SECOND DIVISION

[ G.R. No. 192413, June 13, 2012 ]

RIZAL COMMERCIAL BANKING CORPORATION, PETITIONER, VS. HI-TRI
DEVELOPMENT CORPORATION AND LUZ R. BAKUNAWA, RESPONDENTS.

DECISION

SERENO, J.:

Before the Court is a Rule 45 Petition for Review on Certiorari filed by petitioner Rizal
Commercial Banking Corporation (RCBC) against respondents Hi-Tri Development
Corporation (Hi-Tri) and Luz R. Bakunawa (Bakunawa). Petitioner seeks to appeal from
the 26 November 2009 Decision and 27 May 2010 Resolution of the Court of Appeals
(CA),[1] which reversed and set aside the 19 May 2008 Decision and 3 November 2008
Order of the Makati City Regional Trial Court (RTC) in Civil Case No. 06-244. [2]  The
case before the RTC involved the Complaint for Escheat filed by the Republic of the
Philippines (Republic) pursuant to Act No. 3936, as amended by Presidential Decree
No. 679 (P.D. 679), against certain deposits, credits, and unclaimed balances held by
the branches of various banks in the Philippines. The trial court declared the amounts,
subject of the special proceedings, escheated to the Republic and ordered them
deposited with the Treasurer of the Philippines (Treasurer) and credited in favor of the
Republic.[3] The assailed RTC judgments included an unclaimed balance in the amount
of P1,019,514.29, maintained by RCBC in its Ermita Business Center branch.

We quote the narration of facts of the CA[4] as follows:

x x x Luz [R.] Bakunawa and her husband Manuel, now deceased (“Spouses
Bakunawa”) are registered owners of six (6) parcels of land covered by TCT Nos.
324985 and 324986 of the Quezon City Register of Deeds, and TCT Nos. 103724,
98827, 98828 and 98829 of the Marikina Register of Deeds. These lots were
sequestered by the Presidential Commission on Good Government [(PCGG)].

Sometime in 1990, a certain Teresita Millan (“Millan”), through her representative, Jerry
Montemayor, offered to buy said lots for “P6,724,085.71”, with the promise that she will
take care of clearing whatever preliminary obstacles there may[]be to effect a
“completion of the sale”. The Spouses Bakunawa gave to Millan the Owner’s Copies of
said TCTs and in turn, Millan made a down[]payment of “P1,019,514.29” for the
intended purchase. However, for one reason or another, Millan was not able to clear
said obstacles. As a result, the Spouses Bakunawa rescinded the sale and offered to
return to Millan her down[]payment of P1,019,514.29. However, Millan refused to accept
back the P1,019,514.29 down[]payment. Consequently, the Spouses Bakunawa,
through their company, the Hi-Tri Development Corporation (“Hi-Tri”) took out on
October 28, 1991, a Manager’s Check from RCBC-Ermita in the amount of
P1,019,514.29, payable to Millan’s company Rosmil Realty and Development
Corporation (“Rosmil”) c/o Teresita Millan and used this as one of their basis for a
complaint against Millan and Montemayor which they filed with the Regional Trial Court
of Quezon City, Branch 99, docketed as Civil Case No. Q-91-10719 [in 1991], praying
that:
1. That the defendants Teresita Mil[l]an and Jerry Montemayor may be ordered to
return to plaintiffs spouses the Owners’ Copies of Transfer Certificates of Title
Nos. 324985, 324986, 103724, 98827, 98828 and 98829;
2. That the defendant Teresita Mil[l]an be correspondingly ordered to receive the
amount of One Million Nineteen Thousand Five Hundred Fourteen Pesos and
Twenty Nine Centavos (P1,019,514.29);
3. That the defendants be ordered to pay to plaintiffs spouses moral damages in the
amount of P2,000,000.00; and
4. That the defendants be ordered to pay plaintiffs attorney’s fees in the amount of
P50,000.00.

Being part and parcel of said complaint, and consistent with their prayer in Civil Case
No. Q-91-10719 that “Teresita Mil[l]an be correspondingly ordered to receive the
amount of One Million Nineteen Thousand Five Hundred Fourteen Pesos and Twenty
Nine [Centavos] (“P1,019,514.29”)[”], the Spouses Bakunawa, upon advice of their
counsel, retained custody of RCBC Manager’s Check No. ER 034469 and refrained
from canceling or negotiating it.

All throughout the proceedings in Civil Case No. Q-91-10719, especially during
negotiations for a possible settlement of the case, Millan was informed that the
Manager’s Check was available for her withdrawal, she being the payee.

On January 31, 2003, during the pendency of the abovementioned case and without the
knowledge of [Hi-Tri and Spouses Bakunawa], x x x RCBC reported the
“P1,019,514.29-credit existing in favor of Rosmil” to the Bureau of Treasury as among
its “unclaimed balances” as of January 31, 2003. Allegedly, a copy of the Sworn
Statement executed by Florentino N. Mendoza, Manager and Head of RCBC’s Asset
Management, Disbursement & Sundry Department (“AMDSD”) was posted within the
premises of RCBC-Ermita.

On December 14, 2006, x x x Republic, through the [Office of the Solicitor General
(OSG)], filed with the RTC the action below for Escheat [(Civil Case No. 06-244)].

On April 30, 2008, [Spouses Bakunawa] settled amicably their dispute with Rosmil and
Millan. Instead of only the amount of “P1,019,514.29”, [Spouses Bakunawa] agreed to
pay Rosmil and Millan the amount of “P3,000,000.00”, [which is] inclusive [of] the
amount of [“]P1,019,514.29”. But during negotiations and evidently prior to said
settlement, [Manuel Bakunawa, through Hi-Tri] inquired from RCBC-Ermita the
availability of the P1,019,514.29 under RCBC Manager’s Check No. ER 034469. [Hi-Tri
and Spouses Bakunawa] were however dismayed when they were informed that the
amount was already subject of the escheat proceedings before the RTC.

On April 17, 2008, [Manuel Bakunawa, through Hi-Tri] wrote x x x RCBC, viz:
“We understand that the deposit corresponding to the amount of Php 1,019,514.29
stated in the Manager’s Check is currently the subject of escheat proceedings pending
before Branch 150 of the Makati Regional Trial Court.

Please note that it was our impression that the deposit would be taken from [Hi-Tri’s]
RCBC bank account once an order to debit is issued upon the payee’s presentation of
the Manager’s Check. Since the payee rejected the negotiated Manager’s Check,
presentation of the Manager’s Check was never made.

Consequently, the deposit that was supposed to be allocated for the payment of the
Manager’s Check was supposed to remain part of the Corporation[’s] RCBC bank
account, which, thereafter, continued to be actively maintained and operated. For this
reason, We hereby demand your confirmation that the amount of Php 1,019,514.29
continues to form part of the funds in the Corporation’s RCBC bank account, since pay-
out of said amount was never ordered. We wish to point out that if there was any
attempt on the part of RCBC to consider the amount indicated in the Manager’s Check
separate from the Corporation’s bank account, RCBC would have issued a statement to
that effect, and repeatedly reminded the Corporation that the deposit would be
considered dormant absent any fund movement. Since the Corporation never received
any statements of account from RCBC to that effect, and more importantly, never
received any single letter from RCBC noting the absence of fund movement and
advising the Corporation that the deposit would be treated as dormant.”
On April 28, 2008, [Manuel Bakunawa] sent another letter to x x x RCBC reiterating their
position as above-quoted.

In a letter dated May 19, 2008, x x x RCBC replied and informed [Hi-Tri and Spouses
Bakunawa] that:

“The Bank’s Ermita BC informed Hi-Tri and/or its principals regarding the inclusion of
Manager’s Check No. ER034469 in the escheat proceedings docketed as Civil Case
No. 06-244, as well as the status thereof, between 28 January 2008 and 1 February
2008.
xxx     xxx     xxx

Contrary to what Hi-Tri hopes for, the funds covered by the Manager’s Check No.
ER034469 does not form part of the Bank’s own account. By simple operation of law,
the funds covered by the manager’s check in issue became a deposit/credit susceptible
for inclusion in the escheat case initiated by the OSG and/or Bureau of Treasury.
xxx     xxx     xxx

Granting arguendo that the Bank was duty-bound to make good the check, the Bank’s
obligation to do so prescribed as early as October 2001.”
(Emphases, citations, and annotations were omitted.)

The RTC Ruling

The escheat proceedings before the Makati City RTC continued. On 19 May 2008, the
trial court rendered its assailed Decision declaring the deposits, credits, and unclaimed
balances subject of Civil Case No. 06-244 escheated to the Republic. Among those
included in the order of forfeiture was the amount of ?1,019,514.29 held by RCBC as
allocated funds intended for the payment of the Manager’s Check issued in favor of
Rosmil. The trial court ordered the deposit of the escheated balances with the Treasurer
and credited in favor of the Republic. Respondents claim that they were not able to
participate in the trial, as they were not informed of the ongoing escheat proceedings.

Consequently, respondents filed an Omnibus Motion dated 11 June 2008, seeking the
partial reconsideration of the RTC Decision insofar as it escheated the fund allocated for
the payment of the Manager’s Check. They asked that they be included as party-
defendants or, in the alternative, allowed to intervene in the case and their motion
considered as an answer-in-intervention. Respondents argued that they had meritorious
grounds to ask reconsideration of the Decision or, alternatively, to seek intervention in
the case. They alleged that the deposit was subject of an ongoing dispute (Civil Case
No. Q-91-10719) between them and Rosmil since 1991, and that they were interested
parties to that case.[5]

On 3 November 2008, the RTC issued an Order denying the motion of respondents.
The trial court explained that the Republic had proven compliance with the requirements
of publication and notice, which served as notice to all those who may be affected and
prejudiced by the Complaint for Escheat. The RTC also found that the motion failed to
point out the findings and conclusions that were not supported by the law or the
evidence presented, as required by Rule 37 of the Rules of Court. Finally, it ruled that
the alternative prayer to intervene was filed out of time.
The CA Ruling

On 26 November 2009, the CA issued its assailed Decision reversing the 19 May 2008
Decision and 3 November 2008 Order of the RTC.  According to the appellate court,
[6]
 RCBC failed to prove that the latter had communicated with the purchaser of the
Manager’s Check (Hi-Tri and/or Spouses Bakunawa) or the designated payee (Rosmil)
immediately before the bank filed its Sworn Statement on the dormant accounts held
therein. The CA ruled that the bank’s failure to notify respondents deprived them of an
opportunity to intervene in the escheat proceedings and to present evidence to
substantiate their claim, in violation of their right to due process. Furthermore, the CA
pronounced that the Makati City RTC Clerk of Court failed to issue individual notices
directed to all persons claiming interest in the unclaimed balances, as well as to require
them to appear after publication and show cause why the unclaimed balances should
not be deposited with the Treasurer of the Philippines. It explained that the jurisdictional
requirement of individual notice by personal service was distinct from the requirement of
notice by publication. Consequently, the CA held that the Decision and Order of the
RTC were void for want of jurisdiction.
Issue
After a perusal of the arguments presented by the parties, we cull the main issues as
follows:
I. Whether the Decision and Order of the RTC were void for failure to send
separate notices to respondents by personal service
II. Whether petitioner had the obligation to notify respondents immediately before it
filed its Sworn Statement with the Treasurer
III. Whether or not the allocated funds may be escheated in favor of the Republic

Discussion

Petitioner bank assails[7] the CA judgments insofar as they ruled that notice by personal
service upon respondents is a jurisdictional requirement in escheat proceedings.
Petitioner contends that respondents were not the owners of the unclaimed balances
and were thus not entitled to notice from the RTC Clerk of Court. It hinges its claim on
the theory that the funds represented by the Manager’s Check were deemed transferred
to the credit of the payee or holder upon its issuance.

We quote the pertinent provision of Act No. 3936, as amended, on the rule on service of
processes, to wit:
Sec. 3. Whenever the Solicitor General shall be informed of such unclaimed balances,
he shall commence an action or actions in the name of the People of the Republic
of the Philippines in the Court of First Instance of the province or city where the bank,
building and loan association or trust corporation is located, in which shall be joined
as parties the bank, building and loan association or trust corporation and all such
creditors or depositors. All or any of such creditors or depositors or banks, building
and loan association or trust corporations may be included in one action. Service of
process in such action or actions shall be made by delivery of a copy of the
complaint and summons to the president, cashier, or managing officer of each
defendant bank, building and loan association or trust corporation and by publication
of a copy of such summons in a newspaper of general circulation, either in English, in
Filipino, or in a local dialect, published in the locality where the bank, building and loan
association or trust corporation is situated, if there be any, and in case there is none, in
the City of Manila, at such time as the court may order. Upon the trial, the court must
hear all parties who have appeared therein, and if it be determined that such
unclaimed balances in any defendant bank, building and loan association or trust
corporation are unclaimed as hereinbefore stated, then the court shall render
judgment in favor of the Government of the Republic of the Philippines, declaring
that said unclaimed balances have escheated to the Government of the Republic of the
Philippines and commanding said bank, building and loan association or trust
corporation to forthwith deposit the same with the Treasurer of the Philippines to credit
of the Government of the Republic of the Philippines to be used as the National
Assembly may direct.

At the time of issuing summons in the action above provided for, the clerk of court
shall also issue a notice signed by him, giving the title and number of said action, and
referring to the complaint therein, and directed to all persons, other than those
named as defendants therein, claiming any interest in any unclaimed balance
mentioned in said complaint, and requiring them to appear within sixty days after
the publication or first publication, if there are several, of such summons, and show
cause, if they have any, why the unclaimed balances involved in said action
should not be deposited with the Treasurer of the Philippines as in this Act
provided and notifying them that if they do not appear and show cause, the
Government of the Republic of the Philippines will apply to the court for the relief
demanded in the complaint. A copy of said notice shall be attached to, and published
with the copy of, said summons required to be published as above, and at the end of
the copy of such notice so published, there shall be a statement of the date of
publication, or first publication, if there are several, of said summons and notice. Any
person interested may appear in said action and become a party thereto. Upon
the publication or the completion of the publication, if there are several, of the
summons and notice, and the service of the summons on the defendant banks,
building and loan associations or trust corporations, the court shall have full and
complete jurisdiction in the Republic of the Philippines over the said unclaimed
balances and over the persons having or claiming any interest in the said
unclaimed balances, or any of them, and shall have full and complete jurisdiction
to hear and determine the issues herein, and render the appropriate judgment
thereon. (Emphasis supplied.)

Hence, insofar as banks are concerned, service of processes is made by delivery of a

copy of the complaint and summons upon the president, cashier, or managing officer of
the defendant bank.[8] On the other hand, as to depositors or other claimants of the
unclaimed balances, service is made by publication of a copy of the summons in a
newspaper of general circulation in the locality where the institution is situated. [9] A
notice about the forthcoming escheat proceedings must also be issued and published,
directing and requiring all persons who may claim any interest in the unclaimed
balances to appear before the court and show cause why the dormant accounts should
not be deposited with the Treasurer.

Accordingly, the CA committed reversible error when it ruled that the issuance of
individual notices upon respondents was a jurisdictional requirement, and that failure to
effect personal service on them rendered the Decision and the Order of the RTC void
for want of jurisdiction. Escheat proceedings are actions in rem,[10] whereby an action is
brought against the thing itself instead of the person. [11] Thus, an action may be
instituted and carried to judgment without personal service upon the depositors or other
claimants.[12] Jurisdiction is secured by the power of the court over the res.
[13]
 Consequently, a judgment of escheat is conclusive upon persons notified by
advertisement, as publication is considered a general and constructive notice to all
persons interested.[14]

Nevertheless, we find sufficient grounds to affirm the CA on the exclusion of the funds
allocated for the payment of the Manager’s Check in the escheat proceedings.
Escheat proceedings refer to the judicial process in which the state, by virtue of its
sovereignty, steps in and claims abandoned, left vacant, or unclaimed property, without
there being an interested person having a legal claim thereto. [15] In the case of dormant
accounts, the state inquires into the status, custody, and ownership of the unclaimed
balance to determine whether the inactivity was brought about by the fact of death or
absence of or abandonment by the depositor. [16] If after the proceedings the property
remains without a lawful owner interested to claim it, the property shall be reverted to
the state “to forestall an open invitation to self-service by the first comers.” [17] However, if
interested parties have come forward and lain claim to the property, the courts shall
determine whether the credit or deposit should pass to the claimants or be forfeited in
favor of the state.[18] We emphasize that escheat is not a proceeding to penalize
depositors for failing to deposit to or withdraw from their accounts. It is a proceeding
whereby the state compels the surrender to it of unclaimed deposit balances when there
is substantial ground for a belief that they have been abandoned, forgotten, or without
an owner.[19]

Act No. 3936, as amended, outlines the proper procedure to be followed by banks and
other similar institutions in filing a sworn statement with the Treasurer concerning
dormant accounts:
Sec. 2. Immediately after the taking effect of this Act and within the month of January of
every odd year, all banks, building and loan associations, and trust corporations shall
forward to the Treasurer of the Philippines a statement, under oath, of their
respective managing officers, of all credits and deposits held by them in favor of
persons known to be dead, or who have not made further deposits or withdrawals
during the preceding ten years or more, arranged in alphabetical order according to
the names of creditors and depositors, and showing:
(a) The names and last known place of residence or post office addresses of the
persons in whose favor such unclaimed balances stand;
(b)  The amount and the date of the outstanding unclaimed balance and whether the
same is in money or in security, and if the latter, the nature of the same;
(c) The date when the person in whose favor the unclaimed balance stands died, if
known, or the date when he made his last deposit or withdrawal; and
(d)  The interest due on such unclaimed balance, if any, and the amount thereof.

A copy of the above sworn statement shall be posted in a conspicuous place in

the premises of the bank, building and loan association, or trust corporation
concerned for at least sixty days from the date of filing thereof: Provided,
That immediately before filing the above sworn statement, the bank, building and
loan association, and trust corporation shall communicate with the person in whose
favor the unclaimed balance stands at his last known place of residence or post
office address.

It shall be the duty of the Treasurer of the Philippines to inform the Solicitor General
from time to time the existence of unclaimed balances held by banks, building and loan
associations, and trust corporations. (Emphasis supplied.)
As seen in the afore-quoted provision, the law sets a detailed system for notifying
depositors of unclaimed balances. This notification is meant to inform them that their
deposit could be escheated if left unclaimed. Accordingly, before filing a sworn
statement, banks and other similar institutions are under obligation to communicate with
owners of dormant accounts. The purpose of this initial notice is for a bank to determine
whether an inactive account has indeed been unclaimed, abandoned, forgotten, or left
without an owner. If the depositor simply does not wish to touch the funds in the
meantime, but still asserts ownership and dominion over the dormant account, then the
bank is no longer obligated to include the account in its sworn statement. [20] It is not the
intent of the law to force depositors into unnecessary litigation and defense of their
rights, as the state is only interested in escheating balances that have been abandoned
and left without an owner.

In case the bank complies with the provisions of the law and the unclaimed balances
are eventually escheated to the Republic, the bank “shall not thereafter be liable to any
person for the same and any action which may be brought by any person against in any
bank xxx for unclaimed balances so deposited xxx shall be defended by the Solicitor
General without cost to such bank.”[21] Otherwise, should it fail to comply with the legally
outlined procedure to the prejudice of the depositor, the bank may not raise the defense
provided under Section 5 of Act No. 3936, as amended.

Petitioner asserts[22] that the CA committed a reversible error when it required RCBC to

send prior notices to respondents about the forthcoming escheat proceedings involving
the funds allocated for the payment of the Manager’s Check. It explains that, pursuant
to the law, only those “whose favor such unclaimed balances stand” are entitled to
receive notices. Petitioner argues that, since the funds represented by the Manager’s
Check were deemed transferred to the credit of the payee upon issuance of the check,
the proper party entitled to the notices was the payee – Rosmil – and not respondents.
Petitioner then contends that, in any event, it is not liable for failing to send a separate
notice to the payee, because it did not have the address of Rosmil. Petitioner avers that
it was not under any obligation to record the address of the payee of a Manager’s
Check.

In contrast, respondents Hi-Tri and Bakunawa allege [23] that they have a legal interest in
the fund allocated for the payment of the Manager’s Check. They reason that, since the
funds were part of the Compromise Agreement between respondents and Rosmil in a
separate civil case, the approval and eventual execution of the agreement effectively
reverted the fund to the credit of respondents. Respondents further posit that their
ownership of the funds was evidenced by their continued custody of the Manager’s
Check.

An ordinary check refers to a bill of exchange drawn by a depositor (drawer) on a bank

(drawee),[24] requesting the latter to pay a person named therein (payee) or to the order
of the payee or to the bearer, a named sum of money. [25]  The issuance of the check
does not of itself operate as an assignment of any part of the funds in the bank to the
credit of the drawer.[26] Here, the bank becomes liable only after it accepts or certifies
the check.[27] After the check is accepted for payment, the bank would then debit the
amount to be paid to the holder of the check from the account of the depositor-drawer.

There are checks of a special type called manager’s or cashier’s checks. These are bills

of exchange drawn by the bank’s manager or cashier, in the name of the bank, against
the bank itself.[28] Typically, a manager’s or a cashier’s check is procured from the bank
by allocating a particular amount of funds to be debited from the depositor’s account or
by directly paying or depositing to the bank the value of the check to be drawn. Since
the bank issues the check in its name, with itself as the drawee, the check is deemed
accepted in advance.[29] Ordinarily, the check becomes the primary obligation of the
issuing bank and constitutes its written promise to pay upon demand. [30]

Nevertheless, the mere issuance of a manager’s check does not ipso facto work as an

automatic transfer of funds to the account of the payee. In case the procurer of the
manager’s or cashier’s check retains custody of the instrument, does not tender it to the
intended payee, or fails to make an effective delivery, we find the following provision on
undelivered instruments under the Negotiable Instruments Law applicable: [31]
Sec. 16. Delivery; when effectual; when presumed. – Every contract on a negotiable
instrument is incomplete and revocable until delivery of the instrument for the
purpose of giving effect thereto. As between immediate parties and as regards a
remote party other than a holder in due course, the delivery, in order to be effectual,
must be made either by or under the authority of the party making, drawing,
accepting, or indorsing, as the case may be; and, in such case, the delivery may be
shown to have been conditional, or for a special purpose only, and not for the purpose
of transferring the property in the instrument. But where the instrument is in the hands of
a holder in due course, a valid delivery thereof by all parties prior to him so as to make
them liable to him is conclusively presumed. And where the instrument is no longer in
the possession of a party whose signature appears thereon, a valid and intentional
delivery by him is presumed until the contrary is proved. (Emphasis supplied.)

Petitioner acknowledges that the Manager’s Check was procured by respondents, and
that the amount to be paid for the check would be sourced from the deposit account of
Hi-Tri.[32] When Rosmil did not accept the Manager’s Check offered by respondents, the
latter retained custody of the instrument instead of cancelling it. As the Manager’s
Check neither went to the hands of Rosmil nor was it further negotiated to other
persons, the instrument remained undelivered. Petitioner does not dispute the fact that
respondents retained custody of the instrument.[33]

Since there was no delivery, presentment of the check to the bank for payment did not
occur. An order to debit the account of respondents was never made. In fact, petitioner
confirms that the Manager’s Check was never negotiated or presented for payment to
its Ermita Branch, and that the allocated fund is still held by the bank. [34] As a result, the
assigned fund is deemed to remain part of the account of Hi-Tri, which procured the
Manager’s Check. The doctrine that the deposit represented by a manager’s check
automatically passes to the payee is inapplicable, because the instrument – although
accepted in advance – remains undelivered. Hence, respondents should have been
informed that the deposit had been left inactive for more than 10 years, and that it may
be subjected to escheat proceedings if left unclaimed.

After a careful review of the RTC records, we find that it is no longer necessary to
remand the case for hearing to determine whether the claim of respondents was valid.
There was no contention that they were the procurers of the Manager’s Check. It is
undisputed that there was no effective delivery of the check, rendering the instrument
incomplete. In addition, we have already settled that respondents retained ownership of
the funds. As it is obvious from their foregoing actions that they have not abandoned
their claim over the fund, we rule that the allocated deposit, subject of the Manager’s
Check, should be excluded from the escheat proceedings. We reiterate our
pronouncement that the objective of escheat proceedings is state forfeiture of
unclaimed balances. We further note that there is nothing in the records that would
show that the OSG appealed the assailed CA judgments. We take this failure to appeal
as an indication of disinterest in pursuing the escheat proceedings in favor of the
Republic.

WHEREFORE the Petition is DENIED. The 26 November 2009 Decision and 27 May

2010 Resolution of the Court of Appeals in CA-G.R. SP No. 107261 are
hereby AFFIRMED.

SO ORDERED.

Carpio, (Chairperson), Brion, Perez, Sereno, and Reyes, JJ., concur.

[1]
 The Decision and Resolution in CA-G.R. SP No. 107261 were penned by CA
Associate Justice Vicente S.E. Veloso and concurred in by Associate Justices Andres
B. Reyes, Jr. and Marlene Gonzales-Sison.
[2]
 The Decision and Order in Civil Case No. 06-244 (for Escheat) was penned by Judge
Elmo M. Alameda.
[3]
 CA Decision at 1-2 (Hi-Tri Development Corporation v. Republic of the
Philippines, CA-G.R. SP No. 107261, 26 November 2009), rollo, pp. 61-62; RTC
Decision at the 18th to the 19th pp. (unpaged) (Republic of the Philippines v. Allied
Banking Corporation, Civil Case No. 06-244, 19 May 2008), rollo, pp. 210-211.
[4]
 CA Decision at 2-7, supra, rollo, pp. 62-67.
[5]
 Omnibus Motion at 3-7 (Republic of the Philippines v. Allied Banking
Corporation, Civil Case No. 06-244, decided on 19 May 2008), rollo, pp. 217-221. See
also RTC Judgment (Bakunawa v. Milan, Civil Case No. Q-91-10719, 17 June 2008),
rollo, pp. 287-289.
[6]
 CA Decision at 14-16, supra note 3, rollo, pp. 74-76.
[7]
 Petition for Review on Certiorari of RCBC at 41-49, rollo, pp. 43-51.
[8]
 Act No. 3936, as amended by P.D. 679, Sec. 3; see also Security Savings Bank v.
State of California, 263 U.S. 282 (1923).
[9]
 Id.
[10]
 Republic v. Court of First Instance, 247-A Phil. 85 (1988).
[11]
 See Ramos v. Ramos, G.R. No. 144294, 11 March 2003, 399 SCRA 43.
[12]
 See Grey v. De la Cruz, 17 Phil. 49 (1910).
[13]
 Id.
[14]
 Id. (citing Hamilton v. Brown, 161 U.S. 256 (1896)).
[15]
 BLACK’S LAW DICTIONARY 545 (6th ed. 1990); Act No. 3936, as amended by P.D.
679, Secs. 1 and 3. See generally Republic v. Court of Appeals, 426 Phil. 177 (2002)
and Roth v. Delano, 338 U.S. 226 (1949).
[16]
 See Act No. 3936, as amended by P.D. 679, Sec. 1 and Security Savings Bank v.
State of California, supra note 8. See generally Roth v. Delano, supra.
[17]
 Republic v. Court of Appeals, supra note 15, at 183-184.
[18]
 See generally Roth v. Delano, supra note 15.
[19]
 See also Anderson National Bank v. Luckett, 321 U.S. 233 (1944), cited in American
Express Travel Related Services Co., Inc. v. Kentucky, 641 F.3d 685 (6th Circ. 2011)
(U.S.).
[20]
 See generally Security Savings Bank v. State of California, supra note 8.
[21]
 Act No. 3936, as amended by P.D. 679 (1975), Sec. 5.
[22]
 Petition for Review on Certiorari of RCBC at 41-49, rollo, pp. 43-51.
[23]
 Comment of Respondents at 7-8, rollo, pp. 651-652.
[24]
 Act No. 2031 (1911), otherwise known as the Negotiable Instruments Law, Sec. 185.
[25]
 Moran v. Court of Appeals, G.R. No. 105836, 7 March 1994, 230 SCRA 799.
[26]
 Act No. 2031 (1911), otherwise known as the Negotiable Instruments Law, Sec. 189.
[27]
 Id. at Sec. 127.
[28]
 Bank of the Philippine Islands v. Roxas, G.R. No. 157833, 15 October 2007, 536
SCRA 168; International Corporate Bank v. Gueco, 404 Phil. 353 (2001).
[29]
 International Corporate Bank v. Gueco, supra.
[30]
 Id.; Republic v. Philippine National Bank, 113 Phil. 828 (1961). A manager’s or a
cashier’s check may be treated as a promissory note and is the substantial equivalent of
a certified check (Id.; Equitable PCI Bank v. Ong, 533 Phil. 415 (2006); New Pacific
Timber & Supply Co., Inc. v. Seneris, 189 Phil. 517 (1980)). Certification signifies that
the instrument was drawn upon sufficient funds; that funds have been set apart or
assigned for the satisfaction of the check in favor of the payee; and that the funds shall
be so applied when the check is presented for payment (Id.). Here, the deposit
represented by the check is transferred from the credit of the maker to that of the payee
or holder (Id.). Thus, to all intents and purposes, the payee or holder becomes the
depositor of the drawee bank, with rights and duties of one in that situation (Id.).
[31]
 Act No. 2031 (1911). See also Malloy v. Smith, 265 Md. 460, 290 A.2d 486, 57
A.L.R.3d 1076 (Md. Ct. App. 1972)(U.S.) (citing Pikeville Nat. Bank & Trust Co. v.
Shirley, 281 Ky. 150, 135 S.W.2d 426 (Ky Ct. App. 1939)(U.S.))
[32]
 Petition for Review on Certiorari of RCBC at 27-29, rollo, pp. 29-31.
[33]
 Id. at 53, rollo, p. 55.
[34]
 Letter of RCBC to Hi-Tri at 2, Petition for Review on Certiorari of RCBC, Annex
“N,” rollo, p. 180.

Source: Supreme Court E-Library | Date created: February 12, 2016

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SECOND DIVISION
[ G.R. No. 143483, January 31, 2002 ]
REPUBLIC OF THE PHILIPPINES REPRESENTED BY THE REGISTER OF DEEDS
OF PASAY CITY, PETITIONER, VS. COURT OF APPEALS (SPECIAL FORMER 3RD
DIVISION) AND AMADA H. SOLANO, ASSISTED BY HER HUSBAND ROMEO
SOLANO, RESPONDENTS.
 DECISION

BELLOSILLO, J.:

This petition for certiorari seeks to nullify two (2) Resolutions of the Court of Appeals
dated 12 November 1998 and 4 May 2000 giving due course to the petition for
annulment of judgment filed by private respondent Amada H. Solano on 3 February
1997 and denying petitioner's motion for reconsideration.

For more than three (3) decades (from 1952 to 1985) private respondent Amada Solano
served as the all-around personal domestic helper of the late Elizabeth Hankins, a
widow and a French national.  During Ms. Hankins' lifetime and most especially during
the waning years of her life, respondent Solano was her faithful girl Friday and a
constant companion since no close relative was available to tend to her needs.

In recognition of Solano's faithful and dedicated service, Ms. Hankins executed in her
favor two (2) deeds of donation involving two (2) parcels of land covered by TCT Nos.
7807 and 7808 of the Registry of Deeds.  Private respondent alleged that she
misplaced the deeds of donation and were nowhere to be found.

While the deeds of donation were missing, the Republic filed a petition for the escheat
of the estate of Elizabeth Hankins before the Regional Trial Court of Pasay City.
[1]
 During the proceedings, a motion for intervention was filed by Romeo Solano, spouse
of private respondent, and one Gaudencio Regosa, but on 24 June 1987 the motion
was denied by the trial court for the reason that  "they miserably failed to show valid
claim or right to the properties in question." [2] Since it was established that there were no
known heirs and persons entitled to the properties of decedent Hankins, the lower court
escheated the estate of the decedent in favor of petitioner Republic of the Philippines.

By virtue of the decision of the trial court, the Registry of Deeds of Pasay City cancelled
TCT Nos. 7807 and 7808 and issued new ones, TCT Nos. 129551 and 129552, both in
the name of Pasay City.

In the meantime, private respondent claimed that she accidentally found the deeds of
donation she had been looking for a long time.  In view of this development, respondent
Amada Solano filed on 28 January 1997 a petition before the Court of Appeals for the
annulment of the lower court's decision alleging, among other, that [3] -
13.1.  The deceased Elizabeth Hankins having donated the subject properties to the
petitioner in 1983 (for TCT No. 7807) and 1984 (for TCT No. 7808), these properties did
not and could not form part of her estate when she died on September 20, 1985.
Consequently, they could not validly be escheated to the Pasay City Government;

13.2.  Even assuming arguendo that the properties could be subject of escheat
proceedings, the decision is still legally infirm for escheating the properties to an entity,
the Pasay City Government, which is not authorized by law to be the recipient thereof. 
The property should have been escheated in favor of the Republic of the Philippines
under Rule 91, Section 1 of the New Rules of Court  x x x x
On 17 March 1997 the Office of the Solicitor General representing public respondents
RTC and the Register of Deeds (herein petitioner) filed an answer setting forth their
affirmative defenses, to wit:  (a) lack of jurisdiction over the nature of the action; and, (b)
the cause of action was barred by the statute of limitations.

Finding no cogent reason to justify the dismissal of the petition for annulment, the Court
of Appeals issued on 12 November 1998 the first of its assailed Resolutions giving due
course to the petition for annulment of judgment and setting the date for trial on the
merits.   In upholding the theory of respondent Solano, the Appeals Court ruled that -
Herein petitioner invokes lack of jurisdiction over the subject matter on the part of
respondent RTC to entertain the escheat proceedings x x x because the parcels of land
have been earlier donated to herein petitioner in 1983 and 1984 prior to the death of
said Hankins; and therefore, respondent court could not have ordered the escheat of
said properties in favor of the  Republic of the Philippines, assign them to respondent
Pasay City government, order the cancellation of the old titles in the name of Hankins
and order the properties registered in the name of respondent Pasay City x x x x The 
1997 Rules of Civil Procedure specifically laid down the grounds of annulment filed
before this Court, to wit: extrinsic fraud and lack of jurisdiction. Jurisdiction over the
subject matter is conferred by law and this jurisdiction is determined by the allegations
of the complaint.  It is axiomatic that the averments of the complaint determine the
nature of the action and consequently the jurisdiction of the courts.  Thus whether or not
the properties in question are no longer part of the estate of the deceased Hankins at
the time of her death; and, whether or not the alleged donations are valid are issues in
the present petition for annulment which can be resolved only after a full blown trial x x x
x

It is for the same reason that respondent’s espousal of the statute of limitations against
herein petition for annulment cannot prosper at this stage of the proceedings. Indeed,
Section 4, Rule 91 of the Revised Rules of Court expressly provides that a person
entitled to the estate must file his claim with the court a quo within five (5) years from
the date of said judgment.  However, it is clear to this Court that herein petitioner is not
claiming anything from the estate of the deceased at the time of her death on
September 20, 1985; rather she is claiming that the subject parcels of land should not
have been included as part of the estate of the said decedent as she is the owner
thereof by virtue of the deeds of donation in her favor.

In effect, herein petitioner, who alleges to be in possession of the premises in question,

is claiming ownership of the properties in question and the consequent reconveyance
thereof in her favor which cause of action prescribes ten (10) years after the issuance of
title in favor of respondent Pasay City on August 7, 1990. Herein petition was
seasonably filed on February 3, 1997 under Article 1144, to wit:
Art. 1144.   The following actions must be brought within ten years from the time the
right of action accrues:  (1) Upon a written contract; (2) Upon an obligation created by
law; (3) Upon a judgment.
And Article 1456, to wit:
Art. 1456.  If property is acquired through mistake or fraud, the person obtaining it is, by
force of law, considered a trustee of an implied trust for the benefit of the person from
whom the property comes.[4]
In its Resolution of 4 May 2000 the Court of Appeals denied the motion for
reconsideration filed by public respondents Register of Deeds of Pasay City and the
Presiding judge of the lower court and set the trial on the merits for June 15 and 16,
2000.

In its effort to nullify the Resolutions herein before mentioned, petitioner points out that
the Court of Appeals committed grave abuse of discretion amounting to lack or excess
of jurisdiction (a) in denying petitioner's affirmative defenses set forth in its answer and
motion for reconsideration, and in setting the case for trial and reception of evidence;
and, (b) in giving due course to private respondent's petition for annulment of decision
despite the palpable setting-in of the 5-year statute of limitations within which to file
claims before the court a quo set forth in Rule 91 of the Revised Rules of Court and Art.
1014 of the Civil Code.

Petitioner argues that the lower court had jurisdiction when it escheated the properties
in question in favor of the city government and the filing of a petition for annulment of
judgment on the ground of subsequent discovery of the deeds of donation did not divest
the lower court of its jurisdiction on the matter.  It further contends that Rule 47 of the
1997 Rules of Civil Procedure only provides for two (2) grounds for the annulment of
judgment, namely:  extrinsic fraud and lack of jurisdiction.  As such the discovery of the
deeds of donation seven (7) years after the finality of the escheat proceedings is an
extraneous matter which is clearly not an instance of extrinsic fraud nor a ground to oust
the lower court of its jurisdiction.

Petitioner also insists that notwithstanding the execution of the deeds of donation in
favor of private respondent, the 5-year statute of limitations within which to file claims
before the court a quo as set forth in Rule 91 of the Revised Rules of Court has set in.

The present controversy revolves around the nature of the parcels of land purportedly
donated to private respondent which will ultimately determine whether the lower court
had jurisdiction to declare the same escheated in favor of the state.

We rule for the petitioner.  Escheat is a proceeding, unlike that of succession or

assignment, whereby the state, by virtue of its sovereignty, steps in and claims the real
or personal property of a person who dies intestate leaving no heir.  In the absence of a
lawful owner, a property is claimed by the state to forestall an open "invitation to self-
service by the first comers."[5] Since escheat is one of the incidents of sovereignty, the
state may, and usually does, prescribe the conditions and limits the time within which a
claim to such property may be made. The procedure by which the escheated property
may be recovered is generally prescribed by statue, and a time limit is imposed within
which such action must be brought.
In this jurisdiction, a claimant to an escheated property must file his claim "within five (5)
years from the date of such judgment, such person shall have possession of and title to
the same, or if sold, the municipality or city shall be accountable to him for the
proceeds, after deducting the estate; but a claim not made shall be barred
forever."[6] The 5-year period is not a device capriciously conjured by the state to
defraud any claimant; on the contrary, it is decidedly prescribed to encourage would- be
claimants to be punctilious in asserting their claims, otherwise they may lose them
forever in a final judgment.

Incidentally, the question may be asked:  Does herein private respondent, not being an
heir but allegedly a donee, have the personality to be a claimant within the purview of
Sec. 4, Rule 91, of the Revised Rules of Court?  In this regard, we agree with the
Solicitor General that the case of Municipal Council of San Pedro, Laguna v. Colegio de
San Jose, Inc.,[7] is applicable at least insofar as it concerns the Court's discussion on
who is an  "interested party" in an escheat proceeding -
In a special proceeding for escheat under sections 750 and 751 the petitioner is not the
sole and exclusive interested party.  Any person alleging to have a direct right or
interest in the property sought to be escheated is likewise an interested party and may
appear and oppose the petition for escheat.  In the present case, the Colegio de San
Jose, Inc. and Carlos Young appeared alleging to have a material interest in the
Hacienda de San Pedro Tunasan; the former because it claims to be the exclusive
owner of the hacienda, and the latter because he claims to be the lessee thereof under
a contract legally entered with the former (underscoring supplied).
In the instant petition, the escheat judgment was handed down by the lower court as
early as 27 June 1989 but it was only on 28 January 1997, more or less seven (7) years
after, when private respondent decided to contest the escheat judgment in the guise of
a petition for annulment of judgment before the Court of Appeals.  Obviously, private
respondent's belated assertion of her right over the escheated properties militates
against recovery.

A judgment in escheat proceedings when rendered by a court of competent jurisdiction

is conclusive against all persons with actual or constructive notice, but not against those
who are not parties or privies thereto.  As held in Hamilton v. Brown,[8] "a judgment of
escheat was held conclusive upon persons notified by advertisement to all persons
interested.  Absolute lack on the part of petitioners of any dishonest intent to deprive the
appellee of any right, or in any way injure him, constitutes due process of law, proper
notice having been observed."  With the lapse of the 5-year period therefore, private
respondent has irretrievably lost her right to claim and the supposed  "discovery of the
deeds of donation"  is not enough justification to nullify the escheat judgment which has
long attained finality.

In the mind of this Court the subject properties were owned by the decedent during the
time that the escheat proceedings were being conducted and the lower court was not
divested of its jurisdiction to escheat them in favor of Pasay City notwithstanding an
allegation that they had been previously donated.  We recall that a motion for
intervention was earlier denied by the escheat court for failure to show "valid claim or
right to the properties in question."[9] Where a person comes into an escheat proceeding
as a claimant, the burden is on such intervenor to establish his title to the property and
his right to intervene.  A fortiori, the certificates of title covering the subject properties
were in the name of the decedent indicating that no transfer of ownership involving the
disputed properties was ever made by the deceased during her lifetime.  In the absence
therefore of any clear and convincing proof showing that the subject lands had been
conveyed by Hankins to private respondent Solano, the same still remained, at least
before the escheat, part of the estate of the decedent and the lower court was right not
to assume otherwise.  The Court of Appeals therefore cannot perfunctorily presuppose
that the subject properties were no longer part of the decedent's estate at the time the
lower court handed down its decision on the strength of a belated allegation that the
same had previously been disposed of by the owner.  It is settled that courts decide only
after a close scrutiny of every piece of evidence and analyze each case with deliberate
precision and unadulterated thoroughness, the judgment not being diluted by
speculations, conjectures and unsubstantiated assertions.

WHEREFORE, the petition is GRANTED.  The assailed Resolution of the Court of

Appeals dated 12 November 1998 giving due course to the petition for annulment of
judgment, and its Resolution dated 4 May 2000 denying petitioner's motion for
reconsideration, are SET ASIDE.  The decision of the RTC-Br. 114, Pasay City, dated
27 June 1989, is REINSTATED.

SO ORDERED.

Mendoza, Quisumbing, and De Leon, Jr., JJ., concur.

Buena J., no part for being a co-signee of res. in question.
[ G.R. No. 95533, November 20, 2000 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. COURT OF APPEALS AND
PHILIPPINE COMMERCIAL AND INTERNATIONAL BANK (SANTA ANA BRANCH
DAVAO CITY),* RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

On December 28, 1988, a complaint for escheat[1]was filed by petitioner, Republic of

the Philippines, with the Regional Trial Court of Davao City against several banks which
had branches within the jurisdiction of the said court.[2]

The complaint alleged that pursuant to Act No. 3936 as amended by P.D. 679,[3] the
respective managers of the defendant banks submitted to the Treasurer of the Republic
of the Philippines separate statements prepared under oath which listed all deposits and
credits held by them in favor of depositors or creditors either known to be dead, have
not been heard from, or have not made depositors or withdrawals for ten years or more
since December 31, 1970.
The complaint prayed that after due notice to the defendant banks, and after hearing,
judgment be rendered declaring that the deposits, credits and unpaid balances in
question be escheated to petitioner, commanding defendant banks to forthwith deposit
the same with the Treasurer of the Philippines.[4]

On April 12, 1989, the lower court issued an order directing petitioner to show cause
why the complaint should not be dismissed for failure to state a cause of action.
According to the order, the complaint contained no allegation that defendant banks have
complied with two of the conditions in Section 2 of Act No. 3936,[5] compliance with the
requirements being necessary for the complaint to prosper.[6]

On April 27, 1989, petitioner submitted its manifestation and motion to allow
amendment of the petition to allege compliance with the conditions set forth in Section 2
of Act. No. 3936 as amended by P.D. 679 ("Unclaimed Balances Law").[7]

The amended complaint prayed that judgment be rendered ordering that the amount of
P97,263.38, deposited with the defendant banks by depositors who are known to be
dead or have not made further deposits or withdrawals during the preceding ten years
or more be escheated in favor of the Republic of the Philippines in accordance with
Section 1, Act 3936 as amended by P.D. 679.

The trial court found the amendment sufficient and issued an order dated June 7, 1989
requiring petitioner to publish a notice in the Mindanao Forum Standard once a week for
two consecutive weeks, containing the summons, notice to the public, the amended
petition incorporated in the summons and the list of unclaimed balances. The notice
was estimated to occupy 27 pages of the said newspaper at an estimated cost of
P50,000.00.[8]

On July 11, 1989, petitioner submitted a manifestation to the lower court praying that
the publication of the list of the unclaimed balances be dispensed with. Petitioner
posited that under Section 3, Act No. 3936, only the following are required to be
published: (1) summons to respondent banks; and (2) notice to all persons other than
those named defendants therein. Petitioner submitted that to require it to publish the
names and list of unclaimed balances would only result in additional and unnecessary
expense to the government.[9]

On August 1, 1989, the trial court issued the following Order:

"WHEREFORE, this Court will not dispense with the publication of the list of unclaimed
balances and, unless the plaintiff, through the Office of the Solicitor General, agrees to
the publication thereof as stated in the Order of this Court dated June 7, 1989, and
shoulder the cost thereof as also mentioned in said Order, and manifests its agreement
to this Court in writing within thirty (30) days from receipt thereof, this case will be
DISMISSED WITHOUT PREJUDICE.

SO ORDERED."
Petitioner filed a motion for reconsideration of the above Order,[10] which was denied
by the lower court for lack of merit.[11]

Subsequently, the trial court issued an Order dated October 31, 1989 dismissing Civil
Case No. 19488-89 without prejudice for plaintiff's failure to agree to the required
publication and shoulder the costs thereof.[12]

Petitioner received a copy of the aforesaid Order on November 15, 1989. On January
10, 1990, petitioner filed with the Court of Appeals a petition for mandamus and
certiorari, alleging grave abuse of discretion on the part of respondent judge in ordering
the publication of the list of unclaimed balances.[13] The petition for certiorari and
mandamus was dismissed by the Court of Appeals, on the ground that the proper
remedy was ordinary appeal. Thus:[14]

It is axiomatic that the extraordinary remedy of certiorari is available only in the absence
of a plain, speedy and adequate remedy like appeal. The order of the respondent court
dated October 31, 1989 dismissing the case is final and appealable (Monares vs. CWA
Enterpises, 105 Phil. 1333; Vol. I, Francisco, Rules of Court, at pp. 967-968). No timely
appeal having been taken therefrom, the same became final and executory and this
petition for certiorari filed on January 10, 1989 to review the interlocutory orders issued
by the court before the case was dismissed can no longer be entertained.

WHEREFORE, the petition for certiorari is dismissed for lack of merit.

SO ORDERED.

Aggrieved, petitioner filed an appeal under Rule 45 of the Rules of Court raising the
following issues:[15]

(1)
Whether or not respondent RTC judge committed grave abuse of discretion tantamount
to lack of jurisdiction in ordering the publication of the list of unclaimed balances listed
under annexes "A" to "P" of the complaint.
(2)
Whether or not the remedy of appeal, though available, was the speedy and adequate
remedy.
(3)
Whether or not respondent RTC judge in issuing the interlocutory orders dated June 7,
1989 and August 1, 1990 - which are contrary to Sec. 1, Act 3936, as amended by PD
679, otherwise known as the "Unclaimed Balances Law" acted in excess of and without
jurisdiction; consequently thus making the Orders of Sept. 1, 1989 (denying the motion
for reconsideration) and the Order dated October 31, 1989 dismissing the case, patently
null and void.
(4)
Whether or not the decision of the Honorable Court of Appeals is in accord with law.
The petition is without merit.

The Order of the trial court dismissing the complaint, albeit without prejudice, was a final
order in the sense that it finally disposed of the case. As such, petitioner's remedy was
to file an ordinary appeal to the Court of Appeals within fifteen (15) days from receipt
hereof.

This Court has previously held that an order dismissing a case without prejudice is a
final order if no motion for reconsideration or appeal therefrom is timely filed.

In Olympia International vs. Court of Appeals,[16] we stated thus:

The dismissal without prejudice of a complaint does not however mean that said
dismissal order was any less final. Such order of dismissal is complete in all details,
and though without prejudice, nonetheless finally disposed of the matter. It was not
merely an interlocutory order but a final disposition of the complaint.

The law grants an aggrieved party a period of fifteen (15) days from his receipt of the
court's decision or order disposing of the action or proceeding to appeal or move to
reconsider the same.

After the lapse of the fifteen-day period, an order becomes final and executory and is
beyond the power or jurisdiction of the court which rendered it to further amend or
revoke. A final judgment or order cannot be modified in any respect, even if the
modification sought is for the purpose of correcting an erroneous conclusion by the
court which rendered the same.

Hence, the Court of Appeals did not err when it dismissed the petition for certiorari and
mandamus, on the ground that the proper remedy was to appeal within fifteen (15)
days. The lapse of the reglementary period was of no moment. A basic requisite for
the special civil action of certiorari to lie is that there be no appeal nor plain, speedy and
adequate remedy in the ordinary course of law. Certiorari is a remedy of last recourse
and is a limited form of review. Its principal function is to keep inferior tribunals within
their jurisdiction. It cannot be used as a substitute for a lost appeal. It is not intended to
correct errors of procedure or mistakes in the judge's findings or conclusions.[17]

In a more recent case,this Court held:

xxx xxx xxx. Apparently, petitioner resorted to this special civil action because it had
failed to take an appeal within the 15-day reglementary period which expired on June
20, 1997. This, of course, cannot be done. The special civil action of certiorari cannot
be used as a substitute for an appeal which petitioner has lost. Nor can it be contended
that the only question raised in this case is a jurisdictional question. Certiorari lies only
where there is no appeal nor any plain, speedy, and adequate remedy in the ordinary
course of law. There is no reason why the question being raised by petitioner, i.e.,
whether the appellate court committed a grave abuse of discretion in dismissing
petitions, could not have been raised by it on appeal.[18]

Admittedly, this Court, in accordance with the liberal spirit pervading the Rules of Court
and in the interest of justice, has the discretion to treat a petition for certiorari as having
been filed under Rule 45, especially if filed within the reglementary period for filing a
petition for review.[19] In the case at bar, there is no compelling reason for the Court of
Appeals to have treated the petition for certiorari and mandamus as an ordinary appeal.
Aside from being filed beyond the fifteen (15) day period, the petition failed to show that
the trial court committed grave abuse of discretion or want or excess of jurisdiction in
issuing the assailed Order dismissing the complaint. If at all, any mistake therein was
an error of judgment or procedure, which is correctible in an ordinary appeal filed in due
time.

The publication of the list of unclaimed balances is intended to safeguard the right of the
depositors, their heirs and successors to due process.[20] This was made clear by the
lower court in its assailed Order, to wit:[21]

Moreover, how would other persons who may have an interest in any of the unclaimed
balances know what this case is all about and whether they have an interest in this case
if the amended complaint and list of unclaimed balances are not published? Such other
persons may be heirs of the bank depositors named in the list of unclaimed balances.

xxx xxx xxx

The fact that the government is in a tight financial situation is not a justification for this
Court to dispense with the elementary rule of due process.

As declared by the trial court in its Order dated August 1, 1989, the dismissal of the
petition for escheat is without prejudice. In other words, the State can refile the said
petition, notwithstanding the lapse of time. Prescription of action does not run against
the government.[22]

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals dated
August 14, 1990 is AFFIRMED.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Puno, Kapunan, and Pardo, JJ., concur.
G.R. No. 162421, August 31, 2007 ]
NELSON CABALES AND RITO CABALES, PETITIONERS, VS. COURT OF APPEALS,
JESUS FELIANO AND ANUNCIACION FELIANO, RESPONDENTS.

DECISION

PUNO, C.J.:

This is a petition for review on certiorari seeking the reversal of the decision[1] of the
Court of Appeals dated October 27, 2003, in CA-G.R. CV No. 68319 entitled "Nelson
Cabales and Rito Cabales v. Jesus Feliano and Anunciacion Feliano," which affirmed
with modification the decision[2] of the Regional Trial Court of Maasin, Southern Leyte,
Branch 25, dated August 11, 2000, in Civil Case No. R-2878. The resolution of the
Court of Appeals dated February 23, 2004, which denied petitioners' motion for
reconsideration, is likewise herein assailed.

The facts as found by the trial court and the appellate court are well established.

Rufino Cabales died on July 4, 1966 and left a 5,714-square meter parcel of land
located in Brgy. Rizal, Sogod, Southern Leyte, covered by Tax Declaration No. 17270 to
his surviving wife Saturnina and children Bonifacio, Albino, Francisco, Leonora, Alberto
and petitioner Rito.

On July 26, 1971, brothers and co-owners Bonifacio, Albino and Alberto sold the subject
property to Dr. Cayetano Corrompido for P2,000.00, with right to repurchase within eight
(8) years. The three (3) siblings divided the proceeds of the sale among themselves,
each getting a share of P666.66.

The following month or on August 18, 1971, Alberto secured a note ("vale") from Dr.
Corrompido in the amount of P300.00.

In 1972, Alberto died leaving his wife and son, petitioner Nelson.

On December 18, 1975, within the eight-year redemption period, Bonifacio and Albino
tendered their payment of P666.66 each to Dr. Corrompido. But Dr. Corrompido only
released the document of sale with pacto de retro after Saturnina paid for the share of
her deceased son, Alberto, including his "vale" of P300.00.

On even date, Saturnina and her four (4) children Bonifacio, Albino, Francisco and
Leonora sold the subject parcel of land to respondents-spouses Jesus and Anunciacion
Feliano for P8,000.00. The Deed of Sale provided in its last paragraph, thus:
It is hereby declared and understood that the amount of TWO THOUSAND TWO
HUNDRED EIGHTY SIX PESOS (P2,286.00) corresponding and belonging to the Heirs
of Alberto Cabales and to Rito Cabales who are still minors upon the execution of this
instrument are held in trust by the VENDEE and to be paid and delivered only to them
upon reaching the age of 21.
On December 17, 1985, the Register of Deeds of Southern Leyte issued Original
Certificate of Title No. 17035 over the purchased land in the names of respondents-
spouses.

On December 30, 1985, Saturnina and her four (4) children executed an affidavit to the
effect that petitioner Nelson would only receive the amount of P176.34 from
respondents-spouses when he reaches the age of 21 considering that Saturnina paid
Dr. Corrompido P966.66 for the obligation of petitioner Nelson's late father Alberto, i.e.,
P666.66 for his share in the redemption of the sale with pacto de retro as well as his
"vale" of P300.00.

On July 24, 1986, 24-year old petitioner Rito Cabales acknowledged receipt of the sum
of P1,143.00 from respondent Jesus Feliano, representing the former's share in the
proceeds of the sale of subject property.

In 1988, Saturnina died. Petitioner Nelson, then residing in Manila, went back to his
father's hometown in Southern Leyte. That same year, he learned from his uncle,
petitioner Rito, of the sale of subject property. In 1993, he signified his intention to
redeem the subject land during a barangay conciliation process that he initiated.

On January 12, 1995, contending that they could not have sold their respective shares
in subject property when they were minors, petitioners filed before the Regional Trial
Court of Maasin, Southern Leyte, a complaint for redemption of the subject land plus
damages.

In their answer, respondents-spouses maintained that petitioners were estopped from

claiming any right over subject property considering that (1) petitioner Rito had already
received the amount corresponding to his share of the proceeds of the sale of subject
property, and (2) that petitioner Nelson failed to consign to the court the total amount of
the redemption price necessary for legal redemption. They prayed for the dismissal of
the case on the grounds of laches and prescription.

No amicable settlement was reached at pre-trial. Trial ensued and on August 11, 2000,
the trial court ruled against petitioners. It held that (1) Alberto or, by his death, any of his
heirs including petitioner Nelson lost their right to subject land when not one of them
repurchased it from Dr. Corrompido; (2) Saturnina was effectively subrogated to the
rights and interests of Alberto when she paid for Alberto's share as well as his obligation
to Dr. Corrompido; and (3) petitioner Rito had no more right to redeem his share to
subject property as the sale by Saturnina, his legal guardian pursuant to Section 7, Rule
93 of the Rules of Court, was perfectly valid; and it was shown that he received his
share of the proceeds of the sale on July 24, 1986, when he was 24 years old.

On appeal, the Court of Appeals modified the decision of the trial court. It held that the
sale by Saturnina of petitioner Rito's undivided share to the property was unenforceable
for lack of authority or legal representation but that the contract was effectively ratified
by petitioner Rito's receipt of the proceeds on July 24, 1986. The appellate court also
ruled that petitioner Nelson is co-owner to the extent of one-seventh (1/7) of subject
property as Saturnina was not subrogated to Alberto's rights when she repurchased his
share to the property. It further directed petitioner Nelson to pay the estate of the late
Saturnina Cabales the amount of P966.66, representing the amount which the latter
paid for the obligation of petitioner Nelson's late father Alberto. Finally, however, it
denied petitioner Nelson's claim for redemption for his failure to tender or consign in
court the redemption money within the period prescribed by law.

In this petition for review on certiorari, petitioners contend that the Court of Appeals
erred in (1) recognizing petitioner Nelson Cabales as co-owner of subject land but
denied him the right of legal redemption, and (2) not recognizing petitioner Rito Cabales
as co-owner of subject land with similar right of legal redemption.

First, we shall delineate the rights of petitioners to subject land.

When Rufino Cabales died intestate, his wife Saturnina and his six (6) children,
Bonifacio, Albino, Francisco, Leonora, Alberto and petitioner Rito, survived and
succeeded him. Article 996 of the New Civil Code provides that "[i]f a widow or widower
and legitimate children or descendants are left, the surviving spouse has in the
succession the same share as that of each of the children." Verily, the seven (7) heirs
inherited equally on subject property. Petitioner Rito and Alberto, petitioner Nelson's
father, inherited in their own rights and with equal shares as the others.

But before partition of subject land was effected, Alberto died. By operation of law, his
rights and obligations to one-seventh of subject land were transferred to his legal heirs -
his wife and his son petitioner Nelson.

We shall now discuss the effects of the two (2) sales of subject land to the rights of the
parties.

The first sale with pacto de retro to Dr. Corrompido by the brothers and co-owners
Bonifacio, Albino and Alberto was valid but only as to their pro-indiviso shares to the
land. When Alberto died prior to repurchasing his share, his rights and obligations were
transferred to and assumed by his heirs, namely his wife and his son, petitioner Nelson.
But the records show that it was Saturnina, Alberto's mother, and not his heirs, who
repurchased for him. As correctly ruled by the Court of Appeals, Saturnina was not
subrogated to Alberto's or his heirs' rights to the property when she repurchased the
share.

In Paulmitan v. Court of Appeals,[3] we held that a co-owner who redeemed the

property in its entirety did not make her the owner of all of it. The property remained in a
condition of co-ownership as the redemption did not provide for a mode of terminating a
co-ownership.[4] But the one who redeemed had the right to be reimbursed for the
redemption price and until reimbursed, holds a lien upon the subject property for the
amount due.[5] Necessarily, when Saturnina redeemed for Alberto's heirs who had then
acquired his pro-indiviso share in subject property, it did not vest in her ownership over
the pro-indiviso share she redeemed. But she had the right to be reimbursed for the
redemption price and held a lien upon the property for the amount due until
reimbursement. The result is that the heirs of Alberto, i.e., his wife and his son petitioner
Nelson, retained ownership over their pro-indiviso share.

Upon redemption from Dr. Corrompido, the subject property was resold to respondents-
spouses by the co-owners. Petitioners Rito and Nelson were then minors and as
indicated in the Deed of Sale, their shares in the proceeds were held in trust by
respondents-spouses to be paid and delivered to them upon reaching the age of
majority.

As to petitioner Rito, the contract of sale was unenforceable as correctly held by the
Court of Appeals. Articles 320 and 326 of the New Civil Code[6] state that:
Art. 320. The father, or in his absence the mother, is the legal administrator of the
property pertaining to the child under parental authority. If the property is worth more
than two thousand pesos, the father or mother shall give a bond subject to the approval
of the Court of First Instance.

Art. 326. When the property of the child is worth more than two thousand pesos, the
father or mother shall be considered a guardian of the child's property, subject to the
duties and obligations of guardians under the Rules of Court.
In other words, the father, or, in his absence, the mother, is considered legal
administrator of the property pertaining to the child under his or her parental authority
without need of giving a bond in case the amount of the property of the child does not
exceed two thousand pesos.[7] Corollary to this, Rule 93, Section 7 of the Revised
Rules of Court of 1964, applicable to this case, automatically designates the parent as
legal guardian of the child without need of any judicial appointment in case the latter's
property does not exceed two thousand pesos,[8] thus:
Sec. 7. Parents as guardians. - When the property of the child under parental authority
is worth two thousand pesos or less, the father or the mother, without the necessity of
court appointment, shall be his legal guardian x x x x[9]
Saturnina was clearly petitioner Rito's legal guardian without necessity of court
appointment considering that the amount of his property or one-seventh of subject
property was P1,143.00, which is less than two thousand pesos. However, Rule 96,
Sec. 1[10] provides that:
Section 1. To what guardianship shall extend. - A guardian appointed shall have the
care and custody of the person of his ward, and the management of his estate, or the
management of the estate only, as the case may be. The guardian of the estate of a
nonresident shall have the management of all the estate of the ward within the
Philippines, and no court other than that in which such guardian was appointed shall
have jurisdiction over the guardianship.
Indeed, the legal guardian only has the plenary power of administration of the minor's
property. It does not include the power of alienation which needs judicial authority.[11]
Thus, when Saturnina, as legal guardian of petitioner Rito, sold the latter's pro-indiviso
share in subject land, she did not have the legal authority to do so.

Article 1403 of the New Civil Code provides, thus:

Art. 1403. The following contracts are unenforceable, unless they are ratified:

(1) Those entered into in the name of another person by one who has been given no
authority or legal representation, or who has acted beyond his powers;

xxxx
Accordingly, the contract of sale as to the pro-indiviso share of petitioner Rito was
unenforceable. However, when he acknowledged receipt of the proceeds of the sale on
July 24, 1986, petitioner Rito effectively ratified it. This act of ratification rendered the
sale valid and binding as to him.

With respect to petitioner Nelson, on the other hand, the contract of sale was void. He
was a minor at the time of the sale. Saturnina or any and all the other co-owners were
not his legal guardians with judicial authority to alienate or encumber his property. It was
his mother who was his legal guardian and, if duly authorized by the courts, could
validly sell his undivided share to the property. She did not. Necessarily, when
Saturnina and the others sold the subject property in its entirety to respondents-
spouses, they only sold and transferred title to their pro-indiviso shares and not that part
which pertained to petitioner Nelson and his mother. Consequently, petitioner Nelson
and his mother retained ownership over their undivided share of subject property.[12]

But may petitioners redeem the subject land from respondents-spouses? Articles 1088
and 1623 of the New Civil Code are pertinent:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except
within thirty days from the notice in writing by the prospective vendor, or by the vendor,
as the case may be. The deed of sale shall not be recorded in the Registry of Property,
unless accompanied by an affidavit of the vendor that he has given written notice
thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining owners.

Clearly, legal redemption may only be exercised by the co-owner or co-owners who did
not part with his or their pro-indiviso share in the property held in common. As
demonstrated, the sale as to the undivided share of petitioner Rito became valid and
binding upon his ratification on July 24, 1986. As a result, he lost his right to redeem
subject property.
However, as likewise established, the sale as to the undivided share of petitioner
Nelson and his mother was not valid such that they were not divested of their ownership
thereto. Necessarily, they may redeem the subject property from respondents-spouses.
But they must do so within thirty days from notice in writing of the sale by their co-
owners vendors. In reckoning this period, we held in Alonzo v. Intermediate Appellate
Court,[13] thus:
x x x we test a law by its results; and likewise, we may add, by its purposes. It is a
cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the
law should never be interpreted in such a way as to cause injustice as this is never
within the legislative intent. An indispensable part of that intent, in fact, for we presume
the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with
justice. Law and justice are inseparable, and we must keep them so. x x x x

x x x x While we may not read into the law a purpose that is not there, we nevertheless
have the right to read out of it the reason for its enactment. In doing so, we defer not to
"the letter that killeth" but to "the spirit that vivifieth," to give effect to the lawmaker's will.

In requiring written notice, Article 1088 (and Article 1623 for that matter)[14] seeks to
ensure that the redemptioner is properly notified of the sale and to indicate the date of
such notice as the starting time of the 30-day period of redemption. Considering the
shortness of the period, it is really necessary, as a general rule, to pinpoint the precise
date it is supposed to begin, to obviate the problem of alleged delays, sometimes
consisting of only a day or two.
In the instant case, the right of redemption was invoked not days but years after the sale
was made in 1978. We are not unmindful of the fact that petitioner Nelson was a minor
when the sale was perfected. Nevertheless, the records show that in 1988, petitioner
Nelson, then of majority age, was informed of the sale of subject property. Moreover, it
was noted by the appellate court that petitioner Nelson was likewise informed thereof in
1993 and he signified his intention to redeem subject property during a barangay
conciliation process. But he only filed the complaint for legal redemption and damages
on January 12, 1995, certainly more than thirty days from learning about the sale.

In the face of the established facts, petitioner Nelson cannot feign ignorance of the sale
of subject property in 1978. To require strict proof of written notice of the sale would be
to countenance an obvious false claim of lack of knowledge thereof, thus commending
the letter of the law over its purpose, i.e., the notification of redemptioners.

The Court is satisfied that there was sufficient notice of the sale to petitioner Nelson.
The thirty-day redemption period commenced in 1993, after petitioner Nelson sought
the barangay conciliation process to redeem his property. By January 12, 1995, when
petitioner Nelson filed a complaint for legal redemption and damages, it is clear that the
thirty-day period had already expired.
As in Alonzo, the Court, after due consideration of the facts of the instant case, hereby
interprets the law in a way that will render justice.[15]

Petitioner Nelson, as correctly held by the Court of Appeals, can no longer redeem
subject property. But he and his mother remain co-owners thereof with respondents-
spouses. Accordingly, title to subject property must include them.

IN VIEW WHEREOF, the petition is DENIED. The assailed decision and resolution of
the Court of Appeals of October 27, 2003 and February 23, 2004 are AFFIRMED WITH
MODIFICATION. The Register of Deeds of Southern Leyte is ORDERED to cancel
Original Certificate of Title No. 17035 and to issue in lieu thereof a new certificate of title
in the name of respondents-spouses Jesus and Anunciacion Feliano for the 6/7 portion,
and petitioner Nelson Cabales and his mother for the remaining 1/7 portion, pro indiviso.

SO ORDERED.

Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur.

[ G.R. No. 184528, April 25, 2012 ]

NILO OROPESA, PETITIONER, VS. CIRILO OROPESA, RESPONDENT.

DECISION

LEONARDO-DE CASTRO, J.:

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

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

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

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

In an Order dated January 29, 2004, the presiding judge of the court a quo set the case
for hearing, and directed the court social worker to conduct a social case study and
submit a report thereon.

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

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

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

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

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

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

The trial court granted respondent’s demurrer to evidence in an Order dated September
27, 2006.  The dispositive portion of which reads:
WHEREFORE, considering that the petitioner has failed to provide sufficient evidence
to establish that Gen. Cirilo O. Oropesa is incompetent to run his personal affairs and to
administer his properties, Oppositor’s Demurrer to Evidence is GRANTED, and the case
is DISMISSED.[6]

Petitioner moved for reconsideration but this was denied by the trial court in an Order
dated November 14, 2006, the dispositive portion of which states:
WHEREFORE, considering that the Court record shows that petitioner-movant has
failed to provide sufficient documentary and testimonial evidence to establish that Gen.
Cirilo Oropesa is incompetent to run his personal affairs and to administer his
properties, the Court hereby affirms its earlier Order dated 27 September 2006.

Accordingly, petitioner’s Motion for Reconsideration is DENIED for lack of merit. [7]

Unperturbed, petitioner elevated the case to the Court of Appeals but his appeal was
dismissed through the now assailed Decision dated February 29, 2008, the dispositive
portion of which reads:
WHEREFORE, premises considered the instant appeal is DISMISSED. The assailed
orders of the court a quo dated September 27, 2006 and November 14, 2006 are
AFFIRMED.[8]

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

Petitioner submits the following question for consideration by this Court:

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

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

Petitioner comes before the Court arguing that the assailed rulings of the Court of
Appeals should be set aside as it allegedly committed grave and reversible error when it
affirmed the erroneous decision of the trial court which purportedly disregarded the
overwhelming evidence presented by him showing respondent’s incompetence.

In Francisco v. Court of Appeals,[10] we laid out the nature and purpose of guardianship
in the following wise:
A guardianship is a trust relation of the most sacred character, in which one person,
called a “guardian” acts for another called the “ward” whom the law regards as
incapable of managing his own affairs. A guardianship is designed to further the ward’s
well-being, not that of the guardian. It is intended to preserve the ward’s property, as
well as to render any assistance that the ward may personally require. It has been
stated that while custody involves immediate care and control, guardianship indicates
not only those responsibilities, but those of one in loco parentis as well. [11]

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

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

A reading of Section 2, Rule 92 of the Rules of Court tells us that persons who, though
of sound mind but by reason of age, disease, weak mind or other similar causes, are
incapable of taking care of themselves and their property without outside aid are
considered as incompetents who may properly be placed under guardianship.  The full
text of the said provision reads:
Sec. 2. Meaning of the word “incompetent.” – Under this rule, the word “incompetent”
includes persons suffering the penalty of civil interdiction or who are hospitalized lepers,
prodigals, deaf and dumb who are unable to read and write, those who are of unsound
mind, even though they have lucid intervals, and persons not being of unsound mind,
but by reason of age, disease, weak mind, and other similar causes, cannot, without
outside aid, take care of themselves and manage their property, becoming thereby an
easy prey for deceit and exploitation.

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

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

placed in guardianship, petitioner raises in his Memorandum [13] the following factual
matters:
a. Respondent has been afflicted with several maladies and has been sickly for
over ten (10) years already;
b. During the time that respondent was hospitalized at the St. Luke’s Medical
Center after his stroke, he purportedly requested one of his former colleagues
who was visiting him to file a loan application with the Armed Forces of the
Philippines Savings and Loan Association, Inc. (AFPSLAI) for payment of his
hospital bills, when, as far as his children knew, he had substantial amounts of
money in various banks sufficient to cover his medical expenses;
c. Respondent’s residence allegedly has been left dilapidated due to lack of care
and management;
d. The realty taxes for respondent’s various properties remain unpaid and therefore
petitioner and his sister were supposedly compelled to pay the necessary taxes;
e. Respondent allegedly instructed petitioner to sell his Nissan Exalta car for the
reason that the former would be purchasing another vehicle, but when the car
had been sold, respondent did not procure another vehicle and refused to
account for the money earned from the sale of the old car;
f. Respondent withdrew at least $75,000.00 from a joint account under his name
and his daughter’s without the latter’s knowledge or consent;
g. There was purportedly one occasion where respondent took a kitchen knife to
stab himself upon the “orders” of his girlfriend during one of their fights;
h. Respondent continuously allows his girlfriend to ransack his house of groceries
and furniture, despite protests from his children.[14]

Respondent denied the allegations made by petitioner and cited petitioner’s lack of
material evidence to support his claims.  According to respondent, petitioner did not
present any relevant documentary or testimonial evidence that would attest to the
veracity of his assertion that respondent is incompetent largely due to his alleged
deteriorating medical and mental condition.  In fact, respondent points out that the only
medical document presented by petitioner proves that he is indeed competent to run his
personal affairs and administer his properties.  Portions of the said document, entitled
“Report of Neuropsychological Screening,” [15] were quoted by respondent in his
Memorandum[16] to illustrate that said report in fact favored respondent’s claim of
competence, to wit:
General Oropesa spoke fluently in English and Filipino, he enjoyed and participated
meaningfully in conversations and could be quite elaborate in his responses on many of
the test items.  He spoke in a clear voice and his articulation was generally
comprehensible. x x x.

xxxx

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

xxxx

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

solutions to problem situations. x x x.[17]

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

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

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

ward was at issue, we had the occasion to rule that “where the sanity of a person is at
issue, expert opinion is not necessary [and that] the observations of the trial judge
coupled with evidence establishing the person’s state of mental sanity will suffice.” [18]
Thus, it is significant that in its Order dated November 14, 2006 which denied
petitioner’s motion for reconsideration on the trial court’s unfavorable September 27,
2006 ruling, the trial court highlighted the fatal role that petitioner’s own documentary
evidence played in disproving its case and, likewise, the trial court made known its own
observation of respondent’s physical and mental state, to wit:
The Court noted the absence of any testimony of a medical expert which states that
Gen. Cirilo O. Oropesa does not have the mental, emotional, and physical capacity to
manage his own affairs. On the contrary, Oppositor’s evidence includes a
Neuropsychological Screening Report which states that Gen. Oropesa, (1) performs on
the average range in most of the domains that were tested; (2) is capable of mental
calculations; and (3) can provide solutions to problem situations. The Report concludes
that Gen. Oropesa possesses intact cognitive functioning, except for mildly impaired
abilities in memory, reasoning and orientation. It is the observation of the Court that
oppositor is still sharp, alert and able.[19] (Citation omitted; emphasis supplied.)

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

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

Section 1. Demurrer to evidence. – After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. If his motion is denied, he shall
have the right to present evidence. If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have waived the right to present evidence.

A demurrer to evidence is defined as “an objection by one of the parties in an action, to

the effect that the evidence which his adversary produced is insufficient in point of law,
whether true or not, to make out a case or sustain the issue.” [23]  We have also held that
a demurrer to evidence “authorizes a judgment on the merits of the case without the
defendant having to submit evidence on his part, as he would ordinarily have to do, if
plaintiff’s evidence shows that he is not entitled to the relief sought.” [24]

There was no error on the part of the trial court when it dismissed the petition for
guardianship without first requiring respondent to present his evidence precisely
because the effect of granting a demurrer to evidence other than dismissing a cause of
action is, evidently, to preclude a defendant from presenting his evidence since, upon
the facts and the law, the plaintiff has shown no right to relief.
WHEREFORE, premises considered, the petition is hereby DENIED.  The assailed
Decision dated February 29, 2008 as well as the Resolution dated September 16, 2008
of the Court of Appeals in CA-G.R. CV No. 88449 are AFFIRMED.

SO ORDERED.

Corona, C.J., (Chairperson), Bersamin, Del Castillo, and Villarama, Jr., JJ., concur.
[ G.R. No. 151243, April 30, 2008 ]
LOLITA R. ALAMAYRI, PETITIONER, VS. ROMMEL, ELMER, ERWIN, ROILER AND
AMANDA, ALL SURNAMED PABALE, RESPONDENTS.

DECISION

CHICO-NAZARIO, J.:

Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of
Court filed by petitioner Lolita R. Alamayri (Alamayri) seeking the reversal and setting
aside of the Decision,[2] dated 10 April 2001, of the Court of Appeals in CA-G.R. CV No.
58133; as well as the Resolution,[3] dated 19 December 2001 of the same court denying
reconsideration of its aforementioned Decision.  The Court of Appeals, in its assailed
Decision, upheld the validity of the Deed of Absolute Sale, dated 20 February 1984,
executed by Nelly S. Nave (Nave) in favor of siblings Rommel, Elmer, Erwin, Roiler and
Amanda, all surnamed Pabale (the Pabale siblings) over a piece of land (subject
property) in Calamba, Laguna, covered by Transfer Certificate of Title (TCT) No. T-3317
(27604); and, thus, reversed and set aside the Decision, [4] dated 2 December 1997, of
the Regional Trial Court (RTC) of Pasay City, Branch 119 in Civil Case No. 675-84-C.
[5]
 The 2 December 1997 Decision of the RTC declared null and void the two sales
agreements involving the subject property entered into by Nave with different parties,
namely, Sesinando M. Fernando (Fernando) and the Pabale siblings; and ordered the
reconveyance of the subject property to Alamayri, as Nave's successor-in-interest.

There is no controversy as to the facts that gave rise to the present Petition, determined
by the Court of Appeals to be as follows:
This is a Complaint for Specific Performance with Damages filed by Sesinando M.
Fernando, representing S.M. Fernando Realty Corporation [Fernando] on February 6,
1984 before the Regional Trial Court of Calamba, Laguna presided over by Judge
Salvador P. de Guzman, Jr., docketed as Civil Case No. 675-84-C against Nelly S.
Nave [Nave], owner of a parcel of land located in Calamba, Laguna covered by TCT No.
T-3317 (27604).  [Fernando] alleged that on January 3, 1984, a handwritten
"Kasunduan Sa Pagbibilihan" (Contract to Sell) was entered into by and between him
and [Nave] involving said parcel of land. However, [Nave] reneged on their agreement
when the latter refused to accept the partial down payment he tendered to her as
previously agreed because she did not want to sell her property to him anymore. 
[Fernando] prayed that after trial on the merits, [Nave] be ordered to execute the
corresponding Deed of Sale in his favor, and to pay attorney's fees, litigation expenses
and damages.
[Nave] filed a Motion to Dismiss averring that she could not be ordered to execute the
corresponding Deed of Sale in favor of [Fernando] based on the following grounds: (1)
she was not fully apprised of the nature of the piece of paper [Fernando] handed to her
for her signature on January 3, 1984.  When she was informed that it was for the sale of
her property in Calamba, Laguna covered by TCT No. T-3317 (27604), she immediately
returned to [Fernando] the said piece of paper and at the same time repudiating the
same. Her repudiation was further bolstered by the fact that when [Fernando] tendered
the partial down payment to her, she refused to receive the same; and (2) she already
sold the property in good faith to Rommel, Elmer, Erwin, Roller and Amanda, all
surnamed Pabale [the Pabale siblings] on February 20, 1984 after the complaint was
filed against her but before she received a copy thereof.  Moreover, she alleged that
[Fernando] has no cause of action against her as he is suing for and in behalf of S.M.
Fernando Realty Corporation who is not a party to the alleged Contract to Sell.  Even
assuming that said entity is the real party in interest, still, [Fernando] cannot sue in
representation of the corporation there being no evidence to show that he was duly
authorized to do so.

Subsequently, [the Pabale siblings] filed a Motion to Intervene alleging that they are
now the land owners of the subject property.  Thus, the complaint was amended to
include [the Pabale siblings] as party defendants.  In an Order dated April 24, 1984, the
trial court denied [Nave's] Motion to Dismiss prompting her to file a Manifestation and
Motion stating that she was adopting the allegations in her Motion to Dismiss in answer
to [Fernando's] amended complaint.

Thereafter, [Nave] filed a Motion to Admit her Amended Answer with Counterclaim and
Cross-claim praying that her husband, Atty. Vedasto Gesmundo be impleaded as her
co-defendant, and including as her defense undue influence and fraud by reason of the
fact that she was made to appear as widow when in fact she was very much married at
the time of the transaction in issue.  Despite the opposition of [Fernando] and [the
Pabale siblings], the trial court admitted the aforesaid Amended Answer with
Counterclaim and Cross-claim.

Still unsatisfied with her defense, [Nave] and Atty. Vedasto Gesmundo filed a Motion to
Admit Second Amended Answer and Amended Reply and Cross-claim against [the
Pabale siblings], this time including the fact of her incapacity to contract for being
mentally deficient based on the psychological evaluation report conducted on December
2, 1985 by Dra. Virginia P. Panlasigui, M. A., a clinical psychologist. Finding the motion
unmeritorious, the same was denied by the court a quo.

[Nave] filed a motion for reconsideration thereof asseverating that in Criminal Case No.
1308-85-C entitled "People vs. Nelly S. Nave" she raised therein as a defense her
mental deficiency.  This being a decisive factor to determine once and for all whether
the contract entered into by [Nave] with respect to the subject property is null and void,
the Second Amended Answer and Amended Reply and Cross-claim against [the Pabale
siblings] should be admitted.
Before the motion for reconsideration could be acted upon, the proceedings in this case
was suspended sometime in 1987 in view of the filing of a Petition for Guardianship of
[Nave] with the Regional Trial Court, Branch 36 of Calamba, Laguna, docketed as SP
No. 146-86-C with Atty. Vedasto Gesmundo as the petitioner.  On June 22, 1988, a
Decision was rendered in the said guardianship proceedings, the dispositive portion of
which reads:
"Under the circumstances, specially since Nelly S. Nave who now resides with the
Brosas spouses has categorically refused to be examined again at the National Mental
Hospital, the Court is constrained to accept the Neuro-Psychiatric Evaluation report
dated April 14, 1986 submitted by Dra. Nona Jean Alviso-Ramos and the supporting
report dated April 20, 1987 submitted by Dr. Eduardo T. Maaba, both of the National
Mental Hospital and hereby finds Nelly S. Nave an incompetent within the purview of
Rule 92 of the Revised Rules of Court, a person who, by reason of age, disease, weak
mind and deteriorating mental processes cannot without outside aid take care of herself
and manage her properties, becoming thereby an easy prey for deceit and exploitation,
said condition having become severe since the year 1980.  She and her estate are
hereby placed under guardianship. Atty. Leonardo C. Paner is hereby appointed as her
regular guardian without need of bond, until further orders from this Court.  Upon his
taking his oath of office as regular guardian, Atty. Paner is ordered to participate actively
in the pending cases of Nelly S. Nave with the end in view of protecting her interests
from the prejudicial sales of her real properties, from the overpayment in the foreclosure
made by Ms. Gilda Mendoza-Ong, and in recovering her lost jewelries and monies and
other personal effects.

SO ORDERED."
Both [Fernando] and [the Pabale siblings] did not appeal therefrom, while the appeal
interposed by spouses Juliano and Evangelina Brosas was dismissed by this Court for
failure to pay the required docketing fees within the reglementary period.

In the meantime, [Nave] died on December 9, 1992.  On September 20, 1993, Atty.
Vedasto Gesmundo, [Nave's] sole heir, she being an orphan and childless, executed an
Affidavit of Self-Adjudication pertaining to his inherited properties from [Nave].

On account of such development, a motion for the dismissal of the instant case and for
the issuance of a writ of execution of the Decision dated June 22, 1988 in SP No. 146-
86-C (petition for guardianship) was filed by Atty. Vedasto Gesmundo on February 14,
1996 with the court a quo.  [The Pabale siblings] filed their Opposition to the motion on
grounds that (1) they were not made a party to the guardianship proceedings and thus
cannot be bound by the Decision therein; and (2) that the validity of the Deed of
Absolute Sale executed by the late [Nave] in their favor was never raised in the
guardianship case.

The case was then set for an annual conference.  On January 9, 1997, Atty. Vedasto
Gesmundo filed a motion seeking the court's permission for his substitution for the late
defendant Nelly in the instant case.  Not long after the parties submitted their respective
pre-trial briefs, a motion for substitution was filed by Lolita R. Alamayre (sic) [Alamayri]
alleging that since the subject property was sold to her by Atty. Vedasto Gesmundo as
evidenced by a Deed of Absolute Sale, she should be substituted in his stead.  In
refutation, Atty. Vedasto Gesmundo filed a Manifestation stating that what he executed
is a Deed of Donation and not a Deed of Absolute Sale in favor of [Alamayri] and that
the same was already revoked by him on March 5, 1997.  Thus, the motion for
substitution should be denied.

On July 29, 1997, the court a quo issued an Order declaring that it cannot make a ruling
as to the conflicting claims of [Alamayri] and Atty. Vedasto Gesmundo.  After the case
was heard on the merits, the trial court rendered its Decision on December 2, 1997, the
dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered as follows:

1. Declaring the handwritten Contract to Sell dated January 3, 1984 executed by Nelly
S. Nave and Sesinando Fernando null and void and of no force and effect;

2. Declaring the Deed of Absolute Sale dated February 20, 1984 executed by Nelly S.
Nave in favor of the [Pabale siblings] similarly null and void and of no force and effect;

3. Recognizing Ms. Lolita P. [Alamayri] as the owner of the property covered by TCT
No. 111249 of the land records of Calamba, Laguna;

4. Ordering the [Pabale siblings] to execute a transfer of title over the property in favor
of Ms. Lolita P. [Alamayri] in the concept of reconveyance because the sale in their
favor has been declared null and void;

5. Ordering the [Pabale siblings] to surrender possession over the property to Ms.
[Alamayri] and to account for its income from the time they took over possession to the
time the same is turned over to Ms. Lolita [Alamayri], and thereafter pay the said income
to the latter;

6. Ordering [Fernando] and the [Pabale siblings], jointly and severally, to pay Ms.
[Alamayri]:

a. attorney's fees in the sum of P30,000.00; and

b. the costs.[6]
S.M. Fernando Realty Corporation, still represented by Fernando, filed an appeal with
the Court of Appeals, docketed as CA-G.R. CV No. 58133, solely to question the portion
of the 2 December 1997 Decision of the RTC ordering him and the Pabale siblings to
jointly and severally pay Alamayri the amount of P30,000.00 as attorney's fees.

The Pabale siblings intervened as appellants in CA-G.R. CV No. 58133 averring that
the RTC erred in declaring in its 2 December 1997 Decision that the Deed of Absolute
Sale dated 20 February 1984 executed by Nave in their favor was null and void on the
ground that Nave was found incompetent since the year 1980.

The Court of Appeals, in its Decision, dated 10 April 2001, granted the appeals of S.M.
Fernando Realty Corporation and the Pabale siblings.  It ruled thus:
WHEREFORE, premises considered, the appeal filed by S. M. Fernando Realty
Corporation, represented by its President, Sesinando M. Fernando as well as the
appeal interposed by Rommel, Elmer, Erwin, Roller and Amanda, all surnamed Pabale,
are hereby GRANTED.  The Decision of the Regional Trial Court of Pasay City, Branch
119 in Civil Case No. 675-84-C is hereby REVERSED and SET ASIDE and a new one
rendered upholding the VALIDITY of the Deed of Absolute Sale dated February 20,
1984.

No pronouncements as to costs.[7]
Alamayri sought reconsideration of the afore-quoted Decision of the appellate court,
invoking the Decision,[8] dated 22 June 1988, of the RTC in the guardianship
proceedings, docketed as SP. PROC. No. 146-86-C, which found Nave incompetent,
her condition becoming severe since 1980; and thus appointed Atty. Leonardo C. Paner
as her guardian.  Said Decision already became final and executory when no one
appealed therefrom. Alamayri argued that since Nave was already judicially determined
to be an incompetent since 1980, then all contracts she subsequently entered into
should be declared null and void, including the Deed of Sale, dated 20 February 1984,
which she executed over the subject property in favor of the Pabale siblings.

According to Alamayri, the Pabale siblings should be bound by the findings of the RTC
in its 22 June 1988 Decision in SP. PROC. No. 146-86-C, having participated in the said
guardianship proceedings through their father Jose Pabale. She pointed out that the
RTC explicitly named in its orders Jose Pabale as among those present during the
hearings held on 30 October 1987 and 19 November 1987 in SP. PROC. No. 146-86-
C.  Alamayri thus filed on 21 November 2001 a Motion to Schedule Hearing to Mark
Exhibits in Evidence so she could mark and submit as evidence certain documents to
establish that the Pabale siblings are indeed the children of Jose Pabale.

Atty. Gesmundo, Nave's surviving spouse, likewise filed his own Motion for
Reconsideration of the 10 April 2001 Decision of the Court of Appeals in CA-G.R. CV
No. 58133, asserting Nave's incompetence since 1980 as found by the RTC in SP.
PROC. No. 146-86-C, and his right to the subject property as owner upon Nave's death
in accordance with the laws of succession.  It must be remembered that Atty.
Gesmundo disputed before the RTC the supposed transfer of his rights to the subject
property to Alamayri, but the court a quo refrained from ruling thereon.

In a Resolution, dated 19 December 2001, the Court of Appeals denied for lack of merit
the Motions for Reconsideration of Alamayri and Atty. Gesmundo.

Hence, Alamayri comes before this Court via the present Petition for Review
on Certiorari under Rule 45 of the Rules of Court, with the following assignment of
errors:
 I

THE COURT OF APPEALS ERRED IN HOLDING THAT THE FINDING THAT NELLY
S. NAVE WAS INCOMPETENT IN SPECIAL PROCEEDING NO. 146-86-C ON JUNE
22, 1988 CANNOT RETROACT TO AFFECT THE VALIDITY OF THE DEED OF SALE
SHE EXECUTED ON FEBRUARY 20, 1984 IN FAVOR OF RESPONDENTS
PABALES.
II

THE COURT OF APPEALS ERRED IN HOLDING THAT THE DECISION IN SPECIAL

PROCEEDING NO. 146-86-C DATED JUNE 22, 1988 IS NOT BINDING ON
RESPONDENTS PABALES.
III

THE COURT OF APPEALS ERRED IN DENYING PETITIONER'S MOTION TO

SCHEDULE HEARING TO MARK DOCUMENTARY EXHIBITS IN EVIDENCE TO
ESTABLISH THE IDENTITY OF JOSE PABALE AS THE FATHER OF
RESPONDENTS PABALES.[9]
It is Alamayri's position that given the final and executory Decision, dated 22 June 1988,
of the RTC in SP. PROC. No. 146-86-C finding Nave incompetent since 1980, then the
same fact may no longer be re-litigated in Civil Case No. 675-84-C, based on the
doctrine of res judicata, more particularly, the rule on conclusiveness of judgment.

This Court is not persuaded.

Res judicata literally means "a matter adjudged; a thing judicially acted upon or decided;
a thing or matter settled by judgment."  Res judicata lays the rule that an existing final
judgment or decree rendered on the merits, and without fraud or collusion, by a court of
competent jurisdiction, upon any matter within its jurisdiction, is conclusive of the rights
of the parties or their privies, in all other actions or suits in the same or any other judicial
tribunal of concurrent jurisdiction on the points and matters in issue in the first suit. [10]

It is espoused in the Rules of Court, under paragraphs (b) and (c) of Section 47, Rule
39, which read:
SEC. 47. Effect of judgments or final orders. - The effect of a judgment or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or
final order, may be as follows:

xxxx

(b) In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties and their successors in interest by title subsequent to
the commencement of the action or special proceeding, litigating the same thing and
under the same title and in the same capacity; and
(c) In any other litigation between the same parties or their successors in interest, that
only is deemed to have been adjudged in a former judgment or final order which
appears upon its face to have been so adjudged, or which was actually and necessarily
included therein or necessary thereto.
The doctrine of res judicata thus lays down two main rules which may be stated as
follows: (1) The judgment or decree of a court of competent jurisdiction on the merits
concludes the parties and their privies to the litigation and constitutes a bar to a new
action or suit involving the same cause of action either before the same or any other
tribunal; and (2) Any right, fact, or matter in issue directly adjudicated or necessarily
involved in the determination of an action before a competent court in which a judgment
or decree is rendered on the merits is conclusively settled by the judgment therein and
cannot again be litigated between the parties and their privies whether or not the claims
or demands, purposes, or subject matters of the two suits are the same. These two
main rules mark the distinction between the principles governing the two typical cases in
which a judgment may operate as evidence.[11] In speaking of these cases, the first
general rule above stated, and which corresponds to the afore-quoted paragraph (b) of
Section 47, Rule 39 of the Rules of Court, is referred to as "bar by former judgment";
while the second general rule, which is embodied in paragraph (c) of the same section
and rule, is known as "conclusiveness of judgment."

The Resolution of this Court in Calalang v. Register of Deeds provides the following

enlightening discourse on conclusiveness of judgment:
The doctrine res judicata actually embraces two different concepts: (1) bar by former
judgment and (b) conclusiveness of judgment.

The second concept -- conclusiveness of judgment -- states that a fact or question

which was in issue in a former suit and was there judicially passed upon and
determined by a court of competent jurisdiction, is conclusively settled by the judgment
therein as far as the parties to that action and persons in privity with them are
concerned and cannot be again litigated in any future action between such parties or
their privies, in the same court or any other court of concurrent jurisdiction on either the
same or different cause of action, while the judgment remains unreversed by proper
authority. It has been held that in order that a judgment in one action can be conclusive
as to a particular matter in another action between the same parties or their privies, it is
essential that the issue be identical. If a particular point or question is in issue in the
second action, and the judgment will depend on the determination of that particular
point or question, a former judgment between the same parties or their privies will be
final and conclusive in the second if that same point or question was in issue and
adjudicated in the first suit (Nabus vs. Court of Appeals, 193 SCRA 732 [1991]). Identity
of cause of action is not required but merely identity of issues.

Justice Feliciano, in Smith Bell & Company (Phils.), Inc. vs. Court of Appeals (197
SCRA 201, 210 [1991]), reiterated Lopez vs. Reyes (76 SCRA 179 [1977]) in regard to
the distinction between bar by former judgment which bars the prosecution of a second
action upon the same claim, demand, or cause of action, and conclusiveness of
judgment which bars the relitigation of particular facts or issues in another litigation
between the same parties on a different claim or cause of action.
The general rule precluding the relitigation of material facts or questions which were in
issue and adjudicated in former action are commonly applied to all matters essentially
connected with the subject matter of the litigation. Thus, it extends to questions
necessarily implied in the final judgment, although no specific finding may have been
made in reference thereto and although such matters were directly referred to in the
pleadings and were not actually or formally presented. Under this rule, if the record of
the former trial shows that the judgment could not have been rendered without deciding
the particular matter, it will be considered as having settled that matter as to all future
actions between the parties and if a judgment necessarily presupposes certain
premises, they are as conclusive as the judgment itself. [12]
Another case, Oropeza Marketing Corporation v. Allied Banking Corporation, further
differentiated between the two rules of res judicata, as follows:
There is "bar by prior judgment" when, as between the first case where the judgment
was rendered and the second case that is sought to be barred, there is identity of
parties, subject matter, and causes of action. In this instance, the judgment in the
first case constitutes an absolute bar to the second action. Otherwise put, the judgment
or decree of the court of competent jurisdiction on the merits concludes the litigation
between the parties, as well as their privies, and constitutes a bar to a new action or suit
involving the same cause of action before the same or other tribunal.

But where there is identity of parties in the first and second cases, but no identity of
causes of action, the first judgment is conclusive only as to those matters actually and
directly controverted and determined and not as to matters merely involved therein. This
is the concept of res judicata known as "conclusiveness of judgment." Stated
differently, any right, fact, or matter in issue directly adjudicated or necessarily involved
in the determination of an action before a competent court in which judgment is
rendered on the merits is conclusively settled by the judgment therein and cannot again
be litigated between the parties and their privies whether or not the claim, demand,
purpose, or subject matter of the two actions is the same. [13]
In sum, conclusiveness of judgment bars the re-litigation in a second case of a fact or
question already settled in a previous case.  The second case, however, may still
proceed provided that it will no longer touch on the same fact or question adjudged in
the first case. Conclusiveness of judgment requires only the identity of issues and
parties, but not of causes of action.

Contrary to Alamayri's assertion, conclusiveness of judgment has no application to the

instant Petition since there is no identity of parties and issues between SP. PROC. No.
146-86-C and Civil Case No. 675-84-C.

No identity of parties

SP. PROC. No. 146-86-C was a petition filed with the RTC by Atty. Gesmundo for the
appointment of a guardian over the person and estate of his late wife Nave alleging her
incompetence.
A guardian may be appointed by the RTC over the person and estate of a minor or an
incompetent, the latter being described as a person "suffering the penalty of civil
interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to
read and write, those who are of unsound mind, even though they have lucid intervals,
and persons not being of unsound mind, but by reason of age, disease, weak mind, and
other similar causes, cannot, without outside aid, take care of themselves and manage
their property, becoming thereby an easy prey for deceit and exploitation." [14]

Rule 93 of the Rules of Court governs the proceedings for the appointment of a
guardian, to wit:
Rule 93
APPOINTMENT OF GUARDIANS

SECTION 1.  Who may petition for appointment of guardian for resident. - Any relative,
friend, or other person on behalf of a resident minor or incompetent who has no parent
or lawful guardian, or the minor himself if fourteen years of age or over, may petition the
court having jurisdiction for the appointment of a general guardian for the person or
estate, or both, of such minor or incompetent.  An officer of the Federal Administration
of the United States in the Philippines may also file a petition in favor of a ward thereof,
and the Director of Health, in favor of an insane person who should be hospitalized, or
in favor of an isolated leper.

SEC. 2.  Contents of petition. - A petition for the appointment of a general guardian

must show, so far as known to the petitioner:

(a) The jurisdictional facts;

(b) The minority or incompetency rendering the appointment necessary or convenient;

(c) The names, ages, and residences of the relatives of the minor or incompetent, and
of the persons having him in their care;

(d) The probable value and character of his estate;

(e) The name of the person for whom letters of guardianship are prayed.

The petition shall be verified; but no defect in the petition or verification shall render void
the issuance of letters of guardianship.

SEC. 3.  Court to set time for hearing.  Notice thereof. - When a petition for the
appointment of a general guardian is filed, the court shall fix a time and place for
hearing the same, and shall cause reasonable notice thereof to be given to the persons
mentioned in the petition residing in the province, including the minor if above 14 years
of age or the incompetent himself, and may direct other general or special notice thereof
to be given.
SEC. 4.  Opposition to petition. - Any interested person may, by filing a written
opposition, contest the petition on the ground of majority of the alleged minor,
competency of the alleged incompetent, or the unsuitability of the person for whom
letters are prayed, and may pray that the petition be dismissed, or that letters of
guardianship issue to himself, or to any suitable person named in the opposition.

SEC. 5.  Hearing and order for letters to issue. - At the hearing of the petition the
alleged incompetent must be present if able to attend, and it must be shown that the
required notice has been given.  Thereupon the court shall hear the evidence of the
parties in support of their respective allegations, and, if the person in question is a minor
or incompetent it shall appoint a suitable guardian of his person or estate, or both, with
the powers and duties hereinafter specified.

xxxx

SEC. 8.  Service of judgment. - Final orders or judgments under this rule shall be served
upon the civil registrar of the municipality or city where the minor or incompetent person
resides or where his property or part thereof is situated.

A petition for appointment of a guardian is a special proceeding, without the usual

parties, i.e., petitioner versus respondent, in an ordinary civil case. Accordingly, SP.
PROC. No. 146-86-C bears the title: In re: Guardianship of Nelly S. Nave for
Incompetency, Verdasto Gesmundo y Banayo, petitioner, with no named respondent/s.

Sections 2 and 3 of Rule 93 of the Rules of Court, though, require that the petition
contain the names, ages, and residences of relatives of the supposed minor or
incompetent and those having him in their care, so that those residing within the same
province as the minor or incompetent can be notified of the time and place of the
hearing on the petition.

The objectives of an RTC hearing a petition for appointment of a guardian

under Rule 93 of the Rules of Court is to determine, first, whether a person is indeed a
minor or an incompetent who has no capacity to care for himself and/or his properties;
and, second, who is most qualified to be appointed as his guardian.  The rules
reasonably assume that the people who best could help the trial court settle such issues
would be those who are closest to and most familiar with the supposed minor or
incompetent, namely, his relatives living within the same province and/or the persons
caring for him.

It is significant to note that the rules do not necessitate that creditors of the minor or
incompetent be likewise identified and notified.  The reason is simple: because their
presence is not essential to the proceedings for appointment of a guardian.  It is almost
a given, and understandably so, that they will only insist that the supposed minor or
incompetent is actually capacitated to enter into contracts, so as to preserve the validity
of said contracts and keep the supposed minor or incompetent obligated to comply
therewith.

Hence, it cannot be presumed that the Pabale siblings were given notice and actually
took part in SP. PROC. No. 146-86-C.  They are not Nave's relatives, nor are they the
ones caring for her. Although the rules allow the RTC to direct the giving of other
general or special notices of the hearings on the petition for appointment of a guardian,
it was not established that the RTC actually did so in SP. PROC. No. 146-86-C.

Alamayri's allegation that the Pabale siblings participated in SP. PROC. No. 146-86-C
rests on two Orders, dated 30 October 1987[15] and 19 November 1987,[16] issued by the
RTC in SP. PROC. No. 146-86-C, expressly mentioning the presence of a Jose Pabale,
who was supposedly the father of the Pabale siblings, during the hearings held on the
same dates. However, the said Orders by themselves cannot confirm that Jose Pabale
was indeed the father of the Pabale siblings and that he was authorized by his children
to appear in the said hearings on their behalf.

Alamayri decries that she was not allowed by the Court of Appeals to submit and mark
additional evidence to prove that Jose Pabale was the father of the Pabale siblings.

It is true that the Court of Appeals has the power to try cases and conduct hearings,
receive evidence and perform any and all acts necessary to resolve factual issues
raised in cases falling within its original and appellate jurisdiction, including the power to
grant and conduct new trials or further proceedings.  In general, however, the Court of
Appeals conducts hearings and receives evidence prior to the submission of the case
for judgment.[17]  It must be pointed out that, in this case, Alamayri filed her Motion to
Schedule Hearing to Mark Exhibits in Evidence on 21 November 2001.  She thus
sought to submit additional evidence as to the identity of Jose Pabale, not only after CA-
G.R. CV No. 58133 had been submitted for judgment, but after the Court of Appeals
had already promulgated its Decision in said case on 10 April 2001.

The parties must diligently and conscientiously present all arguments and available
evidences in support of their respective positions to the court before the case is deemed
submitted for judgment.  Only under exceptional circumstances may the court receive
new evidence after having rendered judgment; [18] otherwise, its judgment may never
attain finality since the parties may continually refute the findings therein with further
evidence.  Alamayri failed to provide any explanation why she did not present her
evidence earlier. Merely invoking that the ends of justice would have been best served if
she was allowed to present additional evidence is not sufficient to justify deviation from
the general rules of procedure. Obedience to the requirements of procedural rules is
needed if the parties are to expect fair results therefrom, and utter disregard of the rules
cannot justly be rationalized by harking on the policy of liberal construction.
[19]
 Procedural rules are tools designed to facilitate the adjudication of cases. Courts and
litigants alike are thus enjoined to abide strictly by the rules. And while the Court, in
some instances, allows a relaxation in the application of the rules, this, we stress, was
never intended to forge a bastion for erring litigants to violate the rules with impunity. 
The liberality in the interpretation and application of the rules applies only to proper
cases and under justifiable causes and circumstances. While it is true that litigation is
not a game of technicalities, it is equally true that every case must be prosecuted in
accordance with the prescribed procedure to insure an orderly and speedy
administration of justice.[20]

Moreover, contrary to Alamayri's assertion, the Court of Appeals did not deny her
Motion to Schedule Hearing to Mark Exhibits in Evidence merely for being late.  In its
Resolution, dated 19 December 2001, the Court of Appeals also denied the said motion
on the following grounds:
While it is now alleged, for the first time, that the [herein respondents Pabale siblings]
participated in the guardianship proceedings considering that the Jose Pabale
mentioned therein is their late father, [herein petitioner Alamayri] submitting herein
documentary evidence to prove their filiation, even though admitted in evidence at this
late stage, cannot bind [the Pabale siblings] as verily, notice to their father is not notice
to them there being no allegation to the effect that he represented them before the
Calamba Court.[21]
As the appellate court reasoned, even if the evidence Alamayri wanted to submit do
prove that the Jose Pabale who attended the RTC hearings on 30 October 1987 and 19
November 1987 in SP. PROC. No. 146-86-C was the father of the Pabale siblings, they
would still not confirm his authority to represent his children in the said proceedings. 
Worth stressing is the fact that Jose Pabale was not at all a party to the Deed of Sale
dated 20 February 1984 over the subject property, which was executed by Nave in favor
of the Pabale siblings.  Without proper authority, Jose Pabale's presence at the
hearings in SP. PROC. No. 146-86-C should not bind his children to the outcome of
said proceedings or affect their right to the subject property.

Since it was not established that the Pabale siblings participated in SP. PROC. No. 146-
86-C, then any finding therein should not bind them in Civil Case No. 675-84-C.

No identity of issues

Neither is there identity of issues between SP. PROC. No. 146-86-C and Civil Case No.
675-84-C that may bar the latter, by conclusiveness of judgment, from ruling on Nave's
competency in 1984, when she executed the Deed of Sale over the subject property in
favor the Pabale siblings.

In SP. PROC. No. 146-86-C, the main issue was whether Nave was incompetent at the
time of filing of the petition with the RTC in 1986, thus, requiring the appointment of a
guardian over her person and estate.

In the cross-claim of Nave and Atty. Gesmundo against the Pabale siblings in Civil Case
No. 675-84-C, the issue was whether Nave was an incompetent when she executed a
Deed of Sale of the subject property in favor of the Pabale siblings on 20 February
1984, hence, rendering the said sale void.

While both cases involve a determination of Nave's incompetency, it must be

established at two separate times, one in 1984 and the other in 1986. A finding that she
was incompetent in 1986 does not automatically mean that she was so in 1984. 
In Carillo v. Jaojoco,[22] the Court ruled that despite the fact that the seller was declared
mentally incapacitated by the trial court only nine days after the execution of the
contract of sale, it does not prove that she was so when she executed the contract. 
Hence, the significance of the two-year gap herein cannot be gainsaid since Nave's
mental condition in 1986 may vastly differ from that of 1984 given the intervening
period.

Capacity to act is supposed to attach to a person who has not previously been declared
incapable, and such capacity is presumed to continue so long as the contrary be not
proved; that is, that at the moment of his acting he was incapable, crazy, insane, or out
of his mind.[23]   The burden of proving incapacity to enter into contractual relations rests
upon the person who alleges it; if no sufficient proof to this effect is presented, capacity
will be presumed.[24]

Nave was examined and diagnosed by doctors to be mentally incapacitated only in

1986, when the RTC started hearing SP. PROC. No. 146-86-C; and she was not
judicially declared an incompetent until 22 June 1988 when a Decision in said case was
rendered by the RTC, resulting in the appointment of Atty. Leonardo C. Paner as her
guardian. Thus, prior to 1986, Nave is still presumed to be capacitated and competent
to enter into contracts such as the Deed of Sale over the subject property, which she
executed in favor of the Pabale siblings on 20 February 1984.  The burden of proving
otherwise falls upon Alamayri, which she dismally failed to do, having relied entirely on
the 22 June 1988 Decision of the RTC in SP. PROC. No. 146-86-C.

Alamayri capitalizes on the declaration of the RTC in its Decision dated 22 June 1988 in
SP. PROC. No. 146-86-C on Nave's condition "having become severe since the year
1980."[25]  But there is no basis for such a declaration.  The medical reports
extensively quoted in said Decision, prepared by: (1) Dr. Nona Jean Alviso-Ramos,
dated 14 April 1986,[26] and (2) by Dr. Eduardo T. Maaba, dated 20 April 1987, [27] both
stated that upon their examination, Nave was suffering from "organic brain syndrome
secondary to cerebral arteriosclerosis with psychotic episodes," which impaired her
judgment.  There was nothing in the said medical reports, however, which may shed
light on when Nave began to suffer from said mental condition. All they said was that it
existed at the time Nave was examined in 1986, and again in 1987.  Even the RTC
judge was only able to observe Nave, which made him realize that her mind was very
impressionable and capable of being manipulated, on the occasions when Nave visited
the court from 1987 to 1988. Hence, for this Court, the RTC Decision dated 22 June
1988 in SP. PROC. No. 146-86-C may be conclusive as to Nave's incompetency from
1986 onwards, but not as to her incompetency in 1984.  And other than invoking the 22
June 1988 Decision of the RTC in SP. PROC. No. 146-86-C, Alamayri did not bother to
establish with her own evidence that Nave was mentally incapacitated when she
executed the 20 February 1984 Deed of Sale over the subject property in favor of the
Pabale siblings, so as to render the said deed void.
All told, there being no identity of parties and issues between SP. PROC. No. 146-86-C
and Civil Case No. 675-84-C, the 22 June 1988 Decision in the former on Nave's
incompetency by the year 1986 should not bar, by conclusiveness of judgment, a
finding in the latter case that Nave still had capacity and was competent when she
executed on 20 February 1984 the Deed of Sale over the subject property in favor of the
Pabale siblings.  Therefore, the Court of Appeals did not commit any error when it
upheld the validity of the 20 February 1984 Deed of Sale.

WHEREFORE, premises considered, the instant Petition for Review is

hereby DENIED.  The Decision, dated 10 April 2001, of the Court of Appeals in CA-G.R.
CV No. 58133, is hereby AFFIRMED in toto.  Costs against the petitioner Lolita R.
Alamayri.

SO ORDERED.

[ G.R. Nos. 168992-93, May 21, 2009 ]

IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM, MONINA P. LIM,
PETITIONER.

IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P. LIM, MONINA P. LIM,

PETITIONER.

DECISION

CARPIO, J.:

The Case

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

The following facts are undisputed. Petitioner is an optometrist by profession. On 23

June 1974, she married Primo Lim (Lim). They were childless. Minor children, whose
parents were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban).
Being so eager to have a child of their own, petitioner and Lim registered the children to
make it appear that they were the children's parents. The children [2] were named
Michelle P. Lim (Michelle) and Michael Jude P. Lim (Michael). Michelle was barely
eleven days old when brought to the clinic of petitioner. She was born on 15 March
1977.[3] Michael was 11 days old when Ayuban brought him to petitioner's clinic. His
date of birth is 1 August 1983.[4]

The spouses reared and cared for the children as if they were their own. They sent the
children to exclusive schools. They used the surname "Lim" in all their school records
and documents. Unfortunately, on 28 November 1998, Lim died. On 27 December
2000, petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty [5] given
under Republic Act No. 8552[6] (RA 8552) to those individuals who simulated the birth of
a child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of
Michelle and Michael before the trial court docketed as SPL PROC. Case Nos. 1258
and 1259, respectively. At the time of the filing of the petitions for adoption, Michelle
was 25 years old and already married, while Michael was 18 years and seven months
old.

Michelle and her husband gave their consent to the adoption as evidenced by their
Affidavits of Consent.[7] Michael also gave his consent to his adoption as shown in his
Affidavit of Consent.[8] Petitioner's husband Olario likewise executed an Affidavit of
Consent[9] for the adoption of Michelle and Michael.

In the Certification issued by the Department of Social Welfare and Development

(DSWD), Michelle was considered as an abandoned child and the whereabouts of her
natural parents were unknown.[10] The DSWD issued a similar Certification for Michael.
[11]

The Ruling of the Trial Court

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The
trial court ruled that since petitioner had remarried, petitioner should have filed the
petition jointly with her new husband. The trial court ruled that joint adoption by the
husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article
185 of the Family Code.

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied
in the Order dated 16 June 2005. In denying the motion, the trial court ruled that
petitioner did not fall under any of the exceptions under Section 7(c), Article III of RA
8552. Petitioner's argument that mere consent of her husband would suffice was
untenable because, under the law, there are additional requirements, such as residency
and certification of his qualification, which the husband, who was not even made a party
in this case, must comply.

As to the argument that the adoptees are already emancipated and joint adoption is
merely for the joint exercise of parental authority, the trial court ruled that joint adoption
is not only for the purpose of exercising parental authority because an emancipated
child acquires certain rights from his parents and assumes certain obligations and
responsibilities.

Hence, the present petition.

Issue
Petitioner appealed directly to this Court raising the sole issue of whether or not
petitioner, who has remarried, can singly adopt.
The Court's Ruling

Petitioner contends that the rule on joint adoption must be relaxed because it is the duty
of the court and the State to protect the paramount interest and welfare of the child to
be adopted. Petitioner argues that the legal maxim "dura lex sed lex" is not applicable to
adoption cases. She argues that joint parental authority is not necessary in this case
since, at the time the petitions were filed, Michelle was 25 years old and already
married, while Michael was already 18 years of age. Parental authority is not anymore
necessary since they have been emancipated having attained the age of majority.

We deny the petition.

Joint Adoption by Husband and Wife

It is undisputed that, at the time the petitions for adoption were filed, petitioner had
already remarried. She filed the petitions by herself, without being joined by her
husband Olario. We have no other recourse but to affirm the trial court's decision
denying the petitions for adoption. Dura lex sed lex. The law is explicit. Section 7,
Article III of RA 8552 reads:
SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of
good moral character, has not been convicted of any crime involving moral turpitude,
emotionally and psychologically capable of caring for children, at least sixteen (16)
years older than the adoptee, and who is in a position to support and care for his/her
children in keeping with the means of the family. The requirement of sixteen (16) year
difference between the age of the adopter and adoptee may be waived when the
adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;

(b) Any alien possessing the same qualifications as above stated for Filipino
nationals: Provided, That his/her country has diplomatic relations with the Republic of
the Philippines, that he/she has been living in the Philippines for at least three (3)
continuous years prior to the filing of the application for adoption and maintains such
residence until the adoption decree is entered, that he/she has been certified by his/her
diplomatic or consular office or any appropriate government agency that he/she has the
legal capacity to adopt in his/her country, and that his/her government allows the
adoptee to enter his/her country as his/her adopted son/daughter: Provided,
further, That the requirements on residency and certification of the alien's qualification
to adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4 th) degree of
consanguinity or affinity; or

(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse
a relative within the fourth (4th) degree of consanguinity or affinity of the Filipino
spouses; or

(c) The guardian with respect to the ward after the termination of the guardianship and
clearance of his/her financial accountabilities.

Husband and wife shall jointly adopt, except in the following cases:

(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or

(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,

however, That the other spouse has signified his/her consent thereto; or

(iii) if the spouses are legally separated from each other.

In case husband and wife jointly adopt, or one spouse adopts the illegitimate
son/daughter of the other, joint parental authority shall be exercised by the spouses.
(Emphasis supplied)
The use of the word "shall" in the above-quoted provision means that joint adoption by
the husband and the wife is mandatory. This is in consonance with the concept of joint
parental authority over the child which is the ideal situation. As the child to be adopted is
elevated to the level of a legitimate child, it is but natural to require the spouses to adopt
jointly. The rule also insures harmony between the spouses. [12]

The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time
the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption
were filed only by petitioner herself, without joining her husband, Olario, the trial court
was correct in denying the petitions for adoption on this ground.

Neither does petitioner fall under any of the three exceptions enumerated in Section 7.
First, the children to be adopted are not the legitimate children of petitioner or of her
husband Olario. Second, the children are not the illegitimate children of petitioner. And
third, petitioner and Olario are not legally separated from each other.

The fact that Olario gave his consent to the adoption as shown in his Affidavit of
Consent does not suffice. There are certain requirements that Olario must comply being
an American citizen. He must meet the qualifications set forth in Section 7 of RA 8552
such as: (1) he must prove that his country has diplomatic relations with the Republic of
the Philippines; (2) he must have been living in the Philippines for at least three
continuous years prior to the filing of the application for adoption; (3) he must maintain
such residency until the adoption decree is entered; (4) he has legal capacity to adopt in
his own country; and (5) the adoptee is allowed to enter the adopter's country as the
latter's adopted child. None of these qualifications were shown and proved during the
trial.

These requirements on residency and certification of the alien's qualification to adopt

cannot likewise be waived pursuant to Section 7. The children or adoptees are not
relatives within the fourth degree of consanguinity or affinity of petitioner or of Olario.
Neither are the adoptees the legitimate children of petitioner.
Effects of Adoption

Petitioner contends that joint parental authority is not anymore necessary since the
children have been emancipated having reached the age of majority.    This is
untenable.

Parental authority includes caring for and rearing the children for civic consciousness
and efficiency and the development of their moral, mental and physical character and
well-being.[13] The father and the mother shall jointly exercise parental authority over the
persons of their common children.[14] Even the remarriage of the surviving parent shall
not affect the parental authority over the children, unless the court appoints another
person to be the guardian of the person or property of the children. [15]

It is true that when the child reaches the age of emancipation -- that is, when he attains
the age of majority or 18 years of age[16] -- emancipation terminates parental authority
over the person and property of the child, who shall then be qualified and responsible
for all acts of civil life.[17] However, parental authority is merely just one of the effects of
legal adoption. Article V of RA 8552 enumerates the effects of adoption, thus:
ARTICLE V

EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the biological parent is the spouse
of the adopter, all legal ties between the biological parent(s) and the adoptee shall be
severed and the same shall then be vested on the adopter(s).

SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate son/daughter of

the adopter(s) for all intents and purposes and as such is entitled to all the rights and
obligations provided by law to legitimate sons/daughters born to them without
discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and
support in keeping with the means of the family.

SEC. 18. Succession. - In legal and intestate succession, the adopter(s) and the
adoptee shall have reciprocal rights of succession without distinction from legitimate
filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law
on testamentary succession shall govern.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological
parent(s) and the adoptee, except when the biological parent is the spouse of the
adopter; (2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter
and adoptee reciprocal rights and obligations arising from the relationship of parent and
child, including but not limited to: (i) the right of the adopter to choose the name the
child is to be known; and (ii) the right of the adopter and adoptee to be legal and
compulsory heirs of each other.[18] Therefore, even if emancipation terminates parental
authority, the adoptee is still considered a legitimate child of the adopter with all the
rights[19] of a legitimate child such as: (1) to bear the surname of the father and the
mother; (2) to receive support from their parents; and (3) to be entitled to the legitime
and other successional rights. Conversely, the adoptive parents shall, with respect to
the adopted child, enjoy all the benefits to which biological parents are entitled [20] such
as support[21] and successional rights.[22]

We are mindful of the fact that adoption statutes, being humane and salutary, hold the
interests and welfare of the child to be of paramount consideration. They are designed
to provide homes, parental care and education for unfortunate, needy or orphaned
children and give them the protection of society and family, as well as to allow childless
couples or persons to experience the joys of parenthood and give them legally a child in
the person of the adopted for the manifestation of their natural parental instincts. Every
reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.[23]  But, as we have ruled in Republic v. Vergara:[24]
We are not unmindful of the main purpose of adoption statutes, which is the promotion
of the welfare of the children. Accordingly, the law should be construed liberally, in a
manner that will sustain rather than defeat said purpose. The law must also be applied
with compassion, understanding and less severity in view of the fact that it is intended to
provide homes, love, care and education for less fortunate children. Regrettably, the
Court is not in a position to affirm the trial court's decision favoring adoption in the case
at bar, for the law is clear and it cannot be modified without violating the
proscription against judicial legislation. Until such time however, that the law on the
matter is amended, we cannot sustain the respondent-spouses' petition for adoption.
(Emphasis supplied)
Petitioner, being married at the time the petitions for adoption were filed, should have
jointly filed the petitions with her husband. We cannot make our own legislation to suit
petitioner.

Petitioner, in her Memorandum, insists that subsequent events would show that joint
adoption could no longer be possible because Olario has filed a case for dissolution of
his marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the marriage between petitioner and
Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until
and unless there is a judicial decree for the dissolution of the marriage between
petitioner and Olario, the marriage still subsists. That being the case, joint adoption by
the husband and the wife is required. We reiterate our ruling above that since, at the
time the petitions for adoption were filed, petitioner was married to Olario, joint adoption
is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September

2004 of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case
Nos. 1258 and 1259. Costs against petitioner.

SO ORDERED.
 [ G.R. No. 117209, February 09, 1996 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. HON. JOSE R. HERNANDEZ,
IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH
158, PASIG CITY AND SPOUSES VAN MUNSON Y NAVARRO AND REGINA
MUNSON Y ANDRADE, RESPONDENTS.

DECISION

REGALADO, J.:

Indeed, what's in a name, as the Bard of Avon has written, since a rose by any other
name would smell as sweet?

This could well be the theme of the present appeal by certiorari which challenges, on
pure questions of law, the order of the Regional Trial Court, Branch 158, Pasig City,
dated September 13, 1994[1] in JDRC Case No. 2964. Said court is faulted for having
approved the petition for adoption of Kevin Earl Bartolome Moran and simultaneously
granted the prayer therein for the change of the first name of said adoptee to Aaron
Joseph, to complement the surname Munson y Andrade which he acquired consequent
to his adoption.

The facts are undisputed. On March 10, 1994, herein private respondent spouses, Van
Munson y Navarro and Regina Munson y Andrade, filed a petition [2] to adopt the minor
Kevin Earl Bartolome Moran, duly alleging therein the jurisdictional facts required by
Rule 99 of the Rules of Court for adoption, their qualifications as and fitness to be
adoptive parents, as well as the circumstances under and by reason of which the
adoption of the aforenamed minor was sought. In the very same petition, private
respondents prayed for the change of the first name of said minor adoptee to Aaron
Joseph, the same being the name with which he was baptized in keeping with religious
tradition, and by which he has been called by his adoptive family, relatives and friends
since May 6, 1993 when he arrived at private respondents’ residence. [3]

At the hearing on April 18, 1994, petitioner opposed the inclusion of the relief for change
of name in the same petition for adoption.  In its formal opposition dated May 3, 1995,
[4]
 petitioner reiterated its objection to the joinder of the petition for adoption and the
petitions for change of name in a single proceeding, arguing that these petitions should
be conducted and pursued as two separate proceedings.

After considering the evidence and arguments of the contending parties, the trial court
ruled in favor of herein private respondents in this wise:
"WHEREFORE, minor child Kevin Earl Bartolome Moran is freed from all legal
obligations of obedience and maintenance with respect to his natural parents, and for all
legal intents and purposes shall be known as Aaron Joseph Munson y Andrade, the
legally adopted child of Van Munson and Regina Munson effective upon the filing of the
petition on March 10, 1994. As soon as the decree of adoption becomes final and
executory, it shall be recorded in the Office of the Local Civil Registrar of Pasig, Metro
Manila pursuant to Section 8, Rule 99 and Section 6, Rule 103, respectively, of the
Rules of Court, and shall be annotated in the record of birth of the adopted child, which
in this case is in Valenzuela, Metro Manila, where the child was born. Likewise, send a
copy of this Order to the National Census and Statistics Office, Manila, for its
appropriate action consisten(t) herewith."[5]

At this juncture, it should be noted that no challenge has been raised by petitioner
regarding the fitness of herein private respondents to be adopting parents nor the
validity of the decree of adoption rendered in their favor. The records show that the
latter have commendably established their qualifications under the law to be adopters,
[6]
 and have amply complied with the procedural requirements for the petition for
adoption,[7] with the findings of the trial court being recited thus:
"To comply with the jurisdictional requirements, the Order of this Court dated March 16,
1994 setting this petition for hearing (Exh. ‘A’) was published in the March 31, April 6
and 13, 1994 issues of the Manila Chronicle, a newspaper of general circulation (Exhs.
‘B’ to ‘E’ and submarkings). x x x
xxx
                                       

"Petitioners apart from being financially able, have no criminal nor derogatory record
(Exhs. ‘K’ to ‘V’); and are physically fit to be the adoptive parents of the minor child
Kevin (Exh. ‘W’). Their qualification to become the adoptive parents of Kevin Earl finds
support also in the Social Case Study Report prepared by the DSWD through Social
Worker Luz Angela Sonido, the pertinent portion of which reads:

‘Mr. and Mrs. Munson are very religious, responsible, mature and friendly individuals. 
They are found physically healthy, mentally fit, spiritually and financially capable to
adopt Kevin Earl Moran a.k.a Aaron Joseph.

‘Mr. and Mrs. Munson have provided AJ with all his needs.  They unselfishly share their
time, love and attention to him. They are ready and willing to continuously provide him a
happy and secure home life.

‘Aaron Joseph, on the other hand, is growing normally under the care of the Munsons. 
He had comfortably settled in his new environment.  His stay with the Munsons during
the six months trial custody period has resulted to a close bond with Mr. and Mrs.
Munson and vice-versa.

‘We highly recommend to the Honorable Court that the adoption of Kevin Earl Moran
aka Aaron Joseph by Mr. and Mrs. Van Munson be legalized.’" [8]

It has been said all too often enough that the factual findings of the lower court, when
sufficiently buttressed by legal and evidential support, are accorded high respect and
are binding and conclusive upon this Court. [9] Accordingly, we fully uphold the propriety
of that portion of the order of the court below granting the petition for adoption.

The only legal issues that need to be resolved may then be synthesized mainly as
follows: (1) whether or not the court a quo erred in granting the prayer for the change of
the registered proper or given name of the minor adoptee embodied in the petition for
adoption; and (2) whether or not there was lawful ground for the change of name.

I.

Petitioner argues that a petition for adoption and a petition for change of name are two
special proceedings which, in substance and purpose, are different from and are not
related to each other, being respectively governed by distinct sets of law and rules. In
order to be entitled to both reliefs, namely, a decree of adoption and an authority to
change the given or proper name of the adoptee, the respective proceedings for each
must be instituted separately, and the substantive and procedural requirements therefor
under Articles 183 to 193 of the Family Code in relation to Rule 99 of the Rules of Court
for adoption, and Articles 364 to 380 of the Civil Code in relation to Rule 103 of the
Rules of Court for change of name, must correspondingly be complied with. [10]

A perusal of the records, according to petitioner, shows that only the laws and rules on
adoption have been observed, but not those for a petition for change of name.
[11]
 Petitioner further contends that what the law allows is the change of the surname of
the adoptee, as a matter of right, to conform with that of the adopter and as a natural
consequence of the adoption thus granted. If what is sought is the change of the
registered given or proper name, and since this would involve a substantial change of
one’s legal name, a petition for change of name under Rule 103 should accordingly be
instituted, with the substantive and adjective requisites therefor being conformably
satisfied.[12]

Private respondents, on the contrary, admittedly filed the petition for adoption with a
prayer for change of name predicated upon Section 5, Rule 2 which allows permissive
joinder of causes of action in order to avoid multiplicity of suits and in line with the policy
of discouraging protracted and vexatious litigations.  It is argued that there is no
prohibition in the Rules against the joinder of adoption and change of name being
pleaded as two separate but related causes of action in a single petition.  Further, the
conditions for permissive joinder of causes of action, i.e., jurisdiction of the court, proper
venue and joinder of parties, have been met. [13]

Corollarily, petitioner insists on strict adherence to the rule regarding change of name in
view of the natural interest of the State in maintaining a system of identification of its
citizens and in the orderly administration of justice. [14] Private respondents argue
otherwise and invoke a liberal construction and application of the Rules, the welfare and
interest of the adoptee being the primordial concern that should be addressed in the
instant proceeding.[15]
On this score, the trial court adopted a liberal stance in holding that "
"Furthermore, the change of name of the child from Kevin Earl Bartolome to  Aaron
Joseph should not be treated strictly, it appearing that no rights have been prejudiced
by said change of name.  The strict and meticulous observation of the requisites set
forth by Rule 103 of the Rules of Court is indubitably for the purpose of preventing
fraud, ensuring that neither State nor any third person should be prejudiced by the grant
of the petition for change of name under said rule, to a petitioner of discernment.

"The first name sought to be changed belongs to an infant barely over a year old. Kevin
Earl has not exercised full civil rights nor engaged in any contractual obligations. 
Neither can he nor petitioners on his behalf, be deemed to have any immoral, criminal
or illicit purpose for seeking said cha(n)ge of name.  It stands to reason that there is no
way that the state or any person may be so prejudiced by the action for change of Kevin
Earl’s first name.  In fact, to obviate any possible doubts on the intent of petitioners, the
prayer for change of name was caused to be published together with the petition for
adoption.[16]

Art. 189 of the Family Code enumerates in no uncertain terms the legal effects of
adoption:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname of
the adopters;

(2) The parental authority of the parents by nature over the adopted shall terminate and
be vested in the adopters, except that if the adopter is the spouse of the parent by
nature of the adopted, parental authority over the adopted shall be exercised jointly by
both spouses; and

(3) The adopted shall remain an intestate heir of his parents and other blood relatives."

Clearly, the law allows the adoptee, as a matter of right and obligation, to bear the
surname of the adopter, upon issuance of the decree of adoption. It is the change of the
adoptee’s surname to follow that of the adopter which is the natural and necessary
consequence of a grant of adoption and must specifically be contained in the order of
the court, in fact, even if not prayed for by petitioner.

However, the given or proper name, also known as the first or Christian name, of the

adoptee must remain as it was originally registered in the civil register.  The creation of
an adoptive relationship does not confer upon the adopter a license to change the
adoptee’s registered Christian or first name.  The automatic change thereof, premised
solely upon the adoption thus granted, is beyond the purview of a decree of adoption. 
Neither is it a mere incident in nor an adjunct of an adoption proceeding, such that a
prayer therefor furtively inserted in a petition for adoption, as in this case, cannot
properly be granted.

The name of the adoptee as recorded in the civil register should be used in the adoption
proceedings in order to vest the court with jurisdiction to hear and determine the same,
[17]
 and shall continue to be so used until the court orders otherwise.  Changing the given
or proper name of a person as recorded in the civil register is a substantial change in
one’s official or legal name and cannot be authorized without a judicial order.  The
purpose of the statutory procedure authorizing a change of name is simply to have,
wherever possible, a record of the change, and in keeping with the object of the statute,
a court to which the application is made should normally make its decree recording such
change)[18]

The official name of a person whose birth is registered in the civil register is the name
appearing therein, If a change in one’s name is desired, this can only be done by filing
and strictly complying with the substantive and procedural requirements for a special
proceeding for change of name under Rule 103 of the Rules of Court, wherein the
sufficiency of the reasons or grounds therefor can be threshed out and accordingly
determined.

Under Rule 103, a petition for change of name shall be filed in the regional trial court of
the province where the person desiring to change his name resides.  It shall be signed
and verified by the person desiring his name to be changed or by some other person in
his behalf and shall state that the petitioner has been a bona fide resident of the
province where the petition is filed for at least three years prior to such filing, the cause
for which the change of name is sought, and the name asked for.  An order for the date
and place of hearing shall be made and published, with the Solicitor General or the
proper provincial or city prosecutor appearing for the Government at such hearing.  It is
only upon satisfactory proof of the veracity of the allegations in the petition and the
reasonableness of the causes for the change of name that the court may adjudge that
the name be changed as prayed for in the petition, and shall furnish a copy of said
judgment to the civil registrar of the municipality concerned who shall forthwith enter the
same in the civil register.

A petition for change of name being a proceeding in rem, strict compliance with all the
requirements therefor is indispensable in order to vest the court with jurisdiction for its
adjudication.[19] It is an independent and discrete special proceeding, in and by itself,
governed by its own set of rules.  A fortiori, it cannot be granted by means of any other
proceeding.  To consider it as a mere incident or an offshoot of another special
proceeding would be to denigrate its role and significance as the appropriate remedy
available under our remedial law system.

The Solicitor General correctly points out the glaring defects of the subject petition
insofar as it seeks the change of name of the adoptee, [20] all of which taken together
cannot but lead to the conclusion that there was no petition sufficient in form and
substance for change of name as would rightfully deserve an order therefor.  It would be
procedurally erroneous to employ a petition for adoption to effect a change of name in
the absence of the corresponding petition for the latter relief at law.

Neither can the allowance of the subject petition, by any stretch of imagination and
liberality, be justified under the rule allowing permissive joinder of causes of action. 
Moreover, the reliance by private respondents on the pronouncements in Briz vs. Briz,
et al.[21] and Peyer vs. Martinez, et al.[22] is misplaced.

A restatement of the rule and jurisprudence on joinder of causes of action would,

therefore, appear to be called for.

By a joinder of actions, or more properly, a joinder of causes of action, is meant the

uniting of two or more demands or rights of action in one action, the statement of more
than one cause of action in a declaration. [23] It is the union of two or more civil causes of
action, each of which could be made the basis of a separate suit, in the same complaint,
declaration or petition.  A plaintiff may under certain circumstances join several distinct
demands, controversies or rights of action in one declaration, complaint or petition. [24]

As can easily be inferred from the above definitions, a party is generally not required to
join in one suit several distinct causes of action.  The joinder of separate causes of
action, where allowable, is permissive and not mandatory in the absence of a contrary
statutory provision, even though the causes of action arose from the same factual
setting and might under applicable joinder rules be joined. [25] Modern statutes and rules
governing joinders are intended to avoid a multiplicity of suits and to promote the
efficient administration of justice wherever this may be done without prejudice to the
rights of the litigants.  To achieve these ends, they are liberally construed. [26]

While joinder of causes of action is largely left to the option of a party litigant, Section 5,
Rule 2 of our present Rules allows causes of action to be joined in one complaint
conditioned upon the following requisites: (a) it will not violate the rules on jurisdiction,
venue and joinder of parties; and (b) the causes of action arise out of the same contract,
transaction or relation between the parties, or are for demands for money or are of the
same nature and character.

