G.R. No.

116668 July 28, 1997

ERLINDA A. AGAPAY, petitioner,
vs.
CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA CRUZ, respondents.
Family Code; Husband and Wife; Cohabitation; Co-Ownership; Under Article 148 of the Family
Code, only the properties acquired by both of the parties through their actual joint contribution
of money, property or industry shall be owned by them in common in proportion to their
respective contributions.The sale of the riceland on May 17, 1973, was made in favor of
Miguel and Erlinda. The provision of law applicable here is Article 148 of the Family Code
providing for cases of cohabitation when a man and a woman who are not capacitated to marry
each other live exclusively with each other as husband and wife without the benefit of marriage
or under a void marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said
union was patently void because the earlier marriage of Miguel and Carlina was still subsisting
and unaffected by the latters de facto separation. Under Article 148, only the properties
acquired by both of the parties through their actual joint contribution of money, property or
industry shall be owned by them in common in proportion to their respective contributions. It
must be stressed that actual contribution is required by this provision, in contrast to Article 147
which states that efforts in the care and maintenance of the family and household, are regarded
as contributions to the acquisition of common property by one who has no salary or income or
work or industry. If the actual contribution of the party is not proved, there will be no coownership and no presumption of equal shares.
Same; Same; Same; Same; Considering the youthfulness of the woman, she being only twenty
years of age then, while the man she cohabited with was already sixty-four and a pensioner of
the U.S. Government, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her
share in the purchase price of a parcel of land, there being no proof of the same.In the case
at bar, Erlinda tried to establish by her testimony that she is engaged in the business of buy and
sell and had a sari-sari store but failed to persuade us that she actually contributed money to
buy the subject riceland. Worth noting is the fact that on the date of conveyance, May 17, 1973,
petitioner was only around twenty years of age and Miguel Palang was already sixty-four and a
pensioner of the U.S. Government. Considering her youthfulness, it is unrealistic to conclude
that in 1973 she contributed P3,750.00 as her share in the purchase price of subject property,
there being no proof of the same.
Same; Same; Same; Same; Where a woman who cohabited with a married man fails to prove
that she contributed money to the purchase price of a riceland, there is no basis to justify her
co-ownership over the samethe riceland should revert to the conjugal partnership property of
the man and his lawful wife.Since petitioner failed to prove that she contributed money to the
purchase price of the riceland in Binalonan, Pangasinan, we find no basis to justify her coownership with Miguel over the same. Consequently, the riceland should, as correctly held by
the Court of Appeals, revert to the conjugal partnership property of the deceased Miguel and
private respondent Carlina Palang.
Same; Same; Same; Separation of Property; Compromise Agreements; Separation of property
between spouses during the marriage shall not take place except by judicial order or, without
judicial conferment, when there is an express stipulation in the marriage settlement; Where the

judgment which resulted from the parties compromise was not specifically and expressly for
separation of property, the same should not be so inferred as judicial confirmation of separation
of property.Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate
their conjugal property in favor of their daughter Herminia in 1975. The trial court erred in
holding that the decision adopting their compromise agreement in effect partakes the nature of
judicial confirmation of the separation of property between spouses and the termination of the
conjugal partnership. Separation of property between spouses during the marriage shall not
take place except by judicial order or without judicial conferment when there is an express
stipulation in the marriage settlements. The judgment which resulted from the parties
compromise was not specifically and expressly for separation of property and should not be so
inferred.
Same; Same; Same; Donations; The prohibition against donations between spouses applies to
donations between persons living together as husband and wife without a valid marriage.With
respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on September
23, 1975 when she was only 22 years old. The testimony of the notary public who prepared the
deed of conveyance for the property reveals the falsehood of this claim. Atty. Constantino
Sagun testified that Miguel Palang provided the money for the purchase price and directed that
Erlindas name alone be placed as the vendee. The transaction was properly a donation made
by Miguel to Erlinda, but one which was clearly void and inexistent by express provision of law
because it was made between persons guilty of adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code. Moreover, Article 87 of the Family Code expressly
provides that the prohibition against donations between spouses now applies to donations
between persons living together as husband and wife without a valid marriage, for otherwise,
the condition of those who incurred guilt would turn out to be better than those in legal union.
Same; Same; Same; Parent and Child; Illegitimate Children; Filiation; Succession; Probate
Proceedings; Questions as to who are the heirs of the decedent, proof of filiation of illegitimate
children and the determination of the estate of the latter and claims thereto should be ventilated
in the proper probate court or in a special proceeding instituted for the purpose and cannot be
adjudicated in an ordinary civil action for recovery of ownership and possession.The second
issue concerning Kristopher Palangs status and claim as an illegitimate son and heir to
Miguels estate is here resolved in favor of respondent courts correct assessment that the trial
court erred in making pronouncements regarding Kristophers heirship and filiation inasmuch
as questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and
the determination of the estate of the latter and claims thereto should be ventilated in the proper
probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in
the instant ordinary civil action which is for recovery of ownership and possession.
Same; Same; Same; Same; Actions; Pleadings and Practice; Parties; Guardians; A minor who
has not been impleaded is not a party to the case and neither can his mother be called
guardian ad litem.As regards the third issue, petitioner contends that Kristopher Palang
should be considered as party-defendant in the case at bar following the trial courts decision
which expressly found that Kristopher had not been impleaded as party defendant but theorized
that he had submitted to the courts jurisdiction through his mother/guardian ad litem. The trial
court erred gravely. Kristopher, not having been impleaded, was, therefore, not a party to the
case at bar. His mother, Erlinda, cannot be called his guardian ad litem for he was not involved
in the case at bar. Petitioner adds that there is no need for Kristopher to file another action to
prove that he is the illegitimate son of Miguel, in order to avoid multiplicity of suits. Petitioners

grave error has been discussed in the preceding paragraph where the need for probate
proceedings to resolve the settlement of Miguels estate and Kristophers successional rights
has been pointed out.

Miguel and Erlinda's cohabitation produced a son, Kristopher A. Palang, born on December 6,
1977. In 1979, Miguel and Erlinda were convicted of Concubinage upon Carlina's
complaint. 5 Two years later, on February 15, 1981, Miguel died.

PETITION for review on certiorari of a decision of the Court of Appeals.

On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private
respondents, instituted the case at bar, an action for recovery of ownership and possession with
damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case
No. U-4265). Private respondents sought to get back the riceland and the house and lot both
located at Binalonan, Pangasinan allegedly purchased by Miguel during his cohabitation with
petitioner.

The facts are stated in the opinion of the Court.

Simplicio M. Sevilleja for petitioner.
Ray L. Basbas and Fe Fernandez-Bautista for private respondents.
[Agapay vs. Palang, 276 SCRA 340, G.R. No. 116668 July 28, 1997]
ROMERO, J.:
Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No.
24199 entitled "Erlinda Agapay v. Carlina (Cornelia) Palang and Herminia P. Dela Cruz" dated
June 22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of
petitioner and private respondent's legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent
Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic Church in
Pangasinan. A few months after the wedding, in October 1949, he left to work in Hawaii. Miguel
and Carlina's only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the
entire duration of his year-long sojourn he stayed in Zambales with his brother, not in
Pangasinan with his wife and child. The trial court found evidence that as early as 1957, Miguel
had attempted to divorce Carlina in Hawaii. 1 When he returned for good in 1972, he refused to live
with private respondents, but stayed alone in a house in Pozorrubio, Pangasinan.

On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with
nineteen-year-old Erlinda Agapay, herein petitioner. 2 Two months earlier, on May 17, 1973, Miguel
and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land located
at San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters. Consequently, Transfer
Certificate of Title No. 101736 covering said rice land was issued in their names.

A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975,
allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said property was later
issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of
compromise agreement to settle and end a case filed by the latter. 3 The parties therein agreed to
donate their conjugal property consisting of six parcels of land to their only child, Herminia Palang. 4

Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is
registered in their names (Miguel and Erlinda), she had already given her half of the property to
their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is
her sole property, having bought the same with her own money. Erlinda added that Carlina is
precluded from claiming aforesaid properties since the latter had already donated their conjugal
estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the
complaint after declaring that there was little evidence to prove that the subject properties
pertained to the conjugal property of Carlina and Miguel Palang. The lower court went on to
provide for the intestate shares of the parties, particularly of Kristopher Palang, Miguel's
illegitimate son. The dispositive portion of the decision reads.
WHEREFORE,
rendered

premises

considered,

judgment

is

hereby

1) Dismissing the complaint, with costs against plaintiffs;

2) Confirming the ownership of defendant Erlinda Agapay of the residential lot located
at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120, Lot 290-B
including the old house standing therein;
3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural land
situated at Balisa, San Felipe, Binalonan, Pangasinan, consisting of 10,080 square
meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda Agapay;
4. Adjudicating to Kristopher Palang as his inheritance from his deceased father,
Miguel Palang, the one-half (1/2) of the agricultural land situated at Balisa, San
Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel Palang,
provided that the former (Kristopher) executes, within 15 days after this decision
becomes final and executory, a quit-claim forever renouncing any claims to
annul/reduce the donation to Herminia Palang de la Cruz of all conjugal properties of
her parents, Miguel Palang and Carlina Vallesterol Palang, dated October 30, 1975,
otherwise, the estate of deceased Miguel Palang will have to be settled in another
separate action;

5) No pronouncement as to damages and attorney's fees.

patently void because the earlier marriage of Miguel and Carlina was still subsisting and
unaffected by the latter's de facto separation.

SO ORDERED. 6
On appeal, respondent court reversed the trial court's decision. The Court of Appeals rendered
its decision on July 22, 1994 with the following dispositive portion;
WHEREFORE, PREMISES CONSIDERED, the appealed decision in hereby
REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in question to
herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title
Nos. 143120 and 101736 and to issue in lieu thereof another certificate of title in the
name of plaintiffs-appellants.
No pronouncement as to costs.

Hence, this petition.

Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of
absolute sale covering the riceland and the house and lot, the first in favor of Miguel Palang and
Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends
that respondent appellate court erred in not declaring Kristopher A. Palang as Miguel Palang's
illegitimate son and thus entitled to inherit from Miguel's estate. Third, respondent court erred,
according to petitioner, "in not finding that there is sufficient pleading and evidence that
Kristopher A. Palang or Christopher A. Palang should be considered as party-defendant in Civil
Case No. U-4625 before the trial court and in CA-G.R. No. 24199. 8
After studying the merits of the instant case, as well as the pertinent provisions of law and
jurisprudence, the Court denies the petition and affirms the questioned decision of the Court of
Appeals.
The first and principal issue is the ownership of the two pieces of property subject of this action.
Petitioner assails the validity of the deeds of conveyance over the same parcels of land. There
is no dispute that the transfer of ownership from the original owners of the riceland and the
house and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The
provision of law applicable here is Article 148 of the Family Code providing for cases of
cohabitation when a man and a woman who are not capacitated to marry each other live
exclusively with each other as husband and wife without the benefit of marriage or under a void
marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said union was

Under Article 148, only the properties acquired by both of the parties through their actual joint
contribution of money, property or industry shall be owned by them in common in proportion to
their respective contributions. It must be stressed that actual contribution is required by this
provision, in contrast to Article 147 which states that efforts in the care and maintenance of the
family and household, are regarded as contributions to the acquisition of common property by
one who has no salary or income or work or industry. If the actual contribution of the party is not
proved, there will be no co-ownership and no presumption of equal shares. 9
In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the
business of buy and sell and had a sari-sari store 10 but failed to persuade us that she actually
contributed money to buy the subject riceland. Worth noting is the fact that on the date of
conveyance, May 17, 1973, petitioner was only around twenty years of age and Miguel Palang was
already sixty-four and a pensioner of the U.S. Government. Considering her youthfulness, it is
unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of
subject property, 11 there being no proof of the same.

Petitioner now claims that the riceland was bought two months before Miguel and Erlinda
actually cohabited. In the nature of an afterthought, said added assertion was intended to
exclude their case from the operation of Article 148 of the Family Code. Proof of the precise
date when they commenced their adulterous cohabitation not having been adduced, we cannot
state definitively that the riceland was purchased even before they started living together. In any
case, even assuming that the subject property was bought before cohabitation, the rules of coownership would still apply and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price of the riceland
in Binalonan, Pangasinan, we find no basis to justify her co-ownership with Miguel over the
same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to
the conjugal partnership property of the deceased Miguel and private respondent Carlina
Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal
property in favor of their daughter Herminia in 1975. The trial court erred in holding that the
decision adopting their compromise agreement "in effect partakes the nature of judicial
confirmation of the separation of property between spouses and the termination of the conjugal
partnership." 12 Separation of property between spouses during the marriage shall not take place
except by judicial order or without judicial conferment when there is an express stipulation in the
marriage settlements. 13 The judgment which resulted from the parties' compromise was not
specifically and expressly for separation of property and should not be so inferred.

With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on
September 23, 1975 when she was only 22 years old. The testimony of the notary public who
prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty.
Constantino Sagun testified that Miguel Palang provided the money for the purchase price and
directed that Erlinda's name alone be placed as the vendee. 14

The transaction was properly a donation made by Miguel to Erlinda, but one which was clearly
void and inexistent by express provision of law because it was made between persons guilty of
adultery or concubinage at the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the prohibition against
donations between spouses now applies to donations between persons living together as
husband and wife without a valid marriage, 15 for otherwise, the condition of those who incurred
guilt would turn out to be better than those in legal union. 16

The second issue concerning Kristopher Palang's status and claim as an illegitimate son and
heir to Miguel's estate is here resolved in favor of respondent court's correct assessment that
the trial court erred in making pronouncements regarding Kristopher's heirship and filiation
"inasmuch as questions as to who are the heirs of the decedent, proof of filiation of illegitimate
children and the determination of the estate of the latter and claims thereto should be ventilated
in the proper probate court or in a special proceeding instituted for the purpose and cannot be
adjudicated in the instant ordinary civil action which is for recovery of ownership and
possession." 17
As regards the third issue, petitioner contends that Kristopher Palang should be considered as
party-defendant in the case at bar following the trial court's decision which expressly found that
Kristopher had not been impleaded as party defendant but theorized that he had submitted to
the court's jurisdiction through his mother/guardian ad litem. 18 The trial court erred gravely.
Kristopher, not having been impleaded, was, therefore, not a party to the case at bar. His mother,
Erlinda cannot be called his guardian ad litem for he was not involved in the case at bar. Petitioner
adds that there is no need for Kristopher to file another action to prove that he is illegitimate son of
Miguel, in order to avoid multiplicity of suits. 19 Petitioner's grave error has been discussed in the
preceding paragraph where the need for probate proceedings to resolve the settlement of Miguel's
estate and Kristopher's successional rights has been pointed out.

would have been a different matter if Edwin had asserted that no efforts to arrive at a
compromise have been made at all.
Same; Habeas Corpus; In a habeas corpus proceeding involving the welfare and custody of a
child of tender age, the paramount concern is to resolve immediately the issue of who has the
legal custody of the child. Technicalities should not stand in the way of giving such child of
tender age full protection.In a habeas corpus proceeding involving the welfare and custody of
a child of tender age, the paramount concern is to resolve immediately the issue of who has
legal custody of the child. Technicalities should not stand in the way of giving such child of
tender age full protection. This rule has sound statutory basis in Article 213 of the Family Code,
which states, No child under seven years of age shall be separated from the mother unless the
court finds compelling reasons to order otherwise.
PETITION for review on certiorari of the resolutions of the Court of Appeals.
The facts are stated in the opinion of the Court.
Agripino C. Baybay III for petitioner.
Bridie O. Castronuevo for respondent.
[Tribiana vs. Tribiana, 438 SCRA 216, G.R. No. 137359 September 13, 2004]
DECISION
CARPIO, J.:

WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court of
Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 137359

September 13, 2004

EDWIN N. TRIBIANA, petitioner,

vs.
LOURDES M. TRIBIANA, respondent
Remedial Law; Dismissal of Actions; A dismissal under Section 1(j) of Rule 16 is warranted only
if there is a failure to comply with a condition precedent. Given that the alleged defect is a mere
failure to allege compliance with a condition precedent, the proper solution is not an outright
dismissal of the action, but an amendment under Section 1 of Rule 10 of the 1997 Rules of Civil
Procedure.A dismissal under Section 1(j) of Rule 16 is warranted only if there is a failure to
comply with a condition precedent. Given that the alleged defect is a mere failure to allege
compliance with a condition precedent, the proper solution is not an outright dismissal of the
action, but an amendment under Section 1 of Rule 10 of the 1997 Rules of Civil Procedure. It

The Case
This petition for review on certiorari1 seeks to reverse the Court of Appeals Resolutions 2 dated 2
July 1998 and 18 January 1999 in CA-G.R. SP No. 48049. The Court of Appeals affirmed the
Order3 of the Regional Trial Court, Branch 19, Bacoor, Cavite ("RTC"), denying petitioner Edwin
N. Tribianas ("Edwin") motion to dismiss the petition for habeas corpus filed against him by
respondent Lourdes Tribiana ("Lourdes").
Antecedent Facts
Edwin and Lourdes are husband and wife who have lived together since 1996 but formalized
their union only on 28 October 1997. On 30 April 1998, Lourdes filed a petition for habeas
corpus before the RTC claiming that Edwin left their conjugal home with their daughter, Khriza
Mae Tribiana ("Khriza"). Edwin has since deprived Lourdes of lawful custody of Khriza who was
then only one (1) year and four (4) months of age. Later, it turned out that Khriza was being
held by Edwins mother, Rosalina Tribiana ("Rosalina"). Edwin moved to dismiss Lourdes
petition on the ground that the petition failed to allege that earnest efforts at a compromise were
made before its filing as required by Article 151 of the Family Code.

On 20 May 1998, Lourdes filed her opposition to Edwins motion to dismiss claiming that there
were prior efforts at a compromise, which failed. Lourdes attached to her opposition a copy of
the Certification to File Action from their Barangay dated 1 May 1998.

This rule shall not apply to cases which may not be the subject of compromise under the Civil
Code.
Edwins arguments do not persuade us.

On 18 May 1998, the RTC denied Edwins motion to dismiss and reiterated a previous order
requiring Edwin and his mother, Rosalina to bring Khriza before the RTC. Upon denial of his
motion for reconsideration, Edwin filed with the Court of Appeals a petition for prohibition and
certiorari under Rule 65 of the Rules of Civil Procedure. The appellate court denied Edwins
petition on 2 July 1998. The appellate court also denied Edwins motion for reconsideration.
Hence, this petition.

It is true that the petition for habeas corpus filed by Lourdes failed to allege that she resorted to
compromise proceedings before filing the petition. However, in her opposition to Edwins motion
to dismiss, Lourdes attached a Barangay Certification to File Action dated 1 May 1998. Edwin
does not dispute the authenticity of the Barangay Certification and its contents. This effectively
established that the parties tried to compromise but were unsuccessful in their efforts. However,
Edwin would have the petition dismissed despite the existence of the Barangay Certification,
which he does not even dispute.

The Rulings of the RTC and the Court of Appeals

The RTC denied Edwins motion to dismiss on the ground that the Certification to File Action
attached by Lourdes to her opposition clearly indicates that the parties attempted to reach a
compromise but failed.
The Court of Appeals upheld the ruling of the RTC and added that under Section 412 (b) (2) of
the Local Government Code, conciliation proceedings before the barangay are not required in
petitions for habeas corpus.
The Issue
Edwin seeks a reversal and raises the following issue for resolution:
WHETHER THE TRIAL AND APPELLATE COURTS SHOULD HAVE DISMISSED
THE PETITION FOR HABEAS CORPUS ON THE GROUND OF FAILURE TO
COMPLY WITH THE CONDITION PRECEDENT UNDER ARTICLE 151 OF THE
FAMILY CODE.

Evidently, Lourdes has complied with the condition precedent under Article 151 of the Family
Code. A dismissal under Section 1(j) of Rule 16 is warranted only if there is a failure to
comply with a condition precedent. Given that the alleged defect is a mere failure to
allege compliance with a condition precedent, the proper solution is not an outright dismissal of
the action, but an amendment under Section 1 of Rule 10 of the 1997 Rules of Civil
Procedure.5 It would have been a different matter if Edwin had asserted that no efforts to arrive
at a compromise have been made at all.
In addition, the failure of a party to comply with a condition precedent is not a jurisdictional
defect.6 Such defect does not place the controversy beyond the courts power to resolve. If a
party fails to raise such defect in a motion to dismiss, such defect is deemed waived. 7 Such
defect is curable by amendment as a matter of right without leave of court, if made before the
filing of a responsive pleading. 8 A motion to dismiss is not a responsive pleading. 9 More
importantly, an amendment alleging compliance with a condition precedent is not a jurisdictional
matter. Neither does it alter the cause of action of a petition for habeas corpus. We have held
that in cases where the defect consists of the failure to state compliance with a condition
precedent, the trial court should order the amendment of the complaint. 10 Courts should be
liberal in allowing amendments to pleadings to avoid multiplicity of suits and to present the real
controversies between the parties.11

The Ruling of the Court

The petition lacks merit.
Edwin argues that Lourdes failure to indicate in her petition for habeas corpus that the parties
exerted prior efforts to reach a compromise and that such efforts failed is a ground for the
petitions dismissal under Section 1(j), Rule 16 of the 1997 Rules of Civil Procedure. 4 Edwin
maintains that under Article 151 of the Family Code, an earnest effort to reach a compromise is
an indispensable condition precedent. Article 151 provides:
No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have
been made, but that the same have failed. If it is shown that no such efforts were in
fact made, the case must be dismissed.

