not unaware that the modern trend is to encourage adoption and every reasonable intendment should be sustained to promote that objective. 11 Adoption is geared more towards the promotion of the welfare of the child and enhancement of his opportunities for a useful and happy life. 12 It is not the bureaucratic technicalities but the interest of the child that should be the principal criterion in adoption cases. 13 Executive Order 209 likewise upholds that the interest and welfare of the child to be adopted should be the paramount consideration. These considerations notwithstanding, the records of the case do not evince any fact as would justify us in allowing the adoption of the minor, Solomon Joseph Alcala, by private respondents who are aliens. WHEREFORE, the petition is GRANTED. The decision of the lower court is REVERSED and SET ASIDE. No costs. -DIWATA RAMOS LANDINGIN vs. REPUBLIC OF THE PHILIPPINES Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the Decision1 of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision2 of the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the Petition for Adoption of the petitioner herein. The Antecedents On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition3 for the adoption of minors Elaine Dizon Ramos who was born on August 31, 1986;4 Elma Dizon Ramos, who was born on September 7, 1987; 5 and Eugene Dizon Ramos who was born on August 5, 1989. 6 The minors are the natural children of Manuel Ramos, petitioners brother, and Amelia Ramos. Landingin, as petitioner, alleged in her petition that when Manuel died on May 19, 1990,7 the children were left to their paternal grandmother, Maria Taruc Ramos; their biological mother, Amelia, went to Italy, re-married there and now has two children by her second marriage and no longer communicated with her children by Manuel Ramos nor with her in-laws from the time she left up to the institution of the adoption; the minors are being financially supported by the petitioner and her children, and relatives abroad; as Maria passed away on November 23, 2000, petitioner desires to adopt the children; the minors have given their written consent8 to the adoption; she is qualified to adopt as shown by the fact that she is a 57-year-old widow, has children of her own who are already married, gainfully employed and have their respective families; she lives alone in her own home in Guam, USA, where she acquired citizenship, and works as a restaurant server. She came back to the Philippines to spend time with the minors; her children gave their written consent9 to the adoption of the minors. Petitioners brother, Mariano Ramos, who earns substantial income, signified his willingness and commitment to support the minors while in petitioners custody.

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as follows: WHEREFORE, it is most respectfully prayed to this Honorable Court that after publication and hearing, judgment be rendered allowing the adoption of the minor children Elaine Dizon Ramos, Elma Dizon Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the minor childrens name follow the family name of petitioner. Petitioner prays for such other reliefs, just and equitable under the premises.10 On March 5, 2002, the court ordered the Department of Social Welfare and Development (DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603, as amended, and to submit a report thereon not later than April 4, 2002, the date set for the initial hearing of the petition.11 The Office of the Solicitor General (OSG) entered its appearance12 but deputized the City Prosecutor of Tarlac to appear in its behalf. 13 Since her petition was unopposed, petitioner was allowed to present her evidence ex parte.14 The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest of the adoptees, to testify on the written consent executed by her and her siblings.15 The petitioner marked in evidence the Affidavit of Consent purportedly executed by her children Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary public in Guam, USA, as proof of said consent.16 On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field Office III, Tarlac, submitted a Child Study Report, with the following recommendation: In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene all surnamed Ramos, eligible for adoption because of the following reasons: 1. Minors surviving parent, the mother has voluntarily consented to their adoption by the paternal aunt, Diwata Landingin this is in view of her inability to provide the parental care, guidance and support they need. An Affidavit of Consent was executed by the mother which is hereto attached. 2. The three minors subject for adoption have also expressed their willingness to be adopted and joins the petitioners in Guam, USA in the future. A joint Affidavit of consent is hereto attached. The minors developed close attachment to the petitioners and they regarded her as second parent. 3. The minors are present under the care of a temporary guardian who has also family to look after. As young adolescents they really need parental love, care, guidance and support to ensure their protection and well being. In view of the foregoing, it is hereby respectfully recommended that minors Elaine D. Ramos, Elma D. Ramos and Eugene D. Ramos be adopted by their maternal aunt Diwata Landingin. Trial custody is hereby further recommended to be dispensed with considering that they are close relatives and that close attachments was already developed between the petitioner and the 3 minors.17 Pagbilao narrated what transpired during her interview, as follows: The mother of minors came home together with her son John Mario, this May 2002 for 3 weeks vacation. This is to enable her appear for the personal interview concerning the adoption of her children. The plan for the adoption of minors by their paternal aunt Diwata Landingin was conceived after the death of their paternal grandmother and guardian. The paternal relatives including the petitioner who attended the wake of their mother were very much concerned about the well-being of the three minors. While preparing for their adoption, they have asked a cousin who has a family to stay with minors and act as their temporary guardian. The mother of minors was consulted about the adoption plan and after weighing the benefits of adoption to her children, she voluntarily consented.

She realized that her children need parental love, guidance and support which she could not provide as she already has a second family & residing in Italy. Knowing also that the petitioners & her children have been supporting her children up to the present and truly care for them, she believes her children will be in good hands. She also finds petitioners in a better position to provide a secured and bright future to her children.18 However, petitioner failed to present Pagbilao as witness and offer in evidence the voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present any documentary evidence to prove that Amelia assents to the adoption. On November 23, 2002, the court, finding merit in the petition for adoption, rendered a decision granting said petition. The dispositive portion reads: WHEREFORE, it is hereby ordered that henceforth, minors Elaine Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all legal obligations obedience and maintenance from their natural parents and that they be declared for all legal intents and purposes the children of Diwata Ramos Landingin. Trial custody is dispensed with considering that parentchildren relationship has long been established between the children and the adoptive parents. Let the surnames of the children be changed from "DizonRamos" to "Ramos-Landingin." Let a copy of this decision be furnished the Local Civil Registrar of Tarlac, Tarlac for him to effect the corresponding changes/amendment in the birth certificates of the above-mentioned minors. SO ORDERED.19 The OSG appealed20 the decision to the Court of Appeals on December 2, 2002. In its brief21 for the oppositor-appellant, the OSG raised the following arguments: I THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES BIOLOGICAL MOTHER. II THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS CHILDREN AS REQUIRED BY LAW. III THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION DESPITE PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION TO SUPPORT THE PROPOSED ADOPTEES. On April 29, 2004, the CA rendered a decision22 reversing the ruling of the RTC. It held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos, the childrens natural mother. Moreover, the affidavit of consent of the petitioners children could not also be admitted in evidence as the same was executed in Guam, USA and was not authenticated or acknowledged before a Philippine consular office, and although petitioner has a job, she was not stable enough to support the children. The dispositive portion of the CA decision reads: WHEREFORE, premises considered, the appealed decision dated November 25, 2002 of the Regional Trial Court, Branch 63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET ASIDE. SO ORDERED.23 Petitioner filed a Motion for Reconsideration24 on May 21, 2004, which the CA denied in its Resolution dated August 12, 2004.25 Petitioner, thus, filed the instant petition for review on certiorari26 on September 7, 2004, assigning the following errors:

1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED THE RESULT OF THE CASE. 2. THAT THE HONORABLE LOWER COURT ERRED IN CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY CAPABLE TO SUPPORT THE THREE CHILDREN.27 The issues raised by the parties in their pleadings are the following: (a) whether the petitioner is entitled to adopt the minors without the written consent of their biological mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by the petitioner-adopters children sufficiently complies with the law; and (c) whether or not petitioner is financially capable of supporting the adoptees. The Courts Ruling The petition is denied for lack of merit. It has been the policy of the Court to adhere to the liberal concept, as stated in Malkinson v. Agrava,28 that adoption statutes, being humane and salutary, hold the interest and welfare of the child to be of paramount consideration and are designed to provide homes, parental care and education for unfortunate, needy or orphaned children and give them the protection of society and family in the person of the adopter as well as to allow childless couples or persons to experience the joys of parenthood and give them legally a child in the person of the adopted for the manifestation of their natural parental instincts. Every reasonable intendment should thus be sustained to promote and fulfill these noble and compassionate objectives of the law.29 However, in Cang v. Court of Appeals,30 the Court also ruled that the liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.31 Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998, provides: Sec. 9. Whose Consent is Necessary to the Adoption. - After being properly counseled and informed of his/her right to give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required: (a) The adoptee, if ten (10) years of age or over; (b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality which has legal custody of the child; (c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any; (d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter, if living with said adopter and the latters souse, if any; (e) The spouse, if any, of the person adopting or to be adopted. The general requirement of consent and notice to the natural parents is intended to protect the natural parental relationship from unwarranted interference by interlopers, and to insure the opportunity to safeguard the best interests of the child in the manner of the proposed adoption. 32

Clearly, the written consent of the biological parents is indispensable for the validity of a decree of adoption. Indeed, the natural right of a parent to his child requires that his consent must be obtained before his parental rights and duties may be terminated and re-established in adoptive parents. In this case, petitioner failed to submit the written consent of Amelia Ramos to the adoption. We note that in her Report, Pagbilao declared that she was able to interview Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible that the latter would not require Amelia Ramos to execute a Written Consent to the adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos as witness in support of the petition. Petitioner, nonetheless, argues that the written consent of the biological mother is no longer necessary because when Amelias husband died in 1990, she left for Italy and never came back. The children were then left to the guidance and care of their paternal grandmother. It is the paternal relatives, including petitioner, who provided for the childrens financial needs. Hence, Amelia, the biological mother, had effectively abandoned the children. Petitioner further contends that it was by twist of fate that after 12 years, when the petition for adoption was pending with the RTC that Amelia and her child by her second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker, was able to meet her, and during the meeting, Amelia intimated to the social worker that she conformed to the adoption of her three children by the petitioner. Petitioners contention must be rejected. When she filed her petition with the trial court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written consent of the biological parents cannot be obtained, the written consent of the legal guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of the minors had indeed abandoned them, she should, thus have adduced the written consent of their legal guardian. Ordinarily, abandonment by a parent to justify the adoption of his child without his consent, is a conduct which evinces a settled purpose to forego all parental duties.33 The term means neglect and refusal to perform the filial and legal obligations of love and support. If a parent withholds presence, love, care, the opportunity to display filial affection, and neglects to lend support and maintenance, the parent, in effect, abandons the child.34 Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.35 To dispense with the requirement of consent, the abandonment must be shown to have existed at the time of adoption.36 In this case, petitioner relied solely on her testimony and that of Elaine Ramos to prove her claim that Amelia Ramos had abandoned her children. Petitioners testimony on that matter follows: Q Where is the mother of these three children now? A She left for Italy on November 20, 1990, sir. Q At the time when Amelia Ramos left for Italy, was there an instance where she communicated with the family? A None, sir. Q How about with her children? A None, sir. Q Do you know what place in Italy did she reside? A I do not know, sir. Q Did you receive any news about Amelia Ramos? A What I know, sir, was that she was already married with another man. Q From whom did you learn that? A From others who came from Italy, sir. Q Did you come to know whether she has children by her second marriage? A Yes, sir, she got two kids.37 Elaine, the eldest of the minors, testified, thus: Q Where is your mother now? A In Italy, sir. Q When did your mother left for Italy? A After my father died, sir. Q How old were you when your mother left for Italy in 1990? A Two years old, sir. Q At the time when your mother left for Italy, did your mother communicate with you? A No, sir.38

However, the Home Study Report of the DSWD Social Worker also stated the following: IV. Background of the Case: xxxx Since the mother left for Italy, minors siblings had been under the care and custody of their maternal grandmother. However, she died in Nov. 2001 and an uncle, cousin of their deceased father now serves as their guardian. The petitioner, together with her children and other relatives abroad have been supporting the minor children financially, even during the time that they were still living with their natural parents. Their mother also sends financial support but very minimal.39 xxxx V. Background Information about the Minors Being Sought for Adoption: xxxx As the eldest she tries her best to be a role model to her younger siblings. She helps them in their lessons, works and has fun with them. She also encourages openness on their problems and concerns and provides petty counseling. In serious problems she already consult (sic) her mother and petitioner-aunt.40 xxxx In their 5 years of married life, they begot 3 children, herein minors, Amelia recalled that they had a happy and comfortable life. After the death of her husband, her in-laws which include the petitioner had continued providing support for them. However being ashamed of just depending on the support of her husbands relatives, she decided to work abroad. Her parents are also in need of financial help as they are undergoing maintenance medication. Her parents mortgaged their farm land which she used in going to Italy and worked as domestic helper. When she left for Italy in November 1990, she entrusted her 3 children to the care & custody of her mother-in-law who returned home for good, however she died on November 2000. While working in Italy, she met Jun Tayag, a married man from Tarlac. They became live-in partners since 1995 and have a son John Mario who is now 2 years old. The three of them are considered Italian residents. Amelia claimed that Mr. Tayag is planning to file an annulment of his marriage and his wife is amenable to it. He is providing his legitimate family regular support. Amelia also sends financial support ranging from P10,000-P15,000 a month through her parents who share minimal amount of P3,000-P5,000 a month to his (sic) children. The petitioner and other paternal relatives are continuously providing support for most of the needs & education of minors up to present.41 Thus, when Amelia left for Italy, she had not intended to abandon her children, or to permanently sever their mother-child relationship. She was merely impelled to leave the country by financial constraints. Yet, even while abroad, she did not surrender or relinquish entirely her motherly obligations of rearing the children to her now deceased mother-in-law, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious personal problems. Likewise, Amelia continues to send financial support to the children, though in minimal amounts as compared to what her affluent in-laws provide. Let it be emphasized, nevertheless, that the adoption of the minors herein will have the effect of severing all legal ties between the biological mother, Amelia, and the adoptees, and that the same shall then be vested on the adopter.42 It would thus be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his/her children. More proof has to be adduced that Amelia has emotionally abandoned the children, and that the latter will not miss her guidance and counsel if they are given to an adopting parent.43 Again, it is the best interest of the child that takes precedence in adoption.

Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. The offer of evidence is necessary because it is the duty of the Court to rest its findings of fact and its judgment only and strictly upon the evidence offered by the parties. Unless and until admitted by the court in evidence for the purpose or purposes for which such document is offered, the same is merely a scrap of paper barren of probative weight. Mere identification of documents and the markings thereof as exhibits do not confer any evidentiary weight on documents unless formally offered.44 Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent purportedly executed by her children; the authenticity of which she, likewise, failed to prove. The joint written consent of petitioners children45 was notarized on January 16, 2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a document notarized in this country it needs to comply with Section 2 of Act No. 2103, 46 which states: Section 2. An instrument or document acknowledged and authenticated in a foreign country shall be considered authentic if the acknowledgment and authentication are made in accordance with the following requirements: (a) The acknowledgment shall be made before (1) an ambassador, minister, secretary of legation, charg d affaires, consul, viceconsul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited, or (2) a notary public or officer duly authorized by law of the country to take acknowledgments of instruments or documents in the place where the act is done. (b) The person taking the acknowledgment shall certify that the person acknowledging the instrument or document is known to him, and that he is the same person who executed it, and acknowledged that the same is his free act and deed. The certificate shall be under his official seal, if he is by law required to keep a seal, and if not, his certificate shall so state. In case the acknowledgment is made before a notary public or an officer mentioned in subdivision (2) of the preceding paragraph, the certificate of the notary public or the officer taking the acknowledgment shall be authenticated by an ambassador, minister, secretary of legation, charg de affaires, consul, viceconsul, or consular agent of the Republic of the Philippines, acting within the country or place to which he is accredited. The officer making the authentication shall certify under his official seal that the person who took the acknowledgment was at the time duly authorized to act as notary public or that he was duly exercising the functions of the office by virtue of which he assumed to act, and that as such he had authority under the law to take acknowledgment of instruments or documents in the place where the acknowledgment was taken, and that his signature and seal, if any, are genuine. As the alleged written consent of petitioners legitimate children did not comply with the afore-cited law, the same can at best be treated by the Rules as a private document whose authenticity must be proved either by anyone who saw the document executed or written; or by evidence of the genuineness of the signature or handwriting of the makers.47 Since, in the instant case, no further proof was introduced by petitioner to authenticate the written consent of her legitimate children, the same is inadmissible in evidence. In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to support the children and is only relying on the financial backing, support and commitment of her children and her siblings.48 Petitioner contradicts this by claiming that she is financially capable as she has worked in Guam for 14 years, has savings, a house, and currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children and siblings have likewise committed themselves to provide financial backing should the need arise. The OSG, again in its comment, banks on the statement in the Home Study Report that "petitioner has limited income." Accordingly, it appears that she will rely on the financial backing of her children and siblings in order to support the minor adoptees. The law, however, states that it is the adopter who should be in a position to provide support in keeping with the means of the family. Since the primary consideration in adoption is the best interest of the child, it follows that the financial capacity of prospective parents should also

be carefully evaluated and considered. Certainly, the adopter should be in a position to support the would-be adopted child or children, in keeping with the means of the family. According to the Adoption Home Study Report49 forwarded by the Department of Public Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer supporting her legitimate children, as the latter are already adults, have individual lives and families. At the time of the filing of the petition, petitioner was 57 years old, employed on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a month. Petitioners main intention in adopting the children is to bring the latter to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still being amortized. Petitioner likewise knows that the limited income might be a hindrance to the adoption proceedings. Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently handle the financial aspect of rearing the three children in the US. She only has a part-time job, and she is rather of age. While petitioner claims that she has the financial support and backing of her children and siblings, the OSG is correct in stating that the ability to support the adoptees is personal to the adopter, as adoption only creates a legal relation between the former and the latter. Moreover, the records do not prove nor support petitioners allegation that her siblings and her children are financially able and that they are willing to support the minors herein. The Court, therefore, again sustains the ruling of the CA on this issue. While the Court recognizes that petitioner has only the best of intentions for her nieces and nephew, there are legal infirmities that militate against reversing the ruling of the CA. In any case, petitioner is not prevented from filing a new petition for adoption of the herein minors. WHEREFORE, premises considered, the petition is hereby DENIED. -MACARIO TAMARGO, CELSO TAMARGO and AURELIA TAMARGO vs. HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch 20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer Tamargo with an air rifle causing injuries which resulted in her death. Accordingly, a civil complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan, Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural parents with whom he was living at the time of the tragic incident. In addition to this case for damages, a criminal information or Homicide through Reckless Imprudence was filed [Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto, however, was acquitted and exempted from criminal liability on the ground that he bad acted without discernment. Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura had filed a petition to adopt the minor Adelberto Bundoc in Special Proceedings No. 0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption was grunted on, 18 November 1982, that is, after Adelberto had shot and killed Jennifer. In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the result of the foregoing petition for adoption, claimed that not they, but rather the adopting parents, namely the spouses Sabas and Felisa Rapisura, were indispensable parties to the action since parental authority had shifted to the adopting parents from the moment the successful petition for adoption was filed. Petitioners in their Reply contended that since Adelberto Bundoc was then actually living with his natural parents, parental authority had not ceased nor been relinquished by the mere filing and granting of a petition for adoption. The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that respondent natural parents of Adelberto indeed were not indispensable parties to the action.

Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the 15-day reglementary period, or on 14 December 1987, petitioners filed a motion for reconsideration followed by a supplemental motion for reconsideration on 15 January 1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of Rule 15 of the Revised Rules of Court that notice of the motion shall be given to all parties concerned at least three (3) days before the hearing of said motion; and that said notice shall state the time and place of hearing both motions were denied by the trial court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this time ruling that the notice had been filed beyond the 15-day reglementary period ending 22 December 1987. Petitioners went to the Court of Appeals on a petition for mandamus and certiorari questioning the trial court's Decision dated 3 December 1987 and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals dismissed the petition, ruling that petitioners had lost their right to appeal. In the present Petition for Review, petitioners once again contend that respondent spouses Bundoc are the indispensable parties to the action for damages caused by the acts of their minor child, Adelberto Bundoc. Resolution of this Petition hinges on the following issues: (1) whether or not petitioners, notwithstanding loss of their right to appeal, may still file the instant Petition; conversely, whether the Court may still take cognizance of the case even through petitioners' appeal had been filed out of time; and (2) whether or not the effects of adoption, insofar as parental authority is concerned may be given retroactive effect so as to make the adopting parents the indispensable parties in a damage case filed against their adopted child, for acts committed by the latter, when actual custody was yet lodged with the biological parents. 1. It will be recalled that, petitioners' motion (and supplemental motion) for reconsideration filed before the trial court, not having complied with the requirements of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were considered pro forma and hence did not interrupt and suspend the reglementary period to appeal: the trial court held that the motions, not having contained a notice of time and place of hearing, had become useless pieces of paper which did not interrupt the reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is the service of the motion on the opposing counsel indicating the time and place of hearing. 2 In view, however, of the nature of the issue raised in the instant. Petition, and in order that substantial justice may be served, the Court, invoking its right to suspend the application of technical rules to prevent manifest injustice, elects to treat the notice of appeal as having been seasonably filed before the trial court, and the motion (and supplemental motion) for reconsideration filed by petitioner in the trial court as having interrupted the reglementary period for appeal. As the Court held in Gregorio v. Court of Appeals: 3 Dismissal of appeal; purely on technical grounds is frowned upon where the policy of the courts is to encourage hearings of appeal on their merits. The rules of procedure ought not be applied in a very rigid technical sense, rules of procedure are used only to help secure not override, substantial justice. if d technical and rigid enforcement of the rules is made their aim would be defeated. 4 2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo with an air rifle gave rise to a cause of action on quasi-delict against him. As Article 2176 of the Civil Code provides: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict . . . Upon the other hand, the law imposes civil liability upon the father and, in case of his death or incapacity, the mother, for any damages that may be caused by a minor child who lives with them. Article 2180 of the Civil Code reads:

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. xxx xxx xxx The responsibility treated of in this Article shall cease when the person herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (Emphasis supplied) This principle of parental liability is a species of what is frequently designated as vicarious liability, or the doctrine of "imputed negligence" under AngloAmerican tort law, where a person is not only liable for torts committed by himself, but also for torts committed by others with whom he has a certain relationship and for whom he is responsible. Thus, parental liability is made a natural or logical consequence of the duties and responsibilities of parents their parental authority which includes the instructing, controlling and disciplining of the child. 5 The basis for the doctrine of vicarious liability was explained by the Court in Cangco v. Manila Railroad Co. 6 in the following terms: With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the legislature to elect and our Legislature has so elected to limit such liability to cases in which the person upon whom such an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy. to extend that liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose acts or omissions are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability with certain well-defined exceptions to cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in one's own acts, or in having failed to exercise due care in the selection and control of one's agent or servants, or in the control of persons who, by reasons of their status, occupy a position of dependency with respect to the person made liable for their conduct. 7 (Emphasis Supplied) The civil liability imposed upon parents for the torts of their minor children living with them, may be seen to be based upon the parental authority vested by the Civil Code upon such parents. The civil law assumes that when an unemancipated child living with its parents commits a tortious acts, the parents were negligent in the performance of their legal and natural duty closely to supervise the child who is in their custody and control. Parental liability is, in other words, anchored upon parental authority coupled with presumed parental dereliction in the discharge of the duties accompanying such authority. The parental dereliction is, of course, only presumed and the presumption can be overtuned under Article 2180 of the Civil Code by proof that the parents had exercised all the diligence of a good father of a family to prevent the damage. In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when parental authority was still lodged in respondent Bundoc spouses, the natural parents of the minor Adelberto. It would thus follow that the natural parents who had then actual custody of the minor Adelberto, are the indispensable parties to the suit for damages. The natural parents of Adelberto, however, stoutly maintain that because a decree of adoption was issued by the adoption court in favor of the Rapisura spouses, parental authority was vested in the latter as adopting parents as of the time of the filing of the petition for adoption that is, before Adelberto had shot Jennifer which an air rifle. The Bundoc spouses contend that they were therefore free of any parental responsibility for Adelberto's allegedly tortious conduct. Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare Code 8 which reads as follows: Art. 36. Decree of Adoption. If, after considering the report of the Department of Social Welfare or duly licensed child placement agency and

the evidence submitted before it, the court is satisfied that the petitioner is qualified to maintain, care for, and educate the child, that the trial custody period has been completed, and that the best interests of the child will be promoted by the adoption, a decree of adoption shall be entered, which shall be effective he date the original petition was filed. The decree shall state the name by which the child is thenceforth to be known. (Emphasis supplied) The Bundoc spouses further argue that the above Article 36 should be read in relation to Article 39 of the same Code: Art. 39. Effect of Adoption. The adoption shall: xxx xxx xxx (2) Dissolve the authority vested in the natural parents, except where the adopter is the spouse of the surviving natural parent; xxx xxx xxx (Emphasis supplied) and urge that their Parental authority must be deemed to have been dissolved as of the time the Petition for adoption was filed. The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental liability for the torts of a minor child is the relationship existing between the parents and the minor child living with them and over whom, the law presumes, the parents exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-enacted this rule: Article 58 Torts Parents and guardians are responsible for the damage caused by the child under their parental authority in accordance with the civil Code. (Emphasis supplied) Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the requisite that the child, doer of the tortious act, shall have beer in the actual custody of the parents sought to be held liable for the ensuing damage: Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (Emphasis supplied) We do not believe that parental authority is properly regarded as having been retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at the time the air rifle shooting happened. We do not consider that retroactive effect may be giver to the decree of adoption so as to impose a liability upon the adopting parents accruing at a time when adopting parents had no actual or physically custody over the adopted child. Retroactive affect may perhaps be given to the granting of the petition for adoption where such is essential to permit the accrual of some benefit or advantage in favor of the adopted child. In the instant case, however, to hold that parental authority had been retroactively lodged in the Rapisura spouses so as to burden them with liability for a tortious act that they could not have foreseen and which they could not have prevented (since they were at the time in the United States and had no physical custody over the child Adelberto) would be unfair and unconscionable. Such a result, moreover, would be inconsistent with the philosophical and policy basis underlying the doctrine of vicarious liability. Put a little differently, no presumption of parental dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen since Adelberto was not in fact subject to their control at the time the tort was committed. Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above. Article 35 provides as follows: Art. 35. Trial Custody. No petition for adoption shall be finally granted unless and until the adopting parents are given by the courts a supervised trial custody period of at least six months to assess their adjustment and emotional readiness for the legal union. During the period of trial custody,

parental authority shall be vested in the adopting parents. (Emphasis supplied) Under the above Article 35, parental authority is provisionally vested in the adopting parents during the period of trial custody, i.e., before the issuance of a decree of adoption, precisely because the adopting parents are given actual custody of the child during such trial period. In the instant case, the trial custody period either had not yet begun or bad already been completed at the time of the air rifle shooting; in any case, actual custody of Adelberto was then with his natural parents, not the adopting parents. Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural parents, were indispensable parties to the suit for damages brought by petitioners, and that the dismissal by the trial court of petitioners' complaint, the indispensable parties being already before the court, constituted grave abuse of discretion amounting to lack or excess of jurisdiction. WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE COURSE and the Decision of the Court of Appeals dated 6 September 1988, in C.A.-G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed before the trial court is hereby REINSTATED and this case is REMANDED to that court for further proceedings consistent with this Decision. Costs against respondent Bundoc spouses. This Decision is immediately executory. -ISABELITA S. LAHOM, petitioner, vs. JOSE MELVIN SIBULO (previously referred to as DR. MELVIN S. LAHOM), respondent. DECISION

13. That herein petitioner being a widow, and living alone in this city with only her household helps to attend to her, has yearned for the care and show of concern from a son, but respondent remained indifferent and would only come to Naga to see her once a year. 14. That for the last three or four years, the medical check-up of petitioner in Manila became more frequent in view of a leg ailment, and those were the times when petitioner would need most the care and support from a love one, but respondent all the more remained callous and utterly indifferent towards petitioner which is not expected of a son. 15. That herein respondent has recently been jealous of petitioners nephews and nieces whenever they would find time to visit her, respondent alleging that they were only motivated by their desire for some material benefits from petitioner. 16. That in view of respondents insensible attitude resulting in a strained and uncomfortable relationship between him and petitioner, the latter has suffered wounded feelings, knowing that after all respondents only motive to his adoption is his expectancy of his alleged rights over the properties of herein petitioner and her late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for partition against petitioner, thereby totally eroding her love and affection towards respondent, rendering the decree of adoption, considering respondent to be the child of petitioner, for all legal purposes, has been negated for which reason there is no more basis for its existence, hence this petition for revocation. [1] Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No. 8552, also known as the Domestic Adoption Act, went into effect. The new statute deleted from the law the right of adopters to rescind a decree of adoption. Section 19 of Article VI of R.A. No. 8552 now reads:

VITUG, J.: The bliss of marriage and family would be to most less than complete without children. The realization could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom to take into their care Isabelitas nephew Jose Melvin Sibulo and to bring him up as their own. At the tender age of two, Jose Melvin enjoyed the warmth, love and support of the couple who treated the child like their own. Indeed, for years, Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in 1971, the couple decided to file a petition for adoption. On 05 May 1972, an order granting the petition was issued that made all the more intense than before the feeling of affection of the spouses for Melvin. In keeping with the court order, the Civil Registrar of Naga City changed the name Jose Melvin Sibulo to Jose Melvin Lahom. A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom commenced a petition to rescind the decree of adoption before the Regional Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred 7. That x x x despite the proddings and pleadings of said spouses, respondent refused to change his surname from Sibulo to Lahom, to the frustrations of petitioner particularly her husband until the latter died, and even before his death he had made known his desire to revoke respondents adoption, but was prevented by petitioners supplication, however with his further request upon petitioner to give to charity whatever properties or interest may pertain to respondent in the future. x x x xxx xxx SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to comply with parental obligations. Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code. (emphasis supplied) Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial court had no jurisdiction over the case and (b) that the petitioner had no cause of action in view of the aforequoted provisions of R.A. No. 8552. Petitioner asseverated, by way of opposition, that the proscription in R.A. No. 8552 should not retroactively apply, i.e., to cases where the ground for rescission of the adoption vested under the regime of then Article 348 [2] of the Civil Code and Article 192 [3] of the Family Code. In an order, dated 28 April 2000, the trial court held thusly: On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No. 8369 confers jurisdiction to this Court, having been designated Family Court in A.M. No. 99-11-07 SC. On the matter of no cause of action, the test on the sufficiency of the facts alleged in the complaint, is whether or not, admitting the facts alleged, the Court could render a valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs. Belarmino, et al., 95 Phil. 365). Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to rescind an adoption earlier granted under the Family Code. Conformably, on the face of the petition, indeed there is lack of cause of action.

10. That respondent continued using his surname Sibulo to the utter disregard of the feelings of herein petitioner, and his records with the Professional Regulation Commission showed his name as Jose Melvin M. Sibulo originally issued in 1978 until the present, and in all his dealings and activities in connection with his practice of his profession, he is Jose Melvin M. Sibulo. x x x xxx xxx

Petitioner however, insists that her right to rescind long acquired under the provisions of the Family Code should be respected. Assuming for the sake of argument, that petitioner is entitled to rescind the adoption of respondent granted on May 5, 1972, said right should have been exercised within the period allowed by the Rules. From the averments in the petition, it appears clear that the legal grounds for the petition have been discovered and known to petitioner for more than five (5) years, prior to the filing of the instant petition on December 1, 1999, hence, the action if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules of Court) WHEREFORE, in view of the foregoing consideration, the petition is ordered dismissed. [4] Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner raises the following questions; viz: 1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded by an adopter after the effectivity of R.A. No. 8552? 2. In the affirmative, has the adopters action prescribed?

the Philippines (Executive Order No. 209), mandating joint adoption by the husband and wife, took effect. Petitioner Republic argued that the case should be dismissed for having been filed by Mrs. Bobiles alone and without being joined by the husband. The Court concluded that the jurisdiction of the court is determined by the statute in force at the time of the commencement of the action. The petition to adopt Jason, having been filed with the court at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to file the petition, without being joined by her husband, according to the Court had become vested. In Republic vs. Miller, [21] spouses Claude and Jumrus Miller, both aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition to formalize Michaels adoption having theretofore been taken into their care. At the time the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree of adoption and while on appeal before the Court of Appeals, the Family Code was enacted into law on 08 August 1988 disqualifying aliens from adopting Filipino children. The Republic then prayed for the withdrawal of the adoption decree. In discarding the argument posed by the Republic, the Supreme Court ruled that the controversy should be resolved in the light of the law governing at the time the petition was filed. It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to revoke the decree of adoption granted in 1975. By then, the new law, [22] had already abrogated and repealed the right of an adopter under the Civil Code and the Family Code to rescind a decree of adoption. Consistently with its earlier pronouncements, the Court should now hold that the action for rescission of the adoption decree, having been initiated by petitioner after R.A. No. 8552 had come into force, no longer could be pursued. Interestingly, even before the passage of the statute, an action to set aside the adoption is subject to the fiveyear bar rule under Rule 100 [23] of the Rules of Court and that the adopter would lose the right to revoke the adoption decree after the lapse of that period. The exercise of the right within a prescriptive period is a condition that could not fulfill the requirements of a vested right entitled to protection. It must also be acknowledged that a person has no vested right in statutory privileges. [24] While adoption has often been referred to in the context of a right, the privilege to adopt is itself not naturally innate or fundamental but rather a right merely created by statute. [25] It is a privilege that is governed by the states determination on what it may deem to be for the best interest and welfare of the child. [26] Matters relating to adoption, including the withdrawal of the right of an adopter to nullify the adoption decree, are subject to regulation by the State. [27] Concomitantly, a right of action given by statute may be taken away at anytime before it has been exercised. [28] While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to rescind the adoption decree even in cases where the adoption might clearly turn out to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law. Dura lex sed lex would be the hackneyed truism that those caught in the law have to live with. It is still noteworthy, however, that an adopter, while barred from severing the legal ties of adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise accruing to an undeserving child. For instance, upon the grounds recognized by law, an adopter may deny to an adopted child his legitime and, by a will and testament, may freely exclude him from having a share in the disposable portion of his estate. WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs. -IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA May an illegitimate child, upon adoption by her natural father, use the surname of her natural mother as her middle name? This is the issue raised in the instant case. The facts are undisputed.