The objectives of the rule or provision are to avoid a multiplicity of suits where the same
parties and subject matter are to be dealt with by effecting in one action a complete
determination of all matters in controversy and litigation between the parties involving
one subject matter, and to expedite the disposition of litigation at minimum cost.  The
provision should be construed so as to avoid such multiplicity, where possible, without
prejudice to the rights of the litigants.  Being of a remedial nature, the provision should
be liberally construed, to the end that related controversies between the same parties
may be adjudicated at one time; and it should be made effectual as far as practicable,
[27]
 with the end in view of promoting the efficient administration of justice. [28]

The statutory intent behind the provisions on joinder of causes of action is to encourage
joinder of actions which could reasonably be said to involve kindred rights and wrongs,
although the courts have not succeeded in giving a standard definition of the terms used
or in developing a rule of universal application.  The dominant idea is to permit joinder of
causes of action, legal or equitable, where there is some substantial unity between
them.[29] While the rule allows a plaintiff to join as many separate claims as he may
have, there should nevertheless be some unity in the problem presented and a
common question of law and fact involved, subject always to the restriction thereon
regarding jurisdiction, venue and joinder of parties. Unlimited joinder is not authorized. [30]

Our rule on permissive joinder of causes of action, with the proviso subjecting it to the
correlative rules on jurisdiction, venue and joinder of parties[31] and requiring a
conceptual unity in the problems presented. effectively disallows unlimited joinder. [32]

Turning now to the present petition, while it is true that there is no express prohibition
against the joinder of a petition for adoption and for change of name, we do not believe
that there is any relation between these two petitions, nor are they of the same nature or
character, much less do they present any common question of fact or law, which
conjointly would warrant their joinder. In short, these petitions do not rightly meet the
underlying test of conceptual unity demanded to sanction their joinder under our Rules.

As keenly observed and correctly pointed out by the Solicitor General "
"A petition for adoption and a petition for change of name are two special proceedings
which, in substance and purpose, are different from each other.  Each action is
individually governed by particular sets of laws and rules.  These two proceedings
involve disparate issues.  In a petition for adoption, the court is called upon to evaluate
the proposed adopter’s fitness and qualifications to bring up and educate the adoptee
properly (Prasnick vs. Republic, 99 Phil. 665).  On the other hand, in a petition for
change of name, no family relations are created or affected for what is looked into is the
propriety and reasonableness of the grounds supporting the proposed change of name
(Yu vs. Republic, 17 SCRA 253).
xxx
                                                                   

"x x x Hence, the individual merits of each issue must be separately assessed and
determined for neither action is dependent on the other. [33]

"The rule on permissive joinder of causes of action is clear.  Joinder may be allowed
only if the actions show a commonality of relationship and conform to the rules on
jurisdiction, venue and joinder of parties (Section 5, Rule 2, Rules of Court).

"These conditions are wanting in the instant case.  As already pointed out in our Petition
(pp. 9-10), an action for adoption and an action for change of name are, in nature and
purpose, not related to each other and do not arise out of the same relation between the
parties.  While what is cogent in an adoption proceeding is the proposed adopter’s
fitness and qualifications to adopt, a petition for change of first name may only prosper
upon proof of reasonable and compelling grounds supporting the change requested. 
Fitness to adopt is not determinative of the sufficiency of reasons justifying a change of
name.  And similarly, a change of first name cannot be justified in view of a finding that
the proposed adopter was found fit to adopt.  There is just no way that the two actions
can connect and find a common ground, thus the joinder would be improper.

"In contending that adoption and change of name may be similarly sought in one
petition, private respondents rely upon Peyer vs. Martinez and Briz vs. Briz (p. 4,
Comment).

"We however submit that these citations are non sequitur. In both cases, the fact of
intimacy and relatedness of the issues is so pronounced.  In Peyer, an application to
pronounce the husband an absentee is obviously intertwined with the action to transfer
the management of conjugal assets to the wife.  In Briz, an action for declaration of
heirship was deemed a clear condition precedent to an action to recover the land
subject of partition and distribution proceeding.  However, the commonality of
relationship which stands out in both cases does not characterize the present action for
adoption and change of name.  Thus the rulings in Peyer and Briz find no place in the
case at bar.

"Besides, it is interesting to note that although a joinder of the two actions was, in Briz,
declared feasible, the Supreme Court did not indorse an automatic joinder and instead
remanded the matter for further proceedings, granting leave to amend the pleadings
and implead additional parties-defendants for a complete determination of the
controversy (Briz vs. Briz, 43 Phil. 763, 770). Such cautionary stance all the more
emphasizes that although joinders are generally accepted, they are not allowed where
the conditions are not satisfactorily met."[34]

It furthermore cannot be said that the proposed joinder in this instance will make for a
complete determination of all matters pertaining to the coetaneous grant of adoption
and change of name of the adoptee in one petition.  As already stated, the subject
petition was grossly insufficient in form and substance with respect to the prayer for
change of name of the adoptee.  The policy of avoiding multiplicity of suits which
underscores the rule on permissive joinder of causes of action is addressed to suits that
are intimately related and also present interwoven and dependent issues which can be
most expeditiously and comprehensively settled by having just one judicial proceeding,
but not to suits or actions whose subject matters or corresponding reliefs are unrelated
or diverse such that they are best taken up individually.

In Nabus vs. Court of Appeals, et al. ,[35] the Court clarified the rule on permissive joinder
of causes of action:

"The rule is clearly permissive. It does not constitute an obligatory rule, as there is no
positive provision of law or any rule of jurisprudence which compels a party to join all his
causes of action and bring them at one and the same time.  Under the present rules, the
provision is still that the plaintiff may, and not that he must, unite several causes of
action although they may be included in one of the classes specified.  This, therefore,
leaves it to the plaintiff’s option whether the causes of action shall be joined in the same
action, and no unfavorable inference may be drawn from his failure or refusal to do so. 
He may always file another action based on the remaining cause or causes of action
within the prescriptive period therefor." (Italics supplied.)

The situation presented in this case does not warrant exception from the Rules under
the policy of liberal construction thereof in general, and for change of name in particular,
as proposed by private respondents and adopted by respondent judge.  Liberal
construction of the Rules may be invoked in situations wherein there may be some
excusable formal deficiency or error in a pleading, provided that the same does not
subvert the essence of the proceeding and connotes at least a reasonable attempt at
compliance with the Rules. Utter disregard of the Rules cannot justly be rationalized by
harking on the policy of liberal construction.

The Court is not impervious to the frustration that litigants and lawyers alike would at
times encounter in procedural bureaucracy but imperative justice requires correct
observance of indispensable technicalities precisely designed to ensure its proper
dispensation.[36] It has long been recognized that strict compliance with the Rules of
Court is indispensable for the prevention of needless delays and for the orderly and
expeditious dispatch of judicial business. [37]

Procedural rules are not to be disdained as mere technicalities that may be ignored at
will to suit the convenience of a party.  Adjective law is important in ensuring the
effective enforcement of substantive rights through the orderly and speedy
administration of justice.  These rules are not intended to hamper litigants or complicate
litigation but, indeed to provide for a system under which a suitor may be heard in the
correct form and manner and at the prescribed time in a peaceful confrontation before a
judge whose authority they acknowledge.[38]

It cannot be overemphasized that procedural rules have their own wholesome rationale
in the orderly administration of justice. Justice has to be administered according to the
Rules in order to obviate arbitrariness, caprice, or whimsicality.[39] We have been
cautioned and reminded in Limpot vs. CA, et al. that:[40]
"Rules of procedure are intended to ensure the orderly administration of justice and the
protection of substantive rights in judicial and extrajudicial proceedings. It is a mistake to
propose that substantive law and adjective law are contradictory to each other or, as
has often been suggested, that enforcement of procedural rules should never be
permitted if it will result in prejudice to the substantive rights of the litigants.  This is not
exactly true; the concept is much misunderstood. As a matter of fact, the policy of the
courts is to give both kinds of law, as complementing each other, in the just and speedy
resolution of the dispute between the parties. Observance of both substantive rights is
equally guaranteed by due process, whatever the source of such rights, be it the
Constitution itself or only a statute or a rule of court.
xxx
                                                               
x x x(T)hey are required to be followed except only when for the most persuasive of
reasons they may be relaxed to relieve a litigant of an injustice not commensurate with
the degree of his thoughtlessness in not complying with the procedure prescribed.  x x
x. While it is true that a litigation is not a game of technicalities, this does not mean that
the Rules of Court may be ignored at will and at random to the prejudice of the orderly
presentation and assessment of the issues and their just resolution. Justice eschews
anarchy."

Only exceptionally in very extreme circumstances, when a rule deserts its proper office
as an aid to justice and becomes its great hindrance and chief enemy such that rigid
application thereof frustrates rather than promotes substantial justice, will technicalities
deserve scant consideration from the court. In such situations, the courts are
empowered, even obligated, to suspend the operation of the rules. [41]

We do not perceive any injustice that can possibly be visited upon private respondents
by following the reglementary procedure for the change in the proper or given name that
they seek for their adopted child. We are hard put to descry the indispensability of a
change of the first name of the adoptee to his welfare and benefit.  Nor is the said
change of such urgency that would justify an exemption from or a relaxation of the
Rules.  It is the State that stands to be prejudiced by a wanton disregard of Rule 103 in
this case, considering its natural interest in the methodical administration of justice and
in the efficacious maintenance of a system of identification of its citizens.

The danger wrought by non-observance, of the Rules is that the violation of or failure to
comply with the procedure prescribed by law prevents the proper determination of the
questions raised by the parties with respect to the merits of the case and makes it
necessary to decide, in the first place, such questions as relate to the form of the
action.  The rules and procedure laid down for the trial court and the adjudication of
cases are matters of public policy.[42] They are matters of public order and interest which
can in no wise be changed or regulated by agreements between or stipulations by
parties to an action for their singular convenience. [43]

In Garcia vs. Republic,[44] we are reminded of the definiteness in the application of the
Rules and the importance of seeking relief under the appropriate proceeding:
"x x x The procedure set by law should be delimited. One should not confuse or
misapply one procedure for another lest we create confusion in the application of the
proper remedy."

Respondent judge’s unmindful disregard of procedural tenets aimed at achieving

stability of procedure is to be deplored.  He exceeded his prerogatives by granting the
prayer for change of name, his order being unsupported by both statutory and case
law.  The novel but unwarranted manner in which he adjudicated this case may be
characterized as a regrettable abdication of the duty to uphold the teachings of remedial
law and jurisprudence.
II. Petitioner avers that it was error for the lower court to grant the petition for change of
name without citing or proving any lawful ground.  Indeed, the only justification
advanced for the change of name was the fact of the adoptee’s baptism under the name
Aaron Joseph and by which he has been known since he came to live with private
respondents.[45]

Private respondents, through a rather stilted ratiocination, assert that upon the grant of
adoption, the subject minor adoptee ipso facto assumed a new identification and
designation, that is, Aaron Joseph which was the name given to him during the
baptismal rites.  Allowing the change of his first name as prayed for in the petition, so
they claim, merely confirms the designation by which he is known and called in the
community in which he lives.  This largely echoes the opinion of the lower court that
naming the child Aaron Joseph was symbolic of naming him at birth, and that they, as
adoptive parents, have as much right as the natural parents to freely select the first
name of their adopted child.[46]

The lower court was sympathetic to herein private respondents and ruled on this point in
this manner:
"As adoptive parents, petitioner like other parents may freely select the first name given
to his/her child as it is only the surname to which the child is entitled that is fixed by law.
x x     x.
xxx
                                                                

"The given name of the minor was Kevin Earl, a name given for no other purpose than
for identification purposes in a birth certificate by a woman who had all intentions of
giving him away.  The naming of the minor as Aaron Joseph by petitioners upon the
grant of their petition for adoption is symbolic of naming the minor at birth." [47]

We cannot fathom any legal or jurisprudential basis for this attenuated ruling of
respondent judge and must thus set it aside.

It is necessary to reiterate in this discussion that a person’s name is a word or

combination of words by which he is known and identified, and distinguished from
others, for the convenience of the world at large in addressing him, or in speaking of or
dealing with him. It is both of personal as well as public interest that every person must
have a name.  The name of an individual has two parts:

"The given or proper name and the surname or family name.  The given or proper name
is that which is given to the individual at birth or at baptism, to distinguish him from other
individuals.  The surname or family name is that which identifies the family to which he
belongs and is continued from parent to child.  The given name may be freely selected
by the parents for the child, but the surname to which the child is entitled is fixed by law.
[48]
By Article 408 of the Civil Code, a person’s birth must be entered in the civil register. 
The official name of a person is that given him in the civil register.  That is his name in
the eyes of the law.[49] And once the name of a person is officially entered in the civil
register, Article 376 of the same Code seals that identity with its precise mandate: no
person can change his name or surname without judicial authority.  This statutory
restriction is premised on the interest of the State in names borne by individuals and
entities for purposes of identification.[50]

By reason thereof, the only way that the name of person can be changed legally is
through a petition for change of name under Rule 103 of the Rules of Court. [51] For
purposes of an application for change of name under Article 376 of the Civil Code and
correlatively implemented by Rule 103, the only name that may be changed is the true
or official name recorded in the civil register.  As earlier mentioned, a petition for change
of name being a proceeding in rem, impressed as it is with public interest, strict
compliance with all the requisites therefor in order to vest the court with jurisdiction is
essential, and failure therein renders the proceedings a nullity. [52]

It must likewise be stressed once again that a change of name is a privilege, not a
matter of right, addressed to the sound discretion of the court which has the duty to
consider carefully the consequences of a change of name and to deny the same unless
weighty reasons are shown.  Before a person can be authorized to change his name,
that is, his true or official name or that which appears in his birth certificate or is entered
in the civil register, he must show proper and reasonable cause or any convincing
reason which may justify such change.[53]

Jurisprudence has recognized, inter alia, the following grounds as being sufficient to

warrant a change of name: (a) when the name is ridiculous, dishonorable or extremely
difficult to write or pronounce; (b) when the change results as a legal consequence of
legitimation or adoption; (c) when the change will avoid confusion; (d) when one has
continuously used and been known since childhood by a Filipino name and was
unaware of alien parentage; (e) when the change is based on a sincere desire to adopt
a Filipino name to erase signs of former alienage, all in good faith and without prejudice
to anybody; and (f) when the surname causes embarrassment and there is no showing
that the desired change of name was for a fraudulent purpose or that the change of
name would prejudice public interest. [54]

Contrarily, a petition for change of name grounded on the fact that one was baptized by
another name, under which he has been known and which he used, has been denied
inasmuch as the use of baptismal names is not sanctioned. [55] For, in truth, baptism is
not a condition sine qua non to a change of name.[56] Neither does the fact that the
petitioner has been using a different name and has become known by it constitute
proper and reasonable cause to legally authorize a change of name. [57] A name given to
a person in the church records or elsewhere or by which he is known in the community -
when at variance with that entered in the civil register - is unofficial and cannot be
recognized as his real name.[58]
The instant petition does not sufficiently persuade us to depart from such rulings of long
accepted wisdom and applicability.  The only grounds offered to justify the change of
name prayed for was that the adopted child had been baptized as Aaron Joseph in
keeping with the religious faith of private respondents and that it was the name by which
he had been called and known by his family, relatives and friends from the time he
came to live with private respondents.[59] Apart from suffusing their pleadings with
sanctimonious entreaties for compassion, none of the justified grounds for a change of
name has been alleged or established by private respondents.  The legal bases chosen
by them to bolster their cause have long been struck down as unavailing for their
present purposes. For, to allow the adoptee herein to use his baptismal name, instead
of his name registered in the civil register, would be to countenance or permit that which
has always been frowned upon.[60]

The earlier quoted posturing of respondent judge, as expressed in his assailed order
that-
"(a)s adoptive parents, petitioners like other parents may freely select the first name
given to his/her child as it is only the surname to which the child is entitled that is fixed
by law x x x.

"The given name of the minor was Kevin Earl, a name given for no other purpose than
for identification purposes in a birth certificate by a woman who had all the intentions of
giving him away.  The naming of the minor as Aaron Joseph by petitioners upon grant of
their petition for adoption is symbolic of naming the minor at birth."

and supposedly based on the authority of Republic vs. Court of Appeals and Maximo
Wong, supra, painfully misapplies the ruling therein enunciated.

The factual backdrop of said case is not at all analogous to that of the case at bar.  In
the Wong case, therein petitioner Maximo Wong sought the change of his surname
which he acquired by virtue of the decree of adoption granted in favor of spouses
Hoong Wong and Concepcion Ty Wong.  Upon reaching the age of majority, he filed a
petition in court to change his surname from Wong to Alcala, which was his surname
prior to the adoption.  He adduced proof that the use of the surname Wong caused him
embarrassment and isolation from friends and relatives in view of a suggested Chinese
ancestry when in reality he is a Muslim Filipino residing in a Muslim community, thereby
hampering his business and social life, and that his surviving adoptive mother
consented to the change of name sought.  This Court granted the petition and regarded
the change of the surname as a mere incident in, rather than the object of, the adoption.

It should be noted that in said case the change of surname, not the given name, and the
legal consequences thereof in view of the adoption were at issue.  That it was sought in
a petition duly and precisely filed for that purpose with ample proof of the lawful grounds
therefor only serves to reinforce the imperative necessity of seeking relief under and
through the legally prescribed procedures.
Here, the Solicitor General meritoriously explained that:

"Respondent Judge failed to distinguish between a situation wherein a child is being

named for the first time by his natural parent, as against one wherein, a child is
previously conferred a first name by his natural parent, and such name is subsequently
sought to be disregarded and changed by the adoptive parents. In the first case, there is
no dispute that natural parents have the right to freely select and give the child’s first
name for every person, including juridical persons, must have a name (Tolentino, A.,
Commentaries and Jurisprudence on the Civil Code, Vol. 1, 1987 edition, page 721). In
the second case, however, as in the case at bar, private respondents, in their capacities
as adopters, cannot claim a right to name the minor adoptee after such right to name
the child had already been exercised by the natural parent. Adopting parents have not
been conferred such right by law, hence, the right asserted by private respondents
herein remains but illusory. Renaming the adoptee cannot be claimed as a right. It is
merely a privilege necessitating judicial consent upon compelling grounds. " [61]

The liberality with which this Court treats matters leading up to adoption insofar as it
carries out the beneficent purposes of adoption and ensures to the adopted child the
rights and privileges arising therefrom, ever mindful that the paramount consideration is
the overall benefit and interest of the adopted child, [62] should be understood in its
proper context.  It should not be misconstrued or misinterpreted to extend to inferences
beyond the contemplation of law and jurisprudence.

The practically unrestricted freedom of the natural parent to select the proper or given
name of the child presupposes that no other name for it has theretofore been entered in
the civil register.  Once such name is registered, regardless of the reasons for such
choice and even if it be solely for the purpose of identification, the same constitutes the
official name.  This effectively authenticates the identity of the person and must remain
unaltered save when, for the most compelling reasons shown in an appropriate
proceeding, its change may merit judicial approval.

While the right of a natural parent to name the child is recognized, guaranteed and
protected under the law, the so-called right of an adoptive parent to re-name an adopted
child by virtue or as a consequence of adoption, even for the most noble intentions and
moving supplications, is unheard of in law and consequently cannot be favorably
considered.  To repeat, the change of the surname of the adoptee as a result of the
adoption and to follow that of the adopter does not lawfully extend to or include the
proper or given name.  Furthermore, factual realities and legal consequences, rather
than sentimentality and symbolisms, are what are of concern to the Court.

Finally, it is understood that this decision does not entirely foreclose and is without
prejudice to, private respondents’ privilege to legally change the proper or given name
of their adopted child, provided that the same is exercised, this time, via a proper
petition for change of name. Of course, the grant thereof is conditioned on strict
compliance with all jurisdictional requirements and satisfactory proof of the compelling
reasons advanced therefor.

WHEREFORE, on the foregoing premises, the assailed order of respondent judge is

hereby MODIFIED.  The legally adopted child of private respondents shall henceforth
be officially known as Kevin Earl Munson y Andrade unless a change thereof is
hereafter effected in accordance with law. In all other respects, the order is AFFIRMED.

SO ORDERED.

Romero, Puno, and Mendoza, JJ., concur.

[ G.R. NO. 148311, March 31, 2005 ]

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, PETITIONER.

DECISION

SANDOVAL-GUTIERREZ, J.:

May an illegitimate child, upon adoption by her natural father, use the surname of her
natural mother as her middle name? This is the issue raised in the instant case.

The facts are undisputed.

On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition[1] to adopt

his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein,
among others, that Stephanie was born on June 26, 1994; [2] that her mother is Gemma
Astorga Garcia; that Stephanie has been using her mother’s middle name and surname;
and that he is now a widower and qualified to be her adopting parent. He prayed that
Stephanie’s middle name Astorga be changed to “Garcia,” her mother’s surname, and
that her surname “Garcia” be changed to “Catindig,” his surname.

On March 23, 2001,[3] the trial court rendered the assailed Decision granting the
adoption, thus:
“After a careful consideration of the evidence presented by the petitioner, and in the
absence of any opposition to the petition, this Court finds that the petitioner possesses
all the qualifications and none of the disqualification provided for by law as an adoptive
parent, and that as such he is qualified to maintain, care for and educate the child to be
adopted; that the grant of this petition would redound to the best interest and welfare of
the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioner’s
care and custody of the child since her birth up to the present constitute more than
enough compliance with the requirement of Article 35 of Presidential Decree No. 603.

WHEREFORE, finding the petition to be meritorious, the same is GRANTED.

Henceforth, Stephanie Nathy Astorga Garcia is hereby freed from all obligations of
obedience and maintenance with respect to her natural mother, and for civil purposes,
shall henceforth be the petitioner’s legitimate child and legal heir. Pursuant to Article
189 of the Family Code of the Philippines, the minor shall be known as STEPHANIE
NATHY CATINDIG.

Upon finality of this Decision, let the same be entered in the Local Civil Registrar
concerned pursuant to Rule 99 of the Rules of Court.

Let copy of this Decision be furnished the National Statistics Office for record purposes.

SO ORDERED.”[4]
On April 20, 2001, petitioner filed a motion for clarification and/or
reconsideration[5] praying that Stephanie should be allowed to use the surname of her
natural mother (GARCIA) as her middle name.

On May 28, 2001,[6] the trial court denied petitioner’s motion for reconsideration holding
that there is no law or jurisprudence allowing an adopted child to use the surname of his
biological mother as his middle name.

Hence, the present petition raising the issue of whether an illegitimate child may use the
surname of her mother as her middle name when she is subsequently adopted by her
natural father.

Petitioner submits that the trial court erred in depriving Stephanie of a middle name as a
consequence of adoption because: (1) there is no law prohibiting an adopted child from
having a middle name in case there is only one adopting parent; (2) it is customary for
every Filipino to have as middle name the surname of the mother; (3) the middle name
or initial is a part of the name of a person; (4) adoption is for the benefit and best
interest of the adopted child, hence, her right to bear a proper name should not be
violated; (5) permitting Stephanie to use the middle name “Garcia” (her mother’s
surname) avoids the stigma of her illegitimacy; and; (6) her continued use of “Garcia” as
her middle name is not opposed by either the Catindig or Garcia families.

The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner
that Stephanie should be permitted to use, as her middle name, the surname of her
natural mother for the following reasons:

First, it is necessary to preserve and maintain Stephanie’s filiation with her natural
mother because under Article 189 of the Family Code, she remains to be an intestate
heir of the latter.  Thus, to prevent any confusion and needless hardship in the future,
her relationship or proof of that relationship with her natural mother should be
maintained.

Second, there is no law expressly prohibiting Stephanie to use the surname of her
natural mother as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the
surname of the mother. This custom has been recognized by the Civil Code and Family
Code. In fact, the Family Law Committees agreed that “the initial or surname of the
mother should immediately precede the surname of the father so that the second name,
if any, will be before the    surname of the mother.”[7]

We find merit in the petition.

Use Of Surname Is Fixed By Law –

For all practical and legal purposes, a man's name is the designation by which he is
known and called in the community in which he lives and is best known.   It is defined as
the word or combination of words by which a person is distinguished from other
individuals and, also, as the label or appellation which he bears for the convenience of
the world at large addressing him, or in speaking of or dealing with him. [8] It is both of
personal as well as public interest that every person must have a name.

The name of an individual has two parts: (1) the given or proper name and (2)

the surname or family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The surname
or family name is that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the parents for the child,
but the surname to which the child is entitled is fixed by law. [9]

Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which regulate
the use of surname[10]    of an individual whatever may be his status in life, i.e., whether
he may be legitimate or illegitimate, an adopted child, a married woman or a previously
married woman, or a widow, thus:
“Art. 364. Legitimate and legitimated children shall principally use the surname of the
father.

Art. 365. An adopted child shall bear the surname of the adopter.

xxx

Art. 369. Children conceived before the decree annulling a voidable marriage shall
principally use the surname of the father.

Art.   370. A married woman may use:

(1) Her maiden first name and surname and add her husband's surname, or

(2) Her maiden first name and her husband's surname or

(3) Her husband's full name, but prefixing a word indicating that she is his wife, such as
‘Mrs.’
Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall
resume her maiden name and surname. If she is the innocent spouse, she may resume
her maiden    name and surname. However, she may choose to continue employing her
former husband's surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

Art. 372. When legal separation has been granted, the wife shall continue using her
name and surname employed before the legal separation.

Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.

Art. 374. In case of identity of names and surnames, the younger person shall be
obliged to use such additional name or surname as will avoid confusion.

Art. 375. In case of identity of names and surnames between ascendants and
descendants, the word ‘Junior’ can be used only by a son. Grandsons and other direct
male descendants shall either:

(1) Add a middle name or the mother's surname,

(2) Add the Roman numerals II, III, and so on.

x x x”
Law Is Silent As To The Use Of
Middle Name –

As correctly submitted by both parties, there is no law regulating the use of a middle
name. Even Article 176[11]    of the Family Code, as amended by Republic Act No. 9255,
otherwise known as “An Act Allowing Illegitimate Children To Use The Surname Of
Their Father,” is silent as to what middle name a child may use.

The middle name or the mother’s surname is only considered in Article 375(1), quoted
above, in case there is identity of names and surnames between ascendants and
descendants, in which case, the middle name or the    mother’s surname shall be
added.

Notably, the law is likewise silent as to what middle name an adoptee may use.
Article 365 of the Civil Code merely provides that “an adopted child shall bear the
surname of the adopter.” Also, Article 189 of the Family Code, enumerating the legal
effects of adoption, is likewise silent on the matter, thus:
"(1)   For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname of
the adopters;

x x x”
However, as correctly pointed out by the OSG, the members of the Civil Code and
Family Law Committees that drafted the Family Code recognized the Filipino custom
of adding the surname of the child’s mother as his middle name. In the Minutes of
the Joint Meeting of the Civil Code and Family Law Committees, the members approved
the suggestion that the initial or surname of the mother should immediately
precede the surname of the father, thus
“Justice Caguioa commented that there is a difference between the use by the wife of
the surname and that of the child because the father’s surname indicates the family
to which he belongs, for which reason he would insist on the use of the father’s
surname by the child but that, if he wants to, the child may also use the surname
of the mother.

Justice Puno posed the question: If the child chooses to use the surname of the mother,
how will his name be written? Justice Caguioa replied that it is up to him but that his
point is that it should be mandatory that the child uses the surname of the father
and permissive in the case of the surname of the mother.

Prof. Baviera remarked that Justice Caguioa’s point is covered by the present Article
364, which reads:

Legitimate and legitimated children shall principally use the surname of the father.

Justice Puno pointed out that many names change through no choice of the person
himself precisely because of this misunderstanding. He then cited the following
example: Alfonso Ponce Enrile’s correct surname is Ponce since the mother’s surname
is Enrile but everybody calls him Atty. Enrile. Justice Jose Gutierrez David’s family
name is Gutierrez and his mother’s surname is David but they all call him Justice David.

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

Justice Puno remarked that there is logic in the simplification suggested by Justice
Caguioa that the surname of the father should always be last because there are so
many traditions like the American tradition where they like to use their second given
name and the Latin    tradition, which is also followed by the Chinese wherein they even
include the Clan name.
xxx

Justice Puno suggested that they agree in principle that in the Chapter on the
Use of Surnames, they should say that initial or surname of the mother should
immediately precede the surname of the father so that the second name, if any,
will be before the surname of the mother. Prof. Balane added that this is really the
Filipino way. The Committee approved the suggestion.”[12] (Emphasis supplied)
In the case of an adopted child, the law provides that “the adopted shall bear the
surname of the adopters.”[13] Again, it is silent whether he can use a middle name.  What
it only expressly allows, as a matter of right and obligation, is for the adoptee to bear the
surname of the adopter, upon issuance of the decree of adoption. [14]

The Underlying Intent of

Adoption Is In Favor of the
Adopted Child –

Adoption is defined as the process of making a child, whether related or not to the
adopter, possess in general, the rights accorded to a legitimate child. [15] It is a juridical
act, a proceeding in rem which creates between two persons a relationship similar to
that which results from legitimate paternity and filiation. [16] The modern trend is to
consider adoption not merely as an act to establish a relationship of paternity and
filiation, but also as an act which endows the child with a legitimate status.[17] This was,
indeed, confirmed in 1989, when the Philippines, as a State Party to the Convention
of the Rights of the Child initiated by the United Nations, accepted the principle
that adoption is impressed with social and moral responsibility, and that its
underlying intent is geared to favor the adopted child.[18] Republic Act No. 8552,
otherwise known as the “Domestic Adoption Act of 1998,”[19] secures these rights and
privileges for the adopted.[20]

One of the effects of adoption is that the adopted is deemed to be a legitimate child of
the adopter for all intents and purposes pursuant to Article 189 [21] of the Family Code
and Section 17[22] Article V of RA 8552.[23]

Being a legitimate child by virtue of her adoption, it follows that Stephanie is

entitled to all the rights provided by law to a legitimate child without
discrimination of any kind, including the right to bear the surname of her father
and her mother, as discussed above. This is consistent with the intention of the
members of the Civil Code and Family Law Committees as earlier discussed. In fact, it
is a Filipino custom that the initial or surname of the mother should immediately precede
the surname of the father.

Additionally, as aptly stated by both parties, Stephanie’s continued use of her mother’s
surname (Garcia) as her middle name will maintain her maternal lineage. It is to be
noted that Article 189(3) of the Family Code and Section 18 [24], Article V of RA 8552 (law
on adoption) provide that the adoptee remains an intestate heir of his/her biological
parent.  Hence, Stephanie can well assert or claim her hereditary rights from her natural
mother in the future.

Moreover, records show that Stephanie and her mother are living together in the house
built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner
provides for all their needs. Stephanie is closely attached to both her mother and father.
She calls them “Mama” and “Papa”. Indeed, they are one normal happy family. Hence,
to allow Stephanie to use her mother’s surname as her middle name will not only
sustain her continued loving relationship with her mother but will also eliminate the
stigma of her illegitimacy.

Liberal Construction of
Adoption Statutes In Favor
Of Adoption –

It is a settled rule that adoption statutes, being humane and salutary, should be liberally
construed to carry out the beneficent purposes of adoption. [25] The interests and welfare
of the adopted child are of primary and paramount consideration, [26] hence, every
reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.[27]

Lastly, Art. 10 of the New Civil Code provides that:

“In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.”

This provision, according to the Code Commission, “is necessary so that it may tip the
scales in favor of right and justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which may apparently be authorized
by some way of interpreting the law.” [28]

Hence, since there is no law prohibiting an illegitimate child adopted by her natural

father, like Stephanie, to use, as middle name her mother’s surname, we find no reason
why she should not be allowed to do so.

WHEREFORE, the petition is GRANTED. The assailed Decision is partly MODIFIED in

the sense that Stephanie should be allowed to use her mother’s surname “GARCIA” as
her middle name.

Let the corresponding entry of her correct and complete name be entered in the decree
of adoption.

SO ORDERED.

Panganiban, (Chairman), Corona, Carpio-Morales, and Garcia, JJ., concur.

 [ G.R. No. 143989, July 14, 2003 ]
ISABELITA S. LAHOM, PETITIONER, VS. JOSE MELVIN SIBULO (PREVIOUSLY
REFERRED TO AS "DR. MELVIN S. LAHOM"), RESPONDENT.

DECISION

VITUG, J.:

The bliss of marriage and family would be to most less than complete without children.
The realization could have likely prodded the spouses Dr. Diosdado Lahom and
Isabelita Lahom to take into their care Isabelita's nephew Jose Melvin Sibulo and to
bring him up as their own. At the tender age of two, Jose Melvin enjoyed the warmth,
love and support of the couple who treated the child like their own. Indeed, for years, Dr.
and Mrs. Lahom fancied on legally adopting Jose Melvin. Finally, in 1971, the couple
decided to file a petition for adoption. On 05 May 1972, an order granting the petition
was issued that made all the more intense than before the feeling of affection of the
spouses for Melvin. In keeping with the court order, the Civil Registrar of Naga City
changed the name "Jose Melvin Sibulo" to "Jose Melvin Lahom."

A sad turn of events came many years later. Eventually, in December of 1999, Mrs.
Lahom commenced a petition to rescind the decree of adoption before the Regional
Trial Court (RTC), Branch 22, of Naga City. In her petition, she averred -
"7. That x x x despite the proddings and pleadings of said spouses, respondent refused
to change his surname from Sibulo to Lahom, to the frustrations of petitioner particularly
her husband until the latter died, and even before his death he had made known his
desire to revoke respondent's adoption, but was prevented by petitioner's supplication,
however with his further request upon petitioner to give to charity whatever properties or
interest may pertain to respondent in the future.
"x x x             x x x             x x x

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

"13. That herein petitioner being a widow, and living alone in this city with only her
household helps to attend to her, has yearned for the care and show of concern from a
son, but respondent remained indifferent and would only come to Naga to see her once
a year.

"14. That for the last three or four years, the medical check-up of petitioner in Manila
became more frequent in view of a leg ailment, and those were the times when
petitioner would need most the care and support from a love one, but respondent all the
more remained callous and utterly indifferent towards petitioner which is not expected of
a son.

"15. That herein respondent has recently been jealous of petitioner's nephews and
nieces whenever they would find time to visit her, respondent alleging that they were
only motivated by their desire for some material benefits from petitioner.

"16. That in view of respondent's insensible attitude resulting in a strained and

uncomfortable relationship between him and petitioner, the latter has suffered wounded
feelings, knowing that after all respondent's only motive to his adoption is his
expectancy of his alleged rights over the properties of herein petitioner and her late
husband, clearly shown by his recent filing of Civil Case No. 99-4463 for partition
against petitioner, thereby totally eroding her love and affection towards respondent,
rendering the decree of adoption, considering respondent to be the child of petitioner,
for all legal purposes, has been negated for which reason there is no more basis for its
existence, hence this petition for revocation." [1]
Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.)
No. 8552, also known as the Domestic Adoption Act, went into effect. The new statute
deleted from the law the right of adopters to rescind a decree of adoption.

Section 19 of Article VI of R.A. No. 8552 now reads:

"SEC. 19. Grounds for Rescission of Adoption. - Upon petition of the adoptee, with the
assistance of the Department if a minor or if over eighteen (18) years of age but is
incapacitated, as guardian/counsel, the adoption may be rescinded on any of the
following grounds committed by the adopter(s): (a) repeated physical and verbal
maltreatment by the adopter(s) despite having undergone counseling; (b) attempt on the
life of the adoptee; (c) sexual assault or violence; or (d) abandonment and failure to
comply with parental obligations.

"Adoption, being in the best interest of the child, shall not be subject to
rescission by the adopter(s). However, the adopter(s) may disinherit the adoptee
for causes provided in Article 919 of the Civil Code." (emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending principally (a) that the
trial court had no jurisdiction over the case and (b) that the petitioner had no cause of
action in view of the aforequoted provisions of R.A. No. 8552. Petitioner asseverated, by
way of opposition, that the proscription in R.A. No. 8552 should not retroactively
apply, i.e., to cases where the ground for rescission of the adoption vested under the
regime of then Article 348[2] of the Civil Code and Article 192[3] of the Family Code.

In an order, dated 28 April 2000, the trial court held thusly:

"On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A. No.
8369 confers jurisdiction to this Court, having been designated Family Court in A.M. No.
99-11-07 SC.

"On the matter of no cause of action, the test on the sufficiency of the facts alleged in
the complaint, is whether or not, admitting the facts alleged, the Court could render a
valid judgment in accordance with the prayer of said complaint (De Jesus, et al. vs.
Belarmino, et al., 95 Phil. 365).

"Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter to
rescind an adoption earlier granted under the Family Code. Conformably, on the face of
the petition, indeed there is lack of cause of action.

"Petitioner however, insists that her right to rescind long acquired under the provisions
of the Family Code should be respected. Assuming for the sake of argument, that
petitioner is entitled to rescind the adoption of respondent granted on May 5, 1972, said
right should have been exercised within the period allowed by the Rules. From the
averments in the petition, it appears clear that the legal grounds for the petition have
been discovered and known to petitioner for more than five (5) years, prior to the filing
of the instant petition on December 1, 1999, hence, the action if any, had already
prescribed. (Sec. 5, Rule 100 Revised Rules of Court)

"WHEREFORE, in view of the foregoing consideration, the petition is ordered

dismissed."[4]
Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court,
petitioner raises the following questions; viz:
1. May the subject adoption, decreed on 05 May 1972, still be revoked or rescinded
by an adopter after the effectivity of R.A. No. 8552?
2. In the affirmative, has the adopter's action prescribed?
A brief background on the law and its origins could provide some insights on the
subject. In ancient times, the Romans undertook adoption to assure male heirs in the
family.[5] The continuity of the adopter's family was the primary purpose of adoption and
all matters relating to it basically focused on the rights of the adopter. There was hardly
any mention about the rights of the adopted.[6] Countries, like Greece, France, Spain
and England, in an effort to preserve inheritance within the family, neither allowed nor
recognized adoption.[7] It was only much later when adoption was given an impetus in
law and still later when the welfare of the child became a paramount concern. [8] Spain
itself which previously disfavored adoption ultimately relented and accepted the Roman
law concept of adoption which, subsequently, was to find its way to the archipelago. The
Americans came and introduced their own ideas on adoption which, unlike most
countries in Europe, made the interests of the child an overriding consideration. [9] In the
early part of the century just passed, the rights of children invited universal attention; the
Geneva Declaration of Rights of the Child of 1924 and the Universal Declaration of
Human Rights of 1948,[10] followed by the United Nations Declarations of the Rights of
the Child,[11] were written instruments that would also protect and safeguard the rights of
adopted children. The Civil Code of the Philippines [12] of 1950 on adoption, later
modified by the Child and Youth Welfare Code [13] and then by the Family Code of the
Philippines,[14] gave immediate statutory acknowledgment to the rights of the adopted. In
1989, the United Nations initiated the Convention of the Rights of the Child. The
Philippines, a State Party to the Convention, accepted the principle that adoption was
impressed with social and moral responsibility, and that its underlying intent was geared
to favor the adopted child. R.A. No. 8552 secured these rights and privileges for the
adopted. Most importantly, it affirmed the legitimate status of the adopted child, not only
in his new family but also in the society as well. The new law withdrew the right of an
adopter to rescind the adoption decree and gave to the adopted child the sole right to
sever the legal ties created by adoption.

Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right
to annul the adoption decree, nor deprive the trial court of its jurisdiction to hear the
case, both being vested under the Civil Code and the Family Code, the laws then in
force.

The concept of "vested right" is a consequence of the constitutional guaranty of due

process[15] that expresses a present fixed interest which in right reason and natural
justice is protected against arbitrary state action; [16] it includes not only legal or equitable
title to the enforcement of a demand but also exemptions from new obligations created
after the right has become vested.[17] Rights are considered vested when the right to
enjoyment is a present interest,[18] absolute, unconditional, and perfect [19] or fixed and
irrefutable.

In Republic vs. Court of Appeals,[20] a petition to adopt Jason Condat was filed by
Zenaida C. Bobiles on 02 February 1988 when the Child and Youth Welfare Code
(Presidential Decree No. 603) allowed an adoption to be sought by either spouse
or both of them. After the trial court had rendered its decision and while the case was
still pending on appeal, the Family Code of the Philippines (Executive Order No.
209), mandating joint adoption by the husband and wife, took effect. Petitioner
Republic argued that the case should be dismissed for having been filed by Mrs.
Bobiles alone and without being joined by the husband. The Court concluded that
the jurisdiction of the court is determined by the statute in force at the time of the
commencement of the action. The petition to adopt Jason, having been filed with
the court at the time when P.D. No. 603 was still in effect, the right of Mrs. Bobiles to
file the petition, without being joined by her husband, according to the Court had
become vested. In Republic vs. Miller,[21] spouses Claude and Jumrus Miller, both
aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition to
formalize Michael's adoption having theretofore been taken into their care. At the time
the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree of
adoption and while on appeal before the Court of Appeals, the Family Code was
enacted into law on 08 August 1988 disqualifying aliens from adopting Filipino children.
The Republic then prayed for the withdrawal of the adoption decree. In discarding the
argument posed by the Republic, the Supreme Court ruled that the controversy
should be resolved in the light of the law governing at the time the petition was
filed.

It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action
to revoke the decree of adoption granted in 1975. By then, the new law, [22] had already
abrogated and repealed the right of an adopter under the Civil Code and the Family
Code to rescind a decree of adoption. Consistently with its earlier pronouncements, the
Court should now hold that the action for rescission of the adoption decree, having been
initiated by petitioner after R.A. No. 8552 had come into force, no longer could be
pursued.

Interestingly, even before the passage of the statute, an action to set aside the adoption
is subject to the five-year bar rule under Rule 100 [23] of the Rules of Court and that the
adopter would lose the right to revoke the adoption decree after the lapse of that period.
The exercise of the right within a prescriptive period is a condition that could not fulfill
the requirements of a vested right entitled to protection. It must also be acknowledged
that a person has no vested right in statutory privileges. [24] While adoption has often
been referred to in the context of a "right," the privilege to adopt is itself not naturally
innate or fundamental but rather a right merely created by statute. [25] It is a privilege that
is governed by the state's determination on what it may deem to be for the best interest
and welfare of the child.[26] Matters relating to adoption, including the withdrawal of the
right of an adopter to nullify the adoption decree, are subject to regulation by the State.
[27]
 Concomitantly, a right of action given by statute may be taken away at anytime
before it has been exercised.[28]

While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right
to rescind the adoption decree even in cases where the adoption might clearly turn out
to be undesirable, it remains, nevertheless, the bounden duty of the Court to apply the
law. Dura lex sed lex would be the hackneyed truism that those caught in the law have
to live with. It is still noteworthy, however, that an adopter, while barred from severing
the legal ties of adoption, can always for valid reasons cause the forfeiture of certain
benefits otherwise accruing to an undeserving child. For instance, upon the grounds
recognized by law, an adopter may deny to an adopted child his legitime and, by a will
and testament, may freely exclude him from having a share in the disposable portion of
his estate.

WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

[ G.R. No. L-19776, September 29, 1964 ]

CECILIO DE LA CRUZ AND EUSTAQUIA DEVIS DE LA CRUZ, PETITIONERS AND
APPELLANTS, VS. MANUEL JESUS DE LA CRUZ, RESPONDENT AND
APPELLEE.

DECISION

MAKALINTAL, J.;
This is an appeal from the order of the Court of First Instance of Pangasinan dismissing
the petition for revocation of the adoption of Manuel J. (Aquino) de la Cruz, filed by his
adoptive parents, in accordance with Article 848 of the Civil Code.
By judgment dated August 16, 1954 of the Court of First Instance of Ilocos Sur (Sp.
Proc. No. 1401) the minor Manuel J. Aquino was declared the legally adopted child of
the spouses Cecilio de la Cruz and Eustaquia Devis de la Cruz. Seven years later the
adopting parents filed in the Court of First Instance of Pangasinan [1] a petition to have
the decree of adoption revoked on the ground that the adopted minor had definitely
repudiated the adoption by open display of defiance, animosity, revulsion and
disobedience to petitioners and had for more than three years abandoned petitioners'
home by living with his natural mother, Felicidad Dasalla, in Sta. Maria, Ilocos Sur. A
special appearance was entered by counsel, for the minor with a motion to dismiss the
petition on the grounds that (1) the court lacked jurisdiction over the subject-matter
thereof; (2) the Court had not acquired jurisdiction over the person of the adopted minor;
(3) venue was improperly laid; and (4) the petition did not state facts sufficient to
constitute a cause of action.
The motion to dismiss was granted, the trial court stating that since the "initial
proceedings were totally had in the Court of First Instance of Ilocos Sur," the
"expediente in said Case No. 1401 is still, presumably, open for the herein petitioners to
come in and ask for the revocation of the decree of adoption." The Court added, by
implication, that it had no power to interfere with the judgment of another court of
coordinate jurisdiction.
The provisions of the Civil Code on revocation of adoption do not specify the court
where the proceedings should be filed. The Rules of Court designate the venue of a
proceeding for adoption, which is the place where the petitioner resides (Section 1, Rule
99), but is silent with respect to the venue of a proceeding for rescission
and revocation of adoption (Rule 100). It is clear that the two proceedings are separate
and distinct from each other. In the first what is determined is the propriety of
establishing the relationship of parent and child between two persons not so related by
nature. For that purpose the court inquires into the qualifications and disqualifications of
the adopter; the personal circumstances of the person to be adopted; the probable
value and character of his estate; and whether the adoption would be for his benefit. In
the other proceeding either the adopting parent or the adopted seeks to severe the
relationship previously established, and the inquiry refers to the truth of the grounds
upon which the revocation is sought.
Once the proper court has granted a petition for adoption and the decree has become
final the proceeding is terminated and closed. A subsequent petition for revocation of
the adoption is neither a continuation of nor an incident in the proceeding for adoption. It
is an entirely-new one, dependent on facts which have happened since the decree of
adoption. The venue of this new case, applying Rule 99 in a suppletory character, is
also the place of the residence of the petitioner. In the present instance petitioners
reside in Pangasinan, having moved there from their former residence in Ilocos Sur.
The doctrine relied upon by the lower court, to the effect that no court has the power to
interfere by injunction with the judgments or decrees of a court of coordinate jurisdiction,
is not here applicable. There is no such interference. The validity or effectiveness of the
decree of adoption issued by the Court of First Instance of Ilocos Sur is not in question.
It is not sought to be enjoined, or its execution restrained. What is sought is its
revocation because of circumstances subsequently supervening which, under the law,
render the continuation of the adoptive relationship unjustified and impractical.
We hold that venue was properly laid in the case; and with respect to the objection that
the court does not have jurisdiction over the adopted minor, we note that petitioners-
appellants filed a motion below for the appointment of the minor's natural mother,
Felicidad Dasalla, as his guardian ad litem, although the court did not think it necessary
to grant the same in view of its order of dismissal.
The order of dismissal is set aside and the case remanded for further proceedings.
Upon rendition of judgment, a copy thereof should be sent to the Court of First Instance
of Ilocos Sur to be filed with the record of the adoption proceeding, aside from the
service on the Civil Registrar concerned as required by Section 4 of Rule 100. Costs
against appellees.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala,
Bengzon, J.P., and Zaldivar, JJ., concur.

[ G. R. No. 33281, March 31, 1930 ]

CHIN AH FOO (ALIAS CHAN FOO WOO) AND YEE SHEE (ALIAS YEE SUI YENG),
WIDOW OF CHIN AH KIM, PETITIONERS, VS. PEDRO CONCEPCION, JUDGE OF
FIRST INSTANCE OF MANILA, AND LEE VOO, RESPONDENTS.

DECISION

MALCOLM, J.:

The question for decision in this certiorari proceeding concerns the power of a Judge of
First Instance, who has in effect acquitted a man charged with murder on the plea of
insanity, and who has ordered the confinement of the insane person in an asylum,
subsequently to permit the insane person to leave the asylum without the acquiescence
of the Director of Health. Otherwise stated, the factor determinative of the question has
to do with the effect, if any, of section 1048 of the Administrative Code on article 8 of the
Penal Code.

On November 15, 1927, one Chan Sam (alias Chin Ah Woo), was charged in the Court
of First Instance of Manila with the murder of Chin Ah Kim. Thereafter, the trial judge
rendered judgment declaring the accused not responsible for the crime, and dismissing
the case, but requiring the reclusion of the accused for treatment in San Lazaro
Hospital, in accordance with article 8 of the Penal Code, with tile admonition that the
accused be not permitted to leave the said institution without first obtaining the
permission of the court. In compliance with this order, Chan Sam was confined for
approximately two years in San Lazaro Hospital. During this period, efforts to obtain his
release were made induced by the desire of his wife and father-in-law to have him
proceed to Hongkong. Opposition to the allowance of the motions came from the wife
and children of the murdered man, who contended that Chan Sam was still insane, and
that he had made threats that if he ever obtained his liberty he would kill the wife and
the children of the deceased and probably other members of his own family who were
living in Hongkong. These various legal proceedings culminated in Doctors Domingo
and De los Angeles being delegated to examine and certify the mental condition of
Chan Sam, which they did. After this report had been submitted, counsel for the
oppositors challenged the jurisdiction of the court. However, the respondent judge
sustained the court's right to make an order in the premises and allowed Chan Sam to
leave the San Lazaro Hospital to be turned over to the attorney-in-fact of his wife so that
he might be taken to Hongkong to join his wife in that city.

Article 8 of the Penal Code, pursuant to which the trial judge purported to act in issuing
his order of release, provides that among those exempt from criminal liability are:
"1. An imbecile or lunatic, unless the latter has acted during the lucid interval.

"When the imbecile or lunatic has committed an act which the law defines as a grave
felony, the court shall order his confinement in one of the asylums established for
persons thus afflicted, which he shall not be permitted to leave without first obtaining the
permission of the same court."
Section 1048 of the Administrative Code, which, it is argued, has superseded or
supplemented article 8 of the Penal Code, provides as to the discharge of a patient from
custody from a hospital for the insane the following:
"When in the opinion of the Director of Health any patient in any Government hospital or
other place for the insane is temporarily or permanently cured, or may be released
without danger, he may discharge such patient, and shall notify the Judge of the Court
of First Instance who ordered the commitment, in case the patient is confined by order
of the court."
An examination of article 8, paragraph 1, of the Penal Code discloses that the
permission of the court who orders the, confinement of one accused of a grave felony in
an insane asylum is a prerequisite for obtaining release from the institution. The
respondent judge has based his action in this case on this provision of the law. On the
other hand, section 1048 of the Administrative Code grants to the Director of Health
authority to say when a patient may be discharged from an insane asylum. There is no
pretense that the Director of Health has exercised his Authority in this case, or that the
head of the Philippine Health Service has been asked to express his opinion.

Contrasting the two provisions of Philippine law which have been mentioned, it is self-
evident that for section 1048 of the Administrative Code to prevail exclusively it would
be necessary to find an implied repeal of a portion of article 8 of the Penal Code. But it
is a well-known rule of statutory construction that when there is no express repeal none
is presumed to be intended. The most reasonable supposition is that when the.
Legislature placed the provision, from which section 1048 of the Administrative Code
was derived, on the statute books, it did so without any consideration as to the effect of
the new law on article 8 of the Penal Code, It is likewise a canon of statutory
construction that when two portions of the law can be construed so that both can stand
together, this should be done. In this respect, we believe that the authority of the courts
can be sustained in cases where the courts take action, while the authority of the
Director of Health can be sustained in other cases not falling within the jurisdiction of the
courts. This latter construction is reinforced by that portion of section 1048 of the
Administrative Code which requires the Director of Health to notify the Judge of First
Instance who ordered the commitment, in case the patient is confined by order of the
court.

In 1916, the Director of Health raised this same question. He then took the view that
section 7 of Act No. 2122, now incorporated in the Administrative Code as section 1048,
applied to all cases of confinement of persons adjudged to be insane in any
Government hospital or other places for the insane, and that the entire discretion as to
the sanity of any patient whatever was vested by this section exclusively in the Director
of Health. The Attorney-General, who at that time was Honorable Ramon Avancena,
ruled against the Director of Health, saying that "the Legislature could not have intended
to vest in the Director of Health the power to release, without proper judicial authority,
any person confined by order of the court in an asylum pursuant to the provisions of
article 8 of the Penal Code."

In at least two cases, United States vs. Guendia ([1917], 37 Phil., 337), and People vs.
Bascos ([1922], 44 Phil, 204), this court has relied on article 8, paragraph 1, of the
Penal Code. The judgments in the cited cases concluded with this order: "The
defendant shall be kept in confinement in the San Lazaro Hospital, or such other
hospital for the insane as the Director of Health may direct, and shall not be permitted to
depart therefrom without the prior approval of the Court of First Instance of the Province
of Ilodlo (Pangasinan)."

Due to differences in statutory provisions, the American authorities on the question are
not very helpful. However, one case has been found where the facts were practically
identical with1 the ones before us, where the law is much the same as Philippine law,
and where the procedure which should be followed was outlined by the Supreme Court
of the State of Washington. We refer to the case of State vs. Snell ([1908], 49 Wash.,
177). In the decision in the cited case, the court, speaking through Justice Rudkin, said:
"On the 7th day of July, 1906, the relator, Chester Thompson, killed George Meade
Emory in the City of Seattle, and by reason thereof was informed against in the superior
court of King county for the crime of murder. A plea of not guilty was interposed, and the
place of trial was changed to the superior court of Pierce county. The relator was tried in
the latter court before the respondent as presiding judge, and the jury returned a verdict
of not guilty by reason of insanity. On the, 3d day of May, 1907, the respondent entered
an order reciting that the relator was then insane; that he had been acquitted of the
crime of murder by reason of insanity; that his discharge or going at large would be
manifestly dangerous to the peace and safety of the community; and committed him to
the county jail of Pierce county. It was further ordered that, on the 12th day of June,
1907, the relator should be taken from the county jail of Pierce county and transferred to
the state penitentiary at Walla Walla, to be there confined in the ward set apart for the
confinement, custody, and keeping of the criminal insane until the further order of the
court and until discharged therefrom by due process of law. The relator was committed
to the county jail and thereafter transferred to the insane ward of the penitentiary in
obedience to this order, and is now confined in the latter institution. On the 19th day of
February, 1908, he applied to the physician in charge of the criminal insane at the state
penitentiary for an examination of his mental condition and fitness to be at large, as
provided in section 6 of the act of February 21, 1907, entitled, 'An act relating to the
criminal insane, their trial, commitment, and custody.' Laws of 1907, page 33, After such
examination, the physician certified to the warden of the penitentiary that he had
reasonable cause to believe that the relator had become sane since his commitment,
and was a safe person to be at large. The warden thereupon granted the relator
permission to present a petition to the court that committed him, setting up the facts
leading to his commitment, and that he had become sane and mentally responsible, and
in such condition that he is a safe person to be at large, and praying for his discharge
from custody. A petition in due form was thereupon presented to the respondent judge,
after service thereof upon the prosecuting attorney of Pierce county, but the respondent
refused to set the matter down for hearing or to entertain jurisdiction of the proceeding, *
* *. Application was thereupon made to this court for a writ of mandamus, requiring the
respondent to set the petition down for hearing, and the case is now before us on the
return to the alternative writ.
*******

"We are of opinion, therefore, that the procedure adopted by the relator is in conformity
with the law, and the writ will issue as prayed."
The foregoing is our understanding of the law on the subject. The following represents
our deductions and conclusions. Article 8 of the Penal Code has not been impliedly
repealed by section 1048 of the Administrative Code. Article 8 of the Penal Code and
section 1048 of the Administrative Code can be construed so that both can stand
together. Considering article 8 of the Penal Code as in force and construing this article
and section 1048 of the Administrative Code, we think that the Attorney-General was
right in expressing the opinion that the Director of Health was without power to release,
without proper judicial authority, any person confined by order of the court in an asylum
pursuant to the provisions of article 8 of the Penal Code. We think also that the
converse proposition is equally tenable, and is that any person confined by order of the
court in an asylum in accordance with article 8 of the Penal Code cannot be discharged
from custody in an insane asylum until the views of the Director of Health have been
ascertained as to whether or not the person is temporarily or permanently cured or may
be released without danger. In other words, the powers of the courts and of the Director
of Health are complementary each with the other. As a practical observation, it may
further be said that it is well to adopt all reasonable precautions to ascertain if a person
confined in an asylum as insane should be permitted to leave the asylum, and this can
best be accomplished through the joint efforts of the courts and the Director of Health in
proper cases.

Various defenses were interposed by the respondents to the petition, but we have not
been impressed with any of them except the ones which go to the merits. After thorough
discussion, our view is that while the respondent Judge acted patiently and cautiously in
the matters which came before him, yet he exceeded his authority when he issued his
orders of December 26, 1929, and March 17, 1930, without first having before him the
opinion of the Director of Health.
The writ prayed for will issue and the temporary restraining order will be made
permanent, without costs.

[ UDK No. 14817, January 13, 2014 ]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF MINOR SHANG KO
VINGSON YU SHIRLY VINGSON @ SHIRLY VINGSON DEMAISIP, PETITIONER,
VS. JOVY CABCABAN, RESPONDENT.

DECISION

ABAD, J.:

Petitioner Shirly Vingson (Shirly) alleged that Shang Ko Vingson Yu (Shang Ko), [1] her
14-year-old daughter, ran away from home on September 23, 2011.  On November 2,
2011 Shirly went to the police station in Bacolod City upon receipt of information that
Shang Ko was in the custody of respondent Jovy Cabcaban (Cabcaban), a police officer
in that station.  Since Cabcaban refused to release Shang Ko to her, Shirly sought the
help of the National Bureau of Investigation (NBI) to rescue her child.  An NBI agent,
Arnel Pura (Pura), informed Shirly that Shang Ko was no longer with Cabcaban but was
staying with a private organization called Calvary Kids. Pura told her, however, that the
child was fine and had been attending school.

This prompted petitioner Shirly to file a petition for habeas corpus against respondent

Cabcaban and the unnamed officers of Calvary Kids before the Court of Appeals (CA)
rather than the Regional Trial Court of Bacolod City citing as reason several threats
against her life in that city.

In a Resolution dated December 18, 2012,[2] the CA resolved in CA-G.R. SP 07261 to

deny the petition for its failure to clearly allege who has custody of Shang Ko. 
According to the CA, habeas corpus may not be used as a means of obtaining evidence
on the whereabouts of a person or as a means of finding out who has specifically
abducted or caused the disappearance of such person. [3] The CA denied petitioner
Shirly’s motion for reconsideration on January 8, 2013, hence, this petition for review.

In her Comment,[4] respondent Cabcaban claimed that on September 28, 2011 police

officers found Shang Ko crying outside a church.  When queried, the latter refused to
give any information about herself.  Thus, they indorsed her case to the Bacolod City
Police Women and Children Protection Desk that Cabcaban headed.  After the initial
interview, Cabcaban referred Shang Ko to Balay Pasilungan, a temporary shelter for
abused women and children.

Respondent Cabcaban further claimed that on the next day, a social worker sat with the
minor who said that her mother Shirly had been abusive in treating her.  She narrated
that on September 27, 2011 Shirly instructed another daughter to give Shang Ko
P280.00 and take her to the pier to board a boat going to Iloilo City. [5] Shang Ko was
told to look for a job there and to never come back to Bacolod City.  Since she had
nowhere to go when she arrived in Iloilo City, Shang Ko decided to return to Bacolod
City with the money given her.  She went to her best friend’s house but was turned
away for fear of Shirly.  She called her sister so that she and her boyfriend could get her
but they, too, turned her down.[6]

Respondent Cabcaban also claimed that Shang Ko pleaded with the police and the
social worker not to return her to her mother.  As a result, the Bacolod City Police filed a
complaint[7] against petitioner Shirly for violation of Republic Act 7610 or the Special
Protection of Children Against Abuse, Exploitation, and Discrimination Act.  The police
sent notice to Shirly inviting her to a conference but she refused to receive such notice. 
Two days later, however, she came and spoke to Cabcaban, pointing out that Shang Ko
had been a difficult child with a tendency to steal.  From their conversation, Cabcaban
surmised that Shirly did not want to take her daughter back, having offered to pay for
her daily expenses at the shelter.

Respondent Cabcaban said that on October 29, 2011 she decided to turn over Shang
Ko to the Calvary Kids, a private organization that gave sanctuary and schooling to
abandoned and abused children. [8] On November 2, 2011 petitioner Shirly showed up at
the police station asking for her daughter.  Cabcaban told her that Shang Ko was in a
sanctuary for abandoned children and that the police officer had to first coordinate with
it before she can disclose where Shang Ko was.  But Shirly was adamant and
threatened her with a lawsuit.  Cabcaban claimed that Shang Ko’s father was a
Taiwanese and that Shirly wanted the child back to use her as leverage for getting
financial support from him.

Respondent Cabcaban further claimed that one year later, NBI agents led by Pura went
to the police station to verify Shirly’s complaint that Cabcaban had kidnapped Shang
Ko.  Cabcaban accompanied the NBI agents to Calvary Kids to talk to the institution’s
social worker, school principal, and director.  They provided the NBI agents with the
child’s original case study report[9] and told them that it was not in Shang Ko’s best
interest to return her to her mother who abused and maltreated her.  Shang Ko herself
told the NBI that she would rather stay at Calvary Kids because she was afraid of what
would happen to her if she returned home.[10] As proof, Shang Ko wrote a letter stating
that, contrary to her mother’s malicious insinuations, Cabcaban actually helped her
when she had nowhere to go after her family refused to take her back. [11]

Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus is available,
not only in cases of illegal confinement or detention by which any person is deprived of
his liberty, but also in cases involving the rightful custody over a minor. [12] The general
rule is that parents should have custody over their minor children.  But the State has the
right to intervene where the parents, rather than care for such children, treat them
cruelly and abusively, impairing their growth and well-being and leaving them emotional
scars that they carry throughout their lives unless they are liberated from such parents
and properly counseled.
Since this case presents factual issues and since the parties are all residents of
Bacolod City, it would be best that such issues be resolved by a Family Court in that
city.  Meantime, considering the presumption that the police authorities acted regularly
in placing Shang Ko in the custody of Calvary Kids, the Court believes that she should
remain there pending hearing and adjudication of this custody case.  Besides, she
herself has expressed preference to stay in that place.

WHEREFORE, the Court SETS ASIDE the Court of Appeals Resolutions in CA-G.R.

SP 07261 dated December 18, 2012 and January 8, 2013 and ORDERS this custody
case forwarded to the Family Court of Bacolod City for hearing and adjudication as the
evidence warrants. Meantime, until such court orders otherwise, let the minor Shang Ko
Vingson remain in the custody of Calvary Kids of Bacolod City.

Further, the Court ORDERS petitioner Shirly Vingson @ Shirly Vingson Demaisip to pay

the balance of the docket and other legal fees within 10 days from receipt of this
Resolution.

SO ORDERED.

[ G.R. No. 154598, August 16, 2004 ]

IN THE MATTER OF APPLICATION FOR THE ISSUANCE OF A WRIT OF HABEAS
CORPUS
RICHARD BRIAN THORNTON for and in behalf of the minor child SEQUEIRA
JENNIFER DELLE FRANCISCO THORNTON petitioner, vs. ADELFA FRANCISCO
THORNTON, respondent.

DECISION

CORONA, J.:

This is a petition to review, under Rule 45 of the Rules of Court, the July 5, 2002
resolution[1] of the Court of Appeals, Sixteenth Division, in CA G.R. SP No. 70501
dismissing the petition for habeas corpus on the grounds of lack of jurisdiction and lack
of substance. The dispositive portion[2] read:
WHEREFORE, the Court DISMISSES the petition for habeas corpus on the grounds
that: a) this Court has no jurisdiction over the subject matter of the petition; and b) the
petition is not sufficient in substance.
Petitioner, an American, and respondent, a Filipino, were married on August 28, 1998 in
the Catholic Evangelical Church at United Nations Avenue, Manila. A year later,
respondent gave birth to a baby girl whom they named Sequeira Jennifer Delle
Francisco Thornton.

However, after three years, respondent grew restless and bored as a plain housewife.
She wanted to return to her old job as a “guest relations officer” in a nightclub, with the
freedom to go out with her friends. In fact, whenever petitioner was out of the country,
respondent was also often out with her friends, leaving her daughter in the care of the
househelp.

Petitioner admonished respondent about her irresponsibility but she continued her
carefree ways. On December 7, 2001, respondent left the family home with her
daughter Sequiera without notifying her husband. She told the servants that she was
bringing Sequiera to Purok Marikit, Sta. Clara, Lamitan, Basilan Province.

Petitioner filed a petition for habeas corpus in the designated Family Court in Makati
City but this was dismissed, presumably because of the allegation that the child was in
Basilan. Petitioner then went to Basilan to ascertain the whereabouts of respondent and
their daughter. However, he did not find them there and the barangay office of Sta.
Clara, Lamitan, Basilan, issued a certification [3] that respondent was no longer residing
there.

Petitioner gave up his search when he got hold of respondent’s cellular phone bills
showing calls from different places such as Cavite, Nueva Ecija, Metro Manila and other
provinces. Petitioner then filed another petition for habeas corpus, this time in the Court
of Appeals which could issue a writ of habeas corpus enforceable in the entire country.

However, the petition was denied by the Court of Appeals on the ground that it did not
have jurisdiction over the case. It ruled that since RA 8369 (The Family Courts Act of
1997) gave family courts exclusive original jurisdiction over petitions for habeas corpus,
it impliedly repealed RA 7902 (An Act Expanding the Jurisdiction of the Court of
Appeals) and Batas Pambansa 129 (The Judiciary Reorganization Act of 1980):
Under Sec. 9 (1), BP 129 (1981) the Intermediate Appellate Court (now Court of
Appeals) has jurisdiction to issue a writ of habeas corpus whether or not in aid of its
appellate jurisdiction. This conferment of jurisdiction was re-stated in Sec. 1, RA 7902
(1995), an act expanding the jurisdiction of this Court. This jurisdiction finds its
procedural expression in Sec. 1, Rule 102 of the Rules of Court.

In 1997, RA 8369 otherwise known as Family Courts Act was enacted. It provides:
Sec. 5. Jurisdiction of Family Court. – The Family Courts shall have exclusive original
jurisdiction to hear and decide the following cases:
xxx xxx xxx

b. Petition for guardianship, custody of children, habeas corpus in relation to the latter.
The vital question is, did RA 8369 impliedly repeal BP 129 and RA 7902 insofar as the
jurisdiction of this Court to issue writ of habeas corpus in custody of minor cases is
concerned? The simple answer is, yes, it did, because there is no other meaning of the
word “exclusive” than to constitute the Family Court as the sole court which can issue
said writ. If a court other than the Family Court also possesses the same competence,
then the jurisdiction of the former is not exclusive but concurrent – and such an
interpretation is contrary to the simple and clear wording of RA 8369.
Petitioner argues that unless this Court assumes jurisdiction over a petition for habeas
corpus involving custody of minors, a respondent can easily evade the service of a writ
of habeas corpus on him or her by just moving out of the region over which the Regional
Trial Court issuing the writ has territorial jurisdiction. That may be so but then jurisdiction
is conferred by law. In the absence of a law conferring such jurisdiction in this Court, it
cannot exercise it even if it is demanded by expediency or necessity.

Whether RA 8369 is a good or unwise law is not within the authority of this Court – or
any court for that matter – to determine. The enactment of a law on jurisdiction is within
the exclusive domain of the legislature. When there is a perceived defect in the law, the
remedy is not to be sought form the courts but only from the legislature.
The only issue before us therefore is whether the Court of Appeals has jurisdiction to
issue writs of habeas corpus in cases involving custody of minors in the light of the
provision in RA 8369 giving family courts exclusive original jurisdiction over such
petitions.

In his comment, the Solicitor General points out that Section 20 of the Rule on Custody
of Minors and Writ of Habeas Corpus in Relation to Custody of Minors (A.M. No. 03-04-
04-SC, effective May 15, 2003) has rendered the issue moot. Section 20 of the rule
provides that a petition for habeas corpus may be filed in the Supreme Court, [4] Court of
Appeals, or with any of its members and, if so granted, the writ shall be enforceable
anywhere in the Philippines.[5]

The petition is granted.

The Court of Appeals should take cognizance of the case since there is nothing in RA
8369 that revoked its jurisdiction to issue writs of habeas corpus involving the custody of
minors.

The Court of Appeals opines that RA 8369 impliedly repealed RA 7902 and BP 129
since, by giving family courts exclusive jurisdiction over habeas corpus cases, the
lawmakers intended it to be the sole court which can issue writs of habeas corpus. To
the court a quo, the word “exclusive” apparently cannot be construed any other way.

We disagree with the CA’s reasoning because it will result in an iniquitous situation,
leaving individuals like petitioner without legal recourse in obtaining custody of their
children. Individuals who do not know the whereabouts of minors they are looking for
would be helpless since they cannot seek redress from family courts whose writs are
enforceable only in their respective territorial jurisdictions. Thus, if a minor is being
transferred from one place to another, which seems to be the case here, the petitioner
in a habeas corpus case will be left without legal remedy. This lack of recourse could
not have been the intention of the lawmakers when they passed the Family Courts Act
of 1997. As observed by the Solicitor General:
Under the Family Courts Act of 1997, the avowed policy of the State is to “protect the
rights and promote the welfare of children.” The creation of the Family Court is geared
towards addressing three major issues regarding children’s welfare cases, as
expressed by the legislators during the deliberations for the law. The legislative intent
behind giving Family Courts exclusive and original jurisdiction over such cases was to
avoid further clogging of regular court dockets, ensure greater sensitivity and
specialization in view of the nature of the case and the parties, as well as to guarantee
that the privacy of the children party to the case remains protected.
The primordial consideration is the welfare and best interests of the child. We rule
therefore that RA 8369 did not divest the Court of Appeals and the Supreme Court of
their jurisdiction over habeas corpus cases involving the custody of minors. Again, to
quote the Solicitor General:
To allow the Court of Appeals to exercise jurisdiction over the petition for habeas corpus
involving a minor child whose whereabouts are uncertain and transient will not result in
one of the situations that the legislature seeks to avoid. First, the welfare of the child is
paramount. Second, the ex parte nature of habeas corpus proceedings will not result in
disruption of the child’s privacy and emotional well-being; whereas to deprive the
appellate court of jurisdiction will result in the evil sought to be avoided by the
legislature: the child’s welfare and well being will be prejudiced.
This is not the first time that this Court construed the word “exclusive” as not foreclosing
resort to another jurisdiction. As correctly cited by the Solicitor General, in Floresca vs.
Philex Mining Corporation,[6] the heirs of miners killed in a work-related accident were
allowed to file suit in the regular courts even if, under the Workmen’s Compensation
Act, the Workmen’s Compensation Commissioner had exclusive jurisdiction over such
cases.

We agree with the observations of the Solicitor General that:

While Floresca involved a cause of action different from the case at bar. it supports
petitioner’s submission that the word “exclusive” in the Family Courts Act of 1997 may
not connote automatic foreclosure of the jurisdiction of other courts over habeas corpus
cases involving minors. In the same manner that the remedies in the Floresca case
were selective, the jurisdiction of the Court of Appeals and Family Court in the case at
bar is concurrent. The Family Court can issue writs of habeas corpus enforceable only
within its territorial jurisdiction. On the other hand, in cases where the territorial
jurisdiction for the enforcement of the writ cannot be determined with certainty, the
Court of Appeals can issue the same writ enforceable throughout the Philippines, as
provided in Sec. 2, Rule 102 of the Revised Rules of Court, thus:
The Writ of Habeas Corpus may be granted by the Supreme Court, or any member
thereof, on any day and at any time, or by the Court of Appeals or any member thereof
in the instances authorized by law, and if so granted it shall be enforceable anywhere in
the Philippines, and may be made returnable before the court or any member thereof, or
before a Court of First Instance, or any judge thereof for hearing and decision on the
merits. It may also be granted by a Court of First Instance, or a judge thereof, on any
day and at any time, and returnable before himself, enforceable only within his judicial
district. (Emphasis supplied)
In ruling that the Commissioner’s “exclusive” jurisdiction did not foreclose resort to the
regular courts for damages, this Court, in the same Floresca case, said that it was
merely applying and giving effect to the constitutional guarantees of social justice in the
1935 and 1973 Constitutions and implemented by the Civil Code. It also applied the
well-established rule that what is controlling is the spirit and intent, not the letter, of the
law:
“Idolatrous reverence” for the law sacrifices the human being. The spirit of the law
insures man’s survival and ennobles him. In the words of Shakespeare, “the letter of the
law killeth; its spirit giveth life.”

xxx xxx xxx

It is therefore patent that giving effect to the social justice guarantees of the
Constitution, as implemented by the provisions of the New Civil Code, is not an exercise
of the power of law-making, but is rendering obedience to the mandates of the
fundamental law and the implementing legislation aforementioned.
Language is rarely so free from ambiguity as to be incapable of being used in more than
one sense. Sometimes, what the legislature actually had in mind is not accurately
reflected in the language of a statute, and its literal interpretation may render it
meaningless, lead to absurdity, injustice or contradiction. [7] In the case at bar, a literal
interpretation of the word “exclusive” will result in grave injustice and negate the policy
“to protect the rights and promote the welfare of children” [8] under the Constitution and
the United Nations Convention on the Rights of the Child. This mandate must prevail
over legal technicalities and serve as the guiding principle in construing the provisions
of RA 8369.

Moreover, settled is the rule in statutory construction that implied repeals are not
favored:
The two laws must be absolutely incompatible, and a clear finding thereof must surface,
before the inference of implied repeal may be drawn. The rule is expressed in the
maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute
must be so interpreted and brought into accord with other laws as to form a uniform
system of jurisprudence. The fundament is that the legislature should be presumed to
have known the existing laws on the subject and not have enacted conflicting statutes.
Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.” [9]
The provisions of RA 8369 reveal no manifest intent to revoke the jurisdiction of the
Court of Appeals and Supreme Court to issue writs of habeas corpus relating to the
custody of minors. Further, it cannot be said that the provisions of RA 8369, RA 7092
and BP 129 are absolutely incompatible since RA 8369 does not prohibit the Court of
Appeals and the Supreme Court from issuing writs of habeas corpus in cases involving
the custody of minors. Thus, the provisions of RA 8369 must be read in harmony with
RA 7029 and BP 129 that family courts have concurrent jurisdiction with the Court of
Appeals and the Supreme Court in petitions for habeas corpus where the custody of
minors is at issue.

In any case, whatever uncertainty there was has been settled with the adoption of A.M.
No. 03-03-04-SC Re: Rule on Custody of Minors and Writ of Habeas Corpus in Relation
to Custody of Minors. Section 20 of the rule provides that:
Section 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas
corpus involving custody of minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court belongs.

xxx xxx xxx

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any
of its members and, if so granted, the writ shall be enforceable anywhere in the
Philippines. The writ may be made returnable to a Family Court or to any regular court
within the region where the petitioner resides or where the minor may be found for
hearing and decision on the merits. (Emphasis Ours)
From the foregoing, there is no doubt that the Court of Appeals and Supreme Court
have concurrent jurisdiction with family courts in habeas corpus cases where the
custody of minors is involved.

One final note. Requiring the serving officer to search for the child all over the country is
not an unreasonable availment of a remedy which the Court of Appeals cited as a
ground for dismissing the petition. As explained by the Solicitor General: [10]
That the serving officer will have to “search for the child all over the country” does not
represent an insurmountable or unreasonable obstacle, since such a task is no more
different from or difficult than the duty of the peace officer in effecting a warrant of
arrest, since the latter is likewise enforceable anywhere within the Philippines.
WHEREFORE, the petition is hereby GRANTED. The petition for habeas corpus in CA-
G.R.-SP-No. 70501 is hereby REINSTATED and REMANDED to the Court of Appeals,
Sixteenth Division.

SO ORDERED.

Panganiban, (Chairman), and Carpio-Morales, JJ., concur.

Sandoval-Gutierrez, J., on leave.

[ G.R. No. 182497, June 29, 2010 ]

NURHIDA JUHURI AMPATUAN, PETITIONER, VS. JUDGE VIRGILIO V.
MACARAIG, REGIONAL TRIAL COURT, MANILA, BRANCH 37, DIRECTOR
GENERAL AVELINO RAZON, JR., DIRECTOR GEARY BARIAS, PSSUPT. CO YEE
M. CO, JR. AND POLICE CHIEF INSPECTOR AGAPITO QUIMSON,
RESPONDENTS.

DECISION

PEREZ, J.:
Before this Court is a Petition for Certiorari under Rule 65[1] of the Rules of Court
assailing the Order dated 25 April 2008 of the Regional Trial Court (RTC) of Manila,
Branch 37, in Special Proceeding No. 08-119132 which denied the petition for Habeas
Corpus filed by herein Petitioner Nurhida Juhuri Ampatuan in behalf of her husband
Police Officer 1 Basser B. Ampatuan[2] (PO1 Ampatuan).

Petitioner alleged in her petition that her husband PO1 Ampatuan was assigned at
Sultan Kudarat Municipal Police Station.  On 14 April 2008, he was asked by his Chief
of Police to report to the Provincial Director of Shariff Kabunsuan, Superintendent
Esmael Pua Ali (Supt. Ali).  The latter brought PO1 Ampatuan to Superintendent Piang
Adam, Provincial Director of the Philippine National Police (PNP) Maguindanao.  PO1
Ampatuan was directed to stay at the Police Provincial Office of Maguindanao without
being informed of the cause of his restraint. The next day, 15 April 2008, PO1
Ampatuan was brought to the General Santos City Airport and was made to board a
Philippine Airlines plane bound for Manila. Upon landing at the Manila Domestic Airport,
PO1 Ampatuan was turned over to policemen of Manila and brought to Manila Mayor
Alfredo Lim by Police Director Geary Barias and General Roberto Rosales. A press
briefing was then conducted where it was announced that PO1 Ampatuan was arrested
for the killing of two Commission on Elections (COMELEC) Officials.  He was then
detained at the Police Jail in United Nations Avenue, Manila.  Thereafter, PO1
Ampatuan was brought to inquest Prosecutor Renato Gonzaga of the Office of the City
Prosecutor of Manila due to the alleged murder of Atty. Alioden D. Dalaig, head of the
Law Department of the COMELEC.  On 20 April 2008, PO1 Ampatuan was turned-over
to the Regional Headquarters Support Group in Camp Bagong Diwa, Taguig City.[3]

Petitioner continues that on 21 April 2008, Chief Inquest Prosecutor Nelson Salva
ordered the release for further investigation of PO1 Ampatuan. [4]  The Order was
approved by the City Prosecutor of Manila. But Police Senior Superintendent Co Yee
Co, Jr., and Police Chief Inspector Agapito Quimson refused to release PO1 Ampatuan.

This prompted Petitioner to file the petition for writ of habeas corpus in the RTC of
Manila, Branch 37.[5]

Private respondents had another version of the antecedent facts.  They narrated that at
around 7:08 o'clock in the evening of 10 November 2007, a sixty-four-year-old man,
later identified as Atty. Alioden D. Dalaig, Head of the COMELEC Legal Department,
was killed at the corner of M. H. Del Pilar and Pedro Gil Streets, Ermita, Manila. 
Investigation conducted by the Manila Police District (MPD) Homicide Section yielded
the identity of the male perpetrator as PO1 Ampatuan.  Consequently, PO1 Ampatuan
was commanded to the MPD District Director for proper disposition.  Likewise, inquest
proceedings were conducted by the Manila Prosecutor's Office.

On 18 April 2008, Police Senior Superintendent Atty. Clarence V. Guinto, rendered his
Pre-Charge Evaluation Report against PO1 Ampatuan, finding probable cause to
charge PO1 Ampatuan with Grave Misconduct (Murder) and recommending that said
PO1 Ampatuan be subjected to summary hearing.
On even date, a charge sheet for Grave Misconduct was executed against PO1
Ampatuan, the accusatory portion of which reads:
CHARGE SHEET

THE UNDERSIGNED NOMINAL COMPLAINANT hereby charges above-named

respondent of the administrative offense of Grave Misconduct (murder) pursuant to
Section 52 of R.A. 8551[6] in relation to NAPOLCOM Memorandum Circular 93-024,
committed as follows:

That on or about 7:08 in the evening of November 10, 2007, in M.H. Del Pilar and Pedro
Gil St., Ermita, Manila, above-named respondent while being an active member of the
PNP and within the jurisdiction of this office, armed with a cal .45 pistol, with intent to
kill, did then and there willfully, unlawfully and feloniously, shot Atty. Alioden D. Dalaig,
Jr., COMELEC official on the different parts of his body, thereby inflicting upon the latter
mortal gunshot wounds which directly cause (sic) his death.

Acts contrary to the existing PNP Laws rules and Regulations. [7]

Also, through a Memorandum dated 18 April 2008, Police Director General Avelino I.
Razon, Jr. directed the Regional Director of the National Capital Regional Police Office
(NCRPO) to place PO1 Ampatuan under restrictive custody, thus:
1. Reference: Memo from that Office dated April 15, 2008 re Arrest of PO1 Busser
Ampatuan, suspect in the killing of Atty. Alioden Dalaig and Atty. Wynee Asdala,
both COMELEC Legal Officers.
2. This pertains to the power of the Chief, PNP embodied in Section 52 of RA 8551,
to place police personnel under restrictive custody during the pendency of a
grave administrative case filed against him or even after the filing of a criminal
complaint, grave in nature, against such police personnel.
3. In this connection, you are hereby directed to place PO1 Busser Ampatuan,
suspect in the killing of Atty. Alioden Dalaig and Atty. Wynee Asdala, both
COMELEC Legal Officers, under your restrictive custody.
4. For strict compliance.[8]

On 19 April 2008, through a Memorandum Request dated 18 April 2008, respondent

Police Director Geary L. Barias requested for the creation of the Summary Hearing
Board to hear the case of PO1 Ampatuan.[9]

On 20 April 2008, Special Order No. 921 was issued by Police Director Edgardo E.
Acuסa, placing PO1 Ampatuan under restrictive custody of the Regional Director,
NCRPO, effective 19 April 2008.  Said Special Order No. 921, reads:
Restrictive Custody

PO1 Basser B. Ampatuan 128677, is placed under restrictive custody of the Regional
Director, NCRPO effective April 19, 2008. (Reference: Memorandum from CPNP dated
18 April 2008).
BY COMMAND OF POLICE DIRECTOR GENERAL RAZON: [10]

Meanwhile, on 21 April 2008, the City Prosecutor of Manila recommended that the case
against PO1 Ampatuan be set for further investigation and that the latter be released
from custody unless he is being held for other charges/legal grounds. [11]

Armed with the 21 April 2008 recommendation of the Manila City's Prosecution Office,
petitioner, who is the wife of PO1 Ampatuan, filed a Petition for the Issuance of a Writ
of Habeas Corpus before the RTC of Manila on 22 April 2008. The petition was
docketed as Special Proceeding No. 08-119132 and was raffled to Branch 37.

On 24 April 2008, finding the petition to be sufficient in form and substance, respondent
Judge Virgilio V. Macaraig ordered the issuance of a writ of habeas corpus commanding
therein respondents to produce the body of PO1 Ampatuan and directing said
respondents to show cause why they are withholding or restraining the liberty of PO1
Ampatuan.[12]

On 25 April 2008, the RTC resolved the Petition in its Order which reads:
Essentially, counsels for petitioner insists that PO1 Basser Ampatuan is being illegally
detained by the respondents despite the order of release of Chief Inquest Prosecutor
Nelson Salva dated April 21, 2008. They further claim that as of April 23, 2008, no
administrative case was filed against PO1 Ampatuan.

Respondents, while admitting that to date no criminal case was filed against PO1
Ampatuan, assert that the latter is under restrictive custody since he is facing an
administrative case for grave misconduct. They submitted to this Court the Pre-charge
Evaluation Report and Charge Sheet.  Further, in support of their position, respondents
cited the case of SPO2 Manalo, et al. v. Hon. Calderon, G.R. No. 178920 claiming
that habeas corpus will not lie for a PNP personnel under restrictive custody.  They
claim that this is authorized under Section 52, Par. 4 of R.A. 8551 authorizing the Chief
of PNP to place the PNP personnel under restrictive custody during the pendency of
administrative case for grave misconduct.

Petitioner countered that the administrative case filed against PO1 Ampatuan was ante-
dated to make it appear that there was such a case filed before April 23, 2008.

The function of habeas corpus is to determine the legality of one's detention, meaning, if
there is sufficient cause for deprivation or confinement and if there is none to discharge
him at once.  For habeas corpus to issue, the restraint of liberty must be in the nature of
illegal and involuntary deprivation of freedom which must be actual and effective, not
nominal or moral.

Granting arguendo that the administrative case was ante-dated, the Court cannot simply
ignore the filing of an administrative case filed against PO1 Ampatuan.  It cannot be
denied that the PNP has its own administrative disciplinary mechanism and as clearly
pointed out by the respondents, the Chief PNP is authorized to place PO1 Ampatuan
under restrictive custody pursuant to Section 52, Par. 4 of R.A. 8551.

The filing of the administrative case against PO1 Ampatuan is a process done by the
PNP and this Court has no authority to order the release of the subject police officer.

Lastly, anent the contention of the petitioner that the letter resignation of PO1 Ampatuan
has rendered the administrative case moot and academic, the same could not be
accepted by this Court.  It must be stressed that the resignation has not been acted (sic)
by the appropriate police officials of the PNP, and that the administrative case was filed
while PO1 Ampatuan is still in the active status of the PNP.

WHEREFORE, premises considered, the petition for habeas corpus is hereby

DISMISSED.[13]

Distressed, petitioner is now before this Court via a Petition for Certiorari under Rule 65

of the Rules of Court to question the validity of the RTC Order dated 25 April 2008.  The
issues are:
I. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT
FAILED TO CONSIDER THAT THE ARREST AND DETENTION OF PO1 BASSER B.
AMPATUAN WAS MADE WITHOUT ANY WARRANT AND THEREFORE, ILLEGAL;

II. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT

CONCEDED THE AUTHORITY OF RESPONDENT AVELINO RAZON, JR. UNDER
SEC. 52, PAR. 4, R.A. 8551 TO PLACE AMPATUAN UNDER RESTRICTIVE
CUSTODY FOR ADMINISTRATIVE PROCEEDINGS;

III. THE RESPONDENT COURT GRAVELY ABUSED ITS DISCRETION WHEN IT

SHIRKED FROM ITS JUDICIAL DUTY TO ORDER THE RELEASE OF PO1
AMPATUAN FROM THE CUSTODY OF RESPONDENTS MAMANG PULIS.[14]

Essentially, a writ of habeas corpus applies to all cases of illegal confinement or

detention by which any person is deprived of his liberty. [15]

Rule 102 of the 1997 Rules of Court sets forth the procedure to be followed in the
issuance of the writ.  The Rule provides:
RULE 102

HABEAS CORPUS

SECTION 1.  To what habeas corpus extends. - Except as otherwise expressly

provided by law, the writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto.

SEC 2.  Who may grant the writ. - The writ of habeas corpus may be granted by the
Supreme Court, or any member thereof, on any day and at any time, or by the Court of
Appeals or any member thereof in the instances authorized by law, and if so granted it
shall be enforceable anywhere in the Philippines, and may be made returnable before
the court or any member thereof, or before a Court of First Instance, or any judge
thereof for hearing and decision on the merits.  It may also be granted by a Court of
First Instance, or a judge thereof, on any day and at any time, and returnable before
himself, enforceable only within his judicial district.
xxxx

SEC. 4.  When writ not allowed or discharge authorized. - If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued
by a court or judge or by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the judgment, or make the
order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any informality or defect in the process,
judgment, or order.  Nor shall anything in this rule be held to authorize the discharge of
a person charged with or convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.

The objective of the writ is to determine whether the confinement or detention is valid or
lawful.  If it is, the writ cannot be issued.  What is to be inquired into is the legality of a
person's detention as of, at the earliest, the filing of the application for the writ of habeas
corpus, for even if the detention is at its inception illegal, it may, by reason of some
supervening events, such as the instances mentioned in Section 4 of Rule 102, be no
longer illegal at the time of the filing of the application. [16]

Plainly stated, the writ obtains immediate relief for those who have been illegally
confined or imprisoned without sufficient cause. The writ, however, should not be issued
when the custody over the person is by virtue of a judicial process or a valid judgment.
[17]

The most basic criterion for the issuance of the writ, therefore, is that the individual
seeking such relief is illegally deprived of his freedom of movement or placed under
some form of illegal restraint.  If an individual's liberty is restrained via some legal
process, the writ of habeas corpus is unavailing.[18]  Fundamentally, in order to justify the
grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an
illegal and involuntary deprivation of freedom of action. [19]

In general, the purpose of the writ of habeas corpus is to determine whether or not a
particular person is legally held.  A prime specification of an application for a writ
of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral,
illegal restraint of liberty.  The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relieve persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom.  A prime specification of an application
for a writ of habeas corpus is restraint of liberty.  The essential object and purpose of
the writ of habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint is
illegal.  Any restraint which will preclude freedom of action is sufficient. [20]

In passing upon a petition for habeas corpus, a court or judge must first inquire into
whether the petitioner is being restrained of his liberty.  If he is not, the writ will be
refused.  Inquiry into the cause of detention will proceed only where such restraint
exists.  If the alleged cause is thereafter found to be unlawful, then the writ should be
granted and the petitioner discharged.  Needless to state, if otherwise, again the writ will
be refused.[21]

While habeas corpus is a writ of right, it will not issue as a matter of course or as a mere
perfunctory operation on the filing of the petition. Judicial discretion is called for in its
issuance and it must be clear to the judge to whom the petition is presented that, prima
facie, the petitioner is entitled to the writ.  It is only if the court is satisfied that a person
is being unlawfully restrained of his liberty will the petition for habeas corpus be
granted.  If the respondents are not detaining or restraining the applicant or the person
in whose behalf the petition is filed, the petition should be dismissed. [22]

Petitioner contends that when PO1 Ampatuan was placed under the custody of
respondents on 20 April 2008, there was yet no administrative case filed against him. 
When the release order of Chief Inquest Prosecutor Nelson Salva was served upon
respondents on 21 April 2008, there was still no administrative case filed against PO1
Ampatuan.  She also argues that the arrest on 14 April 2008 of PO1 Ampatuan in
Shariff Kabunsuan was illegal because there was no warrant of arrest issued by any
judicial authority against him.

On the other hand, respondents, in their Comment [23] filed by the Office of the Solicitor
General, argue that the trial court correctly denied the subject petition.  Respondents
maintain that while the Office of the City Prosecutor of Manila had recommended that
PO1 Ampatuan be released from custody, said recommendation was made only insofar
as the criminal action for murder that was filed with the prosecution office is concerned
and is without prejudice to other legal grounds for which he may be held under custody. 
In the instant case, PO1 Ampatuan is also facing administrative charges for Grave
Misconduct.  They cited the case of Manalo v. Calderon,[24] where this Court held that a
petition for habeas corpus will be given due course only if it shows that petitioner is
being detained or restrained of his liberty unlawfully, but a restrictive custody and
monitoring of movements or whereabouts of police officers under investigation by their
superiors is not a form of illegal detention or restraint of liberty. [25]

The Solicitor General is correct.

In this case, PO1 Ampatuan has been placed under Restrictive Custody. Republic Act
No. 6975 (also known as the Department of Interior and Local Government Act of
1990), as amended by Republic Act No. 8551 (also known as the Philippine National
Police Reform and Reorganization Act of 1998), clearly provides that members of the
police force are subject to the administrative disciplinary machinery of the PNP. Section
41(b) of the said law enumerates the disciplinary actions, including restrictive
custody that may be imposed by duly designated supervisors and equivalent officers of
the PNP as a matter of internal discipline.  The pertinent provision of Republic Act No.
8551 reads:
Sec. 52 - x x x.

xxxx

4. The Chief of the PNP shall have the power to impose the disciplinary punishment of
dismissal from the service; suspension or forfeiture of salary; or any combination thereof
for a period not exceeding one hundred eighty (180) days.  Provided, further, That the
Chief of the PNP shall have the authority to place police personnel under
restrictive custody during the pendency of a grave administrative case filed
against him or even after the filing of a criminal complaint, grave in nature,
against such police personnel.  [Emphasis ours].

Given that PO1 Ampatuan has been placed under restrictive custody, such constitutes a
valid argument for his continued detention. This Court has held that a restrictive custody
and monitoring of movements or whereabouts of police officers under investigation by
their superiors is not a form of illegal detention or restraint of liberty. [26]

Restrictive custody is, at best, nominal restraint which is beyond the ambit
of habeas corpus.  It is neither actual nor effective restraint that would call for the grant
of the remedy prayed for.  It is a permissible precautionary measure to assure the PNP
authorities that the police officers concerned are always accounted for. [27]

Since the basis of PO1 Ampatuan's restrictive custody is the administrative case filed
against him, his remedy is within such administrative process.

We likewise note that PO1 Ampatuan has been under restrictive custody since 19 April
2008.  To date, the administrative case against him should have already been resolved
and the issue of his restrictive custody should have been rendered moot and academic,
in accordance with Section 55 of Republic Act No. 8551, which provides:
SEC. 55.  Section 47 of Republic Act No. 6975 is hereby amended to read as follows:

Sec. 47. Preventive Suspension Pending Criminal Case. - Upon the filing of a complaint
or information sufficient in form and substance against a member of the PNP for grave
felonies where the penalty imposed by law is six (6) years and one (1) day or more, the
court shall immediately suspend the accused from office for a period not exceeding
ninety (90) days from arraignment:  Provided, however, That if it can be shown by
evidence that the accused is harassing the complainant and/or witnesses, the court may
order the preventive suspension of the accused PNP member even if the charge is
punishable by a penalty lower than six (6) years and one (1) day: Provided, further, That
the preventive suspension shall not be more than ninety (90) days except if the delay in
the disposition of the case is due to the fault, negligence or petitions of the
respondent: Provided, finally, That such preventive suspension may be sooner lifted by
the court in the exigency of the service upon recommendation of the Chief, PNP.  Such
case shall be subject to continuous trial and shall be terminated within ninety (90)
days from arraignment of the accused. (Emphasis supplied.)

Having conceded that there is no grave abuse of discretion on the part of the trial court,
we have to dismiss the petition.

In sum, petitioner is unable to discharge the burden of showing that she is entitled to the
issuance of the writ prayed for in behalf of her husband, PO1 Ampatuan.  The petition
fails to show on its face that the latter is unlawfully deprived of his liberty guaranteed
and enshrined in the Constitution.

WHEREFORE, premises considered, the instant petition is DISMISSED for lack of

merit.

Costs against petitioner.

SO ORDERED.

Corona, C.J., (Chairperson), Velasco, Jr., Leonardo-De Castro, and Del Castillo, JJ.,

concur.

 G.R. No. 182855, June 05, 2013 ]

MR. ALEXANDER “LEX” ADONIS, REPRESENTED BY THE CENTER FOR MEDIA
FREEDOM AND RESPONSIBILITY (CMFR), THROUGH ITS EXECUTIVE
DIRECTOR, MRS. MELINDA QUINTOS-DE JESUS; AND THE NATIONAL UNION OF
JOURNALISTS OF THE PHILIPPINES (NUJP), THROUGH ITS CHAIRPERSON, MR.
JOSE TORRES, JR., PETITIONERS, VS. SUPERINTENDENT VENANCIO TESORO,
DIRECTOR, DAVAO PRISONS AND PENAL FARM, PANABO CITY, DIGOS, DAVAO
DEL NORTE, RESPONDENT.

RESOLUTION

REYES, J.:

This is a Petition for the Issuance of the Writ of Habeas Corpus[1] under Rule 102 of the
1997 Rules of Court filed by petitioner Alexander Adonis (Adonis), praying that the
Court directs respondent Superintendent Venancio Tesoro (respondent), Director of the
Davao Prisons and Penal Farm, to have the body of the former brought before this
Court and in the alternative, praying for the application of the Supreme Court
Administrative Circular No. 08-2008,[2] which imposes the penalty of a fine instead of
imprisonment in Criminal Case No. 48679-2001. [3]
Antecedent Facts

In Criminal Case No. 48679-2001, Adonis was convicted by the Regional Trial Court of
Davao City (RTC), Branch 17 for Libel, filed against him by then Representative
Prospero Nograles. He was sentenced to an indeterminate sentence of five (5) months
and one (1) day of arresto mayor maximum, as minimum penalty, to four (4) years, six
(6) months and one (1) day of prision correccional medium, as maximum penalty.[4] He
began serving his sentence at the Davao Prisons and Penal Farm on February 20,
2007.[5]

A second libel case, docketed as Criminal Case No. 48719-2001 was likewise filed
against Adonis by Jeanette L. Leuterio, pending before the RTC of Davao City, Branch
14.[6]

On December 11, 2007, the Board of Pardons and Parole (BPP) issued an order for the
Discharge on Parole of seven (7) inmates in various jails in the country, which included
Adonis. The said document was received by the City Parole and Probation Office of
Davao on May 2, 2008.[7]

Meanwhile, on January 25, 2008, this Court issued Administrative Circular No. 08-2008,
the subject of which is the “Guidelines in the Observance of a Rule of Preference in the
Imposition of Penalties in Libel Cases.”

In view of these developments, Adonis, on April 18, 2008 filed with the RTC Branch 17
a Motion to Reopen Case (With Leave of Court), [8] praying for his immediate release
from detention and for the modification of his sentence to payment of fine pursuant to
the said Circular.

On May 26, 2008, in Criminal Case No. 48719-2001 before the RTC Branch 14, Adonis
moved for his provisional release from detention. The motion was granted by Presiding
Judge George Omelio in open court and he was allowed to post bail in the amount of
P5,000.[9] Subsequently on even date and after Adonis filed a cash bond and an
undertaking,[10] the trial court issued an Order directing the Chief of Davao Penal Colony
“to release the accused Alexis Adonis unless he is being held for some other crimes or
offenses.”[11] On the same date, the said order was served to the respondent, [12] but the
release of Adonis was not effected.

On May 30, 2008, Adonis filed the instant petition for the issuance of a writ of habeas
corpus alleging that his liberty was restrained by the respondent for no valid reason.[13]

The respondent consequently filed his Comment. [14] Adonis then filed on October 27,
2008 an Urgent Motion to Resolve[15] and on November 7, 2008 a Manifestation and
Motion,[16] reiterating all his previous prayers.

On February 11, 2009, the Court received the letter from the respondent, informing the
Court that Adonis had been released from confinement on December 23, 2008 after
accepting the conditions set forth in his parole and with the advise to report to the City
Parole and Probation Officer of Davao. [17]
The Court’s Ruling
The petition is without merit.

The ultimate purpose of the writ of habeas corpus is to relieve a person from unlawful
restraint. The writ exists as a speedy and effectual remedy to relieve persons from
unlawful restraint and as an effective defense of personal freedom. It is issued only for
the lone purpose of obtaining relief for those illegally confined or imprisoned without
sufficient legal basis. It is not issued when the person is in custody because of a judicial
process or a valid judgment.[18]

Section 4, Rule 102 of the Revised Rules of Court provides when a writ must not be
allowed or discharge authorized, to wit:
SEC. 4. When writ not allowed or discharge authorized. - If it appears that the person
alleged to be restrained of his liberty is in the custody of an officer under process issued
by a court or judge or by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the judgment, or make the
order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed,
the person shall not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a
person charged with or convicted of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
In the instant case, Adonis was convicted for libel by the RTC Branch 17, in Criminal
Case No. 48679-2001. Since his detention was by virtue of a final judgment, he is not
entitled to the Writ of Habeas Corpus. He was serving his sentence when the BPP
granted him parole, along with six (6) others, on December 11, 2007. [19] While it is true
that a convict may be released from prison on parole when he had served the minimum
period of his sentence; the pendency of another criminal case, however, is a ground for
the disqualification of such convict from being released on parole. [20] Notably, at the time
he was granted the parole, the second libel case was pending before the RTC Branch
14.[21] In fact, even when the instant petition was filed, Criminal Case No. 48719-01 was
still pending. The issuance of the writ under such circumstance was, therefore,
proscribed. There was basis for the respondent to deny his immediate release at that
time.

Further, Adonis seeks the retroactive application of Administrative Circular No. 08-2008,
citing Fermin v. People,[22] where the Court preferred the imposition of the fine rather
than imprisonment under the circumstances of the case. Administrative Circular No. 08-
2008, was issued on January 25, 2008 and provides the “guidelines in the observance
of a rule of preference in the imposition of penalties in libel cases.” The pertinent
portions read as follows:
All courts and judges concerned should henceforth take note of the foregoing rule of
preference set by the Supreme Court on the matter of the imposition of penalties for the
crime of libel bearing in mind the following principles:
1. This Administrative Circular does not remove imprisonment as an alternative
penalty for the crime libel under Article 355 of the Revised Penal Code;
 2. The Judges concerned may, in the exercise of sound discretion, and taking into
consideration the peculiar circumstances of each case, determine whether the
imposition of a fine alone would best serve the interests of justice or whether
forbearing to impose imprisonment would depreciate the seriousness of the
offense, work violence on the social order, or otherwise be contrary to the
imperative of justice;
3. Should only a fine be imposed and the accused be unable to pay the fine, there
is no legal obstacle to the application of the Revised Penal Code provision on
subsidiary imprisonment.[23] (Emphasis ours)
A clear reading of the Administrative Circular No. 08-2008 and considering the
attendant circumstances of the case, the benefits of the administrative circular can not
be given retroactive effect in Criminal Case No. 48679-2001. It is too late in the day for
Adonis to raise such argument considering that Criminal Case No. 48679-2001 has
already become final and executory; and he had, in fact, already commenced serving
his sentence. Eventually, he was released from confinement on December 23, 2008
after accepting the conditions of the parole granted to him.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

EN BANC
[ G.R. No. 158802, November 17, 2004 ]
IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA (DETAINED
AT THE NEW BILIBID PRISONS, MUNTINLUPA CITY)

REYNALDO DE VILLA, PETITIONER, JUNE DE VILLA, PETITIONER-RELATOR, VS.

THE DIRECTOR, NEW BILIBID PRISONS, RESPONDENT.

DECISION

YNARES-SATIAGO, J.:

This is a petition for the issuance of a writ of habeas corpus under Rule 102 of the
Rules of Court.  Petitioner Reynaldo de Villa, joined by his son, petitioner-relator June
de Villa, seeks a two-fold relief: First, that respondent Director of Prisons justify the
basis for the imprisonment of petitioner Reynaldo de Villa; and second, that petitioner
be granted a new trial.[1] These reliefs are sought on the basis of purportedly
exculpatory evidence, gathered after performing deoxyribonucleic acid (DNA) testing on
samples allegedly collected from the petitioner and a child born to the victim of the rape.

By final judgment dated February 1, 2001, in People of the Philippines v. Reynaldo de

Villa,[2] we found petitioner guilty of the rape of Aileen Mendoza, his niece by affinity;
sentenced him to suffer the penalty of reclusión perpetua; and ordered him to pay the
offended party civil indemnity, moral damages, costs of the suit, and support for Leahlyn
Corales Mendoza, the putative child born of the rape.  Petitioner is currently serving his
sentence at the New Bilibid Prison, Muntinlupa City.

As summarized in our Decision dated February 1, 2001, Aileen Mendoza charged

petitioner Reynaldo de Villa with rape in an information dated January 9, 1995, filed with
the Regional Trial Court of Pasig City.  When arraigned on January 26, 1995, petitioner
entered a plea of “not guilty.”[3]

During the trial, the prosecution established that sometime in the third week of April
1994, at about 10:00 in the morning, Aileen Mendoza woke up in her family’s rented
room in Sagad, Pasig, Metro Manila, to find petitioner on top of her.  Aileen was then
aged 12 years and ten months.  She was unable to shout for help because petitioner
covered her mouth with a pillow and threatened to kill her.  Aileen could not do anything
but cry.  Petitioner succeeded in inserting his penis inside her vagina.  After making
thrusting motions with his body, petitioner ejaculated.  This encounter allegedly resulted
in Aileen’s pregnancy, which was noticed by her mother, Leonila Mendoza, sometime in
November 1994.  When confronted by her mother, Aileen revealed that petitioner raped
her.  Aileen’s parents then brought her to the Pasig Police Station, where they lodged a
criminal complaint against petitioner. [4]

Dr. Rosaline Cosidon, who examined Aileen, confirmed that she was eight months
pregnant and found in her hymen healed lacerations at the 5:00 and 8:00 positions.  On
December 19, 1994, Aileen gave birth to a baby girl whom she named Leahlyn
Mendoza.[5]

In his defense, petitioner alleged that, at the time of the alleged rape, he was already 67
years old.  Old age and sickness had rendered him incapable of having an erection.  He
further averred that Aileen’s family had been holding a grudge against him, which
accounted for the criminal charges.  Finally, he interposed the defense of alibi, claiming
that at the time of the incident, he was in his hometown of San Luis, Batangas. [6]

The trial court found petitioner guilty beyond reasonable doubt of the crime of qualified
rape, and sentenced him to death, to indemnify the victim in the amount of P50,000.00,
to pay the costs of the suit and to support the child, Leahlyn Mendoza. [7]

On automatic review,[8] we found that the date of birth of Aileen’s child was medically
consistent with the time of the rape.  Since it was never alleged that Aileen gave birth to
a full-term nine-month old baby, we gave credence to the prosecution’s contention that
she prematurely gave birth to an eight-month old baby by normal delivery. [9] Thus, we
affirmed petitioner’s conviction for rape, in a Decision the dispositive portion of which
reads:
WHEREFORE, the judgment of the Regional Trial Court, finding accused-appellant
guilty beyond reasonable doubt of the crime of rape, is AFFIRMED with the
MODIFICATIONS that he is sentenced to suffer the penalty of reclusión perpetua and
ordered to pay the offended party P50,000.00 as civil indemnity; P50,000.00 as moral
damages; costs of the suit and to provide support for the child Leahlyn Corales
Mendoza.
SO ORDERED.[10]
Three years after the promulgation of our Decision, we are once more faced with the
question of Reynaldo de Villa’s guilt or innocence.

Petitioner-relator in this case, June de Villa, is the son of Reynaldo.  He alleges that
during the trial of the case, he was unaware that there was a scientific test that could
determine once and for all if Reynaldo was the father of the victim’s child, Leahlyn. 
Petitioner-relator was only informed during the pendency of the automatic review of
petitioner’s case that DNA testing could resolve the issue of paternity. [11] This
information was apparently furnished by the Free Legal Assistance Group (FLAG) Anti-
Death Penalty Task Force, which took over as counsel for petitioner.

Thus, petitioner’s brief in People v. de Villa sought the conduct of a blood type test and
DNA test in order to determine the paternity of the child allegedly conceived as a result
of the rape.[12] This relief was implicitly denied in our Decision of February 21, 2001.

On March 16, 2001, Reynaldo de Villa filed a Motion for Partial Reconsideration of the
Decision, wherein he once more prayed that DNA tests be conducted. [13] The Motion
was denied with finality in a Resolution dated November 20, 2001. [14] Hence, the
Decision became final and executory on January 16, 2002. [15]

Petitioner-relator was undaunted by these challenges.  Having been informed that DNA
tests required a sample that could be extracted from saliva, petitioner-relator asked Billy
Joe de Villa, a grandson of Reynaldo de Villa and a classmate of Leahlyn Mendoza, to
ask Leahlyn to spit into a new, sterile cup. [16] Leahlyn readily agreed and did so.  Billy
Joe took the sample home and gave it to the petitioner-relator, who immediately labeled
the cup as “Container A.”

Petitioner-relator then gathered samples from four grandchildren of Reynaldo de Villa. 

These samples were placed in separate containers with distinguishing labels and
temporarily stored in a refrigerator prior to transport to the DNA Analysis Laboratory at
the National Science Research Institute (NSRI). [17] During transport, the containers
containing the saliva samples were kept on ice.

Petitioner-relator requested the NSRI to conduct DNA testing on the sample given by
Leahlyn Mendoza, those given by the grandchildren of Reynaldo de Villa, and that given
by Reynaldo de Villa himself.  The identities of the donors of the samples, save for the
sample given by Reynaldo de Villa, were not made known to the DNA Analysis
Laboratory.[18]

After testing, the DNA Laboratory rendered a preliminary report on March 21, 2003,
which showed that Reynaldo de Villa could not have sired any of the children whose
samples were tested, due to the absence of a match between the pertinent genetic
markers in petitioner’s sample and those of any of the other samples, including
Leahlyn’s.[19]
Hence, in the instant petition for habeas corpus, petitioner argues as follows:
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT PETITIONER DE
VILLA IS NOT THE FATHER OF LEAHLYN MENDOZA; HIS CONVICTION FOR
RAPE, BASED ON THE FACT THAT LEAHLYN WAS SIRED AS A RESULT OF THE
ALLEGED RAPE, CANNOT STAND AND MUST BE SET ASIDE.[20]

x x x                          x x x                             x x x

A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE IS PROPER AND

MAY BE ORDERED BY THIS COURT IN VIEW OF THE RESULTS OF THE DNA
TESTS CONDUCTED.[21]
Considering that the issues are inter-twined, they shall be discussed together.

In brief, petitioner relies upon the DNA evidence gathered subsequent to the trial in
order to re-litigate the factual issue of the paternity of the child Leahlyn Mendoza. 
Petitioner alleges that this issue is crucial, considering that his conviction in 2001 was
based on the factual finding that he sired the said child.  Since this paternity is now
conclusively disproved, he argues that the 2001 conviction must be overturned.

In essence, petitioner invokes the remedy of the writ of habeas corpus to collaterally

attack the 2001 Decision.  The ancillary remedy of a motion for new trial is resorted to
solely to allow the presentation of what is alleged to be newly-discovered evidence. 
This Court is thus tasked to determine, first, the propriety of the issuance of a writ
of habeas corpus to release an individual already convicted and serving sentence by
virtue of a final and executory judgment; and second, the propriety of granting a new
trial under the same factual scenario.

The extraordinary writ of habeas corpus has long been a haven of relief for those
seeking liberty from any unwarranted denial of freedom of movement.  Very broadly, the
writ applies “to all cases of illegal confinement or detention by which a person has been
deprived of his liberty, or by which the rightful custody of any person has been withheld
from the person entitled thereto”.[22]  Issuance of the writ necessitates that a person be
illegally deprived of his liberty.  In the celebrated case of Villavicencio v. Lukban,[23] we
stated that “[a]ny restraint which will preclude freedom of action is sufficient.” [24]

The most basic criterion for the issuance of the writ, therefore, is that the individual
seeking such relief be illegally deprived of his freedom of movement or placed under
some form of illegal restraint.  If an individual’s liberty is restrained via
some legal process, the writ of habeas corpus is unavailing. Concomitant to this
principle, the writ of habeas corpus cannot be used to directly assail a judgment
rendered by a competent court or tribunal which, having duly acquired jurisdiction, was
not deprived or ousted of this jurisdiction through some anomaly in the conduct of the
proceedings.

Thus, notwithstanding its historic function as the great writ of liberty, the writ
of habeas corpus has very limited availability as a post-conviction remedy. In the recent
case of Feria v. Court of Appeals,[25] we ruled that review of a judgment of conviction is
allowed in a petition for the issuance of the writ of habeas corpus only in very specific
instances,  such as when, as a consequence of a judicial proceeding, (a) there has
been a deprivation of a constitutional right resulting in the restraint of a person; (b) the
court had no jurisdiction to impose the sentence; or (c) an excessive penalty has been
imposed, as such sentence is void as to such excess. [26]

In this instance, petitioner invokes the writ of habeas corpus to assail a final judgment of
conviction, without, however, providing a legal ground on which to anchor his petition. 
In fine, petitioner alleges neither the deprivation of a constitutional right, the absence of
jurisdiction of the court imposing the sentence, or that an excessive penalty has been
imposed upon him.

In fine, petitioner invokes the remedy of habeas corpus in order to seek the review of
findings of fact long passed upon with finality.  This relief is far outside the scope
of habeas corpus proceedings.  In the early case of Abriol v. Homeres,[27] for example,
this Court stated the general rule that the writ of habeas corpus is not a writ of error,
and should not be thus used.  The writ of  habeas corpus, whereas permitting a
collateral challenge of the jurisdiction of the court or tribunal issuing the process or
judgment by which an individual is deprived of his liberty, cannot be distorted by
extending the inquiry to mere errors of trial courts acting squarely within their
jurisdiction.[28] The reason for this is explained very simply in the case of Velasco v.
Court of Appeals:[29] a habeas corpus petition reaches the body, but not the record of
the case.[30]  A record must be allowed to remain extant, and cannot be revised,
modified, altered or amended by the simple expedient of resort
to habeas corpus proceedings.

Clearly, mere errors of fact or law, which did not have the effect of depriving the trial
court of its jurisdiction over the case and the person of the defendant, are not correctible
in a petition for the issuance of the writ of habeas corpus; if at all, these errors must be
corrected on certiorari or on appeal, in the form and manner prescribed by law. [31] In the
past, this Court has disallowed the review of a court’s appreciation of the evidence in a
petition for the issuance of a writ of habeas corpus, as this is not the function of said
writ.[32] A survey of our decisions in habeas corpus cases demonstrates that, in general,
the writ of habeas corpus is a high prerogative writ which furnishes an extraordinary
remedy; it may thus be invoked only under extraordinary circumstances. [33] We have
been categorical in our pronouncements that the writ of habeas corpus is not to be used
as a substitute for another, more proper remedy.  Resort to the writ of habeas corpus is
available only in the limited instances when a judgment is rendered by a court or
tribunal devoid of jurisdiction.  If, for instance, it can be demonstrated that there was a
deprivation of a constitutional right, the writ can be granted even after an individual has
been meted a sentence by final judgment.

Thus, in the case of Chavez v. Court of Appeals,[34] the writ of habeas corpus was held

to be available where an accused was deprived of the constitutional right against self-
incrimination.  A defect so pronounced as the denial of an accused’s constitutional
rights results in the absence or loss of jurisdiction, and therefore invalidates the trial and
the consequent conviction of the accused.  That void judgment of conviction may be
challenged by collateral attack, which precisely is the function of habeas corpus.
[35]
 Later, in Gumabon v. Director of the Bureau of Prisons,[36] this Court ruled that, once
a deprivation of a constitutional right is shown to exist, the court that rendered the
judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy
to assail the legality of the detention. [37] Although in Feria v. Court of Appeals[38] this
Court was inclined to allow the presentation of new evidence in a petition for the
issuance of a writ of habeas corpus, this was an exceptional situation.  In that case, we
laid down the general rule, which states that the burden of proving illegal restraint by the
respondent rests on the petitioner who attacks such restraint.  Where the return is not
subject to exception, that is, where it sets forth a process which, on its face, shows good
ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove
new matter that tends to invalidate the apparent effect of such process. [39]

In the recent case of Calvan v. Court of Appeals,[40] we summarized the scope of review
allowable in a petition for the issuance of the writ of habeas corpus. We ruled that the
writ of habeas corpus, although not designed to interrupt the orderly administration of
justice, can be invoked by the attendance of a special circumstance that requires
immediate action.  In such situations, the inquiry on a writ of habeas corpus would be
addressed, not to errors committed by a court within its jurisdiction, but to the question
of whether the proceeding or judgment under which a person has been restrained is a
complete nullity.  The probe may thus proceed to check on the power and authority,
itself an equivalent test of jurisdiction, of the court or the judge to render the order that
so serves as the basis of imprisonment or detention.[41] It is the nullity of an assailed
judgment of conviction which makes it susceptible to collateral attack through the filing
of a petition for the issuance of the writ of habeas corpus.

Upon a perusal of the records not merely of this case but of People v. de Villa, we find
that the remedy of the writ of habeas corpus is unavailing.

First, the denial of a constitutional right has not been alleged by petitioner.  As such, this
Court is hard-pressed to find legal basis on which to anchor the grant of a writ
of habeas corpus.  Much as this Court sympathizes with petitioner’s plea, a careful
scrutiny of the records does not reveal any constitutional right of which the petitioner
was unduly deprived.

We are aware that other jurisdictions have seen fit to grant the writ of habeas corpus in
order to test claims that a defendant was denied effective aid of counsel. [42] In this
instance, we note that the record is replete with errors committed by counsel, and it can
be alleged that the petitioner was, at trial, denied the effective aid of counsel.  The
United States Supreme Court requires a defendant alleging incompetent counsel to
show that the attorney’s performance was deficient under a reasonable standard, and
additionally to show that the outcome of the trial would have been different with
competent counsel.[43] The purpose of the right to effective assistance of counsel is to
ensure that the defendant receives a fair trial. [44]

The U.S. Supreme Court asserts that in judging any claim of ineffective assistance of
counsel, one must examine whether counsel’s conduct undermined the proper
functioning of the adversarial process to such an extent that the trial did not produce a
fair and just result.[45] The proper measure of attorney performance is “reasonable”
under the prevailing professional norms, and the defendant must show that the
representation received fell below the objective standard of reasonableness. [46] For the
petition to succeed, the strong presumption that the counsel’s conduct falls within the
wide range or reasonable professional assistance must be overcome. [47]

In the case at bar, it appears that in the middle of the appeal, the petitioner’s counsel of
record, a certain Atty. Alfonso G. Salvador, suddenly and inexplicably withdrew his
appearance as counsel, giving the sole explanation that he was “leaving for the United
States for an indefinite period of time by virtue of a petition filed in his favor.” [48] In the
face of this abandonment, petitioner made an impassioned plea that his lawyer be
prevented from this withdrawal in a handwritten “Urgent Motion for Reconsideration and
Opposition of Counsel’s Withdrawal of Appearance with Leave of Court” received by
this Court on September 14, 1999.[49] Petitioner alleged that his counsel’s withdrawal is
an “untimely and heartbreaking event”, considering that he had placed “all [his] trust and
confidence on [his counsel’s] unquestionable integrity and dignity.” [50]

While we are sympathetic to petitioner’s plight, we do not, however, find that there was
such negligence committed by his earlier counsel so as to amount to a denial of a
constitutional right.  There is likewise no showing that the proceedings were tainted with
any other jurisdictional defect.

In fine, we find that petitioner invokes the remedy of the petition for a writ
of habeas corpus to seek a re-examination of the records of People v. de Villa, without
asserting any legal grounds therefor.  For all intents and purposes, petitioner seeks a
reevaluation of the evidentiary basis for his conviction.  We are being asked to
reexamine the weight and sufficiency of the evidence in this case, not on its own, but in
light of the new DNA evidence that the petitioner seeks to present to this Court.  This
relief is outside the scope of a habeas corpus petition.  The petition
for habeas corpus must, therefore, fail.

Coupled with the prayer for the issuance of a writ of habeas corpus, petitioner seeks a
new trial to re-litigate the issue of the paternity of the child Leahlyn Mendoza.

It must be stressed that the issue of Leahlyn Mendoza’s paternity is not central to the
issue of petitioner’s guilt or innocence.  The rape of the victim Aileen Mendoza is an
entirely different question, separate and distinct from the question of the father of her
child.  Recently, in the case of People v. Alberio,[51] we ruled that the fact or not of the
victim’s pregnancy and resultant childbirth are irrelevant in determining whether or not
she was raped.  Pregnancy is not an essential element of the crime of rape.  Whether
the child which the victim bore was fathered by the purported rapist, or by some
unknown individual, is of no moment in determining an individual’s guilt.

In the instant case, however, we note that the grant of child support to Leahlyn
Mendoza indicates that our Decision was based, at least in small measure, on the
victim’s claim that the petitioner fathered her child.  This claim was given credence by
the trial court, and, as a finding of fact, was affirmed by this Court on automatic review.

The fact of the child’s paternity is now in issue, centrally relevant to the civil award of
child support.  It is only tangentially related to the issue of petitioner’s guilt.  However, if
it can be conclusively determined that the petitioner did not sire Leahlyn Mendoza, this
may cast the shadow of reasonable doubt, and allow the acquittal of the petitioner on
this basis.

Be that as it may, it appears that the petitioner once more relies upon erroneous legal
grounds in resorting to the remedy of a motion for new trial.  A motion for new trial,
under the Revised Rules of Criminal Procedure, is available only for a limited period of
time, and for very limited grounds.  Under Section 1, Rule 121, of the Revised Rules of
Criminal Procedure, a motion for new trial may be filed at any time before a judgment of
conviction becomes final, that is, within fifteen (15) days from its promulgation or notice. 
Upon finality of the judgment, therefore, a motion for new trial is no longer an available
remedy.  Section 2 of Rule 121 enumerates the grounds for a new trial:
SEC. 2. Grounds for a new trial.—The court shall grant a new trial on any of the
following grounds:

(a) That errors of law or irregularities prejudicial to the substantial rights of the accused
have been committed during the trial;

(b) That new and material evidence has been discovered which the accused could not
with reasonable diligence have discovered and produced at the trial and which if
introduced and admitted would probably change the judgment.
In the case at bar, petitioner anchors his plea on the basis of purportedly “newly-
discovered evidence”, i.e., the DNA test subsequently conducted, allegedly excluding
petitioner from the child purportedly fathered as a result of the rape.

The decision sought to be reviewed in this petition for the issuance of a writ
of habeas corpus has long attained finality, and entry of judgment was made as far
back as January 16, 2002.  Moreover, upon an examination of the evidence presented
by the petitioner, we do not find that the DNA evidence falls within the statutory or
jurisprudential definition of “newly- discovered evidence”.

A motion for new trial based on newly-discovered evidence may be granted only if the
following requisites are met: (a) that the evidence was discovered after trial; (b) that said
evidence could not have been discovered and produced at the trial even with the
exercise of reasonable diligence; (c) that it is material, not merely cumulative,
corroborative or impeaching; and (d) that the evidence is of such weight that that, if
admitted, it would probably change the judgment. [52]  It is essential that the offering party
exercised reasonable diligence in seeking to locate the evidence before or during trial
but nonetheless failed to secure it. [53]

In this instance, although the DNA evidence was undoubtedly discovered after the trial,
we nonetheless find that it does not meet the criteria for “newly-discovered evidence”
that would merit a new trial.  Such evidence disproving paternity could have been
discovered and produced at trial with the exercise of reasonable diligence.

Petitioner-relator’s claim that he was “unaware” of the existence of DNA testing until the
trial was concluded carries no weight with this Court.  Lack of knowledge of the
existence of DNA testing speaks of negligence, either on the part of petitioner, or on the
part of petitioner’s counsel.  In either instance, however, this negligence is binding upon
petitioner.  It is a settled rule that a party cannot blame his counsel for negligence when
he himself was guilty of neglect.[54] A client is bound by the acts of his counsel, including
the latter’s mistakes and negligence. [55] It is likewise settled that relief will not be granted
to a party who seeks to be relieved from the effects of the judgment when the loss of the
remedy at law was due to his own negligence, or to a mistaken mode of procedure. [56]

Even with all of the compelling and persuasive scientific evidence presented by
petitioner and his counsel, we are not convinced that Reynaldo de Villa is entitled to
outright acquittal.  As correctly pointed out by the Solicitor General, even if it is
conclusively proven that Reynaldo de Villa is not the father of Leahlyn Mendoza, his
conviction could, in theory, still stand, with Aileen Mendoza’s testimony and positive
identification as its bases.[57] The Solicitor General reiterates, and correctly so, that the
pregnancy of the victim has never been an element of the crime of rape. [58] Therefore,
the DNA evidence has failed to conclusively prove to this Court that Reynaldo de Villa
should be discharged.  Although petitioner claims that conviction was based solely on a
finding of paternity of the child Leahlyn, this is not the case.  Our conviction was based
on the clear and convincing testimonial evidence of the victim, which, given credence by
the trial court, was affirmed on appeal.

WHEREFORE, in view of the foregoing, the instant petition for habeas corpus and new

trial is DISMISSED for lack of merit.

No costs.

SO ORDERED.

[ G.R. No. 210636, July 28, 2014 ]

MA. HAZELINA A. TUJAN-MILITANTE IN BEHALF OF THE MINOR CRISELDA M.
CADA, PETITIONER, VS. RAQUEL M. CADA-DEAPERA, RESPONDENT.

DECISION

VELASCO JR., J.:

Nature of the Case

Before Us is a petition for review on certiorari under Rule 45 of the Rules of Court with
prayer for injunctive relief seeking the reversal of the Court of Appeals (CA) Decision[1]
dated May 17, 2013 as well as its Resolution dated December 27, 2013in CA-G.R. SP
No. 123759.In the main, petitioner questions the jurisdiction of the Regional Trial Court,
Branch 130 in Caloocan City (RTC-Caloocan) to hear and decide a special civil action
for habeas corpus in relation to the custody of a minor residing in Quezon City.

The Facts

On March 24, 2011, respondent Raquel M. Cada-Deapera filed before the RTC-
Caloocan a verified petition for writ of habeas corpus, docketed as Special Civil Action
Case No. C-4344. In the said petition, respondent demanded the immediate issuance of
the special writ directing petitioner Ma. Hazelina Tujan-Militanteto produce before the
court respondent’s biological daughter, minor Criselda M. Cada (Criselda), and to return
to her the custody over the child. Additionally, respondent indicated that petitioner has
three (3) known addresses where she can be served with summons and other court
processes, to wit: (1) 24 Bangkal St., Amparo Village, Novaliches, Caloocan City; (2)
118B K9 Street, Kamias, Quezon City; and (3) her office at the Ombudsman-Office of
the Special Prosecutor, 5th Floor, Sandiganbayan, Centennial Building, Commonwealth
Avenue cor. Batasan Road, Quezon City.[2]

The next day, on March 25, 2011, the RTC-Caloocan issued a writ of habeas corpus
ordering petitioner to bring the child to court on March 28, 2011. Despite diligent efforts
and several attempts, however, the Sheriff was unsuccessful in personally serving
petitioner copies of the habeas corpus petition and of the writ. Instead, on March 29,
2011, the Sheriff left copies of the court processes at petitioner’s Caloocan residence,
as witnessed by respondent’s counsel and barangay officials.[3] Nevertheless,
petitioner failed to appear at the scheduled hearings before the RTC-Caloocan.

Meanwhile, on March 31, 2011, petitioner filed a Petition for Guardianship over the
person of Criselda before the RTC, Branch 89 in Quezon City (RTC-Quezon City).
Respondent filed a Motion to Dismiss the petition for guardianship on the ground of litis
pendentia, among others. Thereafter, or on June 3, 2011, respondent filed a criminal
case for kidnapping before the Office of the City Prosecutor – Quezon City against
petitioner and her counsel.

On July 12, 2011, the RTC-Quezon City granted respondent’s motion and dismissed the
guardianship case due to the pendency of the habeas corpus petition before RTC-
Caloocan.[4] The fallo of the Order reads:

WHEREFORE, in view of the foregoing, the subject motion is hereby GRANTED.

Accordingly, the case is hereby DISMISSED.

SO ORDERED.[5]
Then, on August 4, 2011, Raquel moved for the ex parte issuance of an alias writ of
habeas corpus before the RTC-Caloocan, which was granted by the trial court on
August 8, 2011. On even date, the court directed the Sheriff to serve the alias writ upon
petitioner at the Office of the Assistant City Prosecutor of Quezon City on August 10,
2011.[6] In compliance, the Sheriff served petitioner the August 8, 2011 Order as well
as the Alias Writ during the preliminary investigation of the kidnapping case.[7]

Following this development, petitioner, by way of special appearance, moved for the
quashal of the writ and prayed before the RTC Caloocan for the dismissal of the habeas
corpus petition,[8] claiming, among others, that she was not personally served with
summons. Thus, as argued by petitioner, jurisdiction over her and Criselda’s person
was not acquired by the RTC-Caloocan.

Ruling of the Trial Court

On January 20, 2012, the RTC-Caloocan issued an Order denying petitioner’s omnibus
motion, citing Saulo v. Brig. Gen. Cruz,[9]where the Court held that a writ of habeas
corpus, being an extraordinary process requiring immediate proceeding and action,
plays a role somewhat comparable to a summons in ordinary civil actions, in that, by
service of said writ, the Court acquires jurisdiction over the person of the respondent, as
petitioner herein.[10]

Moreover,personal service, the RTC said, does not necessarily require that service be
made exclusively at petitioner’s given address, for service may be made elsewhere or
wherever she may be found for as long as she was handed a copy of the court process
in person by anyone authorized by law.Since the sheriff was able to personally serve
petitioner a copy of the writ, albeit in Quezon City, the RTC-Caloocan validly acquired
jurisdiction over her person.[11] The dispositive portion of the Order reads:

WHEREFORE, premises considered, the Very Urgent Motion (Motion to Quash Alias
Writ; Motion to Dismiss) filed by respondent Ma. Hazelina Tujan-Militante dated August
11, 2011 is hereby DENIED for lack of merit.

In the meantime, respondent Ma. Hazelina Tujan-Militante is hereby directed to appear

and bring Criselda Martinez Cada before this Court on February 10, 2012 at 8:30
o’clock in the morning.

SO ORDERED.[12]

Aggrieved, petitioner, via certiorari to the CA, assailed the issued Order.

Ruling of the Court of Appeals

Over a year later, the CA,in the challenged Decision dated May 17, 2013,[13] dismissed
the petition for certiorari in the following wise:
WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The Regional
Trial Court, Branch 130 of Caloocan City is DIRECTED to proceed with due dispatch in
Spec. Proc. Case No. C-4344 for Habeas Corpus, giving utmost consideration to the
best interest of the now nearly 14-year old child.

SO ORDERED.[14]

In so ruling, the CA held that jurisdiction was properly laid when respondent filed the
habeas corpus petition before the designated Family Court in Caloocan City.[15] It also
relied on the certification issued by the punong barangay of Brgy. 179, Caloocan City,
stating that petitioner is a bona fide resident thereof, as well as the medical certificate
issued by Criselda’s doctor on April 1, 2011, indicating that her address is “Amparo
Village, KC.”[16] Anent the RTC-Caloocan’s jurisdiction, the appellate court ruled that
service of summons is not required under Section 20 of A.M. No. 03-04-04-SC,
otherwise known as the Rules on Custody of Minors and Habeas Corpus in Relation to
Custody of Minors. According to the CA, the rules on summons contemplated in
ordinary civil actions have no place in petitions for the issuance of a writ of habeas
corpus, it being a special proceeding.[17]

Petitioner sought reconsideration of the above Decision but the same was denied by the
CA in its December 27, 2013 Resolution.

Hence, this Petition.

The Issues

At the core of this controversy is the issue of whether or not the RTC-Caloocan has
jurisdiction over the habeas corpus petition filed by respondent and, assuming arguendo
it does, whether or not it validly acquired jurisdiction over petitioner and the person of
Criselda. Likewise pivotal is the enforceability of the writ issued by RTC-Caloocan in
Quezon City where petitioner was served a copy thereof.

The Court’s Ruling

The petition lacks merit. The RTC-Caloocan correctly took cognizance of the habeas
corpus petition. Subsequently, it acquired jurisdiction over petitioner when the latter was
served with a copy of the writ in Quezon City.