Moreover, in a habeas corpus proceeding involving the welfare and custody of a child of tender
age, the paramount concern is to resolve immediately the issue of who has legal custody of the
child. Technicalities should not stand in the way of giving such child of tender age full
protection.12 This rule has sound statutory basis in Article 213 of the Family Code, which states,
"No child under seven years of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise." In this case, the child (Khriza) was only one year and
four months when taken away from the mother.
The Court of Appeals dismissed Edwins contentions by citing as an additional ground the
exception in Section 412 (b) (2) of the Local Government Code ("LGC") on barangay
conciliation, which states:
(b) Where the parties may go directly to court. the parties may go directly to court in
the following instances:

xxx

Davide, Jr., Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

2) Where a person has otherwise been deprived of personal liberty calling

for habeas corpusproceedings;
G.R. NO. 129242

January 16, 2001

xxx.
Under Rule 102 of the 1997 Rules of Civil Procedure, a party may resort to a habeas
corpus proceeding in two instances. The first is when any person is deprived of liberty
either through illegal confinement or through detention. The second instance is when
custody of any person is withheld from the person entitled to such custody. The most
common case falling under the second instance involves children who are taken away
from a parent by another parent or by a relative. The case filed by Lourdes falls under
this category.
The barangay conciliation requirement in Section 412 of the LGC does not apply to habeas
corpus proceedings where a person is "deprived of personal liberty." In such a case, Section
412 expressly authorizes the parties "to go directly to court" without need of any conciliation
proceedings. There is deprivation of personal liberty warranting a petition for habeas corpus
where the "rightful custody of any person is withheld from the person entitled thereto." 13 Thus,
the Court of Appeals did not err when it dismissed Edwins contentions on the additional ground
that Section 412 exempts petitions for habeas corpus from the barangay conciliation
requirement.
The petition for certiorari filed by Edwin questioning the RTCs denial of his motion to dismiss
merely states a blanket allegation of "grave abuse of discretion." An order denying a motion to
dismiss is interlocutory and is not a proper subject of a petition for certiorari. 14 Even in the face
of an error of judgment on the part of a judge denying the motion to dismiss, certiorari will not
lie. Certiorari is not a remedy to correct errors of procedure. 15 The proper remedy against an
order denying a motion to dismiss is to file an answer and interpose as affirmative defenses the
objections raised in the motion to dismiss. It is only in the presence of extraordinary
circumstances evincing a patent disregard of justice and fair play where resort to a petition for
certiorari is proper.16
The litigation of substantive issues must not rest on a prolonged contest on technicalities. This
is precisely what has happened in this case. The circumstances are devoid of any hint of the
slightest abuse of discretion by the RTC or the Court of Appeals. A party must not be allowed to
delay litigation by the sheer expediency of filing a petition for certiorari under Rule 65 based on
scant allegations of grave abuse. More importantly, any matter involving the custody of a child
of tender age deserves immediate resolution to protect the childs welfare.
WHEREFORE, we DISMISS the instant petition for lack of merit. We AFFIRM the Resolutions
of the Court of Appeals dated 2 July 1998 and 18 January 1999 in CA-G.R. SP No. 48049. The
Regional Trial Court, Branch 19, Bacoor, Cavite is ordered to act with dispatch in resolving the
petition for habeas corpus pending before it. This decision is IMMEDIATELY EXECUTORY.
SO ORDERED.

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S. MANALO, and

ISABELITA MANALO ,petitioners,
vs.
HON. COURT OF APPEALS, HON. REGIONAL TRIAL COURT OF MANILA (BRANCH 35),
PURITA S. JAYME, MILAGROS M. TERRE, BELEN M. ORILLANO, ROSALINA M. ACUIN,
ROMEO S. MANALO, ROBERTO S. MANALO, AMALIA MANALO and IMELDA
MANALO, respondents.
Pleadings and Practice; Estate Proceedings; Probate Courts; It is a fundamental rule that, in the
determination of the nature of an action or proceeding, the averments and the character of the
relief sought in the complaint, or petition, shall be controlling; The fact of death of the decedent
and of his residence within the country are foundation facts upon which all the subsequent
proceedings in the administration of the estate rest.It is a fundamental rule that, in the
determination of the nature of an action or proceeding, the averments and the character of the
relief sought in the complaint, or petition, as in the case at bar, shall be controlling. A careful
scrutiny of the Petition for Issuance of Letters of Administration, Settlement and Distribution of
Estate in SP. PROC. No. 92-63626 belies herein petitioners claim that the same is in the nature
of an ordinary civil action. The said petition contains sufficient jurisdictional facts required in a
petition for the settlement of estate of a deceased person such as the fact of death of the late
Troadio Manalo on February 14, 1992, as well as his residence in the City of Manila at the time
of his said death. The fact of death of the decedent and of his residence within the country are
foundation facts upon which all the subsequent proceedings in the administration of the estate
rest. The petition in SP. PROC. No. 92-63626 also contains an enumeration of the names of his
legal heirs including a tentative list of the properties left by the deceased which are sought to be
settled in the probate proceedings. In addition, the reliefs prayed for in the said petition leave no
room for doubt as regard the intention of the petitioners therein (private respondents herein) to
seek judicial settlement of the estate of their deceased father, Troadio Manalo.
Same; Same; Same; A party may not be allowed to defeat the purpose of an essentially valid
petition for the settlement of the estate of a decedent by raising matters that are irrelevant and
immaterial to the said petition; A trial court, sitting as a probate court, has limited and special
jurisdiction and cannot hear and dispose of collateral matters and issues which may be properly
threshed out only in an ordinary civil action.It is our view that herein petitioners may not be
allowed to defeat the purpose of the essentially valid petition for the settlement of the estate of
the late Troadio Manalo by raising matters that are irrelevant and immaterial to the said petition.
It must be emphasized that the trial court, sitting as a probate court, has limited and special
jurisdiction and cannot hear and dispose of collateral matters and issues which may be properly
threshed out only in an ordinary civil action. In addition, the rule has always been to the effect
that the jurisdiction of a court, as well as the concomitant nature of an action, is determined by
the averments in the complaint and not by the defenses contained in the answer. If it were
otherwise, it would not be too difficult to have a case either thrown out of court or its

proceedings unduly delayed by simple strategem. So it should be in the instant petition for
settlement of estate.

Ricardo E. Aragones for respondents.

[Vda. de Manalo vs. Court of Appeals, 349 SCRA 135, G.R. No. 129242 January 16, 2001]

Same; Same; Same; Motion to Dismiss; A party may not take refuge under the provisions of
Rule 1, Section 2, of the Rules of Court to justify an invocation of Article 222 of the Civil Code
for the dismissal of a petition for settlement of estate.The argument is misplaced. Herein
petitioners may not validly take refuge under the provisions of Rule 1, Section 2, of the Rules of
Court to justify the invocation of Article 222 of the Civil Code of the Philippines for the dismissal
of the petition for settlement of the estate of the deceased Troadio Manalo inasmuch as the
latter provision is clear enough, to wit: Art. 222. No suit shall be filed or maintained between
members of the same family unless it should appear that earnest efforts toward a compromise
have been made, but that the same have failed, subject to the limitations in Article 2035.
Same; Same; Article 222 of the Civil Code applies only to civil actions which are essentially
adversarial and involve members of the same family.The above-quoted provision of the law is
applicable only to ordinary civil actions. This is clear from the term suit that it refers to an
action by one person or persons against another or others in a court of justice in which the
plaintiff pursues the remedy which the law affords him for the redress of an injury or the
enforcement of a right, whether at law or in equity. A civil action is thus an action filed in a court
of justice, whereby a party sues another for the enforcement of a right, or the prevention or
redress of a wrong. Besides, an excerpt from the Report of the Code Commission unmistakably
reveals the intention of the Code Commission to make that legal provision applicable only to
civil actions which are essentially adversarial and involve members of the same family, thus: It
is difficult to imagine a sadder and more tragic spectacle than a litigation between members of
the same family. It is necessary that every effort should be made toward a compromise before a
litigation is allowed to breed hate and passion in the family. It is known that lawsuit between
close relatives generates deeper bitterness than strangers.
Same; Same; Special Proceedings; A petition for issuance of letters of administration,
settlement and distribution of estate is a special proceeding and, as such, it is a remedy
whereby the petitioner therein seek to establish a status, a right, or a particular fact.It must be
emphasized that the oppositors (herein petitioners) are not being sued in SP. PROC. No. 9263626 for any cause of action as in fact no defendant was impleaded therein. The Petition for
Issuance of Letters of Administration, Settlement and Distribution of Estate in SP. PROC. No.
92-63626 is a special proceeding and, as such, it is a remedy whereby the petitioners therein
seek to establish a status, a right, or a particular fact. The petitioners therein (private
respondents herein) merely seek to establish the fact of death of their father and subsequently
to be duly recognized as among the heirs of the said deceased so that they can validly exercise
their right to participate in the settlement and liquidation of the estate of the decedent consistent
with the limited and special jurisdiction of the probate court.
PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Caneba, Flores, Ranee, Acuesta and Masigla Law Firm for petitioners.

DE LEON, JR., J.:

This is a petition for review on certiorari filed by petitioners Pilar S. Vda De Manalo, et. Al.,
seeking to annul the Resolution 1 of the Court of Appeals 2 affirming the Orders 3 of the Regional
Trial Court and the Resolution 4which denied petitioner' motion for reconsideration.
The antecedent facts 5 are as follows:
Troadio Manalo, a resident of 1996 Maria Clara Street, Sampaloc, Manila died intestate on
February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his eleven (11) children,
namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre, Belen M. Orillano, Isabelita
Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo, Orlando Manalo
and Imelda Manalo, who are all of legal age.
1wphi1.nt

At the time of his death on February 14, 1992, Troadio Manalo left several real properties
located in Manila and in the province of Tarlac including a business under the name and style
Manalo's Machine Shop with offices at No. 19 Calavite Street, La Loma, Quezon City and at
NO. 45 General Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.
On November 26, 1992, herein respondents, who are eight (8) of the surviving children of the
late Troadio Manalo, namely; Purita, Milagros, Belen Rocalina, Romeo, Roberto, Amalia, and
Imelda filed a petition 6 with the respondent Regional Trial Court of Manila 7 of the judicial
settlement of the estate of their late father, Troadio Manalo, and for the appointment of their
brother, Romeo Manalo, as administrator thereof.
On December 15, 1992, the trial court issued an order setting the said petition for hearing on
February 11, 1993 and directing the publication of the order for three (3) consecutive weeks in a
newspaper of general circulation in Metro Manila, and further directing service by registered
mail of the said order upon the heirs named in the petition at their respective addresses
mentioned therein.
On February 11, 1993, the date set for hearing of the petition, the trial court issued an order
'declaring the whole world in default, except the government," and set the reception of evidence
of the petitioners therein on March 16, 1993. However, the trial court upon motion of set this
order of general default aside herein petitioners (oppositors therein) namely: Pilar S. Vda. De
Manalo, Antonio, Isabelita and Orlando who were granted then (10) days within which to file
their opposition to the petition.
Several pleadings were subsequently filed by herein petitioners, through counsel, culminating in
the filling of an Omnibus Motion8 on July 23, 1993 seeking; (1) to seat aside and reconsider the
Order of the trial court dated July 9, 1993 which denied the motion for additional extension of
time file opposition; (2) to set for preliminary hearing their affirmative defenses as grounds for

dismissal of the case; (3) to declare that the trial court did not acquire jurisdiction over the
persons of the oppositors; and (4) for the immediate inhibition of the presiding judge.

Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of his father,
TROADIO MANALO, had not made any settlement, judicial or extra-judicial of the
properties of the deceased father TROADIO MANALO.

On July 30, 1993, the trial court issued an order9 which resolved, thus:
A. To admit the so-called Opposition filed by counsel for the oppositors on July 20,
1993, only for the purpose of considering the merits thereof;

Par. 8. xxx the said surviving son continued to manage and control the properties
aforementioned, without proper accounting, to his own benefit and advantage xxx.
X

B. To deny the prayer of the oppositors for a preliminary hearing of their affirmative
defenses as ground for the dismissal of this proceeding, said affirmative defenses
being irrelevant and immaterial to the purpose and issue of the present proceeding;
C. To declare that this court has acquired jurisdiction over the persons of the
oppositors;
D. To deny the motion of the oppositors for the inhibition of this Presiding Judge;

Par. 12. That said ANTONIO MANALO is managing and controlling the estate of the
deceased TROADIO MANALO to his own advantage and to the damage and
prejudice of the herein petitioners and their co-heirs xxx.
X

E. To set the application of Romeo Manalo for appointment as regular administrator in

the intestate estate of the deceased Troadio Manalo for hearing on September 9,
1993 at 2:00 o'clock in the afternoon.

Par. 14. For the protection of their rights and interests, petitioners were compelled to
bring this suit and were forced to litigate and incur expenses and will continue to incur
expenses of not less than, P250,000.00 and engaged the services of herein counsel
committing to pay P200,000.00 as and attorney's fees plus honorarium of P2,500.00
per appearance in court xxx.13

Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court with the Court
of Appeals, docketed as CA-G.R. SP. No. 39851, after the trial court in its Order 10 dated
September 15, 1993. In their petition for improperly laid in SP. PROC. No. 92-63626; (2) the trial
court did not acquire jurisdiction over their persons; (3) the share of the surviving spouse was
included in the intestate proceedings; (4) there was absence of earnest efforts toward
compromise among members of the same family; and (5) no certification of non-forum shopping
was attached to the petition.

Consequently, according to herein petitioners, the same should be dismissed under Rule 16,
Section 1(j) of the Revised Rules of Court which provides that a motion to dismiss a complaint
may be filed on the ground that a condition precedent for filling the claim has not been complied
with, that is, that the petitioners therein failed to aver in the petition in SP. PROC. No. 92-63626,
that earnest efforts toward a compromise have been made involving members of the same
family prior to the filling of the petition pursuant to Article 222 14 of the Civil Code of the
Philippines.

Finding the contentions untenable, the Court of Appeals dismissed the petition for certiorari in
its Resolution11promulgated on September 30, 1996. On May 6, 1997 the motion for
reconsideration of the said resolution was likewise dismissed.12

The instant petition is not impressed with merit.

The only issue raised by herein petitioners in the instant petition for review is whether or not the
respondent Court of Appeals erred in upholding the questioned orders of the respondent trial
court which denied their motion for the outright dismissal of the petition for judicial settlement of
estate despite the failure of the petitioners therein to aver that earnest efforts toward a
compromise involving members of the same family have been made prior to the filling of the
petition but that the same have failed.
Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an ordinary civil
action involving members of the same family. They point out that it contains certain averments,
which, according to them, are indicative of its adversarial nature, to wit:
X

It is a fundamental rule that in the determination of the nature of an action or proceeding, the
averments15 and the character of the relief sought 16 in the complaint, or petition, as in the case
at bar, shall be controlling. A careful srutiny of the Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estatein SP. PROC. No. 92-63626 belies herein
petitioners' claim that the same is in the nature of an ordinary civil action. The said petition
contains sufficient jurisdictional facts required in a petition for the settlement of estate of a
deceased person such as the fat of death of the late Troadio Manalo on February 14, 1992, as
well as his residence in the City of Manila at the time of his said death. The fact of death of the
decedent and of his residence within he country are foundation facts upon which all the
subsequent proceedings in the administration of the estate rest. 17The petition is SP.PROC No.
92-63626 also contains an enumeration of the names of his legal heirs including a tentative list
of the properties left by the deceased which are sought to be settled in the probate
proceedings. In addition, the relief's prayed for in the said petition leave no room for doubt as
regard the intention of the petitioners therein (private respondents herein) to seek judicial
settlement of the estate of their deceased father, Troadio Manalo, to wit;

PRAYER
WHEREFORE, premises considered, it is respectfully prayed for of this Honorable Court:

The argument is misplaced. Herein petitioners may not validly take refuge under the provisions of Rule 1,
Section 2, of the Rules of Court to justify the invocation of Article 222 of the Civil Code of the Philippines for
the dismissal of the petition for settlement of the estate of the deceased Troadio Manalo inasmuch as the
latter provision is clear enough. To wit:

a. That after due hearing, letters of administration be issued to petitioner ROMEO

MANALO for the administration of the estate of the deceased TROADIO MANALO
upon the giving of a bond in such reasonable sum that this Honorable Court may fix.

Art. 222. No suit shall be filed or maintained between members of the same family unless it should appear
that earnest efforts toward a compromise have been made, but that the same have failed, subject to the
limitations in Article 2035(underscoring supplied).22

b. That after all the properties of the deceased TROADIO MANALO have been
inventoried and expenses and just debts, if any, have been paid and the legal heirs of
the deceased fully determined, that the said estate of TROADIO MANALO be settled
and distributed among the legal heirs all in accordance with law.

The above-quoted provision of the law is applicable only to ordinary civil actions. This is clear from the term
'suit' that it refers to an action by one person or persons against another or other in a court of justice in which
the plaintiff pursues the remedy which the law affords him for the redress of an injury or the enforcement of a
right, whether at law or in equity. 23 A civil action is thus an action filed in a court of justice, whereby a party
sues another for the enforcement of a right, or the prevention or redress of a wrong. 24 Besides, an excerpt
form the Report of the Code Commission unmistakably reveals the intention of the Code Commission to
make that legal provision applicable only to civil actions which are essentially adversarial and involve
members of the same family, thus:

c. That the litigation expenses of these proceedings in the amount of P250,000.00 and
attorney's fees in the amount of P300,000.00 plus honorarium of P2,500.00 per
appearance in court in the hearing and trial of this case and costs of suit be taxed
solely against ANTONIO MANALO.18
Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments which may be
typical of an ordinary civil action. Herein petitioners, as oppositors therein, took advantage of
the said defect in the petition and filed their so-called Opposition thereto which, as observed by
the trial court, is actually an Answer containing admissions and denials, special and affirmative
defenses and compulsory counterclaims for actual, moral and exemplary damages, plus
attorney's fees and costs 19 in an apparent effort to make out a case of an ordinary civil action
and ultimately seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis-vis, Article 222 of civil of the Civil Code.
It is our view that herein petitioners may not be allowed to defeat the purpose of the essentially
valid petition for the settlement of the estate of the late Troadio Manalo by raising matters that
as irrelevant and immaterial to the said petition. It must be emphasized that the trial court, siting
as a probate court, has limited and special jurisdiction 20 and cannot hear and dispose of
collateral matters and issues which may be properly threshed out only in an ordinary civil
action. In addition, the rule has always been to the effect that the jurisdiction of a court, as well
as the concomitant nature of an action, is determined by the averments in the complaint and not
by the defenses contained in the answer. If it were otherwise, it would not be too difficult to have
a case either thrown out of court or its proceedings unduly delayed by simple strategem. 21 So it
should be in the instant petition for settlement of estate.
Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to be
considered as a special proceeding for the settlement of estate of a deceased person, Rule 16,
Section 1(j) of the Rules of Court vis--visArticle 222 of the Civil Code of the Philippines would
nevertheless apply as a ground for the dismissal of the same by virtue of ule 1, Section 2 of the
Rules of Court which provides that the 'rules shall be liberally construed in order to promote
their object and to assist the parties in obtaining just, speedy and inexpensive determination of
every action and proceedings.' Petitioners contend that the term "proceeding" is so broad that it
must necessarily include special proceedings.

It is difficult to imagine a sadder and more tragic spectacle than a litigation between members of
the same family. It is necessary that every effort should be made toward a compromise before
litigation is allowed to breed hate and passion in the family. It is know that lawsuit between close
relatives generates deeper bitterness than stranger.25
It must be emphasized that the oppositors (herein petitioners) are not being sued in SP. PROC. No. 9263626 for any cause of action as in fact no defendant was imploded therein. The Petition for issuance of
letters of Administration, Settlement and Distribution of Estate in SP. PROC. No. 92-63626 is a special
proceeding and, as such, it is a remedy whereby the petitioners therein seek to establish a status, a right, or
a particular fact. 26 the petitioners therein (private respondents herein) merely seek to establish the fat of
death of their father and subsequently to be duly recognized as among the heirs of the said deceased so
that they can validly exercise their right to participate in the settlement and liquidation of the estate of the
decedent consistent with the limited and special jurisdiction of the probate court.
1wphi1.nt

WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit, Costs against petitioners.
SO ORDERED.

G.R. No. L-28394 November 26, 1970

PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendants-appellees.
German M. Lopez for plaintiff-appellant.
Pedro R. Davila for defendants-appellees.
Civil Law; Succession; Acquisition of Ownership; Legitime; Widow's Interest.As a widow, she
is one of her deceased husband's compulsory heirs [Art. 887(3), Civil Code] and has,
accordingly, an interest in the property in question.