A brief background on the law and its origins could provide some insights on the subject. In ancient times, the Romans undertook adoption to assure male heirs in the family. [5] The continuity of the adopters family was the primary purpose of adoption and all matters relating to it basically focused on the rights of the adopter. There was hardly any mention about the rights of the adopted. [6] Countries, like Greece, France, Spain and England, in an effort to preserve inheritance within the family, neither allowed nor recognized adoption. [7] It was only much later when adoption was given an impetus in law and still later when the welfare of the child became a paramount concern. [8] Spain itself which previously disfavored adoption ultimately relented and accepted the Roman law concept of adoption which, subsequently, was to find its way to the archipelago. The Americans came and introduced their own ideas on adoption which, unlike most countries in Europe, made the interests of the child an overriding consideration. [9] In the early part of the century just passed, the rights of children invited universal attention; the Geneva Declaration of Rights of the Child of 1924 and the Universal Declaration of Human Rights of 1948, [10] followed by the United Nations Declarations of the Rights of the Child, [11] were written instruments that would also protect and safeguard the rights of adopted children. The Civil Code of the Philippines [12] of 1950 on adoption, later modified by the Child and Youth Welfare Code [13] and then by the Family Code of the Philippines, [14] gave immediate statutory acknowledgment to the rights of the adopted. In 1989, the United Nations initiated the Convention of the Rights of the Child. The Philippines, a State Party to the Convention, accepted the principle that adoption was impressed with social and moral responsibility, and that its underlying intent was geared to favor the adopted child. R.A. No. 8552 secured these rights and privileges for the adopted. Most importantly, it affirmed the legitimate status of the adopted child, not only in his new family but also in the society as well. The new law withdrew the right of an adopter to rescind the adoption decree and gave to the adopted child the sole right to sever the legal ties created by adoption. Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to annul the adoption decree, nor deprive the trial court of its jurisdiction to hear the case, both being vested under the Civil Code and the Family Code, the laws then in force. The concept of vested right is a consequence of the constitutional guaranty of due process [15] that expresses a present fixed interest which in right reason and natural justice is protected against arbitrary state action; [16] it includes not only legal or equitable title to the enforcement of a demand but also exemptions from new obligations created after the right has become vested. [17] Rights are considered vested when the right to enjoyment is a present interest, [18] absolute, unconditional, and perfect [19] or fixed and irrefutable. In Republic vs. Court of Appeals, [20] a petition to adopt Jason Condat was filed by Zenaida C. Bobiles on 02 February 1988 when the Child and Youth Welfare Code (Presidential Decree No. 603) allowed an adoption to be sought by either spouse or both of them. After the trial court had rendered its decision and while the case was still pending on appeal, the Family Code of

On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition[1] to adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein, among others, that Stephanie was born on June 26, 1994;[2] that her mother is Gemma Astorga Garcia; that Stephanie has been using her mothers middle name and surname; and that he is now a widower and qualified to be her adopting parent. He prayed that Stephanies middle name Astorga be changed to Garcia, her mothers surname, and that her surname Garcia be changed to Catindig, his surname. On March 23, 2001,[3] the trial court rendered the assailed Decision granting the adoption, thus: After a careful consideration of the evidence presented by the petitioner, and in the absence of any opposition to the petition, this Court finds that the petitioner possesses all the qualifications and none of the disqualification provided for by law as an adoptive parent, and that as such he is qualified to maintain, care for and educate the child to be adopted; that the grant of this petition would redound to the best interest and welfare of the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners care and custody of the child since her birth up to the present constitute more than enough compliance with the requirement of Article 35 of Presidential Decree No. 603. WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and maintenance with respect to her natural mother, and for civil purposes, shall henceforth be the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG. Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned pursuant to Rule 99 of the Rules of Court. Let copy of this Decision be furnished the National Statistics Office for record purposes. SO ORDERED.[4] On April 20, 2001, petitioner filed a motion for clarification and/or reconsideration[5] praying that Stephanie should be allowed to use the surname of her natural mother (GARCIA) as her middle name. On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration holding that there is no law or jurisprudence allowing an adopted child to use the surname of his biological mother as his middle name. Hence, the present petition raising the issue of whether an illegitimate child may use the surname of her mother as her middle name when she is subsequently adopted by her natural father. Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a consequence of adoption because: (1) there is no law prohibiting an adopted child from having a middle name in case there is only one adopting parent; (2) it is customary for every Filipino to have as middle name the surname of the mother; (3) the middle name or initial is a part of the name of a person; (4) adoption is for the benefit and best interest of the adopted child, hence, her right to bear a proper name should not be violated; (5) permitting Stephanie to use the middle name Garcia (her mothers surname) avoids the stigma of her illegitimacy; and; (6) her continued use of Garcia as her middle name is not opposed by either the Catindig or Garcia families. The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner that Stephanie should be permitted to use, as her middle name, the surname of her natural mother for the following reasons: First, it is necessary to preserve and maintain Stephanies filiation with her natural mother because under Article 189 of the Family Code, she remains to be an intestate heir of the latter. Thus, to prevent any confusion and needless hardship in the future, her relationship or proof of that relationship with her natural mother should be maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her natural mother as her middle name. What the law does not prohibit, it allows. Last, it is customary for every Filipino to have a middle name, which is ordinarily the surname of the mother. This custom has been recognized by the Civil Code and Family Code. In fact, the Family Law Committees agreed that the initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother.[7] We find merit in the petition. Use Of Surname Is Fixed By Law For all practical and legal purposes, a man's name is the designation by which he is known and called in the community in which he lives and is best known. It is defined as the word or combination of words by which a person is distinguished from other individuals and, also, as the label or appellation which he bears for the convenience of the world at large addressing him, or in speaking of or dealing with him.[8] It is both of personal as well as public interest that every person must have a name. The name of an individual has two parts: (1) the given or proper name and (2) the surname or family name. The given or proper name is that which is given to the individual at birth or at baptism, to distinguish him from other individuals. The surname or family name is that which identifies the family to which he belongs and is continued from parent to child. The given name may be freely selected by the parents for the child, but the surname to which the child is entitled is fixed by law.[9] Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate the use of surname[10] of an individual whatever may be his status in life, i.e., whether he may be legitimate or illegitimate, an adopted child, a married woman or a previously married woman, or a widow, thus: Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. xxx Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as Mrs. Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370.

Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word Junior can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, (2) Add the Roman numerals II, III, and so on.

Jose Gutierrez Davids family name is Gutierrez and his mothers surname is David but they all call him Justice David. Justice Caguioa suggested that the proposed Article (12) be modified to the effect that it shall be mandatory on the child to use the surname of the father but he may use the surname of the mother by way of an initial or a middle name. Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of Surnames since in the proposed Article (10) they are just enumerating the rights of legitimate children so that the details can be covered in the appropriate chapter. xxx

x x x Law Is Silent As To The Use Of Middle Name As correctly submitted by both parties, there is no law regulating the use of a middle name. Even Article 176[11] of the Family Code, as amended by Republic Act No. 9255, otherwise known as An Act Allowing Illegitimate Children To Use The Surname Of Their Father, is silent as to what middle name a child may use. The middle name or the mothers surname is only considered in Article 375(1), quoted above, in case there is identity of names and surnames between ascendants and descendants, in which case, the middle name or the mothers surname shall be added. Notably, the law is likewise silent as to what middle name an adoptee may use. Article 365 of the Civil Code merely provides that an adopted child shall bear the surname of the adopter. Also, Article 189 of the Family Code, enumerating the legal effects of adoption, is likewise silent on the matter, thus: "(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; x x x However, as correctly pointed out by the OSG, the members of the Civil Code and Family Law Committees that drafted the Family Code recognized the Filipino custom of adding the surname of the childs mother as his middle name. In the Minutes of the Joint Meeting of the Civil Code and Family Law Committees, the members approved the suggestion that the initial or surname of the mother should immediately precede the surname of the father, thus Justice Caguioa commented that there is a difference between the use by the wife of the surname and that of the child because the fathers surname indicates the family to which he belongs, for which reason he would insist on the use of the fathers surname by the child but that, if he wants to, the child may also use the surname of the mother. Justice Puno posed the question: If the child chooses to use the surname of the mother, how will his name be written? Justice Caguioa replied that it is up to him but that his point is that it should be mandatory that the child uses the surname of the father and permissive in the case of the surname of the mother. Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364, which reads: Legitimate and legitimated children shall principally use the surname of the father. Justice Puno pointed out that many names change through no choice of the person himself precisely because of this misunderstanding. He then cited the following example: Alfonso Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody calls him Atty. Enrile. Justice Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa that the surname of the father should always be last because there are so many traditions like the American tradition where they like to use their second given name and the Latin tradition, which is also followed by the Chinese wherein they even include the Clan name. xxx Justice Puno suggested that they agree in principle that in the Chapter on the Use of Surnames, they should say that initial or surname of the mother should immediately precede the surname of the father so that the second name, if any, will be before the surname of the mother. Prof. Balane added that this is really the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied) In the case of an adopted child, the law provides that the adopted shall bear the surname of the adopters.[13] Again, it is silent whether he can use a middle name. What it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the surname of the adopter, upon issuance of the decree of adoption.[14] The Underlying Intent of Adoption Is In Favor of the Adopted Child Adoption is defined as the process of making a child, whether related or not to the adopter, possess in general, the rights accorded to a legitimate child.[15] It is a juridical act, a proceeding in rem which creates between two persons a relationship similar to that which results from legitimate paternity and filiation.[16] The modern trend is to consider adoption not merely as an act to establish a relationship of paternity and filiation, but also as an act which endows the child with a legitimate status.[17] This was, indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention of the Rights of the Child initiated by the United Nations, accepted the principle that adoption is impressed with social and moral responsibility, and that its underlying intent is geared to favor the adopted child.[18] Republic Act No. 8552, otherwise known as the Domestic Adoption Act of 1998,[19] secures these rights and privileges for the adopted.[20] One of the effects of adoption is that the adopted is deemed to be a legitimate child of the adopter for all intents and purposes pursuant to Article 189[21] of the Family Code and Section 17[22] Article V of RA 8552.[23] Being a legitimate child by virtue of her adoption, it follows that Stephanie is entitled to all the rights provided by law to a legitimate child without discrimination of any kind, including the right to bear the surname of her father and her mother, as discussed above. This is consistent with the intention of the members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a Filipino custom that the initial or surname of the mother should immediately precede the surname of the father. Additionally, as aptly stated by both parties, Stephanies continued use of her mothers surname (Garcia) as her middle name will maintain her maternal lineage. It is to be noted that Article 189(3) of the Family Code and Section 18[24], Article V of RA 8552 (law on adoption) provide that the adoptee remains an intestate heir of his/her biological parent. Hence, Stephanie can well assert or claim her hereditary rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for all their needs. Stephanie is closely attached to both her mother and father. She calls them Mama and Papa. Indeed, they are one normal happy family. Hence, to allow Stephanie to use her mothers surname as her middle name will not only sustain her continued loving relationship with her mother but will also eliminate the stigma of her illegitimacy. Liberal Construction of Adoption Statutes In Favor Of Adoption It is a settled rule that adoption statutes, being humane and salutary, should be liberally construed to carry out the beneficent purposes of adoption.[25] The interests and welfare of the adopted child are of primary and paramount consideration,[26] hence, every reasonable intendment should be sustained to promote and fulfill these noble and compassionate objectives of the law.[27] Lastly, Art. 10 of the New Civil Code provides that: In case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. This provision, according to the Code Commission, is necessary so that it may tip the scales in favor of right and justice when the law is doubtful or obscure. It will strengthen the determination of the courts to avoid an injustice which may apparently be authorized by some way of interpreting the law.[28] Hence, since there is no law prohibiting an illegitimate child adopted by her natural father, like Stephanie, to use, as middle name her mothers surname, we find no reason why she should not be allowed to do so. WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in the sense that Stephanie should be allowed to use her mothers surname GARCIA as her middle name. Let the corresponding entry of her correct and complete name be entered in the decree of adoption. -ARTURO PELAYO vs. MARCELO LAURON, ET AL. On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint against Marcelo Lauron and Juana Abella setting forth that on or about the 13th of October of said year, at night, the plaintiff was called to the house of the defendants, situated in San Nicolas, and that upon arrival he was requested by them to render medical assistance to their daughter-inlaw who was about to give birth to a child; that therefore, and after consultation with the attending physician, Dr. Escao, it was found necessary, on account of the difficult birth, to remove the fetus by means of forceps which operation was performed by the plaintiff, who also had to remove the afterbirth, in which services he was occupied until the following morning, and that afterwards, on the same day, he visited the patient several times; that the just and equitable value of the services rendered by him was P500, which the defendants refuse to pay without alleging any good reason therefor; that for said reason he prayed that the judgment be entered in his favor as against the defendants, or any of them, for the sum of P500 and costs, together with any other relief that might be deemed proper. In answer to the complaint counsel for the defendants denied all of the allegation therein contained and alleged as a special defense, that their daughter-in-law had died in consequence of the said childbirth, and that when she was alive she lived with her husband independently and in a separate house without any relation whatever with them, and that, if on the day when she gave birth she was in the house of the defendants, her stay their was accidental and due to fortuitous circumstances; therefore, he prayed that the defendants be absolved of the complaint with costs against the plaintiff.

The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing the defendants, on the 23rd of January, 1907, to amend their answer. In compliance with this order the defendants presented, on the same date, their amended answer, denying each and every one of the allegations contained in the complaint, and requesting that the same be dismissed with costs. As a result of the evidence adduced by both parties, judgment was entered by the court below on the 5th of April, 1907, whereby the defendants were absolved from the former complaint, on account of the lack of sufficient evidence to establish a right of action against the defendants, with costs against the plaintiff, who excepted to the said judgment and in addition moved for a new trial on the ground that the judgment was contrary to law; the motion was overruled and the plaintiff excepted and in due course presented the corresponding bill of exceptions. The motion of the defendants requesting that the declaration contained in the judgment that the defendants had demanded therefrom, for the reason that, according to the evidence, no such request had been made, was also denied, and to the decision the defendants excepted. Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having been sent for by the former, attended a physician and rendered professional services to a daughter-in-law of the said defendants during a difficult and laborious childbirth, in order to decide the claim of the said physician regarding the recovery of his fees, it becomes necessary to decide who is bound to pay the bill, whether the father and mother-in-law of the patient, or the husband of the latter. According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs. Obligations arising from law are not presumed. Those expressly determined in the code or in special laws, etc., are the only demandable ones. Obligations arising from contracts have legal force between the contracting parties and must be fulfilled in accordance with their stipulations. (Arts. 1090 and 1091.) The rendering of medical assistance in case of illness is comprised among the mutual obligations to which the spouses are bound by way of mutual support. (Arts. 142 and 143.) If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are mutually bound to support each other, there can be no question but that, when either of them by reason of illness should be in need of medical assistance, the other is under the unavoidable obligation to furnish the necessary services of a physician in order that health may be restored, and he or she may be freed from the sickness by which life is jeopardized; the party bound to furnish such support is therefore liable for all expenses, including the fees of the medical expert for his professional services. This liability originates from the above-cited mutual obligation which the law has expressly established between the married couple. In the face of the above legal precepts it is unquestionable that the person bound to pay the fees due to the plaintiff for the professional services that he rendered to the daughter-in-law of the defendants during her childbirth, is the husband of the patient and not her father and mother- in-law, the defendants herein. The fact that it was not the husband who called the plaintiff and requested his assistance for his wife is no bar to the fulfillment of the said obligation, as the defendants, in view of the imminent danger, to which the life of the patient was at that moment exposed, considered that medical assistance was urgently needed, and the obligation of the husband to furnish his wife in the indispensable services of a physician at such critical moments is specially established by the law, as has been seen, and compliance therewith is unavoidable; therefore, the plaintiff, who believes that he is entitled to recover his fees, must direct his action against the husband who is under obligation to furnish medical assistance to his lawful wife in such an emergency. From the foregoing it may readily be understood that it was improper to have brought an action against the defendants simply because they were the parties who called the plaintiff and requested him to assist the patient during her difficult confinement, and also, possibly, because they were her father and mother-in-law and the sickness occurred in their house. The defendants were not, nor are they now, under any obligation by virtue of any legal provision, to pay the fees claimed, nor in consequence of any contract entered into between them and the plaintiff from which such obligation might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court of Spain, while recognizing the validity and efficiency of a contract to furnish support wherein a person bound himself to support another who was not his relative, established the rule that the law does impose the obligation to pay for the support of a stranger, but as the liability arose out of a contract, the stipulations of the agreement must be held. (Decision of May 11, 1897.) Within the meaning of the law, the father and mother-in-law are strangers with respect to the obligation that devolves upon the husband to provide support, among which is the furnishing of medical assistance to his wife at the time of her confinement; and, on the other hand, it does not appear that a contract existed between the defendants and the plaintiff physician, for which reason it is obvious that the former can not be compelled to pay fees which they are under no liability to pay because it does not appear that they consented to bind themselves. The foregoing suffices to demonstrate that the first and second errors assigned to the judgment below are unfounded, because, if the plaintiff has no right of action against the defendants, it is needless to declare whether or not the use of forceps is a surgical operation. Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment appealed from should be affirmed with the costs against the appellant. So ordered. -FELICIANO SANCHEZ vs. FRANCISCO ZULUETA, Judge of First Instance of Cavite, JOSEFA DIEGO and MARIANO SANCHEZ, assisted by his mother, JOSEFA DIEGO, as guardian ad litem In civil case No. 3199 of the Court of First Instance of Cavite, wherein Josefa Diego and Mario Sanchez are plaintiffs and Feliciano Sanchez is defendant, the plaintiffs ask that the defendant be sentenced to pay them a monthly allowance for support. The complaint alleges that the plaintiffs are the wife and child, respectively, of the defendant; that the latter, since 1932, refused and still refuses to support the plaintiffs; that the latter have no means of subsistence, while the defendant receives from the United States Army a monthly pension of P174.20; that the defendant abandoned the plaintiffs without any justifiable cause and now refuses to allow them to live with him. The defendant alleges, as special defense, that the plaintiff Josefa Diego abandoned the conjugal home on October 27, 1930, without his knowledge or consent, because she committed adultery with Macario Sanchez, with whom she had, as a result of the illicit relations, a child which is the other plaintiff Mario Sanchez. The month following the filing of the complaint, the plaintiffs asked the court to compel the defendant to give them, by way of allowance pendente lite, the sum of P50 a month. In opposition to his petition, the defendant alleged that Mario Sanchez is not his legitimate child but is the adulterous child of the plaintiff with Macario Sanchez, and he asked for an oppurtunity to adduce evidence in support of this defense. The court, without acceding to this petition of the defendant to adduce evidence, favorably acted upon the application of the plaintiffs and ordered the defendant to pay a monthly allowance pendente lite of P50 to the plaintiffs, from July 1, 1936. In view of these facts, the defendant filed a petition for prohibition before the Court of Appeals against the judge of the Court of First Instance and the plaintiffs. The Court of Appeals denied the petition, and from this resolution, the defendant comes to this court on certiorari. We are of the opinion that the Court of Appeals erred in not allowing the defendant to present his evidence for the purpose of determining whether it is sufficient prima facie to overcome the application. Adultery on the part of the wife is a valid defense against an action for support (Quintana vs. Lerma, 24 Phil. 285). Consequently, as to the child, it is also a defense that it is the fruit of such adulterous relations, for in that case, it would not be the child of the defendant and, hence, would not be entitled to support as such. But as this defense should be established, and not merely alleged, it would be unavailing if proof thereof is not permitted. It is not of course necessary to go fully into the merits of the case, it being sufficient the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to justly resolve

the application, one way or the other, in view of the merely provisional character of the resolution to be entered. Although mere affidavits may satisfy the court to pass upon the application, nevertheless, the failure to accompany the opposition therewith did not justify the court in ignoring said opposition, just because of this omission, inasmuch as an opportunity to present evidence has been asked. It may be that the defendant could not get hold of affidavits in support of his opposition, but he may have on hand other evidence of greater weight. If the defendant has a valid defense which calls for proof, and he asks for an opportunity to present evidence, it is error to deny him this opportunity. The decision rendered by the Court Appeals is reversed, and it is ordered that the petitioner be given an opportunity to present evidence in support of his defense against the application for support pendente lite, to the extent which the court determine, without special pronouncement as to the costs. So ordered. -MANUEL DE ASIS vs. COURT OF APPEALS, HON. JAIME T. HAMOY, Branch 130, RTC, Kalookan City and GLEN CAMIL ANDRES DE ASIS represented by her mother/guardian VIRCEL D. ANDRES Petition for certiorari under Rule 65 of the Revised Rules of Court seeking to nullify the decision of the Court of Appeals which affirmed the trial courts Orders, dated November 25, 1993 and February 4, 1994, respectively, denying petitioners Motion to Dismiss the Complaint in Civil Case No. C16107, entitled Glen Camil Andres de Asis, etc. vs. Manuel de Asis, and the motion for reconsideration. The pertinent facts leading to the filing of the petition at bar are, as follows: On October 14, 1988, Vircel D. Andres, (the herein private respondent) in her capacity as the legal guardian of the minor, Glen Camil Andres de Asis, brought an action for maintenance and support against Manuel de Asis, docketed as Civil Case No. Q-88-935 before the Regional Trial Court of Quezon City, Branch 94, alleging that the defendant Manuel de Asis (the petitioner here) is the father of subject minor Glen Camil Andres de Asis, and the former refused and/or failed to provide for the maintenance of the latter, despite repeated demands. In his Answer, petitioner denied his paternity of the said minor and theorized that he cannot therefore be required to provide support for him. On July 4, 1989, private respondent Vircel D. Andres, through counsel, sent in a manifestation the pertinent portion of which, reads; 1. That in his proposed Amended Answer, defendant (herein petitioner) has made a judicial admission/declaration that 1) defendant denies that the said minor child (Glen Camil) is his child; 2) he (petitioner) has no obligation to the plaintiff Glen Camil xxx. 2. That with the aforesaid judicial admissions/declarations by the defendant, it seems futile and a useless exercise to claim support from said defendant. 3. That under the foregoing circumstances it would be more practical that plaintiff withdraws the complaint against the defendant subject to the condition that the defendant should not pursue his counterclaim in the above-entitled case, xxx.clxi[1] By virtue of the said manifestation, both the plaintiff and the defendant agreed to move for the dismissal of the case. Acting thereupon, the Regional Trial Court a quo issued the following Order of August 8, 1989, dismissing Civil Case No. Q-88-935 with prejudice, to wit: Acting on the manifestation of Atty. Romualdo C. delos Santos, counsel for the defendant, that counsel for the plaintiff Atty. Ismael J. Andres has no objection that this case be withdrawn provided that the defendant will withdraw the counterclaim, as prayed for, let the case be dismissed with prejudice.

SO ORDERED.clxii[2] On September 7, 1995, another Complaint for maintenance and support was brought against Manuel A. de Asis, this time in the name of Glen Camil Andres de Asis, represented by her legal guardian/mother, Vircel D. Andres. Docketed as Civil Case No. C-16107 before Branch 130 of the Regional Trial Court of Kalookan, the said Complaint prayed, thus: WHEREFORE, premises considered, it is respectfully prayed that judgment be rendered ordering defendant: 1. To pay plaintiff the sum of not less than P2,000.00 per month for every month since June 1, 1987 as support in arrears which defendant failed to provide plaintiff shortly after her birth in June 1987 up to the present; 2. To give plaintiff a monthly allowance of P5,000.00 to be paid in advance on or before the 5th of each and every month; 3. To give plaintiff by way of support pendente lite, a monthly allowance of P5,000.00 per month, the first monthly allowance to start retroactively from the first day of this month and the subsequent ones to be paid in advance on or before the 5th of each succeeding month; 4. To pay the costs of suit. Plaintiff prays for such other relief just and equitable under the premises.clxiii[3] On October 8, 1993, petitioner moved to dismiss the Complaint on the ground of res judicata, alleging that Civil Case C-16107 is barred by the prior judgment which dismissed with prejudice Civil Case Q-88-935. In the Order dated November 25, 1993 denying subject motion to dismiss, the trial court ruled that res judicata is inapplicable in an action for support for the reason that renunciation or waiver of future support is prohibited by law. Petitioners motion for reconsideration of the said Order met the same fate. It was likewise denied. Petitioner filed with the Court of Appeals a Petition for Certiorari. But on June 7, 1996, the Court of Appeals found the said Petition devoid of merit and dismissed the same. Undaunted, petitioner found his way to this court via the present petition, posing the question whether or not the public respondent acted with grave abuse of discretion amounting to lack or excess of jurisdiction in upholding the denial of the motion to dismiss by the trial court, and holding that an action for support cannot be barred by res judicata. To buttress his submission, petitioner invokes the previous dismissal of the Complaint for maintenance and support, Civil Case Q-88-935, filed by the mother and guardian of the minor, Glen Camil Andres de Asis, (the herein private respondent). In said case, the complainant manifested that because of the defendants judicial declaration denying that he is the father of subject minor child, it was futile and a useless exercise to claim support from defendant. Because of such manifestation, and defendants assurance that he would not pursue his counterclaim anymore, the parties mutually agreed to move for the dismissal of the complaint. The motion was granted by the Quezon City Regional Trial Court, which then dismissed the case with prejudice. Petitioner contends that the aforecited manifestation, in effect, admitted the lack of filiation between him and the minor child, which admission binds the complainant, and since the obligation to give support is based on the existence of paternity and filiation between the child and the putative parent, the lack thereof negates the right to claim for support. Thus, petitioner maintains that the dismissal of the Complaint by the lower court on the basis of the said manifestation bars the present action for support, especially so because the order of the trial court explicitly stated that the dismissal of the case was with prejudice. The petition is not impressed with merit. The right to receive support can neither be renounced nor transmitted to a third person. Article 301 of the Civil Code, the law in point, reads:

Art. 301. The right to receive support cannot be renounced, nor can it be transmitted to a third person. Neither can it be compensated with what the recipient owes the obligor. xxx Furthermore, future support cannot be the subject of a compromise. Article 2035, ibid, provides, that: No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or legal separation; (3) Any ground for legal separation (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. The raison d etre behind the proscription against renunciation, transmission and/or compromise of the right to support is stated, thus: The right to support being founded upon the need of the recipient to maintain his existence, he is not entitled to renounce or transfer the right for this would mean sanctioning the voluntary giving up of life itself. The right to life cannot be renounced; hence, support, which is the means to attain the former, cannot be renounced. xxx To allow renunciation or transmission or compensation of the family right of a person to support is virtually to allow either suicide or the conversion of the recipient to a public burden. This is contrary to public policy.clxiv[4] In the case at bar, respondent minors mother, who was the plaintiff in the first case, manifested that she was withdrawing the case as it seemed futile to claim support from petitioner who denied his paternity over the child. Since the right to claim for support is predicated on the existence of filiation between the minor child and the putative parent, petitioner would like us to believe that such manifestation admitting the futility of claiming support from him puts the issue to rest and bars any and all future complaint for support. The manifestation sent in by respondents mother in the first case, which acknowledged that it would be useless to pursue its complaint for support, amounted to renunciation as it severed the vinculum that gives the minor, Glen Camil, the right to claim support from his putative parent, the petitioner. Furthermore, the agreement entered into between the petitioner and respondents mother for the dismissal of the complaint for maintenance and support conditioned upon the dismissal of the counterclaim is in the nature of a compromise which cannot be countenanced. It violates the prohibition against any compromise of the right to support. Thus, the admission made by counsel for the wife of the facts alleged in a motion of the husband, in which the latter prayed that his obligation to support be extinguished cannot be considered as an assent to the prayer, and much less, as a waiver of the right to claim for support.clxv[5] It is true that in order to claim support, filiation and/or paternity must first be shown between the claimant and the parent. However, paternity and filiation or the lack of the same is a relationship that must be judicially established and it is for the court to declare its existence or absence. It cannot be left to the will or agreement of the parties. The civil status of a son having been denied, and this civil status, from which the right to support is derived being in issue, it is apparent that no effect can be given to such a claim until an authoritative declaration has been made as to the existence of the cause.clxvi[6]

Although in the case under scrutiny, the admission may be binding upon the respondent, such an admission is at most evidentiary and does not conclusively establish the lack of filiation. Neither are we persuaded by petitioners theory that the dismissal with prejudice of Civil Case Q-88-935 has the effect of res judicata on the subsequent case for support. The case of Advincula vs. Advinculaclxvii[7] comes to the fore. In Advincula, the minor, Manuela Advincula, instituted a case for acknowledgment and support against her putative father, Manuel Advincula. On motion of both parties and for the reason that the plaintiff has lost interest and is no longer interested in continuing the case against the defendant and has no further evidence to introduce in support of the complaint, the case was dismissed. Thereafter, a similar case was instituted by Manuela, which the defendant moved to dismiss, theorizing that the dismissal of the first case precluded the filing of the second case. In disposing such case, this Court ruled, thus: The new Civil Code provides that the allowance for support is provisional because the amount may be increased or decreased depending upon the means of the giver and the needs of the recipient (Art. 297); and that the right to receive support cannot be renounced nor can it be transmitted to a third person; neither can it be compensated with what the recipient owes the obligator (Art. 301). Furthermore, the right to support can not be waived or transferred to third parties and future support cannot be the subject of compromise (Art. 2035; Coral v. Gallego, 38 O.G. 3135, cited in IV Civil Code by Padilla, p. 648, 1956 Ed.). This being true, it is indisputable that the present action for support can be brought, notwithstanding the fact the previous case filed against the same defendant was dismissed. And it also appearing that the dismissal of Civil Case No. 3553, was not an adjudication upon the merits, as heretofore shown, the right of herein plaintiff-appellant to reiterate her suit for support and acknowledgment is available, as her needs arise. Once the needs of plaintiff arise, she has the right to bring an action for support, for it is only then that her cause of action accrues.xxx xxx It appears that the former dismissal was predicated upon a compromise. Acknowledgment, affecting as it does the civil status of persons and future support, cannot be the subject of compromise. (pars. 1 & 4, Art. 2035, Civil Code). Hence, the first dismissal cannot have force and effect and can not bar the filing of another action, asking for the same relief against the same defendant.(emphasis supplied) Conformably, notwithstanding the dismissal of Civil Case 88-935 and the lower courts pronouncement that such dismissal was with prejudice, the second action for support may still prosper. WHEREFORE, the petition under consideration is hereby DISMISSED and the decision of the Court of Appeals AFFIRMED. No pronouncement as to costs. -RONDINA vs. PEOPLE Sadly, this is yet another case of a lass pitilessly stripped of her innocence. In this Petition for Review on Certiorari, petitioner Victor Rondina (Victor) assails the Decision [1] dated July 24, 2007 of the Court of Appeals (CA) in CAG.R. CR-HC No. 00185 which affirmed with modification the Judgment [2] of the Regional Trial Court (RTC), Ormoc City, Branch 35 in Criminal Case No. 5548-0 finding him guilty beyond reasonable doubt of the crime of rape. Factual Antecedents On March 29, 1999, the City Prosecution Office of Ormoc City filed with the RTC an Information [3] charging Victor as follows: That on or about the 15th day of July 1998, at around 4:00 oclock in the afternoon, at DDD, [Ormoc City], and within the jurisdiction of this Honorable Court, the above-named accused: VICTOR RONDINA, being then armed with a knife and by means of force, threat and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge [of] the complainant herein, AAA [4] - a sixteen (16) year old lass, against her will. [5]

On arraignment, Victor pleaded not guilty to the crime charged. [6] Pre-trial and trial thereafter ensued. Version of the Prosecution In 1998, AAA was a young girl of 16 who was in second year high school. The youngest and the only girl among a brood of four, she lived with her parents and siblings in a rented house located in DDD, Ormoc City. On July 15, 1998, AAA, upon arriving home from school at around 4:00 p.m., immediately proceeded to the toilet to defecate. The said toilet, constructed of hollow blocks with G.I.-sheet roofing, had only a tie-wire as lock. It was located outside AAAs house and was being used as a communal toilet by the occupants of nearby houses. Once inside, AAA immediately took off her panty and relieved herself, forgetting to lock the door. [7] After washing her anus, AAA was surprised when Victor, a neighbor, suddenly entered the toilet with only a towel covering himself from the waist down. Victor immediately removed the towel from his waist as well as his brief. He then poked a knife on AAAs neck, covered her mouth and threatened her by saying [d]ont ever tell anybody otherwise I will kill your parents, your siblings including yourself. [8] Because her mouth was covered, AAA was not able to shout. [9] Victor ordered AAA to stand against the wall with her hands on both sides [10] and forcefully inserted his penis into AAAs vagina. [11] AAA felt pain. [12] After a while, she felt a liquid-like substance discharged from Victors penis. [13] When Victor had already satisfied his bestial desire, he again wrapped the towel around his waist [14] and before getting out of the toilet uttered do not tell your mother or else I will kill you. [15] AAA did not immediately tell anyone of her misfortune and just kept on crying. However, it came to the point where she could no longer keep silent so that a few months after the incident, AAA finally told her mother BBB that Victor raped her. [16] When BBB had AAA examined by physicians, it was discovered that aside from having healed hymenal lacerations, AAA was more or less six months pregnant, viz: OB-GYNE NOTES G1 P0 LMP July, 1998 (1st week) EDC April, 1999 (2nd week) Abdomen soft, uterus palpable with fundal height of 23 cms. Fetal heart tone not appreciated Quickening noted December, 1998 Visual Vulva Examination pubic hair - present no inflammations - noted. no fresh lacerations. hymen with healed lacerations at the 3 oclock, 5 oclock and 9 o clock positions Vaginal opening admits two examining fingers freely

Pelvic Ultrasound Result: Single live intrauterine pregnancy with mean AOG of 24 weeks and 2 days by BPD and FL. [17]

Hence, Victor was charged with the crime of rape. During the pendency of the proceedings and after about nine months from the date of the alleged incident, AAA gave birth to a baby girl, CCC, on May 1, 1999. Version of the Defense Victor interposed the defense of denial and alibi. He averred that he could not have raped AAA at 4:00 oclock in the afternoon of July 15, 1998 because during that time, he was in a cockpit in Brgy. Macabug, Ormoc City. He went there at 2:00 p.m. with Alex Oliveros (Alex) and Ruben Bertulfo. [18] He could still very well remember the cockfight on that particular day as same was held because of the approaching fiesta of Macabug on July 25 and also because he won. He even gave part of his winnings to Alex for the latter to spend on his birthday. [19] It was already around 5:30 p.m. when Victor and his companions left Macabug. From Macabug, he and Alex headed to the public market of Ormoc City and bought viand. [20] After that, the two of them went to their respective homes. Victor arrived home at around 6:00 p.m.

vs. APAT [114 SCRA 620] which ruling is squarely applicable to the facts in the present case; Ruling of the Regional Trial Court With two conflicting versions before it, the RTC declared the issue to be one of credibility, that is, whether AAAs claim that she was raped by Victor vis--vis the latters denial and alibi, is credible, convincing and satisfactory as to hold the latter guilty beyond reasonable doubt of the crime of rape. [21] In resolving the case, the court held that the prosecution was able to duly establish all the elements of rape. It gave much credence to AAAs testimony since it observed that the latter, despite some inconsistencies in her testimony during trial, narrated her travails at the hands of Victor in an earnest, spontaneous and straightforward manner. She was able to give all the core elements of rape in her narration. As to the inconsistencies, the RTC chose to brush them aside as it found them to be minor inconsistencies which only tend to bolster rather than weaken the rape victims credibility as they show that her testimony was not contrived. [22] The RTC then declared itself convinced that the prosecution, by its own evidence, was able to prove the guilt of the accused beyond reasonable doubt. Hence, the dispositive portion of its Judgment [23] dated June 7, 2000: WHEREFORE, after considering all the foregoing, the Court finds the accused Victor Rondina GUILTY beyond reasonable doubt of the crime of Rape as charged in the information and, accordingly, without any finding as to mitigating and aggravating circumstances, hereby sentences him to suffer imprisonment of Forty (40) years reclusion perpetua, to pay the offended party the sum of P75,000.00 as indemnity, P50,000.00 as moral damages, and costs; also to acknowledge the offspring [CCC] and to give her support. xxxx SO ORDERED. [24] 3. The Honorable Court of Appeals and the Honorable Regional Trial Court committed serious error of law and grave abuse of discretion when it declared that the petitioner x x x failed to show any improper motive on the part of the private complainant, which would have prompted the latter to file false claims against the petitioner; 4. The Honorable Court of Appeals and the Honorable Regional Trial Court committed serious error of law and grave abuse of discretion when it merely brushed aside the alibi of the petitioner not taking into account that while alibi may be considered a weak defense, such alibi could work to exculpate the petitioner as such alibi is the truth and is sufficiently corroborated; 5. The Honorable Court of Appeals and the Honorable Regional Trial Court committed serious error of law and grave abuse of discretion when it rendered and affirmed a judgment of conviction despite the failure of the prosecution to prove his guilt beyond reasonable doubt. [33]

Our Ruling

The petition is devoid of merit. The lower courts did not err in giving full faith and credence to AAAs testimony. Victor avers that the lower courts, in resolving the case, failed to apply the Courts pronouncement in People v. Ruales, [34] viz; In deciding rape cases, we have been guided by the following wellestablished principles: (a) an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (b) due to the nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (c) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. [35] The Court had consistently acknowledged that [a]t the core of almost all rape cases, the credibility of the victims testimony is crucial in view of the intrinsic nature of the crime where only the participants therein can testify to its occurrence. [36] Hence, the testimony of the complainant must be examined with extreme care for, whether the case results in conviction or in acquittal, the final outcome would almost invariably be dependent on what the victim declares and on how she has stood and comported herself at the witness stand during questioning. [37] We have carefully examined the records of this case and hold that the lower courts did not commit reversible error in according superior weight to AAAs testimony. It is worthy to note that before AAA was put on the witness stand, the RTC directed the Department of Social Welfare and Development (DSWD) to cause her to be subjected to a psychological examination. [38] This was due to the prosecutions claim that AAA was then emotionally unstable. In compliance therewith, the DSWD submitted to the court the result of the Psychiatric Evaluation and Mental Status Examination [39] performed upon AAA indicating that she was suffering from organic brain disease which is mental retardation. She could, however, undergo trial albeit with assistance because of her sub-average general intellectual functioning. [40] Notwithstanding AAAs mental condition, the Court notes that she was still able to recount the details of her traumatic experience in a credible, convincing and straightforward manner and therefore her testimony bears the ring of truth. She testified as follows: Q: inside? You said that you were already inside the toilet, what did you do I defecated.