The RTC-Caloocan has jurisdiction

over the habeas corpus proceeding

Arguing that the RTC-Caloocan lacked jurisdiction over the case, petitioner relies on
Section 3of A.M. No. 03-04-04-SC and maintains that the habeas corpus petition should
have been filed before the family court that has jurisdiction over her place of residence
or that of the minor or wherever the minor may be found.[18] As to respondent, she
asserts, among others, that the applicable rule is not Section 3 but Section 20 of A.M.
No. 03-04-04-SC.[19]

We find for respondent.

In the case at bar, what respondent filed was a petition for the issuance of a writ of
habeas corpus under Section 20 of A.M. No. 03-04-04-SC and Rule 102 of the Rules of
Court.[20]As provided:

Section 20. Petition for writ of habeas corpus. - A verified petition for a writ of habeas
corpus involving custody of minors shall be filed with the Family Court. The writ shall be
enforceable within its judicial region to which the Family Court belongs.

However, the petition may be filed with the regular court in the absence of the presiding
judge of the Family Court, provided, however, that the regular court shall refer the case
to the Family Court as soon as its presiding judge returns to duty.

The petition may also be filed with the appropriate regular courts in places where there
are no Family Courts.

The writ issued by the Family Court or the regular court shall be enforceable in the
judicial region where they belong.

The petition may likewise be filed with the Supreme Court, Court of Appeals, or with any
of its members and, if so granted, the writ shall be enforceable anywhere in the
Philippines. The writ may be made returnable to a Family Court or to any regular court
within the region where the petitioner resides or where the minor may be found for
hearing and decision on the merits.

Upon return of the writ, the court shall decide the issue on custody of minors. The
appellate court, or the member thereof, issuing the writ shall be furnished a copy of the
decision. (emphasis added)

Considering that the writ is made enforceable within a judicial region, petitions for the
issuance of the writ of habeas corpus, whether they be filed under Rule 102 of the
Rules of Court or pursuant to Section 20 of A.M. No. 03-04-04-SC, may therefore be
filed with any of the proper RTCs within the judicial region where enforcement thereof is
sought.[21]

On this point, Section 13 of Batas Pambansa Blg. 129 (BP 129), otherwise known as
the Judiciary Reorganization Act of 1980, finds relevance. Said provision, which
contains the enumeration of judicial regions in the country,states:

Section 13. Creation of Regional Trial Courts. – There are hereby created thirteen
Regional Trial Courts, one for each of the following judicial regions:
xxxx

The National Capital Judicial Region, consisting of the cities of Manila, Quezon, Pasay,
Caloocan and Mandaluyong, and the municipalities of Navotas, Malabon, San Juan,
Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las Piñas, Muntinlupa, and
Valenzuela.(emphasis ours)

In view of the afore-quoted provision, it is indubitable that the filing of a petition for the
issuance of a writ of habeas corpus before a family court in any of the cities enumerated
is proper as long as the writ is sought to be enforced within the National Capital Judicial
Region, as here.

In the case at bar, respondent filed the petition before the family court of Caloocan City.
Since Caloocan City and Quezon City both belong to the same judicial region, the writ
issued by the RTC-Caloocan can still be implemented in Quezon City. Whether
petitioner resides in the former or the latter is immaterial in view of the above rule.

Anent petitioner’s insistence on the application of Section 3 of A.M. No. 03-04-04-SC, a

plain reading of said provision reveals that the provision invoked only applies to
petitions for custody of minors, and not to habeas corpus petitions. Thus:

Section 3. Where to file petition. - The petition for custody of minors shall be filed with
the Family Court of the province or city where the petitioner resides or where the minor
may be found.(emphasis added)

Lastly, as regards petitioner’s assertion that the summons was improperly served,
suffice it to state that service of summons, to begin with, is not required in a habeas
corpus petition, be it under Rule 102 of the Rules of Court or A.M. No. 03-04-04-SC. As
held in Saulo v. Cruz, a writ of habeas corpus plays a role somewhat comparable to a
summons, in ordinary civil actions, in that, by service of said writ, the court acquires
jurisdiction over the person of the respondent.[22]

In view of the foregoing, We need not belabor the other issues raised.

WHEREFORE, the instant petition is DENIED. The Court of Appeals Decision dated
May 17, 2013 and its Resolution dated December 27, 2013 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Bersamin,* Villarama, Jr.,** Mendoza, and Leonen, JJ., concur.

[ G.R. No. 193652, August 05, 2014 ]
INFANT JULIAN YUSAY CARAM, REPRESENTED BY HIS MOTHER, MA.
CHRISTINA YUSAY CARAM, PETITIONER, VS. ATTY. MARIJOY D. SEGUI, ATTY.
 SALLY D. ESCUTIN, VILMA B. CABRERA, CELIA C. YANGCO, AND OFFICE OF
THE SOLICITOR GENERAL, RESPONDENTS.

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, and Section 19[1] of the Rule on the Writ of Amparo[2] seeking
to set aside the August 17, 2010[3] and September 6, 2010[4] Orders of the Regional Trial
Court (RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-67604. The RTC
had dismissed petitioner’s petition for the issuance of a writ of amparo which petitioner
filed in order for her to regain parental authority and custody of Julian Yusay Caram
(Baby Julian), her biological child, from the respondent officers of the Department of
Social Welfare and Development (DSWD).

The factual antecedents as gleaned from the records follow:

Petitioner Ma. Christina Yusay Caram (Christina) had an amorous relationship with
Marcelino Gicano Constantino III (Marcelino) and eventually became pregnant with the
latter’s child without the benefit of marriage. After getting pregnant, Christina mislead
Marcelino into believing that she had an abortion when in fact she proceeded to
complete the term of her pregnancy. During this time, she intended to have the child
adopted through Sun and Moon Home for Children (Sun and Moon) in Parañaque City
to avoid placing her family in a potentially embarrassing situation for having a second
illegitimate son.[5]

On July 26, 2009, Christina gave birth to Baby Julian at Amang Rodriguez Memorial
Medical Center, Marikina City.[6] Sun and Moon shouldered all the hospital and medical
expenses. On August 13, 2009, Christina voluntarily surrendered Baby Julian by way of
a Deed of Voluntary Commitment[7] to the DSWD.

On November 26, 2009, Marcelino suffered a heart attack and died [8] without knowing
about the birth of his son. Thereafter, during the wake, Christina disclosed to
Marcelino’s family that she and the deceased had a son that she gave up for adoption
due to financial distress and initial embarrassment. Marcelino’s family was taken aback
by the revelation and sympathized with Christina. After the emotional revelation, they
vowed to help her recover and raise the baby.[9]

On November 27, 2009, the DSWD, through Secretary Esperanza I. Cabral issued a
certificate[10] declaring Baby Julian as “Legally Available for Adoption.” A local matching
conference was held on January 27, 2010 and on February 5, 2010, Baby Julian was
“matched” with the spouses Vergel and Filomina Medina (Medina Spouses) of the
Kaisahang Bahay Foundation. Supervised trial custody then commenced. [11]

On May 5, 2010, Christina who had changed her mind about the adoption, wrote a letter
to the DSWD asking for the suspension of Baby Julian’s adoption proceedings. She
also said she wanted her family back together. [12]

On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a
Memorandum[13] to DSWD Assistant Secretary Vilma B. Cabrera informing her that the
certificate declaring Baby Julian legally available for adoption had attained finality on
November 13, 2009, or three months after Christina signed the Deed of Voluntary
Commitment which terminated her parental authority and effectively made Baby Julian a
ward of the State. The said Memorandum was noted by respondent Atty. Sally D.
Escutin, Director IV of the Legal Service, DSWD.

On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother, sent a letter to Atty.
Escutin informing her that a DNA testing was scheduled on July 16, 2010 at the DNA
Analysis Laboratory at the University of the Philippines. [14]

On July 16, 2010, Assistant Secretary Cabrera sent a letter [15] to Noel Constantino
stating that it would not allow Baby Julian to undergo DNA testing. Assistant Secretary
Cabrera informed Noel Constantino that the procedures followed relative to the
certification on the availability of the child for adoption and the child’s subsequent
placement to prospective adoptive parents were proper, and that the DSWD was no
longer in the position to stop the adoption process. Assistant Secretary Cabrera further
stated that should Christina wish to reacquire her parental authority over Baby Julian or
halt the adoption process, she may bring the matter to the regular courts as the
reglementary period for her to regain her parental rights had already lapsed under
Section 7 of Republic Act (R.A.) No. 9523.[16]

On July 27, 2010, Christina filed a petition [17] for the issuance of a writ of amparo before
the RTC of Quezon City seeking to obtain custody of Baby Julian from Atty. Segui, Atty.
Escutin, Assistant Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the
DSWD.

In her petition, Christina accused respondents of “blackmailing” her into surrendering

custody of her child to the DSWD utilizing what she claims to be an invalid certificate of
availability for adoption which respondents allegedly used as basis to misrepresent that
all legal requisites for adoption of the minor child had been complied with.

Christina argued that by making these misrepresentations, the respondents had acted
beyond the scope of their legal authority thereby causing the enforced disappearance of
the said child and depriving her of her custodial rights and parental authority over him.

On the basis of the said petition, the RTC, Branch 106 of Quezon City, through its
Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of
Amparo[18] on July 28, 2010 commanding the four respondents to produce the body of
Baby Julian at a hearing scheduled on August 4, 2010. Respondents were also required
to file their verified written return to the writ pursuant to Section 9 [19] of the Amparo Rule,
within five working days from the service of the writ.
The respondents complied with the writ and filed their Return [20] on August 2, 2010
praying that the petition be denied for being the improper remedy to avail of in a case
relating to a biological parent’s custodial rights over her child.

On August 4, 2010, respondents appeared before the RTC but respondents did not
bring the child, stating that threats of kidnapping were made on the child and his
caregivers. To give respondents another chance, the RTC reset the hearing to August
5, 2010.

At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its
appearance as representative of the State and prayed that its lawyers be given time to
file their memorandum or position paper in this case. In turn, the RTC acknowledged the
appearance of the OSG and allowed its representatives to actively participate in the
arguments raised during the said hearing.

Relative to the matter of the parties submitting additional pleadings, Judge Sale
narrowed the issues to be discussed by providing for the following guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and counter-
manifestations made by the counsels, the court enjoined the parties to file their
respective position papers on the following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition is the proper remedy based on the facts of the case
and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and custody of the
child be given to his biological mother.
The parties were given five (5) days from today to file their respective position papers
based on these three main issues. They may include other related issues they deem
essential for the resolution of this case. Set this case for further hearing, if necessary,
on August 18, 2010 at 9:00 a.m.[21]

In the same order, Judge Sale also acknowledged that the child subject of the case was
brought before the court and the petitioner was allowed to see him and take
photographs of him.

On August 17, 2010, the RTC dismissed the petition for issuance of a writ of amparo
without prejudice to the filing of the appropriate action in court. The RTC held that
Christina availed of the wrong remedy to regain custody of her child Baby Julian. [22] The
RTC further stated that Christina should have filed a civil case for custody of her child
as laid down in the Family Code and the Rule on Custody of Minors and Writ of Habeas
Corpus in Relation to Custody of Minors. If there is extreme urgency to secure custody
of a minor who has been illegally detained by another, a petition for the issuance of a
writ of habeas corpus may be availed of, either as a principal or ancillary remedy,
pursuant to the Rule on Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors.[23]
On August 20, 2010, Christina filed a motion for reconsideration [24] arguing that since the
RTC assumed jurisdiction of the petition for the issuance of a writ of amparo, the latter
is duty-bound to dispose the case on the merits. [25] The RTC, however, denied
Christina’s motion for reconsideration on September 6, 2010 maintaining that the latter
availed of the wrong remedy and that the Supreme Court intended the writ of amparo to
address the problem of extrajudicial killings and enforced disappearances. [26]

On September 28, 2010, Christina directly elevated the case before this Court, via a
petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as
amended, in relation to Section 19 of the Rule on the Writ of Amparo. In her petition,
Christina prayed that the Court (1) set aside the August 17, 2010 and September 6,
2010 Orders of the RTC, (2) declare R.A. No. 9523 unconstitutional for being contrary to
A.M. No. 02-6-02-SC,[27] which was promulgated by the Supreme Court, and for violating
the doctrine of separation of powers, (3) declare the “enforced separation” between her
and Baby Julian as violative of her rights to life, liberty and security, and (4) grant her
the privilege of availing the benefits of a writ of amparo so she could be reunited with
her son.[28]

The only relevant issue presented before the Court worthy of attention is whether a
petition for a writ of amparo is the proper recourse for obtaining parental authority and
custody of a minor child. This Court will not belabor to discuss Christina’s arguments
relating to the supposed unconstitutionality or R.A. No. 9523 as Congress has the
plenary power to repeal, alter and modify existing laws [29] and A.M. No. 02-6-02-SC
functions only as a means to enforce the provisions of all adoption and adoption-related
statutes before the courts.

Now, in her petition, Christina argues that the life, liberty and security of Baby Julian is
being violated or threatened by the respondent DSWD officers’ enforcement of an illegal
Deed of Voluntary Commitment between her and Sun and Moon. She claims that she
had been “blackmailed” through the said Deed by the DSWD officers and Sun and
Moon’s representatives into surrendering her child thereby causing the “forced
separation” of the said infant from his mother. Furthermore, she also reiterates that the
respondent DSWD officers acted beyond the scope of their authority when they
deprived her of Baby Julian’s custody. [30]

The Court rejects petitioner’s contentions and denies the petition.

Section 1 of the Rule on the Writ of Amparo provides as follows:

SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with violation by
an unlawful act or omission of a public official or employee, or of a private individual or
entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et al., [31] this
Court held:
[T]he Amparo Rule was intended to address the intractable problem of “extralegal
killings” and “enforced disappearances,” its coverage, in its present form, is confined to
these two instances or to threats thereof. “Extralegal killings” are “killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings.” On
the other hand, “enforced disappearances” are “attended by the following
characteristics: an arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect acquiescence of
the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places
such persons outside the protection of law.

This pronouncement on the coverage of the writ was further cemented in the latter case
of Lozada, Jr. v. Macapagal-Arroyo[32] where this Court explicitly declared that as it
stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced
disappearances, or to threats thereof. As to what constitutes “enforced disappearance,”
the Court in Navia v. Pardico[33] enumerated the elements constituting “enforced
disappearances” as the term is statutorily defined in Section 3(g) of R.A. No. 9851 [34] to
wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence of, the
State or a political organization;
(c) that it be followed by the State or political organization’s refusal to acknowledge or
give information on the fate or whereabouts of the person subject of
the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the protection of
the law for a prolonged period of time.

In this case, Christina alleged that the respondent DSWD officers caused her “enforced
separation” from Baby Julian and that their action amounted to an “enforced
disappearance” within the context of the Amparo rule. Contrary to her position, however,
the respondent DSWD officers never concealed Baby Julian’s whereabouts. In fact,
Christina obtained a copy of the DSWD’s May 28, 2010 Memorandum [35] explicitly
stating that Baby Julian was in the custody of the Medina Spouses when she filed her
petition before the RTC. Besides, she even admitted in her petition for review on
certiorari that the respondent DSWD officers presented Baby Julian before the RTC
during the hearing held in the afternoon of August 5, 2010. [36] There is therefore, no
“enforced disappearance” as used in the context of the Amparo rule as the third and
fourth elements are missing.

Christina’s directly accusing the respondents of forcibly separating her from her child
and placing the latter up for adoption, supposedly without complying with the necessary
legal requisites to qualify the child for adoption, clearly indicates that she is not
searching for a lost child but asserting her parental authority over the child and
contesting custody over him.[37]

Since it is extant from the pleadings filed that what is involved is the issue of child
custody and the exercise of parental rights over a child, who, for all intents and
purposes, has been legally considered a ward of the State, the Amparo rule cannot be
properly applied.

To reiterate, the privilege of the writ of amparo is a remedy available to victims of extra-
judicial killings and enforced disappearances or threats of a similar nature, regardless of
whether the perpetrator of the unlawful act or omission is a public official or employee or
a private individual. It is envisioned basically to protect and guarantee the right to life,
liberty and security of persons, free from fears and threats that vitiate the quality of life.

WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6, 2010
Orders of the Regional Trial Court, Branch 106, Quezon City in Sp. Proc. Case No. Q-
10-67604 are AFFIRMED without prejudice to petitioner’s right to avail of proper legal
remedies afforded to her by law and related rules.

No costs.

SO ORDERED.

EN BANC
[ G.R. No. 182498, December 03, 2009 ]
GEN. AVELINO I. RAZON, JR., CHIEF, PHILIPPINE NATIONAL POLICE (PNP);
POLICE CHIEF SUPERINTENDENT RAUL CASTAÑEDA, CHIEF, CRIMINAL
INVESTIGATION AND DETECTION GROUP (CIDG); POLICE SENIOR
SUPERINTENDENT LEONARDO A. ESPINA, CHIEF, POLICE ANTI-CRIME AND
EMERGENCY RESPONSE (PACER); AND GEN. JOEL R. GOLTIAO, REGIONAL
DIRECTOR OF ARMM, PNP, PETITIONERS, VS. MARY JEAN B. TAGITIS, HEREIN
REPRESENTED BY ATTY. FELIPE P. ARCILLA, JR., ATTORNEY-IN-FACT,
RESPONDENT.

DECISION

BRION, J.:

We review in this petition for review on certiorari[1] the decision dated March 7, 2008 of
the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA decision
confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and
granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent).
The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court
hereby FINDS that this is an "enforced disappearance" within the meaning of the
United Nations instruments, as used in the Amparo Rules. The privileges of the writ
of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE
PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I.
RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL
GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of
TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as their
superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only
to protect the life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to
submit a monthly report of their actions to this Court, as a way of PERIODIC REVIEW to
enable this Court to monitor the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER

YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN
RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the
military, which is a separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.

This Decision reflects the nature of the Writ of Amparo - a protective remedy against
violations or threats of violation against the rights to life, liberty and security. [3] It
embodies, as a remedy, the court's directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in this case, Engr.
Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the appropriate remedies to address
the disappearance. Responsibility refers to the extent the actors have been
established by substantial evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, as a measure of the remedies this Court shall
craft, among them, the directive to file the appropriate criminal and civil cases against
the responsible parties in the proper courts. Accountability, on the other hand, refers
to the measure of remedies that should be addressed to those who exhibited
involvement in the enforced disappearance without bringing the level of their complicity
to the level of responsibility defined above; or who are imputed with knowledge relating
to the enforced disappearance and who carry the burden of disclosure; or those who
carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the Writ
of Amparo is justified by our primary goal of addressing the disappearance, so that the
life of the victim is preserved and his liberty and security are restored.

We highlight this nature of a Writ of Amparo case at the outset to stress that the unique
situations that call for the issuance of the writ, as well as the considerations and
measures necessary to address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions and proceedings. In this
sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is unique.
The Amparo Rule should be read, too, as a work in progress, as its directions and finer
points remain to evolve through time and jurisprudence and through the substantive
laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of the case, are
summarized below.

The established facts show that Tagitis, a consultant for the World Bank and the Senior
Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme,
was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar,
Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar
in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga.
When Kunnong returned from this errand, Tagitis was no longer around. [5] The
receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon
and even left his room key with the desk.[6] Kunnong looked for Tagitis and even sent a
text message to the latter's Manila-based secretary who did not know of Tagitis'
whereabouts and activities either; she advised Kunnong to simply wait. [7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor

of Muslim studies and Tagitis' fellow student counselor at the IDB, reported Tagitis'
disappearance to the Jolo Police Station.[8] On November 7, 2007, Kunnong executed a
sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis'
disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a Petition for the
Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P.
Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police
(PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group
(CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency
Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael,
Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners]. After
reciting Tagitis' personal circumstances and the facts outlined above, the petition went
on to state:
xxxx

7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student, Arsimin Kunnong;

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension
house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted
by phone and was not also around and his room was closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted
him to open the room of Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents and other personal
belongings were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis
could have been abducted by the Abu Sayyaf group and other groups known to be
fighting against the government;

12. Being scared with [sic] these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and
other responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from
some of their friends in the military who could help them find/locate the whereabouts of
her husband;

14. All of these efforts of the [respondent] did not produce any positive results except
the information from persons in the military who do not want to be identified that Engr.
Tagitis is in the hands of the uniformed men;

15. According to reliable information received by the [respondent], subject Engr.

Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx

17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondent's] request and pleadings failed to produce any positive
results;

18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the
police that her husband, subject of the petition, was not missing but was with another
woman having good time somewhere, which is a clear indication of the [petitioners']
refusal to help and provide police assistance in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subject's whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties;

20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp
Crame, Quezon City, and all these places have been visited by the [respondent] in
search for her husband, which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help from friends and
relatives only to try complying [sic] to the different suggestions of these police officers,
despite of which, her efforts produced no positive results up to the present time;

21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons that
she should approach, but assured her not to worry because her husband is [sic] in good
hands;

22. The unexplained uncooperative behavior of the [petitioners] to the [respondent's]

request for help and failure and refusal of the [petitioners] to extend the needed help,
support and assistance in locating the whereabouts of Engr. Tagitis who had been
declared missing since October 30, 2007 which is almost two (2) months now, clearly
indicates that the [petitioners] are actually in physical possession and custody of
[respondent's] husband, Engr. Tagitis;
xxxx

25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [the respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis from
the illegal clutches of the [petitioners], their intelligence operatives and the like which
are in total violation of the subject's human and constitutional rights, except the
issuance of a WRIT OF AMPARO. [Emphasis supplied]

On the same day the petition was filed, the CA immediately issued the Writ of Amparo,
set the case for hearing on January 7, 2008, and directed the petitioners to file their
verified return within seventy-two (72) hours from service of the writ.[11]

In their verified Return filed during the hearing of January 27, 2008, the petitioners
denied any involvement in or knowledge of Tagitis' alleged abduction. They argued that
the allegations of the petition were incomplete and did not constitute a cause of action
against them; were baseless, or at best speculative; and were merely based on hearsay
evidence. [12]

The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he
did not have any personal knowledge of, or any participation in, the alleged
disappearance; that he had been designated by President Gloria Macapagal Arroyo as
the head of a special body called TASK FORCE USIG, to address concerns about
extralegal killings and enforced disappearances; the Task Force, inte r alia, coordinated
with the investigators and local police, held case conferences, rendered legal advice in
connection to these cases; and gave the following summary: [13]
xxxx

4. a) On November 5, 2007, the Regional Director, Police Regional Office ARMM

submitted a report on the alleged disappearance of one Engr. Morced Tagitis.
According to the said report, the victim checked-in at ASY Pension House on October
30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu with an
unidentified companion. It was only after a few days when the said victim did not return
that the matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted
a thorough investigation to trace and locate the whereabouts of the said missing person,
but to no avail. The said PPO is still conducting investigation that will lead to the
immediate findings of the whereabouts of the person.

b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director,
CIDG. The said report stated among others that: subject person attended an Education
Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga,
Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00
o'clock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard
M/V Bounty Cruise, he was then billeted at ASY Pension House. At about 6:15 o'clock
in the morning of the same date, he instructed his student to purchase a fast craft ticket
bound for Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on
or about 10:00 o'clock in the morning, Engr. Tagitis left the premises of ASY Pension
House as stated by the cashier of the said pension house. Later in the afternoon, the
student instructed to purchase the ticket arrived at the pension house and waited for
Engr. Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now
conducting a continuous case build up and information gathering to locate the
whereabouts of Engr. Tagitis.

c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG
to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-
PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough
search, records show that no such person is being detained in CIDG or any of its
department or divisions.

5. On this particular case, the Philippine National Police exhausted all possible efforts,
steps and actions available under the circumstances and continuously search and
investigate [sic] the instant case. This immense mandate, however, necessitates the
indispensable role of the citizenry, as the PNP cannot stand alone without the
cooperation of the victims and witnesses to identify the perpetrators to bring them
before the bar of justice and secure their conviction in court.

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ
of Amparo, he caused the following:[14]
xxxx

That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately directed the
Investigation Division of this Group [CIDG] to conduct urgent investigation on the
alleged enforced disappearance of Engineer Morced Tagitis.

That based on record, Engr. Morced N. Tagitis attended an Education Development

Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together
with Prof. Abdulnasser Matli. On October 30, 2007, at around six o'clock in the morning
he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong
of the Islamic Development Bank who was also one of the participants of the said
seminar. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on
October 30, 2007 with [sic] unidentified companion. At around six o'clock in the morning
of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for
Zamboanga City. In the afternoon of the same date, Kunnong arrived at the pension
house carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to
be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who
reported the incident to the police. The CIDG is not involved in the disappearance of
Engr. Morced Tagitis to make out a case of an enforced disappearance which
presupposes a direct or indirect involvement of the government.

That herein [petitioner] searched all divisions and departments for a person named
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert
CIDG-PNP Intelligence Operatives since October 30, 2007 and after a diligent and
thorough research records show that no such person is being detained in CIDG or any
of its department or divisions.

That nevertheless, in order to determine the circumstances surrounding Engr. Morced

Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken
immediate investigation and will pursue investigations up to its full completion in order to
aid in the prosecution of the person or persons responsible therefore.

Likewise attached to the Return of the Writ was PNP-PACER [15] Chief PS Supt.
Leonardo A. Espina's affidavit which alleged that: [16]
xxxx

That, I and our men and women in PACER vehemently deny any participation in the
alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October
30, 2007. As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged disappearance of
ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office,
the Police Anti-Crime and Emergency Response (PACER), a special task force created
for the purpose of neutralizing or eradicating kidnap-for-ransom groups which until now
continue to be one of the menace of our society is a respondent in kidnapping or illegal
detention case. Simply put, our task is to go after kidnappers and charge them in court
and to abduct or illegally detain or kidnap anyone is anathema to our mission.

That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of
PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to
investigate, locate/search the subject, identify and apprehend the persons responsible,
to recover and preserve evidence related to the disappearance of ENGR. MORCED
TAGITIS, which may aid in the prosecution of the person or persons responsible, to
identify witnesses and obtain statements from them concerning the disappearance and
to determine the cause, manner, location and time of disappearance as well as any
pattern or practice that may have brought about the disappearance.

That I further directed the chief of PACER-MOR, Police Superintendent JOSE

ARNALDO BRIONES JR., to submit a written report regarding the disappearance of
ENGR. MORCED.

That in compliance with my directive, the chief of PACER-MOR sent through fax his
written report.

That the investigation and measures being undertaken to locate/search the subject in
coordination with Police Regional Office, Autonomous Region of Muslim Mindanao
(PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the instruction not to leave any stone
unturned so to speak in the investigation until the perpetrators in the instant case are
brought to the bar of justice.

That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF

AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao),
also submitted his affidavit detailing the actions that he had taken upon receipt of the
report on Tagitis' disappearance, viz:[17]
xxxx

3) For the record:

1. I am the Regional Director of Police Regional Office ARMM now and during the time
of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of reported
enforced disappearances and when they are being alluded to my office;

5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office

reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of
Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo
Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship
coordinator of Islamic Development Bank, Manila;

6. There was no report that Engr. Tagibis was last seen in the company of or taken by
any member of the Philippine National Police but rather he just disappeared from ASY
Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30,
2007, without any trace of forcible abduction or arrest;

7. The last known instance of communication with him was when Arsimin Kunnong, a
student scholar, was requested by him to purchase a vessel ticket at the Office of
Weezam Express, however, when the student returned back to ASY Pension House, he
no longer found Engr. Tagitis there and when he immediately inquired at the information
counter regarding his whereabouts [sic], the person in charge in the counter informed
him that Engr. Tagitis had left the premises on October 30, 2007 around 1 o'clock p.m.
and never returned back to his room;

8. Immediately after learning the incident, I called and directed the Provincial Director of
Sulu Police Provincial Office and other units through phone call and text messages to
conduct investigation [sic] to determine the whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or omission, to recover and preserve
evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain
statements from them concerning his disappearance, to determine the cause and
manner of his disappearance, to identify and apprehend the person or persons involved
in the disappearance so that they shall be brought before a competent court;

9. Thereafter, through my Chief of the Regional Investigation and Detection

Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing
PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing
PD Sulu PPO to expedite compliance to my previous directive;

c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our
series of directives for investigation and directing him to undertake exhaustive
coordination efforts with the owner of ASY Pension House and student scholars of IDB
in order to secure corroborative statements regarding the disappearance and
whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to
maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the
cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever
necessary, for them to voluntarily submit for polygraph examination with the NBI so as
to expunge all clouds of doubt that they may somehow have knowledge or idea to his
disappearance;

e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police Regional Office 9, Zamboanga City,
requesting assistance to investigate the cause and unknown disappearance of Engr.
Tagitis considering that it is within their area of operational jurisdiction;

f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30,
2007 addressed to PD Sulu PPO requiring them to submit complete investigation report
regarding the case of Engr. Tagitis;

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct
investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the
circumstances related to his disappearance and submitted the following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-
1106-10-2007;

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still
monitoring the whereabouts of Engr. Tagitis;

c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police
Station, Sulu PPO;

11. This incident was properly reported to the PNP Higher Headquarters as shown in
the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of
the facts of the disappearance and the action being taken by our office;

b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for

Investigation and Detection Management, NHQ PNP;

c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be

determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.

Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao - as
the officer in command of the area of disappearance - to form TASK FORCE TAGITIS.
[18]

Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim)
to head TASK FORCE TAGITIS.[19] The CA subsequently set three hearings to monitor
whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the
disappearance of Tagitis.[20] As planned, (1) the first hearing would be to mobilize the
CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with
Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of
Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police
operatives.[21]

In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an
intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police
Station, stating a possible motive for Tagitis' disappearance. [22] The intelligence report
was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad
Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the
Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu that: [23]
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has
reportedly taken and carried away... more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his ... [personal] bank accounts by the Central Office of IDB,
Jeddah, Kingdom of Saudi Arabia, which [was] intended for the ... IDB Scholarship
Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be
responsible, he personally went to the CIDG office in Zamboanga City to conduct an
ocular inspection/investigation, particularly of their detention cells. [24] PS Supt. Ajirim
stated that the CIDG, while helping TASK FORCE TAGITIS investigate the
disappearance of Tagitis, persistently denied any knowledge or complicity in any
abduction.[25] He further testified that prior to the hearing, he had already mobilized and
given specific instructions to their supporting units to perform their respective tasks; that
they even talked to, but failed to get any lead from the respondent in Jolo. [26] In his
submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded: [27]
9. Gleaned from the undersigned inspection and observation at the Headquarters 9
RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and
other PNP units in the area had no participation neither [sic] something to do with [sic]
mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt
has been raised regarding the emolument on the Islamic Development Bank Scholar
program of IDB that was reportedly deposited in the personal account of Engr. Tagitis
by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might
[sic] be done by resentment or sour grape among students who are applying for the
scholar [sic] and were denied which was allegedly conducted/screened by the subject
being the coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the
motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities from the
institution where he belong as well as to the Islamic student scholars should the
statement of Prof. Matli be true or there might be a professional jealousy among them.
xxxx

It is recommended that the Writ of Amparo filed against the respondents be dropped
and dismissed considering on [sic] the police and military actions in the area particularly
the CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct
of its intelligence monitoring and investigation for the early resolution of this instant
case. But rest assured, our office, in coordination with other law-enforcement agencies
in the area, are continuously and religiously conducting our investigation for the
resolution of this case.

On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did
not appear to be exerting extraordinary efforts in resolving Tagitis' disappearance on the
following grounds:[28]
(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing,
that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear
photographs when it should have been standard operating procedure in kidnappings or
disappearances that the first agenda was for the police to secure clear pictures of the
missing person, Engr. Morced Tagitis, for dissemination to all parts of the country and to
neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO
admitted having been informed on November 5, 2007 of the alleged abduction of Engr.
Morced Tagitis by alleged bad elements of the CIDG. It had been more than one (1)
month since the Writ of Amparo had been issued on December 28, 2007. It had been
three (3) weeks when battle formation was ordered through Task Force Tagitis, on
January 17, 2008. It was only on January 28, 2008 when the Task Force Tagitis
requested for clear and recent photographs of the missing person, Engr. Morced
Tagitis, despite the Task Force Tagitis' claim that they already had an "all points
bulletin", since November 5, 2007, on the missing person, Engr. Morced Tagitis. How
could the police look for someone who disappeared if no clear photograph had been
disseminated?

(2) Furthermore, Task Force Tagitis' COL. AHIROM AJIRIM informed this Court that
P/Supt KASIM was designated as Col. Ahirom Ajirim's replacement in the latter's official
designated post. Yet, P/Supt KASIM's subpoena was returned to this Court unserved.
Since this Court was made to understand that it was P/Supt KASIM who was the
petitioner's unofficial source of the military intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close
contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS
should have ensured the appearance of Col. KASIM in response to this court's
subpoena and COL. KASIM could have confirmed the military intelligence information
that bad elements of the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct

examination that she went to Jolo and Zamboanga in her efforts to locate her husband.
She said that a friend from Zamboanga holding a high position in the military (whom she
did not then identify) gave her information that allowed her to "specify" her allegations,
"particularly paragraph 15 of the petition." [29] This friend also told her that her husband
"[was] in good hands."[30] The respondent also testified that she sought the assistance of
her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who
told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis." [31] The
respondent recounted that she went to Camp Katitipan in Davao City where she met
Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and h er
friends (who were then with her) a "highly confidential report" that contained the "alleged
activities of Engineer Tagitis" and informed her that her husband was abducted because
"he is under custodial investigation" for being a liaison for "J.I. or Jema'ah Islamiah." [32]

On January 17, 2008, the respondent on cross-examination testified that she is Tagitis'
second wife, and they have been married for thirteen years; Tagitis was divorced from
his first wife.[33] She last communicated with her husband on October 29, 2007 at around
7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from
Zamboanga City.[34]

The respondent narrated that she learned of her husband's disappearance on October
30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had
not heard from her father since the time they arranged to meet in Manila on October 31,
2007.[35] The respondent explained that it took her a few days (or on November 5, 2007)
to personally ask Kunnong to report her husband's disappearance to the Jolo Police
Station, since she had the impression that her husband could not communicate with her
because his cellular phone's battery did not have enough power, and that he would call
her when he had fully-charged his cellular phone's battery. [36]

The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col.
Ancanan). She met him in Camp Karingal, Zamboanga through her boss. [37] She also
testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and
her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the
contents of the "highly confidential report" at Camp Katitipan, Davao City. The
respondent further narrated that the report indicated that her husband met with people
belonging to a terrorist group and that he was under custodial investigation. She then
told Col. Kasim that her husband was a diabetic taking maintenance medication, and
asked that the Colonel relay to the persons holding him the need to give him his
medication.[38]

On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,
[39]
 signed by the respondent, detailing her efforts to locate her husband which led to her
meetings with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her
narrative report concerning her meeting with Col. Ancanan, the respondent
recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 o'clock in the morning; we arrived at
Zamboanga Airport at around 10:00 o'clock. We [were] fetched by the two staffs of Col.
Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).

On that same day, we had private conversation with Col. Ancanan. He interviewed me
and got information about the personal background of Engr. Morced N. Tagitis. After he
gathered all information, he revealed to us the contents of text messages they got from
the cellular phone of the subject Engr. Tagitis. One of the very important text messages
of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to
answer any telephone calls in his condominium unit.

While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city.
His two staffs accompanied us to the mall to purchase our plane ticket going back to
Davao City on November 12, 2007.

When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col.
Ancanan and I were discussing some points through phone calls. He assured me that
my husband is alive and he's last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not
believe his given statements of the whereabouts of my husband, because I contacted
some of my friends who have access to the groups of MILF, MNLF and ASG. I called up
Col. Ancanan several times begging to tell me the exact location of my husband and
who held him but he refused.

While I was in Jolo, Sulu on November 30, 2007, I called him up again because the
PNP, Jolo did not give me any information of the whereabouts of my husband. Col.
Ancanan told me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa
mo." When I was in Zamboanga, I was thinking of dropping by the office of Col.
Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police of
Jolo told me not to contact any AFP officials and he promised me that he can solve the
case of my husband (Engr. Tagitis) within nine days.

I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr.
Morced Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows: [41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao
City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis
was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to
contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis
took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City
looking for high-ranking official who can help me gather reliable information behind the
abduction of subject Engineer Tagitis.

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary,
accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to
Col. Kasim and we had a short conversation. And he assured me that he'll do the best
he can to help me find my husband.

After a few weeks, Mr. Salvador called me up informing me up informing me that I am to

go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information
to reveal.

On November 24, 2007, we went back to Camp Katitipan with my three friends. That
was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was
allegedly connected [with] different terrorist [groups], one of which he mentioned in the
report was OMAR PATIK and a certain SANTOS - a Balik Islam.

It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists
as a supplier. These are the two information that I can still remember. It was written in a
long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the
one who read it for us.

He asked a favor to me that "Please don't quote my Name! Because this is a raw
report." He assured me that my husband is alive and he is in the custody of the military
for custodial investigation. I told him to please take care of my husband because he has
aliments and he recently took insulin for he is a diabetic patient.

In my petition for writ of amparo, I emphasized the information that I got from Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs. Talbin
testified that she was with the respondent when she went to Zamboanga to see Col.
Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim. [42]

In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them
that there was a report and that he showed them a series of text messages from Tagitis'
cellular phone, which showed that Tagitis and his daughter would meet in Manila on
October 30, 2007.[43]

She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and Mini
Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col. Kasim if
he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in
good hands, although he was not certain whether he was with the PNP or with the
Armed Forces of the Philippines (AFP). She further recounted that based on the report
Col. Kasim read in their presence, Tagitis was under custodial investigation because he
was being charged with terrorism; Tagitis in fact had been under surveillance since
January 2007 up to the time he was abducted when he was seen talking to Omar Patik
and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also
told them that he could not give a copy of the report because it was a "raw
report."[45] She also related that the Col. Kasim did not tell them exactly where Tagitis
was being kept, although he mentioned Talipapao, Sulu. Prof., lalabas din yan."[50] Prof.
Matli also emphasized that despite what his January 4, 2008 affidavit indicated, [51] he
never told PS Supt. Pingay, or made any accusation, that Tagitis took away money
entrusted to him.[52] Prof. Matli confirmed, however, that that he had received an e-mail
report[53] from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was
seeking assistance of the office in locating the funds of IDB scholars deposited in
Tagitis' personal account.[54]

On cross-examination by the respondent's counsel, Prof. Matli testified that his January
4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.
[55]
 Prof Matli clarified that although he read the affidavit before signing it, he "was not so
much aware of... [its] contents."[56]

On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of
the respondent's testimony, particularly the allegation that he had stated that Tagitis
was in the custody of either the military or the PNP. [57] Col. Kasim categorically denied
the statements made by the respondent in her narrative report, specifically: (1) that
Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2)
that Tagitis was under the custody of the military, since he merely said to the
respondent that "your husband is in good hands" and is "probably taken cared of
by his armed abductors;" and (3) that Tagitis was under custodial investigation by the
military, the PNP or the CIDG Zamboanga City. [58] Col. Kasim emphasized that the
"informal letter" he received from his informant in Sulu did not indicate that Tagitis was
in the custody of the CIDG.[59] He also stressed that the information he provided to the
respondent was merely a "raw report" sourced from "barangay intelligence" that still
needed confirmation and "follow-up" as to its veracity. [60]

On cross-examination, Col. Kasim testified that the information he gave the respondent
was given to him by his informant, who was a "civilian asset," through a letter which he
considered as "unofficial."[61] Col. Kasim stressed that the letter was only meant for his
"consumption" and not for reading by others.[62] He testified further that he destroyed the
letter right after he read it to the respondent and her companions because "it was not
important to him" and also because the information it contained had no importance in
relation with the abduction of Tagitis.[63] He explained that he did not keep the letter
because it did not contain any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction. [64]

In the same hearing on February 11, 2008, the petitioners also presented Police Senior
Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the
respondent's allegation that Tagitis was in the custody of CIDG-Zamboanga City. [65] Col.
Pante clarified that the CIDG was the "investigative arm" of the PNP, and that the CIDG
"investigates and prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes." [66] Col. Pante further testified that the
allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was
baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis'
reported disappearance.[67] Col. Pante added that the four (4) personnel assigned to the
Sulu CIDT had no capability to conduct any "operation," since they were only assigned
to investigate matters and to monitor the terrorism situation. [68] He denied that his office
conducted any surveillance on Tagitis prior to the latter's disappearance. [69] Col. Pante
further testified that his investigation of Tagitis' disappearance was unsuccessful; the
investigation was "still facing a blank wall" on the whereabouts of Tagitis. [70]
THE CA RULING

On March 7, 2008, the CA issued its decision [71] confirming that the disappearance of
Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration on
the Protection of All Persons from Enforced Disappearances. [72] The CA ruled that when
military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in
the abduction, the missing-person case qualified as an enforced disappearance. The
conclusion that the CIDG was involved was based on the respondent's testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the information that the
CIDG, as the police intelligence arm, was involved in Tagitis' abduction came from no
less than the military - an independent agency of government. The CA thus greatly
relied on the "raw report" from Col. Kasim's asset, pointing to the CIDG's involvement in
Tagitis' abduction. The CA held that "raw reports" from an "asset" carried "great weight"
in the intelligence world. It also labeled as "suspect" Col. Kasim's subsequent and
belated retraction of his statement that the military, the police, or the CIDG was involved
in the abduction of Tagitis.

The CA characterized as "too farfetched and unbelievable" and "a bedlam of

speculation" police theories painting the disappearance as "intentional" on the part of
Tagitis. He had no previous brushes with the law or any record of overstepping the
bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his or her
stipend. The CA also found no basis for the police theory that Tagitis was "trying to
escape from the clutches of his second wife," on the basis of the respondent's testimony
that Tagitis was a Muslim who could have many wives under the Muslim faith, and that
there was "no issue" at all when the latter divorced his first wife in order to marry the
second. Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by
the ARMM paramilitary as the cause for Tagitis' disappearance, since the respondent,
the police and the military noted that there was no acknowledgement of Tagitis'
abduction or demand for payment of ransom - the usual modus operandi of these
terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to Tagitis
and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief
Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim,
and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and
efforts to protect the life, liberty and security of Tagitis, with the obligation to provide
monthly reports of their actions to the CA. At the same time, the CA dismissed the
petition against the then respondents from the military, Lt. Gen Alexander Yano and
Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that
was involved.

On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA
denied the motion in its Resolution of April 9, 2008. [73]
THE PETITION

In this Rule 45 appeal questioning the CA's March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed before
the CA; the sufficiency of the legal remedies the respondent took before petitioning for
the writ; the finding that the rights to life, liberty and security of Tagitis had been
violated; the sufficiency of evidence supporting the conclusion that Tagitis was
abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction;
and, generally, the ruling that the respondent discharged the burden of proving the
allegations of the petition by substantial evidence. [74]
THE COURT'S RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance

In questioning the sufficiency in form and substance of the

respondent's Amparo petition, the petitioners contend that the petition violated Section
5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the
respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis' rights to
life, liberty and security;

2) allege in a complete manner how Tagitis was abducted, the persons responsible for
his disappearance, and the respondent's source of information;

3) allege that the abduction was committed at the petitioners' instructions or with their
consent;

4) implead the members of CIDG regional office in Zamboanga alleged to have custody
over her husband;

5) attach the affidavits of witnesses to support her accusations;

6) allege any action or inaction attributable to the petitioners in the performance of their
duties in the investigation of Tagitis' disappearance; and
7) specify what legally available efforts she took to determine the fate or whereabouts of
her husband.

A petition for the Writ of Amparo shall be signed and verified and shall allege, among
others (in terms of the portions the petitioners cite): [75]
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent, and
how such threat or violation is committed with the attendant circumstances
detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal

circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and

The framers of the Amparo Rule never intended Section 5(c) to be complete in every

detail in stating the threatened or actual violation of a victim's rights. As in any other
initiatory pleading, the pleader must of course state the ultimate facts constituting the
cause of action, omitting the evidentiary details. [76] In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding, which
addresses a situation of uncertainty; the petitioner may not be able to describe with
certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or
arrest him or her, or where the victim is detained, because these information may
purposely be hidden or covered up by those who caused the disappearance. In this type
of situation, to require the level of specificity, detail and precision that the petitioners
apparently want to read into the Amparo Rule is to make this Rule a token gesture of
judicial concern for violations of the constitutional rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while addressing the

unique Amparo situation, the test in reading the petition should be to determine whether
it contains the details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victim's rights to life, liberty and
security through State or private party action. The petition should likewise be read in its
totality, rather than in terms of its isolated component parts, to determine if the required
elements - namely, of the disappearance, the State or private action, and the actual or
threatened violations of the rights to life, liberty or security - are present.

In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in
normal activities, and thereafter was nowhere to be found despite efforts to locate him.
The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16,
that according to reliable information, police operatives were the perpetrators of the
abduction. It also clearly alleged how Tagitis' rights to life, liberty and security were
violated when he was "forcibly taken and boarded on a motor vehicle by a couple of
burly men believed to be police intelligence operatives," and then taken "into custody by
the respondents' police intelligence operatives since October 30, 2007, specifically by
the CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the
police to involve and connect [him] with different terrorist groups." [77]

These allegations, in our view, properly pleaded ultimate facts within the pleader's
knowledge about Tagitis' disappearance, the participation by agents of the State in this
disappearance, the failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation of his right to liberty.
Thus, the petition cannot be faulted for any failure in its statement of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature
of the proceedings for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting affidavits, with the
annotation that these can be used as the affiant's direct testimony. [78] This requirement,
however, should not be read as an absolute one that necessarily leads to the dismissal
of the petition if not strictly followed. Where, as in this case, the petitioner has
substantially complied with the requirement by submitting a verified petition sufficiently
detailing the facts relied upon, the strict need for the sworn statement that an affidavit
represents is essentially fulfilled. We note that the failure to attach the required affidavits
was fully cured when the respondent and her witness (Mrs. Talbin) personally testified
in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and
flesh out the allegations of the petition. Thus, even on this point, the petition cannot be
faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of an alleged

disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest opportunity
the level of diligence the public authorities undertook in relation with the reported
disappearance.[79]

We reject the petitioners' argument that the respondent's petition did not comply with
the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its
paragraph 11 that Kunnong and his companions immediately reported Tagitis'
disappearance to the police authorities in Jolo, Sulu as soon as they were relatively
certain that he indeed had disappeared. The police, however, gave them the "ready
answer" that Tagitis could have been abducted by the Abu Sayyaf group or other anti-
government groups. The respondent also alleged in paragraphs 17 and 18 of her
petition that she filed a "complaint" with the PNP Police Station in Cotobato and in Jolo,
but she was told of "an intriguing tale" by the police that her husband was having "a
good time with another woman." The disappearance was alleged to have been reported,
too, to no less than the Governor of the ARMM, followed by the respondent's personal
inquiries that yielded the factual bases for her petition. [80]
These allegations, to our mind, sufficiently specify that reports have been made to the
police authorities, and that investigations should have followed. That the petition did not
state the manner and results of the investigation that the Amparo Rule requires, but
rather generally stated the inaction of the police, their failure to perform their duty to
investigate, or at the very least, their reported failed efforts, should not be a reflection on
the completeness of the petition. To require the respondent to elaborately specify the
names, personal circumstances, and addresses of the investigating authority, as well
the manner and conduct of the investigation is an overly strict interpretation of Section
5(d), given the respondent's frustrations in securing an investigation with meaningful
results. Under these circumstances, we are more than satisfied that the allegations of
the petition on the investigations undertaken are sufficiently complete for purposes of
bringing the petition forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition - that otherwise is not
supported by sufficient allegations to constitute a proper cause of action - as a means to
"fish" for evidence.[81] The petitioners contend that the respondent's petition did not
specify what "legally available efforts were taken by the respondent," and that there was
an "undue haste" in the filing of the petition when, instead of cooperating with
authorities, the respondent immediately invoked the Court's intervention.

We do not see the respondent's petition as the petitioners view it.

Section 5(e) merely requires that the Amparo petitioner (the respondent in the present
case) allege "the actions and recourses taken to determine the fate or whereabouts of
the aggrieved party and the identity of the person responsible for the threat, act or
omission." The following allegations of the respondent's petition duly outlined the
actions she had taken and the frustrations she encountered, thus compelling her to file
her petition.
xxxx

7. Soon after the student left the room, Engr. Tagitis went out of the pension house to
take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor
vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
xxxx

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another
IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in
trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis
could [have been] abducted by the Abu Sayyaf group and other groups known to be
fighting against the government;

12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone and
other responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines who alerted the office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;

13. [The respondent], on the other hand, approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help
from some of their friends in the military who could help them find/locate the
whereabouts of her husband;
xxxx

15. According to reliable information received by the [respondent], subject Engr. Tagitis

is in the custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police to
involve and connect Engr. Tagitis with the different terrorist groups;
xxxx

17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [the respondent's] request and pleadings failed to produce any positive
results
xxxx

20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including the police headquarters in Davao City, in Zamboanga City, in
Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to these
places thereby resorting her to borrowings and beggings [sic] for financial help from
friends and relatives only to try complying to the different suggestions of these police
officers, despite of which, her efforts produced no positive results up to the present time;
xxxx

25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis from
the illegal clutches of [the petitioners], their intelligence operatives and the like which
are in total violation of the subject's human and constitutional rights, except the
issuance of a WRIT OF AMPARO.

Based on these considerations, we rule that the respondent's petition for the Writ
of Amparo is sufficient in form and substance and that the Court of Appeals had every
reason to proceed with its consideration of the case.

The Desaparecidos
The present case is one of first impression in the use and application of the Rule on the
Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a brief look at the
historical context of the writ and enforced disappearances would be very helpful.

The phenomenon of enforced disappearance arising from State action first attracted
notice in Adolf Hitler's Nact und Nebel Erlass or Night and Fog Decree of December 7,
1941.[82] The Third Reich's Night and Fog Program, a State policy, was directed at
persons in occupied territories "endangering German security"; they were transported
secretly to Germany where they disappeared without a trace. In order to maximize the
desired intimidating effect, the policy prohibited government officials from providing
information about the fate of these targeted persons. [83]

In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking

and outraging the world when individuals, numbering anywhere from 6,000 to 24,000,
were reported to have "disappeared" during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an international
concern when the world noted its widespread and systematic use by State security
forces in that continent under Operation Condor [84] and during the Dirty War[85] in the
1970s and 1980s. The escalation of the practice saw political activists secretly arrested,
tortured, and killed as part of governments' counter-insurgency campaigns. As this form
of political brutality became routine elsewhere in the continent, the Latin American
media standardized the term "disappearance" to describe the phenomenon. The victims
of enforced disappearances were called the "desaparecidos,"[86] which literally means
the "disappeared ones."[87] In general, there are three different kinds of "disappearance"
cases:
1) those of people arrested without witnesses or without positive identification of the
arresting agents and are never found again;

2) those of prisoners who are usually arrested without an appropriate warrant and held
in complete isolation for weeks or months while their families are unable to discover
their whereabouts and the military authorities deny having them in custody until they
eventually reappear in one detention center or another; and

3) those of victims of "salvaging" who have disappeared until their lifeless bodies are
later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two categories,
[89]
 and 855 cases were recorded during the period of martial law from 1972 until 1986.
Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead.
During former President Corazon C. Aquino's term, 820 people were reported to have
disappeared and of these, 612 cases were documented. Of this number, 407 remain
missing, 108 surfaced alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos' term when only 87
cases were reported, while the three-year term of former President Joseph E. Estrada
yielded 58 reported cases. KARAPATAN, a local non-governmental organization,
reports that as of March 31, 2008, the records show that there were a total of 193
victims of enforced disappearance under incumbent President Gloria M. Arroyo's
administration. The Commission on Human Rights' records show a total of 636 verified
cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined status.
[90]
 Currently, the United Nations Working Group on Enforced or Involuntary
Disappearance[91] reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30, 2008. [92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the "writ shall cover extralegal killings and
enforced disappearances or threats thereof." [93] We note that although the writ
specifically covers "enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court Committee on the
Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially
considered providing an elemental definition of the concept of enforced disappearance:
[94]

JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate
a specific definition [for] extrajudicial killings and enforced disappearances. From that
definition, then we can proceed to formulate the rules, definite rules concerning the
same.

CHIEF JUSTICE PUNO: ... As things stand, there is no law penalizing extrajudicial
killings and enforced disappearances... so initially also we have to [come up with]
the nature of these extrajudicial killings and enforced disappearances [to be
covered by the Rule] because our concept of killings and disappearances will
define the jurisdiction of the courts. So we'll have to agree among ourselves about
the nature of killings and disappearances for instance, in other jurisdictions, the rules
only cover state actors. That is an element incorporated in their concept of extrajudicial
killings and enforced disappearances. In other jurisdictions, the concept includes acts
and omissions not only of state actors but also of non state actors. Well, more
specifically in the case of the Philippines for instance, should these rules include the
killings, the disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the extrajudicial
killings and enforced disappearances that will be covered by these rules. [Emphasis
supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House of
Representatives[96] and in the Senate[97] on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these terms in
the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy therefor,
mindful that an elemental definition may intrude into the ongoing legislative efforts. [98]
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws. [99] The simple reason is that
the Legislature has not spoken on the matter; the determination of what acts are
criminal and what the corresponding penalty these criminal acts should carry are
matters of substantive law that only the Legislature has the power to enact under the
country's constitutional scheme and power structure.

Even without the benefit of directly applicable substantive laws on extra-judicial killings
and enforced disappearances, however, the Supreme Court is not powerless to act
under its own constitutional mandate to promulgate "rules concerning the protection and
enforcement of constitutional rights, pleading, practice and procedure in all
courts,"[100] since extrajudicial killings and enforced disappearances, by their nature and
purpose, constitute State or private party violation of the constitutional rights of
individuals to life, liberty and security. Although the Court's power is strictly procedural
and as such does not diminish, increase or modify substantive rights, the legal
protection that the Court can provide can be very meaningful through the procedures it
sets in addressing extrajudicial killings and enforced disappearances. The Court,
through its procedural rules, can set the procedural standards and thereby directly
compel the public authorities to act on actual or threatened violations of constitutional
rights. To state the obvious, judicial intervention can make a difference - even if only
procedurally - in a situation when the very same investigating public authorities may
have had a hand in the threatened or actual violations of constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again that we do not rule
on any issue of criminal culpability for the extrajudicial killing or enforced
disappearance. This is an issue that requires criminal action before our criminal courts
based on our existing penal laws. Our intervention is in determining whether an
enforced disappearance has taken place and who is responsible or accountable for this
disappearance, and to define and impose the appropriate remedies to address it. The
burden for the public authorities to discharge in these situations, under the Rule on the
Writ of Amparo, is twofold. The first is to ensure that all efforts
at disclosure and investigation are undertaken under pain of indirect contempt from
this Court when governmental efforts are less than what the individual situations
require. The second is to address the disappearance, so that the life of the victim is
preserved and his or her liberty and security restored. In these senses, our orders and
directives relative to the writ are continuing efforts that are not truly terminated until the
extrajudicial killing or enforced disappearance is fully addressed by the complete
determination of the fate and the whereabouts of the victim, by the production of the
disappeared person and the restoration of his or her liberty and security, and, in the
proper case, by the commencement of criminal action against the guilty parties.

Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights. [101] It does not only violate the right to
life, liberty and security of the desaparecido; it affects their families as well through the
denial of their right to information regarding the circumstances of the disappeared family
member. Thus, enforced disappearances have been said to be "a double form of
torture," with "doubly paralyzing impact for the victims," as they "are kept ignorant of
their own fates, while family members are deprived of knowing the whereabouts of their
detained loved ones" and suffer as well the serious economic hardship and poverty that
in most cases follow the disappearance of the household breadwinner. [102]

The UN General Assembly first considered the issue of "Disappeared Persons" in

December 1978 under Resolution 33/173. The Resolution expressed the General
Assembly's deep concern arising from "reports from various parts of the world relating
to enforced or involuntary disappearances," and requested the "UN Commission on
Human Rights to consider the issue of enforced disappearances with a view to making
appropriate recommendations."[103]

In 1992, in response to the reality that the insidious practice of enforced disappearance
had become a global phenomenon, the UN General Assembly adopted the Declaration
on the Protection of All Persons from Enforced Disappearance (Declaration).
[104]
 This Declaration, for the first time, provided in its third preambular clause a working
description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or
abducted against their will or otherwise deprived of their liberty by officials of
different branches or levels of Government, or by organized groups or private
individuals acting on behalf of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to disclose the fate or
whereabouts of the persons concerned or a refusal to acknowledge the
deprivation of their liberty, which places such persons outside the protection of the
law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from Enforced Disappearance
(Convention).[105] The Convention was opened for signature in Paris, France on
February 6, 2007.[106] Article 2 of the Convention defined enforced disappearance as
follows:
For the purposes of this Convention, "enforced disappearance" is considered to be
the arrest, detention, abduction or any other form of deprivation of liberty by agents of
the State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the disappeared person, which
place such a person outside the protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is a
right not to be subject to enforced disappearance[107] and that this right is non-
derogable.[108] It provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political instability, or any other
public emergency. It obliges State Parties to codify enforced disappearance as an
offense punishable with appropriate penalties under their criminal law. [109] It also
recognizes the right of relatives of the disappeared persons and of the society as a
whole to know the truth on the fate and whereabouts of the disappeared and on the
progress and results of the investigation.[110] Lastly, it classifies enforced disappearance
as a continuing offense, such that statutes of limitations shall not apply until the fate and
whereabouts of the victim are established. [111]

Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance as a
crime. The absence of a specific penal law, however, is not a stumbling block for action
from this Court, as heretofore mentioned; underlying every enforced disappearance is a
violation of the constitutional rights to life, liberty and security that the Supreme Court is
mandated by the Constitution to protect through its rule-making powers.

Separately from the Constitution (but still pursuant to its terms), the Court is guided, in
acting on Amparo cases, by the reality that the Philippines is a member of the UN,
bound by its Charter and by the various conventions we signed and ratified, particularly
the conventions touching on humans rights. Under the UN Charter, the Philippines
pledged to "promote universal respect for, and observance of, human rights and
fundamental freedoms for all without distinctions as to race, sex, language or
religion."[112] Although no universal agreement has been reached on the precise extent
of the "human rights and fundamental freedoms" guaranteed to all by the Charter, [113] it
was the UN itself that issued the Declaration on enforced disappearance, and this
Declaration states:[114]
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a grave and
flagrant violation of human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and developed in international
instruments in this field. [Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter made in a
UN Declaration, the ban on enforced disappearance cannot but have its effects on the
country, given our own adherence to "generally accepted principles of international law
as part of the law of the land."[115]

In the recent case of Pharmaceutical and Health Care Association of the Philippines v.
Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation method applies
when, by mere constitutional declaration, international law is deemed to have the
force of domestic law. [Emphasis supplied]

We characterized "generally accepted principles of international law" as norms of

general or customary international law that are binding on all states. We held further: [117]
[G]enerally accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not derive from
treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring
it. [Emphasis in the original]

The most widely accepted statement of sources of international law today is Article
38(1) of the Statute of the International Court of Justice, which provides that the Court
shall apply "international custom, as evidence of a general practice accepted as
law."[118] The material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and other international
instruments, a pattern of treaties in the same form, the practice of international organs,
and resolutions relating to legal questions in the UN General Assembly. [119] Sometimes
referred to as "evidence" of international law, [120] these sources identify the substance
and content of the obligations of States and are indicative of the "State practice" and
"opinio juris" requirements of international law. [121] We note the following in these
respects:

First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American Convention on
Enforced Disappearance of Persons in June 1994. [122] State parties undertook under this
Convention "not to practice, permit, or tolerate the forced disappearance of persons,
even in states of emergency or suspension of individual guarantees." [123] One of the key
provisions includes the States' obligation to enact the crime of forced disappearance in
their respective national criminal laws and to establish jurisdiction over such cases
when the crime was committed within their jurisdiction, when the victim is a national of
that State, and "when the alleged criminal is within its territory and it does not proceed
to extradite him," which can be interpreted as establishing universal jurisdiction among
the parties to the Inter-American Convention. [124] At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate laws in accordance with the
Inter-American Convention and have defined activities involving enforced
disappearance to be criminal.[125]

Second, in Europe, the European Convention on Human Rights has no explicit

provision dealing with the protection against enforced disappearance. The European
Court of Human Rights (ECHR), however, has applied the Convention in a way that
provides ample protection for the underlying rights affected by enforced disappearance
through the Convention's Article 2 on the right to life; Article 3 on the prohibition of
torture; Article 5 on the right to liberty and security; Article 6, paragraph 1 on the right to
a fair trial; and Article 13 on the right to an effective remedy. A leading example
demonstrating the protection afforded by the European Convention is Kurt v. Turkey,
[126]
 where the ECHR found a violation of the right to liberty and security of the
disappeared person when the applicant's son disappeared after being taken into
custody by Turkish forces in the Kurdish village of Agilli in November 1993. It further
found the applicant (the disappeared person's mother) to be a victim of a violation of
Article 3, as a result of the silence of the authorities and the inadequate character of the
investigations undertaken. The ECHR also saw the lack of any meaningful investigation
by the State as a violation of Article 13.[127]

Third, in the United States, the status of the prohibition on enforced disappearance as
part of customary international law is recognized in the most recent edition
of Restatement of the Law: The Third,[128] which provides that "[a] State violates
international law if, as a matter of State policy, it practices, encourages, or condones...
(3) the murder or causing the disappearance of individuals." [129] We significantly note
that in a related matter that finds close identification with enforced disappearance - the
matter of torture - the United States Court of Appeals for the Second Circuit Court held
in Filartiga v. Pena-Irala[130] that the prohibition on torture had attained the status of
customary international law. The court further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they specify with great precision the
obligations of member nations under the Charter. Since their adoption, "(m)embers can
no longer contend that they do not know what human rights they promised in the
Charter to promote." Moreover, a U.N. Declaration is, according to one authoritative
definition, "a formal and solemn instrument, suitable for rare occasions when principles
of great and lasting importance are being enunciated." Accordingly, it has been
observed that the Universal Declaration of Human Rights "no longer fits into the
dichotomy of `binding treaty' against `non-binding pronouncement,' but is rather an
authoritative statement of the international community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the expectation is gradually justified by State
practice, a declaration may by custom become recognized as laying down rules binding
upon the States." Indeed, several commentators have concluded that the Universal
Declaration has become, in toto, a part of binding, customary international law.
[Citations omitted]

Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the

International Convention on Civil and Political Rights (ICCPR), to which the Philippines
is both a signatory and a State Party, the UN Human Rights Committee, under the
Office of the High Commissioner for Human Rights, has stated that the act of enforced
disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman
or degrading treatment or punishment) and 9 (right to liberty and security of the person)
of the ICCPR, and the act may also amount to a crime against humanity. [131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International
Criminal Court (ICC) also covers enforced disappearances insofar as they are defined
as crimes against humanity,[132] i.e., crimes "committed as part of a widespread or
systematic attack against any civilian population, with knowledge of the attack." While
more than 100 countries have ratified the Rome Statute, [133] the Philippines is still merely
a signatory and has not yet ratified it. We note that Article 7(1) of the Rome Statute has
been incorporated in the statutes of other international and hybrid tribunals, including
Sierra Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and
the Extraordinary Chambers in the Courts of Cambodia. [134] In addition, the
implementing legislation of State Parties to the Rome Statute of the ICC has given rise
to a number of national criminal provisions also covering enforced disappearance. [135]

While the Philippines is not yet formally bound by the terms of the Convention on

enforced disappearance (or by the specific terms of the Rome Statute) and has not
formally declared enforced disappearance as a specific crime, the above recital shows
that enforced disappearance as a State practice has been repudiated by the
international community, so that the ban on it is now a generally accepted
principle of international law, which we should consider a part of the law of the
land, and which we should act upon to the extent already allowed under our laws
and the international conventions that bind us.

The following civil or political rights under the Universal Declaration of Human Rights,
the ICCPR and the International Convention on Economic, Social and Cultural Rights
(ICESR) may be infringed in the course of a disappearance: [136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.
[Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the right to
an effective remedy under Article 2 of the ICCPR includes the obligation of the State to
investigate ICCPR violations promptly, thoroughly, and effectively, viz:[137]
15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant
rights, States Parties must ensure that individuals also have accessible and
effective remedies to vindicate those rights... The Committee attaches importance to
States Parties' establishing appropriate judicial and administrative mechanisms for
addressing claims of rights violations under domestic law... Administrative
mechanisms are particularly required to give effect to the general obligation to
investigate allegations of violations promptly, thoroughly and effectively through
independent and impartial bodies. A failure by a State Party to investigate allegations
of violations could in and of itself give rise to a separate breach of the Covenant.
Cessation of an ongoing violation is an essential element of the right to an effective
remedy. [Emphasis supplied]

The UN Human Rights Committee further stated in the same General Comment No. 31
that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR
violations could in and of itself give rise to a separate breach of the Covenant, thus: [138]
18. Where the investigations referred to in paragraph 15 reveal violations of certain
Covenant rights, States Parties must ensure that those responsible are brought to
justice. As with failure to investigate, failure to bring to justice perpetrators of
such violations could in and of itself give rise to a separate breach of the
Covenant. These obligations arise notably in respect of those violations
recognized as criminal under either domestic or international law, such as torture
and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary
killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently,
6). Indeed, the problem of impunity for these violations, a matter of sustained concern
by the Committee, may well be an important contributing element in the recurrence of
the violations. When committed as part of a widespread or systematic attack on a
civilian population, these violations of the Covenant are crimes against humanity (see
Rome Statute of the International Criminal Court, article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right to

security of persons is a guarantee of the protection of one's right by the government,
held that:
The right to security of person in this third sense is a corollary of the policy that the
State "guarantees full respect for human rights" under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective investigations,
organization of the government apparatus to extend protection to victims of
extralegal killings or enforced disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez Rodriguez
Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an objective
and be assumed by the State as its own legal duty, not as a step taken by private
interests that depends upon the initiative of the victim or his family or upon their
offer of proof, without an effective search for the truth by the government. [Emphasis
supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the "right to

security" not only as a prohibition on the State against arbitrary deprivation of liberty, but
also as the imposition of a positive duty to afford protection to the right to liberty. The
Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrariness... Having
assumed control over that individual, it is incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an arguable
claim that a person has been taken into custody and has not been seen since.
[Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo,
which the Court made effective on October 24, 2007. Although the Amparo Rule still
has gaps waiting to be filled through substantive law, as evidenced primarily by the lack
of a concrete definition of "enforced disappearance," the materials cited above,
among others, provide ample guidance and standards on how, through the
medium of the Amparo Rule, the Court can provide remedies and protect the
constitutional rights to life, liberty and security that underlie every enforced
disappearance.

Evidentiary Difficulties Posed

by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the burden of
proving the allegations of the petition for the Writ of Amparo by the degree of proof
required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties
presented by enforced disappearance cases; these difficulties form part of the setting
that the implementation of the Amparo Rule shall encounter.

These difficulties largely arise because the State itself - the party whose involvement is
alleged - investigates enforced disappearances. Past experiences in other jurisdictions
show that the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct

perpetrators.[141] Experts note that abductors are well organized, armed and usually
members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under some
form of governmental authority. In many countries the units that plan, implement and
execute the program are generally specialized, highly-secret bodies within the armed or
security forces. They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent any interference
by the "legal" police forces. These authorities take their victims to secret detention
centers where they subject them to interrogation and torture without fear of judicial or
other controls.[142]

In addition, there are usually no witnesses to the crime; if there are, these witnesses are
usually afraid to speak out publicly or to testify on the disappearance out of fear for their
own lives.[143] We have had occasion to note this difficulty in Secretary of Defense v.
Manalo[144] when we acknowledged that "where powerful military officers are implicated,
the hesitation of witnesses to surface and testify against them comes as no surprise."

Second, deliberate concealment of pertinent evidence of the disappearance is a

distinct possibility; the central piece of evidence in an enforced disappearance - i.e.,
the corpus delicti or the victim's body - is usually concealed to effectively thwart the start
of any investigation or the progress of one that may have begun. [145] The problem for the
victim's family is the State's virtual monopoly of access to pertinent evidence. The Inter-
American Court of Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced disappearance is the deliberate
use of the State's power to destroy the pertinent evidence. The IACHR described the
concealment as a clear attempt by the State to commit the perfect crime. [147]

Third is the element of denial; in many cases, the State authorities deliberately deny
that the enforced disappearance ever occurred. [148] "Deniability" is central to the policy of
enforced disappearances, as the absence of any proven disappearance makes it easier
to escape the application of legal standards ensuring the victim's human rights.
[149]
 Experience shows that government officials typically respond to requests for
information about desaparecidos by saying that they are not aware of any
disappearance, that the missing people may have fled the country, or that their names
have merely been invented.[150]
These considerations are alive in our minds, as these are the difficulties we confront, in
one form or another, in our consideration of this case.

Evidence and Burden of Proof in

Enforced Disappearances Cases

Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding

and the degree and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to simplify the
issues and determine the possibility of obtaining stipulations and admissions from the
parties.
xxxx

Section 17. Burden of Proof and Standard of Diligence Required. - The parties shall
establish their claims by substantial evidence.

The respondent who is a private individual must prove that ordinary diligence as
required by applicable laws, rules and regulations was observed in the performance of
duty.

The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.

The respondent public official or employee cannot invoke the presumption that official
duty has been regularly performed or evade responsibility or liability.

Section 18. Judgment. - ... If the allegations in the petition are proven by substantial

evidence, the court shall grant the privilege of the writ and such reliefs as may be
proper and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]

These characteristics - namely, of being summary and the use of substantial evidence
as the required level of proof (in contrast to the usual preponderance of evidence or
proof beyond reasonable doubt in court proceedings) - reveal the clear intent of the
framers of the Amparo Rule to have the equivalent of an administrative proceeding,
albeit judicially conducted, in addressing Amparo situations. The standard of diligence
required - the duty of public officials and employees to observe extraordinary diligence -
point, too, to the extraordinary measures expected in the protection of constitutional
rights and in the consequent handling and investigation of extra-judicial killings and
enforced disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to properly comply with

the substance and form requirements of a Writ of Amparo petition, as discussed above,
and prove the allegations by substantial evidence. Once a rebuttable case has been
proven, the respondents must then respond and prove their defenses based on the
standard of diligence required. The rebuttable case, of course, must show that an
enforced disappearance took place under circumstances showing a violation of the
victim's constitutional rights to life, liberty or security, and the failure on the part of the
investigating authorities to appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided the Court
its first opportunity to define the substantial evidence required to arrive at a valid
decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion. [citations
omitted] The statute provides that `the rules of evidence prevailing in courts of law and
equity shall not be controlling.' The obvious purpose of this and similar provisions is to
free administrative boards from the compulsion of technical rules so that the mere
admission of matter which would be deemed incompetent in judicial proceedings would
not invalidate the administrative order. [citations omitted] But this assurance of a
desirable flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis supplied]

In Secretary of Defense v. Manalo,[152] which was the Court's first petition for a Writ
of Amparo, we recognized that the full and exhaustive proceedings that the substantial
evidence standard regularly requires do not need to apply due to the summary nature
of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings. [Emphasis supplied]

Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the

unique difficulties presented by the nature of enforced disappearances, heretofore
discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be
given a chance to achieve its objectives. These evidentiary difficulties compel the Court
to adopt standards appropriate and responsive to the circumstances, without
transgressing the due process requirements that underlie every proceeding.

In the seminal case of Velasquez Rodriguez,[153] the IACHR - faced with a lack of direct
evidence that the government of Honduras was involved in Velasquez Rodriguez'
disappearance - adopted a relaxed and informal evidentiary standard, and established
the rule that presumes governmental responsibility for a disappearance if it can be
proven that the government carries out a general practice of enforced disappearances
and the specific case can be linked to that practice. [154] The IACHR took note of the
realistic fact that enforced disappearances could be proven only through circumstantial
or indirect evidence or by logical inference; otherwise, it was impossible to prove that an
individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct evidence,
whether testimonial or documentary, is not the only type of evidence that may be
legitimately considered in reaching a decision. Circumstantial evidence, indicia, and
presumptions may be considered, so long as they lead to conclusions consistent
with the facts.

131. Circumstantial or presumptive evidence is especially important in allegations

of disappearances, because this type of repression is characterized by an attempt
to suppress all information about the kidnapping or the whereabouts and fate of
the victim. [Emphasis supplied]

In concluding that the disappearance of Manfredo Velásquez (Manfredo) was carried

out by agents who acted under cover of public authority, the IACHR relied on
circumstantial evidence including the hearsay testimony of Zenaida Velásquez, the
victim's sister, who described Manfredo's kidnapping on the basis of conversations she
had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad
daylight. She also told the Court that a former Honduran military official had announced
that Manfredo was kidnapped by a special military squadron acting under orders of the
Chief of the Armed Forces.[155] The IACHR likewise considered the hearsay testimony of
a second witness who asserted that he had been told by a Honduran military officer
about the disappearance, and a third witness who testified that he had spoken in prison
to a man who identified himself as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique

circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be used
as an effective counter-measure; we only compound the problem if a wrong is
addressed by the commission of another wrong. On the other hand, we cannot be very
strict in our evidentiary rules and cannot consider evidence the way we do in the usual
criminal and civil cases; precisely, the proceedings before us are administrative in
nature where, as a rule, technical rules of evidence are not strictly observed. Thus,
while we must follow the substantial evidence rule, we must observe flexibility in
considering the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced
in their totality, and to consider any evidence otherwise inadmissible under our usual
rules to be admissible if it is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason - i.e., to the relevance
of the evidence to the issue at hand and its consistency with all other pieces of
adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies
this basic minimum test.

We note in this regard that the use of flexibility in the consideration of evidence is not at
all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on
Examination of a Child Witness[157] is expressly recognized as an exception to the
hearsay rule. This Rule allows the admission of the hearsay testimony of a child
describing any act or attempted act of sexual abuse in any criminal or non-criminal
proceeding, subject to certain prerequisites and the right of cross-examination by the
adverse party. The admission of the statement is determined by the court in light of
specified subjective and objective considerations that provide sufficient indicia of
reliability of the child witness.[158] These requisites for admission find their counterpart in
the present case under the above-described conditions for the exercise of flexibility in
the consideration of evidence, including hearsay evidence, in extrajudicial killings and
enforced disappearance cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced disappearance
within the meaning of this term under the UN Declaration we have cited?

The Convention defines enforced disappearance as "the arrest, detention, abduction or

any other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by
a refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law."[159] Under this definition, the elements that constitute enforced
disappearance are essentially fourfold:[160]
(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons acting with
the authorization, support or acquiescence of the State;

(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of

the disappeared person; and

(d) placement of the disappeared person outside the protection of the law. [Emphasis
supplied]

We find no direct evidence indicating how the victim actually disappeared. The direct

evidence at hand only shows that Tagitis went out of the ASY Pension House after
depositing his room key with the hotel desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned - the petitioner, Tagitis' colleagues
and even the police authorities - is that Tagistis disappeared under mysterious
circumstances and was never seen again. The respondent injected the causal element
in her petition and testimony, as we shall discuss below.

We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga

abducted or arrested Tagitis. If at all, only the respondent's allegation that Tagistis was
under CIDG Zamboanga custody stands on record, but it is not supported by any other
evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as her
bases for her allegation that Tagistis had been placed under government custody (in
contrast with CIDG Zamboanga custody). The first was an unnamed friend in
Zamboanga (later identified as Col. Ancanan), who occupied a high position in the
military and who allegedly mentioned that Tagitis was in good hands. Nothing came out
of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to
establish that Col. Ancanan gave them any information that Tagitis was in government
custody. Col. Ancanan, for his part, admitted the meeting with the respondent but
denied giving her any information about the disappearance.

The more specific and productive source of information was Col. Kasim, whom
the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao
City. To quote the relevant portions of the respondent's testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of
your husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col.
Casim, told me that my husband is being abducted [sic] because he is
under custodial investigation because he is allegedly
"parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jema'ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of
yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those
reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma'am.
Q: And a certain Col. Kasim told you that your husband was abducted and
under custodial investigation?
A: Yes, ma'am.
Q: And you mentioned that he showed you a report?
A: Yes, ma'am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic]
were highly confidential. That is a military report, ma'am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma'am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma'am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
ma'am.[162]
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other
people na parang mga terorista na mga tao. Tapos at the end of the report
is [sic] under custodial investigation. So I told him "Colonel, my husband is
sick. He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa
naghohold sa asawa ko na bigyan siya ng gamot, ma'am."[163]
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being
held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that
information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na
yun na effort ko because I know that they would deny it, ma'am.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
testimony that her husband was abducted and held under custodial investigation by the
PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November
24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that
time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if
he can furnish us the location of Engr. Tagitis. And he was reading this
report. He told us that Engr. Tagitis is in good hands. He is with the
military, but he is not certain whether he is with the AFP or PNP. He has
this serious case. He was charged of terrorism because he was under
surveillance from January 2007 up to the time that he was abducted. He
told us that he was under custodial investigation. As I've said earlier, he
was seen under surveillance from January. He was seen talking to Omar
Patik, a certain Santos of Bulacan who is also a Balik Islam and charged
 with terrorism. He was seen carrying boxes of medicines. Then we asked
him how long will he be in custodial investigation. He said until we can get
some information. But he also told us that he cannot give us that report
because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document form, in a
piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don't know if it was
computerized but I'm certain that it was typewritten. I'm not sure if it used
computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading
in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir. [165]
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned
this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I've mentioned, we just waited because that raw information
that he was reading to us [sic] after the custodial investigation, Engineer Tagitis
will be released. [Emphasis supplied] [166]

Col. Kasim never denied that he met with the respondent and her friends, and that he
provided them information based on the input of an unnamed asset. He simply claimed
in his testimony that the "informal letter" he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. He also stressed that the
information he provided the respondent was merely a "raw report" from
"barangay intelligence" that still needed confirmation and "follow up" as to its veracity.
[167]

To be sure, the respondent's and Mrs. Talbin's testimonies were far from perfect, as the
petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a
"military officer" who told her that "her husband is being abducted because he is under
custodial investigation because he is allegedly `parang liason ng J.I.'" The petitioners
also noted that "Mrs. Talbin's testimony imputing certain statements to Sr. Supt. Kasim
that Engr. Tagitis is with the military, but he is not certain whether it is the PNP or AFP
is not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would
certainly know that the PNP is not part of the military."

Upon deeper consideration of these inconsistencies, however, what appears clear to us

is that the petitioners never really steadfastly disputed or presented evidence to refute
the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that should not affect the
credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material
points.[168] We note, for example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the police and the military is
not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather
than prevarication[169] and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot but
generate suspicion that the material circumstances they testified to were integral parts
of a well thought of and prefabricated story.[170]

Based on these considerations and the unique evidentiary situation in enforced

disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informant's letter, that Tagitis,
reputedly a liaison for the JI and who had been under surveillance since January
2007, was "in good hands" and under custodial investigation for complicity with
the JI after he was seen talking to one Omar Patik and a certain "Santos" of
Bulacan, a "Balik Islam" charged with terrorism. The respondent's and Mrs. Talbin's
testimonies cannot simply be defeated by Col. Kasim's plain denial and his claim that he
had destroyed his informant's letter, the critical piece of evidence that supports or
negates the parties' conflicting claims. Col. Kasim's admitted destruction of this letter -
effectively, a suppression of this evidence - raises the presumption that the letter, if
produced, would be proof of what the respondent claimed. [171] For brevity, we shall call
the evidence of what Col. Kasim reported to the respondent to be the "Kasim evidence."

Given this evidence, our next step is to decide whether we can accept this evidence, in
lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with
government participation, knowledge or consent and that he was held for custodial
investigation. We note in this regard that Col. Kasim was never quoted to have said that
the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only
implies government intervention through the use of the term "custodial investigation,"
and does not at all point to CIDG Zamboanga as Tagitis' custodian.

Strictly speaking, we are faced here with a classic case of hearsay evidence - i.e.,
evidence whose probative value is not based on the personal knowledge of the
witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of
some other person not on the witness stand (the informant). [172]

To say that this piece of evidence is incompetent and inadmissible evidence of what it
substantively states is to acknowledge - as the petitioners effectively suggest - that in
the absence of any direct evidence, we should simply dismiss the petition. To our mind,
an immediate dismissal for this reason is no different from a statement that
the Amparo Rule - despite its terms - is ineffective, as it cannot allow for the special
evidentiary difficulties that are unavoidably present in Amparo situations, particularly in
extrajudicial killings and enforced disappearances. The Amparo Rule was not
promulgated with this intent or with the intent to make it a token gesture of concern for
constitutional rights. It was promulgated to provide effective and timely remedies, using
and profiting from local and international experiences in extrajudicial killings and
enforced disappearances, as the situation may require. Consequently, we have no
choice but to meet the evidentiary difficulties inherent in enforced disappearances with
the flexibility that these difficulties demand.
To give full meaning to our Constitution and the rights it protects, we hold that, as
in Velasquez, we should at least take a close look at the available evidence to
determine the correct import of every piece of evidence - even of those usually
considered inadmissible under the general rules of evidence - taking into account the
surrounding circumstances and the test of reason that we can use as basic minimum
admissibility requirement. In the present case, we should at least determine whether the
Kasim evidence before us is relevant and meaningful to the disappearance of Tagistis
and reasonably consistent with other evidence in the case.

The evidence about Tagitis' personal circumstances surrounded him with an air of
mystery. He was reputedly a consultant of the World Bank and a Senior Honorary
Counselor for the IDB who attended a seminar in Zamboanga and thereafter proceded
to Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a
return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records
indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof.
Matli, early on informed the Jolo police that Tagitis may have taken funds given to him
in trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis of
taking away money held in trust, although he confirmed that the IDB was seeking
assistance in locating funds of IDB scholars deposited in Tagitis' personal account.
Other than these pieces of evidence, no other information exists in the records relating
to the personal circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal circumstances. While

the Amparo petition recited that he was taken away by "burly men believed to be police
intelligence operatives," no evidence whatsoever was introduced to support this
allegation. Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m.
of October 30, 2007 - the day he arrived in Jolo - and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of direct evidence on
the above aspects of the case, as it supplies the gaps that were never looked into and
clarified by police investigation. It is the evidence, too, that colors a simple missing
person report into an enforced disappearance case, as it injects the element of
participation by agents of the State and thus brings into question how the State reacted
to the disappearance.

Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there was
active Jolo police investigation and how and why the Jolo police arrived at this
conclusion. The respondent's own inquiry in Jolo yielded the answer that he was not
missing but was with another woman somewhere. Again, no evidence exists that this
explanation was arrived at based on an investigation. As already related above, the
inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for
evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive
results. Col. Kasim's story, however, confirmed only the fact of his custodial
investigation (and, impliedly, his arrest or abduction), without identifying his abductor/s
or the party holding him in custody. The more significant part of Col. Kasim's story is
that the abduction came after Tagitis was seen talking with Omar Patik and a certain
Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs. Talbin mentioned, too,
that Tagitis was being held at Talipapao, Sulu. None of the police agencies participating
in the investigation ever pursued these leads. Notably, Task Force Tagitis to which this
information was relayed did not appear to have lifted a finger to pursue these aspects of
the case.

More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he
sent to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and
these reports merely reiterated the open-ended initial report of the disappearance. The
CIDG directed a search in all of its divisions with negative results. These, to the PNP
Chief, constituted the exhaustion "of all possible efforts." PNP-CIDG Chief General
Edgardo M. Doromal, for his part, also reported negative results after searching "all
divisions and departments [of the CIDG] for a person named Engr. Morced N.
Tagitis . . . and after a diligent and thorough research, records show that no such
person is being detained in the CIDG or any of its department or divisions." PNP-
PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional Director
PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they
essentially reported the results of their directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the CA
constituted Task Force Tagitis, with specific directives on what to do. The negative
results reflected in the Returns on the writ were again replicated during the three
hearings the CA scheduled. Aside from the previously mentioned "retraction" that Prof.
Matli made to correct his accusation that Tagitis took money held in trust for students,
PS Supt. Ajirim reiterated in his testimony that the CIDG consistently denied any
knowledge or complicity in any abduction and said that there was no basis to conclude
that the CIDG or any police unit had anything to do with the disappearance of Tagitis;
he likewise considered it premature to conclude that Tagitis simply ran away with the
money in his custody. As already noted above, the Task Force notably did not pursue
any investigation about the personal circumstances of Tagitis, his background in relation
to the IDB and the background and activities of this Bank itself, and the reported
sighting of Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt
appears to have ever been made to look into the alleged IDB funds that Tagitis held in
trust, or to tap any of the "assets" who are indispensable in investigations of this nature.
These omissions and negative results were aggravated by the CA findings that it was
only as late as January 28, 2008 or three months after the disappearance that the police
authorities requested for clear pictures of Tagitis. Col. Kasim could not attend the trial
because his subpoena was not served, despite the fact that he was designated as
Ajirim's replacement in the latter's last post. Thus, Col. Kasim was not then questioned.
No investigation - even an internal one - appeared to have been made to inquire into the
identity of Col. Kasim's "asset" and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency in
the government's denial of any complicity in the disappearance of Tagitis,
disrupted only by the report made by Col. Kasim to the respondent at Camp
Katitipan. Even Col. Kasim, however, eventually denied that he ever made the
disclosure that Tagitis was under custodial investigation for complicity in
terrorism. Another distinctive trait that runs through these developments is the
government's dismissive approach to the disappearance, starting from the initial
response by the Jolo police to Kunnong's initial reports of the disappearance, to the
responses made to the respondent when she herself reported and inquired about her
husband's disappearance, and even at Task Force Tagitis itself.

As the CA found through Task Force Tagitis, the investigation was at best haphazard
since the authorities were looking for a man whose picture they initially did not even
secure. The returns and reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of Tagitis in their various
departments and divisions. To point out the obvious, if the abduction of Tagitis was a
"black" operation because it was unrecorded or officially unauthorized, no record of
custody would ever appear in the CIDG records; Tagitis, too, would not be detained in
the usual police or CIDG detention places. In sum, none of the reports on record
contains any meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials indicating the personnel
and units they directed to investigate can never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of the activities undertaken to
search for Tagitis. Indisputably, the police authorities from the very beginning failed to
come up to the extraordinary diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasim's disclosure, made in an

unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard investigations
cannot but point to this conclusion. For why would the government and its officials
engage in their chorus of concealment if the intent had not been to deny what they
already knew of the disappearance? Would not an in-depth and thorough investigation
that at least credibly determined the fate of Tagitis be a feather in the government's cap
under the circumstances of the disappearance? From this perspective, the evidence
and developments, particularly the Kasim evidence, already establish a concrete case
of enforced disappearance that the Amparo Rule covers. From the prism of the UN
Declaration, heretofore cited and quoted,[173] the evidence at hand and the
developments in this case confirm the fact of the enforced disappearance and
government complicity, under a background of consistent and unfounded government
denials and haphazard handling. The disappearance as well effectively placed Tagitis
outside the protection of the law - a situation that will subsist unless this Court acts.

This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the same,
the facts of this case run very close to those of Timurtas v. Turkey,[174] a case decided
by ECHR. The European tribunal in that case acted on the basis of the photocopy of a
"post-operation report" in finding that Abdulvahap Timurtas (Abdulvahap) was abducted
and later detained by agents (gendarmes) of the government of Turkey. The victim's
father in this case brought a claim against Turkey for numerous violations of the
European Convention, including the right to life (Article 2) and the rights to liberty and
security of a person (Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish
Workers' Party (PKK) in the Silopi region. The petition was filed in southeast Turkey
nearly six and one half years after the apprehension. According to the
father, gendarmes first detained Abdulvahap and then transferred him to another
detainment facility. Although there was no eyewitness evidence of the
apprehension or subsequent detainment, the applicant presented evidence
corroborating his version of events, including a photocopy of a post-operation
report signed by the commander of gendarme operations in Silopi, Turkey. The
report included a description of Abdulvahap's arrest and the result of a subsequent
interrogation during detention where he was accused of being a leader of the PKK in the
Silopi region. On this basis, Turkey was held responsible for Abdulvahap's enforced
disappearance.

Following the lead of this Turkish experience - adjusted to the Philippine legal
setting and the Amparo remedy this Court has established, as applied to the
unique facts and developments of this case - we believe and so hold that the
government in general, through the PNP and the PNP-CIDG, and in particular, the
Chiefs of these organizations together with Col. Kasim, should be held fully
accountable for the enforced disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975,
otherwise known as the "PNP Law,"[175] specifies the PNP as the governmental office
with the mandate "to investigate and prevent crimes, effect the arrest of criminal
offenders, bring offenders to justice and assist in their prosecution." The PNP-CIDG, as
Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the "investigative
arm" of the PNP and is mandated to "investigate and prosecute all cases involving
violations of the Revised Penal Code, particularly those considered as heinous
crimes."[176] Under the PNP organizational structure, the PNP-CIDG is tasked to
investigate all major crimes involving violations of the Revised Penal Code and operates
against organized crime groups, unless the President assigns the case exclusively to
the National Bureau of Investigation (NBI).[177] No indication exists in this case showing
that the President ever directly intervened by assigning the investigation of Tagitis'
disappearance exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members were the ones
who were remiss in their duties when the government completely failed to exercise the
extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG
investigations and actions, and the validation of their results through hearings the CA
may deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-
CIDG shall initially present to the CA a plan of action for further investigation,
periodically reporting the detailed results of its investigation to the CA for its
consideration and action. On behalf of this Court, the CA shall pass upon: the need for
the PNP and the PNP-CIDG to make disclosures of matters known to them as indicated
in this Decision and as further CA hearings may indicate; the petitioners' submissions;
the sufficiency of their investigative efforts; and submit to this Court a quarterly
report containing its actions and recommendations, copy furnished the petitioners and
the respondent, with the first report due at the end of the first quarter counted from the
finality of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigation. The CA shall submit its full report for the consideration of
this Court at the end of the 4th quarter counted from the finality of this Decision.

WHEREFORE, premises considered, we DENY the petitioners' petition for review

on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated
March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced
disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility,
declaring the government (through the PNP and the PNP-CIDG) and Colonel
Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer
Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief,
directly responsible for the disclosure of material facts known to the government
and to their offices regarding the disappearance of Engineer Morced N. Tagitis,
and for the conduct of proper investigations using extraordinary diligence, with
the obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him
accountable with the obligation to disclose information known to him and to his
"assets" in relation with the enforced disappearance of Engineer Morced N.
Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings
directed at the monitoring of the PNP and PNP-CIDG investigations, actions and
the validation of their results; the PNP and the PNP-CIDG shall initially present to
the Court of Appeals a plan of action for further investigation, periodically
reporting their results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with its
recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as
petitioners and the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the
consideration of this Court at the end of the 4th quarter counted from the finality of
this Decision;
These directives and those of the Court of Appeals' made pursuant to this Decision shall
be given to, and shall be directly enforceable against, whoever may be the incumbent
Chiefs of the Philippine National Police and its Criminal Investigation and Detection
Group, under pain of contempt from this Court when the initiatives and efforts at
disclosure and investigation constitute less than the extraordinary diligence that the
Rule on the Writ of Amparo and the circumstances of this case demand. Given the
unique nature of Amparo cases and their varying attendant circumstances, these
directives - particularly, the referral back to and monitoring by the CA - are specific to
this case and are not standard remedies that can be applied to every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander Yano,

Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.

SO ORDERED.

Puno, C.J., Carpio, Corona, Carpio Morales, Chico-Nazario, Velasco, Jr., Nachura,
Leonrdo-De Castro, Peralta, Bersamin, Del Castillo, Abad, and Villarama, JJ., concur.

[ G.R. No. 184769, October 05, 2010 ]

MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO AND RUBEN A.
SAPITULA, PETITIONERS, VS. ROSARIO GOPEZ LIM, RESPONDENT.

DECISION

CARPIO MORALES, J.:

The Court is once again confronted with an opportunity to define the evolving metes and
bounds of the writ of habeas data. May an employee invoke the remedies available
under such writ where an employer decides to transfer her workplace on the basis of
copies of  an anonymous letter posted therein ─ imputing to her disloyalty to the
company and calling for her to leave, which imputation it investigated but fails to inform
her of the details thereof?

Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative clerk at the
Manila Electric Company (MERALCO).

On June 4, 2008, an anonymous letter was posted at the door of the Metering Office of
the Administration building of MERALCO Plaridel, Bulacan  Sector, at which respondent
is assigned, denouncing respondent. The letter reads:
Cherry Lim:

MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON NAMAN

AY GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA BUWAYA NG
GOBYERNO. KAPAL NG MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA
LOOB....[1]

Copies of the letter were also inserted in the lockers of MERALCO linesmen.  Informed
about it, respondent reported the matter on June 5, 2008 to the Plaridel Station of the
Philippine National Police.[2]

By Memorandum[3] dated July 4, 2008, petitioner Alexander Deyto, Head of

MERALCO's Human Resource Staffing, directed the transfer of respondent to
MERALCO's Alabang Sector in Muntinlupa as "A/F OTMS Clerk," effective July 18,
2008 in light of the receipt of "... reports that there were accusations and threats
directed against [her] from unknown individuals and which could possibly compromise
[her] safety and security."

Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A. Sapitula, Vice-
President and Head of MERALCO's Human Resource Administration, appealed her
transfer and requested for a dialogue so she could voice her concerns and misgivings
on the matter, claiming that the "punitive" nature of the transfer amounted to a denial of
due process.  Citing the grueling travel from her residence in Pampanga to Alabang and
back entails, and violation of the provisions on job security of their Collective Bargaining
Agreement (CBA), respondent expressed her thoughts on the alleged threats to her
security in this wise:
xxxx

I feel that it would have been better . . . if you could have intimated to me the nature of
the alleged accusations and threats so that at least I could have found out if these are
credible or even serious. But as you stated, these came from unknown individuals and
the way they were handled, it appears that the veracity of these accusations and threats
to be [sic] highly suspicious, doubtful or are just mere jokes if they existed at all.

Assuming for the sake of argument only, that the alleged threats exist as the
management apparently believe, then my transfer to an unfamiliar place and
environment which will make me a "sitting duck" so to speak, seems to betray the real
intent of management which is contrary to its expressed concern on my security and
safety . . . Thus, it made me think twice on the rationale for management's initiated
transfer. Reflecting further, it appears to me that instead of the management supposedly
extending favor to me, the net result and effect of management action would be
a punitive one.[4]   (emphasis and underscoring supplied)

Respondent thus requested for the deferment of the implementation of her transfer
pending resolution of the issues she raised.

No response to her request having been received, respondent filed a petition [5] for the
issuance of a writ of habeas data against petitioners before the Regional Trial Court
(RTC) of Bulacan, docketed as SP. Proc. No. 213-M-2008.
By respondent's allegation, petitioners' unlawful act and omission consisting of their
continued failure and refusal to provide her with details or information about the alleged
report which MERALCO purportedly received concerning threats to her safety and
security amount to a violation of her right to privacy in life, liberty and security,
correctible by habeas data. Respondent thus prayed for the issuance of a writ
commanding petitioners to file a written return containing the following:
a) a full disclosure of the data or information about respondent in relation to the report
purportedly received by petitioners on the alleged threat to her safety and security; the
nature of such data and the purpose for its collection;

b)   the measures taken by petitioners to ensure the confidentiality of such data or
information; and

c) the currency and accuracy of such data or information obtained.

Additionally, respondent prayed for the issuance of a Temporary Restraining Order

(TRO) enjoining petitioners from effecting her transfer to the MERALCO Alabang
Sector.

By Order[6] of August 29, 2008, Branch 7 of the Bulacan RTC directed petitioners to file
their verified written return.  And by Order of September 5, 2008, the trial court granted
respondent's application for a TRO.

Petitioners moved for the dismissal of the petition and recall of the TRO on the grounds
that, inter alia, resort to a petition for writ of habeas data was not in order; and the RTC
lacked jurisdiction over the case which properly belongs to the National Labor Relations
Commission (NLRC).[7]

By Decision[8] of September 22, 2008, the trial court granted the prayers of respondent
including the issuance of a writ of preliminary injunction directing petitioners to desist
from implementing respondent's transfer until such time that petitioners comply with the
disclosures required.

The trial court justified its ruling by declaring that, inter alia, recourse to a writ of habeas
data should extend not only to victims of extra-legal killings and political activists but
also to ordinary citizens, like respondent whose rights to life and security are
jeopardized by petitioners' refusal to provide her with information or data on the reported
threats to her person.

Hence, the present petition for review under Rule 45 of 1997 Rules of Civil Procedure
and the Rule on the Writ of Habeas Data[9] contending that   1) the RTC lacked
jurisdiction over the case and cannot restrain MERALCO's prerogative as employer to
transfer the place of work of its employees, and 2) the issuance of the writ is outside the
parameters expressly set forth in the Rule on the Writ of Habeas Data.[10]

Maintaining that the RTC has no jurisdiction over what they contend is clearly a labor
dispute, petitioners argue that "although ingeniously   crafted as a petition for habeas
data, respondent is essentially questioning the transfer of her place of work by her
employer"[11] and the terms and conditions of her employment which arise from an
employer-employee relationship over which the NLRC and the Labor Arbiters under
Article 217 of the Labor Code have jurisdiction.

Petitioners thus maintain that the RTC had no authority to restrain the implementation of
the Memorandum transferring respondent's place of work   which is purely a
management prerogative, and that OCA-Circular No. 79-2003 [12] expressly prohibits the
issuance of TROs or injunctive writs in labor-related cases.

Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the
issuance of the writ only against public officials or employees, or private individuals or
entities engaged in the gathering, collecting or storing of data or information regarding
an aggrieved party's person, family or home; and that MERALCO (or its officers) is
clearly not engaged in such activities.

The petition is impressed with merit.

Respondent's plea that she be spared from complying with MERALCO's Memorandum
directing her reassignment to the Alabang Sector, under the guise of a quest for
information or data allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.

Section 1 of the Rule on the Writ of Habeas Data provides:

Section 1. Habeas Data. - The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an
unlawful act or omission of a public official or employee or of a private individual or
entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the aggrieved
party. (emphasis and underscoring supplied)

The habeas data rule, in general, is designed to protect by means of judicial complaint

the image, privacy, honor, information, and freedom of information of an individual. It is
meant to provide a forum to enforce one's right to the truth and to informational privacy,
thus safeguarding the constitutional guarantees of a person's right to life, liberty and
security against abuse in this age of information technology.

It bears reiteration that like the writ of amparo, habeas data was conceived as a

response, given the lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced disappearances. Its intent is to
address violations of or threats to the rights to life, liberty or security as a remedy
independently from those provided under prevailing Rules.[13]

Castillo v. Cruz[14] underscores the emphasis laid down in Tapuz v. del Rosario[15] that

the writs of amparo and habeas data will NOT issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the petitions therefor
are vague or doubtful.[16]  Employment constitutes a property right under the context of
the due process clause of the Constitution. [17] It is evident that respondent's reservations
on the real reasons for her transfer - a legitimate concern respecting the terms and
conditions of one's employment - are what prompted her to adopt the extraordinary
remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law
with the NLRC and the Labor Arbiters.

In another vein, there is no showing from the facts presented that petitioners committed
any unjustifiable or unlawful violation of respondent's right to privacy vis-a-vis the right
to life, liberty or security. To argue that petitioners' refusal to disclose the contents of
reports allegedly received on the threats to respondent's safety amounts to a violation of
her right to privacy is at best speculative. Respondent in fact trivializes these threats
and accusations from unknown individuals in her earlier-quoted portion of her July 10,
2008 letter as "highly suspicious, doubtful or are just mere jokes if they existed at all." [18] 
And she even suspects that her transfer to another place of work "betray[s] the real
intent of management]" and could be a "punitive move."   Her posture unwittingly
concedes that the issue is labor-related.

WHEREFORE, the petition is GRANTED. The assailed September 22, 2008 Decision of
the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is
hereby REVERSED and SET ASIDE.   SP. Proc. No.  213-M-2008 is,
accordingly, DISMISSED.

[ G.R. No. 202666, September 29, 2014 ]

RHONDA AVE S. VIVARES AND SPS. MARGARITA AND DAVID SUZARA,
PETITIONERS, VS. ST. THERESA’S COLLEGE, MYLENE RHEZA T. ESCUDERO,
AND JOHN DOES, RESPONDENTS.

DECISION

VELASCO JR., J.:

The individual’s desire for privacy is never absolute, since participation in society is an
equally powerful desire. Thus each individual is continually engaged in a personal
adjustment process in which he balances the desire for privacy with the desire for
disclosure and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.
~ Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in
relation to Section 19 of A.M. No. 08-1-16-SC,[1] otherwise known as the “Rule on the
Writ of Habeas Data.” Petitioners herein assail the July 27, 2012 Decision [2] of the
Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which
dismissed their habeas data petition.
The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were,
during the period material, graduating high school students at St. Theresa’s College
(STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for a
beach party they were about to attend, Julia and Julienne, along with several others,
took digital pictures of themselves clad only in their undergarments. These pictures
were then uploaded by Angela Lindsay Tan (Angela) on her Facebook [3] profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at

STC’s high school department, learned from her students that some seniors at STC
posted pictures online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls in the photos
are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe),
among others.

Using STC’s computers, Escudero’s students logged in to their respective personal

Facebook accounts and showed her photos of the identified students, which include: (a)
Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia
and Julienne along the streets of Cebu wearing articles of clothing that show virtually
the entirety of their black brassieres. What is more, Escudero’s students claimed that
there were times when access to or the availability of the identified students’ photos was
not confined to the girls’ Facebook friends,[4] but were, in fact, viewable by any
Facebook user.[5]

Upon discovery, Escudero reported the matter and, through one of her student’s
Facebook page, showed the photos to Kristine Rose Tigol (Tigol), STC’s Discipline-in-
Charge, for appropriate action. Thereafter, following an investigation, STC found the
identified students to have deported themselves in a manner proscribed by the school’s
Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholic beverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains
sexually suggestive messages, language or symbols; and
6. Posing and uploading pictures on the Internet that entail ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr.
Purisima), STC’s high school principal and ICM[6] Directress. They claimed that during
the meeting, they were castigated and verbally abused by the STC officials present in
the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller,
and Tigol. What is more, Sr. Purisima informed their parents the following day that, as
part of their penalty, they are barred from joining the commencement exercises
scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan
(Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City against
STC, et al., docketed as Civil Case No. CEB-38594. [7]  In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that precluded Angela from joining
the commencement exercises. On March 25, 2012, petitioner Rhonda Ave Vivares
(Vivares), the mother of Julia, joined the fray as an intervenor.

On March 28, 2012, defendants in Civil Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in issue as annexes. That same day, the
RTC issued a temporary restraining order (TRO) allowing the students to attend the
graduation ceremony, to which STC filed a motion for reconsideration.

Despite the issuance of the TRO, STC, nevertheless, barred the sanctioned students
from participating in the graduation rites, arguing that, on the date of the
commencement exercises, its adverted motion for reconsideration on the issuance of
the TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of
Habeas Data, docketed as SP. Proc. No. 19251-CEB[8] on the basis of the following
considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for
posterity before they changed into their swimsuits on the occasion of a birthday
beach party;
2. The privacy setting of their children’s Facebook accounts was set at “Friends
Only.” They, thus, have a reasonable expectation of privacy which must be
respected.
3. Respondents, being involved in the field of education, knew or ought to have
known of laws that safeguard the right to privacy. Corollarily, respondents knew
or ought to have known that the girls, whose privacy has been invaded, are the
victims in this case, and not the offenders. Worse, after viewing the photos, the
minors were called “immoral” and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their rights by
saving digital copies of the photos and by subsequently showing them to STC’s
officials. Thus, the Facebook accounts of petitioners’ children were intruded
upon;
5. The intrusion into the Facebook accounts, as well as the copying of information,
data, and digital images happened at STC’s Computer Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted by
respondents through their memorandum submitted to the RTC in connection with
Civil Case No. CEB-38594.

To petitioners, the interplay of the foregoing constitutes an invasion of their children’s

privacy and, thus, prayed that: (a) a writ of habeas data be issued; (b) respondents be
ordered to surrender and deposit with the court all soft and printed copies of the subject
data before or at the preliminary hearing; and (c) after trial, judgment be rendered
declaring all information, data, and digital images accessed, saved or stored,
reproduced, spread and used, to have been illegally obtained in violation of the
children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated
July 5, 2012, issued the writ of habeas data. Through the same Order, herein
respondents were directed to file their verified written return, together with the
supporting affidavits, within five (5) working days from service of the writ.

In time, respondents complied with the RTC’s directive and filed their verified written
return, laying down the following grounds for the denial of the petition, viz: (a) petitioners
are not the proper parties to file the petition; (b) petitioners are engaging in forum
shopping; (c) the instant case is not one where a writ of habeas data may issue; and (d)
there can be no violation of their right to privacy as there is no reasonable expectation
of privacy on Facebook.
Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas
data. The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.[9]

To the trial court, petitioners failed to prove the existence of an actual or threatened
violation of the minors’ right to privacy, one of the preconditions for the issuance of the
writ of habeas data. Moreover, the court a quo held that the photos, having been
uploaded on Facebook without restrictions as to who may view them, lost their privacy
in some way. Besides, the RTC noted, STC gathered the photographs through legal
means and for a legal purpose, that is, the implementation of the school’s policies and
rules on discipline.

Not satisfied with the outcome, petitioners now come before this Court pursuant to
Section 19 of the Rule on Habeas Data.[10]
The Issues

The main issue to be threshed out in this case is whether or not a writ of habeas
data should be issued given the factual milieu. Crucial in resolving the controversy,
however, is the pivotal point of whether or not there was indeed an actual or threatened
violation of the right to privacy in the life, liberty, or security of the minors involved in this
case.
Our Ruling

We find no merit in the petition.

Procedural issues concerning the

availability of the Writ of Habeas Data

The writ of habeas data is a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party. [11] It is an independent and summary remedy
designed to protect the image, privacy, honor, information, and freedom of information
of an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding
oneself, particularly in instances in which such information is being collected through
unlawful means in order to achieve unlawful ends. [12]

In developing the writ of habeas data, the Court aimed to protect an individual’s right to
informational privacy, among others. A comparative law scholar has, in fact,
defined habeas data as “a procedure designed to safeguard individual freedom from
abuse in the information age.”[13] The writ, however, will not issue on the basis merely of
an alleged unauthorized access to information about a person. Availment of the writ
requires the existence of a nexus between the right to privacy on the one hand, and the
right to life, liberty or security on the other.[14] Thus, the existence of a person’s right to
informational privacy and a showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim are
indispensable before the privilege of the writ may be extended. [15]

Without an actionable entitlement in the first place to the right to informational privacy,
a habeas data petition will not prosper. Viewed from the perspective of the case at bar,
this requisite begs this question: given the nature of an online social network (OSN)––
(1) that it facilitates and promotes real-time interaction among millions, if not billions, of
users, sans the spatial barriers,[16] bridging the gap created by physical space; and (2)
that any information uploaded in OSNs leaves an indelible trace in the provider’s
databases, which are outside the control of the end-users––is there a right to
informational privacy in OSN activities of its users? Before addressing this point,
We must first resolve the procedural issues in this case.
a. The writ of habeas data is not only confined to
cases of extralegal killings and enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Data was not
enacted solely for the purpose of complementing the Writ of Amparo in cases of
extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas
data. However, in cases of extralegal killings and enforced disappearances, the
petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degree of consanguinity or affinity, in default of those mentioned
in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to cases of
extralegal killings or enforced disappearances, the above underscored portion of
Section 2, reflecting a variance of habeas data situations, would not have been made.

Habeas data, to stress, was designed “to safeguard individual freedom from abuse in
the information age.”[17] As such, it is erroneous to limit its applicability to extralegal
killings and enforced disappearances only. In fact, the annotations to the Rule prepared
by the Committee on the Revision of the Rules of Court, after explaining that the Writ
of Habeas Data complements the Writ of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an independent remedy to
enforce one’s right to privacy, more specifically the right to informational
privacy. The remedies against the violation of such right can include the updating,
rectification, suppression or destruction of the database or information or files in
possession or in control of respondents. [18] (emphasis Ours)

Clearly then, the privilege of the Writ of Habeas Data may also be availed of in cases
outside of extralegal killings and enforced disappearances.
b. Meaning of “engaged” in the gathering,
collecting or storing of data or information
Respondents’ contention that the habeas data writ may not issue against STC, it not
being an entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party, while
valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be
available only against abuses of a person or entity engaged in the business of
gathering, storing, and collecting of data. As provided under Section 1 of the Rule:
Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened by an unlawful
act or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved party. (emphasis
Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the idea
that habeas data is a protection against unlawful acts or omissions of public officials and
of private individuals or entities engaged in gathering, collecting, or storing data about
the aggrieved party and his or her correspondences, or about his or her family. Such
individual or entity need not be in the business of collecting or storing data.

To “engage” in something is different from undertaking a business endeavour. To

“engage” means “to do or take part in something.” [19]  It does not necessarily mean that
the activity must be done in pursuit of a business. What matters is that the person or
entity must be gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Whether such undertaking carries the element of
regularity, as when one pursues a business, and is in the nature of a personal
endeavour, for any other reason or even for no reason at all, is immaterial and such will
not prevent the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach of
the writ to a very small group, i.e., private persons and entities whose business is data
gathering and storage, and in the process decreasing the effectiveness of the writ as an
instrument designed to protect a right which is easily violated in view of rapid
advancements in the information and communications technology––a right which a
great majority of the users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the
controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacy has, through time, greatly evolved, with technological

advancements having an influential part therein. This evolution was briefly recounted in
former Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy,
[20]
 where he explained the three strands of the right to privacy, viz: (1) locational or
situational privacy;[21] (2) informational privacy; and (3) decisional privacy. [22] Of the
three, what is relevant to the case at bar is the right to informational privacy––usually
defined as the right of individuals to control information about themselves.[23]

With the availability of numerous avenues for information gathering and data sharing
nowadays, not to mention each system’s inherent vulnerability to attacks and intrusions,
there is more reason that every individual’s right to control said flow of information
should be protected and that each individual should have at least a reasonable
expectation of privacy in cyberspace. Several commentators regarding privacy and
social networking sites, however, all agree that given the millions of OSN users, “[i]n this
[Social Networking] environment, privacy is no longer grounded in reasonable
expectations, but rather in some theoretical protocol better known as wishful thinking.” [24]

It is due to this notion that the Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or information
and to remedy possible violations of the right to privacy. [25] In the same vein, the South
African High Court, in its Decision in the landmark case, H v. W,[26] promulgated on
January 30, 2013, recognized that “[t]he law has to take into account the changing
realities not only technologically but also socially or else it will lose credibility in the eyes
of the people. x x x It is imperative that the courts respond appropriately to changing
times, acting cautiously and with wisdom.” Consistent with this, the Court, by developing
what may be viewed as the Philippine model of the writ of habeas data, in effect,
recognized that, generally speaking, having an expectation of informational privacy
is not necessarily incompatible with engaging in cyberspace activities, including
those that occur in OSNs.

The question now though is up to what extent is the right to privacy protected in OSNs?
Bear in mind that informational privacy involves personal information. At the same time,
the very purpose of OSNs is socializing––sharing a myriad of information, [27] some of
which would have otherwise remained personal.
b. Facebook’s Privacy Tools: a response to
the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to
stay connected to other members of the same or different social media platform through
the sharing of statuses, photos, videos, among others, depending on the services
provided by the site. It is akin to having a room filled with millions of personal bulletin
boards or “walls,” the contents of which are under the control of each and every user. In
his or her bulletin board, a user/owner can post anything––from text, to pictures, to
music and videos––access to which would depend on whether he or she allows one,
some or all of the other users to see his or her posts. Since gaining popularity, the OSN
phenomenon has paved the way to the creation of various social networking sites,
including the one involved in the case at bar, www.facebook.com (Facebook), which,
according to its developers, people use “to stay connected with friends and family, to
discover what’s going on in the world, and to share and express what matters to
them.”[28]

Facebook connections are established through the process of “friending” another user.
By sending a “friend request,” the user invites another to connect their accounts so that
they can view any and all “Public” and “Friends Only” posts of the other. Once the
request is accepted, the link is established and both users are permitted to view the
other user’s “Public” or “Friends Only” posts, among others. “Friending,” therefore,
allows the user to form or maintain one-to-one relationships with other users, whereby
the user gives his or her “Facebook friend” access to his or her profile and shares
certain information to the latter.[29]

To address concerns about privacy,[30] but without defeating its purpose, Facebook was
armed with different privacy tools designed to regulate the accessibility of a user’s
profile[31] as well as information uploaded by the user. In H v. W,[32] the South Gauteng
High Court recognized this ability of the users to “customize their privacy settings,” but
did so with this caveat: “Facebook states in its policies that, although it makes every
effort to protect a user’s information, these privacy settings are not fool-proof.” [33]

For instance, a Facebook user can regulate the visibility and accessibility of digital
images (photos), posted on his or her personal bulletin or “wall,” except for the user’s
profile picture and ID, by selecting his or her desired privacy setting:
(a)  Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can view the
photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the
Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up
barriers to broaden or limit the visibility of his or her specific profile content, statuses,
and photos, among others, from another user’s point of view. In other words, Facebook
extends its users an avenue to make the availability of their Facebook activities reflect
their choice as to “when and to what extent to disclose facts about [themselves] – and to
put others in the position of receiving such confidences.” [34] Ideally, the selected setting
will be based on one’s desire to interact with others, coupled with the opposing need to
withhold certain information as well as to regulate the spreading of his or her personal
information. Needless to say, as the privacy setting becomes more limiting, fewer
Facebook users can view that user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

Without these privacy settings, respondents’ contention that there is no reasonable

expectation of privacy in Facebook would, in context, be correct. However, such is not
the case. It is through the availability of said privacy tools that many OSN users
are said to have a subjective expectation that only those to whom they grant
access to their profile will view the information they post or upload thereto.[35]

This, however, does not mean that any Facebook user automatically has a protected
expectation of privacy in all of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners, manifest the
intention to keep certain posts private, through the employment of measures to
prevent access thereto or to limit its visibility.[36] And this intention can materialize in
cyberspace through the utilization of the OSN’s privacy tools. In other words,
utilization of these privacy tools is the manifestation, in cyber world, of the user’s
invocation of his or her right to informational privacy.[37]

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny
access to his or her post or profile detail should not be denied the informational privacy
right which necessarily accompanies said choice.[38]  Otherwise, using these privacy
tools would be a feckless exercise, such that if, for instance, a user uploads a photo or
any personal information to his or her Facebook page and sets its privacy level at “Only
Me” or a custom list so that only the user or a chosen few can view it, said photo would
still be deemed public by the courts as if the user never chose to limit the photo’s
visibility and accessibility. Such position, if adopted, will not only strip these privacy tools
of their function but it would also disregard the very intention of the user to keep said
photo or information within the confines of his or her private space.

We must now determine the extent that the images in question were visible to other
Facebook users and whether the disclosure was confidential in nature. In other words,
did the minors limit the disclosure of the photos such that the images were kept within
their zones of privacy? This determination is necessary in resolving the issue of whether
the minors carved out a zone of privacy when the photos were uploaded to Facebook
so that the images will be protected against unauthorized access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being violated,
insist that Escudero intruded upon their children’s Facebook accounts, downloaded
copies of the pictures and showed said photos to Tigol. To them, this was a breach of
the minors’ privacy since their Facebook accounts, allegedly, were under “very private”
or “Only Friends” setting safeguarded with a password. [39] Ultimately, they posit that their
children’s disclosure was only limited since their profiles were not open to public
viewing. Therefore, according to them, people who are not their Facebook friends,
including respondents, are barred from accessing said post without their knowledge and
consent. As petitioner’s children testified, it was Angela who uploaded the subject
photos which were only viewable by the five of them,[40] although who these five are do
not appear on the records.

Escudero, on the other hand, stated in her affidavit [41] that “my students showed me
some pictures of girls clad in brassieres. This student [sic] of mine informed me that
these are senior high school [students] of STC, who are their friends in [F]acebook. x x
x They then said [that] there are still many other photos posted on the Facebook
accounts of these girls. At the computer lab, these students then logged into their
Facebook account [sic], and accessed from there the various photographs x x x. They
even told me that there had been times when these photos were ‘public’ i.e., not
confined to their friends in Facebook.”

In this regard, We cannot give much weight to the minors’ testimonies for one key
reason: failure to question the students’ act of showing the photos to Tigol disproves
their allegation that the photos were viewable only by the five of them. Without any
evidence to corroborate their statement that the images were visible only to the five of
them, and without their challenging Escudero’s claim that the other students were able
to view the photos, their statements are, at best, self-serving, thus deserving scant
consideration.[42]

It is well to note that not one of petitioners disputed Escudero’s sworn account that her
students, who are the minors’ Facebook “friends,” showed her the photos using their
own Facebook accounts. This only goes to show that no special means to be able to
view the allegedly private posts were ever resorted to by Escudero’s students, [43] and
that it is reasonable to assume, therefore, that the photos were, in reality, viewable
either by (1) their Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is “Public,” it can be surmised
that the photographs in question were viewable to everyone on Facebook, absent any
proof that petitioners’ children positively limited the disclosure of the photograph. If such
were the case, they cannot invoke the protection attached to the right to informational
privacy. The ensuing pronouncement in US v. Gines-Perez[44] is most instructive:
[A] person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances such as
here, where the Defendant did not employ protective measures or devices that would
have controlled access to the Web page or the photograph itself. [45]

Also, United States v. Maxwell[46] held that “[t]he more open the method of transmission
is, the less privacy one can reasonably expect. Messages sent to the public at large in
the chat room or e-mail that is forwarded from correspondent to correspondent loses
any semblance of privacy.”

That the photos are viewable by “friends only” does not necessarily bolster the
petitioners’ contention. In this regard, the cyber community is agreed that the digital
images under this setting still remain to be outside the confines of the zones of privacy
in view of the following:
(1) Facebook “allows the world to be more open and connected by giving its users the
tools to interact and share in any conceivable way;” [47]
(2) A good number of Facebook users “befriend” other users who are total strangers; [48]
(3) The sheer number of “Friends” one user has, usually by the hundreds; and
(4) A user’s Facebook friend can “share”[49] the former’s post, or “tag”[50] others who are
not Facebook friends with the former, despite its being visible only to his or her own
Facebook friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to
“Friends” is no assurance that it can no longer be viewed by another user who is not
Facebook friends with the source of the content. The user’s own Facebook friend can
share said content or tag his or her own Facebook friend thereto, regardless of whether
the user tagged by the latter is Facebook friends or not with the former. Also, when the
post is shared or when a person is tagged, the respective Facebook friends of the
person who shared the post or who was tagged can view the post, the privacy setting of
which was set at “Friends.”

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not
Facebook friends. If C, A’s Facebook friend, tags B in A’s post, which is set at “Friends,”
the initial audience of 100 (A’s own Facebook friends) is dramatically increased to 300
(A’s 100 friends plus B’s 200 friends or the public, depending upon B’s privacy setting).
As a result, the audience who can view the post is effectively expanded––and to a very
large extent.

This, along with its other features and uses, is confirmation of Facebook’s proclivity
towards user interaction and socialization rather than seclusion or privacy, as it
encourages broadcasting of individual user posts. In fact, it has been said that OSNs
have facilitated their users’ self-tribute, thereby resulting into the “democratization of
fame.”[51] Thus, it is suggested, that a profile, or even a post, with visibility set at “Friends
Only” cannot easily, more so automatically, be said to be “very private,” contrary to
petitioners’ argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned
students’ Facebook friends, respondent STC can hardly be taken to task for the
perceived privacy invasion since it was the minors’ Facebook friends who showed the
pictures to Tigol. Respondents were mere recipients of what were posted. They did not
resort to any unlawful means of gathering the information as it was voluntarily given to
them by persons who had legitimate access to the said posts. Clearly, the fault, if any,
lies with the friends of the minors. Curiously enough, however, neither the minors nor
their parents imputed any violation of privacy against the students who showed the
images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced

and broadcasted the photographs. In fact, what petitioners attributed to respondents as
an act of offensive disclosure was no more than the actuality that respondents
appended said photographs in their memorandum submitted to the trial court in
connection with Civil Case No. CEB-38594.[52] These are not tantamount to a violation of
the minor’s informational privacy rights, contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the
photos of minor students scantily clad, are personal in nature, likely to affect, if
indiscriminately circulated, the reputation of the minors enrolled in a conservative
institution. However, the records are bereft of any evidence, other than bare assertions
that they utilized Facebook’s privacy settings to make the photos visible only to them or
to a select few. Without proof that they placed the photographs subject of this case
within the ambit of their protected zone of privacy, they cannot now insist that they have
an expectation of privacy with respect to the photographs in question.

Had it been proved that the access to the pictures posted were limited to the original
uploader, through the “Me Only” privacy setting, or that the user’s contact list has been
screened to limit access to a select few, through the “Custom” setting, the result may
have been different, for in such instances, the intention to limit access to the particular
post, instead of being broadcasted to the public at large or all the user’s friends en
masse, becomes more manifest and palpable.
On Cyber Responsibility

It has been said that  “the best filter is the one between your children’s
ears.”[53] This means that self-regulation on the part of OSN users and internet
consumers in general is the best means of avoiding privacy rights violations. [54] As a
cyberspace community member, one has to be proactive in protecting his or her own
privacy.[55] It is in this regard that many OSN users, especially minors, fail. Responsible
social networking or observance of the “netiquettes” [56] on the part of teenagers has
been the concern of many due to the widespread notion that teenagers can sometimes
go too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.[57]

Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may be
most timely. Too, it is not only STC but a number of schools and organizations have
already deemed it important to include digital literacy and good cyber citizenship in their
respective programs and curricula in view of the risks that the children are exposed to
every time they participate in online activities.[58] Furthermore, considering the
complexity of the cyber world and its pervasiveness, as well as the dangers that these
children are wittingly or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their children
about being a good digital citizen is encouraged by these institutions and organizations.
In fact, it is believed that “to limit such risks, there’s no substitute for parental
involvement and supervision.”[59]

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to
be responsible in their dealings and activities in cyberspace, particularly in OSNs, when
it enforced the disciplinary actions specified in the Student Handbook, absent a showing
that, in the process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever they
engage in cyberspace activities. Accordingly, they should be cautious enough to control
their privacy and to exercise sound discretion regarding how much information about
themselves they are willing to give up. Internet consumers ought to be aware that, by
entering or uploading any kind of data or information online, they are automatically and
inevitably making it permanently available online, the perpetuation of which is outside
the ambit of their control. Furthermore, and more importantly, information, otherwise
private, voluntarily surrendered by them can be opened, read, or copied by third parties
who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online
dealings and activities and must not be negligent in protecting their rights. Equity serves
the vigilant. Demanding relief from the courts, as here, requires that claimants
themselves take utmost care in safeguarding a right which they allege to have been
violated. These are indispensable. We cannot afford protection to persons if they
themselves did nothing to place the matter within the confines of their private zone.
OSN users must be mindful enough to learn the use of privacy tools, to use them if they
desire to keep the information private, and to keep track of changes in the available
privacy settings, such as those of Facebook, especially because Facebook is notorious
for changing these settings and the site’s layout often.
In finding that respondent STC and its officials did not violate the minors’ privacy rights,
We find no cogent reason to disturb the findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

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

dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No.
19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

[ G.R. No. 207074, January 17, 2018 ]

REPUBLIC OF THE PHILIPPINES, PETITIONER, V. MICHELLE SORIANO GALLO,
RESPONDENT.