Same; Same; Suit against heirs.Inasmuch as succession takes place by operation of law,
"from the moment of the death of the decedent" (Arts. 774 and 777, Civil Code) and "the
inheritance includes all the property, rights and obligations of a person which are not
extinguished by his death," (Art. 776, Civil Code) it follows that if his heirs were included as
defendants, they would be sued, not as "representatives" of the decedent, but as owners of an
aliquot interest in the property in question, even if the precise extent of their interest may still be
undetermined and they have derived it from the decedent. Hence, they may be sued without a
previous declaration of heirship, provided there is no pending special proceeding for the
settlement of the estate of the decedent.
Same; Same; Family Relations; Suit between members of the same family, defined.It is
noteworthy that the impediment arising from the provision of Art. 222 of the Civil Code applies
to suits "filed or maintained between members of the same family." This phrase, "members of
the same family," should, however, be construed in the light of Article 217 of the same Code.
Same; Same; Same; Suit against sister-in-law, nephews and nieces.Inasmuch as a sister-inlaw, nephew or niece is not included in the enumeration contained in Article 217, Civil Code,
which should be construed strictly, it being an exception to the general rule, it follows that the
same does not come within the purview of Art. 222, and plaintiff's failure to seek a compromise
before filing the complaint does not bar the same.
APPEAL from an order of the Court of First Instance of Iloilo. Rovira, J.
The facts are stated in the opinion of the Court.
[Gayon vs. Gayon, 36 SCRA 104, No. L-28394 November 26, 1970]
CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Instance of Iloilo
dismissing his complaint in Civil Case No. 7334 thereof.
The records show that on July 31, 1967, Pedro Gayon filed said complaint against the spouses
Silvestre Gayon and Genoveva de Gayon, alleging substantially that, on October 1, 1952, said
spouses executed a deed copy of which was attached to the complaint, as Annex "A"
whereby they sold to Pedro Gelera, for the sum of P500.00, a parcel of unregistered land
therein described, and located in the barrio of Cabubugan, municipality of Guimbal, province of
Iloilo, including the improvements thereon, subject to redemption within five (5) years or not
later than October 1, 1957; that said right of redemption had not been exercised by Silvestre
Gayon, Genoveva de Gayon, or any of their heirs or successors, despite the expiration of the
period therefor; that said Pedro Gelera and his wife Estelita Damaso had, by virtue of a deed of
sale copy of which was attached to the complaint, as Annex "B" dated March 21, 1961,
sold the aforementioned land to plaintiff Pedro Gayon for the sum of P614.00; that plaintiff had,
since 1961, introduced thereon improvements worth P1,000; that he had, moreover, fully paid
the taxes on said property up to 1967; and that Articles 1606 and 1616 of our Civil Code require
a judicial decree for the consolidation of the title in and to a land acquired through a conditional

sale, and, accordingly, praying that an order be issued in plaintiff's favor for the consolidation of
ownership in and to the aforementioned property.
In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre Gayon, died on
January 6, 1954, long before the institution of this case; that Annex "A" to the complaint is
fictitious, for the signature thereon purporting to be her signature is not hers; that neither she
nor her deceased husband had ever executed "any document of whatever nature in plaintiff's
favor"; that the complaint is malicious and had embarrassed her and her children; that the heirs
of Silvestre Gayon had to "employ the services of counsel for a fee of P500.00 and incurred
expenses of at least P200.00"; and that being a brother of the deceased Silvestre Gayon,
plaintiff "did not exert efforts for the amicable settlement of the case" before filing his complaint.
She prayed, therefore, that the same be dismissed and that plaintiff be sentenced to pay
damages.
Soon later, she filed a motion to dismiss, reproducing substantially the averments made in her
answer and stressing that, in view of the death of Silvestre Gayon, there is a "necessity of
amending the complaint to suit the genuine facts on record." Presently, or on September 16,
1967, the lower court issued the order appealed from, reading:
Considering the motion to dismiss and it appearing from Exhibit "A" annexed
to the complaint that Silvestre Gayon is the absolute owner of the land in
question, and considering the fact that Silvestre Gayon is now dead and his
wife Genoveva de Gayon has nothing to do with the land subject of plaintiff's
complaint, as prayed for, this case is hereby dismissed, without
pronouncement as to costs.1
A reconsideration of this order having been denied, plaintiff interposed the present appeal,
which is well taken.
Said order is manifestly erroneous and must be set aside. To begin with, it is not true that Mrs.
Gayon "has nothing to do with the land subject of plaintiff's complaint." As the widow of Silvestre
Gayon, she is one of his compulsory heirs 2and has, accordingly, an interest in the property in
question. Moreover, her own motion to dismiss indicated merely "a necessity of amending the
complaint," to the end that the other successors in interest of Silvestre Gayon, instead of the latter, be
made parties in this case. In her opposition to the aforesaid motion for reconsideration of the plaintiff,
Mrs. Gayon alleged, inter alia, that the "heirs cannot represent the dead defendant, unless there is a
declaration of heirship." Inasmuch, however, as succession takes place, by operation of law, "from the
moment of the death of the decedent" 3and "(t)he inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death," 4it follows that if his heirs were
included as defendants in this case, they would be sued, not as "representatives" of the decedent, but
as owners of an aliquot interest in the property in question, even if the precise extent of their interest
may still be undetermined and they have derived it from the decent. Hence, they may be sued without
a previous declaration of heirship, provided there is no pending special proceeding for the settlement
of the estate of the decedent. 5

As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the present case,
Art. 222 of our Civil Code provides:

No suit shall be filed or maintained between members of the same family

unless it should appear that earnest efforts toward a compromise have been
made, but that the same have failed, subject to the limitations in article
2035.
It is noteworthy that the impediment arising from this provision applies to suits "filed or
maintained between members of the same family." This phrase, "members of the same family,"
should, however, be construed in the light of Art. 217 of the same Code, pursuant to which:
Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.
Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or nieces.
Inasmuch as none of them is included in the enumeration contained in said Art. 217 which
should be construed strictly, it being an exception to the general rule and Silvestre Gayon
must necessarily be excluded as party in the case at bar, it follows that the same does not
come within the purview of Art. 222, and plaintiff's failure to seek a compromise before filing the
complaint does not bar the same.
WHEREFORE, the order appealed from is hereby set aside and the case remanded to the
lower court for the inclusion, as defendant or defendants therein, of the administrator or
executor of the estate of Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of
such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for further
proceedings, not inconsistent with this decision, with the costs of this instance against
defendant-appellee, Genoveva de Gayon. It is so ordered.

G.R. No. 97898 August 11, 1997

FLORANTE F. MANACOP, petitioner,
vs.
COURT OF APPEALS and E & L MERCANTILE, INC., respondents.
Family Code; Family Home; A final and executory decision promulgated and a writ of execution
issued before the effectivity of the Family Code can be executed on a house and lot constituted
as a family home under the provisions of the said Code.Petitioner contends that the trial court
erred in holding that his residence was not exempt from execution in view of his failure to show
that the property involved has been duly constituted as a family home in accordance with law.
He asserts that the Family Code and Modequillo require simply the occupancy of the property
by the petitioner, without need for its judicial or extrajudicial constitution as a family home.
Petitioner is only partly correct. True, under the Family Code which took effect on August 3,
1988, the subject property became his family home under the simplified process embodied in
Article 153 of said Code. However, Modequillo explicitly ruled that said provision of the Family
Code does not have retroactive effect. In other words, prior to August 3, 1988, the procedure
mandated by the Civil Code had to be followed for a family home to be constituted as such.
There being absolutely no proof that the subject property was judicially or extrajudicially
constituted as a family home, it follows that the laws protective mantle cannot be availed of by
petitioner. Since the debt involved herein was incurred and the assailed orders of the trial court
issued prior to August 3, 1988, the petitioner cannot be shielded by the benevolent provisions of
the Family Code.
Same; Same; Words and Phrases; The occupancy of the family home either by the owner
thereof or by any of its beneficiaries must be actual, and that which is actual is something
real, or actually existing, as opposed to something merely possible, or to something which is
presumptive or constructive.In view of the foregoing discussion, there is no reason to address
the other arguments of petitioner other than to correct his misconception of the law. Petitioner
contends that he should be deemed residing in the family home because his stay in the United
States is merely temporary. He asserts that the person staying in the house is his overseer and
that whenever his wife visited this country, she stayed in the family home. This contention lacks
merit. The law explicitly provides that occupancy of the family home either by the owner thereof
or by any of its beneficiaries must be actual. That which is actual is something real, or
actually existing, as opposed to something merely possible, or to something which is
presumptive or constructive.
Same; Same; Same; Beneficiaries, Explained; Maids and overseers are not the beneficiaries
contemplated by Art. 154 of the Family Codeoccu pancy of a family home by an overseer is
insufficient compliance with the law.Actual occupancy, however, need not be by the owner of
the house specifically. Rather, the property may be occupied by the beneficiaries enumerated
by Article 154 of the Family Code. Art. 154. The beneficiaries of a family home are: (1) The
husband and wife, or an unmarried person who is the head of the family; and (2) Their parents,
ascendants, descendants, brothers and sisters, whether the relationship be legitimate or

illegitimate, who are living in the family home and who depend upon the head of the family for
lead support. This enumeration may include the in-laws where the family home is constituted
jointly by the husband and wife. But the law definitely excludes maids and overseers. They are
not the beneficiaries contemplated by the Code. Consequently, occupancy of a family home by
an overseer like Carmencita V. Abat in this case is insufficient compliance with the law.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Jose F. Manacop for petitioner.
Cesar D. Turiano for private respondent.
[Manacop vs. Court of Appeals, 277 SCRA 57, G.R. No. 97898 August 11, 1997]
PANGANIBAN, J.:
May a writ of execution of a final and executory judgment issued before the effectivity of the
Family Code be executed on a house and lot constituted as a family home under the provision
of said Code?
State of the Case
This is the principal question posed by petitioner in assailing the Decision of
Respondent Court of Appeals 1in CA-G.R. SP No. 18906 promulgated on February 21,
1990 and its Resolution promulgated on March 21, 1991, affirming the orders issued by the
trial court commanding the issuance of various writs of execution to enforce the latter's
decision in Civil Case No. 53271.

The Facts
Petitioner Florante F. Manacop 2 and his wife Eulaceli purchased on March 10, 1972 a
446-square-meter residential lot with a bungalow, in consideration of P75,000.00. 3 The
property, located in Commonwealth Village, Commonwealth Avenue, Quezon City, is
covered by Transfer Certificate of Title No. 174180.

On March 17, 1986, Private Respondent E & L Merchantile, Inc. filed a complaint
against petitioner and F.F. Manacop Construction Co., Inc. before the Regional Trial
Court of Pasig, Metro Manila to collect an indebtedness of P3,359,218.45. Instead of
filing an answer, petitioner and his company entered into a compromise agreement
with private respondent, the salient portion of which provides:
c. That defendants will undertake to pay the amount of P2,000,000.00 as
and when their means permit, but expeditiously as possible as their
collectibles will be collected. (sic)

On April 20, 1986, the trial court rendered judgment approving the aforementioned
compromise agreement. It enjoined the parties to comply with the agreement in good
faith. On July 15, 1986, private respondent filed a motion for execution which the
lower court granted on September 23, 1986. However, execution of the judgment was
delayed. Eventually, the sheriff levied on several vehicles and other personal
properties of petitioner. In partial satisfaction of the judgment debt, these chattels were
sold at public auction for which certificates of sale were correspondingly issued by the
sheriff.
On August 1, 1989, petitioner and his company filed a motion to quash the alias writs
of execution and to stop the sheriff from continuing to enforce them on the ground that
the judgment was not yet executory. They alleged that the compromise agreement
had not yet matured as there was no showing that they had the means to pay the
indebtedness or that their receivables had in fact been collected. They buttressed
their motion with supplements and other pleadings.
On August 11, 1989, private respondent opposed the motion on the following grounds:
(a) it was too late to question the September 23, 1986 Order considering that more
than two years had elapsed; (b) the second alias writ of execution had been partially
implemented; and (c) petitioner and his company were in bad faith in refusing to pay
their indebtedness notwithstanding that from February 1984 to January 5, 1989, they
had collected the total amount of P41,664,895.56. On September 21, 1989, private
respondent filed an opposition to petitioner and his company's addendum to the
motion to quash the writ of execution. It alleged that the property covered by TCT No.
174180 could not be considered a family home on the grounds that petitioner was
already living abroad and that the property, having been acquired in 1972, should
have been judicially constituted as a family home to exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the writ of
execution and the prayers in the subsequent pleadings filed by petitioner and his
company. Finding that petitioner and his company had not paid their indebtedness
even though they collected receivables amounting to P57,224,319.75, the lower court
held that the case had become final and executory. It also ruled that petitioner's
residence was not exempt from execution as it was not duly constituted as a family
home, pursuant to the Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a petition
for certiorari assailing the lower court's Orders of September 23, 1986 and September
26, 1989. On February 21, 1990, Respondent Court of Appeals rendered its now
questioned Decision dismissing the petition for certiorari. The appellate court quoted
with approval the findings of the lower court that: (a) the judgment based on the
compromise agreement had become final and executory, stressing that petitioner and
his company had collected the total amount of P57,224,319.75 but still failed to pay
their indebtedness and (b) there was no showing that petitioner's residence had been
duly constituted as a family home to exempt it from execution. On the second finding,
the Court of Appeals added that:

. . . . We agree with the respondent judge that there is no showing in

evidence that petitioner Maacop's residence under TCT 174180 has been
duly constituted as a family home in accordance with law. For one thing, it is
the clear implication of Article 153 that the family home continues to be so
deemed constituted so long as any of its beneficiaries enumerated in Article
154 actually resides therein. Conversely, it ceases to continue as such
family home if none of its beneficiaries actually occupies it. There is no
showing in evidence that any of its beneficiaries is actually residing therein.
On the other hand, the unrefuted assertion of private respondent is that
petitioner Florante Maacop had already left the country and is now,
together with all the members of his family, living in West Covina, Los
Angeles, California, U.S.A.
Petitioner and his company filed a motion for reconsideration of this Decision on the
ground that the property covered by TCT No. 174180 was exempt from execution. On
March 21, 1991, the Court of Appeals rendered the challenged Resolution denying the
motion. It anchored its ruling on Modequillo v.Breva, 4 which held that "all existing family
residences at the time of the effectivity of the Family Code are considered family homes
and are prospectively entitled to the benefits accorded to a family home under the Family
Code."

Applying the foregoing pronouncements to this case, the Court of Appeals explained:
The record of the present case shows that petitioners incurred the debt of
P3,468,000.00 from private respondent corporation on February 18, 1982
(Annex "A", Petition). The judgment based upon the compromise agreement
was rendered by the court on April 18, 1986 (Annex "C", ibid). Paraphrasing
the aforecited Modequillo case, both the debt and the judgment preceded
the effectivity of the Family Code on August 3, 1988. Verily, the case at bar
does not fall under the exemptions from execution provided under Article
155 of the Family Code.
Undeterred, petitioner filed the instant petition for review on certiorari arguing that the
Court of Appeals misapplied Modequillo. He contends that there was no need for him
to constitute his house and lot as a family home for it to be treated as such since he
was and still is a resident of the same property from the time "it was levied upon and
up to this moment."
The Issue
As stated in the opening sentence of this Decision, the issue in this case boils down to
whether a final and executory decision promulgated and a writ of execution issued
before the effectivity of the Family Code can be executed on a family home
constituted under the provisions of the said Code.
The Court's Ruling

We answer the question in the affirmative. The Court of Appeals committed no

reversible error. On the contrary, its Decision and Resolution are supported by law
and applicable jurisprudence.
No Novel Issue
At the outset, the Court notes that the issue submitted for resolution in the instant
case is not entirely new. In Manacop v. Court of Appeals, 5 petitioner himself as a party
therein raised a similar question of whether this very same property was exempt
from preliminary attachment for the same excuse that it was his family home. In said case,
F.F. Cruz & Co., Inc. filed a complaint for a sum of money. As an incident in the proceedings
before it, the trial court issued writ of attachment on the said house and lot. In upholding the
trial court (and the Court of Appeals) in that case, we ruled that petitioner incurred the
indebtedness in 1987 or prior to the effectively of the Family Code on August 3, 1988.
Hence, petitioner's family home was not exempt from attachment "by sheer force of
exclusion embodied in paragraph 2, Article 155 of the Family Code cited in Modequillo,"
where the Court categorically ruled:

Under the Family Code, a family home is deemed constituted on a house

and lot from the time it is occupied as a family residence. There is no need
to constitute the same judicially or extrajudicially as required in the Civil
Code. If the family actually resides in the premises, it is, therefore, a family
home as contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or
head of the family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such
constitution; and
(4) For debts due to laborer, mechanics, architects, builders, materialmen
and others who have rendered service or furnished material for the
construction of the building.
The exemption provided as aforestated is effective from the time of the
constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein.

In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the
Civil Code. It became a family home by operation of law only under Article
153 of the Family Code. It is deemed constituted as a family home upon the
effectivity of the Family Code on August 3, 1988 not August 4, one year after
its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap
year).
The contention of petitioner that it should be considered a family home from
the time it was occupied by petitioner and his family in 1960 is not welltaken. Under Article 162 of the Family Code, it is provided that "the
provisions of this Chapter shall also govern existing family residences
insofar as said provisions are applicable." It does not mean that Articles 152
and 153 of said Code have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at the
time of their occupation prior to the effectivity of the Family Code and are
exempt from execution for the payment of obligations incurred before the
effectivity of the Family Code.Article 162 simply means that all existing
family residences at the time of the effectivity of the Family Code, are
considered family homes and are prospectively entitled to the benefits
accorded to a family home under the Family Code, Article 162 does not
state that provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money
judgment aforecited? No. The debt or liability which was the basis of the
judgment arose or was incurred at the time of the vehicular accident on
March 16, 1976 and the money judgment arising therefrom was rendered by
the appellate court on January 29, 1988. Both preceded the effectivity of the
Family Code on August 3, 1988. This case does not fall under the
exemptions from execution provided in the Family Code. 6(Emphasis
supplied.)

Article
153
Has No Retroactive Effect

of

the

Family

Code

Petitioner contends that the trial court erred in holding that his residence was not
exempt from execution in view of his failure to show that the property involved "has
been duly constituted as a family home in accordance with law." He asserts that the
Family Code and Modequillo require simply the occupancy of the property by the
petitioner, without need for its judicial or extrajudicial constitution as a family home. 7
Petitioner is only partly correct. True, under the Family Code which took effect on
August 3, 1988, 8 the subject property became his family home under the simplified
process embodied in Article 153 of said code. However, Modequillo explicitly ruled that said
provision of the Family Code does not have retroactive effect. In other words, prior to
August 3, 1988, the procedure mandated by the Civil Code 9 had to be followed for a family
home to be constituted as such. There being absolutely no proof that the subject property
was judicially or extrajudicially constituted as a family home, it follows that the law's
protective mantle cannot be availed of by petitioner. Since the debt involved herein was

incurred and the assailed orders of the trial court issued prior to August 3, 1988, the
petitioner cannot be shielded by the benevolent provisions of the Family Code.

List
of
to Those Enumerated in the Code

Beneficiary-Occupants

Restricted

In view of the foregoing discussion, there is no reason to address the other arguments
of petitioner other than to correct his misconception of the law. Petitioner contends
that he should be deemed residing in the family home because his stay in the United
States is merely temporary. He asserts that the person staying in the house is his
overseer and that whenever his wife visited this country, she stayed in the family
home. This contention lacks merit.
The law explicitly provides that occupancy of the family home either by the owner
thereof or by "any of its beneficiaries" must be actual. That which is "actual" is
something real, or actually existing, as opposed to something merely possible, or to
something which is presumptive or constructive. 10 Actual occupancy, however, need not
be by the owner of the house specifically. Rather, the property may be occupied by the
"beneficiaries" enumerated by Article 154 of the Family Code.

Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of the
family; and
(2) Their parents, ascendants, descendants, brothers and sisters, whether
the relationship be legitimate or illegitimate, who are living in the family
home and who depend upon the head of the family for lead support.
This enumeration may include the in-laws where the family home is constituted jointly
by the husband and wife. 11 But the law definitely excludes maids and overseers. They are
not the beneficiaries contemplated by the Code. Consequently, occupancy of a family home
by an overseer like Carmencita V. Abat in this case 12 is insufficient compliance with the law.

WHEREFORE, the petition is hereby DENIED for utter lack of merit. This Decision is
immediately executory. Double costs against petitioner.
SO ORDERED.
G.R. No. 170829

November 20, 2006

PERLA G. PATRICIO, Petitioner,

vs.
MARCELINO G. DARIO III and THE HONORABLE COURT OF APPEALS, Second
Division, Respondents.

Civil Law; Family Home; The family home is deemed constituted from the time it is occupied as
a family residence.The family home is a sacred symbol of family love and is the repository of
cherished memories that last during ones lifetime. 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. It is
constituted jointly by the husband and the wife or by an unmarried head of a family. 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.
Same; Same; Occupancy of the family home either by the owner thereof or by any of its
beneficiaries must be actual.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.
Same; Same; Beneficiaries of a family home enumerated in Article 154 of the Family Code;
Requisites to be a beneficiary of the family home.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.
Same; Same; 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; Rule shall apply regardless of whoever owns the property or constituted the family
home.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.
Same; Same; Words and Phrases; Legal Support; Characteristics of legal support.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. 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.

Same; Property; Co-ownership; Partition; No co-owner ought to be compelled to stay in a coownership 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.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 co-owned property to prevent these situations from arising. As we ruled in Santos v.
Santos, 342 SCRA 753 (2000), 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.

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. R-213963 was issued in the names of petitioner, private respondent and Marcelino
Marc.

Same; Same; Same; Same; An action for partition is at once an action for declaration of coownership and for segregation and conveyance of a determinate portion of the properties
involved.In Vda. de Daffon v. Court of Appeals, 387 SCRA 427 (2002), we held that an action
for partition is at once an action for declaration of coownership and for segregation and
conveyance of a determinate portion of the properties involved. If the 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.

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

PETITION for review on certiorari of a resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.
Ma. Patricia S. EncarnacionForia for petitioner.
Yee Law Office for respondent.
[Patricio vs. Dario III, 507 SCRA 438, G.R. No. 170829 November 20, 2006]
DECISION
YNARES-SANTIAGO, J.:
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 pre-school
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

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-0144038 and raffled to Branch 78.

Private respondent filed a motion for reconsideration which was denied by the trial court on
August 11, 2003,5hence 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:
1wphi1

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 minor-beneficiary 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.

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. Co-owners should be afforded every available
opportunity to divide their co-owned 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.

1wphi1

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

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 one-half 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.
SO ORDERED.

G.R. No. 183965

September 18, 2009

JOANIE SURPOSA UY, Petitioner,

vs.
JOSE NGO CHUA, Respondent.

Pleadings and Practice; 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 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.
Judgments; Res Judicata; The doctrine of res judicata is a rule that pervades every wellregulated system of jurisprudence and is founded upon two grounds embodied in various
maxims of the common law.The doctrine of res judicata is a rule that pervades every wellregulated 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. 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.
Compromise Agreements; Contracts; A compromise is a contract whereby the parties, by
making reciprocal concessions, avoid a litigation or put an end to one already commenced.A
compromise is a contract whereby the parties, by making reciprocal concessions, avoid a
litigation or put an end to one already commenced. In Estate of the late Jesus S. Yujuico v.
Republic (537 SCRA 513 [2007]), 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.
Civil Law; Civil Case No. 3553 was an action for acknowledgement, affecting a persons civil
status, which cannot be the subject of compromise.Advincula v. Advincula (10 SCRA 189
[1964]) 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.

Same; Filiation; It is settled, then, in law and jurisprudence, that the status and filiation of a child
cannot be compromised.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. 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.
Courts; No court can allow itself to be used as a tool to circumvent the explicit prohibition under
Article 2035 of the Civil Code.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. RTC-Branch 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.
Judgments; A judgment void for want of jurisdiction is no judgment at all.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. 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.
Pleadings and Practice; 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.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. RTCBranch 24 is only reminded that while petitioners admission may have evidentiary value, it
does not, by itself, conclusively establish the lack of filiation.
Demurrer to Evidence; Demurrer to evidence authorizes a judgment on the merits of the case
without the defendant having to submit evidence on his part, as he would ordinarily have to do,
if plaintiffs evidence shows that he is not entitled to the relief sought.Demurrer to evidence
authorizes a judgment on the merits of the case without the defendant having to submit
evidence on his part, as he would ordinarily have to do, if plaintiffs evidence shows that he is
not entitled to the relief sought. 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. 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 plaintiffs 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
plaintiffs evidence is prima facie insufficient for a recovery.
Procedural Rules and Technicalities; 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.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.
PETITION for review on certiorari of the resolution of the Regional Trial Court of Cebu City, Br.
24.
The facts are stated in the opinion of the Court.
Alex D. Tolentino and William M. Maus for petitioner.
Rolando M. Lim for respondent.
[Uy vs. Chua, 600 SCRA 806, G.R. No. 183965 September 18, 2009]
DECISION
CHICO-NAZARIO, J.:
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. 12562-CEB, 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 Answer3 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.
8830-CEB 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 RTCBranch 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 counterdemand 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 Opposition8 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 multiplesala 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
Taking into consideration the aforementioned positions of the parties, RTC-Branch 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 Resolution13 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;

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.

II

The court rules in the negative.

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

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.

At the outset, the Court notes that from the RTC Resolution granting respondents Demurrer to
Evidence, petitioner went directly to this Court for relief. This is only proper, given that petitioner
is raising pure questions of law in her instant Petition.
a1f

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.

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

1avvphi1

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

(5) The jurisdiction of courts;

(6) Future legitime. (Emphases ours.)
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. Advincula21 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. RTC-Branch 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. Zandueta25 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 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. 12562CEB. 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.
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. RTC-Branch 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.
SO ORDERED.