Victor filed a Notice of Appeal [25] which was granted by the RTC in its Order [26] of June 28, 2000. After the elevation of the records of the case, this Court accepted the appeal on February 21, 2001. [27] Conformably, however, with the Courts ruling in People v. Mateo, [28] the case was subsequently transferred to the CA for appropriate action and disposition. [29] Ruling of the Court of Appeals In his brief, [30] Victor averred that the RTC should not have given full faith and credence to AAAs testimony for the following reasons: (1) AAA reported the crime only after five months from its alleged occurrence; (2) the rape could not have been committed in the said toilet because of the presence of the occupants of nearby houses; (3) it was unimaginable and improbable to commit the rape in the manner and position narrated by AAA; (4) AAAs testimony was full of inconsistencies; and (5) AAA was impelled by other motive in filing the charge against him. The CA, however, found no compelling reason to depart from the RTCs ruling. Aside from reducing the award of civil indemnity from P75,000.00 to P50,000.00, it affirmed the trial courts judgment in all other respects in a Decision [31] dated July 24, 2007, thus: WHEREFORE, premises considered, except for the MODIFICATION in the award of civil indemnity as aforementioned, the trial courts Decision dated June 7, 2000 is hereby AFFIRMED as to all other respects. SO ORDERED. [32] Hence, Victor comes to this Court to seek a reversal of his conviction. Assignment of Errors Victor ascribes upon the lower courts the following errors:

1. The Honorable Court of Appeals and the Honorable Regional Trial Court committed serious error of law and grave abuse of discretion when it did not apply the ruling of this Honorable Supreme Court in PEOPLE OF THE PHILIPPINES vs. CRISPIN T. RUALES [G.R. No. 149810, August 28, 2003] to the effect that due to the nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution and that the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense. 2. The Honorable Court of Appeals and the Honorable Regional Trial Court committed serious error of law and grave abuse of discretion when it did not apply the ruling of this Honorable Supreme Court in PEOPLE OF THE PHILIPPINES

A: xxxx Q: A: Q: A: Q: A:

While you were inside what happened? He inserted his penis [into] my vagina. To whom are you referring the pronoun he? Victor. Are you referring to the accused in this case Victor Rondina? Yes, sir.

Q: A: xxxx Q: into your vagina? A: Q: female organ? A: Q: A: Q: A: Q: A: old].

Are you telling us that he went inside the toilet? Yes, sir.

Q: did he do?

After youve noticed that he had already ejaculated, what else

A: When he was about to get out, he said that do not tell your mother or else I will kill you. [42] Where [did] this incident [take] place[,] his insertion of his penis Inside the toilet. What was your position when he inserted his penis [into] your He made me lean against the wall. You mean to say that you were in the standing position? Yes, sir. Did you not resist x x x the sexual advances of the accused. I resist[ed]. In what manner? He told me, do not kuan because [youre still young and Im When asked by the trial court to demonstrate her position during the alleged sexual intercourse, AAA even readily made a physical illustration of the same: Q: sexual intercourse? A: You were in the straight standing position during the alleged Yes, your Honor.

Q: [As a] preliminary to the ocular inspection, the Court would like you to make the physical illustration as to your position. This is now [the] wall of the courtroom, imagine that, that wall is the wall of the toilet. Illustrate how you were standing at the time that you were sexually molested. COURT INTERPRETER: The witness illustrate[s] to the Court by standing [with] her back leaning against the wall with hands on both sides. Q: Were you not in a squatting position? A: No your honor, I just position[ed] myself like this. (As the witness earlier demonstrated to the Court). [43]

Q: What do you mean by saying the word dont? A: What I mean is that, when I was in the toilet, I was poked with a knife and I was not able to shout because my mouth was covered. Q: A: neck.) Q: A: Q: weapon? COURT INTERPRETER: The witness estimated the length at about 5 inches. Q: A: Q: A: Q: A: Q: accused? A: Dont you ever tell anybody otherwise I will kill your parents, your siblings including yourself. [41] xxxx Q: While his male organ was inside yours, what else did he do? A: That is what Ive told you sir, that he told me that [once] you tell anybody Ill kill your parents. xxxx Q: A: xxxx Q: A: Was there anything that you [felt]? Yes, sir. What did you notice from his penis if any? [Felt] different. That excludes the handle? It does not. So that size consist[s] only of the blade? Yes, sir. Did he say anything when he poked the knife in your neck? Yes, sir. Would you recall what [were] the utterances made by the Did you see the weapon. Yes, sir. Will you please describe to us the length and the size of the In what part of your body was the knife being poked? In my neck. (And the witness pointed to [the] left side of her

With her intelligence level, it is hard to believe that her testimony had been rehearsed as Victor would want to put it. If such was the case, AAAs testimony would have eventually fallen apart. However, as shown above and except for a few minor inconsistencies and some difficulty in understanding the questions propounded to her, [44] AAA was still able to testify with definiteness on the material details of her harrowing experience at the hands of Victor. Victor avers that the manner in which the rape was committed, as narrated by AAA, defies imagination, is incredible and contrary to human experience. He calls attention to AAAs testimony during cross examination that his left hand was covering her mouth while his right hand was poking the knife at her the entire duration of the alleged sexual intercourse. Given the circumstances, Victor implies that it was improbable for him to penetrate AAAs vagina in a standing position considering that his two hands, as testified to by AAA, were not free and that AAA was moving to resist the penetration. Victor thus invokes the case of People v. Apat [45] where the Court pronounced as follows: 3. The manner by which the appellant allegedly raped Gregoria, as narrated by her, defies the imagination. It may hardly be envisioned how a man can successfully consummate the sexual act on an unwilling woman with his left hand placed over her mouth (supposedly to prevent her from shouting for help) and with his right hand x x x holding a hunting knife pointed at the womans forehead and, while so positioned, was able to manage to remove the pantie of the woman, spread her legs, unbutton his short pants, and perform the sexual intercourse. [46] Victor likewise cites the following inconsistencies in AAAs testimony: (1) AAA stated in her direct examination that on the day of the alleged rape, she came home from school at 4:00 p.m. On cross examination, however, she testified that she just stayed home the whole day; and (2) in AAAs Affidavit [47] executed on January 29, 1999, she stated that Victor was wearing shorts when he entered the toilet and that it was the latter who took off her underwear. But later on direct examination, she claimed that she was the one who removed her underwear and that Victor was wearing a towel and a brief. Despite all these, the lower courts still chose to treat AAAs testimony as gospel truth instead of considering her irreconcilable contradictions as sufficient grounds to create doubt in Victors favor. We have gone over the records and observed that both on cross and recross examinations, AAA answered yes when asked by the defense counsel if at the time Victor inserted his penis into her vagina, he was also covering her mouth with one hand and poking a knife on her neck with the other. [48] In re-direct examination, however, AAA testified as follows: Q: You told us earlier that you tried to keep on moving while the accused inserted his penis into your vagina if only to prevent [him] from penetrating you, is that correct? A: Yes, sir. Q: you? A: Q: A: He really penetrate[d] it and he insert[ed] it. Easily or forcefully? Forcefully. [49] If you keep on moving, how is it that he was able to penetrate

Q: What? A: He inserted his penis [into] my vagina and there was some kind of apple-apple or a liquid like substance. Q: female organ? A: Q: A: Q: A: What did you do [in] that instance that his penis was inside your It [felt] so different for me. Did you like it? No sir. Did you feel pain? Yes, sir.

satisfy a personal grudge or anger against the accused. [59] Upon inquiry by the Court, AAA answered: Victors alibi cannot prevail over AAAs positive identification of him as her rapist. COURT to the witness Q: or what? A: Q: A: Yes, your Honor. Which hand did he [use] if you can recall? Left. In what manner did he [insert] his penis? Did he [use] his hands Victor contends that the lower courts erred in brushing aside his defense of alibi on the sole ground that it is inherently weak. He avers that proving that he was not at the place of the alleged incident when it happened is the most plausible defense against the charges hurled upon him. Besides, his alibi that he was in Brgy. Macabug, Ormoc City at the time of the alleged rape is corroborated by the testimony of Alex, who was with him during that time. In order for the defense of alibi to prosper, two requisites must concur: first, the appellant was at a different place at the time the crime was committed, and second, it was physically impossible for him to be at the crime scene at the time of its commission. [60] In this case, the second requisite is not met. Victor himself testified that the distance between Brgy. Macabug and the place where the rape occurred is just three to four kilometers and that the same can be traversed by land transportation in just a few minutes. [61] Hence, it was not physically impossible for him to be at the crime scene at the time of the commission of the crime. Also, even if Victors alibi is corroborated by Alex, said defense is still unworthy of belief. Alex admitted that Victor was his employer [62] and that he was testifying for Victor as he relied on him for livelihood. [63] [I]t has been held that alibi becomes more unworthy of merit where it is established mainly by the accused himself and his or her relatives, friends, and comrades-in-arms and not by credible persons. [64] Moreover and most importantly, denial and alibi are practically worthless against the positive identification made by the prosecution witnesses, especially by the rape victim. [65] Victors weak alibi cannot thus overcome AAAs positive identification of him as her rapist. The lower courts did not err in convicting Victor of the crime of rape.

Q: Does it mean that his left hand was holding his penis in guiding it towards the inside of your vagina? A: Yes, your Honor. [50] From AAAs testimony, it can be inferred that the covering of the mouth, the poking of the knife and the insertion of Victors penis into her vagina were all happening at almost the same time. Hence, it is not difficult to understand why AAA answered yes when asked by the defense counsel if Victor was covering her mouth and poking a knife at her neck when he inserted his penis into her vagina. Moreover, [r]ape is a painful experience which is oftentimes not remembered in detail. For such an offense is not analogous to a persons achievement or accomplishment as to be worth recalling or reliving; rather, it is something which causes deep psychological wounds and casts a stigma upon the victim, scarring her psyche for life and which her conscious and subconscious mind would opt to forget. Thus, a rape victim cannot be expected to mechanically keep and then give an accurate account of the traumatic and horrifying experience she had undergone. [51] In this case, AAA was just 16 years old when she was cruelly abused by Victor. She was also later found possessed of low level intelligence. A fortiori, we must accord to her greater understanding, consideration, and sensitivity as she relives, through her testimony, her harrowing [experience] at [Victors] hands. [52] This also goes true with respect to the inconsistencies pointed out by Victor, which the Court finds too flimsy and trivial to merit serious consideration. [53] To reiterate, it is not unnatural to find minor discrepancies in the testimony of a rape victim as she cannot be expected to remember every minute detail of her ordeal. [54] Furthermore, AAAs testimony is corroborated by the doctors findings that she was pregnant and that her hymen has healed lacerations at 3 oclock, 5 oclock and 9 oclock positions. Dr. Ma. Esperanza S. Agudo testified that these lacerations could have been caused by sexual intercourse. [55] Where a rape victims testimony is corroborated by the physical findings of penetration, there is sufficient basis for concluding that sexual intercourse did take place. [56] Thus, there being no compelling reason to deviate from the lower courts appreciation of AAAs testimony, the Court gives deference to the wellsettled rule that the assessment of the credibility of witnesses and their testimonies is best undertaken by a trial court, whose findings are binding and conclusive on appellate courts. Matters affecting credibility are best left to the trial court because of its unique opportunity to observe the elusive and incommunicable evidence of that witness deportment on the stand while testifying, an opportunity denied to the appellate courts which usually rely on the cold pages of the silent records of the case. [57] Victors imputation of ill motive on the part of AAA and her family deserves scant consideration. Victor contends that AAA and her family harbored a grudge against him. He claims that AAAs family, who used to rent the house owned by the aunt of Victors wife, was made to vacate the same so that his family could occupy it instead. And as the pleas of AAAs family to continue occupying the house were ignored, charges were filed against him. The Court, however, is unconvinced. Motives such as family feuds, resentment, hatred or revenge have never swayed this Court from giving full credence to the testimony of a rape victim. Also, ill motives become inconsequential if there is an affirmative and credible declaration from the rape victim, which clearly establishes the liability of the accused. In the present case, AAA categorically identified [Victor] as the one who defiled her. Her account of the incident, as found by the RTC, the Court of Appeals, and this Court, was sincere and truthful. Hence, petitioners x x x flimsy allegation of ill motive is immaterial. [58] Besides, it is difficult to believe that AAAs family would stoop so low as to subject her to physical hardship and disgrace that usually accompany the prosecution of rape just to relieve hurt feelings. Indeed, it is highly inconceivable that any family would willfully and deliberately corrupt the innocent mind of its minor member and put into her lips the lewd description of a carnal act just to

All told, we hold that neither did the RTC err in finding Victor guilty beyond reasonable doubt of the crime of rape nor did the CA in affirming said conviction. As aptly declared by the appellate court, the prosecution has sufficiently established that Victor had carnal knowledge of AAA against her will and consent. We subscribe to the same. Damages awarded The CA was correct in reducing the award of civil indemnity from P75,000.00 to P50,000.00. In cases of simple rape as in this case, civil indemnity of P50,000.00 is automatically awarded without need of pleading or proof. [66] However, we note that the both the RTC and the CA failed to make an award for exemplary damages. Under Article 2229 of the Civil Code, exemplary damages are imposed by way of example or correction for the public good. Exemplary damages are intended to serve as deterrent to serious wrongdoings, as a vindication of undue sufferings and wanton invasion of the rights of an injured, or as punishment for those guilty of outrageous conduct. Being corrective in nature, exemplary damages can be awarded, not only in the presence of an aggravating circumstance, but also where the circumstances of the case show the highly reprehensible or outrageous conduct of the offender. [67] Here, Victor raped a minor, AAA, with the use of a knife, threatened to kill her and her family if she tells them of her ordeal, and even got her pregnant. Victor should therefore pay AAA exemplary damages in the amount of P30,000.00 in line with existing jurisprudence. [68] Also, interest at the rate of 6% per annum is imposed on all damages awarded from the date of finality of this judgment until fully paid. [69] Support of the offspring CCC The RTC ordered Victor to acknowledge AAAs offspring CCC and give her support. Article 345 of the Revised Penal Code provides for three different kinds of civil liability that may be imposed on the offender: a) indemnification, b) acknowledgement of the offspring, unless the law should prevent him from so doing, and c) in every case to support the offspring. With the passage of the Family Code, the classification of acknowledged natural children and natural children by legal fiction was eliminated and they now fall under the specie of illegitimate children. Since parental authority is vested by Article 176 of the Family Code upon the mother and considering that an offender sentenced to reclusion perpetua automatically loses the power to exercise parental authority over his children, no further positive act is required of the parent as the law itself provides for the childs status. Hence, [Victor] should only be ordered to indemnify and support the victims child. [70] The amount [and terms] of support shall be determined by the trial court after due notice and hearing in accordance with Article 201 [71] of the Family Code. [72] WHEREFORE, the Decision dated July 24, 2007 of the Court of Appeals in CA-G.R. CR-HC No. 00185 is AFFIRMED with MODIFICATIONS as follows:

1) Petitioner Victor Rondina is ordered to pay AAA P30,000.00 as exemplary damages. 2) Interest at the rate of 6% per annum is imposed on all the damages awarded in this case from the date of the finality of this judgment until fully paid. 3) Petitioner Victor Rondina is further ordered to give support to AAAs offspring, CCC, in such amount and under such terms to be determined by the Regional Trial Court of Ormoc City in a proper proceeding with support arrears to be reckoned from the finality of this Decision. --

to the motion, pointing out that for the previous three years the respondent did not ask for the enforcement of the orders and her belated move came only "after petitioner had filed new adultery charges against her and her second paramour" and after the petitioner had sought custody of their son Gregory; (4) that in connection with the first adultery charge, the respondent and her co-accused, Teddy Ramirez, had been convicted by the Court of First Instance of Rizal in its decision rendered on September 26, 1972 and said judgment of conviction was pending appeal in the Court of Appeals; (5) that Judge Luciano issued an order dated January 19, 1974, ordering the petitioner to pay the respondent the awarded support pendente lite within 15 days; and (6) that unless the lower court was enjoined from enforcing its assailed orders, the present petition would be rendered moot and academic, to the prejudice of the petitioner. On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a temporary restraining order effective immediately and until further orders from this Court." The order was addressed to Judge Luciano, her agents and representatives. Required to comment on the petitioner's urgent motion for preliminary injunction, the respondent filed an opposition, with a prayer for the immediate lifting of the temporary restraining order issued ex-parte. The opposition reiterated the grounds of her motion dated December 5, 1973 filed in the lower court, to wit: (1) that an order granting support pendente lite, although interlocutory, is immediately executory even if appealed, unless enjoined; (2) that the dismissal of the petition by the respondent Court of Appeals rendered functus oficio the writ of preliminary injunction it had previously issued; and (3) that under Article 292 of the New Civil Code, which provides that "during the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property ...," such support is mandatory even if there be a showing that the wife is guilty of adultery. In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a writ of preliminary injunction. On February 28, 1974 the petitioner filed this instant motion for reconsideration. On March 6, 1974 We issued another resolution setting aside the resolution of February 8, 1974 and reinstated the temporary restraining order previously issued until further orders. On the same day the respondent filed her opposition to the motion for reconsideration and later asked that it be set for oral argument. The petitioner's pending motion was set for hearing on April 22, 1974 and then reset for May 20, 1974. On the latter date counsel for both parties appeared. In lieu, however, of oral argument the Court allowed them to file memoranda. The petition assails the resolution of the respondent Court of Appeals on two main grounds: I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE LOWER COURT, IN GRANTING SUPPORT PENDENTE LITE TO RESPONDENT CONCEPCION DIAZ, DID NOT COMMIT A GRAVE ABUSE OF DISCRETION. II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF ARTICLE 292 OF THE CIVIL CODE MAKE IT MANDATORY DURING THE PENDENCY OF LEGAL SEPARATION PROCEEDINGS TO GRANT SUPPORT PENDENTE LITE TO HEREIN RESPONDENT. The foregoing alleged errors refer to the two aspects, procedural and substantive, of the disputed orders granting support pendente lite. As correctly stated by the respondent court in its decision (which was later reconsidered in its resolution under review), the procedural law on support pendente lite is Rule 61 of the Revised Rules of Court, specifically Section 5 thereof, which partly provides: The court shall determine provisionally the pertinent facts, and shall render such order as equity and justice may require, having due regard to the necessities of the applicant, the means of the adverse party, the probable outcome of the case, and such other circumstances as may aid in the proper elucidation of the questions involved. ...

TEODORO E. LERMA vs. THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma on March 21, 1971 to set aside the resolution of the respondent Court of Appeals in CA-G.R. No. 44906-R dismissing his petition for certiorari and prohibition with preliminary injunction filed therein; and (2) the petitioner's motion for reconsideration of our resolution dated February 8, 1974 denying his urgent motion for the issuance of a writ of preliminary injunction and/or restraining order to enjoin the enforcement of certain orders of the Juvenile and Domestic Relations Court of Quezon City (hereinafter referred to as the lower court) ordering the petitioner to pay support pendente lite to Concepcion Diaz, the private respondent herein. Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951. On August 22, 1969 the petitioner filed a complaint for adultery against the respondent and a certain Teodoro Ramirez (Crim. Case No. 0519 of the Court of First Instance of Rizal). On November 18, 1969 the respondent filed with the lower court, presided by Judge Leonor Ines Luciano, a complaint 1 against the petitioner for legal separation and/or separation of properties, custody of their children 2 and support, with an urgent petition for support pendente lite for her and their youngest son, Gregory, who was then and until now is in her custody. The respondent's complaint for legal separation is based on two grounds: concubinage and attempt against her life. The petitioner filed his opposition to the respondent's application for support pendente lite, setting up as defense the adultery charge he had filed against the respondent. Judge Luciano granted the respondent's application for support pendente lite in an order dated December 24, 1969, which she amended in an order dated February 15, 1970 to the following effect: (1) the respondent was declared entitled to support pendente lite from the date of the filing of the complaint; and (2) the amount of such monthly support was reduced from P2,250.00 to P1,820.00. On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorari and prohibition with preliminary injunction to annul the aforementioned orders on the ground that they were issued with grave abuse of discretion. The next day the respondent court gave due course to the petition and issued a writ of preliminary injunction to stop Judge Luciano from enforcing said orders. The respondent court, in its decision of October 8, 1970, set aside the assailed orders and granted the petitioner an opportunity to present evidence before the lower court in support of his defense against the application for support pendente lite. The respondent moved to reconsider the decision on the ground that the petitioner had not asked that he be allowed to present evidence in the lower court. The respondent court, in its resolution of January 20, 1971, set aside the decision of October 8 and rendered another, dismissing the petition. This is now the subject of the instant proceeding for review. On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction and/or restraining order, alleging (1) that during the pendency of this appeal and until December 5, 1973 the respondent had never sought the enforcement of the assailed orders of the lower court granting support pendente lite; (2) that on December 5, 1973 the respondent filed with the lower court an urgent motion praying that the petitioner be ordered to pay the awarded support pendente lite, both current and in arrears, on the ground that in the absence of an injunction from this Court the assailed orders should be executed; (3) that the petitioner filed his opposition

The petitioner maintains that the above-quoted provision was disregarded by the lower court when it issued the disputed orders without provisionally determining the pertinent facts of the case, particularly insofar as they might have a bearing on its probable outcome, merely relying on the bare allegations of the complaint. The petitioner also claims he was deprived of the opportunity to present evidence in support of his defense of adultery against the respondent's application for support pendente lite. The question of whether or not the petitioner should be allowed to present evidence in the lower court in support of that his wife had committed adultery has become academic. The petitioner, in his motion filed February 28, 1974 for reconsideration of the denial by this Court of his petition for preliminary injunction, manifested that on September 26, 1972 the court of First Instance of Rizal decided the adultery case of the respondent and found her and her co-accused, Teodoro Ramirez, guilty of the charge, sentencing them to a term of imprisonment. This has not been denied by the respondent. Neither is it denied that on March 30, 1970, as a result of the adulterous relations with Teodoro Ramirez for which she was later on convicted, the said respondent gave birth prematurely to a baby boy, who however died the same day. When the respondent entered the hospital for delivery, she registered under the assumed name of "Gloria Santos," and when the child died had it falsely identified in the death certificate as the child of one Rosario R. Salita, a close friend of hers. For the falsification thus committed Rosario E. Salita was criminally charged and convicted, although the respondent herself was acquitted on reasonable doubt. The petitioner's motion of February 28 also states, without denial on the part of the respondent, that after Teodoro Ramirez another man, this time a Manila policeman by the name of Jose Gochangco, became her paramour, as a consequence of which criminal charges of adultery have been filed against them before the Fiscal of Manila. Photographs of the two, showing them in intimate pose, were submitted to this Court. Their veracity has not been disputed. The legal issue posed by the foregoing facts is whether adultery is a good defense against the respondent's claim for support pendente lite. In Quintana v. Lerma, 24 Phil. 285, which was an action by the wife against the husband for support, based upon a written contract, this Court held that adultery is a good defense. This ruling was reiterated in the subsequent cases of Sanchez v. Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See also Olayvar v. Olayvar, 98 Phil. 52. The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied on Article 292 of the Civil Code, which reads: ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the conjugal partnership property. After the final judgment of legal separation, or of annulment of marriage, the obligation of mutual support between the spouses ceases. However, in case of legal separation, the court may order that the guilty spouse shall give support to the innocent one, the judgment specifying the terms of such order. It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership property. We do not see that the distinction is material in this case. In the first place Article 292 is not in itself the source of the legal right to receive support. It merely states that the support, not only of the spouses but also of the children, shall be taken from the conjugal property during the pendency of the legal separation proceeding. It does not preclude the loss of such right in certain cases. In the second place, the said article contemplates the pendency of a court action and, inferentially at least, a prima facie showing that the action will prosper. For if the action is shown to be groundless the mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5 of Rule 61, supra, which requires, among other things, when support pendente lite is applied for, that the court determine provisionally "the probable outcome of the case." Article 100 of the Civil Code provides that "the legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage ... (and) where both spouses are offenders, a legal separation cannot be claimed by either of them ..."

In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the respondent's suit for legal separation can be foreseen since she is not an innocent spouse, having been convicted of adultery by the Court of First Instance. It is true that the judgment of conviction is on appeal in the Court of Appeals, but the same undoubtedly satisfies the standard of provisional showing set by the aforesaid Rule. If legal separation cannot be claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be permitted to be used as a means to obtain support pendente lite, which, without such action, would be denied on the strength of the decisions of this Court recognizing adultery as a good defense. Otherwise, as pointed out by the petitioner, all that an erring spouse has to do to circumvent such defense would be to file a suit for legal separation no matter how groundless. The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil Code, which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the intendment of the law granting separate support. In fact under Article 303 of the same Code the obligation to give support shall cease "when the recipient, be he a forced heir or not, has committed some act which gives rise to disinheritance;" and under Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause for legal separation." The loss of the substantive right to support in such a situation is incompatible with any claim for support pendente lite. What has been said above, of course, is not meant to be a prejudgment of either the legal separation proceeding pending in the lower court or the criminal case for adultery pending in the Court of Appeals. It is to be understood only in the light of Rule 61, Section 5, of the Rules of Court, which specifically governs the subject of support pendente lite. WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the orders of respondent Juvenile and Domestic Relations Court herein complained of, dated December 24, 1969 and February 15, 1970, all are set aside and their enforcement enjoined, without prejudice to such judgment as may be rendered in the pending action for legal separation between the parties. No pronouncement as to costs. --

MANUEL J.C. REYES, Petitioner, vs. HON. LEONOR INES-LUCIANO, as Judge of the Juvenile and Domestic Relations Court, Quezon City, COURT OF APPEALS and CELIA ILUSTRE-REYES, Respondents. This is a motion for reconsideration filed on April 26, 1979 by the private respondent, Celia Ilustre-Reyes, asking that the decision be modified by making the payment of the support pendente lite of Four Thousand Pesos (P4,000.00) a month retroact to June 1976, on the following grounds: (1) There is ample evidence that the business of the petitioner, Manuel J. C. Reyes, can very easily bear the burden of support; chanrobles virtual law library (2) The petition for support pendente lite is directed mainly on the private respondent's share in the conjugal partnership; chanrobles virtual law library (3) Full support may be taken from the private respondent's share of the conjugal properties; chanrobles virtual law library (4) The private respondent, Celia Ilustre-Reyes, has incurred obligations during the three (3) years period that she was not given any actual support and she also has to pay attorney's fees; chanrobles virtual law library (5) The corporation, Development and Technology Consultants, Inc., of which the petitioner is the controlling stockholder, in addition to four (4) cars in its name, has acquired two (2) new Opel Record sedan cars, each worth One Hundred Twenty Thousand Pesos (P120,000.00), and the petitioner lives in an expensive condominium and maintains business offices in different buildings in Makati and Manila; and chanrobles virtual law library

(6) Finally, on April 20, 1979, the petitioner and his three (3) children went abroad on a two-month pleasure trip, while the private respondent, Celia Ilustre-Reyes, lives in a difficult and penurious situation, deeply in debt and caught in the web of high prices and current inflation. The petitioner has also filed a motion for reconsideration of the decision on the grounds that (1) the trial court should be ordered to receive evidence on the issue of whether or not the private respondent is entitled to support pendente lite; and (2) assuming, arguendo, that the private respondent is entitled to support pendente lite, the amount of Four Thousand Pesos (P4,000.00) is not only excessive for the needs of private respondent but beyond the means of the petitioner herein.chanroblesvirtualawlibrary chanrobles virtual law library The Court has gone over the different exhibits attached by the parties to their respective motions. The Development and Technology Consultants, Inc. has multi-Million construction projects with gross receipts of several million pesos.chanroblesvirtualawlibrary chanrobles virtual law library The petitioner cannot seriously complain that the amount of support pendente lite he is ordered to pay will ruin him. He has not denied the allegations of the private respondent that the Development and Technology Consultants, Inc. has acquired two (2) new automobiles and that the petitioner maintains expensive offices and resides in an expensive condominium. It is not also denied that he and his three (3) children had recently traveled abroad for two (2) months.chanroblesvirtualawlibrary chanrobles virtual law library The support pendente lite in the amount of Four Thousand Pesos (P4,000.00) is reasonable. Hence, the motion for reconsideration of the petitioner has no merit.chanroblesvirtualawlibrary chanrobles virtual law library In resolving the motion for reconsideration of the private respondent, Celia Ilustre-Reyes, the Court has taken into consideration the fact that in view of the issuance of the restraining order by the Court of Appeals she had not received any support at all until this Court issued a resolution allowing her only One Thousand Pesos (P1,000.00) a month.chanroblesvirtualawlibrary chanrobles virtual law library Obviously, during the period that she was not receiving any support she incurred debts. She must also pay attorney's fees.chanroblesvirtualawlibrary chanrobles virtual law library Considering that whatever support the private respondent, Celia IlustreReyes, might now be receiving will be deducted from her share of the conjugal properties, the Court finds that under the equities and circumstances of the case, the decision should be modified so as to make the support pendente lite of Four Thousand Pesos (P4,000.00) a month retroact to November 1, 1977.chanroblesvirtualawlibrary chanrobles virtual law library WHEREFORE, the decision promulgated on February 28, 1979 is hereby modified in the sense that the support pendente lite at the rate of Four Thousand Pesos (P4,000.00) a month should commence from November 1, 1977.chanroblesvirtualawlibrary chanrobles virtual law library --

In said petition, it was alleged that on 16 February 1975, petitioner and respondent Federico Delgado were civilly married by then City Court Judge Eleuterio Agudo in Legaspi City, Albay. At that time, petitioner was only 21 years old while respondent Federico was only 19 years old. As the marriage was solemnized without the required consent per Article 85 of the New Civil Code,4 it was annulled on 11 August 1975 by the Quezon City Juvenile and Domestic Relations Court.5 On 25 March 1976, or within seven months after the annulment of their marriage, petitioner gave birth to twins Rica and Rina. According to petitioner, she, with the assistance of her second husband Danny Mangonon, raised her twin daughters as private respondents had totally abandoned them. At the time of the institution of the petition, Rica and Rina were about to enter college in the United States of America (USA) where petitioner, together with her daughters and second husband, had moved to and finally settled in. Rica was admitted to the University of Massachusetts (Amherst) while Rina was accepted by the Long Island University and Western New England College. Despite their admissions to said universities, Rica and Rina were, however, financially incapable of pursuing collegiate education because of the following: i) The average annual cost for college education in the US is about US$22,000/year, broken down as follows: Tuition Fees US$13,000.00 Room & Board 5,000.00 Books 1,000.00 Yearly Transportation & Meal Allowance 3,000.00 Total US$ 22,000.00 or a total of US$44,000.00, more or less, for both Rica and Rina ii) Additionally, Rica and Rina need general maintenance support each in the amount of US$3,000.00 per year or a total of US$6,000 per year. iii) Unfortunately, petitioners monthly income from her 2 jobs is merely US$1,200 after taxes which she can hardly give general support to Rica and Rina, much less their required college educational support. iv) Neither can petitioners present husband be compelled to share in the general support and college education of Rica and Rina since he has his own son with petitioner and own daughter (also in college) to attend to. v) Worse, Rica and Rinas petitions for Federal Student Aid have been rejected by the U.S. Department of Education.6 Petitioner likewise averred that demands7 were made upon Federico and the latters father, Francisco,8 for general support and for the payment of the required college education of Rica and Rina. The twin sisters even exerted efforts to work out a settlement concerning these matters with respondent Federico and respondent Francisco, the latter being generally known to be financially well-off.9 These demands, however, remained unheeded. Considering the impending deadline for admission to college and the opening of classes, petitioner and her then minor children had no choice but to file the petition before the trial court. Petitioner also alleged that Rica and Rina are her legitimate daughters by respondent Federico since the twin sisters were born within seven months from the date of the annulment of her marriage to respondent Federico. However, as respondent Federico failed to sign the birth certificates of Rica and Rina, it was imperative that their status as legitimate children of respondent Federico, and as granddaughters of respondent Francisco, be judicially declared pursuant to Article 173 of the Family Code.10

MA. BELEN B. MANGONON, for and in behalf of her minor children REBECCA ANGELA DELGADO and REGINA ISABEL DELGADO vs. HON. COURT OF APPEALS, HON. JUDGE JOSEFINA GUEVARASALONGA, Presiding Judge, RTC-Makati, Branch 149, FEDERICO C. DELGADO and FRANCISCO C. DELGADO Before Us is a Petition for Review on Certiorari assailing the Decision1 of the Court of Appeals dated 20 March 1996, affirming the Order, dated 12 September 19952 of the Regional Trial Court (RTC), Branch 149, Makati, granting support pendente lite to Rebecca Angela (Rica) and Regina Isabel (Rina), both surnamed Delgado. The generative facts leading to the filing of the present petition are as follows: On 17 March 1994, petitioner Ma. Belen B. Mangonon filed, in behalf of her then minor children Rica and Rina, a Petition for Declaration of Legitimacy and Support, with application for support pendente lite with the RTC Makati. 3

As legitimate children and grandchildren, Rica and Rina are entitled to general and educational support under Articles 17411 and 195(b)12 in relation to Articles 194(1 and 2)13 and 199(c)14 of the Family Code. Petitioner alleged that under these provisions, in case of default on the part of the parents, the obligation to provide support falls upon the grandparents of the children; thus, respondent Federico, or in his default, respondent Francisco should be ordered to provide general and educational support for Rica and Rina in the amount of US$50,000.00, more or less, per year. Petitioner also claimed that she was constrained to seek support pendente lite from private respondents - who are millionaires with extensive assets both here and abroad - in view of the imminent opening of classes, the possibility of a protracted litigation, and Rica and Rinas lack of financial means to pursue their college education in the USA. In his Answer, respondent Francisco stated that as the birth certificates of Rica and Rina do not bear the signature of respondent Federico, it is essential that their legitimacy be first established as "there is no basis to claim support until a final and executory judicial declaration has been made as to the civil status of the children."16 Whatever good deeds he may have done to Rica and Rina, according to respondent Francisco, was founded on pure acts of Christian charity. He, likewise, averred that the order of liability for support under Article 199 of the Family Code is not concurrent such that the obligation must be borne by those more closely related to the recipient. In this case, he maintained that responsibility should rest on the shoulders of petitioner and her second husband, the latter having voluntarily assumed the duties and responsibilities of a natural father. Even assuming that he is responsible for support, respondent Francisco contends that he could not be made to answer beyond what petitioner and the father could afford. On 24 May 1994, petitioner filed a Motion to Declare Defendant (respondent herein) Federico in Default.17 This was favorably acted upon by the trial court in the Order dated 16 June 1994.18 On 5 August 1994, respondent Federico filed a Motion to Lift Order of Default alleging that the summons and a copy of the petition were not served in his correct address.19 Attached thereto was his Answer20 where he claimed that petitioner had no cause of action against him. According to him, he left for abroad and stayed there for a long time "[w]ithin the first one hundred twenty (120) days of the three hundred days immediately preceding March 25, 1976" and that he only came to know about the birth of Rica and Rina when the twins introduced themselves to him seventeen years later. In order not to antagonize the two, respondent Federico claimed he did not tell them that he could not be their father. Even assuming that Rica and Rina are, indeed, his daughters, he alleged that he could not give them the support they were demanding as he was only making P40,000.00 a month. Finding sufficient ground in the motion filed by respondent Federico, the trial court lifted its Order dated 16 June 1994 and admitted his Answer. 21 In the meantime, on 25 April 1994, petitioner filed an Urgent Motion to Set Application for Support Pendente Lite for Hearing because Rica and Rina both badly needed immediate financial resources for their education.22 This Motion was opposed by respondent Francisco.23 After both parties submitted supplemental pleadings to bolster their respective positions, the trial court resolved the motion in an Order dated 12 September 1995 in this wise: WHEREFORE, in the light of the foregoing considerations, respondents are hereby directed to provide a monthly support (pendente lite) of P5,000.00 each or a total of P10,000.00 for the education of Rebecca Angela and Regina Isabel Delgado to be delivered within the first five days of each month without need of demand.24 Unsatisfied with the Order of the trial court, petitioner brought the case to the Court of Appeals via Petition for Certiorari. The Court of Appeals affirmed the holding of the trial court and disposed the petition in the following manner: WHEREFORE, the petition for certiorari is hereby DISMISSED and the Order of the lower court dated September 12, 1995 is hereby AFFIRMED. 25 Petitioners Motion for Reconsideration was denied through the Resolution of the Court of Appeals dated 16 May 1996.26 Petitioner is now before this Court claiming that the Decision of the Court of Appeals was tainted with the following errors:
15

RESPONDENT COURT OF APPEALS ERRED IN CONCLUDING THAT RESPONDENT JUDGE DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN FIXING THE AMOUNT OF MONTHLY SUPPORT PENDENTE LITE GRANTED TO PETITIONERS CHILDREN AT A MEASLEY P5,000.00 PER CHILD. I. RESPONDENT COURT IGNORED EVIDENCE ON RECORD OF THE FINANCIAL INCAPACITY OF RICA AND RINAS PARENTS IN DEFAULT OF WHOM THE OBLIGATION TO GIVE SUPPORT DEVOLVES ON THE GRANDFATHER. II. IT BEING ESTABLISHED THAT THE PERSON OBLIGED TO GIVE SUPPORT GRANDFATHER DON PACO IS UNDOUBTEDLY CAPABLE OF GIVING THE AMOUNT DEMANDED, RESPONDENT COURT ERRED IN NOT HOLDING THAT RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN FIXING AN AMOUNT OF SUPPORT PENDENTE LITE THAT IS OBVIOUSLY INADEQUATE TO SUPPORT THE EDUCATIONAL REQUIREMENTS OF THE RECIPIENTS.27 At the time of the filing of the present Petition, it is alleged that Rica had already entered Rutgers University in New Jersey with a budget of US$12,500.00 for academic year 1994-1995. She was able to obtain a tuition fee grant of US$1,190.00 and a Federal Stafford loan from the US government in the amount of US$2,615.00.28 In order to defray the remaining balance of Ricas education for said school year, petitioner claims that she had to secure a loan under the Federal Direct Student Loan Program. Meanwhile, Rina entered CW Post, Long Island University, where she was expected to spend US$20,000.00 for the school year 1994-1995. She was given a financial grant of US$6,000.00, federal work study assistance of US$2,000.00, and a Federal Stafford loan of US$2,625.00.29 Again, petitioner obtained a loan to cover the remainder of Rinas school budget for the year. Petitioner concedes that under the law, the obligation to furnish support to Rica and Rina should be first imposed upon their parents. She contends, however, that the records of this case demonstrate her as well as respondent Federicos inability to give the support needed for Rica and Rinas college education. Consequently, the obligation to provide support devolves upon respondent Francisco being the grandfather of Rica and Rina. Petitioner also maintains that as respondent Francisco has the financial resources to help defray the cost of Rica and Rinas schooling, the Court of Appeals then erred in sustaining the trial courts Order directing respondent Federico to pay Rica and Rina the amount of award P5,000.00 each as monthly support pendente lite. On the other hand, respondent Francisco argues that the trial court correctly declared that petitioner and respondent Federico should be the ones to provide the support needed by their twin daughters pursuant to Article 199 of the Family Code. He also maintains that aside from the financial package availed of by Rica and Rina in the form of state tuition aid grant, work study program and federal student loan program, petitioner herself was eligible for, and had availed herself of, the federal parent loan program based on her income and properties in the USA. He, likewise, insists that assuming he could be held liable for support, he has the option to fulfill the obligation either by paying the support or receiving and maintaining in the dwelling here in the Philippines the person claiming support.30 As an additional point to be considered by this Court, he posits the argument that because petitioner and her twin daughters are now US citizens, they cannot invoke the Family Code provisions on support as "[l]aws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad."31 Respondent Federico, for his part, continues to deny having sired Rica and Rina by reiterating the grounds he had previously raised before the trial court. Like his father, respondent Federico argues that assuming he is indeed the father of the twin sisters, he has the option under the law as to how he would provide support. Lastly, he assents with the declaration of the trial court and the Court of Appeals that the parents of a child should primarily bear the burden of providing support to their offspring. The petition is meritorious.