DECISION

LEONEN, J.:

Names are labels for one's identity. They facilitate social interaction, including the
allocation of rights and determination of liabilities. It is for this reason that the State has
an interest in one's name.
The name through which one is known is generally, however, not chosen by the
individual who bears it. Rather, it is chosen by one's parents. In this sense, the choice of
one's name is not a product of the exercise of autonomy of the individual to whom it
refers.
In view of the State's interest in names as markers of one's identity, the law requires
that these labels be registered. Understandably, in some cases, the names so
registered or other aspects of one's identity that pertain to one's name are not reflected
with accuracy in the Certificate of Live Birth filed with the civil registrar.
Changes to one's name, therefore, can be the result of either one of two (2) motives.
The first, as an exercise of one's autonomy, is to change the appellation that one was
given for various reasons. The other is not an exercise to change the label that was
given to a person; it is simply to correct the data as it was recorded in the Civil Registry.
This is a Petition for Review[1] under Rule 45 assailing the April 29, 2013 Decision [2] of
the Court of Appeals in CA-G.R. CV No. 96358, which denied the Republic of the
Philippines' appeal[3] from the Regional Trial Court December 7, 2010 Order [4] granting
herein respondent Michelle Soriano Gallo's (Gallo) Petition for Correction of Entry of her
Certificate of Live Birth.
Gallo has never been known as "Michael Soriano Gallo." She has always been female.
Her parents, married on May 23, 1981, have never changed their names. For her, in her
petition before the Regional Trial Court, her Certificate of Live Birth contained errors,
which should be corrected. For her, she was not changing the name that was given to
her; she was merely correcting its entry.
To accurately reflect these facts in her documents, Gallo prayed before the Regional
Trial Court of Ilagan City, Isabela in Special Proc. No. 2155 [5] for the correction of her
name from "Michael" to "Michelle" and of her biological sex from "Male" to "Female"
under Rule 108[6] of the Rules of Court.[7]
In addition, Gallo asked for the inclusion of her middle name, "Soriano"; her mother's
middle name, "Angangan"; her father's middle name, "Balingao"; and her parent's
marriage date, May 23, 1981, in her Certificate of Live Birth, as these were not
recorded.[8]
As proof, she attached to her petition copies of her diploma, voter's certification, official
transcript of records, medical certificate, mother's birth certificate, and parents' marriage
certificate.[9]
The Regional Trial Court, having found Gallo's petition sufficient in form and substance,
set a hearing on August 2, 2010. It also ordered the publication of the Notice of Hearing
once a week for three (3) consecutive weeks in a newspaper of general circulation in
the Province of Isabela.[10]
The Office of the Solicitor General authorized the Office of the Provincial Prosecutor to
appear on its behalf.[11] Trial then ensued.
During trial, Gallo testified on her allegations. She showed that her college diploma,
voter's certification, and transcript indicated that her name was "Michelle Soriano Gallo."
The doctor who examined her also certified that she was female. [12] On cross-
examination, Gallo explained that she never undertook any gender-reassignment
surgery and that she filed the petition not to evade any civil or criminal liability, but to
obtain a passport.[13]
The Regional Trial Court, in its December 7, 2010 Order, granted the petition. [14] It lent
credence to the documents Gallo presented and found that the corrections she sought
were "harmless and innocuous."[15] It concluded that there was a necessity to correct
Gallo's Certificate of Live Birth and applied Rule 108 of the Rules of Court,
[16]
 citing Republic v. Cagandahan.[17] Thus:
WHEREFORE, above premises considered, an order is hereby issued directing the Civil
Registrar General, NSO through the Municipal Civil Registrar of Ilagan, Isabela to
correct the entries in the Birth Certificate of the petitioner as well as in the National
Statistics Office Authenticated copy particularly her first name "MICHAEL" to
"MICHELLE", gender from "MALE" to "FEMALE", middle name of petitioner to be
entered as "SORIANO", middle names of petitioner's parents to be properly supplied as
"ANGANGAN" for the mother and "BALINGAO" for the father, as well as date of
marriage of petitioner's parents to be recorded as "MAY 23, 1981", after payment of
legal fees if there be any.
SO ORDERED.[18]
The Office of the Solicitor General appealed, alleging that the applicable rule should be
Rule 103 of the Rules of Court for Petitions for Change of Name. [19] It argued that Gallo
did not comply with the jurisdictional requirements under Rule 103 because the title of
her Petition and the published Order did not state her official name, "Michael
Gallo."[20] Furthermore, the published Order was also defective for not stating the cause
of the change of name.[21]
The Court of Appeals, in its assailed April 29, 2013 Decision, denied the Office of the
Solicitor General's appeal.[22] It found that Gallo availed of the proper remedy under Rule
108 as the corrections sought were clerical, harmless, and innocuous.[23] It further
clarified that Rule 108 is limited to the implementation of Article 412 of the Civil
Code[24] and that the proceedings which stem from it can "either be summary, if the
correction sought is clerical, or adversary . . . if [it] affects . . . civil status, citizenship or
nationality . . . which are deemed substantial corrections." [25]
The Court of Appeals discussed that Rule 103, on the other hand, "governs the
proceeding for changing the given or proper name of a person as recorded in the civil
register."[26]
Jurisprudence has recognized the following grounds as sufficient to warrant a change of
name, to wit: (a) when the name is ridiculous, dishonorable or extremely difficult to write
or pronounce; (b) when the change results as a legal consequence of legitimation or
adoption; (c) when the change will avoid confusion; (d) when one has continuously used
and been known since childhood by a Filipino name and was unaware of alien
parentage; (e) when the change is based on a sincere desire to adopt a Filipino name to
erase signs of former alienage, all in good faith and without prejudice to anybody; and
(f) when the surname causes embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose or that the change of name would
prejudice public interest.[27]
The Court of Appeals also stated that Republic Act No. 10172, "the present law on the
matter, classifies a change in the first name or nickname, or sex of a person as clerical
error that may be corrected without a judicial order." [28] It applied this ruling on the
inclusion of Gallo's middle name, her parents' middle names, and the latter's date of
marriage, as they do not involve substantial corrections. [29]
As the petition merely involved the correction of clerical errors, the Court of Appeals
held that a summary proceeding would have sufficed. With this determination, the
Regional Trial Court's more rigid and stringent adversarial proceeding was more than
enough to satisfy the procedural requirements under Rule 108. [30]
However, the Republic, through the Office of the Solicitor General, believes otherwise.
For it, Gallo wants to change the name that she was given. Thus, it filed the present
Petition via Rule 45 under the 1997 Rules of Civil Procedure. The Petition raises
procedural errors made by the Regional Trial Court and the Court of Appeals in finding
for Gallo.[31]
Citing Republic v. Mercadera,[32] petitioner argues that "only clerical, spelling,
typographical and other innocuous errors in the civil registry may be raised" in petitions
for correction under Rule 108.[33] Thus, the correction must only be for a patently
misspelled name.[34] As "Michael" could not have been the result of misspelling
"Michelle," petitioner contends that the case should fall under Rule 103 for it
contemplates a substantial change. [35]
Petitioner holds that since the applicable rule is Rule 103, Gallo was not able to comply
with the jurisdictional requirements for a change of name under Section 2 of this Rule.
[36]
 It also argues that the use of a different name is not a reasonable ground to change
name under Rule 103.[37]
Finally, petitioner insists that Gallo failed to exhaust administrative remedies and
observe the doctrine of primary jurisdiction[38] as Republic Act No. 9048 allegedly now
governs the change of first name, superseding the civil registrar's jurisdiction over the
matter.[39]
To support its claim, it cited Silverio v. Republic, [40] which held that "[t]he intent and
effect of the law is to exclude the change of first name from the coverage of Rules
103 . . . and 108 . . . of the Rules of Court, until and unless an administrative petition for
change of name is first filed and subsequently denied." [41]
Respondent Gallo, in her Comment, [42] counters that the issue of whether or not the
petitioned corrections are innocuous or clerical is a factual issue, which is improper in a
Petition for Review on Certiorari under Rule 45. [43] In any case, she argues that the
corrections are clerical; hence, the applicable rule is Rule 108 and not Rule 103, with
the requirements of an adversarial proceeding properly satisfied. [44] Lastly, she contends
that petitioner has waived its right to invoke the doctrines of non-exhaustion of
administrative remedies and primary jurisdiction when it failed to file a motion to dismiss
before the Regional Trial Court and only raised these issues before this Court. [45]
Petitioner filed its Reply.[46] The case was then submitted for resolution after the parties
filed their respective Memoranda.[47]
The issues for this Court's resolution are:
First, whether or not the Republic of the Philippines raised a question of fact in alleging
that the change sought by Michelle Soriano Gallo is substantive and not a mere
correction of error;
Second, whether or not Michelle Soriano Gallo's petition involves a substantive change
under Rule 103 of the Rules of Court instead of mere correction of clerical errors; and
Finally, whether or not Michelle Soriano Gallo failed to exhaust administrative remedies
and observe the doctrine of primary jurisdiction.
This Court finds for the respondent. Hers was a Petition to correct the entry in the Civil
Registry.
I
In assailing the Court of Appeals' ruling that the change sought by Gallo was a mere
correction of error, petitioner raises a question of fact not proper under a Rule 45
Petition, which should only raise questions of law.
Time and again, it has been held that this Court is not a trier of facts. Thus, its functions
do not include weighing and analyzing evidence adduced from the lower courts all over
again.
In Spouses Miano v. Manila Electric Co.[48]:
The Rules of Court states that a review of appeals filed before this Court is "not a matter
of right, but of sound judicial discretion." The Rules of Court further requires that only
questions of law should be raised in petitions filed under Rule 45 since factual questions
are not the proper subject of an appeal by certiorari. It is not this Court's function to
once again analyze or weigh evidence that has already been considered in the lower
courts.
Bases Conversion Development Authority v. Reyes distinguished a question of law from
a question of fact:
Jurisprudence dictates that there is a "question of law" when the doubt or difference
arises as to what the law is on a certain set of facts or circumstances; on the other
hand, there is a "question of fact" when the issue raised on appeal pertains to the truth
or falsity of the alleged facts. The test for determining whether the supposed error was
one of "law" or "fact" is not the appellation given by the parties raising the same; rather,
it is whether the reviewing court can resolve the issues raised  without evaluating the
evidence, in which case, it is a question of law; otherwise, it is one of fact. In other
words, where there is no dispute as to the facts, the question of whether or not the
conclusions drawn from these facts are correct is a question of law. However, if the
question posed requires a re-evaluation of the credibility of witnesses, or the existence
or relevance of surrounding circumstances and their relationship to each other, the
issue is factual.[49] (Emphasis supplied)
In the case at bar, petitioner raises an issue which requires an evaluation of evidence
as determining whether or not the change sought is a typographical error or a
substantive change requires looking into the party's records, supporting documents,
testimonies, and other evidence.
On changes of first name, Republic Act No. 10172, which amended Republic Act No.
9048, is helpful in identifying the nature of the determination sought.
Republic Act No. 10172[50] defines a clerical or typographical error as a recorded
mistake, "which is visible to the eyes or obvious to the understanding." Thus:
Section 2. Definition of Terms. — As used in this Act, the following terms shall mean:
(3) "Clerical or typographical error" refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth, mistake
in the entry of day and month in the date of birth or the sex of the person or the like,
which is visible to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided, however, That
no correction must involve the change of nationality, age, or status of the petitioner. [51]
Likewise, Republic Act No. 9048[52] states:
Section 2. Definition of Terms. — As used in this Act, the following terms shall mean:
(3) "Clerical or typographical error" refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or records: Provided, however,
That no correction must involve the change of nationality, age, status or sex of the
petitioner.[53]
By qualifying the definition of a clerical, typographical error as a mistake "visible to the
eyes or obvious to the understanding," the law recognizes that there is a factual
determination made after reference to and evaluation of existing documents presented.
Thus, corrections may be made even though the error is not typographical if it is
"obvious to the understanding," even if there is no proof that the name or circumstance
in the birth certificate was ever used.
This Court agrees with the Regional Trial Court's determination, concurred in by the
Court of Appeals, that this case involves the correction of a mere error. As these are
findings of fact, this Court is bound by the lower courts' findings.
II.A
In any case, Rule 103 of the Rules of Court does not apply to the case at bar. The
change in the entry of Gallo's biological sex is governed by Rule 108 of the Rules of
Court while Republic Act No. 9048 applies to all other corrections sought.
Under Article 407 of the Civil Code, the books in the Civil Register include "acts, events
and judicial decrees concerning the civil status of persons," [54] which are prima
facie evidence of the facts stated there.[55]
Entries in the register include births, marriages, deaths, legal separations, annulments
of marriage, judgments declaring marriages void from the beginning, legitimations,
adoptions, acknowledgments of natural children, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation, voluntary emancipation of
a minor, and changes of name.[56]
As stated, the governing law on changes of first name is currently Republic Act No.
10172, which amended Republic Act No. 9048. Prior to these laws, the controlling
provisions on changes or corrections of name were Articles 376 and 412 of the Civil
Code.
Article 376 states the need for judicial authority before any person can change his or her
name.[57] On the other hand, Article 412 provides that judicial authority is also necessary
before any entry in the civil register may be changed or corrected. [58]
Under the old rules, a person would have to file an action in court under Rule 103 for
substantial changes in the given name or surname provided they fall under any of the
valid reasons recognized by law, or Rule 108 for corrections of clerical errors.
This requirement for judicial authorization was justified to prevent fraud and allow other
parties, who may be affected by the change of name, to oppose the matter, as
decisions in these proceedings bind the whole world. [59]
Rule 103 procedurally governs judicial petitions for change of given name or surname,
or both, pursuant to Article 376 of the Civil Code. This rule provides the procedure for
an independent special proceeding in court to establish the status of a person involving
his relations with others, that is, his legal position in, or with regard to, the rest of the
community. In petitions for change of name, a person avails of a remedy to alter the
"designation by which he is known and called in the community in which he lives and is
best known." When granted, a person's identity and interactions are affected as he
bears a new "label or appellation for the convenience of the world at large in addressing
him, or in speaking of, or dealing with him." Judicial permission for a change of name
aims to prevent fraud and to ensure a record of the change by virtue of a court decree.
The proceeding under Rule 103 is also an action in rem which requires publication of
the order issued by the court to afford the State and all other interested parties to
oppose the petition. When complied with, the decision binds not only the parties
impleaded but the whole world. As notice to all, publication serves to indefinitely bar all
who might make an objection. "It is the publication of such notice that brings in the
whole world as a party in the case and vests the court with jurisdiction to hear and
decide it."
Essentially, a change of name does not define or effect a change of one's existing
family relations or in the rights and duties flowing therefrom. It does not alter one's legal
capacity or civil status. However, "there could be instances where the change applied
for may be open to objection by parties who already bear the surname desired by the
applicant, not because he would thereby acquire certain family ties with them but
because the existence of such ties might be erroneously impressed on the public mind."
Hence, in requests for a change of name, "what is involved is not a mere matter of
allowance or disallowance of the request, but a judicious evaluation of the sufficiency
and propriety of the justifications advanced . . . . mindful of the consequent results in the
event of its grant . . ."[60] (Citations omitted)
Applying Article 412 of the Civil Code, a person desiring to change his or her name
altogether must file a petition under Rule 103 with the Regional Trial Court, which will
then issue an order setting a hearing date and directing the order's publication in a
newspaper of general circulation.[61] After finding that there is proper and reasonable
cause to change his or her name, the Regional Trial Court may grant the petition and
order its entry in the civil register.[62]
On the other hand, Rule 108 applies when the person is seeking to correct clerical and
innocuous mistakes in his or her documents with the civil register. [63] It also governs the
correction of substantial errors in the entry of the information enumerated in Section 2 of
this Rule[64] and those affecting the civil status, citizenship, and nationality of a person.
[65]
 The proceedings under this rule may either be summary, if the correction pertains to
clerical mistakes, or adversary, if it pertains to substantial errors. [66]
As explained in Republic v. Mercadera:[67]
Finally in Republic v. Valencia, the above[-]stated views were adopted by this Court
insofar as even substantial errors or matters in a civil registry may be corrected and the
true facts established, provided the parties aggrieved avail themselves of the
appropriate adversary proceeding. "If the purpose of the petition is merely to correct the
clerical errors which are visible to the eye or obvious to the understanding, the court
may, under a summary procedure, issue an order for the correction of a mistake.
However, as repeatedly construed, changes which may affect the civil status from
legitimate to illegitimate, as well as sex, are substantial and controversial alterations
which can only be allowed after appropriate adversary proceedings depending upon the
nature of the issues involved. Changes which affect the civil status or citizenship of a
party are substantial in character and should be threshed out in a proper action
depending upon the nature of the issues in controversy, and wherein all the parties who
may be affected by the entries are notified or represented and evidence is submitted to
prove the allegations of the complaint, and proof to the contrary admitted ...." "Where
such a change is ordered, the Court will not be establishing a substantive right but only
correcting or rectifying an erroneous entry in the civil registry as authorized by law. In
short, Rule 108 of the Rules of Court provides only the procedure or mechanism for the
proper enforcement of the substantive law embodied in Article 412 of the Civil Code and
so does not violate the Constitution."[68] (Emphasis in the original)
Following the procedure in Rule 103, Rule 108 also requires a petition to be filed before
the Regional Trial Court. The trial court then sets a hearing and directs the publication
of its order in a newspaper of general circulation in the province. [69] After the hearing, the
trial court may grant or dismiss the petition and serve a copy of its judgment to the Civil
Registrar.[70]
Mercadera clarified the applications of Article 376 and Rule 103, and of Article 412 and
Rule 108, thus:
The "change of name" contemplated under Article 376 and Rule 103 must not be
confused with Article 412 and Rule 108. A change of one's name under Rule 103 can
be granted, only on grounds provided by law. In order to justify a request for change of
name, there must be a proper and compelling reason for the change and proof that the
person requesting will be prejudiced by the use of his official name. To assess the
sufficiency of the grounds invoked therefor, there must be adversarial proceedings.
In petitions for correction, only clerical, spelling, typographical and other innocuous
errors in the civil registry may be raised. Considering that the enumeration in Section 2,
Rule 108 also includes "changes of name," the correction of a patently misspelled name
is covered by Rule 108. Suffice it to say, not all alterations allowed in one's name are
confined under Rule 103. Corrections for clerical errors may be set right under Rule
108.
This rule in "names," however, does not operate to entirely limit Rule 108 to the
correction of clerical errors in civil registry entries by way of a summary proceeding. As
explained above, Republic v. Valencia is the authority for allowing substantial errors in
other entries like citizenship, civil status, and paternity, to be corrected using Rule 108
provided there is an adversary proceeding. "After all, the role of the Court under Rule
108 is to ascertain the truths about the facts recorded therein." [71] (Citations omitted)
However, Republic Act No. 9048[72] amended Articles 376 and 412 of the Civil Code,
effectively removing clerical errors and changes of the name outside the ambit of Rule
108 and putting them under the jurisdiction of the civil register. [73]
In Silverio v. Republic:[74]
The State has an interest in the names borne by individuals and entities for purposes of
identification. A change of name is a privilege, not a right. Petitions for change of name
are controlled by statutes. In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law) . . .
....
RA 9048 now governs the change of first name. It vests the power and authority to
entertain petitions for change of first name to the city or municipal civil registrar or
consul general concerned. Under the law, therefore, jurisdiction over applications for
change of first name is now primarily lodged with the aforementioned administrative
officers. The intent and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of
Entries in the Civil Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently denied. It likewise lays down
the corresponding venue, form and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial. [75] (Citations omitted)
In Republic v. Cagandahan:[76]
The determination of a person's sex appearing in his birth certificate is a legal issue and
the court must look to the statutes. In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in a civil register shall be changed or corrected without a judicial
order.
Together with Article 376 of the Civil Code, this provision was amended by Republic Act
No. 9048 in so far as clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now
applies only to substantial changes and corrections in entries in the civil register.
[77]
 (Emphasis in the original, citations omitted)
In Republic v. Sali:[78]
The petition for change of first name may be allowed, among other grounds, if the new
first name has been habitually and continuously used by the petitioner and he or she
has been publicly known by that first name in the community. The local city or municipal
civil registrar or consul general has the primary jurisdiction to entertain the petition. It is
only when such petition is denied that a petitioner may either appeal to the civil registrar
general or file the appropriate petition with the proper court. [79] (Emphasis supplied,
citations omitted)
Republic Act No. 9048 also dispensed with the need for judicial proceedings in case of
any clerical or typographical mistakes in the civil register or changes in first names or
nicknames.[80]
Section 1. Authority to Correct Clerical or Typographical Error and Change of First
Name or Nickname. — No entry in a civil register shall be changed or corrected without
a judicial order, except for clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.[81]
Thus, a person may now change his or her first name or correct clerical errors in his or
her name through administrative proceedings. Rules 103 and 108 only apply if the
administrative petition has been filed and later denied.
In 2012, Republic Act No. 9048 was amended by Republic Act No. 10172. [82]
In addition to the change of the first name, the day and month of birth, and the sex of a
person may now be changed without judicial proceedings. Republic Act No. 10172
clarifies that these changes may now be administratively corrected where it is patently
clear that there is a clerical or typographical mistake in the entry. It may be changed by
filing a subscribed and sworn affidavit with the local civil registry office of the city or
municipality where the record being sought to be corrected or changed is kept. [83]
Section 1. Authority to Correct Clerical or Typographical Error and Change of First
Name or Nickname.— No entry in a civil register shall be changed or corrected without
a judicial order, except for clerical or typographical errors and change of first name or
nickname, the day and month in the date of birth or sex of a person where it is patently
clear that there was a clerical or typographical error or mistake in the entry, which can
be corrected or changed by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its implementing rules and
regulations.[84] (Emphasis supplied)
However, Republic Act No. 10172 does not apply in the case at bar as it was only
enacted on August 15, 2012—more than two (2) years after Gallo filed her Petition for
Correction of Entry on May 13, 2010. [85] Hence, Republic Act No. 9048 governs.
II.B
As to the issue of which between Rules 103 and 108 applies, it is necessary to
determine the nature of the correction sought by Gallo.
Petitioner maintains that Rule 103 applies as the changes were substantive while
respondent contends that it is Rule 108 which governs as the changes pertain only to
corrections of clerical errors.
Upon scrutiny of the records in this case, this Court rules that Gallo's Petition involves a
mere correction of clerical errors.
A clerical or typographical error pertains to a
[M]istake committed in the performance of clerical work in writing, copying, transcribing
or typing an entry in the civil register that is harmless and innocuous ... which is visible
to the eyes or obvious to the , and can be corrected or changed only by reference to
other existing record or records[.] [86]
However, corrections which involve a change in nationality, age, or status are not
considered clerical or typographical.[87]
Jurisprudence is replete with cases determining what constitutes a clerical or
typographical error in names with the civil register.
In Republic v. Mercadera,[88] Merlyn Mercadera (Mercadera) sought to correct her name
from "Marilyn" to "Merlyn."[89] She alleged that "she had been known as MERLYN ever
since" and she prayed that the trial court correct her recorded given name "Marilyn" "to
conform to the one she grew up to."[90] The Office of the Solicitor General argued that
this change was substantial which must comply with the procedure under Rule 103 of
the Rules of Court.[91] However, this Court ruled that Rule 103 did not apply because the
petition merely sought to correct a misspelled given name:
In this case, the use of the letter "a" for the letter "e," and the deletion of the letter "i," so
that what appears as "Marilyn" would read as "Merlyn'' is patently a rectification of a
name that is clearly misspelled. The similarity between "Marilyn" and "Merlyn" may well
be the object of a mix-up that blemished Mercadera's Certificate of Live Birth until her
adulthood, thus, her interest to correct the same.
The [Court of Appeals] did not allow Mercadera the change of her name. What it did
allow was the correction of her misspelled given name which she had been using ever
since she could remember.[92]
Mercadera also cited similar cases in which this Court determined what constitutes
harmless errors that need not go through the proceedings under Rule 103:
Indeed, there are decided cases involving mistakes similar to Mercadera's case which
recognize the same a harmless error. In Yu v. Republic it was held that "to change
'Sincio' to 'Sencio' which merely involves the substitution of the first vowel 'i' in the first
name into the vowel 'e' amounts merely to the righting of a clerical error." In Labayo-
Rowe v. Republic, it was held that the change of petitioner's name from "Beatriz
Labayo/Beatriz Labayu" to "Emperatriz Labayo" was a mere innocuous alteration
wherein a summary proceeding was appropriate. In Republic v. Court of Appeals,
Jaime B. Caranto and Zenaida P. Caranto, the correction involved the substitution of the
letters "ch" for the letter "d," so that what appears as "Midael" as given name would read
"Michael." In the latter case, this Court, with the agreement of the Solicitor General,
ruled that the error was plainly clerical, such that, "changing the name of the child from
'Midael C. Mazon' to 'Michael C. Mazon' cannot possibly cause any confusion, because
both names can be read and pronounced with the same rhyme (tugma) and tone (tono,
tunog, himig).[93] (Citations omitted)
Likewise, in Republic v. Sali,[94] Lorena Omapas Sali (Sali) sought to correct her
Certificate of Live Birth, alleging that her first name was erroneously entered as
"Dorothy" instead of "Lorena," and her date of birth as "June 24, 1968" instead of "April
24, 1968." She alleged that she had been using the name "Lorena" and the birth date
"April 24, 1968" ever since. She also averred that she had always been known as
"Lorena" in her community. She claimed that the petition was just to correct the error
and not to evade any criminal or civil liability, or to affect any succession of another
person.[95]
In response, the Office of the Solicitor General, representing the Republic, argued
against Sali's claim, alleging that the petition was for a change of name under Rule 103
and not for the correction of a simple clerical error. It averred that there must be a valid
ground for the name change, and the applicant's names and aliases must be stated in
the title of the petition and the order setting it for hearing. It also contended that
assuming Rule 108 was the proper remedy, Sali failed to exhaust her remedies when
she did not file an affidavit under Republic Act No. 9048. [96]
In Sali, this Court held that Rule 103 did not apply because the petition was not for a
change of name, but a petition for correction of errors in the recording of Sali's name
and birth date. Sali had been using the name "Lorena" since birth, and she merely
sought to have her records conform to the name she had been using as her true name.
She had no intention of changing her name altogether. Thus, her prayer for the
correction of her misspelled name is not contemplated by Rule 103. [97]
In the case at bar, petitioner, raising the same arguments as that in Sali, claims that the
change sought by Gallo is substantial, covered by Rule 103 because the two (2) names
are allegedly entirely different from each other. It argues that "Michael" could not have
been the result of a misspelling of "Michelle." [98]
On the other hand, Gallo argues that the corrections are clerical which fall under Rule
108, with the requirements of an adversarial proceeding properly complied. [99]
Considering that Gallo had shown that the reason for her petition was not to change the
name by which she is commonly known, this Court rules that her petition is not covered
by Rule 103. Gallo is not filing the petition to change her current appellation. She is
merely correcting the misspelling of her name.
Correcting and changing have been differentiated, thus:
To correct simply means "to make or set aright; to remove the faults or error from." To
change means "to replace something with something else of the same kind or with
something that serves as a substitute.[100]
Gallo is not attempting to replace her current appellation. She is merely correcting the
misspelling of her given name. "Michelle" could easily be misspelled as "Michael,"
especially since the first four (4) letters of these two (2) names are exactly the same.
The differences only pertain to an additional letter "a" in "Michael," and "le" at the end of
"Michelle." "Michelle" and "Michael" may also be vocalized similarly, considering the
possibility of different accents or intonations of different people. In any case, Gallo does
not seek to be known by a different appellation. The lower courts have determined that
she has been known as "Michelle" all throughout her life. She is merely seeking to
correct her records to conform to her true given name.
However, Rule 108 does not apply in this case either.
As stated, Gallo filed her Petition for Correction of Entry on May 13, 2010. [101] The
current law, Republic Act No. 10172, does not apply because it was enacted only on
August 19, 2012.[102]
The applicable law then for the correction of Gallo's name is Republic Act No. 9048. [103]
To reiterate, Republic Act No. 9048 was enacted on March 22, 2001 and removed the
correction of clerical or typographical errors from the scope of Rule 108. It also
dispensed with the need for judicial proceedings in case of any clerical or typographical
mistakes in the civil register, or changes of first name or nickname. Thus:
Section 1. Authority to Correct Clerical or Typographical Error and Change of First
Name or Nickname. — No entry in a civil register shall be changed or corrected without
a judicial order, except for clerical or typographical errors and change of first name or
nickname which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.[104]
Therefore, it is the civil registrar who has primary jurisdiction over Gallo's petition, not
the Regional Trial Court. Only if her petition was denied by the local city or municipal
civil registrar can the Regional Trial Court take cognizance of her case. In Republic v.
Sali,[105]
Sali's petition is not for a change of name as contemplated under Rule 103 of the Rules
but for correction of entries under Rule 108. What she seeks is the correction of clerical
errors which were committed in the recording of her name and birth date. This Court
has held that not all alterations allowed in one's name are confined under Rule 103 and
that corrections for clerical errors may be set right under Rule 108. The evidence
presented by Sali show that, since birth, she has been using the name "Lorena." Thus,
it is apparent that she never had any intention to change her name. What she seeks is
simply the removal of the clerical fault or error in her first name, and to set aright the
same to conform to the name she grew up with.
Nevertheless, at the time Sali's petition was filed, R.A. No. 9048 was already in
effect . . .
....
The petition for change of first name may be allowed, among other grounds, if the new
first name has been habitually and continuously used by the petitioner and he or she
has been publicly known by that first name in the community. The local city or municipal
civil registrar or consul general has the primary jurisdiction to entertain the petition. It is
only when such petition is denied that a petitioner may either appeal to the civil registrar
general or file the appropriate petition with the proper court . . .
....
In this case, the petition, insofar as it prayed for the change of Sali's first name, was not
within the RTC's primary jurisdiction. It was improper because the remedy should have
been administrative, i.e., filing of the petition with the local civil registrar concerned. For
failure to exhaust administrative remedies, the RTC should have dismissed the petition
to correct Sali’s first name.[106]
Likewise, the prayers to enter Gallo's middle name as Soriano, the middle names of her
parents as Angangan for her mother and Balingao for her father, and the date of her
parents' marriage as May 23, 1981 fall under clerical or typographical errors as
mentioned in Republic Act No. 9048.
Under Section 2(3) of Republic Act No. 9048:
(3) "Clerical or typographical error" refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an entry in the civil register that is
harmless and innocuous, such as misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality, age, status or sex of
the petitioner.[107]
These corrections may be done by referring to existing records in the civil register. None
of it involves any change in Gallo's nationality, age, status, or sex.
Moreover, errors "visible to the eyes or obvious to the understanding" [108] fall within the
coverage of clerical mistakes not deemed substantial. If it is "obvious to the
understanding," even if there is no proof that the name or circumstance in the birth
certificate was ever used, the correction may be made.
Thus, as to these corrections, Gallo should have sought to correct them administratively
before filing a petition under Rule 108.
However, the petition to correct Gallo's biological sex was rightfully filed under Rule 108
as this was a substantial change excluded in the definition of clerical or typographical
errors in Republic Act No. 9048.[109]
This was affirmed in Republic v. Cagandahan:[110]
Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is
not a mere clerical or typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court. [111] (Citation omitted)
It was only when Republic Act No. 10172 was enacted on August 15, 2012 that errors in
entries as to biological sex may be administratively corrected, provided that they involve
a typographical or clerical error.[112]
However, this is not true for all cases as corrections in entries of biological sex may still
be considered a substantive matter.
In Cagandahan,[113] this Court ruled that a party who seeks a change of name and
biological sex in his or her Certificate of Live Birth after a gender reassignment surgery
has to file a petition under Rule 108. [114] In that case, it was held that the change did not
involve a mere correction of an error in recording but a petition for a change of records
because the sex change was initiated by the petitioner. [115]
IV
Considering that Gallo did not first file an administrative case in the civil register before
proceeding to the courts, petitioner contends that respondent failed to exhaust
administrative remedies and observe the doctrine of primary jurisdiction under Republic
Act No. 9048.[116]
On the other hand, respondent argues that petitioner has waived its right to invoke
these doctrines because it failed to file a motion to dismiss before the Regional Trial
Court and only raised these Issues before this Court. [117]
This Court rules in favor of Gallo.
Under the doctrine of exhaustion of administrative remedies, a party must first avail of
all administrative processes available before seeking the courts' intervention. The
administrative officer concerned must be given every opportunity to decide on the
matter within his or her jurisdiction. Failing to exhaust administrative remedies affects
the party's cause of action as these remedies refer to a precedent condition which must
be complied with prior to filing a case in court.[118]
However, failure to observe the doctrine of exhaustion of administrative remedies does
not affect the court's jurisdiction.[119] Thus, the doctrine may be waived as in Soto v.
Jareno:[120]
Failure to observe the doctrine of exhaustion of administrative remedies does not affect
the jurisdiction of the court. We have repeatedly stressed this in a long line of decisions.
The only effect of non compliance with this rule is that it will deprive the complainant of
a cause of action, which is a ground for a motion to dismiss. If not invoked at the proper
time, this ground is deemed waived and the court can then take cognizance of the case
and try it. [121] (Citation omitted)
Meanwhile, under the doctrine of primary administrative jurisdiction, if an administrative
tribunal has jurisdiction over a controversy, courts should not resolve the issue even if it
may be within its proper jurisdiction. This is especially true when the question involves
its sound discretion requiring special knowledge, experience, and services to determine
technical and intricate matters of fact.[122]
In Republic v. Lacap: [123]
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of
primary jurisdiction; that is, courts cannot or will not determine a controversy involving a
question which is within the jurisdiction of the administrative tribunal prior to the
resolution of that question by the administrative tribunal, where the question demands
the exercise of sound administrative discretion requiring the special knowledge,
experience and services of the administrative tribunal to determine technical and
intricate matters of fact.[124] (Citation omitted)
Thus, the doctrine of primary administrative jurisdiction refers to the competence of a
court to take cognizance of a case at first instance. Unlike the doctrine of exhaustion of
administrative remedies, it cannot be waived.
However, for reasons of equity, in cases where jurisdiction is lacking, this Court has
ruled that failure to raise the issue of non-compliance with the doctrine of primary
administrative jurisdiction at an opportune time may bar a subsequent filing of a motion
to dismiss based on that ground by way of laches. [125]
In Tijam v. Sibonghanoy:[126]
True also is the rule that jurisdiction over the subject-matter is conferred upon the courts
exclusively by law, and as the lack of it affects the very authority of the court to take
cognizance of the case, the objection may be raised at any stage of the proceedings.
However, considering the facts and circumstances of the present case — which shall
forthwith be set forth — We are of the opinion that the Surety is now barred by laches
from invoking this plea at this late hour for the purpose of annulling everything done
heretofore in the case with its active participation ...
....
A party may be estopped or barred from raising a question in different ways and for
different reasons. Thus we speak of estoppels in pais, of estoppel by deed or by record,
and of estoppel by laches.
Laches, in a general sense, is failure or neglect, for an unreasonable and unexplained
length of time, to do that which, by exercising due diligence, could or should have been
done earlier; it is negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert it either has abandoned it or
declined to assert it.
The doctrine of laches or of "stale demands" is based upon grounds of public policy
which requires, for the peace of society, the discouragement of stale claims and, unlike
the statute of limitations, is not a mere question of time but is principally a question of
the inequity or unfairness of permitting a right or claim to be enforced or asserted.
It has been held that a party cannot invoke the jurisdiction of a court to secure
affirmative relief against his opponent and, after obtaining or failing to obtain such relief,
repudiate or question that same jurisdiction ... In the case just cited, by way of
explaining the rule, it was further said that the question whether the court had
jurisdiction either of the subject-matter of the action or of the parties was not important
in such cases because the party is barred from such conduct not because the judgment
or order of the court is valid and conclusive as an adjudication, but for the reason that
such a practice cannot be tolerated— obviously for reasons of public policy.
Furthermore, it has also been held that after voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late for the loser to question
the jurisdiction or power of the court ... And in Littleton vs. Burgess, ... the Court said
that it is not right for a party who has affirmed and invoked the jurisdiction of a court in a
particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction
to escape a penalty.[127] (Emphasis supplied, citations omitted)
Thus, where a party participated in the proceedings and the issue of non-compliance
was raised only as an afterthought at the final stage of appeal, the party invoking it may
be estopped from doing so.
Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary
doctrine of primary jurisdiction, which are based on sound public policy and practical
considerations, are not inflexible rules. There are many accepted exceptions, such as:
(a) where there is estoppel on the part of the party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of jurisdiction;
(c) where there is unreasonable delay or official inaction that will irretrievably prejudice
the complainant; (d) where the amount involved is relatively small so as to make the
rule impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is
urgent; (g) when its application may cause great and irreparable damage; (h) where the
controverted acts violate due process; (i) when the issue of non-exhaustion of
administrative remedies has been rendered moot; (j) when there is no other plain,
speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo
warranto proceedings . . .[128] (Emphasis supplied, citations omitted)
Petitioner does not deny that the issue of non-compliance with these two (2) doctrines
was only raised in this Court. Thus, in failing to invoke these contentions before the
Regional Trial Court, it is estopped from invoking these doctrines as grounds for
dismissal.
WHEREFORE, premises considered, the petition is DENIED. The April 29, 2013
Decision of the Court of Appeals in CA-G.R. CV No. 96358 is AFFIRMED. The Petition
for Correction of Entry in the Certificate of Live Birth of Michelle Soriano Gallo
is GRANTED. This Court directs that the Certificate of Live Birth of Michelle Soriano
Gallo be corrected as follows:
1) Correct her first name from "Michael" to "Michelle";
2) Correct her biological sex from "Male" to "Female";
3) Enter her middle name as "Soriano";
4) Enter the middle name of her mother as "Angangan";
5) Enter the middle name of her father as "Balingao"; and
6) Enter the date of her parents' marriage as "May 23, 1981."
SO ORDERED.
Velasco, Jr., (Chairperson), Bersamin, Martires, and Gesmundo, JJ., concur.

[ G.R. No. 209527, February 14, 2018 ]

THE REPUBLIC OF THE PHILIPPINES, PETITIONER, V. VIRGIE (VIRGEL) L. TIPAY,
RESPONDENT.

DECISION

REYES, JR., J:

This is a petition for review on certiorari[1] brought under Rule 45 of the Rules of Court,
seeking to reverse and set aside the October 9, 2013 Decision [2] of the Court of Appeals
(CA) that denied the appeal of petitioner Republic of the Philippines (Republic) from the
Decision[3] of the Regional Trial Court (RTC) of Lupon, Davao Oriental. The trial court, in
turn, granted respondent Virgie (Virgel) L. Tipay's (Virgel) petition for the correction of
certain entries in his birth certificate. [4]
Factual Antecedents
In a petition dated February 13, 2009, Virgel sought the correction of several entries in
his birth certificate. Attached to the petition are two (2) copies of his birth certificate,
respectively issued by the Municipal Civil Registrar of Governor Generoso, Davao
Oriental and the National Statistics Office[5] (NSO). Both copies reflect his gender as
"FEMALE" and his first name as "Virgie." It further appears that the month and day of
birth in the local civil registrar's copy was blank, while the NSO-issued birth certificate
indicates that he was born on May 12, 1976.[6] Virgel alleged that these entries are
erroneous, and sought the correction of his birth certificate as follows: (a) his gender,
from "FEMALE" to "MALE;" (b) his first name, from "VIRGIE" to "VIRGEL;" and (c) his
month and date of birth to "FEBRUARY 25, 1976."[7]
The petition was found sufficient in form and substance, and the case proceeded to trial.
Aside from his own personal testimony, Virgel's mother, Susan L. Tipay, testified that
she gave birth to a son on February 25, 1976, who was baptized as "Virgel." The
Certificate of Baptism, including other documentary evidence such as a medical
certificate stating that Virgel is phenotypically male, were also presented to the trial
court.[8]
Ruling of the RTC
There was no opposition to the petition. Soon after, the RTC rendered its
Decision[9] dated July 27, 2010 granting Virgel's petitionb:
WHEREFORE, premises considered, an Order is hereby issued: 1. Directing the Local
Civil Registrar of Governor Generoso, Davao Oriental to cause the appropriate change
in the Certificate of Live Birth of VIRGIE L. TIPAY upon payment of the required legal
fees, particularly:
First Name : From:  VIRGIE
To: VIRGEL
 
Sex : From:  Female
To: MALE
 
Date of Birth of : From:  no entry
Child To: FEBRUARY 25,
1976
SO ORDERED.[10]
From this decision, the Republic filed a Notice of Appeal, which was given due course
by the trial court.[11] The Republic, through the Office of the Solicitor General (OSG)
argued that the change of Virgel's name from Virgie should have been made through a
proceeding under Rule 103, and not Rule 108 of the Rules of Court. This argument was
premised on the assumption that the summary procedure under Rule 108 is confined to
the correction of clerical or innocuous errors, which excludes one's name or date of
birth. Since the petition lodged with the RTC was not filed pursuant to Rule 103 of the
Rules of Court, the Republic asserted that the trial court did not acquire jurisdiction over
the case.[12]
Virgel refuted these arguments, alleging that changes of name are within the purview of
Rule 108 of the Rules of Court. He further disagreed with the position of the Republic
and asserted that substantial errors may be corrected provided that the proceedings
before the trial court were adversarial. He also argued that the proceedings before the
RTC were in rem, which substantially complies with the requirements of either Rule 103
or Rule 108 of the Rules of Court.[13]
Ruling of the CA
The CA denied the Republic's appeal in its Decision [14] dated October 9, 2013, the
dispositive of which reads:
ACCORDINGLY, the appeal is DENIED. The July 27, 2010 Decision of the [RTC], 11th
Judicial Region, Branch No. 32, Lupon, Davao Oriental, in Special Proceedings Case
No. 243-09 is AFFIRMED in toto.
SO ORDERED.[15]
In its assailed decision, the CA ruled in favor of Virgel, stating that while the correction
of the entry on his gender is considered a substantial change, it is nonetheless within
the jurisdiction of the trial court under Rule 108 of the Rules of Court. The CA also held
that the petition filed with the trial court fully complied with the jurisdictional
requirements of Rule 108 because notices were sent to the concerned local civil
registrar and the OSG. Since Virgel was able to establish that he is indeed male, a fact
which remains undisputed, the CA upheld the trial court's decision. [16]
As to the change of Virgel's name from "Virgie" to "Virgel," the CA did not find any
reason to depart from the decision of the RTC because it was more expeditious to
change the entry in the same proceeding. The CA found that the correction of Virgel's
name was necessary to avoid confusion, especially since his correct gender is male. In
the same vein, the CA ruled that even if the petition with the RTC was considered a
Rule 103 proceeding, the requirements under Rule 108 are substantially the same as
that under Rule 103. Thus, the CA already deemed these requirements complied with.
[17]
 Finally, regarding the month and date of Virgel's birth, the CA found the documentary
evidence credible enough to establish that he was indeed born on February 25, 1976. [18]
Unsatisfied with the ruling of the CA, the Republic appealed to this Court insisting that
the entries sought to be corrected are substantial changes outside the jurisdiction of the
trial court. The Republic also reiterated its earlier arguments, adding that the CA should
not have equated the procedural requirements under Rule 103 with that of Rule 108 of
the Rules of Court.[19]
Ruling of the Court
The Court denies the petition. However, this Court finds that the evidence is insufficient
to establish that Virgel was born on February 25, 1976.
Rule 108 of the Rules of Court governs
the procedure for the correction of
substantial changes in the civil registry.
It is true that initially, the changes that may be corrected under the summary procedure
of Rule 108 of the Rules of Court are clerical or harmless errors. Errors that affect the
civil status, citizenship or nationality of a person, are considered substantial errors that
were beyond the purview of the rule.[20]
Jurisprudence on this matter later developed, giving room for the correction of
substantial errors. The Court ultimately recognized that substantial or controversial
alterations in the civil registry are allowable in an action filed under Rule 108 of the
Rules of Court, as long as the issues are properly threshed out in appropriate
adversarial proceedings— effectively limiting the application of the summary
procedure to the correction of clerical or innocuous errors. [21] The Court's ruling
in Republic v. Valencia,[22] explained the adversarial procedure to be followed in
correcting substantial errors in this wise:
It is undoubtedly true that if the subject matter of a petition is not for the correction of
clerical errors of a harmless and innocuous nature, but one involving nationality or
citizenship, which is indisputably substantial as well as controverted, affirmative relief
cannot be granted in a proceeding summary in nature. However, it is also true that a
right in law may be enforced and a wrong may be remedied as long as the appropriate
remedy is used. This Court adheres to the principle that even substantial errors in
a civil registry may be corrected and the true facts established provided the
parties aggrieved by the error avail themselves of the appropriate adversary
proceeding. As a matter of fact, the opposition of the Solicitor General dated February
20, 1970 while questioning the use of Article 412 of the Civil Code in relation to Rule
108 of the Revised Rules of Court admits that "the entries sought to be corrected should
be threshed out in an appropriate proceeding."
xxxx
Thus, the persons who must be made parties to a proceeding concerning the
cancellation or correction of an entry in the civil register are-(l) the civil registrar, and (2)
all persons who have or claim any interest which would be affected thereby. Upon the
filing of the petition, it becomes the duty of the court to-(l) issue an order fixing the time
and place for the hearing of the petition, and (2) cause the order for hearing to be
published once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province. The following are likewise entitled to oppose the petition: (1)
the civil registrar, and (2) any person having or claiming any interest under the entry
whose cancellation or correction is sought.
If all these procedural requirements have been followed, a petition for correction and/or
cancellation of entries in the record of birth even if filed and conducted under Rule 108
of the Revised Rules of Court can no longer be described as "summary". There can be
no doubt that when an opposition to the petition is filed either by the Civil Registrar or
any person having or claiming any interest in the entries sought to be cancelled and/or
corrected and the opposition is actively prosecuted, the proceedings thereon become
adversary proceedings.[23] (Emphasis Ours)
Evidently, the Republic incorrectly argued that the petition for correction under
Rule 108 of the Rules of Court is limited to changes in entries containing
harmless and innocuous errors.[24] The cited cases in the petition were already
superseded by much later jurisprudence. [25] Most importantly, with the enactment of
Republic Act (R.A.) No. 9048[26] in 2001, the local civil registrars, or the Consul General
as the case may be, are now authorized to correct clerical or typographical errors in the
civil registry, or make changes in the first name or nickname, without need of a judicial
order.[27] This law provided an administrative recourse for the correction of clerical or
typographical errors, essentially leaving the substantial corrections in the civil registry to
Rule 108 of the Rules of Court.[28]
The RTC was correct in taking
cognizance of the petition for correction
of entries in Virgel’s birth certificate.
R.A. No. 9048 defined a clerical or typographical error as a mistake committed in. the
performance of clerical work, which is harmless and immediately obvious to the
understanding.[29] It was further amended in 2011, when R.A. No. 10172 [30] was passed
to expand the authority of local civil registrars and the Consul General to make changes
in the day and month in the date of birth, as well as in the recorded sex of a person
when it is patently clear that there was a typographical error or mistake in the entry. [31]
Unfortunately, however, when Virgel filed the petition for correction with the RTC in
2009, R.A. No. 10172 was not yet in effect. As such, to correct the erroneous gender
and date of birth in Virgel's birth certificate, the proper remedy was to commence
the appropriate adversarial proceedings with the RTC, pursuant to Rule 108 of the
Rules of Court.[32] The changes in the entries pertaining to the gender and date of birth
are indisputably substantial corrections, outside the contemplation of a clerical or
typographical error that may be corrected administratively.
The records of this case show that Virgel complied with the procedural requirements
under Rule 108 of the Rules of Court. He impleaded the local civil registrar of Governor
Generoso, Davao Oriental, the Solicitor General, and the Provincial Prosecutor of
Davao Oriental as parties to his petition for correction of entries. [33] The RTC then issued
an order, which set the case for hearing on July 10, 2009. In compliance with Rule 108,
Section 4 of the Rules of Court, the order was published for three (3) consecutive weeks
in a newspaper of general circulation in the province of Davao Oriental. Additionally, the
local civil registrar and the OSG were notified of the petition through registered mail. [34]
The OSG entered its appearance and deputized the Office of the Provincial Prosecutor
of Mati, Davao City for purposes of the proceedings before the RTC. Accordingly, the
prosecutor assigned to the case was present during the hearing but opted not to cross-
examine Virgel or his mother after their respective testimonies. There was also no
opposition filed against the petition of Virgel before the RTC. [35]
From the foregoing, it is clear that the parties who have a claim or whose interests may
be affected were notified and granted an opportunity to oppose the petition. Two sets of
notices were sent to potential oppositors—through registered mail for the persons
named in the petition, and through publication, for all other persons who are not named
but may be considered interested or affected parties. [36] A hearing was scheduled for the
presentation of Virgel's testimonial and documentary evidence, during which time, the
deputized prosecutor of the OSG was present, and allowed to participate in the
proceedings. While none of the parties questioned the veracity of Virgel's allegations,
much less present any controverting evidence before the trial court, [37] the RTC
proceedings were clearly adversarial in nature. It dutifully complied with the
requirements of Rule 108 of the Rules of Court.
Notably, the Republic does not assail whether the proceedings before the trial court
were adversarial, but merely insists on the erroneous premise that a Rule 108
proceeding is limited to the correction of harmless, clerical or typographical errors in the
civil registry.[38] Having established that the proper recourse for the correction of
substantial changes in the civil registry is Rule 108 of the Rules of Court, the Court
cannot sustain the Republic's assertion on this matter. The Court has long settled
in Republic v. Olaybar[39] that as long as the procedural requirements in Rule 108 were
observed, substantial corrections and changes in the civil registry, such as those
involving the entries on sex and date of birth, may already be effected, viz.:
Rule 108 of the Rules of Court provides the procedure for cancellation or correction of
entries in the civil registry. The proceedings may either be summary or adversary. If the
correction is clerical, then the procedure to be adopted is summary. If the rectification
affects the civil status, citizenship or nationality of a party, it is deemed substantial, and
the procedure to be adopted is adversary. Since the promulgation of Republic v.
Valencia in 1986, the Court has repeatedly ruled that "even substantial errors in a civil
registry may be corrected through a petition filed under Rule 108, with the true facts
established and the parties aggrieved by the error availing themselves of the
appropriate adversarial proceeding." An appropriate adversary suit or proceeding is
one where the trial court has conducted proceedings where all relevant facts
have been fully and properly developed, where opposing counsel have been
given opportunity to demolish the opposite party's case, and where the evidence
has been thoroughly weighed and considered.
It is true that in special proceedings, formal pleadings and a hearing may be dispensed
with, and the remedy [is] granted upon mere application or motion. However, a special
proceeding is not always summary. The procedure laid down in Rule 108 is not a
summary proceeding per se. It requires publication of the petition; it mandates the
inclusion as parties of all persons who may claim interest which would be affected by
the cancellation or correction; it also requires the civil registrar and any person in
interest to file their opposition, if any; and it states that although the court may make
orders expediting the proceedings, it is after hearing that the court shall either dismiss
the petition or issue an order granting the same. Thus, as long as the procedural
requirements in Rule 108 are followed, it is the appropriate adversary proceeding
to effect substantial corrections and changes in entries of the civil register.
[40]
 (Emphases Ours)
Since the Republic was unable to substantiate its arguments, or even cite a specific rule
of procedure that Virgel failed to follow, the Court has no reason to depart from the
factual findings of the RTC, as affirmed by the CA. Furthermore, in the absence of
evidence refuting Virgel's assertion that he is indeed phenotypically male, the correction
of the entry on Virgel's sex in his birth certificate, from "FEMALE" to "MALE," was
correctly granted.
With respect to the change of his name to "Virgel" the Court does not agree with the CA
that the requirements under Rule 103 of the Rules of Court may be substituted with that
of Rule 108. These remedies are distinct and separate from one another, and
compliance with one rule cannot serve as a fulfillment of the requisites prescribed by the
other.[41] Nonetheless, the Court has settled in Republic v. Mercadera[42] that changes in
one's name are not necessarily confined to a petition filed under Rule 103 of the Rules
of Court. Rule 108, Section 2 of the Rules of Court include "changes of name" in the
enumeration of entries in the civil register that may be cancelled or corrected. Thus, the
name "Virgie" may be corrected to "Virgel" as a necessary consequence of the
substantial correction on Virgel's gender, and to allow the record to conform to the truth.
With respect to the date of Virgel's birth, the Court again disagrees with the CA that the
alleged date (i.e., February 25, 1976) is undisputed. The NSO copy of Virgel's birth
certificate indicates that he was born on May 12, 1976, a date obviously different from
that alleged in the petition for correction.[43] As a public document, the date of birth
appearing in the NSO copy is presumed valid and prima facie evidence of the facts
stated in it. Virgel bore the burden of proving its supposed falsity. [44]
Virgel failed to discharge this burden. The police clearance presented to the trial court
corroborates the entry in the NSO copy, indicating Virgel's date of birth as May 12,
1976.[45] The Court is also unconvinced by the other documentary evidence supposedly
showing that Virgel was born on February 25, 1976 because the information indicated in
the identification card from the Bureau of Internal Revenue and the Member Data
Record from the Philippine Health Insurance Corporation, were all supplied by Virgel.
[46]
 These are self-serving information, which do not suffice to overcome the presumption
of validity accorded to the date of birth reflected in the NSO copy of Virgel's birth
certificate.
WHEREFORE, premises considered, the petition for review on certiorari is DENIED.
The Decision dated October 9, 2013 of the Court of Appeals in CA-G.R. CV No. 02286
is AFFIRMED, only insofar as the corrections of the following entries in the birth
certificate are concerned: (a) first name, from "Virgie" to "Virgel;" and (b) gender, from
"FEMALE" to "MALE."
SO ORDERED.

[ G.R. No. 189538, February 10, 2014 ]

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. MERLINDA L. OLAYBAR,
RESPONDENT.

DECISION
PERALTA, J.:

Assailed in this Petition for Review on certiorari under Rule 45 of the Rules of Court are
the Regional Trial Court[1] (RTC) Decision[2] dated May 5, 2009 and Order[3] dated
August 25, 2009 in SP. Proc. No. 16519-CEB. The assailed Decision granted
respondent Merlinda L. Olaybar’s petition for cancellation of entries in the latter’s
marriage contract; while the assailed Order denied the motion for reconsideration filed
by petitioner Republic of the Philippines through the Office of the Solicitor General
(OSG).
The facts of the case are as follows:
Respondent requested from the National Statistics Office (NSO) a Certificate of No
Marriage (CENOMAR) as one of the requirements for her marriage with her boyfriend of
five years. Upon receipt thereof, she discovered that she was already married to a
certain Ye Son Sune, a Korean National, on June 24, 2002, at the Office of the
Municipal Trial Court in Cities (MTCC), Palace of Justice. She denied having contracted
said marriage and claimed that she did not know the alleged husband; she did not
appear before the solemnizing officer; and, that the signature appearing in the marriage
certificate is not hers.[4] She, thus, filed a Petition for Cancellation of Entries in the
Marriage Contract, especially the entries in the wife portion thereof. [5] Respondent
impleaded the Local Civil Registrar of Cebu City, as well as her alleged husband, as
parties to the case.
During trial, respondent testified on her behalf and explained that she could not have
appeared before Judge Mamerto Califlores, the supposed solemnizing officer, at the
time the marriage was allegedly celebrated, because she was then in Makati working as
a medical distributor in Hansao Pharma. She completely denied having known the
supposed husband, but she revealed that she recognized the named witnesses to the
marriage as she had met them while she was working as a receptionist in Tadels
Pension House. She believed that her name was used by a certain Johnny Singh, who
owned a travel agency, whom she gave her personal circumstances in order for her to
obtain a passport.[6] Respondent also presented as witness a certain Eufrocina Natinga,
an employee of MTCC, Branch 1, who confirmed that the marriage of Ye Son Sune was
indeed celebrated in their office, but claimed that the alleged wife who appeared was
definitely not respondent.[7] Lastly, a document examiner testified that the signature
appearing in the marriage contract was forged.[8]
On May 5, 2009, the RTC rendered the assailed Decision, the dispositive portion of
which reads:
WHEREFORE, judgment is hereby rendered, the petition is granted in favor of the
petitioner, Merlinda L. Olaybar. The Local Civil Registrar of Cebu City is directed to
cancel all the entries in the WIFE portion of the alleged marriage contract of the
petitioner and respondent Ye Son Sune.
SO ORDERED.[9]
Finding that the signature appearing in the subject marriage contract was not that of
respondent, the court found basis in granting the latter’s prayer to straighten her record
and rectify the terrible mistake.[10]
Petitioner, however, moved for the reconsideration of the assailed Decision on the
grounds that: (1) there was no clerical spelling, typographical and other innocuous
errors in the marriage contract for it to fall within the provisions of Rule 108 of the Rules
of Court; and (2) granting the cancellation of all the entries in the wife portion of the
alleged marriage contract is, in effect, declaring the marriage void ab initio.[11]
In an Order dated August 25, 2009, the RTC denied petitioner’s motion for
reconsideration couched in this wise:
WHEREFORE, the court hereby denies the Motion for Reconsideration filed by the
Republic of the Philippines. Furnish copies of this order to the Office of the Solicitor
General, the petitioner’s counsel, and all concerned government agencies.
SO ORDERED.[12]
Contrary to petitioner’s stand, the RTC held that it had jurisdiction to take cognizance of
cases for correction of entries even on substantial errors under Rule 108 of the Rules of
Court being the appropriate adversary proceeding required. Considering that
respondent’s identity was used by an unknown person to contract marriage with a
Korean national, it would not be feasible for respondent to institute an action for
declaration of nullity of marriage since it is not one of the void marriages under Articles
35 and 36 of the Family Code.[13]
Petitioner now comes before the Court in this Petition for Review on certiorari under
Rule 45 of the Rules of Court seeking the reversal of the assailed RTC Decision and
Order based on the following grounds:
I.
RULE 108 OF THE REVISED RULES OF COURT APPLIES ONLY WHEN THERE
ARE ERRORS IN THE ENTRIES SOUGHT TO BE CANCELLED OR CORRECTED.
II.
GRANTING THE CANCELLATION OF “ALL THE ENTRIES IN THE WIFE PORTION
OF THE ALLEGED MARRIAGE CONTRACT,” IS IN EFFECT DECLARING THE
MARRIAGE VOID AB INITIO.[14]
Petitioner claims that there are no errors in the entries sought to be cancelled or
corrected, because the entries made in the certificate of marriage are the ones provided
by the person who appeared and represented herself as Merlinda L. Olaybar and are, in
fact, the latter’s personal circumstances.[15] In directing the cancellation of the entries in
the wife portion of the certificate of marriage, the RTC, in effect, declared the marriage
null and void ab initio.[16] Thus, the petition instituted by respondent is actually a petition
for declaration of nullity of marriage in the guise of a Rule 108 proceeding. [17]
We deny the petition.
At the outset, it is necessary to stress that a direct recourse to this Court from the
decisions and final orders of the RTC may be taken where only questions of law are
raised or involved. There is a question of law when the doubt arises as to what the law
is on a certain state of facts, which does not call for the examination of the probative
value of the evidence of the parties.[18] Here, the issue raised by petitioner is whether or
not the cancellation of entries in the marriage contract which, in effect, nullifies the
marriage may be undertaken in a Rule 108 proceeding. Verily, petitioner raised a pure
question of law.
Rule 108 of the Rules of Court sets forth the rules on cancellation or correction of
entries in the civil registry, to wit:
SEC. 1. Who may file petition. – Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or correction of any entry relating
thereto, with the Regional Trial Court of the province where the corresponding civil
registry is located.
SEC. 2. Entries subject to cancellation or correction. – Upon good and valid grounds,
the following entries in the civil register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage;
(f) judgments declaring marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n)
voluntary emancipation of a minor; and (o) changes of name.
SEC. 3. Parties. – When cancellation or correction of an entry in the civil register is
sought, the civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.
SEC. 4. Notice and Publication. – Upon the filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall also cause the
order to be published once a week for three (3) consecutive weeks in a newspaper of
general circulation in the province.
SEC. 5. Opposition. – The civil registrar and any person having or claiming any interest
under the entry whose cancellation or correction is sought may, within fifteen (15) days
from notice of the petition, or from the last date of publication of such notice, file his
opposition thereto.
SEC. 6. Expediting proceedings. – The court in which the proceedings is brought may
make orders expediting the proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such proceedings.
SEC. 7. Order. – After hearing, the court may either dismiss the petition or issue an
order granting the cancellation or correction prayed for. In either case, a certified copy
of the judgment shall be served upon the civil registrar concerned who shall annotate
the same in his record.
Rule 108 of the Rules of Court provides the procedure for cancellation or correction of
entries in the civil registry. The proceedings may either be summary or adversary. If the
correction is clerical, then the procedure to be adopted is summary. If the rectification
affects the civil status, citizenship or nationality of a party, it is deemed substantial, and
the procedure to be adopted is adversary. Since the promulgation of Republic v.
Valencia[19] in 1986, the Court has repeatedly ruled that “even substantial errors in a civil
registry may be corrected through a petition filed under Rule 108, with the true facts
established and the parties aggrieved by the error availing themselves of the
appropriate adversarial proceeding.” [20] An appropriate adversary suit or proceeding is
one where the trial court has conducted proceedings where all relevant facts have been
fully and properly developed, where opposing counsel have been given opportunity to
demolish the opposite party’s case, and where the evidence has been thoroughly
weighed and considered.[21]
It is true that in special proceedings, formal pleadings and a hearing may be dispensed
with, and the remedy [is] granted upon mere application or motion. However, a special
proceeding is not always summary. The procedure laid down in Rule 108 is not a
summary proceeding per se. It requires publication of the petition; it mandates the
inclusion as parties of all persons who may claim interest which would be affected by
the cancellation or correction; it also requires the civil registrar and any person in
interest to file their opposition, if any; and it states that although the court may make
orders expediting the proceedings, it is after hearing that the court shall either dismiss
the petition or issue an order granting the same. Thus, as long as the procedural
requirements in Rule 108 are followed, it is the appropriate adversary proceeding to
effect substantial corrections and changes in entries of the civil register. [22]
In this case, the entries made in the wife portion of the certificate of marriage are
admittedly the personal circumstances of respondent. The latter, however, claims that
her signature was forged and she was not the one who contracted marriage with the
purported husband. In other words, she claims that no such marriage was entered into
or if there was, she was not the one who entered into such contract. It must be recalled
that when respondent tried to obtain a CENOMAR from the NSO, it appeared that she
was married to a certain Ye Son Sune. She then sought the cancellation of entries in
the wife portion of the marriage certificate.
In filing the petition for correction of entry under Rule 108, respondent made the Local
Civil Registrar of Cebu City, as well as her alleged husband Ye Son Sune, as parties-
respondents. It is likewise undisputed that the procedural requirements set forth in Rule
108 were complied with. The Office of the Solicitor General was likewise notified of the
petition which in turn authorized the Office of the City Prosecutor to participate in the
proceedings. More importantly, trial was conducted where respondent herself, the
stenographer of the court where the alleged marriage was conducted, as well as a
document examiner, testified. Several documents were also considered as evidence.
With the testimonies and other evidence presented, the trial court found that the
signature appearing in the subject marriage certificate was different from respondent’s
signature appearing in some of her government issued identification cards. [23] The court
thus made a categorical conclusion that respondent’s signature in the marriage
certificate was not hers and, therefore, was forged. Clearly, it was established that, as
she claimed in her petition, no such marriage was celebrated.
Indeed the Court made a pronouncement in the recent case of Minoru Fujiki v. Maria
Paz Galela Marinay, Shinichi Maekara, Local Civil Registrar of Quezon City, and the
Administrator and Civil Registrar General of the National Statistics Office [24] that:
To be sure, a petition for correction or cancellation of an entry in the civil registry cannot
substitute for an action to invalidate a marriage. A direct action is necessary to prevent
circumvention of the substantive and procedural safeguards of marriage under the
Family Code, A.M. No. 02-11-10-SC and other related laws. Among these safeguards
are the requirement of proving the limited grounds for the dissolution of marriage,
support pendente lite of the spouses and children, the liquidation, partition and
distribution of the properties of the spouses and the investigation of the public
prosecutor to determine collusion. A direct action for declaration of nullity or annulment
of marriage is also necessary to prevent circumvention of the jurisdiction of the Family
Courts under the Family Courts Act of 1997 (Republic Act No. 8369), as a petition for
cancellation or correction of entries in the civil registry may be filed in the Regional Trial
Court where the corresponding civil registry is located. In other words, a Filipino citizen
cannot dissolve his marriage by the mere expedient of changing his entry of marriage in
the civil registry.[25]
Aside from the certificate of marriage, no such evidence was presented to show the
existence of marriage. Rather, respondent showed by overwhelming evidence that no
marriage was entered into and that she was not even aware of such existence. The
testimonial and documentary evidence clearly established that the only “evidence” of
marriage which is the marriage certificate was a forgery. While we maintain that Rule
108 cannot be availed of to determine the validity of marriage, we cannot nullify the
proceedings before the trial court where all the parties had been given the opportunity to
contest the allegations of respondent; the procedures were followed, and all the
evidence of the parties had already been admitted and examined. Respondent indeed
sought, not the nullification of marriage as there was no marriage to speak of, but the
correction of the record of such marriage to reflect the truth as set forth by the evidence.
Otherwise stated, in allowing the correction of the subject certificate of marriage by
cancelling the wife portion thereof, the trial court did not, in any way, declare the
marriage void as there was no marriage to speak of.
WHEREFORE, premises considered, the petition is DENIED for lack of merit. The
Regional Trial Court Decision dated May 5, 2009 and Order dated August 25, 2009 in
SP. Proc. No. 16519-CEB, are AFFIRMED.
SO ORDERED.
Velasco, Jr., J., (Chairperson), Abad, Mendoza, and Leonen, JJ., concur.
[ G.R. No. 189476, February 02, 2011 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. JULIAN EDWARD EMERSON
COSETENG-MAGPAYO (A.K.A. JULIAN EDWARD EMERSON MARQUEZ-LIM
COSETENG), RESPONDENT.

DECISION

CARPIO MORALES, J.:

Born in Makati on September 9, 1972, Julian Edward Emerson Coseteng Magpayo

(respondent) is the son of Fulvio M. Magpayo Jr. and Anna Dominique Marquez-Lim
Coseteng who, as respondent's certificate of live birth [1] shows, contracted marriage on
March 26, 1972.

Claiming, however, that his parents were never legally married, respondent filed on July
22, 2008 at the Regional Trial Court (RTC) of Quezon City a Petition to change his
name to Julian Edward Emerson Marquez Lim Coseteng.  The petition, docketed as
SPP No. Q-0863058, was entitled "IN RE PETITION FOR CHANGE OF NAME OF
JULIAN EDWARD EMERSON COSETENG MAGPAYO TO JULIAN EDWARD
EMERSON MARQUEZ-LIM COSETENG."

In support of his petition, respondent submitted a certification from the National

Statistics Office stating that his mother Anna Dominique "does not appear in [its]
National Indices of Marriage."[2]   Respondent also submitted his academic records from
elementary up to college[3] showing that he carried the surname "Coseteng," and the
birth certificate of his child where "Coseteng" appears as his surname. [4]  In the 1998,
2001 and 2004 Elections, respondent ran and was elected as Councilor of Quezon
City's 3rd District using the name "JULIAN M.L. COSETENG." [5]

On order of Branch 77 of the Quezon City RTC,[6] respondent amended his petition by

alleging therein compliance with the 3-year residency requirement under Section
2, Rule 103 of the Rules of Court.[7]

The notice setting the petition for hearing on November 20, 2008 was published in the
newspaper Broadside in its issues of October 31-November 6, 2008, November 7-13,
2008, and November 14-20, 2008. [8]  And a copy of the notice was furnished the Office
of the Solicitor General (OSG).

No opposition to the petition having been filed, an order of general default was entered
by the trial court which then allowed respondent to  present evidence ex parte.[9]

By Decision of January 8, 2009,[10] the trial court granted respondent's petition and

directed the Civil Registrar of Makati City to:
1. Delete the entry "March 26, 1972" in Item 24 for "DATE AND PLACE OF
MARRIAGE OF PARTIES" [in herein respondent's Certificate of live Birth];

2. Correct the entry "MAGPAYO" in the space for the Last Name of the [respondent] to
"COSETENG";

3. Delete the entry "COSETENG" in the space for Middle Name of the
[respondent]; and

4.  Delete the entry "Fulvio Miranda Magpayo, Jr." in the space for FATHER of the
[respondent]... (emphasis and underscoring supplied;  capitalization in the original)

The Republic of the Philippines (Republic) filed a motion for reconsideration but it was
denied by the trial court by Order of July 2, 2009,[11] hence, it, thru the OSG, lodged the
present petition for review to the Court on pure question of law.

The Republic assails the decision in this wise:

I. . . . . THE PETITION FOR CHANGE OF NAME...INVOLVES THE CHANGE
OF [RESPONDENT'S] CIVIL STATUS FROM LEGITIMATE TO
ILLEGITIMATE AND, THEREFORE, SHOULD BE MADE THROUGH
APPROPRIATE ADVERSARIAL PROCEEDINGS...
II. THE TRIAL COURT EXCEEDED ITS JURISDICTION WHEN IT DIRECTED
THE DELETION OF THE NAME OF RESPONDENT'S FATHER FROM HIS
BIRTH CERTIFICATE.[12] (emphasis and underscoring supplied)

The Republic contends that the deletion of the entry on the date and place of marriage
of respondent's parents from his birth certificate has the effect of changing his civil
status from legitimate to illegitimate, hence, any change in civil status of a person must
be effected through an appropriate adversary proceeding.[13]

The Republic adds that by ordering the deletion of respondent's parents' date of

marriage and the name of respondent's father from the entries in respondent's birth
certificate,[14] the trial court exceeded its jurisdiction, such order not being in accord with
respondent's prayer reading:
WHEREFORE, premises considered, it is most respectfully prayed that the Honorable
Court issue an order allowing the change of name of petitioner from JULIAN EDWARD
EMERSON COSETENG MAGPAYO to JULIAN EDWARD EMERSON MARQUEZ-LIM
COSETENG, and that the Honorable Court order the Local Civil Registrar and all other
relevant government agencies to reflect the said change of name in their records.

Petitioner prays for other reliefs deemed proper under the premises. [15]  (underscoring
supplied)

Respondent counters that the proceeding before the trial court was adversarial in
nature.  He cites the serving of copies of the petition and its annexes upon the Civil
Registrar of Makati, the Civil Registrar General, and the OSG;  the posting of copies of
the notice of hearing in at least four public places at least ten days before the hearing; 
the delegation to the OSG by the City Prosecutor of Quezon City to appear on behalf of
the Republic; the publication of the notice of hearing in a newspaper of general
circulation for three consecutive weeks;  and the fact that no oppositors appeared on
the scheduled hearing.[16]

The petition is impressed with merit.

A person can effect a change of name under Rule 103 (CHANGE OF NAME) using
valid and meritorious grounds including   (a) when the name is ridiculous, dishonorable
or extremely difficult to write or pronounce; (b) when the change results as a legal
consequence such as legitimation; (c) when the change will avoid confusion; (d) when
one has continuously used and been known since childhood by a Filipino name, and
was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without prejudicing anybody; and (f) when
the surname causes embarrassment and there is no showing that the desired change of
name was for a fraudulent purpose or that the change of name would prejudice public
interest.[17]  Respondent's reason for changing his name cannot be considered as one
of, or analogous to, recognized grounds, however.

The present petition must be differentiated from Alfon v. Republic of the Philippines.

[18]
 In Alfon, the Court allowed the therein petitioner, Estrella Alfon, to use the name that
she had been known since childhood in order to avoid confusion. Alfon did not deny her
legitimacy, however.  She merely sought to use the surname of her mother which she
had been using since childhood.  Ruling in her favor, the Court held that she was
lawfully entitled to use her mother's surname, adding that the avoidance of confusion
was justification enough to allow her to do so.  In the present case, however,
respondent denies his legitimacy.
The change being sought in respondent's petition goes so far as to affect his legal
status in relation to his parents.  It seeks to change his legitimacy to that of illegitimacy. 
Rule 103 then would not suffice to grant respondent's supplication.

Labayo-Rowe v. Republic[19] categorically holds that "changes which may affect the civil

status from legitimate to illegitimate . . . are substantial and controversial
alterations which can only be allowed after appropriate adversary proceedings . . ."

Since respondent's desired change affects his civil status from legitimate to
illegitimate, Rule 108 applies.  It reads:
SECTION 1.  Who may file petition.--Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or correction of any entry relating
thereto, with the [RTC] of the province where the corresponding civil registry is
located.
xxxx

SEC. 3. Parties.--When cancellation or correction of an entry in the civil register is

sought, the civil registrar and all persons who have or claim any interest which
would be affected thereby shall be made parties to the proceeding.

SEC. 4.  Notice and publication. -Upon the filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The court shall also cause
the order to be published once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.   (emphasis, italics and underscoring supplied)

Rule 108 clearly directs that a petition which concerns one's civil status  should be filed
in the civil registry in which the entry is sought to be cancelled or corrected - that of
Makati in the present case, and "all persons who have or claim any interest which would
be affected thereby" should be made parties to the proceeding.

As earlier stated, however, the petition of respondent was filed not in Makati where his
birth certificate was registered but in Quezon City. And as the above-mentioned title of
the petition filed by respondent before the RTC shows, neither the civil registrar of
Makati nor his father and mother were made parties thereto.

Respondent nevertheless cites Republic v. Capote[20] in support of his claim that his

change of name was effected through an appropriate adversary proceeding.

Republic v. Belmonte,[21] illuminates, however:

The procedure recited in Rule 103 regarding change of name and in Rule
108 concerning the cancellation or correction of entries in the civil registry are separate
and distinct.  They may not be substituted one for the other for the sole purpose of
expediency. To hold otherwise would render nugatory the provisions of the Rules of
Court allowing the change of one's name or the correction of entries in the civil registry
only upon meritorious grounds. . . . (emphasis, capitalization and underscoring supplied)

Even assuming arguendo that respondent had simultaneously availed of these two

statutory remedies, respondent cannot be said to have sufficiently complied with Rule
108.  For, as reflected above, aside from improper venue, he failed to implead the
civil registrar of Makati and all affected parties as respondents in the case.

Republic v. Labrador[22] mandates that "a petition for a substantial correction or change

of entries in the civil registry should have as respondents the civil registrar, as well
as all other persons who have or claim to have any interest  that would be affected
thereby." It cannot be gainsaid that change of status of a child in relation to his
parents is a substantial correction or change of entry in the civil registry.

Labayo-Rowe[23] highlights the necessity of impleading indispensable parties in a

petition which involves substantial and controversial alterations.  In that case, the
therein petitioner Emperatriz Labayo-Rowe (Emperatriz) filed a petition for the
correction of entries in the birth certificates of her children, Vicente Miclat, Jr. and
Victoria Miclat, in the Civil Registry of San Fernando, Pampanga.  Emperatriz alleged
that her name appearing in the birth certificates is Beatriz, which is her nickname, but
her full name is Emperatriz; and her civil status appearing in the birth certificate of her
daughter Victoria as "married" on "1953 Bulan" are erroneous because she was not
married to Vicente Miclat who was the one who furnished the data in said birth
certificate.

The trial court found merit in Emperatriz's petition and accordingly directed the local civil
registrar to change her name appearing in her children's birth certificates from Beatriz to
Emperatriz; and to correct her civil status in Victoria's birth certificate from "married" to
"single" and the date and place of marriage to "no marriage."

On petition before this Court after the Court of Appeals found that the order of the trial
court involved a question of law, the Court nullified the trial court's order directing the
change of Emperatriz' civil status and the filiation of her child Victoria in light of the
following observations:
x x x x  Aside from the Office of the Solicitor General, all other indispensable
parties should have been made respondents.  They include not only the declared
father of the child but the child as well, together with the paternal grandparents, if any,
as their hereditary rights would be adversely affected thereby. All other persons who
may be affected by the change should be notified or represented.  The truth is best
ascertained under an adversary system of justice.

The right of the child Victoria to inherit from her parents would be substantially impaired
if her status would be changed from "legitimate" to "illegitimate."  Moreover, she would
be exposed to humiliation and embarrassment resulting from the stigma of an
illegitimate filiation that she will bear thereafter.  The fact that the notice of hearing of the
petition was published in a newspaper of general circulation and notice thereof was
served upon the State will not change the nature of the proceedings taken . Rule 108,
like all the other provisions of the Rules of Court, was promulgated by the Supreme
Court pursuant to its rule-making authority under Section 13, Article VIII of the 1973
Constitution, which directs that such rules "shall not diminish, increase or modify
substantive rights."  If Rule 108 were to be extended beyond innocuous or harmless
changes or corrections of errors which are visible to the eye or obvious to the
understanding, so as to comprehend substantial and controversial alterations
concerning citizenship, legitimacy of paternity  or filiation, or legitimacy of
marriage, without observing the proper proceedings as earlier mentioned , said rule
would thereby become an unconstitutional exercise which would tend to increase or
modify substantive rights.  This situation is not contemplated under Article 412 of the
Civil Code.[24] (emphasis, italics and underscoring supplied)

As for the requirement of notice and publication, Rule 108 provides:

SEC. 4.  Notice and publication.--Upon the filing of the petition, the court shall, by an
order, fix the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The court shall
also cause the order to be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.

SEC. 5.  Opposition.--The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within
fifteen (15) days from notice of the petition, or from the last date of publication of
such notice, file his opposition thereto.  (emphasis and underscoring supplied)

A reading of these related provisions readily shows that Rule 108 clearly mandates two
sets of notices to different "potential oppositors." The first notice is that given to the
"persons named in the petition" and the second (which is through publication) is that
given to other persons who are not named in the petition but nonetheless may be
considered interested or affected parties, such as creditors.  That two sets of notices
are mandated under the above-quoted Section 4 is validated by the subsequent Section
5, also above-quoted, which provides for two periods (for the two types of "potential
oppositors") within which to file an opposition (15 days from notice or from the last date
of publication).

This is the overriding principle laid down in Barco v. Court of Appeals.[25]  In that case,
Nadina Maravilla (Nadina) filed a  petition for correction of entries in the birth certificate
of her daughter June from June Salvacion Maravilla to June Salvacion "Gustilo,"
Armando Gustilo being, according to Nadina, her daughter's real father. Gustilo in fact
filed before the trial court a "CONSTANCIA" wherein he acknowledged June as his
daughter.  The trial court granted the petition.

After Gustilo died, his son Jose Vicente Gustilo filed with the Court of Appeals a petition
for annulment of the Order of the trial court granting the change of June's family name
to Gustilo.
Milagros Barco (Barco), natural guardian of her minor daughter Mary Joy Ann Gustilo,
filed before the appellate court a motion for intervention, alleging that Mary Joy had a
legal interest in the annulment of the trial court's Order as Mary Joy was, by Barco's
claim, also fathered by Gustilo.

The appellate court dismissed the petition for annulment and complaint-in-intervention.

On appeal by Barco, this Court ruled that she should have been impleaded in Nadina's
petition for correction of entries of the birth certificate of Mary Joy. But since a petitioner,
like Nadina, is not expected to exhaustively identify all the affected parties, the
subsequent publication of the notice cured the omission of Barco as a party to the
case.  Thus the Court explained:
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108.  Her
interest was affected by the petition for correction, as any judicial determination that
June was the daughter of Armando would affect her ward's share in the estate of her
father.  It cannot be established whether Nadina knew of Mary Joy's existence at the
time she filed the petition for correction. Indeed, doubt may always be cast as to
whether a petitioner under Rule 108 would know of all the parties whose interests
may be affected by the granting of a petition.  For example, a petitioner cannot be
presumed to be aware of all the legitimate or illegitimate offsprings of his/her
spouse or paramour. x x x x.

xxxx

The purpose precisely of Section 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition.  The sweep of the decision would cover even
parties who should have been impleaded under Section 3, Rule 108 but were
inadvertently left out.  x x x x.[26] (emphasis, italics and underscoring supplied)

Meanwhile, in Republic v. Kho,[27] Carlito Kho (Carlito) and his siblings named the civil
registrar as the sole respondent in the petition they filed for the correction of entries in
their respective birth certificates in the civil registry of Butuan City, and correction of
entries in the birth certificates of Carlito's minor children.  Carlito and his siblings
requested the correction in their birth certificates of the citizenship of their mother
Epifania to "Filipino," instead of "Chinese," and the deletion of the word "married"
opposite the phrase "Date of marriage of parents" because their parents ─ Juan and
Epifania ─ were not married. And Carlito requested the correction in the birth
certificates of their children of his and his wife's date of marriage to reflect the actual
date of their marriage as appearing in their marriage certificate. In the course of the
hearing of the petition, Carlito also sought the correction of the name of his wife from
Maribel  to "Marivel."

The Khos' mother Epifania took the witness stand where she declared that she was not
married to Juan who died before the filing of the Khos' petition.

The trial court granted the petition.

On the issue of whether the failure to implead Marivel and the Khos' parents rendered
the trial of the petition short of the required adversary proceedings and the trial court's
judgment void, this Court held that when all the procedural requirements under Rule
108 are followed, the publication of the notice of hearing cures the failure to implead an
indispensable party.  In so ruling, the Court noted that the affected parties were already
notified of the proceedings in the case since the petitioner-siblings  Khos were the ones
who initiated the petition respecting their prayer for correction of their citizenship, and
Carlito respecting the actual date of his marriage to his wife; and, with respect to the
Khos' petition for change of their civil status from legitimate to illegitimate, their mother
Epifania herself took the witness stand declaring that she was not married to their
father.

What is clear then in Barco and Kho is the mandatory directive under Section 3 of Rule
108 to implead the civil registrar and the parties who would naturally and legally be
affected by the grant of a petition for correction or cancellation of entries.  Non-
impleading, however, as party-respondent of one who is inadvertently left out or is not
established to be known by the petitioner to be affected by the grant of the petition or
actually participates in the proceeding is notified through publication.

IN FINE, when a petition for cancellation or correction of an entry in the civil register
involves substantial and controversial alterations including those on citizenship,
legitimacy of paternity or filiation, or legitimacy of marriage, a strict compliance with the
requirements of Rule 108 of the Rules of Court is mandated.

WHEREFORE, the petition is, in light of the foregoing discussions,  GRANTED. The

January 8, 2009 Decision of Branch 77 of the Regional Trial Court of Quezon City in SP
Proc. No. Q-0863058 is NULLIFIED.

SO ORDERED.

Brion, Bersamin, Villarama, Jr., and Sereno, JJ., concur.

[ G.R. No. 197174, September 10, 2014 ]

FRANCLER P. ONDE, PETITIONER, VS. THE OFFICE OF THE LOCAL CIVIL
REGISTRAR OF LAS PIÑAS CITY, RESPONDENT.

RESOLUTION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari of the Orders [1] dated October 7, 2010 and
March 1, 2011 of the Regional Trial Court (RTC), Branch 201, Las Piñas City, in Special
Proceedings Case No. 10-0043.  The RTC dismissed the case filed by petitioner
Francler P. Onde for correction of entries in his certificate of live birth.
The antecedent facts follow:

Petitioner filed a petition[2] for correction of entries in his certificate of live birth before the
RTC and named respondent Office of the Local Civil Registrar of Las Piñas City as sole
respondent.  Petitioner alleged that he is the illegitimate child of his parents Guillermo A.
Onde and Matilde DC Pakingan, but his birth certificate stated that his parents were
married.  His birth certificate also stated that his mother’s first name is Tely and that his
first name is Franc Ler.  He prayed that the following entries on his birth certificate be
corrected as follows:
Entry From To
1) Date and place of marriage of his December 23, 1983 - Not married
parents Bicol
2) First name of his mother Tely Matilde
3) His first name Franc Ler Francler

In its Order dated October 7, 2010, the RTC dismissed the petition for correction of
entries on the ground that it is insufficient in form and substance.  It ruled that the
proceedings must be adversarial since the first correction is substantial in nature and
would affect petitioner’s status as a legitimate child.  It was further held that the
correction in the first name of petitioner and his mother can be done by the city civil
registrar under Republic Act (R.A.) No. 9048, entitled An Act Authorizing the City or
Municipal Civil Registrar or the Consul General to Correct a Clerical or Typographical
Error in an Entry and/or Change of First Name or Nickname in the Civil Registrar
Without Need of a Judicial Order, Amending for this Purpose Articles 376 and 412 of the
Civil Code of the Philippines.

In its Order dated March 1, 2011, the RTC denied petitioner’s motion for
reconsideration, as it found no proof that petitioner’s parents were not married on
December 23, 1983.

Essentially, the petition raises four issues: (1) whether the RTC erred in ruling that the
correction on the first name of petitioner and his mother can be done by the city civil
registrar under R.A. No. 9048; (2) whether the RTC erred in ruling that correcting the
entry on petitioner’s birth certificate that his parents were married on December 23,
1983 in Bicol to “not married” is substantial in nature requiring adversarial proceedings;
(3) whether the RTC erred in dismissing the petition for correction of entries; and (4)
whether the RTC erred in ruling that there is no proof that petitioner’s parents were not
married on December 23, 1983.

Petitioner argues that Rule 108 of the Rules of Court allows a substantial correction of

entries in the civil registry, stating that in Eleosida v. Local Civil Registrar of Quezon
City,[3] the case cited by the RTC, we have actually ruled that substantial changes in the
civil registry are now allowed under Rule 108 of the Rules of Court.  He likewise adds
that proof that his parents were not married will be presented during the trial, not during
the filing of the petition for correction of entries.

In its comment, the Office of the Solicitor General (OSG) contends that the RTC
correctly dismissed the petition for correction of entries.  It points out that the first names
of petitioner and his mother can be corrected thru administrative proceedings under
R.A. No. 9048.  Such correction of the entry on petitioner’s birth certificate that his
parents were married on December 23, 1983 in Bicol to “not married” is a substantial
correction affecting his legitimacy.  Hence, it must be dealt with in adversarial
proceedings where all interested parties are impleaded.

We deny the petition.

On the first issue, we agree with the RTC that the first name of petitioner and his
mother as appearing in his birth certificate can be corrected by the city civil registrar
under R.A. No. 9048.  We note that petitioner no longer contested the RTC’s ruling on
this point.[4]  Indeed, under Section 1[5] of R.A. No. 9048, clerical or typographical errors
on entries in a civil register can be corrected and changes of first name can be done by
the concerned city civil registrar without need of a judicial order.  Aforesaid Section 1, as
amended by R.A. No. 10172, now reads:
SECTION 1.  Authority to Correct Clerical or Typographical Error and Change of First
Name or Nickname. – No entry in a civil register shall be changed or corrected
without a judicial order, except for clerical or typographical errors and change of
first name or nickname, the day and month in the date of birth or sex of a person where
it is patently clear that there was a clerical or typographical error or mistake in the
entry, which can be corrected or changed by the concerned city or municipal civil
registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.  (Emphasis supplied.)

In Silverio v. Republic,[6] we held that under R.A. No. 9048, jurisdiction over applications
for change of first name is now primarily lodged with administrative officers.  The intent
and effect of said law is to exclude the change of first name from the coverage of Rules
103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an administrative petition for change of
name is first filed and subsequently denied.  The remedy and the proceedings
regulating change of first name are primarily administrative in nature, not judicial. 
In Republic v. Cagandahan,[7] we said that under R.A. No. 9048, the correction of
clerical or typographical errors can now be made through administrative proceedings
and without the need for a judicial order.  The law removed from the ambit of Rule 108
of the Rules of Court the correction of clerical or typographical errors.  Thus petitioner
can avail of this administrative remedy for the correction of his and his mother’s first
name.

On the second issue, we also agree with the RTC in ruling that correcting the entry on
petitioner’s birth certificate that his parents were married on December 23, 1983 in Bicol
to “not married” is a substantial correction requiring adversarial proceedings.  Said
correction is substantial as it will affect his legitimacy and convert him from a legitimate
child to an illegitimate one.  In Republic v. Uy,[8] we held that corrections of entries in the
civil register including those on citizenship, legitimacy of paternity or filiation,
or legitimacy of marriage, involve substantial alterations.  Substantial errors in a civil
registry may be corrected and the true facts established provided the parties aggrieved
by the error avail themselves of the appropriate adversary proceedings.[9]

On the third issue, we likewise affirm the RTC in dismissing the petition for correction
of entries.  As mentioned, petitioner no longer contested the RTC ruling that the
correction he sought on his and his mother’s first name can be done by the city civil
registrar.  Under the circumstances, we are constrained to deny his prayer that the
petition for correction of entries before the RTC be reinstated since the same petition
includes the correction he sought on his and his mother’s first name.

We clarify, however, that the RTC’s dismissal is without prejudice.  As we said,

petitioner can avail of the administrative remedy for the correction of his and his
mother’s first name.  He can also file a new petition before the RTC to correct the
alleged erroneous entry on his birth certificate that his parents were married on
December 23, 1983 in Bicol.  This substantial correction is allowed under Rule 108 of
the Rules of Court.  As we reiterated in Eleosida v. Local Civil Registrar of Quezon City:
[10]

x x x This is our ruling in Republic vs. Valencia where we held that even substantial
errors in a civil registry may be corrected and the true facts established under
Rule 108 [of the Rules of Court] provided the parties aggrieved by the error avail
themselves of the appropriate adversary proceeding.  x x x

xxxx

It is true in the case at bar that the changes sought to be made by petitioner are not
merely clerical or harmless errors but substantial ones as they would affect the status of
the marriage between petitioner and Carlos Borbon, as well as the legitimacy of their
son, Charles Christian.  Changes of such nature, however, are now allowed under
Rule 108 in accordance with our ruling in Republic vs. Valencia provided that the
appropriate procedural requirements are complied with.  x x x (Emphasis supplied.)

We also stress that a petition seeking a substantial correction of an entry in a civil

register must implead as parties to the proceedings not only the local civil registrar, as
petitioner did in the dismissed petition for correction of entries, but also all persons who
have or claim any interest which would be affected by the correction.  This is required
by Section 3, Rule 108 of the Rules of Court:
SEC. 3. Parties. – When cancellation or correction of an entry in the civil register is
sought, the civil registrar and all persons who have or claim any interest which
would be affected thereby shall be made parties to the proceeding.  (Emphasis
supplied.)

In Eleosida,[11] we cited Section 3, and Sections 4 and 5 of Rule 108 of the Rules of

Court, as the procedural requirements laid down by the Court to make the
proceedings under Rule 108 adversary.  In Republic v. Uy,[12] we have similarly ruled
that when a petition for cancellation or correction of an entry in the civil register involves
substantial and controversial alterations, including those on citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, a strict compliance with the
requirements of the Rules of Court is mandated.  Thus, in his new petition, petitioner
should at least implead his father and mother as parties since the substantial correction
he is seeking will also affect them.

In view of the foregoing discussion, it is no longer necessary to dwell on the last

issue as petitioner will have his opportunity to prove his claim that his parents were not
married on December 23, 1983 when he files the new petition for the purpose.

WHEREFORE, we DENY the petition and AFFIRM the Orders dated October 7, 2010

and March 1, 2011 of the Regional Trial Court, Branch 201, Las Piñas City, in Special
Proceedings Case No. 10-0043.  The dismissal ordered by the Regional Trial Court is,
however, declared to be without prejudice.

No pronouncement as to costs.

SO ORDERED.

SECOND DIVISION
[ G.R. NO. 160597, July 20, 2006 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. ROSELIE ELOISA BRINGAS
BOLANTE A.K.A. MARIA ELOISA BRINGAS BOLANTE, RESPONDENT.

DECISION

GARCIA, J.:

In this petition for review under Rule 45 of the Rules of Court, the Republic of the
Philippines assails and seeks to set aside the decision [1] of the Court of Appeals (CA)
dated October 21, 2003 in CA-G.R. CV No. 74398 affirming that of the Regional Trial
Court (RTC) of Bangued, Abra in Special Proceeding Case No. 1916, a petition for
change of name thereat commenced by herein respondent Roselie Eloisa Bringas
Bolante also known as Maria Eloisa Bringas Bolante.

In her petition before the RTC, respondent alleged, among other things, the following:
1. That she is a Filipino, of legal age, married, born to spouses Floriano B. Bolante
and Paula B. Bringas and a resident since birth of Bangued, Abra;
 2. That per records in the Office of the Municipal Civil Registrar, Bangued, Abra, her
registered name is Roselie Eloisa Bringas Bolante which name, as far as she
can remember, she did not use but instead the name Maria Eloisa Bringas
Bolante;
3. That the name Maria Eloisa appears in all her school as well as in her other
public and private records; and
4. That her married name is Maria Eloisa B. Bolante-Marbella.
Thus, to prevent confusion, Ms. Bolante prayed that her registered name be changed to
conform to the name she has always carried and used.

Finding the petition sufficient in form and substance, the trial court ordered respondent,
as petitioner thereat, to comply with the jurisdictional requirements of notice and
publication, and set the hearing on February 20, 2001.

At the scheduled February 20, 2001 initial hearing, the trial court issued an Order giving
respondent five (5) days within which to file a written formal offer of evidence to
establish jurisdictional facts and set the presentation of evidence proper on March 26,
2001. In the afternoon of February 20, respondent filed her "Offer of Evidence for
Marking and Identification Purposes to Prove Jurisdictional Facts."

On June 5, 2001, the branch clerk of court, acting upon the trial court's express March
26, 2001 directive for a resetting, issued a notice for a July 18, 2001 hearing. Following
another resetting, what actually would be the initial hearing was, after notice, scheduled
on September 25, 2001 and actually held. At that session, respondent presented and
marked in evidence several documents without any objection on the part of herein
petitioner Republic, represented by the Office of the Solicitor General (OSG), thru the
duly deputized provincial prosecutor of Abra. Among the documents thus submitted and
marked in evidence were the following:
Exh. "A" - The Petition
Exh. "B" - The Notice of Initial Hearing
Exh. "C" - The Certificate of Posting
Exh. "D" - The Appearance of the Solicitor General
Exh. "E" - The Authority given to the Office of the Provincial Prosecutor
Exh. "F" - The Affidavit of Publication
Exh. "F-I" -The Newspaper Clippings
Exh. "G" - The Norluzonian Courier
Exh. "H" - Another copy of Norluzonian Courier
Shortly after the trial court has declared its acquisition of jurisdiction over the case,
respondent took the witness stand to state that the purpose of her petition was to have
her registered name changed to that which she had actually been using thru the years.
She also categorically stated she had not been accused of any crime under either her
registered name or her present correct name.

An excerpt of other portions of her testimony, as recited in the Republic's petition which
cited the decision of the trial court:
At the witness stand the petitioner [herein respondent Bolante] testified, among others,
that she is now married to Jorge Marbella, Jr. and presently residing at Bliss Angad,
Bangued, Abra since 1995 but before she resided in Zone 4, Bangued, Abra since birth.
She presented her birth certificate and was marked as Exhibit J to establish such fact of
birth and to effect that the name Roselie Eloisa B. Bolante entered therein is not her
true and correct name but instead Maria Eloisa Bolante which she had been using
during her school days, while being a government employee, and in all her public and
private records.

She presented her professional license issued by the Professional Regulation

Commission, Certificate issued by the Philippine Institute of Certified Public Accountant
and a 'Quick Count' document all issued in her name Maria Eloisa B. Marbella, which
documents were marked as Exhibit K and Exhibit L and Exhibit M respectively. She
likewise marked her marriage license as Exhibit N to prove her marriage xxx.
xxx xxx xxx

On cross she stated that the purpose of filing the petition is that, she wanted to secure a
passport and wanted that the same be issued in her correct name and that she would
not have filed the petition was (sic) it not for the passport.

On clarificatory question by the Court she said that her reason in filing the petition is her
realization that there will be a complication upon her retirement. [2] (Words in bracket
added.)
On January 23, 2002, the trial court rendered judgment granting the basic petition,
disposing as follows:
WHEREFORE, premises considered, this petition is hereby approved and is granted by
this Court for being meritorious.

The Municipal Registrar of Bangued, Abra, is hereby directed:

a) To change the name of the petitioner in her record of birth from Roselie Eloisa
Bringas Bolante to Maria Eloisa Bringas Bolante; and,

b) To record this decision in the Civil Registry in accordance with Registry Regulations.

Furnish copy of this Order to the Municipal Civil Registrar of Bangued, Abra for
recording and compliance.

SO ORDERED.[3] (Underscoring added)
In time, the Republic, through the OSG, went to the CA whereat its appellate recourse
was docketed as CA-G.R. CV No. 74398. In the herein assailed Decision of October 21,
2003,[4] the appellate court affirmed in toto that of the trial court.

Hence, the Republic's present petition on the following issues:

I
WHETHER OR NOT RESPONDENT'S SUBSTANTIAL COMPLIANCE WITH SEC. 3,
RULE 103 OF THE RULES OF COURT IS SUFFICIENT TO VEST THE TRIAL COURT
WITH JURISDICTION TO TAKE COGNIZANCE OF THE PETITION A QUO.
II

WHETHER OR NOT RESPONDENT'S BARE TESTIMONY, UNSUPPORTED BY ANY

OTHER EVIDENCE, IS SUFFICIENT TO PROVE THAT THE CHANGE OF HER NAME
IS NOT RESORTED FOR ILLEGAL PURPOSES.
Sections 2 and 3, Rule 103 of the Rules of Court prescribe the procedural and
jurisdictional requirements for a change of name. As we articulated in Republic v. Hon.
Judge of Branch III of the CFI of Cebu,[5] citing pertinent jurisprudence,[6] non-
compliance with these requirements would be fatal to the jurisdiction of the lower court
to hear and determine a petition for change of name. The provisions adverted to are
pertinently quoted hereunder:
SEC. 2. Contents of petition. - A petition for change of name shall be signed and verified
by the person desiring his name changed, or some other person on his behalf, and shall
set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition
is filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

SEC. 3. Order for hearing. - If the petition filed is sufficient in form and substance, the
court, by an order reciting the purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be published before the hearing
at least once a week for three (3) successive weeks in some newspaper of general
circulation published in the province, ... The date set for the hearing shall not be within
thirty (30) days prior to an election nor within four (4) months after the last publication of
the notice. (Underscoring added.)

On the postulate that the initial hearing of a petition for a change of name cannot be set
within four (4) months from the last publication of the notice of such hearing, petitioner
submits at the threshold that the trial court did not acquire jurisdiction over the case for
want or defective publication.

We are not persuaded.

As gleaned from the records, the basic petition for change of name was filed on October
18, 2000 and set for hearing on February 20, 2001 via an Order issued on November
13, 2000. The notice of hearing was published in the November 23, and 30, 2000 and
December 7, 2000 issues of the Norluzonian Courier. Counted from the last day,
December 7, 2000, of publication of the Order, the initial hearing scheduled on February
20, 2001 is indeed within the four-month prohibited period prescribed under Section 3,
Rule 103 of the Rules. The Court, as did the CA, [7] must emphasize, however, that the
trial court, evidently upon realizing the error committed respecting the 4-month
limitation, lost no time in rectifying its mistake by rescheduling, with due notice to all
concerned, the initial hearing for several times, finally settling for September 25, 2001.

It is the Republic's posture that the fact that the hearing took place on September 25,
2001, beyond the four-month prohibited period, did not cure the jurisdictional defect
since notice of the September 25, 2001 setting went unpublished. Pressing on, the
Republic would state - and correctly so - that the in rem nature of a change of name
proceeding necessitates strict compliance with all jurisdictional requirements,
particularly on publication, in order to vest the court with jurisdiction thereover. [8]

The Court, to be sure, is fully aware that the required publication serves as notice to the
whole world that the proceeding in question has for its object to bar indifferently all who
might be minded to make an objection of any and against the right sought to be
established. It is the publication of such notice that brings in the whole world as a party
in the case and vests the court with jurisdiction to hear and decide it. [9]

In the context of Section 3, Rule 103 of the Rules, publication is valid if the following
requisites concur: (1) the petition and the copy of the order indicating the date and place
for the hearing must be published; (2) the publication must be at least once a week for
three successive weeks; and, (3) the publication must be in some newspaper of general
circulation published in the province, as the court shall deem best. Another validating
ingredient relates to the caveat against the petition being heard within 30 days prior to
an election or within four (4) months after the last publication of the notice of the
hearing.

It cannot be over-emphasized that in a petition for change of name, any interested

person may appear at the hearing and oppose the petition. Likewise, the Solicitor
General or his deputy shall appear on behalf of the Government. [10] The government, as
an agency of the people, represents the public and, therefore, the Solicitor General,
who appears on behalf of the government, effectively represents the public. [11] In this
case, the Solicitor General deputized the provincial prosecutor of Abra for the purpose
of appearing in the trial on his behalf. As it were, the provincial prosecutor of Abra was
fully apprised of the new dates of the initial hearing. Accordingly, there was no actual
need for a republication of the initial notice of the hearing.

Not lost on the Court is the fact that during the September 25, 2001 initial hearing
which, to reiterate is already outside the 4-month limitation prescribed by the Rules, the
provincial prosecutor of Abra interposed no objection as to the genuineness,
authenticity, relevancy or sufficiency of the exhibits presented to prove the jurisdictional
requirements exacted by the Rules. In a very real sense, therefore, the petitioner
Republic fully and knowingly acquiesced in the jurisdiction of the trial court. The peculiar
circumstances obtaining in this case and the requirements of fair dealing demand that
we accord validity to the proceedings a quo.
On the issue as to propriety of the desired change of name, we are guided by decisional
law on the matter. As we have held, the State has an interest in the names borne by
individuals for purposes of identification, and that changing one's name is a privilege
and not a right. Accordingly, a person can be authorized to change his name appearing
in either his certificate of birth or civil registry upon showing not only of reasonable
cause, or any compelling reason which may justify such change, but also that he will be
prejudiced by the use of his true and official name. [12] Jurisprudence has recognized
certain justifying grounds to warrant a change of name. Among these are: (a) when the
name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when
the change will avoid confusion; (c) when one has been continuously used and been
known since childhood by a Filipino name, and was unaware of alien parentage; (d)
when the surname causes embarrassment and there is no showing that the desired
change of name was for a fraudulent purpose or that the change of name will prejudice
public interest.[13]

The matter of granting or denying petitions for change of name and the corollary issue
of what is a proper and reasonable cause therefor rests on the sound discretion of the
court. The evidence presented need only be satisfactory to the court; it need not be the
best evidence available.[14] What is involved in special proceedings for change of name
is, to borrow from Republic v. Court of Appeals, [15] "not a mere matter of allowance or
disallowance of the petition, but a judicious evaluation of the sufficiency and propriety of
the justifications advanced in support thereof, mindful of the consequent results in the
event of its grant and with the sole prerogative for making such determination being
lodged in the courts."

With the view we take of the case, respondent's submission for a change of name is
with proper and reasonable reason. As it were, she has, since she started schooling,
used the given name and has been known as Maria Eloisa, albeit the name Roselie
Eloisa is written on her birth record. Her scholastic records, as well as records in
government offices, including that of her driver's license, professional license as a
certified public accountant issued by the Professional Regulation Commission, and the
"Quick Count" document of the COMELEC, all attest to her having used practically all
her life the name Maria Eloisa Bringas Bolante.

The imperatives of avoiding confusion dictate that the instant petition is granted. But
beyond practicalities, simple justice dictates that every person shall be allowed to avail
himself of any opportunity to improve his social standing, provided he does so without
causing prejudice or injury to the interests of the State or of other people. [16]

The OSG's argument that respondent's bare testimony is insufficient to show that the
requested name is not sought for any illegal purpose and/or in avoidance of any
entanglement with the law deserves scant consideration. Surely, the issuance of a
police and NBI clearance or like certification, while perhaps apropos, cannot, as the
OSG suggests, be a convincing norm of one's good moral character or compelling
evidence to prove that the change of name is not sought for any evil motive or
fraudulent intent. Respondent's open court testimony, given under pain of perjury and
for which she was cross-examined, that she had not been accused of any crime under
her registered name or under her present name (name that she is using) had convinced
the trial court of the bona fides of her request for change of name. As the CA correctly
ratiocinated:
In the case at bar, petitioner [now respondent] seeks to change her registered name in
order to avoid confusion having used a different name all her life. This is a valid ground
under the afore-mentioned enumeration not to mention that the instant remedy presents
the less cumbersome and most convenient way to set her records straight.

Anent the contention of oppositor-appellant that petitioner failed to prove that the
petition is not resorted to for an illegal purpose due to her inability to present NBI as well
as police clearance to the effect that she has no derogatory records, due perusal of the
requirements of Rule 103 reveals that it does not so provide such a quantum of proof to
establish the fact that a petitioner has no derogatory records. This purpose, we think, is
served upon the declaration and affirmation of the petitioner in open court that the
petition is not to further fraud but for a legitimate purpose, coupled by the absence of
any oppositor to the petition. There is yet no jurisprudence requiring a petitioner in a
petition for a change of name to present NBI and police clearances to prove that the
said petition is not resorted to for purpose of fraud. Until such time, we see no urgency
to impose the requirements espoused by oppositor-appellant. (Word in bracket added).
At bottom, petitioner Republic has not demonstrated that the allowance of the basic
petition is whimsical or based on a consideration other than to avoid confusion. The trial
court appears to have exercised its discretion judiciously when it granted the petition.
Like the CA, the Court loathes to disturb the action thus taken.

WHEREFORE, the petition is DENIED and the assailed Decision of the Court of

Appeals dated October 21, 2003 is AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Puno, (Chairperson), Sandoval-Gutierrez, Corona, and Azcuna, JJ., concur.

[ G.R. No. 142924, December 05, 2001 ]

TEODORO B. VESAGAS, AND WILFRED D. ASIS, PETITIONERS, VS. THE
HONORABLE COURT OF APPEALS AND DELFINO RANIEL AND HELENDA
RANIEL, RESPONDENTS.

DECISION

PUNO, J.:

Before us is the instant Petition for Review on Certiorari assailing the Decision, dated
July 30, 1999, of the Court of Appeals in CA-G.R. SP No. 51189, as well as its
Resolution, dated March 16, 2000, which denied petitioners' Motion for Reconsideration.

The respondent spouses Delfino and Helenda Raniel are members in good standing of
the Luz Village Tennis Club, Inc. (club). They alleged that petitioner Teodoro B.
Vesagas, who claims to be the club's duly elected president, in conspiracy with
petitioner Wilfred D. Asis, who, in turn, claims to be its duly elected vice-president and
legal counsel, summarily stripped them of their lawful membership, without due process
of law. Thereafter, respondent spouses filed a Complaint with the Securities and
Exchange Commission (SEC) on March 26, 1997 against the petitioners. It was
docketed as SEC Case No. 03-97-5598. [1] In this case, respondents asked the
Commission to declare as illegal their expulsion from the club as it was allegedly done
in utter disregard of the provisions of its by-laws as well as the requirements of due
process. They likewise sought the annulment of the amendments to the by-laws made
on December 8, 1996, changing the annual meeting of the club from the last Sunday of
January to November and increasing the number of trustees from nine to fifteen. Finally,
they prayed for the issuance of a Temporary Restraining Order and Writ of Preliminary
Injunction. The application for TRO was denied by SEC Hearing Officer Soller in an
Order dated April 29, 1997.

Before the hearing officer could start proceeding with the case, however, petitioners
filed a motion to dismiss on the ground that the SEC lacks jurisdiction over the subject
matter of the case. The motion was denied on August 5, 1997. Their subsequent move
to have the ruling reconsidered was likewise denied. Unperturbed, they filed a petition
for certiorari with the SEC En Banc seeking a review of the hearing officer's orders. The
petition was again denied for lack of merit, and so was the motion for its reconsideration
in separate orders, dated July 14, 1998 and November 17, 1998, respectively.
Dissatisfied with the verdict, petitioners promptly sought relief with the Court of Appeals
contesting the ruling of the Commission en banc. The appellate court, however,
dismissed the petition for lack of merit in a Decision promulgated on July 30, 1999.
Then, in a resolution rendered on March 16, 2000, it similarly denied their motion for
reconsideration.

Hence, the present course of action where the petitioners raise the following grounds:
"C.1. The respondent Court of Appeals committed a reversible error when it determined
that the SEC has jurisdiction in 03-97-5598."[2]

"C.2. The respondent Court of Appeals committed a reversible error when it merely
upheld the theoretical power of the SEC Hearing Officer to issue a subpoena and to cite
a person in contempt (actually a non-issue of the petition) while it shunted away the
issue of whether that hearing officer may hold a person in contempt for not obeying a
subpoena where his residence is beyond fifty (50) kilometers from the place of hearing
and no transportation expense was tendered to him." [3]
In support of their first assignment of error, petitioners contend that since its inception in
the 1970's, the club in practice has not been a corporation. They add that it was only the
respondent spouses, motivated by their own personal agenda to make money from the
club, who surreptitiously caused its registration with the SEC. They then assert that, at
any rate, the club has already ceased to be a corporate body. Therefore, no intra-
corporate relations can arise as between the respondent spouses and the club or any of
its members. Stretching their argument further, petitioners insist that since the club, by
their reckoning is not a corporation, the SEC does not have the power or authority to
inquire into the validity of the expulsion of the respondent spouses. Consequently, it is
not the correct forum to review the challenged act. In conclusion, petitioners put
respondent spouses to task for their failure to implead the club as a necessary or
indispensable party to the case.

These arguments cannot pass judicial muster.

Petitioners' attempt to impress upon this court that the club has never been a
corporation is devoid of merit. It must fail in the face of the Commission's explicit finding
that the club was duly registered and a certificate of incorporation was issued in its
favor, thus:
"We agree with the hearing officer that the grounds raised by petitioner in their motion to
dismiss are factual issues, the veracity of which can only be ascertained in a full blown
hearing. Records show that the association is duly registered with the association
and a certificate of incorporation was issued. Clearly, the Commission has
jurisdiction over the said association. As to petitioner's allegation that the registration
of the club was done without the knowledge of the members, this is a circumstance
which was not duly proven by the petitioner (sic) in his (sic) motion to dismiss."[4]
It ought to be remembered that the question of whether the club was indeed registered
and issued a certification or not is one which necessitates a factual inquiry. On this
score, the finding of the Commission, as the administrative agency tasked with among
others the function of registering and administering corporations, is given great weight
and accorded high respect. We therefore have no reason to disturb this factual finding
relating to the club's registration and incorporation.

Moreover, by their own admission contained in the various pleadings which they have
filed in the different stages of this case, petitioners themselves have considered the club
as a corporation. This admission, under the rules of evidence, binds them and may be
taken or used against them.[5] Since the admission was made in the course of the
proceedings in the same case, it does not require proof, and actually may be
contradicted only by showing that it was made through palpable mistake or that no such
admission was made.[6] Noteworthy is the "Minute of the First Board Meeting" [7] held on
January 5, 1997, which contained the following pertinent portions:
"11. Unanimously approved by the Board a Resolution to Dissolve the corporate
structure of LVTC which is filed with the SEC. Such resolution will be formulated by
Atty. Fred Asis to be ready on or before the third week of January 1997. Meanwhile, the
operational structure of the LVTC will henceforth be reverted to its former status as an
ordinary club/Association."[8]
Similarly, petitioners' Motion to Dismiss[9] alleged:
"1. This Commission has no jurisdiction over the Luz Village Tennis Club not only
because it was not impleaded but because since 5 January 1997, it had already rid
itself, as it had to in order to maintain respect and decency among its members,
of the unfortunate experience of being a corporate body. Thus at the time of the
filing of the complaint, the club had already dissolved its corporate existence and
has functioned as a mere association of respectable and respecting individual members
who have associated themselves since the 1970's x x x" [10]
The necessary implication of all these is that petitioners recognized and acknowledged
the corporate personality of the club. Otherwise, there is no cogency in spearheading
the move for its dissolution. Petitioners were therefore well aware of the incorporation of
the club and even agreed to get elected and serve as its responsible officers before
they reconsidered dissolving its corporate form.

This brings us to petitioners' next point. They claim in gratia argumenti that while the
club may have been considered a corporation during a brief spell, still, at the time of the
institution of this case with the SEC, the club was already dissolved by virtue of a Board
resolution.

Again, the argument will not carry the day for the petitioner. The Corporation Code
establishes the procedure and other formal requirements a corporation needs to follow
in case it elects to dissolve and terminate its structure voluntarily and where no rights of
creditors may possibly be prejudiced, thus:
"Sec. 118. Voluntary dissolution where no creditors are affected. - If dissolution of a
corporation does not prejudice the rights of any creditor having a claim against it, the
dissolution may be effected by majority vote of the board of directors or trustees and by
a resolution duly adopted by the affirmative vote of the stockholders owning at least
two-thirds (2/3) of the outstanding capital stock or at least two-thirds (2/3) of the
members at a meeting to be held upon call of the directors or trustees after publication
of the notice of time, place and object of the meeting for three (3) consecutive weeks in
a newspaper published in the place where the principal office of said corporation is
located; and if no newspaper is published in such place, then in a newspaper of general
circulation in the Philippines, after sending such notice to each stockholder or member
either by registered mail or by personal delivery at least 30 days prior to said meeting. A
copy of the resolution authorizing the dissolution shall be certified by a majority of the
board of directors or trustees and countersigned by the secretary of the corporation.
The Securities and Exchange Commission shall thereupon issue the certificate of
dissolution."[11]
We note that to substantiate their claim of dissolution, petitioners submitted only two
relevant documents: the Minutes of the First Board Meeting held on January 5, 1997,
and the board resolution issued on April 14, 1997 which declared "to continue to
consider the club as a non-registered or a non-corporate entity and just a social
association of respectable and respecting individual members who have associated
themselves, since the 1970's, for the purpose of playing the sports of tennis x x
x."[12] Obviously, these two documents will not suffice. The requirements mandated by
the Corporation Code should have been strictly complied with by the members of the
club. The records reveal that no proof was offered by the petitioners with regard to the
notice and publication requirements. Similarly wanting is the proof of the board
members' certification. Lastly, and most important of all, the SEC Order of Dissolution
was never submitted as evidence.
We now resolve whether the dispute between the respondents and petitioners is a
corporate matter within the exclusive competence of the SEC to decide. In order that
the commission can take cognizance of a case, the controversy must pertain to any of
the following relationships: a) between the corporation, partnership or association and
the public; b) between the corporation, partnership or association and its stockholders,
partners, members, or officers; c) between the corporation, partnership, or association
and the state as far as its franchise, permit or license to operate is concerned; and d)
among the stockholders, partners or associates themselves. [13] The fact that the parties
involved in the controversy are all stockholders or that the parties involved are the
stockholders and the corporation, does not necessarily place the dispute within the loop
of jurisdiction of the SEC.[14] Jurisdiction should be determined by considering not only
the status or relationship of the parties but also the nature of the question that is the
subject of their controversy.[15]

We rule that the present dispute is intra-corporate in character. In the first place, the
parties here involved are officers and members of the club. Respondents claim to be
members of good standing of the club until they were purportedly stripped of their
membership in illegal fashion. Petitioners, on the other hand, are its President and Vice-
President, respectively. More significantly, the present conflict relates to, and in fact
arose from, this relation between the parties. The subject of the complaint, namely, the
legality of the expulsion from membership of the respondents and the validity of the
amendments in the club's by-laws are, furthermore, within the Commission's jurisdiction.

Well to underscore is the date when the original complaint was filed at the SEC, which
was March 26, 1997. On that date, the SEC still exercised quasi-judicial functions over
this type of suits. It is axiomatic that jurisdiction is conferred by the Constitution and by
the laws in force at the time of the commencement of the action. [16] In particular, the
Commission was thereupon empowered, under Sec. 5 of P.D. 902-A, to hear and
decide cases involving intra-corporate disputes, thus:
"SEC. 5. In addition to the regulatory and adjudicative functions of the Securities and
Exchange Commission over corporations, partnerships and other forms of association
registered with it as expressly granted under existing laws and decrees, it shall have
original and exclusive jurisdiction to hear and decide cases involving:

xxx

b) Controversies arising out of intra-corporate or partnership relations, between

and among stockholders, members or associates; between any or all of them and the
corporation, partnership or association of which they are the stockholders, members or
associates, respectively; and between such corporation, partnership or association and
the state insofar as it concerns their individual franchise or right to exist as such entity;

x x x."[17]
The enactment of R.A. 8799, otherwise known as the Securities Regulation Code,
however, transferred the jurisdiction to resolve intra-corporate controversies to courts of
general jurisdiction or the appropriate Regional Trial Courts, thus:
"5.2. The Commission's jurisdiction over all cases enumerated under Section 5 of
Presidential Decree No. 902-A is hereby transferred to the Courts of general
jurisdiction or the appropriate Regional Trial Court: Provided, that the Supreme
Court in the exercise of its authority may designate the Regional trial Court branches
that shall exercise jurisdiction over these cases. The Commission shall retain
jurisdiction over pending cases involving intra-corporate disputes submitted for final
resolution which should be resolved within one (1) year from the enactment of this
Code. The Commission shall retain jurisdiction over pending suspension of
payments/rehabilitation cases filed as of 30 June 2000 until finally disposed." [18]
On August 22, 2000, we issued a resolution, in A.M. No. 00-8-10-SC, wherein we
"DIRECT(ed) the Court Administrator and the Securities and Exchange Commission to
cause the actual transfer of the records of such cases and all other SEC cases affected
by R.A. No. 8799 to the appropriate Regional Trial Courts x x x." [19] We also issued
another resolution designating certain branches of the Regional Trial Court to try and
decide cases formerly cognizable by the SEC.[20] Consequently, the case at bar should
now be referred to the appropriate Regional Trial Court.

Before we finally write finis to the instant petition, however, we will dispose of the two
other issues raised by the petitioners.

First is the alleged failure of the respondents to implead the club as a necessary or
indispensable party. Petitioners contend that the original complaint should be dismissed
for not including the club as one of the respondents therein. Dismissal is not the remedy
for non-joinder of parties. Under the Rules, the remedy is to implead the non-party,
claimed to be necessary or indispensable, in the action, thus:
"SEC. 11. Misjoinder and non-joinder of parties. - Neither misjoinder nor non-joinder of
parties is a ground for dismissal of an action. Parties may be dropped or added by order
of the court on motion of any party or on its own initiative at any stage of the action and
on such terms as are just. Any claim against a misjoined party may be severed and
proceeded with separately."[21]
The other issue is with regard to the alleged oppressive subpoenas and orders issued
by Hearing Officer Soller, purportedly without or in excess of authority. In light of PD
902-A's repeal, the need to rule on the question of the extent of the contempt powers of
an SEC hearing officer relative to his authority to issue subpoenas and orders to parties
involved in intra-corporate cases, or potential witnesses therein has been rendered
academic. The enactment of RA 8799 mooted this issue as SEC hearing officers, now
bereft of any power to resolve disputes, are likewise stripped of their power to issue
subpoenas and contempt orders incidental to the exercise of their quasi-judicial powers.

At any rate, it taxes our credulity why the petitioners insist in raising this issue in the
case at bar. The so-called oppressive subpoenas and orders were not directed to them.
They were issued to the club's secretary, Purita Escobar, directing her to appear before
the Commission and bring certain documents of the club, that were supposedly under
her possession or control. It is obvious that the petitioners are not the proper parties to
assail the oppressiveness of the subpoenas or the orders, and impugn their validity.
Elementary is the principle that only those who expect to be adversely affected by an
order can complain against it. It is their addressee, Purita Escobar, who can assail their
alleged oppressiveness. Petitioners' protestation has therefore no legal leg to stand on.

IN VIEW WHEREOF, finding no cogent reason to disturb the assailed Decision, the
petition is DENIED. In conformity with R.A. 8799, SEC Case No. 03-97-5598, entitled
"Delfino Raniel and Helenda Raniel v. Teodoro B. Vesagas and Wilfred D. Asis" is
referred to the Regional Trial Court of the Ninth Judicial Region, Branch 33 [22] located in
Agusan del Norte (Butuan City), one of the designated special commercial courts
pursuant to A.M. No. 00-11-03-SC.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

[ G.R. No. 200344, August 28, 2019 ]

GLENN M. MILLER, SUBSTITUTED BY HIS SURVIVING LEGAL HEIRS, NAMELY:
[1] EVELYN L. MILLER; [2] JENNIFER ANN L. MILLER; [3] LESLIE ANN L. MILLER;
[4] RACHEL ANN L. MILLER; AND [5] VALERIE ANN L. MILLER, PETITIONERS,
VS. JOAN MILLER Y ESPENIDA A.K.A. JOHNLYN MILLER Y ESPENIDA AND THE
LOCAL CIVIL REGISTRAR OF GUBAT, SORSOGON,RESPONDENTS.

DECISION

LEONEN, J.:

The legitimacy and filiation of children cannot be collaterally attacked in a petition for
correction of entries in the certificate of live birth.

This Court resolves a Petition for Review on Certiorari [1] assailing the Decision[2] and
Resolution[3] of the Court of Appeals, which affirmed the Regional Trial Court
Judgment[4] denying the Petition for Correction of Entries in the Certificate of Live Birth
of Joan Miller y Espenida.

John Miller (John) and Beatriz Marcaida were legally married. They bore four (4)
children, namely: (1) Glenn M. Miller (Glenn); (2) Charles Miller; (3) Betty Miller (Betty);
and (4) and John Miller, Jr.[5]

After John's death, Joan Miller (Joan), through her mother Lennie Espenida (Lennie),
filed before the Regional Trial Court a Petition for Partition and Accounting of John's
estate with a prayer for preliminary attachment, receivership, support, and damages.
Alleging that she is John's illegitimate child with Lennie, Joan presented her Certificate
of Live Birth which showed John to be her registered father. [6]
Glenn filed a separate Petition praying that Joan's Certificate of Live Birth be canceled.
With it, he also prayed that the Local Civil Registrar of Gubat, Sorsogon be directed to
replace Joan's surname, Miller, with Espenida, and that Joan use Espenida instead of
Miller in all official documents.

Glenn claimed that John did not acknowledge Joan as a natural child, [7] pointing out that
John's signature was not in her birth certificate. It was also not shown that John knew
and consented that his name would be indicated in the certificate. [8]

Joan countered that from 1978 until John's death in 1990, her mother Lennie and John
had an amorous relationship,[9] out of which she was born on June 25, 1982. While she
admitted that John did not sign her birth certificate, [10] he "openly and continuously
recognized [her] as [his] child during his lifetime." [11] She narrated that she grew up in his
ranch and went to John Miller Primary School with John financing her studies. John also
mentioned her name in his July 5, 1984 letter to Lennie. Moreover, in his holographic
will, he gave Joan a 1/8 share of his estate. Further, in a February 14, 1987 document,
he assigned Betty to act as Joan's guardian and her inheritance's administrator until she
attains the age of majority. Also, by his bidding, Betty obtained an educational plan for
her.[12]

Joan further claimed that Glenn knew that John recognized her as his child. She alleged
that his Petition was merely filed to harass her because she filed the partition case. She
prayed for the award of moral and exemplary damages and litigation expenses as
counterclaim.[13]

Glenn, however, countered that the authenticity of the July 5, 1984 and February 14,
1987 documents and the July 1985 holographic will was not proven. Since Joan failed
to prove that John wrote and signed these documents, Glenn claimed that they failed to
establish Joan's filiation.[14]

Trial then ensued.

Before the trial court, Glenn presented Apulio Ferreras [15] who brought Joan's birth
record. It was revealed that Joan had two (2) existing birth certificates. The first, dated
June 30, 1982 and registered as Local Civil Registrar No. 760, [16] indicated Johnlyn
Espenida Miller as the child and John Manares Miller as the father. [17] The second,
dated July 20, 1982 and registered as Local Civil Registrar No. 825, [18] pertained to Joan
Espenida Miller as the child and John (Manyares) Miller as the father. [19] Neither
certificate bore a name or signature on the space provided for the parent's Affidavit of
Acknowledgment. Further, the July 20, 1982 birth certificate was the document
submitted to the then National Census and Statistics Office. [20]

Glenn testified that after his father's death, he discovered that Joan was staying in their
ranch. He later found out the existence of her two (2) birth certificates, none of which
bore his father's signature acknowledging Joan as his child. Hence, he wanted Joan to
stop using the surname Miller.[21]
Joan and her mother Lennie testified for the defense. They claimed that Joan was
Lennie's child with John, and was registered first as Johnlyn Miller on June 30, 1982. At
John's instance, she was registered again as Joan Miller on July 20, 1982. They alleged
that, despite John's failure to acknowledge Joan in the birth certificate, their evidence-
the letters, the holographic will, and the document assigning Betty as Joan's guardian-
preponderantly prove that he acknowledged Joan as his illegitimate child. [22]

On November 26, 2004, the Regional Trial Court issued a Judgment [23] in favor of Joan.
It held that the "due recognition of an illegitimate child in a record of birth, a will, a
statement before a court of record, or in any authentic writing is, in itself, a
consummated act of acknowledgment of the child, and no further action is required[.]"[24]

The trial court treated John's order to Betty to secure a scholarship for Joan and the
corresponding College Assurance Plan, based on the Certificate of Nomination and the
scholarship funding agreement, as proof that he voluntarily acknowledged Joan as his
child. Moreover, Glenn failed to show that John did not personally write the letters or
that his signatures were forged.[25] The dispositive portion of the Judgment read:
WHEREFORE, judgment is hereby rendered m favor of the respondents and against
the petitioner by:

(a) Ordering the dismissal of the instant petition;

(b) Ordering respondent, Joan E. Miller to continue using the surname Miller;

(c) Ordering the respondent Local Civil Registrar of Gubat, Sorsogon to maintain the
status quo and never to amend nor change the certificate of live birth of Joan Miller y
Espenida;

(d) Likewise, ordering the dismissal of the respondents' counterclaim;

(e) Ordering the petitioner to pay the costs of the proceedings.

SO ORDERED.[26] (Emphasis in the original)

Glenn appealed the case before the Court of Appeals. [28]

On June 30, 2011, the Court of Appeals promulgated a Decision, [29] denying Glenn's
appeal.[30] Applying Article 173 in relation to Article 172 of the Family Code, it found that
John's holographic will, where he gave Joan 1/8 of his estate, sufficiently established his
paternity.[31] Citing Gono-Javier v. Court of Appeals,[32] the Court of Appeals added that
"judicial imprimatur on the holographic will is no longer required before the paternal
filiation based thereon may be established." [33] It held that it is sufficient that the child is
recognized in the will. The law instantly recognizes the father's recognition of his child
the moment he executed his will.[34]

The Court of Appeals also held that Joan need not prove that the documents she
presented were authentic. It found that Glenn had the burden of proving his allegations,
which he failed to discharge.[35]

Glenn moved for reconsideration,[36] but the Court of Appeals denied his Motion in its
February 3, 2012 Resolution.[37]

On March 26, 2012, Evelyn L. Miller, Jennifer Ann L. Miller, Leslie Ann L. Miller, Rachel
Ann L. Miller, and Valerie Ann L. Miller, who substituted Glenn as his surviving legal
heirs, filed before this Court a Petition for Review on Certiorari [38] against Joan and the
Local Civil Registrar of Gubat, Sorsogon. They prayed for the reversal of the Court of
Appeals Decision and Resolution.[39] Joan filed her Comment[40] on May 27, 2013, while
petitioners filed their Reply[41] on December 19, 2013.

On June 2, 2014, this Court issued a Resolution, [42] giving due course to the Petition and
requiring the parties to submit their respective memoranda. Petitioners filed their
Memorandum[43] on August 29, 2014, while private respondent filed her
Memorandum[44] on September 15, 2014.

Petitioners argue that since private respondent was born on June 25, 1982, the
applicable provision is Article 368 of the Civil Code, which states that illegitimate
children shall bear their mother's surname. Thus, private respondent should use her
mother's surname in her birth certificate.[45]

Petitioners submit that Article 176 of the Family Code cannot be applied retroactively,
as it will prejudice and dilute the hereditary rights of John's compulsory heirs. Allowing
private respondent to use the surname Miller could translate to an unintentional
recognition of private respondent's illegitimate filiation, which could give her
successional rights over John's estate.[46]

Assuming that the Family Code governs, petitioners aver that private respondent still
cannot use the surname Miller because the will that John allegedly wrote did not pass
the private handwritten instrument test under Dela Cruz v. Gracia.[47] Moreover, they
contend that Article 176's last sentence, which provides that "the father has the right to
institute an action before the regular courts to prove non-filiation during his
lifetime[,]"[48] is a conditio sine qua non. This means that the "illegitimate child's right to
use the father's surname must co-exist with the father's right to refute illegitimate
filiation."[49] Hence, John's death on May 14, 1990, according to petitioners, extinguished
private respondent's right to use his surname. [50]

Petitioners also point out that Lennie, private respondent's mother, was convicted of the
crime of falsification of public document when she falsified one (1) of Joan's birth
certificates. Although the falsified certificate was undetermined, they argue that the
others may as well have been falsified. Being products of falsification, they cannot be
used as official documents.[51] Allowing private respondent to use the surname Miller in
any of her birth certificates "will certainly undermine the integrity, reliability[,] and
authenticity of a birth certificate."[52]
Petitioners assert that the putative father's acknowledgment of the child must precede
the child's use of the father's surname, not the other way around. Further, they argue
that if Lennie insists on the filiation of private respondent, then she should have resorted
to DNA evidence.[53]

Petitioners adopted their Memorandum as a formal administrative complaint against

Regional Trial Court Judge Jacinta B. Tambago. They allege that she did not inhibit
from their case despite his brother-in-law, Atty. Osias S. Tambago, acting as private
respondent's counsel.[54]

On the other hand, private respondent maintains that she was able to sufficiently
establish her illegitimate filiation. She contends that since John recognized her as his
daughter through his holographic will, his letters to Lennie, and his designation of Betty
as her trustee, she can use his surname.[55]

In addition, private respondent argues that Republic Act No. 9255, or the Act Allowing
Illegitimate Children to Use the Surname of Their Father, can be applied to her case
because the law provides that "the rules shall apply to all illegitimate children born
before or after [its] effectivity[.]" [56]

Private respondent likewise avers that petitioners failed to substantiate their allegations
that her documentary evidence were forged. [57]

The sole issue for this Court's resolution is whether or not the Court of Appeals erred in
affirming the Regional Trial Court Judgment allowing private respondent Joan Miller y
Espenida to continue using the surname Miller.

This Court stresses that Glenn's initiatory pleading before the Regional Trial Court of
Masbate City is a Petition for Correction of Entries in the Certificate of Live Birth of Joan
Miller y Espenida.[58] This type of petition is governed by Rule 108 of the Rules of Court:
RULE 108
Cancellation or Correction of Entries in the Civil Registry

SECTION 1. Who may file petition. - Any person interested in any act, event, order or
decree concerning the civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or correction of any entry relating
thereto, with the Court of First Instance of the province where the corresponding civil
registry is located.
SECTION 2. Entries subject to cancellation or correction. - Upon good and valid
grounds, the following entries in the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of
marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations;
(h) adoptions; (i) acknowledgments of natural children; G) naturalization; (k) election,
loss or recovery of citizenship; (1) civil interdiction; (m) judicial determination of filiation;
(n) voluntary emancipation of a minor; and (o) changes of name.
SECTION 3. Parties. - When cancellation or correction of an entry in the civil register is
sought, the civil registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.

SECTION 4. Notice and publication. - Upon the filing of the petition, the court shall, by
an order, fix the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The court shall also
cause the order to be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.

SECTION 5. Opposition. - The civil registrar and any person having or claiming any
interest under the entry whose cancellation or correction is sought may, within fifteen
(15) days from notice of the petition, or from the last date of publication of such notice,
file his opposition thereto.

SECTION 6. Expediting proceedings. - The court in which the proceeding is brought

may make orders expediting the proceedings, and may also grant preliminary injunction
for the preservation of the rights of the parties pending such proceedings.

SECTION 7. Order. - After hearing, the court may either dismiss the petition or issue an
order granting the cancellation or correction prayed for. In either case, a certified copy
of the judgment shall be served upon the civil registrar concerned who shall annotate
the same in his record.
In In re: Barretto v. The Local Registrar of Manila,[59] this Court explained that:
. . . the summary procedure for correction of entries in the civil registry under article 412
of the Civil Code and Rule 108 of the Rules of Court is confined to "innocuous or clerical
errors, such as misspellings and the like, errors that are visible to the eyes or obvious to
the understanding" or corrections that are not controversial and are supported by
indubitable evidence.[60]
Here, petitioners sought the correction of private respondent's surname in her birth
certificate registered as Local Civil Registrar No. 825. They want her to use her mother's
surname, Espenida, instead of Miller, claiming that she was not an acknowledged
illegitimate child of John.

What petitioners seek is not a mere clerical change. It is not a simple matter of
correcting a single letter in private respondent's surname due to a misspelling. Rather,
private respondent's filiation will be gravely affected, as changing her surname from
Miller to Espenida will also change her status. This will affect not only her identity, but
her successional rights as well. Certainly, this change is substantial.

In Braza v. The City Civil Registrar of Himamaylan City, Negros Occidental,[61] this Court
emphasized that "legitimacy and filiation can be questioned only in a direct action
seasonably filed by the proper party, and not through collateral attack[.]" [62] Moreover,
impugning the legitimacy of a child is governed by Article 171 of the Family Code, not
Rule 108 of the Rules of Court.[63]
WHEREFORE, the Petition for Review on Certiorari is PARTIALLY GRANTED. The
Court of Appeals' June 30, 2011 Decision and February 3, 2012 Resolution in CA-G.R.
CV No. 84826 are AFFIRMED insofar as they affirm the November 26, 2004 Judgment
of the Regional Trial Court of Masbate City, Branch 48 in Spec. Proc. No. 4703, which
dismissed the Petition for Correction of Entries in the Certificate of Live Birth of Joan
Miller y Espenida.

However, the declarations of the Court of Appeals and the Regional Trial Court as to the
legitimacy and filiation of private respondent Joan Miller y Espenida
are NULLIFIED and SET ASIDE. The Regional Trial Court's other pronouncements in
its November 26, 2004 Judgment are also NULLIFIED and SET ASIDE.

This Decision is WITHOUT PREJUDICE to the refiling of the appropriate action before
the proper court.

Finally, this Court resolves to treat the Memorandum of petitioners Evelyn L. Miller,
Jennifer Ann L. Miller, Leslie Ann L. Miller, Rachel Ann L. Miller, and Valerie Ann L.
Miller, who substituted Glenn M. Miller as his surviving legal heirs, as a formal
administrative complaint against Judge Jacinta B. Tambago of Branch 48, Regional
Trial Court, Masbate City. The administrative complaint is referred to the Office of the
Court Administrator for proper investigation, report, and recommendation.

SO ORDERED.

Peralta, (Chairperson), A. Reyes, Jr., and Inting, JJ., concur.

Hernando, J., on wellness leave.

[ G.R. NO. 123450, August 31, 2005 ]

GERARDO B. CONCEPCION, PETITIONER, VS. COURT OF APPEALS AND MA.
THERESA ALMONTE, 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. Theresa's
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. Theresa's relationship turned out to be short-lived, however. On

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

Ma. Theresa did not deny marrying Mario when she was twenty years old. She,
however, averred that the marriage was a sham and that she never lived with Mario at
all.[8]

The trial court ruled that Ma. Theresa's 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 Gerardo's surname should be
changed from Concepcion to Almonte, her maiden name, following the rule that an
illegitimate child shall use the mother's surname.

Gerardo opposed the motion. He insisted on his visitation rights and the retention of
"Concepcion" as Jose Gerardo's surname.

Applying the "best interest of the child" principle, the trial court denied Ma. Theresa's
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 respondent's Motion for Reconsideration has to be, as it is hereby
DENIED.[12]
Ma. Theresa elevated the case to the Court of Appeals, assigning as error the ruling of
the trial court granting visitation rights to Gerardo. She likewise opposed the continued
use of Gerardo's surname (Concepcion) despite the fact that Jose Gerardo had already
been declared illegitimate and should therefore use her surname (Almonte). The
appellate court denied the petition and affirmed in toto the decision of the trial court.[13]

On the issue raised by Ma. Theresa that there was nothing in the law that granted a
putative father visitation rights over his illegitimate child, the appellate court affirmed the
"best interest of the child" policy invoked by the court a quo. It ruled that "[a]t bottom, it
(was) the child's welfare and not the convenience of the parents which (was) the
primary consideration in granting visitation rights a few hours once a week." [14]

The appellate court likewise held that an illegitimate child cannot use the mother's
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 Gerardo's 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 movant's 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 one's legitimacy or illegitimacy cannot ever
be compromised. Not even the birth certificate of the minor can change his status for
the information contained therein are merely supplied by the mother and/or the
supposed father. It should be what the law says and not what a parent says it is.
[17]
 (Emphasis supplied)

Shocked and stunned, Gerardo moved for a reconsideration of the above decision but
the same was denied.[18] Hence, this appeal.

The status and filiation of a child cannot be compromised. [19] Article 164 of the Family
Code is clear. A child who is conceived or born during the marriage of his parents is
legitimate.[20]

As a guaranty in favor of the child[21] and to protect his status of legitimacy, Article 167 of
the Family Code provides:

Article 167. The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an adulteress.

The law requires that every reasonable presumption be made in favor of legitimacy.
[22]
 We explained the rationale of this rule in the recent case of Cabatania v. Court of
Appeals[23]:
The presumption of legitimacy does not only flow out of a declaration in the statute but
is based on the broad principles of natural justice and the supposed virtue of the
mother. It is grounded on the policy to protect the innocent offspring from the odium of
illegitimacy.
Gerardo invokes Article 166 (1)(b)[24] of the Family Code. He cannot. He has no standing
in law to dispute the status of Jose Gerardo. Only Ma. Theresa's husband Mario or, in a
proper case,[25] his heirs, who can contest the legitimacy of the child Jose Gerardo born
to his wife.[26] Impugning the legitimacy of a child is a strictly personal right of the
husband or, in exceptional cases, his heirs.[27] Since the marriage of Gerardo and Ma.
Theresa was void from the very beginning, he never became her husband and thus
never acquired any right to impugn the legitimacy of her child.

The presumption of legitimacy proceeds from the sexual union in marriage, particularly

during the period of conception.[28] To overthrow this presumption on the basis of Article
166 (1)(b) of the Family Code, it must be shown beyond reasonable doubt that there
was no access that could have enabled the husband to father the child. [29] Sexual
intercourse is to be presumed where personal access is not disproved, unless such
presumption is rebutted by evidence to the contrary. [30]

The presumption is quasi-conclusive and may be refuted only by the evidence of

physical impossibility of coitus between husband and wife within the first 120 days of the
300 days which immediately preceded the birth of the child. [31]

To rebut the presumption, the separation between the spouses must be such as to
make marital intimacy impossible.[32] This may take place, for instance, when they reside
in different countries or provinces and they were never together during the period of
conception.[33] Or, the husband was in prison during the period of conception, unless it
appears that sexual union took place through the violation of prison regulations. [34]

Here, during the period that Gerardo and Ma. Theresa were living together in Fairview,
Quezon City, Mario was living in Loyola Heights which is also in Quezon City. Fairview
and Loyola Heights are only a scant four kilometers apart.

Not only did both Ma. Theresa and Mario reside in the same city but also that no
evidence at all was presented to disprove personal access between them. Considering
these circumstances, the separation between Ma. Theresa and her lawful husband,
Mario, was certainly not such as to make it physically impossible for them to engage in
the marital act.