Family Code; Marriages; Filiation; The status and filiation of the child cannot be compromised.
Article 164 of the Family Code is clear. A child who is conceived or born during the marriage of
his parents is legitimate.The status and filiation of a child cannot be compromised. Article 164
of the Family Code is clear. A child who is conceived or born during the marriage of his parents
is legitimate. 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 child shall be considered legitimate although
the mother may have declared against its legitimacy or may have been sentenced as an
adulteress.
Same; Same; Same; The law requires that every reasonable presumption be made in favor of
legitimacy.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: 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.
Same; Same; Same; The presumption of legitimacy proceeds from the sexual union in
marriage, particularly during the period of conception. 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 enable the husband to father the child.The presumption
of legitimacy proceeds from the sexual union in marriage, particularly during the period of
conception. 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. Sexual intercourse is to be presumed where personal access is
not disproved, unless such presumption is rebutted by evidence to the contrary.
Same; Same; Same; 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.The presumption is quasiconclusive 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. To rebut the presumption, the separation between the spouses must be such
as to make marital intimacy impossible. This may take place, for instance, when they reside in
different countries or provinces and they were never together during the period of conception.
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.
Same; Same; Same; Sexual union between spouses is assumed. Evidence sufficient to defeat
the assumption should be presented by him who asserts the contrary.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.

G.R. No. 123450. August 31, 2005

GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA ALMONTE, Respondent.

Same; Same; Same; 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.The import of Ma.
Theresas statement is that Jose Gerardo is not her legitimate son with Mario but her
illegitimate son with Gerardo. This declarationan avowal by the mother that her child is
illegitimateis 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.

impose his surname on Jose Gerardo who is, in the eyes of the law, not related to him in any
way.

Same; Same; Same; 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. 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 the children.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. 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.

Same; Same; Same; In case of annulment or declaration of absolute nullity of marriage, Article
49 of the Family Code grants visi-tation rights to a parent who is deprived of custody of his
children.In case of annulment or declaration of absolute nullity of marriage, Article 49 of the
Family Code grants visitation rights to a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and child to each others company.
There being no such parent-child relationship between them, Gerardo has no legally
demandable right to visit Jose Gerardo.

Same; Same; Same; Public policy demands that there be no compromise on the status and
filiation of a child. Otherwise, the child will be at the mercy of those who may be so minded to
exploit his defenselessness.Public policy demands that there be no compromise on the
status and filiation of a child. 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.

Same; Same; Same; 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.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. 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.

Same; Same; Same; 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.The law itself establishes the status of a child from the
moment of his birth. Although a record of birth or birth certificate may be used as primary
evidence of the filiation of a child, 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.

PETITION for review on certiorari of the resolutions of the Court of Appeals.

Same; Same; Same; A record of birth is merely prima facie evidence of the facts contained
therein. 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.A record of birth is merely prima facie
evidence of the facts contained therein. 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. 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.

[Concepcion vs. Court of Appeals, 468 SCRA 438, G.R. No. 123450 August 31, 2005]

Same; Same; Same; A persons surname or family name identifies the family to which he
belongs and is passed on from parent to child.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. A persons surname or family name identifies the
family to which he belongs and is passed on from parent to child. Hence, Gerardo cannot

The facts are stated in the opinion of the Court.

Juan Orendain P. Buted for petitioner.
Stephen L. Monsanto for respondents.

DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs special safeguard and care,
including appropriate legal protection before as well as after birth. 1 In case of assault on his
rights by those who take advantage of his innocence and vulnerability, the law will rise in his
defense with the single-minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private respondent Ma. Theresa
Almonte, and a child named Jose Gerardo. Gerardo and Ma. Theresa were married on
December 29, 1989.2 After their marriage, they lived with Ma. Theresas parents in Fairview,
Quezon City.3 Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose
Gerardo.4

Gerardo and Ma. Theresas relationship turned out to be short-lived, however. On December
19, 1991, Gerardo filed a petition to have his marriage to Ma. Theresa annulled on the ground
of bigamy.5 He alleged that nine years before he married Ma. Theresa on December 10, 1980,
she had married one Mario Gopiao, which marriage was never annulled. 6 Gerardo also found
out that Mario was still alive and was residing in Loyola Heights, Quezon City.7

Ma. Theresa 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

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

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 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

The appellate court likewise held that an illegitimate child cannot use the mothers
surname motu proprio. The child, represented by the mother, should file a separate proceeding
for a change of name under Rule 103 of the Rules of Court to effect the correction in the civil
registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the adverse decision of the appellate
court. She also filed a motion to set the case for oral arguments so that she could better
ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of the parties, the appellate court
resolved the motion for reconsideration. It reversed its earlier ruling and held that Jose Gerardo
was not the son of Ma. Theresa by Gerardo but by Mario during her first marriage:
It is, therefore, undeniable established by the evidence in this case that the appellant [Ma.
Theresa] was married to Mario Gopiao, and that she had never entered into a lawful marriage
with the appellee [Gerardo] since the so-called "marriage" with the latter was void ab initio. It
was [Gerardo] himself who had established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo was born on December 8,
1990. Therefore, the child Jose Gerardo under the law is the legitimate child of the legal and
subsisting marriage between [Ma. Theresa] and Mario Gopiao; he cannot be deemed to be the
illegitimate child of the void and non-existent marriage between [Ma. Theresa] and [Gerardo],
but is said by the law to be the child of the legitimate and existing marriage between [Ma.
Theresa] and Mario Gopiao (Art. 164, Family Code). Consequently, [she] is right in firmly saying
that [Gerardo] can claim neither custody nor visitorial rights over the child Jose Gerardo.
Further, [Gerardo] cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family Code]); it would tend
to destroy the existing marriage between [Ma. Theresa] and Gopiao, would prevent any
possible rapproachment between the married couple, and would mean a judicial seal upon an
illegitimate relationship.16
The appellate court brushed aside the common admission of Gerardo and Ma. Theresa that
Jose Gerardo was their son. It gave little weight to Jose Gerardos birth certificate showing that
he was born a little less than a year after Gerardo and Ma. Theresa were married:

We are not unaware of the movants argument that various evidence exist that appellee and the
appellant have judicially admitted that the minor is their natural child. But, in the same vein, We
cannot overlook the fact that Article 167 of the Family Code mandates:
"The child shall be considered legitimate although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be deprived of his/her
legitimate status on the bare declaration of the mother and/or even much less, the supposed
father. In fine, the law and only the law determines who are the legitimate or illegitimate
children for ones legitimacy or illegitimacy cannot ever be compromised. Not even the
birth certificate of the minor can change his status for the information contained therein are
merely supplied by the mother and/or the supposed father. It should be what the law says
and not what a parent says it is.17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above decision but the same
was denied.18Hence, this appeal.
The status and filiation of a child cannot be compromised. 19 Article 164 of the Family Code is
clear. A child who is conceived or born during the marriage of his parents is legitimate. 20
As a guaranty in favor of the child21 and to protect his status of legitimacy, Article 167 of the
Family Code provides:
Article 167. The child shall be considered legitimate although the mother may have declared
against its legitimacy or may have been sentenced as an adulteress.

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.

The law requires that every reasonable presumption be made in favor of legitimacy. 22 We
explained the rationale of this rule in the recent case of Cabatania v. Court of Appeals23:

Gerardo relies on Ma. Theresas statement in her answer 35 to the petition for annulment of
marriage36 that she never lived with Mario. He claims this was an admission that there was
never any sexual relation between her and Mario, an admission that was binding on her.

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.

Gerardos argument is without merit.

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

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 facieevidence, 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. 47Between the certificate of birth which
is prima facie evidence of Jose Gerardos illegitimacy and the quasi-conclusive presumption of
law (rebuttable only by proof beyond reasonable doubt) of his legitimacy, the latter shall prevail.

Not only does it bear more weight, it is also more conducive to the best interests of the child
and in consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press for Jose Gerardos
illegitimacy while claiming that they both had the childs interests at heart. The law, reason and
common sense dictate that a legitimate status is more favorable to the child. In the eyes of the
law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the
surnames of both his father and mother, full support and full inheritance. 48 On the other hand, an
illegitimate child is bound to use the surname and be under the parental authority only of his
mother. He can claim support only from a more limited group and his legitime is only half of that
of his legitimate counterpart.49 Moreover (without unwittingly exacerbating the discrimination
against him), in the eyes of society, a bastard is usually regarded as bearing a stigma or mark
of dishonor. Needless to state, the legitimacy presumptively vested by law upon Jose Gerardo
favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter squabble between the very
persons who were passionately declaring their concern for him. The paradox was that he was
made to suffer supposedly for his own sake. This madness should end.
This case has been pending for a very long time already. What is specially tragic is that an
innocent child is involved. Jose Gerardo was barely a year old when these proceedings began.
He is now almost fifteen and all this time he has been a victim of incessant bickering. The law
now comes to his aid to write finis to the controversy which has unfairly hounded him since his
infancy.
Having only his best interests in mind, we uphold the presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the surnames of his father Mario
and mother Ma. Theresa, in conformity with the provisions of the Civil Code on surnames. 50 A
persons surname or family name identifies the family to which he belongs and is passed on
from parent to child.51 Hence, Gerardo cannot impose his surname on Jose Gerardo who is, in
the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardos name and effecting the corrections of the entries in the
civil register regarding his paternity and filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article 49 of the Family Code
grants visitation rights to a parent who is deprived of custody of his children. Such visitation
rights flow from the natural right of both parent and child to each others company. There being
no such parent-child relationship between them, Gerardo has no legally demandable right to
visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603, otherwise known as the
Child and Youth Welfare Code, is clear and unequivocal:

Article 8. Childs Welfare Paramount. In all questions regarding the care, custody, education
and property of the child, his welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of a Child of which the Philippines
is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration.
The State as parens patriae affords special protection to children from abuse, exploitation and
other conditions prejudicial to their development. It is mandated to provide protection to those of
tender years.52 Through its laws, the State safeguards them from every one, even their own
parents, to the end that their eventual development as responsible citizens and members of
society shall not be impeded, distracted or impaired by family acrimony. This is especially
significant where, as in this case, the issue concerns their filiation as it strikes at their very
identity and lineage.
WHEREFORE, the petition is hereby DENIED. The September 14, 1995 and January 10, 1996
resolutions of the Court of Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.

G.R. No. L-2474

May 30, 1951

MARIANO ANDAL, assisted by mother Maria Dueas as guardian ad litem, and MARIA
DUEAS, plaintiffs,
vs.
EDUVIGIS MACARAIG, defendant.
Reyes and Dy-Liaco for appellants.
Tible, Tena and Borja for appellees.

1.PARENT AND CHILD; LEGITIMATE CHILDREN; PRESUMPTION.Husband died on

January 1, 1943. The boy whose legitimacy is in question was born on June 17, 1943. Held:
That boy is presumed to be the legitimate son of said husband and his wife, he having been
born within three hundred days following the dissolution of the marriage. That 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. The fact that
the wife has committed adultery cannot overcome this presumption.
2.ID.; ID.; PRESUMPTION OF LEGITIMACY UPHELD; TUBERCULOSIS DOES NOT
PREVENT CARNAL INTERCOURSE.Although the husband was already suffering from
tuberculosis and his condition then was so serious that he could hardly move and get up from
his bed, his feet were swollen and his voice hoarse, yet that is no evidence of impotency, nor
does it 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 tuberculous towards eroticism (sexual
propensity) is probably dependent more upon confinement to bed than the consequences of the
disease." (An Integrated Practice to Medicine, by Hyman, Vol. 3, p. 2202.)
APPEAL from a judgment of the Court of First Instance of Camarines Sur. Palacio, J.
The facts are stated in the opinion of the Court.
[Andal and Dueas vs. Macaraig, 89 Phil. 165, No. L-2474 May 30, 1951]
BAUTISTA ANGELO, J.:
Mariano Andal, a minor, assisted by his mother Maria Dueas, as guardian ad litem, brought an
action in the Court of First Instance of Camarines Sur for the recovery of the ownership and
possession of a parcel of land situated in the barrio of Talacop, Calabanga, Camarines Sur.
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.

G.R. No. 121027 July 31, 1997

CORAZON DEZOLLER TISON and RENE R. DEZOLLER, petitioners,

vs.
COURT OF APPEALS and TEODORA DOMINGO, respondents.
Filiation; Parent and Child; Presumptions; There is 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.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 reason 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.
Same; Same; Same; Actions; Actions for Reconveyance; The issue of legitimacy cannot be
properly controverted in an action for reconveyance.The issue, therefore, as to whether
petitioners are the legitimate children of Hermogenes Dezoller cannot be properly controverted
in the present action for reconveyance. This is aside, of course, from the further consideration
that private respondent is not the proper party to impugn the legitimacy of herein petitioners.
The presumption consequently continues to operate in favor of petitioners unless and until it is
rebutted.
Same; Same; Same; Burden of Proof; The burden of proof rests on the party who disputes the
legitimacy of a particular party.Even assuming that the issue is allowed to be resolved in this
case, the burden of proof rests not on herein petitioners who have the benefit of the
presumption in their favor, but on private respondent who is disputing the same. This fact alone
should have been sufficient cause for the trial court to exercise appropriate caution before
acting, as it did, on the demurrer to evidence. It would have delimited the issues for resolution,
as well as the time and effort necessitated thereby.
Same; Same; Same; Evidence; In order to destroy the presumption of legitimacy, the party
against whom it operates must adduce substantial and credible evidence to the contrary.
Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption
exists does not have to introduce evidence to establish that fact, and in any litigation where that
fact is put in issue, the party denying it must bear the burden of proof to overthrow the
presumption. The presumption of legitimacy is so strong that it is clear that its effect is to shift
the burden of persuasion to the party claiming illegitimacy. And in order to destroy the
presumption, the party against whom it operates must adduce substantial and credible
evidence to the contrary.
Same; Same; Same; Same; A presumption is prima facie proof of the fact presumed, and
unless the fact thus established prima facie by the legal presumption of its truth is disproved, it
must stand as proved.Where there is an entire lack of competent evidence to the contrary,
and unless or until it is rebutted, it has been held that a presumption may stand in lieu of
evidence and support a finding or decision. Perforce, a presumption must be followed if it is
uncontroverted. This is based on the theory that a presumption is prima facie proof of the fact
presumed, and unless the fact thus established prima facie by the legal presumption of its truth
is disproved, it must stand as proved.
Same; Same; Same; Same; Pleadings and Practice; When a party opts not to present
countervailing evidence to overcome the presumption, by merely filing a demurrer to evidence
instead, he or she in effect impliedly admits the truth of such fact.Indubitably, when private
respondent opted not to present countervailing evidence to overcome the presumption, by
merely filing a demurrer to evidence instead, she in effect impliedly admitted the truth of such
fact. Indeed, she overlooked or disregarded the evidential rule that presumptions like judicial

notice and admissions, relieve the proponent from presenting evidence on the facts he alleged
and such facts are thereby considered as duly proved.
Same; Same; Same; Same; Hearsay Rule; Declarations About Pedigree; Conditions for the
admission of declarations about pedigree.The primary proof to be considered in ascertaining
the relationship between the parties concerned is the testimony of Corazon Dezoller Tison to
the effect that Teodora Dezoller Guerrero in her lifetime, or sometime in 1946, categorically
declared that the former is Teodoras niece. Such a statement is considered a declaration about
pedigree which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130
of the Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable
to testify; (2) that the declarant be related to the person whose pedigree is the subject of
inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4) that
the declaration was made ante litem motam, that is, not only before the commencement of the
suit involving the subject matter of the declaration, but before any controversy has arisen
thereon.
Same; Evidence; Hearsay Rule; Declarations About Pedigree; Where the party claiming seeks
recovery against a relative common to both claimant and declarantnot from the declarant
himself or the declarants estatethe relationship of the declarant to the common relative may
not be proved by the declaration itself, but this requirement does not apply where it is sought to
reach the estate of the declarant himself and not merely to establish a right through his
declarations to the property of some other member of the family.The general rule, therefore,
is that where the party claiming seeks recovery against a relative common to both claimant and
declarant, but not from the declarant himself or the declarants estate, the relationship of the
declarant to the common relative may not be proved by the declaration itself. There must be
some independent proof of this fact. As an exception, the requirement that there be other proof
than the declarations of the declarant as to the relationship, does not apply where it is sought to
reach the estate of the declarant himself and not merely to establish a right through his
declarations to the property of some other member of the family.
Same; Same; Same; Same; Where a party claims a right to a part of the estate of the declarant,
the declaration of the latter that the former is her niece is admissible and constitutes sufficient
proof of such relationship, notwithstanding the fact that there was no other preliminary evidence
thereof, the reason being that such declaration is rendered competent by virtue of the necessity
of receiving such evidence to avoid a failure of justice.We are sufficiently convinced, and so
hold, that the present case is one instance where the general requirement on evidence aliunde
may be relaxed. Petitioners are claiming a right to part of the estate of the declarant herself.
Conformably, the declaration made by Teodora Dezoller Guerrero that petitioner Corazon is her
niece, is admissible and constitutes sufficient proof of such relationship, notwithstanding the
fact that there was no other preliminary evidence thereof, the reason being that such
declaration is rendered competent by virtue of the necessity of receiving such evidence to avoid
a failure of justice. More importantly, there is in the present case an absolute failure by all and
sundry to refute that declaration made by the decedent.
Same; Same; Same; Same; Where the subject of the declaration is the declarants own
relationship to another person, it seems absurd to require, as a foundation for the admission of
the declaration, proof of the very fact which the declaration is offered to establish.From the
foregoing disquisitions, it may thus be safely concluded, on the sole basis of the decedents
declaration and without need for further proof thereof, that petitioners are the niece and nephew
of Teodora Dezoller Guerrero. As held in one case, where the subject of the declaration is the
declarants own relationship to another person, it seems absurd to require, as a foundation for
the admission of the declaration, proof of the very fact which the declaration is offered to
establish. The preliminary proof would render the main evidence unnecessary.

Same; Same; Same; Pleadings and Practice; It is elementary that an objection shall be made at
the time when an alleged inadmissible document is offered in evidence, otherwise, the objection
shall be treated as waived.Applying the general rule in the present case would nonetheless
produce the same result. For while the documentary evidence submitted by petitioners do not
strictly conform to the rules on their admissibility, we are however of the considered opinion that
the same may be admitted by reason of private respondents failure to interpose any timely
objection thereto at the time they were being offered in evidence. It is elementary that an
objection shall be made at the time when an alleged inadmissible document is offered in
evidence, otherwise, the objection shall be treated as waived, since the right to object is merely
a privilege which the party may waive.
Same; Same; Same; Same; Even if certain documents are inadmissible for being hearsay, but
on account of a partys failure to object thereto, the same may be admitted and considered as
sufficient to prove the facts therein asserted.The situation is aggravated by the fact that
counsel for private respondent unreservedly cross-examined petitioners, as the lone witness,
on the documentary evidence that were offered. At no time was the issue of the supposed
inadmissibility thereof, or the possible basis for objection thereto, ever raised. Instead, private
respondents counsel elicited answers from the witness on the circumstances and regularity of
her obtention of said documents: The observations later made by private respondent in her
comment to petitioners offer of exhibits, although the grounds therefor were already apparent at
the time these documents were being adduced in evidence during the testimony of Corazon
Dezoller Tison but which objections were not timely raised therein, may no longer serve to
rectify the legal consequences which resulted therefrom. Hence, even assuming ex gratia
argumenti that these documents are inadmissible for being hearsay, but on account of herein
private respondents failure to object thereto, the same may be admitted and considered as
sufficient to prove the facts therein asserted.
Succession; Where a decedent is survived by the spouse and nephews and nieces, the former
shall be entitled to one-half of the inheritance and the nephews and nieces to the other half.
Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was
automatically reserved to the surviving spouse, Martin Guerrero, as his share in the conjugal
partnership. Applying the aforequoted statutory provisions, the remaining half shall be equally
divided between the widower and herein petitioners who are entitled to jointly inherit in their
own right. Hence, Martin Guerrero could only validly alienate his total undivided three-fourths
(3/4) share in the entire property to herein private respondent. Resultantly, petitioners and
private respondent are deemed co-owners of the property covered by Transfer Certificate of
Title No. 374012 in the proportion of an undivided one-fourth (1/4) and three-fourths (3/4) share
thereof, respectively.
Actions; Pleadings and Practice; Demurrer to Evidence; If a demurrer to evidence is granted but
on appeal the order of dismissal is reversed, the movant shall be deemed to have waived the
right to present evidence.All told, on the basis of the foregoing considerations, the demurrer
to plaintiffs evidence should have been, as it is hereby, denied. Nonetheless, private
respondent may no longer be allowed to present evidence by reason of the mandate under
Section 1 of revised Rule 3 of the Rules of Court which provides that 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.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Benjamin P. Quitoriano for petitioners.

Ramoso Law Office for private respondent.

[Tison vs. Court of Appeals, 276 SCRA 582, G.R. No. 121027 July 31, 1997]
REGALADO, J.:
The present appeal by certiorari seeks the reversal of the judgment rendered by respondent
Court of Appeals on June 30, 1995 1 which affirmed the Order of December 3, 1992 issued by the
Regional Trial Court of Quezon City, Branch 98, granting herein private respondent's Demurrer to
Plaintiff's Evidence filed in Civil Case No. Q-88-1054 pending therein.

The present appellate review involves an action for reconveyance filed by herein petitioners
against herein private respondent before the Regional Trial Court of Quezon City, Branch 98,
docketed as the aforesaid Civil Case No. Q-88-1054, over a parcel of land with a house and
apartment thereon located at San Francisco del Monte, Quezon City and which was originally
owned by the spouses Martin Guerrero and Teodora Dezoller Guerrero. It appears that
petitioners Corazon Tison and Rene Dezoller are the niece and nephew, respectively, of the
deceased Teodora Dezoller Guerrero who is the sister of petitioner's father, Hermogenes
Dezoller. Teodora Dezoller Guerrero died on March 5, 1983 without any ascendant or
descendant, and was survived only by her husband, Martin Guerrero, and herein petitioners.
Petitioners' father, Hermogenes, died on October 3, 1973, hence they seek to inherit from
Teodora Dezoller Guerrero by right of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving spouse,
Martin, executed on September 15, 1986 an Affidavit of Extrajudicial Settlement 2 adjudicating
unto himself, allegedly as sole heir, the land in dispute which is covered by Transfer Certificate of Title
No. 66886, as a consequence of which Transfer Certificate of Title No. 358074 was issued in the
name of Martin Guerrero. On January 2, 1988, Martin Guerrero sold the lot to herein private
respondent Teodora Domingo and thereafter, Transfer Certificate of Title No. 374012 was issued in
the latter's name.

Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners filed an action for
reconveyance on November 2, 1988, claiming that they are entitled to inherit one-half of the
property in question by right of representation.
At the pre-trial conference, the following issues were presented by both parties for resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew and niece
of the late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of
representation from the estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent) must reconvey the
reserved participation of the plaintiffs to the estate of the late Teodora
Dezoller under Section 4, Rule 74 of the Rules of Court which was duly
annotated on the title of the defendant;
(4) whether or not the plaintiffs are entitled to damages, moral and
exemplary, plus attorney's fees for the willful and malicious refusal of
defendant to reconvey the participation of plaintiffs in the estate of Teodora

Dezoller, despite demands and knowing fully well that plaintiffs are the niece
and nephew of said deceased; and

petitioners have the onus probandi to prove their legitimacy and, corollarily, their filiation. We
disagree on both counts.

(5) whether or not the subject property now in litigation can be considered as
conjugal property of the spouses Martin Guerrero and Teodora Dezoller
Guerrero. 3

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 reason than the
presumption that children born in wedlock are legitimate. 8 And well settled is the rule that the

During the hearing, petitioner Corazon Dezoller Tison was presented as the lone witness, with
the following documentary evidence offered to prove petitioners' filiation to their father and their
aunt, to wit: a family picture; baptismal certificates of Teodora and Hermogenes Dezoller;
certificates of destroyed records of birth of Teodora Dezoller and Hermogenes Dezoller; death
certificates of Hermogenes Dezoller and Teodora Dezoller Guerrero; certification of destroyed
records of live birth of Corazon and Rene Dezoller; joint affidavits of Pablo Verzosa and Meliton
Sitjar attesting to the parents, date and place of birth of Corazon and Rene Dezoller; joint
affidavit of Juliana Cariaga and Manuela Cariaga attesting to the fact of marriage between
Martin Guerrero and Teodora Dezoller; and the marriage certificate of Martin and Teodora
Guerrero. 4 Petitioners thereafter rested their case and submitted a written offer of these exhibits to
which a Comment 5 was filed by herein private respondent.

Subsequently, private respondent filed a Demurrer to Plaintiff's Evidence on the ground that
petitioners failed to prove their legitimate filiation with the deceased Teodora Guerrero in
accordance with Article 172 of the Family Code. It is further averred that the testimony of
petitioner Corazon Dezoller Tison regarding her relationship with her alleged father and aunt is
self-serving, uncorroborated and incompetent, and that it falls short of the quantum of proof
required under Article 172 of the Family Code to establish filiation. Also, the certification issued
by the Office of the Local Civil Registrar of Himamaylan, Negros Occidental is merely proof of
the alleged destruction of the records referred to therein, and the joint affidavit executed by
Pablo Verzosa and Meliton Sitjar certifying to the date, place of birth and parentage of herein
petitioners is inadmissible for being hearsay since the affiants were never presented for crossexamination. 6
On December 3, 1992, the trial court issued an order granting the demurrer to evidence and
dismissing the complaint for reconveyance. 7
In upholding the dismissal, respondent Court of Appeals declared that the documentary
evidence presented by herein petitioners, such as the baptismal certificates, family picture, and
joint affidavits are all inadmissible and insufficient to prove and establish filiation. Hence, this
appeal.

issue of legitimacy cannot be attacked collaterally.

The rationale for these rules has been explained in this wise:
The presumption of legitimacy in the Family Code . . . actually fixes a civil
status for the child born in wedlock, and that civil status cannot be attacked
collaterally. The legitimacy of the child can be impugned only in a direct
action brought for that purpose, by the proper parties, and within the period
limited by law.
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.
Upon the expiration of the periods provided in Article 170, the action to
impugn the legitimacy of a child can no longer be brought. 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 for a long time. 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, which must necessarily be
facts occurring during the period of the conception of the child, may still be
easily available.
xxx xxx xxx

We find for petitioners.

The bone of contention in private respondent's demurrer to evidence is whether or not herein
petitioners failed to meet the quantum of proof required by Article 172 of the Family Code to
establish legitimacy and filiation. There are two points for consideration before us: first is the
issue on petitioner's legitimacy, and second is the question regarding their filiation with Teodora
Dezoller Guerrero.
I. It is not debatable that the documentary evidence adduced by petitioners, taken separately
and independently of each other, are not per se sufficient proof of legitimacy nor even of
pedigree. It is important to note, however, that the rulings of both lower courts in the case are
basically premised on the erroneous assumption that, in the first place, the issue of legitimacy
may be validly controverted in an action for reconveyance, and, in the second place, that herein

Only the husband can contest the legitimacy of a child born to his wife. He is
the one directly confronted with the scandal and ridicule which the infidelity
of his wife produces; and he should decide whether to conceal that infidelity
or expose it, in view of the moral and economic interest involved. It is only in
exceptional cases that his heir are allowed to contest such legitimacy.
Outside of these cases, none even his heirs can impugn legitimacy;
that would amount to an insult to his memory. 9
The issue, therefore, as to whether petitioners are the legitimate children of Hermogenes
Dezoller cannot be properly controverted in the present action for reconveyance. This is aside,
of course, from the further consideration that private respondent is not the proper party to
impugn the legitimacy of herein petitioners. The presumption consequently continues to operate
in favor of petitioners unless and until it is rebutted.

Even assuming that the issue is allowed to be resolved in this case, the burden of proof rests
not on herein petitioners who have the benefit of the presumption in their favor, but on private
respondent who is disputing the same. This fact alone should have been sufficient cause for the
trial court to exercise appropriate caution before acting, as it did, on the demurrer to evidence. It
would have delimited the issues for resolution, as well as the time and effort necessitated
thereby.
Ordinarily, when a fact is presumed, it implies that the party in whose favor the presumption
exists does not have to introduce evidence to establish that fact, and in any litigation where that
fact is put in issue, the party denying it must bear the burden of proof to overthrow the
presumption. 10 The presumption of legitimacy is so strong that it is clear that its effect is to shift the
burden of persuasion to the party claiming illegitimacy. 11 And in order to destroy the presumption, the
party against whom it operates must adduce substantial and credible evidence to the contrary. 12

Where there is an entire lack of competent evidence to the contrary,

13
and unless or until it is
rebutted, it has been held that a presumption may stand in lieu of evidence and support a finding or
decision. 14 Perforce, a presumption must be followed if it is uncontroverted. This is based on the
theory that a presumption is prima facie proof of the fact presumed, and unless the fact thus
established prima facie by the legal presumption of its truth is disproved, it must stand as proved. 15

Indubitably, when private respondent opted not to present countervailing evidence to overcome
the presumption, by merely filing a demurrer to evidence instead, she in effect impliedly
admitted the truth of such fact. Indeed, she overlooked or disregarded the evidential rule that
presumptions like judicial notice and admissions, relieve the proponent from presenting
evidence on the facts he alleged and such facts are thereby considered as duly proved.
II. The weight and sufficiency of the evidence regarding petitioner's relationship with Teodora
Dezoller Guerrero, whose estate is the subject of the present controversy, requires a more
intensive and extensive examination.
Petitioners' evidence, as earlier explained, consists mainly of the testimony of Corazon Dezoller
Tison, the baptismal, death and marriage certificates, the various certifications from the civil
registrar, a family picture, and several joint affidavits executed by third persons all of which she
identified and explained in the course and as part of her testimony.
The primary proof to be considered in ascertaining the relationship between the parties
concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora Dezoller
Guerrero in her lifetime, or sometime in 1946, categorically declared that the former is
Teodora's niece. 16 Such a statement is considered a declaration about pedigree which is admissible,
as an exception to the hearsay rule, under Section 39, Rule 130 of the Rules of Court, subject to the
following conditions: (1) that the declarant is dead or unable to testify; (2) that the declarant be related
to the person whose pedigree is the subject of inquiry; (3) that such relationship be shown by
evidence other than the declaration; and (4) that the declaration was made ante litem motam, that is,
not only before the commencement of the suit involving the subject matter of the declaration, but
before any controversy has arisen thereon.

There is no dispute with respect to the first, second and fourth elements. What remains for
analysis is the third element, that is, whether or not the other documents offered in evidence
sufficiently corroborated the declaration made by Teodora Dezoller Guerrero in her lifetime
regarding the pedigree of petitioner Corazon Dezoller Tison or, if at all, it is necessary to
present evidence other than such declaration.

American jurisdiction has it that a distinction must be made as to when the relationship of the
declarant may be proved by the very declaration itself, or by other declarations of said
declarant, and when it must be supported by evidence aliunde. The rule is stated thus:
One situation to be noted is that where one seeks to set up a claim through,
but not from, the declarant and to establish the admissibility of a declaration
regarding claimant's pedigree, he may not do by declarant's own statements
as to declarant's relationship to the particular family. The reason is that
declarant's declaration of his own relationship is of a self-serving nature.
Accordingly there must be precedent proof from other sources that declarant
is what he claimed to be, namely, a member of the particular family;
otherwise the requirement to admissibility that declarant's relationship to the
common family must appear is not met. But when the party claiming seeks
to establish relationship in order to claim directly from the declarant or the
declarant's estate, the situation and the policy of the law applicable are quite
different. In such case the declaration of the decedent, whose estate is in
controversy, that he was related to the one who claims his estate, is
admissible without other proof of the fact of relationship. While the nature of
the declaration is then disserving, that is not the real ground for its
admission. Such declarations do not derive their evidential value from that
consideration, although it is a useful, if not an artificial, aid in determining the
class to which the declarations belong. The distinction we have note is
sufficiently apparent; in the one case the declarations are self-serving, in the
other they are competent from reasons of necessity. 17(Emphasis ours.)
The general rule, therefore, is that where the party claiming seeks recovery against a relative
common to both claimant and declarant, but not from the declarant himself or the declarant's
estate, the relationship of the declarant to the common relative may not be proved by the
declaration itself. There must be some independent proof of this fact. 18 As an exception, the
requirement that there be other proof than the declarations of the declarant as to the relationship,
does not apply where it is sought to reach the estate of the declarant himself and not merely to
establish a right through his declarations to the property of some other member of the family. 19

We are sufficiently convinced, and so hold, that the present case is one instance where the
general requirement on evidence aliunde may be relaxed. Petitioners are claiming a right to part
of the estate of the declarant herself. Conformably, the declaration made by Teodora Dezoller
Guerrero that petitioner Corazon is her niece, is admissible and constitutes sufficient proof of
such relationship, notwithstanding the fact that there was no other preliminary evidence thereof,
the reason being such declaration is rendered competent by virtue of the necessity of receiving
such evidence to avoid a failure of justice. 20 More importantly, there is in the present case an
absolute failure by all and sundry to refute that declaration made by the decedent.

From the foregoing disquisitions, it may thus be safely concluded, on the sole basis of the
decedent's declaration and without need for further proof thereof, that petitioners are the niece
and nephew of Teodora Dezoller Guerrero. As held in one case, 21 where the subject of the
declaration is the declarant's own relationship to another person, it seems absurb to require, as a
foundation for the admission of the declaration, proof of the very fact which the declaration is offered
to establish. The preliminary proof would render the main evidence unnecessary.

Applying the general rule in the present case would nonetheless produce the same result. For
while the documentary evidence submitted by petitioners do not strictly conform to the rules on
their admissibility, we are however of the considered opinion that the same may be admitted by
reason of private respondent's failure to interpose any timely objection thereto at the time they
were being offered in evidence. 22 It is elementary that an objection shall
be made at the time when an alleged inadmissible document is offered in evidence,

23

otherwise, the

objection shall be treated as waived,

may waive. 25

since the right to object is merely a privilege which the party

rights of brothers and sisters, nephews and nieces, should there be any,
under Article 1001.

As explained in Abrenica vs. Gonda, et al., 26 it has been repeatedly laid down as a rule of evidence

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

24

that a protest or objection against the admission of any evidence must be made at the proper time,
otherwise it will be deemed to have been waived. The proper time is when from the question
addressed to the witness, or from the answer thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be inferred.

Thus, a failure to except to the evidence because it does not conform with the statute is a
waiver if the provisions of the law. That objection to a question put to a witness must be made
at the time the question is asked. An objection to the admission of evidence on the ground of
incompetency, taken after the testimony has been given, is too late. 27 Thus, for instance, failure
to object to parol evidence given on the stand, where the party is in a position to object, is a waiver of
any objections thereto. 28

The situation is aggravated by the fact that counsel for private respondent unreservedly crossexamined petitioners, as the lone witness, on the documentary evidence that were offered. At
no time was the issue of the supposed inadmissibility thereof, or the possible basis for objection
thereto, ever raised. Instead, private respondent's counsel elicited answers from the witness on
the circumstances and regularity of her obtention of said documents: The observations later
made by private respondent in her comment to petitioners' offer of exhibits, although the
grounds therefor were already apparent at the time these documents were being adduced in
evidence during the testimony of Corazon Dezoller Tison but which objections were not timely
raised therein, may no longer serve to rectify the legal consequences which resulted therefrom.
Hence, even assuming ex gratia argumenti that these documents are inadmissible for being
hearsay, but on account of herein private respondent's failure to object thereto, the same may
be admitted and considered as sufficient to prove the facts therein asserted. 29
Accordingly, the Certificate of Marriage (Exhibit S) wherein it is indicated that the parents of
Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the Certificates of Baptism
of Teodora Dezoller 30 (Exhibit H) and Hermogenes Dezoller (Exhibit J) which both reflect the names
of their parents as Isabelo Dezoller and Cecilia Calpo, to show that Hermogenes Dezoller is the
brother of Teodora Dezoller Guerrero; and the Death Certificate of Hermogenes Dezoller (Exhibit K)
the entries wherein were made by petitioner Corazon Dezoller Tison as his daughter, together with
the Joint Affidavits of Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein
petitioners are the children of Hermogenes Dezoller these can be deemed to have sufficiently
established the relationship between the declarant and herein petitioners. This is in consonance with
the rule that a prima facie showing is sufficient and that only slight proof of the relationship is
required. 31 Finally, it may not be amiss to consider as in the nature of circumstantial evidence the fact
that both the declarant and the claimants, who are the subject of the declaration, bear the surname
Dezoller. 32

III. The following provisions of the Civil Code provide for the manner by which the estate of the
decedent shall be divided in this case, to wit:
Art. 975. When children of one or more brothers or sisters of the deceased
survive, they shall inherit from the latter by representation, if they survive
with their uncles or aunts. But if they alone survive, they shall inherit in equal
portions.
Art. 995. In the absence of legitimate descendants and ascendants, and
illegitimate children and their descendants, whether legitimate or illegitimate,
the surviving spouse shall inherit the entire estate, without prejudice to the

Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was
automatically reserved to the surviving spouse, Martin Guerrero, as his share in the conjugal
partnership. Applying the aforequoted statutory provisions, the remaining half shall be equally
divided between the widower and herein petitioners who are entitled to jointly inherit in their
own right. Hence, Martin Guerrero could only validly alienate his total undivided three-fourths
(3/4) share in the entire property to herein private respondent. Resultantly, petitioners and
private respondent are deemed co-owners of the property covered by Transfer Certificate of
Title No. 374012 in the proportion of an undivided one-fourth (1/4) and three-fourths (3/4) share
thereof, respectively.
All told, on the basis of the foregoing considerations, the demurrer to plaintiff's evidence should
have been, as it is hereby, denied. Nonetheless, private respondent may no longer be allowed
to present evidence by reason of the mandate under Section 1 of revised Rule 3 of the Rules of
Court which provides that "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." 33
WHEREFORE, the questioned judgment of respondent Court of Appeals is hereby REVERSED
and SET ASIDE, and herein petitioners and private respondent are declared co-owners of the
subject property with an undivided one-fourth (1/4) and three-fourths (3/4) share therein,
respectively.
SO ORDERED.

G.R. No. L-49542 September 12, 1980

ANTONIO MACADANGDANG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents.
Appeals; When conclusions of fact of the Court of Appeals are not binding.The findings of
facts of the Court of Appeals are conclusive on the parties and on the Supreme Court, unless
(1) the conclusion is a finding grounded entirely on speculation, surmise, and conjectures; (2)
the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts; (5) the Court of Appeals went beyond the
issues of the case and its findings are contrary to the admission of both appellant and appellee;
(6) the findings of facts of the Court of Appeals are contrary to those of the trial court; (7) said
findings of facts are conclusions without citation of specific evidence on which they are based;
(8) the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondents; and (9) when the finding of facts of the Court of Appeals is
premised on the absence of evidence and is contradicted by evidence on record.
Civil Law; Husband and Wife; Parent and Child; Necessity of adducing evidence of physical
impossibility of access of husband to the wife during first 120 days of the 300 days prior to the
childs birth in a suit for recognition of illegitimate child.Whether or not respondent and her
husband were separated would be immaterial to the resolution of the status of the child
Rolando. What should really matter is the fact that during the initial one hundred twenty days of
the three hundred which preceded the birth of the aforenamed child, no concrete or even
substantial proof was presented to establish physical impossibility of access between
respondent and her spouse. From her very revealing testimony, respondent declared that she
was bringing two sacks of rice to Samal for her children; that her four children by her husband
lived in her mothers house in the said town; that her alleged estranged husband also lived in
her mothers place (p. 73, rec.; pp. 21 & 22, 64 & 65, t.s.n., Sept. 21, 1972). It should also be
noted that even during her affair with petitioner and right after her delivery, respondent went to
her mothers house in Samal for treatment.
Same; Same; Same; Legitimate filiation, when conclusively presumed.The baby boy subject
of this controversy was born on October 30, 1967, only seven (7) months after March, 1967
when the incident or first illicit intercourse between respondent and petitioner took place, and
also, seven months from their separation (if there really was a separation). It must be noted that
as of March, 1967, respondent and Crispin Anahaw had already four children; hence, they had
been married years before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of Rolando
came more than one hundred eighty [180] days following the celebration of the said marriage
and before 300 days following the alleged separation between aforenamed spouses. Under the
aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to be the
legitimate son of respondent and her husband.
Same; Baptismal and marriage certificates prove only the administration of the sacraments to
the subjects thereof, not the veracity of the statements made therein with respect to
relationship.In Our jurisprudence, this Court has been more definite in its pronouncements on
the value of baptismal certificates. It thus ruled that while baptismal and marriage certificates
may be considered public documents, they are evidence only to prove the administration of the
sacraments on the dates therein specifiedbut not the veracity of the statements or
declarations made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan, L25945, Oct. 31, 1967). Again, in the case of Fortus vs. Novero (L-22378, 23 SCRA 1331
[1968]). This Court held that a baptismal certificate is conclusive proof only of the baptism
administered, in conformity with the rites of the Catholic Church by the priest who baptized the
child, but it does not prove the veracity of the declarations and statements contained in the
certificate that concern the relationship of the person baptized. Such declarations and

statements, in order that their truth may be admitted, must indispensably be shown by proof
recognized by law.
Same; Same; Same; Quantum of proof required to overcome the presumption of legitimacy.
The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown
beyond reasonable doubt that there was no access as could have enabled the husband to be
the father of the child. Sexual intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence to the contrary; where sexual
intercourse is presumed or proved, the husband must be taken to be the father of the child
(Tolentino, citing Madden, Persons and Domestic Relations, pp. 340-341).
Same; Same; Same; Same.To defeat the presumption of legitimacy, therefore, there must be
physical impossibility of access by the husband to the wife during the period of conception. The
law expressly refers to physical impossibility. Hence, a circumstance which makes sexual
relations improbable, cannot defeat the presumption of legitimacy; but it may be proved as a
circumstance to corroborate proof of physical impossibility of access.
Same; Same; Same; Impotence, Meaning of; Distinguished from sterility.Impotence refers
to the inability of the male organ to copulation, to perform its proper function (Bouviers Law
Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63),
impotency is the physical inability to have sexual intercourse. It is not synonymous with sterility.
Sterility refers to the inability to procreate, whereas impotence refers to the physical inability to
perform the act of sexual intercourse. In respect of the impotency of the husband of the mother
of a child, to overcome the presumption of legitimacy based on conception or birth in wedlock or
to show illegitimacy, it has been held or recognized that the evidence or proof must be clear or
satisfactory: clear, satisfactory and convincing, irresistible or positive.
Same; Same; Same; Rational behind presumption of legitimacy.It must be stressed that
Article 256 of the Civil Code which provides that the child is presumed legitimate although the
mother may have declared against its legitimacy or may have been sentenced as an adulteress
has been adopted for two solid reasons. First, in a fit of anger, or to arouse jealousy in the
husband, the wife may have made this declaration (Powell vs. State, 95 N.E., 660). Second, the
article is established as a guaranty in favor of the children whose condition should not be under
the mercy of the passions of their parents. The husband whose honor if offended, that is, being
aware of his wifes adultery, may obtain from the guilty spouse by means of coercion, a
confession against the legitimacy of the child which may really be only a confession of her guilt.
Or the wife, out of vengeance and spite, may declare the child as not her husbands although
the statement be false. But there is another reason which is more powerful, demanding the
exclusion of proof of confession or adultery, and it is, that at the moment of conception, if
cannot be determined when a woman cohabits during the same period with two men, by whom
the child was begotten, it being possible that it be the husband himself (Manresa, Vol. I, pp.
503-504).
Same; Same; Same; Only the husband can contest legitimacy of a child born to his wife.At
this juncture, it must be pointed out that only the husband can contest the legitimacy of a child
born to his wife. He is the one directly confronted with the scandal and ridicule which the
infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose
it, in view of the moral or economic interest involved. (Tolentino, citing Bevilaque, Familia, p.
314).
Same; Same; Same; The Supreme Court will not tolerate scheming married women who would
indulge in illicit affairs with married men.This Court will not tolerate scheming married women
who would indulge in illicit affairs with married men and then exploit the children born during
such immoral relations by using them to collect from such moneyed paramours. This would be

the vilest form of wrecking the stability of two families. This would be a severe assault on
morality.
PETITION for review from the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
[Macadangdang vs. Court of Appeals, 100 SCRA 73, No. L-49542 September 12, 1980]
MAKASIAR, J.:

collateral attack without joining her legal husband as a party in the instant
case (p. 18, rec.).
In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's
decision (p. 47, and thus declared minor Rolando to be an illegitimate son of Antonio
Macadangdang (p. 52, rec.).
On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for
lack of merit. (p. 56, rec.).
Hence, petitioner filed this petition on January 12, 1979.