As a preliminary matter, we deem it necessary to briefly discuss the essence of support pendente lite. The pertinent portion of the Rules of Court on the matter provides: Rule 61 SUPPORT PENDENTE LITE SECTION 1. Application.- At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof. xxxx SEC. 4. Order.- The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible. Under this provision, a court may temporarily grant support pendente lite prior to the rendition of judgment or final order. Because of its provisional nature, a court does not need to delve fully into the merits of the case before it can settle an application for this relief. All that a court is tasked to do is determine the kind and amount of evidence which may suffice to enable it to justly resolve the application. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.32lavvphi1.net After the hearings conducted on this matter as well as the evidence presented, we find that petitioner was able to establish, by prima facie proof, the filiation of her twin daughters to private respondents and the twins entitlement to support pendente lite. In the words of the trial court By and large, the status of the twins as children of Federico cannot be denied. They had maintained constant communication with their grandfather Francisco. As a matter of fact, respondent Francisco admitted having wrote several letters to Rica and Rina (Exhs. A, B, C, D, E, F, G, G-1 to G-30). In the said letters, particularly at the bottom thereof, respondent Francisco wrote the names of Rica and Rina Delgado. He therefore was very well aware that they bear the surname Delgado. Likewise, he referred to himself in his letters as either "Lolo Paco" or "Daddy Paco." In his letter of October 13, 1989 (Exh. G-21), he said "as the grandfather, am extending a financial help of US$1,000.00." On top of this, respondent Federico even gave the twins a treat to Hongkong during their visit to the Philippines. Indeed, respondents, by their actuations, have shown beyond doubt that the twins are the children of Federico.33 Having addressed the issue of the propriety of the trial courts grant of support pendente lite in favor of Rica and Rina, the next question is who should be made liable for said award. The pertinent provision of the Family Code on this subject states: ART. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and (4) The brothers and sisters. An eminent author on the subject explains that the obligation to give support rests principally on those more closely related to the recipient. However, the more remote relatives may be held to shoulder the responsibility should the

claimant prove that those who are called upon to provide support do not have the means to do so.34 In this case, both the trial court and the Court of Appeals held respondent Federico liable to provide monthly support pendente lite in the total amount of P10,000.00 by taking into consideration his supposed income of P30,000.00 to P40,000.00 per month. We are, however, unconvinced as to the veracity of this ground relied upon by the trial court and the Court of Appeals. It is a basic procedural edict that questions of fact cannot be the proper subject of a petition for review under Rule 45 of the 1997 Rules of Civil Procedure. The rule finds a more stringent application where the Court of Appeals upholds the findings of fact of the trial court; in such a situation, this Court, as the final arbiter, is generally bound to adopt the facts as determined by the appellate and the lower courts. This rule, however, is not ironclad as it admits of the following recognized exceptions: "(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion." 35 The case at bar falls within the seventh and eleventh exceptions. The trial court gave full credence to respondent Federicos allegation in his Answer36 and his testimony37 as to the amount of his income. We have, however, reviewed the records of this case and found them bereft of evidence to support his assertions regarding his employment and his earning. Notably, he was even required by petitioners counsel to present to the court his income tax return and yet the records of this case do not bear a copy of said document.38 This, to our mind, severely undermines the truthfulness of respondent Federicos assertion with respect to his financial status and capacity to provide support to Rica and Rina. In addition, respondent Francisco himself stated in the witness stand that as far as he knew, his son, respondent Federico did not own anything "Atty. Lopez: I have here another letter under the letter head of Mr. & Mrs. Dany Mangonon, dated October 19, 1991 addressed to Mr. Francisco Delgado signed by "sincerely, Danny Mangonon, can you remember." xxxx WITNESS: A: I do remember this letter because it really irritated me so much that I threw it away in a waste basket. It is a very demanding letter, that is what I do not like at all. ATTY. LOPEZ: Q: It is stated in this letter that "I am making this request to you and not to your son, Rico, for reasons we both are aware of." Do you know what reason that is? A: Yes. The reason is that my son do not have fix employment and do not have fix salary and income and they want to depend on the lolo. x x x xlavvphi1.net Q: Would you have any knowledge if Federico owns a house and lot? A: Not that I know. I do not think he has anything.

Q: How about a car? A: Well, his car is owned by my company.39 Respondent Federico himself admitted in court that he had no property of his own, thus: Q: You also mentioned that you are staying at Mayflower Building and you further earlier testified that this building belongs to Citadel Corporation. Do you confirm that? A: Yes, sir. Q: What car are you driving, Mr. Witness? A: I am driving a lancer, sir. Q: What car, that registered in the name of the corporation? A: In the corporation, sir. Q: What corporation is that? A: Citadel Commercial, Inc., sir. Q: What properties, if any, are registered in your name, do you have any properties, Mr. Witness? A: None, sir."40 (Emphasis supplied.) Meanwhile, respondent Francisco asserts that petitioner possessed the capacity to give support to her twin daughters as she has gainful employment in the USA. He even went as far as to state that petitioners income abroad, when converted to Philippine peso, was much higher than that received by a trial court judge here in the Philippines. In addition, he claims that as she qualified for the federal parent loan program, she could very well support the college studies of her daughters. We are unconvinced. Respondent Franciscos assertion that petitioner had the means to support her daughters education is belied by the fact that petitioner was even forced by her financial status in the USA to secure the loan from the federal government. If petitioner were really making enough money abroad, she certainly would not have felt the need to apply for said loan. The fact that petitioner was compelled to take out a loan is enough indication that she did not have enough money to enable her to send her daughters to college by herself. Moreover, even Rica and Rina themselves were forced by the circumstances they found themselves in to secure loans under their names so as not to delay their entrance to college. There being prima facie evidence showing that petitioner and respondent Federico are the parents of Rica and Rina, petitioner and respondent Federico are primarily charged to support their childrens college education. In view however of their incapacities, the obligation to furnish said support should be borne by respondent Francisco. Under Article 199 of the Family Code, respondent Francisco, as the next immediate relative of Rica and Rina, is tasked to give support to his granddaughters in default of their parents. It bears stressing that respondent Francisco is the majority stockholder and Chairman of the Board of Directors of Citadel Commercial, Incorporated, which owns and manages twelve gasoline stations, substantial real estate, and is engaged in shipping, brokerage and freight forwarding. He is also the majority stockholder and Chairman of the Board of Directors of Citadel Shipping which does business with Hyundai of Korea. Apart from these, he also owns the Citadel Corporation which, in turn, owns real properties in different parts of the country. He is likewise the Chairman of the Board of Directors of Isla Communication Co. and he owns shares of stocks of Citadel Holdings. In addition, he owns real properties here and abroad. 41 It having been established that respondent Francisco has the financial means to support his granddaughters education, he, in lieu of petitioner and respondent Federico, should be held liable for support pendente lite. Anent respondent Francisco and Federicos claim that they have the option under the law as to how they could perform their obligation to support Rica and Rina, respondent Francisco insists that Rica and Rina should move here

to the Philippines to study in any of the local universities. After all, the quality of education here, according to him, is at par with that offered in the USA. The applicable provision of the Family Code on this subject provides: Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. Under the abovecited provision, the obligor is given the choice as to how he could dispense his obligation to give support. Thus, he may give the determined amount of support to the claimant or he may allow the latter to stay in the family dwelling. The second option cannot be availed of in case there are circumstances, legal or moral, which should be considered. In this case, this Court believes that respondent Francisco could not avail himself of the second option. From the records, we gleaned that prior to the commencement of this action, the relationship between respondent Francisco, on one hand, and petitioner and her twin daughters, on the other, was indeed quite pleasant. The correspondences exchanged among them expressed profound feelings of thoughtfulness and concern for one anothers well-being. The photographs presented by petitioner as part of her exhibits presented a seemingly typical family celebrating kinship. All of these, however, are now things of the past. With the filing of this case, and the allegations hurled at one another by the parties, the relationships among the parties had certainly been affected. Particularly difficult for Rica and Rina must be the fact that those who they had considered and claimed as family denied having any familial relationship with them. Given all these, we could not see Rica and Rina moving back here in the Philippines in the company of those who have disowned them. Finally, as to the amount of support pendente lite, we take our bearings from the provision of the law mandating the amount of support to be proportionate to the resources or means of the giver and to the necessities of the recipient.42 Guided by this principle, we hold respondent Francisco liable for half of the amount of school expenses incurred by Rica and Rina as support pendente lite. As established by petitioner, respondent Francisco has the financial resources to pay this amount given his various business endeavors. Considering, however, that the twin sisters may have already been done with their education by the time of the promulgation of this decision, we deem it proper to award support pendente lite in arrears43 to be computed from the time they entered college until they had finished their respective studies. The issue of the applicability of Article 15 of the Civil Code on petitioner and her twin daughters raised by respondent Francisco is best left for the resolution of the trial court. After all, in case it would be resolved that Rica and Rina are not entitled to support pendente lite, the court shall then order the return of the amounts already paid with legal interest from the dates of actual payment.44 WHEREFORE, premises considered, this Petition is PARTIALLY GRANTED. The Decision of the Court of Appeals dated 20 March 1996 and Resolution dated 16 May 1996 affirming the Order dated 12 September 1995 of the Regional Trial Court, Branch 149, Makati, fixing the amount of support pendente lite to P5,000.00 for Rebecca Angela and Regina Isabel, are hereby MODIFIED in that respondent Francisco Delgado is hereby held liable for support pendente lite in the amount to be determined by the trial court pursuant to this Decision. Let the records of this case be remanded to the trial court for the determination of the proper amount of support pendente lite for Rebecca Angela and Regina Isabel as well as the arrearages due them in accordance with this Decision within ten (10) days from receipt hereof. Concomitantly, the trial court is directed to proceed with the trial of the main case and the immediate resolution of the same with deliberate dispatch. The RTC Judge, Branch 149, Makati, is further directed to submit a report of his compliance with the directive regarding the support pendente lite within ten (10) days from compliance thereof. -LIM vs. LIM The Case

For review [1] is the Decision [2] of the Court of Appeals, dated 28 April 2003, ordering petitioners Prudencio and Filomena Lim

(petitioners) to provide legal support to respondents Cheryl, Lester Edward, Candice Grace and Mariano III, all surnamed Lim (respondents). The Facts

The Ruling of the Court

In 1979, respondent Cheryl S. Lim (Cheryl) married Edward Lim (Edward), son of petitioners. Cheryl bore Edward three children, respondents Lester Edward, Candice Grace and Mariano III. Cheryl, Edward and their children resided at the house of petitioners in Forbes Park, Makati City, together with Edwards ailing grandmother, Chua Giak and her husband Mariano Lim (Mariano). Edwards family business, which provided him with a monthly salary of P6,000, shouldered the family expenses. Cheryl had no steady source of income. On 14 October 1990, Cheryl abandoned the Forbes Park residence, bringing the children with her (then all minors), after a violent confrontation with Edward whom she caught with the in-house midwife of Chua Giak in what the trial court described a very compromising situation. [3] Cheryl, for herself and her children, sued petitioners, Edward, Chua Giak and Mariano (defendants) in the Regional Trial Court of Makati City, Branch 140 (trial court) for support. The trial court ordered Edward to provide monthly support of P6,000 pendente lite. [4] The Ruling of the Trial Court On 31 January 1996, the trial court rendered judgment ordering Edward and petitioners to jointly provide P40,000 monthly support to respondents, with Edward shouldering P6,000 and petitioners the balance of P34,000 subject to Chua Giaks subsidiary liability. [5] The defendants sought reconsideration, questioning their liability. The trial court, while denying reconsideration, clarified that petitioners and Chua Giak were held jointly liable with Edward because of the latters inability x x x to give sufficient support x x x. [6]

We rule in the affirmative. However, we modify the appealed judgment by limiting petitioners liability to the amount of monthly support needed by respondents Lester Edward, Candice Grace and Mariano III only. Petitioners Liable to Provide Support but only to their Grandchildren

By statutory [9] and jurisprudential mandate, [10] the liability of ascendants to provide legal support to their descendants is beyond cavil. Petitioners themselves admit as much they limit their petition to the narrow question of when their liability is triggered, not if they are liable. Relying on provisions [11] found in Title IX of the Civil Code, as amended, on Parental Authority, petitioners theorize that their liability is activated only upon default of parental authority, conceivably either by its termination [12] or suspension [13] during the childrens minority. Because at the time respondents sued for support, Cheryl and Edward exercised parental authority over their children, [14] petitioners submit that the obligation to support the latters offspring ends with them. Neither the text of the law nor the teaching of jurisprudence supports this severe constriction of the scope of familial obligation to give support. In the first place, the governing text are the relevant provisions in Title VIII of the Civil Code, as amended, on Support, not the provisions in Title IX on Parental Authority. While both areas share a common ground in that parental authority encompasses the obligation to provide legal support, [15] they differ in other concerns including the duration of the obligation and its concurrence among relatives of differing degrees. [16] Thus, although the obligation to provide support arising from parental authority ends upon the emancipation of the child, [17] the same obligation arising from spousal and general familial ties ideally lasts during the obligee's lifetime.. Also, while parental authority under Title IX (and the correlative parental rights) pertains to parents, passing to ascendants only upon its termination or suspension, the obligation to provide legal support passes on to ascendants not only upon default of the parents but also for the latters inability to provide sufficient support. As we observed in another case raising the ancillary issue of an ascendants obligation to give support in light of the fathers sufficient means: Professor Pineda is of the view that grandchildren cannot demand support directly from their grandparents if they have parents (ascendants of nearest degree) who are capable of supporting them. This is so because we have to follow the order of support under Art. 199. We agree with this view. xxxx

Petitioners appealed to the Court of Appeals assailing, among others, their liability to support respondents. Petitioners argued that while Edwards income is insufficient, the law itself sanctions its effects by providing that legal support should be in keeping with the financial capacity of the family under Article 194 of the Civil Code, as amended by Executive Order No. 209 (The Family Code of the Philippines). [7]

The Ruling of the Court of Appeals

In its Decision dated 28 April 2003, the Court of Appeals affirmed the trial court. On the issue material to this appeal, that is, whether there is basis to hold petitioners, as Edwards parents, liable with him to support respondents, the Court of Appeals held: The law on support under Article 195 of the Family Code is clear on this matter. Parents and their legitimate children are obliged to mutually support one another and this obligation extends down to the legitimate grandchildren and great grandchildren.

There is no showing that private respondent is without means to support his son; neither is there any evidence to prove that petitioner, as the paternal grandmother, was willing to voluntarily provide for her grandson's legal support. x x x [18] (Emphasis supplied; internal citations omitted)

In connection with this provision, Article 200 paragraph (3) of the Family Code clearly provides that should the person obliged to give support does not have sufficient means to satisfy all claims, the other persons enumerated in Article 199 in its order shall provide the necessary support. This is because the closer the relationship of the relatives, the stronger the tie that binds them. Thus, the obligation to support is imposed first upon the shoulders of the closer relatives and only in their default is the obligation moved to the next nearer relatives and so on. [8]

Here, there is no question that Cheryl is unable to discharge her obligation to provide sufficient legal support to her children, then all school-bound. It is also undisputed that the amount of support Edward is able to give to respondents, P6,000 a month, is insufficient to meet respondents basic needs. This inability of Edward and Cheryl to sufficiently provide for their children shifts a portion of their obligation to the ascendants in the nearest degree, both in the paternal (petitioners) and maternal [19] lines, following the ordering in Article 199. To hold otherwise, and thus subscribe to petitioners theory, is to sanction the anomalous scenario of tolerating extreme material deprivation of children because of parental inability to give adequate support even if ascendants one degree removed are more than able to fill the void. However, petitioners partial concurrent obligation extends only to their descendants as this word is commonly understood to refer to relatives, by blood of lower degree. As petitioners grandchildren by blood, only respondents Lester Edward, Candice Grace and Mariano III belong to this category. Indeed, Cheryls right to receive support from the Lim family extends only to her husband Edward, arising from their marital bond. [20] Unfortunately, Cheryls share from the amount of mont hly support the trial court awarded cannot be determined from the records. Thus, we are constrained to remand the case to the trial court for this limited purpose. [21] Petitioners Precluded from Availing

Petitioners sought reconsideration but the Court of Appeals denied their motion in the Resolution dated 12 April 2004. Hence, this petition. The Issue

The issue is whether petitioners are concurrently liable with Edward to provide support to respondents.

of the Alternative Option Under Article 204 of the Civil Code, as Amended As an alternative proposition, petitioners wish to avail of the option in Article 204 of the Civil Code, as amended, and pray that they be allowed to fulfill their obligation by maintaining respondents at petitioners Makati residence. The option is unavailable to petitioners. The application of Article 204 which provides that The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (Emphasis supplied) is subject to its exception clause. Here, the persons entitled to receive support are petitioners grandchildren and daughter-in-law. Granting petitioners the option in Article 204 will secure to the grandchildren a wellprovided future; however, it will also force Cheryl to return to the house which, for her, is the scene of her husbands in fidelity. While not rising to the level of a legal obstacle, as indeed, Cheryls charge against Edward for concubinage did not prosper for insufficient evidence, her steadfast insistence on its occurrence amounts to a moral impediment bringing the case within the ambit of the exception clause of Article 204, precluding its application. WHEREFORE, we DENY the petition. We AFFIRM the Decision of the Court of Appeals, dated 28 April 2003, and its Resolution dated 12 April 2004 with the MODIFICATION that petitioners Prudencio and Filomena Lim are liable to provide support only to respondents Lester Edward, Candice Grace and Mariano III, all surnamed Lim. We REMAND the case to the Regional Trial Court of Makati City, Branch 140, for further proceedings consistent with this ruling. -ZENAIDA MEDINA, assisted by her husband, FELICIANO CASERO, petitioner-appellant, vs. DRA. VENANCIA L. MAKABALI, respondent-appellee. Fausto D. Laquian for petitioner-appellant. Maximino Q. Canlas for respondent-appellee. REYES, J.B.L., J.: Once more Courts are asked to arbitrate between rights and duties of parents and children, and between parent and foster parent. Appellant's claim for custody of a minor boy, Joseph Casero, was sought to be enforced by habeas corpus proceedings in the Court of First Instance of Pampanga, in its Special Proceeding No. 1947. After hearing, the writ was denied by the Court, and the case was appealed directly to this Supreme Court exclusively on points of law. Uncontested facts found by the Court below are that on February 4, 1961, petitioner Zenaida Medina gave birth to a baby boy named Joseph Casero in the Makabali Clinic in San Fernando, Pampanga, owned and operated by respondent Dra. Venancia Makabali, single, who assisted at the delivery. The boy was Zenaida's third, had with a married man, Feliciano Casero. The mother left the child with Dra. Makabali from his birth. The latter took care and reared Joseph as her own son; had him treated at her expense for poliomyelitis by Dra. Fe del Mundo, in Manila, until he recovered his health; and sent him to school. From birth until August 1966, the real mother never visited her child, and never paid for his expenses. The trial disclosed that petitioner Zenaida Medina lived with Feliciano Casero with her two other children apparently with the tolerance, if not the acquiescence, of Caseros lawful wife who resides elsewhere, albeit the offspring of both women are in good terms with each other; that Casero makes about P400.00 a month as a mechanic, and Zenaida herself earns from 4 to 5 pesos a day. The Court, upon calling Joseph on the witness stand, observed that the boy is fairly intelligent as a witness. He never knew his mother, Zenaida. He was calling the respondent his "Mammy". The Court informed him that his real mother is Zenaida. He was asked with whom to stay with his real mother or the respondent. The boy pointed to the respondent and said "Mammy!" The Court asked him, "Why do you choose to stay with your "Mammy?" He answered, "She is the one rearing me." This confrontation was made in the presence of the two women, Zenaida, the petitioner, and the respondent, Dra. Makabali, in open court. (C.F.I. Rollo, p. 39). After extracting from Dra. Makabali a promise to allow the minor a free choice with whom to live when he reaches the age of 14, the Court held that it was for the child's best interest to be left with his foster mother and denied the writ prayed for. The real mother appealed, as already stated.

We see no reason to disturb the order appealed from. While our law recognizes the right of a parent to the custody of her child, Courts must not lose sight of the basic principle that "in all questions on the care, custody, education and property of children, the latter's welfare shall be paramount" (Civil Code of the Philippines, Art. 363), and that for compelling reasons, even a child under seven may be ordered separated from the mother (Do.) This is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents, into a radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pea, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor." 1 As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide the children with adequate support, education, moral, intellectual and civic training and development (Civil Code, Art. 356). As remarked by the Court below, petitioner Zenaida Medina proved remiss in these sacred duties; she not only failed to provide the child with love and care but actually deserted him, with not even a visit, in his tenderest years, when he needed his mother the most. It may well be doubted what advantage the child could derive from being coerced to abandon respondent's care and love to be compelled to stay with his mother and witness her irregular menage a trois with Casero and the latter's legitimate wife.lawphi1.et It is hinted that respondent's motivation in refusing to surrender the boy is to coerce petitioner to pay for the rearing of the child. This is not acceptable, for Dra. Makabali knew (at least at the trial) that any expectation on her part is illusory, given Zenaida's meager resources, yet expressed willingness to care and educate him. No abuse of discretion being shown, but on the contrary, the appealed order being justified in fact and law, we hold that said order should be, and hereby is, affirmed. Costs against appellant. --

MIGUEL R. UNSON III vs. HON. PEDRO C. NAVARRO AND EDITA N. ARANETA Petition for certiorari to have the order of respondent judge of December 28, 1979 ordering petitioner to produce the child, Maria Teresa Unson, his daughter barely eight years of age, with private respondent Edita N. Araneta and return her to the custody of the later, further obliging petitioner to "continue his support of said daughter by providing for her education and medical needs," allegedly issued without a "hearing" and the reception of testimony in violation of Section 6 of Rule 99. Petitioner and private respondent were married on April 19, 1971 1 and out of that marriage the child in question, Teresa, was born on December 1, 1971. However, as stated in a decision rendered on August 23, 1974 in Civil Case No. 7716 of respondent judge himself, on July 13, 1974 they executed an agreement for the separation of their properties and to live separately, as they have in fact been living separately since June 1972. The agreement was approved by the Court. The parties are agreed that no specific provision was contained in said agreement about the custody of the child because the husband and wife would have their own private arrangement in that respect. Thus, according to the affidavit of petitioner attached to his supplement to petition, submitted in compliance with the directive of this Court during the hearing of this case, he affirms that: xxx xxx xxx (8) That when Maria Teresa started pre-school in 1976 at the Early Learning Center in San Lorenzo, very near petitioner's residence, and later, when she started school at Assumption College, Maria Teresa would stay with petitioner during school days and spend weekends with her mother, but there were times when her mother would not even bother to pick her up during non-school days; (9) That during the early part of 1978 petitioner personally acquired knowledge that his wife Edita Araneta has been living with her brother-in-law Agustin F. Reyes, in an apartment at C. Palma St., Makati, Metro Mla. and so petitioner tightened his custody over his daughter, especially after: a. he found out that Agustin F. Reyes was confined at the Makati

Medical Center from October 13 up to December 3, 1977 for "Manic Depressive" disorder, under the care of Dr. Baltazar Reyes; b. he found out that his wife Edita Araneta delivered a child fathered by Agustin F. Reyes on September 24, 1978, (Please see Birth Certificate attached hereto as Annex "A-1"); c. he found out that Agustin F. Reyes had been confined again for the same ailment at the Makati Medical Center from June 27 up to August 29, 1978 under the care of the same doctor . (10) That on May 21, 1980 Edita Araneta delivered another child fathered by Agustin F. Reyes. (Please see Birth Certificate attached hereto as Annex "A-2"); (11) That aside from the foregoing circumstances, the following militate against custody of Maria Teresa in favor of Edita Araneta: a. Agustin F. Reyes is the child's godfather/baptismal sponsor; b. Agustin F. Reyes and Edita Araneta have left the Roman Catholic Church and have embraced a protestant sect (Please see Annex "A-2" hereof, which lists the occupation of Agustin F. Reyes as a seminarian); (12) That Maria Teresa is almost nine (9) years old, born and reared under the Roman Catholic faith, impressionable, and should not be exposed to an environment alien to the Catholic way of life, which is the upbringing and training petitioner, as her father is committed to; (13) That petitioner is executing this affidavit for all legal purposes. (Pp. 81-82 of Record) Upon the other hand, private respondent affirms in her affidavit Annex "A" aforementioned that: xxx xxx xxx 6. Since the birth of Maria Teresa, she has always lived with affiant, her mother, who has reared and brought up the child to the best of her ability. Affiant has not in any way spoken ill of nor turned the child against her father, herein petitioner; 7. In fact, it was affiant who was always insistent that petitioner have custody of Maria Teresa every week end and half of summer and Christmas vacation so that the child could establish a healthy and viable relationship with her father, herein petitioner; 8. This was especially so when affiant noticed that petitioner's parents showed more interest in the child than petitioner; since it was petitioner's parents who would more often pick up Maria Teresa and bring her back to and from affiant's home; 9. This fact was even noticed by the child; thus affiant immediately requested petitioner to spend more time with Maria Teresa;

10. From 1972 to 1978, affiant had always exercised full custody of Maria Teresa. It was affiant who voluntarily gave custody of the child to petitioner on weekends and half of the summer and Christmas vacations. In view of this amicable arrangement, no specific terms were agreed and stipulated upon by affiant and petitioner regarding custody of the child in their petition for separation of property before the lower court; 11. From 1972 to September, 1979, affiant and petitioner have always had a cordial and amicable relationship. Even from 1973 when affiant started living with her brother-in-law, Agustin F. Reyes at San Lorenzo, Makati, affiant and petitioner retained a cordial relationship. Petitioner, since 1973, always knew about affiant's relationship with Agustin F. Reyes. In fact, petitioner would visit Maria Teresa at affiant's home. Petitioner was always welcome to pick up Maria Teresa at any time. 12. When petitioner left for Australia in 1974 for a period of one year, petitioner left Maria Teresa to stay with affiant at San Lorenzo. During this time, Maria Teresa was always allowed to visit with and to be picked up at any time by petitioner's parents; 13. Petitioner, his family, affiants family (Mr. and Mrs. Teodoro Araneta), affiant's relatives and friends, since 1973, have long known of and accepted the circumstances involving private respondent and Agustin F. Reyes; 14. Affiant admits that her present circumstances at first impression might seem socially if not morally unacceptable; but in reality this is not so. Maria Teresa has been reared and brought up in an atmosphere of Christian love, affection and honesty to the import of the situation. Further, the quality and capacity of affiant of being a good mother has always remained; (Pars. 6 to 14 of Annex "A" of Record) It is axiomatic in Our jurisprudence that in controversies regarding the custody of minors the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents. Never has this Court diverted from that criterion. With this premise in view, the Court finds no difficulty in this case in seeing that it is in the best interest of the child Teresa to be freed from the obviously unwholesome, not to say immoral influence, that the situation in which private respondent has placed herself, as admitted by her, might create in the moral and social outlook of Teresa who is now in her formative and most impressionable stage in her life. The fact, that petitioner might have been tolerant about her stay with her mother in the past when she was still too young to distinguish between right and wrong and have her own correct impressions or notions about the unusual and peculiar relationship of her mother with her own uncle-in-law, the husband of her sister's mother, is hardly of any consequence now that she has reached a perilous stage in her life. No respectable father, properly concerned with the moral well-being of his child, specially a girl, can be expected to have a different attitude than petitioner's in this case. Under the circumstances thus shown in the record, the Court finds no alternative than to grant private respondent no more than visitorial rights over the child in question. Anyway, decisions even of this Supreme Court on the custody of minor children are always open to adjustment as the circumstances relevant to the matter may demand in the light of the inflexible criterion We have mentioned above. We deem it a grave abuse of discretion on the part of respondent judge to have acted precipitably in issuing his order of December 28, 1979 here in question. As to the issue of jurisdiction, that is, whether or not, after the decision on separation of properties had become final, the matter of the custody of the child should be the subject of a separate proceeding under Rule 99. We are inclined to agree with respondents that, considering that in the decision on the separation of properties mention is made of support for the child, to avoid multiplicity of proceedings, and since under Sec- tion 6 of Rule 99, the matter of the custody of children of separated spouses may be brought before the Court of First Instance by petition or as an incident to any other proceeding, the respondent court had jurisdiction to decide the question of custody here. And as regards the petitioner's claim of denial of hearing and due process

before the issuance by respondent judge of his order of December 28, 1979, We find that-petitioner was given sufficient time and opportunity to be heard, as, in fact, he filed his written opposition. With the facts in this case practically uncontroverted, We do not see the need for the calling of witnesses and the hearing of testimony in open court. WHEREFORE, the order of respondent judge is hereby set aside, the restraining order heretofore issued is made permanent and the parties are ordered to submit to this Court within fifteen (15) days from notice hereof their own agreement as to the visitorial rights of private respondent, otherwise, the Court will take it upon itself to fix the terms and conditions thereof. No costs. --

conjectures, resulting in its erroneous conclusion that custody of the children should be given to respondent Teresita. We believe that respondent court resolved the question of custody over the children through an automatic and blind application of the age proviso of Article 363 of the Civil Code which reads: Art. 363. In all questions on the care, custody, education and property of the children, the latter's 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. and of Article 213 of the Family Code which in turn provides:

REYNALDO ESPIRITU and GUILLERMA LAYUG vs. COURT OF APPEALS and TERESITA MASAUDING This case concerns a seemingly void marriage and a relationship which went sour. The innocent victims are two children horn out of the same union. Upon this Court now falls the not too welcome task of deciding the issue of who, between the father and mother, is more suitable and better qualified in helping the children to grow into responsible, well-adjusted, and happy young adulthood. Petitioner Reynaldo Espiritu and respondent Teresita Masauding first met sometime in 1976 in Iligan City where Reynaldo was employed by the National Steel Corporation and Teresita was employed as a nurse in a local hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She was able to acquire immigrant status sometime later. In 1984, Reynaldo was sent by his employer, the National Steel Corporation, to Pittsburgh, Pennsylvania as its liaison officer and Reynaldo and Teresita then began to maintain a common law relationship of husband and wife. On August 16, 1986, their daughter, Rosalind Therese, was born. On October 7, 1987, while they were on a brief vacation in the Philippines, Reynaldo and Teresita got married, and upon their return to the United States, their second child, a son, this time, and given the name Reginald Vince, was born on January 12, 1988. The relationship of the couple deteriorated until they decided to separate sometime in 1990. Teresita blamed Reynaldo for the break-up, stating he was always nagging her about money matters. Reynaldo, on the other hand, contended that Teresita was a spendthrift, buying expensive jewelry and antique furniture instead of attending to household expenses. Instead of giving their marriage a second chance as allegedly pleaded by Reynaldo, Teresita left Reynaldo and the children and went back to California. She claims, however, that she spent a lot of money on long distance telephone calls to keep in constant touch with her children. Reynaldo brought his children home to the Philippines, but because his assignment in Pittsburgh was not yet completed, he was sent back by his company to Pittsburgh. He had to leave his children with his sister, copetitioner Guillerma Layug and her family. Teresita claims that she did not immediately follow her children because Reynaldo filed a criminal case for bigamy against her and she was afraid of being arrested. The judgment of conviction in the bigamy case was actually rendered only on September 29, 1994. (Per Judge Harriet O. Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo). Teresita, meanwhile, decided to return to the Philippines and on December 8, 1992 and filed the petition for a writ of habeas corpus against herein two petitioners to gain custody over the children, thus starting the whole proceedings now reaching this Court. On June 30, 1993, the trial court dismissed the petition for habeas corpus. It suspended Teresita's parental authority over Rosalind and Reginald and declared Reynaldo to have sole parental authority over them but with rights of visitation to be agreed upon by the parties and to be approved by the Court. On February 16, 1994, the Court of Appeals per Justice Isnani, with Justices de Pano and Ibay-Somera concurring, reversed the trial court's decision. It gave custody to Teresita and visitation rights on weekends to Reynaldo. Petitioners now come to this Court on a petition for review, in the main contending that the Court of Appeals disregarded the factual findings of the trial court; that the Court of Appeals further engaged in speculations and

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. The decision under review is based on the report of the Code Commission which drafted Article 213 that a child below seven years still needs the loving, tender care that only a mother can give and which, presumably, a father cannot give in equal measure. The commentaries of a member of the Code Commission, former Court of Appeals Justice Alicia Sempio-Diy, in a textbook on the Family Code, were also taken into account. Justice Diy believes that a child below seven years should still be awarded to her mother even if the latter is a prostitute or is unfaithful to her husband. This is on the theory that moral dereliction has no effect on a baby unable to understand such action. (Handbook on the Family Code of the Philippines, 1988 Ed., p. 297.) The Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant facts and the law which should apply to those facts. The task of choosing the parent to whom custody shall be awarded is not a ministerial function to be determined by a simple determination of the age of a minor child. Whether a child is under or over seven years of age, the paramount criterion must always be the child's interests. Discretion is given to the court to decide who can best assure the welfare of the child, and award the custody on the basis of that consideration. In Unson III vs. Navarro (101 SCRA 183 [1980]), we laid down the rule that "in all controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the contending parents", and in Medina vs. Makabali (27 SCRA 502 [1969]), where custody of the minor was given to a non-relative as against the mother, then the country's leading civilist, Justice J.B.L. Reyes, explained its basis in this manner: . . . While our law recognizes the right of a parent to the custody of her child, Courts must not lose sight of the basic principle that "in all questions on the care, custody, education and property of children, the latter's welfare shall be paramount" (Civil Code of the Philippines. Art. 363), and that for compelling reasons, even a child under seven may be ordered separated from the mother (do). This is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parents into a radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now "there is no power, but a task; no complex of rights (of parents) but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor." As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide the children with adequate support, education, moral, intellectual and civic training and development (Civil Code, Art. 356). (pp. 504-505.)

In ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations. If a child is under seven years of age, the law presumes that the mother is the best custodian. The presumption is strong but it is not conclusive. It can be overcome by "compelling reasons". If a child is over seven, his choice is paramount but, again, the court is not bound by that choice. In its discretion, the court may find the chosen parent unfit and award custody to the other parent, or even to a third party as it deems fit under the circumstances. In the present case, both Rosalind and Reginald are now over seven years of age. Rosalind celebrated her seventh birthday on August 16, 1993 while Reginald reached the same age on January 12, 1995. Both are studying in reputable schools and appear to be fairly intelligent children, quite capable of thoughtfully determining the parent with whom they would want to live. Once the choice has been made, the burden returns to the court to investigate if the parent thus chosen is unfit to assume parental authority and custodial responsibility. Herein lies the error of the Court of Appeals. Instead of scrutinizing the records to discover the choice of the children and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions and general propositions applicable to ordinary or common situations. The seven-year age limit was mechanically treated as an arbitrary cut off period and not a guide based on a strong presumption. A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the "torture and agony" of a mother separated from her children and the humiliation she suffered as a result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. 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. We are inclined to sustain the findings and conclusions of the regional trial court because it gave greater attention to the choice of Rosalind and considered in detail all the relevant factors bearing on the issue of custody. When she was a little over 5 years old, Rosalind was referred to a child psychologist, Rita Flores Macabulos, to determine the effects of uprooting her from the Assumption College where she was studying. Four different tests were administered. The results of the tests are quite revealing. The responses of Rosalind about her mother were very negative causing the psychologist to delve deeper into the child's anxiety. Among the things revealed by Rosalind was an incident where she saw her mother hugging and kissing a "bad" man who lived in their house and worked for her father. Rosalind refused to talk to her mother even on the telephone. She tended to be emotionally emblazed because of constant fears that she may have to leave school and her aunt's family to go back to the United States to live with her mother. The 5-1/2 page report deals at length with feelings of insecurity and anxiety arising from strong conflict with the mother. The child tried to compensate by having fantasy activities. All of the 8 recommendations of the child psychologist show that Rosalind chooses petitioners over the private respondent and that her welfare will be best served by staying with them (pp. 199-205, Rollo). At about the same time, a social welfare case study was conducted for the purpose of securing the travel clearance required before minors may go abroad. Social Welfare Officer Emma D. Estrada Lopez, stated that the child Rosalind refused to go back to the United States and be reunited with her mother. She felt unloved and uncared for. Rosalind was more attached to her Yaya who did everything for her and Reginald. The child was found suffering from emotional shock caused by her mother's infidelity. The application for travel clearance was recommended for denial (pp. 206-209, Rollo). Respondent Teresita, for her part, argues that the 7-year age reference in the law applies to the date when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered. This argument is flawed. Considerations involving the choice made by a child must be ascertained at the time that either parent is given custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted (Unson III v. Navarro, supra, at p. 189). To be sure, the welfare, the best interests, the benefit, and the good of the child must be determined as of the time that either parent is

chosen to be the custodian. At the present time, both children are over 7 years of age and are thus perfectly capable of making a fairly intelligent choice. According to respondent Teresita, she and her children had tearful reunion in the trial court, with the children crying, grabbing, and embracing her to prevent the father from taking them away from her. We are more inclined to believe the father's contention that the children ignored Teresita in court because such an emotional display as described by Teresita in her pleadings could not have been missed by the trial court. Unlike the Justices of the Court of Appeals Fourth Division, Judge Lucas P. Bersamin personally observed the children and their mother in the courtroom. What the Judge found is diametrically opposed to the contentions of respondent Teresita. The Judge had this to say on the matter. And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding, especially as her conduct and demeanor in the courtroom (during most of the proceedings) or elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent temper that tended to corroborate the alleged violence of her physical punishment of the children (even if only for ordinary disciplinary purposes) and emotional instability, typified by her failure (or refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC Decision) Respondent Teresita also questions the competence and impartiality of the expert witnesses. Respondent court, in turn, states that the trial court should have considered the fact that Reynaldo and his sister, herein petitioner Guillerma Layug, hired the two expert witnesses. Actually, this was taken into account by the trial court which stated that the allegations of bias and unfairness made by Teresita against the psychologist and social worker were not substantiated. The trial court stated that the professional integrity and competence of the expert witnesses and the objectivity of the interviews were unshaken and unimpeached. We might add that their testimony remain uncontroverted. We also note that the examinations made by the experts were conducted in late 1991, well over a year before the filing by Teresita of the habeas corpus petition in December, 1992. Thus, the examinations were at that time not intended to support petitioners' position in litigation, because there was then not even an impending possibility of one. That they were subsequently utilized in the case a quo when it did materialize does not change the tenor in which they were first obtained. Furthermore, such examinations, when presented to the court must be construed to have been presented not to sway the court in favor of any of the parties, but to assist the court in the determination of the issue before it. The persons who effected such examinations were presented in the capacity of expert witnesses testifying on matters within their respective knowledge and expertise. On this matter, this Court had occasion to rule in the case of Sali vs. Abukakar, et al. (17 SCRA 988 [1966]). The fact that, in a particular litigation, an NBI expert examines certain contested documents, at the request, not of a public officer or agency of the Government, but of a private litigant, does not necessarily nullify the examination thus made. Its purpose, presumably, to assist the court having jurisdiction over said litigation, in the performance of its duty to settle correctly the issues relative to said documents. Even a non-expert private individual may examine the same, if there are facts within his knowledge which may help, the court in the determination of said issue. Such examination, which may properly be undertaken by a non-expert private individual, does not, certainly become null and void when the examiner is an expert and/or an officer of the NBI. (pp. 991-992.) In regard to testimony of expert witnesses it was held in Salomon, et al. vs. Intermediate Appellate Court, et al. (185 SCRA 352 [1990]): . . . Although courts are not ordinarily bound by expert testimonies, they may place whatever weight they choose upon such testimonies in accordance with the

facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study and observation of the matters about which he testifies, and any other matters which reserve to illuminate his statements. The opinion of the expert may not be arbitrarily rejected; it is to be considered by the court in view of all the facts and circumstances in the case and when common knowledge utterly fails, the expert opinion may be given controlling effect (20 Am. Jur., 1056-1058). The problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion. (p. 359) It was in the exercise of this discretion, coupled with the opportunity to assess the witnesses' character and to observe their respective demeanor that the trial court opted to rely on their testimony, and we believe that the trial court was correct in its action. Under direct examination an February 4, 1993, Social Worker Lopez stated that Rosalind and her aunt were about to board a plane when they were offloaded because there was no required clearance. They were referred to her office, at which time Reginald was also brought along and interviewed. One of the regular duties of Social Worker Lopez in her job appears to be the interview of minors who leave for abroad with their parents or other persons. The interview was for purposes of foreign travel by a 5-year old child and had nothing to do with any pending litigation. On cross-examination, Social Worker Lopez stated that her assessment of the minor's hatred for her mother was based on the disclosures of the minor. It is inconceivable, much less presumable that Ms. Lopez would compromise her position, ethics, and the public trust reposed on a person of her position in the course of doing her job by falsely testifying just to support the position of any litigant. The psychologist, Ms. Macabulos, is a B.S. magna cum laude graduate in Psychology and an M.A. degree holder also in Psychology with her thesis graded "Excellent". She was a candidate for a doctoral degree at the time of the interview. Petitioner Reynaldo may have shouldered the cost of the interview but Ms. Macabulos services were secured because Assumption College wanted an examination of the child for school purposes and not because of any litigation. She may have been paid to examine the child and to render a finding based on her examination, but she was not paid to fabricate such findings in favor of the party who retained her services. In this instance it was not even petitioner Reynaldo but the school authorities who initiated the same. It cannot be presumed that a professional of her potential and stature would compromise her professional standing. Teresita questions the findings of the trial court that: 1. Her morality is questionable as shown by her marrying Reynaldo at the time she had a subsisting marriage with another man. 2. She is guilty of grave indiscretion in carrying on a love affair with one of the Reynaldo's fellow NSC employees. 3. She is incapable of providing the children with necessities and conveniences commensurate to their social standing because she does not even own any home in the Philippines. 4. She is emotionally unstable with ebullient temper. It is contended that the above findings do not constitute the compelling reasons under the law which would justify depriving her of custody over the children; worse, she claims, these findings are non-existent and have not been proved by clear and convincing evidence.

Public and private respondents give undue weight to the matter of a child under 7 years of age not to be separated from the mother, without considering what the law itself denominates as compelling reasons or relevant considerations to otherwise decree. In the Unson III case, earlier mentioned, this Court stated that it found no difficulty in not awarding custody to the mother, it being in the best interest of the child "to be freed from the obviously unwholesome, not to say immoral influence, that the situation where [the mother] had placed herself . . . might create in the moral and social outlook of [the child] who was in her formative and most impressionable stage . . ." Then too, it must be noted that both Rosalind and Reginald are now over 7 years of age. They understand the difference between right and wrong, ethical behavior and deviant immorality. Their best interests would be better served in an environment characterized by emotional stability and a certain degree of material sufficiency. There is nothing in the records to show that Reynaldo is an "unfit" person under Article 213 of the Family Code. In fact, he has been trying his best to give the children the kind of attention and care which the mother is not in a position to extend. The argument that the charges against the mother are false is not supported by the records. The findings of the trial court are based on evidence. Teresita does not deny that she was legally married to Roberto Lustado on December 17, 1984 in California (p. 13, Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC Decision). Less than a year later, she had already driven across the continental United States to commence living with another man, petitioner Reynaldo, in Pittsburgh. The two were married on October 7, 1987. Of course, to dilute this disadvantage on her part, this matter of her having contracted a bigamous marriage later with Reynaldo, Teresita tried to picture Reynaldo as a rapist, alleging further that she told Reynaldo about her marriage to Lustado on the occasion when she was raped by Reynaldo. Expectedly, Judge Harriet Demetriou of the Pasig RTC lent no weight to such tale. And even if this story were given credence, it adds to and not subtracts from the conviction of this Court about Teresita's values. Rape is an insidious crime against privacy. Confiding to one's potential rapist about a prior marriage is not a very convincing indication that the potential victim is averse to the act. The implication created is that the act would be acceptable if not for the prior marriage. More likely is Reynaldo's story that he learned of the prior marriage only much later. In fact, the rape incident itself is unlikely against a woman who had driven three days and three nights from California, who went straight to the house of Reynaldo in Pittsburgh and upon arriving went to bed and, who immediately thereafter started to live with him in a relationship which is marital in nature if not in fact. Judge Bersamin of the court a quo believed the testimony of the various witnesses that while married to Reynaldo, Teresita entered into an illicit relationship with Perdencio Gonzales right there in the house of petitioner Reynaldo and respondent Teresita. Perdencio had been assigned by the National Steel Corporation to assist in the project in Pittsburgh and was staying with Reynaldo, his co-employee, in the latter's house. The record shows that the daughter Rosalind suffered emotional disturbance caused by the traumatic effect of seeing her mother hugging and kissing a boarder in their house. The record also shows that it was Teresita who left the conjugal home and the children, bound for California. When Perdencio Gonzales was reassigned to the Philippines, Teresita followed him and was seen in his company in a Cebu hotel, staying in one room and taking breakfast together. More significant is that letters and written messages from Teresita to Perdencio were submitted in evidence (p.12, RTC Decision). The argument that moral laxity or the habit of flirting from one man to another does not fall under "compelling reasons" is neither meritorious nor applicable in this case. Not only are the children over seven years old and their clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records appears to have become final (pp. 210-222, Rollo). Respondent court's finding that the father could not very well perform the role of a sole parent and substitute mother because his job is in the United States while the children will be left behind with their aunt in the Philippines is misplaced. The assignment of Reynaldo in Pittsburgh is or was a temporary one. He was sent there to oversee the purchase of a steel mill component and various equipment needed by the National Steel Corporation in the Philippines. Once the purchases are completed, there is nothing to keep him

there anymore. In fact, in a letter dated January 30, 1995, Reynaldo informs this Court of the completion of his assignment abroad and of his permanent return to the Philippines (ff. p. 263, Rollo). The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old. Their choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a fit person, thus meeting the two requirements found in the first paragraph of Article 213 of the Family Code. The presumption under the second paragraph of said article no longer applies as the children are over seven years. Assuming that the presumption should have persuasive value for children only one or two years beyond the age of seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody to the mother. The children understand the unfortunate shortcomings of their mother and have been affected in their emotional growth by her behavior. WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals is reversed and set aside, and the decision of Branch 96 of the Regional Trial Court of the National Capital Judicial Region stationed in Quezon City and presided over by the Honorable Lucas P. Bersamin in its Civil Case No. Q-92-14206 awarding custody of the minors Rosalind and Reginald Espiritu to their father, Reynaldo Espiritu, is reinstated. No special pronouncement is made as to costs. --

After an ex-parte hearing on October 8, 1990, the trial court issued an order on the same day awarding custody of the child Leouel Santos, Jr. to his grandparents, Leopoldo and Ofelia Bedia. 3 Petitioner appealed this Order to the Court of Appeals. 4 In its decision dated April 30, 1992, respondent appellate court affirmed the trial court's order. 5 His motion for reconsideration having been denied, 6 petitioner now brings the instant petition for review for a reversal of the appellate court's decision. The Court of Appeals erred, according to petitioner, in awarding custody of the boy to his grandparents and not to himself. He contends that since private respondents have failed to show that petitioner is an unfit and unsuitable father, substitute parental authority granted to the boy's grandparents under Art. 214 of the Family Code is inappropriate. Petitioner adds that the reasons relied upon by the private respondents in having custody over the boy, are flimsy and insufficient to deprive him of his natural and legal right to have custody. On the other hand, private respondents aver that they can provide an airconditioned room for the boy and that petitioner would not be in a position to take care of his son since he has to be assigned to different places. They also allege that the petitioner did not give a single centavo for the boy's support and maintenance. When the boy was about to be released from the hospital, they were the ones who paid the fees because their daughter and petitioner had no money. Besides, Julia Bedia Santos, their daughter, had entrusted the boy to them before she left for the United States. Furthermore, petitioner's use of trickery and deceit in abducting the child in 1990, after being hospitably treated by private respondents, does not speak well of his fitness and suitability as a parent. The Bedias argue that although the law recognizes the right of a parent to his child's custody, ultimately the primary consideration is what is best for the happiness and welfare of the latter. As maternal grandparents who have amply demonstrated their love and affection for the boy since his infancy, they claim to be in the best position to promote the child's welfare. The issue to be resolved here boils down to who should properly be awarded custody of the minor Leouel Santos, Jr. 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 latter' s needs. 7 It is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses. 8 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." 9 Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. 10 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 children's home or an orphan institution. 11 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. 12 Even if a definite renunciation is manifest, the law still disallows the same. 13 The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company. 14 The child's welfare is always the paramount consideration in all questions concerning his care and custody. 15 The law vests on the father and mother joint parental authority over the persons of their common children. 16 In case of absence or death of either parent, the parent present shall continue exercising parental authority . 17 Only in case of the parents' death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent. 18 The situation obtaining in the case at bench is one where the mother of the minor Santos, Jr., is working in the United States while the father, petitioner Santos, Sr., is present. Not only are they physically apart but are also emotionally separated. There has been no decree of legal separation and petitioner's

LEOUEL SANTOS, SR. vs. COURT OF APPEALS, and SPOUSES LEOPOLDO and OFELIA BEDIA In this petition for review, we are asked to overturn the decision of the Court of Appeals 1 granting custody of six-year old Leouel Santos, Jr. to his maternal grandparents and not to his father, Santos, Sr. What is sought is a decision which should definitively settle the matter of the care, custody and control of the boy. Happily, unlike King Solomon, we need not merely rely on a "wise and understanding heart," for there is man's law to guide us and that is, the Family Code. The antecedent facts giving rise to the case at bench are as follows: Petitioner Leouel Santos, Sr., an army lieutenant, and Julia Bedia a nurse by profession, were married in Iloilo City in 1986. Their union beget only one child, Leouel Santos, Jr. who was born July 18, 1987. From the time the boy was released from the hospital until sometime thereafter, he had been in the care and custody of his maternal grandparents, private respondents herein, Leopoldo and Ofelia Bedia. Petitioner and wife Julia agreed to place Leouel Jr. in the temporary custody of the latter's parents, the respondent spouses Bedia. The latter alleged that they paid for all the hospital bills, as well as the subsequent support of the boy because petitioner could not afford to do so. The boy's mother, Julia Bedia-Santos, left for the United States in May 1988 to work. Petitioner alleged that he is not aware of her whereabouts and his efforts to locate her in the United States proved futile. Private respondents claim that although abroad, their daughter Julia had been sending financial support to them for her son. On September 2, 1990, petitioner along with his two brothers, visited the Bedia household, where three-year old Leouel Jr. was staying. Private respondents contend that through deceit and false pretensions, petitioner abducted the boy and clandestinely spirited him away to his hometown in Bacong, Negros Oriental. The spouses Bedia then filed a "Petition for Care, Custody and Control of Minor Ward Leouel Santos Jr.," before the Regional Trial Court of Iloilo City, with Santos, Sr. as respondent. 2

attempt to obtain an annulment of the marriage on the ground of psychological incapacity of his wife has failed. 19 Petitioner assails the decisions of both the trial court and the appellate court to award custody of his minor son to his parents-in-law, the Bedia spouses on the ground that under Art. 214 of the Family Code, substitute parental authority of the grandparents is proper only when both parents are dead, absent or unsuitable. Petitioner's unfitness, according to him, has not been successfully shown by private respondents. The Court of Appeals held that although there is no evidence to show that petitioner (Santos Sr.) is "depraved, a habitual drunkard or poor, he may nevertheless be considered, as he is in fact so considered, to be unsuitable to be allowed to have custody of minor Leouel Santos Jr." 20 The respondent appellate court, in affirming the trial court's order of October 8, 1990, adopted as its own the latter's observations, to wit: From the evidence adduced, this Court is of the opinion that it is to be (sic) best interest of the minor Leouel Santos, Jr. that he be placed under the care, custody, and control of his maternal grandparents the petitioners herein. The petitioners have amply demonstrated their love and devotion to their grandson while the natural father, respondent herein, has shown little interest in his welfare as reflected by his conduct in the past. Moreover the fact that petitioners are well-off financially, should be carefully considered in awarding to them the custody of the minor herein, lest the breaking of such ties with his maternal grandparents might deprive the boy of an eventual college education and other material advantages (Consaul vs. Consaul, 63 N.Y.S. 688). Respondent had never given any previous financial support to his son, while, upon the other hand, the latter receives so much bounty from his maternal grandparents and his mother as well, who is now gainfully employed in the United States. Moreover, the fact that respondent, as a military personnel who has to shuttle from one assignment to another, and, in these troubled times, may have pressing and compelling military duties which may prevent him from attending to his son at times when the latter needs him most, militates strongly against said respondent. Additionally, the child is sickly and asthmatic and needs the loving and tender care of those who can provide for it. 21 We find the aforementioned considerations insufficient to defeat petitioner's parental authority and the concomitant right to have custody over the minor Leouel Santos, Jr., particularly since he has not been shown to be an unsuitable and unfit parent. Private respondents' demonstrated love and affection for the boy, notwithstanding, the legitimate father is still preferred over the grandparents. 22 The latter's wealth is not a deciding factor, particularly because there is no proof that at the present time, petitioner is in no position to support the boy. The fact that he was unable to provide financial support for his minor son from birth up to over three years when he took the boy from his in-laws without permission, should not be sufficient reason to strip him of his permanent right to the child's custody. While petitioner's previous inattention is inexcusable and merits only the severest criticism, it cannot be construed as abandonment. His appeal of the unfavorable decision against him and his efforts to keep his only child in his custody may be regarded as serious efforts to rectify his past misdeeds. To award him custody would help enhance the bond between parent and son. It would also give the father a chance to prove his love for his son and for the son to experience the warmth and support which a father can give. His being a soldier is likewise no bar to allowing him custody over the boy. So many men in uniform who are assigned to different parts of the country in the service of the nation, are still the natural guardians of their children. It is not just to deprive our soldiers of authority, care and custody over their children merely because of the normal consequences of their duties and assignments, such as temporary separation from their families. Petitioner's employment of trickery in spiriting away his boy from his in-laws, though unjustifiable, is likewise not a ground to wrest custody from him. Private respondents' attachment to the young boy whom they have reared for the past three years is understandable. Still and all, the law considers the natural love of a parent to outweigh that of the grandparents, such that only

when the parent present is shown to be unfit or unsuitable may the grandparents exercise substitute parental authority, a fact which has not been proven here. The strong bonds of love and affection possessed by private respondents as grandparents should not be seen as incompatible with petitioner' right to custody over the child as a father. Moreover, who is to say whether the petitioner's financial standing may improve in the future? WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals dated April 30, 1992 as well as its Resolution dated November 13, 1992 are hereby REVERSED and SET ASIDE. Custody over the minor Leouel Santos Jr. is awarded to his legitimate father, herein petitioner Leouel Santos, Sr. --

DAISIE T. DAVID vs. COURT OF APPEALS, RAMON R. VILLAR Petitioner Daisie T. David worked as secretary of private respondent Ramon R. Villar, a businessman in Angeles City. Private respondent is a married man and the father of four children, all grown-up. After a while, the relationship between petitioner and private respondent developed into an intimate one, as a result of which a son, Christopher J., was born on March 9, 1985 to them. Christopher J. was followed by two more children, both girls, namely Christine, born on June 9, 1986, and Cathy Mae on April 24, 1988. The relationship became known to private respondent's wife when Daisie took Christopher J, to Villar's house at Villa Teresa in Angeles City sometime in 1986 and introduced him to Villar's legal wife. After this, the children of Daisie were freely brought by Villar to his house as they were eventually accepted by his legal family. In the summer of 1991, Villar asked Daisie to allow Christopher J., then six years of age, to go with his family to Boracay. Daisie agreed, but after the trip, Villar refused to give back the child. Villar said he had enrolled Christopher J. at the Holy Family Academy for the next school year. On July 30, 1991, Daisie filed a petition for habeas corpus on behalf of Christopher J. After hearing, the Regional Trial Court, Branch 58 at Angeles City, rendered a decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered in favor of the petitioner and against the respondent: 1. the rightful custody of the minor Christopher J. T. David is hereby given to the natural mother, the herein petitioner Daisie T. David; 2. respondent is hereby ordered to give a temporary support of P3,000.00 a month to the subject minor Christopher J. T. David, Christine David and Cathy Mae David to take effect upon the finality of this decision; and 3. to pay the costs of this suit. SO ORDERED. On appeal, the Court of Appeals reversed, holding: We agree with the respondent-appellant's view that this is not proper in a habeas corpus case. Law and jurisprudence wherein the question of custody of a minor child may be decided in a habeas corpus case contemplate a situation where the parents are married to each other but are separated. This is so because under the Family Code, the father and mother have joint

parental authority over their legitimate children and in case of separation of the parents there is need to determine rightful custody of their children. The same does not hold true in an adulterous relationship, as in the case at bar, the child born out of such a relationship is under the parental authority of the mother by express provision of the law. Hence, the question of custody and support should be brought in a case singularly filed for the purpose. In point of fact, this is more advisable in the case at bar because the trial court did not acquire jurisdiction over the other minor children of the petitionerappellee and respondent-appellant and, therefore, cannot properly provide for their support. Admittedly, respondent-appellant is financially well-off, he being a very rich businessman; whereas, petitionerappellee depends upon her sisters and parents for support. In fact, he financially supported petitionerappellee and her three minor children. It is, therefore, for the best interest of Christopher J that he should temporarily remain under the custody of respondentappellant until the issue on custody and support shall have been determined in a proper case. WHEREFORE, the decision appealed from is hereby SET ASIDE, and a NEW ONE ENTERED dismissing the petition for habeas corpus in Special Proceeding No. 4489. Daisie in turn filed this petition for review of the appellate court's decision. Rule 102, 1 of the Rules of Court provides that "the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." It is indeed true, as the Court of Appeals observed, that the determination of the right to the custody of minor children is relevant in cases where the parents, who are married to each other, are for some reason separated from each other. It does not follow, however, that it cannot arise in any other situation. For example, in the case of Salvaa v. Gaela, 1 it was held that the writ of habeas corpus is the proper remedy to enable parents to regain the custody of a minor daughter even though the latter be in the custody of a third person of her free will because the parents were compelling her to marry a man against her will. In the case at bar, Christopher J. is an illegitimate child since at the time of his conception, his father, private respondent Ramon R. Villar, was married to another woman other than the child's mother. As such, pursuant to Art. 176 of the Family Code, Christopher J. is under the parental authority of his mother, the herein petitioner, who, as a consequence of such authority, is entitled to have custody of him. 2 Since, admittedly, petitioner has been deprived of her rightful custody of her child by private respondent, she is entitled to issuance of the writ of habeas corpus. Indeed, Rule 1021 1 makes no distinction between the case of a mother who is separated from her husband and is entitled to the custody of her child and that of a mother of an illegitimate child who, by law, is vested with sole parental authority, but is deprived of her rightful custody of her child. The fact that private respondent has recognized the minor child may be a ground for ordering him to give support to the latter, but not for giving him custody of the child. Under Art. 213 of the Family Code, "no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise." 3 Nor is the fact that private respondent is well-off a reason for depriving petitioner of the custody of her children, especially considering that she has been able to rear and support them on her own since they were born. Petitioner is a market vendor earning from P2,000 to P3,000 per month in 1993 when the RTC decision was rendered. She augments her income by working as secretary at the Computer System Specialist, Inc. earning a monthly income of P4,500.00. She has an arrangement with her employer so that she can personally attend to her children. She works up to 8:00 o'clock in the evening to make up for time lost during the day. That she receives help from her parents and sister for the support of the three children is not a point against her. Cooperation, compassion, love and concern for every member of

the family are characteristics of the close family ties that bind the Filipino family and have made it what it is. Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means. The Regional Trial Court ordered private respondent to give temporary support to petitioner in the amount of P3,000.00 a month, pending the filing of an action for support, after finding that private respondent did not give any support to his three children by Daisie, except the meager amount of P500.00 a week which he stopped giving them on June 23, 1992. He is a rich man who professes love for his children. In fact he filed a motion for the execution of the decision of the Court of Appeals, alleging that he had observed his son "to be physically weak and pale because of malnutrition and deprivation of the luxury and amenities he was accustomed to when in the former custody of the respondent." He prayed that he be given the custody of the child so that he can provide him with the "proper care and education." Although the question of support is proper in a proceeding for that purpose, the grant of support in this case is justified by the fact that private respondent has expressed willingness to support the minor child. The order for payment of allowance need not be conditioned on the grant to him of custody of the child. Under Art. 204 of the Family Code, a person obliged to give support can fulfill his obligation either by paying the allowance fixed by the court or by receiving and maintaining in the family dwelling the person who is entitled to support unless, in the latter case, there is "a moral or legal obstacle thereto." In the case at bar, as has already been pointed out, Christopher J., being less than seven years of age at least at the time the case was decided by the RTC, cannot be taken from the mother's custody. Even now that the child is over seven years of age, the mother's custody over him will have to be upheld because the child categorically expressed preference to live with his mother. Under Art. 213 of the Family Code, courts must respect the "choice of the child over seven years of age, unless the parent chosen is unfit" and here it has not been shown that the mother is in any way unfit to have custody of her child. Indeed, if private respondent loves his child, he should not condition the grant of support for him on the award of his custody to him (private respondent). WHEREFORE, the decision of the Court of Appeals is REVERSED and private respondent is ORDERED to deliver the minor Christopher J. T. David to the custody of his mother, the herein petitioner, and to give him temporary support in the amount of P3,000.00, pending the fixing of the amount of support in an appropriate action. --

JOEY D. BRIONES, petitioner, vs. MARICEL P. MIGUEL, FRANCISCA P. MIGUEL and LORETA P. MIGUEL, respondents. An illegitimate child is under the sole parental authority of the mother. In the exercise of that authority, she is entitled to keep the child in her company. The Court will not deprive her of custody, absent any imperative cause showing her unfitness to exercise such authority and care. The Case The Petition for Review[1] before the Court seeks to reverse and set aside the August 28, 2002 Decision[2] and the December 11, 2002 Resolution[3] of the Court of Appeals in CA-GR SP No. 69400.[4] The dispositive portion of the assailed Decision reads as follows: WHEREFORE, the petition is hereby DISMISSED. Respondent Loreta P. Miguel shall have custody over the child Michael Kevin Pineda until he reaches ten (10) years of age. Once the said child is beyond ten (10) years of age, the Court allows him to choose which parent he prefers to live with pursuant to Section 6, Rule 99 of the 1997 Rules of Civil Procedure, as amended. The petitioner, Joey D. Briones, shall help support the child, shall have visitorial rights at least once a week, and may take the child out upon the written consent of the mother. Acting on the petitioners Urgent Motion for a Hold Departure Order, and finding it to be without merit, the same is DENIED.[5]

The challenged Resolution denied reconsideration. The Facts The CA summarized the antecedents of the case in this wise: On March 5, 2002, petitioner Joey D. Briones filed a Petition for Habeas Corpus against respondents Maricel Pineda Miguel and Francisca Pineda Miguel, to obtain custody of his minor child Michael Kevin Pineda. On April 25, 2002, the petitioner filed an Amended Petition to include Loreta P. Miguel, the mother of the minor, as one of the respondents. A Writ of Habeas Corpus was issued by this Court on March 11, 2002 ordering the respondents to produce before this Court the living body of the minor Michael Kevin Pineda on March 21, 2002 at 2:00 oclock in the afternoon. The petitioner alleges that the minor Michael Kevin Pineda is his illegitimate son with respondent Loreta P. Miguel. He was born in Japan on September 17, 1996 as evidenced by his Birth Certificate. The respondent Loreta P. Miguel is now married to a Japanese national and is presently residing in Japan. The petitioner further alleges that on November 4, 1998 he caused the minor child to be brought to the Philippines so that he could take care of him and send him to school. In the school year 2000-2001, the petitioner enrolled him at the nursery school of Blessed Angels L.A. School, Inc. in Caloocan City, where he finished the nursery course. According to the petitioner, his parents, who are both retired and receiving monthly pensions, assisted him in taking care of the child. On May 2, 2001, respondents Maricel P. Miguel and Francisca P. Miguel came to the house of the petitioner in Caloocan City on the pretext that they were visiting the minor child and requested that they be allowed to bring the said child for recreation at the SM Department store. They promised him that they will bring him back in the afternoon, to which the petitioner agreed. However, the respondents did not bring him back as promised by them. The petitioner went several times to respondent Maricel P. Miguel at Tanza, Tuguegarao City but he was informed that the child is with the latters mother at Batal Heights, Santiago City. When he went there, respondent Francisca P. Miguel told him that Michael Kevin Pineda is with her daughter at Tuguegarao City. He sought the assistance of the police and the Department of Social Welfare to locate his son and to bring him back to him, but all his efforts were futile. Hence, he was constrained to file a Petition for Habeas Corpus with the Regional Trial Court of Caloocan City which was docketed as SPC No. 2711. However, the said case was withdrawn ex-parte. The petitioner prays that the custody of his son Michael Kevin Pineda be given to him as his biological father and [as] he has demonstrated his capability to support and educate him. On May 6, 2002, the respondents filed their Comment, in compliance with the May 2, 2002 Resolution of this Court. In their Comment, the respondent Loreta P. Miguel denies the allegation of the petitioner that he was the one who brought their child to the Philippines and stated that she was the one who brought him here pursuant to their agreement. Respondent Loreta P. Miguel likewise denies petitioners allegation that respondents Maricel P. Miguel and Francisca P. Miguel were the ones who took the child from the petitioner or the latters parents. She averred that she was the one who took Michael Kevin Pineda from the petitioner when she returned to the Philippines and that the latter readily agreed and consented. Respondent Loreta P. Miguel alleges that sometime in October 2001, the petitioner was deported from Japan under the assumed name of Renato

Juanzon when he was found to have violated or committed an infraction of the laws of Japan. She further stated that since the time the petitioner arrived in the Philippines, he has not been gainfully employed. The custody of the child, according to respondent Loreta P. Miguel was entrusted to petitioners parents while they were both working in Japan. She added that even before the custody of the child was given to the petitioners parents, she has already been living separately from the petitioner in Japan because the latter was allegedly maintaining an illicit affair with another woman until his deportation. She likewise stated in her Comment that her marriage to a Japanese national is for the purpose of availing of the privileges of staying temporarily in Japan to pursue her work so she could be able to send money regularly to her son in the Philippines. She further stated that she has no intention of staying permanently in Japan as she has been returning to the Philippines every six (6) months or as often as she could. Respondent Loreta P. Miguel prays that the custody of her minor child be given to her and invokes Article 213, Paragraph 2 of the Family Code and Article 363 of the Civil Code of the Philippines. Ruling of the Court of Appeals Applying Article 213 (paragraph 2) of the Family Code, the CA awarded the custody of Michael Kevin Pineda Miguel to his mother, Respondent Loreta P. Miguel. While acknowledging that petitioner truly loved and cared for his son and considering the trouble and expense he had spent in instituting the legal action for custody, it nevertheless found no compelling reason to separate the minor from his mother. Petitioner, however, was granted visitorial rights. Hence, this Petition.[6] Issue In his Memorandum, petitioner formulated the ultimate issue as follows: x x x [w]hether or not [he], as the natural father, may be denied the custody and parental care of his own child in the absence of the mother who is away.[7] The Courts Ruling The Petition has no merit. However, the assailed Decision should be modified in regard to its erroneous application of Section 6 of Rule 99 of the Rules of Court. Sole Issue Who Should Have Custody of the Child? Petitioner concedes that Respondent Loreta has preferential right over their minor child. He insists, however, that custody should be awarded to him whenever she leaves for Japan and during the period that she stays there. In other words, he wants joint custody over the minor, such that the mother would have custody when she is in the country. But when she is abroad, he - as the biological father -- should have custody. According to petitioner, Loreta is not always in the country. When she is abroad, she cannot take care of their child. The undeniable fact, he adds, is that she lives most of the time in Japan, as evidenced by her Special Power of Attorney dated May 28, 2001,[8] granting to her sister temporary custody over the minor. At present, however, the child is already with his mother in Japan, where he is studying,[9] thus rendering petitioners argument moot. While the Petition for Habeas Corpus was pending before the CA, petitioner filed on July 30, 2002, an Urgent Motion for a Hold Departure Order,[10] alleging therein that respondents were preparing the travel papers of the minor so the child could join his mother and her Japanese husband. The CA denied the Motion for lack of merit.[11] Having been born outside a valid marriage, the minor is deemed an illegitimate child of petitioner and Respondent Loreta. Article 176 of the Family Code of the Philippines[12] explicitly provides that illegitimate children shall use the surname and shall be under the parental authority of

their mother, and shall be entitled to support in conformity with this Code. This is the rule regardless of whether the father admits paternity.[13] Previously, under the provisions of the Civil Code, illegitimate children were generally classified into two groups: (1) natural, whether actual or by legal fiction; and (2) spurious, whether incestuous, adulterous or illicit.[14] A natural child is one born outside a lawful wedlock of parents who, at the time of conception of the child, were not disqualified by any impediment to marry each other.[15] On the other hand, a spurious child is one born of parents who, at the time of conception, were disqualified to marry each other on account of certain legal impediments.[16] Parental authority over recognized natural children who were under the age of majority was vested in the father or the mother recognizing them.[17] If both acknowledge the child, authority was to be exercised by the one to whom it was awarded by the courts; if it was awarded to both, the rule as to legitimate children applied. In other words, in the latter case, parental authority resided jointly in the father and the mother.[18] The fine distinctions among the various types of illegitimate children have been eliminated in the Family Code.[19] Now, there are only two classes of children -- legitimate (and those who, like the legally adopted, have the rights of legitimate children) and illegitimate. All children conceived and born outside a valid marriage are illegitimate, unless the law itself gives them legitimate status.[20] Article 54 of the Code provides these exceptions: Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. Under Article 176 of the Family Code, all illegitimate children are generally placed under one category, without any distinction between natural and spurious.[21] The concept of natural child is important only for purposes of legitimation.[22] Without the subsequent marriage, a natural child remains an illegitimate child. Obviously, Michael is a natural (illegitimate, under the Family Code) child, as there is nothing in the records showing that his parents were suffering from a legal impediment to marry at the time of his birth. Both acknowledge that Michael is their son. As earlier explained and pursuant to Article 176, parental authority over him resides in his mother, Respondent Loreta, notwithstanding his fathers recognition of him. David v. Court of Appeals[23] held that the recognition of an illegitimate child by the father could be a ground for ordering the latter to give support to, but not custody of, the child. The law explicitly confers to the mother sole parental authority over an illegitimate child; it follows that only if she defaults can the father assume custody and authority over the minor. Of course, the putative father may adopt his own illegitimate child;[24] in such a case, the child shall be considered a legitimate child of the adoptive parent.[25] There is thus no question that Respondent Loreta, being the mother of and having sole parental authority over the minor, is entitled to have custody of him.[26] She has the right to keep him in her company.[27] She cannot be deprived of that right,[28] and she may not even renounce or transfer it except in the cases authorized by law.[29] Not to be ignored in Article 213 of the Family Code is the caveat that, generally, no child under seven years of age shall be separated from the mother, except when the court finds cause to order otherwise. Only the most compelling of reasons, such as the mothers unfitness to exercise sole parental authority, shall justify her deprivation of parental authority and the award of custody to someone else.[30] In the past, the following grounds have been considered ample justification to deprive a mother of custody and parental authority: neglect or abandonment,[31] unemployment, immorality,[32] habitual drunkenness, drug addiction, maltreatment of the child, insanity, and affliction with a communicable disease. Bearing in mind the welfare and the best interest of the minor as the controlling factor,[33] we hold that the CA did not err in awarding care, custody, and control of the child to Respondent Loreta. There is no showing at all that she is unfit to take charge of him.