Sexual union between spouses is assumed. Evidence sufficient to defeat the

assumption should be presented by him who asserts the contrary. There is no such
evidence here. Thus, the presumption of legitimacy in favor of Jose Gerardo, as the
issue of the marriage between Ma. Theresa and Mario, stands.

Gerardo relies on Ma. Theresa's statement in her answer [35] to the petition for annulment
of marriage[36] that she never lived with Mario. He claims this was an admission that
there was never any sexual relation between her and Mario, an admission that was
binding on her.

Gerardo's argument is without merit.

First, the import of Ma. Theresa's 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 Gerardo's 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. Theresa's 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 Gerardo's 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]

Gerardo's 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 Gerardo's birth certificate is misplaced. It has no

evidentiary value in this case because it was not offered in evidence before the trial
court. The rule is that the court shall not consider any evidence which has not been
formally offered.[42]

Moreover, the law itself establishes the status of a child from the moment of his birth.
[43]
 Although a record of birth or birth certificate may be used as primary evidence of the
filiation of a child,[44] as the status of a child is determined by the law itself, proof of
filiation is necessary only when the legitimacy of the child is being questioned, or when
the status of a child born after 300 days following the termination of marriage is sought
to be established.[45]

Here, the status of Jose Gerardo as a legitimate child was not under attack as it could
not be contested collaterally and, even then, only by the husband or, in extraordinary
cases, his heirs. Hence, the presentation of proof of legitimacy in this case was
improper and uncalled for.

In addition, a record of birth is merely prima facie evidence of the facts contained

therein.[46] As prima facie evidence, the statements in the record of birth may be rebutted
by more preponderant evidence. It is not conclusive evidence with respect to the
truthfulness of the statements made therein by the interested parties. [47] Between the
certificate of birth which is prima facie evidence of Jose Gerardo's 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
Gerardo's illegitimacy while claiming that they both had the child's 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 person's 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 Gerardo's 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 other's 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. Child's 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.
Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur.
Carpio Morales, J., no part.

SECOND DIVISION
[ G.R. No. 187061, October 08, 2014 ]
CELERINA J. SANTOS, PETITIONER, VS. RICARDO T. SANTOS, RESPONDENT.

DECISION

LEONEN, J.:

The proper remedy for a judicial declaration of presumptive death obtained by extrinsic
fraud is an action to annul the judgment. An affidavit of reappearance is not the proper
remedy when the person declared presumptively dead has never been absent.

This is a petition for review on certiorari filed by Celerina J. Santos, assailing the Court
of Appeals' resolutions dated November 28, 2008 and March 5, 2009. The Court of
Appeals dismissed the petition for the annulment of the trial court's judgment declaring
her presumptively dead.

On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J.
Santos (Celerina) presumptively dead after her husband, respondent Ricardo T. Santos
(Ricardo), had filed a petition for declaration of absence or presumptive death for the
purpose of remarriage on  June 15, 2007.[1] Ricardo remarried on September 17, 2008.[2]

In his petition for declaration of absence or presumptive death, Ricardo alleged that he
and Celerina rented an apartment somewhere in San Juan, Metro Manila; after they had
gotten married on June 18, 1980.[3] After a year, they moved to Tarlac City. They were
engaged in the buy and sell business. [4]

Ricardo claimed that their business did not prosper. [5] As a result, Celerina convinced
him to allow her to work as a domestic helper in Hong Kong.[6] Ricardo initially refused
but because of Celerina's insistence, he allowed her to work abroad. [7] She allegedly
applied in an employment agency in Ermita, Manila, in February 1995. She left Tarlac
two months after and was never heard from again. [8]

Ricardo further alleged that he exerted efforts to locate Celerina. [9] He went to Celerina's
parents in Cubao, Quezon City, but they, too, did not know their daughter's
whereabouts.[10] He also inquired about her from other relatives and friends, but no one
gave him any information.[11]

Ricardo claimed that it was almost 12 years from the date of his Regional Trial Court
petition since Celerina left.  He believed that she had passed away. [12]

Celerina claimed that she learned about Ricardo's petition only sometime in October
2008 when she could no longer avail the remedies of new trial, appeal, petition for relief,
or other appropriate remedies.[13]

On November 17, 2008, Celerina filed a petition for annulment of judgment [14] before the
Court of Appeals on the grounds of extrinsic fraud and lack of jurisdiction. She argued
that she was deprived her day in court when Ricardo, despite his knowledge of her true
residence, misrepresented to the court that she was a resident of Tarlac City.
[15]
 According to Celerina, her true residence was in Neptune Extension, Congressional
Avenue, Quezon City.[16] This residence had been her and Ricardo's conjugal dwelling
since 1989 until Ricardo left in May 2008.[17] As a result of Ricardo's misrepresentation,
she was deprived of any notice of and opportunity to oppose the petition declaring her
presumptively dead.[18]

Celerina claimed that she never resided in Tarlac.  She also never left and worked as a
domestic helper abroad.[20] Neither did she go to an employment agency in February
1995.[21] She also claimed that it was not true that she had been absent for 12 years.
Ricardo was aware that she never left their conjugal dwelling in Quezon City. [22] It was
he who left the conjugal dwelling in May 2008 to cohabit with another woman.
[23]
 Celerina referred to a joint affidavit executed by their children to support her
contention that Ricardo made false allegations in his petition. [24]

Celerina also argued that the court did not acquire jurisdiction over Ricardo's petition
because it had never been published in a newspaper. [25] She added that the Office of
the Solicitor General and the Provincial Prosecutor's Office were not furnished copies of
Ricardo's petition.[26]

The Court of Appeals issued the resolution dated November 28, 2008, dismissing
Celerina's petition for annulment of judgment for being a wrong mode of remedy.
[27]
 According to the Court of Appeals, the proper remedy was to file a sworn statement
before the civil registry, declaring her reappearance in accordance with Article 42 of the
Family Code.[28]

Celerina filed a motion for reconsideration of the Court of Appeals' resolution dated
November 28, 2008.[29] The Court of Appeals denied the motion for reconsideration in
the resolution dated March 5, 2009.[30]

Hence, this petition was filed.

The issue for resolution is whether the Court of Appeals erred in dismissing Celerina's
petition for annulment of judgment for being a wrong remedy for a fraudulently obtained
judgment declaring presumptive death.

Celerina argued that filing an affidavit of reappearance under Article 42 of the Family
Code is appropriate only when the spouse is actually absent and the spouse seeking
the declaration of presumptive death actually has a well-founded belief of the spouse's
death.[31] She added that it would be inappropriate to file an affidavit of reappearance if
she did not disappear in the first place.[32] She insisted that an action for annulment of
judgment is proper when the declaration of presumptive death is obtained fraudulently.
[33]

Celerina further argued that filing an affidavit of reappearance under Article 42 of the
Family Code would not be a sufficient remedy because it would not nullify the legal
effects of the judgment declaring her presumptive death. [34]

In Ricardo's comment,[35] he argued that a petition for annulment of judgment is not the
proper remedy because it cannot be availed when there are other remedies available.
Celerina could always file an affidavit of reappearance to terminate the subsequent
marriage. Ricardo iterated the Court of Appeals' ruling that the remedy afforded to
Celerina under Article 42 of the Family Code is the appropriate remedy.

The petition is meritorious.

Annulment of judgment is the remedy when the Regional Trial Court's judgment, order,
or resolution has become final, and the "remedies of new trial, appeal, petition for relief
(or other appropriate remedies) are no longer available through no fault of the
petitioner."[36]

The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction.
[37]
 This court defined extrinsic fraud in Stilianopulos v. City of Legaspi:[38]
For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It
is intrinsic when the fraudulent acts pertain to an issue involved in the original action or
where the acts constituting the fraud were or could have been litigated, It is extrinsic or
collateral when a litigant commits acts outside of the trial which prevents a party from
having a real contest, or from presenting all of his case, such that there is no fair
submission of the controversy.[39] (Emphasis supplied)

Celerina alleged in her petition for annulment of judgment that there was fraud when
Ricardo deliberately made false allegations in the court with respect to her residence.
[40]
 Ricardo also falsely claimed that she was absent for 12 years. There was also no
publication of the notice of hearing of Ricardo's petition in a newspaper of general
circulation.[41] Celerina claimed that because of these, she was deprived of notice and
opportunity to oppose Ricardo's petition to declare her presumptively dead. [42]

Celerina alleged that all the facts supporting Ricardo's petition for declaration of
presumptive death were false.[43] Celerina further claimed that the court did not acquire
jurisdiction because the Office of the Solicitor General and the Provincial Prosecutor's
Office were not given copies of Ricardo's petition. [44]

These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in her
petition with the Court of Appeals sufficient ground/s for annulment of judgment.

Celerina filed her petition for annulment of judgment [45] on November 17, 2008. This was
less than two years from the July 27, 2007 decision declaring her presumptively dead
and about a month from her discovery of the decision in October 2008. The petition
was, therefore, filed within the four-year period allowed by law in case of extrinsic fraud,
and before the action is barred by laches, which is the period allowed in case of lack of
jurisdiction.[46]

There was also no other sufficient remedy available to Celerina at the time of her
discovery of the fraud perpetrated on her.

The choice of remedy is important because remedies carry with them certain
admissions, presumptions, and conditions.

The Family Code provides that it is the proof of absence of a spouse for four
consecutive years, coupled with a well-founded belief by the present spouse that the
absent spouse is already dead, that constitutes a justification for a second marriage
during the subsistence of another marriage.[47]

The Family Code also provides that the second marriage is in danger of being
terminated by the presumptively dead spouse when he or she reappears. Thus:
Article 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous marriage or declaring it void
ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in

the civil registry of the residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being judicially determined
in case such fact is disputed. (Emphasis supplied)

In other words, the Family Code provides the presumptively dead spouse with the
remedy of terminating the subsequent marriage by mere reappearance.

The filing of an affidavit of reappearance is an admission on the part of the first spouse
that his or her marriage to the present spouse was terminated when he or she was
declared absent or presumptively dead.

Moreover, a close reading of the entire Article 42 reveals that the termination of the
subsequent marriage by reappearance is subject to several conditions: (1) the non-
existence of a judgment annulling the previous marriage or declaring it void ab initio; (2)
recording in the civil registry of the residence of the parties to the subsequent marriage
of the sworn statement of fact and circumstances of reappearance; (3) due notice to the
spouses of the subsequent marriage of the fact of reappearance; and (4) the fact of
reappearance must either be undisputed or judicially determined.

The existence of these conditions means that reappearance does not always
immediately cause the subsequent marriage's termination.  Reappearance of the absent
or presumptively dead spouse will cause the termination of the subsequent marriage
only when all the conditions enumerated in the Family Code are present.

Hence, the subsequent marriage may still subsist despite the absent or presumptively
dead spouse's reappearance (1) if the first marriage has already been annulled or has
been declared a nullity; (2) if the sworn statement of the reappearance is not recorded
in the civil registry of the subsequent spouses' residence; (3) if there is no notice to the
subsequent spouses; or (4) if the fact of reappearance is disputed in the proper courts
of law, and no judgment is yet rendered confirming, such fact of reappearance.

When subsequent marriages are contracted after a judicial declaration of presumptive

death, a presumption arises that the first spouse is already dead and that the second
marriage is legal. This presumption should prevail over the continuance of the marital
relations with the first spouse.[48] The second marriage, as with all marriages, is
presumed valid.[49] The burden of proof to show that the first marriage was not properly
dissolved rests on the person assailing the validity of the second marriage. [50]

This court recognized the conditional nature of reappearance as a cause for terminating
the subsequent marriage in Social Security System v. Vda. de Bailon.[51] This court
noted[52] that mere reappearance will not terminate the subsequent marriage even if the
parties to the subsequent marriage were notified if there was "no step . . . taken to
terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or by
court action[.]"[53] "Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues inspite of the
spouse's physical reappearance, and by fiction of law, he or she must still be regarded
as legally an absentee until the subsequent marriage is terminated as provided by
law."[54]

The choice of the proper remedy is also important for purposes of determining the
status of the second marriage and the liabilities of the spouse who, in bad faith, claimed
that the other spouse was absent.

A second marriage is bigamous while the first subsists.  However, a bigamous

subsequent marriage may be considered valid when the following are present:
1) The prior spouse had been absent for four consecutive years;
2) The spouse present has a well-founded belief that the absent spouse was already
dead;
3) There must be a summary proceeding for the declaration of presumptive death of
the absent spouse; and
4) There is a court declaration of presumptive death of the absent spouse. [55]

A subsequent marriage contracted in bad faith, even if it was contracted after a court
declaration of presumptive death, lacks the requirement of a well-founded belief [56] that
the spouse is already dead. The first marriage will not be considered as. validly
terminated. Marriages contracted prior to the valid termination of a subsisting marriage
are generally considered bigamous and void.[57] Only a subsequent marriage contracted
in good faith is protected by law.

Therefore, the party who contracted the subsequent marriage in bad faith is also not
immune from an action to declare his subsequent marriage void for being bigamous.
The prohibition against marriage during the subsistence of another marriage still
applies.[58]

If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare
her presumptively dead and when he contracted the subsequent marriage, such
marriage would be considered void for being bigamous under Article 35(4) of the Family
Code. This is because the circumstances lack the element of "well-founded belief under
Article 41 of the Family Code, which is essential for the exception to the rule against
bigamous marriages to apply.[59]

The provision on reappearance in the Family Code as a remedy to effect the termination
of the subsequent marriage does not preclude the spouse who was declared
presumptively dead from availing other remedies existing in law. This court had, in fact,
recognized that a subsequent marriage may also be terminated by filing "an action in
court to prove the reappearance of the absentee and obtain a declaration of dissolution
or termination of the subsequent marriage." [60]

Celerina does not admit to have been absent. She also seeks not merely the
termination of the subsequent marriage but also the nullification of its effects. She
contends that reappearance is not a sufficient remedy because it will only terminate the
subsequent marriage but not nullify the effects of the declaration of her presumptive
death and the subsequent marriage.

Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the

Family Code is valid until terminated, the "children of such marriage shall be considered
legitimate, and the property relations of the spouse[s] in such marriage will be the same
as in valid marriages."[61] If it is terminated by mere reappearance, the children of the
subsequent marriage conceived before the termination shall still be considered
legitimate.[62] Moreover, a judgment declaring presumptive death is a defense against
prosecution for bigamy.[63]

It is true that in most cases, an action to declare the nullity of the subsequent marriage
may nullify the effects of the subsequent marriage, specifically, in relation to the status
of children and the prospect of prosecuting a respondent for bigamy.

However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed
solely by the husband or wife."[64]  This means that even if Celerina is a real party in
interest who stands to be benefited or injured by the outcome of an action to nullify the
second marriage,[65] this remedy is not available to her.

Therefore, for the purpose of not only terminating the subsequent marriage but also of
nullifying the effects of the declaration of presumptive death and the subsequent
marriage, mere filing of an affidavit of reappearance would not suffice. Celerina's choice
to file an action for annulment of judgment will, therefore, lie.

WHEREFORE, the case is REMANDED to the Court of Appeals for determination of the
existence of extrinsic fraud, grounds for nullity/annulment of the first marriage, and the
merits of the petition.

SO ORDERED.

Carpio, (Chairperson), Del Castillo,  Mendoza, and Perlas-Bernabe,* JJ., concur.

SECOND DIVISION
[ G.R. No. 210580, April 18, 2018 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, V. LUDYSON C. CATUBAG,
RESPONDENT.

DECISION

REYES, JR., J:

Nature of the Petition

Challenged before this Court via Petition for Review on Certiorari[1] under Rule 45 of the
Rules of Court are the Resolutions[2] of the Court of Appeals (CA) in CA-G.R. SP. No.
131269 dated September 3, 2013[3] and December 6, 2013.[4] The assailed Resolutions
denied the petition for certiorari filed by petitioner for failure to file a motion for
reconsideration. Likewise challenged is the Decision [5] dated May 23, 2013 of the
Regional Trial Court (RTC) of Tuao, Cagayan, Branch 11, declaring Ludyson C.
Catubag's (private respondent) spouse, Shanaviv G. Alvarez-Catubag (Shanaviv), as
presumptively dead.
The Antecedent Facts
Prior to the celebration of their marriage in 2003, private respondent and Shanaviv had
been cohabiting with each other as husband and wife. Their union begot two (2)
children named Mark Bryan A. Catubag and Rose Mae A. Catubag, both of whom were
born on May 18, 2000 and May 21, 2001, respectively. [6]
In 2001, in order to meet the needs of his family, private respondent took work
overseas. Meanwhile, Shanaviv stayed behind in the Philippines to tend to the needs of
their children.[7]
On June 26, 2003, private respondent and Shanaviv tied the knot in Rizal, Cagayan.
The marriage was solemnized by Honorable Judge Tomas D. Lasam at the Office of the
Municipal Judge, Rizal, Cagayan.[8]
Sometime in April 2006, private respondent and his family were able to acquire a
housing unit located at Rio del Grande Subdivision, Enrile Cagayan. Thereafter, private
respondent returned overseas to continue his work. While abroad, he maintained
constant communication with his family.[9]
On July 12, 2006, while working abroad, private respondent was informed by his
relatives that Shanaviv left their house and never returned. In the meantime, private
respondent's relatives took care of the children. [10]
Worried about his wife's sudden disappearance and the welfare of his children, private
respondent took an emergency vacation and flew back home. Private respondent
looked for his wife in Enrile Cagayan, but to no avail. He then proceeded to inquire
about Shanaviv's whereabouts from their close friends and relatives, but they too could
offer no help. Private respondent travelled as far as Bicol, where Shanaviv was born
and raised, but he still could not locate her.[11]
Private respondent subsequently sought the help of Bombo Radyo Philippines, one of
the more well-known radio networks in the Philippines, to broadcast the fact of his wife's
disappearance. Moreover, private respondent searched various hospitals and funeral
parlors in Tuguegarao and in Bicol, with no avail. [12]
On May 4, 2012, after almost seven (7) years of waiting, private respondent filed with
the RTC a petition to have his wife declared presumptively dead. [13]
On May 23, 2013, the RTC rendered its Decision granting the Petition. The dispositive
portion of the decision which reads:
WHEREFORE, the petition is GRANTED. SHANAVIV G. ALVAREZ-CATUBAG is
hereby adjudged PRESUMPTIVELY DEAD only for the purpose that petitioner
LUDYSON C. CATUBAG may contract a marriage subsequent to what he had with
SHANAVIV G. ALVAREZ-CATUBAG without prejudice to the reappearance of the latter.
SO ORDERED.[14]
On August 5, 2013, petitioner, through the Office of the Solicitor General (OSG),
elevated the judgment of the RTC to the CA via a Petition for Certiorari under Rule 65 of
the Revised Rules of Court. Petitioner's main contention is that private respondent failed
to establish a "well-founded belief that his missing wife was already dead. [15]
In its Resolution[16] dated September 3, 2013, the CA dismissed the petition because no
motion for reconsideration was filed with the court a quo. The CA ruled that such defect
was fatal and warranted the immediate dismissal of the petition. The dispositive portion
of the CA decision reads:
WHEREFORE, premises considered, the instant petition for certiorari is DISMISSED.
SO ORDERED.[17]
On September 18, 2013, petitioner filed a Motion for Reconsideration, but the same was
denied by the CA in its Resolution[18] dated December 6, 2013. Hence, this Petition for
Review on Certiorari under Rule 45 of the Rules of Court.
The Issues
The petitioner anchors its plea for the annulment of the assailed resolutions and the
denial of private respondent's petition to declare his wife presumptively dead on the
following grounds:
I. THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION FOR CERTIORARI ON THE GROUND THAT PETITIONER DID NOT
PREVIOUSLY FILE A MOTION FOR RECONSIDERATION BEFORE THE
COURT A QUO.
II. THE HONORABLE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION FOR [CERTIORARI] ON THE GROUND THAT PETITIONER FAILED
 TO ATTACH THERETO COPIES OF ALL PERTINENT AND RELEVANT
DOCUMENTS AND PLEADINGS.
III. PRIVATE RESPONDENT HAS NOT ESTABLISHED A WELL-FOUNDED
BELIEF THAT HIS WIFE IS PRESUMPTIVELY DEAD.
IV. PRIVATE RESPONDENT FAILED TO PROVE HIS INTENTION TO RE-MARRY.
[19]

In sum, the instant petition rests on the resolution of two issues: (1) whether or not
petitioner's resort to a Petition for Certiorari under Rule 65 to challenge the decision of
the RTC declaring Shanaviv presumptively dead was proper; and (2) whether or not
private respondent complied with the essential requisites of a petition for declaration of
presumptive death under Article 41 of the Family Code.
The Court's Ruling
The petition is impressed with merit.
Basic is the rule that the nature of the proceeding determines the appropriate remedy or
remedies available. Hence, a party aggrieved by an action of a court must first correctly
determine the nature of the order, resolution, or decision, in order to properly assail it. [20]
Since what is involved in the instant case is a petition for declaration of presumptive
death, the relevant provisions of law are Articles 41, 238, and 253 of the Family Code.
These provisions explicitly provide that actions for presumptive death are summary in
nature. Article 41 provides:
Article 41. A marriage contracted by any person during subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the spouse
present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph,
the spouse present must institute a summary proceeding as provided in this Code
for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse. (Emphasis supplied)
Likewise, Article 238 in relation to Article 253, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, of the Family Code provides:
Article 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical rules.
xxxx
Article 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217,
insofar as they are applicable. (Emphasis Supplied)
Consequently, parties cannot seek reconsideration, nor appeal decisions in summary
judicial proceedings under the Family Code because by express mandate of law,
judgments rendered thereunder are immediately final and executory. [21] As explained by
the Court in Republic of the Phils. vs. Bermudez-Lorino,[22] citing Atty. Veloria vs.
Comelec:[23]
[T]he right to appeal is not a natural right nor is it a part of due process, for it is merely a
statutory privilege. Since, by express mandate of Article 247 of the Family Code, all
judgments rendered in summary judicial proceedings in Family Law are "immediately
final and executory," the right to appeal was not granted to any of the parties therein.
The Republic of the Philippines, as oppositor in the petition for declaration of
presumptive death, should not be treated differently. It had no right to appeal the RTC
decision of November 7, 2001.[24]
Further, it is well settled in our laws and jurisprudence that a decision that has acquired
finality becomes immutable and unalterable. As such, it may no longer be modified in
any respect even if the modification is meant to correct erroneous conclusions of fact or
law and whether it will be made by the court that rendered it or by the highest court of
the land.[25]
While parties are precluded from filing a motion for reconsideration or a notice of
appeal, in a petition for declaration of presumptive death, they may challenge the
decision of the court a quo through a petition for certiorari to question grave abuse of
discretion amounting to lack of jurisdiction.[26]
In Republic vs. Sareñogon, Jr.,[27] the Court outlined the legal remedies available in a
summary proceeding for the declaration of presumptive death. If aggrieved by the
decision of the RTC, then filing with the CA a Petition for Certiorari under Rule 65 would
be proper. Any subsequent decision by the CA may then be elevated to the Court via a
Petition for Review on Certiorari under Rule 45.[28]
Considering the foregoing, the Court finds that petitioner's resort to certiorari under Rule
65 of the Rules of Court to challenge the RTC's Order declaring Shanaviv presumptively
dead was proper.
Having determined the propriety of petitioner's mode of challenging the RTC's Order,
the Court shall now proceed to tackle the issue of whether or not private respondent has
sufficiently complied with the essential requisites in a petition for declaration of
presumptive death.
Prevailing jurisprudence has time and again pointed out four (4) requisites under Article
41 of the Family Code that must be complied with for the declaration of presumptive
death to prosper: first, the absent spouse has been missing for four consecutive years,
or two consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391 of the Civil Code. [29] Second, the
present spouse wishes to remarry. Third, the present spouse has a wellfounded belief
that the absentee is dead. Fourth, the present spouse files for a summary proceeding
for the declaration of presumptive death of the absentee. [30]
In seeking a declaration of presumptive death, it is the present spouse who has the
burden of proving that all the requisites under Article 41 of the Family Code are present.
In the instant case, since it is private respondent who asserts the affirmative of the
issue, then it is his duty to substantiate the same. He who alleges a fact has the burden
of proving it and mere allegations will not suffice. [31]
Notably, the records reveal that private respondent has complied with the first, second,
and fourth requisites. Thus, what remains to be resolved is whether or not private
respondent successfully discharged the burden of establishing a well-founded belief that
his wife, Shanaviv, is dead.
The Court in Cantor,[32] pointed out that the term, "well-founded belief" has no exact
definition under the law. In fact, the Court notes that such belief depends on the
circumstances of each particular case. As such, each petition must be judged on a
case-to-case basis.[33]
This is not to say, however, that there is no guide in establishing the existence of a well-
founded belief that an absent spouse is already dead. In Republic vs. Orcelino-
Villanueva,[34] the Court, through Justice Mendoza, provided that such belief must result
from diligent efforts to locate the absent spouse. Such diligence entails an active effort
on the part of the present spouse to locate the missing one. The mere absence of a
spouse, devoid of any attempt by the present spouse to locate the former, will not
suffice. The Court expounded on the required diligence, to wit:
The well-founded belief in the absentee's death requires the present spouse to prove
that his/her belief was the result of diligent and reasonable efforts to locate the absent
spouse and that based on these efforts and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead. It necessitates exertion of active
effort (not a mere passive one). Mere absence of the spouse (even beyond the period
required by law), lack of any news that the absentee spouse is still alive, mere failure to
communicate, or general presumption of absence under the Civil Code would not
suffice. The premise is that Article 41 of the Family Code places upon the present
spouse the burden of complying with the stringent requirement of "well-founded belief”
which can only be discharged upon a showing of proper and honest-to-goodness
inquiries and efforts to ascertain not only the absent spouse's whereabouts but, more
importantly, whether the absent spouse is still alive or is already dead. [35] (Citations
omitted)
Furthermore, jurisprudence is replete with cases which help determine whether belief of
an absent spouses' death is well-founded or not. A perusal of the cases of Republic vs.
Granada,[36] Cantor,[37] and Orcelino-Villanueva[38] reveal the circumstances which do not
meet the Court's standards in establishing a "well-founded belief."
In Granada,[39] the present spouse alleged that she exerted efforts in locating her absent
spouse by inquiring from the latter's relatives regarding his whereabouts. The Court
ruled against the present spouse and stated that the mere act of inquiring from relatives
falls short of the diligence required by law. It pointed out that the present spouse did not
report to the police nor seek the aid of mass media. Even worse, the present spouse did
not even bother to present any of the absent spouses' relatives to corroborate her
allegations.[40]
Similarly in Cantor,[41] the present spouse alleged that she exerted "earnest efforts" in
attempting to locate her missing husband. She claimed that she made inquiries with
their relatives, neighbors, and friends as to his whereabouts. She even stated that she
would take the time to look through the patient's directory whenever she would visit a
hospital.[42]
Despite these alleged "earnest efforts,'' the Court still ruled otherwise. It held that the
present spouse engaged in a mere "passive-search" Applying the "stringent-standards"
and degree of diligence required by jurisprudence, the Court pointed out four acts of the
present spouse which contradict the claim of a diligent and active search, [43] to wit:
First, the respondent did not actively look for her missing husband. It can be inferred
from the records that her hospital visits and her consequent checking of the patients'
directory therein were unintentional. She did not purposely undertake a diligent search
for her husband as her hospital visits were not planned nor primarily directed to look for
him. This Court thus considers these attempts insufficient to engender a belief that her
husband is dead.
Second, she did not report Jerry's absence to the police nor did she seek the aid of the
authorities to look for him. While a finding of well-founded belief varies with the nature of
the situation in which the present spouse is placed, under present conditions, we find it
proper and prudent for a present spouse, whose spouse had been missing, to seek the
aid of the authorities or, at the very least, report his/her absence to the police.
Third, she did not present as witnesses Jerry's relatives or their neighbors and friends,
who can corroborate her efforts to locate Jerry. Worse, these persons, from whom she
allegedly made inquiries, were not even named. As held in Nolasco, the present
spouse's bare assertion that he inquired from his friends about his absent spouse's
whereabouts is insufficient as the names of the friends from whom he made inquiries
were not identified in the testimony nor presented as witnesses.
Lastly, there was no other corroborative evidence to support the respondent's claim that
she conducted a diligent search. Neither was there supporting evidence proving that
she had a well-founded belief other than her bare claims that she inquired from her
friends and in-laws about her husband's whereabouts. [44] (Citations omitted)
The foregoing conduct of the present spouse led the Court to conclude that her efforts
in searching for her absent spouse were insincere. Ultimately, the Courts considered
these attempts insufficient to comply with the requirement of conducting a reasonable,
diligent, and active search.[45]
In Orcelino-Villanueva, the Court likewise ruled that the present spouse failed to prove
that she had a well-founded belief that her absent spouse was already dead. In said
case, the present spouse began her "search" by returning home from her work
overseas to look for her missing husband. She then inquired from her in-laws and
common friends as to his whereabouts. The present spouse even went as far as Negros
Oriental, where the absent spouse was born. Additionally, the present spouse claimed
that fifteen (15) years have already lapsed since her husband's disappearance. [46]
In that case, the Court held that the factual circumstances were very similar to the two
aforementioned cases. It further held that it was erroneous for the lower courts to grant
the petition for declaration of presumptive death. The Court explained why the present
spouse's allegations should not have been given credence, to wit:
Applying the standard set forth by the Court in the previously cited cases,
particularly Cantor, Edna's efforts failed to satisfy the required well-founded belief of her
absent husband's death.
Her claim of making diligent search and inquiries remained unfounded as it merely
consisted of bare assertions without any corroborative evidence on record. She also
failed to present any person from whom she inquired about the whereabouts of her
husband. She did not even present her children from whom she learned the
disappearance of her husband. In fact, she was the lone witness. Following the basic
rule that mere allegation is not evidence and is not equivalent to proof, the Court cannot
give credence to her claims that she indeed exerted diligent efforts to locate her
husband.[47] (Citations omitted)
Having laid out the foregoing jurisprudential guidelines in determining the existence of a
"well-founded belief," the Court now shifts focus to the specific circumstances
surrounding the current case. In the case at bar, private respondent first took a leave of
absence from his work in the United Arab Emirates and returned to the Philippines to
search for Shanaviv. He then proceeded to inquire about his wife's whereabouts from
their friends and relatives in Cagayan and Bicol. Next, private respondent aired over
Bombo Radyo Philippines, a known radio station, regarding the fact of disappearance of
his wife. Finally, he claims to have visited various hospitals and funeral parlors in
Tuguegarao City and nearby municipalities. [48]
Applying the foregoing standards discussed by the Court in Cantor,[49] Granada,
[50]
 and Orcelino-Villanueva,[51] the Court finds that private respondent's efforts falls short
of the degree of diligence required by jurisprudence for the following reasons:
First, private respondent claims to have inquired about his missing wife's whereabouts
from both friends and relatives. Further, he claims to have carried out such inquiries in
the place where they lived and in the place where his wife was born and raised.
However, private respondent failed to present any of these alleged friends or relatives to
corroborate these "inquiries." Moreover, no explanation for such omission was given. As
held in the previous cases, failure to present any of the persons from whom inquiries
were allegedly made tends to belie a claim of a diligent search.
Second, private respondent did not seek the help of other concerned government
agencies, namely, the local police authorities and the National Bureau of Investigation
(NBI). In Cantor, the Court reasoned that while a finding of well-founded belief varies
with the nature of the situation, it would still be prudent for the present spouse to seek
the aid of the authorities in searching for the missing spouse. Absent such efforts to
employ the help of local authorities, the present spouse cannot be said to have actively
and diligently searched for the absentee spouse. [52]
Finally, aside from the certification of Bombo Radyo's manager, private respondent
bases his "well-founded belief” on bare assertions that he exercised earnest efforts in
looking for his wife. Again, the present spouse's bare assertions, uncorroborated by any
kind of evidence, falls short of the diligence required to engender a well-founded belief
that the absentee spouse is dead.
Taken together, the Court is of the view that private respondent's efforts in searching for
his missing wife, Shanaviv, are merely passive. Private respondent could have easily
convinced the Court otherwise by providing evidence which corroborated his "earnest-
efforts." Yet, no explanation or justification was given for these glaring omissions. Again,
he who alleges a fact has the burden of proving it by some other means than mere
allegations.
Stripped of private respondent's mere allegations, only the act of broadcasting his wife's
alleged disappearance through a known radio station was corroborated. [53] This act
comes nowhere close to establishing a well-founded belief that Shanaviv has already
passed away. At most, it just reaffirms the unfortunate theory that she abandoned the
family.
To accept private respondent's bare allegations would be to apply a liberal approach in
complying with the requisite of establishing a well-founded belief that the missing
spouse is dead. In Republic vs. Court of Appeals (Tenth Div.),[54] the Court cautioned
against such a liberal approach. It opined that to do so would allow easy circumvention
and undermining of the Family Code. The Court stated:
There have been times when Article 41 of the Family Code had been resorted to by
parties wishing to remarry knowing fully well that their alleged missing spouses are alive
and well. It is even possible that those who cannot have their marriages x x x declared
null and void under Article 36 of the Family Code resort to Article 41 of the Family Code
for relief because of the x x x summary nature of its proceedings.
Stated otherwise, spouses may easily circumvent the policy of the laws on marriage by
simply agreeing that one of them leave the conjugal abode and never return again.
Thus, there is a need for courts to exercise prudence in evaluating petitions for
declaration of presumptive death of an absent spouse. A lenient approach in applying
the standards of diligence required in establishing a "well-founded belief” would defeat
the State's policy in protecting and strengthening the institution of marriage. [55]
On this basis, it is clear that private respondent failed to fulfill the requisite of
establishing a well-founded belief that the absentee spouse is dead. Thus, the RTC
should have denied private respondent's petition for declaration of presumptive death.
In fine, having determined the propriety of petitioner's resort to a petition
for certiorari and private respondent's failure to meet the stringent standard and degree
of due diligence required by jurisprudence to support his claim of a "well-founded belief'
that his wife, Shanaviv, is already dead, it is proper for the Court to grant the petition.
Consequently, the other issues raised by the petitioner need not be discussed further.
WHEREFORE the petition is GRANTED. Accordingly, the Decision dated May 23, 2013
of the Regional Trial Court of Tuao, Cagayan, Branch 11 and the Resolutions dated
September 3, 2013 and December 6, 2013 rendered by the Court of Appeals in CA-
G.R. S.P. No. 131269 are hereby ANNULED and SET ASIDE. Consequently, the
petition of private respondent Ludyson C. Catubag to have his wife, Shanaviv G.
Alvarez-Catubag, declared presumptively dead is DENIED.
SO ORDERED.
Carpio,[*] (Chairperson), Peralta, Perlas-Bernabe, and Caguioa, JJ., concur.

723 Phil. 114

EN BANC
[ G.R. No. 184621, December 10, 2013 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. MARIA FE ESPINOSA
CANTOR, RESPONDENT.

DECISION

BRION, J.:

The petition for review on certiorari[1] before us assails the decision[2] dated August 27,

2008 of the Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed the
order[3] dated December 15, 2006 of the Regional Trial Court (RTC), Branch 25,
Koronadal City, South Cotabato, in SP Proc. Case No. 313-25, declaring Jerry F.
Cantor, respondent Maria Fe Espinosa Cantor’s husband, presumptively dead under
Article 41 of the Family Code.
 The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived together as
husband and wife in their conjugal dwelling in Agan Homes, Koronadal City, South
Cotabato. Sometime in January 1998, the couple had a violent quarrel brought about
by: (1) the respondent’s inability to reach “sexual climax” whenever she and Jerry would
have intimate moments; and (2) Jerry’s expression of animosity toward the respondent’s
father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the
respondent ever saw him. Since then, she had not seen, communicated nor heard
anything from Jerry or about his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance,
the respondent filed before the RTC a petition[4] for her husband’s declaration
of presumptive death, docketed as SP Proc. Case No. 313-25. She claimed that she
had a well-founded belief that Jerry was already dead. She alleged that she had
inquired from her mother-in-law, her brothers-in-law, her sisters-in-law, as well as her
neighbors and friends, but to no avail. In the hopes of finding Jerry, she also allegedly
made it a point to check the patients’ directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile, prompting her to file
the petition in court.
The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s petition and
declaring Jerry presumptively dead. It concluded that the respondent had a well-
founded belief that her husband was already dead since more than four (4) years had
passed without the former receiving any news about the latter or his whereabouts. The
dispositive portion of the order dated December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry
F. Cantor is presumptively dead pursuant to Article 41 of the Family Code of the
Philippines without prejudice to the effect of the reappearance of the absent spouse
Jerry F. Cantor.[5]
The Ruling of the CA

The case reached the CA through a petition for certiorari[6] filed by the petitioner,

Republic of the Philippines, through the Office of the Solicitor General (OSG). In its
August 27, 2008 decision, the CA dismissed the petitioner’s petition, finding no grave
abuse of discretion on the RTC’s part, and, accordingly, fully affirmed the latter’s order,
thus:
WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and
the assailed Order dated December 15, 2006 declaring Jerry F. Cantor presumptively
dead is hereby AFFIRMED in toto.[7]
The petitioner brought the matter via a Rule 45 petition before this Court.
The Petition
The petitioner contends that certiorari lies to challenge the decisions, judgments or final
orders of trial courts in petitions for declaration of presumptive death of an absent
spouse under Rule 41 of the Family Code. It maintains that although judgments of trial
courts in summary judicial proceedings, including presumptive death cases, are
deemed immediately final and executory (hence, not appealable under Article 247 of the
Family Code), this rule does not mean that they are not subject to review on certiorari.

The petitioner also posits that the respondent did not have a well-founded belief to
justify the declaration of her husband’s presumptive death. It claims that the respondent
failed to conduct the requisite diligent search for her missing husband. Likewise, the
petitioner invites this Court’s attention to the attendant circumstances surrounding the
case, particularly, the degree of search conducted and the respondent’s resultant failure
to meet the strict standard under Article 41 of the Family Code.
The Issues

The petition poses to us the following issues:

(1) Whether certiorari lies to challenge the decisions, judgments or final orders of trial

courts in petitions for declaration of presumptive death of an absent spouse under
Article 41 of the Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.
The Court’s Ruling

We grant the petition.

a.  On the Issue of the Propriety of Certiorari as a Remedy

Court’s Judgment in the Judicial Proceedings for Declaration

of Presumptive Death Is Final and Executory, Hence, Unappealable

The Family Code was explicit that the court’s judgment in summary proceedings, such
as the declaration of presumptive death of an absent spouse under Article 41 of the
Family Code, shall be immediately final and executory.

Article 41, in relation to Article 247, of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph
the spouse present must institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.

Art. 247. The judgment of the court shall be immediately final and executory.
[underscores ours]
With the judgment being final, it necessarily follows that it is no longer subject to an
appeal, the dispositions and conclusions therein having become immutable and
unalterable not only as against the parties but even as against the courts. [8] Modification
of the court’s ruling, no matter how erroneous is no longer permissible. The final and
executory nature of this summary proceeding thus prohibits the resort to appeal. As
explained in Republic of the Phils. v. Bermudez-Lorino,[9] the right to appeal is not
granted to parties because of the express mandate of Article 247 of the Family Code, to
wit:
In Summary Judicial Proceedings under the Family Code, there is no
reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of [Article] 247, Family
Code, supra, are “immediately final and executory.” It was erroneous, therefore, on
the part of the RTC to give due course to the Republic’s appeal and order the
transmittal of the entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by

express provision of law, is immediately final and executory. As we have said
in Veloria vs. Comelec, “the right to appeal is not a natural right nor is it a part of due
process, for it is merely a statutory privilege.” Since, by express mandate of Article
247 of the Family Code, all judgments rendered in summary judicial proceedings
in Family Law are “immediately final and executory,” the right to appeal was not
granted to any of the parties therein. The Republic of the Philippines, as oppositor in
the petition for declaration of presumptive death, should not be treated differently. It had
no right to appeal the RTC decision of November 7, 2001. [emphases ours; italics
supplied]
Certiorari Lies to Challenge the Decisions, Judgments or Final Orders of Trial
Courts in a Summary Proceeding for the Declaration
of Presumptive Death Under the Family Code

A losing party in this proceeding, however, is not entirely left without a remedy. While
jurisprudence tells us that no appeal can be made from the trial court's judgment, an
aggrieved party may, nevertheless, file a petition for certiorari under Rule 65 of the
Rules of Court to question any abuse of discretion amounting to lack or excess of
jurisdiction that transpired.

As held in De los Santos v. Rodriguez, et al.,[10] the fact that a decision has become final
does not automatically negate the original action of the CA to issue certiorari, prohibition
and mandamus in connection with orders or processes issued by the trial
court. Certiorari may be availed of where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion, and where the ordinary remedy of appeal
is not available. Such a procedure finds support in the case of Republic v. Tango,
[11]
 wherein we held that:
This case presents an opportunity for us to settle the rule on appeal of judgments
rendered in summary proceedings under the Family Code and accordingly, refine our
previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS
IN THE FAMILY LAW, establishes the rules that govern summary court proceedings in
the Family Code:

“ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Code requiring summary court proceedings. Such
cases shall be decided in an expeditious manner without regard to technical rules.”

In turn, Article 253 of the Family Code specifies the cases covered by the rules in
chapters two and three of the same title. It states:

“ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise

govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217,
insofar as they are applicable.” (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

“ART. 247. The judgment of the court shall be immediately final and executory.”

By express provision of law, the judgment of the court in a summary proceeding shall be
immediately final and executory. As a matter of course, it follows that no appeal can be
had of the trial court's judgment in a summary proceeding for the declaration
of presumptive death of an absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a petition for certiorari
to question abuse of discretion amounting to lack of jurisdiction.
Such petition should be filed in the Court of Appeals in accordance with the
Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to
issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain
cases, such concurrence does not sanction an unrestricted freedom of choice of court
forum.
Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the
Rules of Court to question the RTC’s order declaring Jerry presumptively dead was
proper.

b.  On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the Declaration of Presumptive Death Under Article

41 of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be shown

that the prior spouse had been absent for four consecutive years and the present
spouse had a well-founded belief that the prior spouse was already dead. Under Article
41 of the Family Code, there are four (4) essential requisites for the declaration
of presumptive death:
1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger
of death under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is
dead; and
4. That the present spouse files a summary proceeding for the declaration
of presumptive death of the absentee.[12]
The Present Spouse Has the Burden of Proof to Show that All the Requisites
Under Article 41 of the Family Code Are Present

The burden of proof rests on the present spouse to show that all the requisites under
Article 41 of the Family Code are present. Since it is the present spouse who, for
purposes of declaration of presumptive death, substantially asserts the affirmative of the
issue, it stands to reason that the burden of proof lies with him/her. He who alleges a
fact has the burden of proving it and mere allegation is not evidence. [13]

Declaration of Presumptive Death Under Article 41 of the Family Code Imposes a

Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code
which it superseded, imposes a stricter standard. It requires a “well-founded belief"
that the absentee is already dead before a petition for declaration
of presumptive death can be granted. We have had occasion to make the same
observation in Republic v. Nolasco,[14] where we noted the crucial differences between
Article 41 of the Family Code and Article 83 of the Civil Code, to wit:
Under Article 41, the time required for the presumption to arise has been shortened to
four (4) years; however, there is need for a judicial declaration of presumptive death to
enable the spouse present to remarry. Also, Article 41 of the Family Code imposes
a stricter standard than the Civil Code: Article 83 of the Civil Code merely requires
either that there be no news that such absentee is still alive; or the absentee
is generally considered to be dead and believed to be so by the spouse present, or
is presumed dead under Articles 390 and 391 of the Civil Code. The Family Code,
upon the other hand, prescribes as "well founded belief" that the absentee
is already dead before a petition for declaration of presumptive death can be
granted.
Thus, mere absence of the spouse (even for such period required by the law), lack of
any news that such absentee is still alive, failure to communicate or general
presumption of absence under the Civil Code would not suffice. This conclusion
proceeds from the premise that Article 41 of the Family Code places upon the present
spouse the burden of proving the additional and more stringent requirement of “well-
founded belief” which can only be discharged upon a showing of proper and honest-to-
goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts
but, more importantly, that the absent spouse is still alive or is already dead. [15]

The Requirement of Well-Founded Belief

The law did not define what is meant by “well-founded belief.” It depends upon the
circumstances of each particular case. Its determination, so to speak, remains on a
case-to-case basis. To be able to comply with this requirement, the present spouse
must prove that his/her belief was the result of diligent and reasonable efforts and
inquiries to locate the absent spouse and that based on these efforts and inquiries,
he/she believes that under the circumstances, the absent spouse is already dead. It
requires exertion of active effort (not a mere passive one).

To illustrate this degree of “diligent and reasonable search” required by the law, an
analysis of the following relevant cases is warranted:

i.  Republic of the Philippines v. Court of Appeals (Tenth Div.)[16]

In Republic of the Philippines v. Court of Appeals (Tenth Div.),[17] the Court ruled that the
present spouse failed to prove that he had a well-founded belief that his absent spouse
was already dead before he filed his petition. His efforts to locate his absent wife
allegedly consisted of the following:
(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

(3) He went to her friends’ houses to find her and inquired about her whereabouts
among his friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls
during his free time;

(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged “earnest efforts,” the Court still ruled against the present spouse.
The Court found that he failed to present the persons from whom he allegedly made
inquiries and only reported his wife’s absence after the OSG filed its notice to dismiss
his petition in the RTC.

The Court also provided the following criteria for determining the existence of a "well-
founded belief" under Article 41 of the Family Code:
The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent
spouse and whether the absent spouse is still alive or is already dead. Whether or
not the spouse present acted on a well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great many circumstances occurring
before and after the disappearance of the absent spouse and the nature and extent of
the inquiries made by [the] present spouse.[18]
ii.  Republic v. Granada[19]

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-
founded belief" that her absent spouse was already dead prior to her filing of
the petition. In this case, the present spouse alleged that her brother had made inquiries
from their relatives regarding the absent spouse’s whereabouts. The present spouse did
not report to the police nor seek the aid of the mass media. Applying the standards
in Republic of the Philippines v. Court of Appeals (Tenth Div.),[20] the Court ruled against
the present spouse, as follows:
Applying the foregoing standards to the present case, petitioner points out that
respondent Yolanda did not initiate a diligent search to locate her absent husband.
While her brother Diosdado Cadacio testified to having inquired about the
whereabouts of Cyrus from the latter’s relatives, these relatives were not
presented to corroborate Diosdado’s testimony. In short, respondent was allegedly
not diligent in her search for her husband. Petitioner argues that if she were, she would
have sought information from the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She could have also utilized mass
media for this end, but she did not. Worse, she failed to explain these omissions.
iii. Republic v.  Nolasco[21]

In Nolasco, the present spouse filed a petition for declaration of presumptive death of

his wife, who had been missing for more than four years. He testified that his efforts to
find her consisted of:
(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless.

The Court ruled that the present spouse’s investigations were too sketchy to form a
basis that his wife was already dead and ruled that the pieces of evidence only proved
that his wife had chosen not to communicate with their common acquaintances, and not
that she was dead.

iv. The present case

In the case at bar, the respondent’s “well-founded belief” was anchored on her alleged
“earnest efforts” to locate Jerry, which consisted of the following:
(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and
friends; and
(2) Whenever she went to a hospital, she saw to it that she looked through the patients’
directory, hoping to find Jerry.
These efforts, however, fell short of the “stringent standard” and degree of diligence
required by jurisprudence for the following reasons:

First, the respondent did not actively look for her missing husband. It can be inferred
from the records that her hospital visits and her consequent checking of the patients’
directory therein were unintentional. She did not purposely undertake a diligent search
for her husband as her hospital visits were not planned nor primarily directed to look for
him. This Court thus considers these attempts insufficient to engender a belief that her
husband is dead.

Second, she did not report Jerry’s absence to the police nor did she seek the aid of the
authorities to look for him. While a finding of well-founded belief varies with the nature of
the situation in which the present spouse is placed, under present conditions, we find it
proper and prudent for a present spouse, whose spouse had been missing, to seek the
aid of the authorities or, at the very least, report his/her absence to the police.

Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends,
who can corroborate her efforts to locate Jerry. Worse, these persons, from whom she
allegedly made inquiries, were not even named. As held in Nolasco, the present
spouse’s bare assertion that he inquired from his friends about his absent spouse’s
whereabouts is insufficient as the names of the friends from whom he made inquiries
were not identified in the testimony nor presented as witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim
that she conducted a diligent search. Neither was there supporting evidence proving
that she had a well-founded belief other than her bare claims that she inquired from her
friends and in-laws about her husband’s whereabouts.

In sum, the Court is of the view that the respondent merely engaged in a “passive
search” where she relied on uncorroborated inquiries from her in-laws, neighbors and
friends. She failed to conduct a diligent search because her alleged efforts are
insufficient to form a well-founded belief that her husband was already dead. As held
in Republic of the Philippines v. Court of Appeals (Tenth Div.),[22] “[w]hether or not the
spouse present acted on a well-founded belief of death of the absent spouse depends
upon the inquiries to be drawn from a great many circumstances occurring before and
after the disappearance of the absent spouse and the nature and extent of the inquiries
made by [the] present spouse.”

Strict Standard Approach Is Consistent with the State’s Policy to Protect and
Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses in
nullifying their marriage, has consistently applied the “strict standard” approach. This is
to ensure that a petition for declaration of presumptive death under Article 41 of the
Family Code is not used as a tool to conveniently circumvent the laws. Courts should
never allow procedural shortcuts and should ensure that the stricter standard required
by the Family Code is met. In Republic of the Philippines v. Court of Appeals (Tenth
Div.),[23] we emphasized that:
In view of the summary nature of proceedings under Article 41 of the Family Code for
the declaration of presumptive death of one’s spouse, the degree of due diligence set
by this Honorable Court in the above-mentioned cases in locating the
whereabouts of a missing spouse must be strictly complied with. There have been
times when Article 41 of the Family Code had been resorted to by parties wishing to
remarry knowing fully well that their alleged missing spouses are alive and well. It is
even possible that those who cannot have their marriages xxx
declared null and void under Article 36 of the Family Code resort to Article 41 of the
Family Code for relief because of the xxx summary nature of its proceedings.
The application of this stricter standard becomes even more imperative if we consider
the State’s policy to protect and strengthen the institution of marriage. [24] Since marriage
serves as the family’s foundation[25] and since it is the state’s policy to protect and
strengthen the family as a basic social institution,[26] marriage should not be permitted to
be dissolved at the whim of the parties. In interpreting and applying Article 41, this is the
underlying rationale – to uphold the sanctity of marriage. Arroyo, Jr. v. Court of
Appeals[27] reflected this sentiment when we stressed:
[The] protection of the basic social institutions of marriage and the family in the
preservation of which the State has the strongest interest; the public policy here
involved is of the most fundamental kind. In Article II, Section 12 of the Constitution
there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution.
Strict Standard Prescribed Under Article 41 of the Family Code Is for the Present
Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and

consequently, the application of a stringent standard for its issuance) is also for the
present spouse’s benefit. It is intended to protect him/her from a criminal prosecution of
bigamy under Article 349 of the Revised Penal Code which might come into play if
he/she would prematurely remarry sans the court’s declaration.

Upon the issuance of the decision declaring his/her absent spouse presumptively dead,
the present spouse’s good faith in contracting a second marriage is effectively
established. The decision of the competent court constitutes sufficient proof of his/her
good faith and his/her criminal intent in case of remarriage is effectively negated.
[28]
 Thus, for purposes of remarriage, it is necessary to strictly comply with the stringent
standard and have the absent spouse judicially declared presumptively dead.

Final Word

As a final word, it has not escaped this Court’s attention that the strict standard required
in petitions for declaration of presumptive death has not been fully observed by the
lower courts. We need only to cite the instances when this Court, on review, has
consistently ruled on the sanctity of marriage and reiterated that anything less than the
use of the strict standard necessitates a denial. To rectify this situation, lower courts are
now expressly put on notice of the strict standard this Court requires in cases under
Article 41 of the Family Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of
the Court of Appeals, which affirmed the order dated December 15, 2006 of the
Regional Trial Court, Branch 25, Koronadal City, South Cotabato, declaring Jerry F.
Cantor presumptively dead is hereby REVERSED and SET ASIDE.

SO ORDERED.

Sereno, C.J., Carpio, Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama,
Jr., Perez, Reyes, and Perlas-Bernabe, JJ., concur.
Velasco, Jr., J., see concurring opinion.
Leonen, J., see dissenting opinion.
Abad, and Mendoza, JJ., join the dissenting opinion of Justice Leonen.

[ G.R. No. L-32026, January 16, 1986 ]

RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES,
ERLINDA REYNOSO REYES, PETITIONER, VS. HON. JOSE P. ALEJANDRO, IN
HIS CAPACITY AS JUDGE, COURT OF FIRST INSTANCE OF CAVITE, BRANCH II,
CAVITE CITY, RESPONDENTS.

DECISION

PATAJO, J.:

This is an appeal from an order of the Court of First Instance of Cavite dismissing the
petition filed by petitioner-appellant Erlinda Reynoso Reyes to have her husband
Roberto L. Reyes declared an absentee.

In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the declaration of the
absence of her husband Roberto L. Reyes alleging that her husband had been absent
from their conjugal dwelling since April 1962 and since then had not been heard from
and his whereabouts unknown.  The petition further alleged that her husband left no will
nor any property in his name nor any debts.

The evidence presented by petitioner in support of her petition established that she and
Roberto L. Reyes were married on March 20, 1960; that sometime in April 1962 her
husband left the conjugal home due to some misunderstanding over personal matters;
that since then petitioner has not received any news about the whereabouts of her
husband; that they have not acquired any properties during their marriage and that they
have no outstanding obligation in favor of anyone; that her only purpose in filing the
petition is to establish the absence of her husband, invoking the provisions of Rule 107
of the New Rules of Court and Article 384 of the Civil Code.
After hearing the Court a quo dismissed the petition on the ground that since Roberto L.
Reyes left no properties there was no necessity to declare him judicially an absentee.  It
said:
"A perusal of Rule 107 of the Rules of Court on absentees reveals that it is based on the
provisions of Title XIV of the New Civil Code on absence.  And the reason and purpose
of the provisions of the New Civil Code on absence (Arts. 381 to 396) are: (1) The
interest of the person himself who has disappeared; (2) The rights of third parties
against the absentee, especially those who have rights which would depend upon the
death of the absentee; and (3) The general interest of society which may require that
property does not remain abandoned without someone representing it and without an
owner (Civil Code by Francisco, Vol. 2, pp. 930-931, 1953 Ed.).

It will thus be noted that said provisions of the New Civil Code are concerned with
absence only with reference to its effects on property (2 Manresa, 101-102, Civil Code
by Francisco, Vol. 2, p. 932, 1953 Ed.).  Article 384, New Civil Code, which is
reproduced from Article 184 of the old Code, and relied upon by herein petitioner, refers
to the second period or stage of absence, and specifically indicates the precise moment
when the same may begin.  Thus, this article provides that after the lapse of two (2)
years without any news about the absentee or since the receipt of the last news, and
five (5) years in case the absentee has left a person in charge of the administration of
his property, his absence may be declared by the Court.  The primordial purpose of this
declaration is to provide for an administrator of the property of the absentee.  It cannot
be said that because of the comma (,) between the words 'news' and 'and', the two-year
period mentioned in the first part of the law has no reference to or bearing on the
property of the absentee.  Manresa states that the only reason for the different periods
is because in one case case (2 years) the absentee has not left a person in charge of
the administration of his property, and in the other case (5 years) the absentee has
provided for his absence by appointing an administrator of his property dispensing in a
way the giving of news about himself (2 Manresa, 127-128).  It is worth to note, in this
connection, that the first period or stage of absence as covered by Article 381 of the
New Civil Code provides for provisional measures – the appointment by the Court of a
person to represent the absentee 'in all that may be necessary' - when a mere
presumption of his absence arises.  It should be noted that the appointment of a
'representative' of the absentee is for the protection of the interest of the latter.  This is
clear from the provisions of Article 382 which enjoins the judge to 'take the necessary
measures to safeguard the rights and interests of the absentee x x x.' Moreover, it is not
enough that a person is declared an absentee.  The law (see Articles 381, 382 and 383)
requires the judge to appoint a representative for the absentee precisely to safeguard
the property or interest of the latter.  It is thus imperative that the declaration of absence
be for a specific purpose, and that purpose can be no other than the protection of the
interest or property of the absentee.  Castan, in his commentary, emphatically states
that there must be an immediate necessity for the representation of the absentee in
some specific urgent matters (Vol. 1, pp. 182-183).

The same observation and commentary can be said of the corresponding

complimenting provisions of Rule 107 of the Rules of Court, particularly Sections 6 and
7 thereof which make it mandatory upon the Court to appoint a representative, trustee
or administrator who shall safeguard the rights and interest of the absentee.

Considering that neither the petition alleges, nor the evidence shows, that Roberto L.
Reyes has any rights, interest or property in the Philippines, there is no point in judicially
declaring him an absentee."
We affirm the order of the lower Court dismissing the petition.  As this Court said
in Jones vs. Hortiguela, 64 Phil. 197:
"x x x For the purposes of the civil marriage law, it is not necessary to have the former
spouse judicially declared an absentee.  The declaration of absence made in
accordance with the provisions of the Civil Code has for its sole purpose to enable the
taking of the necessary precautions for the administration of the estate of the absentee. 
For the celebration of civil marriage, however, the law only requires that the former
spouse has been absent for seven consecutive years at the time of the second
marriage, that the spouse present does not know his or her former spouse to be living,
that such former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage (section III, paragraph 2, General
Orders, No. 68)." (On page 183).
The need to have a person judicially declared an absentee is when he has properties
which have to be taken cared of or administered by a representative appointed by the
Court (Article 384, Civil Code); the spouse of the absentee is asking for separation of
property (Article 191, Civil Code) or his wife is asking the Court that the administration
of all classes of property in the marriage be transferred to her (Article 196, Civil Code). 
The petition to declare the husband an absentee and the petition to place the
management of the conjugal properties in the hands of the wife may be combined and
adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).

IN VIEW OF THE FOREGOING, judgment is hereby rendered AFFIRMING the order of

the lower Court dismissing the petition to declare Roberto L. Reyes an absentee.  With
costs against petitioner-appellant.

SO ORDERED.

Teehankee, (Chairman), Melencio-Herrera, Plana, Relova, Gutierrez, Jr., and De la

Fuente, JJ., concur.

[ G.R. NO. 163604, May 06, 2005 ]

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. THE HON. COURT OF
APPEALS (TWENTIETH DIVISION), HON. PRESIDING JUDGE FORTUNITO L.
MADRONA, RTC-BR. 35 AND APOLINARIA MALINAO JOMOC, RESPONDENTS.

DECISION

CARPIO-MORALES, J
In "In the Matter of Declaration of Presumptive Death of Absentee Spouse Clemente P.
Jomoc, Apolinaria Malinao Jomoc, petitioner," the Ormoc City, Regional Trial Court,
Branch 35, by Order of September 29, 1999,[1] granted the petition on the basis of the
Commissioner's Report[2] and accordingly declared the absentee spouse, who had left
his petitioner-wife nine years earlier, presumptively dead.

In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited Article 41, par.
2 of the Family Code. Said article provides
that for the purpose of contracting a valid subsequent marriage during the subsistence
of a previous marriage where the prior spouse had been absent for four consecutive
years, the spouse present must institute summary proceedings for
the declaration of presumptive death of the absentee spouse, without prejudice to the
effect of the reappearance of the absent spouse.

The Republic, through the Office of the Solicitor General, sought to appeal the trial
court's order by filing a Notice of Appeal.[3]

By Order of November 22, 1999s,[4] the trial court, noting that no record of appeal was

filed and served "as required by and pursuant to Sec. 2(a), Rule 41 of the 1997 Rules of
Civil Procedure, the present case being a special proceeding," disapproved the Notice
of Appeal.

The Republic's Motion for Reconsideration of the trial court's order of disapproval
having been denied by Order of January 13, 2000,[5] it filed a Petition for
Certiorari[6] before the Court of Appeals, it contending that the declaration of
presumptive death of a person under Article 41 of the Family Code is not a special
proceeding or a case of multiple or separate appeals requiring a record on appeal.

By Decision of May 5, 2004,[7] the Court of Appeals denied the Republic's petition on

procedural and substantive grounds in this wise:
At the outset, it must be stressed that the petition is not sufficient in form.
It failed to attach to its petition a certified true copy of
the assailed Order dated January 13, 2000 [denying its Motion for Reconsideration of
the November 22, 1999 Order disapproving its Notice of Appeal]. Moreover, the petition
questioned the [trial court's] Order dated August 15, 1999, which declared Clemente
Jomoc presumptively dead, likewise for having been issued with grave abuse of
discretion amounting to lack of jurisdiction, yet, not even a copy could be found in the
records. On this score alone, the petition should have been dismissed outright in
accordance with Sec. 3, Rule 46 of the Rules of Court.

However, despite the procedural lapses, the Court resolves to delve deeper into the
substantive issue of the validity/nullity of the assailed order.

The principal issue in this case is whether a petition for declaration
of the presumptive death of a person is in the nature of a special proceeding. If it
is, the period to appeal is 30 days and the party appealing must, in addition to a notice
of appeal, file with the trial court a record on appeal to perfect its appeal. Otherwise, if
the petition is an ordinary action, the period to appeal is 15 days from notice or decision
or final order appealed from and the appeal is perfected by filing a notice of appeal
(Section 3, Rule 41, Rules of Court).

As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is one by which a
party sues another for the enforcement or protection of a right, or the prevention of
redress of a wrong"
while a special proceeding under Section 3(c) of the same rule is defined as "a remedy 
by which a party seeks to establish a status, a right or a particular fact (Heirs of
Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).

Considering the aforementioned distinction, this Court finds

that the instant petition is in the nature of a special proceeding and not an ordinar
y action. The petition merely seeks for a declaration by the trial court of the
presumptive death of absentee spouse Clemente Jomoc. It does not seek the
enforcement or protection of a right or the prevention or redress of a wrong. Neither
does it involve a demand of right or a cause of action that can be enforced against any
person.

On the basis of the foregoing discussion, the subject Order dated January 13, 2000
denying OSG's Motion for Reconsideration of the Order dated November 22, 1999
disapproving its Notice of Appeal was correctly
issued. The instant petition, being in the nature of a special proceeding, OSG sho
uld have filed, in addition to its Notice of Appeal, a record on appeal in accordance
with Section 19 of the Interim Rules and Guidelines to Implement BP Blg. 129 and
Section 2(a), Rule 41 of the Rules of Court . . . (Emphasis and underscoring supplied)

The Republic (petitioner) insists that the declaration of presumptive death under Article
41 of the Family Code is not a special proceeding involving multiple or separate appeals
where a record on appeal shall be filed and served in like manner.

Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the cases
wherein multiple appeals are allowed and a record on appeal is required for an appeal
to be perfected. The petition for the declaration of presumptive death of an absent
spouse not being included in the enumeration, petitioner contends that a mere notice of
appeal suffices.

By Resolution of December 15, 2004,[8] this Court, noting that copy of the September
27, 2004 Resolution[9] requiring respondent to file her comment on the petition was
returned unserved with postmaster's notation "Party refused," Resolved to consider that
copy deemed served upon her.

The pertinent provisions on the General Provisions on Special Proceedings, Part II of

the Revised Rules of Court entitled SPECIAL PROCEEDINGS, read:
 RULE 72
SUBJECT MATTER AND APPLICABILITY
OF GENERAL RULES

Section 1. Subject matter of special proceedings. – Rules of special proceedings are

provided for in the following:
(a) Settlement of estate of deceased persons;
(b) Escheat;
(c) Guardianship and custody of children;
(d) Trustees;
(e) Adoption;
(f) Rescission and revocation of adoption;
(g) Hospitalization of insane persons;
(h) Habeas corpus;
(i) Change of name;
(j) Voluntary dissolution of corporations;
(k) Judicial approval of voluntary recognition of minor natural children;
(l) Constitution of family home;
(m) Declaration of absence and death;
(n) Cancellation or correction of entries in the civil registry.

Sec. 2. Applicability of rules of civil actions. – In the absence of special provisions, the
rules provided for in ordinary actions shall be, as far as practicable, applicable in special
proceedings. (Underscoring supplied)
The pertinent provision of the Civil Code on presumption of death provides:
Art. 390. After an absence of seven years, it being unknown whether or not the
absentee still lives, he shall
be presumed dead for all purposes, except for those of succession.

x x x (Emphasis and underscoring supplied)

Upon the other hand, Article 41 of the Family Code, upon which the trial court anchored
its grant of the petition for the declaration of presumptive death of the absent spouse,
provides:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouses had been absent for four consecutive years and the spouse
present had a well-founded belief that the absent spouses was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.

For the purpose pf contracting the subsequent marriage under the preceding paragraph,
the spouses present must institute a summary proceeding as provided in this Code for t
he declaration of presumptive death of the absentee, without prejudice to the effect of a
reappearance of the absent spouse. (Emphasis and underscoring supplied)
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, invoked by the
trial court in disapproving petitioner's Notice of Appeal, provides:
Sec. 2. Modes of appeal. -

(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse
party. No record on appeal shall be required except in special proceedings and other 
cases of multiple or separate appeals where the law or these Rules so require. In
such cases, the record on appeal shall be filed and served in like manner. (Emphasis
and underscoring supplied)
xxx
By the trial court's citation of Article 41 of the Family Code, it is gathered that the petition
of Apolinaria Jomoc to have her absent spouse declared presumptively
dead had for its purpose her desire to contract a valid subsequent marriage. Ergo, the
petition for that purpose is a "summary proceeding," following above-quoted Art. 41,
paragraph 2 of the Family Code.

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL PROCEEDING IN

THE FAMILY LAW, contains the following provision, inter alia:
xxx

Art. 238. Unless modified by the Supreme Court, the procedural rules in this Title shall
apply in all cases provided for in this Codes requiring summary court proceedings. S
uch cases shall be decided in an expeditious manner without regard to technical
rules. (Emphasis and underscoring supplied)
x x x,
there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a
summary proceeding under the Family Code, not a special proceeding under the
Revised Rules of Court appeal for which calls for the filing of a Record on Appeal. It
being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial
court's order sufficed.

That the Family Code provision on repeal, Art. 254, provides as follows:
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of Republic Act No. 386,
otherwise known as the Civil Code of the Philippines, as amended, and Articles 17, 18,
19, 27, 28, 29, 30, 31, 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise
known as the Child and Youth Welfare Code, as amended,
and all laws, decrees, executive orders, proclamations rules and regulations, or parts th
ereof, inconsistent therewith are hereby repealed, (Emphasis and underscoring
supplied),
seals the case in petitioner's favor.

Finally, on the alleged procedural flaw in petitioner's petition before the appellate court.
Petitioner's failure to attach to his petition before the appellate court a copy of the trial
court's order denying its motion for reconsideration of the disapproval of its Notice of
Appeal is not necessarily fatal, for the rules of procedure are not to be applied in a
technical sense. Given the issue raised before it by petitioner, what the appellate court
should have done was to direct petitioner to comply with the rule.

As for petitioner's failure to submit copy of the trial court's order granting the petition for
declaration of presumptive death, contrary to the appellate court's observation that
petitioner was also assailing it, petitioner's 8-page petition [10] filed in said court does not
so reflect, it merely having assailed the order disapproving the Notice of Appeal.

WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is

hereby REVERSED and SET ASIDE. Let the case be REMANDED to it for appropriate
action in light of the foregoing discussion.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

[ G.R. No. 84250, July 20, 1992 ]

DAYA MARIA TOL-NOQUERA, PETITIONER, VS. HON. ADRIANO R. VILLAMOR,
PRESIDING JUDGE, BRANCH XVI, REGIONAL TRIAL COURT, 8TH JUDICIAL
REGION, NAVAL, LEYTE, AND DIOSDADO TOL, RESPONDENTS.

DECISION

CRUZ, J.:

Questioned in this action is the dismissal of a petition filed by Daya Maria-Tol Noquera
for appointment as administratrix of the property of the absentee Remigio Tol.
In Special Proceedings No. P-056, which was filed in December 1986, Daya Maria-Tol
alleged that she was the acknowledged natural child of Remigio Tol, who had been
missing since 1984. She claimed that a certain Diosdado Tol had fraudulently secured a
free patent over Remigio's property and had obtained title thereto in his name. She was
seeking the administration of the absentee's estate in order that she could recover the
said property.
The petition was opposed by Diosdado Tol, who argued that Daya Maria Tol was not an
acknowledged natural child of the absentee and that the property sought to be
administered was covered by an original certificate of title issued in his name.
On March 31, 1987, the trial court dismissed the petition on the ground that it was a
collateral attack on a Torrens title. The court also declared in effect that it was useless
to appoint an administrator in view of the claim of a third person that he was the owner
of the absentee's property.
The petitioner's motion for reconsideration having been denied, she filed a notice of
appeal with this Court on June 4, 1984. However, inasmuch as only questions of law
were involved, we resolved to require the petitioner to seek review on certiorari under
Rule 45 of the Rules of Court within 15 days from notice.
In the petition now before us, it is argued that the original petition in the trial court was
not intended as a collateral attack on a Torrens title; hence, Art. 389 of the Civil
Code[1] was not applicable.
The private respondent, on the other hand, contends that since the petitioner claims she
is an illegitimate child of Remigio Tol, she is prohibited under Art. 992 of the Civil
Code[2] from inheriting ab intestato from the relatives of her father.
The private respondent likewise questions the necessity of her appointment for the
purpose only of having the title annulled. He adds that in view of her allegations of
fraud, she should have sued for the annulment of the title within a period of one year,
which had already expired. Lastly, the decision of the trial court had already become
final and executory because 76 days had already elapsed from the date of receipt of the
said decision on May 21, 1987, to the date the petition was filed before this Court on
August 5, 1987.
A study of the record reveals that the lower court was rather hasty in dismissing the
petition.
As we see it, the petition was not a collateral attack on a Torrens title. The petitioner did
say there was a need to appoint an administrator to prevent the property from being
usurped, but this did not amount to a collateral attack on the title. The alleged fraudulent
issuance of title was mentioned as a justification for her appointment as administrator.
But there was nothing in the petition to indicate that the petitioner would attack the title
issued to Diosdado in the same proceeding. In fact, the petitioner declared that
whatever remedy she might choose would be pursued in another venue, in a
proceeding entirely distinct and separate from her petition for appointment as
administratrix.
Regarding the Torrens certificate of title to the disputed property which was presented
to defeat the petitioner's appointment, we feel that the position of trial court was rather
ambivalent. For while relying on such title to justify the dismissal of the petition, it
suggested at the same time that it could be attacked as long as this was not done in the
proceeding before it.
The private respondent's arguments that the petitioner cannot inherit ab intestato from
the legitimate parents of the absentee is immaterial to this case. Her disqualification as
an heir to her supposed grandparents does not inhibit her from petitioning for a
declaration of absence or to be appointed as an administratrix of the absentee's estate.
The relevant laws on the matter are found in the following provisions of the Civil Code:
Art. 381. When a person disappears from his domicile his whereabouts being unknown,
and without leaving an agent to administer his property the judge, at the instance of an
interested party, a relative, or a friend, may appoint a person to represent him in all that
may be necessary.
This same rule shall be observed when under similar circumstances the power
conferred by the absentee has expired.
Art. 382. The appointment referred to in the preceding article having been made, the
judge shall take the necessary measures to safeguard the rights and interest of the
absentee and shall specify the powers, obligations and remuneration of his
representatives, regulating them according to the circumstances, by the rules
concerning guardians.
Art. 383. In the appointment of a representative, the spouse present shall be preferred
when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any competent
person may be appointed by the court.
Art. 384. Two years having elapsed without any news about the absentee or since the
receipt of the last news, and five years in case the absentee has left a person in charge
of the administration of his property, his absence may be declared.
Art. 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated to
the condition of his death.
Art. 386. The judicial declaration of absence shall not take effect until six months after
its publication in a newspaper of general circulation.
It is not necessary that a declaration of absence be made in a proceeding separate from
and prior to a petition for administration. This was the ruling in Reyes v. Alejandro,
[3]
 reiterating Pejer v. Martinez.[4] In the latter case, the court declared that the petition to
declare the husband an absentee and the petition to place the management of the
conjugal properties in the hands of the wife could be combined and adjudicated in the
same proceeding.
The purpose of the cited rules is the protection of the interests and property of the
absentee, not of the administrator. Thus, the question of whether the administrator may
inherit the property to be administered is not controlling. What is material is whether she
is one of those allowed by law to seek the declaration of absence of Remigio Tol and
whether she is competent to be appointed as administratrix of his estate.
The issue of whether or not the property titled to Diosdado Tol is really owned by him
should be resolved in another proceeding. The right of Daya Maria Tol to be appointed
administratrix cannot be denied outright by reason alone of such issue.
Even if it be assumed that the title obtained by Diosdado Tol is already indefeasible
because of the lapse of the one-year period for attacking it on the ground of fraud, there
are still other remedies available to one who is unjustly deprived of his property. One of
these is a claim for reconveyance, another a complaint for damages.[5] The petitioner
can avail herself of such remedies if she is appointed administratrix of the estate of the
absentee.
Finally, we find that the appeal was perfected seasonably. Notice of appeal was filed on
June 4, 1987, within the 15-day extension of the period to appeal as granted by this
Court in its resolution dated July 8,1987.
WHEREFORE, the petition is GRANTED. This case is hereby REMANDED to the court
of origin for determination of the legal personality of Daya Maria Tol to petition the
declaration of Remigio Tol's absence and of her competence to be
appointed as administratrix of his estate.
SO ORDERED.
 [ G.R. No. 118671, January 29, 1996 ]
THE ESTATE OF HILARIO M. RUIZ, EDMOND RUIZ, EXECUTOR, PETITIONER, VS.
THE COURT OF APPEALS (FORMER SPECIAL SIXTH DIVISION), MARIA
PILAR RUIZ-MONTES, MARIA CATHRYN RUIZ, CANDICE ALBERTINE RUIZ,
MARIA ANGELINE RUIZ AND THE PRESIDING JUDGE OF THE REGIONAL TRIAL
COURT OF PASIG, BRANCH 156, RESPONDENTS.

DECISION

PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated
November 10, 1994 and the resolution dated January 5, 1995 of the Court of Appeals in
CA-G.R. SP No. 33045.

The facts show that on June 27, 1987, Hilario M. Ruiz[1] executed a holographic will
naming as his heirs his only son, Edmond Ruiz, his adopted daughter, private
respondent Maria Pilar Ruiz Montes, and his three granddaughters, private respondents
Maria Cathryn, Candice Albertine and Maria Angeline, all children of Edmond Ruiz. The
testator bequeathed to his heirs substantial cash, personal and real properties and
named Edmond Ruiz executor of his estate.[2]

On April 12, 1988, Hilario Ruiz died. Immediately thereafter, the cash component of

his estate was distributed among Edmond Ruiz and private respondents in accordance
with the decedent’s will. For unbeknown reasons, Edmond, the named executor, did not
take any action for the probate of his father’s holographic will.

On June 29, 1992, four years after the testator’s death, it was private respondent Maria
Pilar Ruiz Montes who filed before the Regional Trial Court, Branch 156, Pasig, a
petition for the probate and approval of Hilario Ruiz’s will and for the issuance of letters
testamentary to Edmond Ruiz.[3]Surprisingly, Edmond opposed the petition on the
ground that the will was executed under undue influence.

On November 2, 1992, one of the properties of the estate - the house and lot at No. 2
Oliva Street, Valle Verde IV, Pasig which the testator bequeathed to Maria Cathryn,
Candice Albertine and Maria Angeline[4]-- was leased out by Edmond Ruiz to third
persons.

On January 19, 1993, the probate court ordered Edmond to deposit with the Branch
Clerk of Court the rental deposit and payments totalling P540,000.00 representing the
one-year lease of the Valle Verde property. In compliance, on January 25, 1993,
Edmond turned over the amount of P348,583.56, representing the balance of the rent
after deducting P191,416.14 for repair and maintenance expenses on the estate.[5]

In March 1993, Edmond moved for the release of P50,000.00 to pay the
real estate taxes on the real properties of the estate. The probate court approved the
release of P7,722.00.[6]

On May 14, 1993, Edmond withdrew his opposition to the probate of the will. 
Consequently, the probate court,  on May 18, 1993, admitted the will to probate and
ordered the issuance of letters testamentary to Edmond conditioned upon the filing of a
bond in the amount of P50,000.00.  The letters testamentary were issued on June 23,
1993.

On July 28, 1993, petitioner Testate Estate of Hilario Ruiz as executor, filed an "Ex-

Parte Motion for Release of Funds." It prayed for the release of the rent payments
deposited with the Branch Clerk of Court.  Respondent Montes opposed the motion and
concurrently filed a "Motion for Release of Funds to Certain Heirs" and Motion for
Issuance of Certificate of Allowance of Probate Will." Montes prayed for the release of
the said rent payments to Maria Cathryn, Candice Albertine and Maria Angeline and for
the distribution of the testator’s properties, specifically the Valle Verde property and the
Blue Ridge apartments, in accordance with the provisions of the holographic will.

On August 26, 1993, the probate court denied petitioner’s motion for release of funds
but granted respondent Montes’ motion in view of petitioner’s lack of opposition.  It thus
ordered the release of the rent payments to the decedent’s three granddaughters.  It
further ordered the delivery of the titleds to and possession of the properties
bequeathed to the three granddaughters and respondent Montes upon the filing of a
bond of P50,000.00.

Petitioner moved for reconsideration alleging that he actually filed his opposition to
respondent Montes’ motion for release of rent payments which opposition the court
failed to consider.  Petitioner likewise reiterated his previous motion for release of funds.

On November 23, 1993, petitioner, through counsel, manifested that he was

withdrawing his motion for release of funds in view of the fact that the lease contract
over Valle Verde property had been renewed for another year. [7]

Despite petitioner’s manifestation, the probate court, on December 22, 1993, ordered
the release of the funds to Edmond but only "such amount as may be necessary to
cover the espenses of administration and allowanceas for support" of the testator’s
three granddaughters subject to collation and deductible from their share in the
inheritance.  The court, however, held in abeyance the release of the titles to
respondent Montes and the three granddaughters until the lapse of six months from the
date of firast publication of the notice to creditors. [8]  The Court stated thus:
"xxx                    xxx                         xxx

After consideration of the arguments set forth thereon by the parties, the court resolves
to allow Administrator Edmond M. Ruiz to take possession of the rental payments
deposited with the Clerk of Court, Pasig Regional Trial Court, but only such amount as
may be necessary to cover the expenses of administration and allowances for support
of Maria Cathryn Veronique, Candice Albertine and Maria Angeli, which are subject to
collation and deductible from the share in the inheritance of said heirs and insofar as
they exceed the fruits or rents pertaining to them.

As to the release of the titles bequeathed to petitioner Maria Pilar Ruiz-Montes and the
above-named heirs, the same is hereby reconsidered and held in abeyance until the
lapse of six (6) months from the date of first publication of Notice to Creditors.

WHEREFORE, Administrator Edmond M. Ruiz is hereby ordered to submit an

accounting of the expenses necessary for administration including provisions for the
support Of Maria Cathryn Veronique Ruiz, Candice Albertine Ruiz and Maria
Angeli Ruiz before the amount required can be withdrawn and cause the publication of
the notice to creditors with reasonable dispatch.[9]

Petitioner assailed this order before the Court of Appeals. Finding no grave abuse of
discretion on the part of respondent judge, the appellate court dismissed the petition
and sustained the probate court’s order in a decision dated November 10, 1994[10] and a
resolution dated January 5, 1995.[11]

Hence, this petition.

Petitioner claims that:

"THE PUBLIC RESPONDENT COURT OF APPEALS COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
AFFIRMING AND CONFIRMING THE ORDER OF RESPONDENT REGIONAL TRIAL
COURT OF PASIG, BRANCH 156, DATED DECEMBER 22, 1993, WHICH WHEN
GIVEN DUE COURSE AND IS EFFECTED WOULD: (1) DISALLOW THE
EXECUTOR/ADMINISTRATOR OF THE ESTATE OF THE LATE HILARIO M. RUIZ TO
TAKE POSSESSION OF ALL THE REAL AND PERSONAL PROPERTIES OF
THE ESTATE; (2) GRANT SUPPORT, DURING THE PENDENCY OF THE
SETTLEMENT OF AN ESTATE, TO CERTAIN PERSONS NOT ENTITLED THERETO;
AND (3) PREMATURELY PARTITION AND DISTRIBUTE THE ESTATE PURSUANT
TO THE PROVISIONS OF THE HOLOGRAPHIC WILL EVEN BEFORE ITS INTRINSIC
VALIDITY HAS BEEN DETERMINED, AND DESPITE THE EXISTENCE OF UNPAID
DEBTS AND OBLIGATIONS OF THE ESTATE."[12]

The issue for resolution is whether the probate court, after admitting the will to probate
but before payment of the estate’s debts and obligations, has the authority: (1) to grant
an allowance from the funds of the estate for the support of the testator’s grandchildren;
(2) to order the release of the titles to certain heirs; and (3) to grant possession of all
properties of the estate to the executor of the will.

On the matter of allowance, Section 3 of Rule 83 of the Revised Rules of Court

provides:
"Sec. 3. Allowance to widow and family. - The widow and minor or incapacitated
children of a deceased person, during the settlement of the estate, shall receive
therefrom under the direction of the court, such allowance as are provided by law."

Petitioner alleges that this provision only gives the widow and the minor or incapacitated
children of the deceased the right to receive allowances for support during the
settlement of estate proceedings. He contends that the testator’s three granddaughters
do not qualify for an allowance because they are not incapacitated and are no longer
minors but of legal age, married and gainfully employed. In addition, the provision
expressly states "children" of the deceased which excludes the latter’s grandchildren.

It is settled that allowances for support under Section 3 of Rule 83 should not be limited
to the "minor or incapacitated" children of the deceased. Article 188 [13]of the Civil Code
of the Philippines, the substantive law in force at the time of the testator’s death,
provides that during the liquidation of the conjugal partnership, the deceased’s
legitimate spouse and children, regardless of their age, civil status or gainful
employment, are entitled to provisional support from the funds of the estate.[14] The law
is rooted on the fact that the right and duty to support, especially the right to education,
subsist even beyond the age of majority.[15]

Be that as it may, grandchildren are not entitled to provisional support from the funds of
the decedent’s estate. The law clearly limits the allowance to "widow and children" and
does not extend it to the deceased’s grandchildren, regardless of their minority or
incapacity.[16] It was error, therefore, for the appellate court to sustain the probate court’s
order granting an allowance to the grandchildren of the testator pending settlement of
his estate.

Respondent courts also erred when they ordered the release of the titles of the
bequeathed properties to private respondents six months after the date of first
publication of notice to creditors. An order releasing titles to properties of
the estate amounts to an advance distribution of the estate which is allowed only under
the following conditions:
"Sec. 2. Advance distribution in special proceedings. - Nothwithstanding a pending
controversy or appeal in proceedings to settle the estate of a decedent, the court may,
in its discretion and upon such terms as it may deem proper and just, permit that such
part of the estate as may not be affected by the controversy or appeal be distributed
among the heirs or legatees, upon compliance with the conditions set forth in Rule 90 of
these Rules."[17]

And Rule 90 provides that:

"Sec. 1. When order for distribution of residue made. - When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in accordance with law, have been
paid, the court, on the application of the executor or administrator, or of a person
interested in the estate, and after hearing upon notice, shall assign the residue of
the estate to the persons entitled to the same, naming them and the proportions, or
parts, to which each is entitled, and such persons may demand and recover their
respective shares from the executor or administrator, or any other person having the
same in his possession. If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares to which each
person is entitled under the law, the controversy shall be heard and decided as in
ordinary cases.
No distribution shall be allowed until the payment of the obligations above-mentioned
has been made or provided for, unless the distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of said obligations within such
time as the court directs.[18]

In settlement of estate proceedings, the distribution of the estate properties can only be

made: (1) after all the debts, funeral charges, expenses of administration, allowance to
the widow, and estate tax have been paid; or (2) before payment of said obligations only
if the distributees or any of them gives a bond in a sum fixed by the court conditioned
upon the payment of said obligations within such time as the court directs, or when
provision is made to meet those obligations.[19]

In the case at bar, the probate court ordered the release of the titles to the Valle Verde
property and the Blue Ridge apartments to the private respondents after the lapse of six
months from the date of first publication of the notice to creditors. The questioned order
speaks of "notice" to creditors, not payment of debts and obligations.
Hilario Ruiz allegedly left no debts when he died but the taxes on his estate had not
hitherto been paid, much less ascertained. The estate tax is one of those obligations
that must be paid before distribution of the estate.  If not yet paid, the rule requires that
the distributees post a bond or make such provisions as to meet the said tax obligation
in proportion to their respective shares in the inheritance. [20] Notably, at the time the
order was issued the properties of the estate had not yet been inventoried and
appraised.

It was also too early in the day for the probate court to order the release of the titles six
months after admitting the will to probate.  The probate of a will is conclusive as to its
due execution and extrinsic validity[21] and settles only the question of whether the
testator, being of sound mind, freely executed it in accordance with the formalities
prescribed by law.[22] Questions as to the intrinsic validity and efficacy of the provisions
of the will, the legality of any devise or legacy may be raised even after the will has
been authenticated.[23]

The intrinsic validity of Hilario’s holographic will was controverted by petitioner before
the probate court in his Reply to Montes’ Opposition to his motion for release of
funds[24] and his motion for reconsideration of the August 26, 1993 order of the said
court.[25] Therein, petitioner assailed the distributive shares of the devisees and legatees
inasmuch as his father’s will included the estate of his mother and allegedly impaired his
legitime as an intestate heir of his mother. The Rules provide that if there is a
controversy as to who are the lawful heirs of the decedent and their distributive shares
in his estate, the probate court shall proceed to hear and decide the same as in ordinary
cases.[26]

Still and all, petitioner cannot correctly claim that the assailed order deprived him of his
right to take possession of all the real and personal properties of the estate. The right of
an executor or administrator to the possession and management of the real and
personal properties of the deceased is not absolute and can only be exercised "so long
as it is necessary for the payment of the debts and expenses of
administration,"[27] Section 3 of Rule 84 of the Revised Rules of Court explicitly provides:
"Sec. 3. Executor or administrator to retain whole estate to pay debts, and to
administer estate not willed. - An executor or administrator shall have the right to the
possession and management of the real as well as the personal estate of the
deceased so long as it is necessary for the payment of the debts and expenses for
administration."[28]

When petitioner moved for further release of the funds deposited with the clerk of court,
he had been previously granted by the probate court certain amounts for repair and
maintenance expenses on the properties of the estate, and payment of the
real estate taxes thereon. But petitioner moved again for the release of additional funds
for the same reasons he previously cited. It was correct for the probate court to require
him to submit an accounting of the  necessary expenses for administration before
releasing any further money in his favor.

It was relevantly noted by the probate court that petitioner had deposited with it only a
portion of the one-year rental income from the Valle Verde property. Petitioner did not
deposit its succeeding rents after renewal of the lease. [29] Neither did he render an
accounting of such funds.

Petitioner must be reminded that his right of ownership over the properties of his father
is merely inchoate as long as the estate has not been fully settled and partitioned. [30] As
executor, he is a mere trustee of his father’s estate. The funds of the estate in his hands
are trust funds and he is held to the duties and responsibilities of a trustee of the highest
order.[31] He cannot unilaterally assign to himself and possess all his parents’ properties
and the fruits thereof without first submitting an inventory and appraisal of all real and
personal properties of the deceased, rendering a true account of his administration, the
expenses of administration, the amount of the obligations and estate tax, all of which
are subject to a determination by the court as to their veracity, propriety and justness. [32]

IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. SP

No. 33045 affirming the order dated December 22, 1993 of the Regional Trial Court,
Branch 156, Pasig in SP Proc. No. 10259 are affirmed with the modification that those
portions of the order granting an allowance to the testator’s grandchildren and ordering
the release of the titles to the private respondents upon notice to creditors are annulled
and set aside.

Respondent judge is ordered to proceed with dispatch in the proceedings below.

SO ORDERED.

Regalado (Chairman), Romero, and Mendoza, JJ., concur.

G.R. No. 169454               December 27, 2007

THE HEIRS OF MARCELINO DORONIO, NAMELY: REGINA AND FLORA, BOTH
SURNAMED DORONIO,Petitioners, 
vs.
HEIRS OF FORTUNATO DORONIO, NAMELY: TRINIDAD ROSALINA DORONIO-
BALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA
ALCANTARA-MANALO, Respondents.
DECISION
REYES, R.T., J.:
For Our review on certiorari is the Decision1 of the Court of Appeals (CA) reversing
that2 of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta City, Pangasinan,
in an action for reconveyance and damages. The CA declared respondents as rightful
owners of one-half of the subject property and directed petitioners to execute a
registerable document conveying the same to respondents.
The Facts
Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered
owners of a parcel of land located at Barangay Cabalitaan, Asingan, Pangasinan
covered by Original Certificate of Title (OCT) No. 352. 3The courts below described it as
follows:
Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con
propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y
Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el
camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos
metros cuadrados.4
The spouses had children but the records fail to disclose their number. It is clear,
however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were
among them and that the parties in this case are their heirs. Petitioners are the heirs
of Marcelino Doronio, while respondents are the heirs of Fortunato Doronio.
On April 24, 1919, a private deed of donation propter nuptias 5 was executed by spouses
Simeon Doronio and Cornelia Gante in favor of Marcelino Doronio and the latter’s wife,
Veronica Pico. One of the properties subject of said deed of donation is the one that it
described as follows:
Fourth – A piece of residential land located in the barrio of Cabalitian but we did not
measure it, the area is bounded on the north by Gabriel Bernardino; on the east by
Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to
Villasis. Constructed on said land is a house of light materials – also a part of the dowry.
Value …200.00.6
It appears that the property described in the deed of donation is the one covered by
OCT No. 352. However, there is a significant discrepancy with respect to the identity of
the owner of adjacent property at the eastern side. Based on OCT No. 352, the adjacent
owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of
donation, the owner of the adjacent property is Fortunato Doronio. Furthermore, said
deed of donation remained a private document as it was never notarized. 7
Both parties have been occupying the subject land for several decades 8 although they
have different theories regarding its present ownership. According to petitioners, they
are now the owners of the entire property in view of the private deed of donation propter
nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico.
Respondents, on the other hand, claim that only half of the property was actually
incorporated in the said deed of donation because it stated that Fortunato Doronio,
instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent
property at the eastern side. Respondents posit that the donors respected and
segregated the possession of Fortunato Doronio of the eastern half of the land. They
are the ones who have been possessing said land occupied by their predecessor,
Fortunato Doronio.
Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico
filed, on January 11, 1993, before the RTC in Urdaneta, Pangasinan a petition "For the
Registration of a Private Deed of Donation" 9docketed as Petition Case No. U-920. No
respondents were named in the said petition 10 although notices of hearing were posted
on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and
Lingayen.11
During the hearings, no one interposed an objection to the petition. 12 After the RTC
ordered a general default,13the petition was eventually granted on September 22, 1993.
This led to the registration of the deed of donation, cancellation of OCT No. 352 and
issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of
Marcelino Doronio and Veronica Pico.14 Thus, the entire property was titled in the
names of petitioners’ predecessors.
On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the
form of a petition in the same Petition Case No. U-920. The petition was for the
reconsideration of the decision of the RTC that ordered the registration of the subject
deed of donation. It was prayed in the petition that an order be issued declaring null and
void the registration of the private deed of donation and that TCT No. 44481 be
cancelled. However, the petition was dismissed on May 13, 1994 on the ground that the
decision in Petition Case No. U-920 had already become final as it was not appealed.
Determined to remain in their possessed property, respondent heirs of Fortunato
Doronio (as plaintiffs) filed an action for reconveyance and damages with prayer for
preliminary injunction15 against petitioner heirs of Marcelino Doronio (as defendants)
before the RTC, Branch 45, Anonas, Urdaneta City, Pangasinan. Respondents
contended, among others, that the subject land is different from what was donated as
the descriptions of the property under OCT No. 352 and under the private deed of
donation were different. They posited that spouses Simeon Doronio and Cornelia Gante
intended to donate only one-half of the property.
During the pre-trial conference, the parties stipulated, among others, that the property
was originally covered by OCT No. 352 which was cancelled by TCT No. 44481. They
also agreed that the issues are: (1) whether or not there was a variation in the
description of the property subject of the private deed of donation and OCT No. 352; (2)
whether or not respondents had acquired one-half of the property covered by OCT No.
352 by acquisitive prescription; (3) whether or not the transfer of the whole property
covered by OCT No. 352 on the basis of the registration of the private deed of donation
notwithstanding the discrepancy in the description is valid; (4) whether or not
respondents are entitled to damages; and (5) whether or not TCT No. 44481 is valid. 16
RTC Decision
After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio
(defendants). It concluded that the parties admitted the identity of the land which they all
occupy;17 that a title once registered under the torrens system cannot be defeated by
adverse, open and notorious possession or by prescription; 18 that the deed of donation
in consideration of the marriage of the parents of petitioners is valid, hence, it led to the
eventual issuance of TCT No. 44481 in the names of said parents; 19 and that
respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they
are not the rightful owners of the portion of the property they are claiming.20
The RTC disposed of the case, thus:
WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING
the herein Complaint filed by plaintiffs against defendants. 21
Disagreeing with the judgment of the RTC, respondents appealed to the CA. They
argued that the trial court erred in not finding that respondents’ predecessor-in-interest
acquired one-half of the property covered by OCT No. 352 by tradition and/or intestate
succession; that the deed of donation dated April 26, 1919 was null and void; that
assuming that the deed of donation was valid, only one-half of the property was actually
donated to Marcelino Doronio and Veronica Pico; and that respondents acquired
ownership of the other half portion of the property by acquisitive prescription. 22
CA Disposition
In a Decision dated January 26, 2005, the CA reversed the RTC decision with the
following disposition:
WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET
ASIDE. Declaring the appellants as rightful owners of one-half of the property now
covered by TCT No. 44481, the appellees are hereby directed to execute a registerable
document conveying the same to appellants.
SO ORDERED.23
The appellate court determined that "(t)he intention to donate half of the disputed
property to appellees’ predecessors can be gleaned from the disparity of technical
descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio and
Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919
in favor of appellees’ predecessors."24
The CA based its conclusion on the disparity of the following technical descriptions of
the property under OCT No. 352 and the deed of donation, to wit:
The court below described the property covered by OCT No. 352 as follows:
"Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con
propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y
Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el
camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos
metros cuadrados."
On the other hand, the property donated to appellees’ predecessors was described in
the deed of donation as:
"Fourth – A piece of residential land located in the barrio of Cabalitian but we did not
measure it, the area is bounded on the north by Gabriel Bernardino; on the east by
Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to
Villasis. Constructed on said land is a house of light materials – also a part of the dowry.
Value …200.00."25 (Emphasis ours)
Taking note "that the boundaries of the lot donated to Marcelino Doronio and Veronica
Pico differ from the boundaries of the land owned by spouses Simeon Doronio and
Cornelia Gante," the CA concluded that spouses Simeon Doronio and Cornelia Gante
donated only half of the property covered by OCT No. 352. 26
Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence,
the CA pointed out that, "while the OCT is written in the Spanish language, this
document already forms part of the records of this case for failure of appellees to
interpose a timely objection when it was offered as evidence in the proceedings a quo. It
is a well-settled rule that any objection to the admissibility of such evidence not raised
will be considered waived and said evidence will have to form part of the records of the
case as competent and admitted evidence." 27
The CA likewise ruled that the donation of the entire property in favor of petitioners’
predecessors is invalid on the ground that it impairs the legitime of respondents’
predecessor, Fortunato Doronio. On this aspect, the CA reasoned out:
Moreover, We find the donation of the entire property in favor of appellees’
predecessors invalid as it impairs the legitime of appellants’ predecessor. Article 961 of
the Civil Code is explicit. "In default of testamentary heirs, the law vests the inheritance,
x x x, in the legitimate x x x relatives of the deceased, x x x." As Spouses Simeon
Doronio and Cornelia Gante died intestate, their property shall pass to their lawful heirs,
namely: Fortunato and Marcelino Doronio. Donating the entire property to Marcelino
Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to
divesting the latter of his rightful share in his parents’ inheritance. Besides, a person’s
prerogative to make donations is subject to certain limitations, one of which is that he
cannot give by donation more than what he can give by will (Article 752, Civil Code). If
he does, so much of what is donated as exceeds what he can give by will is deemed
inofficious and the donation is reducible to the extent of such excess. 28
Petitioners were not pleased with the decision of the CA. Hence, this petition under Rule
45.
Issues
Petitioners now contend that the CA erred in:
1. DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE
NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF.
2. (RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS
DONATED TO THE PREDECESSORS-IN-INTEREST OF THE HEREIN
APPELLANTS.
 3. (ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS
INNOFICIOUS, IS PREMATURE, AND THUS IT IS ILLEGAL AND
UNPROCEDURAL.29
Our Ruling
OCT No. 352 in Spanish Although Not
Translated into English or Filipino Is
Admissible For Lack of Timely Objection
Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is
written in Spanish language. They posit that "(d)ocumentary evidence in an unofficial
language shall not be admitted as evidence, unless accompanied with a translation into
English or Filipino."30
The argument is untenable. The requirement that documents written in an unofficial
language must be accompanied with a translation in English or Filipino as a prerequisite
for its admission in evidence must be insisted upon by the parties at the trial to enable
the court, where a translation has been impugned as incorrect, to decide the
issue.31 Where such document, not so accompanied with a translation in English or
Filipino, is offered in evidence and not objected to, either by the parties or the court, it
must be presumed that the language in which the document is written is understood by
all, and the document is admissible in evidence. 32
Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides:
SECTION 36. Objection. – Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a witness
shall be made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of
the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified. (Emphasis ours)
Since petitioners did not object to the offer of said documentary evidence on time, it is
now too late in the day for them to question its admissibility. The rule is that evidence
not objected may be deemed admitted and may be validly considered by the court in
arriving at its judgment.33 This is true even if by its nature, the evidence is inadmissible
and would have surely been rejected if it had been challenged at the proper time. 34
As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit "A,"
that is, OCT No. 352 in their comment35 on respondents’ formal offer of documentary
evidence. In the said comment, petitioners alleged, among others, that "Exhibits A, B, C,
D, E, F and G, are admitted but not for the purpose they are offered because these
exhibits being public and official documents are the best evidence of that they contain
and not for what a party would like it to prove." 36 Said evidence was admitted by the
RTC.37 Once admitted without objection, even though not admissible under an
objection, We are not inclined now to reject it.38 Consequently, the evidence that was
not objected to became property of the case, and all parties to the case are considered
amenable to any favorable or unfavorable effects resulting from the said evidence. 39
Issues on Impairment of Legitime
Should Be Threshed Out in a Special
Proceeding, Not in Civil Action for
Reconveyance and Damages
On the other hand, petitioners are correct in alleging that the issue regarding the
impairment of legitime of Fortunato Doronio must be resolved in an action for the
settlement of estates of spouses Simeon Doronio and Cornelia Gante. It may not be
passed upon in an action for reconveyance and damages. A probate court, in the
exercise of its limited jurisdiction, is the best forum to ventilate and adjudge the issue of
impairment of legitime as well as other related matters involving the settlement of
estate.40
An action for reconveyance with damages is a civil action, whereas matters relating to
settlement of the estate of a deceased person such as advancement of property made
by the decedent, partake of the nature of a special proceeding. Special proceedings
require the application of specific rules as provided for in the Rules of Court.41
As explained by the Court in Natcher v. Court of Appeals: 42
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special
proceedings, in this wise:
x x x a) A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to specific rules prescribed for a special civil action.
xxxx
c) A special proceeding is a remedy by which a party seeks to establish a status, a right
or a particular fact.
As could be gleaned from the foregoing, there lies a marked distinction between an
action and a special proceeding. An action is a formal demand of one’s right in a court
of justice in the manner prescribed by the court or by the law. It is the method of
applying legal remedies according to definite established rules. The term "special
proceeding" may be defined as an application or proceeding to establish the status or
right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings
are required unless the statute expressly so provides. In special proceedings, the
remedy is granted generally upon an application or motion.
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:
It may accordingly be stated generally that actions include those proceedings which are
instituted and prosecuted according to the ordinary rules and provisions relating to
actions at law or suits in equity, and that special proceedings include those proceedings
which are not ordinary in this sense, but is instituted and prosecuted according to some
special mode as in the case of proceedings commenced without summons and
prosecuted without regular pleadings, which are characteristics of ordinary actions x x x.
A special proceeding must therefore be in the nature of a distinct and independent
proceeding for particular relief, such as may be instituted independently of a pending
action, by petition or motion upon notice.
Applying these principles, an action for reconveyance and annulment of title with
damages is a civil action, whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made by the decedent, partake of
the nature of a special proceeding, which concomitantly requires the application of
specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent
fall within the exclusive province of the probate court in the exercise of its limited
jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement
made or alleged to have been made by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate proceedings, and the final order
of the court thereon shall be binding on the person raising the questions and on the heir.
While it may be true that the Rules used the word "may," it is nevertheless clear that the
same provision contemplates a probate court when it speaks of the "court having
jurisdiction of the estate proceedings."
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction,
is devoid of authority to render an adjudication and resolve the issue of advancement of
the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No.
71075 for reconveyance and annulment of title with damages is not, to our mind, the
proper vehicle to thresh out said question. Moreover, under the present circumstances,
the RTC of Manila, Branch 55, was not properly constituted as a probate court so as to
validly pass upon the question of advancement made by the decedent Graciano Del
Rosario to his wife, herein petitioner Natcher.
We likewise find merit in petitioners’ contention that before any conclusion about the
legal share due to a compulsory heir may be reached, it is necessary that certain steps
be taken first.43 The net estate of the decedent must be ascertained, by deducting all
payable obligations and charges from the value of the property owned by the deceased
at the time of his death; then, all donations subject to collation would be added to it.
With the partible estate thus determined, the legitime of the compulsory heir or heirs can
be established; and only then can it be ascertained whether or not a donation had
prejudiced the legitimes.44
Declaration of Validity of Donation
Can Be Challenged by an Interested
Party Not Impleaded in Petition for
Quieting of Title or Declaratory Relief
or Where There is No Res Judicata.
Moreover, This Court Can Consider
a Factual Matter or Unassigned Error
in the Interest of Substantial Justice.
Nevertheless, petitioners cannot preclude the determination of validity of the deed of
donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has
already been determined with finality by the RTC in Petition Case No. U-920; or (3) the
only issue in an action for reconveyance is who has a better right over the land. 45
The validity of the private deed of donation propter nuptias in favor of petitioners’
predecessors was one of the issues in this case before the lower courts. The pre-trial
order46 of the RTC stated that one of the issues before it is "(w)hether or not the transfer
of the whole property covered by OCT No. 352 on the basis of the private deed of
donation notwithstanding the discrepancy in the description is valid." Before the CA, one
of the errors assigned by respondents is that "THE TRIAL COURT ERRED IN NOT
FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919 WAS
NULL AND VOID."47
The issue of the validity of donation is likewise brought to Us by petitioners as they
stated in their Memorandum48that one of the issues to be resolved is regarding the
alleged fact that "THE HONORABLE COURT OF APPEALS ERRED IN FINDING THE
DONATION INVALID." We are thus poised to inspect the deed of donation and to
determine its validity.
We cannot agree with petitioners’ contention that respondents may no longer question
the validity of the deed of donation on the ground that they already impliedly admitted it.
Under the provisions of the Civil Code, a void contract is inexistent from the beginning.
The right to set up the defense of its illegality cannot be waived. 49 The right to set up the
nullity of a void or non-existent contract is not limited to the parties as in the case of
annullable or voidable contracts; it is extended to third persons who are directly affected
by the contract.50
Consequently, although respondents are not parties in the deed of donation, they can
set up its nullity because they are directly affected by the same. 51 The subject of the
deed being the land they are occupying, its enforcement will definitely affect them.
Petitioners cannot also use the finality of the RTC decision in Petition Case No. U-
92052 as a shield against the verification of the validity of the deed of donation.
According to petitioners, the said final decision is one for quieting of title. 53 In other
words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of
Court, which provides:
SECTION 1. Who may file petition. – Any person interested under a deed, will, contract
or other written instrument, or whose rights are affected by a statute, executive order or
regulation, or ordinance, may, before breach or violation thereof, bring an action to
determine any question of construction or validity arising under the instrument or statute
and for a declaration of his rights or duties thereunder.
An action for the reformation of an instrument, to quiet title to real property or remove
clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may
be brought under this rule.
SECTION 2. Parties. – All persons shall be made parties who have or claim any interest
which would be affected by the declaration; and no declaration shall, except as
otherwise provided in these rules, prejudice the rights of persons not parties to the
action. (Emphasis ours)
However, respondents were not made parties in the said Petition Case No. U-
920.1âwphi1 Worse, instead of issuing summons to interested parties, the RTC merely
allowed the posting of notices on the bulletin boards of Barangay Cabalitaan,
Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing
the ruling of the RTC:
x x x In the said case or Petition No. U-920, notices were posted on the bulletin boards
of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that
there was a notice to the whole world and during the initial hearing and/or hearings, no
one interposed objection thereto.54
Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in
personam, but being against the person in respect of the res, these proceedings are
characterized as quasi in rem.55 The judgment in such proceedings is conclusive only
between the parties.56 Thus, respondents are not bound by the decision in Petition Case
No. U-920 as they were not made parties in the said case.
The rules on quieting of title57 expressly provide that any declaration in a suit to quiet
title shall not prejudice persons who are not parties to the action.
That respondents filed a subsequent pleading 58 in the same Petition Case No. U-920
after the decision there had become final did not change the fact that said decision
became final without their being impleaded in the case. Said subsequent pleading was
dismissed on the ground of finality of the decision. 59
Thus, the RTC totally failed to give respondents their day in court. As a result, they
cannot be bound by its orders. Generally accepted is the principle that no man shall be
affected by any proceeding to which he is a stranger, and strangers to a case are not
bound by judgment rendered by the court. 60
Moreover, for the principle of res judicata to apply, the following must be present: (1) a
decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final;
and (4) the two actions involve identical parties, subject matter and causes of
action.61 The fourth element is not present in this case. The parties are not identical
because respondents were not impleaded in Petition Case No. U-920. While the subject
matter may be the same property covered by OCT No. 352, the causes of action are
different. Petition Case No. U-920 is an action for declaratory relief while the case below
is for recovery of property.
We are not persuaded by petitioners’ posture that the only issue in this action for
reconveyance is who has a better right over the land; and that the validity of the deed of
donation is beside the point.62 It is precisely the validity and enforceability of the deed of
donation that is the determining factor in resolving the issue of who has a better right
over the property. Moreover, notwithstanding procedural lapses as to the
appropriateness of the remedies prayed for in the petition filed before Us, this Court can
brush aside the technicalities in the interest of justice. In some instances, this Court
even suspended its own rules and excepted a case from their operation whenever the
higher interests of justice so demanded. 63
Moreover, although respondents did not directly raise the issue of validity of the deed of
donation at the commencement of the case before the trial court, it was stipulated 64 by
the parties during the pre-trial conference. In any event, this Court has authority to
inquire into any question necessary in arriving at a just decision of a case before
it.65 Though not specifically questioned by the parties, additional issues may also be
included, if deemed important for substantial justice to be rendered. 66
Furthermore, this Court has held that although a factual issue is not squarely raised
below, still in the interest of substantial justice, this Court is not prevented from
considering a pivotal factual matter. The Supreme Court is clothed with ample authority
to review palpable errors not assigned as such if it finds that their consideration is
necessary in arriving at a just decision. 67
A rudimentary doctrine on appealed cases is that this Court is clothed with ample
authority to review matters, even if they are not assigned as errors on appeal, if it finds
that their consideration is necessary at arriving at a just decision of the case. 68 Also, an
unassigned error closely related to an error properly assigned or upon which the
determination of the question raised by the error properly assigned is dependent, will be
considered by the appellate court notwithstanding the failure to assign it as an error. 69
Donation Propter Nuptias of Real
Property Made in a Private Instrument
Before the New Civil Code Took Effect
on August 30, 1950 is Void
We now focus on the crux of the petition, which is the validity of the deed of
donation.1avvphi1 It is settled that only laws existing at the time of the execution of a
contract are applicable to it and not the later statutes, unless the latter are specifically
intended to have retroactive effect.70 Accordingly, the Old Civil Code applies in this case
as the donation propter nuptias was executed in 1919, while the New Civil Code took
effect only on August 30, 1950.
Under the Old Civil Code, donations propter nuptias must be made in a public
instrument in which the property donated must be specifically described. 71 Article 1328
of the Old Civil Code provides that gifts propter nuptias are governed by the rules
established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that
the gift of real property, in order to be valid, must appear in a public document. 72 It is
settled that a donation of real estate propter nuptias is void unless made by public
instrument.73
In the instant case, the donation propter nuptias did not become valid. Neither did it
create any right because it was not made in a public instrument. 74 Hence, it conveyed
no title to the land in question to petitioners’ predecessors.
Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No.
44481 in favor of petitioners’ predecessors have no legal basis. The title to the subject
property should, therefore, be restored to its original owners under OCT No. 352.
Direct reconveyance to any of the parties is not possible as it has not yet been
determined in a proper proceeding who among the heirs of spouses Simeon Doronio
and Cornelia Gante is entitled to it. It is still unproven whether or not the parties are the
only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As
earlier intimated, there are still things to be done before the legal share of all the heirs
can be properly adjudicated.75
Titled Property Cannot Be Acquired
By Another By Adverse Possession
or Extinctive Prescription
Likewise, the claim of respondents that they became owners of the property by
acquisitive prescription has no merit. Truth to tell, respondents cannot successfully
invoke the argument of extinctive prescription. They cannot be deemed the owners by
acquisitive prescription of the portion of the property they have been possessing. The
reason is that the property was covered by OCT No. 352. A title once registered under
the torrens system cannot be defeated even by adverse, open and notorious
possession; neither can it be defeated by prescription. 76 It is notice to the whole world
and as such all persons are bound by it and no one can plead ignorance of the
registration.77
The torrens system is intended to guarantee the integrity and conclusiveness of the
certificate of registration, but it cannot be used for the perpetration of fraud against the
real owner of the registered land.78 The system merely confirms ownership and does not
create it. Certainly, it cannot be used to divest the lawful owner of his title for the
purpose of transferring it to another who has not acquired it by any of the modes
allowed or recognized by law. It cannot be used to protect a usurper from the true
owner, nor can it be used as a shield for the commission of fraud; neither does it permit
one to enrich himself at the expense of another. 79 Where such an illegal transfer is
made, as in the case at bar, the law presumes that no registration has been made and
so retains title in the real owner of the land. 80
Although We confirm here the invalidity of the deed of donation and of its resulting TCT
No. 44481, the controversy between the parties is yet to be fully settled. The issues as
to who truly are the present owners of the property and what is the extent of their
ownership remain unresolved. The same may be properly threshed out in the settlement
of the estates of the registered owners of the property, namely: spouses Simeon
Doronio and Cornelia Gante.
WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is
entered:
(1) Declaring the private deed of donation propter nuptias in favor of petitioners’
predecessors NULL AND VOID; and
(2) Ordering the Register of Deeds of Pangasinan to:
(a) CANCEL Transfer Certificate of Title No. 44481 in the names of
Marcelino Doronio and Veronica Pico; and
(b) RESTORE Original Certificate of Title No. 352 in the names of its
original owners, spouses Simeon Doronio and Cornelia Gante.
SO ORDERED.
RUBEN T. REYES
Associate Justice

[ G.R. No. 133000, October 02, 2001 ]

PATRICIA NATCHER, PETITIONER, VS. HON. COURT OF APPEALS AND THE
HEIRS OF GRACIANO DEL ROSARIO – LETICIA DEL ROSARIO, EMILIA DEL
ROSARIO-MANANGAN, ROSALINDA FUENTES LLANA, RODOLFO FUENTES,
ALBERTO FUENTES, EVELYN DEL ROSARIO, AND EDUARDO DEL ROSARIO,
RESPONDENTS.

DECISION

BUENA, J.:

May a Regional Trial Court, acting as a court of general jurisdiction in an action for

reconveyance and annulment of title with damages, adjudicate matters relating to the
settlement of the estate of a deceased person particularly in questions as to
advancement of property made by the decedent to any of the heirs?

Sought to be reversed in this petition for review on certiorari under Rule 45 is the

decision[1] of public respondent Court of Appeals, the decretal portion of which declares:
"Wherefore in view of the foregoing considerations, judgment appealed from is reversed
and set aside and another one entered annulling the Deed of Sale executed by
Graciano Del Rosario in favor of defendant-appellee Patricia Natcher, and ordering the
Register of Deeds to Cancel TCT No. 186059 and reinstate TCT No. 107443 without
prejudice to the filing of a special proceeding for the settlement of the estate of Graciano
Del Rosario in a proper court.  No costs.
 
"So ordered."

Spouses Graciano del Rosario and Graciana Esguerra were registered owners of a
parcel of land with an area of 9,322 square meters located in Manila and covered by
Transfer Certificate of Title No. 11889.  Upon the death of Graciana in 1951, Graciano,
together with his six children, namely: Bayani, Ricardo, Rafael, Leticia, Emiliana and
Nieves, entered into an extrajudicial settlement of Graciana's estate on 09 February
1954 adjudicating and dividing among themselves the real property subject of TCT No.
11889. Under the agreement, Graciano received 8/14 share while each of the six
children received 1/14 share of the said property. Accordingly, TCT No. 11889 was
cancelled, and in lieu thereof, TCT No. 35980 was issued in the name of Graciano and
the six children.

Further, on 09 February 1954, said heirs executed and forged an "Agreement of

Consolidation-Subdivision of Real Property with Waiver of Rights" where they
subdivided among themselves the parcel of land covered by TCT No. 35980 into
several lots.  Graciano then donated to his children, share and share alike, a portion of
his interest in the land amounting to 4,849.38 square meters leaving only 447.60 square
meters registered under Graciano's name, as covered by TCT No. 35988.
Subsequently, the land subject of TCT No. 35988 was further subdivided into two
separate lots where the first lot with a land area of 80.90 square meters was registered
under TCT No. 107442 and the second lot with a land area of 396.70 square meters
was registered under TCT No. 107443.  Eventually, Graciano sold the first lot[2] to a third
person but retained ownership over the second lot. [3]

On 20 March 1980, Graciano married herein petitioner Patricia Natcher. During their

marriage, Graciano sold the land covered by TCT No. 107443 to his wife Patricia as a
result of which TCT No. 186059[4] was issued in the latter's name.  On 07 October 1985,
Graciano died leaving his second wife Patricia and his six children by his first marriage,
as heirs.

In a complaint[5] filed in Civil Case No. 71075 before the Regional Trial Court of Manila,
Branch 55, herein private respondents alleged that upon Graciano's death,
petitioner Natcher, through the employment of fraud, misrepresentation and forgery,
acquired TCT No. 107443, by making it appear that Graciano executed a Deed of Sale
dated 25 June 1987[6] in favor of herein petitioner resulting in the cancellation of TCT
No. 107443 and the issuance of TCT No. 186059 in the name of Patricia Natcher. 
Similarly, herein private respondents alleged in said complaint that as a consequence of
such fraudulent sale, their legitimes have been impaired.

In her answer[7] dated 19 August 1994, herein petitioner Natcher averred that she was

legally married to Graciano on 20 March 1980 and thus, under the law, she was likewise
considered a compulsory heir of the latter. Petitioner further alleged that during
Graciano's lifetime, Graciano already distributed, in advance, properties to his children,
hence, herein private respondents may not anymore claim against Graciano's estate or
against herein petitioner's property.

After trial, the Regional Trial Court of Manila, Branch 55, rendered a decision dated 26
January 1996 holding:[8]
"1) The deed of sale executed by the late Graciano del Rosario in favor of
Patricia Natcher is prohibited by law and thus a complete nullity.   There being no
evidence that a separation of property was agreed upon in the marriage settlements or
that there has been decreed a judicial separation of property between them, the
spouses are prohibited from entering (into) a contract of sale;

"2) The deed of sale cannot be likewise regarded as a valid donation as it was equally
prohibited by law under Article 133 of the New Civil Code;

"3) Although the deed of sale cannot be regarded as such or as a donation, it may
however be regarded as an extension of advance inheritance of Patricia  Natcher being
a compulsory heir of the deceased."

On appeal, the Court of Appeals reversed and set aside the lower court's decision

ratiocinating, inter alia:
"It is the probate court that has exclusive jurisdiction to make a just and legal distribution
of the estate. The court a quo, trying an ordinary action for reconveyance/annulment of
title, went beyond its jurisdiction when it performed the acts proper only in a special
proceeding for the settlement of estate of a deceased person.  XXX

"X X X Thus the court a quo erred in regarding the subject property as an advance
inheritance.  What the court should have done was merely to rule on the validity of (the)
sale and leave the issue on advancement to be resolved in a separate proceeding
instituted for that purpose. X X X"

Aggrieved, herein petitioner seeks refuge under our protective mantle through the
expediency of Rule 45 of the Rules of Court and assails the appellate court's decision
"for being contrary to law and the facts of the case."

We concur with the Court of Appeals and find no merit in the instant petition.

Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special
proceedings, in this wise:
"X X X a) A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong.

"A civil action may either be ordinary or special.  Both are governed by the rules for
ordinary civil actions, subject to specific rules prescribed for a special civil action.

"X X X
"c) A special proceeding is a remedy by which a party seeks to establish a status, a
right or a particular fact."

As could be gleaned from the foregoing, there lies a marked distinction between an
action and a special proceeding.  An action is a formal demand of one's right in
a court of justice in the manner prescribed by the court or by the law.  It is the method of
applying legal remedies according to definite established rules.  The term "special
proceeding" may be defined as an application or proceeding to establish the status or
right of a party, or a particular fact.  Usually, in special proceedings, no formal pleadings
are required unless the statute expressly so provides.  In special proceedings, the
remedy is granted generally upon an application or motion." [9]

Citing American Jurisprudence, a noted authority in Remedial Law expounds further:

"It may accordingly be stated generally that actions include those proceedings which are
instituted and prosecuted according to the ordinary rules and provisions relating to
actions at law or suits in equity, and that special proceedings include those proceedings
which are not ordinary in this sense, but is instituted and prosecuted according to some
special mode as in the case of proceedings commenced without summons and
prosecuted without regular pleadings, which are characteristics of ordinary actions. X X
X A special proceeding must therefore be in the nature of a distinct and independent
proceeding for particular relief, such as may be instituted independently of a pending
action, by petition or motion upon notice." [10]

Applying these principles, an action for reconveyance and annulment of title with
damages is a civil action, whereas matters relating to settlement of the estate of a
deceased person such as advancement of property made by the decedent, partake of
the nature of a special proceeding, which concomitantly requires the application of
specific rules as provided for in the Rules of Court.

Clearly, matters which involve settlement and distribution of the estate of the decedent
fall within the exclusive province of the probate court in the exercise of its limited
jurisdiction.

Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement

made or alleged to have been made by the deceased to any heir may be heard and
determined by the court having jurisdiction of the estate proceedings ; and the final
order of the court thereon shall be binding on the person raising the questions and on
the heir.

While it may be true that the Rules used the word "may", it is nevertheless clear that the
same provision[11] contemplates a probate court when it speaks of the "court having
jurisdiction of the estate proceedings".

Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction,
is devoid of authority to render an adjudication and resolve the issue of advancement of
the real property in favor of herein petitioner Natcher, inasmuch as Civil Case No.
71075 for reconveyance and annulment of title with damages is not, to our mind, the
proper vehicle to thresh out said question.  Moreover, under the present circumstances,
the RTC of Manila, Branch 55 was not properly constituted as a probate court so as to
validly pass upon the question of advancement made by the decedent Graciano Del
Rosario to his wife, herein petitioner Natcher.

At this point, the appellate court's disquisition is elucidating:

"Before a court can make a partition and distribution of the estate of a deceased, it must
first settle the estate in a special proceeding instituted for the purpose.  In the case at
hand, the court a quo determined the respective legitimes of the plaintiffs-appellants
and assigned the subject property owned by the estate of the deceased to defendant-
appellee without observing the proper proceedings provided (for) by the Rules of Court. 
From the aforecited discussions, it is clear that trial courts trying an ordinary action
cannot resolve to perform acts pertaining to a special proceeding because it is subject
to specific prescribed rules. Thus, the court a quo erred in regarding the subject
property as an advance inheritance."[12]

In resolving the case at bench, this Court is not unaware of our pronouncement

in Coca vs. Borromeo[13] and Mendoza vs. Teh[14] that whether a particular matter
should be resolved by the Regional Trial Court (then Court of First Instance) in the
exercise of its general jurisdiction or its limited probate jurisdiction is not a jurisdictional
issue but a mere question of procedure.  In essence, it is a procedural question
involving a mode of practice "which may be waived". [15]

Notwithstanding, we do not see any waiver on the part of herein private respondents
inasmuch as the six children of the decedent even assailed the authority of the
trial court, acting in its general jurisdiction, to rule on this specific issue of advancement
made by the decedent to petitioner.

Analogously, in a train of decisions, this Court has consistently enunciated the long

standing principle that although generally, a probate court may not decide a question of
title or ownership, yet if the interested parties are all heirs, or the question is one of
collation or advancement, or the parties consent to the assumption of jurisdiction by
the probate court and the rights of third parties are not impaired, then the
probate court is competent to decide the question of ownership. [16]

Similarly in Mendoza vs. Teh, we had occasion to hold:

"In the present suit, no settlement of estate is involved, but merely an allegation seeking
appointment as estate administratrix which does not necessarily involve settlement of
estate that would have invited the exercise of the limited jurisdiction of a
probate court.[17] (emphasis supplied)

Of equal importance is that before any conclusion about the legal share due to a
compulsory heir may be reached, it is necessary that certain steps be taken first. [18] The
net estate of the decedent must be ascertained, by deducting all payable obligations
and charges from the value of the property owned by the deceased at the time of his
death; then, all donations subject to collation would be added to it.  With the partible
estate thus determined, the legitime of the compulsory heir or heirs can be established;
and only thereafter can it be ascertained whether or not a donation had prejudiced the
legitimes.[19]

A perusal of the records, specifically the antecedents and proceedings in the present
case, reveals that the trial court failed to observe established rules of procedure
governing the settlement of the estate of Graciano Del Rosario.  This Court sees no
cogent reason to sanction the non-observance of these well-entrenched rules and
hereby holds that under the prevailing circumstances, a probate court, in the exercise of
its limited jurisdiction, is indeed the best forum to ventilate and adjudge the issue of
advancement as well as other related matters involving the settlement of Graciano Del
Rosario's estate.

WHEREFORE, premises considered, the assailed decision of the Court of Appeals is

hereby AFFIRMED and the instant petition is DISMISSED for lack of merit.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and  De Leon, Jr., JJ., concur.

686 Phil. 203

SECOND DIVISION
[ G.R. No. 188921, April 18, 2012 ]
LEO C. ROMERO AND DAVID AMANDO C. ROMERO, PETITIONERS, VS. HON.
COURT OF APPEALS, AURORA C. ROMERO AND VITTORIO C. ROMERO,
RESPONDENTS.

DECISION

SERENO, J.:

This is a Petition filed under Rule 45 of the 1997 Rules of Civil Procedure, praying for
the reversal of the Decision[1] of the Court of Appeals dated 14 April 2009 and the
subsequent Resolution[2] dated 21 July 2009.

The Court of Appeals (CA) dismissed the Petition for Certiorari filed by petitioners which
alleged grave abuse of discretion in the Resolutions dated 14 December 2007 and 29
January 2008 issued by Judge Maria Susana T. Baua in her capacity as presiding judge
of the Regional Trial Court (RTC) of Lingayen, Pangasinan. The said Resolutions
dismissed petitioners’ complaint against private respondents Aurora C. Romero and
Vittorio C. Romero.

Petitioners allege that upon their father’s death on 18 October 1974, their mother,
respondent Aurora Romero, was appointed as legal guardian who held several real and
personal properties in trust for her children. [3] Since that year until the present, she
continues to be the administrator of the properties, businesses, and investments
comprising the estate of her late husband.

Sometime in 2006, petitioners Leo and Amando discovered that several Deeds of Sale
were registered over parcels of land that are purportedly conjugal properties of their
parents.   These included the following real and personal properties:
1. A parcel of land identified as Lot 3-G of Subdivision Plan Psd-67995 situated in
Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one
thousand square meters under Declaration of Real Property No. 16142 and
Transfer Certificate of Title (TCT) No. 290013 in the name of Vittorio C. Romero.
A warehouse stands on the lot, covered by Declaration of Real Property No.
16142.
2. A parcel of land identified as Lot 3-D of Subdivision Plan Psd-67995 situated in
Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one
thousand square meters under Declaration of Real Property No. 405, and TCT
No. 77223 in the name of Spouses Dante Y. Romero and Aurora Cruz-Romero.
3. A parcel of land identified as Lot 3-E of Subdivision Plan Psd-67995 situated in
Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one
thousand square meters under Declaration of

Real Property No. 407 and TCT No. 77224 in the names of Spouses Dante Y.
Romero and Aurora Cruz-Romero.
4. A parcel of land identified as Lot 3-H of Subdivision Plan Psd-67995 situated in
Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of one
thousand square meters under Declaration of Real Property No. 406, and TCT
No. 77225 in the name of Spouses Dante Y. Romero and Aurora Cruz-Romero.
5. A parcel of land identified as Lot 3815-A of Subdivision Plan Psd-227224 situated
in Barrio Pogon-lomboy, Mangatarem, Pangasinan, containing an area of four
hundred ninety-four square meters under TCT No. 113514 in the name of Aurora
Cruz vda. de Romero.
6. A parcel of land located in Barangay Burgos, Mangatarem, Pangasinan,
containing an area of more or less three hundred seventy-nine square meters
under Declaration of Real Property No. 16136. It is not yet registered under Act
496 or the Old Spanish Mortgage Law, but registrable under Act 3344 as
amended. The improvement thereon, a building classified as a warehouse, is
covered by Declaration of Real Property No. 16136 A.
7. A parcel of land located in Brgy. Burgos, Mangatarem, Pangasinan, containing
an area of more or less two hundred four square meters under Declaration of
Real Property No. 16139. It is not yet registered under Act 496 or Act 3344 as
amended. The improvement thereon is covered by Declaration of Real Property
No. 16140.
8. A parcel of land located in Brgy. Pogon-lomboy, Mangatarem, Pangasinan,
containing an area of more or less eleven thousand six hundred forty-six square
meters under Declaration of Real Property No. 724 and TCT No. 284241 in the
name of Aurora P. Cruz vda. de Romero.
 9. A parcel of land located in Brgy. Pogon-lomboy, Mangatarem, Pangasinan,
containing an area of more or less one thousand two hundred fifty-six square
meters under Declaration of Real Property No. 725 and TCT No. 284242 in the
name of Aurora P. Cruz vda. de Romero.[4]

Petitioners claim that sometime in August of 2005, their brother Vittorio – through fraud,
misrepresentation and duress – succeeded in registering the above-mentioned
properties in his name through of Deeds of Sale executed by their mother, Aurora.
[5]
 Vittorio allegedly employed force and threat upon her, and even administered drugs
that rendered her weak and vulnerable. Thus, Aurora signed the Deeds of Sale without
reading or knowing their contents.

On 18 December 2006, petitioners filed a Complaint for Annulment of Sale, Nullification

of Title, and Conveyance of Title (Amended) [6] against private respondents Aurora C.
Romero and Vittorio C. Romero. Respondents filed their Answer, arguing that the
properties in question were acquired long after the death of their father, Judge Dante
Romero; hence, the properties cannot be considered conjugal. They allege that the lots
covered by TCT Nos. 290010, 290011, 113514, and Tax Declaration Nos. 16136 and
11639 were paraphernal properties of Aurora which she had mortgaged. Vittorio
purportedly had to shell out substantial amounts in order to redeem them. The lots
covered by TCT Nos. 77223, 77224, and 77225 were sold by Aurora herself as
attorney-in-fact of her children on 23 November 2006, since her authority to do so had
never been revoked or modified.

On 14 December 2007, the RTC rendered its Resolution dismissing petitioners’

complaint, stating thus:
xxx(T)he case under Special Proceedings No. 5185 remains pending in that no
distribution of the assets of the estate of the late Dante Y. Romero, nor a partition, has
been effected among his compulsory heirs. Thus, the contending claims of plaintiffs
and defendants in this case could not be adjudicated nor passed upon by this
Court without first getting a definitive pronouncement from the intestate court as
to the share of each of the heirs of the late Dante Y. Romero in his estate.

Even the claim of defendant Aurora C. Romero that some of the properties being
claimed by plaintiffs in this case are her own, the same being paraphernal, is an issue
which must be taken up and established in the intestate proceedings. [7] (Emphasis
supplied.)

The RTC denied their Motion for Reconsideration, citing Section 3, Rule 87 of the Rules
of Court which bars an heir or a devisee from maintaining an action to recover the title
or possession of lands until such lands have actually been assigned. The court ruled
that “plaintiffs must first cause the termination of Special Proceedings No. 5185 to its
logical conclusion before this case could be entertained by the Court.” [8]

Alleging grave abuse of discretion on the part of the trial court in rendering the said
Resolutions, petitioners filed for certiorari under Rule 65 with the CA.  On 14 April 2009,
the CA rendered the assailed judgment dismissing the Petition, ruling that the properties
involved in this case are part of the estate left to the heirs of Judge Romero, the
partition of which is already subject of an intestate proceeding filed on 6 January 1976
in the then Court of First Instance (CFI). [9] The CA based its judgment on the findings of
the RTC that the inventory of the estate of Judge Romero submitted to the CFI included
the same parties, properties, rights and interests as in the case before it.

Petitioners now come to us on a Rule 45 Petition, arguing that the probate court may
rule on issues pertaining to title over property only in a provisional capacity. They assert
that the CA erred in dismissing their appeal, just because the intestate proceeding has
not yet terminated. Petitioners, as heirs, are purportedly allowed to exercise their option
of filing a separate civil action in order to protect their interests.

Thus, the singular issue in the case at bar is whether or not petitioners in this case may
file a separate civil action for annulment of sale and reconveyance of title, despite the
pendency of the settlement proceedings for the estate of the late Judge Dante Y.
Romero.
Ruling of the Court

The probate court has jurisdiction to

determine the issues in the present case

Petitioners assert that the jurisdiction of the RTC sitting as a probate or intestate court
relates only to matters having to do with the settlement of the estate of deceased
persons or the appointment of executors, but does not extend to the determination of
questions of ownership that arise during the proceedings. [10] They cite Ongsingco v.
Tan,[11] Baybayan v. Aquino[12] and several cases which state that when questions arise
as to ownership of property alleged to be part of the estate of a deceased person, but
claimed by some other person to be his property, not by virtue of any right of inheritance
from the deceased but by title adverse to that of the deceased and his estate, the
intestate court has no jurisdiction to adjudicate these questions. Petitioners conclude
that the issue of ownership of the properties enumerated in their Petition and included in
the inventory submitted by respondent Aurora Romero to the intestate court, must be
determined in a separate civil action to resolve title. [13]

The rulings in Ongsingco and Baybayan are wholly inapplicable, as they both arose out

of facts different from those in the case at bar. Baybayan involved a summary
settlement for the estate of the decedent, in which a parcel of land representing the
share of decedent’s nephews and nieces was already covered by a TCT under the
name of a third party. To defeat the writ of partition issued by the probate court, the third
party, petitioners Baybayan et al., had to file a separate civil action for quieting of their
title and for damages. The issue before the Court then devolved upon the propriety of
the probate court’s order to amend the Complaint for quieting of title before the regular
court. More importantly, Baybayan pertained to a civil action involving third parties who
were not heirs, and not privy to the intestate proceedings in the probate court. The
present action was instituted precisely by heirs of Judge Romero, against their brother,
who is also an heir, and their mother, who is the administrator of the estate.