This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No.
54618-R which reversed the decision of the Court of First Instance of Davao, Branch IX
dismissing the action for recognition and support filed by respondent Elizabeth Mejias against
petitioner Antonio Macadangdang, and which found minor Rolando to be the illegitimate son of
petitioner who was ordered to give a monthly support of P350.00 until his alleged son reaches
the age of majority (p. 47, rec.; p. 10, ROA).
The records show that respondent Elizabeth Mejias is a married woman, her husband being
Crispin Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [P. 198, rec.])
She allegedly had intercourse with petitioner Antonio Macadangdang sometime in March, 1967
(p. 38, t.s.n., June 7, 1972 in CC No. 109). She also alleges that due to the affair, she and her
husband separated in 1967 (p. 63, t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or
210 days following the illicit encounter), she gave birth to a baby boy who was named Rolando
Macadangdang in baptismal rites held on December 24,1967 (Annex "A", List of Exhibits).

The issues boil down to:

1. Whether or not the child Rolando is conclusively presumed the legitimate
issue of the spouses Elizabeth Mejias and Crispin Anahaw; and
2. Whether or not the wife may institute an action that would bastardize her
child without giving her husband, the legally presumed father, an opportunity
to be heard.
The crucial point that should be emphasized and should be straightened out from the very
beginning is the fact that respondent's initial illicit affair with petitioner occurred sometime in
March, 1967 and that by reason thereof, she and her husband separated. This fact surfaced
from the testimony of respondent herself in the hearing of September 21, 1972 when this case
was still in the lower court. The pertinent portions of her testimony are thus quoted:

The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a complaint for
recognition and support against petitioner (then defendant) with the Court of First Instance of
Davao, Branch IX. This case was docketed as Civil Case No. 263 (p. 1, ROA).
Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing
plaintiff's claim and praying for its dismissal (p. 3, ROA).
On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing
certain stipulations, admissions and factual issues on which both parties agreed (pp. 4, 5, and
6, ROA). Correspondingly, upon agreement of the parties, an amended complaint was filed by
plaintiff on October 17, 1972 (pp. 7,8 and 9, ROA).

By Atty. Fernandez:
Q What did you feel as a result of the incident where Antonio
Macadangdang used pill and took advantage of your womanhood?
A I felt worried, mentally shocked and humiliated.
Q If these feelings: worries, mental shock and humiliation, if
estimated in monetary figures, how much win be the amount?
A Ten thousand pesos, sir.

In its decision rendered on February 27, 1973, the lower court dismissed the complaint,. The
decision invoked positive provisions of the Civil Code and Rules of Court and authorities (pp.
10-18, ROA).
On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, In her
appeal, appellant assigned these errors:
1. The Honorable Trial Court erred in applying in the instant case the
provisions of Arts. 255 and 256 of the Civil Code and Secs. 4[a], 4[b] and
4[c], Rule 131, of the Revised Rules of Court (p. 18, rec.);
2. The Honorable Trial Court erred in holding that plaintiff-appellant cannot
validly question the legitimacy of her son, Rolando Macadangdang, by a

Q And because of the incidental what happened to

your with Crispin Anahaw.
xxx xxx xxx
WITNESS:
A We separate, sir. (pp. 61-63, T.s.n., Civil Case No. 263, Sept.
21, 1972; emphasis supplied).

From the foregoing line of questions and answers, it can be gleaned that respondent's answers
were given with spontaneity and with a clear understanding of the questions posed. There
cannot be any other meaning or interpretation of the word "incident" other than that of the initial
contact between petitioner and respondent. Even a layman would understand the clear sense
of the question posed before respondent and her categorical and spontaneous answer which
does not leave any room for interpretation. It must be noted that the very question of her
counsel conveys the assumption of an existing between respondent and her husband.
The finding of the Court of Appeals that respondent and her husband were separated in 1965
cannot therefore be considered conclusive and binding on this Court. It is based solely on the
testimony of respondent which is self-serving. Nothing in the records shows that her statement
was confirmed or corroborated by another witness and the same cannot be treated as borne
out by the record or that which is based on substantial evidence. It is not even confirmed by her
own husband, who was not impleaded.
In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that
the findings of facts of the Court of Appeals are conclusive on the parties and on the Supreme
Court, unless (1) the conclusion is a finding grounded entirely on speculation, surmise, and
conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts; (5) the Court of Appeals
went beyond the issues of the case and its findings are contrary to the admission of both
appellant and appellee; (6) the findings of facts of the Court of Appeals are contrary to those of
the trial court; (7) said findings of facts are conclusions without citation of specific evidence on
which they are based; (8) the facts set forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondent; and (9) when the finding of facts of the Court of
Appeals is premised on the absence of evidence and is contradicted by evidence on
record [Pioneer Insurance and Surety Corporation vs. Yap, L-36232, December 19, 1974;
Roque vs. Buan, L-22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-cola Bottling Company of the
Philippines, L-225533, 19 SCRA 289 (1967); emphasis supplied].
Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more
exceptions to the general rule. This case invoked the same ruling in the previous case
of Ramos vs. Pepsi-Cola Bottling Company, etc., supra.
In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-31, July
30, 1979), which petitioner aptly invokes, this Court thus emphasized:
... But what should not be ignored by lawyers and litigants alike is the more
basic principle that the "findings of fact" described as "final" or
"conclusive" are those borne out by the record or those which are based
upon substantial evidence. The general rule laid down by the Supreme
Court does not declare the absolute correctness of all the findings of fact
made by the Court of Appeals. There are exceptions to the general rule,
where we have reviewed the findings of fact of the Court of Appeals ...
(emphasis supplied).
The following provisions of the Civil Code and the Rules of Court should be borne in mind:
Art. 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be
legitimate.

Against this presumption, no evidence shall be admitted other than that of

the physical impossibility of the husband's 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 the husband and wife were separately, in such a way that
access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate, although the mother may
have declared against its legitimacy or may have been sentenced as an
adulteress.
Art. 257. Should the wife commit adultery at or about the time of the
conception of the child, but there was no physical impossibility of access
between her and her husband as set forth in article 255, the child is prima
facie presumed to be illegitimate if it appears highly improbable, for ethnic
reasons, that the child is that of the husband. For the purposes of this
article, the wife's adultery need not be proved in a criminal case.
xxx xxx xxx
Sec. 4. Quasi-conclusive presumptions of legitimacy
(a) Children born after one hundred 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 legitimate.
Against presumption no evidence be admitted other than that of the physical
impossibility of the husband's 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 the husband and the wife were living separately, in such a
way that access was not possible;
[3] By the serious illness of the husband;
(b) The child shall be presumed legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress.

(c) Should the wife commit adultery at or about the time of the conception of
the child, but there was no physical impossibility of access between her and
her husband as set forth above, the child is presumed legitimate, unless it
appears highly improbable, for ethnic reasons, that the child is that of the
husband. For the purpose of the rule, the wife's adultery need not be proved
in a criminal case. ... (Rule 131, Rules of Court).
Whether or not respondent and her husband were separated would be immaterial to the
resolution of the status of the child Rolando. What should really matter is the fact that during the
initial one hundred twenty days of the three hundred which preceded the birth of the renamed
child, no concrete or even substantial proof was presented to establish physical impossibility of
access between respondent and her spouse. From her very revealing testimony, respondent
declared that she was bringing two sacks of rice to Samal for her children; that her four children
by her husband in her mother's house in the said town; that her alleged estranged husband
also lived in her mother's place (p. 73, pp. 21 & 22, 64 & 65, t.s.n., Sept. 21, 1972). It should
also be noted that even during her affair with petitioner and right after her delivery, respondent
went to her mother's house in Samal for treatment. Thus, in the direct examination of Patrocinia
Avila (the boy's yaya), the following came out:
Q Why were you taking care of the child Rolando,
where was Elizabeth Mejias?
A Because Elizabeth went to her parents in Same Davao del
Norte for treatment because she had a relapse (p. 13, t.s.n., of
Sept. 21, 1972).
From the foregoing and since respondent and her husband continued to live in the same
province, the fact remains that there was always the possibility of access to each other. As has
already been pointed out, respondent's self-serving statements were never corroborated nor
confirmed by any other evidence, more particularly that of her husband.
The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months
after March, 1967 when the "incident" or first illicit intercourse between respondent and
petitioner took place, and also, seven months from their separation (if there really was a
separation). It must be noted that as of March, 1967, respondent and Crispin Anahaw had
already four children; hence, they had been married years before such date (t.s.n., pp. 21-22,
Sept. 21, 1972). The birth of Rolando came more than one hundred eighty 180 days following
the celebration of the said marriage and before 300 days following the alleged separation
between aforenamed spouses.
Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed
to be the legitimate son of respondent and her husband.
The fact that the child was born a mere seven (7) months after the initial sexual contact
between petitioner and respondent is another proof that the said child was not of petitioner
since, from indications, he came out as a normal full-term baby.
It must be stressed that the child under question has no birth certificate of Baptism (attached in
the List of Exhibits) which was prepared in the absence of the alleged father [petitioner]. Note
again that he was born on October 30, 1967. Between March, 1967 and October 30, 1967, the
time difference is clearly 7 months. The baby Rolando could have been born prematurely. But
such is not the case. Respondent underwent a normal nine-month pregnancy. Respondent
herself and the yaya, Patrocinia Avila, declared that the baby was born in the rented house at

Carpenter Street, which birth was obvisouly normal; that he was such a healthy baby that barely
5 days after his birth, he was already cared for by said yaya when respondent became sick (pp.
28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between 15 days and 2 months of
age, respondent left him to the care of the yaya when the former left for Samal for treatment
and returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21, 1972). From the aforestated
facts, it can be indubitably said that the child was a full-term baby at birth, normally delivered,
and raised normally by the yaya. If it were otherwise or if he were born prematurely, he would
have needed special care like being placed in an incubator in a clinic or hospital and attended
to by a physician, not just a mere yaya. These all point to the fact that the baby who was born
on October 30, 1967 or 7 months from the first sexual encounter between petitioner and
respondent was conceived as early as January, 1967. How then could he be the child of
petitioner?
In Our jurisprudence, this Court has been more definite in its pronouncements on the value of
baptismal certificates. It thus ruled that while baptismal and marriage certificates may be
considered public documents, they are evidence only to prove the administration of the
sacraments on the dates therein specified but not the veracity of the states or declarations
made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan, L-25945, Oct. 31,
1967). Again, in the case of Fortus vs. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held
that a baptismal administered, in conformity with the rites of the Catholic Church by the priest
who baptized the child, but it does not prove the veracity of the declarations and statements
contained in the certificate that concern the relationship of the person baptized. Such
declarations and statements, in order that their truth may be admitted, must indispensably be
shown by proof recognized by law.
The child Rolando is presumed to be the legitimate son of respondent and her spouse. This
presumption becomes conclusive in the absence of proof that there was physical impossibility
of access between the spouses in the first 120 days of the 300 which preceded the birth of the
child. This presumption is actually quasi-conclusive and may be rebutted or refuted by only one
evidence the physical impossibility of access between husband and wife within the first 120
days of the 300 which preceded the birth of the child. This physical impossibility of access may
be caused by any of these:
1. Impotence of the husband;
2. Living separately in such a way that access was impossible and
3. Serious illness of the husband.
This presumption of legitimacy is based on the assumption that there is sexual union in
marriage, particularly during the period of conception. Hence, proof of the physical impossibility
of such sexual union prevents the application of the presumption (Tolentino, Commentaries &
Jurisprudence on the Civil Code, Vol. 1, p. 513 citing Bevilaqua, Familia p. 311).
The modern rule is that, in order to overthrow the presumption of legitimacy, it must be
shown beyond reasonable doubt that there was no access as could have enabled the husband
to be the father of the child. Sexual intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence to the contrary; where sexual
intercourse is presumed or proved, the husband must be taken to be the father of the child
(Tolentino, citing Madden, Persons and Domestic Relations, pp. 340-341).
To defeat the presumption of legitimacy, therefore, there must be physical impossibility of
access by the husband to the wife during the period of conception. The law expressly refers to

physical impossibility. Hence, a circumstance which makes sexual relations improbable, cannot
defeat the presumption of legitimacy; but it may be proved as a circumstance to corroborate
proof of physical impossibility of access (Tolentino, citing Bonet 352; 4 Valverde 408).
Impotence refers to the inability of the male organ to copulation, to perform its proper function
(Bouvier's Law Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89
Phil. 63), impotency is the physical inability to have sexual intercourse. It is not synonymous
with sterility. Sterility refers to the inability to procreate, whereas, impotence refers to the
physical inability to perform the act of sexual intercourse. In respect of the impotency of the
husband of the mother of a child, to overcome the presumption of legitimacy on conception or
birth in wedlock or to show illegitimacy, it has been held or recognized that the evidence or
proof must be clear or satisfactory: clear, satisfactory and convincing, irresistible or positive
(S.C. Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in 10 C.J.S. 50).
The separation between the spouses must be such as to make sexual access impossible. This
may take place when they reside in different countries or provinces, and they have never been
together during the period of conception (Estate of Benito Marcelo, 60 Phil. 442). Or, the
husband may be in prison during the period of conception, unless it appears that sexual union
took place through corrupt violation of or allowed by prison regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as to exclude the possibility of his having
sexual intercourse with his wife; such as, when because of a injury, he was placed in a plaster
cast, and it was inconceivable to have sexual intercourse without the most severe pain
(Tolentino, citing Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the illness
produced temporary or permanent impotence, making copulation impossible (Tolentino, citing
Q. Bonet 352).
Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because
tuberculosis is advanced in a man does not necessarily mean that he is incapable of sexual
intercourse. There are cases where persons suffering from tuberculosis can do the carnal act
even in the most crucial stage of health because then they seemed to be more inclined to
sexual intercourse. The fact that the wife had illicit intercourse with a man other than her
husband during the initial period, does not preclude cohabitation between said husband and
wife.
Significantly American courts have made definite pronouncements or rulings on the issues
under consideration. The policy of the law is to confer legitimacy upon children born in wedlock
when access of the husband at the time of conception was not impossible (N.Y. Milone vs.
Milone, 290 N.Y. S. 863, 160 Misc. 830) and there is the presumption that a child so born is the
child of the husband and is legitimate even though the wife was guilty of infidelity during the
possible period of conception (N.Y. Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both
cited in 10 C.J.S., pp. 18,19 & 20).
So firm was this presumption originally that it cannot be rebutted unless the husband was
incapable of procreation or was absent beyond the four seas, that is, absent from the realm,
during the whole period of the wife's pregnancy (10 C.J.S. p. 20).
The presumption of legitimacy of children born during wedlock obtains, notwithstanding the
husband and wife voluntarily separate and live apart, unless the contrary is shown (Ala. Franks
vs. State, 161 So. 549, 26 . App. 430) and this includes children born after the separation [10
C.J.S. pp. 23 & 24; emphasis supplied].

It must be stressed that Article 256 of the Civil Code which provides that the child is presumed
legitimate although the mother may have declared against its legitimacy or may have been
sentenced as an adulteress has been adopted for two solid reasons. First, in a fit of anger, or to
arouse jealousy in the husband, the wife may have made this declaration (Power vs. State, 95
N.E., 660). Second, the article is established as a guaranty in favor of the children whose
condition should not be under the mercy of the passions of their parents. The husband whose
honor if offended, that is, being aware of his wife's adultery, may obtain from the guilty spouse
by means of coercion, a confession against the legitimacy of the child which may really be only
a confession of her guilt. Or the wife, out of vengeance and spite, may declare the as not her
husband's although the statement be false. But there is another reason which is more powerful,
demanding the exclusion of proof of confession or adultery, and it is, that at the moment of
conception, it cannot be determined when a woman cohabits during the same period with two
men, by whom the child was begotten, it being possible that it be the husband himself
(Manresa, Vol. I, pp. 503-504).
Hence, in general, good morals and public policy require that a mother should not be permitted
to assert the illegitimacy of a child born in wedlock in order to obtain some benefit for herself
(N.Y. Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S. 77).
The law is not willing that the child be declared illegitimate to suit the whims and purposes of
either parent, nor Merely upon evidence that no actual act of sexual intercourse occurred
between husband and wife at or about the time the wife became pregnant. Thus, where the
husband denies having any intercourse with his wife, the child was still presumed legitimate
(Lynn vs. State, 47 Ohio App. 158,191 N.E. 100).
With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the
wife, in itself, cannot destroy the presumption of legitimacy of her child, because it is still
possible that the child is that of the husband (Tolentino, citing 1 Vera 170; 4 Borja 23-24).
It has, therefore, been held that the admission of the wife's testimony on the point would be
unseemly and scandalous, not only because it reveals immoral conduct on her part, but also
because of the effect it may have on the child, who is in no fault, but who nevertheless must be
the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642).
In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the
wife and mother is not admissible to show illegitimacy, if there is no proof of the husband's
impotency or non-access to his wife (Iowa Craven vs. Selway, 246 N.W. 821, cited in 10
C.J.S. 36).
At this juncture, it must be pointed out that only the husband can contest the legitimacy of a
child born to his wife. He is the one directly confronted with the scandal and ridicule which the
infidelity of his wife produces; and he should decide whether to conceal that infidelity or expose
it, in view of the moral or economic interest involved (Tolentino, citing Bevilaqua, Familia, p.
314).
The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the
alleged father, who is the husband of the mother and can be exercised only by him or his heirs,
within a fixed time, and in certain cases, and only in a direct suit brought for the purpose (La
Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872, 44 La. Ann., cited in
10 C.J.S. 77; emphasis supplied).
Thus the mother has no right to disavow a child because maternity is never uncertain; she can
only contest the Identity of the child (La Eloi vs. Mader, 1 Rollo. 581, 38 Am. D. 192).

Formerly, declarations of a wife that her husband was not the father of a child in wedlock were
held to be admissible in evidence; but the general rule now is that they are inadmissible to
bastardize the child, regardless of statutory provisions obviating incompetency on the ground of
interest, or the fact that the conception was antenuptial. The rule is said to be founded in
decency, morality and public policy (Wallace vs. Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A.
[N.S.] 544,126 Am. St. Rep. 253,15 Ann. Cas. 761, Am. Jur. 26).

Art. 220. In case of doubt, an presumptions favor the solidarity of the family.
Thus, every of law or facts leans toward the validity of marriage, the
indissolubility of the marriage bonds, the legitimacy of children the
community of property during marriage, the authority of parents over their
children, and the validity of defense for any member of the family in case of
unlawful aggression.

From the foregoing, particularly the testimony of respondent and her witnesses, this Court has
every reason to believe that Crispin Anahaw was not actually separated from Elizabeth Mejias;
that he was a very potent man, having had four children with his wife; that even if he and were
even separately (which the latter failed to prove anyway) and assuming, for argument's sake,
that they were really separated, there was the possibility of physical access to each other
considering their proximity to each other and considering further that respondent still visited and
recuperated in her mother's house in Samal where her spouse resided with her children.
Moreover, Crispin Anahaw did not have any serious illness or any illness whatsoever which
would have rendered him incapable of having sexual act with his wife. No substantial evidence
whatsoever was brought out to negate the aforestated facts.

WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND
ITS RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSED AND SET ASIDE.
COSTS AGAINST PRIVATE RESPONDENT.

Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or a
"buffer" after her flings. And she deliberately did not include nor present her husband in this
case because she could not risk her scheme. She had to be certain that such scheme to
bastardize her own son for her selfish motives would not be thwarted.
This Court finds no other recourse except to deny respondent's claim to declare her son
Rolando the illegitimate child of petitioner. From all indications, respondent has paraded herself
as a woman of highly questionable character. A married woman who, on first meeting, rides with
a total stranger who is married towards nightfall, sleeps in his house in the presence of his
children, then lives with him after their initial sexual contact the atmosphere for which she
herself provided is patently immoral and hedonistic. Although her husband was a very potent
man, she readily indulged in an instant illicit relationship with a married man she had never
known before.
Respondent had shown total lack of or genuine concern for her child (Rolando) for, even after
birth, she left him in the care of a yaya for several months. This is not the normal instinct and
behavior of a mother who has the safety and welfare of her child foremost in her mind. The
filing of this case itself shows how she is capable of sacrificing the psycho-social future
(reputation) of the child in exchange for some monetary consideration. This is blatant
shamelessness.
It also appears that her claim against petitioner is a disguised attempt to evade the
responsibility and consequence of her reckless behavior at the expense of her husband, her
illicit lover and above all her own son. For this Court to allow, much less consent to, the
bastardization of respondent's son would give rise to serious and far-reaching consequences
on society. This Court will not tolerate scheming married women who would indulge in illicit
affairs with married men and then exploit the children born during such immoral relations by
using them to collect from such moneyed paramours. This would be the form of wrecking the
stability of two families. This would be a severe assault on morality.
And as between the paternity by the husband and the paternity by the paramour, all the
circumstances being equal, the law is inclined to follow the former; hence, the child is thus
given the benefit of legitimacy.
Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides thus:

SO ORDERED.