We likewise affirm the visitorial right granted by the CA to petitioner. In Silva v. Court of Appeals,[34] the Court sustained the visitorial right of an illegitimate father over his children in view of the constitutionally protected inherent and natural right of parents over their children.[35] Even when the parents are estranged and their affection for each other is lost, their attachment to and feeling for their offspring remain unchanged. Neither the law nor the courts allow this affinity to suffer, absent any real, grave or imminent threat to the well-being of the child. However, the CA erroneously applied Section 6 of Rule 99 of the Rules of Court. This provision contemplates a situation in which the parents of the minor are married to each other, but are separated either by virtue of a decree of legal separation or because they are living separately de facto. In the present case, it has been established that petitioner and Respondent Loreta were never married. Hence, that portion of the CA Decision allowing the child to choose which parent to live with is deleted, but without disregarding the obligation of petitioner to support the child. WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED with the MODIFICATION that the disposition allowing the child, upon reaching ten (10) years of age, to choose which parent to live with is DELETED for lack of legal basis. Costs against petitioner. --

JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO V, respondent. 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. PABLOGUALBERTO, respondents. 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 CAGR 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 t hat 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 wit h 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. 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]

3.

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 fouryear 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. x x x xxx xxx

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.

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

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[42] of Rule 99 of the Rules of Court has been held to connote a mandatory 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 BautistaRicafort, 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. -SALIENTES vs. SALIENTES The instant petition assails the Decision [1] dated November 10, 2003 of the Court of Appeals in CA-G.R. SP No. 75680, which dismissed the petition for certiorari against the orders of the Regional Trial Court in Special Proceedings No. 03-004. Likewise assailed is the Court of Appeals Resolution [2] dated March 19, 2004 denying reconsideration. The facts of the case are as follows: Private respondent Loran S.D. Abanilla and petitioner Marie Antonette Abigail C. Salientes are the parents of the minor Lorenzo Emmanuel S. Abanilla. They lived with Marie Antonettes parents, petitioners Orlando B. Salientes and Rosario C. Salientes. Due to in-laws problems, private respondent suggested to his wife that they transfer to their own house, but Marie Antonette refused. So, he alone left the house of the Salientes. Thereafter, he was prevented from seeing his son. Later, Loran S.D. Abanilla in his personal capacity and as the representative of his son, filed a Petition for Habeas Corpus and Custody, [3] docketed as Special Proceedings No. 03-004 before the Regional Trial Court of Muntinlupa City. On January 23, 2003, the trial court issued the following order: Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the Respondents Marie Antonette Abigail C. Salientes, Orlando B. Salientes and Rosario C. Salientes are hereby directed to produce and bring before this Court the body of minor Lorenzo Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 oclock in the afternoon and to show cause why the said child should not be discharged from restraint. Let this Writ be served by the Sheriff or any authorized representative of this Court, who is directed to immediately make a return. SO ORDERED. [4]

Petitioners moved for reconsideration which the court denied. Consequently, petitioners filed a petition for certiorari with the Court of Appeals, but the same was dismissed on November 10, 2003. The appellate court affirmed the February 24, 2003 Order of the trial court holding that its January 23, 2003 Order did not award the custody of the 2-year-old child to any one but was simply the standard order issued for the production of restrained persons. The appellate court held that the trial court was still about to conduct a full inquiry, in a summary proceeding, on the cause of the minors detention and the matter of his custody. The Court of Appeals ruled thus: WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED. [5] Petitioners moved for reconsideration, which was denied on March 19, 2004. Hence, petitioners interposed this appeal by certiorari anchored on the following grounds: 1. The Court of Appeals erred in not pronouncing the respondent judge gravely abused his discretion, amounting to lack or in excess of jurisdiction in issuing an order for the petitioner-mother to first show cause why her own three-year old child in her custody should not be discharged from a so-called restraint despite no evidence at all of restraint and no evidence of compelling reasons of maternal unfitness to deprive the petitioner-mother of her minor son of tender years. The assailed orders, resolutions and decisions of the lower court and the Court of Appeals are clearly void; 2. The Court of Appeals erred in not pronouncing that the respondent judge gravely abused his discretion in issuing a writ of habeas corpus which clearly is not warranted considering that there is no unlawful restraint by the mother and considering further that the law presumes the fitness of the mother, thereby negating any notion of such mother illegally restraining or confining her very own son of tender years. The petition is not even sufficient in substance to warrant the writ. The assailed orders are clearly void. 3. Contrary to the Court of Appeals decision, the Sombong vs. CA case supports rather than negates the position of the petitioners. 4. Contrary to the Court of Appeals decision, summary proceeding does violence to the tender-years-rule 5. The Court of Appeals failed to consider that the private respondent failed to present prima facie proof of any compelling reason of the unfitness of the petitioner-mother; 6. The Court of Appeals failed to see that the New Rules on Custody SUFFICES AS REMEDY. [6] Plainly put, the issue is: Did the Court of Appeals err when it dismissed the petition for certiorari against the trial courts orders dated January 23, 2003 and February 24, 2003? Petitioners contend that the order is contrary to Article 213 [7] of the Family Code, which provides that no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise. They maintain that herein respondent Loran had the burden of showing any compelling reason but failed to present even a prima facie proof thereof. Petitioners posit that even assuming that there were compelling reasons, the proper remedy for private respondent was simply an action for custody, but not habeas corpus. Petitioners assert that habeas corpus is unavailable against the mother who, under the law, has the right of custody of the minor. They insist there was no illegal or involuntary restraint of the minor by his own mother. There was no need for the mother to show cause and explain the custody of her very own child. Private respondent counters that petitioners argument based on Article 213 of the Family Code applies only to the second part of his petition regarding the custody of his son. It does not address the first part, which pertains to his right as the father to see his son. He asserts that the writ of habeas corpus is available against any person who restrains the minors right to see his father and vice versa. He avers that the instant petition is merely filed for delay, for had petitioners really intended to bring the child before the court in accordance with the new rules on custody of minors, they would have done so on the dates specified in the January 23, 2003 and the February 24, 2003 orders of the trial court. Private respondent maintains that, under the law, he and petitioner Marie Antonette have shared custody and parental authority over their son. He alleges that at times when petitioner Marie Antonette is out of the country as required of her job as an international flight stewardess, he, the father, should have custody of their son and not the maternal grandparents. As correctly pointed out by the Court of Appeals, the assailed January 23, 2003 Order of the trial court did not grant custody of the minor to

any of the parties but merely directed petitioners to produce the minor in court and explain why they are restraining his liberty. The assailed order was an interlocutory order precedent to the trial courts full inquiry into the issue of custody, which was still pending before it. Under Rule 41, Section 1 [8] of the Rules of Court, an interlocutory order is not appealable but the aggrieved party may file an appropriate special action under Rule 65. The aggrieved party must show that the court gravely abused its discretion in issuing the interlocutory order. In the present case, it is incumbent upon petitioners to show that the trial court gravely abused its discretion in issuing the order. Habeas corpus may be resorted to in cases where rightful custody is withheld from a person entitled thereto. [9] Under Article 211 [10] of the Family Code, respondent Loran and petitioner Marie Antonette have joint parental authority over their son and consequently joint custody. Further, although the couple is separated de facto, the issue of custody has yet to be adjudicated by the court. In the absence of a judicial grant of custody to one parent, both parents are still entitled to the custody of their child. In the present case, private respondents cause of action is the deprivation of his right to see his child as alleged in his petition. [11] Hence, the remedy of habeas corpus is available to him. In a petition for habeas corpus, the childs welfare is the supreme consideration. The Child and Youth Welfare Code [12] unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. [13] Again, it bears stressing that the order did not grant custody of the minor to any of the parties but merely directed petitioners to produce the minor in court and explain why private respondent is prevented from seeing his child. This is in line with the directive in Section 9 [14] of A.M. 03-04-04SC [15] that within fifteen days after the filing of the answer or the expiration of the period to file answer, the court shall issue an order requiring the respondent (herein petitioners) to present the minor before the court. This was exactly what the court did. Moreover, Article 213 of the Family Code deals with the judicial adjudication of custody and serves as a guideline for the proper award of custody by the court. Petitioners can raise it as a counter argument for private respondents petition for custody. But it is not a basis for preventing the father to see his own child. Nothing in the said provision disallows a father from seeing or visiting his child under seven years of age. In sum, the trial court did not err in issuing the orders dated January 23, 2003 and February 24, 2003. Hence, the Court of Appeals properly dismissed the petition for certiorari against the said orders of the trial court. WHEREFORE, the petition is DENIED. The Decision dated November 10, 2003 and the Resolution dated March 19, 2004 of the Court of Appeals in CA-G.R. SP No. 75680 are AFFIRMED. Costs against petitioners. --

PEOPLE OF THE PHILIPPINES vs. AIDA MARQUEZ For review is the August 29, 2007 Decision1 of the Court of Appeals in CAG.R. CR.-H.C. No. 00467, which affirmed with modification the Regional Trial Courts (RTC) January 21, 2004 Decision2 in Criminal Case No. 99-106, wherein accused-appellant Aida Marquez (Marquez), also known as Aida Pulido, was found guilty beyond reasonable doubt of the crime of Kidnapping and Failure to Return a Minor as defined and penalized under Article 270 of the Revised Penal Code, as amended by Republic Act No. 18;3 was sentenced to serve the penalty of reclusion perpetua; and was ordered to pay the offended party Fifty Thousand Pesos (P50,000.00) as moral damages and Twenty Thousand Pesos (P20,000.00) as exemplary damages. On December 28, 1998, Marquez was charged with Kidnapping under Article 270 of the Revised Penal Code as amended by Republic Act No. 18, before the RTC, Branch 140 of Makati City.4 The Information reads in part as follows: That on or about the 6th day of September, 1998, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, being entrusted with the custody of a minor, JUSTINE BERNADETTE C. MERANO, a three (3) month old baby girl, did then and there willfully, unlawfully and feloniously deliberately fail to restore the latter to her parent, CAROLINA CUNANAN y MERANO (sic).5

Marquez pleaded not guilty to the crime charged in her arraignment on October 10, 2002.6 Trial on the merits followed the termination of the pre-trial conference. According to the complainant, Carolina Cunanan Merano (Merano), she met Marquez at the beauty parlor where she was working as a beautician. Merano confessed to easily trusting Marquez because aside from her observation that Marquez was close to her employers, Marquez was also nice to her and her co-employees, and was always giving them food and tip.7 On September 6, 1998, after a trip to a beach in Laguna, Marquez allegedly borrowed Meranos then three-month old daughter Justine Bernadette C. Merano (Justine) to buy her some clothes, milk and food. Merano said she agreed because it was not unusual for Marquez to bring Justine some things whenever she came to the parlor. When Marquez failed to return Justine in the afternoon as promised, Merano went to her employers house to ask them for Marquezs address. However, Merano said that her employers just assured her that Justine will be returned to her soon. 8 Merano averred that she searched for her daughter but her efforts were unsuccessful until she received a call from Marquez on November 11, 1998. During that call, Marquez allegedly told Merano that she will return Justine to Merano the following day and that she was not able to do so because her own son was sick and was confined at the hospital. Marquez also allegedly asked Merano for Fifty Thousand Pesos (P50,000.00) for the expenses that she incurred while Justine was with her.9 When the supposed return of Justine did not happen, Merano claimed that she went to Marquezs house, using the sketch that she got from her employers driver, but Marquez was not home. Upon talking to Marquezs maid, Merano learned that Justine was there for only a couple of days. Merano left a note for Marquez telling her that she will file a case against Marquez if Justine is not returned to her. 10 Merano afterwards went to see then Mayor Alfredo Lim to ask for his help. Merano said that Mayor Lim referred her to Inspector Eleazar of San Pedro, Laguna, who assigned two police officers to accompany her to Marquezs house. When Merano did not find Justine in Marquezs house, she went back to Inspector Eleazar who told her to come back the following day to confront Marquez whom he will call. Merano came back the next day as instructed but Marquez did not show up.11 On November 17, 1998, Merano gave her sworn statement to the police and filed a complaint against Marquez. On February 11, 1999, Marquez allegedly called Merano up again to tell her to pick up her daughter at Modesto Castillos (Castillo) house in Tiaong, Quezon. The following day, Merano, accompanied by Senior Police Officer (SPO) 2 Diosdado Fernandez and SPO4 Rapal, went to the house of Castillo in Quezon. Merano claimed that Castillo told her that Marquez sold Justine to him and his wife and that they gave Marquez Sixty Thousand Pesos (P60,000.00) supposedly for Merano who was asking for money. Castillo even gave Merano a photocopy of the handwritten "Kasunduan" dated May 17, 1998, wherein Merano purportedly gave Justine to the Castillo spouses.12 The Castillos asked Merano not to take Justine as they had grown to love her but Merano refused. However, she was still not able to take Justine home with her because the police advised her to go through the proper process as the Castillos might fight for their right to retain custody of Justine.13 Merano then learned from Castillo that in an effort to legalize the adoption of Justine, the Castillos turned over custody of Justine to the Reception and Study Center for Children of the Department of Social Welfare and Development.14 To defend herself, Marquez proffered her own version of what had happened during her testimony.15 Marquez said that she had only formally met Merano on September 6, 1998 although she had known of her for some time already because Merano worked as a beautician at the beauty parlor of Marquezs financier in her real estate business. Marquez alleged that on that day, Merano offered Justine to her for adoption. Marquez told Merano that she was not interested but she could refer her to her friend Modesto Castillo (Castillo). That very same night, while Marquez was taking care of her son who was then confined at the Makati Medical Center, Merano allegedly proceeded to Marquezs house in Laguna and left Justine with Marquezs maid. The following day, while Marquez was at the hospital again, Castillo, accompanied by his mother, went to Marquezs house to pick up Justine. Since Marquez was out, she instructed her maid not to give Justine to Castillo for fear of possible problems. However, she still found Justine gone upon her return home that evening. Marquez allegedly learned of the encounter between the Castillos and Merano when a San Pedro police officer called Marquez to tell her that Merano, accompanied by two police officers, went to Castillos house to get Justine. This was confirmed by Castillo who also called Marquez and told her that Merano offered Justine to him for adoption.16

SPO2 Fernandez, one of the police officers who accompanied Merano to Castillos house in February 1999, was presented by the defense to prove that he was a witness to the execution of a document wherein Merano gave up her right to Justine to the Castillo spouses. Fernandez said that on February 12, 1999, he and SPO4 Rapal accompanied Merano to the house of Castillo where Justine was allegedly being kept. When they arrived at Castillos house, where they found baby Justine, Merano and Castillo talked and after sometime, they arrived at an agreement regarding Justines adoption. SPO2 Fernandez averred that he, Castillo, Merano and SPO4 Rapal left Castillos house to go to a lawyer near Castillos house. After the agreement was put into writing, they all signed the document, entitled "Kasunduan sa Pagtalikod sa Karapatan at Pagpapa-ampon sa Isang Anak,"17 with Castillo and Merano as parties to the agreement, and SPO2 Fernandez and SPO4 Rapal as witnesses. SPO2 Fernandez claimed that he was surprised that Merano gave up Justine for adoption when they supposedly went there to get Justine back.18 On January 21, 2004, the RTC found Marquez guilty beyond reasonable doubt of the crime charged as follows: WHEREFORE, premises considered, this Court finds accused AIDA MARQUEZ a.k.a. AIDA PULIDO, GUILTY BEYOND REASONABLE DOUBT of KIDNAPPING AND FAILURE TO RETURN A MINOR under Article 270 of the Revised Penal Code as amended by Republic Act. No. 18 and is hereby sentenced to suffer the penalty of RECLUSION PERPETUA. For the Civil aspect, accused is ordered to pay private complainant FIFTY THOUSAND PESOS (PHP50,000.00) for moral damage and TWENTY THOUSAND PESOS (PHP20,000.00) for exemplary damage. Costs against the accused.19 The RTC recounted in detail the factual antecedents of the case and made a comprehensive synopsis of the testimonies of all the witnesses presented. In finding for the prosecution, the RTC held that the testimony of the complainant mother, Merano, was enough to convict the accused Marquez because it was credible and was corroborated by documentary evidence. 20 On intermediate appellate review, the Court of Appeals was faced with the lone assignment of error as follows: THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSEDAPPELLANT OF KIDNAPPING AND FAILURE TO RETURN A MINOR WHEN THE LATTERS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.21 On August 29, 2007, the Court of Appeals found Marquezs appeal to be unmeritorious and affirmed the RTCs decision with modifications on the damages awarded, to wit: WHEREFORE, the instant Appeal is DISMISSED. The assailed Decision, dated January 21 2004, of the Regional Trial Court of Makati City, Branch 140, is AFFIRMED with the MODIFICATIONS that nominal damages of P20,000.00 is hereby awarded in addition to the P50,000.00 moral damages, while the award for exemplary damages is accordingly deleted for lack of basis.22 The Court of Appeals, in affirming Marquezs conviction, relied on the satisfaction of the elements of the crime as charged. It said that the conflicting versions of the parties testimonies did not even matter as the fact remained that Marquez had, at the very least, constructive custody over Justine and she failed to return her when demanded to do so. The accused Marquez is now before us, still praying for a reversal of her conviction on the same arguments she submitted to the Court of Appeals. 23 After a painstaking scrutiny of the entire records of this case, this Court finds no reason to reverse the courts below. Marquez argues that her guilt was not proven beyond reasonable doubt because the elements constituting the crime of serious illegal detention or kidnapping are not present in this case.24

The crime of Kidnapping and Serious Illegal Detention falls under Article 267 of the Revised Penal Code, viz: Art. 267. Kidnapping and serious illegal detention. Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death: 1. If the kidnapping or detention shall have lasted more than three days. 2. If it shall have been committed simulating public authority. 3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained, or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer. Marquez further contends that it is illogical for her to voluntarily divulge to Merano the whereabouts of Justine, even recommending the assistance of police officers, if she were indeed guilty of kidnapping. Accused is mistaken, if not misled, in her understanding and appreciation of the crime she was charged with and eventually convicted of. A reading of the charge in the information shows that the act imputed to Marquez was not the illegal detention of a person, but involves her deliberate failure to restore a minor baby girl to her parent after being entrusted with said babys custody. Contrary to Marquezs assertions, therefore, she was charged with violation of Article 270, and not Article 267, of the Revised Penal Code. The Revised Penal Code considers it a crime when a person who has been entrusted with the custody of a minor later on deliberately fails to return said minor to his parent or guardian. This may be found in Article 270, which reads: Art. 270. Kidnapping and failure to return a minor. The penalty of reclusion perpetua shall be imposed upon any person who, being entrusted with the custody of a minor person, shall deliberately fail to restore the latter to his parents or guardians.25 This crime has two essential elements: 1. The offender is entrusted with the custody of a minor person; and 2. The offender deliberately fails to restore the said minor to his parents or guardians.26 This Court, in elucidating on the elements of Article 270, stated that while one of the essential elements of this crime is that the offender was entrusted with the custody of the minor, what is actually being punished is not the kidnapping but the deliberate failure of that person to restore the minor to his parents or guardians.27 As the penalty for such an offense is so severe, the Court further explained what "deliberate" as used in Article 270 means: Indeed, the word deliberate as used in Article 270 of the Revised Penal Code must imply something more than mere negligence - it must be premeditated, headstrong, foolishly daring or intentionally and maliciously wrong. 28 (Emphasis ours.) It is clear from the records of the case that Marquez was entrusted with the custody of Justine. Whether this is due to Meranos version of Marquez borrowing Justine for the day, or due to Marquezs version that Merano left Justine at her house, it is undeniable that in both versions, Marquez agreed to the arrangement, i.e., to temporarily take custody of Justine. It does not matter, for the first element to be present, how long said custody lasted as it cannot be denied that Marquez was the one entrusted with the custody of the minor Justine. Thus, the first element of the crime is satisfied.

As to the second element, neither party disputes that on September 6, 1998, the custody of Justine was transferred or entrusted to Marquez. Whether this lasted for months or only for a couple of days, the fact remains that Marquez had, at one point in time, physical and actual custody of Justine. Marquezs deliberate failure to return Justine, a minor at that time, when demanded to do so by the latters mother, shows that the second element is likewise undoubtedly present in this case. Marquezs insistence on Meranos alleged desire and intention to have Justine adopted cannot exonerate her because it has no bearing on her deliberate failure to return Justine to Merano. If it were true that Marquez merely facilitated Justines adoption, then there was no more need for Merano to contact Marquez and vice-versa, since Merano, as Marquez claimed, had direct access to Castillo. The evidence shows, however, that Merano desperately searched for a way to communicate with Marquez. As testified to by both Merano and Marquez, Marquez frequented the beauty parlor where Merano worked in, and yet, curiously, Marquez was nowhere to be found after September 6, 1998. It took Marquez more than two months before communicating with Merano again, after she supposedly facilitated the adoption of Justine. If Marquez were indeed surprised to learn about the charges against her, she would have made every effort to clear her name when she found out that there was a standing warrant for her arrest. She would have immediately contacted either Merano or Castillo to confront them on why she was being implicated in their arrangement. Finally, even if it were true that Merano subsequently agreed to have Castillo adopt Justine, as evidenced by the "Kasunduan sa Pagtalikod sa Karapatan at Pagpapaampon sa Isang Anak," this would still not affect Marquezs liability as the crime of kidnapping and failure to return the minor had been fully consummated upon her deliberate failure to return Justine to Merano. Marquez avers that the prosecutions "evidence has fallen short of the quantum of proof required for conviction" and that it has "failed to establish [her] guilt with moral certainty."29 Marquez argues that her testimony was not only straightforward and consistent but also corroborated by a duly respected police officer. She insists that Meranos testimony should not be believed as the only reason Merano filed this charge was because she failed to get the money she demanded from Marquez.30 This Court is constrained to once again reiterate the time-honored maxim that the trial courts assessment of the credibility of witnesses is entitled to the highest respect.31 In People v. Bondoc,32 a case also involving the accuseds failure to return a minor, we explained the rationale of this maxim: We find no cogent reason to disturb the findings of the trial court. The issue involved in this appeal is one of credibility, and this Court has invariably ruled that the matter of assigning values to the testimony of witnesses is best performed by the trial courts because they, unlike appellate courts, can weigh the testimony of witnesses in the light of the demeanor, conduct and attitude of the witnesses at the trial, except when circumstances of weight or influence were ignored or disregarded by them which does not obtain in the present case. Unless there is a showing that the trial court had overlooked, misunderstood or misapplied some fact or circumstance of weight that would have affected the result of the case, this Court will not disturb factual findings of the lower court. Having had the opportunity of observing the demeanor and behavior of witnesses while testifying, the trial court more than this Court is in a better position to gauge their credibility and properly appreciate the relative weight of the often conflicting evidence for both parties. When the issue is one of credibility, the trial court's findings are given great weight on appeal. 33 (Emphases ours.) The RTC, in finding Merano credible, stated: Between the two conflicting allegations, the Court, after taking into account all the testimonies and evidences presented by the prosecution and the defense, finds for the prosecution. The lone testimony of the complainant inspired credibility and was corroborated by the documents, to wit, she is the mother of the child and she searched for her child when accused failed to return her baby, filed this complaint when she failed to get her child and she was able to recover the child from the DSWD at its Reception and Study Center for Children (RSCC) as evidenced by the Discharge Slip after accused informed her that the child was with Modesto Castillo. If indeed the complainant had given up or have sold her baby, she would not have exhausted all efforts possible to find her baby. Further, the child would not have been in RSCC but it would have been with Modesto Castillo as per the document allegedly executed by Complainant. The testimony of the

complainant was straightforward and devoid of any substantial inconsistencies.34 The RTC found Marquezs defense of denial to be weak. It also outlined the inconsistencies in Marquezs testimonies which further destroyed her credibility. The manner of appreciating the defense of denial was discussed by this Court in this wise: As to the defense of denial, the same is inherently weak. Denial is a selfserving negative evidence, which cannot be given greater weight than that of the declaration of a credible witness who testifies on affirmative matters. Like alibi, denial is an inherently weak defense, which cannot prevail over the positive and credible testimonies of the prosecution witnesses. Denial cannot prevail over the positive testimonies of prosecution witnesses who were not shown to have any ill motive to testify against petitioner.35 Meranos credibility has been established by the trial court, to which the Court of Appeals agreed. This Court finds no reason to depart from these findings, especially since it was the trial court which had the opportunity to evaluate and assess the credibility of the witnesses presented before it. Both courts found Meranos testimony to be straightforward and consistent. Thus, Marquezs denial and inconsistent statements cannot prevail over Meranos positive and credible testimony. Anent Marquezs claim that SPO2 Fernandezs testimony corroborated hers, a perusal of the transcript of SPO2 Fernandezs testimony will reveal that its focus was mainly on how the agreement on Justines adoption came to be. The fact that SPO2 Fernandez may have corroborated Marquezs defense of adoption by testifying that he witnessed how Merano gave up her child for adoption to Castillo is irrelevant. As we have discussed above, the crime of kidnapping and failure to return a minor had been fully consummated way before the execution of the agreement in February 1999, the validity of which is not in issue before us now. Moreover, even if Merano had indeed given up Justine to Castillo on February 12, 1999, Meranos consent to have Justine adopted in 1999 has no impact on her demand to regain custody of Justine in 1998.1avvphi1 In People v. Bernardo,36 we held that the crime of kidnapping and failure to return a minor under Article 270 of the Revised Penal Code is clearly analogous to illegal and arbitrary detention or arrest, thereby justifying the award of moral damages. The award of nominal damages is also allowed under Article 2221 of the New Civil Code which states that: Article 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. It took Merano almost a year to legally recover her baby. Justine was only three months old when this whole debacle began. She was already nine months old when Merano saw her again. She spent her first birthday at the Reception and Study Center for Children of the Department of Social Welfare and Development.37 Evidently, Meranos right as a parent which was violated and invaded must be vindicated and recognized, thereby justifying the award of nominal damages. WHEREFORE, the Decision of the Court of Appeals dated August 29, 2007 in CA-G.R. CR. HC No. 00467 finding Aida Marquez GUILTY beyond reasonable doubt of the crime of KIDNAPPING AND FAILURE TO RETURN A MINOR under Article 270 of the Revised Penal Code is hereby AFFIRMED. No Costs. --

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.clxviii[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.clxix[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.

BONIFACIA P. VANCIL, petitioner, vs. HELEN G. BELMES, respondent. Petition for review on certiorari of the Decision of the Court of Appeals in CAG.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

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.clxx[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,clxxi[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,clxxii[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-16884clxxiii[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,clxxiv[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. -ST. MARYS ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S. CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL, SR., and VIVENCIO VILLANUEVA, respondents. The Case The case is an appeal via certiorari from the decisionclxxv[1] of the Court of Appeals as well as the resolution denying reconsideration, holding petitioner liable for damages arising from an accident that resulted in the death of a student who had joined a campaign to visit the public schools in Dipolog City to solicit enrollment. The Facts The facts, as found by the Court of Appeals, are as follows: Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St. Marys Academy before the Regional Trial Court of Dipolog City. On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its decision the dispositive portion of which reads as follows: WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the following manner:

1. Defendant St. Marys Academy of Dipolog City, is hereby ordered to pay plaintiffs William Carpitanos and Luisa Carpitanos, the following sums of money: a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of life of Sherwin S. Carpitanos; b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred by plaintiffs for burial and related expenses; c. TEN THOUSAND PESOS (P10,000.00) for attorneys fees; d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral damages; and to pay costs. 2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel are hereby ordered to pay herein plaintiffs the amount of damages above-stated in the event of insolvency of principal obligor St. Marys Academy of Dipolog City; 3. Defendant James Daniel II, being a minor at the time of the commission of the tort and who was under special parental authority of defendant St. Marys Academy, is ABSOLVED from paying the above-stated damages, same being adjudged against defendants St. Marys Academy, and subsidiarily, against his parents; 4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His counterclaim not being in order as earlier discussed in this decision, is hereby DISMISSED. IT IS SO ORDERED. (Decision, pp. 32-33; Records, pp. 205-206). From the records it appears that from 13 to 20 February 1995, defendant appellant St. Marys Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the visitation of schools from where prospective enrollees were studying. As a student of St. Marys Academy, Sherwin Carpitanos was part of the campaigning group. Accordingly, on the fateful day, Sherwin, along with other high school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School, Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle. Sherwin Carpitanos died as a result of the injuries he sustained from the accident.clxxvi[2] In due time, petitioner St. Marys academy appealed the decision to the Court of Appeals.clxxvii[3] On February 29, 2000, the Court of Appeals promulgated a decision reducing the actual damages to P25,000.00 but otherwise affirming the decision a quo, in toto.clxxviii[4] On February 29, 2000, petitioner St. Marys Academy filed a motion for reconsideration of the decision. However, on May 22, 2000, the Court of Appeals denied the motion.clxxix[5] Hence, this appeal.clxxx[6] The Issues 1) Whether the Court of Appeals erred in holding the petitioner liable for damages for the death of Sherwin Carpitanos. 2) Whether the Court of Appeals erred in affirming the award of moral damages against the petitioner. The Courts Ruling

We reverse the decision of the Court of Appeals. The Court of Appeals held petitioner St. Marys Academy liable for the death of Sherwin Carpitanos under Articles 218clxxxi[7] and 219clxxxii[8] of the Family Code, pointing out that petitioner was negligent in allowing a minor to drive and in not having a teacher accompany the minor students in the jeep. Under Article 218 of the Family Code, the following shall have special parental authority over a minor child while under their supervision, instruction or custody: (1) the school, its administrators and teachers; or (2) the individual, entity or institution engaged in child care. This special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. Thus, such authority and responsibility applies to field trips, excursions and other affairs of the pupils and students outside the school premises whenever authorized by the school or its teachers.clxxxiii[9] Under Article 219 of the Family Code, if the person under custody is a minor, those exercising special parental authority are principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor while under their supervision, instruction, or custody.clxxxiv[10] However, for petitioner to be liable, there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because the negligence must have a causal connection to the accident.clxxxv[11] In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.clxxxvi[12] In this case, the respondents failed to show that the negligence of petitioner was the proximate cause of the death of the victim. Respondents Daniel spouses and Villanueva admitted that the immediate cause of the accident was not the negligence of petitioner or the reckless driving of James Daniel II, but the detachment of the steering wheel guide of the jeep. In their comment to the petition, respondents Daniel spouses and Villanueva admitted the documentary exhibits establishing that the cause of the accident was the detachment of the steering wheel guide of the jeep. Hence, the cause of the accident was not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased Sherwin Carpitanos, did not dispute the report and testimony of the traffic investigator who stated that the cause of the accident was the detachment of the steering wheel guide that caused the jeep to turn turtle. Significantly, respondents did not present any evidence to show that the proximate cause of the accident was the negligence of the school authorities, or the reckless driving of James Daniel II. Hence, the respondents reliance on Article 219 of the Family Code that those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by acts or omissions of the unemancipated minor was unfounded. Further, there was no evidence that petitioner school allowed the minor James Daniel II to drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva, grandson of respondent Vivencio Villanueva, who had possession and control of the jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the jeep at the time of the accident. Hence, liability for the accident, whether caused by the negligence of the minor driver or mechanical detachment of the steering wheel guide of the jeep, must be pinned on the minors parents primarily. The negligence of petitioner St. Marys Academy was only a remote cause of the accident.