In Coca v. Borromeo,[14] this Court allowed the probate court to provisionally pass upon

the issue of title, precisely because the only interested parties are all heirs to the estate,
subject of the proceeding, viz:
It should be clarified that whether a particular matter should be resolved by the Court of
First Instance in the exercise of its general jurisdiction or of its limited probate
jurisdiction is in reality not a jurisdictional question. In essence, it is a procedural
question involving a mode of practice "which may be waived."

As a general rule, the question as to title to property should not be passed upon in the
testate or intestate proceeding. That question should be ventilated in a separate action.
That general rule has qualifications or exceptions justified by expediency and
convenience.

Thus, the probate court may provisionally pass upon in an intestate or testate
proceeding the question of inclusion in, or exclusion from, the inventory of a piece of
property without prejudice to its final determination in a separate action.

Although generally, a probate court may not decide a question of title or ownership, yet
if the interested parties are all heirs, or the question is one of collation or advancement,
or the parties consent to the assumption of jurisdiction by the probate court and the
rights of third parties are not impaired, then the probate court is competent to decide the
question of ownership.

We hold that the instant case may be treated as an exception to the general rule that
questions of title should be ventilated in a separate action.

Here, the probate court had already received evidence on the ownership of the twelve-
hectare portion during the hearing of the motion for its exclusion from (the) inventory.
The only interested parties are the heirs who have all appeared in the intestate
proceeding.[15] (Citations omitted.)

While it is true that a probate court’s determination of ownership over properties which
may form part of the estate is not final or ultimate in nature, this rule is applicable only
as between the representatives of the estate and strangers thereto. Indeed, as early
as Bacquial v. Amihan,[16] the court stated thus:
xxx The rulings of this court have always been to the effect that in the special
proceeding for the settlement of the estate of a deceased person, persons not heirs,
intervening therein to protect their interests are allowed to do so protect the same, but
not for a decision on their action. In the case of In re Estate of the deceased Paulina
Vasquez Vda. de Garcia, Teresa Garcia vs. Luisa Garcia, et al., 67 Phil., 353, this court
held:
A court which takes cognizance of testate or intestate proceedings has power and
jurisdiction to determine whether or not the properties included therein or excluded
therefrom belong prima facie to the deceased, although such a determination is not final
or ultimate in nature, and without prejudice to the right of interested parties, in a proper
action, to raise the question on the ownership or existence of the right or credit.

To this same effect are rulings in various states of the United States.

* * * That the probate court is without jurisdiction to try the title to property as between
the representatives of an estate and strangers thereto is too well established by the
authorities to require argument.

There is also authority abroad that where the court is without jurisdiction to determine
questions of title, as for example, as between the estate and persons claiming
adversely, its orders and judgments relating to the sale do not render the issue of
title res judicata.[17] (Citations omitted, emphasis supplied.)

In any case, there is no merit to petitioners’ claim that the issues raised in the case at
bar pertain to title and ownership and therefore need to be ventilated in a separate civil
action. The issue before the court is not really one of title or ownership, but the
determination of which particular properties should be included in the inventory of the
estate. In Civil Case No. 18757, the RTC has listed the properties alleged by petitioners
to have been conjugal properties of their parents and, therefore, part of the estate that
was illegally sold to the respondent. Some of these real properties identified seem to be
the same real properties that form part of the inventory of the estate in the intestate
proceedings.[18]

Not only do petitioners assert their legal interest as compulsory heirs, they also seek to
be the owners, pro indiviso, of the said properties. To anchor their claim, they argue that
the properties are conjugal in nature and hence form part of their inheritance. For his
defense, Vittorio contends that the lots are the paraphernal properties of Aurora that she
had mortgaged, and that Vittorio subsequently redeemed.

In Bernardo v. Court of Appeals,[19] the Supreme Court declared that the determination

of whether a property is conjugal or paraphernal for purposes of inclusion in the
inventory of the estate rests with the probate court:
xxx (T)he jurisdiction to try controversies between heirs of a deceased person regarding
the ownership of properties alleged to belong to his estate, has been recognized to be
vested in probate courts. This is so because the purpose of an administration
proceeding is the liquidation of the estate and distribution of the residue among the
heirs and legatees. Liquidation means determination of all the assets of the estate and
payment of all the debts and expenses. Thereafter, distribution is made of the
decedent's liquidated estate among the persons entitled to succeed him. The
proceeding is in the nature of an action of partition, in which each party is required to
bring into the mass whatever community property he has in his possession. To this end,
and as a necessary corollary, the interested parties may introduce proofs relative to the
ownership of the properties in dispute. All the heirs who take part in the distribution of
the decedent's estate are before the court, and subject to the jurisdiction thereof, in all
matters and incidents necessary to the complete settlement of such estate, so long as
no interests of third parties are affected.

In the case now before us, the matter in controversy is the question of ownership
of certain of the properties involved — whether they belong to the conjugal
partnership or to the husband exclusively. This is a matter properly within the
jurisdiction of the probate court which necessarily has to liquidate the conjugal
partnership in order to determine the estate of the decedent which is to be
distributed among his heirs who are all parties to the proceedings.
[20]
 xxx (Emphasis supplied.)

In the present case, petitioners assume that the properties subject of the allegedly
illegal sale are conjugal and constitute part of their share in the estate. To date, there
has been no final inventory of the estate or final order adjudicating the shares of the
heirs. Thus, only the probate court can competently rule on whether the properties are
conjugal and form part of the estate. It is only the probate court that can liquidate the
conjugal partnership and distribute the same to the heirs, after the debts of the estate
have been paid.

Section 3, Rule 87 bars petitioners

from filing the present action

Petitioners next contend that even if the probate court has the power to rule on their
Complaint, the submission of the issues in this case to the probate court is merely
optional, and not mandatory upon them. Hence, they argue, they still have the right to
bring these issues in a separate civil action, if they so choose. They argue further that
Section 3, Rule 87 of the Revised Rules of Court is not applicable to the present case.

The said provision states that:

Sec. 3. Heir may not sue until share assigned. – When an executor or administrator is
appointed and assumes the trust, no action to recover the title or possession of lands or
for damages done to such lands shall be maintained against him by an heir or devisee
until there is an order of the court assigning such lands to such heir or devisee or until
the time allowed for paying debts has expired.

Petitioners believe that the above rule is subject to certain exceptions. They invoke the
doctrine that while heirs have no standing in court to sue for the recovery of property of
the estate represented by an administrator, these heirs may maintain such action if the
administrator is unwilling to bring the suit, or has allegedly participated in the act
complained of.

On this contention, petitioners’ theory must again fail. There is nothing on the record
that would prove that Aurora defied the orders of the probate court or entered into sale
agreements in violation of her trust. In fact, petitioners are really accusing a co-heir,
their brother Vittorio, of having acquired certain properties which they allege to be
properties of their parents.
Even if we assume the property to be conjugal and thus, part of the estate, Aurora
Romero’s acts as the administrator of the estate are subject to the sole jurisdiction of
the probate court. In Acebedo v. Abesamis,[21] the Court stated:
In the case of Dillena vs. Court of Appeals, this Court made a pronouncement that it is
within the jurisdiction of the probate court to approve the sale of properties of a
deceased person by his prospective heirs before final adjudication. Hence, it is error to
say that this matter should be threshed out in a separate action.

The Court further elaborated that although the Rules of Court do not specifically state
that the sale of an immovable property belonging to an estate of a decedent, in a
special proceeding, should be made with the approval of the court, this authority is
necessarily included in its capacity as a probate court. [22]

Again, petitioners do not pose issues pertaining to title or ownership. They are, in effect,
questioning the validity of the sales made by the administrator, an issue that can only be
properly threshed out by the probate court. Paragraph 13 of petitioners’ Complaint
alleges as follows:
13. The purported transfers and sales executed by Defendant Aurora C. Romero to and
in favor of Defendant Vittorio C. Romero are nullities since all were simulated, entered
into without the intent and volition of Defendant Aurora C. Romero, attended by force,
intimidation, duress and fraud and not supported with any valid or sufficient
consideration and with the sole depraved intentions of depriving the other compulsory
heirs of the late Judge Dante Y. Romero of their rightful share in the estate.
[23]
 (Emphasis omitted.)

Indeed, implicit in the requirement for judicial approval of sales of property under
administration is the recognition that the probate court has the power to rescind or
nullify the disposition of a property under administration that was effected without its
authority.[24] That petitioners have the prerogative of choosing where to file their action
for nullification – whether with the probate court or the regular court – is erroneous. As
held in Marcos, II v. Court of Appeals:
xxx (T)he authority of the Regional Trial Court, sitting, albeit with limited jurisdiction, as
a probate court over the estate of deceased individual, is not a trifling thing. The court's
jurisdiction, once invoked, and made effective, cannot be treated with indifference nor
should it be ignored with impunity by the very parties invoking its authority.

In testament to this, it has been held that it is within the jurisdiction of the probate court
to approve the sale of properties of a deceased person by his prospective heirs before
final adjudication; to determine who are the heirs of the decedent; the recognition of a
natural child; the status of a woman claiming to be the legal wife of the decedent; the
legality of disinheritance of an heir by the testator; and to pass upon the validity of a
waiver of hereditary rights.[25] (Citations omitted.)

Thus, the validity of the sales made by Aurora, allegedly orchestrated by petitioners’ co-
heir, Vittorio, can only be determined by the probate court, because it is the probate
court which is empowered to identify the nature of the property, and that has jurisdiction
over Aurora’s actions and dispositions as administrator. In Peñaverde v. Peñaverde,
[26]
 the Court even adjudged the petitioners guilty of forum-shopping for filing a separate
civil action despite the pendency of the said petitioners’ own case seeking that letters of
administration be granted to them. Similar to the case at bar, the petitioners
in Peñaverde also sought the annulment of titles in the name of their co-heir:
The two cases filed by petitioners are: (1) Sp. Proc. No. Q-94-19471, which seeks
letters of administration for the estate of Mariano Peñaverde; and (2) Civil Case No. Q-
95-24711, which seeks the annulment of the Affidavit of Self-Adjudication executed by
Mariano Peñaverde and the annulment of titles in his name as well as the reopening of
the distribution of his estate.

Evidently, in filing Sp. Proc. No. Q-94-19471, petitioners sought to share in the estate of
Mariano, specifically the subject land previously owned in common by Mariano and his
wife, Victorina.This is also what they hoped to obtain in filing Civil Case No. Q-95-
24711.

Indeed, a petition for letters of administration has for its object the ultimate distribution
and partition of a decedent's estate. This is also manifestly sought in Civil Case No. Q-
95-24711, which precisely calls for the "Reopening of Distribution of Estate" of Mariano
Peñaverde. In both cases, petitioners would have to prove their right to inherit from the
estate of Mariano Peñaverde, albeit indirectly, as heirs of Mariano's wife, Victorina.

Under the circumstances, petitioners are indeed guilty of forum-shopping.

xxx                                          xxx                                          xxx

In the case at bar, it cannot be denied that the parties to Sp. Proc. No. Q-94-19471 and
Civil Case No. Q-95-24711 are identical. There is also no question that the rights
asserted by petitioners in both cases are identical, i.e., the right of succession to the
estate of their aunt, Victorina, wife of Mariano. Likewise, the reliefs prayed for --- to
obtain their share in the estate of Mariano --- are the same, such relief being founded on
the same facts ---their relationship to Mariano's deceased wife, Victorina. [27]

WHEREFORE, the instant Petition is DENIED. As the properties herein are already

subject of an intestate proceeding filed on 6 January 1976, the 14 April 2009 judgment
of the Court of Appeals in CA-G.R. SP No. 104025 finding no grave abuse of discretion
on the part of the RTC is AFFIRMED.

SO ORDERED.

Carpio, (Chairperson) Brion, Perez, and Reyes, JJ., concur.

THIRD DIVISION
[ G.R. NO. 155555, August 16, 2005 ]
ISABEL P. PORTUGAL AND JOSE DOUGLAS PORTUGAL JR., PETITIONERS, VS.
LEONILA PORTUGAL-BELTRAN, RESPONDENT.

DECISION

CARPIO MORALES, J.:

Petitioners Isabel P. Portugal and her son, Jose Douglas Portugal Jr., assail the
September 24, 2002[1] Decision of the Court of Appeals affirming that of the Regional
Trial Court (RTC) of Caloocan City, Branch 124 [2] which dismissed, after trial, their
complaint for annulment of title for failure to state a cause of action and lack of
jurisdiction.

From the records of the case are gathered the following material allegations - claims of
the parties which they sought to prove by testimonial and documentary evidence during
the trial of the case:

On November 25, 1942, Jose Q. Portugal (Portugal) married Paz Lazo. [3]

On May 22, 1948, Portugal married petitioner Isabel de la Puerta. [4]

On September 13, 1949, petitioner Isabel gave birth to a boy whom she named Jose
Douglas Portugal Jr., her herein co-petitioner. [5]

On April 11, 1950, Paz gave birth to a girl, Aleli, [6] later baptized as Leonila Perpetua
Aleli Portugal, herein respondent. [7]

On May 16, 1968, Portugal and his four (4) siblings executed a Deed of Extra-Judicial
Partition and Waiver of Rights[8] over the estate of their father, Mariano Portugal, who
died intestate on November 2, 1964.[9] In the deed, Portugal's siblings waived their
rights, interests, and participation over a 155 sq. m. parcel of land located in Caloocan
in his favor.[10]

On January 2, 1970, the Registry of Deeds for Caloocan City issued Transfer Certificate
of Title (TCT) No. 34292 covering the Caloocan parcel of land in the name of "Jose Q.
Portugal, married to Paz C. Lazo."[11]

On February 18, 1984, Paz died.

On April 21, 1985, Portugal died intestate.

On February 15, 1988, respondent executed an "Affidavit of Adjudication by Sole Heir of

Estate of Deceased Person"[12] adjudicating to herself the Caloocan parcel of land. TCT
No. 34292/T-172[13] in Portugal's name was subsequently cancelled and in its stead TCT
No. 159813[14] was issued by the Registry of Deeds for Caloocan City on March 9, 1988
in the name of respondent, "Leonila Portugal-Beltran, married to Merardo M. Beltran,
Jr."

Later getting wind of the death in 1985 of Portugal and still later of the 1988 transfer by
respondent of the title to the Caloocan property in her name, petitioners filed before the
RTC of Caloocan City on July 23, 1996 a complaint [15] against respondent for annulment
of the Affidavit of Adjudication executed by her and the transfer certificate of title issued
in her name.

In their complaint, petitioners alleged that respondent is not related whatsoever to the
deceased Portugal, hence, not entitled to inherit the Caloocan parcel of land and that
she perjured herself when she made false representations in her Affidavit of
Adjudication.

Petitioners accordingly prayed that respondent's Affidavit of Adjudication and the TCT in
her name be declared void and that the Registry of Deeds for Caloocan be ordered to
cancel the TCT in respondent's name and to issue in its stead a new one in their
(petitioners') name, and that actual, moral and exemplary damages and attorney's fees
and litigation expenses be awarded to them.

Following respondent's filing of her answer, the trial court issued a Pre-Trial Order
chronicling, among other things, the issues as follows:
a. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal Sr.,
is valid?
b. Which of the plaintiff . . . Jose Portugal Jr. and defendant Leonila P. Beltran is the
legal heir of the deceased Jose Q. Portugal Sr.?
c. Whether or not TCT No. 159813 was issued in due course and can still be
contested by plaintiffs.
d. Whether or not plaintiffs are entitled to their claims under the complaint .
[16]
 (Underscoring supplied)
After trial, the trial court, by Decision of January 18, 2001, [17] after giving an account of
the testimonies of the parties and their witnesses and of their documentary
evidence, without resolving the issues defined during pre-trial, dismissed the case
for lack of cause of action on the ground that petitioners' status and right as putative
heirs had not been established before a probate (sic) court, and lack of
jurisdiction over the case, citing Heirs of Guido and Isabel Yaptinchay v. Del Rosario.
[18]

In relying on Heirs of Guido and Isabel Yaptinchay, the trial court held:

The Heirs of Yaptinchay case arose from facts not dissimilar to the case at bar.
xxx

In the instant case, plaintiffs presented a Marriage Contract, a Certificate of Live Birth,
pictures (sic) and testimonial evidence to establish their right as heirs of the decedent.
Thus, the preliminary act of having a status and right to the estate of the decedent, was
sought to be determined herein. However, the establishment of a status, a right, or a
particular fact is remedied through a special proceeding (Sec. 3(c), Rule 1, 1997
Rules of Court), not an ordinary civil action whereby a party sues another for the
enforcement or protection of a right, or the protection or redress of a wrong (ibid, a). The
operative term in the former is "to establish", while in the latter, it is "to enforce", a
right. Their status and right as putative heirs of the decedent not having been
established, as yet, the Complaint failed to state a cause of action.

The court, not being a probate (sic) court, is without jurisdiction to rule on plaintiffs'

cause to establish their status and right herein. Plaintiffs do not have the personality to
sue (Secs. 1 and 2, Rule 3, in relation to Secs. 1 and 2, Rule 2, supra).[19] (Italics in the
original; emphasis and underscoring supplied).
Petitioners thereupon appealed to the Court of Appeals, questioning the trial
court's ratio decedendi in dismissing the case as diametrically opposed to this Court's
following ruling in Cariño v. Cariño,[20] viz:
Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void. Meaning, where the absolute nullity of a previous marriage
is sought to be invoked for purposes of contracting a second marriage, the sole basis
acceptable in law, for said projected marriage to be free from legal infirmity, is a final
judgment declaring the previous void. (Domingo v. Court of Appeals, 226 SCRA 572,
579 [1993]) However, for purposes other than remarriage, no judicial action is
necessary to declare a marriage an absolute nullity. For other purposes, such as but not
limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of
estate, dissolution of property regime, or a criminal case for that matter, the court may
pass upon the validity of marriage even after the death of the parties thereto, and even
in a suit not directly instituted to question the validity of said marriage, so long as it
is essential to the determination of the case. (Niñal, et al. v. Bayadog, GR No.
13378, March 14, 2000). In such cases, evidence must be adduced, testimonial or
documentary, to prove the existence of grounds rendering such a previous marriage an
absolute nullity. These need not be limited solely to an earlier final judgment of a court
declaring such previous marriage void. (Domingo v. Court of Appeals, supra) (Emphasis
and underscoring supplied).
Conceding that the ruling in Cariño was promulgated (in 2001) subsequent to that
of Heirs of Guido and Isabel Yaptinchay (in 1999), the appellate court found Cariño to
be inapplicable, however, to the case in this wise:
To be borne in mind is the fact that the main issue in the Cariño case was
the validity of the two marriages contracted by the deceased SPO4 Santiago Cariño,
whose death benefits was the bone of contention between the two women both named
Susan (viz., Susan Nicdao Cariño and Susan Yee Cariño) both of whom he married. It
is not disputed in said case that SPO4 S. Cariño contracted two marriages with said two
women during his lifetime, and the only question was: which of these two marriages was
validly celebrated? The award of the death benefits of the deceased Cariño was thus,
merely an incident to the question of which of the two marriages was valid. Upon the
other hand, the case at bench is of a different milieu. The main issue here is
the annulment of title to property. The only undisputed fact in this case is that the
deceased Jose Portugal, during his lifetime, owned a parcel of land covered by Transfer
Certificate of Title (TCT) No. T-34292. However, here come two contending parties, -
herein plaintiffs-appellants and defendant-appellee, - both now insisting to be the legal
heir(s) of the decedent. x x x. The status and rights of the parties herein have not,
therefore, been definitively established, as yet. x x x. Necessarily and naturally, such
questions as to such status or right must be properly ventilated in an appropriate special
proceeding, not in an ordinary civil action, whereunder a party sues another for the
enforcement or protection of a right, or the protection or redress of a wrong. The
institution of an ordinary civil suit for that purpose in the present case is thus
impermissible. For it is axiomatic that what the law prohibits or forbids directly, it cannot
permit or allow indirectly. To permit, or allow, a declaration of heirship, or the
establishment of the legitimacy or illegitimacy of a child to be determined in an ordinary
civil action, not in an appropriate special proceeding brought for that purpose, is thus to
impinge upon this axiom. x x x[21] (Emphasis in the original, underscoring supplied).
The appellate court, by Decision of September 24, 2002, [22] thus affirmed the trial court's
dismissal of the case.

Hence, the present Petition for Review on Certiorari, [23] faulting the appellate court to
have erred when
I.

. . . it affirmed the RTC decision dismissing the initiatory complaint as it failed to state a
cause of action.
II.

. . . (i) it applied the ruling in Heirs of Guido [and Isabel] Yaptingchay despite the
existence of a later and contrary ruling in Cariño, and (ii) when the Honorable CA and
the lower court failed to render judgment based on the evidence presented relative to
the issues raised during pre-trial, . . .[24] (Emphasis and underscoring supplied).
Petitioners thus prayed as follows:

WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that the

questioned CA decision be reversed, and a new one entered in accordance with the
prayers set forth in the instant complaint based on the above disquisition and evidence
adduced by petitioners in the court a quo.

IN THE ALTERNATIVE, should the Honorable Supreme Court find that the
pronouncements in Cariño apply, a decision be entered remanding to the court a
quo the determination of the issues of which of the two marriages is valid, and the
determination of "heirship" and legitimacy of Jose Jr. and Leonila preparatory to the
determination of the annulment of title issued in the name of Leonila.

Other relief and remedy just and equitable in the premises are likewise prayed for.
[25]
 (Underscoring supplied).
Petitioners, in the main, argue that the appellate court misapplied Heirs of Guido and
Isabel Yaptinchay and in effect encouraged multiplicity of suits which is discouraged by
this Court as a reading of Cariño shows; that Cariño allows courts to pass on the
determination of heirship and the legitimacy or illegitimacy of a child so long as it is
necessary to the determination of the case; and that contrary to the appellate court's
ruling, they had established their status as compulsory heirs.

In the main, the issue in the present petition is whether petitioners have to institute a
special proceeding to determine their status as heirs before they can pursue the case
for annulment of respondent's Affidavit of Adjudication and of the TCT issued in her
name.

In the above-cited case of Heirs of Guido and Isabel Yaptinchay,[26] the therein

petitioners executed on March 17, 1994 an extrajudicial settlement of the estate of the
deceased Guido and Isabel Yaptinchay, "owners-claimants" of the two lots mentioned
therein. They later discovered on August 26, 1994 that a portion, if not all, of the two lots
had been titled in the name of the therein respondent Golden Bay Realty and
Development Corporation which in turn sold portions thereof to the therein individual
respondents. The therein petitioners Heirs thus filed a complaint for annulment of titles.
The therein respondents moved to dismiss the case for failure of the therein petitioners
to, inter alia, state a cause of action and prove their status as heirs. The trial court
granted the motion to dismiss in this wise:
But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel
Yaptinchay have not shown any proof or even a semblance of it-except the allegations
that they are the legal heirs of the aforementioned Yaptinchays-that they have been
declared the legal heirs of the deceased  couple. Now, the determination of who are the
legal heirs of the deceased couple must be made in the proper special proceedings in
court, and not in an ordinary suit for reconveyance of property. This must take
precedence over the action for reconveyance . . .[27] (Italics in the original; underscoring
supplied).
On petition for certiorari by the Heirs, this Court, albeit holding that the petition was an
improper recourse, found that the trial court did not commit grave abuse of discretion in
dismissing the case. Citing Litam et al. v. Rivera[28] and Solivio v. Court of Appeals,
[29]
 this Court held that "the declaration of heirship can be made only in a special
proceeding inasmuch as the petitioners here are seeking the establishment of a status
or right."

In the above-cited case of Litam,[30] Gregorio Dy Tam instituted a special proceeding for

issuance of letters of administration before the then Court of First Instance (CFI) of
Rizal, alleging in his petition that he is the son of Rafael Litam who died in Manila on
January 10, 1951 and is survived by him and his therein named seven (7) siblings who
are children of the decedent by his marriage to Sia Khin celebrated in China in 1911;
that the decedent contracted in 1922 in the Philippines another marriage with Marcosa
Rivera; and that the decedent left neither a will nor debt. Dy Tam thus prayed for the
issuance of letters of administration to Marcosa Rivera, "the surviving spouse of the
decedent." The CFI granted the petition and issued letters of administration to, on
Marcosa's request, her nephew Arminio Rivera.

While the special proceeding was pending, Dy Tam and his purported siblings filed a
civil case before the same court, against the estate of Rafael Litam administrator
Arminio Rivera and Remedios R. Espiritu, duly appointed guardian of Marcosa. In their
complaint, Dy Tam and his purported siblings substantially reproduced the allegations
made in his petition in the special proceeding, with the addition of a list of properties
allegedly acquired during the marriage of the decedent and Marcosa.

Finding the issue raised in the civil case to be identical to some unresolved incidents in
the special proceeding, both were jointly heard by the trial court, following which it
rendered a decision in the civil case dismissing it, declaring, inter alia, that the plaintiffs
Dy Tam et al. are not the children of the decedent whose only surviving heir is Marcosa.

On appeal to this Court by Dy Tam et al., one of the two issues raised for determination
was whether they are the legitimate children of Rafael Litam.

This Court, holding that the issue hinged on whether Rafael Litam and Sia Khin were
married in 1911, and whether Rafael Litam is the father of appellants Dy Tam et al.,
found "substantially correct" the trial court's findings of fact and its conclusion that,
among other things, the birth certificates of Dy Tam et al. "do not establish the identity of
the deceased Rafael Litam and the persons named therein as father [and] it does not
appear in the said certificates of birth that Rafael Litam had in any manner intervened in
the preparation and filing thereof"; and that "[t]he other documentary evidence
presented by [them] [is] entirely immaterial and highly insufficient to prove the alleged
marriage between the deceased Rafael Litam and Sia Khin and [their] alleged status . . .
as children of said decedent."

This Court went on to opine in Litam, however, that "the lower court should not have
declared, in the decision appealed from, that Marcosa is the only heir of the decedent,
for such declaration is improper in the [civil case], it being within the exclusive
competence of the court in [the] [s]pecial [p]roceeding."

In Solivio,[31] also cited in Heirs of Guido and Isabel Yaptinchay, there was a special
proceeding for the settlement of the estate of the deceased, who was a soltero, filed
before the RTC of Iloilo. In the special proceeding, Branch 23 of said court declared as
sole heir Celedonia Solivio, the decedent's maternal aunt-half sister of his mother.
Concordia Javellana-Villanueva, the decedent's paternal aunt-sister of his father, moved
to reconsider the court's order declaring Celedonia Solivio as sole heir of the decedent,
she claiming that she too was an heir. The court denied the motion on the ground of
tardiness. Instead of appealing the denial of her motion, Concordia filed a civil
case against Celedonia before the same RTC, for partition, recovery of possession,
ownership and damages. The civil case was raffled to Branch 26 of the RTC, which
rendered judgment in favor of Concordia. On appeal by Celedonia, the appellate court
affirmed the said judgment.

On petition for review filed before this Court by Celedonia who posed, among other
issues, "whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain [the civil
action] for partition and recovery of Concordia Villanueva's share of the estate of [the
deceased] while the [estate] proceedings . . . were still pending . . . in Branch 23 of the
same court," this Court held that "[i]n the interest of orderly procedure and to avoid
confusing and conflicting dispositions of a decedent's estate, a court should not
interfere with [estate] proceedings pending in a co-equal court," citing Guilas v.
CFI Judge of Pampanga.[32]

This Court, however, in Solivio, upon "[c]onsidering that the estate proceedings are still
pending, but nonetheless [therein private respondent-Concordia Villanueva] had lost her
right to have herself declared as co-heir in said proceedings, opted to proceed to
discuss the merits of her claim in the interest of justice," and declared her an heir of
the decedent.

In Guilas[33] cited in Solivio, a project of partition between an adopted daughter, the

therein petitioner Juanita Lopez Guilas (Juanita), and her adoptive father was approved
in the proceedings for the settlement of the testate estate of the decedent-adoptive
mother, following which the probate court directed that the records of the case be
archived.

Juanita subsequently filed a civil action against her adoptive father to annul the project
of partition on the ground of lesion, preterition and fraud, and prayed that her adoptive
father immediately deliver to her the two lots allocated to her in the project of partition.
She subsequently filed a motion in the testate estate proceedings for her adoptive father
to deliver to her, among other things, the same two lots allotted to her.

After conducting pre-trial in the civil case, the trial court, noting the parties' agreement to
suspend action or resolution on Juanita's motion in the testate estate proceedings for
the delivery to her of the two lots alloted to her until after her complaint in the civil case
had been decided, set said case for trial.

Juanita later filed in the civil case a motion to set aside the order setting it for trial on the
ground that in the amended complaint she, in the meantime, filed, she acknowledged
the partial legality and validity of the project of partition insofar as she was allotted the
two lots, the delivery of which she was seeking. She thus posited in her motion to set
aside the April 27, 1966 order setting the civil case for hearing that there was no longer
a prejudicial question to her motion in the testate estate proceedings for the delivery to
her of the actual possession of the two lots. The trial court, by order of April 27, 1966,
denied the motion.

Juanita thereupon assailed the April 27, 1966 order before this Court.

The probate court's approval of the project of partition and directive that the records of
the case be sent to the archives notwithstanding, this Court held that the testate estate
proceedings had not been "legally terminated" as Juanita's share under the project of
partition had not been delivered to her. Explained this Court:
As long as the order of the distribution of the estate has not been complied with, the
probate proceedings cannot be deemed closed and terminated (Siguiong vs. Tecson,
supra.); because a judicial partition is not final and conclusive and does not prevent the
heir from bringing an action to obtain his share, provided the prescriptive period therefor
has not elapse (Mari vs. Bonilla, 83 Phil., 137). The better practice, however, for the heir
who has not received his share, is to demand his share through a proper motion in
the same probate or administration proceedings, or for re-opening of the probate or
administrative proceedings if it had already been closed, and not through an
independent action, which would be tried by another court or Judge which may
thus reverse a decision or order of the probate o[r] intestate court already final
and executed and re-shuffle properties long ago distributed and disposed of (Ramos
vs. Ortuzar, 89 Phil. 730, 741-742; Timbol vs. Cano, supra,; Jingco vs. Daluz, L-5107,
April 24, 1953, 92 Phil. 1082; Roman Catholic vs. Agustines, L-14710, March 29, 1960,
107 Phil., 455, 460-461).[34] (Emphasis and underscoring supplied).
This Court thus set aside the assailed April 27, 1966 order of the trial court setting the
civil case for hearing, but allowed the civil case to continue because it "involves no
longer" the two lots adjudicated to Juanita.

The common doctrine in Litam, Solivio and Guilas in which the adverse parties are

putative heirs to the estate of a decedent or parties to the special proceedings for its
settlement is that if the special proceedings are pending, or if there are no special
proceedings filed but there is, under the circumstances of the case, a need to file one,
then the determination of, among other issues, heirship should be raised and settled in
said special proceedings. Where special proceedings had been instituted but had been
finally closed and terminated, however, or if a putative heir has lost the right to have
himself declared in the special proceedings as co-heir and he can no longer ask for its
re-opening, then an ordinary civil action can be filed for his declaration as heir in order
to bring about the annulment of the partition or distribution or adjudication of a property
or properties belonging to the estate of the deceased.

In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to
Portugal's estate, executed on February 15, 1988 [35] the questioned Affidavit of
Adjudication under the second sentence of Rule 74, Section 1 of the Revised Rules of
Court.[36] Said rule is an exception to the general rule that when a person dies leaving a
property, it should be judicially administered and the competent court should appoint a
qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased
left no will, or in case he did, he failed to name an executor therein. [37]

Petitioners claim, however, to be the exclusive heirs of Portugal. A probate or intestate

court, no doubt, has jurisdiction to declare who are the heirs of a deceased.

It appearing, however, that in the present case the only property of the intestate estate
of Portugal is the Caloocan parcel of land, [38] to still subject it, under the circumstances
of the case, to a special proceeding which could be long, hence, not expeditious, just to
establish the status of petitioners as heirs is not only impractical; it is burdensome to the
estate with the costs and expenses of an administration proceeding. And it is
superfluous in light of the fact that the parties to the civil case - subject of the present
case, could and had already in fact presented evidence before the trial court which
assumed jurisdiction over the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason
to still subject Portugal's estate to administration proceedings since a determination of
petitioners' status as heirs could be achieved in the civil case filed by petitioners, [39] the
trial court should proceed to evaluate the evidence presented by the parties during the
trial and render a decision thereon upon the issues it defined during pre-trial, which bear
repeating, to wit:
1. Which of the two (2) marriages contracted by the deceased Jose Q. Portugal, is
valid;
2. Which of the plaintiff, Jose Portugal Jr. and defendant Leonila P. Beltran is the
legal heir of the deceased Jose Q. Portugal (Sr.);
3. Whether or not TCT No. 159813 was issued in due course and can still be
contested by plaintiffs;
4. Whether or not plaintiffs are entitled to their claim under the complaint. [40]
WHEREFORE, the petition is hereby GRANTED. The assailed September 24, 2002
Decision of the Court of Appeals is hereby SET ASIDE.

Let the records of the case be REMANDED to the trial court, Branch 124 of the
Regional Trial Court of Caloocan City, for it to evaluate the evidence presented by the
parties and render a decision on the above-enumerated issues defined during the pre-
trial.

No costs.

SO ORDERED.

Panganiban, (Chairman), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

385 Phil. 1014

SECOND DIVISION
[ G.R. No. 115181, March 31, 2000 ]
MARIA SOCORRO AVELINO, PETITIONER, VS. COURT OF APPEALS, ANGELINA
AVELINO, SHARON AVELINO, ANTONIO AVELINO, JR., TRACY AVELINO,
PATRICK MICHAEL AVELINO AND MARK ANTHONY AVELINO, RESPONDENTS.

RESOLUTION

QUISUMBING, J.:

Before us is a petition for review on certiorari of the Decision of the Court of Appeals
dated February 16, 1994 in CA-G.R. SP No. 31574 as well as its Resolution dated April
28, 1994 denying petitioner's Motion for Reconsideration. The assailed Decision
affirmed the Order of the Regional Trial Court of Quezon City, Branch 78, in Sp. Proc.
No. Q-91-10441 converting petitioner's petition for the issuance of letters of
administration to an action for judicial partition.
Petitioner Maria Socorro Avelino is a daughter and compulsory heir of the late Antonio
Avelino, Sr., and his first wife private respondent Angelina Avelino.

The other private respondents, Sharon, Antonio Jr., Tracy, Patrick and Mark Anthony all
surnamed Avelino are likewise compulsory heirs of Avelino, Sr. Sharon, an American, is
the second wife of Avelino, Sr. The other private respondents are siblings of petitioner
Ma. Socorro.

The records reveal that on October 24, 1991, Ma. Socorro filed before the Regional
Trial Court of Quezon City, Branch 78, docketed as SP Proc. No. Q-91-10441, a petition
for the issuance of letters of administration of the estate of Antonio Avelino, Sr., who
died intestate on April 10, 1989. She asked that she be appointed the administrator of
the estate.

On December 3, 1992, Angelina, and the siblings filed their opposition by filing a motion
to convert the said judicial proceedings to an action for judicial partition which petitioner
duly opposed.

On February 16, 1993, public respondent judge issued the assailed Order which reads:
"Acting on the `Motion to Convert Proceedings to Action for Judicial Partition',
considering that the petitioner is the only heir not amenable to a simple partition, and all
the other compulsory heirs manifested their desire for an expeditious settlement of the
estate of the deceased Antonio Avelino, Sr., the same is granted.

"WHEREFORE, the petition is converted into judicial partition of the estate of deceased
Antonio Avelino, Sr. The parties are directed to submit a complete inventory of all the
real and personal properties left by the deceased. Set the hearing of the judicial partition
on APRIL 13, 1993, at 8:30 o'clock in the morning. Notify all the parties and their
counsel of this assignment.

"SO ORDERED."[1]
On March 17, 1993, petitioner filed a motion for reconsideration which was denied in an
Order dated June 16, 1993.

On July 23, 1993, Ma. Socorro filed before the Court of Appeals, a petition for certiorari,
prohibition, and mandamus alleging grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the trial court, in granting private respondents'
motion to convert the judicial proceeding for the issuance of letters of administration to
an action for judicial partition. Her petition was docketed as CA-G.R. SP No. 31574.

On February 18, 1994, the respondent appellate court rendered the assailed decision,
stating that the "petition is DENIED DUE COURSE" and accordingly dismissed."[2]

On March 1, 1994, petitioner duly moved for reconsideration, but it was denied on April
28, 1994.

Hence, this petition. Petitioner assigns the following errors:

THE COURT OF APPEALS ERRED IN UPHOLDING THE LOWER COURT'S FINDING

THAT PARTITION IS PROPER UNDER THE PREMISES.

ADMINISTRATION SHOULD BE THE PROPER REMEDY PENDING THE

DETERMINATION OF THE CHARACTER AND EXTENT OF THE DECEDENT'S
ESTATE.[3]

For resolution, we find that given the circumstances in this case, the sole issue here is
whether respondent appellate court committed an error of law and gravely abused its
discretion in upholding the trial court's finding that a partition is proper.

 Petitioner submits that: First, no partition of the estate is possible in the instant case as
no determination has yet been made of the character and extent of the decedent's
estate. She points to the Court's ruling in Arcilles v. Montejo, 26 SCRA 197 (1969),
where we held that when the existence of other properties of the decedent is a matter
still to be reckoned with, administration proceedings are the proper mode of resolving
the same.[4] In addition, petitioner contends that the estate is in danger of being depleted
for want of an administrator to manage and attend to it.

Second, petitioner insists that the Rules of Court does not provide for conversion of a
motion for the issuance of letters of administration to an action for judicial partition. The
conversion of the motion was, thus, procedurally inappropriate and should be struck
down for lack of legal basis.

When a person dies intestate, or, if testate, failed to name an executor in his will or the
executor so named is incompetent, or refuses the trust, or fails to furnish the bond
required by the Rules of Court, then the decedent's estate shall be judicially
administered and the competent court shall appoint a qualified administrator in the order
established in Section 6 of Rule 78. [5] The exceptions to this rule are found in Sections 1
and 2 of Rule 74[6] which provide:

"SECTION 1. Extrajudicial settlement by agreement between heirs. - If the decedent left

no will and no debts and the heirs are all of age or the minors are represented by their
judicial or legal representatives duly authorized for the purpose, the parties may, without
securing letters of administration, divide the estate among themselves as they see fit by
means of a public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition..

"SEC. 2. Summary settlement of estates of small value.- Whenever the gross value of
the estate of a deceased person, whether he died testate or intestate, does not exceed
ten thousand pesos, and that fact if made to appear to the Regional Trial Court having
jurisdiction of the estate by the petition of an interested person and upon hearing, which
shall be held not less than one (1) month nor more than three (3) months from the date
of the last publication of a notice which shall be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the province, and after such
other notice to interested persons as the court may direct, the court may proceed
summarily, without the appointment of an executor or administrator, and without delay,
to grant, if proper, allowance of the will, if any there be, to determine who are the
persons legally entitled to participate in the estate and to apportion and divide it among
them after the payment of such debts of the estate as the court shall then find to be due;
and such persons, in their own right, if they are lawful age and legal capacity, or by their
guardians or trustees legally appointed and qualified, if otherwise, shall thereupon be
entitled to receive and enter into the possession of the portions of the estate so
awarded to them respectively. The court shall make such order as may be just
respecting the costs of the proceedings, and all orders and judgments made or
rendered in the course thereof shall be recorded in the office of the clerk, and the order
of partition or award, if it involves real estate, shall be recorded in the proper register's
office."

The heirs succeed immediately to all of the rights and properties of the deceased at the
moment of the latter's death.[7] Section 1, Rule 74 of the Rules of Court, allows heirs to
divide the estate among themselves without need of delay and risks of being dissipated.
When a person dies without leaving pending obligations, his heirs, are not required to
submit the property for judicial administration, nor apply for the appointment of an
administrator by the court.[8]

We note that the Court of Appeals found that in this case "the decedent left no debts
and the heirs and legatees are all of age." [9] With this finding, it is our view that Section
1, Rule 74 of the Rules of Court should apply.

In a last-ditch effort to justify the need for an administrator, petitioner insists that there is
nothing to partition yet, as the nature and character of the estate have yet to be
determined. We find, however, that a complete inventory of the estate may be done
during the partition proceedings, especially since the estate has no debts. Hence, the
Court of Appeals committed no reversible error when it ruled that the lower court did not
err in converting petitioner's action for letters of administration into an action for judicial
partition.

Nor can we sustain petitioner's argument that the order of the trial court converting an
action for letters of administration to one for judicial partition has no basis in the Rules of
Court, hence procedurally infirm. The basis for the trial court's order is Section 1, Rule
74 of the Rules of Court. It provides that in cases where the heirs disagree as to the
partition of the estate and no extrajudicial settlement is possible, then an ordinary action
for partition may be resorted to, as in this case. We have held that where the more
expeditious remedy of partition is available to the heirs, then the heirs or the majority of
them may not be compelled to submit to administration proceedings. [10] The trial court
appropriately converted petitioner's action for letters of administration into a suit for
judicial partition, upon motion of the private respondents. No reversible error may be
attributed to the Court of Appeals when it found the trial court's action procedurally in
order.

WHEREFORE, the petition is DENIED for lack of merit, and the assailed decision and
resolution of the Court of Appeals is CA-G.R. SP No. 31574 are AFFIRMED. Costs
against petitioner.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[ G.R. No. 187524, August 05, 2015 ]

SPOUSES MARIA BUTIONG AND FRANCISCO VILLAFRIA, SUBSTITUTED BY DR.
RUEL B. VILLAFRIA, PETITIONERS, VS. MA. GRACIA RIÑOZA PLAZO AND MA.
FE RIÑOZA ALARAS, RESPONDENTS.

DECISION

PERALTA, J.:

Before the-Court is a petition for review on certiorari under Rule 45 of the Rules of Court
seeking to reverse and set aside the Decision [1] and Resolution,[2] dated March 13, 2009
and April 23, 2009, respectively, of the Court Appeals (CA) in CA-G.R. SP No. 107347,
which affirmed the Judgment[3] dated October 1, 2001 of the Regional Trial Court (RTC)
of Nasugbu, Batangas, Branch 14, in Civil Case No. 217.

The antecedent facts are as follows:

On November 16, 1989, Pedro L. Riñoza died intestate, leaving several heirs, including
his children with his first wife, respondents Ma. Gracia R. Plazo and Ma. Fe Alaras, as
well as several properties including a resort covered by Transfer Certificates of Title
(TCT) No. 51354 and No. 51355, each with an area of 351 square meters, and a family
home, the land on which it stands is covered by TCT Nos. 40807 and 40808, both
located in Nasugbu, Batangas.[4]

In their Amended Complaint for Judicial Partition with Annulment of Title and Recovery
of Possession[5] dated September 15, 1993, respondents alleged that sometime in
March 1991, they discovered that their co-heirs, Pedro's second wife, Benita Tenorio
and other children, had sold the subject properties to petitioners, spouses Francisco
Villafria and Maria Butiong, who are now deceased and substituted by their son, Dr.
Ruel B. Villafria, without their knowledge and consent. When confronted about the sale,
Benita acknowledged the same, showing respondents a document she believed
evidenced receipt of her share in the sale, which, however, did not refer to any sort of
sale but to a previous loan obtained by Pedro and Benita from a bank. [6] The document
actually evidenced receipt from Banco Silangan of the amount of P87,352.62 releasing
her and her late husband's indebtedness therefrom. [7] Upon inquiry, the Register of
Deeds of Nasugbu informed respondents that he has no record of any transaction
involving the subject properties, giving them certified true copies of the titles to the
same. When respondents went to the subject properties, they discovered that 4 out of
the 8 cottages in the resort had been demolished. They were not, however, able to
enter as the premises were padlocked.

Subsequently, respondents learned that on July 18, 1991, a notice of an extra-judicial

settlement of estate of their late father was published in a tabloid called Balita. Because
of this, they caused the annotation of their adverse claims over the subject properties
before the Register of Deeds of Nasugbu and filed their complaint praying, among
others, for the annulment of all documents conveying the subject properties to the
petitioners and certificates of title issued pursuant thereto. [8]

In their Answer,[9] petitioners denied the allegations of the complaint on the ground of

lack of personal knowledge and good faith in acquiring the subject properties. In the
course of his testimony during trial, petitioner Francisco further contended that what
they purchased was only the resort.[10] He also presented an Extra-Judicial Settlement
with Renunciation, Repudiations and Waiver of Rights and Sale which provides, among
others, that respondents' co-heirs sold the family home to the spouses Rolando and Ma.
Cecilia Bondoc for P1 million as well as a Deed of Sale whereby Benita sold the resort
to petitioners for P650,000.00.[11]

On October 1, 2001, the trial court nullified the transfer of the subject properties to
petitioners and spouses Bondoc due to irregularities in the documents of conveyance
offered by petitioners.as well as the circumstances surrounding the execution of the
same. Specifically, the Extra-Judicial Settlement was notarized by a notary public who
was not duly commissioned as such on the date it was executed.[12] The Deed of Sale
was undated, the date of the acknowledgment therein was left blank, and the
typewritten name "Pedro Riñoza, Husband" on the left side of the document was not
signed.[13] The trial court also observed that both documents were never presented to
the Office of the Register of Deeds for registration and that the titles to the subject
properties were still in the names of Pedro and his second wife Benita. In addition, the
supposed notaries and buyers of the subject properties were not even presented as
witnesses who supposedly witnessed the signing and execution of the documents of
conveyance.[14] On the basis thereof, the trial court ruled in favor of respondents, in its
Judgment, the pertinent portions of its fallo provide:
WHEREFORE, foregoing premises considered, judgment is hereby rendered as follows:

xxxx

4. a) Declaring as a nullity the Extra-Judicial Settlement with Renunciation, Repudiation

and Waiver of Rights and Sale" (Exh. "1", Villafria) notarized on December 23, 1991 by
Notary Public Antonio G. Malonzo of Manila, Doc. No. 190, Page No. 20, Book No. IXII,
Series of 1991.

b) Declaring as a nullity the Deed of Absolute Sale (Exh. "2", Villafria), purportedly
executed by Benita T. Riñoza in favor of spouses Francisco Villafria and Maria Butiong,
purportedly notarized by one Alfredo de Guzman, marked Doc. No. 1136, Page No.
141, Book No. XXX, Series of 1991.

c) Ordering the forfeiture of any and all improvements introduced by defendants

Francisco Villafria dnd Maria Butiong in the properties covered by TCT No. 40807,
40808, 51354 and 51355 of the Register of Deeds for Nasugbu, Batangas.

5. Ordering defendant Francisco Villafria and all persons, whose occupancy within the
premises of the four (4) parcels of land described in par. 4-c above is derived from the
rights and interest of defendant Villafria, to vacate its premises and to deliver
possession thereof, and all improvements existing thereon to plaintiffs, for and in behalf
of the estate of decedent Pedro L. Riñoza.

6. Declaring the plaintiffs and the defendants-heirs in the Amended Complaint to be the
legitimate heirs of decedent Pedro L. RifSoza, each in the capacity and degree
established, as well as their direct successors-in-interest, and ordering the defendant
Registrar of Deeds to issue the corresponding titles in their names in the proportion
established by law, pro indiviso, in TCT Nos. 40807, 40808, 51354, 51355 and 40353
(after restoration) within ten (10) days from finality of this Decision, upon payment of
lawful fees, except TCT No. 40353, which shall be exempt from all expenses for its
restoration.

With no costs.

SO ORDERED.[15]

On appeal, the CA affirmed the trial court's Judgment in its Decision [16] dated October
31, 2006 in the following wise:
The person before whom the resort deed was acknowledged, Alfredo de Guzman,
was not commissioned as a notary public from 1989 to July 3, 1991, the date the
certification was issued. Such being the case, the resort deed is not a public
document and the presumption of- regularity accorded to public documents will
not apply to the same. As laid down in Tigno, el al. v. Aquino, et al.:
The validity of a notarial certification necessarily derives from the authority of the
notarial officer. If the notary public does net have the capacity to notarize a
document, but does so anyway, then the document should be treated as
unnotarized. The rule may strike as rather harsh, and perhaps may prove to be
prejudicial to parties in good faith relying on the proferred authority of the notary public
or the person pretending to be one. Still, to admit otherwise would render merely
officious the elaborate process devised by this Court in order that a lawyer may receive
a notarial commission. Without such a rule, the notarization of a document by a
duly-appointed notary public will have the same legal effect as one accomplished
by a non-lawyer engaged in pretense.

The notarization of a document carries considerable legal effect. Notarization of a

private document converts such document into a public one, and renders it
admissible in court without further proof of its authenticity. Thus, notarization is
not an empty routine; to the contrary, it engages public interest in a substantial degree
and the protection of that interest requires preventing those who are not qualified or
authorized to act as notaries public from imposing upon the public and the courts and
administrative offices generally.
Parenthetically, the settlement/family home deed cannot be considered a public
document. This is because the following cast doubt on the document's
authenticity, to wit:

1.) The date of its execution was not indicated;

2.) The amount of consideration was superimposed;
3.) It was not presented to the Registry of Deeds of Nasugbu, Batangas for
annotation; and
4.) Not even the supposed notary public," Alfredo de Guzman, or the purported
buyer, the Spouses Rolando and Ma. Cecilia Bondoc, were presented as
witnesses.

Concededly, the absence of notarization in the resort deed and/or the lacking details in
the settlement/family home deed did not necessarily invalidate the transactions
evidenced by the said documents. However, since the said deeds are private
documents, perforce, their due execution and authenticity becomes subject to the
requirement of proof under the Rules on Evidence, Section 20, Rule 132 of which
provides:
Sec. 20. Proof of private document. - Before any private document offered as authentic
is received in evidence, its due execution aijd .authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.
The Complaining Heirs insist that the settlement/family home and the resort deed are
void as their signatures thereon are forgeries as opposed to the Villafrias who profess
the deeds' enforceability. After the Complaining Heirs presented proofs in support
of their claim that their signatures were forged, the burden then fell upon the
Villafrias to disprove the same, or conversely, to prove the authenticity and due
execution of the said deeds. The Villafrias failed in this regard.

As aforestated, the Villafrias did not present as witnesses (a) the notary public
who purportedly notarized the questioned instrument, (b) the witnesses who
appeared] in the instruments as eyewitnesses to the signing, or (c) an expert to
prove the authenticity and genuineness of all the signatures appearing o,n the
said instruments. Verily, the rule that, proper foundation must be laid for the
admission of documentary evidence; that is, the identity and authenticity of the
document must be reasonably established as a prerequisite to its admission, was
prudently observed by the lower court when it refused to admit the
settlement/family home and the resort deeds as their veracity are doubtful.[17]

Aggrieved, petitioners, substituted by their son Ruel Villafria, filed a Motion for
Reconsideration dated November 24, 2006 raising the trial court's lack of jurisdiction. It
was alleged that when the Complaint for Judicial Partition with Annulment of Title and
Recovery of Possession was filed, there was yet no settlement of Pedro's estate,
determination as to the nature thereof, nor was there an identification of the number of
legitimate heirs. As such, the trial court ruled on the settlement of the intestate estate of
Pedro in its ordinary jurisdiction when the action filed was for Judicial Partition.
Considering that the instant action is really one for settlement of intestate estate, the
trial court, sitting merely in its probate jurisdiction, exceeded its jurisdiction when it ruled
upon the issues of forgery and ownership. Thus, petitioner argued that said ruling is
void and has no effect for having been rendered without jurisdiction. The Motion for
Reconsideration was, however, denied by the appellate court on February 26, 2007.

On appeal, this Court denied on June 20, 2007, petitioner's Petition for Review
on Certiorari for submitting a verification of the petition, a certificate of non-forum
shopping and an affidavit of service that failed to comply with the 2004 Rules on
Notarial Practice regarding competent evidence of affiant's identities. [18] In its
Resolution[19] dated September 26, 2007, this Court also denied petitioner's Motion for
Reconsideration in the absence of any compelling reason to warrant a modification of
the previous denial. Thus, the June 20, 2007 Resolution became final and executory on
October 31, 2007 as certified by the Entry of Judgment issued by the Court. [20]

On January 16, 2008, the Court further denied petitioner's motion for leave to admit a
second motion for reconsideration of its September 26, 2007 Resolution, considering
that the same is a prohibited pleading under Section 2, Rule 52, in relation to Section 4,
Rule 56 of the 1997 Rules of Civil Procedure, as amended. Furthermore, petitioner's
letter dated December 18, 2007 pleading the Court to take a second, look at his petition
for review on certiorari and that a decision thereon be rendered based purely on its
merits was noted without action.[21]

Unsatisfied, petitioner wrote a letter dated March 24, 2008 addressed to then Chief
Justice Reynato S. Puno praying that a decision on the case be rendered based on
the .merits and not on formal requirements "as he stands to lose everything his parents
had left him just because the verification against non-forum shopping is formally
defective." However, in view of the Entry of Judgment having been made on October
31, 2007, the Court likewise noted said letter without action. [22]

On November 27, 2008, the RTC issued an Order, issuing a Partial Writ of Execution of
its October 1, 2001 Decision with respect to the portions disposing of petitioner's claims
as affirmed by the CA.

The foregoing notwithstanding, petitioner filed, on February 11, 2009, a Petition for
Annulment of Judgment and Order before the CA assailing the October 1, 2001
Decision as well as the November 27, 2008 Order of the RTC on the grounds of
extrinsic fraud and lack of jurisdiction. In its Decision dated March 13, 2009, however,
the CA dismissed the petition and affirmed the rulings of the trial court in the following
wise:
Although the assailed Decision of the Court a quo has already become final and
executory and in fact entry of judgment was issued on 31 October 2007, supra,
nevertheless, to put the issues to rest, We deem it apropos to tackle the same.

The Petitioner argues that the assailed Decision and Order of the Court a quo, supra,
should be annulled and set aside on the grounds of extrinsic fraud and lack of
jurisdiction.

We are not persuaded,

xxxx

Section 2 of the Rules as stated above provides that the annulment of a judgment may
"be based only on grounds of extrinsic fraud and lack of jurisdiction." In RP v. The Heirs
of Sancho Magdato, the High Tribunal stressed that:
There is extrinsic fraud when "the unsuccessful party had been prevented from
exhibiting fully his case, by fraud or deception practiced on him by his opponent,
as by keeping him away from court, ... or where the defendant never had
knowledge of the suit, being kept in ignorance by the acts of the plaintiff; ..."
Otherwise put, extrinsic or collateral fraud pertains to such fraud which prevents the
aggrieved party from having a trial or presenting his case to the court, or is used to
procure the judgment without fair submission of the controversy. This refers to acts
intended to keep the unsuccessful party away from the courts as when there is a false
promise of compromise or when one is kept in ignorance of the suit.

The pivotal issues before Us are: (1) whether there was a time during the
proceedings below that the Petitioners ever prevented from exhibiting fully their
case, by fraud or deception, practiced on them by Respondents, and (2) whether
the Petitioners were kept away from the court or kept in ignorance by the acts of
the Respondent?

We find nothing of that sort. Instead, what We deduced as We carefully delved

into the evidentiary facts surrounding the instant case as well as the proceedings
below as shown in the 36-page Decision of the Court a quo, is that the Petitioners
were given ample time to rebut the allegations of the Respondents and had in fact
addressed every detail of Respondent's cause of action against them. Thus,
Petitioners' allegation of the Court a quo's lack of jurisdiction is misplaced.

Our pronouncement on the matter finds support in the explicit ruling of the Supreme
Court in Sps. Santos, et al. v. Sps. Lumbao, thus:
It is elementary that the active participation of a party in a case pending against
him before a court is tantamount to recognition of that court's jurisdiction and
willingness to abide by the resolution of the case which will bar said party from
later on impugning the court's jurisdiction.
In fine, under the circumstances obtaining in this case the Petitioners are stopped from
assailing the Court a quo's lack of jurisdiction.

Too, We do not find merit in the Petitioners' second issue, supra.

As mentioned earlier, entry of judgment had already been made on the assailed
Decision and Order as early as 31 October 2007.

xxxx

It maybe that the doctrine of finality of judgments permits certain equitable

remedies such as a petition for annulment. But the rules are clear. The annulment
by the Court of Appeals of judgments or final orders and resolutions in civil
actions of the Regional Trial Courts is resorted to only where the ordinary
remedies of new trial, appeal, petition for relief or other appropriate remedies are
no longer available through no fault of the petitioner, supra.

If Petitioners lost their chance to avail themselves of the appropriate remedies or

appeal before the Supreme Court, that is their own look out. The High Tribunal has
emphatically pointed out in Mercado, et al. v. Security Bank Corporation, thus:
A principle almost repeated to satiety is that "an action for annulment of judgment
cannot and is not a substitute for the lost remedy of-appeal." A party must have first
availed of appeal, a motion for new trial or a petition for relief before an action for
annulment can prosper. Its obvious rationale is to prevent the party from
benefiting from his inaction or negligence. Also, the action for annulment of
judgment must be based either on (a) extrinsic fraud or (b) lack of jurisdiction or
denial of due process. Having failed to avail of the remedies and there being a
clear showing that neither of the grounds was present, the petition must be
dismissed. Only a disgruntled litigant would find such legal disposition
unacceptable.[23]
When the appellate court denied Petitioner's Motion for Reconsideration in its
Resolution dated April 23, 2009, petitioner filed the instant Petition for Review
on Certiorari on June 10, 2009, invoking the following ground:
I.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT RULING

THAT THE REGIONAL TRIAL COURT, BRANCH 14, NASUGBU, BATANGAS, ACTED
WITHOUT JURISDICTION IN ENTERTAINING THE SPECIAL PROCEEDING FOR
THE SETTLEMENT OF ESTATE OF PEDRO RIÑOZA AND THE CIVIL ACTION FOR
ANNULMENT OF TITLE OF THE HEIRS AND THIRD PERSONS IN ONE
PROCEEDING.[24]

Petitioner asserts that while the complaint filed by respondents was captioned as
"Judicial Partition with Annulment of Title and Recovery of Possession," the allegations
therein show that the cause of action is actually one for settlement of estate of decedent
Pedro. Considering that settlement of estate is a special proceeding cognizable by a
probate court of limited jurisdiction while judicial partition with annulment of title and
recovery of possession are ordinary civil actions cognizable by a court of general
jurisdiction, the trial court exceeded its jurisdiction in entertaining the latter while it was
sitting merely in its probate jurisdiction. This is in view of the prohibition found in the
Rules on the joinder of special civil actions and ordinary civil actions. [25] Thus, petitioner
argued that the ruling of the trial court is void and has no effect for having been
rendered in without jurisdiction.

Petitioner also reiterates the arguments raised before the appellate court that since the
finding of forgery relates only to the signature of respondents and not to their co-heirs
who assented to the conveyance, the transaction should be considered valid as to
them. Petitioner also denies the findings of the courts below that his parents are
builders in bad faith for they only took possession of the subject properties after the
execution of the transfer documents and after they paid the consideration on the sale.

The petition is bereft of merit.

Petitioner maintains that since respondents' complaint alleged the following causes of
action, the same is actually one for settlement of estate and not of judicial partition:
FIRST CAUSE OF ACTION

1. That Pedro L. Riñoza, Filipino and resident of Nasugbu, Batangas at the time of his
death, died intestate on November 16, 1989. Copy of his death certificate is hereto
attached as Annex "A";

2. That Plaintiffs together with the Defendants enumerated from paragraph 2-A to 2-

J are the only known heirs of the above-mentioned decedent. The plaintiffs and the
Defendants Rolando, Rafael, Antonio, Angelito, Lorna all surnamed Riñoza, and Myrna
R. Limon or Myrna R. Rogador, Epifanio Belo and Ma. Theresa R. Demafelix are the
decedent's legitimate children with his first wife, while Benita Tenorio Rifioza, is the
decedent's widow and Bernadette Riñoza, the decedent's daughter with said widow. As
such, said parties are co-owners by virtue of an intestate inheritance from the
decedent, of the properties enumerated in the succeeding paragraph;

3. That the decedent left the following real properties all located in Nasugbu,
Batangas:

xxxx

16. That the estate of decedent Pedro L. Riñoza has no known legal indebtedness;

17. That said estate remains undivided up to this date and it will be to the best
interest of all heirs that same be partitioned judicially. [26]
Petitioner is mistaken. It is true that some of respondents' causes of action pertaining to
the properties left behind by the decedent Pedro, his known heirs, and the nature and
extent of their interests thereon, may fall under an action for settlement of estate.
However, a complete reading of the complaint would readily show that, based on the
nature of the suit, the allegations therein, and the reliefs prayed for, the action is clearly
one for judicial partition with annulment of title and recovery of possession.

Section 1, Rule 74 of the Rules of Court provides:

RULE 74
Summary Settlement of Estate

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left

no will and no debts and the heirs are all of age, or the minors are represented by
their judicial or legal representatives duly authorized for the purpose, the parties may
without securing letters of administration, divide the estate among themselves as
they see fit by means of a public instrument filed in the office of the register of deeds,
and should they disagree, they may do so in an ordinary action of partition. If there
is only one heir, he may adjudicate to himself the entire estate by means of an affidavit
filled in the office of the register of deeds. The parties to an extrajudicial settlement,
whether by public instrument or by stipulation in a pending action for partition, or the
sole heir who adjudicates the entire estate to himself by means of an affidavit shall file,
simultaneously with and as a condition precedent to the filing of the public instrument, or
stipulation in the action for partition, or of the affidavit in the office of the register of
deeds, a bond with the said register of deeds, in an amount equivalent to the value of
the personal property involved as certified to under oath by the parties concerned and
conditioned upon the payment of any just claim that may be filed under section 4 of this
rule. It shall be presumed that the decedent left no debts if no creditor files a petition for
letters of administration within two (2) years after the death of the decedent.

The fact of the extrajudicial settlement or administration shall be published in a

newspaper of general circulation in the manner provided in the next succeeding section;
but no extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof. [27]

In this relation, Section 1, Rule 69 of the Rules of Court provides:

Section 1. Complaint in action for partition of real estate. — A person having the right to
compel the partition of real estate may do so as provided in this Rule, setting forth in
his complaint the nature and extent of his title and an adequate description of the
real estate of which partition is demanded and joining as defendants all other
persons interested in the property.[28]

As can be gleaned from the foregoing provisions, the allegations of respondents in their
complaint are but customary, in fact, mandatory, to a complaint for partition of real
estate. Particularly, the complaint alleged: (1) that Pedro died intestate; (2) that
respondents, together with their co-heirs, are all of legal age, with the exception of one
who is represented by a judicial representative duly authorized for the purpose; (3) that
the heirs enumerated are the only known heirs of Pedro; (4) that there is an account
and description of all real properties left by Pedro; (5) that Pedro's estate has no known
indebtedness; and (6) that respondents, as rightful heirs to the decedent's estate, pray
for the partition of the same in accordance with the laws of intestacy. It is clear,
therefore, that based on the allegations of the complaint, the case is one for judicial
partition. That the complaint alleged causes of action identifying the heirs of the
decedent, properties of the estate, and their rights thereto, does not perforce make it an
action for settlement of estate.

It must be recalled that the general rule is that when a person dies intestate, or, if
testate, failed to name an executor in his will or the executor so named is incompetent,
or refuses the trust, or. fails to furnish the bond required by the Rules of Court, then the
decedent's estate shall be judicially administered and the competent court shall appoint
a qualified administrator in the order established in Section 6 of Rule 78 of the Rules of
Court.[29] An exception to this rule, however, is found in the aforequoted Section 1 of
Rule 74 wherein the heirs of a decedent, who left no will and no debts due from his
estate, may divide the estate either extrajudicially or in an ordinary action for partition
without submitting the same for judicial administration nor applying for the appointment
of an administrator by the court.[30] The reason is that where the deceased dies without
pending obligations, there is no necessity for the appointment of an administrator to
administer the estate for them and to deprive the real owners of their possession to
which they are immediately entitled.[31]

In this case, it was expressly alleged in the complaint, and was not disputed, that Pedro
died without a will, leaving his estate without any pending obligations. Thus, contrary to
petitioner'.s contention, respondents were under no legal obligation to submit me
subject properties of the estate to a special proceeding for settlement of intestate
estate, and are, in fact, encouraged to have the same partitioned, judicially or
extrajudicially, by Pereira v. Court of Appeals:[32]
Section 1, Rule 74 of the Revised Rules of Court, however, does not preclude the heirs
from instituting administration proceedings, even if the estate has no" debts or
obligations, if they do not desire to resort for good reasons to an ordinary action for
partition. While Section 1 allows the heirs to divide the estate among themselves as
they may see fit, or to resort to an ordinary action for partition, the said provision does
not compel them to do so if they have good reasons to take a different course of action.
It should be noted that recourse to an administration proceeding even if the estate has
no debts is sanctioned only if the heirs have good reasons for not resorting to an action
for partition. Where' partition is possible, either in or out of court, the estate should
not be burdened with an administration proceeding without good and compelling
reasons.

Thus, it has been repeatedly held that when a person dies without leaving
pending obligations to be paid, his heirs, whether of age or not, are not bound to
submit the property to a judicial administration, which is always long and costly,
or to apply for the appointment of an administrator by the Court. It has been
uniformly held that in such case the judicial administration and the appointment
of an administrator are superfluous and unnecessary proceedings. [33]

Thus, respondents committed no error in filing an action for judicial partition instead of a
special proceeding for the settlement of estate as the same is expressly permitted by
law. That the complaint contained allegations inherent in an action for settlement of
estate does not mean that there was a prohibited joinder of causes of action for
questions as to the estate's properties as well as a determination of the heirs, their
status as such, and the nature and extent of their titles to the estate, may also be
properly ventilated in partition proceedings alone. [34] In fact, a complete inventory of the
estate may likewise be done during the partition proceedings, especially since the
estate has no debts.[35] Indeed, where the more expeditious remedy of partition is
available to the heirs, then they may not be compelled to submit to administration
proceedings, dispensing of the risks of delay and of the properties being dissipated. [36]

Moreover, the fact that respondents' complaint also prayed for the annulment of title and
recovery of possession does not strip the trial court off of its jurisdiction to hear and
decide the case. Asking for the annulment of certain transfers of property could very
well be achieved in an action for partition,[37] as can be seen in cases where courts
determine the parties' rights arising from complaints asking not only for the partition of
estates but also for the annulment of titles and recovery of ownership and possession of
property.[38] In fact, in Bagayas v. Bagayas,[39] wherein a complaint for annulment of sale
and partition was dismissed by the trial court due to the impropriety of an action for
annulment as it constituted a collateral attack on the certificates of title of the
respondents therein, this Court found the dismissal to be improper in the following
manner:
In Lacbayan v. Samoy, Jr. (Lacbayan) which is an action for partition premised on
the existence or non-existence of co-ownership between the parties, the Court
categorically pronounced that a resolution on the issue of ownership does not
subject the Torrens title issued over the disputed realties to a collateral attack. It
must be borne in mind that what cannot be collaterally attacked is the certificate
of title and not the title itself. As pronounced in Lacbayan:
There is no dispute that a Torrens certificate of title cannot be collaterally attacked, but
that rule is not material to the case at bar. What cannot be collaterally attacked is the
certificate of title and not the title itself. The certificate referred to is that
document issued by the Register of Deeds known as the TCT. In contrast, the title
referred to by law means ownership which is, more often than not, represented by
that document. Petitioner apparently confuses title with the certificate of title. Title as a
concept of ownership should not be confused with the certificate of title as evidence of
such ownership although both are interchangeably used. (Emphases supplied)

Thus, the RTC erroneously dismissed petitioner's petition for annulment of sale
on the ground that it constituted a collateral attack since she was actually
assailing Rogelio and Orlando's title to the subject lands and not any Torrens
certificate of title over the same.
Indeed, an action for partition does not preclude the settlement of the issue of
ownership. In fact, the determination as to the existence of the same is necessary in the
resolution of an action for partition, as held in Municipality of Biñan v. Garcia:[40]

The first phase of a partition and/or accounting suit is taken up with the
determination of whether or not a co-ownership in fact exists, and a partition is
proper (i.e., not otherwise legally proscribed) and may be made by voluntary
agreement of all the parties interested in the property. This phase may end with a
declaration that plaintiff is not entitled to have a partition either because a co-ownership
does not exist, or partition is legally prohibited. It may end, on the other hand, with an
adjudgment that a co-ownership does in truth exist, partition is proper in the premises
and an accounting of rents and profits received by the defendant from the real estate in
question is in order, x x x

The second phase commences when it appears that "the parties are unable to agree
upon the partition" directed by the court. In that event[,] partition shall be done for the
parties by the [c]ourt with the assistance of not more than three (3) commissioners. This
second stage may well also deal with the rendition of the accounting itself and its
approval by the [cjourt after the- parties have been accorded opportunity to be heard
thereon, and an award for the recovery by the party or parties thereto entitled of their
just share in the rents and profits of the real estate in question, x x x. [41]

An action for partition, therefore, is premised on the existence or non-existence of co-

ownership between the parties.[42] Unless and until the issue of co-ownership is
definitively resolved, it would be premature to effect a partition of an estate. [43]

In view of the foregoing, petitioner's argument that the trial court acted without
jurisdiction in entertaining -the action of settlement of estate and annulment of title in a
single proceeding is clearly erroneous for the instant complaint is precisely one for
judicial partition with annulment of title and recovery of possession, filed within the
confines of applicable law and jurisprudence. Under Section 1 [44] of Republic Act No.
7691 (RA 7691),[45] amending Batas Pambansa Blg. 129, the RTC shall exercise
exclusive original jurisdiction over all civil actions in which the subject of the litigation is
incapable of pecuniary estimation. Since the action herein was not merely for partition
and recovery of ownership but also for annulment of title and documents, the action is
incapable of pecuniary estimation and thus cognizable by the RTC. Hence, considering
that the trial court clearly had jurisdiction in rendering its decision, the instant petition for
annulment Sf judgment must necessarily fail.

Note that even if the instant action was one for annulment of title alone, without the
prayer for judicial partition, the requirement of instituting a separate special proceeding
for the determination of the status and rights of the respondents as putative heirs may
be dispensed with, in light of the fact that the parties had voluntarily submitted the issue
to the trial court and had already presented evidence regarding the issue of heirship.
[46]
 In Portugal v. Portugal-Beltran,[47] the Court explained:
In the case at bar, respondent, believing rightly or wrongly that she was the sole
heir to Portugal's estate, executed on February 15, 1988 the questioned Affidavit
of Adjudication under the second sentence of Rule 74, Section 1 of the Revised
Rules of Court. Said rule is an exception to the general rule that when a person
dies leaving a property, it should be judicially administered and the competent
court should appoint a qualified administrator, in the order established in Sec. 6,
Rule 78 in case the deceased left no will, or in case he did, he failed to name an
executor therein.

xxxx

It appearing, however, that in the present case the only property of the intestate
estate of Portugal is the Caloocan parcel of land, to still subject it, under the
circumstances of the case, to a special proceeding which could be long, hence,
not expeditious, just to establish the status of petitioners as heirs is not only
impractical; it is burdensome to the estate with the costs and expenses of an
administration proceeding. And it is superfluous in light of the fact that the
parties to the civil case - subject of the present case, could and had already in
fact presented evidence before the trial court which assumed jurisdiction over the
case upon the issues it defined during pre-trial.

In fine, under the circumstances of the present case, there being no compelling

reason to still subject Portugal's estate to administration proceedings since a
determination of petitioners' status as heirs could be achieved in the civil case
filed by petitioners, the trial court should proceed to evaluate the evidence
presented by the parties during the trial and render a decision thereon upon the
issues it defined during pre-trial, x x x. [48]

Thus, in view of the clarity of respondents' complaint and the causes of action alleged
therein, as well as the fact that the trial court, in arriving at its decision, gave petitioner
more than ample opportunity to advance his claims, petitioner cannot now be permitted
to allege lack of jurisdiction just because the judgment rendered was adverse to them.
To repeat, the action filed herein is one for judicial partition and not for settlement of
intestate estate. Consequently, that respondents also prayed for the annulment of title
and recovery of possession in the same proceeding does not strip the court off of its
jurisdiction for asking for the annulment of certain transfers of property could very well
be achieved in an action for partition.

As for petitioner's contention that the sale must be considered valid as to the heirs who
assented to the conveyance as well as their allegation of good faith, this Court does not
find any Compelling reason to deviate from the ruling of the appellate court. As
sufficiently found by both courts below, the authenticity and due execution of the
documents on which petitioner's claims are based were inadequately proven. They were
undated, forged, and acknowledged before a notary public who was not commissioned
as such on the date they were executed. They were never presented to the Register of
Deeds for registration. Neither were the supposed notaries and buyers of the subject
properties presented as witnesses.

While it may be argued that Benita, one of the co-heirs to the estate, actually
acknowledged the sale of the resort, the circumstances surrounding the same militate
against the fact of its occurrence. Not only was the Deed of Sale supposedly executed
by Benita undated and unsigned by Pedro, but the document she presented purportedly
evidencing her receipt of her share in the sale, did not refer to any sort of sale but to a
previous loan obtained by Pedro and Benita from a bank.

Moreover, credence must be given on the appellate court's observations as to

petitioners' actuations insofar as the transactions alleged herein are
concerned. First, they were seemingly uncertain as to the number and/or identity of the
properties bought by them.[49] In their Answer, they gave the impression that" they
bought both the resort and the family home and yet, during trial, Francisco Villafria
claimed they only bought the resort. In fact, it was only then that they presented the
subject Extra-Judicial Settlement and Deed of Sale. [50] Second, they never presented
any other document which would evidence their actual payment of consideration to the
selling heirs.[51] Third, in spite of the blatant legal infirmities of the subject documents of
conveyance, petitioners still took possession of the properties, demolished several
cottages, and introduced permanent improvements thereon.

In all, the Court agrees with the appellate court that petitioners failed to adequately
substantiate, with convincing, credible and independently verifiable proof, their claim
that they had, in fact, purchased the subject properties. The circumstances surrounding
the purported transfers cast doubt on whether they actually took place. In substantiating
their claim, petitioners relied solely on the Extra-Judicial Settlement and Deed of Sale,
who utterly failed to prove their authenticity and due execution. They cannot, therefore,
be permitted to claim absolute ownership of the subject lands based on the same.

Neither can they be considered as innocent purchasers for value and builders in good
faith. Good faith consists in the belief of the builder that the land the latter is building on
is one's own without knowledge of any defect or flaw in one's title. [52] However, in view of
the manifest defects in the instruments conveying their titles, petitioners should have
been placed on guard. Yet, they still demolished several cottages and constructed
improvement on the properties. Thus, their claim of good faith cannot be given
credence.

Indeed, a judgment which has acquired finality becomes immutable and unalterable,
hence, may no longer be modified in any respect except to correct clerical errors or
mistakes, all the issues between the parties being deemed resolved and. laid to rest.
[53]
 It is a fundamental principle in our judicial system and essential to an effective and
efficient administration of justice that, once a judgment has become final, the winning
party be, not through a mere subterfuge, deprived of the fruits of the verdict.
[54]
 Exceptions to the immutability of final judgment are allowed only under the most
extraordinary of circumstances.[55] Yet, when petitioner is given more than ample
opportunity to be heard, unbridled access to the appellate courts, as well as unbiased
judgments rendered after a consideration of evidence presented by the parties, as in the
case at hand, the Court shall refrain from reversing the rulings of the courts below in the
absence of any showing that the same were rendered with fraud or lack of jurisdiction.

WHEREFORE, premises considered, the instant petition is DENIED. The Decision and
Resolution, dated March 13, 2009 and April 23, 2009, respectively, of the Court Appeals
in CA-G.R. SP No. 107347, which affirmed the Judgment dated October 1, 2001 of the
Regional Trial Court of Nasugbu, Batangas, Branch 14, in Civil Case No. 217, insofar as
it concerns the resort covered by Transfer Certificates of Title No. 51354 and No.
51355, and family home covered by TCT No. 40807 and 40808, are AFFIRMED.

SO ORDERED.

Velasco, Jr., (Chairperson), Perez,* Leonen,** and Jardeleza, JJ., concur.

[ G.R. No. 172367, June 05, 2009 ]

FELICIDAD DADIZON, ILUMINADA B. MURGIA, PERLA B. MATIGA, DOMINADOR
M. BERNADAS, CIRILO B. DELIS, AND HEIRS OF MARCELINO BERNADAS,
NAMELY: FE BERNADAS-PICARDAL AND CARMELITO BERNADAS,
PETITIONERS, VS. SOCORRO BERNADAS, SUBSTITUTED BY JEANETTE B.
ALFAJARDO, FELY BERNADAS, JULIET BERNADAS, GODOFREDO BERNADAS,
JR. AND SOFIA C. BERNADAS, RESPONDENTS.

DECISION

PUNO, C.J.:

Before us is a Petition for Review on Certiorari [1] filed under Rule 45 of the Rules of
Court seeking to set aside the Decision[2] dated December 7, 2005 and the
Resolution[3] dated March 15, 2006 of the Court of Appeals (CA), which affirmed the
Order[4] dated September 5, 2001 of the Regional Trial Court (RTC), Branch 16 of the
8th Judicial Region in Naval, Biliran in Civil Case No. B-1066.

Petitioners and respondents are the children and representatives of the deceased
children of the late Diosdado Bernadas, Sr. who died intestate on February 1, 1977,
leaving in co-ownership with his then surviving spouse, Eustaquia Bernadas (who died
on May 26, 2000), several parcels of agricultural and residential land situated in Naval,
Biliran.

On May 14, 1999, respondents filed a Complaint [5] against petitioners to compel

the partition of the one-half (1/2) conjugal share of the properties left by their late father
(subject properties) based on the Deed of Extrajudicial Partition[6] dated February 24,
1996.  Respondents alleged that petitioner Felicidad Dadizon was in possession of the
subject properties and refused to heed their demands to cause the partition of the
same.

In their Answer,[7] petitioners averred that the Deed of Extrajudicial Partition dated

February 24, 1996, which respondents sought to enforce, was revoked by the Deed of
Extrajudicial Partition[8] dated February 10, 1999.  They argued that certain parcels of
land included in respondents' complaint had long been disposed of or extrajudicially
partitioned by them.  They further claimed that certain parcels of land listed in the Deed
of Extrajudicial Partition dated February 24, 1996 as sold to respondent Socorro
Bernadas could not go to the latter, since the alleged sales were under annulment in
Civil Case No. B-1091 pending before the RTC, Branch 16, Naval, Biliran, a case filed
by their mother, Eustaquia Bernadas, to revoke the sales of her one-half (1/2) conjugal
share on the grounds of lack of consideration, fraud and lack of consent. [9]
In their Reply,[10] respondents contended that the Deed of Extrajudicial Partition dated
February 10, 1999 was a product of malice directed against respondent Socorro
Bernadas, for not all of the heirs of their late father participated in the execution of the
alleged subsequent deed of partition. The sales executed between their mother,
Eustaquia Bernadas, and respondent Soccorro Bernadas have not been annulled by
the court; hence, they remain valid and subsisting.

During trial, on June 13, 2000,[11] both parties manifested that in view of the death of
their mother, Eustaquia Bernadas, they have an ongoing negotiation for the
extrajudicial partition of the subject properties to end their differences once and for all.

In the next scheduled hearing, on November 15, 2000, [12] the counsel of respondents
asked for postponement on the ground that he was in the process of soliciting the
signatures of other heirs to complete a compromise agreement.

On January 30, 2001, the counsel of respondents filed a Project of Partition[13] dated

October 23, 2000. However, the same was not signed by all of the heirs.

On the hearing of February 6, 2001,[14] the Project of Partition dated October 23, 2000

was discussed by both parties, and the RTC ordered petitioners to submit their
comment thereon within 15 days.  Petitioners did not file any comment.

In its Order[15] dated March 22, 2001, the RTC noted that at the last pre-trial conference,
both parties informed the court that they already have an extrajudicial partition of the
subject properties and ordered both parties to submit the extrajudicial partition for its
approval.

On May 31, 2001, the RTC issued another Order [16] reiterating its Order dated March 22,
2001, directing both parties to submit the signed extrajudicial partition.

On July 16, 2001, respondents filed a Compliance [17] submitting the following

documents: (1) Project of Partition dated October 23, 2000; (2) Deed of
Extrajudicial Partition dated February 24, 1996; and (3) Deed of
Extrajudicial Partition[18] dated August 1, 1997 (involving one parcel of land covered by
Tax Declaration No. 00181).  Respondents prayed that the submitted documents be
considered by the RTC relative to the subdivision of the estate left by their late father.

On July 23, 2001, the RTC issued an Order[19] approving the Project of Partition dated
October 23, 2000.

Petitioners filed a Motion for Reconsideration [20] of the said Order, but the same was
denied by the RTC in its assailed Order[21] dated September 5, 2001.  The RTC noted
that petitioners had failed to file any comment on or objection to the Project
of Partition dated October 23, 2000 despite previously being ordered to do so.   
Moreover, the parties had already agreed to ask the court for its approval during pre-
trial.

Hence, petitioners filed an appeal before the CA alleging, among others, that the RTC
erred in finding that their counsel agreed to the approved Project of Partition dated
October 23, 2000, and that it should be noted that the said document does not bear the
signature of their counsel.[22]

On December 7, 2005, the CA rendered its assailed decision finding the appeal to be
without merit.  The dispositive portion of the CA decision reads:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us DISMISSING the appeal filed in this case and AFFIRMING the order dated
September 5, 2001 issued by the RTC, Branch 16, of the 8 th Judicial Region in Naval,
Biliran in Civil Case No. B-1066.[23]

Petitioners filed a Motion for Reconsideration [24] of the assailed decision, but the same
was denied by the CA in its Resolution dated March 15, 2006.

Hence, this Petition.

Respondent Soccorro Bernadas, as substituted by Jeanette B. Alfajardo et al., and

respondent Sofia C. Bernadas filed separate comments on the petition.

Before proceeding to the merits of the case, we shall first address a procedural issue
raised by respondent Sofia C. Bernadas.

Respondent Sofia C. Bernadas argues that there is a necessity to implead all

indispensable parties who were parties to the original case who do not appear either as
petitioners or as respondents in the case before us.

Respondent Sofia C. Bernadas' interpretation of the requirement to implead all

indispensable parties under Rule 7, Section 3 of the Rules of Court is misplaced.  There
is no necessity for impleading all the parties in Civil Case No. B-1066 in this petition.

While it is true that not all the parties in the original case below appear as petitioners or
respondents in the case before us, suffice it to say that the mandatory requirement of
impleading all indispensable parties applies only to the filing of an original action, but
not to an appeal, since it is the party's choice whether to appeal or not, and he or she
cannot be compelled to do so.

As to the effect of a reversal of the assailed decision on the parties who did not appeal,
the rule is:
We have always recognized the general rule that in appellate proceedings, the reversal
of the judgment on appeal is binding only on the parties in the appealed case and does
not affect or inure to the benefit of those who did not join or were not made parties to
the appeal. An exception to the rule exists, however, where a judgment cannot be
reversed as to the party appealing without affecting the rights of his co-debtor, or
where the rights and liabilities of the parties appealing are so interwoven and
dependent on each other as to be inseparable, in which case a reversal as to one
operates as a reversal as to all. This exception which is based on a communality
of interest of said parties is recognized in this jurisdiction. [25] (emphasis supplied)

The instant case is such an exception, since the rights and liabilities of all the parties
concerned as the heirs of the late Diosdado Bernadas, Sr. are inseparable.   Hence,
any reversal of the assailed decision will inure to the benefit of those who did not join or
were not made parties to the instant case. Consequently, there is no basis for the fear
expressed by respondent Sofia C. Bernadas that the respective rights to their
inheritance of the persons who were not made parties to the case before us might be
forfeited by technicality.

Nonetheless, we note that a review of the records below reveals that the requirement of
joining all indispensable parties to the proceedings below has been satisfied.

Now, on the merits.

The issue for our consideration is whether or not the CA erred when it affirmed the
Order dated September 5, 2001 of the RTC.

We answer in the affirmative.

There are two stages in every action for partition under Rule 69 of the Rules of Court.

The first stage is the determination of whether or not a co-ownership in fact exists and
a partition is proper (i.e., not otherwise legally proscribed) and may be made by
voluntary agreement of all the parties interested in the property. [26]

The second stage commences when it appears that "the parties are unable to agree
upon the partition" directed by the court.  In that event, partition shall be done for the
parties by the court with the assistance of not more than three (3) commissioners. [27]

There are, thus, two ways in which a partition can take place under Rule 69: by
agreement under Section 2, and through commissioners when such agreement cannot
be reached under Sections 3 to 6.

Sections 2 and 3 of Rule 69 provide:

SECTION 2.   Order for partition, and partition by agreement thereunder. — If after the
trial the court finds that the plaintiff has the right thereto, it shall order the partition of the
real estate among all the parties in interest. Thereupon the parties may, if they are able
to agree, make the partition among themselves by proper instruments of conveyance,
and the court shall confirm the partition so agreed upon by all the parties, and
such partition, together with the order of the court confirming the same, shall be
recorded in the registry of deeds of the place in which the property is situated. (2a)

xxx

SECTION 3.   Commissioners to make partition when parties fail to agree. — If the

parties are unable to agree upon the partition, the court shall appoint not more than
three (3) competent and disinterested persons 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. (3a)  (emphasis supplied)

A careful study of the records of this case reveals that the RTC departed from the
foregoing procedure mandated by Rule 69.

In its Order dated July 23, 2001, the RTC noted that both parties filed the Project
of Partition dated October 23, 2000 that it approved.[28]  In its Order dated September 5,
2001 denying petitioners' motion for reconsideration, the RTC reiterated that both
parties filed the same.[29]  However, the records show that the Project
of Partition dated October 23, 2000 was filed only by respondents' counsel, [30] and
that the same was not signed by the respondents or all of the parties. [31]

In its Order dated March 22, 2001, the RTC noted that both parties have already agreed
on the manner of partition of the subject properties, and that they are seeking for the
court's approval.[32]  On the issue of whether the RTC erred in finding that petitioners
acceded to the Project of Partition dated October 23, 2000, the CA sustained the RTC's
finding and noted that both parties manifested to the RTC that they already have an
extrajudicial partition, and that petitioners did not file any comment or suggestion on the
manner of distribution of the subject properties despite being required by the RTC. [33]

Even if petitioners did manifest in open court to the RTC that they have already agreed
with the respondents on the manner of partition of the subject properties, what is
material is that only the respondents filed the Project of Partition dated October 23,
2000 and that the same did not bear the signatures of petitioners because only a
document signed by all of the parties can signify that they agree on a partition.  Hence,
the RTC had no authority to approve the Project of Partition dated October 23, 2000,
which did not bear all of the signatures of the parties, on the premise that they had all
agreed to the same.  Likewise, the failure to file any comment or suggestion as to
manner of distribution of the subject properties does not justify the RTC's non-
observance of the procedure mandated by Rule 69.  When the parties were unable to
submit the signed Project of Partition despite being ordered to do so, the RTC should
have ordered the appointment of commissioners to make the partition as mandated by
Section 3, Rule 69.

In partition proceedings, reference to commissioners is required as a procedural

step in the action and is not discretionary on the part of the court. [34]  We have held
in a number of cases that if the parties are unable to agree on a partition, the trial court
should order the appointment of commissioners.

In De Mesa v. Court of Appeals,[35] we held that the trial court cannot compel petitioner
to sign the extrajudicial deed of partition prepared solely by private respondents for the
reason that if the parties are unable to agree on a partition, the trial court must order the
appointment of commissioners.

In Patricio v. Dario III,[36] we invalidated the order of the trial court ordering the sale by
public auction of the property subject of partition on the ground that since the parties
were unable to agree on a partition, the trial court should have ordered a partition by
commissioners pursuant to Section 3, Rule 69 of the Rules of Court.  It is only after it is
made to appear to the latter that the real estate, or a portion thereof, cannot be divided
without great prejudice to the interest of the parties, and one of the parties interested
asks that the property be sold instead of being assigned to one of the parties, may the
court order the commissioners to sell the real estate at public sale.

In Heirs of Zoilo Llido v. Marquez,[37] we sustained the trial court's order appointing
commissioners to effect the partition in view of the failure of the parties to submit a
project of partition as follows:
It will be recalled that respondent judge, in his decision of January 31, 1973 ordered
the partition of the enumerated properties and gave the parties thirty (30) days from
notice thereof within which to submit a project of partition.

Having failed to submit said project, the parties were given another twenty (20) days to
submit the same, otherwise, commissioners would be appointed to effect the partition.

Again the parties failed to submit a project of partition. Consequently, respondent judge
issued his questioned order of April 27, 1973, appointing the commissioners.

Likewise, the records show that the parties were unable to submit a project
of partition because the petitioners were unwilling to submit themselves to
a partition (Telegrams, Rollo, pp. 105 and 106).

In view of the foregoing, it is evident that the instant petition should be dismissed.
Petitioners should not be rewarded for disregarding the orders of respondent judge.

In Honorio v. Dunuan,[38] we struck down the order of the trial court approving a project
of partition filed by respondent upon the mere failure of petitioner and his counsel to
appear at the hearing and over his subsequent objection and directed the trial court to
immediately constitute and appoint commissioners.

In this case, that petitioners insist on a manner of partition contrary to the approved

Project of Partition dated October 23, 2000 that was filed and prepared solely by
respondents all the way to this Court makes it more manifest that the parties to this
case are unable to agree on a partition.

IN VIEW WHEREOF, the petition is PARTIALLY GRANTED. The Decision dated

December 7, 2005 and the Resolution dated March 15, 2006 of the Court of Appeals in
CA-G.R. CV No. 73326 and the Orders dated July 23, 2001 and September 5, 2001 of
the Regional Trial Court in Civil Case No. B-1066 are hereby REVERSED and SET
ASIDE.  The case is REMANDED to the Regional Trial Court, Branch 16 of the
8th Judicial Region in Naval, Biliran, which is hereby directed to immediately constitute
and appoint the commissioners as provided by Section 3, Rule 69 of the Rules of Court,
to effect the partition in accordance with the other provisions of the same rule.  No
pronouncement as to costs.

SO ORDERED.

Carpio, Corona, Leonardo-De Castro, and Bersamin, JJ., concur.

[ G. R. No. L-12190, August 30, 1958 ]

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP DECEASED. FAUSTO
E. GAN, PETITIONER AND APPELLANT, VS. ILDEFONSO YAP, OPPOSITOR AND
APPELLEE.

DECISION

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the
City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of
first instance with a petition for the probate of a holographic will allegedly executed by
the deceased, substantially in these words:
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na
ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
mga kamaganakang sumusunod:
......................................................................
Vicente Esguerra, Sr 5 Bahagi
.
......................................................................
Pausto E. Gan 2 Bahagi
.
 ......................................................................
Rosario E. Gan 2 Bahagi
.
......................................................................
Filomena Alto 1 Bahagi
.
......................................................................
Beatriz Alto 1 Bahagi
.
'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking
ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang
P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad
Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang
magpuno upang matupaa ang aking kagustuhan.'
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased
had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose,
Judge,[1] refused to probate the alleged will. A seventy-page motion for reconsideration
failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro
Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first
cousin, Vicente Esguerra, her desire to make a will. She confided however that it would
be useless if her husband discovered or knew about it. Vicente consulted with Fausto E.
Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter
replied it could be done without any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5,1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic
will substantially of the tenor above transcribed, in the presence of her niece, Felina
Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read
the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra.
But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and
being afraid of him by reason of his well-known violent temper, she delivered it to him.
Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand
it the next day shortly before the death of Felicidad. Again, Felina handed it to him but
not before she had taken the purse to the toilet, opened it and read the will for the last
time[2]
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from
heart disease for several years before her death; that she had been treated by
prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States wherein for several weeks she
was treated for the disease; that thereafter she felt well and after visiting interesting
places, the couple returned to this country in August 1950. However, her ailment
recurred, she suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the
lower floors and owned by the Yap spouses. Physician's help was hurriedly called, and
Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly "breathing, lying in
bed, her head held high by her husband. Injections and oxygen were administered.
Following the doctor's advice the patient stayed in bed, and did nothing the whole day,
her husband and her personal attendant, Mrs. Bantique, constantly at her side. These
two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have
made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to
keep her will a secret, so that her husband would not know it, it is strange she executed
it in the presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have allowed the former to see and
read the will several times; (c) it is improbable that the decedent would have permitted
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is also
improbable that her purpose being to conceal the will from her husband she would carry
it around, even to the hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded the purse from
Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he
returned it without destroying the will, the theory of the petitioner being precisely that the
will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's
evidence that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the
oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the
same arguments, or most of them, were presented in the motion to reconsider; but they
failed to induce the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over the same
matters, because in our opinion the case should be decided not on the weakness of the
opposition but on the strength of the evidence of the petitioner, who has the burden of
proof.
The Spanish Civil Code permited the execution of holographic wills along with other
forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only
one form, thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1960 revived holographic wills in its arts. 810-814. "A
person may execute a holographic will which must be entirely written, dated, and
sigrned by the hand of the testator himself. It is subject to no other form and may be
made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under
Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the
testator and three credible witnesses in each and every page; such witnesses to attest
to the number of sheets used and to the fact that the testator signed in their presence
and that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith
and fraud, to prevent substitution of wills, to guarantee their truth and authenticity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who have no right to
succeed the testator would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855), However, formal imperfections may be
brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs. Yap,
40 Off. Gaz. Ist Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirement to be fulfilled when such will
is submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If
there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of
other additional witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated they need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity,
and as its own safeguard, since it could at any time, be demonstrated to be—or not to
be—in the hands of the testator himself. "In the probate of a holographic will" says the
New Civil Code, "it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least three such
witnesses shall be required. In the absence of any such witnesses, (familiar with
decedent's handwriting) and if the court deem it necessary, expert testimony may be
resorted to."
The witnesses so presented do not need to have seen the execution of the holographic
will. They may be mistaken in their opinion of the handwriting, or they may deliberately
lie in affirming it is in the testator's hand. However, the oppositor may present other
witnesses who also know the testator's handwriting, or some expert witnesses, who
after comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50,
Rule 123). And the court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will submitted to it has
indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity[3]—
the testator's handwriting—has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove that such document was not in
the testator's handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the testator's hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of knowledge
of the will or the form thereof, and the nether millstone of his inability to prove its falsity.
Again the proponent's witnesses may be honest and truthful; but they may have been
shown a faked document, and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be perjurers boldly testifying, in
the knowledge that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the handwriting of
the deceased. Of course, the competency of such perjured witnesses to testify as to the
handwriting could be tested by exhibiting to them other writings sufficiently similar to
those written by the deceased; but what witness or lawyer would not foresee such a
move and prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a document which
he believed was in the deceased's handwriting. And the court and the oppositor would
practically be at the mercy of such witness (or witnesses) not only as to the execution,
but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or
destroyed will by secondary evidence—the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could
not then be validly made here. (See also Sec. 46, Rule 123; Art. 830—New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will
is that it may be lost or stolen [4]—an implied admission that such loss or theft renders it
useless. "
This must be so, because the Civil Code requires it to be protocoled and presented to
the judge, (Art. 689) who shall subscribe it and require its identity to be established by
the three witnesses who depose that they have no reasonable doubt that the will was
written by the testator (Art. 691). And if the judge considers that the identity of the will
has been proven he shall order that it be filed (Art. 693). All these, imply presentation of
the will itself. Art. 692 bears the same implication, to a greater degree. It requires that
the surviving spouse and the legitimate ascendants and descendants be summoned so
that they may make "any statement they may desire to submit with respect to the
authenticity of the will." As it is universally admitted that the holographic will is usually
done by the testator and by himself alone, to prevent others from knowing either its
execution or its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but whether in the face
of the document itself they think the testator wrote it. Obviously, this they can't do
unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it spurious.
[5]
 Such purpose is frustrated when the document is not presented for their examination.
If it be argued that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct disadvantage, and they
have the right and privilege to comply with the will, if genuine, a right which they should
not be denied by withholding inspection thereof from them.
We find confirmation of these ideas—about exhibition of the document itself—in the
decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization
or probate to a document containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial evidence (which was
controverted), ascribing the mutilation to the opponents of the will. The aforesaid
tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the
will itself, whole and unmutilated, must be presented; otherwise, it shall produce no
effect.
"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del
articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera
estar escrito todo el y firmado por testador, con expression del año, mes y dia en que
se otorque, resulta evidente que para la validez y eflcacia de esos testamentos, no
basta la demostracion mas o menos cumplida de que cuando se otorgaron se llenaron
todos esos requisites, sino que de la expresada redaccion el precepto legal, y por el
tiempo en que el verbo se emplea, se desprende la necesidad de que el documento se
encuentre en dichas condidones en el momento de ser presentado a la Autoridad
competente, para su adveraci6n y protocolizacion; y como consecuencia ineludible de
ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estar
firmado por el testador, cualquiera que sea la causa de la falta, de firma, y sin perjuieio
de las acetones que puedan ejercitar los perjudicados, Men para pedir indemnizacion
por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto insubsanable * * *."
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly
the basis of the Spanish Civil Code provisions on the matter. [6]
"PRECEDENTES LEGALES—Fuero Juzgo, libro segxmdo, titulo V, ley 15—E depues
que los herederos e sus fijos ovieren esta manda, fasta xxx annos muestrenla al obispo
de la tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos,
que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E depues que todo esto fuere
connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda." (Art. 689, Scaevola—Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the
testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and
signature.[7]
Parenthetically, it may be added that even the French Civil Law considers the loss of
the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por
Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the
execution and the contents of a lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or read such will.[8]
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate,
however, to make this Rule decisive of this controversy, simultaneously with its
promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails
the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses
are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that they would be called by
the testator, their intimacy with the testator, etc. And if they were intimates or trusted
friends of the testator they are not likely to lend themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the
will.
Whereas in the case of holographic wills, if oral testimony were admissible [9] only one
man could engineer the whole fraud this way: after making a clever or passable
imitation of the handwriting and signature of the deceased, he may contrive to let three
honest and credible witnesses see and read the forgery; and the latter, having no
interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost—the forger may have purposely
destroyed it in an "accident"—the oppositors have no way to expose the trick and the
error, because the document itself is not at hand. And considering that the holographic
will may consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones, may go
undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
—feasibility of forgery—would be added to the several objections to this kind of wills
listed by Castan, Sanchez Roman and Valverde and other well-known Spanish
Commentators and teachers of Civil Law.[10]
One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the testator of
subscribing the will; whereas in the case of a lost holographic will, the witnesses would
testify as to their opinion of the handwriting which they allegedly saw, an opinion which
can not be tested in court, nor directly contradicted by the oppositors, because the
handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the
trial judge's disbelief. In addition to the dubious circumstances described in the
appealed decision, we find it hard to believe that the deceased should show her will
precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a share, or threaten
to reveal its execution to her husband Ildefonso Yap. And this leads to another (point: if
she wanted so much to conceal the will from her husband, why did she not entrust it to
her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip
to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so tainted with
improbabilities and inconsistencies that it fails to measure up to that "clear and distinct"
proof required by Rule 77, sec. 6.[11]
Wherefore, the rejection of the alleged will must be sustained. Judgment affirmed, with
costs against petitioner.
Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.
B. L., Endencia and Felix, JJ., concur.

[ G.R. No. 176831, January 15, 2010 ]

UY KIAO ENG, PETITIONER, VS. NIXON LEE, RESPONDENT.

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the August 23, 2006 Amended Decision [1] of the Court of Appeals (CA)
in CA-G.R. SP No. 91725 and the February 23, 2007 Resolution, [2] denying the motion
for reconsideration thereof.

The relevant facts and proceedings follow.

Alleging that his father passed away on June 22, 1992 in Manila and left a holographic
will, which is now in the custody of petitioner Uy Kiao Eng, his mother, respondent
Nixon Lee filed, on May 28, 2001, a petition for mandamus with damages, docketed as
Civil Case No. 01100939, before the Regional Trial Court (RTC) of Manila, to compel
petitioner to produce the will so that probate proceedings for the allowance thereof
could be instituted. Allegedly, respondent had already requested his mother to settle
and liquidate the patriarch's estate and to deliver to the legal heirs their respective
inheritance, but petitioner refused to do so without any justifiable reason. [3]

In her answer with counterclaim, petitioner traversed the allegations in the complaint
and posited that the same be dismissed for failure to state a cause of action, for lack of
cause of action, and for non-compliance with a condition precedent for the filing thereof.
Petitioner denied that she was in custody of the original holographic will and that she
knew of its whereabouts. She, moreover, asserted that photocopies of the will were
given to respondent and to his siblings. As a matter of fact, respondent was able to
introduce, as an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of
Valenzuela City. Petitioner further contended that respondent should have first exerted
earnest efforts to amicably settle the controversy with her before he filed the suit. [4]

The RTC heard the case. After the presentation and formal offer of respondent's
evidence, petitioner demurred, contending that her son failed to prove that she had in
her custody the original holographic will. Importantly, she asserted that the pieces of
documentary evidence presented, aside from being hearsay, were all immaterial and
irrelevant to the issue involved in the petition--they did not prove or disprove that she
unlawfully neglected the performance of an act which the law specifically enjoined as a
duty resulting from an office, trust or station, for the court to issue the writ of mandamus.
[5]

The RTC, at first, denied the demurrer to evidence. [6] In its February 4, 2005 Order,
[7]
 however, it granted the same on petitioner's motion for reconsideration. Respondent's
motion for reconsideration of this latter order was denied on September 20, 2005.
[8]
 Hence, the petition was dismissed.

Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the
CA initially denied the appeal for lack of merit. It ruled that the writ of mandamus would
issue only in instances when no other remedy would be available and sufficient to afford
redress. Under Rule 76, in an action for the settlement of the estate of his deceased
father, respondent could ask for the presentation or production and for the approval or
probate of the holographic will. The CA further ruled that respondent, in the proceedings
before the trial court, failed to present sufficient evidence to prove that his mother had in
her custody the original copy of the will.[9]

Respondent moved for reconsideration. The appellate court, in the assailed August 23,
2006 Amended Decision,[10] granted the motion, set aside its earlier ruling, issued the
writ, and ordered the production of the will and the payment of attorney's fees. It ruled
this time that respondent was able to show by testimonial evidence that his mother had
in her possession the holographic will.

Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The
appellate court denied this motion in the further assailed February 23, 2007 Resolution.
[11]

Left with no other recourse, petitioner brought the matter before this Court, contending
in the main that the petition for mandamus is not the proper remedy and that the
testimonial evidence used by the appellate court as basis for its ruling is inadmissible. [12]

The Court cannot sustain the CA's issuance of the writ.

The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides
that--
SEC. 3. Petition for mandamus.--When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent,
immediately or at some other time to be specified by the court, to do the act required to
be done to protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the respondent. [13]

Mandamus is a command issuing from a court of law of competent jurisdiction, in the

name of the state or the sovereign, directed to some inferior court, tribunal, or board, or
to some corporation or person requiring the performance of a particular duty therein
specified, which duty results from the official station of the party to whom the writ is
directed or from operation of law.[14] This definition recognizes the public character of the
remedy, and clearly excludes the idea that it may be resorted to for the purpose of
enforcing the performance of duties in which the public has no interest. [15] The writ is a
proper recourse for citizens who seek to enforce a public right and to compel the
performance of a public duty, most especially when the public right involved is
mandated by the Constitution.[16] As the quoted provision instructs, mandamus will lie if
the tribunal, corporation, board, officer, or person unlawfully neglects the performance
of an act which the law enjoins as a duty resulting from an office, trust or station. [17]

The writ of mandamus, however, will not issue to compel an official to do anything which
is not his duty to do or which it is his duty not to do, or to give to the applicant anything
to which he is not entitled by law.[18] Nor will mandamus issue to enforce a right which is
in substantial dispute or as to which a substantial doubt exists, although objection
raising a mere technical question will be disregarded if the right is clear and the case is
meritorious.[19] As a rule, mandamus will not lie in the absence of any of the following
grounds: [a] that the court, officer, board, or person against whom the action is taken
unlawfully neglected the performance of an act which the law specifically enjoins as a
duty resulting from office, trust, or station; or [b] that such court, officer, board, or person
has unlawfully excluded petitioner/relator from the use and enjoyment of a right or office
to which he is entitled.[20] On the part of the relator, it is essential to the issuance of a
writ of mandamus that he should have a clear legal right to the thing demanded and it
must be the imperative duty of respondent to perform the act required. [21]

Recognized further in this jurisdiction is the principle that mandamus cannot be used to
enforce contractual obligations.[22] Generally, mandamus will not lie to enforce purely
private contract rights, and will not lie against an individual unless some obligation in the
nature of a public or quasi-public duty is imposed. [23] The writ is not appropriate to
enforce a private right against an individual. [24] The writ of mandamus lies to enforce the
execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues
only in cases relating to the public and to the government; hence, it is called a
prerogative writ.[25] To preserve its prerogative character, mandamus is not used for the
redress of private wrongs, but only in matters relating to the public. [26]

Moreover, an important principle followed in the issuance of the writ is that there should
be no plain, speedy and adequate remedy in the ordinary course of law other than the
remedy of mandamus being invoked.[27] In other words, mandamus can be issued only
in cases where the usual modes of procedure and forms of remedy are powerless to
afford relief.[28] Although classified as a legal remedy, mandamus is equitable in its
nature and its issuance is generally controlled by equitable principles. [29] Indeed, the
grant of the writ of mandamus lies in the sound discretion of the court.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation
involved here--the production of the original holographic will--is in the nature of a public
or a private duty, rules that the remedy of mandamus cannot be availed of by
respondent Lee because there lies another plain, speedy and adequate remedy in the
ordinary course of law. Let it be noted that respondent has a photocopy of the will and
that he seeks the production of the original for purposes of probate. The Rules of Court,
however, does not prevent him from instituting probate proceedings for the allowance of
the will whether the same is in his possession or not. Rule 76, Section 1 relevantly
provides:
Section 1. Who may petition for the allowance of will.--Any executor, devisee, or legatee
named in a will, or any other person interested in the estate, may, at any time, after the
death of the testator, petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production
of the original holographic will. Thus--
SEC. 2. Custodian of will to deliver.--The person who has custody of a will shall, within
twenty (20) days after he knows of the death of the testator, deliver the will to the court
having jurisdiction, or to the executor named in the will.

SEC. 3. Executor to present will and accept or refuse trust.--A person named as
executor in a will shall within twenty (20) days after he knows of the death of the
testator, or within twenty (20) days after he knows that he is named executor if he
obtained such knowledge after the death of the testator, present such will to the court
having jurisdiction, unless the will has reached the court in any other manner, and shall,
within such period, signify to the court in writing his acceptance of the trust or his refusal
to accept it.

SEC. 4. Custodian and executor subject to fine for neglect.--A person who neglects any
of the duties required in the two last preceding sections without excuse satisfactory to
the court shall be fined not exceeding two thousand pesos.

SEC. 5. Person retaining will may be committed.--A person having custody of a will after
the death of the testator who neglects without reasonable cause to deliver the same,
when ordered so to do, to the court having jurisdiction, may be committed to prison and
there kept until he delivers the will. [30]

There being a plain, speedy and adequate remedy in the ordinary course of law for the
production of the subject will, the remedy of mandamus cannot be availed of. Suffice it
to state that respondent Lee lacks a cause of action in his petition. Thus, the Court
grants the demurrer.
WHEREFORE, premises considered, the petition for review on certiorari is GRANTED.
The August 23, 2006 Amended Decision and the February 23, 2007 Resolution of the
Court of Appeals in CA-G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil
Case No. 01100939 before the Regional Trial Court of Manila is DISMISSED.

SO ORDERED.

Corona, (Chairperson), Velasco, Jr., Peralta, and Mendoza, JJ., concur.

[ G.R. NOS. 140371-72, November 27, 2006 ]

DY YIENG SEANGIO, BARBARA D. SEANGIO AND VIRGINIA D. SEANGIO,
PETITIONERS, VS. HON. AMOR A. REYES, IN HER CAPACITY AS PRESIDING
JUDGE, REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION,
BRANCH 21, MANILA, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D.
SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D.
SEANGIO-LIM, BETTY D. SEANGIO-OBAS AND JAMES D. SEANGIO,
RESPONDENTS.

DECISION

AZCUNA, J.:

This is a petition for certiorari[1] with application for the issuance of a writ of preliminary

injunction and/or temporary restraining order seeking the nullification of the orders,
dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila,
Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in
the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-
93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98-90870 of
the RTC, and praying for the appointment of private respondent Elisa D. Seangio-
Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition.
They contended that: 1) Dy Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed
as SP. Proc. No. 99-93396, was filed by petitioners before the RTC. They likewise
reiterated that the probate proceedings should take precedence over SP. Proc. No. 98-
90870 because testate proceedings take precedence and enjoy priority over intestate
proceedings.[2]

The document that petitioners refer to as Segundo's holographic will is quoted, as

follows:
Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtataglay ng maliwanag na pag-iisip at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio
dahil siya ay naging lapastangan sa akin at isang beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko
at sasabe rin ni Alfredo sa akin na ako nasa ibabaw ngayon ngunit darating ang araw
na ako nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng aking pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay
nagdulot sa aking ng malaking kahihiyan sa mga may-ari at stockholders ng China
Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r]

ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng

tatlong saksi. [3]

(signed)
Segundo Seangio

Nilagdaan sa harap namin

(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi

On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870 and SP. Proc. No.
99-93396 were consolidated.[4]

On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings[5] primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,
there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on
the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally,
the authority of the probate court is limited only to a determination of the extrinsic
validity of the will; 2) private respondents question the intrinsic and not the extrinsic
validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent;
and, 4) the rule on preterition does not apply because Segundo's will does not constitute
a universal heir or heirs to the exclusion of one or more compulsory heirs. [6]

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio,
et al., clearly shows that there is preterition, as the only heirs mentioned thereat are
Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code
thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854
does not apply, she not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to
an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate
Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for ... respondents
to have tolerated the probate of the will and allowed the case to progress when, on its
face, the will appears to be intrinsically void ... would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will was
resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings No. 99-93396 is hereby DISMISSED
without pronouncement as to costs.

SO ORDERED.[7]
Petitioners' motion for reconsideration was denied by the RTC in its order dated October
14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10
AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS "A" AND "B" HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND
4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATOR'S WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF,
THE TESTATOR'S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATOR'S WILL
THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY
AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN
THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE
PROCEEDINGS.
Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the
will when all concerned may appear to contest the allowance thereof, and cause notice
of such time and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of
a compulsory heir. Thus, there is no preterition in the decedent's will and the
holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory
heirs in the direct line of Segundo were preterited in the holographic will since there was
no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed

Segundo's intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must
be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found
groundless;

(3) When a child or descendant has been convicted of adultery or concubinage with the
spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who disinherit
such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant; [8]

(7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.

Segundo's document, although it may initially come across as a mere disinheritance

instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latter's property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the disinheritance results in
the disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.[10]

Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as the
supreme law in succession. All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect. [11]

Holographic wills, therefore, being usually prepared by one who is not learned in the
law, as illustrated in the present case, should be construed more liberally than the ones
drawn by an expert, taking into account the circumstances surrounding the execution of
the instrument and the intention of the testator. [12] In this regard, the Court is convinced
that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended
by Segundo to be his last testamentary act and was executed by him in accordance
with law in the form of a holographic will. Unless the will is probated, [13] the
disinheritance cannot be given effect. [14]

With regard to the issue on preterition,[15] the Court believes that the compulsory heirs in
the direct line were not preterited in the will. It was, in the Court's opinion, Segundo's
last expression to bequeath his estate to all his compulsory heirs, with the sole
exception of Alfredo. Also, Segundo did not institute an heir  [16] to the exclusion of his
other compulsory heirs. The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and his son,
Alfredo.

Considering that the questioned document is Segundo's holographic will, and that the
law favors testacy over intestacy, the probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his property may be
rendered nugatory.[17]

In view of the foregoing, the trial court, therefore, should have allowed the holographic
will to be probated. It is settled that testate proceedings for the settlement of the estate
of the decedent take precedence over intestate proceedings for the same purpose. [18]

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of

Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings.

No costs.

SO ORDERED.

Puno, (Chairperson), Sandoval-Gutierrez, Corona, and Garcia, JJ., concur.

[ G.R. No. L-58509, December 07, 1982 ]
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.
BONILLA, DECEASED, MARCELA RODELAS, PETITIONER-APPELLANT, VS.
AMPARO ARANZA, ET. AL., OPPOSITORS-APPELLEES, ATTY. LORENZO
SUMULONG, INTERVENOR.

DECISION

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination
pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
"x x x On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:
"(1)  Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule 75,
section 2 of the Rules of Court;
"(2)  The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it was
not a will;
"(3)  The alleged holographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509;
and
"(4)  The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
"The appellees likewise moved for the consolidation of the case with another case (Sp.
Proc. No. 8275). Their motion was granted by the court in an order dated April 4, 1977.
"On November 13, 1978, following the consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the will. They argued that:
"(1)  The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
"(2)  Lost or destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills.
"Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
'. . . It is our considered opinion that once the original copy of the holographic will is lost,
a copy thereof cannot stand in lieu of the original.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the
matter of holographic wills the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.'
'MOREOVER, this Court notes that the alleged holographic will was executed on
January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of
more than 14 years from the time of the execution of the will to the death of the
decedent, the fact that the original of the will could not be located shows to our mind
that the decedent had discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellant's petition is contrary to
law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that
the appeal does not involve question of fact and alleged that the trial court committed
the following assigned errors:
"I.    THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL
MAY NOT BE PROVED BY A COPY THEREOF;
"II.   THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
"III.  THE LOWER COURT ERRED IN DISMISSING APPELLANT's WILL."
The only question here is whether a holographic will which was lost or cannot be found
can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil
Code, probate of holographic wills is the allowance of the will by the court after its due
execution has been proved. The probate may be uncontested or not. If uncontested, at
least one identifying witness is required and, if no witness is available, experts may be
resorted to. If contested, at least three identifying witnesses are required. However, if
the holographic will has been lost or destroyed and no other copy is available, the will
can not be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will. But a photostatic copy
or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the
Court ruled that "the execution and the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of witnesses who have seen and/or read such
will. The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of said
decision, it says that "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before
the probate court." Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's
motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979,
dismissing her petition to approve the will of the late Ricardo B. Bonilla, is hereby SET
ASIDE.
SO ORDERED.

Teehankee, Acting C.J., Melencio-Herrera, Plana, Vasquez, and Gutierrez, Jr.,

JJ., concur.

[ G.R. No. 106720, September 15, 1994 ]

SPOUSES ROBERTO AND THELMA AJERO, PETITIONERS, VS. THE COURT OF
APPEALS AND CLEMENTE SAND, RESPONDENTS.

DECISION

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of Appeals[1] in CA-G.R.

CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:
“PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE, and the petition for probate is
hereby DISMISSED. No costs."
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, [2] in Sp. Proc.
No. Q-37171, and the instrument submitted for probate is the holographic will of the late
Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and was
in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's
body nor the signature therein was in decedent's handwriting; it contained alterations
and corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will
to probate. It found, inter alia:
"Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix,
this probate court finds no reason at all for the disallowance of the will for its failure to
comply with the formalities prescribed by law nor for lack of testamentary capacity of the
testatrix.
"For one, no evidence was presented to show that the will in question is different from
the will actually executed by the testatrix. The only objections raised by the oppositors
xxx are that the will was not written in the handwriting of the testatrix which properly
refers to the question of its due execution, and not to the question of identity of will. No
other will was alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the will presented
for probate must be accepted, i.e., the will submitted in Court must be deemed to be the
will actually executed by the testatrix.
"xxx                                                   xxx                                                       xxx
"While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court
that the holographic will in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have convincingly shown
knowledge of the handwriting of the testatrix have been presented and have explicitly
and categorically identified the handwriting with which the holographic will in question
was written to be the genuine handwriting and signature of the testatrix. Given then the
aforesaid evidence, the requirement of the law that the holographic will be entirely
written, dated and signed in the handwriting of the testatrix has been complied with.
"xxx                                                   xxx                                                       xxx
"As to the question of the testamentary capacity of the testatrix, (private respondent)
Clemente Sand himself has testified in Court that the testatrix was completely in her
sound mind when he visited her during her birthday celebration in 1981, at or around
which time the holographic will in question was executed by the testatrix. To be of
sound mind, it is sufficient that the testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the proper object of her bounty, and
the character of the testamentary act xxx. The will itself shows that the testatrix even
had detailed knowledge of the nature of her estate. She even identified the lot number
and square meters of the lots she had conveyed by will. The objects of her bounty were
likewise identified explicitly. And considering that she had even written a nursing book
which contained the law and jurisprudence on will and succession, there is more than
sufficient showing that she knows the character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the disallowance of
herein holographic will. While it was alleged that the said will was procured by undue
and improper pressure and influence on the part of the beneficiary or of some other
person, the evidence adduced have not shown any instance where improper pressure
or influence was exerted on the testatrix. (Private respondent) Clemente Sand has
testified that the testatrix was still alert at the time of the execution of the will, i.e., at or
around the time of her birth anniversary celebration in 1981. It was also established that
she is a very intelligent person and has a mind of her own. Her independence of
character and to some extent, her sense of superiority, which has been testified to in
Court, all show the unlikelihood of her being unduly influenced or improperly pressured
to make the aforesaid will. It must be noted that the undue influence or improper
pressure in question herein only refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of another proceeding.
Hence, under the circumstances, this Court cannot find convincing reason for the
disallowance of the will herein.
"Considering then that it is a well-established doctrine in the law on succession that in
case of doubt, testate succession should be preferred over intestate succession, and
the fact that no convincing grounds were presented and proven for the disallowance of
the holographic will of the late Annie Sand, the aforesaid will submitted herein must be
admitted to probate."[3] (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will
was dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity."[4] It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code, which read, as follows:
"Article 813: When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date, such date
validates the dispositions preceding it, whatever be the time of prior dispositions."
"Article 814: In case of insertion, cancellation, erasure or alteration in
a holographic will, the testator must authenticate the same by his full signature."
It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of
the following cases:
"(a)    If not executed and attested as required by law;
(b)   If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
(c)   If it was executed under duress, or the influence of fear, or threats;
(d)   If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;
(e)   If the signature of the testator was procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing his signature thereto."
In the same vein, Article 839 of the New Civil Code reads:
"Article 839: The will shall be disallowed in any of the following cases:
(1)  If the formalities required by law have not been complied with;
(2)  If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
(3)  If it was executed through force or under duress, or the influence of fear, or threats;
(4)  If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5)  If the signature of the testator was procured by fraud;
(6)  If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto."
These lists are exclusive; no other grounds can serve to disallow a will. [5] Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent.[6]
In the case at bench, respondent court held that the holographic will of Anne Sand was
not executed in accordance with the formalities prescribed by law. It held that Articles
813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed
the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
"The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise
of the right to make a will. So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's last will, must be
disregarded."
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806
of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, [7] as
provided under Article 810 of the New Civil Code, thus:
"A person may execute a holographic will which must be entirely written, dated, and
signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed." (Italics supplied.)
Failure to strictly observe other formalities will not result in the disallowance of
a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-
compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132
SCRA 237, 242 (1984), this Court held:
"Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his signature, xxx the Will is
not thereby invalidated as a whole, but at most only as respects the particular words
erased, corrected or interlined. Manresa gave an identical commentary when he said ‘la
omision de la salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1895.’" [8] (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on
the date of the holographic will or on testator's signature,[9] their presence does not
invalidate the will itself.[10] The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Articles 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They
read as follows:
"Article 678: A will is called holographic when the testator writes it himself in the form
and with the requisites required in Article 688."
"Article 688: Holographic wills may be executed only by persons of full age.
"In order that the will be valid it must be drawn on stamped paper corresponding to the
year of its execution, written in its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator must identify
them over his signature.
"Foreigners may execute holographic wills in their own language."
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code -- and not those found in Articles 813
and 814 of the same Code -- are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of
the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will.[11] In the case at bench, decedent herself indubitably stated
in her holographic will that the Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the
same in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting
to probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with
the above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Padilla, Regalado, and Mendoza, JJ., concur.

[ G.R. No. 123486, August 12, 1999 ]

EUGENIA RAMONAL CODOY, AND MANUEL RAMONAL,  PETITIONERS, VS.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, AND EUFEMIA PATIGAS,
RESPONDENTS.

DECISION

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of

Appeals[1] and its resolution denying reconsideration, ruling:
"Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established
and the handwriting and signature therein (exhibit S) are hers, enough to probate said
will. Reversal of the judgment appealed from and the probate of the holographic will in
question be called for. The rule is that after plaintiff has completed presentation of his
evidence and the defendant files a motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plaintiff has shown no right to relief, if the motion
is granted and the order to dismissal is reversed on appeal, the movant loses his right to
present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
"Wherefore, the order appealed from is REVERSED and judgment rendered allowing
the probate of the holographic will of the testator Matilde Seño Vda. de Ramonal." [2]
The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,

devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a
petition[3] for probate of the holographic will of the deceased, who died on January 16,
1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal,
was of sound and disposing mind when she executed the will on August 30, 1978, that
there was no fraud, undue influence, and duress employed in the person of the testator,
and the will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property
was about P400,000.00, at the time of her death. [4]

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition[5] to the petition for probate, alleging that the holographic will was a forgery
and that the same is even illegible. This gives an impression that a "third hand" of an
interested party other than the "true hand" of Matilde Seño Vda. de Ramonal executed
the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on the will after
every disposition is out of the ordinary. If the deceased was the one who executed the
will, and was not forced, the dates and the signature should appear at the bottom after
the dispositions, as regularly done and not after every disposition. And assuming that
the holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries, or through fraud and
trickery.

Respondents presented six (6) witnesses and various documentary evidence.

Petitioners instead of presenting their evidence, filed a demurrer [6] to evidence, claiming
that respondents failed to establish sufficient factual and legal basis for the probate of
the holographic will of the deceased Matilde Seño Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
"WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence
having being well taken, same is granted, and the petition for probate of the document
(Exhibit "S") on the purported Holographic Will of the late Matilde Seño Vda. de
Ramonal, is denied for insufficiency of evidence and lack of merits." [7]
On December 12, 1990, respondents filed a notice of appeal, [8] and in support of their
appeal, the respondents once again reiterated the testimony of the following witnesses,
namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4)
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account

of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was filed. He
produced and identified the. records of the case. The documents presented bear the
signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the
basis for comparison of the handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produce and
identify the voter's affidavit of the decedent. However, the voters' affidavit was not
produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal
was her aunt, and that after the death of Matilde's husband, the latter lived with her in
her parent's house for eleven (11) years, from 1958 to 1969. During those eleven (11)
years of close association with the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde Seño Vda. de
Ramonal) in collecting rentals from her various tenants of commercial buildings, and the
deceased always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried personal
letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda.
de Ramonal, she left a holographic will dated August 30, 1978, which was personally
and entirely written, dated and signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de
Oro, he was a practicing lawyer, and handled all the pleadings and documents signed
by the deceased in connection with the intestate proceedings of her late husband, as a
result of which he is familiar with the handwriting of the latter. He testified that the
signature appearing in the holographic will was similar to that of the deceased, Matilde
Seño Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department
of Environment and Natural Resources, Region 10. She testified that she processed the
application of the deceased for pasture permit and was familiar with the signature of the
deceased, since the deceased signed documents in her presence, when the latter was
applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with
the deceased since birth, and was in fact adopted by the latter. That after a long period
of time she became familiar with the signature of the deceased. She testified that the
signature appearing in the holographic will is the true and genuine signature of Matilde
Seño Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:
"Instruction
"August 30, 1978

"1. My share at Cogon, Raminal Street, for Evangeline Calugay.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"3. My jewelry's shall be divided among:

"1. Eufemia Patigas

"2. Josefina Salcedo

"3. Evangeline Calugay

"(Sgd)Matilde Vda de Ramonal

"August 30, 1978

"4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline
R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"6. Bury me where my husband Justo is ever buried.

"(Sgd) Matilde Vda de Ramonal

"August 30,1978

"Gene and Manuel:

"Follow my instruction in order that I will rest peacefully.

"Mama

"Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision [9] ruling that the appeal
was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
"x x x even if the genuineness of the holographic will were contested, we are of the
opinion that Article 811 of our present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at
the execution of the holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely a
question of finding and producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can declare (truthfully, of
course, even if the law does not express) "that the will and the signature are in the
handwriting of the testator." There may be no available witness acquainted with the
testator's hand; or even if so familiarized, the witness may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an
impossibility. That is evidently the reason why the second paragraph of article 811
prescribes that--

"in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to."

"As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify
to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.

"It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino
v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no witness need
be present (art.10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.

"Again, under Art.811, the resort to expert evidence is conditioned by the words "if the
court deem it necessary", which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is convincing, the court
may still, and in fact it should resort to handwriting experts. The duty of the court, in fine,
is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.

"Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of the having the probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the production of three
witnesses is merely permissive. What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to exhaust all available lines of
inquiry, for the state is as much interested in the proponent that the true intention of the
testator be carried into effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a party's failure to
offer expert evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.[10]
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and
other witnesses definitely and in no uncertain terms testified that the handwriting and
signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein, and allowed the will to
probate.

Hence, this petition.

The petitioners raise the following issues:

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied
upon by the respondent Court of Appeals, was applicable to the case.
 
(2) Whether or not the Court of Appeals erred in holding that private respondents had
been able to present credible evidence to prove that the date, text, and signature
on the holographic will were written entirely in the hand of the testatrix.
 
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seño Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code
are permissive or mandatory. The article provides, as a requirement for the probate of a
contested holographic will, that at least three witnesses explicitly declare that the
signature in the will is the genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in
a statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word "shall," when used in a statute is
mandatory."[11]

Laws are enacted to achieve a goal intended and to guide against an evil or mischief
that aims to prevent. In the case at bar, the goal to achieve is to give effect to the
wishes of the deceased and the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine
the true intent of the deceased. An exhaustive and objective consideration of the
evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified explicitly
that they were familiar with the handwriting of the testator. In the case of Augusto Neri,
clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record
of Special Proceedings No. 427 before said court. He was not presented to declare
explicitly that the signature appearing in the holographic was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to
identify the signature of the deceased in the voters' affidavit, which was not even
produced as it was no longer available.

Matilde Ramonal Binanay, on the other hand, testified that:

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your
parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your
occupation or how did Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
   
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets. [12]
   
xxx
   
Q. Who sometime accompany her?
A. I sometimes accompany her
   
Q. In collecting rentals does she issue receipts?
A. Yes, sir.[13]
   
xxx
   
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring
to as one of the receipts which she issued to them?
A. Yes, sir.
   
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is
that Mrs. Binanay?
A. Matilde vda. De Ramonal.
   
Q. Why do you say that that is a signature of Matilde vda. De Ramonal?
A. I am familiar with her signature.
   
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal
kept records of the accounts of her tenants?
A. Yes, sir.
   
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De
Ramonal.
   
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.[14]
   
xxx
   
Q. In addition to collection of rentals, posting records of accounts of tenants and deed
of sale which you said what else did you do to acquire familiarity of the signature of
Matilde Vda De Ramonal?
A. Posting records.
   
Q. Aside from that?
A. Carrying letters.
   
Q. Letters of whom?
A. Matilde
   
Q. To whom?
A. To her creditors.[15]
   
xxx
   
Q. You testified that at the time of her death she left a will. I am showing to you a
 document with its title "tugon" is this the document you are referring to?
A. Yes, sir.
   
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose
handwriting is this?
A. My aunt.
   
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.[16]
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which
she either mailed or gave to her tenants. She did not declare that she saw the deceased
sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact that
the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde
Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
   
Q. Who was in possession of that will?
A. I.
   
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
   
Q. So, it was not in your possession?
A. Sorry, yes.
   
Q. And when did you come into possession since as you said this was originally in the
possession of your mother?
A. 1985.[17]
   
xxx
   
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to
you and therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
   
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
   
Q. For what purpose?
A. Just to seek advice.
   
Q. Advice of what?
A. About the will.[18]
In her testimony it was also evident that Ms. Binanay kept the fact about the will from
petitioners, the legally adopted children of the deceased. Such actions put in issue her
motive of keeping the will a secret to petitioners and revealing it only after the death of
Matilde Seño Vda. de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that
correct?
A. Yes, sir.
   
Q. She was up and about and was still uprightly and she could walk agilely and she
could go to her building to collect rentals, is that correct?
A. Yes, sir.[19]
   
xxx
   
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there
are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
   
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
   
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is
continued towards letter D.
A. Yes, sir.
   
Q. And there is a retracing in the word Vda.?
A. Yes, sir.[20]
   
xxx
   
Q. Now, that was 1979, remember one year after the alleged holographic will. Now,
you identified a document marked as Exhibit R. This is dated January 8,1978 which
is only about eight months from August 30,1978. Do you notice that the signature
Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
   
Q. You just say that she was very exhausted while that in 1978 she was healthy was
not sickly and she was agile. Now, you said she was exhausted?
A. In writing.
   
Q. How did you know that she was exhausted when you were not present and you just
tried to explain yourself out because of the apparent inconsistencies?
A. That was I think. (sic)
   
Q. Now, you already observed this signature dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that there is no retracing; there is no
hesitancy and the signature was written on a fluid movement. x x x And in fact , the
name Eufemia R. Patigas here refers to one of the petitioners?
A. Yes, sir.
   
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature
appearing in the alleged holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.[21]

Evangeline Calugay declared that the holographic will was written, dated and signed in
the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo
Ramonal for the period of 22 years. Could you tell the court the services if any
which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and then to her
transactions.
   
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her
lawyer.
   
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
   
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting
of Matilde Vda de Ramonal?
A. Yes, sir.
   
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.[22]
   
xxx
   
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30,
1978 there is a signature here below item No. 1, will you tell this court whose
signature is this?
A. Yes, sir, that is her signature.
   
Q. Why do you say that is her signature?
A. I am familiar with her signature.[23]
So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather.
Actually I am related to the husband by consanguinity.
   
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.[24]
   
xxx
   
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal
have legitimate children?
A. As far as I know they have no legitimate children.[25]
   
xxx
   
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
   
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
   
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what
case is that, Fiscal?
A. It is about the project partition to terminate the property, which was under the court
before.[26]
   
xxx
   
Q. Appearing in special proceeding no. 427 is the amended inventory which is marked
as exhibit N of the estate of Justo Ramonal and there appears a signature over the
type written word Matilde vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
   
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal. [27]
   
xxx
   
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what
were the other assistance wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall. [28]
   
 xxx
   
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this
document, Fiscal Waga and tell the court whether you are familiar with the
handwriting contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
   
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.
   
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you
tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
   
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the
court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
   
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
   
Q. How about this signature in item no. 4, can you tell the court whose signature is
this?
A. The same is true with the signature in item no. 4. It seems that they are similar. [29]
   
xxx
   
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de
Ramonal?
A. Yes, it is similar to the project of partition.
   