G.R. No. 86302 September 24, 1991

CASIMIRO MENDOZA, petitioner,
vs.
HON. COURT OF APPEALS and TEOPISTA TORING TUACAO, respondents.
Bienvenido R. Saniel, Jr. for petitioner.
Domingo Antigua & Associates for private respondent.
Civil Law; Paternity and Filiation; Rules on compulsory recognition applicable not only to natural
children but also to spurious children.The rules on compulsory recognition are embodied in
Article 283 of the Civil Code, which has been held to be applicable not only to natural children
but also to spurious children.
Same; Same; Same; Compliance with certain jurisprudential requirements necessary to
establish the open and continuous possession of the status of an illegitimate child.To
establish the open and continuous possession of the status of an illegitimate child, it is
necessary to comply with certain jurisprudential requirements. Continuous does not mean that
the concession of status shall continue forever but only that it shall not be of an intermittent
character while it continues, The possession of such status means that the father has treated
the child as his own, directly and not through others, spontaneously and without concealment
though without publicity (since the relation is illegitimate). There must be a showing of the
permanent intention of the supposed father to consider the child as his own, by continuous and
clear manifestation of paternal affection and care.
Same; Same; Same; Same; Court agrees with the trial court that Teopista has not been in
continuous possession of the status of a recognized illegitimate child of Casimiro Mendoza.
With these guidelines in mind, we agree with the trial court that Teopista has not been in
continuous possession of the status of a recognized illegitimate child of Casimiro Mendoza,
Under both Article 283 of the Civil Code and Article 172 of the Family Code.
Same; Same; Same; Same; Same; Fact that Teopista failed to show that she was in open and
continuous possession of the status of an illegitimate child of Casimiro, she has nevertheless
established that status by another method.But although Teopista has failed to show that she
was in open and continuous possession of the status of an illegitimate child of Casimiro, we find
that she has nevertheless establish that status by another method.
Same; Same; Same; Same; Same; Same; 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 or proof in his favor that the defendant is her father according
to the Family Code.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 or 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 testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the
Rules of Court.
Same; Same; Acts or declarations about pedigree may be received in evidence as an exception
to the hearsay rule.Such acts or declarations may be received in evidence as an exception to

the hearsay rule because it is the best the nature of the case admits and because greater evils
are apprehended from the rejection of such proof than from its admission.
Same; Same; Same; Requisites to be complied with before the act or declaration regarding
pedigree may be admitted in evidence.Commenting on this provision, Francisco enumerates
the following requisites that Have to be complied with before the act or declaration regarding
regarding pedigree may be admitted in evidence: 1. The declarant is; dead or unable to testify.
2. The pedigree must be in issue. 3. The declarant must be a relative of the person whose
pedigree is in issue. 4. The declaration must be made before the controversy arose. 5. The
relationship between the declarant and the person whose pedigree is in question must be
shown by evidence other than such declaration.
Same: Same: Same: Same; All the above requisite are present in the case at bar.All the
above requisites are present in the case at bar. The persons who made the declarations about
the pedigree of Teopista, namely, the mother of Casimiro. Brigida Mendoza, and his brother,
Hipolito, were both dead at the time of Isaacs testimony. The declarations referred to the
filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the
complaint for compulsory recognition. The declarations were made before the complaint was
filed by Teopista or before the controversy arose between her and Casimiro. Finally, the
relationship between the declarants and Casimiro has been established by evidence other than
such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in
which Casimiro was mentioned as one of his heirs.
Same; Same; Court gives effect to the policy of the Civil Code and the Family Code to liberalize
the rule on the investigation of the paternity of illegitimate children.We hold that by virtue of
the abovediscussed declarations, and in view of the other circumstances of this case, Teopista
Toring Tuacao has proved that she is the illegitimate daughter of Casimiro Mendoza and is
entitled to be recognized as such. In so holding, we give effect to the policy of the Civil Code
and the Family Code to liberalize the rule on the investigation of the paternity of illegitimate
children, without prejudice to the right of the alleged parent to resist the claimed status with his
own defenses, including evidence now obtainable through the facilities of modern medicine and
technology.
PETITION for certiorari to review the judgment of the Court of Appeals.
The facts are stated in the opinion of the Court.
[Mendoza vs. Court of Appeals, 201 SCRA 675, G.R. No. 86302 September 24, 1991]
CRUZ, J.:p
The private respondent claimed she was the illegitimate daughter of Casimiro Mendoza, but the
latter denied her claim. He denied it to his dying day. The trial court believed him and dismissed
her complaint for compulsory recognition. The appellate court did not and reversed the
judgment of the court below. Now the issue is before us on certiorari.
The complaint was filed on August 21, 1981, in the Regional Trial Court in Cebu City. Teopista
Toring Tufiacao, the herein private respondent, alleged that she was born on August 20, 1930,
to Brigida Toring, who was then single, and defendant Casimiro Mendoza, married at that time
to Emiliana Barrientos. She averred that Mendoza recognized her as an illegitimate child by
treating her as such and according her the rights and privileges of a recognized illegitimate
child.

Casimiro Mendoza, then already 91 years old, specifically denied the plaintiffs allegations and
set up a counterclaim for damages and attorney's fees.

Art. 283. In any of the following cases, the father is obliged to recognize the
child as his natural child:

Amplifying on her complaint, Teopista testified that it was her mother who told her that her
father was Casimiro. She called him Papa Miroy. She lived with her mother because Casimiro
was married but she used to visit him at his house. When she married Valentin Tufiacao,
Casimiro bought a passenger truck and engaged him to drive it so he could have a livelihood.
Casimiro later sold the truck but gave the proceeds of the sale to her and her husband. In 1977,
Casimiro allowed her son, Lolito Tufiacao, to build a house on his lot and later he gave her
money to buy her own lot from her brother, Vicente Toring. On February 14, 1977, Casimiro
opened a joint savings account with her as a co-depositor at the Mandaue City branch of the
Philippine Commercial and Industrial Bank. Two years later, Margarita Bate, Casimiro's adopted
daughter, took the passbook from her, but Casimiro ordered it returned to her after admonishing
Margarita. 1

(1) In cases of rape, abduction or seduction, when the period of the offense
coincides more or less with that of the conception;

Lolito Tufiacao corroborated his mother and said he considered Casimiro his grandfather
because Teopista said so. He would kiss his hand whenever they saw each other and Casimiro
would give him money. Casimiro used to invite him to his house and give him jackfruits. when
his grandfather learned that he was living on a rented lot, the old man allowed him to build a
house on the former's land. 2
Two other witnesses testified for Teopista, namely, Gaudencio Mendoza and Isaac Mendoza,
both relatives of Casimiro.
Gaudencio said he was a cousin of Casimiro and knew Brigida Toring because she used to
work with him in a saltbed in Opao. Casimiro himself told him she was his sweetheart. Later,
Gaudencio acted as a go-between for their liaison, which eventually resulted in Brigida
becoming pregnant in 1930 and giving birth to Teopista. Casimiro handed him P20.00 to be
given to Brigida at Teopista's baptism. Casimiro also gave him P5.00 every so often to be
delivered to Brigida. 3
Isaac testified that his uncle Casimiro was the father of Teopista because his father Hipolito,
Casimiro's brother, and his grandmother, Brigida Mendoza, so informed him. He worked on
Casimiro's boat and whenever Casimiro paid him his salary, he would also give him various
amounts from P2.00 to P10.00 to be delivered to Teopista. Isaac also declared that Casimiro
intended to give certain properties to Teopista. 4
Casimiro himself did not testify because of his advanced age, but Vicente Toring took the stand
to resist Teopista's claim.
Vicente, who professed to be Casimiro's only illegitimate child by Brigida Toring, declared that
Teopista's father was not Casimiro but a carpenter named Ondoy, who later abandoned her.
Vicente said that it was he who sold a lot to Teopista, and for a low price because she was his
half sister. It was also he who permitted Lolito to build a house on Casimiro's lot. This witness
stressed that when Casimiro was hospitalized, Teopista never once visited her alleged father. 5
The last statement was shared by the other defense witness, Julieta Ouano, Casimiro's niece,
who also affirmed that Vicente Toring used to work as a cook in Casimiro's boat. She flatly
declared she had never met Teopista but she knew her husband, who was a mechanic. 6
The rules on compulsory recognition are embodied in Article 283 of the Civil Code, which has
been held to be applicable not only to natural children but also to spurious children. 7 The said
article provides:

(2) When the child is in continuous possession of status of a child of the

alleged father 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.
This article has been substantially reproduced in the Family Code as follows:
Art. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
Art. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
In his remarkably well-written decision, Judge Leoncio P. Abarquez rejected the plaintiff' s claim
that she was in continuous possession of the status of a child of the alleged father by the direct
acts of the latter or of his family. His Honor declared:
In this particular case the established evidence is that plaintiff continuously
lived with her mother, together with her sister Paulina. Neither the plaintiff
nor her husband had come to live with the defendant. At most, only their
son, Lolito Tufiacao was allowed to construct a small house in the land of
the defendant, either by the defendant himself, as claimed by the plaintiff, or
by Vicente Toring, as claimed by the witnesses of the defendant. The
defendant never spent for the support and education of the plaintiff. He did
not allow the plaintiff to carry his surname. The instances when the
defendant gave money to the plaintiff were, more or less, off-and-on or
rather isolatedly periodic. They were made at considerable intervals and
were not given directly to the plaintiff but through a third person. Thus, while
it may be conceded that: a) the defendant's parents, as well as the plaintiff

himself told Gaudencio Mendoza and Isaac Mendoza that Teopista is the
daughter of the defendant; b) that Teopista calls the defendant as "Papa
Miroy"; c) that Teopista would kiss defendant's hand when she met him; d)
that the defendant gave to her and her husband the income of the
passenger truck as well as the proceeds of the sale thereof, all these acts,
taken altogether, are not sufficient to show that the plaintiff had possessed
continuously the status of a recognized illegitimate child.

The heirs of the deceased may be allowed to be substituted for the

deceased, without requiring the appointment of an executor or administrator
and the court may appoint guardian ad litem for the minor heirs.
In the early case of Masecampo vs. Masecampo, 9 it was settled that:
The subsequent death of the father is not a bar to the action commenced
during Ms lifetime by one who pretended to be his natural son. It may
survive against the executor, administrator, or any other legal representative
of the testate or intestate succession.

On appeal, however, the respondent courts disagreed and arrived at its own conclusion as
8

follows:

Contrary to the conclusion of the court a quo, We find that appellant has
sufficiently proven her continuous possession of such status. Although the
court a quo did not pass on the credibility of the various witnesses
presented, We consider the witnesses for the plaintiff as credible and
unbiased. No proof was shown to render them otherwise. There is no
showing that Isaac and Gaudencio testified falsely. They were disinterested
parties with no axe to grind against the appellee or the people actively acting
in his behalf. In fact even the court a quo conceded to the truthfulness of
some of their testimonies.
By contrast, it continued, Vicente Toring was an interested party who was claiming to be the
sole recognized natural child of Casimiro and stood to lose much inheritance if Teopista's claim
were recognized. He had earlier filed theft charges against his own sister and libel charges
against her husband. As for Julieta Ouano, the respondent court found it difficult to believe that
she had never met Teopista although both of them have been living in the same barangay since
birth.
The decision of the Court of Appeals was promulgated on August 11, 1988. A motion for
reconsideration was filed, and it was only from the opposition thereto of the private respondent
that Casimiro's counsel learned that his client had died on May 1986. He immediately informed
the respondent court build the motion for reconsideration was denied without any substitution of
parties having been effected. The said counsel, now acting for Vicente Toring, then asked this
Court to substitute the latter for the deceased Casimiro Mendoza in the present petition.
The applicable provisions of the Rules of Court are Sections 16 and 17 of Rule 3, reading as
follows:
Sec. 16. Duty of attorney upon death, incapacity or incompetency of party.
Whenever a party to a pending case dies, becomes incapacitated or
incompetent, it shall be the duty of his attorney to inform the court promptly
of such death, incapacity or incompetency, and to give the name and
residence of his executor, guardian or other legal representative.
Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as may be
granted. If the legal representative fails to appear within said time the court
may order the opposing party to procure the appointment of a legal
representative of the deceased within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the
interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs.

Pursuant to the above rules and jurisprudence, we hereby allow the substitution of Casimiro
Mendoza pro haec vice and nunc pro tunc by Vicente Toring, who appears to be the former's
illegitimate son. This disposes of the private respondent's contention that the lawyer-client
relationship terminated with Casimiro's death and that Vicente has no personality now to
substitute him.
Now to the merits.
We note that both the trial court and the respondent court, in arriving at their respective
conclusions, focused on the question of whether or not Teopista was in continuous possession
of her claimed status of an illegitimate child of Casimiro Mendoza. This was understandable
because Teopista herself had apparently based her claim on this particular ground as proof of
filiation allowed under Article 283 of the Civil Code.
To establish "the open and continuous possession of the status of an illegitimate child," it is
necessary to comply with certain jurisprudential requirements. "Continuous" does not mean that
the concession of status shall continue forever but only that it shall not be of an intermittent
character while it continues. 10 The possession of such status means that the father has treated the
child as his own, directly and not through others, spontaneously and without concealment though
without publicity (since the relation is illegitimate). 11 There must be a showing of the permanent
intention of the supposed father to consider the child as his own, by continuous and clear
manifestation of paternal affection and care. 12

With these guidelines in mind, we agree with the trial court that Teopista has not been in
continuous possession of the status of a recognized illegitimate child of Casimiro Mendoza,
under both Article 283 of the Civil Code and Article 172 of the Family Code.
The plaintiff lived with her mother and not with the defendant although they were both residents
of Omapad, Mandaue City. It is true, as the respondent court observed, that this could have
been because defendant had a legitimate wife. However, it is not unusual for a father to take his
illegitimate child into his house to live with him and his legitimate wife, especially if the couple is
childless, as in this case. In fact, Vicente Toring, who also claimed to be an illegitimate child of
Casimiro, lived with the latter and his wife, apparently without objection from the latter. We also
note that Teopista did not use the surname of Casimiro although this is, of course, not decisive
of one's status. No less significantly, the regularity of defendant's act of giving money to the
plaintiff through Gaudencio Mendoza and Isaac Mendoza has not been sufficiently established.
The trial court correctly concluded that such instances were "off-and-on," not continuous and
intermittent. Indeed, the plaintiff s testimony on this point is tenuous as in one breath she said
that her mother solely spent for her education and in another that Casimiro helped in supporting
her. 13

But although Teopista has failed to show that she was in open and continuous possession of
the status of an illegitimate child of Casimiro, we find that she has nevertheless established that
status by another method.
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 or 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
testimonies of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of
Court. 14
The trial court conceded that "the defendant's parents, as well as the plaintiff himself, told
Gaudencio Mendoza and Isaac Mendoza, that Teopista was the daughter of the defendant." It
should have probed this matter further in light of Rule 130, Section 39, of the Rules of Court,
providing as follows:
Sec. 39. Act or declarations 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.
The statement of the trial court regarding Teopista's parentage is not entirely accurate. To set
the record straight, we will stress that it was only Isaac Mendoza who testified on this question
of pedigree, and he did not cite Casimiro's father. His testimony was that he was informed by
his father Hipolito, who was Casimiro's brother, and Brigida Mendoza, Casimiro's own mother,
that Teopista was Casimiro's illegitimate daughter. 15

All the above requisites are present in the case at bar. The persons who made the declarations
about the pedigree of Teopista, namely, the mother of Casimiro, Brigida Mendoza, and his
brother, Hipolito, were both dead at the time of Isaac's testimony. The declarations referred to
the filiation of Teopista and the paternity of Casimiro, which were the very issues involved in the
complaint for compulsory recognition. The declarations were made before the complaint was
filed by Teopista or before the controversy arose between her and Casimiro. Finally, the
relationship between the declarants and Casimiro has been established by evidence other than
such declaration, consisting of the extrajudicial partition of the estate of Florencio Mendoza, in
which Casimiro was mentioned as one of his heirs. 18
The said declarations have not been refuted. Casimiro could have done this by deposition if he
was too old and weak to testify at the trial of the case.
If we consider the other circumstances narrated under oath by the private respondent and her
witnesses, such as the financial doles made by Casimiro to Brigida Toring, the hiring of
Teopista's husband to drive the passenger truck of Casimiro, who later sold the vehicle and
gave the proceeds of the sale to Teopista and her husband, the permission he gave Lolito
Tufiacao to build a house on his land after he found that the latter was living on a rented lot,
and, no less remarkably, the joint savings account Casimiro opened with Teopista, we can
reasonably conclude that Teopista was the illegitimate daughter of Casimiro Mendoza.
We hold that by virtue of the above-discussed declarations, and in view of the other
circumstances of this case, 'reopista Toring Tufiacao has proved that she is the illegitimate
daughter of Casimiro Mendoza and is entitled to be recognized as such. In so holding, we give
effect to the policy of the Civil Code and the Family Code to liberalize the rule on the
investigation of "the paternity of illegitimate children, without prejudice to the right of the alleged
parent to resist the claimed status with his own defenses, including evidence now obtainable
through the facilities of modern medicine and technology
WHEREFORE, the petition is DENIED. Judgment is hereby rendered DECLARING Teopista
Toring Tuacao to be the illegitimate child of the late Casimiro Mendoza and entitled to all the
rights appurtenant to such status. Costs against the petitioner.
SO ORDERED.

Such acts or declarations may be received in evidence as an exception to the hearsay rule
because "it is the best the nature of the case admits and because greater evils are
apprehended from the rejection of such proof than from its admission. 16 Nevertheless, precisely
because of its nature as hearsay evidence, there are certain safeguards against its abuse.
Commenting on this provision, Francisco enumerates the following requisites that have to be
complied with before the act or declaration regarding pedigree may be admitted in evidence:

1. The declarant is dead or unable to testify.

2. The pedigree must be in issue.
3. The declarant must be a relative of the person whose pedigree is in issue.
4. The declaration must be made before the controversy arose.
5. The relationship between the declarant and the person whose pedigree is
in question must be shown by evidence other than such declaration. 17

G.R. No. L-48840 December 29, 1943

[Guevara vs. Guevara and Buison, 74 Phil., 479, No. 48840 December 29, 1943]

ERNESTO M. GUEVARA, petitioner-appellant,

vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.

OZAETA, J.:

Primacias, Abad, Mencias & Castillo for appellant.

Pedro C. Quinto for appellees.
1.Wills; Presentation of Will for Probate Is Mandatory; Settlement of Estate on Basis of
Intestacy When Decedent Left a Will, against the Law.We hold that under section 1 of Rule
74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees
desire" to make an extrajudicial partition of the estate, they must first present that will to the
court for probate and divide the estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law. Neither may they do away with
the presentation of the will to the court for probate, because such suppression of the will is
contrary to law and public policy. The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice thereof given to the whole world, the
right of a person to dispose of his property by will may be rendered nugatory, as is attempted to
be done in the instant case. Absent legatees and devisees, or such of them as may have no
knowledge of the will, could be cheated of their inheritance thru the collusion of some of the
heirs who might agree to the partition of the estate among themselves to the exclusion of
others.
2.Id.; Id.; Id.Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the partition of the
estate in accordance with that will without first securing its allowance or probate of the court:
first, because the law expressly provides that "no will shall pass either real or personal estate
unless it is proved and allowed in the proper court"; and, second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with and substituted by any other
proceeding, judicial or extrajudicial, without offending against public policy designed to
effectuate the testator's right to dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru the means provided by law,
among which are the publication and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will presented in evidence in such an an
action for partition, which is one in personam, any more than it could decree the registration
under the Torrens system of the land involved in an ordinary action for reivindieacion or
partition.
3.Torrens Registration; Registration Does Not Affect Rights of Partition between Legatees. It
results that the interested parties consented to the registration of the land in question in the
name of E. M. G. alone subject to the implied trust on account of which he is under obligation to
deliver and convey to them their corresponding shares after all the debts of the original owner
of said land had been paid. Such finding does not constitute a reversal of the decision and
decree of registration, which merely confirmed the petitioner's title; and in the absence of any
intervening innocent third party, the petitioner may be compelled to fulfil the promise by virtue of
which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited
by the Court of Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil.,
343, and the cases therein cited.
PETITION to review on certiorari a decision of the Court of Appeals.
The facts are stated in the opinion of the court.

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of
the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The
action was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto
Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the
deceased to wit, a portion of 423,492 square meters of a large parcel of land described in
original certificate of title No. 51691 of the province of Pangasinan, issued in the name of
Ernesto M. Guervara and to order the latter to pay her P6,000 plus P2,000 a year as
damages for withholding such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had, had been barred by the
operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently
with all the formalities of the law, wherein he made the following bequests: To his stepdaughter
Candida Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto
M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious
objects found in the residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi
hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth
P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth
P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a
mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential
lot with its improvements situate in the town of Bayambang, Pangasinan, having an area of 960
square meters and assessed at P540; to his wife Angustia Posadas he confirmed the
donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the large
parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a
portion of 5 hectares of the same parcel of land by way of complete settlement of her
usufructurary right.
1awphil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and
to degray his expenses and those of his family us to the time of his death.
The remainder of said parcel of land his disposed of in the following manner:
(d). Toda la porcion restante de mi terreno arriba descrito, de la extension
superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y
veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y
distribuyo, pro-indiviso, a mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien
(100) hectareas referidas en el inciso (a) de este parrafo del testamento, como su
propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas
cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas
que le doy en concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un
(61) areas y setenta y un (71) centiareas, que es la parte restante.

Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo

Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento,
y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados
se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones
arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to
him the southern half of the large parcel of land of which he had theretofore disposed by the will
above mentioned, inconsideration of the sum of P1 and other valuable considerations, among
which were the payment of all his debts and obligations amounting to not less than P16,500, his
maintenance up to his death, and the expenses of his last illness and funeral expenses. As to
the northern half of the same parcel of land, he declared: "Hago constar tambien que
reconozco a mi referido hijo Ernesto M. guevara como dueo de la mitad norte de la totalidad y
conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T.
Puzon a quien habia vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case No.
15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of
title No. 51691 of the same province was issued on October 12 of the same year in favor of
Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred
to. The registration proceeding had been commenced on November 1, 1932, by Victorino L.
Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but
before the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara
and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title
in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was
never presented to the court for probate, nor has any administration proceeding ever been
instituted for the settlement of his estate. Whether the various legatees mentioned in the will
have received their respective legacies or have even been given due notice of the execution of
said will and of the dispositions therein made in their favor, does not affirmatively appear from
the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son
Ernesto M. Guevara appears to have possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof for the purpose of paying the debts
left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and testament
in her custody, did nothing judicially to invoke the testamentary dispositions made therein in her
favor, whereby the testator acknowledged her as his natural daughter and, aside from certain
legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land
described in the will. But a little over four years after the testor's demise, she (assisted by her
husband) commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she presented the will to
the court, not for the purpose of having it probated but only to prove that the deceased Victirino
L. Guevara had acknowledged her as his natural daughter. Upon that proof of acknowledgment
she claimed her share of the inheritance from him, but on the theory or assumption that he died
intestate, because the will had not been probated, for which reason, she asserted, the
betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara
should be disregarded. Both the trial court and the Court of appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure
adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of
sale exhibit 2 and the effect of the certificate of title issued to the defendant (petitioner herein)
Ernesto M. Guevara.