Between the remote cause and the injury, there intervened the negligence of the minors parents or the detachment of the steering wheel guide of the jeep. The proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.clxxxvii[13] Considering that the negligence of the minor driver or the detachment of the steering wheel guide of the jeep owned by respondent Villanueva was an event over which petitioner St. Marys Academy had no control, and which was the proximate cause of the accident, petitioner may not be held liable for the death resulting from such accident. Consequently, we find that petitioner likewise cannot be held liable for moral damages in the amount of P500,000.00 awarded by the trial court and affirmed by the Court of Appeals. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants wrongful act or omission.clxxxviii[14] In this case, the proximate cause of the accident was not attributable to petitioner. For the reason that petitioner was not directly liable for the accident, the decision of the Court of Appeals ordering petitioner to pay death indemnity to respondent Carpitanos must be deleted. Moreover, the grant of attorneys fees as part of damages is the exception rather than the rule.clxxxix[15] The power of the court to award attorneys fees under Article 2208 of the Civil Code demands factual, legal and equitable justification.cxc[16] Thus, the grant of attorneys fees against the petitioner is likewise deleted. Incidentally, there was no question that the registered owner of the vehicle was respondent Villanueva. He never denied and in fact admitted this fact. We have held that the registered owner of any vehicle, even if not used for public service, would primarily be responsible to the public or to third persons for injuries caused the latter while the vehicle was being driven on the highways or streets.cxci[17] Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for damages for the death of Sherwin Carpitanos. The Fallo WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of Appealscxcii[18] and that of the trial court.cxciii[19] The Court remands the case to the trial court for determination of the liability of defendants, excluding petitioner St. Marys Academy, Dipolog City. -CHILD LEARNING CENTER vs. TAGARIO DECISION AZCUNA, J.: This petition started with a tort case filed with the Regional Trial Court of Makati by Timothy Tagorio and his parents, Basilio R. Tagorio and Herminia Tagorio, docketed as Civil Case No. 91-1389. The complaint[1] alleged that during the school year 1990-1991, Timothy was a Grade IV student at Marymount School, an academic institution operated and maintained by Child Learning Center, Inc. (CLC). In the afternoon of March 5, 1991, between 1 and 2 p.m., Timothy entered the boys comfort room at the third floor of the Marymount building to answer the call of nature. He, however, found himself locked inside and unable to get out. Timothy started to panic and so he banged and kicked the door and yelled several times for help. When no help arrived he decided to open the window to call for help. In the process of opening the window, Timothy went right through and fell down three stories. Timothy was hospitalized and given medical treatment for serious multiple physical injuries. An action under Article 2176 of the Civil Code was filed by respondents against the CLC, the members of its Board of Directors, namely Spouses Edgardo and Sylvia Limon, Alfonso Cruz, Carmelo Narciso and Luningning Salvador, and the Administrative Officer of Marymount School, Ricardo Pilao. In its defense,[2] CLC maintained that there was nothing defective about the locking mechanism of the door and that the fall of Timothy was not due to its fault or negligence. CLC further maintained that it had exercised

the due care and diligence of a good father of a family to ensure the safety, well-being and convenience of its students. After trial, the court a quo found in favor of respondents and ordered petitioners CLC and Spouses Limon to pay respondents, jointly and severally, P200,253.12 as actual and compensatory damages, P200,000 as moral damages, P50,000 as exemplary damages, P100,000 as attorneys fees and the costs of the suit. The trial court disregarded the corporate fiction of CLC and held the Spouses Limon personally liable because they were the ones who actually managed the affairs of the CLC. Petitioners CLC and the Spouses Limon appealed the decision to the Court of Appeals. On September 28, 2001, the Court of Appeals[3] affirmed the decision in toto. Petitioners elevated the case to this Court under Rule 45 of the Rules of Court, after their motion for reconsideration was denied by Resolution of November 23, 2001.[4] Petitioners question several factual findings of the trial court, which were affirmed by the Court of Appeals, namely:[5] 1. That respondent was allegedly trapped inside the boys comfort room located at the third floor of the school building on March 5, 1991; 2. That respondent allegedly banged and kicked the door of said comfort room several times to attract attention and that he allegedly yelled thereat for help which never came; 3. That respondent was allegedly forced to open the window of said comfort room to seek help; 4. That the lock set installed at the boys comfort room located in the third floor of the school building on March 5, 1991 was allegedly defective and that the same lock set was involved in previous incidents of alleged malfunctioning; 5. That petitioner Child Learning Center, Inc. allegedly failed to install iron grills in the window of the boys comfort room at the third floor of the school building; 6. That petitioner Child Learning Center, Inc. allegedly failed to exercise the due care of a good father of a family in the selection and supervision of its employees; 7. That the proximate cause of respondents accident was allegedly not due to his own contributory negligence; 8. That there was an alleged basis to apply the legal principle of piercing the veil of corporate entity in resolving the issue of alleged liability of petitioners Edgardo L. Limon and Sylvia S. Limon; 9. That there was alleged basis for petitioners to pay respondent actual, moral and exemplary damages, plus attorneys fees; 10. That there was an alleged basis in not awarding petitioners prayer for moral and exemplary damages, including attorneys fees. Generally, factual findings of the trial court, affirmed by the Court of Appeals, are final and conclusive and may not be reviewed on appeal. The established exceptions are: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is grave abuse of discretion; (3) when the findings are grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of fact are conclusions without citation of specific evidence on which they are based; (8) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and (9)

when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.[6] On the basis of the records of this case, this Court finds no justification to reverse the factual findings and consider this case as an exception to the general rule. In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for whose act he must respond; and (3) the connection of cause and effect between the fault or negligence and the damages incurred.[7] Fault, in general, signifies a voluntary act or omission which causes damage to the right of another giving rise to an obligation on the part of the actor to repair such damage. Negligence is the failure to observe for the protection of the interest of another person that degree of care, precaution and vigilance which the circumstances justly demand. Fault requires the execution of a positive act which causes damage to another while negligence consists of the omission to do acts which result in damage to another.[8] In this tort case, respondents contend that CLC failed to provide precautionary measures to avoid harm and injury to its students in two instances: (1) failure to fix a defective door knob despite having been notified of the problem; and (2) failure to install safety grills on the window where Timothy fell from. The trial court found that the lock was defective on March 5, 1991:[9] The door knob was defective. After the incident of March 5, 1991, said door knob was taken off the door of the toilet where Timothy was in. The architect who testified during the trial declared that although there were standard specifications for door knobs for comfort room[s], and he designed them according to that requirement, he did not investigate whether the door knob specified in his plans during the construction [was] actually put in place. This is so because he did not verify whether the door knob he specified w[as] actually put in place at the particular comfort room where Timothy was barred from getting outside. (TSN, pp. 19-20, December 8, 1994). The Court of Appeals held that there was no reason to disturb the factual assessment:[10] After having perused the records, We fail to see any indication of whim or arbitrariness on the part of the trial magistrate in his assessment of the facts of the case. That said, We deem it not to be within Our business to recast the factual conclusions reached by the court below. Petitioners would make much of the point that no direct evidence was presented to prove that the door knob was indeed defective on the date in question. The fact, however, that Timothy fell out through the window shows that the door could not be opened from the inside. That sufficiently points to the fact that something was wrong with the door, if not the door knob, under the principle of res ipsa loquitor. The doctrine of res ipsa loquitor applies where (1) the accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.[11] Petitioners are clearly answerable for failure to see to it that the doors of their school toilets are at all times in working condition. The fact that a student had to go through the window, instead of the door, shows that something was wrong with the door. As to the absence of grills on the window, petitioners contend that there was no such requirement under the Building Code. Nevertheless, the fact is that such window, as petitioners themselves point out, was approximately 1.5 meters from the floor, so that it was within reach of a student who finds the regular exit, the door, not functioning. Petitioners, with the due diligence of a good father of the family, should have anticipated that a student, locked in the toilet by a non-working door, would attempt to use the window to call for help or even to get out. Considering all the circumstances,

therefore, there is sufficient basis to sustain a finding of liability on petitioners part. Petitioners argument that CLC exercised the due diligence of a good father of a family in the selection and supervision of its employees is not decisive. Due diligence in the selection and supervision of employees is applicable where the employer is being held responsible for the acts or omissions of others under Article 2180 of the Civil Code.[12] In this case, CLCs liability is under Article 2176 of the Civil Code, premised on the fact of its own negligence in not ensuring that all its doors are properly maintained. Our pronouncement that Timothy climbed out of the window because he could not get out using the door, negates p etitioners other contention that the proximate cause of the accident was Timothys own negligence. The injuries he sustained from the fall were the product of a natural and continuous sequence, unbroken by any intervening cause, that originated from CLCs own negligence. We, however, agree with petitioners that there was no basis to pierce CLCs separate corporate personality. To disregard the corporate existence, the plaintiff must prove: (1) Control by the individual owners, not mere majority or complete stock ownership, resulting in complete domination not only of finances but of policy and business practice in respect to a transaction so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; (2) such control must have been used by the defendant to commit fraud or wrong, to perpetuate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of the plaintiffs legal right; and (3) the control and br each of duty must proximately cause the injury or unjust loss complained of. The absence of these elements prevents piercing the corporate veil.[13] The evidence on record fails to show that these elements are present, especially given the fact that plaintiffs complaint had pleaded that CLC is a corporation duly organized and existing under the laws of the Philippines. On 9th and 10th points raised concerning the award of damages, the resolution would rest on factual determinations by the trial court, affirmed by the Court of Appeals, and no legal issue warrants our intervention. WHEREFORE, the petition is partly granted and the Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 50961 dated September 28, 2001 and November 23, 2001, respectively, are MODIFIED in that petitioners Spouses Edgardo and Sylvia Limon are absolved from personal liability. The Decision and Resolution are AFFIRMED in all other respects. No pronouncement as to costs. -HOLY SPIRIT vs. TAGUIAM This petition assails the Decision [1] dated June 7, 2004 of the Court of Appeals in CA-G.R. SP No. 81480, which reversed the Resolution [2] dated September 20, 2002 of the National Labor Relations Commission (NLRC) in NLRC NCR CA No. 031627-02. The NLRC had affirmed the Decision [3] dated March 26, 2002 of the Labor Arbiter dismissing respondents complaint for illegal dismissal. This petition likewise assails the Resolution [4] dated September 30, 2004 of the Court of Appeals denying petitioners motion for reconsideration. The antecedent facts are as follows: Respondent Corazon P. Taguiam was the Class Adviser of Grade 5-Esmeralda of the petitioner, School of the Holy Spirit of Quezon City. On March 10, 2000, the class president, wrote a letter [5] to the grade school principal requesting permission to hold a year-end celebration at the school grounds. The principal authorized the activity and allowed the pupils to use the swimming pool. In this connection, respondent distributed the parents/guardians permit forms to the pupils. Respondent admitted that Chiara Mae Federicos permit form [6] was unsigned. Nevertheless, she concluded that Chiara Mae was allowed by her mother to join the activity since her mother personally brought her to the school with her packed lunch and swimsuit. Before the activity started, respondent warned the pupils who did not know how to swim to avoid the deeper area. However, while the pupils were swimming, two of them sneaked out. Respondent went after them to verify where they were going. Unfortunately, while respondent was away, Chiara Mae drowned. When respondent returned, the maintenance man was already administering cardiopulmonary resuscitation on Chiara Mae. She was still alive when respondent rushed her to the General Malvar Hospital where she was pronounced dead on arrival.

On May 23, 2000, petitioners issued a Notice of Administrative Charge [7] to respondent for alleged gross negligence and required her to submit her written explanation. Thereafter, petitioners conducted a clarificatory hearing which respondent attended. Respondent also submitted her Affidavit of Explanation. [8] On July 31, 2000, petitioners dismissed respondent on the ground of gross negligence resulting to loss of trust and confidence. [9] Meanwhile, Chiara Maes parents filed a P7 Million damage suit against petitioners and respondent, among others. They also filed against respondent a criminal complaint for reckless imprudence resulting in homicide. On July 25, 2001, respondent in turn filed a complaint [10] against the school and/or Sr. Crispina Tolentino for illegal dismissal, with a prayer for reinstatement with full backwages and other money claims, damages and attorneys fees. In dismissing the complaint, the Labor Arbiter declared that respondent was validly terminated for gross neglect of duty. He opined that Chiara Mae drowned because respondent had left the pupils without any adult supervision. He also noted that the absence of adequate facilities should have alerted respondent before allowing the pupils to use the swimming pool. The Labor Arbiter further concluded that although respondents negligence was not habitual, the same warranted her dismissal since death resulted therefrom. Respondent appealed to the NLRC which, however, affirmed the dismissal of the complaint. Aggrieved, respondent instituted a petition for certiorari before the Court of Appeals, which ruled in her favor. The appellate court observed that there was insufficient proof that respondents negligence was both gross and habitual. The Court of Appeals disposed, thus: WHEREFORE, the Court hereby GRANTS the petition. The assailed September 20, 2002 Resolution of the National Labor Relations Commission entitled Corazon Taguiam vs. School of the Holy Spirit and/or Sister Crispina Tolentino[,] NLRC NCR Case No. 00-07-03877-01[,] NLRC NCR CA No. 031627-02 is hereby REVERSED and SET ASIDE, and a new one is hereby ENTERED directing the private respondent the School of the Holy Spirit to: (1) Pay the petitioner full backwages, plus all other benefits, bonuses and general increases to which she would have been normally entitled, had she not been dismissed and had she not been forced to stop working computed up to the finality of this decision; (2) Pay the petitioner separation pay equivalent to one (1) month for every year of service in addition to full backwages; (3) Pay the petitioner an amount equivalent to 10% of the judgment award as attorneys fees; (4) Pay the cost of this suit. SO ORDERED. [11] In this petition, petitioners contend that the Court of Appeals erred in: REVERSING AND SETTING ASIDE THE DECISION AND RESOLUTION OF THE NATIONAL LABOR RELATIONS COMMISSION AFFIRMING THE DECISION OF THE LABOR ARBITER DISMISSING THE COMPLAINT FOR LACK OF MERIT. [12] Simply stated, the sole issue presented for our resolution is whether respondents dismissal on the ground of gross negligence resulting to loss of trust and confidence was valid. The issue of whether a party is negligent is a question of fact. As a rule, the Supreme Court is not a trier of facts and this applies with greater force in labor cases. [13] However, where the issue is shrouded by a conflict of factual perception, we are constrained to review the factual findings of the Court of Appeals. In this case, the findings of facts of the appellate court contradict those of the Labor Arbiter and the NLRC. [14] Under Article 282 [15] of the Labor Code, gross and habitual neglect of duties is a valid ground for an employer to terminate an employee. Gross negligence implies a want or absence of or a failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. [16] Habitual neglect implies repeated failure to perform ones duties for a period of time, depending upon the circumstances. [17] Our perusal of the records leads us to conclude that respondent had been grossly negligent. First, it is undisputed that Chiara Maes permit form was unsigned. Yet, respondent allowed her to join the activity because

she assumed that Chiara Maes mother has allowed her to join it by personally bringing her to the school with her packed lunch and swimsuit. The purpose of a permit form is precisely to ensure that the parents have allowed their child to join the school activity involved. Respondent cannot simply ignore this by resorting to assumptions. Respondent admitted that she was around when Chiara Mae and her mother arrived. She could have requested the mother to sign the permit form before she left the school or at least called her up to obtain her conformity. Second, it was respondents responsibility as Class Adviser to supervise her class in all activities sanctioned by the school. [18] Thus, she should have coordinated with the school to ensure that proper safeguards, such as adequate first aid and sufficient adult personnel, were present during their activity. She should have been mindful of the fact that with the number of pupils involved, it would be impossible for her by herself alone to keep an eye on each one of them. As it turned out, since respondent was the only adult present, majority of the pupils were left unsupervised when she followed the two pupils who sneaked out. In the light of the odds involved, respondent should have considered that those who sneaked out could not have left the school premises since there were guards manning the gates. The guards would not have allowed them to go out in their swimsuits and without any adult accompanying them. But those who stayed at the pool were put at greater risk, when she left them unattended by an adult. Notably, respondents negligence, although gross, was not habitual. In view of the considerable resultant damage, however, we are in agreement that the cause is sufficient to dismiss respondent. This is not the first time that we have departed from the requirements laid down by the law that neglect of duties must be both gross and habitual. In Philippine Airlines, Inc. v. NLRC, [19] we ruled that Philippine Airlines (PAL) cannot be legally compelled to continue with the employment of a person admittedly guilty of gross negligence in the performance of his duties although it was his first offense. In that case, we noted that a mere delay on PALs flight schedule due to aircraft damage entails problems like hotel accommodations for its passengers, re-booking, the possibility of law suits, and payment of special landing fees not to mention the soaring costs of replacing aircraft parts. [20] In another case, Fuentes v. National Labor Relations Commission, [21] we held that it would be unfair to compel Philippine Banking Corporation to continue employing its bank teller. In that case, we observed that although the tellers infraction was not habitual, a substantial amount of money was lost. The deposit slip had already been validated prior to its loss and the amount reflected thereon is already considered as current liabilities in the banks balance sheet. [22] Indeed, the sufficiency of the evidence as well as the resultant damage to the employer should be considered in the dismissal of the employee. In this case, the damage went as far as claiming the life of a child. As a result of gross negligence in the present case, petitioners lost its trust and confidence in respondent. Loss of trust and confidence to be a valid ground for dismissal must be based on a willful breach of trust and founded on clearly established facts. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. [23] Otherwise stated, it must rest on substantial grounds and not on the employers arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at the mercy of the employer. It should be genuine and not simulated; nor should it appear as a mere afterthought to justify earlier action taken in bad faith or a subterfuge for causes which are improper, illegal or unjustified. It has never been intended to afford an occasion for abuse because of its subjective nature. There must, therefore, be an actual breach of duty committed by the employee which must be established by substantial evidence. [24] As a teacher who stands in loco parentis to her pupils, respondent should have made sure that the children were protected from all harm while in her company. [25] Respondent should have known that leaving the pupils in the swimming pool area all by themselves may result in an accident. A simple reminder not to go to the deepest part of the pool [26] was insufficient to cast away all the serious dangers that the situation presented to the children, especially when respondent knew that Chiara Mae cannot swim. [27] Dismally, respondent created an unsafe situation which exposed the lives of all the pupils concerned to real danger. This is a clear violation not only of the trust and confidence reposed on her by the parents of the pupils but of the school itself. Finally, we note that based on the criminal complaint filed by Chiara Maes parents, the Assistant City Prosecutor found probable cause to indict respondent for the crime of reckless imprudence resulting in homicide. The Assistant City Prosecutor held that respondent should have foreseen the danger lurking in the waters. By leaving her pupils in the swimming pool,

respondent displayed an inexcusable lack of foresight and precaution. [28] While this finding is not controlling for purposes of the instant case, this only supports our conclusion that respondent has indeed been grossly negligent. All told, there being a clear showing that respondent was culpable for gross negligence resulting to loss of trust and confidence, her dismissal was valid and legal. It was error for the Court of Appeals to reverse and set aside the resolution of the NLRC. WHEREFORE, the petition is GRANTED. The assailed Decision dated June 7, 2004 of the Court of Appeals in CA-G.R. SP No. 81480 is SET ASIDE. The Resolution dated September 20, 2002 of the National Labor Relations Commission in NLRC NCR CA No. 031627-02 is REINSTATED. No pronouncement as to costs. --

existence of an employer-employee relationship: the employer (a) selects and engages the employee; (b) pays his wages; (c) has power to dismiss him; and (d) has control over his work. Of these, the most crucial is the element of control. Control refers to the right of the employer, whether actually exercised or reserved, to control the work of the employee as well as the means and methods by which he accomplishes the same.[4] In this case, the school directress testified that Aquinas had an agreement with a congregation of sisters under which, in order to fulfill its ministry, the congregation would send religion teachers to Aquinas to provide catechesis to its students. Aquinas insists that it was not the school but Yamyamin's religious congregation that chose her for the task of catechizing the school's grade three students, much like the way bishops designate the catechists who would teach religion in public schools. Under the circumstances, it was quite evident that Aquinas did not have control over Yamyamin's teaching methods. The Intons had not refuted the school directress' testimony in this regard. Consequently, it was error for the CA to hold Aquinas solidarily liable with Yamyamin. Of course, Aquinas still had the responsibility of taking steps to ensure that only qualified outside catechists are allowed to teach its young students. In this regard, it cannot be said that Aquinas took no steps to avoid the occurrence of improper conduct towards the students by their religion teacher. First, Yamyamin's transcript of records, certificates, and diplomas showed that she was qualified to teach religion. Second, there is no question that Aquinas ascertained that Yamyamin came from a legitimate religious congregation of sisters and that, given her Christian training, the school had reason to assume that she would behave properly towards the students. Third, the school gave Yamyamin a copy of the school's Administrative Faculty Staff Manual that set the standards for handling students. It also required her to attend a teaching orientation before she was allowed to teach beginning that June of 1998.[5] Fourth, the school pre-approved the content of the course she was to teach[6] to ensure that she was really catechizing the students. And fifth, the school had a program for subjecting Yamyamin to classroom evaluation.[7] Unfortunately, since she was new and it was just the start of the school year, Aquinas did not have sufficient opportunity to observe her methods. At any rate, it acted promptly to relieve her of her assignment as soon as the school learned of the incident. [8] It cannot be said that Aquinas was guilty of outright neglect. Regarding the Intons' plea for an award of greater amounts of damages, the Court finds no justification for this since they did not appeal from the decision of the CA. The Intons prayed for the increase only in their comment to the petition. They thus cannot obtain from this Court any affirmative relief other than those that the CA already granted them in its decision.[9]cralaw WHEREFORE, the Court GRANTS the petition, SETS ASIDE the decision of the Court of Appeals in CA-G.R. CV 88106 dated August 4, 2008, and HOLDS petitioner Aquinas School not liable in damages to respondent Jose Luis Inton. --

AQUINAS SCHOOL VS. CARPIO, J., CHAIRPERSON, NACHURA, PERALTA, ABAD, AND MENDOZA, JJ. SPS. JOSE INTON AND MA. VICTORIA S. INTON, ON THEIR BEHALF AND ON BEHALF OF THEIR MINOR CHILD, JOSE LUIS S. INTON, AND SR. MARGARITA YAMYAMIN, OP This case is about the private school's liability for the outside catechist's act of shoving a student and kicking him on the legs when he disobeyed her instruction to remain in his seat and not move around the classroom.cralaw The Facts and the Case In 1998 respondent Jose Luis Inton (Jose Luis) was a grade three student at Aquinas School (Aquinas). Respondent Sister Margarita Yamyamin (Yamyamin), a religion teacher who began teaching at that school only in June of that year, taught Jose Luis' grade three religion class. On July 14, 1998, while Yamyamin was writing on the blackboard, Jose Luis left his assigned seat and went over to a classmate to play a joke of surprising him. Yamyamin noticed this and sent Jose Luis back to his seat. After a while, Jose Luis got up again and went over to the same classmate. This time, unable to tolerate the child's behavior, Yamyamin approached Jose Luis and kicked him on the legs several times. She also pulled and shoved his head on the classmate's seat. Finally, she told the child to stay where he was on that spot of the room and finish copying the notes on the blackboard while seated on the floor. As a result of the incident, respondents Jose and Victoria Inton (the Intons) filed an action for damages on behalf of their son Jose Luis against Yamyamin and Aquinas before the Regional Trial Court (RTC) of Pasig City in Civil Case 67427. The Intons also filed a criminal action against Yamyamin for violation of Republic Act 7610 to which she pleaded guilty and was sentenced accordingly. With regard to the action for damages, the Intons sought to recover actual, moral, and exemplary damages, as well as attorney's fees, for the hurt that Jose Luis and his mother Victoria suffered. The RTC dismissed Victoria's personal claims but ruled in Jose Luis' favor, holding Yamyamin liable to him for moral damages of P25,000.00, exemplary damages of P25,000.00, and attorney's fees of P10,000.00 plus the costs of suit.[1] Not satisfied, the Intons elevated the case to the Court of Appeals (CA).[2] They asked the CA to increase the award of damages and hold Aquinas solidarily liable with Yamyamin. Finding that an employer-employee relation existed between Aquinas and Yamyamin, the CA found them solidarily liable to Jose Luis. The CA, however, declined to increase the award of damages.[3] Jose Luis moved for partial reconsideration but this was denied. Aquinas, for its part, appealed directly to this Court from the CA decision through a petition for review on certiorari. The Issue Presented The sole issue presented in this case is whether or not the CA was correct in holding Aquinas solidarily liable with Yamyamin for the damages awarded to Jose Luis. The Court's Ruling The CA found Aquinas liable to Jose Luis based on Article 2180 of the Civil Code upon the CA's belief that the school was Yamyamin's employer. Aquinas contests this. The Court has consistently applied the "four-fold test" to determine the

MARIA TERESA Y. CUADRA, minor represented by her father ULISES P. CUADRA, ET AL. vs. ALFONSO MONFORT This is an action for damages based on quasi-delict, decided by the Court of First Instance of Negros Occidental favorably to the plaintiffs and appealed by the defendant to the Court of Appeals, which certified the same to us since the facts are not in issue. Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at the Mabini Elementary School in Bacolod City. On July 9, 1962 their teacher assigned them, together with three other classmates, to weed the grass in the school premises. While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental object commonly worn by young girls over their hair. Jokingly she said aloud that she had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at her. At that precise moment the latter turned around to face her friend, and the object hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with some powder. The next day, July 10, the eye became swollen and it was then that the girl related the incident to her parents, who thereupon took her to a doctor for treatment. She underwent surgical operation twice, first on

July 20 and again on August 4, 1962, and stayed in the hospital for a total of twenty-three days, for all of which the parents spent the sum of P1,703.75. Despite the medical efforts, however, Maria Teresa Cuadra completely lost the sight of her right eye. In the civil suit subsequently instituted by the parents in behalf of their minor daughter against Alfonso Monfort, Maria Teresa Monfort's father, the defendant was ordered to pay P1,703.00 as actual damages; P20,000.00 as moral damages; and P2,000.00 as attorney's fees, plus the costs of the suit. The legal issue posed in this appeal is the liability of a parent for an act of his minor child which causes damage to another under the specific facts related above and the applicable provisions of the Civil Code, particularly Articles 2176 and 2180 thereof, which read: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by provisions of this Chapter. ART 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity are responsible for the damages caused by the minor children who live in their company. xxx xxx xxx The responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. The underlying basis of the liability imposed by Article 2176 is the fault or negligence accompanying the act or the omission, there being no willfulness or intent to cause damage thereby. When the act or omission is that of one person for whom another is responsible, the latter then becomes himself liable under Article 2180, in the different cases enumerated therein, such as that of the father or the mother under the circumstances above quoted. The basis of this vicarious, although primary, liability is, as in Article 2176, fault or negligence, which is presumed from that which accompanied the causative act or omission. The presumption is merely prima facie and may therefore be rebutted. This is the clear and logical inference that may be drawn from the last paragraph of Article 2180, which states "that the responsibility treated of in this Article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage." Since the fact thus required to be proven is a matter of defense, the burden of proof necessarily rests on the defendant. But what is the exact degree of diligence contemplated, and how does a parent prove it in connection with a particular act or omission of a minor child, especially when it takes place in his absence or outside his immediate company? Obviously there can be no meticulously calibrated measure applicable; and when the law simply refers to "all the diligence of a good father of the family to prevent damage," it implies a consideration of the attendant circumstances in every individual case, to determine whether or not by the exercise of such diligence the damage could have been prevented. In the present case there is nothing from which it may be inferred that the defendant could have prevented the damage by the observance of due care, or that he was in any way remiss in the exercise of his parental authority in failing to foresee such damage, or the act which caused it. On the contrary, his child was at school, where it was his duty to send her and where she was, as he had the right to expect her to be, under the care and supervision of the teacher. And as far as the act which caused the injury was concerned, it was an innocent prank not unusual among children at play and which no parent, however careful, would have any special reason to anticipate much less guard against. Nor did it reveal any mischievous propensity, or indeed any trait in the child's character which would reflect unfavorably on her upbringing and for which the blame could be attributed to her parents.

The victim, no doubt, deserves no little commiseration and sympathy for the tragedy that befell her. But if the defendant is at all obligated to compensate her suffering, the obligation has no legal sanction enforceable in court, but only the moral compulsion of good conscience. The decision appealed from is reversed, and the complaint is dismissed, without pronouncement as to costs. -REPUBLIC vs. SAGUN Before us is a petition for review on certiorari filed by the Solicitor General on behalf of the Republic of the Philippines, seeking the reversal of the April 3, 2009 Decision [1] of the Regional Trial Court (RTC), Branch 3, of Baguio City in Spcl. Pro. Case No. 17-R. The RTC granted the petition [2] filed by respondent Nora Fe Sagun entitled In re: Judicial Declaration of Election of Filipino Citizenship, Nora Fe Sagun v. The Local Civil Registrar of Baguio City. The facts follow: Respondent is the legitimate child of Albert S. Chan, a Chinese national, and Marta Borromeo, a Filipino citizen. She was born on August 8, 1959 in Baguio City [3] and did not elect Philippine citizenship upon reaching the age of majority. In 1992, at the age of 33 and after getting married to Alex Sagun, she executed an Oath of Allegiance [4] to the Republic of the Philippines. Said document was notarized by Atty. Cristeta Leung on December 17, 1992, but was not recorded and registered with the Local Civil Registrar of Baguio City. Sometime in September 2005, respondent applied for a Philippine passport. Her application was denied due to the citizenship of her father and there being no annotation on her birth certificate that she has elected Philippine citizenship. Consequently, she sought a judicial declaration of her election of Philippine citizenship and prayed that the Local Civil Registrar of Baguio City be ordered to annotate the same on her birth certificate. In her petition, respondent averred that she was raised as a Filipino, speaks Ilocano and Tagalog fluently and attended local schools in Baguio City, including Holy Family Academy and the Saint Louis University. Respondent claimed that despite her part-Chinese ancestry, she always thought of herself as a Filipino. She is a registered voter of Precinct No. 0419A of Barangay Manuel A. Roxas in Baguio City and had voted in local and national elections as shown in the Voter Certification [5] issued by Atty. Maribelle Uminga of the Commission on Elections of Baguio City. She asserted that by virtue of her positive acts, she has effectively elected Philippine citizenship and such fact should be annotated on her record of birth so as to entitle her to the issuance of a Philippine passport. On August 7, 2007, the Office of the Solicitor General (OSG) entered its appearance as counsel for the Republic of the Philippines and authorized the City Prosecutor of Baguio City to appear in the above mentioned case. [6] However, no comment was filed by the City Prosecutor. After conducting a hearing, the trial court rendered the assailed Decision on April 3, 2009 granting the petition and declaring respondent a Filipino citizen. The fallo of the decision reads: WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby DECLARED [a] FILIPINO CITIZEN, having chosen or elected Filipino citizenship. Upon payment of the required fees, the Local Civil Registrar of Baguio City is hereby directed to annotate [on] her birth certificate, this judicial declaration of Filipino citizenship of said petitioner. IT IS SO ORDERED. [7] Contending that the lower court erred in so ruling, petitioner, through the OSG, directly filed the instant recourse via a petition for review on certiorari before us. Petitioner raises the following issues: I Whether or not an action or proceeding for judicial declaration of Philippine citizenship is procedurally and jurisdictionally permissible; and, II Whether or not an election of Philippine citizenship, made twelve (12) years after reaching the age of majority, is considered to have been made within a reasonable time as interpreted by jurisprudence. [8]

Petitioner argues that respondents petition before the RTC was improper on two counts: for one, law and jurisprudence clearly contemplate no judicial action or proceeding for the declaration of Philippine citizenship; and for another, the pleaded registration of the oath of allegiance with the local civil registry and its annotation on respondents birth certificate are the ministerial duties of the registrar; hence, they require no court order. Petitioner asserts that respondents petition before the trial court seeking a judicial declaration of her election of Philippine citizenship undeniably entails a determination and consequent declaration of her status as a Filipino citizen which is not allowed under our legal system. Petitioner also argues that if respondents intention in filing the petition is ultimately to have her oath of allegiance registered with the local civil registry and annotated on her birth certificate, then she does not have to resort to court proceedings. Petitioner further argues that even assuming that respondents action is sanctioned, the trial court erred in finding respondent as having duly elected Philippine citizenship since her purported election was not in accordance with the procedure prescribed by law and was not made within a reasonable time. Petitioner points out that while respondent executed an oath of allegiance before a notary public, there was no affidavit of her election of Philippine citizenship. Additionally, her oath of allegiance which was not registered with the nearest local civil registry was executed when she was already 33 years old or 12 years after she reached the age of majority. Accordingly, it was made beyond the period allowed by law. In her Comment, [9] respondent avers that notwithstanding her failure to formally elect Filipino citizenship upon reaching the age of majority, she has in fact effectively elected Filipino citizenship by her performance of positive acts, among which is the exercise of the right of suffrage. She claims that she had voted and participated in all local and national elections from the time she was of legal age. She also insists that she is a Filipino citizen despite the fact that her election of Philippine citizenship was delayed and unregistered. In reply, [10] petitioner argues that the special circumstances invoked by respondent, like her continuous and uninterrupted stay in the Philippines, her having been educated in schools in the country, her choice of staying here despite the naturalization of her parents as American citizens, and her being a registered voter, cannot confer on her Philippine citizenship as the law specifically provides the requirements for acquisition of Philippine citizenship by election. Essentially, the issues for our resolution are: (1) whether respondents petition for declaration of election of Philippine citizenship is sanctioned by the Rules of Court and jurisprudence; (2) whether respondent has effectively elected Philippine citizenship in accordance with the procedure prescribed by law. The petition is meritorious. At the outset, it is necessary to stress that a direct recourse to this Court from the decisions, final resolutions and orders of the RTC may be taken where only questions of law are raised or involved. There is a question of law when the doubt or difference arises as to what the law is on a certain state of facts, which does not call for an examination of the probative value of the evidence presented by the parties-litigants. On the other hand, there is a question of fact when the doubt or controversy arises as to the truth or falsity of the alleged facts. Simply put, when there is no dispute as to fact, the question of whether the conclusion drawn therefrom is correct or not, is a question of law. [11] In the present case, petitioner assails the propriety of the decision of the trial court declaring respondent a Filipino citizen after finding that respondent was able to substantiate her election of Filipino citizenship. Petitioner contends that respondents petition for judicial declaration of election of Philippine citizenship is procedurally and jurisdictionally impermissible. Verily, petitioner has raised questions of law as the resolution of these issues rest solely on what the law provides given the attendant circumstances. In granting the petition, the trial court stated: This Court believes that petitioner was able to fully substantiate her petition regarding her election of Filipino citizenship, and the Local Civil Registrar of Baguio City should be ordered to annotate in her birth certificate her election of Filipino citizenship. This Court adds that the petitioners election of Filipino citizenship should be welcomed by this country and people because the petitioner has the choice to elect citizenship of powerful countries like the United States of America and China, however, petitioner has chosen Filipino citizenship because she grew up in this country, and has learned to love the Philippines. Her choice of electing Filipino citizenship is, in fact, a testimony that many of our people still wish to live in the Philippines, and are very proud of our country.

WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby DECLARED as FILIPINO CITIZEN, having chosen or elected Filipino citizenship. [12] For sure, this Court has consistently ruled that there is no proceeding established by law, or the Rules for the judicial declaration of the citizenship of an individual. [13] There is no specific legislation authorizing the institution of a judicial proceeding to declare that a given person is part of our citizenry. [14] This was our ruling in Yung Uan Chu v. Republic [15] citing the early case of Tan v. Republic of the Philippines, [16] where we clearly stated: Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of an individual. Courts of justice exist for settlement of justiciable controversies, which imply a given right, legally demandable and enforceable, an act or omission violative of said right, and a remedy, granted or sanctioned by law, for said breach of right. As an incident only of the adjudication of the rights of the parties to a controversy, the court may pass upon, and make a pronouncement relative to their status. Otherwise, such a pronouncement is beyond judicial power. x x x Clearly, it was erroneous for the trial court to make a specific declaration of respondents Filipino citizenship as such pronouncement was not within the courts competence. As to the propriety of respondents petition seeking a judicial declaration of election of Philippine citizenship, it is imperative that we determine whether respondent is required under the law to make an election and if so, whether she has complied with the procedural requirements in the election of Philippine citizenship. When respondent was born on August 8, 1959, the governing charter was the 1935 Constitution, which declares as citizens of the Philippines those whose mothers are citizens of the Philippines and elect Philippine citizenship upon reaching the age of majority. Sec. 1, Art. IV of the 1935 Constitution reads: Section 1. The following are citizens of the Philippines: xxxx (4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship. Under Article IV, Section 1(4) of the 1935 Constitution, the citizenship of a legitimate child born of a Filipino mother and an alien father followed the citizenship of the father, unless, upon reaching the age of majority, the child elected Philippine citizenship. The right to elect Philippine citizenship was recognized in the 1973 Constitution when it provided that [t]hose who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred and thirty-five are citizens of the Philippines. [17] Likewise, this recognition by the 1973 Constitution was carried over to the 1987 Constitution which states that [t]hose born before January 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority are Philippine citizens. [18] It should be noted, however, that the 1973 and 1987 Constitutional provisions on the election of Philippine citizenship should not be understood as having a curative effect on any irregularity in the acquisition of citizenship for those covered by the 1935 Constitution. If the citizenship of a person was subject to challenge under the old charter, it remains subject to challenge under the new charter even if the judicial challenge had not been commenced before the effectivity of the new Constitution. [19] Being a legitimate child, respondents citizenship followed that of her father who is Chinese, unless upon reaching the age of majority, she elects Philippine citizenship. It is a settled rule that only legitimate children follow the citizenship of the father and that illegitimate children are under the parental authority of the mother and follow her nationality. [20] An illegitimate child of Filipina need not perform any act to confer upon him all the rights and privileges attached to citizens of the Philippines; he automatically becomes a citizen himself. [21] But in the case of respondent, for her to be considered a Filipino citizen, she must have validly elected Philippine citizenship upon reaching the age of majority. Commonwealth Act (C.A.) No. 625, [22] enacted pursuant to Section 1(4), Article IV of the 1935 Constitution, prescribes the procedure that should be followed in order to make a valid election of Philippine citizenship, to wit: Section 1. The option to elect Philippine citizenship in accordance with subsection (4), [S]ection 1, Article IV, of the Constitution shall be expressed in a statement to be signed and sworn to by the party concerned before any officer authorized to administer oaths, and shall be filed with the nearest civil registry. The said party shall accompany the aforesaid statement with the oath of allegiance to the Constitution and the Government of the Philippines.