Q. So you are not definite that this is the signature of Matilde vda de Ramonal.
You are merely supposing that it seems to be her signature because it is
similar to the signature of the project of partition which you have made?
A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson, [31] ruling that the requirement
is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals, [32] we said that "the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make
a will."

However, we cannot eliminate the possibility of a false document being adjudged as the
will of the testator, which is why if the holographic will is contested, that law requires
three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the
respondents, who kept it even before the death of the deceased. In the testimony of Ms.
Binanay, she revealed that the will was in her possession as early as 1985, or five years
before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of
the deceased with other documents signed and executed by her during her lifetime. The
only chance at comparison was during the cross-examination of Ms. Binanay when the
lawyer of petitioners asked Ms. Binanay to compare the documents which contained the
signature of the deceased with that of the holographic will and she is not a handwriting
expert. Even the former lawyer of the deceased expressed doubts as to the authenticity
of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different
when compared with other documents written by the testator. The signature of the
testator in some of the disposition is not readable. There were uneven strokes, retracing
and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978, [33] and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980,[34] and a letter dated June 16, 1978,[35] the strokes are different. In
the letters, there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain
that the holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seño Vda. de Ramonal.

No costs.

SO ORDERED.

Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

[ G.R. No. 174489, April 07, 2012 ]
ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.
MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA,
 JR., AND RAFAEL TITCO, PETITIONERS, VS. LORENZO LAXA, RESPONDENT.

DECISION

DEL CASTILLO, J.:

It is incumbent upon those who oppose the probate of a will to clearly establish that the
decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to
distribute his estate in the manner provided in his will so long as it is legally tenable. [1]

Before us is a Petition for Review on Certiorari[2] of the June 15, 2006 Decision[3] of the
Court of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30,
2003 Decision[4] of the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in
Special Proceedings No. G-1186.  The assailed CA Decision granted the petition for
probate of the notarial will of Paciencia Regala (Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be impressed with merit, the
decision in SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE
and a new one entered GRANTING the petition for the probate of the will of PACIENCIA
REGALA.

SO ORDERED.[5]

Also assailed herein is the August 31, 2006 CA Resolution [6]  which denied the Motion
for Reconsideration thereto.

Petitioners call us to reverse the CA’s assailed Decision and instead affirm the Decision
of the RTC which disallowed the notarial will of Paciencia.

Factual Antecedents

Paciencia was a 78 year old spinster when she made her last will and testament entitled
“Tauli Nang Bilin o Testamento Miss Paciencia Regala”[7] (Will) in the Pampango dialect
on September 13, 1981.  The Will, executed in the house of retired Judge Ernestino G.
Limpin (Judge Limpin), was read to Paciencia twice.  After which, Paciencia expressed
in the presence of the instrumental witnesses that the document is her last will and
testament.  She thereafter affixed her signature at the end of the said document on
page 3[8] and then on the left margin of pages 1, 2 and 4 thereof. [9]

The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco
Garcia (Francisco) and Faustino R. Mercado (Faustino).  The three attested to the Will’s
due execution by affixing their signatures below its attestation clause [10] and on the left
margin of pages 1, 2 and 4 thereof,[11] in the presence of Paciencia and of one another
and of Judge Limpin who acted as notary public.

Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children
Luna Lorella Laxa and Katherine Ross Laxa, thus:
xxxx

Fourth - In consideration of their valuable services to me since then up to the present by

the spouses LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH,
CONVEY and GIVE all my properties enumerated in parcels 1 to 5 unto the spouses
LORENZO R. LAXA and CORAZON F. LAXA  and their children, LUNA LORELLA
LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa
both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan],
Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are
still not of legal age and living with their parents who would decide to bequeath since
they are the children of the spouses;

xxxx

[Sixth] - Should other properties of mine may be discovered aside from the properties
mentioned in this last will and testament, I am also bequeathing and giving the same to
the spouses Lorenzo R. Laxa and Corazon F. Laxa and their two children and I also
command them to offer masses yearly for the repose of my soul and that of D[ñ]a
Nicomeda Regala, Epifania Regala and their spouses and with respect to the fishpond
situated at San Antonio, I likewise command to fulfill the wishes of D[ñ]a Nicomeda
Regala in accordance with her testament as stated in my testament. x x x [12]

The filial relationship of Lorenzo with Paciencia remains undisputed.  Lorenzo is

Paciencia’s nephew whom she treated as her own son. Conversely, Lorenzo came to
know and treated Paciencia as his own mother.[13]  Paciencia lived with Lorenzo’s family
in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his
birth.  Six days after the execution of the Will or on September 19, 1981, Paciencia left
for the United States of America (USA).  There, she resided with Lorenzo and his family
until her death on January 4, 1996.

In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a
petition[14] with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia
and for the issuance of Letters of Administration in his favor, docketed as Special
Proceedings No. G-1186.

There being no opposition to the petition after its due publication, the RTC issued an
Order on June 13, 2000[15] allowing Lorenzo to present evidence on June 22, 2000.  On
said date, Dra. Limpin testified that she was one of the instrumental witnesses in the
execution of the last will and testament of Paciencia on September 13, 1981. [16]  The
Will was executed in her father’s (Judge Limpin) home office, in her presence and of
two other witnesses, Francisco and Faustino. [17]  Dra. Limpin positively identified the Will
and her signatures on all its four pages.[18] She likewise positively identified the
signature of her father appearing thereon. [19]  Questioned by the prosecutor regarding
Judge Limpin’s present mental fitness, Dra. Limpin testified that her father had a stroke
in 1991 and had to undergo brain surgery. [20]  The judge can walk but can no longer talk
and remember her name.  Because of this, Dra. Limpin stated that her father can no
longer testify in court.[21]

The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition[22] to Lorenzo’s petition.  Antonio averred that the properties subject of
Paciencia’s Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest;
hence, Paciencia had no right to bequeath them to Lorenzo. [23]

Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian
M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie
M. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental
Opposition[24] contending that Paciencia’s Will was null and void because ownership of
the properties had not been transferred and/or titled to Paciencia before her death
pursuant to Article 1049, paragraph 3 of the Civil Code. [25]  Petitioners also opposed the
issuance of Letters of Administration in Lorenzo’s favor arguing that Lorenzo was
disqualified to be appointed as such, he being a citizen and resident of the USA. [26] 
Petitioners prayed that Letters of Administration be instead issued in favor of Antonio. [27]

Later still on September 26, 2000, petitioners filed an Amended Opposition [28] asking the
RTC to deny the probate of Paciencia’s Will on the following grounds: the Will was not
executed and attested to in accordance with the requirements of the law; that Paciencia
was mentally incapable to make a Will at the time of its execution; that she was forced
to execute the Will under duress or influence of fear or threats; that the execution of the
Will had been procured by undue and improper pressure and influence by Lorenzo or by
some other persons for his benefit; that the signature of Paciencia on the Will was
forged; that assuming the signature to be genuine, it was obtained through fraud or
trickery; and, that Paciencia did not intend the document to be her Will.  Simultaneously,
petitioners filed an Opposition and Recommendation [29] reiterating their opposition to the
appointment of Lorenzo as administrator of the properties and requesting for the
appointment of Antonio in his stead.

On January 29, 2001, the RTC issued an Order [30] denying the requests of both Lorenzo
and Antonio to be appointed administrator since the former is a citizen and resident of
the USA while the latter’s claim as a co-owner of the properties subject of the Will has
not yet been established.

Meanwhile, proceedings on the petition for the probate of the Will continued.  Dra.
Limpin was recalled for cross-examination by the petitioners.  She testified as to the age
of her father at the time the latter notarized the Will of Paciencia; the living
arrangements of Paciencia at the time of the execution of the Will; and the lack of
photographs when the event took place. [31]

Aside from Dra. Limpin, Lorenzo and  Monico Mercado (Monico)  also took the witness
stand.  Monico, son of Faustino, testified on his father’s condition.  According to him his
father can no longer talk and express himself due to brain damage.  A medical
certificate was presented to the court to support this allegation. [32]

For his part, Lorenzo testified that: from 1944 until his departure for the USA in April
1980, he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981
Paciencia went to the USA and lived with him and his family until her death in January
1996; the relationship between him and Paciencia was like that of a mother and child
since Paciencia took care of him since birth and took him in as an adopted son;
Paciencia was a spinster without children, and without brothers and sisters; at the time
of Paciencia’s death, she did not suffer from any mental disorder and was of sound
mind, was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was
only given to him after Paciencia’s death through Faustino; and he was already residing
in the USA when the Will was executed.[33]  Lorenzo positively identified the signature of
Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencia’s signature because he accompanied her in her transactions. [34] 
Further, Lorenzo belied and denied having used force, intimidation, violence, coercion
or trickery upon Paciencia to execute the Will as he was not in the Philippines when the
same was executed.[35] On cross-examination, Lorenzo clarified that Paciencia informed
him about the Will shortly after her arrival in the USA but that he saw a copy of the Will
only after her death.[36]

As to Francisco, he could no longer be presented in court as he already died on May

21, 2000.

For petitioners, Rosie testified that her mother and Paciencia were first cousins. [37]  She
claimed to have helped in the household chores in the house of Paciencia thereby
allowing her to stay therein from morning until evening and that during the period of her
service in the said household, Lorenzo’s wife and his children were staying in the same
house.[38]  She served in the said household from 1980 until Paciencia’s departure for
the USA on September 19, 1981.[39]

On September 13, 1981, Rosie claimed that she saw Faustino bring “something” for
Paciencia to sign at the latter’s house. [40]  Rosie admitted, though, that she did not see
what that “something” was as same was placed inside an envelope. [41]  However, she
remembered Paciencia instructing Faustino to first look for money before she signs
them.[42]  A few days after or on September 16, 1981, Paciencia went to the house of
Antonio’s mother and brought with her the said envelope. [43] Upon going home,
however, the envelope was no longer with Paciencia. [44]  Rosie further testified that
Paciencia was referred to as “magulyan” or “forgetful” because she would sometimes
leave her wallet in the kitchen then start looking for it moments later. [45]  On cross
examination, it was established that Rosie was neither a doctor nor a psychiatrist, that
her conclusion that Paciencia was “magulyan” was based on her personal assessment,
[46]
 and that it was Antonio who requested her to testify in court. [47]

In his direct examination, Antonio stated that Paciencia was his aunt. [48]  He identified
the Will and testified that he had seen the said document before because Paciencia
brought the same to his mother’s house and showed it to him along with another
document on September 16, 1981.[49]  Antonio alleged that when the documents were
shown to him, the same were still unsigned. [50]  According to him, Paciencia thought that
the documents pertained to a lease of one of her rice lands, [51] and it was he who
explained that the documents were actually a special power of attorney to lease and sell
her fishpond and other properties upon her departure for the USA, and a Will which
would transfer her properties to Lorenzo and his family upon her death. [52]  Upon hearing
this, Paciencia allegedly uttered the following words: “Why will I never [return], why will I
sell all my properties?”  Who is Lorenzo?  Is he the only [son] of God?  I have other
relatives [who should] benefit from my properties.  Why should I die already?”[53] 
Thereafter, Antonio advised Paciencia not to sign the documents if she does not want
to, to which the latter purportedly replied, “I know nothing about those, throw them away
or it is up to you. The more I will not sign them.”[54]  After which, Paciencia left the
documents with Antonio.  Antonio kept the unsigned documents

and eventually turned them over to Faustino on September 18, 1981. [55]

Ruling of the Regional Trial Court

On September 30, 2003, the RTC rendered its Decision[56] denying the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b)
disallows the notarized will dated September 13, 1981 of Paciencia Regala.

SO ORDERED.[57]

The trial court gave considerable weight to the testimony of Rosie and concluded that at
the time Paciencia signed the Will, she was no longer possessed of sufficient reason or
strength of mind to have testamentary capacity. [58]

Ruling of the Court of Appeals

On appeal, the CA reversed the RTC Decision and granted the probate of the Will of
Paciencia.  The appellate court did not agree with the RTC’s conclusion that Paciencia
was of unsound mind when she executed the Will.  It ratiocinated that “the state of being
‘magulyan’ does not make a person mentally unsound so [as] to render [Paciencia] unfit
for executing a Will.”[59]  Moreover, the oppositors in the probate proceedings were not
able to overcome the presumption that every person is of sound mind.  Further, no
concrete circumstances or events were given to prove the allegation that Paciencia was
tricked or forced into signing the Will.[60]

Petitioners moved for reconsideration[61] but the motion was denied by the CA in its
Resolution[62] dated August 31, 2006.

Hence, this petition.

Issues
Petitioners come before this Court by way of Petition for Review on Certiorari ascribing
upon the CA the following errors:
I.

THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED

THE PROBATE OF PACIENCIA’S WILL DESPITE RESPONDENT’S UTTER FAILURE
TO COMPLY WITH SECTION 11, RULE 76 OF THE RULES OF COURT;
II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING

CONCLUSIONS NOT IN ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT

PETITIONERS FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND
AT THE TIME THE WILL WAS ALLEGEDLY EXECUTED[63]

The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.
Our Ruling

We deny the petition.

Faithful compliance with the formalities laid down

by law is apparent from the face of the Will.

Courts are tasked to determine nothing more than the extrinsic validity of a Will in
probate proceedings.[64]  This is expressly provided for in Rule 75, Section 1 of the Rules
of Court, which states:
Rule 75
Production of Will. Allowance of Will Necessary.

Section 1. Allowance necessary. Conclusive as to execution. – No will shall pass either

real or personal estate unless it is proved and allowed in the proper court. Subject to the
right of appeal, such allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed by
law.[65]  These formalities are enshrined in Articles 805 and 806 of the New Civil Code,
to wit:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the will and all the
pages thereof in the presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be

interpreted to them.

Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file
another with the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law.  The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will.  Further, the
attestation clause explicitly states the critical requirement that the testatrix and her
instrumental witnesses signed the Will in the presence of one another and that the
witnesses attested and subscribed to the Will in the presence of the testator and of one
another.  In fact, even the petitioners acceded that the signature of Paciencia in the Will
may be authentic although they question her state of mind when she signed the same
as well as the voluntary nature of said act.

The burden to prove that Paciencia was of unsound

mind at the time of the execution of the will lies on
the shoulders of the petitioners.

Petitioners, through their witness Rosie, claim that Paciencia was “magulyan” or
forgetful so much so that it effectively stripped her of testamentary capacity. They
likewise claimed in their Motion for Reconsideration [66] filed with the CA that Paciencia
was not only “magulyan” but was actually suffering from paranoia.[67]

We are not convinced.

We agree with the position of the CA that the state of being forgetful does not
necessarily make a person mentally unsound so as to render him unfit to execute a Will.
[68]
  Forgetfulness is not equivalent to being of unsound mind.  Besides, Article 799 of
the New Civil Code states:
Art.  799.    To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencia’s forgetfulness,
there is no substantial evidence, medical or otherwise, that would show that Paciencia
was of unsound mind at the time of the execution of the Will.  On the other hand, we
find more worthy of credence Dra. Limpin’s testimony as to the soundness of mind of
Paciencia when the latter went to Judge Limpin’s house and voluntarily executed the
Will.  “The testimony of subscribing witnesses to a Will concerning the testator’s mental
condition is entitled to great weight where they are truthful and intelligent.” [69]  More
importantly, a testator is presumed to be of sound mind at the time of the execution of
the Will and the burden to prove otherwise lies on the oppositor.  Article 800 of the New
Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in the absence of proof
to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid
interval.

Here, there was no showing that Paciencia was publicly known to be insane one month
or less before the making of the Will.  Clearly, thus, the burden to prove that Paciencia
was of unsound mind lies upon the shoulders of petitioners.  However and as earlier
mentioned, no substantial evidence was presented by them to prove the same, thereby
warranting the CA’s finding that petitioners failed to discharge such burden.

Furthermore, we are convinced that Paciencia was aware of the nature of her estate to
be disposed of, the proper objects of her bounty and the character of the testamentary
act.  As aptly pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document
she executed.  She specially requested that the customs of her faith be observed upon
her death. She was well aware of how she acquired the properties from her parents and
the properties she is bequeathing to LORENZO, to his wife CORAZON and to his two
(2) children. A third child was born after the execution of the will and was not included
therein as devisee.[70]

Bare allegations of duress or influence of fear

or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as
basis to deny the probate of a will.

An essential element of the validity of the Will is the willingness of the testator or
testatrix to execute the document that will distribute his/her earthly possessions upon
his/her death.  Petitioners claim that Paciencia was forced to execute the Will under
duress or influence of fear or threats; that the execution of the Will had been procured
by undue and improper pressure and influence by Lorenzo or by some other persons for
his benefit; and that assuming Paciencia’s signature to be genuine, it was obtained
through fraud or trickery.  These are grounded on the alleged conversation between
Paciencia and Antonio on September 16, 1981 wherein the former purportedly
repudiated the Will and left it unsigned.

We are not persuaded.

We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo
as her own son and that love even extended to Lorenzo’s wife and children.  This kind
of relationship is not unusual.  It is in fact not unheard of in our culture for old maids or
spinsters to care for and raise their nephews and nieces and treat them as their own
children.  Such is a prevalent and accepted cultural practice that has resulted in many
family discords between those favored by the testamentary disposition of a testator and
those who stand to benefit in case of intestacy.

In this case, evidence shows the acknowledged fact that Paciencia’s relationship with
Lorenzo and his family is different from her relationship with petitioners.  The very fact
that she cared for and raised Lorenzo and lived with him both here and abroad, even if
the latter was already married and already has children, highlights the special bond
between them. This unquestioned relationship between Paciencia and the devisees
tends to support the authenticity of the said document as against petitioners’ allegations
of duress, influence of fear or threats, undue and improper influence, pressure, fraud,
and trickery which, aside from being factual in nature, are not supported by concrete,
substantial and credible evidence on record.  It is worth stressing that bare arguments,
no matter how forceful, if not based on concrete and substantial evidence cannot suffice
to move the Court to uphold said allegations. [71]  Furthermore, “a purported will is not [to
be] denied legalization on dubious grounds.  Otherwise, the very institution of
testamentary succession will be shaken to its foundation, for even if a will has been duly
executed in fact, whether x x x it will be probated would have to depend largely on the
attitude of those interested in [the estate of the deceased].” [72]

Court should be convinced by the evidence

presented before it that the Will was duly
executed.

Petitioners dispute the authenticity of Paciencia’s Will on the ground that Section 11 of
Rule 76 of the Rules of Court was not complied with.  It provides:
RULE 76
Allowance or Disallowance of Will

Section 11. Subscribing witnesses produced or accounted for where will contested. – If

the will is contested, all the subscribing witnesses, and the notary in the case of wills
executed under the Civil Code of the Philippines, if present in the Philippines and not
insane, must be produced and examined, and the death, absence, or insanity of any of
them must be satisfactorily shown to the court. If all or some of such witnesses are
present in the Philippines but outside the province where the will has been filed, their
deposition must be taken. If any or all of them testify against the due execution of the
will, or do not remember having attested to it, or are otherwise of doubtful credibility, the
will may nevertheless, be allowed if the court is satisfied from the testimony of other
witnesses and from all the evidence presented that the will was executed and attested
in the manner required by law.

If a holographic will is contested, the same shall be allowed if at least three (3)
witnesses who know the handwriting of the testator explicitly declare that the will and
the signature are in the handwriting of the testator; in the absence of any competent
witnesses, and if the court deem it necessary, expert testimony may be resorted to.
(Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been
presented in court since all but one witness, Francisco, are still living.

We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the
court was satisfactorily explained  during the probate proceedings. As testified to by his
son, Faustino had a heart attack, was already bedridden and could no longer talk and
express himself due to brain damage.  To prove this, said witness presented the
corresponding medical certificate.  For her part, Dra. Limpin testified that her father,
Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery.  At that time,
Judge Limpin could no longer talk and could not even remember his daughter’s name
so that Dra. Limpin stated that given such condition, her father could no longer testify.  It
is well to note that at that point, despite ample opportunity, petitioners neither interposed
any objections to the testimonies of said witnesses nor challenged the same on cross
examination.  We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of
the notary public to testify in court.  Because of this the probate of Paciencia’s Will may
be allowed on the basis of Dra. Limpin’s testimony proving her sanity and the due
execution of the Will, as well as on the proof of her handwriting.  It is an established rule
that “[a] testament may not be disallowed just because the attesting witnesses declare
against its due execution; neither does it have to be necessarily allowed just because all
the attesting witnesses declare in favor of its legalization; what is decisive is that the
court is convinced by evidence before it, not necessarily from the attesting witnesses,
although they must testify, that the will was or was not duly executed in the manner
required by law.”[73]

Moreover, it bears stressing that “[i]rrespective x x x of the posture of any of the parties
as regards the authenticity and due execution of the will x x x in question, it is the
mandate of the law that it is the evidence before the court and/or [evidence that] ought
to be before it that is controlling.”[74]  “The very existence of [the Will] is in itself prima
facie proof that the supposed [testatrix] has willed that [her] estate be distributed in the
manner therein provided, and it is incumbent upon the state that, if legally tenable, such
desire be given full effect independent of the attitude of the parties affected
thereby.”[75] This, coupled with Lorenzo’s established relationship with Paciencia, the
evidence and the testimonies of disinterested witnesses, as opposed to the total lack of
evidence presented by petitioners apart from their self-serving testimonies, constrain us
to tilt the balance in favor of the authenticity of the Will and its allowance for probate.

WHEREFORE, the petition is DENIED.  The Decision dated June 15, 2006 and the
Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979
are AFFIRMED.

SO ORDERED.

Corona, C.J., (Chairperson), Leonardo-De Castro, Bersamin, and Villarama, Jr., JJ.,

concur.
[ G.R. No. 129505, January 31, 2000 ]
OCTAVIO S. MALOLES II, PETITIONER, VS. PACITA DE LOS REYES PHILLIPS,
RESPONDENT.

[G.R. NO. 133359. JANUARY 31, 2000]

OCTAVIO S. MALOLES II, PETITIONER, VS. COURT OF APPEALS, HON.

FERNANDO V. GOROSPE, JR., IN HIS OFFICIAL CAPACITY AS PRESIDING
JUDGE OF RTC-MAKATI, BRANCH 61, AND PACITA PHILLIPS AS THE ALLEGED
EXECUTRIX OF THE ALLEGED WILL OF THE LATE DR. ARTURO DE SANTOS,
RESPONDENTS.

DECISION

MENDOZA, J.:

These are petitions for review on certiorari of the decisions of the Thirteenth and the
Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right
to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were
consolidated considering that they involve the same parties and some of the issues
raised are the same.

The facts which gave rise to these two petitions are as follows:

On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a
petition for probate of his will[1] in the Regional Trial Court, Branch 61, Makati, docketed
as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo
de Santos Foundation, Inc.; that he disposed by his will his properties with an
approximate value of not less than P2,000,000.00; and that copies of said will were in
the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A
copy of the will[2] was annexed to the petition for probate.

On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61

issued an order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12
September 1995, at 8:30 o’clock in the morning, copies of which were served to Arturo
de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer’s Return, dated
04 September 1995 attached to the records). When the case was called for hearing on
the date set, no oppositor appeared nor any written opposition was ever filed and on
motion of petitioner, he was allowed to adduce his evidence in support of the petition.

Petitioner personally appeared before this Court and was placed on the witness stand
and was directly examined by the Court through "free wheeling" questions and answers
to give this Court a basis to determine the state of mind of the petitioner when he
executed the subject will. After the examination, the Court is convinced that petitioner is
of sound and disposing mind and not acting on duress, menace and undue influence or
fraud, and that petitioner signed his Last Will and Testament on his own free and
voluntary will and that he was neither forced nor influenced by any other person in
signing it.

Furthermore, it appears from the petition and the evidence adduced that petitioner in his
lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at
his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said
Last Will and Testament was signed in the presence of his three (3) witnesses, namely,
to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward J.
Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos
Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of
the testator and in the presence of each and all of the witnesses signed the said Last
Will and Testament and duly notarized before Notary Public Anna Melissa L. Rosario
(Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were
taken (Exhs. "B" to "B-3").

Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address
at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as
sole legatee and devisee of petitioner’s properties, real and personal, approximately
valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as
executor and to serve as such without a bond.

From the foregoing facts, the Court finds that the petitioner has substantially established
the material allegations contained in his petition. The Last Will and Testament having
been executed and attested as required by law; that testator at the time of the execution
of the will was of sane mind and/or not mentally incapable to make a Will; nor was it
executed under duress or under the influence of fear or threats; that it was in writing and
executed in the language known and understood by the testator duly subscribed thereof
and attested and subscribed by three (3) credible witnesses in the presence of the
testator and of another; that the testator and all the attesting witnesses signed the Last
Will and Testament freely and voluntarily and that the testator has intended that the
instrument should be his Will at the time of affixing his signature thereto.

WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the
allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED
and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testator’s sister) and Octavio L. Maloles, Sr.,
he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed for the
reconsideration of the order allowing the will and the issuance of letters of
administration in his name.

On the other hand, private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters testamentary with Branch
61. Later, however, private respondent moved to withdraw her motion. This was
granted, while petitioner was required to file a memorandum of authorities in support of
his claim that said court (Branch 61) still had jurisdiction to allow his intervention. [3]

Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand,
private respondent, who earlier withdrew her motion for the issuance of letters
testamentary in Branch 61, refiled a petition for the same purpose with the Regional
Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to
Branch 65.

Upon private respondent’s motion, Judge Salvador Abad Santos of Branch 65 issued an
order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos’s
estate.

On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set
aside the appointment of private respondent as special administrator. He reiterated that
he was the sole and full blooded nephew and nearest of kin of the testator; that he
came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the
probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was
still pending; that private respondent misdeclared the true worth of the testator’s estate;
that private respondent was not fit to be the special administrator of the estate; and that
petitioner should be given letters of administration for the estate of Dr. De Santos.

On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343
to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of
RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on
August 26, 1996 petitioner’s motion for intervention. Petitioner brought this matter to the
Court of Appeals which, in a decision[4] promulgated on February 13, 1998, upheld the
denial of petitioner’s motion for intervention.

Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the
records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending
case involving the Estate of Decedent Arturo de Santos pending before said court. The
order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this
case to this Branch 61 on the ground that this case is related with a case before this
Court, let this case be returned to Branch 65 with the information that there is no related
case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this
Branch.

There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76
of the Rules of Court for the Allowance of his will during his lifetime docketed as SP.
PROC. NO. M-4223 which was already decided on 16 February 1996 and has become
final.

It is noted on records of Case No. M-4223 that after it became final, herein Petitioner
Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS
TESTAMENTARY, which was subsequently withdrawn after this Court, during the
hearing, already ruled that the motion could not be admitted as the subject matter
involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her
motion and filed this case (No. 4343).

Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No.
M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August
1996 likewise for the same grounds that the matter is for a separate case to be filed
under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule
76 of the Rules of Court.

It is further noted that it is a matter of policy that consolidation of cases must be

approved by the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996, [5] Judge Abad Santos appeared firm
in his position that " . . . it would be improper for (Branch 65) to hear and resolve the
petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were
commenced with Branch 61. He thus ordered the transfer of the records back to the
latter branch. However, he later recalled his decision and took cognizance of the case
"to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue
hearing this case notwithstanding the fact that said branch began the probate
proceedings of the estate of the deceased and must therefore continue to exercise its
jurisdiction to the exclusion of all others, until the entire estate of the testator had been
partitioned and distributed as per Order dated 23 September 1996, this branch
(Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite
the proceedings, and under the concept that the Regional Trial Court of Makati City is
but one court.

Furnish a copy of this order to the Office of the Chief justice and the Office of the Court
Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los
Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner’s motion for intervention.
Private respondent moved for a reconsideration but her motion was denied by the trial
court. She then filed a petition for certiorari in the Court of Appeals which, on February
26, 1997, rendered a decision[6] setting aside the trial court’s order on the ground that
petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.

Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court - Makati, Branch 61
has lost jurisdiction to proceed with the probate proceedings upon its
issuance of an order allowing the will of Dr. Arturo de Santos
2. Whether or not the Honorable (Regional Trial Court - Makati, Branch 65)
acquired jurisdiction over the petition for issuance of letters testamentary
filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de
Santos, has a right to intervene and oppose the petition for issuance of
letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her
petition for issuance of letters testamentary with the Regional Trial Court -
Makati, Branch 65 knowing fully well that the probate proceedings
involving the same testate estate of the decedent is still pending with the
Regional Trial Court - Makati, Branch 61.

First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did
not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing
the cases of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he argues that the
proceedings must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, §1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondent’s petition for issuance of letters testamentary.

The contention has no merit.

In cases for the probate of wills, it is well-settled that the authority of the court is limited
to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law. [9]

Ordinarily, probate proceedings are instituted only after the death of the testator, so
much so that, after approving and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases cited by petitioner are of
such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate
of the will of a living testator under the principle of ambulatory nature of wills. [10]

However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the
will filed by the testator himself. It provides:
Civil Code, Art. 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the
allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testator’s death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be necessary
for the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution.
Rule 76, §1 likewise provides:
Sec. 1 Who may petition for the allowance of will. - Any executor, devisee, or legatee
named in a will, or any other person interested in the estate, may, at any time after the
death of the testator, petition the court having jurisdiction to have the will allowed,
whether the same be in his possession or not, or is lost or destroyed.

The testator himself may, during his lifetime, petition in the court for the allowance of his
will.
The rationale for allowing the probate of wills during the lifetime of testator has been
explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary capacity of the
testator or the formalities adopted in the execution of wills. There are relatively few
cases concerning the intrinsic validity of testamentary dispositions. It is far easier for the
courts to determine the mental condition of a testator during his lifetime than after his
death. Fraud, intimidation and undue influence are minimized. Furthermore, if a will
does not comply with the requirements prescribed by law, the same may be corrected at
once. The probate during the testator’s life, therefore, will lessen the number of contest
upon wills. Once a will is probated during the lifetime of the testator, the only questions
that may remain for the courts to decide after the testator’s death will refer to the
intrinsic validity of the testamentary dispositions. It is possible, of course, that even
when the testator himself asks for the allowance of the will, he may be acting under
duress or undue influence, but these are rare cases.

After a will has been probated during the lifetime of the testator, it does not necessarily
mean that he cannot alter or revoke the same before his death. Should he make a new
will, it would also be allowable on his petition, and if he should die before he has had a
chance to present such petition, the ordinary probate proceeding after the testator’s
death would be in order.[11]
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was
nothing else for Branch 61 to do except to issue a certificate of allowance of the will
pursuant to Rule 73, §12 of the Rules of Court. There is, therefore, no basis for the
ruling of Judge Abad Santos of Branch 65 of RTC-Makati that -
Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings
of the estate of the deceased, it continues and shall continue to exercise said
jurisdiction to the exclusion of all others. It should be noted that probate proceedings do
not cease upon the allowance or disallowance of a will but continues up to such time
that the entire estate of the testator had been partitioned and distributed.

The fact that the will was allowed during the lifetime of the testator meant merely that
the partition and distribution of the estate was to be suspended until the latter’s death. In
other words, the petitioner, instead of filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation for the same purpose in the
probate court.[12]

Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73,
§1 which states:
Where estate of deceased persons settled. - If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance in the province in which he resides at the time of his death, and if he is an
inhabitant of a foreign country, the Court of First Instance of any province in which he
had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of residence of the decedent, or
of the location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction appears on
the record.

The above rule, however, actually provides for the venue of actions for the settlement of
the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held: [13]
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the
clause "so far as it depends on the place of residence of the decedent, or of the location
of the state," is in reality a matter of venue, as the caption of the Rule indicates:
"Settlement of Estate of Deceased Persons. Venue and Processes." It could not have
been intended to define the jurisdiction over the subject matter, because such legal
provision is contained in a law of procedure dealing merely with procedural matters.
Procedure is one thing, jurisdiction over the subject matter is another. The power or
authority of the court over the subject matter "existed was fixed before procedure in a
given cause began." That power or authority is not altered or changed by procedure,
which simply directs the manner in which the power or authority shall be fully and justly
exercised. There are cases though that if the power is not exercised conformably with
the provisions of the procedural law, purely, the court attempting to exercise it loses the
power to exercise it legally. However, this does not amount to a loss of jurisdiction over
the subject matter. Rather, it means that the court may thereby lose jurisdiction over the
person or that the judgment may thereby be rendered defective for lack of something
essential to sustain it. The appearance of this provision in the procedural law at once
raises a strong presumption that it has nothing to do with the jurisdiction of the court
over the subject matter. In plain words, it is just a matter of method, of convenience to
the parties.

Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in
Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The
different branches comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other. [14]

It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition for
probate of the will of Dr. De Santos is concerned, it does not bar other branches of the
same court from taking cognizance of the settlement of the estate of the testator after
his death. As held in the leading case of Bacalso v. Ramolote:[15]
The various branches of the Court of First Instance of Cebu under the Fourteenth
Judicial District, are a coordinate and co-equal courts, and the totality of which is only
one Court of First Instance. The jurisdiction is vested in the court, not in the judges. And
when a case is filed in one branch, jurisdiction over the case does not attach to the
branch or judge alone, to the exclusion of the other branches. Trial may be held or
proceedings continue by and before another branch or judge. It is for this reason that
Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the
administrative right or power to apportion the cases among the different branches, both
for the convenience of the parties and for the coordination of the work by the different
branches of the same court. The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be
vested in the Court of First Instance of the province, and the trials may be held by any
branch or judge of the court.

Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp.
Proc. No. M-4343.

Second. Petitioner claims the right to intervene in and oppose the petition for issuance
of letters testamentary filed by private respondent. He argues that, as the nearest next
of kin and creditor of the testator, his interest in the matter is material and direct. In
ruling that petitioner has no right to intervene in the proceedings before Branch 65 of
RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of the decedent
Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest
collateral relative of the decedent, he can inherit from the latter only in case of intestacy.
Since the decedent has left a will which has already been probated and disposes of all
his properties the private respondent can inherit only if the said will is annulled. His
interest in the decedent’s estate is, therefore, not direct or immediate.

His claim to being a creditor of the estate is a belated one, having been raised for the
first time only in his reply to the opposition to his motion to intervene, and, as far as the
records show, not supported by evidence.

. . . . [T]he opposition must come from one with a direct interest in the estate or the will,
and the private respondent has none. Moreover, the ground cited in the private
respondent’s opposition, that the petitioner has deliberately misdeclared the truth worth
and value of the estate, is not relevant to the question of her competency to act as
executor. Section 2, Rule 76 of the Rules of Court requires only an allegation of the
probable value and character of the property of the estate. The true value can be
determined later on in the course of the settlement of the estate. [16]
Rule 79, §1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for
administration. - Any person interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons named therein as executors, or any
of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such
grounds. A petition may, at the same time, be filed for letters of administration with the
will annexed.
Under this provision, it has been held that an "interested person" is one who would be
benefited by the estate, such as an heir, or one who has a claim against the estate,
such as a creditor, and whose interest is material and direct, not merely incidental or
contingent.[17]

Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered
an "heir" of the testator. It is a fundamental rule of testamentary succession that one
who has no compulsory or forced heirs may dispose of his entire estate by will. Thus,
Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in
favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator’s -
(1) Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their
legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code. [18]
Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testator’s will.

Nor does he have any right to intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since the testator instituted or named an
executor in his will, it is incumbent upon the Court to respect the desires of the testator.
As we stated in Ozaeta v. Pecson:[19]
The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is natural
that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of his estate. The curtailment of this right may be
considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond
may the court appoint other persons to administer the estate. [20] None of these
circumstances is present in this case.

Third. Petitioner contends that private respondent is guilty of forum shopping when she
filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the
probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in the two actions
which are founded on the same facts, and a judgment in either will result in res
judicata in the other.

This contention has no merit. As stated earlier, the petition for probate was filed by Dr.
De Santos, the testator, solely for the purpose of authenticating his will. Upon the
allowance of his will, the proceedings were terminated.

On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing
authority from the Court to administer the estate and put into effect the will of the
testator. The estate settlement proceedings commenced by the filing of the petition
terminates upon the distribution and delivery of the legacies and devises to the persons
named in the will. Clearly, there is no identity between the two petitions, nor was the
latter filed during the pendency of the former. There was, consequently, no forum
shopping.

WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are
hereby AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[ G.R. No. 76714, June 02, 1994 ]

SALUD TEODORO VDA. DE PEREZ, PETITIONER, VS. HON. ZOTICO A. TOLETE
IN HIS CAPACITY AS PRESIDING JUDGE, BRANCH 18, RTC, BULACAN,
RESPONDENT.

DECISION

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside
the Order dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan
presided by respondent Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American
citizens, established a successful medical practice in New York, U.S.A. The Cunanans
lived at No. 2896 Citation Drive, Pompey, Syracuse, New York, with their children,
Jocelyn, 18; Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to
his wife "all the remainder" of his real and personal property at the time of his death
"wheresoever situated" (Rollo, p. 35). In the event he would survive his wife, he
bequeathed all his property to his children and grandchildren with Dr. Rafael G.
Cunanan, Jr. as trustee. He appointed his wife as executrix of his last will and testament
and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will states:
"If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it shall be
presumed that I predeceased her, and my estate shall be administered and distributed,
in all respects, in accordance with such presumption" (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and
testament containing the same provisions as that of the will of her husband. Article VIII
of her will states:
"If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it shall be
presumed that he predeceased me, and my estate shall be administered and distributed
in all respects, in accordance with such presumption" (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were
trapped by fire that gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee
and substitute executor of the two wills, filed separate proceedings for the probate
thereof with the Surrogate Court of the County of Onondaga, New York. On April 7,
these two wills were admitted to probate and letters testamentary were issued in his
favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and
petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the
reprobate of the two wills ancillary to the probate proceedings in New York. She also
asked that she be appointed the special administratrix of the estate of the deceased
couple consisting primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge
Gualberto J. de la Llana, issued an order, directing the issuance of letters of special
administration in favor of petitioner upon her filing of a P10,000.00 bond. The following
day, petitioner posted the bond and took her oath as special administratrix.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life
Insurance Company be directed to deliver the proceeds in the amount of P50,000.00 of
the life insurance policy taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan
and their daughter Jocelyn as beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a manifestation,
stating that said company had delivered to petitioner the amount of P49,765.85,
representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be
ordered to deliver to her a Philippine Trust Company passbook with P25,594.00 in
savings deposit, and the Family Savings Bank time deposit certificates in the total
amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of
Dr. Jose F. Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista,
Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan
heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his
clients were unaware of the filing of the testate estate case and therefore, "in the
interest of simple fair play," they should be notified of the proceedings (Records, p.
110). He prayed for deferment of the hearing on the motion of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the
"Cunanan collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan"
and therefore, they had "no legal or proprietary interests to protect" and "no right to
intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan,
being American citizens, were executed in accordance with the solemnities and
formalities of New York laws, and produced "effects in this jurisdiction in accordance
with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two
wills, it was presumed that the husband predeceased the wife; and (4) that "the
Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs
as heirship is only by institution" under a will or by operation of the law of New York
(Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on
July 21, the Cunanan heirs filed a motion to nullify the proceedings and to set aside the
appointment of, or to disqualify, petitioner as special administratrix of the estates of Dr.
Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the
"brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they
had been "deliberately excluded" in the petition for the probate of the separate wills of
the Cunanan spouses thereby misleading the Bulacan court to believe that petitioner
was the sole heir of the spouses; that such "misrepresentation" deprived them of their
right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2)
that Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses,
was likewise not notified of the hearings in the Bulacan court; (3) that the
"misrepresentation and concealment committed by" petitioner rendered her unfit to be a
special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified
power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his attorney-in-
fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as
practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F.
Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the
case be declared null and void; (2) that the appointment of petitioner as special
administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the
regular administrator of the estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory
or accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her
daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals";
hence they were complete strangers to the proceedings and were not entitled to notice;
(2) that she could not have "concealed" the name and address of Dr. Rafael G.
Cunanan, Jr. because his name was prominently mentioned not only in the two wills but
also in the decrees of the American surrogate court; (3) that the rule applicable to the
case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside
of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice
being given to the executor who, by the same provision, should himself file the
necessary ancillary proceedings in this country; (4) that even if the Bulacan estate came
from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife
and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had
unlawfully disbursed $215,000.00 to the Cunanan heirs, misappropriated $15,000.00 for
himself and irregularly assigned assets of the estates to his American lawyer (Records,
pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the
Cunanan heirs had entered into an agreement in the United States "to settle and divide
equally the estates," and that under Section 2 of Rule 77 the "court shall fix a time and
place for the hearing and cause notice thereof to be given as in case of an original will
presented for allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure
to comply with the Order of June 23, 1983 and for appropriating money of the estate for
his own benefit. She also alleged that she had impugned the agreement of November
24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision
on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan's
executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]” (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that
they were heirs by the agreement to divide equally the estates. They asserted that by
virtue of Section 2 of Rule 77 of the Rules of Court, the provision of Sections 3, 4 and 5
of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees
must be complied with. They reiterated their prayer: (1) that the proceedings in the case
be nullified; (2) that petitioner be disqualified as special administratrix; (3) that she be
ordered to submit an inventory of all goods, chattels and monies which she had
received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr.
be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the
American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the
estates as early as July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the
suspension of the proceedings as she had "to attend to the settlement proceedings" of
the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs
opposed this motion and filed a manifestation, stating that petitioner had received
$215,000.00 "from the Surrogate's Court as part of legacy" based on the aforesaid
agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of
the two wills, recalling the appointment of petitioner as special administratrix, requiring
the submission of petitioner of an inventory of the property received by her as special
administratrix and declaring all pending incidents moot and academic. Judge de la
Llana reasoned out that petitioner failed to prove the law of New York on procedure and
allowance of wills and the court had no way of telling whether the wills were executed in
accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same as the law
of the Philippines. However, he noted, that there were only two witnesses to the wills of
the Cunanan spouses and the Philippine law requires three witnesses and that the wills
were not signed on each and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated
February 21, 1984, where she had sufficiently proven the applicable laws of New York
governing the execution of last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of
petitioner for the suspension of the proceedings but gave her 15 days upon arrival in the
country within which to act on the other order issued that same day. Contending that the
second portion of the second order left its finality to the discretion of counsel for
petitioner, the Cunanans filed a motion for the reconsideration of the objectionable
portion of the said order so that it would conform with the pertinent provisions of the
Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court,
Malolos, to which the reprobate case was reassigned, issued an order stating that
"(W)hen the last will and testament xxx was denied probate," the case was terminated
and therefore all orders theretofore issued should be given finality. The same Order
amended the February 21, 1984 Order by requiring petitioner to turn over to the estate
the inventoried property. It considered the proceedings for all intents and purposes,
closed (Records, p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final
settlement and termination of the probate cases in New York. Three days later,
petitioner filed a motion praying for the reconsideration of the Order of April 30, 1985 on
the strength of the February 21, 1984 Order granting her a period of 15 days upon
arrival in the country within which to act on the denial of probate of the wills of the
Cunanan spouses. On August 19, respondent Judge granted the motion and
reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a
motion praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and
therefore incapacitated to act as special administratrix, she (the counsel) should be
named substitute special administratrix. She also filed a motion for the reconsideration
of the Order of February 21, 1984, denying probate to the wills of the Cunanan spouses,
alleging that respondent Judge "failed to appreciate the significant probative value of the
exhibits x x x which all refer to the offer and admission to probate of the last wills of the
Cunanan spouses including all procedures undertaken and decrees issued in
connection with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August
19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the
motion for reconsideration holding that the documents submitted by petitioner proved
"that the wills of the testator domiciled abroad were properly executed, genuine and
sufficient to possess real and personal property; that letters testamentary were issued;
and that proceedings were held on a foreign tribunal and proofs taken by a competent
judge who inquired into all the facts and circumstances and being satisfied with his
findings issued a decree admitting to probate the wills in question." However,
respondent Judge said that the documents did not establish the law of New York on the
procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the
foreign law. After the hearing of the motion on April 25, 1986, respondent Judge issued
an order wherein he conceded that insufficiency of evidence to prove the foreign law
was not a fatal defect and was curable by adducing additional evidence. He granted
petitioner 45 days to submit the evidence to that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent
Judge ruled in his order dated June 20, 1986 that he found "no compelling reason to
disturb its ruling of March 31, 1986" but allowed petitioner to "file anew the appropriate
probate proceedings for each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for
reconsideration stating that she was "ready to submit further evidence on the law
obtaining in the State of New York” and praying that she be granted "the opportunity to
present evidence on what the law of the State of New York has on the probate and
allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two
wills in a single proceeding "would be a departure from the typical and established
mode of probate where one petition takes care of one will." He pointed out that even in
New York “where the wills in question were first submitted for probate, they were dealt
with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July
18, 1986, citing Section 3, Rule 2 of the Rules of Court, which provides that no party
may institute more than one suit for a single cause of action. She pointed out that
separate proceedings for the wills of the spouses which contain basically the same
provisions as they even named each other as a beneficiary in their respective wills,
would go against "the grain of inexpensive, just and speedy determination of the
proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for reconsideration,
citing Benigno v. De La Peña, 57 Phil. 305 (1932) (Records, p. 411), but respondent
Judge found that this pleading had been filed out of time and that the adverse party had
not been furnished with a copy thereof. In her compliance, petitioner stated that she had
furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her
motion for a "final ruling on her supplemental motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for
reconsideration filed by petitioner on the grounds that "the probate of separate wills of
two or more different persons even if they are husband and wife cannot be undertaken
in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the
hearing of April 11, 1983 sufficiently proved the laws of the State of New York on the
allowance of wills, and that the separate wills of the Cunanan spouses need not be
probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before
respondent Judge are sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of the respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of the
Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the County of
Onondaga which is a court of record, that his signature and seal of office are genuine,
and that the Surrogate is duly authorized to grant copy of the respective wills of Evelyn
and Jose (Exhs. “F-1” and “G-1”);
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they
have in their records and files the said wills which were recorded on April 7, 1982 (Exhs.
"F-2" and “G-2”);
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3” - "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and
authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General of the Philippines in
New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly authorized to
grant exemplified copies of the decree of probate, letters testamentary and all
proceedings had and proofs duly taken (Exhs. “H-1” and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were
issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge Reagan that a decree
admitting the wills to probate had been issued and appointing Rafael G. Cunanan as
alternate executor (Exhs. "H-3" and "I-10");
(j) the decrees on probate of the two wills specifying that proceedings were held and
proofs duly taken (Exhs. “H-4” and "I-5");
(k) decrees on probate of the two wills stating that they were properly executed, genuine
and valid and that the said instruments were admitted to probate and established as
wills valid to pass real and personal property (Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity
of each other's signatures in the exemplified copies of the decrees of probate, letters
testamentary and proceedings held in their court (Exhs. “H-6" and "I-6")" (Rollo, pp. 13-
16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Court's
Decision of April 13, 1983 and that the proceedings were terminated on November 29,
1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be
effective in this country upon compliance with the following provision of the Civil Code of
the Philippines:
"Art. 816. The will of an alien who is abroad produces effect in the Philippines if made
with the formalities prescribed by the law of the place in which he resides, or according
to the formalities observed in his country, or in conformity with those which this Code
prescribes."
Thus, proof that both wills conform with the formalities prescribed by New York laws or
by Philippine laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been
probated outside of the Philippines are as follows: (1) the due execution of the will in
accordance with the foreign laws; (2) the testator has his domicile in the foreign country
and not in the Philippines; (3) the will has been admitted to probate in such country; (4)
the fact that the foreign tribunal is a probate court, and (5) the laws of a foreign country
on procedure and allowance of wills (III Moran Commentaries on the Rules of Court,
1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the petitioner submitted all the
needed evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the
foreign country is based is impelled by the fact that our courts cannot take judicial notice
of them (Philippine Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to
submit the pertinent procedural and substantive New York laws but which request
respondent Judge just glossed over. While the probate of a will is a special proceeding
wherein courts should relax the rules on evidence, the goal is to receive the best
evidence of which the matter is susceptible before a purported will is probated or denied
probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner's insistence that the separate wills of the Cunanan spouses
should be probated jointly. Respondent Judge’s view that the Rules on allowance of
wills is couched in singular terms and therefore should be interpreted to mean that there
should be separate probate proceedings for the wills of the Cunanan spouses is too
literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule
1 of the Revised Rules of Court, which advise 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 proceeding."
A literal application of the Rules should be avoided if they would only result in the delay
in the administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100
[1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testators'
reciprocal benefit or for the benefit of a third person (Civil Code of the Philippines,
Article 818). In the case at bench, the Cunanan spouses executed separate wills. Since
the two wills contain essentially the same provisions and pertain to property which in all
probability are conjugal in nature, practical considerations dictate their joint probate. As
this Court has held a number of times, it will always strive to settle the entire
controversy in a single proceeding leaving no root or branch to bear the seeds of future
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact -
petitioner has always considered herself the sole heir of Dr. Evelyn Perez Cunanan and
because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably
failed to notify his heirs of the filing of the proceedings. Thus, even in the instant
petition, she only impleaded respondent Judge, forgetting that a judge whose order is
being assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215
SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice
thereof to be given as in case of an original will presented for allowance" (Revised
Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated
abroad should be treated as if it were an "original will" or a will that is presented for
probate for the first time. Accordingly, compliance with Sections 3 and 4 of Rule 76,
which require publication and notice by mail or personally to the "known heirs, legatees,
and devisees of the testator resident in the Philippines" and to the executor, if he is not
the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are
entitled to notices of the time and place for proving the wills. Under Section 4 of Rule 76
of the Revised Rules of Court, the "court shall also cause copies of the notice of the
time and place fixed for proving the will to be addressed to the designated or other
known heirs, legatees, and devisees of the testator, xxx".
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow
petitioner reasonable time within which to submit evidence needed for the joint probate
of the wills of the Cunanan spouses and see to it that the brothers and sisters of Dr.
Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the
probate proceedings.
SO ORDERED.

Davide, Jr., (Acting Chairman), Bellosillo, and Kapunan, JJ., concur.

Cruz, J., (Chairman), on leave.
[ G.R. No. 169144, January 26, 2011 ]
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RUPERTA
PALAGANAS WITH PRAYER FOR THE APPOINTMENT OF SPECIAL
ADMINISTRATOR, MANUEL MIGUEL PALAGANAS AND BENJAMIN GREGORIO
PALAGANAS, PETITIONERS, VS. ERNESTO PALAGANAS, RESPONDENT.

DECISION

ABAD, J.:

This case is about the probate before Philippine court of a will executed abroad by a
foreigner although it has not been probated in its place of execution.
The Facts and the Case

On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a

naturalized United States (U.S.) citizen, died single and childless.  In the last will and
testament she executed in California, she designated her brother, Sergio C. Palaganas
(Sergio), as the executor of her will for she had left properties in the Philippines and in
the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another  brother of
Ruperta, filed with the Regional Trial Court (RTC) of Malolos, Bulacan, a petition for the
probate of Ruperta's will and for his appointment as special administrator of her estate.
[1]
  On October 15, 2003, however, petitioners Manuel Miguel Palaganas (Manuel) and
Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta, opposed the petition on
the ground that Ruperta's will should not be probated in the Philippines but in the U.S.
where she executed it.  Manuel and Benjamin added that, assuming Ruperta's will could
be probated in the Philippines, it is invalid nonetheless for having been executed under
duress and without the testator's full understanding of the consequences of such act. 
Ernesto, they claimed, is also not qualified to act as administrator of the estate.

Meantime, since Ruperta's foreign-based siblings, Gloria Villaluz and Sergio, were on
separate occasions in the Philippines for a short visit, respondent Ernesto filed a motion
with the RTC for leave to take their deposition, which it granted. On April, 13, 2004 the
RTC directed the parties to submit their memorandum on the issue of whether or not
Ruperta's U.S. will may be probated in and allowed by a court in the Philippines.

On June 17, 2004 the RTC issued an order: [2] (a) admitting to probate Ruperta's last will;
(b) appointing respondent Ernesto as special administrator at the request of Sergio, the
U.S.-based executor designated in the will; and (c) issuing the Letters of Special
Administration to Ernesto.

Aggrieved by the RTC's order, petitioner nephews Manuel and Benjamin appealed to
the Court of Appeals (CA),[3] arguing that an unprobated will executed by an American
citizen in the U.S. cannot be probated for the first time in the Philippines.

On July 29, 2005 the CA rendered a decision,[4] affirming the assailed order of the RTC,
[5]
 holding that the RTC properly allowed the probate of the will, subject to respondent
Ernesto's submission of the authenticated copies of the documents specified in the
order and his posting of required bond.  The CA pointed out that Section 2, Rule 76 of
the Rules of Court does not require prior probate and allowance of the will in the country
of its execution, before it can be probated in the Philippines.  The present case, said the
CA, is different from reprobate, which refers to a will already probated and allowed
abroad.  Reprobate is governed by different rules or procedures.  Unsatisfied with the
decision, Manuel and Benjamin came to this Court.
The Issue Presented

The key issue presented in this case is whether or not a will executed by a foreigner
abroad may be probated in the Philippines although it has not been previously probated
and allowed in the country where it was executed.
The Court's Ruling

Petitioners Manuel and Benjamin maintain that wills executed by foreigners abroad
must first be probated and allowed in the country of its execution before it can be
probated here.  This, they claim, ensures prior compliance with the legal formalities of
the country of its execution.  They insist that local courts can only allow probate of such
wills if the proponent proves that: (a) the testator has been admitted for probate in such
foreign country, (b) the will has been admitted to probate there under its laws, (c) the
probate court has jurisdiction over the proceedings, (d) the law on probate procedure in
that foreign country and proof of compliance with the same, and (e) the legal
requirements for the valid execution of a will.

But our laws do not prohibit the probate of wills executed by foreigners abroad although
the same have not as yet been probated and allowed in the countries of their execution.
A foreign will can be given legal effects in our jurisdiction.  Article 816 of the Civil Code
states that the will of an alien who is abroad produces effect in the Philippines if made
in accordance with the formalities prescribed by the law of the place where he resides,
or according to the formalities observed in his country. [6]

In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that
if the decedent is an inhabitant of a foreign country, the RTC of the province where he
has an estate may take cognizance of the settlement of such estate.  Sections 1 and 2
of Rule 76 further state that the executor, devisee, or legatee named in the will, or any
other person interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.

Our rules require merely that the petition for the allowance of a will must show, so far as
known to the petitioner: (a)the jurisdictional facts; (b) the names, ages, and residences
of the heirs, legatees, and devisees of the testator or decedent; (c) the probable value
and character of the property of the estate; (d) the name of the person for whom letters
are prayed; and (e) if the will has not been delivered to the court, the name of the
person having custody of it.  Jurisdictional facts refer to the fact of death of the
decedent, his residence at the time of his death in the province where the probate court
is sitting, or if he is an inhabitant of a foreign country, the estate he left in such province.
[7]
  The rules do not require proof that the foreign will has already been allowed and
probated in the country of its execution.

In insisting that Ruperta's will should have been first probated and allowed by the court
of California, petitioners Manuel and Benjamin obviously have in mind the procedure for
the reprobate of will before admitting it here.  But, reprobate or re-authentication of a
will already probated and allowed in a foreign country is different from that probate
where the will is presented for the first time before a competent court.  Reprobate is
specifically governed by Rule 77 of the Rules of Court.  Contrary to petitioners' stance,
since this latter rule applies only to reprobate of a will, it cannot be made to apply to the
present case. In reprobate, the local court acknowledges as binding the findings of the
foreign probate court provided its jurisdiction over the matter can be established.

Besides, petitioners' stand is fraught with impractically.  If the instituted heirs do not
have the means to go abroad for the probate of the will, it is as good as depriving them
outright of their inheritance, since our law requires that no will shall pass either real or
personal property unless the will has been proved and allowed by the proper court. [8]
Notably, the assailed RTC order of June 17, 2004 is nothing more than an initial ruling
that the court can take cognizance of the petition for probate of Ruperta's will and that,
in the meantime, it was designating Ernesto as special administrator of the estate.  The
parties have yet to present evidence of the due execution of the will, i.e. the testator's
state of mind at the time of the execution and compliance with the formalities required of
wills by the laws of California. This explains the trial court's directive for Ernesto to
submit the duly authenticated copy of Ruperta's will and the certified copies of the Laws
of Succession and Probate of Will of California.

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals

decision in CA-G.R. CV 83564 dated July 29, 2005.

SO ORDERED.

Carpio, (Chairperson), Nachura, Mendoza, and Sereno,* JJ., concur.

[ G.R. NO. 156021, September 23, 2005 ]

CYNTHIA C. ALABAN, FRANCIS COLLADO, JOSE P. COLLADO, JUDITH
PROVIDO, CLARITA PROVIDO, ALFREDO PROVIDO, MANUEL PROVIDO, JR.,
LORNA DINA E. PROVIDO, SEVERO ARENGA, JR., SERGIO ARENGA, EDUARDO
ARENGA, CAROL ARENGA, RUTH BABASA, NORMA HIJASTRO, DOLORES M.
FLORES, ANTONIO MARIN, JR., JOSE MARIN, SR., AND MATHILDE MARIN,
PETITIONERS, VS. COURT OF APPEALS AND FRANCISCO H. PROVIDO,
RESPONDENTS.

DECISION

TINGA, J.:

This is a petition for review of the Resolutions[1] of the Court of Appeals (CA) in CA-G.R.
SP No. 69221,[2] dismissing petitioners' petition for annulment of judgment.

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition,

docketed as SP Proc. No. 00-135, for the probate of the Last Will and Testament[3] of
the late Soledad Provido Elevencionado ("decedent"), who died on 26 October 2000 in
Janiuay, Iloilo.[4] Respondent alleged that he was the heir of the decedent and the
executor of her will.  On 30 May 2001, the Regional Trial Court (RTC), Branch 68, in
P.D. Monfort North, Dumangas, Iloilo, rendered its Decision,[5] allowing the probate of
the will of the decedent and directing the issuance of letters testamentary to respondent.
[6]

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion
for the reopening of the probate proceedings. [7] Likewise, they filed an opposition to the
allowance of the will of the decedent, as well as the issuance of letters testamentary to
respondent,[8] claiming that they are the intestate heirs of the decedent.  Petitioners
claimed that the RTC did not acquire jurisdiction over the petition due to non-payment of
the correct docket fees, defective publication, and lack of notice to the other heirs. 
Moreover, they alleged that the will could not have been probated because: (1) the
signature of the decedent was forged; (2) the will was not executed in accordance with
law, that is, the witnesses failed to sign below the attestation clause; (3) the decedent
lacked testamentary capacity to execute and publish a will; (4) the will was executed by
force and under duress and improper pressure; (5) the decedent had no intention to
make a will at the time of affixing of her signature; and (6) she did not know the
properties to be disposed of, having included in the will properties which no longer
belonged to her.  Petitioners prayed that the letters testamentary issued to respondent
be withdrawn and the estate of the decedent disposed of under intestate succession. [9]

On 11 January 2002, the RTC issued an Order[10] denying petitioners' motion for being
unmeritorious.  Resolving the issue of jurisdiction, the RTC held that petitioners were
deemed notified of the hearing by publication and that the deficiency in the payment of
docket fees is not a ground for the outright dismissal of the petition. It merely required
respondent to pay the deficiency.[11] Moreover, the RTC's Decision was already final and
executory even before petitioners' filing of the motion to reopen. [12]

Petitioners thereafter filed a petition[13] with an application for preliminary injunction with

the CA, seeking the annulment of the RTC's Decision dated 30 May 2001
and Order dated 11 January 2002.  They claimed that after the death of the decedent,
petitioners, together with respondent, held several conferences to discuss the matter of
dividing the estate of the decedent, with respondent agreeing to a one-sixth (1/6) portion
as his share.  Petitioners allegedly drafted a compromise agreement to implement the
division of the estate.  Despite receipt of the agreement, respondent refused to sign and
return the same.  Petitioners opined that respondent feigned interest in participating in
the compromise agreement so that they would not suspect his intention to secure the
probate of the will.[14] They claimed that they learnt of the probate proceedings only in
July of 2001, as a result of which they filed their motion to reopen the proceedings and
admit their opposition to the probate of the will only on 4 October 2001. They argued
that the RTC Decision should be annulled and set aside on the ground of extrinsic fraud
and lack of jurisdiction on the part of the RTC.[15]

In its Resolution[16] promulgated on 28 February 2002, the CA dismissed the petition.  It

found that there was no showing that petitioners failed to avail of or resort to the
ordinary remedies of new trial, appeal, petition for relief from judgment, or other
appropriate remedies through no fault of their own. [17] Moreover, the CA declared as
baseless petitioners' claim that the proceedings in the RTC was attended by extrinsic
fraud. Neither was there any showing that they availed of this ground in a motion for
new trial or petition for relief from judgment in the RTC, the CA added. [18] Petitioners
sought reconsideration of the Resolution, but the same was denied by the CA for lack of
merit.[19]

Petitioners now come to this Court, asserting that the CA committed grave abuse of
discretion amounting to lack of jurisdiction when it dismissed their petition for the
alleged failure to show that they have not availed of or resorted to the remedies of new
trial, appeal, petition for relief from judgment or other remedies through no fault of their
own, and held that petitioners were not denied their day in court during the proceedings
before the RTC.[20] In addition, they assert that this Court has yet to decide a case
involving Rule 47 of the Rules of Court and, therefore, the instant petition should be
given due course for the guidance of the bench and bar. [21]

For his part, respondent claims that petitioners were in a position to avail of the
remedies provided in Rules 37 and 38, as they in fact did when they filed a motion for
new trial.[22] Moreover, they could have resorted to a petition for relief from judgment
since they learned of the RTC's judgment only three and a half months after its
promulgation.[23] Respondent likewise maintains that no extrinsic fraud exists to warrant
the annulment of the RTC's Decision, since there was no showing that they were denied
their day in court.  Petitioners were not made parties to the probate proceedings
because the decedent did not institute them as her heirs. [24] Besides,
assuming arguendo that petitioners are heirs of the decedent, lack of notice to them is
not a fatal defect since personal notice upon the heirs is a matter of procedural
convenience and not a jurisdictional requisite. [25] Finally, respondent charges petitioners
of forum–shopping, since the latter have a pending suit involving the same issues as
those in  SP No. 00-135, that is  SP No. 1181[26] filed before Branch 23, RTC of General
Santos City and subsequently pending on appeal before the CA in CA-G.R. No.74924.
[27]

It appears that one of the petitioners herein, Dolores M. Flores ("Flores"), who is a niece
of the decedent, filed a petition for letters of administration with the RTC of General
Santos City, claiming that the decedent died intestate without any issue, survived by five
groups of collateral heirs. Flores, armed with a Special Power of Attorney from most of
the other petitioners, prayed for her appointment as administratrix of the estate of the
decedent.  The RTC dismissed the petition on the ground of lack of jurisdiction, stating
that the probate court in Janiuay, Iloilo has jurisdiction since the venue for a petition for
the settlement of the estate of a decedent is the place where the decedent died.  This is
also in accordance with the rule that the first court acquiring jurisdiction shall continue
hearing the case to the exclusion of other courts, the RTC added. [28] On 9 January 2002,
Flores filed a Notice of Appeal [29] and on 28 January 2002, the case was ordered
forwarded to the CA.[30]

Petitioners maintain that they were not made parties to the case in which the decision
sought to be annulled was rendered and, thus, they could not have availed of the
ordinary remedies of new trial, appeal, petition for relief from judgment and other
appropriate remedies, contrary to the ruling of the CA.  They aver that respondent's
offer of a false compromise and his failure to notify them of the probate of the will
constitute extrinsic fraud that necessitates the annulment of the RTC's judgment. [31]

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial
on the ground of fraud, accident, mistake, or excusable negligence.  The same Rule
permits the filing of a motion for reconsideration on the grounds  of excessive award of
damages, insufficiency of evidence to justify the decision or final order, or that the
decision or final order is contrary to law.[32] Both motions should be filed within the period
for taking an appeal, or fifteen (15) days from notice of the judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to
when a judgment or final order is entered, or any other proceeding is thereafter taken,
against a party in any court through fraud, accident, mistake, or excusable negligence. 
Said party may file a petition in the same court and in the same case to set aside the
judgment, order or proceeding.  It must be filed within sixty (60) days after the petitioner
learns of the judgment and within six (6) months after entry thereof. [33]

A motion for new trial or reconsideration and a petition for relief from judgment are
remedies available only to parties in the proceedings where the assailed judgment is
rendered.[34] In fact, it has been held that a person who was never a party to the case, or
even summoned to appear therein, cannot avail of a petition for relief from judgment. [35]

However, petitioners in this case are mistaken in asserting that they are not or have not
become parties to the probate proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any
other person interested in the estate may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed. [36] Notice of the time and
place for proving the will must be published for three (3) consecutive weeks, in a
newspaper of general circulation in the province, [37] as well as furnished to the
designated or other known heirs, legatees, and devisees of the testator. [38] Thus, it has
been held that a proceeding for the probate of a will is one in rem, such that with the
corresponding publication of the petition the court's jurisdiction extends to all persons
interested in said will or in the settlement of the estate of the decedent. [39]

Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right
sought to be established.  It is the publication of such notice that brings in the whole
world as a party in the case and vests the court with jurisdiction to hear and decide it.
[40]
 Thus, even though petitioners were not mentioned in the petition for probate, they
eventually became parties thereto as a consequence of the publication of the notice of
hearing.

As parties to the probate proceedings, petitioners could have validly availed of the
remedies of motion for new trial or reconsideration and petition for relief from judgment.
In fact, petitioners filed a motion to reopen, which is essentially a motion for new trial,
with petitioners praying for the reopening of the case and the setting of further
proceedings.  However, the motion was denied for having been filed out of time, long
after the Decision became final and executory.
Conceding that petitioners became aware of the Decision after it had become final, they
could have still filed a petition for relief from judgment after the denial of their motion to
reopen. Petitioners claim that they learned of the Decision only on 4 October 2001, or
almost four (4) months from the time the Decision had attained finality.  But they failed
to avail of the remedy.

For failure to make use without sufficient justification of the said remedies available to
them, petitioners could no longer resort to a petition for annulment of judgment;
otherwise, they would benefit from their own inaction or negligence. [41]

Even casting aside the procedural requisite, the petition for annulment of judgment must
still fail for failure to comply with the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where
the judgment sought to be annulled was rendered. [42] The purpose of such action is to
have the final and executory judgment set aside so that there will be a renewal of
litigation.  It is resorted to in cases where the ordinary remedies of new trial, appeal,
petition for relief from judgment, or other appropriate remedies are no longer available
through no fault of the petitioner,[43] and is based on only two grounds: extrinsic fraud,
and lack of jurisdiction or denial of due process. [44] A person need not be a party to the
judgment sought to be annulled, and it is only essential that he can prove his allegation
that the judgment was obtained by the use of fraud and collusion and he would be
adversely affected thereby.[45]

An action to annul a final judgment on the ground of fraud lies only if the fraud is
extrinsic or collateral in character.[46] Fraud is regarded as extrinsic where it prevents a
party from having a trial or from presenting his entire case to the court, or where it
operates upon matters pertaining not to the judgment itself but to the manner in which it
is procured. The overriding consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing litigant prevented a party from having his day in
court.[47]

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of

respondent's deliberate omission or concealment of their names, ages and residences
as the other heirs of the decedent in his petition for allowance of the will, they were not
notified of the proceedings, and thus they were denied their day in court.  In addition,
they claim that respondent's offer of a false compromise even before the filing of the
petition prevented them from appearing and opposing the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs,

legatees, and devisees of the testator.[48] A perusal of the will shows that respondent
was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of
the decedent, are neither compulsory nor testate heirs [49] who are entitled to be notified
of the probate proceedings under the Rules.  Respondent had no legal obligation to
mention petitioners in the petition for probate, or to personally notify them of the same.

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported

infirmity is cured by the publication of the notice.  After all, personal notice upon the
heirs is a matter of procedural convenience and not a jurisdictional requisite. [50]

The non-inclusion of petitioners' names in the petition and the alleged failure to
personally notify them of the proceedings do not constitute extrinsic fraud.  Petitioners
were not denied their day in court, as they were not prevented from participating in the
proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forum-shopping
consists of filing multiple suits in different courts, either simultaneously or successively,
involving the same parties, to ask the courts to rule on the same or related causes
and/or to grant the same or substantially same reliefs, [51] on the supposition that one or
the other court would make a favorable disposition. [52] Obviously, the parties in the
instant case, as well as in the appealed case before the CA, are the same.  Both cases
deal with the existence and validity of the alleged will of the decedent, with petitioners
anchoring their cause on the state of intestacy. In the probate proceedings, petitioners'
position has always been that the decedent left no will and if she did, the will does not
comply with the requisites of a valid will.  Indeed, that position is the bedrock of their
present petition.  Of course, respondent maintains the contrary stance.  On the other
hand, in the petition for letters of administration, petitioner Flores prayed for her
appointment as administratrix of the estate on the theory that the decedent died
intestate.  The petition was dismissed on the ground of lack of jurisdiction, and it is this
order of dismissal which is the subject of review in CA-G.R. No. 74924. Clearly,
therefore, there is forum-shopping.

Moreover, petitioners failed to inform the Court of the said pending case in their
certification against forum- shopping.  Neither have they done so at any time thereafter. 
The Court notes that even in the petition for annulment of judgment, petitioners failed to
inform the CA of the pendency of their appeal in CA-G.R. No. 74924, even though the
notice of appeal was filed way before the petition for annulment of judgment was
instituted.

WHEREFORE, the petition is DENIED.  Costs against petitioners.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Chico-Nazario, JJ., concur.

[ G.R. No. 189121, July 31, 2013 ]

AMELIA GARCIA-QUIAZON, JENNETH QUIAZON AND MARIA JENNIFER
QUIAZON, PETITIONERS, VS. MA. LOURDES BELEN, FOR AND IN BEHALF OF
MARIA LOURDES ELISE QUIAZON, RESPONDENT.
 DECISION

PEREZ, J.:

This is a Petition for Review on Certiorari filed pursuant to Rule 45 of the Revised Rules
of Court, primarily assailing the 28 November 2008 Decision rendered by the Ninth
Division of the Court of Appeals in CA-G.R. CV No. 88589, [1] the decretal portion of
which states:
WHEREFORE, premises considered, the appeal is hereby DENIED.  The assailed
Decision dated March 11, 2005, and the Order dated March 24, 2006 of the Regional
Trial Court, Branch 275, Las Piñas City are AFFIRMED in toto.[2]

The Facts

This case started as a Petition for Letters of Administration of the Estate of Eliseo
Quiazon (Eliseo), filed by herein respondents who are Eliseo’s common-law wife and
daughter.  The petition was opposed by herein petitioners Amelia Garcia-Quaizon
(Amelia) to whom Eliseo was married.  Amelia was joined by her children, Jenneth
Quiazon (Jenneth) and Maria Jennifer Quiazon (Jennifer).

Eliseo died intestate on 12 December 1992.

On 12 September 1994, Maria Lourdes Elise Quiazon (Elise), represented by her

mother, Ma. Lourdes Belen (Lourdes), filed a Petition for Letters of Administration
before the Regional Trial Court (RTC) of Las Piñas City. [3]  In her Petition docketed as
SP Proc. No. M-3957, Elise claims that she is the natural child of Eliseo having been
conceived and born at the time when her parents were both capacitated to marry each
other.  Insisting on the legal capacity of Eliseo and Lourdes to marry, Elise impugned
the validity of Eliseo’s marriage to Amelia by claiming that it was bigamous for having
been contracted during the subsistence of the latter’s marriage with one Filipito Sandico
(Filipito).  To prove her filiation to the decedent, Elise, among others, attached to the
Petition for Letters of Administration her Certificate of Live Birth [4] signed by Eliseo as
her father.  In the same petition, it was alleged that Eliseo left real properties worth
P2,040,000.00 and personal properties worth P2,100,000.00.  In order to preserve the
estate of Eliseo and to prevent the dissipation of its value, Elise sought her appointment
as administratrix of her late father’s estate.

Claiming that the venue of the petition was improperly laid, Amelia, together with her
children, Jenneth and Jennifer, opposed the issuance of the letters of administration by
filing an Opposition/Motion to Dismiss. [5]  The petitioners asserted that as shown by his
Death Certificate,[6] Eliseo was a resident of Capas, Tarlac and not of Las Piñas City, at
the time of his death.  Pursuant to Section 1, Rule 73 of the Revised Rules of Court,
[7]
 the petition for settlement of decedent’s estate should have been filed in Capas,
Tarlac and not in Las Piñas City.  In addition to their claim of improper venue, the
petitioners averred that there are no factual and legal bases for Elise to be
appointed administratix of Eliseo’s estate.

In a Decision[8] dated 11 March 2005, the RTC directed the issuance of Letters of

Administration to Elise upon posting the necessary bond.  The lower court ruled that the
venue of the petition was properly laid in Las Piñas City, thereby discrediting the
position taken by the petitioners that Eliseo’s last residence was in Capas, Tarlac, as
hearsay.  The dispositive of the RTC decision reads:
Having attained legal age at this time and there being no showing of any disqualification
or incompetence to serve as administrator, let letters of administration over the estate of
the decedent Eliseo Quiazon, therefore, be issued to petitioner, Ma. Lourdes Elise
Quiazon, after the approval by this Court of a bond in the amount of P100,000.00 to be
posted by her.[9]

On appeal, the decision of the trial court was affirmed in toto in the 28 November 2008
Decision[10] rendered by the Court of Appeals in CA-G.R. CV No. 88589.  In validating
the findings of the RTC, the Court of Appeals held that Elise was able to prove that
Eliseo and Lourdes lived together as husband and wife by establishing a common
residence at No. 26 Everlasting Road, Phase 5, Pilar Village, Las Piñas City, from 1975
up to the time of Eliseo’s death in 1992.  For purposes of fixing the venue of the
settlement of Eliseo’s estate, the Court of Appeals upheld the conclusion reached by the
RTC that the decedent was a resident of Las Piñas City.  The petitioners’ Motion for
Reconsideration was denied by the Court of Appeals in its Resolution [11] dated 7 August
2009.
The Issues

The petitioners now urge Us to reverse the assailed Court of Appeals Decision and
Resolution on the following grounds:
I. THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THAT
ELISEO QUIAZON WAS A RESIDENT OF LAS PIÑAS AND
THEREFORE[,] THE PETITION FOR LETTERS OF ADMINISTRATION
WAS PROPERLY FILED WITH THE [RTC] OF LAS PIÑAS[;]
II. THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT
AMELIA GARCIA-QUIAZON WAS NOT LEGALLY MARRIED TO ELISEO
QUIAZON DUE TO PRE-EXISTING MARRIAGE[;] [AND]
III. THE COURT OF APPEALS OVERLOOKED THE FACT THAT ELISE
QUIAZON HAS NOT SHOWN ANY INTEREST IN THE PETITION FOR
LETTERS OF ADMINISTRATION[.][12]

The Court’s Ruling

We find the petition bereft of merit.

Under Section 1, Rule 73 of the Rules of Court, the petition for letters of administration
of the estate of a decedent should be filed in the RTC of the province where the
decedent resides at the time of his death:
Sec. 1.  Where estate of deceased persons settled. – If the decedent is an inhabitant
of the Philippines at the time of his death, whether a citizen or an alien, his will shall be
proved, or letters of administration granted, and his estate settled, in the Court of First
Instance [now Regional Trial Court] in the province in which he resides at the time
of his death, and if he is an inhabitant of a foreign country, the Court of First Instance
[now Regional Trial Court] of any province in which he had estate.  The court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to
the exclusion of all other courts.  The jurisdiction assumed by a court, so far as it
depends on the place of residence of the decedent, or of the location of his estate, shall
not be contested in a suit or proceeding, except in an appeal from that court, in the
original case, or when the want of jurisdiction appears on the record.  (Emphasis
supplied).

The term “resides” connotes ex vi termini “actual residence” as distinguished from “legal

residence or domicile.”  This term “resides,” like the terms “residing” and “residence,” is
elastic and should be interpreted in the light of the object or purpose of the statute or
rule in which it is employed.  In the application of venue statutes and rules – Section 1,
Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile
is the significant factor.[13]  Even where the statute uses the word “domicile” still it is
construed as meaning residence and not domicile in the technical sense. [14]  Some
cases make a distinction between the terms “residence” and “domicile” but as
generally used in statutes fixing venue, the terms are synonymous, and convey
the same meaning as the term “inhabitant.” [15]  In other words, “resides” should
be viewed or understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of abode. [16]  It signifies
physical presence in a place and actual stay thereat. [17]  Venue for ordinary civil actions
and that for special proceedings have one and the same meaning. [18]  As thus defined,
“residence,” in the context of venue provisions, means nothing more than a
person’s actual residence or place of abode, provided he resides therein with
continuity and consistency.[19]

Viewed in light of the foregoing principles, the Court of Appeals cannot be faulted for
affirming the ruling of the RTC that the venue for the settlement of the estate of Eliseo
was properly laid in Las Piñas City.  It is evident from the records that during his lifetime,
Eliseo resided at No. 26 Everlasting Road, Phase 5, Pilar Village, Las Piñas City.  For
this reason, the venue for the settlement of his estate may be laid in the said city.

In opposing the issuance of letters of administration, the petitioners harp on the entry in
Eliseo’s Death Certificate that he is a resident of Capas, Tarlac where they insist his
estate should be settled.  While the recitals in death certificates can be considered
proofs of a decedent’s residence at the time of his death, the contents thereof, however,
is not binding on the courts.  Both the RTC and the Court of Appeals found that Eliseo
had been living with Lourdes, deporting themselves as husband and wife, from 1972 up
to the time of his death in 1995.  This finding is consistent with the fact that in 1985,
Eliseo filed an action for judicial partition of properties against Amelia before the RTC of
Quezon City, Branch 106, on the ground that their marriage is void for being bigamous.
[20]
  That Eliseo went to the extent of taking his marital feud with Amelia before the courts
of law renders untenable petitioners’ position that Eliseo spent the final days of his life in
Tarlac with Amelia and her children.  It disproves rather than supports petitioners’
submission that the lower courts’ findings arose from an erroneous appreciation of the
evidence on record.  Factual findings of the trial court, when affirmed by the appellate
court, must be held to be conclusive and binding upon this Court. [21]

Likewise unmeritorious is petitioners’ contention that the Court of Appeals erred in

declaring Amelia’s marriage to Eliseo as void ab initio.  In a void marriage, it was though
no marriage has taken place, thus, it cannot be the source of rights.  Any interested
party may attack the marriage directly or collaterally.  A void marriage can be
questioned even beyond the lifetime of the parties to the marriage. [22]  It must be pointed
out that at the time of the celebration of the marriage of Eliseo and Amelia, the law in
effect was the Civil Code, and not the Family Code, making the ruling in Niñal v.
Bayadog[23] applicable four-square to the case at hand.  In Niñal, the Court, in no
uncertain terms, allowed therein petitioners to file a petition for the declaration of nullity
of their father’s marriage to therein respondent after the death of their father, by
contradistinguishing void from voidable marriages, to wit:
[C]onsequently, void marriages can be questioned even after the death of either party
but voidable marriages can be assailed only during the lifetime of the parties and not
after death of either, in which case the parties and their offspring will be left as if the
marriage had been perfectly valid. That is why the action or defense for nullity is
imprescriptible, unlike voidable marriages where the action prescribes. Only the parties
to a voidable marriage can assail it but any proper interested party may attack a void
marriage.[24]

It was emphasized in Niñal that in a void marriage, no marriage has taken place

and it cannot be the source of rights, such that any interested party may attack
the marriage directly or collaterally without prescription, which may be filed even
beyond the lifetime of the parties to the marriage.[25]

Relevant to the foregoing, there is no doubt that Elise, whose successional rights would
be prejudiced by her father’s marriage to Amelia, may impugn the existence of such
marriage even after the death of her father.  The said marriage may be questioned
directly by filing an action attacking the validity thereof, or collaterally by raising it as an
issue in a proceeding for the settlement of the estate of the deceased spouse, such as
in the case at bar.  Ineluctably, Elise, as a compulsory heir,[26] has a cause of action for
the declaration of the absolute nullity of the void marriage of Eliseo and Amelia, and the
death of either party to the said marriage does not extinguish such cause of action.

Having established the right of Elise to impugn Eliseo’s marriage to Amelia, we now
proceed to determine whether or not the decedent’s marriage to Amelia is void for being
bigamous.

Contrary to the position taken by the petitioners, the existence of a previous marriage
between Amelia and Filipito was sufficiently established by no less than the Certificate
of Marriage issued by the Diocese of Tarlac and signed by the officiating priest of the
Parish of San Nicolas de Tolentino in Capas, Tarlac.  The said marriage certificate is a
competent evidence of marriage and the certification from the National Archive that no
information relative to the said marriage exists does not diminish the probative value of
the entries therein.  We take judicial notice of the fact that the first marriage was
celebrated more than 50 years ago, thus, the possibility that a record of marriage can
no longer be found in the National Archive, given the interval of time, is not completely
remote.  Consequently, in the absence of any showing that such marriage had been
dissolved at the time Amelia and Eliseo’s marriage was solemnized, the inescapable
conclusion is that the latter marriage is bigamous and, therefore, void ab initio.[27]

Neither are we inclined to lend credence to the petitioners’ contention that Elise has not
shown any interest in the Petition for Letters of Administration.

Section 6, Rule 78 of the Revised Rules of Court lays down the preferred persons who
are entitled to the issuance of letters of administration, thus:
Sec. 6.  When and to whom letters of administration granted. — If no executor is
named in the will, or the executor or executors are incompetent, refuse the trust, or fail
to give bond, or a person dies intestate, administration shall be granted:

(a)  To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;

(b)  If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for thirty (30) days after the death of the person to apply for administration
or to request that administration be granted to some other person, it may be granted to
one or more of the principal creditors, if competent and willing to serve;

(c)  If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.

Upon the other hand, Section 2 of Rule 79 provides that a petition for Letters of
Administration must be filed by an interested person, thus:
Sec. 2. Contents of petition for letters of administration. — A petition for letters of
administration must be filed by an interested person and must show, so far as known to
the petitioner:

(a)    The jurisdictional facts;

(b)    The names, ages, and residences of the heirs, and the names and residences of
the creditors, of the decedent;

(c)    The probable value and character of the property of the estate;
(d)    The name of the person for whom letters of administration are prayed.

But no defect in the petition shall render void the issuance of letters of administration.

An “interested party,” in estate proceedings, is one who would be benefited in the

estate, such as an heir, or one who has a claim against the estate, such as a creditor. 
Also, in estate proceedings, the phrase “next of kin” refers to those whose relationship
with the decedent is such that they are entitled to share in the estate as distributees. [28]

In the instant case, Elise, as a compulsory heir who stands to be benefited by the
distribution of Eliseo’s estate, is deemed to be an interested party.  With the
overwhelming evidence on record produced by Elise to prove her filiation to Eliseo, the
petitioners’ pounding on her lack of interest in the administration of the decedent’s
estate, is just a desperate attempt to sway this Court to reverse the findings of the Court
of Appeals.  Certainly, the right of Elise to be appointed administratix of the estate of
Eliseo is on good grounds.  It is founded on her right as a compulsory heir, who, under
the law, is entitled to her legitime after the debts of the estate are satisfied. [29]  Having a
vested right in the distribution of Eliseo’s estate as one of his natural children, Elise can
rightfully be considered as an interested party within the purview of the law.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. 

Accordingly, the Court of Appeals assailed 28 November 2008 Decision and 7 August
2009 Resolution, are AFFIRMED in toto.

SO ORDERED.

Carpio, (Chairperson), Brion, Del Castillo, and Perlas-Bernabe, JJ., concur.

[ G.R. No. 101512, August 07, 1992 ]

NILDA GABRIEL, EVA GABRIEL, EDGAR GABRIEL, GEORGE GABRIEL,
ROSEMARIE GABRIEL, MARIBEL GABRIEL, CYNTHIA GABRIEL, RENATO
GABRIEL, GERARDO GABRIEL, JOJI ZORAYDA GABRIEL, DANIEL GABRIEL
AND FELICITAS JOSE-GABRIEL, PETITIONERS, VS. HON. COURT OF APPEALS,
HON. MANUEL E. YUZON, JUDGE, REGIONAL TRIAL COURT OF MANILA,
BRANCH XI, AND ROBERTO DINDO GABRIEL, RESPONDENTS.

DECISION

REGALADO, J.:

In its decision in CA-G.R. SP. No. 19797 promulgated on August 23, 1991, [1] respondent
Court of Appeals dismissed the petition for certiorari filed by herein petitioners assailing
the orders of the lower court in Special Proceeding No. 88-44589 thereof which
effectively sustained the appointment of private respondent Roberto Dindo Gabriel as
administrator of the estate of the late Domingo Gabriel.
Petitioners' present appeal by certiorari would have this Court set aside that decision of
respondent court, hence the need to examine the chronology of antecedent facts, as
found by respondent court and detailed hereunder, pertinent to and which culminated in
their recourse now before us.
On May 12, 1988, or nine (9) months after Domingo Gabriel died on August 6, 1987,
private respondent filed with the Regional Trial Court of Manila, Branch XI, a petition for
letters of administration alleging, among others, that he is the son of the decedent, a
college graduate, engaged in business, and is fully capable of administering the estate
of the late Domingo Gabriel. Private respondent mentioned eight (8) of herein
petitioners as the other next of kin and heirs of the decedent. [2]
On May 17, 1988, the court below issued an order [3] setting the hearing of the petition
on June 29, 1988, on which date all persons interested may show cause, if any, why the
petition should not be granted. The court further directed the publication of the order in
"Mabuhay," a newspaper of general circulation, once a week for three (3) consecutive
weeks. No opposition having been filed despite such publication of the notice of
hearing, private respondent was allowed to present his evidence ex parte. Thereafter,
the probate court issued an order, dated July 8, 1988, appointing private respondent as
administrator of the intestate estate of the late Domingo Gabriel on a bond of
P30,000.00.[4]
Subsequently, a notice to creditors for the filing of claims against the estate of the
decedent was published in the "Metropolitan News." As a consequence, Aida Valencia,
mother of private respondent, filed a "Motion to File Claim of (sic) the Intestate Estate of
Domingo P. Gabriel" alleging that the decision in a civil case between her and the
deceased remained unsatisfied and that she thereby had an interest in said estate.[5]
On December 12, 1988, private respondent filed for approval by the probate court an
"Inventory and Appraisal" placing the value of the properties left by the decedent at
P18,960,000.00, which incident was set for hearing on January 16, 1989. [6]
On February 2, 1989, petitioners Nilda, Eva, Boy, George, Rosemarie, and Maribel, all
surnamed Gabriel, filed their "Opposition and Motion" praying for the recall of the letters
of administration issued to private respondent and the issuance of such letters instead
to petitioner Nilda Gabriel, as the legitimate daughter of the deceased, or any of the
other oppositors who are the herein petitioners.[7] After some exchanges and on order of
the court, petitioners filed an "Opposition to the Petition and Motion," dated May 20,
1989, alleging that (1) they were not duly informed by personal notice of the petition for
administration; (2) petitioner Nilda Gabriel, as the legitimate daughter, should be
preferred over private respondent; (3) private respondent has a conflicting and/or
adverse interest against the estate because he might prefer the claims of his mother;
and (4) most of the properties of the decedent have already been relinquished by way of
transfer of ownership to petitioners and should not be included in the value of the estate
sought to be administered by private respondent. [8]
On September 21, 1989, the probate court issued an order denying the opposition of
petitioners on the ground that they had not shown any circumstance sufficient to
overturn the order of July 8, 1988, in that (1) no evidence was submitted by oppositor
Nilda Gabriel to prove that she is a legitimate daughter of the deceased; and (2) there is
no proof to show that the person who was appointed administrator is unworthy,
incapacitated or unsuitable to perform the trust as to make his appointment inadvisable
under these circumstances.[9] The motion for reconsideration filed by petitioners was
likewise denied in an order dated December 22, 1989. [10]
From said orders, herein petitioners filed a special civil action for certiorari with the
Court of Appeals, on the following grounds:
1.      The orders of September 21, 1989 and December 22, 1989 are null and void,
being contrary to the facts, law and jurisprudence on the matter;
2.      Respondent judge in rendering the aforesaid orders gravely acted with abuse of
discretion amounting to lack and/or excess of jurisdiction, hence said orders are null
and void ab initio; and
3.      Private respondent is morally incompetent and unsuitable to perform the duties of
an administrator as he would give prior preference to the claims of his mother against
the estate itself.[11]
As stated at the outset, the Court of Appeals rendered judgment dismissing that petition
for certiorari on the ground that the appointment of an administrator is left entirely to the
sound discretion of the trial court which may not be interfered with unless abused; that
the fact that there was no personal notice served on petitioners is not a denial of due
process as such service is not a jurisdictional requisite and petitioners were heard on
their opposition; and that the alleged violation of the order of preference, if any, is an
error of fact or law which is a mistake of judgment, correctible by appeal and not by the
special civil action of certiorari.[12]
In the petition for review on certiorari at bar, petitioners primarily aver that under Section
6, Rule 78 of the Rules of Court, it is the surviving spouse who is first in the order of
preference for the appointment of an administrator. Petitioner Felicitas Jose-Gabriel is
the widow and legal surviving spouse of the deceased Domingo Gabriel and should,
therefore, be preferred over private respondent who is one of the illegitimate children of
the decedent by claimant Aida Valencia. Secondly, they claim that assuming that the
widow is incompetent, the next of kin must be appointed. As between a legitimate and
an illegitimate child, the former is preferred, hence petitioner Nilda Gabriel, as the
legitimate daughter, must be preferred over private respondent who is an illegitimate
son. Thirdly, it is contended that the non-observance or violation per se of the order of
preference already constitutes a grave abuse of discretion amounting to lack of
jurisdiction.
On the other hand, private respondent contends that the court did not commit a grave
abuse of discretion in not following the order of preference because the same is not
absolute and the choice of who to appoint rests in the sound discretion of the court. He
calls attention to the fact that petitioners Nilda Gabriel and Felicitas Jose-Gabriel never
applied for appointment despite the lapse of more than nine (9) months from the death
of Domingo Gabriel, hence it was not possible for the probate court to have considered
them for appointment. Besides, it is not denied that several properties of the deceased
have already been relinquished to herein petitioners, hence they would have no interest
in applying for letters of administration. Lastly, private respondent submits that it has not
been shown that he is incompetent nor is he disqualified from being appointed or
serving as administrator.
Section 6, Rule 78 of the Rules of Court provides:
"SEC. 6. When and to whom letters of administration granted. -- If no executor is named
in the will, or the executor or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be granted:
(a)   To the surviving husband or wife, as the case may be; or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;
(b)   If such husband or wife, as the case may be, or the next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin
neglects for thirty (30) days after the death of the person to apply for administration or to
request that administration be granted to some other person, it may be granted to one
or more of the principal creditors, if competent and willing to serve;
(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select." (Emphases ours.)
Evidently, the foregoing provision of the Rules prescribes the order of preference in the
issuance of letters of administration, categorically seeks out the surviving spouse, the
next of kin and the creditors, and requires that sequence to be observed in appointing
an administrator. It would be a grave abuse of discretion for the probate court to
imperiously set aside and insouciantly ignore that directive without any valid and
sufficient reason therefor.
In the appointment of the administrator of the estate of a deceased person, the principal
consideration reckoned with is the interest in said estate of the one to be appointed as
administrator. This is the same consideration which Section 6 of Rule 78 takes into
account in establishing the order of preference in the appointment of administrators for
the estate. The underlying assumption behind this rule is that those who will reap the
benefit of a wise, speedy and economical administration of the estate, or, on the other
hand, suffer the consequences of waste, improvidence or mismanagement, have the
highest interest, and most influential motive to administer the estate correctly. [13]
This is likewise the same consideration which the law takes into account in establishing
the preference of the widow to administer the estate of her husband upon the latter's
death, because she is supposed to have an interest therein as a partner in the conjugal
partnership.[14] Under the law, the widow would have the right of succession over a
portion of the exclusive property of the decedent, aside from her share in the conjugal
partnership. For such reason, she would have as much, if not more interest in
administering the entire estate correctly than any other next of kin. [15] On this ground
alone, petitioner Felicitas Jose-Gabriel, the widow of the deceased Domingo Gabriel,
has every right and is very much entitled to the administration of the estate of her
husband since one who has greater interest in the estate is preferred to another who
has less.[16]
Private respondent, however, argues that Felicitas Jose-Gabriel may no longer be
appointed administratrix by reason of her failure to apply for letters of administration
within thirty (30) days from the death of her husband, as required under the rules.
It is true that Section 6(b) of Rule 78 provides that the preference given to the surviving
spouse or next of kin may be disregarded by the court where said persons neglect to
apply for letters of administration for thirty (30) days after the decedent's death.
However, it is our considered opinion that such failure is not sufficient to exclude the
widow from the administration of the estate of her husband. There must be a very
strong case to justify the exclusion of the widow from the administration. [17]
In the case at bar, there is no compelling reason sufficient to disqualify Felicitas Jose-
Gabriel from appointment as administratrix of the decedent's estate. Moreover, just as
the order of preference is not absolute and may be disregarded for valid
cause[18] despite the mandatory tenor in the opening sentence of Rule 78 for its
observance, so may the 30-day period be likewise waived under the permissive tone in
paragraph (b) of said rule which merely provides that said letters, as an alternative,
"may be granted to one or more of the principal creditors."
On the other hand, we feel that we should not nullify the appointment of private
respondent as administrator. The determination of a person's suitability for the office of
judicial administrator rests, to a great extent, in the sound judgment of the court
exercising the power of appointment and said judgment is not to be interfered with on
appeal, unless the said court is clearly in error.[19] Administrators have such a right and
corresponding interest in the execution of their trust as would entitle them to protection
from removal without just cause. Thus, Section 2 of Rule 82 provides the legal and
specific causes authorizing the probate court to remove an administrator.
While it is conceded that the court is invested with ample discretion in the removal of an
administrator, it must, however, have some fact legally before it in order to justify such
removal. There must be evidence of an act or omission on the part of the administrator
not conformable to or in disregard of the rules or the orders of the court which it deems
sufficient or substantial to warrant the removal of the administrator. [20] In the instant
case, a mere importunity by some of the heirs of the deceased, there being no factual
and substantial bases therefor, is not adequate ratiocination for the removal of private
respondent. Suffice it to state that the removal of an administrator does not lie on the
whims, caprices and dictates of the heirs or beneficiaries of the estate. In addition, the
court may also exercise its discretion in appointing an administrator where those who
are entitled to letters fail to apply therefor within a given time. [21]
On the equiponderance of the foregoing legal positions, we see no reason why, for the
benefit of the estate and those interested therein, more than one administrator may not
be appointed since that is both legally permissible and sanctioned in practice. [22] Section
6(a) of Rule 78 specifically states that letters of administration may be issued to both the
surviving spouse and the next of kin.[23] In fact, Section 2 of Rule 82 contemplates a
contingency which may arise when there is only one administrator but which may easily
be remediable where there is co-administration, to wit: "When an executor or adminis-
trator dies, resigns, or is removed the remaining executor or administrator may
administer the trust alone, x x x." Also, co-administration, herein will constitute a
recognition of both the extent of the interest of the widow in the estate and the
creditable services rendered to and which may further be expected from private
respondent for the same estate.
Under both Philippine and American jurisprudence, the appointment of co-
administrators has been upheld for various reasons, viz: (1) to have the benefit of their
judgment and perhaps at all times to have different interests represented; [24] (2) where
justice and equity demand that opposing parties or factions be represented in the
management of the estate of the deceased;[25] (3) where the estate is large or, from any
cause, an intricate and perplexing one to settle; [26] (4) to have all interested persons
satisfied and the representatives to work in harmony for the best interests of the estate;
[27]
 and (5) when a person entitled to the administration of an estate desires to have
another competent person associated with him in the office. [28]
Under the circumstances obtaining herein, we deem it just, equitable and advisable that
there be a co-administration of the estate of the deceased by petitioner Felicitas Jose-
Gabriel and private respondent Roberto Dindo Gabriel. As earlier stated, the purpose of
having co-administrators is to have the benefit of their judgment and perhaps at all
times to have different interests represented, especially considering that in this
proceeding they will respectively represent the legitimate and illegitimate groups of heirs
to the estate. Thereby, it may reasonably be expected that all interested persons will be
satisfied, with the representatives working in harmony under the direction and
supervision of the probate court.
WHEREFORE, the judgment of respondent Court of Appeals is MODIFIED by
AFFIRMING the validity of the appointment of respondent Roberto Dindo Gabriel as
judicial administrator and ORDERING the appointment of petitioner Felicitas Jose?
Gabriel as co-administratrix in Special Proceeding No. 88?4458 of Branch XI, Regional
Trial Court of Manila.
SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, and Nocon, JJ., concur.

THIRD DIVISION
[ G.R. Nos. 130371 & 130855, August 04, 2009 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. FERDINAND R. MARCOS II
AND IMELDA R. MARCOS, RESPONDENTS.

DECISION

PERALTA, J.:

Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of
Court, seeking to set aside the March 13, 1997 Decision [2] and August 27, 1997
Resolution[3] of the Court of Appeals (CA) in CA-G.R. SP No. 43450.

The facts of the case are as follows:

On January 11, 1996, the Regional Trial Court (RTC) of Pasig City Branch 156, acting
as a probate court, in Special Proceeding No. 10279, issued an Order [4] granting letters
testamentary in solidum to respondents Ferdinand R. Marcos II and Imelda Trinidad
Romualdez-Marcos as executors of the last will and testament of the late Ferdinand E.
Marcos.

The dispositive portion of the January 11, 1996 Order reads:

WHEREFORE, finding the Last Will and Testament of Ferdinand Edralin Marcos to
have been duly executed in accordance with law, the same is hereby ALLOWED AND
ADMITTED TO PROBATE.

Upon the filing of a bond in the amount of P50,000.00, let letters testamentary be
issued in solidum to Imelda Trinidad Romualdez-Marcos AND Ferdinand
Romualdez Marcos II, named executors therein.

Pending the filing of said bond and their oath, Commissioner Liwayway Vinzons-Chato
of the Bureau of Internal Revenue is hereby authorized to continue her functions as
Special Administrator of the Estate of Ferdinand Edralin Marcos.

Let NOTICE be given to all known heirs and creditors of the decedent, and to any other
persons having an interest in the estate for them to lay their claim against the Estate or
forever hold their peace.

SO ORDERED.[5]

On January 15, 1996, the petitioner Republic of the Philippines filed a Motion for Partial
Reconsideration[6] in so far as the January 11, 1996 RTC Order granted letters
testamentary to respondents. On the other hand, respondent Imelda Marcos filed her
own motion for reconsideration on the ground that the will is lost and that petitioner has
not proven its existence and validity.

On February 5, 1996, respondent Ferdinand Marcos II filed a Compliance stating that

he already filed a bond in the amount of P50,000.00 as directed by the January 11,
1996 RTC Order and that he took his oath as named executor of the will on January 30,
1996.

On March 13, 1996, the RTC issued Letters of Administration [7] to BIR Commissioner
Liwayway Vinzons-Chato in accordance with an earlier Order dated September 9, 1994,
appointing her as Special Administratrix of the Marcos Estate.

On April 1, 1996, respondent Ferdinand Marcos II filed a Motion to Revoke the Letters
of Administration issued by the RTC to BIR Commissioner Vinzons-Chato.

On April 26, 1996, the RTC issued an Order[8] denying the motion for partial
reconsideration filed by petitioner as well as the motion for reconsideration filed by
respondent Imelda Marcos, the penultimate portion of which reads:
Under the Rules, a decedent's testamentary privilege must be accorded utmost respect.
Guided by this legal precept, therefore, in resolving the two (2) motions at hand, the
Court is constrained to DENY both.

Examining the arguments poised by the movants, the Court observed that these are but
a mere rehash of issues already raised and passed upon by the Court.
One has to review the previous orders issued by the Court in this case, e.g., the orders
dated September 9, 1994, November 25, 1994, as well as October 3, 1995, to see that
even as far back then, the Court has considered the matter of competency of the
oppositors and of Commissioner Liwayway Vinzons-Chato as having been settled.

It cannot be overstressed that the assailed January 11, 1996 Orders of the Court was
arrived at only after extensive consideration of every legal facet available on the
question of validity of the Will.

WHEREFORE, for lack of merit, the motion for reconsideration filed separately by
petitioner Republic and oppositor Imelda R. Marcos are both DENIED.

SO ORDERED.[9]

On June 6, 1996, petitioner filed with this Court a Petition for Review
on Certiorari, under Ruled 45 of the Rules of Court, questioning the aforementioned
RTC Orders granting letters testamentary to respondents.

On February 5, 1997, the First Division of this Court issued a Resolution referring the
petition to the CA, to wit:
xxxx

The special civil action for certiorari as well as all the other pleadings filed herein
are REFERRED to the Court of Appeals for consideration and adjudication on the
merits or any other action as it may deem appropriate, the latter having jurisdiction
concurrent with this Court over the Case, and this Court having been cited to no special
and important reason for it to take cognizance of said case in the first instance.
[10]
 (Emphasis and Underscoring Supplied)

On March 13, 1997, the CA issued a Decision,[11] dismissing the referred petition for
having taken the wrong mode of appeal, the pertinent portions of which reads:
Consequently, for having taken the wrong mode of appeal, the present petition should
be dismissed in accordance with the same Supreme Court Circular 2-90 which
expressly provides that:
4. Erroneous Appeals - An appeal taken to either the Supreme Court or the Court
of Appeals by the wrong or inappropriate mode shall be dismissed.

IN VIEW OF THE FOREGOING, the instant petition for review is hereby DISMISSED.

SO ORDERED.[12]

Petitioner filed a Motion for Reconsideration, [13] which was, however denied by the CA in
a Resolution[14] dated August 27, 1997.

Hence, herein petition, with petitioner raising the following assignment of errors, to wit:
I.
THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING THE PETITION ON
TECHNICAL GROUNDS DESPITE THE SUPREME COURT RESOLUTION
SPECIFICALLY REFERRING SAID PETITION FOR A DECISION ON THE MERITS.
II.

THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT

RESPONDENTS IMELDA R. MARCOS AND FERDINAND R. MARCOS II SHOULD BE
DISQUALIFIED TO ACT AND SERVE AS EXECUTORS.
III.

THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT SAID

PRIVATE RESPONDENTS HAVE DENIED AND DISCLAIMED THE VERY
EXISTENCE AND VALIDITY OF THE MARCOS WILL.
IV.

THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT ITS

ORDER OF JANUARY 11, 1996, WHICH ADMITTED THE MARCOS WILL TO
PROBATE AND WHICH DIRECTED THE ISSUANCE OF LETTERS TESTAMENTARY
IN SOLIDUM TO PRIVATE RESPONDENTS AS EXECUTORS OF SAID MARCOS
WILL, WAS BASED ON THE EVIDENCE OF THE REPUBLIC ALONE.
V.

THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT BOTH

PRIVATE RESPONDENTS HAVE OBSTRUCTED THE TRANSFER TO THE
PHILIPPINES OF THE MARCOS ASSETS DEPOSITED IN THE SWISS BANKS. [15]

In the meantime, on October 9, 2002, the RTC, acting on the pending unresolved
motions before it, issued an Order[16] which reads:
WHEREFORE, the Court hereby appoints as joint special administrators of the estate
of the late Ferdinand E. Marcos, the nominee of the Republic of the Philippines (the
Undersecretary of the Department of Justice whom the Secretary of Justice will
designate for this purpose) and Mrs. Imelda Romualdez Marcos and Mr. Ferdinand R.
Marcos II, to serve as such until an executor is finally appointed.

SO ORDERED.

The petition is without merit.

When the assailed Orders granting letters testamentary in solidum to respondents were
issued by the RTC, petitioner sought to question them by filing a petition for review
on certiorari under Rule 45 of the Rules of Court.

Supreme Court Circular No. 2-90,[17] which was then in effect, reads:

2. Appeals from Regional Trial Courts to the Supreme Court. - Except in criminal cases
where the penalty imposed is life imprisonment to reclusion perpetua, judgments of
regional trial courts may be appealed to the Supreme Court only by petition for
review on certiorari in accordance with Rule 45 of the Rules of Court in relation to
Section 17 of the Judiciary Act of 1948, as amended, this being the clear intendment
of the provision of the Interim Rules that "(a)ppeals to the Supreme Court shall be taken
by petition for certiorari which shall be governed by Rule 45 of the Rules of Court.
(Emphasis and Underscoring Supplied)

The pertinent portions of Section 17[18] of the Judiciary Act of 1948 read:
The Supreme Court shall further have exclusive jurisdiction to review, revise, reverse,
modify or affirm on certiorari as the law or rules of court may provide, final judgments
and decrees of inferior courts as herein provided, in -

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or
executive order or regulation is in question;

(2) All cases involving the legality of any tax, impost, assessment or toll, or any penalty
imposed in relation thereto;

(3) All cases in which the jurisdiction of any inferior court is in issue;

(4) All other cases in which only errors or questions of law are involved: Provided,
however, That if, in addition to constitutional, tax or jurisdictional questions, the cases
mentioned in the three next preceding paragraphs also involve questions of fact or
mixed questions of fact and law, the aggrieved party shall appeal to the Court of
Appeals; and the final judgment or decision of the latter may be reviewed, revised,
reversed, modified or affirmed by the Supreme Court on writ of certiorari; and

(5) Final awards, judgments, decision or orders of the Commission on Elections, Court
of Tax Appeals, Court of Industrial Relations, the Public Service Commission, and the
Workmen's Compensation Commission.

A reading of Supreme Court Circular 2-90, in relation to Section 17 of the Judiciary Act
of 1948, clearly shows that the subject matter of therein petition, that is, the propriety of
granting letters testamentary to respondents, do not fall within any ground which can be
the subject of a direct appeal to this Court. The CA was thus correct in declaring that the
"issues raised by petitioner do not fall within the purview of Section 17 of the Judiciary
Act of 1948 such that the Supreme Court should take cognizance of the instant case." [19]

Moreover, the Court's pronouncement in Suarez v. Judge Villarama[20] is instructive:

Section 4 of Circular No. 2-90, in effect at the time of the antecedents, provides
that an appeal taken to either the Supreme Court or the Court of Appeals by the
wrong mode or inappropriate mode shall be dismissed. This rule is now
incorporated in Section 5, Rule 56 of the 1997 Rules of Civil Procedure.

Moreover, the filing of the case directly with this Court runs afoul of the doctrine
of hierarchy of courts. Pursuant to this doctrine, direct resort from the lower
courts to the Supreme Court will not be entertained unless the appropriate
remedy cannot be obtained in the lower tribunals. This Court is a court of last resort,
and must so remain if it is to satisfactorily perform the functions assigned to it by the
Constitution and immemorial tradition. Thus, a petition for review on certiorari
assailing the decision involving both questions of fact and law must first be
brought before the Court of Appeals.[21]

Also, in Southern Negros Development Bank v. Court of Appeals, [22] this Court ruled:
It is incumbent upon private respondent qua appellants to utilize the correct mode of
appeal of the decisions of trial courts to the appellate courts. In the mistaken choice of
their remedy, they can blame no one but themselves (Jocson v. Baguio, 179 SCRA 550
[1989]; Yucuanseh Drug Co. v. National Labor Union, 101 Phil. 409 [1957]).

xxxx

Pursuant to Section 4 of Circular No. 2-90, which provides that "[a]n appeal taken
to either the Supreme Court or the Court of Appeals by the wrong mode or
inappropriate mode shall be dismissed," the only course of action of the Court to
which an erroneous appeal is made is to dismiss the same. There is no longer
any justification for allowing transfers of erroneous appeals from one court to
another (Quesada v. Court of Appeals, G.R. No. 93869, November 12, 1990, First
Division, Minute Resolution).[23]

Based on the foregoing, petitioner cannot deny that the determination of whether or not
respondents should be disqualified to act as executors is a question of fact. Hence, the
proper remedy was to appeal to the CA, not to this Court.

Petitioner is adamant, however, that notwithstanding the improper remedy, the CA

should not have dismissed therein petition. Petitioner argues in the wise:
However, as can be seen in the Resolution of February 5, 1997, (Annex "H") this
Honorable Court deemed it more proper to transmit the first Petition for Review to
respondent appellate court for the reason that:

This Court having been cited to no special and important reason for it to take
cognizance of said case in the first instance. x x x

It would appear then that even though this Honorable Court apparently considers the
Republic's petition as deserving to be given due course, it deemed it in the best interest
of the parties concerned if the Court of Appeals would first take cognizance of said
case, thereby preserving its stance as a court of last resort.
Additionally, this Honorable Court itself plainly stated that the case under review is:

....REFERRED to the Court of Appeals for consideration and adjudication on the

merits.... The latter having jurisdiction concurrent with this Court over the case...... [24]

Petitioner's arguments are misplaced. To stress, the February 5, 1997 Resolution reads:
The special civil action for certiorari as well as all the other pleadings filed herein are
REFERRED to the Court of Appeals for consideration and adjudication on the merits or
any other action as it may deem appropriate, the latter having jurisdiction concurrent
with this Court over the Case, and this Court having been cited to no special and
important reason for it to take cognizance of said case in the first instance. [25]

Based thereon, this Court agrees with the ruling of the CA that said resolution gave the
CA discretion and latitude to decide the petition as it may deem proper. The resolution
is clear that the petition was referred to the CA for consideration and adjudication on the
merits or any other action as it may deem appropriate. Thus, no error can be attributed
to the CA when the action it deemed appropriate was to dismiss the petition for having
availed of an improper remedy. More importantly, the action of the CA was sanctioned
under Section 4 of Supreme Court Circular 2-90 which provides that "an appeal taken to
either the Supreme Court or the Court of Appeals by the wrong mode or inappropriate
mode shall be dismissed."

Moreover, petitioner mistakenly relies in Oriental Media, Inc. v. Court of Appeals,[26] in

which this Court made the following pronouncements:
In the case at bar, there was no urgency or need for Oriental to resort to the
extraordinary remedy of certiorari for when it learned of the case and the judgment
against it on July 25, 1986, due to its receipt of a copy of the decision by default; no
execution had as yet been ordered by the trial court. As aforementioned, Oriental had
still the time and the opportunity to file a motion for reconsideration, as was actually
done. Upon the denial of its motion for reconsideration in the first case, or at the
latest upon the denial of its petition for relief from judgment, Oriental should have
appealed. Oriental should have followed the procedure set forth in the Rules of Court
for --
Rules of procedure are intended to ensure the orderly administration of justice and the
protection of substantive rights in judicial and extrajudicial proceedings. It is a mistake to
purpose that substantive law and adjective law are contradictory to each other or, as
has often been suggested, that enforcement of procedural rules should never be
permitted if it will result in prejudice to the substantive rights of the litigants. This is not
exactly true; the concept is much misunderstood. As a matter of fact, the policy of the
courts is to give effect to both kinds of law, as complementing each other, in the just and
speedy resolution of the dispute between the parties. Observance of both substantive
rights is equally guaranteed by due process whatever the source of such rights, be it the
Constitution itself or only a statute or a rule of court. [27]

In the case at bar, as found by this Court in its February 5, 1997 Resolution, therein
petition offered no important or special reason for the Court to take cognizance of it at
the first instance. Petitioner offered no plausible reason why it went straight to this Court
when an adequate and proper remedy was still available. The CA was thus correct that
the remedy that petitioner should have availed of was to file an appeal under Rule 109
of the Rules of Court which states:
Section 1. Orders of judgments from which appeals taken. - An interested person may
appeal in special proceedings from an order or judgment rendered by a Court of First
Instance or a Juvenile and Domestic Relations Court, where such order or judgment:
(a) allows or disallows a will;

Because of the preceding discussion, herein petition must necessarily fail. However,
even if this Court were to set aside petitioners' procedural lapses, a careful review of the
records of the case reveal that herein petition is without merit.

At the crux of the controversy is a determination of whether or not respondents are

incompetent to serve as executors of the will of Ferdinand Marcos.

Ozeata v. Pecson[28] is instructive:

The choice of his executor is a precious prerogative of a testator, a necessary
concomitant of his right to dispose of his property in the manner he wishes. It is natural
that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of the estate. The curtailment of this right may be
considered as a curtailment of the right to dispose. And as the rights granted by will take
effect from the time of death (Article 777, Civil Code of the Philippines), the
management of his estate by the administrator of his choice should be made as soon as
practicable, when no reasonable objection to his assumption of the trust can be
interposed any longer. It has been held that when a will has been admitted to
probate, it is the duty of the court to issue letters testamentary to the person
named as executor upon his application (23 C.J. 1023).

xxxx

The case of In re Erlanger's Estate, 242 N.Y.S. 249, also reiterates the same principle.

The courts have always respected the right to which a testator enjoys to determine who
is most suitable to settle his testamentary affairs, and his solemn selection should not
lightly be disregarded. After the admission of a will to probate, the courts will not
name a better executor for the testator nor disqualify, by a judicial veto, the
widow or friend or other person selected in the will, except upon strict proof of
the statutory grounds of incompetency. Matter of Leland's Will, 219 N.Y. 387, 393,
114 N.E. 854. x x x[29]

Section 1(c), Rule 78 of the Rules of Court defines who are incompetent to serve as
executors, to wit:
Section 1. Who are incompetent to serve as executors or administrators. - No person is
competent to serve as executor or administrator who:
xxxx

(c) Is in the opinion of the court unfit to execute the duties of trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason
of conviction of an offense involving moral turpitude. (Emphasis Supplied)

In the case at bar, petitioner anchored its opposition to the grant of letters testamentary
to respondents, specifically on the following grounds: (1) want of integrity, and (2)
conviction of an offense involving moral turpitude. Petitioner contends that respondents
have been convicted of a number of cases[30] and, hence, should be characterized as
one without integrity, or at the least, with questionable integrity. [31]

The RTC, however, in its January 11, 1996 Order, made the following findings:
However, except for petitioner Republic's allegation of want of integrity on the part of
Imelda Trinidad Romualdez-Marcos and Ferdinand Romualdez Marco II, named
executors in the last will and testament, so as to render them "incompetent" to serve as
executors, the Court sees at this time, no evidence on record, oral or
documentary, to substantiate and support the said allegation. (Emphasis Supplied)

Based on the foregoing, this Court stresses that an appellate court is disinclined to
interfere with the action taken by the probate court in the matter of removal of an
executor or administrator unless positive error or gross abuse of discretion is shown.
[32]
 The Rules of Court gives the lower court the duty and discretion to determine
whether in its opinion an individual is unfit to serve as an executor. The sufficiency of
any ground for removal should thus be determined by the said court, whose sensibilities
are, in the first place, affected by any act or omission on the part of the administrator not
conformable to or in disregard of the rules of orders of the court. [33]

Hence, in order to reverse the findings of the RTC, this Court must evaluate the
evidence presented or alleged by petitioner in support of its petition for disqualification.
However, after a painstaking review of the records and evidence on hand, this Court
finds that the RTC committed no error or gross abuse of discretion when it ruled that
petitioner failed to substantiate its allegation.

Petitioner conveniently omits to state that the two cases against respondent Imelda
Marcos have already been reversed by this Court. Her conviction in Criminal Case No.
17453 was reversed by this Court in Dans, Jr. v. People.[34] Likewise, her conviction in
Criminal Case No. 17450 was reversed by this Court in Marcos v. Sandiganbayan.
[35]
 Hence, the so-called "convictions" against respondent Imelda Marcos cannot serve
as a ground for her disqualification to serve as an executor.

On the other hand, the eight cases filed against respondent Ferdinand Marcos II involve
four charges for violation of Section 45 (failure to file income tax returns) and four
charges for violation of Section 50 (non-payment of deficiency taxes) of the National
Internal Revenue Code of 1977 (NIRC).
It is a matter of record, that in CA-G.R. CR No. 18569, [36] the CA acquitted respondent
Ferdinand Marcos II of all the four charges for violation of Section 50 and sustained his
conviction for all the four charges for violation of Section 45. It, however, bears to
stress, that the CA only ordered respondent Marcos II to pay a fine for his failure to file
his income tax return. Moreover, and as admitted by petitioner, [37] said decision is still
pending appeal.

Therefore, since respondent Ferdinand Marcos II has appealed his conviction relating to
four violations of Section 45 of the NIRC, the same should not serve as a basis to
disqualify him to be appointed as an executor of the will of his father. More importantly,
even assuming arguendo that his conviction is later on affirmed, the same is still
insufficient to disqualify him as the "failure to file an income tax return" is not a crime
involving moral turpitude.

In Villaber v. Commision on Elections,[38] this Court held:

As to the meaning of "moral turpitude," we have consistently adopted the definition in
Black's Law Dictionary as "an act of baseness, vileness, or depravity in the private
duties which a man owes his fellow men, or to society in general, contrary to the
accepted and customary rule of right and duty between man and woman, or
conduct contrary to justice, honesty, modesty, or good morals."

In In re Vinzon, the term "moral turpitude" is considered as encompassing "everything

which is done contrary to justice, honesty, or good morals."

xxxx

We, however, clarified in Dela Torre vs. Commission on Elections that "not every
criminal act involves moral turpitude," and that ''as to what crime involves moral
turpitude is for the Supreme Court to determine."[39]

Moreover, In De Jesus-Paras v. Vailoces:[40]

Indeed, it is well-settled that "embezzlement, forgery, robbery, and swindling are crimes
which denote moral turpitude and, as a general rule, all crimes of which fraud is an
element are looked on as involving moral turpitude" (58 C.J.S., 1206).

The "failure to file an income tax return" is not a crime involving moral turpitude as the
mere omission is already a violation regardless of the fraudulent intent or willfulness of
the individual. This conclusion is supported by the provisions of the NIRC as well as
previous Court decisions which show that with regard to the filing of an income tax
return, the NIRC considers three distinct violations: (1) a false return, (2) a fraudulent
return with intent to evade tax, and (3) failure to file a return.

The same is illustrated in Section 51(b) of the NIRC which reads:

(b) Assessment and payment of deficiency tax - xxx

In case a person fails to make and file a return or list at the time prescribed by
law, or makes willfully or otherwise, false or fraudulent return or list x x x.
(Emphasis Supplied)

Likewise, in Aznar v. Court of Tax Appeals,[41] this Court observed:

To our minds we can dispense with these controversial arguments on facts, although
we do not deny that the findings of facts by the Court of Tax Appeals, supported as they
are by very substantial evidence, carry great weight, by resorting to a proper
interpretation of Section 332 of the NIRC. We believe that the proper and reasonable
interpretation of said provision should be that in the three different cases of (1) false
return, (2) fraudulent return with intent to evade tax, (3) failure to file a return, the
tax may be assessed, or a proceeding in court for the collection of such tax may be
begun without assessment, at any time within ten years after the discovery of the (1)
falsity, (2) fraud, and (3) omission. Our stand that the law should be interpreted to
mean a separation of the three different situations of false return, fraudulent
return with intent to evade tax, and failure to file a return is strengthened
immeasurably by the last portion of the provision which segregates the situations
into three different classes, namely, "falsity," "fraud" and
"omission."[42] (Emphasis Supplied)

Applying the foregoing considerations to the case at bar, the filing of a "fraudulent return
with intent to evade tax" is a crime involving moral turpitude as it entails willfulness and
fraudulent intent on the part of the individual. The same, however, cannot be said for
"failure to file a return" where the mere omission already constitutes a violation. Thus,
this Court holds that even if the conviction of respondent Marcos II is affirmed, the same
not being a crime involving moral turpitude cannot serve as a ground for his
disqualification.

Anent the third error raised by petitioner, the same has no merit.

Petitioner contends that respondents denied the existence of the will, and are,
therefore, estopped from claiming to be the rightful executors thereof. Petitioner further
claims that said actions clearly show that respondents lack the competence and
integrity to serve as officers of the court.

This Court does not agree with the posture taken by petitioner, and instead, accepts the
explanation given by respondents, to wit:
Respondents opposed the petition for probate not because they are disclaiming the
existence of the will, but because of certain legal grounds, to wit: (a) petitioner does not
have the requisite interest to institute it; (b) the original copy of the will was not attached
to the petition for probate as required by the rules; and (c) the Commissioner of the
Bureau of Internal Revenue is not qualified to be appointed as administrator of the
estate.[43]

Based on the foregoing, considering the nature of their opposition, respondents cannot
be held guilty of estoppel as they merely acted within their rights when they put in issue
legal grounds in opposing the probate proceedings. More importantly, even if said
grounds were later on overruled by the RTC, said court was still of opinion that
respondents were fit to serve as executors notwithstanding their earlier opposition.
Again, in the absence of palpable error or gross abuse of discretion, this Court will not
interfere with the RTC's discretion.

As for the remaining errors assigned by petitioner, the same are bereft of merit.

Petitioner contends that respondents have strongly objected to the transfer to the
Philippines of the Marcos assets deposited in the Swiss Banks [44] and thus the same
should serve as a ground for their disqualification to act as executors. This Court does
not agree. In the first place, the same are mere allegations which, without proof,
deserve scant consideration. Time and again, this Court has stressed that this Court is
a court of law and not a court of public opinion. Moreover, petitioner had already raised
the same argument in its motion for partial reconsideration before the RTC. Said court,
however, still did not find the same as a sufficient ground to disqualify respondents.
Again, in the absence of palpable error or gross abuse of discretion, this Court will not
interfere with the RTC's discretion.

Lastly, petitioner argues that the assailed RTC Orders were based solely on their own
evidence and that respondents offered no evidence to show that they were qualified to
serve as executors.[45] It is basic that one who alleges a fact has the burden of proving it
and a mere allegation is not evidence.[46] Consequently, it was the burden of petitioner
(not respondents) to substantiate the grounds upon which it claims that respondents
should be disqualified to serve as executors, and having failed in doing so, its petition
must necessarily fail.

WHEREFORE, premises considered, the March 13, 1997 Decision and August 27,
1997 Resolution of the Court of Appeals in CA-G.R. SP No. 43450 are
hereby AFFIRMED.

The Regional Trial Court of Pasig City, Branch 156, acting as a probate court in Special
Proceeding No. 10279, is hereby ORDERED to issue letters testamentary,
in solidum, to Imelda Romualdez-Marcos and Ferdinand Marcos II.

SO ORDERED.

Ynares-Santiago, (Chairperson), Chico-Nazario, Velasco, Jr.,  and Peralta, JJ., concur.

[ G.R. No. 50277, February 14, 1980 ]
TESTATE ESTATE OF THE LATE DOMINADOR TUMANG, MAGDALENA A.
TUMANG, ADMINISTRATRIX-APPELLEE, VS. GUIA T. LAGUIO AND HER MINOR
CHILDREN, MOVANTS-APPELLANTS.

DECISION

ANTONIO, J.:
This case was forwarded to this Court by the Court of Appeals on the ground that it
involves purely legal issues.  The factual background, as found by the Court of Appeals,
is as follows:

In Special Proceeding No. 1953 involving the estate of the late Dominador Tumang and
pending before the Court of First Instance of Pampanga, the widow of the deceased,
namely Magdalena A. Tumang, administratrix and executrix of the will, filed a petition to
declare the testate proceedings definitely terminated and closed with respect to herself
and two of her children - Melba Tumang Ticzon and Nestor A. Tumang.  The petition
was premised on the fact that the aforesaid heirs had already acknowledged receipt of
the properties adjudicated to them, and in order for such properties to be transferred in
their names, there was need for an order of the court declaring the proceedings closed
with respect to the aforesaid heirs.  The petition was opposed by appellee's daughter,
Guia T. Laguio and her children on the ground that appellee, as administratrix and
executrix, had not yet delivered all properties adjudicated to them.  Moreover, the
oppositors contended that there could be no partial termination of the proceedings. 
Thereafter, the administratrix withdrew the aforementioned petition.

During the hearing of the motion to withdraw petition, Magdalena Tumang, as required
by the court, filed a pleading captioned "Compliance", alleging that as shown by the
attached receipts issued by the BIR, the estate and inheritance taxes had been fully
paid; that as certified by the Deputy Clerk of Court, no claim has been presented that
has not been satisfied; that all the heirs since the conditional approval of the original
and amendatory projects of partition have actually received all their respective
hereditary shares and have been in material possession thereof, receiving all rents,
fruits, benefits and proceeds thereof; that the administratrix sent to heiress Guia T.
Laguio and her children the corresponding Receipt of Inheritance but the said heirs
refused to sign the same on the ground that the real and personal properties
adjudicated to them had not yet been transferred in their names; that heiress Guia T.
Laguio failed to specify what other properties adjudicated to her and her children she
had not yet received.  It was prayed that all the Registers of Deeds of the provinces and
cities where the properties involved are located be ordered to give due course to the
original and amendatory projects of partition filed and approved, and that the closure
and termination of the proceedings be decreed after the transfer of the titles of
ownership in the names of the respective adjudicatees, as desired by the oppositors.

Acting on the foregoing the court a quo issued the Order of December 14, 1970 which
reads as follows:
"This being the case, the Court hereby directs and orders the administratrix to furnish a
copy of the aforesaid original and amendatory projects of partition to all the Registers of
Deeds of the provinces and cities where the real estates of the late Dominador Tumang
are located, as well as to all the Presidents and Managers of the different corporations
where the said Dominador Tumang appears to be a shareholder as shown in the
several certificates of shares of stock disposed of in said original and amendatory
projects of partition, for the transfer in favor of the heirs adjudicatees of the titles of
ownership of the real properties and shares of stock respectively adjudicated to them.
"Once the said titles of ownership are issued in favor of the heirs, the administratrix shall
report it to the Court, for the issuance of the corresponding order of closure." [1]
On January 25, 1971, Guia T. Laguio and her minor children filed an Urgent Motion to
Require the Administratrix to Render an Accounting of the cash and stock dividends
declared on the shares of stock, which motion was opposed by the administratrix on the
grounds that the case is already definitely closed; that the administratrix has already
filed her final accounts, opposed by Guia T. Laguio and her children and resulting in a
compromise agreement which was approved by the court and which is already res
adjudicata; that Guia T. Laguio, thru counsel, had admitted in open court that the
executrix has already delivered all the properties and dividends of the shares of stock
adjudicated to her and her minor children since the approval of the original and
amendatory projects of partition; and that with such admission, the court no longer has
jurisdiction to entertain the motion under consideration.

Resolving the foregoing, the court a quo issued the first questioned Order on February
5, 1971, stating in part, the following:
"Considering the opposition well founded, the court hereby considers the motion to
require administratrix to render an accounting untenable, as the final accounting of the
administratrix was already approved and therefore denies the motion of oppositor and
counter-petitioner dated Jan. 25, 1971." [2]
A motion for reconsideration of the foregoing Order was filed by Guia T. Laguio and her
minor children.  On August 16, 1971, the court a quo issued the second questioned
Order denying the motion for reconsideration in the following manner:
"After a careful consideration of the grounds relied upon by the movant counter-
petitioner, this Court resolves to deny the motion for reconsideration for the reason that
in view of said counter-petitioner's receipt of the cash dividends in question without first
requiring the administratrix the accounting now being sought to be rendered for
purposes of determining the correctness of the cash dividends constitutes already a
waiver on her part to question such correctness of the aforesaid cash dividends.  The
counter-petitioner is being assisted by counsel in the person of her own husband, and
who being well-versed in such legal process, could have rejected receipt of the said
cash dividends on the shares of stock if the correctness of the same was at that time
being doubted.  To say the least, therefore, the grounds for the motion for
reconsideration are, in the honest opinion of this Court, unmeritorious, and all the
motion, in effect, is hereby denied."[3]
The sole issue is whether or not the court should have required the executrix to render
an accounting of the cash and stock dividends received after the approval of her final
accounts.  A corollary issue is whether or not petitioners have waived their right to
demand such accounting.

Section 8 of Rule 85 provides that the "executor or administrator shall render an

account of his administration within one (1) year from the time of receiving letters
testamentary or of administration * * *, and he shall render such further accounts as the
court may require until the estate is wholly settled."
In the instant case, further accounts by the executrix appear to be in order, in view of
the fact that the dividends sought to be accounted for are not included in the final
accounts rendered by the executrix.  It appears that the interests of all the parties will be
better served and the conflict between petitioners and respondent will be resolved if
such additional accounting is made.  Further, "it has been held that an executor or
administrator who receives assets of the estate after he has filed an account should file
a supplementary account thereof, and may be compelled to do so, but that it is only with
respect to matters occurring after the settlement of final account that representatives will
be compelled to file supplementary account." [4] It is only in a case where the petition to
compel an executor to account after he has accounted and has been discharged fails to
allege that any further sums came into the hands of the executor, and the executor
specifically denies the receipt of any further sums that the accounting should be denied.
[5]

There is no question that in the instant case, the fact that the executrix received funds of
the estate after the approval of her final accounts and before the issuance of an order
finally closing the proceedings is admitted.  She must, therefore, account for the same,
in consonance with her duty to account for all the assets of the decedent's estate which
have come into her possession by virtue of her office. [6] An executor should account for
all his receipts and disbursements since his last accounting. [7]

We disagree with the lower court's finding that petitioners, by receiving the dividends
without requiring an accounting, had waived their right to do so.  The duty of an
executor or administrator to render an account is not a mere incident of an
administration proceeding which can be waived or disregarded.  It is a duty that has to
be performed and duly acted upon by the court before the administration is finally
ordered closed and terminated,[8] to the end that no part of the decedent's estate be left
unaccounted for.  The fact that the final accounts had been approved does not divest
the court of jurisdiction to require supplemental accounting for, aside from the initial
accounting, the Rules provide that "he shall render such further accounts as the court
may require until the estate is wholly settled." [9]

WHEREFORE, in view of all the foregoing, the Orders of the lower court dated February
5, 1971 and August 16, 1971 are set aside, and respondent executrix is hereby ordered
to render a supplemental accounting of all cash and stock dividends as well as other
properties of the estate which came into her possession after the approval of her final
accounts.

SO ORDERED.

[ G.R. No. L-26694, December 18, 1973 ]

NELITA MORENO VDA. DE BACALING, PETITIONER, VS. HECTOR LAGUDA,
HON. VALERIO ROVIRA, JUDGE, COURT OF FIRST INSTANCE AND HON. JUDGE
ROSENDO BALTAZAR, JUDGE, CITY COURT OF ILOILO, RESPONDENTS.
 DECISION

ESGUERRA, J.:

I.

Nature of the Case

The petitioner seeks a writ of certiorari with preliminary injunction to annul an Order of

Hon. Rosendo Baltazar, as Judge of the City Court of Iloilo, dated June 30, 1966,
ordering the demolition of the residential house of petitioner. [1] Assailed likewise is an
Order, dated August 25, 1966, of Hon. Valerio V. Rovira, as Judge of the Court of First
Instance of Iloilo, stationed at Iloilo City, approving said demolition.[2]
II.

Facts of the Case

The record of this case discloses the following facts:

Private respondent Hector Laguda is the registered owner of a residential land known
as lot No. 3508 situated at La Paz, Iloilo City.[3] Many years back, petitioner and her late
husband, Dr. Ramon Bacaling, with the acquiescence of private respondent Laguda,
constructed a residential house on a portion of said lot fronting Huevana Street, paying
a monthly rental of P80.00.[4] Unable to pay the lease rental from July 1959 to
September 1961, totalling P2,160.00, an action for ejectment (Civil Case No. 6823) was
filed by private respondent Laguda against petitioner in her capacity as judicial
administratrix of the estate of her late husband, Dr. Bacaling, in the City Court of Iloilo
City.[5] The filing of said case spawned various court suits.