I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our
opinion in violation of procedural law and an attempt to circumvent and disregard the last will
and testament of the decedent. The Code of Civil Procedure, which was in force up to the time
this case was decided by the trial court, contains the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass
either the real or personal estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the allowance by the court of a will
of real and personal estate shall be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will
shall, within thirty days after he knows of the death of the testator, deliver the will into
the court which has jurisdiction, or to the executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as
executor in a will, shall within thirty days after he knows of the death of the testor, or
within thirty days after he knows that he is named executor, if he obtained such
knowledge after knowing of the death of the testor, present such will to the court which
has jurisdiction, unless the will has been otherwise returned to said court, and shall,
within such period, signify to the court his acceptance of the trust, or make known in
writing his refusal to accept it.
Sec. 628. Penalty. A person who neglects any of the duties required in the two
proceeding sections, unless he gives a satisfactory excuse to the court, shall be
subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. If a person having custody of
a will after the death of the testator neglects without reasonable cause to deliver the
same to the court having jurisdiction, after notice by the court so to do, he may be
committed to the prison of the province by a warrant issued by the court, and there
kept in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took
effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole
world and with personal notice to each of the known heirs, legatees, and devisees of the
testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5,
Rule 77), the due execution of the will and the fact that the testator at the time of its execution
was of sound and disposing mind and not acting under duress, menace, and undue influence or
fraud, must be proved to the satisfaction of the court, and only then may the will be legalized
and given effect by means of a certificate of its allowance, signed by the judge and attested by
the seal of the court; and when the will devises real property, attested copies thereof and of the
certificate of allowance must be recorded in the register of deeds of the province in which the
land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the
court for probate is mandatory and its allowance by the court is essential and indispensable to
its efficacy. To assure and compel the probate of will, the law punishes a person who neglects
his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in
not presenting it, he may be committed to prision and kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the
respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the
filing of testate proceedings, it would cause injustice, incovenience, delay, and much
expense to the parties, and that therefore, it is preferable to leave them in the very
status which they themselves have chosen, and to decide their controversy once and
for all, since, in a similar case, the Supreme Court applied that same criterion
(Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which
the court ought to follow in the exercise of its jurisdiction is not specifically pointed out
by the Rules of Court, any suitable process or mode of procedure may be adopted
which appears most consistent to the spirit of the said Rules. Hence, we declare the
action instituted by the plaintiff to be in accordance with law.

estate, they must first present that will to the court for probate and divide the estate in
accordance with the will. They may not disregard the provisions of the will unless those
provisions are contrary to law. Neither may they so away with the presentation of the will to the
court for probate, because such suppression of the will is contrary to law and public policy. The
law enjoins the probate of the will and public policy requires it, because unless the will is
probated and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory, as is attempted to be done in the instant case.
Absent legatees and devisees, or such of them as may have no knowledge of the will, could be
cheated of their inheritance thru the collusion of some of the heirs who might agree to the
partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants
had received their respective legacies or that they had knowledge of the existence and of the
provisions of the will. Their right under the will cannot be disregarded, nor may those rights be
obliterated on account of the failure or refusal of the custodian of the will to present it to the
court for probate.

Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left
no debts and the heirs and legatees are all of age, or the minors are represented by
their judicial guardians, 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 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 or one legatee, he may
adjudicate to himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no creditor
files a petition for letters of administration within two years after the death of the
decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever
all the heirs of a person who died intestate are of lawful age and legal capacity and
there are no debts due from the estate, or all the debts have been paid the heirs may,
by agreement duly executed in writing by all of them, and not otherwise, apportion and
divide the estate among themselves, as they may see fit, without proceedings in
court.
The implication is that by the omission of the word "intestate" and the use of the word
"legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's
estate, whether he died testate or intestate, may be made under the conditions specified. Even
if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals
did, we do not believe it sanctions the nonpresentation of a will for probate and much less the
nullification of such will thru the failure of its custodian to present it to the court for probate; for
such a result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74
merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without
securing letter of administration." It does not say that in case the decedent left a will the heirs
and legatees may divide the estate among themselves without the necessity of presenting the
will to the court for probate. The petition to probate a will and the petition to issue letters of
administration are two different things, altho both may be made in the same case. the
allowance of a will precedes the issuance of letters testamentary or of administration (section 4,
Rule 78). One can have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent
left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the

Even if the decedent left no debts and nobdy raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition of the estate in accordance with
that will without first securing its allowance or probate by the court, first, because the law
expressly provides that "no will shall pass either real or personal estate unless it is proved and
allowed in the proper court"; and, second, because the probate of a will, which is a proceeding
in rem, cannot be dispensed with the substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy designed to effectuate the testator's right to
dispose of his property by will in accordance with law and to protect the rights of the heirs and
legatees under the will thru the means provided by law, among which are the publication and
the personal notices to each and all of said heirs and legatees. Nor may the court approve and
allow the will presented in evidence in such an action for partition, which is one in personam,
any more than it could decree the registration under the Torrens system of the land involved in
an ordinary action for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals,
does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of
Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but
not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on
October 11, 1902, and died on November 1, 1902. Her will was presented for probate on
November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the
meantime, and on November 10, 1902, the heirs went ahead and divided the properties among
themselves and some of them subsequently sold and disposed of their shares to third persons.
It does not affirmatively appear in the decision in that case that the partition made by the heirs
was not in accordance with the will or that they in any way disregarded the will. In closing the
case by its order dated September 1, 1911, the trial court validated the partition, and one of the
heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said:
The principal assignment of error is that the lower court committed an error in
deciding that the heirs and legatees of the estate of Da. Paulina Ver had voluntarily
divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees, and in the absence of

positive proof to the contrary, we must conclude that the lower court had some
evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and decided in that
case. That decision cannot be relied upon as an authority for the unprecedented and unheard
of procedure adopted by the respondent whereby she seeks to prove her status as an
acknowledged natural child of the decedent by his will and attempts to nullify and circumvent
the testamentary dispositions made by him by not presenting the will to the court for probate
and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and
that in the face of express mandatory provisions of the law requiring her to present the will to
the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the
procedure sanctioned by the trial court and impliedly approved by this Court in the Leao case,
by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case
the Court, speaking thru Chief Justice Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION.
Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who dies
intestate to make extrajudicial partition of the property of the deceased, without going
into any court of justice, makes express reference to intestate succession, and
therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a
testate succession, the heirs made an extrajudicial partition of the estate and at the
same time instituted proceeding for the probate of the will and the administration of
the estate. When the time came for making the partition, they submitted to the court
the extrajudicial partition previously made by them, which the court approved. Held:
That for the purposes of the reservation and the rights and obligations created
thereby, in connection with the relatives benefited, the property must not be deemed
transmitted to the heirs from the time the extrajudicial partition was made, but from the
time said partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by
the Rules of Court, any suitable process for mode of proceeding may be adopted which
appears most conformable to the spirit of the said Rules. That provision is not applicable here
for the simple reason that the procedure which the court ought to follow in the exercise of its
jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the
Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate
proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties."
We see no injustice in requiring the plaintiff not to violate but to comply with the law. On the
contrary, an injustice might be committed against the other heirs and legatees mentioned in the
will if the attempt of the plaintiff to nullify said will by not presenting it to the court for probate
should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to
blame because she was the custodian of the will and she violated the duty imposed upon her
by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain
of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant,
he is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting
that the procedure prescribed by law be followed by the plaintiff.

Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff
to be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the
basis of intestacy of the decedent notwithstanding the proven existence of a will left by him and
solely because said will has not been probated due to the failure of the plaintiff as custodian
thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did
not take any step to have it presented to the court for probate and did not signify his acceptance
of the trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of
the Code of Civil Procedure), because his contention is that said will, insofar as the large parcel
of land in litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the
subsequent issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed
of sale exhibit 2 and the effect of the certificate of titled issued to the defendant Ernesto M.
Guevara. So that the parties may not have litigated here in vain insofar as that question is
concerned, we deem it proper to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M.
Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it
disposes of and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's
hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein
mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the owner of the
northern half of the same hacienda by repurchasing it with his own money from Rafael T.
Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts of the deceased,
the Court of Appeals found it to be valid and efficacious because: "(a) it has not been proven
that the charges imposed as a condition is [are] less than the value of the property; and (b)
neither has it been proven that the defendant did not comply with the conditions imposed upon
him in the deed of transfer." As a matter of fact the Court of Appeals found" "It appears that the
defendant has been paying the debts left by his father. To accomplish this, he had to alienate
considerable portions of the above-mentioned land. And we cannot brand such alienation as
anomalous unless it is proven that they have exceeded the value of what he has acquired by
virtue of the deed of July 12, 1933, and that of his corresponding share in the inheritance." The
finding of the Court of Appeals on this aspect of the case is final and conclusive upon the
respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by the
Court of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought from Rafael
Puzon one-half of the land in question, but the Court a quo, after considering the
evidence, found it not proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document of July 12, 1933, is clearly belied by
the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom
Victorino L. Guevara had sold a parcel of land with the right of repurchase. The
defendant, acting for his father, received the money and delivered it to Rafael Puzon
to redeem the land in question, and instead of executing a deed of redemption in

favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the
defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land in
the name of the defendant, because of the latter's promise that after paying all the
debt of their father, he would deliver to her and to the widow their corresponding
shares. As their father then was still alive, there was no reason to require the delivery
of her share and that was why she did not insist on her opposition, trusting on the
reliability and sincerity of her brother's promise. The evidence shows that such
promise was really made. The registration of land under the Torrens system does not
have the effect of altering the laws of succession, or the rights of partition between
coparceners, joint tenants, and other cotenants nor does it change or affect in any
other way any other rights and liabilities created by law and applicable to unregistered
land (sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can
the doctrine of res judicata be invoked against her claim. Under these circumstances,
she has the right to compel the defendant to deliver her corresponding share in the
estate left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the
Court of Appeals. But the findings of fact made by said court are final and not reviewable by us
on certiorari. The Court of Appeals found that the money with which the petitioner repurchased
the northern half of the land in question from Rafael Puzon was not his own but his father's, it
being the proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said
court also found that the respondent withdrew her opposition to the registration of the land in
the name of the petitioner upon the latter's promise that after paying all the debts of their father
he would deliver to her and to the widow their corresponding shares. From these facts, it results
that the interested parties consented to the registration of the land in question in the name of
Ernesto M. Guevara alone subject to the implied trust on account of which he is under
obligation to deliver and convey to them their corresponding shares after all the debts of the
original owner of said land had been paid. Such finding does not constitute a reversal of the
decision and decree of registration, which merely confirmed the petitioner's title; and in the
absence of any intervening innocent third party, the petitioner may be compelled to fulfill the
promise by virtue of which he acquired his title. That is authorized by section 70 of the Land
Registration Act, cited by the Court of Appeals, and by the decision of this Court in Severino vs.
Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern
half of the land described in the will exhibit A and in original certificate of title No. 51691 still
belongs to the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto
M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate
with an equivalent portion from the southern half of said land that has not yet been sold. In
other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the
land described in said original certificate of title, to be taken from such portions as have not yet
been sold by the petitioner, the other half having been lawfully acquired by the latter in
consideration of his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name
of Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the
estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but
the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in
this action is hereby reversed and set aside, and the parties herein are hereby ordered to
present the document exhibit A to the proper court for probate in accordance with law, without
prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible

party or parties under section 4 of Rule 76. After the said document is approved and allowed by
the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and
legatees therein named may take such action, judicial or extrajudicial, as may be necessary to
partition the estate of the testator, taking into consideration the pronouncements made in part II
of this opinion. No finding as to costs in any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.

Tagle-Chua, Cruz & Aquino for petitioners.

G.R. No. 177728

July 31, 2009

JENIE SAN JUAN DELA CRUZ and minor CHRISTIAN DELA CRUZ "AQUINO,"
represented by JENIE SAN JUAN DELA CRUZ, Petitioners,
vs.
RONALD PAUL S. GRACIA, in his capacity as City Civil Registrar of Antipolo
City, Respondent.
The Family Law; Paternity and Filiation; Use of Surname; An illegitimate child is permitted 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.Article 176 of the Family Code, as amended by R.A.
9255, permits an illegitimate child to use the surname of his/her father if the latter had expressly
recognized him/her as his offspring through the record of birth appearing in the civil register, or
through an admission made in a public or private handwritten instrument. The recognition made
in any of these documents is, in itself, a consummated act of acknowledgment of the childs
paternity; hence, no separate action for judicial approval is necessary.
Same; Same; Same; 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.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.
Same; Same; Same; 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.
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.
Same; Same; Same; The welfare of the child shall be the paramount consideration in resolving
questions affecting him.Our laws instruct that the welfare of the child shall be the paramount
consideration in resolving questions affecting him. x x x 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 xx x. Too, (t)he State as parens patriae affords special protection to
children from abuse, exploitation and other conditions prejudicial to their development.

The Solicitor General for respondent.

[Dela Cruz vs. Gracia, 594 SCRA 649, G.R. No. 177728 July 31, 2009]
DECISION
CARPIO MORALES, J.:
For several months in 2005, then 21-year old petitioner Jenie San Juan Dela Cruz (Jenie) and
then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique) lived together as
husband and wife without the benefit of marriage. They resided in the house of Dominiques
parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at Pulang-lupa, Dulumbayan,
Teresa, Rizal.
On September 4, 2005, Dominique died. 1 After almost two months, or on November 2, 2005,
Jenie, who continued to live with Dominiques parents, gave birth to her herein co-petitioner
minor child Christian Dela Cruz "Aquino" at the Antipolo Doctors Hospital, Antipolo City.
Jenie applied for registration of the childs birth, using Dominiques surname Aquino, with the
Office of the City Civil Registrar, Antipolo City, in support of which she submitted the childs
Certificate of Live Birth, 2 Affidavit to Use the Surname of the 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

PETITION for review on certiorari of a decision of the Regional Trial Court of Antipolo City, Br.
73.
The facts are stated in the opinion of the Court.

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 PREGNANTAND 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:

In summary, the child cannot use the surname of his father because he was born out of
wedlock and the father unfortunately died prior to his birth and has no more capacity to
acknowledge his paternity to the child (either through the back of Municipal Form No. 102
Affidavit of Acknowledgment/Admission of Paternity or the Authority to Use the Surname of
the Father). (Underscoring supplied)
Jenie and the child promptly filed a complaint 9 for injunction/registration of name against
respondent before the Regional Trial Court of Antipolo City, docketed as SCA Case No. 06-539,
which was raffled to Branch 73 thereof. The complaint alleged that, inter alia, the denial of
registration of the childs name is a violation of his right to use the surname of his deceased
father under Article 176 of the Family Code, as amended by Republic Act (R.A.) No.
9255,10 which provides:
Article 176. Illegitimate children shall use the surname and shall be under the parental authority
of their mother, and shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has been
expressly recognized by the father through the record of birth appearing in the civil register,
or when an admission in a public document or private handwritten instrument is made by the
father. Provided, the father has the right to institute an action before the regular courts to prove
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.

a. AUSF8
b. Consent of the child, if 18 years old and over at the time of the filing of the
document.
c. Any two of the following documents showing clearly the paternity between the father
and the child:
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization

For failure to file a responsive pleading or answer despite service of summons, respondent was
declared in default.
Jenie thereupon presented evidence ex-parte. She testified on the circumstances of her
common-law relationship with Dominique and affirmed her declarations in her AUSF that during
his lifetime, he had acknowledged his yet unborn child. 11 She offered Dominiques handwritten
Autobiography (Exhibit "A") as her documentary evidence-in-chief. 12 Dominiques lone brother,
Joseph Butch S.T. Aquino, also testified, corroborating Jenies declarations. 13
By Decision14 of April 25, 2007, the trial court dismissed the complaint "for lack of cause of
action" as the Autobiography was unsigned, citing paragraph 2.2, Rule 2 (Definition of Terms)
of Administrative Order (A.O.) No. 1, Series of 2004 (the Rules and Regulations
Governing the Implementation of R.A. 9255) which defines "private handwritten document"
through which a father may acknowledge an illegitimate child as follows:

5. Statement of Assets and Liability

6. Income Tax Return (ITR)

2.2 Private handwritten instrument an instrument executed in the handwriting of the father
and duly signed by him where he expressly recognizes paternity to the child. (Underscoring
supplied)
The trial court held that even if Dominique was the author of the handwritten Autobiography, the
same does not contain any express recognition of paternity.
1avvphi1

Hence, this direct resort to the Court via Petition for Review on Certiorari raising this purely
legal issue of:

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signedby the parent concerned.

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)

x x x x (Emphasis and underscoring supplied)

Petitioners contend that Article 176 of the Family Code, as amended, does not expressly
require that the private handwritten instrument containing the putative fathers admission of
paternity must be signed by him. They add that the deceaseds handwritten Autobiography,
though unsigned by him, is sufficient, for the requirement in the above-quoted paragraph 2.2 of
the Administrative Order that the admission/recognition must be "duly signed" by the father is
void as it "unduly expanded" the earlier-quoted provision of Article 176 of the Family Code. 16

In the present case, however, special circumstances exist to hold that Dominiques
Autobiography, though unsigned by him, substantially satisfies the requirement of the law.

Petitioners further contend that the trial court erred in not finding that Dominiques handwritten
Autobiography contains a "clear and unmistakable" recognition of the childs paternity.17
In its Comment, the Office of the Solicitor General (OSG) submits that respondents position, as
affirmed by the trial court, is in consonance with the law and thus prays for the dismissal of the
petition. It further submits that Dominiques Autobiography "merely acknowledged Jenies
pregnancy but not [his] paternity of the child she was carrying in her womb." 18
Article 176 of the Family Code, as amended by R.A. 9255, permits an illegitimate child to use
the surname of his/her father if the latter had expressly recognized him/her as his offspring
through the record of birth appearing in the civil register, or through an admission made in a
public or private handwritten instrument. The recognition made in any of these documents is, in
itself, a consummated act of acknowledgment of the childs paternity; hence, no separate action
for judicial approval is necessary.19
Article 176 of the Family Code, as amended, does not, indeed, explicitly state that the private
handwritten instrument acknowledging the childs paternity must be signed by the putative
father. This provision must, however, be read in conjunction with related provisions of the
Family Code which require that recognition by the father must bear his signature, thus:

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.

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

ART. 172. The filiation of legitimate children is established by any of the following:

xxxx

(1) The record of birth appearing in the civil register or a final judgment; or

Art. 172. The filiation of legitimate children is established by any of the following:

(2) An admission of legitimate filiation in a public document or a private handwritten

instrument and signed by the parent concerned.

(1) The record of birth appearing in the civil register or a final judgment; or
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.

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:

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130
provide:

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

SEC. 39. Act or declaration about pedigree. The act or declaration of a person deceased, or
unable to testify, in respect to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than such act or declaration.
The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates
when and the places where these facts occurred, and the names of the relatives. It embraces
also facts of family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition
existing in a family previous to the controversy, in respect to the pedigree of any one of its
members, may be received in evidence if the witness testifying thereon be also a member of
the family, either by consanguinity or affinity. Entries in family bibles or other family books or
charts, engraving on rings, family portraits and the like, may be received as evidence of
pedigree.
This Court's rulings further specify what incriminating acts are acceptable as evidence to
establish filiation. In Pe Lim v. CA, a case petitioner often cites, we stated that the issue of
paternity still has to be resolved by such conventional evidence as the relevant incriminating
verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of birth, a will, a statement before a court of
record, or in any authentic writing. To be effective, the claim of filiation must be made by the
putative father himself and the writing must be the writing of the putative father . A notarial
agreement to support a child whose filiation is admitted by the putative father was considered
acceptable evidence. Letters to the mother vowing to be a good father to the child and pictures
of the putative father cuddling the child on various occasions, together with the certificate of live
birth, proved filiation. However, a student permanent record, a written consent to a father's
operation, or a marriage contract where the putative father gave consent, cannot be taken as
authentic writing. Standing alone, neither a certificate of baptism nor family pictures are
sufficient to establish filiation. (Emphasis and underscoring supplied.)
In the case at bar, there is no dispute that the earlier quoted statements in Dominiques
Autobiography have been made and written by him. Taken together with the other relevant facts
extant herein that Dominique, during his lifetime, and Jenie were living together as commonlaw spouses for several months in 2005 at his parents house in Pulang-lupa, Dulumbayan,
Teresa, Rizal; she was pregnant when Dominique died on September 4, 2005; and about two
months after his death, Jenie gave birth to the child they sufficiently establish that the child of
Jenie is Dominiques.

2) Where the private handwritten instrument is accompanied by other relevant and

competent evidence, it suffices that the claim of filiation therein be shown to have
been made and handwritten by the acknowledging parent as it is merely corroborative
of such other evidence.
Our laws instruct that the welfare of the child shall be the "paramount consideration" in
resolving questions affecting him. 22 Article 3(1) of the United Nations Convention on the Rights
of a Child of which the Philippines is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration.23 (Underscoring supplied)
It is thus "(t)he policy of the Family Code to liberalize the rule on the investigation of
the paternity and filiation of children, especially of illegitimate children x x x."24 Too, "(t)he State
as parens patriae affords special protection to children from abuse, exploitation and other
conditions prejudicial to their development."25
In the eyes of society, a child with an unknown father bears the stigma of dishonor. It is to
petitioner minor childs best interests to allow him to bear the surname of the now deceased
Dominique and enter it in his birth certificate.
WHEREFORE, the petition is GRANTED. The City Civil Registrar of Antipolo City is DIRECTED
to
immediatelyenter the
surname
of
the
late
Christian
Dominique
Sto.
Tomas Aquino as the surname of petitioner minor Christian dela Cruz in his Certificate of Live
Birth, and record the same in the Register of Births.
SO ORDERED.

DOLORES MONTEFALCON & LAURENCE MONTEFALCON, petitioners,

vs.
RONNIE S. VASQUEZ, respondent.
Jurisdiction; Summons; To acquire jurisdiction over the person of a defendant, service of
summons must be personal, or if this is not feasible within a reasonable time, then by
substituted service.To acquire jurisdiction over the person of a defendant, service of
summons must be personal, or if this is not feasible within a reasonable time, then by
substituted service. 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.)
Summons; We held in said case that the normal method of service of summons on one
temporarily absent is by substituted service of summons because personal service abroad and
service by publication are not ordinary means of summoning defendants.Montalban v.
Maximo, 22 SCRA 1070 (1968) 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.
Residence; Words and Phrases; 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.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 defendants 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.

G.R. No. 165016

June 17, 2008

Summons; Service of Summons; The absence in the final sheriffs return of a statement about
the impossibility of personal service does not conclusively prove that the service is invalid.
The letter of the law must yield to its spirit. The absence in the final sheriffs 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 service 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 courts jurisdiction over his person, should not be taken against herein petitioners.
Family Law; Children; Filiation; Article 175 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.Article 175 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, 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.
Same; Same; Legal Support; 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.Under Article 195 (4)
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. 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. Support comprises everything indispensable for
sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping
with the financial capacity of the family. Under the premises, the award of P5,000 monthly
support to Laurence is reasonable, and not excessive nor exorbitant.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Eustaquio S. Beltran for petitioners.
Raquel Sirios Payte for respondent.
[Montefalcon vs. Vasquez, 554 SCRA 513, G.R. No. 165016 June 17, 2008]
DECISION
QUISUMBING, J.:
This petition for review assails the September 29, 2003 Decision 1 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 Complaint 4 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 co-petitioner 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 19 th 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.
Deputy
MTC
Taguig, Metro Manila10

RAYMUNDO,
BR

JR.,
Sheriff
74

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

Petitioners argued in their motion for reconsideration 15 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:

In 2001, the court granted petitioners' prayers, explaining that they had no ill-motive 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 P5,000-per-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 herebyNULLIFIED and SET ASIDE. Accordingly, let this
case be REMANDED to the court a quo for further proceedings.
SO ORDERED.14

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 defendantseaman 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. Co-petitioner 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 employment 29 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. 33Support 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 herebyREINSTATED.
Costs against respondent.
SO ORDERED.