Based on the foregoing, the statutory formalities of electing Philippine citizenship are: (1) a statement of election under oath; (2) an oath of allegiance to the Constitution and Government of the Philippines; and (3) registration of the statement of election and of the oath with the nearest civil registry. [23] Furthermore, no election of Philippine citizenship shall be accepted for registration under C.A. No. 625 unless the party exercising the right of election has complied with the requirements of the Alien Registration Act of 1950. In other words, he should first be required to register as an alien. [24] Pertinently, the person electing Philippine citizenship is required to file a petition with the Commission of Immigration and Deportation (now Bureau of Immigration) for the cancellation of his alien certificate of registration based on his aforesaid election of Philippine citizenship and said Office will initially decide, based on the evidence presented the validity or invalidity of said election. [25] Afterwards, the same is elevated to the Ministry (now Department) of Justice for final determination and review. [26] It should be stressed that there is no specific statutory or procedural rule which authorizes the direct filing of a petition for declaration of election of Philippine citizenship before the courts. The special proceeding provided under Section 2, Rule 108 of the Rules of Court on Cancellation or Correction of Entries in the Civil Registry, merely allows any interested party to file an action for cancellation or correction of entry in the civil registry, i.e., election, loss and recovery of citizenship, which is not the relief prayed for by the respondent. Be that as it may, even if we set aside this procedural infirmity, still the trial courts conclusion that respondent duly elected Philippine citizenship is erroneous since the records undisputably show that respondent failed to comply with the legal requirements for a valid election. Specifically, respondent had not executed a sworn statement of her election of Philippine citizenship. The only documentary evidence submitted by respondent in support of her claim of alleged election was her oath of allegiance, executed 12 years after she reached the age of majority, which was unregistered. As aptly pointed out by the petitioner, even assuming arguendo that respondents oath of allegiance suffices, its execution was not within a reasonable time after respondent attained the age of majority and was not registered with the nearest civil registry as required under Section 1 of C.A. No. 625. The phrase reasonable time has been interpreted to mean that the election should be made generally within three (3) years from reaching the age of majority. [27] Moreover, there was no satisfactory explanation proffered by respondent for the delay and the failure to register with the nearest local civil registry. Based on the foregoing circumstances, respondent clearly failed to comply with the procedural requirements for a valid and effective election of Philippine citizenship. Respondent cannot assert that the exercise of suffrage and the participation in election exercises constitutes a positive act of election of Philippine citizenship since the law specifically lays down the requirements for acquisition of citizenship by election. The mere exercise of suffrage, continuous and uninterrupted stay in the Philippines, and other similar acts showing exercise of Philippine citizenship cannot take the place of election of Philippine citizenship. Hence, respondent cannot now be allowed to seek the intervention of the court to confer upon her Philippine citizenship when clearly she has failed to validly elect Philippine citizenship. As we held in Ching, [28] the prescribed procedure in electing Philippine citizenship is certainly not a tedious and painstaking process. All that is required of the elector is to execute an affidavit of election of Philippine citizenship and, thereafter, file the same with the nearest civil registry. Having failed to comply with the foregoing requirements, respondents petition before the trial court must be denied. WHEREFORE, the petition is GRANTED. The Decision dated April 3, 2009 of the Regional Trial Court, Branch 3 of Baguio City in Spcl. Pro. Case No. 17-R is REVERSED and SET ASIDE. The petition for judicial declaration of election of Philippine citizenship filed by respondent Nora Fe Sagun is hereby DISMISSED for lack of merit. -AMELIA B. HEBRON vs. FRANCO L. LOYOLA

This petition for review assails the February 22, 2005 Decision1 and the July 7, 2005 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV. No. 64105. The CA partially granted the appeal before it and modified the June 22, 1999 Decision3 of the Regional Trial Court (RTC) of Cavite, Branch 20, which ordered the partition of two parcels of land among the seven sets of plaintiffs (respondents herein). Factual Antecedents This case originated from a suit for partition and damages concerning the two parcels of land denominated as Lot Nos. 730 and 879 of the Carmona cadastre. Lot No. 730, with an area of 17,688 square meters, was owned by Remigia Baylon who was married to Januario Loyola. Lot No. 879, with an area of 10,278 square meters was owned by Januario Loyola, the husband of Remigia Baylon. Januario and Remigia had seven children, namely Conrado, Jose, Benjamin, Candida, Soledad, Cristeta and Encarnacion, all surnamed Loyola. The administration of the said lots was entrusted to Encarnacion LoyolaBautista. All the heirs of Januario and Remigia received their shares in the fruits of the subject properties during Encarnacion's administration thereof. With the latter's death on September 15, 1969, administration of the subject properties was assumed by her daughter, Amelia Bautista-Hebron, who, after some time, started withholding the shares of Candida and the heirs of Conrado. By the time partition of the said properties was formally demanded on November 4, 1990, Candida was the only one still living among the children of Januario and Remigia. The rest were survived and represented by their respective descendants and children, to wit: 1. Conrado Loyola, by his children, Ruben Loyola, now substituted by his heirs, namely, Josefina, Edgardo, Evelyn, Marina, Aure, Corazon and Joven Francisco, all surnamed Loyola, and respondents Lorenzo Loyola, Candelaria Loyola, Flora Loyola, Nicardo Loyola, Teresita Loyola-Alonza, Vicente Loyola and Rosario Loyola-Lontoc; 2. Jose Loyola, by his children, respondents Serafin Loyola, Bibiano Loyola, Roberto Loyola, Purita Loyola-Lebrudo and Estela Loyola; 3. Benjamin Loyola, by his children, respondents Franco Loyola, Angelo Loyola, Rafael Loyola, Senen Loyola, Perla Loyola-Abad, Ma. Venus Loyola-Ronquillo, Armando Loyola as well as his daughter-in-law by his son, Eduardo Loyola, respondent Carmen Hermosa; 4. Soledad Loyola, by her children, respondents Ester Danico, Eduardo Danico, Mercedita Danico, Honesto Danico, Emelita Danico and Dante Danico; 5. Cristeta Loyola, by her children, respondents Efren Cabigan and Isidro Cabigan; and 6. Encarnacion Loyola-Bautista, by her son, respondent Alfredo Bautista, by petitioner Amelia Bautista-Hebron, and by her daughter-in-law by her son, Alberto Bautista, respondent Felicidad Bautista, and the latter's children, respondents Anjanet, Agnes, Ayren and Joseph Anthony, all surnamed Bautista. For petitioner's failure to heed their formal demand, respondents filed with the RTC of Imus, Cavite, Branch 20, the complaint for partition and damages from which the instant suit stemmed. While manifesting her conformity to the partition demanded by her co-heirs, petitioner claimed in her amended answer that Candida and the heirs of Conrado have already relinquished their shares in consideration of the financial support extended them by her mother, Encarnacion. In the pre-trial order, the trial court consequently limited the issue to be resolved to the veracity of the aforesaid waiver or assignment of shares claimed by petitioner. Trial on the merits then ensued. While conceding their receipt of financial assistance from Encarnacion, Candida and the heirs of Conrado maintained that adequate recompense had been effectively made when they worked without pay at the former's rice mill and household or, in the case of Carmelita Aguinaldo-Manabo, when she subsequently surrendered her earnings as a public school teacher to her said aunt.

Courts, not being omniscient, can only strive to determine what actually and truly transpired based on the evidence before it and the imperfect rules that were designed to assist in establishing the truth in disputed situations. Despite the difficulties in ascertaining the truth, the courts must ultimately decide. In civil cases, its decision must rest on preponderance of admissible evidence.

Ruling of the Regional Trial Court On June 22, 1999, the trial court rendered a Decision granting the partition sought. The dispositive portion of the Decision states: WHEREFORE, in view of the foregoing, judgment is hereby rendered ordering the partition of the following real properties, to wit: 1. The parcel of land known as Lot 730 of the Carmona Cadastre with an area of 17,688 sq. meters more of less; and 2. the parcel of land known as Lot 879 of the Carmona Cadastre with an area of 10,278 sq. meters, more of less among all the seven (7) sets of plaintiffs in seven (7) equal parts. In this regard, the parties are directed within thirty (30) days from receipt hereof to make the partition of the two (2) lots among themselves should they agree, and thereafter, to submit in Court their deed of partition for its confirmation. SO ORDERED.4 Ruling of the Court of Appeals Petitioner, the defendant in the case before the RTC, appealed the Decision to the CA. The CA found the petitioner entitled to participate in the partition of the subject properties. It stated that petitioner's inadvertent exclusion from the partition of the subject properties arose from the trial court's use of the phrase "seven (7) sets of plaintiffs" in the dispositive portion of the appealed Decision instead of the more accurate "seven (7) sets of heirs." The CA however, like the trial court, found that petitioner was not able to prove the existence of the waiver or assignment of their shares by Candida and the heirs of Conrado. The dispositive portion of the Decision states: WHEREFORE, the appeal is PARTIALLY GRANTED and the appealed June 22, 1999 decision is, accordingly, MODIFIED to include appellant's participation in the partition of the subject parcels as one of the heirs of Encarnacion Loyola-Bautista. The rest is AFFIRMED in toto.5 The CA denied the motion for reconsideration filed by petitioner. Hence, petitioner elevated the case to us via the present petition for review. The petition has no merit. Issues Burden of Proof Petitioner raises the following issues: Rule 131 of the Rules of Court states: I WHETHER X X X THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT THAT THE BURDEN OF PROOF WAS SHIFTED TO DEFENDANT-APPELLANT AMELIA B. HEBRON AND THAT THE LATTER FAILED TO SUBSTANTIATE HER CLAIM WITH PREPONDERANCE OF EVIDENCE. II WHETHER X X X THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT THAT A SPOUSE PRESENT CANNOT RELINQUISH THE SHARES IN THE PARCELS OF LAND IF IT WILL DEPRIVE MINOR CHILDREN OF THEIR HEREDITARY RIGHTS. III WHETHER X X X THE APPELLATE COURT ERRED IN AFFIRMING THE RULING OF THE TRIAL COURT THAT NO CONCRETE PROOF EVIDENCING THE SALE OR ASSIGNMENT OF SHARES OF CANDIDA LOYOLA-AGUINALDO AND CONRADO LOYOLA IN THE TWO PARCELS OF LAND IN FAVOR OF PETITIONER'S MOTHER, ENCARNACION LOYOLA-BAUTISTA, HAD BEEN PRESENTED BY PETITIONER DURING THE TRIAL DESPITE THE EXISTENCE OF PAROL EVIDENCE BY WAY OF AN EXCEPTION TO THE STATUTE OF FRAUDS.

IV WHETHER X X X THE APPELLATE COURT COMMITTED A REVERSIBLE ERROR IN NOT CONSIDERING THAT CANDIDA LOYOLA-AGUINALDO AND THE HEIRS OF CONRADO LOYOLA ARE BARRED BY ESTOPPEL IN ASSERTING THAT THEY ARE STILL ENTITLED TO SHARE IN THE QUESTIONED PARCELS OF LAND.6 Petitioner's Arguments Petitioner contends that she has no affirmative allegation to prove, hence, the burden of proof is on respondents and not on her. And if at all, she has proven that Candida and the heirs of Conrado have relinquished their respective shares. She further contends that ownership of inherited properties does not fall under Articles 321 and 323 of the Civil Code and thus, the properties inherited by the children of Conrado can be alienated by their mother, Victorina, in favor of petitioner's mother. Petitioner also contends that her parol evidence proved the alleged executed agreement of waiver of shares in the two subject inherited properties in consideration of the educational and other financial support extended by Encarnacion to Candida and Conrado's respective families. 1avvphi1 Finally, petitioner posits that Candida and the heirs of Conrado are estopped by laches from asserting their entitlement to shares in the subject properties. Respondents' Arguments On the other hand, respondents argue that Candida and the heirs of Conrado have not relinquished their shares in the litigated properties. They insist that the alleged agreement of relinquishment of shares cannot be proved by parol evidence. They also contend that all the issues raised are factual in nature, and the findings of fact of the CA are final and conclusive and thus, may not be the subject of review by the Supreme Court, absent any of the recognized exceptions to the said rule. Our Ruling

Section 1. Burden of Proof.- Burden of proof is the duty of a party to present evidence on the facts in issue necessary to establish his claim or defense by the amount of evidence required by law. (Emphasis supplied) From the above provision it is clear that the defendant, not only the plaintiff, also has a burden of proof. The plaintiffs have the duty to establish their claims. And, it is the defendants who have the duty to establish their defenses. Children of the deceased, like Candida and her siblings, are compulsory heirs who are entitled to a share in the properties of the deceased. Art. 980 of the Civil Code states: "The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares." The heirs of Conrado are also heirs of Remigia and Januario, being the children of a child of Remigia and Januario; and as such are entitled to their shares in the estate of Remigia and Januario.7 Petitioner has admitted in her answer that respondents are heirs of Remigia and Januario;8 and that the two subject properties were left behind by Remigia and Januario.9 "An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof." 10 Hence, we find no error committed by the CA when it affirmed the ruling of the trial court that the burden was on petitioner to establish her affirmative defense of waiver or sale of the shares of Candida and the heirs of Conrado.

The defense of petitioner is that Candida and the heirs of Conrado have waived or sold their shares in the subject properties. This alleged fact is denied by the respondents. Hence, this is the fact that is at issue and this alleged fact has to be proven by petitioner, who is the one who raised the said alleged fact. The burden of proof of the defense of waiver or sale is on petitioner. Whether petitioner has been able to prove the said fact is undoubtedly a question of fact, not of law. It involves the weighing and calibration of the evidence presented. In the absence of any of the exceptions that call for the Court to do so, the Court will not disturb the factual findings of the RTC that were affirmed by the CA in the present case. Shares of Minor Children The minor children of Conrado inherited by representation in the properties of their grandparents Remigia and Januario. These children, not their mother Victorina, were the co-owners of the inherited properties. Victorina had no authority or had acted beyond her powers in conveying, if she did indeed convey, to the petitioners mother the undivided share of her minor children in the property involved in this case. "The powers given to her by the laws as the natural guardian covers only matters of administration and cannot include the power of disposition. She should have first secured the permission of the court before she alienated that portion of the property in question belonging to her minor children."11 In a number of cases, where the guardians, mothers or grandmothers, did not seek court approval of the sale of properties of their wards, minor children, the Court declared the sales void. 12 Although the CA inaccurately cited Articles 321 and 323 of the Civil Code, its conclusion that Victorina had no capacity to relinquish her children's shares in the inherited properties was, nevertheless, correct. Evidence of Sale/Waiver of Shares in Real Properties On this factual issue too, we find no reason to disturb the finding of the CA affirming that of the RTC that petitioner failed to prove by preponderance of evidence her alleged fact of relinquishment, by sale or waiver, of the shares of Candida and the heirs of Conrado. Again, the court has no duty to delve into and weigh the pieces of evidence presented by the parties and passed upon by both the RTC and the CA with consistent conclusions on this matter and absent the other exceptions to the general rule. Nevertheless, we did so, but find no error in the findings of the RTC and the CA on this issue. The very sketchy and partly hearsay testimony of petitioner was resoundingly rebutted by the testimonies of the respondents. The hearsay letter of Soledad, self-serving entries of relinquishment in the notebook of accounts and tampered notebook of educational expenses hinting at a relinquishment of shares cannot be given weight. Moreover, these were refuted by the presentation of document embodying the notarized extrajudicial partition establishing no such relinquishment. The evidence does not preponderate in favor of petitioner. Absent a preponderance of evidence on the fact in issue of relinquishment of shares, then Candida and the heirs of Conrado, as admitted heirs of Remigia and Januario, are entitled to their shares in the two subject properties. Laches Laches is the failure of or neglect for an unreasonable and unexplained length of time to do that which by exercising due diligence, could or should have been done earlier, or to assert a right within reasonable time, warranting a presumption that the party entitled thereto has either abandoned it or declined to assert it.13 In the present case, the book of accounts, showing the record of receipts of some heirs of their shares, has repeated entries in Amelia's handwriting that Candida and the heirs of Conrado are no longer entitled to shares in the fruits of the properties in litigation because they have sold or given their share in the said properties to Encarnacion. These entries only prove that Amelia no longer recognized the entitlement of Candida and the heirs of Conrado to their respective shares. It is relevant to note however that the entries in the book of accounts started only on July 17, 1986. Hence, there is definite proof of non-recognition by petitioner of Candida and the heirs of Conrado's entitlement to shares in the subject properties starting only on July 17, 1986. Before this time, during the administration of the properties by Encarnacion Loyola-Bautista and some undetermined number of years after her death,

Candida and the heirs of Conrado were proven to have been receiving their shares in the fruits of the subject properties. On record is the written demand letter for partition of the litigated properties signed by Candida and the heirs of Conrado dated November 4, 1990. The complaint for partition was subsequently filed on February 23, 1993. From July 17, 1986, to November 4, 1990 only 4 years have elapsed. Even from July 17, 1986 to February 23, 1993 just six years have passed. Considering that the parties are closely related to each other and considering also that the parties are many different heirs, some of whom reside outside the Philippines, the passage of six years before the respondents asked for partition through the court is not unreasonable. We find respondents not guilty of laches. WHEREFORE the petition for review is DENIED. The February 22, 2005 Decision and the July 7, 2005 Resolution of the Court of Appeals in CA-G.R. CV. No. 64105 are AFFIRMED. --

NAPOLEON D. NERI, ALICIA D. NERI-MONDEJAR, VISMINDA D. NERICHAMBERS, ROSA D. NERI-MILLAN, DOUGLAS D. NERI, EUTROPIA D. ILLUT-COCKINOS AND VICTORIA D. ILLUT-PIALA vs. HEIRS OF HADJI YUSOP UY AND JULPHA* IBRAHIM UY In this Petition for Review on Certiorari1 under Rule 45 of the Rules of Court, petitioners Napoleon D. Neri (Napoleon), Alicia D. Neri-Mondejar (Alicia), Visminda D. Neri-Chambers (Visminda), Rosa D. Neri-Millan (Rosa), Douglas D. Neri (Douglas), Eutropia D. Illut-Cockinos (Eutropia), and Victoria D. IllutPiala (Victoria) seek to reverse and set aside the April 27, 2010 Decision2 and October 18, 2010 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 01031-MIN which annulled the October 25, 2004 Decision4 of the Regional Trial Court (RTC) of Panabo City, Davao del Norte and instead, entered a new one dismissing petitioners complaint for annulment of sale, damages and attorneys feesagainst herein respondents heirs of spouses Hadji Yusop Uy and Julpha Ibrahim Uy (heirs of Uy). The Facts During her lifetime, Anunciacion Neri (Anunciacion) had seven children, two (2) from her first marriage with Gonzalo Illut (Gonzalo), namely: Eutropia and Victoria, and five (5) from her second marriage with Enrique Neri (Enrique), namely: Napoleon, Alicia, Visminda, Douglas and Rosa. Throughout the marriage of spouses Enrique and Anunciacion, they acquired several homestead properties with a total area of 296,555 square meters located in Samal, Davao del Norte, embraced by Original Certificate of Title (OCT) Nos. (P-7998) P-21285, (P-14608) P-51536 and P-20551 (P-8348)7issued on February 15, 1957, August 27, 1962 and July 7, 1967, respectively. On September 21, 1977, Anunciacion died intestate. Her husband, Enrique, in his personal capacity and as natural guardian of his minor children Rosa and Douglas, together with Napoleon, Alicia, and Vismindaexecuted an Extra-Judicial Settlement of the Estate with Absolute Deed of Sale8 on July 7, 1979, adjudicating among themselves the said homestead properties, and thereafter, conveying themto the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy (spouses Uy)for a consideration of P 80,000.00. On June 11, 1996, the children of Enrique filed a complaint for annulment of saleof the said homestead properties against spouses Uy (later substituted by their heirs)before the RTC, docketed as Civil Case No.96-28, assailing the validity of the sale for having been sold within the prohibited period. Thecomplaint was later amended to include Eutropia and Victoriaas additional plaintiffs for having been excluded and deprived of their legitimes as childrenof Anunciacion from her first marriage. In their amended answer with counterclaim, the heirs of Uy countered that the sale took place beyond the 5-year prohibitory period from the issuance of the homestead patents. They also denied knowledge of Eutropia and Victorias exclusionfrom the extrajudicial settlement and sale of the subject properties, and interposed further the defenses of prescription and laches. The RTC Ruling

On October 25, 2004, the RTC rendered a decision ordering, among others, the annulment of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale. It ruled that while the sale occurred beyond the 5-year prohibitory period, the sale is still void because Eutropia and Victoria were deprived of their hereditary rights and that Enrique had no judicial authority to sell the shares of his minor children, Rosa and Douglas. Consequently, it rejected the defenses of laches and prescription raised by spouses Uy, who claimed possession of the subject properties for 17 years, holding that co-ownership rights are imprescriptible. The CA Ruling On appeal, the CAreversed and set aside the ruling of the RTC in its April 27, 2010 Decision and dismissed the complaint of the petitioners. It held that, while Eutropia and Victoria had no knowledge of the extrajudicial settlement and sale of the subject properties and as such, were not bound by it, the CA found it unconscionable to permit the annulment of the sale considering spouses Uys possession thereof for 17 years, and thatEutropia and Victoriabelatedlyfiled their actionin 1997, ormore than two years fromknowledge of their exclusion as heirs in 1994 when their stepfather died. It, however, did not preclude the excluded heirs from recovering their legitimes from their co-heirs. Similarly, the CA declared the extrajudicial settlement and the subsequent saleas valid and binding with respect to Enrique and hischildren, holding that as co-owners, they have the right to dispose of their respective shares as they consider necessary or fit.While recognizing Rosa and Douglas to be minors at that time, they were deemed to have ratified the sale whenthey failed to question it upon reaching the age of majority.Italso found laches to have set in because of their inaction for a long period of time. The Issues In this petition, petitioners imputeto the CA the following errors: I. WHEN IT UPHELDTHE VALIDITY OF THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" AS FAR AS THE SHARES OF EUTROPIA AND VICTORIA WERE CONCERNED, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; II. WHEN IT DID NOT NULLIFY OR ANNUL THE "EXTRA JUDICIAL SETTLEMENT OF THE ESTATE WITH ABSOLUTE DEED OF SALE" WITH RESPECT TO THE SHARESOF ROSA AND DOUGLAS, THEREBY DEPRIVING THEM OF THEIR INHERITANCE; and III. WHEN IT FOUND THAT LACHES OR PRESCRIPTION HAS SET IN. The Ruling of the Court The petitionis meritorious. It bears to stress that all the petitioners herein are indisputably legitimate children of Anunciacion from her first and second marriages with Gonzalo and Enrique, respectively, and consequently, are entitled to inherit from her in equal shares, pursuant to Articles 979 and 980 of the Civil Code which read: ART. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. xxx ART. 980. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. As such, upon the death of Anunciacion on September 21, 1977, her children and Enrique acquired their respective inheritances,9 entitling them to their pro indiviso shares in her whole estate, as follows: Enrique 9/16 (1/2 of the conjugal assets + 1/16)

Eutropia Victoria

1/16 1/16

Napoleon 1/16 Alicia 1/16

Visminda 1/16 Rosa Douglas 1/16 1/16

Hence, in the execution of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale in favor of spouses Uy, all the heirs of Anunciacionshould have participated. Considering that Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly represented therein, the settlement was not valid and binding uponthem and consequently, a total nullity. Section 1, Rule 74 of the Rules of Court provides: SECTION 1. Extrajudicial settlement by agreement between heirs. x x x The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. (Underscoring added) The effect of excluding the heirs in the settlement of estate was further elucidated in Segura v. Segura,10 thus: It is clear that Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were concerned. The rule covers only valid partitions. The partition in the present case was invalid because it excluded six of the nine heirs who were entitled to equal shares in the partitioned property. Under the rule "no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof." As the partition was a total nullity and did not affect the excluded heirs, it was not correct for the trial court to hold that their right to challenge the partition had prescribed after two years from its execution However, while the settlement of the estate is null and void, the subsequent sale of the subject propertiesmade by Enrique and his children, Napoleon, Alicia and Visminda, in favor of the respondents isvalid but only with respect to their proportionate shares therein.It cannot be denied that these heirs have acquired their respective shares in the properties of Anunciacion from the moment of her death11and that, as owners thereof, they can very well sell their undivided share in the estate.12 With respect to Rosa and Douglas who were minors at the time of the execution of the settlement and sale, their natural guardian and father, Enrique, represented them in the transaction. However, on the basis of the laws prevailing at that time, Enrique was merely clothed with powers of administration and bereft of any authority to dispose of their 2/16 shares in the estate of their mother, Anunciacion. Articles 320 and 326 of the Civil Code, the laws in force at the time of the execution of the settlement and sale, provide: ART. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance. ART. 326. When the property of the child is worth more than two thousand pesos, the father or mother shall be considered a guardian of the childs property, subject to the duties and obligations of guardians under the Rules of Court. Corollarily, Section 7, Rule 93 of the Rules of Court also provides: SEC. 7. Parents as Guardians. When the property of the child under parental authority is worth two thousand pesos or less, the father or the

mother, without the necessity of court appointment, shall be his legal guardian. When the property of the child is worth more than two thousand pesos, the father or the mother shall be considered guardian of the childs property, with the duties and obligations of guardians under these Rules, and shall file the petition required by Section 2 hereof. For good reasons, the court may, however, appoint another suitable persons. Administration includes all acts for the preservation of the property and the receipt of fruits according to the natural purpose of the thing. Any act of disposition or alienation, or any reduction in the substance of the patrimony of child, exceeds the limits of administration.13 Thus, a father or mother, as the natural guardian of the minor under parental authority, does not have the power to dispose or encumber the property of the latter. Such power is granted by law only to a judicial guardian of the wards property and even then only with courts prior approval secured in accordance with the proceedings set forth by the Rules of Court.14 Consequently, the disputed sale entered into by Enrique in behalf of his minor children without the proper judicial authority, unless ratified by them upon reaching the age of majority,15 is unenforceable in accordance with Articles 1317 and 1403(1) of the Civil Code which provide: ART. 1317. No one may contract in the name of another without being authorized by the latter or unless he has by law a right to represent him. A contract entered into in the name of another by one who has no authority or legal representation, or who has acted beyond his powers, shall be unenforceable, unless it is ratified, expressly or impliedly, by the person on whose behalf it has been executed, before it is revoked by the other contracting party. ART. 1403. The following contracts are unenforceable, unless they are ratified: (1) Those entered into the name of another person by one who has been given no authority or legal representation, or who has acted beyond his powers; xxx Ratification means that one under no disability voluntarily adopts and gives sanction to some unauthorized act or defective proceeding, which without his sanction would not be binding on him. It is this voluntary choice, knowingly made, which amounts to a ratification of what was theretofore unauthorized, and becomes the authorized act of the party so making the ratification. 16 Once ratified, expressly or impliedly such as when the person knowingly received benefits from it, the contract is cleansed from all its defects from the moment it was constituted,17 as it has a retroactive effect. Records, however, show that Rosa had ratified the extrajudicial settlement of the estate with absolute deed of sale. In Napoleon and Rosas Manifestation18 before the RTC dated July 11, 1997,they stated: "Concerning the sale of our parcel of land executed by our father, Enrique Neri concurred in and conformed to by us and our other two sisters and brother (the other plaintiffs), in favor of Hadji Yusop Uy and his spouse Hadja Julpa Uy on July 7, 1979, we both confirmed that the same was voluntary and freely made by all of us and therefore the sale was absolutely valid and enforceable as far as we all plaintiffs in this case are concerned;" (Underscoring supplied) In their June 30, 1997 Joint-Affidavit, Napoleon and Rosa also alleged: "That we are surprised that our names are included in this case since we do not have any intention to file a case against Hadji Yusop Uy and Julpha Ibrahim Uy and their family and we respect and acknowledge the validity of the Extra-Judicial Settlement of the Estate with Absolute Deed of Sale dated July 7, 1979;" (Underscoring supplied) Clearly, the foregoing statements constitutedratification of the settlement of the estate and the subsequent sale, thus, purging all the defects existing at the time of its execution and legitimizing the conveyance of Rosas 1/16 share in the estate of Anunciacion to spouses Uy. The same, however, is not true with respect to Douglas for lack of evidence showing ratification.
19

Considering, thus, that the extrajudicial settlement with sale is invalid and therefore, not binding on Eutropia, Victoria and Douglas, only the shares ofEnrique, Napoleon, Alicia, Visminda and Rosa in the homestead properties have effectivelybeen disposed in favor of spouses Uy. "A person can only sell what he owns, or is authorized to sell and the buyer can as a consequence acquire no more than what the sellercan legally transfer."20 On this score, Article 493 of the Civil Codeis relevant, which provides: Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the coownership. Consequently, spouses Uy or their substituted heirs became pro indiviso coowners of the homestead properties with Eutropia, Victoria and Douglas, who retained title to their respective 1/16 shares. They were deemed to be holding the 3/16 shares of Eutropia, Victoria and Douglas under an implied constructive trust for the latters benefit, conformably with Article 1456 of the Civil Code which states:"if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes." As such, it is only fair, just and equitable that the amount paid for their shares equivalent to P 5,000.0021 each or a total of P 15,000.00 be returned to spouses Uy with legal interest. On the issue of prescription, the Court agrees with petitioners that the present action has not prescribed in so far as it seeks to annul the extrajudicial settlement of the estate. Contrary to the ruling of the CA, the prescriptive period of 2 years provided in Section 1 Rule 74 of the Rules of Court reckoned from the execution of the extrajudicial settlement finds no application to petitioners Eutropia, Victoria and Douglas, who were deprived of their lawful participation in the subject estate. Besides, an "action or defense for the declaration of the inexistence of a contract does not prescribe" in accordance with Article 1410 of the Civil Code. However, the action to recover property held in trust prescribes after 10 years from the time the cause of action accrues,22 which is from the time of actual notice in case of unregistered deed.23 In this case, Eutropia, Victoria and Douglas claimed to have knowledge of the extrajudicial settlement with sale after the death of their father, Enrique, in 1994 which spouses Uy failed to refute. Hence, the complaint filed in 1997 was well within the prescriptive period of 10 years. WHEREFORE, the instant petition is GRANTED. The April 27, 2010 Decision and October 18, 2010 Resolution of the Court of Appeals are REVERSED and SET ASIDE and a new judgment is entered: 1. Declaring the Extra-Judicial Settlement of the Estate of Anunciacion Neri NULL and VOID; 2. Declaring the Absolute Deed of Sale in favor of the late spouses Hadji Yusop Uy and Julpha Ibrahim Uy as regards the 13/16 total shares of the late Enrique Neri, Napoleon Neri, Alicia D. NeriMondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan VALID; 3. Declaring Eutropia D. Illut-Cockinos, Victoria D. Illut-Piala and Douglas D. Neri as the LAWFUL OWNERS of the 3/16 portions of the subject homestead properties, covered by Original Certificate of Title Nos. (P-7998) P-2128, (P-14608) P-5153 and P-20551 (P8348); and 4. Ordering the estate of the late Enrique Neri, as well as Napoleon Neri, Alicia D. Neri-Mondejar, Visminda D. Neri-Chambers and Rosa D. Neri-Millan to return to the respondents jointly and solidarily the amount paid corresponding to the 3/16 shares of Eutropia, Victoria and Douglas in the total amount of P 15,000.00, with legal interest at 6% per annum computed from the time of payment until finality of this decision and 12% per annum thereafter until fully paid. --

ELENA, OSCAR, CELIA, TERESITA and VIRGILIO, all surnamed LINDAIN vs. THE HON. COURT OF APPEALS, SPOUSES APOLINIA VALIENTE and FEDERICO ILA This is a petition for review on certiorari of the decision dated August 8, 1990 of the Court of Appeals which dismissed the complaint for annulment of a sale of registered land, thereby reversing the decision of the Regional Trial Court of San Jose City. The facts of the case in a nutshell are as follows: When the plaintiffs were still minors, they were already the registered owners of a parcel of land covered by Transfer Certificate of Title No. NT-63540 (Exh. D-1). On November 7, 1966, their mother, Dolores Luluquisin, then already a widow and acting as guardian of her minor children, sold the land for P2,000 under a Deed of Absolute Sale of Registered Land (Exh. 2) to the defendants spouses Apolonia Valiente and Federico Ila. The Deed of Absolute Sale was registered in the office of the Register of Deeds for the Province of Nueva Ecija. TCT No. NT-66311 was issued to the vendees, Apolonia Valiente and Federico Ila. The defendants admitted that the property in question was sold to them by the mother of the minors as evidenced by a Deed of Sale (Exh. B for the plaintiffs and Exh. 2 for the defendants) and although at first they were reluctant to buy the property as the sale would not be legal, the registered owners thereof being all minors, upon advice of their counsel, the late Atty. Arturo B. Pascual, and the counsel of Dolores Luluquisin, Atty. Eustaquio Ramos, who notarized the documents, that the property could be sold without the written authority of the court, considering that its value was less than P2,000, they bought the property and had it registered in their names under Certificate of Title No. 66311 (Exhibit C for the plaintiffs). Plaintiffs contend, however, that the sale of the lot by their mother to the defendants is null and void because it was made without judicial authority and/or court approval. The defendants, on the other hand, contend that the sale was valid, as the value of the property was less than P2,000, and, considering the ages of plaintiffs now, the youngest being 31 years old at the time of the filing of the complaint, their right to rescind the contract which should have been exercised four (4) years after reaching the age of majority, has already prescribed. On May 25, 1989, the Regional Trial Court of San Jose City rendered a decision for the plaintiffs (now petitioners), the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered ordering the following: (1) Declaring the Deed of Sale executed by the guardian Dolores Luluquisin in favor of the defendants spouses Apolonia Valiente and Federico Ila over the property of the minors covered by the TCT No. NT-66311 to be null and void; (2) Ordering defendants Spouses Apolonia Valiente and Federico Ila to surrender to the Register of Deeds of San Jose City Transfer Certificate of Title No. 66311; (3) Ordering the Register of Deeds of San Jose City to cancel Transfer Certificate of Title No. 66311 in the names of Spouses Apolonia Valiente and Federico Ila; (4) Ordering the Register of Deeds to issue a new Transfer Certificate of Title in lieu of what was ordered

cancelled in the names of plaintiffs, namely: Elena, Oscar, Celia, Teresita and Virgilio, all surnamed Lindain; (5) Ordering the defendants to vacate the lot covered by TCT No. NT-66311 and deliver the possession of the same to the plaintiffs subject however to the rights of the defendants as buyers, possessors and builders in good faith; (6) Without cost. (pp. 41,42, Rollo.) Upon appeal to the Court of Appeals, the decision was reversed and another one was entered dismissing the complaint without pronouncement as to costs. The Court of Appeals applied the ruling of this Court in Ortaez vs. Dela Cruz, O.G., Vol. 60, No. 24, pp. 3434, 3438-3439, that: A father or mother acting as legal administrator of the property of the child under parental authority cannot, therefore, dispose of the child's property without judicial authority if it is worth more than P2,000.00, notwithstanding the bond that he has filed for the protection of the child's property. But when the value of such property is less than P2,000.00, the permission of the court for its alienation or disposition may be dispensed with. The father or mother, as the case may be, is allowed by law to alienate or dispose of the same freely, subject only to the restrictions imposed by the scruples of conscience. (p. 64, Rollo.) It upheld the sale and dismissed the complaint of the heirs who thereupon filed this petition for review alleging that the Court of Appeals erred in reversing the decision of the Regional Trial Court and in ordering the dismissal of the petitioners' complaint in total disregard of the findings of facts of the trial court and contrary to the provisions of law on contracts and guardianship. The principal issue before us is whether judicial approval was necessary for the sale of the minors' property by their mother. We find merit in the petition for review. Art. 320 of the New Civil Code, which was already in force when the assailed transaction occurred, provides: Art. 320. The father, or in his absence the mother, is the legal administrator of the property pertaining to the child under parental authority. If the property is worth more than two thousand pesos, the father or mother shall give a bond subject to the approval of the Court of First Instance. Under the law, a parent, acting merely as the legal (as distinguished from judicial) administrator of the property of his/her minor children, does not have the power to dispose of, or alienate, the property of said children without judicial approval. The powers and duties of the widow as legal administrator of her minor children's property as provided in Rule 84 by the Rules of Court entitled, "General Powers and Duties of Executors and Administrators" are only powers of possession and management. Her power to sell, mortgage, encumber or otherwise dispose of the property of her minor children must proceed from the court, as provided in Rule 89 which requires court authority and approval. In the case of Visaya, et al. vs. Suguitan, et al., G.R. No. L-8300, November 18, 1955, we held that: It is true that under Art. 320 of the new Civil Code the mother, Juana Visaya, was the legal administrator of the property of her minor children. But as such legal administrator she had no power to compromise their claims, for compromise has always been deemed equivalent to an alienation (transigere est alienare), and is an act of strict ownership that goes beyond mere administration. Hence, Art. 2032 of the new Civil Code provides:

The Court's approval is necessary in compromises entered into by guardians, parents, absentee's representatives and administrators or executors of decedent's estates. (Emphasis supplied.) This restriction on the power of parents to compromise claims affecting their children is in contrast to the terms of Art. 1810 of the old Civil Code that empowered parents to enter into such compromises, without requiring court approval unless the amount involved was in excess of 2000 pesetas. At present, the Court['s] approval is indispensable regardless of the amount involved. (Emphasis ours.) In the recent case of Badillo vs. Ferrer, 152 SCRA 407, 409, this Court stated. Surviving widow has no authority or has acted beyond her powers in conveying to the vendees the undivided share of her minor children in the property, as her powers as the natural guardian covers only matters of administration and cannot include the power of disposition, and she should have first secured court approval before alienation of the property. The above ruling was a reiteration of Inton vs. Quintana, 81 Phil. 97. The private respondents' allegation that they are purchasers in good faith is not credible for they knew from the very beginning that their vendor, the petitioners' mother, without court approval could not validly convey to them the property of her minor children. Knowing her lack of judicial authority to enter into the transaction, the private respondents acted in bad faith when they went ahead and bought the land from her anyway. One who acquires or purchases real property with knowledge of a defect in the title of his vendor cannot claim that he acquired title thereto in good faith as against the owner of the property or for an interest therein (Gatioan vs. Gaffud, 27 SCRA 706). The minors' action for reconveyance has not yet prescribed for "real actions over immovables prescribe after thirty years" (Art. 1141, Civil Code). Since the sale took place in 1966, the action to recover the property had not yet prescribed when the petitioners sued in 1987. WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is set aside and that of the Regional Trial Court of San Jose City dated May 25, 1989, being correct, is hereby REINSTATED. Costs against the private respondents.