Petitioner on July 23,1962, filed certiorari proceedings in this Court (G. R. No. L-20061),

but was dismissed for lack of merit on August 3, 1962. [6] With this setback, petitioner on
November 12, 1962, filed with the Court of First Instance of Iloilo a petition
for certiorari with preliminary injunction (Civil Case No. 6162) but the same was
dismissed on December 1, 1962.[7] Unsuccessful in her motion for reconsideration,
petitioner went to the Court of Appeals by way of certiorari ( CA-G.R. No. 31882-R ) but
her petition was dismissed by that Court on March 7,1967. [8]

Suffering from these series of legal reverses, the petitioner entered into a compromise
agreement on July 29, 1964, with private respondent Laguda relative to Civil Case No.
6828.[9] Said agreement inter alia, provides as follows:
1. Defendant (petitioner herein) agreed to vacate the premises and remove x
x x the residential house therefrom x x x before December 31, 1966;
 2. For the use and occupation x x x of the said premises x x x from June
1964 to December 31, 1969, the said defendant will pay plaintiff a monthly
rent x x x of Eighty (P80. 00) Pesos per calendar month x x x;
3. Upon failure of defendant to comply with any x x x provision of the
amicable settlement x x x fifty (50) days x x x the plaintiff shall be entitled
to 'immediate execution to restore plaintiff in possession of the premises
and to recover all the unpaid monthly rents from June 1, 1964 until said
premises are vacated' by defendant;
4. Defendant' waive her right, under Sec. 6, Rule 39 Rules of Court, to bar
enforcement of the execution of the judgment in the case at anytime within
one (1) year from December 31, 1969."
In a decision dated July 30, 1964, the City Court of Iloilo City approved the amicable
settlement and enjoined the parties to comply with its terms. For failure of the petitioner
to satisfy the conditions of the settlement within the 50-day period, private respondent
Laguda moved for execution which the Court granted on July 7, 1965. [10]

On July 14, 1965, petitioner moved for reconsideration to quash the writ of execution,
but before the Court could resolve the motion, petitioner on July 19, 1965, served notice
of her intention to take the case to the Court of Appeals. [11] Meanwhile on July 23, 1965,
respondent Laguda filed an opposition to the petitioner' s July 14, 1965, motion alleging
that as judicial administratrix as of July 29, 1964, she was legally authorized to enter
into the amicable settlement which was the basis of the decision dated July 30, 1964, of
the City Court of Iloilo sought to be executed and, therefore, her act was binding upon
the present judicial administrator, Atty. Roberto Dineros, who replaced petitioner upon
her discharge as such on November 28, 1964.[12]

Denying the petitioner's motion for reconsideration and to quash writ of execution on
September 30, 1965, the City Court however, held in abeyance the enforcement of
the alias writ of execution until the Court of First Instance of Iloilo stamped
its imprimatur, considering the pendency of Special Proceedings No. 1469 and of the
fact that the properties involved therein are in custodia legis. [13] Thereafter, on October
25, 1965, private respondent Laguda moved the Court of First Instance of Iloilo in
Special Proceedings No. 1469 for the approval of the City Court's order of execution
which was granted despite petitioner's opposition. [14] With the denial of petitioner' s
motion for reconsideration on December 4, 1965, a petition for certiorari with preliminary
injunction was brought before the Court of Appeals (CA-G. R. No. 36939-R ) which
dismissed the same on January 18, 1966.[15]

On April 14, 1966, the respondent City Judge of Iloilo City issued an alias writ of
execution upon representations of private respondent Laguda, copies of which were
served by the sheriff upon the petitioner and Atty. Roberto Dineros in his capacity as
judicial administrator of the estate of the deceased, Dr. Ramon Bacaling, in Special
Proceedings No. 1469.[16]

On June 30, 1966, a Special Order of Demolition was issued by the respondent City
Judge upon motion of private respondent Laguda and over petitioner' s opposition,
subject, however, to the approval of the Court of First Instance of Iloilo in Special
Proceedings No. 1469.[17] Upon the denial of petitioner' s motion for reconsideration,
respondent Laguda on July 12, 1966, filed a manifestation in the Court of First Instance
of Iloilo in Special Proceedings No. 1469, praying for the confirmation of the Order to
demolish the house under custodia legis.[18]

On August 4, 1966, petitioner interposed an opposition alleging:

1. That she was no longer in control of the estate funds when the stipulated
obligations in the amicable settlement became due and payable;
2. That the residential house to be demolished is worth P35,000.00 for which
she is entitled to reimbursement as a builder in good faith, in addition to
reasonable expenses they may incur in transferring the same to another
place; and
3. That the guardian ad litem of the minor children was not notified of the
motion for the issuance of an order of demolition; [19]
On August 25, 1966, respondent Laguda by way of reply disputed petitioner's claim and
supported the legality of the court' s ruling.[20] On the same date, the probate court in
Special Proceedings No. 1469 approved the order of demolition of the house in
controversy.[21] Impugning the said Order as violative of the provisions of Sec. 14, Rule
39, of the Rules of Court, and of the constitutional mandate on due process, petitioner
moved to reconsider the same but the motion was denied by the Court on September
26, 1966.[22] Frustrated in her effort to set aside the Order of Demolition, petitioner
brought this present action of certiorari with preliminary injunction. Upon giving due
course to the petition, this Court issued a temporary restraining order on October 21,
1966, to prevent the enforcement of the order of demolition in Special Proceedings No.
1469 of the Court of First Instance of Iloilo, but when served upon the respondents, the
building in question was already partially demolished. [23] Upon petitioner' s posting a
bond of P1, 000.00, this Court on November 10, 1966, issued a writ of preliminary
injunction restraining the herein respondents from proceeding with the order of
demolition, until further orders.[24]
III

Issues of the Case

The issues raised in the instant petition boil down to the following:
1. Whether or not the acts of the petitioner as judicial administratrix prior to
her discharge or removal are valid and binding upon her successor;
2. Whether or not petitioner is a builder in good faith and, therefore, entitled
to reimbursement, and/or reasonable expenses that may be incurred in
transferring the house to another place;
3. Whether or not due process was denied to the minor children of deceased
Ramon Bacaling and petitioner in connection with the motion for the
issuance of the order of demolition.
IV.

Discussion
Petitioner claims before this Court that since she was no longer the judicial
administratrix of the estate of her later husband, Dr. Ramon Bacaling, and was no
longer in control of estate funds when the stipulated obligations in the amicable
settlement became due and payable, the special order of demolition could not be
enforced.

Such a view is not tenable. Under Section 3, Rule 82 of the Rules of Court, petitioner' s
lawful acts before the revocation of her letters of administration or before her removal
shall have the same validity as if there was no such revocation or removal. It is
elementary that the effect of revocation of letters testamentary or of administration is to
terminate the authority of the executor or administrator, but the acts of the executor or
administrator, done in good faith prior to the revocation of the letters, will be protected,
and a similar protection will be extended to rights is acquired under a previous grant of
administration.[25]

In connection with the petitioner' s contention that she be considered a builder in good
faith and, therefore, entitled to reimbursement in addition to reasonable expenses that
may be incurred in transferring the house to another place, the same cannot stand legal
scrutiny. The rule is well-settled that lessees, like petitioner, are not possessors in good
faith, because they knew that their occupancy of the premises continues only during the
life of the lease, and they cannot as a matter of right, recover the value of their
improvements from the lessor, much less retain the premises until they are reimbursed.
Their rights are governed by Article 1678 of the Civil Code which allows reimbursement
of lessees up to one-half of the value of their improvements if the lessor so elects. [26]

It is next urged by petitioner that there was denial of due process for failure of private
respondent to notify the guardian ad litem of the minor children of the deceased, Ramon
Bacaling, of the motion for execution.

A perusal of the pleadings yields the conclusion that petitioner failed to meet the burden
of demonstrating that there was denial of due process. On the contrary, there is
evidence to show that Acting Fiscal Alfonso Illemberger, guardian ad litem of the minor
children of the late Ramon Bacaling, has been duly apprised of the issuance of the as-
sailed special order to demolish, as shown by the certification of the counsel for
petitioner at the foot of his opposition dated August 4, 1966, [27] filed with the Court of
First Instance of Iloilo, and as also shown by the certification of private respondent' s
counsel at the foot of his opposition dated September 15, 1966, [28] likewise filed with the
same Court.
V.

Conclusion

The petitioner is not entitled to the writ of certiorari. In the case at bar, there is
absolutely no showing that the respondent courts acted so "arbitrarily", "despotically" or
"capriciously" as to amount to lack of jurisdiction in issuing the questioned orders.
"Grave abuse of discretion" which is a ground for certiorari means "such capricious and
arbitrary exercise of judgment as is equivalent, in the eyes of the law, to lack of
jurisdiction."[29] Even mere abuse of discretion is not sufficient by itself to justify the
issuance of a writ of certiorari. For that purpose the abuse of discretion must be grave
and patent, and it must be shown that it was exercised arbitrarily or despotically, which
is not the case made out by the present petition. [30]
There is something more to be said about the nature and apparent purpose of this case
which has its genesis in the case for illegal detainer (Civil Case No. 6823) brought
before the Iloilo City Court. What transpired therein presents a glaring example of a
summary proceeding which was deliberately protracted and made to suffer undue delay
in its disposal. It was originally filed on September 13, 1960; [31] it reached the appellate
courts five (5) times, twice before the Court of Appeals [32], once before the Court of First
Instance of Iloilo[33], and twice before this Court.[34] The present petition smacks of a
dilatory tactic and a frivolous attempt resorted to by petitioner to frustrate the prompt
termination of the ejectment case and to prolong litigation unnecessarily. Such conduct
on the part of petitioner and her counsel deserves the vigorous condemnation of this
Court,[35] because it evinces a flagrant misuse of the remedy of certiorari which should
only be resorted to in cases of lack of jurisdiction or grave abuse of discretion by an
inferior court. A recourse of this kind unduly taxes the energy and patience of courts and
simply wastes the precious time that they could well devote to really meritorious cases.
VI.

Judgment

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, the instant petition should

be, as it is hereby, dismissed.

The writ of preliminary injunction issued by this Court on November 10, 1966, is
immediately set aside. [36]

Treble costs against petitioner for the reasons above set forth. [37]

Makalintal, C.J., Ruiz Castro, Teehankee, Makasiar, and Palma, JJ., concur.

[ G.R. No. 183053, October 10, 2012 ]

EMILIO A.M. SUNTAY III, PETITIONER, VS. ISABEL COJUANGCO-SUNTAY,
RESPONDENT.

RESOLUTION

PEREZ, J.:

The now overly prolonged, all-too familiar and too-much-stretched imbroglio over the
estate of Cristina Aguinaldo-Suntay has continued.  We issued a Decision in the dispute
as in Inter Caetera.[1]  We now find a need to replace the decision.
Before us is a Motion for Reconsideration filed by respondent Isabel Cojuangco-Suntay
(respondent Isabel) of our Decision[2] in G.R. No. 183053 dated 16 June 2010, directing
the issuance of joint letters of administration to both petitioner Emilio A.M. Suntay III
(Emilio III) and respondent.  The dispositive portion thereof reads:
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-
G.R. CV No. 74949 is REVERSED and SET ASIDE. Letters of Administration over the
estate of decedent Cristina Aguinaldo-Suntay shall issue to both petitioner Emilio A.M.
Suntay III and respondent Isabel Cojuangco-Suntay upon payment by each of a bond to
be set by the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding
Case No. 117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise
directed to make a determination and to declare the heirs of decedent Cristina
Aguinaldo-Suntay according to the actual factual milieu as proven by the parties, and all
other persons with legal interest in the subject estate. It is further directed to settle the
estate of decedent Cristina Aguinaldo-Suntay with dispatch. No costs. [3]

We are moved to trace to its roots the controversy between the parties.

The decedent Cristina Aguinaldo-Suntay (Cristina) died intestate on 4 June 1990. 

Cristina was survived by her spouse, Dr. Federico Suntay (Federico) and five
grandchildren: three legitimate grandchildren, including herein respondent, Isabel; and
two illegitimate grandchildren, including petitioner Emilio III, all by Federico’s and
Cristina’s only child, Emilio A. Suntay (Emilio I), who predeceased his parents.

The illegitimate grandchildren, Emilio III and Nenita, were both reared from infancy by
the spouses Federico and Cristina.  Their legitimate grandchildren, Isabel and her
siblings, Margarita and Emilio II, lived with their mother Isabel Cojuangco, following the
separation of Isabel’s parents, Emilio I and Isabel Cojuangco.  Isabel’s parents, along
with her paternal grandparents, were involved in domestic relations cases, including a
case for parricide filed by Isabel Cojuangco against Emilio I.  Emilio I was eventually
acquitted.

In retaliation, Emilio I filed a complaint for legal separation against his wife, charging her
among others with infidelity.  The trial court declared as null and void and of no effect
the marriage of Emilio I and Isabel Cojuangco on the finding that:
From February 1965 thru December 1965 plaintiff was confined in the Veterans
Memorial Hospital.  Although at the time of the trial of parricide case (September 8,
1967) the patient was already out of the hospital[,] he continued to be under observation
and treatment.

It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration
classified as schizophernia (sic) had made themselves manifest even as early as 1955;
that the disease worsened with time, until 1965 when he was actually placed under
expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked
progress, the remains bereft of adequate understanding of right and wrong.
There is no controversy that the marriage between the parties was effected on July 9,
1958, years after plaintiffs mental illness had set in.  This fact would justify a declaration
of nullity of the marriage under Article 85 of the Civil Code which provides:

Art. 95. (sic)  A marriage may be annulled for any of the following causes after (sic)
existing at the time of the marriage:

xxxx
(3) That either party was of unsound mind, unless such party, after coming to reason,
freely cohabited with the other as husband or wife.

There is a dearth of proof at the time of the marriage defendant knew about the mental
condition of plaintiff; and there is proof that plaintiff continues to be without sound
reason.  The charges in this very complaint add emphasis to the findings of the neuro-
psychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a
strong indication of schizophernia (sic).[4]

Intent on maintaining a relationship with their grandchildren, Federico and Isabel filed a
complaint for visitation rights to spend time with Margarita, Emilio II, and Isabel in the
same special lower court.  The Juvenile Domestic Relations Court in Quezon City
(JDRC-QC) granted their prayer for one hour a month of visitation rights which was
subsequently reduced to thirty minutes, and ultimately stopped, because of respondent
Isabel’s testimony in court that her grandparents’ visits caused her and her siblings
stress and anxiety.[5]

On 27 September 1993, more than three years after Cristina’s death, Federico adopted
his illegitimate grandchildren, Emilio III and Nenita.

On 26 October 1995, respondent Isabel, filed before the Regional Trial Court (RTC),
Malolos, Bulacan, a petition for the issuance of letters of administration over Cristina’s
estate docketed as Special Proceeding Case No. 117-M-95.  Federico, opposed the
petition, pointing out that: (1) as the surviving spouse of the decedent, he should be
appointed administrator of the decedent’s estate; (2) as part owner of the mass of
conjugal properties left by the decedent, he must be accorded preference in the
administration thereof; (3) Isabel and her siblings had been alienated from their
grandparents for more than thirty (30) years; (4) the enumeration of heirs in the petition
was incomplete as it did not mention the other children of his son, Emilio III and Nenita;
(5) even before the death of his wife, Federico had administered their conjugal
properties, and thus, is better situated to protect the integrity of the decedent’s estate;
(6) the probable value of the estate as stated in the petition was grossly overstated; and
(7) Isabel’s allegation that some of the properties are in the hands of usurpers is untrue.

Federico filed a Motion to Dismiss Isabel’s petition for letters of administration on the
ground that Isabel had no right of representation to the estate of Cristina, she being an
illegitimate grandchild of the latter as a result of Isabel’s parents’ marriage being
declared null and void.  However, in Suntay v. Cojuangco-Suntay, we categorically
declared that Isabel and her siblings, having been born of a voidable marriage as
opposed to a void marriage based on paragraph 3, Article 85 of the Civil Code, were
legitimate children of Emilio I, who can all represent him in the estate of their legitimate
grandmother, the decedent, Cristina.

Undaunted by the set back, Federico nominated Emilio III to administer the decedent’s
estate on his behalf in the event letters of administration issues to Federico.
Consequently, Emilio III filed an Opposition-In-Intervention, echoing the allegations in
his grandfather’s opposition, alleging that Federico, or in his stead, Emilio III, was better
equipped than respondent to administer and manage the estate of the decedent,
Cristina.

On 13 November 2000, Federico died.

Almost a year thereafter or on 9 November 2001, the trial court rendered a decision
appointing Emilio III as administrator of decedent Cristina’s intestate estate:
WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the
Opposition[-]in[-]Intervention is GRANTED.

Accordingly, the Intervenor, Emilio A.M. Suntay, III (sic) is hereby appointed
administrator of the estate of the decedent Cristina Aguinaldo Suntay, who shall enter
upon the execution of his trust upon the filing of a bond in the amount of P200,000.00,
conditioned as follows:
(1) To make and return within three (3) months, a true and complete inventory;

(2) To administer the estate and to pay and discharge all debts, legatees, and charge
on the same, or dividends thereon;

(3) To render a true and just account within one (1) year, and at any other time when
required by the court, and

(4) To perform all orders of the Court.

Once the said bond is approved by the court, let Letters of Administration be issued in
his favor.[6]

On appeal, the Court of Appeals reversed and set aside the decision of the RTC,
revoked the Letters of Administration issued to Emilio III, and appointed respondent
as administratrix of the subject estate:
WHEREFORE, in view of all the foregoing, the assailed decision dated November 9,
2001 of Branch 78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95
is REVERSED and SET ASIDE and the letters of administration issued by the said
court to Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel
Cojuangco[-]Suntay is hereby appointed administratrix of the intestate estate of Cristina
Aguinaldo Suntay. Let letters of administration be issued in her favor upon her filing of a
bond in the amount of Two Hundred Thousand (P200,000.00) Pesos. [7]
As previously adverted to, on appeal by certiorari, we reversed and set aside the ruling
of the appellate court.  We decided to include Emilio III as co-administrator of Cristina’s
estate, giving weight to his interest in Federico’s estate.   In ruling for co-administration
between Emilio III and Isabel, we considered that:

1. Emilio III was reared from infancy by the decedent, Cristina, and her husband,
Federico, who both acknowledged him as their grandchild;

2. Federico claimed half of the properties included in the estate of the decedent,
Cristina, as forming part of their conjugal partnership of gains during the subsistence of
their marriage;

3. Cristina’s properties, forming part of her estate, are still commingled with those of her
husband, Federico, because her share in the conjugal partnership remains
undetermined and unliquidated; and

4. Emilio III is a legally adopted child of Federico, entitled to share in the distribution of
the latter’s estate as a direct heir, one degree from Federico, and not simply in
representation of his deceased illegitimate father, Emilio I.

In this motion, Isabel pleads for total affirmance of the Court of Appeals’ Decision in
favor of her sole administratorship based on her status as a legitimate grandchild of
Cristina, whose estate she seeks to administer.

Isabel contends that the explicit provisions of Section 6, Rule 78 of the Rules of Court
on the order of preference for the issuance of letters of administration cannot be ignored
and that Article 992 of the Civil Code must be followed.  Isabel further asserts that
Emilio III had demonstrated adverse interests and disloyalty to the estate, thus, he does
not deserve to become a co-administrator thereof.

Specifically, Isabel bewails that: (1) Emilio III is an illegitimate grandchild and
therefore, not an heir of the decedent; (2) corollary thereto, Emilio III, not being a “next
of kin” of the decedent, has no interest in the estate to justify his appointment as
administrator thereof; (3) Emilio III’s actuations since his appointment as administrator
by the RTC on 9 November 2001 emphatically demonstrate the validity and wisdom of
the order of preference in Section 6, Rule 78 of the Rules of Court; and (4) there is no
basis for joint administration as there are no “opposing parties or factions to be
represented.”

To begin with, the case at bar reached us on the issue of who, as between Emilio III and
Isabel, is better qualified to act as administrator of the decedent’s estate.  We did not
choose.  Considering merely his demonstrable interest in the subject estate, we ruled
that Emilio III should likewise administer the estate of his illegitimate grandmother,
Cristina, as a co-administrator.  In the context of this case, we have to make a choice
and therefore, reconsider our decision of 16 June 2010.
The general rule in the appointment of administrator of the estate of a decedent is laid
down in Section 6, Rule 78 of the Rules of Court:
SEC. 6. When and to whom letters of administration granted. – If no executor is named
in the will, or the executor or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be granted:
(a)  To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;

(b)  If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for thirty (30) days after the death of the person to apply for administration
or to request that administration be granted to some other person, it may be granted to
one or more of the principal creditors, if competent and willing to serve;

(c)  If there is not such creditor competent and willing to serve, it may be granted to
such other person as the court may select.

Textually, the rule lists a sequence to be observed, an order of preference, in the

appointment of an administrator.  This order of preference, which categorically seeks
out the surviving spouse, the next of kin and the creditors in the appointment of an
administrator, has been reinforced in jurisprudence. [8]

The paramount consideration in the appointment of an administrator over the estate of a

decedent is the prospective administrator’s interest in the estate. [9]  This is the same
consideration which Section 6, Rule 78 takes into account in establishing the order of
preference in the appointment of administrator for the estate.  The rationale behind the
rule is that those who will reap the benefit of a wise, speedy and economical
administration of the estate, or, in the alternative, suffer the consequences of waste,
improvidence or mismanagement, have the highest interest and most influential motive
to administer the estate correctly.[10]  In all, given that the rule speaks of an order of
preference, the person to be appointed administrator of a decedent’s estate must
demonstrate not only an interest in the estate, but an interest therein greater than any
other candidate.

To illustrate, the preference bestowed by law to the surviving spouse in the

administration of a decedent’s estate presupposes the surviving spouse’s interest in the
conjugal partnership or community property forming part of the decedent’s estate. [11] 
Likewise, a surviving spouse is a compulsory heir of a decedent [12] which evinces as
much, if not more, interest in administering the entire estate of a decedent, aside from
her share in the conjugal partnership or absolute community property.

It is to this requirement of observation of the order of preference in the appointment of

administrator of a decedent’s estate, that the appointment of co-administrators has been
allowed, but as an exception.  We again refer to Section 6(a) of Rule 78 of the Rules of
Court which specifically states that letters of administration may be issued to both the
surviving spouse and the next of kin.  In addition and impliedly, we can refer to Section
2 of Rule 82 of the Rules of Court which say that “x x x [w]hen an executor or
administrator dies, resigns, or is removed, the remaining executor or administrator may
administer the trust alone, x x x.”

In a number of cases, we have sanctioned the appointment of more than one

administrator for the benefit of the estate and those interested therein. [13]  We
recognized that the appointment of administrator of the estate of a decedent or the
determination of a person’s suitability for the office of judicial administrator rests, to a
great extent, in the sound judgment of the court exercising the power of appointment. [14]

Under certain circumstances and for various reasons well-settled in Philippine and
American jurisprudence, we have upheld the appointment of co-administrators: (1) to
have the benefits of their judgment and perhaps at all times to have different interests
represented;[15] (2) where justice and equity demand that opposing parties or factions be
represented in the management of the estate of the deceased; (3) where the estate is
large or, from any cause, an intricate and perplexing one to settle; [16] (4) to have all
interested persons satisfied and the representatives to work in harmony for the best
interests of the estate;[17] and when a person entitled to the administration of an estate
desires to have another competent person associated with him in the office. [18]

In the frequently cited Matias v. Gonzales, we dwelt on the appointment of special co-

administrators during the pendency of the appeal for the probate of the decedent’s will. 
Pending the probate thereof, we recognized Matias’ special interest in the decedent’s
estate as universal heir and executrix designated in the instrument who should not be
excluded in the administration thereof.  Thus, we held that justice and equity demands
that the two (2) factions among the non-compulsory heirs of the decedent, consisting of
an instituted heir (Matias) and intestate heirs (respondents thereat), should be
represented in the management of the decedent’s estate. [19]

Another oft-cited case is Vda. de Dayrit v. Ramolete, where we held that “inasmuch as
petitioner-wife owns one-half of the conjugal properties and that she, too, is a
compulsory heir of her husband, to deprive her of any hand in the administration of the
estate prior to the probate of the will would be unfair to her proprietary interests.” [20]

Hewing closely to the aforementioned cases is our ruling in Ventura v. Ventura[21] where

we allowed the appointment of the surviving spouse and legitimate children of the
decedent as co-administrators.  However, we drew a distinction between the heirs
categorized as next of kin, the nearest of kin in the category being preferred, thus:
In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana
Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and
Miguel Ventura. The “next of kin” has been defined as those persons who are
entitled under the statute of distribution to the decedent’s property [citations
omitted]. It is generally said that “the nearest of kin, whose interest in the estate
is more preponderant, is preferred in the choice of administrator. ‘Among
members of a class the strongest ground for preference is the amount or
preponderance of interest. As between next of kin, the nearest of kin is to be
preferred.’” [citations omitted]

As decided by the lower court and sustained by the Supreme Court, Mercedes and
Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the late
Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura, they are
entitled to preference over the illegitimate children of Gregorio Ventura, namely: Maria
and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of
Rule 78, the person or persons to be appointed administrator are Juana Cardona, as
the surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana
Cardona and Mercedes and Gregoria Ventura in the discretion of the Court, in order to
represent both interests.[22] (Emphasis supplied)

In Silverio, Sr. v. Court of Appeals,[23] we maintained that the order of preference in the
appointment of an administrator depends on the attendant facts and circumstances.  In
that case, we affirmed the legitimate child’s appointment as special administrator, and
eventually as regular administrator, of the decedent’s estate as against the surviving
spouse who the lower court found unsuitable.  Reiterating Sioca v. Garcia[24] as good
law, we pointed out that unsuitableness for appointment as administrator may consist in
adverse interest of some kind or hostility to those immediately interested in the estate.

In Valarao v. Pascual,[25] we see another story with a running theme of heirs squabbling
over the estate of a decedent.  We found no reason to set aside the probate court’s
refusal to appoint as special co-administrator Diaz, even if he had a demonstrable
interest in the estate of the decedent and represented one of the factions of heirs,
because the evidence weighed by the probate court pointed to Diaz’s being remiss in
his previous duty as co-administrator of the estate in the early part of his administration. 
Surveying the previously discussed cases of Matias, Corona, and Vda. de Dayrit, we
clarified, thus:
Respondents cannot take comfort in the cases of Matias v. Gonzales, Corona v. Court
of Appeals, and Vda. de Dayrit v. Ramolete, cited in the assailed Decision. Contrary to
their claim, these cases do not establish an absolute right demandable from the
probate court to appoint special co-administrators who would represent the
respective interests of squabbling heirs. Rather, the cases constitute precedents
for the authority of the probate court to designate not just one but also two or
more special co-administrators for a single estate. Now whether the probate court
exercises such prerogative when the heirs are fighting among themselves is a
matter left entirely to its sound discretion.

Furthermore, the cases of Matias, Corona and Vda. de Dayrit hinge upon factual

circumstances other than the incompatible interests of the heirs which are glaringly
absent from the instant case. In Matias this Court ordered the appointment of a special
co-administrator because of the applicant's status as the universal heir and executrix
designated in the will, which we considered to be a "special interest" deserving
protection during the pendency of the appeal. Quite significantly, since the lower court
in Matias had already deemed it best to appoint more than one special administrator,
we found grave abuse of discretion in the act of the lower court in ignoring the
applicant's distinctive status in the selection of another special administrator.

In Corona we gave "highest consideration" to the "executrix's choice of Special

Administrator, considering her own inability to serve and the wide latitude of discretion
given her by the testatrix in her will,"  for this Court to compel her appointment as
special co-administrator. It is also manifest from the decision in Corona that the
presence of conflicting interests among the heirs therein was not per se the key factor in
the designation of a second special administrator as this fact was taken into account
only to disregard or, in the words of Corona, to "overshadow" the objections to the
appointment on grounds of "impracticality and lack of kinship."

Finally in Vda. de Dayrit we justified the designation of the wife of the decedent as
special co-administrator because it was "our considered opinion that inasmuch as
petitioner-wife owns one-half of the conjugal properties and that she, too, is a
compulsory heir of her husband, to deprive her of any hand in the administration of the
estate prior to the probate of the will would be unfair to her proprietary interests." The
special status of a surviving spouse in the special administration of an estate was also
emphasized in Fule v. Court of Appeals where we held that the widow would have more
interest than any other next of kin in the proper administration of the entire estate since
she possesses not only the right of succession over a portion of the exclusive property
of the decedent but also a share in the conjugal partnership for which the good or bad
administration of the estate may affect not just the fruits but more critically the naked
ownership thereof. And in Gabriel v. Court of Appeals we recognized the distinctive
status of a surviving spouse applying as regular administrator of the deceased spouse's
estate when we counseled the probate court that "there must be a very strong case to
justify the exclusion of the widow from the administration."

Clearly, the selection of a special co-administrator in Matias, Corona and Vda. de

Dayrit was based upon the independent proprietary interests and moral
circumstances of the appointee that were not necessarily related to the demand
for representation being repeatedly urged by respondents.[26] (Emphasis supplied)

In Gabriel v. Court of Appeals, we unequivocally declared the mandatory character of

the rule on the order of preference for the issuance of letters of administration:
Evidently, the foregoing provision of the Rules prescribes the order of preference in the
issuance of letters of administration, it categorically seeks out the surviving spouse, the
next of kin and the creditors, and requires that sequence to be observed in appointing
an administrator. It would be a grave abuse of discretion for the probate court to
imperiously set aside and insouciantly ignore that directive without any valid and
sufficient reason therefor.[27]

Subsequently, in Angeles v. Angeles-Maglaya,[28] we expounded on the legal

contemplation of a “next of kin,” thus:
Finally, it should be noted that on the matter of appointment of administrator of the
estate of the deceased, the surviving spouse is preferred over the next of kin of the
decedent. When the law speaks of "next of kin," the reference is to those who are
entitled, under the statute of distribution, to the decedent's property; one whose
relationship is such that he is entitled to share in the estate as distributed, or, in short,
an heir. In resolving, therefore, the issue of whether an applicant for letters of
administration is a next of kin or an heir of the decedent, the probate court perforce has
to determine and pass upon the issue of filiation. A separate action will only result in a
multiplicity of suits. Upon this consideration, the trial court acted within bounds when it
looked into and pass[ed] upon the claimed relationship of respondent to the late
Francisco Angeles.[29]

Finally, in Uy v. Court of Appeals,[30] we took into consideration the size of, and benefits
to, the estate should respondent therein be appointed as co-administrator.  We
emphasized that where the estate is large or, from any cause, an intricate and
perplexing one to settle, the appointment of co-administrators may be sanctioned by
law.

In our Decision under consideration, we zeroed in on Emilio III’s demonstrable interest

in the estate and glossed over the order of preference set forth in the Rules.  We gave
weight to Emilio III’s demonstrable interest in Cristina’s estate and without a closer
scrutiny of the attendant facts and circumstances, directed co-administration thereof. 
We are led to a review of such position by the foregoing survey of cases.

The collected teaching is that mere demonstration of interest in the estate to be settled
does not ipso facto entitle an interested person to co-administration thereof.  Neither
does squabbling among the heirs nor adverse interests necessitate the discounting of
the order of preference set forth in Section 6, Rule 78.  Indeed, in the appointment of
administrator of the estate of a deceased person, the principal consideration reckoned
with is the interest in said estate of the one to be appointed as administrator. [31]  Given
Isabel’s unassailable interest in the estate as one of the decedent’s legitimate
grandchildren and undoubted nearest “next of kin,” the appointment of Emilio III as co-
administrator of the same estate, cannot be a demandable right.  It is a matter left
entirely to the sound discretion of the Court [32] and depends on the facts and the
attendant circumstances of the case.[33]

Thus, we proceed to scrutinize the attendant facts and circumstances of this case even
as we reiterate Isabel’s and her sibling’s apparent greater interest in the estate of
Cristina.

These considerations do not warrant the setting aside of the order of preference
mapped out in Section 6, Rule 78 of the Rules of Court.  They compel that a choice be
made of one over the other.

1. The bitter estrangement and long-standing animosity between Isabel, on the one
hand, and Emilio III, on the other, traced back from the time their paternal grandparents
were alive, which can be characterized as adverse interest of some kind by, or hostility
of, Emilio III to Isabel who is immediately interested in the estate;

2.  Corollary thereto, the seeming impossibility of Isabel and Emilio III working
harmoniously as co-administrators may result in prejudice to the decedent’s estate,
ultimately delaying settlement thereof; and

3.  Emilio III, for all his claims of knowledge in the management of Cristina’s estate, has
not looked after the estate’s welfare and has acted to the damage and prejudice thereof.

Contrary to the assumption made in the Decision that Emilio III’s demonstrable interest
in the estate makes him a suitable co-administrator thereof, the evidence reveals that
Emilio III has turned out to be an unsuitable administrator of the estate.  Respondent
Isabel points out that after Emilio III’s appointment as administrator of the subject estate
in 2001, he has not looked after the welfare of the subject estate and has actually acted
to the damage and prejudice thereof as evidenced by the following:

1.  Emilio III, despite several orders from the probate court for a complete inventory,
omitted in the partial inventories[34] he filed therewith properties of the estate [35] including
several parcels of land, cash, bank deposits, jewelry, shares of stock, motor vehicles,
and other personal properties, contrary to Section 1, [36] paragraph a, Rule 81 of the
Rules of Court.

2.  Emilio III did not take action on both occasions against Federico’s settlement of the
decedent’s estate which adjudicated to himself a number of properties properly
belonging to said estate (whether wholly or partially), and which contained a declaration
that the decedent did not leave any descendants or heirs, except for Federico, entitled
to succeed to her estate.[37]

In compliance to our Resolution dated 18 April 2012 requiring Emilio III to respond to
the following imputations of Isabel that:
1. [Emilio III] did not file an inventory of the assets until November 14, 2002;
2. [T]he inventory [Emilio III] submitted did not include several properties of
the decedent;
3. [T]hat properties belonging to the decedent have found their way to
different individuals or persons; several properties to Federico Suntay
himself; and
4. [W]hile some properties have found their way to [Emilio III], by reason of
falsified documents;[38]

Emilio III refutes Isabel’s imputations that he was lackadaisical in assuming and
performing the functions of administrator of Cristina’s estate:

1. From the time of the RTC’s Order appointing Emilio III as administrator, Isabel, in her
pleadings before the RTC, had vigorously opposed Emilio III’s assumption of that office,
arguing that “[t]he decision of the [RTC] dated 9 November 2001 is not among the
judgments authorized by the Rules of Court which may be immediately implemented or
executed;”

2. The delay in Emilio III’s filing of an inventory was due to Isabel’s vociferous objections
to Emilio III’s attempts to act as administrator while the RTC decision was under appeal
to the Court of Appeals;

3. The complained partial inventory is only initiatory, inherent in the nature thereof, and
one of the first steps in the lengthy process of settlement of a decedent’s estate, such
that it cannot constitute a complete and total listing of the decedent’s properties; and

4. The criminal cases adverted to are trumped-up charges where Isabel, as private
complainant, has been unwilling to appear and testify, leading the Judge of the Regional
Trial Court, Branch 44 of Mamburao, Occidental Mindoro, to warn the prosecutor of a
possible motu propio dismissal of the cases.

While we can subscribe to Emilio III’s counsel’s explanation for the blamed delay in the
filing of an inventory and his exposition on the nature thereof, partial as opposed to
complete, in the course of the settlement of a decedent’s estate, we do not find any
clarification on Isabel’s accusation that Emilio III had deliberately omitted properties in
the inventory, which properties of Cristina he knew existed and which he claims to be
knowledgeable about.

The general denial made by Emilio III does not erase his unsuitability as administrator
rooted in his failure to “make and return x x x a true and complete inventory” which
became proven fact when he actually filed partial inventories before the probate court
and by his inaction on two occasions of Federico’s exclusion of Cristina’s other
compulsory heirs, herein Isabel and her siblings, from the list of heirs.

As administrator, Emilio III enters into the office, posts a bond and executes an oath to
faithfully discharge the duties of settling the decedent’s estate with the end in view of
distribution to the heirs, if any. This he failed to do. The foregoing circumstances of
Emilio III’s omission and inaction become even more significant and speak volume of
his unsuitability as administrator as it demonstrates his interest adverse to those
immediately interested in the estate of the decedent, Cristina.

In this case, palpable from the evidence on record, the pleadings, and the protracted
litigation, is the inescapable fact that Emilio III and respondent Isabel have a deep
aversion for each other.  To our mind, it becomes highly impractical, nay, improbable,
for the two to work as co-administrators of their grandmother’s estate.  The allegations
of Emilio III, the testimony of Federico and the other witnesses for Federico and Emilio
III that Isabel and her siblings were estranged from their grandparents further drive
home the point that Emilio III bears hostility towards Isabel. More importantly, it appears
detrimental to the decedent’s estate to appoint a co-administrator (Emilio III) who has
shown an adverse interest of some kind or hostility to those, such as herein respondent
Isabel, immediately interested in the said estate.
Bearing in mind that the issuance of letters of administration is simply a preliminary
order to facilitate the settlement of a decedent’s estate, we here point out that Emilio III
is not without remedies to protect his interests in the estate of the decedent.  In Hilado
v. Court of Appeals,[39] we mapped out as among the allowable participation of “any
interested persons” or “any persons interested in the estate” in either testate or intestate
proceedings:
xxxx

4. Section 6[40] of Rule 87, which allows an individual interested in the estate of the
deceased “to complain to the court of the concealment, embezzlement, or conveyance
of any asset of the decedent, or of evidence of the decedent’s title or interest therein;”

5. Section 10[41] of Rule 85, which requires notice of the time and place of the
examination and allowance of the Administrator’s account “to persons interested;”

6. Section 7(b)[42] of Rule 89, which requires the court to give notice “to the persons
interested” before it may hear and grant a petition seeking the disposition or
encumbrance of the properties of the estate; and

7. Section 1,[43] Rule 90, which allows “any person interested in the estate” to petition for
an order for the distribution of the residue of the estate of the decedent, after all
obligations are either satisfied or provided for. [44]

In addition to the foregoing, Emilio III may likewise avail of the remedy found in Section
2, Rule 82 of the Rules of Court, to wit:
Sec. 2. Court may remove or accept resignation of executor or administrator.
Proceedings upon death, resignation, or removal. – If an executor or administrator
neglects to render his account and settle the estate according to law, or to perform an
order or judgment of the court, or a duty expressly provided by these rules, or
absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the
trust, the court may remove him, or, in its discretion, may permit him to resign. When an
executor or administrator dies, resigns, or is removed, the remaining executor or
administrator may administer the trust alone, unless the court grants letters to someone
to act with him. If there is no remaining executor or administrator, administration may be
granted to any suitable person.

Once again, as we have done in the Decision, we exercise judicial restraint: we uphold
that the question of who are the heirs of the decedent Cristina is not yet upon us. 
Article 992 of the Civil Code or the curtain bar rule is inapplicable in resolving the issue
of who is better qualified to administer the estate of the decedent.

Thus, our disquisition in the assailed Decision:

Nonetheless, it must be pointed out that judicial restraint impels us to refrain from
making a final declaration of heirship and distributing the presumptive shares of the
parties in the estates of Cristina and Federico, considering that the question on who will
administer the properties of the long deceased couple has yet to be settled.

Our holding in Capistrano v. Nadurata on the same issue remains good law:
[T]he declaration of heirs made by the lower court is premature, although the evidence
sufficiently shows who are entitled to succeed the deceased. The estate had hardly
been judicially opened, and the proceeding has not as yet reached the stage of
distribution of the estate which must come after the inheritance is liquidated.

Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition:
Sec. 1.  When order for distribution of residue is made. - x x x. If there is a controversy
before the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy shall
be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above mentioned
has been made or provided for, unless the distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of said obligations within such
time as the court directs.[45]

Lastly, we dispose of a peripheral issue raised in the Supplemental Comment [46] of

Emilio III questioning the Special Second Division which issued the 18 April 2012
Resolution. Emilio III asseverates that “the operation of the Special Second Division in
Baguio is unconstitutional and void” as the Second Division in Manila had already
promulgated its Decision on 16 June 2010 on the petition filed by him:
7.  The question is: who created the Special Second Division in Baguio, acting
separately from the Second Division of the Supreme Court in Manila? There will then be
two Second Divisions of the Supreme Court: one acting with the Supreme Court in
Manila, and another Special Second Division acting independently of the Second
Division of the Supreme Court in Manila.[47]

For Emilio III’s counsels’ edification, the Special Second Division in Baguio is not a
different division created by the Supreme Court.

The Second Division which promulgated its Decision on this case on 16 June 2010,
penned by Justice Antonio Eduardo B. Nachura, now has a different composition, with
the advent of Justice Nachura’s retirement on 13 June 2011.  Section 7, Rule 2 of the
Internal Rules of the Supreme Court provides:
Sec. 7.  Resolutions of motions for reconsideration or clarification of decisions or signed
resolutions and all other motions and incidents subsequently filed; creation of a
Special Division. – Motions for reconsideration or clarification of a decision or of a
signed resolution and all other motions and incidents subsequently filed in the case
shall be acted upon by the ponente and the other Members of the Division who
participated in the rendition of the decision or signed resolution.

If the ponente has retired, is no longer a Member of the Court, is disqualified, or has

inhibited himself or herself from acting on the motion for reconsideration or
clarification, he or she shall be replaced through raffle by a new ponente who shall
be chosen among the new Members of the Division who participated in the
rendition of the decision or signed resolution and who concurred therein. If only
one Member of the Court who participated and concurred in the rendition of the
decision or signed resolution remains, he or she shall be designated as the
new ponente.

If a Member (not the ponente) of the Division which rendered the decision or signed
resolution has retired, is no longer a Member of the Court, is disqualified, or has
inhibited himself or herself from acting on the motion for reconsideration or clarification,
he or she shall be replaced through raffle by a replacement Member who shall be
chosen from the other Divisions until a new Justice is appointed as replacement for the
retired Justice. Upon the appointment of a new Justice, he or she shall replace the
designated Justice as replacement Member of the Special Division.

Any vacancy or vacancies in the Special Division shall be filled by raffle from among the
other Members of the Court to constitute a Special Division of five (5) Members.

If the ponente and all the Members of the Division that rendered the Decision or signed
Resolution are no longer Members of the Court, the case shall be raffled to any Member
of the Court and the motion shall be acted upon by him or her with the participation of
the other Members of the Division to which he or she belongs.

If there are pleadings, motions or incidents subsequent to the denial of the motion for
reconsideration or clarification, the case shall be acted upon by the ponente on record
with the participation of the other Members of the Division to which he or she belongs at
the time said pleading, motion or incident is to be taken up by the Court. (Emphasis
supplied)

As regards the operation thereof in Baguio City, such is simply a change in venue for
the Supreme Court’s summer session held last April. [48]

WHEREFORE, the Motion for Reconsideration is PARTIALLY GRANTED.  Our

Decision in G.R. No. 183053 dated 16 June 2010 is MODIFIED.  Letters of
Administration over the estate of decedent Cristina Aguinaldo-Suntay shall solely issue
to respondent Isabel Cojuangco-Suntay upon payment of a bond to be set by the
Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No.
117-M-95.  The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed
to settle the estate of decedent Cristina Aguinaldo-Suntay with dispatch.  No costs.

SO ORDERED.

Sereno,* (C.J.), Carpio, (Chairperson), Peralta, and Abad, JJ., concur.

[ G.R. No. 74769, September 28, 1990 ]

BEATRIZ F. GONZALES, PETITIONER, VS. HON. ZOILO AGUINALDO, JUDGE OF
REGIONAL TRIAL COURT, BRANCH 143, MAKATI, METRO MANILA AND TERESA
F. OLBES, RESPONDENTS.

DECISION

PADILLA, J.:

This is a petition for certiorari which seeks to annul, on the ground of grave abuse of

discretion, the Order of the respondent Judge, dated 15 January 1985, cancelling the
appointment of the petitioner Beatriz F. Gonzales as a co-administratrix in Special
Proceedings No. 021 entitled "In the Matter of the Intestate Estate of Ramona
Gonzales Vda. de Favis," Branch 143, RTC, Makati, Metro Manila; and the Order of 15
May 1985 denying reconsideration of the same.
The facts are:
Special Proceedings No. 021, pending before the court a quo, is an intestate
proceeding involving the estate of the deceased Dona Ramona Gonzales Vda.
de Favis.  Dona Ramona is survived by her four (4) children who are her only heirs,
namely, Asterio Favis, Beatriz F. Gonzales, Teresa Olbes, and Cecilia Favis-Gomez.
On 25 October 1983, the court a quo appointed petitioner Beatriz F. Gonzales and
private respondent Teresa Olbes as co-administratrices of the estate.
On 11 November 1984, while petitioner Beatriz F. Gonzales was in the United States
accompanying her ailing husband who was receiving medical treatment in that country,
private respondent Teresa Olbes filed a motion, dated 26 November 1984, to remove
Beatriz F. Gonzales as co-administratrix, on the ground that she is incapable or
unsuitable to discharge the trust and had committed acts and omissions detrimental to
the interest of the estate and the heirs.  Copy of said motion was served upon
petitioner's then counsel of record, Atty. Manuel Castro who, since 2 June 1984, had
been suspended by the Supreme Court from the practice of law throughout
the Philippines.[1]
After the filing of private respondent's aforesaid motion, respondent
Judge Zoilo Aguinaldo issued an Order dated 4 December 1984 which required Beatriz
F. Gonzales and the other parties to file their opposition, if any,
thereto.  Only Asterio Favis opposed the removal of Beatriz F. Gonzales as co-
administratrix, as the latter was still in the United States attending to her ailing husband.
 In an Order dated 15 January 1985, respondent Judge cancelled the letters of
administration granted to Beatriz F. Gonzales and retained Teresa Olbes as
the administratrix of the estate of the late Ramona Gonzales.  The Court, in explaining
its action, stated:
"x x x.  In appointing them, the court was of the opinion that it would be to the best
interest of the estate if two administrators who are the children of the deceased would
jointly administer the same.  Unfortunately, as events have shown, the two
administrators have not seen eye to eye with each other and most of the time they have
been at loggerheads with each other to the prejudice of the estate.  Beatriz F. Gonzales
has been absent from the country since October, 1984 as she is in the United States as
stated in the motion and opposition of Asterio Favis dated December 11, 1984, and she
has not returned even up to this date so that Teresa F. Olbes has been left alone to
administer the estate.  Under these circumstances, and in order that the estate will be
administered in an orderly and efficient manner, the court believes that there should be
now only one administrator of the estate."[2]
Petitioner moved to reconsider the Order of 15 January 1985.  Her motion was opposed
separately by private respondent Teresa Olbes and another co-heir Cecilia Gomez.  In
her manifestation and opposition to petitioner's motion for reconsideration, Cecilia
Gomez stated that it would be pointless to re-appoint Beatriz F. Gonzales as co-
administratrix of Teresa Olbes, as the former would be leaving soon for the United
States to attend to unfinished business.  Moreover, she expressed satisfaction with the
manner respondent Teresa Olbes had been managing and administering the estate.
In his Order dated 7 May 1986, a part of which is hereunder quoted, respondent Judge
denied petitioner's motion for reconsideration for lack of merit.  He said:
"x x x.
After a consideration of the motion for reconsideration and the oppositions thereto, the
court believes and so holds that it should be denied.  The court in its discretion has
issued its order dated January 15, 1985 cancelling the appointment and the letters of
administration issued to Beatriz F. Gonzales and it reiterates the same for the best
interest of the estate of the deceased.  It is noteworthy that of the four heirs of the
deceased, one of them being the movant Beatriz F. Gonzales, two of them, namely,
Cecilia F. Gomez and Teresa F. Olbes, opposed the motion.  The other
heir Asterio Favis, did not file or make any comment to the motion.  As can be gathered
from the oppositions of Cecilia F. Gomez and Teresa F. Olbes, the reappointment of
Beatriz F. Gonzales as a co-administratrix would not be conducive to the efficient and
orderly administration of the estate of the deceased Ramona Gonzalez vda. de Favis."[3]
Petitioner contends before this Court that respondent Judge's Order dated 15 January
1985 should be nullified on the ground of grave abuse of discretion, as her removal was
not shown by respondents to be anchored on any of the grounds provided under
Section 2, Rule 82, Rules of Court, which states:
"Sec 2.  Court may remove or accept resignation of executor or
administrator.  Proceedings upon death, resignation or removal - If an executor or
administrator neglects to render his account and settle the estate according to law, or to
perform an order or judgment of the court, or a duty expressly provided by these rules,
or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the
trust, the court may remove him, or in its discretion, may permit him to resign.  xxx"
While appellate courts are generally disinclined to interfere with the action taken by the
probate court in the matter of removal of an administrator, [4] we find, in the case at bar,
sufficient cause to reverse the order of the probate court removing petitioner as co-
administratrix of the estate.
The rule is that if no executor is named in the will, or the named executor or executors
are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, the
court must appoint an administrator of the estate of the deceased [5] who shall act as
representative not only of the court appointing him but also of the heirs and the creditors
of the estate.[6] In the exercise of its discretion, the probate court may appoint one, two
or more co-administrators to have the benefit of their judgment and perhaps at all
times to have different interests represented.[7]
In the appointment of the administrator of the estate of a deceased person, the principal
consideration reckoned with is the interest in said estate of the one to be appointed
as administrator.[8] This is the same consideration which Section 6 of Rule 78 takes into
account in establishing the order of preference in the appointment of administrators for
the estate.  The underlying assumption behind this rule is that those who will reap the
benefit of a wise, speedy, economical administration of the estate, or, on the other
hand, suffer the consequences of waste, improvidence or mismanagement, have the
highest interest and most influential motive to administer the estate correctly.[9]
Administrators have such an interest in the execution of their trust as entitle them to
protection from removal without just cause. [10] Hence, Section 2 of Rule 82 of the Rules
of Court provides the legal and specific causes authorizing the court to
remove an administrator.[11]
While it is conceded that the court is invested with ample discretion in the removal of an
administrator, it however must have some fact legally before it in order to justify a remov
al.  There must be evidence of an act or omission on the part of the administrator not
conformable to or in disregard of the rules or the orders of the court, which it deems
sufficient or substantial to warrant the removal of the administrator.  In making such a
determination, the court must exercise good judgment, guided by law and precedents.
In the present case, the court a quo did not base the removal of the petitioner as co-
administratrix on any of the causes specified in respondent's motion for relief of the
petitioner.  Neither did it dwell on, nor determine the validity of the charges brought
against petitioner by respondent Olbes.  The court based the removal of the petitioner
on the fact that in the administration of the estate, conflicts and
misunderstandings have existed between petitioner and respondent
Teresa Olbes which allegedly have prejudiced the estate, and the added circumstance
that petitioner had been absent from the country since October 1984, and up to 15
January 1985, the date of the questioned order.
Certainly, it is desirable that the administration of the deceased's estate be marked with
harmonious relations between co-administrators.  But for mere disagreements between
such joint fiduciaries, without misconduct, one's removal is not favored.[12] Conflicts of
opinion and judgment naturally, and, perhaps inevitably, occur between persons with
different interests in the same estate.  Such conflicts, if unresolved by the co-
adminstrators, can be resolved by the probate court to the best interest of the estate
and its heirs.
We, like petitioner, find of material importance the fact that the court a quo failed to find
hard facts showing that the conflict and disharmony between the two (2) co-
administratrices were unjustly caused by petitioner, or that petitioner was guilty of
incompetence in the fulfillment of her duties, or prevented the management of the estate
according to the dictates of prudence, or any other act or omission showing that her
continuance as co-administratrix of the estate materially endangers the interests of the
estate.  Petitioner Beatriz F. Gonzales is as interested as respondent Olbes and the
other heirs in that the properties of the estate be duly administered and conserved for
the benefit of the heirs; and there is as yet no ground to believe that she has prejudiced
or is out to prejudice said estate to warrant the probate court into removing petitioner as
co-administratrix.
Respondent Judge removed petitioner Beatriz F. Gonzales as co-administratrix of the
estate also on the ground that she had been absent from the country since October
1984 and had not returned as of 15 January 1985, the date of the questioned order,
leaving respondent Olbes alone to administer the estate.
In her motion for reconsideration of the Order dated 15 January 1985, petitioner
explained to the court a quo that her absence from the country was due to the fact that
she had to accompany her ailing husband to the United States for medical treatment.
[13]
 It appears too that petitioner's absence from the country was known to
respondent Olbes, and that the latter and petitioner Gonzales had continually
maintained correspondence with each other with respect to the administration of the
estate during the petitioner's absence from the country. [14] As a matter of fact, petitioner,
while in the United States, sent respondent Olbes a letter addressed to the Land Bank
of the Philippines dated 14 November 1984, and duly authenticated by the Philippine
Consulate in San Francisco, authorizing her (Olbes) to receive, and collect the interests
accruing from the Land Bank bonds belonging to the estate, and to use them for the
payment of accounts necessary for the operation of the administration. [15]
The above facts, we note, show that petitioner had never abandoned her role as co-
administratrix of the estate nor had she been remiss in the fulfillment of her
duties.  Suffice it to state, temporary absence in the state does not disqualify one to be
an administrator of the estate.  Thus, as held in re Mc Knight's Will, a temporary
residence outside of the state, maintained for the benefit of the health of the executors'
family, is not such a removal from the state as to necessitate his removal as executor.
"x x x.  It seems quite clear that a temporary absence from the state on account of ill
health, or on account of business, or for purposes of travel or pleasure, would not
necessarily establish the fact that an executor ‘has removed’ from the state, within the
intent of the statute.  The learned surrogate was evidently satisfied that the sojourn of
these executors in New Jersey was nothing more than a departure from the state for the
benefit of relatives, not designed to constitute a permanent change of abode, and
contemplating a return to New York as soon as the purpose of their absence should be
accomplished.  In this view, I am inclined to think that he was right in refusing to hold
that he was constrained to revoke the letters by the provisions of the Code to which I
have referred.  I therefore advise an affirmance of the order."[16]
Finally, it seems that the court a quo seeks refuge in the fact that two (2) of the other
three (3) heirs of the estate of the deceased (Teresa Olbes and Cecilia Favis Gomez)
have opposed the retention or re-appointment of petitioner as co-administratrix of the
estate.  Suffice it to state that the removal of an administrator does not lie on the whims,
caprices and dictates of the heirs or beneficiaries of the estate, nor on the belief of the
court that it would result in orderly and efficient administration.  In re William's Adm'r.,
the court held:
"A county court having appointed a stranger administrator as expressly authorized by
Ky. St. 3897, after the relatives of decedent had lost their right of precedence, could not
remove the appointee merely because of the request of relatives and the belief upon the
part of the court that the best interest of deceased would be thereby subserved, since
the administrator had such an interest as entitled him to protection from removal without
cause."[17]
As the appointment of petitioner Beatriz F. Gonzales was valid, and no satisfactory
cause for her removal was shown, the court a quo gravely abused its discretion in
removing her.  Stated differently, petitioner Beatriz F. Gonzales was removed without
just cause.  Her removal was therefore improper.
WHEREFORE, the petition is GRANTED.  The Order of the court a quo dated 15
January 1985 removing petitioner Beatriz F. Gonzales as co-administratrix in Special
Proceedings No. 021, entitled "In the Matter of the Intestate Estate of Ramona
Gonzales Vda. de Favis" and the Order of the same Court dated 15 May 1985 denying
reconsideration of said Order, are hereby REVERSED and SET ASIDE.  Petitioner is
ordered reinstated as co-administratrix of said estate.
SO ORDERED.

Melencio-Herrera, (Chairman), Sarmiento, and Regalado, JJ., concur.

Paras, J., on leave.

252 Phil. 253

THIRD DIVISION
[ G.R. No. 72424, February 13, 1989 ]
INTESTATE ESTATE OF CARMEN DE LUNA (DECEASED), CATALINA MORALES
GONZALES, ADMINISTRATRIX-PETITIONER, VS. INTERMEDIATE APPELLATE
COURT AND ESPERANZA DE LUNA GONZALES AZUPARDO & ISIDORO DE
LUNA GONZALES, RESPONDENTS.

DECISION

GUTIERREZ, JR., J.:

This is a petition to review the resolution of the Court of Appeals dated July 19, 1985.

On April 10, 1964, Jose de Luna Gonzales and former Judge Ramon Icasiano were
appointed co-administrators of the estate of Carmen de Luna in Special Proceedings
Case No. 52196.

On March 3, 1968, Judge Icasiano died so Gonzales performed his duties as sole
administrator of the estate.

On February 4, 1980, Gonzales through counsel filed a motion for allowances and
payment of administrator's commission in accordance with Section 7, Rule 85 of the
Rules of Court leaving the matter to the discretion of the court.

On February 13, 1980, the trial court issued an order requiring the administrator to
define the fees he was demanding, furnishing copies to all parties and their respective
counsels who were then required to file their opposition if any, within ten (10) days from
receipt.
On February 23, 1980 Jose de Luna Gonzales died.  His heirs filed in his behalf on
March 10, 1980 an Urgent Supplemental Motion for allowances and payment of
administrator's commission or fees asking the amount of P100,000.00.  Heir Trinidad
Villajuan Vda. de Martinez filed an opposition to which Catalina M. Gonzales, widow of
the late administrator filed a reply.

On May 26, 1980, the heirs of the deceased administrator filed an urgent amended
motion for payment of the deceased judicial administrator's compensation asking for
P500,000.00.  An opposition was filed by heir Trinidad Villayuan vda. de Martinez on the
same date.

Consequently, the trial court issued an order on May 26, 1980 setting the motion for
hearing on May 30, 1980 at 9:00 o'clock in the morning and directing that copies be
served on the parties and their counsel.

On May 30, 1980, the heirs of Esperanza de Luna Gonzales Azupardo and Isidoro de
Luna Gonzales filed their opposition to the motion and presented their witness,
Siegfriedo Azurpardo on July 16, 1980.  On August 20, 1980, Genaro Sevilla, et al. as
movants-intervenors filed their manifestation that they are also opposing the motion and
adopting the memorandum and evidence presented by the other heirs.

On September 30, 1980, the trial court issued an order directing the new administratrix
Catalina M. Gonzales to submit within fifteen (15) days from receipt a complete and
sworn inventory of all the goods, chattels, rights, credits and estate of the deceased
Carmen de Luna, indicating therein the current values of each of these properties and
with respect to the real properties, the current assessed as well as market value
thereof.  The administratrix filed the inventory as of April 30, 1980 where the total of the
real and personal property of the estate was listed at P10,751,189.97.

On October 13, 1980, the trial court issued an order granting the compensation asked
for by the late administrator which reads:
"In view of the foregoing, and for lack of sufficient grounds to deny the compensation
prayed for, the Court hereby grants the amount of Five Hundred Thousand Pesos
(P500,000.00) by way of compensation of the deceased administrator Jose de Luna for
the services rendered by him as such administrator of the estate of Carmen de Luna for
the period from April 10, 1964, up to February 22, 1980, deducting therefrom the sum of
P1,000.00 already paid to him pursuant to this Court's Order dated April 27, 1977, and
authorizing payment of the balance thereof to his heirs, Mrs. Catalina M. Gonzales, and
her children Jose Gonzales, Jr. Carmen G. de Asis and Milagros K. Gonzales, said
amount to be taken out of the available funds of the estate." (Rollo pp. 57-58)
Subsequently, another order dated October 22, 1980 was issued, to wit:

"Acting upon the ‘Urgent Ex-Parte Motion For Authority To Withdraw From Bank

Deposits and To Mortgage Estate Properties’ filed by the administratrix, through
counsel, dated October 15, 1980, and for the purpose of implementing the Order of this
Court on October 13, 1980, the above motion is hereby granted.
Accordingly, the administratrix, Catalina Vda. de Gonzales, is hereby authorized to
satisfy the amount of P500,000.00 which was ordered paid to the heirs of the deceased
administrator Jose de Luna, out of the bank deposits of the estate of Carmen de Luna
with the Filipinas Bank and Trust Company and Philippine Trust Company, authorizing
said administratrix to make a withdrawal and in the event that said deposits are
insufficient to cover said amount, to obtain loans from any reputable lending institution,
offering by way of mortgage or pledge, any property of the estate under administration,
sufficient to satisfy the balance remaining unpaid, after interest and bank charges, and
to inform the court of her compliance herewith." (Rollo, p. 58)

Esperanza de Luna Gonzales Azupardo and Isidoro de Luna Gonzales appealed to the
Court of Appeals.

On September 17, 1982, the Court of Appeals through Justice Gancayco decided in
favor of the administrator and affirmed in toto the orders appealed from.

The appellants then filed a motion for reconsideration of the said decision.

On July 19, 1985, the Court of Appeals speaking through Justice Porfirio Sison modified
the decision promulgated on September 17, 1982 with the following dispositive portion:
"WHEREFORE, in the interest of justice and equity and to protect the estate against
undue or unauthorized waste and exhaustion, which preservation in the end will
redound to the benefit of all the parties, our decision of September 17, 1982 is hereby
modified by adhering to our finding that the late Jose de Luna Gonzales as Judicial
Administrator of the estate of Carmen de Luna in Sp. Proc. No. 52196, is indeed entitled
to his Administrator's fee, but in the reduced and correct amount of P4,312.50 including
the sum of P1,000.00 previously received or still a balance of P3,312.50.  No
pronouncement as to costs." (Rollo, p. 26)
On October 7, 1985, the Court of Appeals denied the motion for reconsideration of the
aforesaid decision filed by the administratrix.

Hence, this petition for review.

The lone assignment of error raised by the petitioner is that “the respondent appellate
court committed serious legal error in the interpretation and application of Section 7,
Rule 85 of the Rules of Court and acted with grave abuse of discretion amounting to
lack or excess of jurisdiction in modifying the previous decision of the Court of Appeals
dated September 17, 1982 by reducing the administrator's commission from
P500,000.100 (as adjudged by the Trial Court and upheld by the then Court of Appeals)
to a mere P4,312.50 by its Resolution dated July 19, 1985.

The issue posed for resolution is whether or not Jose de Luna Gonzales is entitled to
the amount of P500,000.00 by way of compensation as administrator of the estate of
Carmen de Luna.
The opposing views of the parties are summarized by the trial court as follows:
"The last inventory of the late Jose de Luna Gonzales on April 25, 1975 showed a gross
estate in the amount of P890,865.25, and since then not only the personal assets of the
estate increased by way of increments, dividends and interests earned but also the real
properties thereof, by way of additional fishponds, farm lands and coconut lands located
in Bulacan, Bulacan and Catanawan, Quezon which said administrator discovered and
brought to the estate, so much as that property of the estate increased in value.  While it
is true as alleged in their urgent amended motion for payment of the deceased
administrator's compensation, that the value of the estate is conservatively placed at
P2,000,000.00 yet this does not appear to be so, for the inventory as of April 30, 1980
of the present administratrix, Mrs. Catalina M. Gonzales, who is also the wife of the late
administrator, shows that the real and personal estate of the deceased Carmen de Luna
amounts to P10,751,189.97.  This last inventory could have been the same inventory
filed by the late administrator, had he lived longer.  The present administratrix, Mrs.
Catalina Gonzales, was appointed as such on March 28, 1980 and upon taking her oath
of office and filing the corresponding administratrix's bond, was issued the
corresponding letters of administration.  At the hearing of her petition to be appointed
new administratrix of the estate, she claims that during the lifetime of her husband, the
former administrator, their joint efforts led to the discovery of the fishponds, farm lands
and coconut lands in the province of Bulacan and Quezon, and the growth and
accumulation of the assets and properties of the estate were due to their continuous,
dedicated and concerted efforts coupled with the sound and judicious care employed by
them in the management of this estate.  She further testified that the late administrator
had adequately and religiously executed the trust reposed on him, having attended to
the wise, advantageous and safe placement of the funds of the estate, but without
however, neglecting the payment of the estate and real estate taxes, and the
submission of his reports to the Court.

"The claimant-heir, Trinidad Villajuan Vda. de Martinez and the other claimant-heirs

Esperanza de Luna Gonzales Azupardo and Isidoro de Luna Gonzales filed separate
oppositions.  Trinidad Villajuan Vda. de Martinez claims that the counsel for the alleged
heirs of Jose de Luna Gonzales including his surviving wife, administratrix Catalina M.
Gonzales, is the law firm Bausa, Ampil, Suarez, Paredes and Bausa, which is also the
counsel for Centro Escolar University wherein the shares of stocks of said university
form the bulk of the present estate so much so that Attys. Bausa, Ampil, Suarez,
Paredes and Bausa and Ass. have conflict of interests in handling the affairs of their
aforesaid clients and that not only has said law office conflicting interest but likewise its
client, the present administratrix Catalina M. Gonzales, who is at the same time a
claimant of the estate under her administration.  The oppositor further asserts that
claims against the estate can not be filed in the form of an urgent motion but must be
filed as claims against the estate.  It is likewise claimed by the oppositor that the alleged
heirs of Jose de Luna Gonzales had never been substituted as parties in this
proceeding because no motion had ever been filed and no order had been issued for
substitution of the late Jose de Luna Gonzales.  She insinuates that the record of this
case will show that oppositor Trinidad Villajuan Vda. de Martinez had long prayed for
the appointment of Jerry Martinez Hervas as the administrator of the estate because
Jose de Luna Gonzales had long become physically incompetent to administer the
estate; and that while it is true the bulk of the estate consists of the shares of stocks of
the Centro Escolar University, yet the late administrator, Jose de Luna Gonzales, had
nothing to do with the increase in the number of shares of stocks of the Centro Escolar
University, and if ever its value increased, the said administrator had also nothing to do
with the same inasmuch as during the long duration that Jose de Luna Gonzales was
administrator of the estate he never attempted to become a director of Centro Escolar
University; that although the urgent motion speaks of fishponds farm lands and coconut
lands in Bulacan, Bulacan and Catanuan, Quezon, which were discovered and brought
to the estate, there were no titles to said properties and that said administrator and his
counsel had not done anything regarding the same; and that the properties referred to
by them have long been disposed of by the late Carmen de Luna in favor of innocent
third party.

"The other group of claimant-heirs, Esperanza de Luna Gonzales Azupardo and Isidro
de Luna Gonzales claim that the urgent amended motion of the heirs of the deceased
Jose de Luna Gonzales violated the rule on prior notice as required and mandated by
Rule 85 Section 10 of the Rules of Court which provides that ‘before the account of an
administrator is allowed notice shall be given to persons interested of the time and place
of examining and allowing the same’; the said urgent amended motion is not under oath
and in utter disregard of the legal safeguards required under Rule 85 Section 9 of the
Rules of Court which mandates that every matter with respect to account must be under
oath; that movants if allowed compensation should apportion the commission with the
co-administrator; that if there was an increase in the value of the estate or any part
thereof, Sec. 2, Rule 85 strictly prohibits and expressly denies executor or administrator
from profiting thereby; that the value of the estate increased by natural accretion or by
government re-assessment and not thru the efforts of the late administrator; that the
amount being claimed is highly unconscionable and unreasonable and besides it is not
in consonance with the amount specified under Rule 85, Sec. 7 which allows only one-
fourth per cent of the entire value of the estate and which must be allowed only after a
settlement of the estate is finally made; that the amount being claimed as compensation
is not itemized, hence, purely conjectural, hypothetical and without basis in fact and in
law; that in cases where compensation or extraordinary services are claimed, the better
practice is to itemize the account and explain fully in what particulars the services are
extraordinary or unusual; and that the late administrator Jose de Luna Gonzales had
long been compensated by the estate arising from the admitted sale for voting rights of
Centro Escolar University shares, and for this matter this Court may require an
accounting under Rule 85, Sec. 8 of the Rules of Court; and lastly, that as admitted by
movants themselves in their urgent amended motion, that the administration on the
estate spanned a prolonged period of sixteen years and yet the same is not yet closed
or terminated and therefore the administrator should be denied compensation for his
services, for the prolongation of the settlement of the estate is due entirely to his effort
to defraud the heirs, and due to his neglect, the administration has been too expensive."
(Rollo, pp. 61-65)
Section 7, Rules 85 states:
"SEC. 7.  What expenses and fees allowed executor on administrator.  Not to charge
for services as attorney.  Compensation provided by will controls unless renounced.  -
An executor or administrator shall be allowed the necessary expenses in the care,
management, and settlement of the estate, and for his services, four pesos per day for
the time actually and necessarily employed, or a commission upon the value of so much
of the estate as comes into his possession and is finally disposed of by him in the
payment of debts, expenses, legacies, or distributive shares, or by delivery to heirs or
devisees, of two per centum of the first five thousand pesos of such value, one per
centum of so much of such value as exceeds five thousand pesos and does not exceed
thirty thousand pesos, one-half per centum of so much of such value as exceeds thirty
thousand pesos and does not exceed one hundred thousand pesos.  But in any special
case, where the estate is large, and the settlement has been attended with great
difficulty, and has required a high degree of capacity on the part of the executor or
administrator, a greater sum may be allowed.  If objection to the fees allowed be taken,
the allowance may be re-examined on appeal.

If there are two or more executors or administrators, the compensation shall be

apportioned among them by the court according to the services actually rendered by
them respectively.

When the executor or administrator is an attorney, he shall not charge against the
estate any professional fees for legal services rendered by him.

When the deceased by will makes some other provision for the compensation of his
executor, that provision shall be a full satisfaction for his services unless by a written
instrument filed in the court he renounces all claim to the compensation provided by the
will."
Pursuant to the above provision, an administrator is entitled by way of compensation to
the following:

(a)   P4.00 per day "for the time actually and necessarily employed" by him as such
administrator, or

(b)   a "commission upon the value of so much of the estate as comes into his
possession and was finally disposed of by him," according to the schedule therein
provided.

The appellate court in its resolution dated July 19, 1985 arrived at the amount of
P4,313.50 by applying the schedule provided in computing for commissions.  The
respondents also contend that the estimates of the real properties reflected in the
inventory were highly exaggerated to jack-up the asking price and excluded from the
computation of the fee of the administrator the total value of the stocks and cash
deposits of the administrator.  Consequently, it placed the value of the estate at
P1,500,000.00 more or less, the value presented by the lawyers of the administratrix in
their first motion for compensation of de Luna Gonzales, dated March 10, 1980.
We rule otherwise.  The applicable provision is the proviso which states:  "in any special
case, where the estate is large and the settlement has been attended with great
difficulty and has required a high degree of capacity on the part of the executor or
administrator, a greater sum may be allowed." A wide latitude, leeway or discretion is
therefore given to the trial court to grant a greater sum.  And the determination of
whether the administration and liquidation of an estate have been attended with greater
difficulty and have required a high degree of capacity on the part of the executor or
administrator rests on the sound discretion of the court which took cognizance of the
estate.  (Rodriguez v. Silva, 90 Phil. 752 [1952]).  The trial court, in applying this proviso
awarded the sum of P500,000.00 as administrator's compensation.

There appears to be no sound justification why the appellate court should interfere with
the exercise of the trial court's discretion, absent a showing that the trial court
committed any abuse of discretion in granting a greater remuneration to the petitioner. 
The trial court's order is based on substantial evidence and the applicable rule.

In the case of Litton Mills v. Galleon Traders, et al. (G.R. No. 40867, July 26, 1988), this
Court had the occasion to explain:
"An act of a court or tribunal may only be considered as committed in grave abuse of
discretion when the same was performed in a capricious or whimsical exercise of
judgment which is equivalent to lack of jurisdiction.  The abuse of discretion must be so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or
personal hostility.  (Butuan Bay Export Co. v. CA, 97 SCRA 297)."
The records of the case is replete with evidence to prove that the late administrator
Jose de Luna Gonzales had taken good care of the estate and performed his duties
without any complaint from any of the heirs.  In fact, the appellate court agrees with the
trial court as it held.
"xxx While it may be true that the inventory of the properties of the estate as of April 25,
1975 was only P890,865.25 it has been shown that the value of the estate has
increased not only by the efforts of the late administrator to take good care of the same
but in succeeding to locate other properties belonging to the estate so that when he
submitted the inventory of the properties, real and personal of the estate as of April 13,
1980 the total appraisal thereof appears to be over P10M.  No objection thereto appears
to have been interposed." (Rollo, p. 68)
And with regards to the inventory, the respondents did not even present any evidence to
counter or disprove the valuations made so their claim that the estimated P10 million
value of the properties was exaggerated is without basis and purely conjectural.  With
the well settled rule that the findings of the trial court are given great respect, we
therefore sustain the finding that the value of the estate is worth P10 million as found by
the trial court.

Considering the size of the estate and extent of the care given by the administrator, the
amount asked for is not unreasonable and should therefore be allowed.
WHEREFORE, there appearing to be no manifest error or abuse of discretion for the
Court of Appeals to modify the trial court's orders, the resolution of the Intermediate
Appellate Court dated July 19, 1985 is hereby SET ASIDE and its previous decision
dated September 17, 1982 is REINSTATED.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.

[ G.R. No. 74618, September 02, 1992 ]

ANA LIM KALAW, PETITIONER, VS. THE HONORABLE INTERMEDIATE
APPELLATE COURT, THE HONORABLE RICARDO B. DIAZ AND ROSA LIM
KALAW, RESPONDENTS.

DECISION

NOCON, J.:

This is a petition for certiorari, prohibition and mandamus with preliminary injunction to

annul and set aside the decision dated December 27, 1985 of the then Intermediate
Appellate Court[1] affirming the decision of the Regional Trial Court of Manila, Branch 27
in Special Proceeding No. 84520 removing petitioner Ana Lim Kalaw as administratrix
and appointing private respondent Rosa Lim Kalaw in her stead as the administratrix of
the estate of their late father Carlos Lim Kalaw.
It appears on record that Carlos Lim Kalaw died intestate on July 8, 1970.
On June 8, 1972, Victoria Lim Kalaw filed an amended petition for the issuance of
Letters of Administration with the then Court of First Instance of Manila in Special
Proceeding No. 84520 naming Ana Lim Kalaw (63 years old), Victoria Lim Kalaw (57
years old), Pura Lim Kalaw (53 years old) and Rosa Lim Kalaw (43 years old) as the
surviving heirs of the late Carlos Lim Kalaw.
On April 25, 1974, the trial court issued an order appointing petitioner Ana Lim Kalaw as
special administratrix. Consequently, petitioner filed a preliminary inventory of all the
properties which came into her possession as special administratrix of the estate of her
late father on June 3, 1974.
On October 6, 1977, the trial court issued another order appointing petitioner as the
judicial administratrix of said estate and a Letter of Administration was issued to the
petitioner after the latter took her oath of office on November 11, 1977.
Thereafter, Jose Lim filed a motion to require petitioner to render an accounting of her
administration of said estate which was granted by respondent Judge Ricardo Diaz in
an order dated December 8, 1982.
On July 1, 1983, respondent judge issued another order requiring petitioner to render an
accounting of her administration with the express instruction that said order be
personally served upon the petitioner since the order dated December 8, 1982 was
returned to the Court unserved. However, said order was also not received by the
petitioner.
On January 31, 1984, private respondent Rosa Lim Kalaw together with her sisters
Victoria and Pura Lim Kalaw filed a motion to remove petitioner as administratrix of their
father’s estate and to appoint instead private respondent on the ground of negligence
on the part of petitioner in her duties for failing to render an accounting of her
administration since her appointment as administratrix more than six years ago in
violation of Section 8 of Rule 85 of the Revised Rules of Court. The motion was set for
hearing on February 10, 1984.
On February 21, 1984, respondent judge issued another order requiring petitioner to
render an accounting within 30 days from receipt thereof which she did on March 22,
1984. She likewise filed on the same date, her Opposition to the motion praying for her
removal as administratrix alleging that the delay in rendering said accounting was due
to the fact that Judge Carlos Sundiam, who was the judge where the intestate
proceeding was assigned, had then been promoted to the Court of Appeals causing
said sala to be vacated for a considerable length of time, while newly-appointed Judge
Joel Tiongco died of cardiac arrest soon after his appointment to said vacancy, so much
so that she did not know to whom to render an accounting report.
In their Rejoinder and Manifestation, private respondent and her co-movant alleged that
the ground relied upon for petitioner’s removal was not the delay but her failure or
neglect to render an accounting of all the properties which came into her possession as
required under Section 1 of Rule 83 of the Revised Rules of Court.
On January 4, 1985, the trial court rendered a decision, the dispositive portion of which
reads:
“From the foregoing, the Court finds that Administratrix Ana Lim Kalaw violated the
provisions of Section 8, Rule 85 of the Rules of Court for not rendering an account of
her administration within one (1) year from date of receipt of the letters of administration
and this constitutes negligence on her part to perform her duty as Administratrix and
under Section 2, Rule 82 of the Rules of Court, neglect on the part of the administratrix
to render her account is a ground for her removal as an administratrix. Finding the
instant motion to remove Administratrix to be meritorious and well-taken, the same is,
as it is hereby, GRANTED.
WHEREFORE, Administratrix Ana Lim Kalaw is hereby REMOVED as such
Administratrix of the Estate of the late Carlos Lim Kalaw.” [2]
On September 2, 1985, petitioner, without waiting for the resolution of the motion for
reconsideration with the trial court, filed a Petition for Certiorari with Preliminary
Injunction or Restraining Order with the then Intermediate Appellate Court to annul and
set aside the following Orders issued by respondent Judge Diaz, as follows:
“a. Order dated January 4, 1985 removing the Petitioner as Administratrix of the estate
of the late Carlos Lim Kalaw;
b. Order dated April 30, 1985 denying Petitioner’s Motion for Reconsideration of the
Order of January 4, 1985;
c. Order dated May 13, 1985 appointing private Respondent Rosa Lim Kalaw, as
Administratrix of said Estate;
d. Order dated June 19, 1985 directing the tenants and/or lessees of the Carlos Lim
Kalaw building to deposit the rentals in court and authorizing private respondent to
break open the premises in said building.”[3]
On December 27, 1985, the appellate court rendered a decision, the dispositive portion
of which reads:
“WHEREFORE, the petition for certiorari is DENIED. However, respondent Judge is
directed to require private respondent Rosa Lim Kalaw to post the appropriate
administrator’s bond within ten (10) days from notice hereof. With costs against
petitioner.”[4]
On January 21, 1986, petitioner filed a motion for reconsideration of said decision which
was however denied for lack of merit on May 12, 1986.
Hence, this petition alleging grave abuse of discretion on the part of the appellate court
in sustaining respondent Judge Diaz’ order removing her as judicial administratrix
considering that she had already submitted an accounting report covering the period
from December, 1977 to December, 1983 in compliance with respondent’s Judge order.
     Section 8 of Rule 85 of the Revised Rules of Court provides that:
“SEC. 8. When executor or administrator to render account.- Every executor or
administrator shall render an account of his administration within one (1) year from the
time of receiving letters testamentary or of administration, unless the court otherwise
directs because of extensions of time for presenting claims against, or paying the debts
of, the estate, or for disposing of the estate; and he shall render such further accounts
as the court may require until the estate is wholly settled.”
The rendering of an accounting by an administrator of his administration within one year
from his appointment is mandatory, as shown by the use of the word “shall” in said rule.
The only exception is when the Court otherwise directs because of extensions of time
for presenting claims against the estate or for paying the debts or disposing the assets
of the estate, which do not exist in the case at bar.
Furthermore, petitioner’s excuse that the sala where the intestate proceeding was
pending was vacant most of the time deserves scant consideration since petitioner
never attempted to file with said court an accounting report of her administration despite
the fact that at one time or another, Judge Sundiam and Judge Tiongco were presiding
over said sala during their incumbency.
Likewise, her subsequent compliance in rendering an accounting report did not purge
her of her, negligence in not rendering an accounting for more than six years, which
justifies petitioner’s removal as administratrix and the appointment of private respondent
in her place as mandated by Section 2 of Rule 82 of the Rules of Court. [5]
As correctly stated by the appellate court:
“The settled rule is that the removal of an administrator under Section 2 of Rule 82 lies
within the discretion of the Court appointing him. As aptly expressed by the Supreme
Court in the case of Degala vs. Ceniza and Umipig, 78 Phil. 791, ‘the sufficiency of any
ground for removal should thus be determined by said court, whose sensibilities are, in
the first place, affected by any act or omission on the part of the administrator not
comformable to or in disregard of the rules or the orders of the court.’ Consequently,
appellate tribunals are disinclined to interfere with the action taken by a probate court in
the matter of the removal of an executor or administrator unless positive error or gross
abuse of discretion is shown. (Borromeo vs. Borromeo, 97 Phil. 549; Matute vs. Court of
Appeals, 26 SCRA 768.)
In the case at bar, the removal of petitioner as administratrix was on the ground of her
failure for 6 years and 3 months from the time she was appointed as administratrix to
render an accounting of her administration as required by Section 8 of Rule 85 of the
Rules of Court.”[6]
As to petitioner’s contention that she was denied due process when she was removed
as administratrix since no hearing was held on the motion for her removal, this does not
deserve serious consideration. The appellate court’s disposal of this issue is in
accordance with the law and evidence. Said the Court:
“Petitioner’s contention that her removal was without due process is certainly not borne
out by the records. There has been a hearing and, in fact, several pleadings had been
filed by the parties on the issue before the order of removal was issued. Thus, the
motion to remove petitioner as administratrix was filed on January 3, 1984, which
motion was set for hearing on February 10, 1984. Petitioner filed an opposition to the
motion on March 22, 1984. This was followed by a Rejoinder and Manifestation filed on
April 6, 1984 by private respondent. The order for petitioner’s removal was issued on
January 4, 1985, or after almost a year from the time the motion to remove her was
filed. Not satisfied with this order, petitioner filed a motion for reconsideration on
January 14, 1985, to which motion private respondent filed an opposition on January
25, 1985. Petitioner filed a rejoinder to the opposition on February 18, 1985.
Respondent Judge issued his order denying the motion for reconsideration on April 30,
1985. This recital of events indubitably disproves petitioner’s allegation that she was not
afforded due process.”[7]
WHEREFORE, finding no merit in the petition for certiorari, prohibition
and mandamus with preliminary injunction, the same is hereby DENIED. Costs against
petitioner.
SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, and Regalado, JJ., concur.

Melo, J., no part.
[ G.R. No. 160671, April 30, 2008 ]
LUIS L. CO, PETITIONER, VS. HON. RICARDO R. ROSARIO, IN HIS CAPACITY AS
THE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH 66, MAKATI
CITY, ELIZABETH RACHEL CO, ASTRID MELODY CO-LIM, GENEVIEVE CO-CHUN,
CAROL CO, KEVIN CO, EDWARD CO AND THE ESTATE OF LIM SEE TE,
RESPONDENTS.

DECISION

NACHURA, J.:

For the resolution of the Court is a petition for review on certiorari under Rule 45 of the
Rules of Court questioning the October 28, 2003 Decision [1] of the Court of Appeals
(CA) in CA-G.R. SP No. 72055.

The relevant facts and proceedings follow.

On March 4, 1998, the Regional Trial Court (RTC) OF Makati City, Branch 66, in Sp.
Proc. No. M-4615, appointed petitioner and Vicente O. Yu, Sr. as the special
administrators of the estate of the petitioner's father, Co Bun Chun. [2] However, on
motion of the other heirs, the trial court set aside petitioner's appointment as special co-
administrator.[3] Petitioner consequently, nominated his son, Alvin Milton Co (Alvin, for
brevity), for appointment as co-administrator of the estate. [4] On August 31, 1998, the
RTC appointed Alvin as special co-administrator. [5]

Almost four years thereafter, the RTC, acting on a motion [6] filed by one of the heirs,
issued its January 22, 2002 Order[7] revoking and setting aside the appointment of Alvin.
The trial court reasoned that Alvin had become unsuitable to discharge the trust given to
him as special co-administrator because his capacity, ability or competence to perform
the functions of co-administrator had been beclouded by the filing of several criminal
cases against him, which, even if there was no conviction yet, had provided the heirs
ample reason to doubt his fitness to handle the subject estate with utmost fidelity, trust
and confidence.

Aggrieved, petitioner moved for the reconsideration of the said Order, but this was
denied in the RTC Order[8] of May 14, 2002.

Subsequently, petitioner brought the matter to the CA on petition for certiorari under

Rule 65. In the aforesaid challenged October 28, 2003 Decision, [9] the appellate court
affirmed the revocation of the appointment and dismissed the petition. Thus, the instant
petition for review on certiorari under Rule 45.

The petition is bereft of merit.

We affirm the appellate court's ruling that the trial court did not act with grave abuse of
discretion in revoking Alvin's appointment as special co-administrator. Settled is the rule
that the selection or removal of special administrators is not governed by the rules
regarding the selection or removal of regular administrators. [10] Courts may appoint or
remove special administrators based on grounds other than those enumerated in the
Rules, at their discretion.[11] As long as the said discretion is exercised without grave
abuse, higher courts will not interfere with it. [12] This, however, is no authority for the
judge to become partial, or to make his personal likes and dislikes prevail over, or his
passions to rule, his judgment. The exercise of such discretion must be based on
reason, equity, justice and legal principles.[13]

Thus, even if a special administrator had already been appointed, once the court finds
the appointee no longer entitled to its confidence, it is justified in withdrawing the
appointment and giving no valid effect thereto. [14] The special administrator is an officer
of the court who is subject to its supervision and control and who is expected to work for
the best interest of the entire estate, especially with respect to its smooth administration
and earliest settlement. [15]

In this case, we find that the trial court's judgment on the issue of Alvin's removal as
special co-administrator is grounded on reason, equity, justice and legal principle. It is
not characterized by patent and gross capriciousness, pure whim and abuse,
arbitrariness or despotism, as to be correctible by the writ of certiorari.[16] In fact, the
appellate court correctly observed that:
In ruling to revoke the appointment of Alvin Milton Co, the lower court took into
consideration the fiduciary nature of the office of a special administrator which demands
a high degree of trust and confidence in the person to be appointed. The court a quo
observed that, burdened with the criminal charges of falsification of commercial
documents leveled against him (sic), and the corresponding profound duty to defend
himself in these proceedings, Alvin Milton Co's ability and qualification to act as special
co-administrator of the estate of the decedent are beclouded, and the recall of his
appointment is only proper under the attendant circumstances. Such reasoning by the
court a quo finds basis in actual logic and probability. Without condemning the accused
man (sic) as guilty before he is found such by the appropriate tribunal, the court merely
declared that it is more consistent with the demands of justice and orderly processes
that the petitioner's son, who is already bidden to defend himself against criminal
charges for falsification in other fora be relieved of his duties and functions as special
administrator, to avoid conflicts and possible abuse.

The Court finds no grave abuse of discretion attending such ruling, as it was reached
based on the court a quo's own fair assessment of the circumstances attending the
case below, and the applicable laws.[17]
As a final note, the Court observes that this prolonged litigation on the simple issue of
the removal of a special co-administrator could have been avoided if the trial court
promptly appointed a regular administrator. We, therefore, direct the trial court to
proceed with the appointment of a regular administrator as soon as practicable.

WHEREFORE, the petition for review on certiorari is hereby DENIED. The October 28,

2003 Decision of the Court of Appeals in CA-G.R. SP No. 72055 is AFFIRMED.

SO ORDERED.

Ynares-santiago, (Chairperson), Austria-Martinez, Chico-Nazario, and Reyes,

JJ., concur.

[ G.R. No. 187879, July 05, 2010 ]

DALISAY E. OCAMPO, VINCE E. OCAMPO, MELINDA CARLA E. OCAMPO, AND
LEONARDO E. OCAMPO, JR., PETITIONERS, VS. RENATO M. OCAMPO AND
ERLINDA M. OCAMPO, RESPONDENTS.

DECISION

NACHURA, J.:

This petition[1] for review on certiorari under Rule 45 of the Rules of Court seeks to

reverse and set aside the Decision[2] dated December 16, 2008 and the
Resolution[3] dated April 30, 2009 of the Court of Appeals (CA) in CA-G.R. SP No.
104683.  The Decision annulled and set aside the Order dated March 13, 2008 [4] of the
Regional Trial Court (RTC), Branch 24, Biñan, Laguna, in Sp. Proc. No. B-3089; while
the Resolution denied the motion for reconsideration of the Decision.
The Antecedents

Petitioners Dalisay E. Ocampo (Dalisay), Vince E. Ocampo (Vince), Melinda Carla E.

Ocampo (Melinda), and Leonardo E. Ocampo, Jr. (Leonardo, Jr.) are the surviving wife
and the children of Leonardo Ocampo (Leonardo), who died on January 23, 2004. 
Leonardo and his siblings, respondents Renato M. Ocampo (Renato) and Erlinda M.
Ocampo (Erlinda) are the legitimate children and only heirs of the spouses Vicente and
Maxima Ocampo, who died intestate on December 19, 1972 and February 19, 1996,
respectively.  Vicente and Maxima left several properties, mostly situated in Biñan,
Laguna. Vicente and Maxima left no will and no debts.

On June 24, 2004, five (5) months after the death of Leonardo, petitioners initiated a
petition for intestate proceedings, entitled "In Re: Intestate Proceedings of the Estate of
Sps. Vicente Ocampo and Maxima Mercado Ocampo, and Leonardo M. Ocampo," in
the RTC, Branch 24, Biñan, Laguna, docketed as Spec. Proc. No. B-3089. [5]  The
petition alleged that, upon the death of Vicente and Maxima, respondents and their
brother Leonardo jointly controlled, managed, and administered the estate of their
parents.  Under such circumstance, Leonardo had been receiving his share consisting
of one-third (1/3) of the total income generated from the properties of the estate. 
However, when Leonardo died, respondents took possession, control and management
of the properties to the exclusion of petitioners. The petition prayed for the settlement of
the estate of Vicente and Maxima and the estate of Leonardo.  It, likewise, prayed for
the appointment of an administrator to apportion, divide, and award the two estates
among the lawful heirs of the decedents.

Respondents filed their Opposition and Counter-Petition dated October 7, 2004,

[6]
 contending that the petition was defective as it sought the judicial settlement of two
estates in a single proceeding. They argued that the settlement of the estate of
Leonardo was premature, the same being dependent only upon the determination of his
hereditary rights in the settlement of his parents' estate. In their counter-petition,
respondents prayed that they be appointed as special joint administrators of the estate
of Vicente and Maxima.

In an Order dated March 4, 2005,[7] the RTC denied respondents' opposition to the

settlement proceedings but admitted their counter-petition.  The trial court also clarified
that the judicial settlement referred only to the properties of Vicente and Maxima.

Through a Motion for Appointment of Joint Special Administrators dated October 11,

2005,[8] respondents reiterated their prayer for appointment as special joint
administrators of the estate, and to serve as such without posting a bond.

In their Comment dated November 3, 2005, [9] petitioners argued that, since April 2002,
they had been deprived of their fair share of the income of the estate, and that the
appointment of respondents as special joint  administrators would further cause injustice
to them.  Thus, they prayed that, in order to avoid further delay, letters of administration
to serve as joint administrators of the subject estate be issued to respondents and
Dalisay.

In another Motion for Appointment of a Special Administrator dated December 5, 2005,

[10]
 petitioners nominated the Biñan Rural Bank to serve
as special administrator pending resolution of the motion for the issuance of the letters
of administration.

In its June 15, 2006 Order,[11] the RTC appointed Dalisay and Renato as  special joint
administrators of the estate of the deceased spouses, and required them to post a bond
of P200,000.00 each.[12]

Respondents filed a Motion for Reconsideration dated August 1, 2006 [13] of the Order,
insisting that Dalisay was incompetent and unfit to be appointed as administrator of the
estate, considering that she even failed to take care of her husband Leonardo when he
was paralyzed in 1997.  They also contended that petitioners' prayer for Dalisay's
appointment as special administrator was already deemed abandoned upon their
nomination of the Biñan Rural Bank to act as special administrator of the estate.

In their Supplement to the Motion for Reconsideration, [14] respondents asserted their

priority in right to be appointed as administrators being the next of kin of Vicente and
Maxima, whereas Dalisay was a mere daughter-in-law of the decedents and not even a
legal heir by right of representation from her late husband Leonardo.

Pending the resolution of the Motion for Reconsideration, petitioners filed a Motion to
Submit Inventory and Accounting dated November 20, 2006, [15] praying that the RTC
issue an order directing respondents to submit a true inventory of the estate of the
decedent spouses and to render an accounting thereof from the time they took over the
collection of the income of the estate.

Respondents filed their Comment and Manifestation dated January 15, 2007, [16] claiming
that they could not yet be compelled to submit an inventory and render an accounting of
the income and assets of the estate inasmuch as there was still a pending motion for
reconsideration of the June 15, 2006 Order appointing Dalisay as co-special
administratrix with Renato.

In its Order dated February 16, 2007, the RTC revoked the appointment of Dalisay as
co-special administratrix, substituting her with Erlinda.  The RTC took into consideration
the fact that respondents were the nearest of kin of Vicente and Maxima.  Petitioners
did not contest this Order and even manifested in open court their desire for the speedy
settlement of the estate.

On April 23, 2007, or two (2) months after respondents' appointment as

joint special administrators, petitioners filed a Motion for an Inventory and to Render
Account of the Estate,[17] reiterating their stance that respondents, as
joint special administrators, should be directed to submit a true inventory of the income
and assets of the estate.

Respondents then filed a Motion for Exemption to File Administrators' Bond [18] on May
22, 2007, praying that they be allowed to enter their duties
as special administrators without the need to file an administrators' bond due to their
difficulty in raising the necessary amount. They alleged that, since petitioners
manifested in open court that they no longer object to the appointment of respondents
as special co-administrators, it would be to the best interest of all the heirs that the
estate be spared from incurring unnecessary expenses in paying for the bond
premiums.  They also assured the RTC that they would faithfully exercise their duties
as special administrators under pain of contempt should they violate any undertaking in
the performance of the trust of their office.

In an Order dated June 29, 2007,[19] the RTC directed the parties to submit their
respective comments or oppositions to the pending incidents, i.e., petitioners' Motion for
Inventory and to Render Account, and respondents' Motion for Exemption to File
Administrators' Bond.

Respondents filed their Comment and/or Opposition, [20] stating that they have already
filed a comment on petitioners' Motion for Inventory and to Render Account.  They
asserted that the RTC should, in the meantime, hold in abeyance the resolution of this
Motion, pending the resolution of their Motion for Exemption to File Administrators'
Bond.

On October 15, 2007, or eight (8) months after the February 16, 2007 Order appointing
respondents as special joint administrators, petitioners filed a Motion to Terminate or
Revoke the Special Administration and to Proceed to Judicial Partition or Appointment
of Regular Administrator.[21]  Petitioners contended that the special administration was
not necessary as the estate is neither vast nor complex, the properties of the estate
being identified and undisputed, and not involved in any litigation necessitating the
representation of special administrators.  Petitioners, likewise, contended that
respondents had been resorting to the mode of special administration merely to delay
and prolong their deprivation of what was due them.  Petitioners cited an alleged
fraudulent sale by respondents of a real property for P2,700,000.00, which the latter
represented to petitioners to have been sold only for P1,500,000.00, and respondents'
alleged misrepresentation that petitioners owed the estate for the advances to cover the
hospital expenses of Leonardo, but, in fact, were not yet paid.

Respondents filed their Opposition and Comment [22] on March 10, 2008, to which, in
turn, petitioners filed their Reply to Opposition/Comment [23] on March 17, 2008.

In its Order dated March 13, 2008,[24] the RTC granted petitioners' Motion, revoking and
terminating the appointment of Renato and Erlinda as joint special administrators, on
account of their failure to comply with its Order, particularly the posting of the required
bond, and to enter their duties and responsibilities as special administrators, i.e., the
submission of an inventory of the properties and of an income statement of the estate. 
The RTC also appointed Melinda as regular administratrix, subject to the posting of a
bond in the amount of P200,000.00, and directed her to submit an inventory of the
properties and an income statement of the subject estate.  The RTC likewise found that
judicial partition may proceed after Melinda had assumed her duties and responsibilities
as regular administratrix.

Aggrieved, respondents filed a petition for certiorari[25] under Rule 65 of the Rules of

Court before the CA, ascribing grave abuse of discretion on the part of the RTC in (a)
declaring them to have failed to enter the office of special administration despite lapse
of reasonable time, when in truth they had not entered the office because they were
waiting for the resolution of their motion for exemption from bond; (b) appointing
Melinda as regular administratrix, a mere granddaughter of Vicente and Maxima,
instead of them who, being the surviving children of the deceased spouses, were the
next of kin; and (c) declaring them to have been unsuitable for the trust, despite lack of
hearing and evidence against them.

Petitioners filed their Comment to the Petition and Opposition to Application for
temporary restraining order and/or writ of preliminary injunction, [26] reiterating their
arguments in their Motion for the revocation of respondents' appointment as
joint special administrators. Respondents filed their Reply.[27]

On December 16, 2008, the CA rendered its assailed Decision granting the petition
based on the finding that the RTC gravely abused its discretion in revoking respondents'
appointment as joint special administrators without first ruling on their motion for
exemption from bond, and for appointing Melinda as regular administratrix without
conducting a formal hearing to determine her competency to assume as such.  
According to the CA, the posting of the bond is a prerequisite before respondents could
enter their duties and responsibilities as joint special administrators, particularly their
submission of an inventory of the properties of the estate and an income statement
thereon.

Petitioners filed a Motion for Reconsideration of the Decision. [28]  The CA, however,
denied it.  Hence, this petition, ascribing to the CA errors of law and grave abuse of
discretion for annulling and setting aside the RTC Order dated March 13, 2008.
Our Ruling

The pertinent provisions relative to the special administration of the decedents' estate
under the Rules of Court provide--
Sec. 1. Appointment of special administrator. - When there is delay in granting letters
testamentary or of administration by any cause including an appeal from the allowance
or disallowance of a will, the court may appoint a special administrator to take
possession and charge of the estate of the deceased until the questions causing the
delay are decided and executors or administrators appointed. [29]

Sec. 2. Powers and duties of special administrator. - Such special administrator shall

take possession and charge of goods, chattels, rights, credits, and estate of the
deceased and preserve the same for the executor or administrator afterwards
appointed, and for that purpose may commence and maintain suits as administrator. 
He may sell only such perishable and other property as the court orders sold. 
A special administrator shall not be liable to pay any debts of the deceased unless so
ordered by the court.[30]

Sec. 1. Bond to be given before issuance of letters; Amount; Conditions. - Before an

executor or administrator enters upon the execution of his trust, and letters
testamentary or of administration issue, he shall give a bond, in such sum as the court
directs, conditioned as follows:

(a) To make and return to the court, within three (3) months, a true and complete
inventory of all goods, chattels, rights, credits, and estate of the deceased which shall
come to his possession or knowledge or to the possession of any other person for him;

(b) To administer according to these rules, and, if an executor, according to the will of
the testator, all goods, chattels, rights, credits, and estate which shall at any time come
to his possession or to the possession of any other person for him, and from the
proceeds to pay and discharge all debts, legacies, and charges on the same, or such
dividends thereon as shall be decreed by the court;

(c) To render a true and just account of his administration to the court within one (1)
year, and at any other time when required by the court;

(d) To perform all orders of the court by him to be performed. [31]

Sec. 4. Bond of special administrator. - A special administrator before entering upon the

duties of his trust shall give a bond, in such sum as the court directs, conditioned that he
will make and return a true inventory of the goods, chattels, rights, credits, and estate of
the deceased which come to his possession or knowledge, and that he will truly account
for such as are received by him when required by the court, and will deliver the same to
the person appointed executor or administrator, or to such other person as may be
authorized to receive them.[32]

Inasmuch as there was a disagreement as to who should be appointed as administrator

of the estate of Vicente and Maxima, the RTC, acting as a probate court, deemed it
wise to appoint joint special administrators pending the determination of the person or
persons to whom letters of administration may be issued. The RTC was justified in
doing so considering that such disagreement caused undue delay in the issuance of
letters of administration, pursuant to Section 1 of Rule 80 of the Rules of Court. Initially,
the RTC, on June 15, 2006, appointed Renato and Dalisay as
joint special administrators, imposing upon each of them the obligation to post an
administrator's bond of P200,000.00. However, taking into account the arguments of
respondents that Dalisay was incompetent and unfit to assume the office of a special
administratrix and that Dalisay, in effect, waived her appointment when petitioners
nominated Biñan Rural Bank as special administrator, the RTC, on February 16, 2007,
revoked Dalisay's appointment and substituted her with Erlinda.

A special administrator is an officer of the court who is subject to its supervision and

control, expected to work for the best interest of the entire estate, with a view to its
smooth administration and speedy settlement. [33]  When appointed, he or she is not
regarded as an agent or representative of the parties suggesting the appointment. [34] 
The principal object of the appointment of a temporary administrator is to preserve the
estate until it can pass to the hands of a person fully authorized to administer it for the
benefit of creditors and heirs, pursuant to Section 2 of Rule 80 of the Rules of Court. [35]

While the RTC considered that respondents were the nearest of kin to their deceased
parents in their appointment as joint special administrators, this is not a mandatory
requirement for the appointment.  It has long been settled that the selection or removal
of special administrators is not governed by the rules regarding the selection or removal
of regular administrators.[36]  The probate court may appoint or
remove special administrators based on grounds other than those enumerated in the
Rules at its discretion, such that the need to first pass upon and resolve the issues of
fitness or unfitness[37] and the application of the order of preference under Section 6 of
Rule 78,[38] as would be proper in the case of a regular administrator, do not obtain.  As
long as the discretion is exercised without grave abuse, and is based on reason, equity,
justice, and legal principles, interference by higher courts is unwarranted. [39]  The
appointment or removal of special administrators, being discretionary, is thus
interlocutory and may be assailed through a petition for certiorari under Rule 65 of the
Rules of Court.[40]

Granting the certiorari petition, the CA found that the RTC gravely abused its discretion
in revoking respondents' appointment as joint special administrators, and for failing to
first resolve the pending Motion for Exemption to File Administrators' Bond, ratiocinating
that the posting of the administrators' bond is a pre-requisite to respondents' entering
into the duties and responsibilities of their designated office.  This Court disagrees.

It is worthy of mention that, as early as October 11, 2005, in their Motion for
Appointment as Joint Special Administrators, respondents already prayed for their
exemption to post bond should they be assigned as joint special administrators. 
However, the RTC effectively denied this prayer when it issued its June 15, 2006 Order,
designating Renato and Dalisay as special administrators and enjoining them to post
bond in the amount of P200,000.00 each.  This denial was, in effect, reiterated when the
RTC rendered its February 16, 2007 Order substituting Dalisay with Erlinda as special
administratrix.

Undeterred by the RTC's resolve to require them to post their respective administrators'
bonds, respondents filed anew a Motion for Exemption to File Administrators' Bond on
May 22, 2007, positing that it would be to the best interest of the estate of their
deceased parents and all the heirs to spare the estate from incurring the unnecessary
expense of paying for their bond premiums since they could not raise the money
themselves.  To note, this Motion was filed only after petitioners filed a Motion for an
Inventory and to Render Account of the Estate on April 23, 2007.  Respondents then
argued that they could not enter into their duties and responsibilities
as special administrators in light of the pendency of their motion for exemption. In other
words, they could not yet submit an inventory and render an account of the income of
the estate since they had not yet posted their bonds.

Consequently, the RTC revoked respondents' appointment as special administrators for

failing to post their administrators' bond and to submit an inventory and accounting as
required of them, tantamount to failing to comply with its lawful orders.  Inarguably, this
was, again, a denial of respondents' plea to assume their office sans a bond.  The RTC
rightly did so.

Pursuant to Section 1 of Rule 81, the bond secures the performance of the duties and
obligations of an administrator namely: (1) to administer the estate and pay the debts;
(2) to perform all judicial orders; (3) to account within one (1) year and at any other time
when required by the probate court; and (4) to make an inventory within three (3)
months.  More specifically, per Section 4 of the same Rule, the bond is conditioned on
the faithful execution of the administration of the decedent's estate requiring
the special administrator to (1) make and return a true inventory of the goods, chattels,
rights, credits, and estate of the deceased which come to his possession or knowledge;
(2) truly account for such as received by him when required by the court; and (3) deliver
the same to the person appointed as executor or regular administrator, or to such other
person as may be authorized to receive them.

Verily, the administration bond is for the benefit of the creditors and the heirs, as it
compels the administrator, whether regular or special, to perform the trust reposed in,
and discharge the obligations incumbent upon, him.  Its object and purpose is to
safeguard the properties of the decedent, and, therefore, the bond should not be
considered as part of the necessary expenses chargeable against the estate, not being
included among the acts constituting the care, management, and settlement of the
estate.  Moreover, the ability to post the bond is in the nature of a qualification for the
office of administration.[41]

Hence, the RTC revoked respondents' designation as joint special administrators,

especially considering that respondents never denied that they have been in
possession, charge, and actual administration of the estate of Vicente and Maxima
since 2002 up to the present, despite the assumption of Melinda as regular
administratrix.  In fact, respondents also admitted that, allegedly out of good faith and
sincerity to observe transparency, they had submitted a Statement of Cash
Distribution[42] for the period covering April 2002 to June 2006, [43] where they indicated
that Renato had received P4,241,676.00, Erlinda P4,164,526.96, and petitioners
P2,486,656.60, and that the estate had advanced P2,700,000.00 for the hospital and
funeral expenses of Leonardo.[44]  The latter cash advance was questioned by
petitioners in their motion for revocation of special administration on account of the
demand letter[45] dated June 20, 2007 of Asian Hospital and Medical Center addressed
to Dalisay, stating that there still remained unpaid hospital bills in the amount of
P2,087,380.49 since January 2004.  Undeniably, respondents had already been
distributing the incomes or fruits generated from the properties of the decedents' estate,
yet they still failed to post their respective administrators' bonds despite collection of the
advances from their supposed shares. This state of affairs continued even after a
considerable lapse of time from the appointment of Renato as a special administrator of
the estate on June 15, 2006 and from February 16, 2007 when the RTC substituted
Erlinda, for Dalisay, as special administratrix.

What is more, respondents' insincerity in administering the estate was betrayed by the
Deed of Conditional Sale dated January 12, 2004 [46] discovered by petitioners.  This
Deed was executed between respondents, as the only heirs of Maxima, as vendors,
thus excluding the representing heirs of Leonardo, and Spouses Marcus Jose B.
Brillantes and Amelita Catalan-Brillantes, incumbent lessors, as vendees, over a real
property situated in Biñan, Laguna, and covered by Transfer Certificate of Title No. T-
332305 of the Registry of Deeds of Laguna, for a total purchase price of
P2,700,000.00.  The Deed stipulated for a payment of P1,500,000.00 upon the signing
of the contract, and the balance of P1,200,000.00 to be paid within one (1) month from
the receipt of title of the vendees. The contract also stated that the previous contract of
lease between the vendors and the vendees shall no longer be effective; hence, the
vendees were no longer obligated to pay the monthly rentals on the property.  And yet
there is a purported Deed of Absolute Sale [47] over the same realty between
respondents, and including Leonardo as represented by Dalisay, as vendors, and the
same spouses, as vendees, for a purchase price of only P1,500,000.00.  Notably, this
Deed of Absolute Sale already had the signatures of respondents and vendee-
spouses.  Petitioners claimed that respondents were coaxing Dalisay into signing the
same, while respondents said that Dalisay already got a share from this transaction in
the amount of P500,000.00.  It may also be observed that the time of the execution of
this Deed of Absolute Sale, although not notarized as the Deed of Conditional Sale,
might not have been distant from the execution of the latter Deed, considering the
similar Community Tax Certificate Numbers of the parties appearing in both contracts.

Given these circumstances, this Court finds no grave abuse of discretion on the part of
the RTC when it revoked the appointment of respondents as
joint special administrators, the removal being grounded on reason, equity, justice, and
legal principle.  Indeed, even if special administrators had already been appointed, once
the probate court finds the appointees no longer entitled to its confidence, it is justified
in withdrawing the appointment and giving no valid effect thereto. [48]

On the other hand, the Court finds the RTC's designation of Melinda as regular
administratrix improper and abusive of its discretion.

In the determination of the person to be appointed as regular administrator, the

following provisions of Rule 78 of the Rules of Court, state -
Sec. 1. Who are incompetent to serve as executors or administrators. - No person is
competent to serve as executor or administrator who:
(a) Is a minor;

(b) Is not a resident of the Philippines; and

(c) Is in the opinion of the court unfit to execute the duties of the trust by reason of
drunkenness, improvidence, or want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude.

xxxx

Sec. 6. When and to whom letters of administration granted. - If no executor is named in

the will, or the executor or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be granted:
(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the
discretion of the court, or to such person as such surviving husband or wife, or next of
kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for thirty (30) days after the death of the person to apply for administration
or to request that administration be granted to some other person, it may be granted to
one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.

Further, on the matter of contest for the issuance of letters of administration, the
following provisions of Rule 79 are pertinent -
Sec. 2. Contents of petition for letters of administration. - A petition for letters of
administration must be filed by an interested person and must show, so far as known to
the petitioner:
(a) The jurisdictional facts;

(b) The names, ages, and residences of the heirs, and the names and residences of the
creditors, of the decedent;

(c) The probable value and character of the property of the estate;

(d) The name of the person for whom letters of administration are prayed.

But no defect in the petition shall render void the issuance of letters of administration.

Sec. 3. Court to set time for hearing. Notice thereof. - When a petition for letters of
administration is filed in the court having jurisdiction, such court shall fix a time and
place for hearing the petition, and shall cause notice thereof to be given to the known
heirs and creditors of the decedent, and to any other persons believed to have an
interest in the estate, in the manner provided in Sections 3 and 4 of Rule 76.

Sec. 4. Opposition to petition for administration. - Any interested person may, by filing a
written opposition, contest the petition on the ground of the incompetency of the person
for whom letters are prayed therein, or on the ground of the contestant's own right to the
administration, and may pray that letters issue to himself, or to any competent person or
persons named in the opposition.

Sec. 5. Hearing and order for letters to issue. - At the hearing of the petition, it must first
be shown that notice has been given as herein-above required, and thereafter the court
shall hear the proofs of the parties in support of their respective allegations, and if
satisfied that the decedent left no will, or that there is no competent and willing executor,
it shall order the issuance of letters of administration to the party best entitled thereto.

Admittedly, there was no petition for letters of administration with respect to Melinda, as
the prayer for her appointment as co-administrator was embodied in the motion for the
termination of the special administration. Although there was a hearing set for the
motion on November 5, 2007, the same was canceled and reset to February 8, 2008
due to the absence of the parties' counsels.  The February 8, 2008 hearing was again
deferred to March 10, 2008 on account of the ongoing renovation of the Hall of Justice.
Despite the resetting, petitioners filed a Manifestation/Motion dated February 29, 2008,
[49]
 reiterating their prayer for partition or for the appointment of Melinda as regular
administrator and for the revocation of the special administration.  It may be mentioned
that, despite the filing by respondents of their Opposition and Comment to the motion to
revoke the special administration, the prayer for the appointment of Melinda as regular
administratrix of the estate was not specifically traversed in the said pleading.  Thus, the
capacity, competency, and legality of Melinda's appointment as such was not properly
objected to by respondents despite being the next of kin to the decedent spouses, and
was not threshed out by the RTC acting as a probate court in accordance with the
above mentioned Rules.

However, having in mind the objective of facilitating the settlement of the estate of
Vicente and Maxima, with a view to putting an end to the squabbles of the heirs, we
take into account the fact that Melinda, pursuant to the RTC Order dated March 13,
2008, already posted the required bond of P200,000.00 on March 26, 2008, by virtue of
which, Letters of Administration were issued to her the following day, and that she filed
an Inventory of the Properties of the Estate dated April 15, 2008. [50]  These acts clearly
manifested her intention to serve willingly as administratrix of the decedents' estate, but
her appointment should be converted into one of special administration, pending the
proceedings for regular administration.  Furthermore, since it appears that the only
unpaid obligation is the hospital bill due from Leonardo's estate, which is not subject of
this case, judicial partition may then proceed with dispatch.

WHEREFORE, the petition is PARTIALLY GRANTED.  The Decision dated December

16, 2008 and the Resolution dated April 30, 2009 of the Court of Appeals in CA-G.R. SP
No. 104683 are AFFIRMED with the MODIFICATION that the Order dated March 13,
2008 of the Regional Trial Court, Branch 24, Biñan, Laguna, with respect to the
revocation of the special administration in favor of Renato M. Ocampo and Erlinda M.
Ocampo, is REINSTATED.  The appointment of Melinda Carla E. Ocampo as regular
administratrix is SET ASIDE.  Melinda is designated instead as special administratrix of
the estate under the same administrator's bond she had posted.  The trial court is
directed to conduct with dispatch the proceedings for the appointment of the regular
administrator and, thereafter, to proceed with judicial partition.  No costs.

SO ORDERED.

Carpio, (Chairperson), Peralta, Abad, and Mendoza, JJ., concur.

G.R. No. L-14383 November 29, 1919

In re guardianship of the incompetent Jose R. de Inchausti.
CONSUELO RICO VDA. DE INCHAUSTI, petitioner-appellee,
vs.
J. R. DE INCHAUSTI, opponent-appellant.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Claro M. Recto for appellee.

TORRES, J.:
This case was instituted in the Court of First Instance of the city of Manila thru a petition
filed by attorneys Crossfield and O'Brien in behalf of the petitioner, Consuelo Rico viuda
de Inchausti. On January 11, 1911, said petition (without date) was verified before the
notary public, C. W. O'Brien, by A. S. Crossfield and was signed by the law firm of
Crossfield & O'Brien.
Said petition alleges that Jose R. de Inchausti's mother is Maria de Consolacion Rico,
viuda de Inchausti; that Jose R. de Inchausti has become temporarily insane; that he is
now confined in San Lazaro Hospital; that he has considerable real and personal
property; that he is about to receive an inheritance from the partition of the estate of
Rafael de Inchausti; that he is not competent to receive said inheritance that he requires
a guardian for his person and property; that his inheritance, represented primarily by an
interest in the mercantile firm of Inchausti & Co. and secondarily by real estate, is
approximately one hundred seventy five thousand pesos (P175,000). Wherefore the
petitioner prays that, having fulfilled the requirement of law, she be appointed guardian
of the person and property of her said son, Jose R. de Inchausti, after proceedings as
required by law.
With the purpose of hearing said petition the trial court issued an order whose
dispositive and pertinent parts are:
It is ordered, in accordance with section 559 of the Code of Civil Procedure, that
in this court the petition be heard at 10 o'clock in the forenoon of the 18th day of
January, 1915.
 It is ordered also that on the day and at the hour above named the Director of the
San Lazaro Hospital appear before this court and if possible produce the said
Jose R. de Inchausti.
Let this order be made known immediately.
(Sgd.) JAMES A. OSTRAND,
Judge.                              
Received copy of the foregoing notice, Manila, P.I., January 12, 1915.
(Sgd.) F. S. BECK.
(Sgd.) CROSSFIELD & O'BRIEN,
Attorneys for Maria de la Consolacion Rico y Medina.
(Sgd.) A. S. CROSSFIELD as next friend of
Jose R. de Inchausti.
By an order of January 18, 1915, the court declared that the petitioner, Da. Maria de la
Consolacion Rico y Medina viuda de Inchausti (accompanied by Mr. Crossfield, her
counsel, and Dr. A. P. Goff), appeared at said hearing; that she duly proved the petition;
that she was appointed guardian of the demented Jose R. de Inchausti; and that she
was put under bond for one hundred thousand pesos (P100,000).
The said guardian C. R. de Inchausti and Dr. Goff of San Lazaro Hospital were notified
of this decree, and all the requisites for the filing of a bond as well as for the oath of
office and letters of guardianship were duly complied with.
On November 18, 1915, the Spanish Consul in Manila forwarded to the Court of First
Instance of this city a requisitory letter (exhorto) together with a copy of the judgment
from the judge of the Court of First Instance of the Northern District of Barcelona,
(Spain). According to said judgment, in a suit of Jose R. de Inchausti against
Consolacion Medina, involving considerable property, Jose R. de Inchausti was held
mentally sound (being restrained neither by insanity nor mental perturbation) and
therefore possessed of his juridical personality, of his civil capacity and of the free
administration of his property. Wherefore the court declared that Consolacion Rico was
no longer guardian; that she should deliver to him his property; that as guardian she
should present her accounts; and that she should abstain from all administrative acts
over said property.
In said requisitory letter the judge of the Court of First Instance of Barcelona requests
fulfillment in this capital of the foregoing judgment, subject to the provisions of article 11
of the Treaty of Peace of December 10, 1898, between Spain and the United States; of
article 6 of the Treaty of July 3, 1902; and of sections 304 and 311 of the Code of Civil
Procedure. However, said court in Manila refused in an order of April 15, 1916, (fol. 43),
and for the reasons therein assigned, the aforementioned request of the judge of
Barcelona.
The aforementioned guardian presented first her accounts (fol. 65) and next her
resignation. Both were duly approved. Afterwards another guardian was appointed but
presented his resignation shortly after assuming the duties of his office. Having also
approved this resignation, the court reinstated the petitioner, who then filed a
supplementary petition (fol. 74) as follows: That said Inchausti & Co's refusal to deliver
to her predecessor the part of the funds pertaining to Jose R. de Inchausti was because
the guardianship proceedings were unlawful, the aforementioned Jose R. de Inchausti
never having been notified of the hearing of the petition for the appointment of a
guardian; that this reason is groundless because on January 12, 1915, Dr. Goff, the
Director of San Lazaro Hospital, received notice of the date of the hearing of the
aforesaid petition, because on that same day Dr. Goff informed Jose R. de Inchausti of
said notice, and because on the following day, January 13, 1915, Jose R. de Inchausti
being visited by A. S. Crossfield, informed and discussed with this friend said
notification; that in the beginning Jose R. de Inchausti had opposed the appointment of
a guardian but, learning the appointment was necessary for the proper administration of
his property, had consented and requested his mother be appointed; that as Jose R. de
Inchausti's representative said A. S. Crossfield is a member of the law firm Crossfield &
O'Brien; and that for these reasons the record should show the notification to Jose R. de
Inchausti and the proceedings had were regular and in accordance with law.
Before the hearing of the supplementary petition counsel for Jose R. de Inchausti
prayed the court to declare all the proceedings null and Maria de la Consolacion's
petition of January 11, 1915, void as, the court having acquired no right or jurisdiction
over Jose R. de Inchausti, his property can not be considered in "custodiae legis".
The court overruled this motion by order of May 9, 1918, (p. 83, bill of exceptions). Jose
R. de Inchausti's counsel excepted thereto, and, on May 14, 1918, appealed to his High
Court alleging that the lower court erred:
1. On March 26, 1918, in overruling the motion of the supposed incompetent
praying the proceedings had be declared null and void, and the original petition
dismissed.
2. In not declaring null and void of said proceedings and in not dismissing the
original petition giving rise to this controversy.
3. In not reciting in said order the facts duly proven whereon the decision was
based.
Said assignment is based on the fact that appellant was neither notified of the first order
issued by the lower court fixing the hearing of the petition, nor of the others affecting
directly his person and property; that the order of June 16, 1917, was the first that the
court had command be forthwith notified to the appellant; that the appealed order
partakes of the nature of a definite judgment; that in same the court ought to have
recited facts considered proven and a base for his conclusions; and that by not having
so done, the court rendered said order defective and revocable.
In his turn the appellee alleges that Dr. Goff, Director of the San Lazaro Hospital, being
notified of the aforesaid order and following the custom in said hospital, transmitted said
notification through its employees to Jose R. de Inchausti. This allegation is
corroborated both by Dr. Goff's certificate (page 130, record) stating that, according to
his true belief Jose R. de Inchausti was notified in accordance with the custom of the
hospital in analogous cases, and by an affidavit (page 132, record) of A. S. Crossfield
who testified to having visited Jose R. de Inchausti in San Lazaro Hospital on January
13, 1915; to being told by Dr. Goff that said Jose R. de Inchausti had been notified of
the order of January 18, 1915, fixing the hearing of the petition for the appointment of a
guardian, and to Jose R. de Inchausti himself having acknowledge the receipt of said
notice.
The first and principal question that arises from all these allegations is whether, if the
officer of the court, charged with the notification of all order and decrees, had failed to
notify personally Jose R. de Inchausti, this fact does or does not constitute sufficient
ground for declaring null and void all the proceedings had in this cause, in spite of the
fact that the appellant, as an insane patient, was in accordance with custom, notified by
the director of said government institution, San Lazaro Hospital.
Section 559 of the Code of Civil Procedure reads:
When it is represented to a Court of First Instance, or a judge thereof, by petition
verified by oath of any relative or friend, that any person who is an inhabitant or
resident of the province, is insane or is a spendthrift, incompetent to manage his
estate, praying that a guardian may be appointed for such person, such court or
judge must cause a notice to be given to the supposed insane or incompetent
person of the time and place of hearing the petition, not less than five days
before the time so appointed; and such person, if able to attend, must be
produced on the hearing.
According to this statutory provision, the notice of time and place of hearing ought to be
given personally to the supposed demented or spendthrift so, for example, in the case
of Yangco vs. Court of First Instance of Manila and Yangco (29 Phil. Rep., 183), the
court declared null and void all the proceedings had in said case for the reason that said
notice was not given personally to the person alleged to be a spendthrift and
incompetent to manage his property.
However, in order to resolve definitely the present suit, it is necessary to examine the
provision of Act No. 2122, which establishes another procedure, whereby a person may
be declared insane, ordered confined in a hospital or an institution for the insane and
provided with guardian of his person.
Section 4 of the foregoing Act No. 2122 provides:
The Director of Health, in all cases where in his opinion it is for the public welfare
or for the welfare of any person who in his judgment is insane, and when such
person or the person having charged of the patient is opposed to his being taken
to a hospital or other place for the insane, shall present, or cause to be
presented, a petition to the Court of First Instance of the district wherein the
person alleged to be insane is found, alleging that such person is insane, that it is
for the welfare of the public or of the patient that he be taken to a suitable place
for treatment, and praying the court to commit such person to a hospital or other
place for the insane.
The judge of the Court of First Instance shall cause not less than five days' notice
to be given of the date of the hearing of the petition to such alleged insane
person or to the person having care of such alleged insane person, and to such
of his relatives residing in the province or the city of Manila as the judge may
deem proper, and shall order the sheriff to produce the alleged insane person if
able to attend on the hearing. If the judge finds, after due hearing, that the person
in question is insane, and that his relatives are unable for any reason to take
proper custody and care of the patient, he shall order his commitment to such
hospital or other place for the insane as may be recommended by the Director of
Health, and when it appears necessary or convenient he may appoint a guardian
for him as provided in section five hundred and sixty of Act Numbered One
hundred and ninety, entitled "An Act providing a Code of Procedure in Civil
Actions and Special Proceedings in the Philippine Islands." . . . .
According to the provisions of the foregoing section an individual may be declared
insane and a guardian for his person and property may be appointed without service of
personal notice of the date of hearing of the petition for a judicial declaration of judicial
incapacity and for the appointment of a guardian of his person and property, as the
aforesaid law provides for notice to the person having care of such alleged insane
person, thereby considering same sufficient. Whereas, according to section 559 of the
Code of Civil Procedure, such notice must be served personally upon the alleged
insane person, thereby considering as insufficient null and void all other proceedings
outside.
Act No. 2122 was enacted after the Code of Civil Procedure for it was approved on
February 1, 1912, and if these laws are incompatible, Act No. 2122 must necessarily be
followed.
Said Act No. 2122 does not absolutely and expressly repeal section 559 of the Code of
Civil Procedure, but, regarding the transmittal of notice to a supposed demented, these
two Acts are clearly and manifestly incompatible and contradictory. While section 559 of
Act No. 190 requires of Act No. 2122 requires the service of a personal notice either
upon the insane person or upon the person having charge of such incompetent insane.
The Director of Health's intervention in the case of the demented who requires an
urgent and quick administrative action may be preliminary but is entirely independent
and forms no part of the judicial proceedings in Chapter XXVII of said Act No. 190
modified, as far as guardians of insane persons are concerned, by the aforementioned
Act No. 2122. (See sections 1043 to 1050 of the Administrative Code of 1917.)
On account of the urgency of the case — Jose R. de Inchausti having been attacked so
suddenly by insanity — his mother had no time to call upon the Director of Health and
she had even difficulty in securing the assistance of the Director of San Lazaro Hospital
for the care of her son who was in need of immediate vigilance for his own welfare and
for the benefit of her family and of the public. However, in the Court of First Instance her
counsel filed a petition setting forth that which had taken place and praying the
appointment of a guardian for the incompetent. The court, after hearing said petition,
issued the order of January 18, 1915, which was served upon Dr. A. P. Goff, director of
the aforesaid hospital, and the mother-guardian.
If, according to section 4 of Act No. 2122 (supra), service of notice upon the person in
charge of the insane is sufficient and if the aforementioned order of January 18 was
duly served upon the Director of the San Lazaro Hospital where Inchausti was confined,
then clearly the motion to declare null and void all proceedings had, upon the ground of
the trial judge having acted without his jurisdiction, had no legal foundation. Act No.
2122, amending (by implication) section 559 of Act No. 190, does not require absolutely
the personal service of notice to the insane, but either to the insane or to the person in
charge of him.
The case of Yangco vs. Court of First Instance of Manila and Yangco (29 Phil. Rep.,
183) above mentioned deals with the appointment of a guardian for an alleged
spendthrift, a proposition quite different from the appointment of a guardian for an
alleged insane person who in the ordinary course of human events cannot possibly be
given a notice. True, the mere fact that a person is alleged insane is not conclusive of
insanity. However, if this principle be observed in theory for effecting judicial
intervention, in many instances, to follow same in practice would be impossible,
useless, prejudicial and even dangerous. On the other hand, the right of the insane is
not prejudiced by service of notice upon either the person or relative having in charge.
When section 559 of Act No. 190 was amended by Act No. 2122, establishing a
different practice for service upon an incompetent, the legislator had this in mind.
Therefore, the service upon the Director of the San Lazaro Hospital of the notice of the
order appointing a guardian for Jose R. de Inchausti is beyond a doubt sufficient, and
the provisions of the law now in force was thereby complied with, and the trial judge
acquired jurisdiction in the premises.
In fact it appears in the record, admitted by the appellant, that the order, fixing the date
of the hearing of the petition giving rise to this suit, was served upon the Director of the
San Lazaro Hospital wherein Jose R. de Inchausti was then confined suffering from
insanity. It also appears from said Director's certificate and Attorney Crossfield's
affidavit, at no time impugned by the appellant that the aforementioned notice
immediately delivered to said appellant who made no effort to deny or contradict it. The
Director of San Lazaro Hospital being the person having charge of the appellant, then it
is obvious that the law was duly complied with.
Nevertheless, the appellant alleges that the petition, being verified by Attorney A. S.
Crossfield and not by a relative or a friend, was not verified by oath as required by law.
But in same oath of A. S. Crossfield it appears that he is a friend of the appellant
alleged to be incompetent just what is required by the provision of section 559 of the
Code of Civil Procedure. Therefore, the lower court acquired jurisdiction over the
appellant's person and committed no error both in dismissing the motion to declare null
and void all proceedings had and in declaring of no effect said petition, the origin of this
suit.
True, the facts and conclusion upon which the court's decision was based do not appear
in the order of May 9, 1918. But we have considered just the recital in this opinion of
what said court failed to do, in order to show the legality of the decree appealed from,
because said order, a resolution of a motion, has in effect judicially decided all the
proceedings had in this case, the previous decrees and orders of January 18 and July
6, 1915, of April 15, 1916, and on February 16, 1918. Further, if a return to the court of
origin for the amendment of said judicial decree so as to recite the facts and
conclusions upon which same was based, were made, this case, begun in January,
1915, would be unduly and unnecessarily prolonged; the amended decree would be
written upon the same consideration and; and a decree, whose dispositive parts are in
harmony with the merits of the case and of the law similar to the one now appealed,
would result.
For the foregoing reasons, the order of May 9, 1918, is hereby affirmed with costs.
Street, Malcolm, Avanceña and Moir, JJ., concur.
G.R. No. 188801
ROSARIO MATA CASTRO and JOANNE BENEDICTA CHARISSIMA M. CASTRO,
A.K.A. "MARIA SOCORRO M. CASTRO" and "JAYROSE M. CASTRO", Petitioners
vs.
JOSE MARIA JED LEMUEL GREGORIO and ANA MARIA REGINA GREGORIO,
Respondents
DECISION
LEONEN, J.:
The policy of the law is clear. In order to maintain harmony, there must be a showing of
notice and consent. This cannot be defeated by mere procedural devices. In all
instances where it appears that a spouse attempts to adopt a child out of wedlock, the
other spouse and other legitimate children must be personally notified through personal
service of summons. It is not enough that they be deemed notified through constructive
service.
This is a petition for review on certiorari1 assailing the decision2 of the Court of Appeals
in CA-G.R. SP No. 101021, which denied the petition for annulment of judgment filed by
petitioners. The petition before the appellate court sought to annul the judgment of the
trial court that granted respondents’ decree of adoption. 3
The case originally stemmed from the adoption of Jose Maria Jed Lemuel Gregorio
(Jed) and Ana Maria Regina Gregorio (Regina) by Atty. Jose G. Castro (Jose). Jose is
the estranged husband of Rosario Mata Castro (Rosario) and the father of Joanne
Benedicta Charissima M. Castro (Joanne), also known by her baptismal name, "Maria
Socorro M. Castro" and her nickname, "Jayrose."
Rosario alleged that she and Jose were married on August 5, 1962 in Laoag City. Their
marriage had allegedly been troubled. They had a child, Rose Marie, who was born in
1963, but succumbed to congenital heart disease and only lived for nine days. Rosario
allegedly left Jose after a couple of months because of the incompatibilities between
them.4
Rosario and Jose, however, briefly reconciled in 1969. Rosario gave birth to Joanne a
year later. She and Jose allegedly lived as husband and wife for about a year even if
she lived in Manila and Jose stayed in Laoag City. Jose would visit her in Manila during
weekends. Afterwards, they separated permanently because Rosario alleged that Jose
had homosexual tendencies.5 She insisted, however, that they "remained friends for
fifteen (15) years despite their separation(.)" 6
On August 1, 2000, Jose filed a petition 7 for adoption before the Regional Trial Court of
Batac, Ilocos Norte. In the petition, he alleged that Jed and Regina were his illegitimate
children with Lilibeth Fernandez Gregorio (Lilibeth), 8 whom Rosario alleged was his
erstwhile housekeeper.9
At the time of the filing of the petition, Jose was 70 years old. 10 According to the Home
Study Report11 conducted by the Social Welfare Officer of the trial court, Jose belongs
to a prominent and respected family, being one of the three children of former Governor
Mauricio Castro.
He was also a well-known lawyer in Manila and Ilocos Norte. 12 The report mentioned
that he was once married to Rosario, but the marriage did not produce any children. 13 It
also stated that he met and fell in love with Lilibeth in 1985, and Lilibeth was able to
bear him two children, Jed on August 1987, and Regina on March 1989. 14 Under
"Motivation for Adoption," the social welfare officer noted:
Since, he has no child with his marriaged [sic] to Rosario Mata, he was not able to fulfill
his dreams to parent a child. However, with the presence of his 2 illegitimate children
will fulfill his dreams [sic] and it is his intention to legalize their relationship and
surname. . . .15
At the time of the report, Jose was said to be living with Jed and Regina temporarily in
Batac, Ilocos Norte.16 The children have allegedly been in his custody since Lilibeth’s
death in July 1995.17
On October 16, 2000, the trial court approved the adoption,18 having ruled that "[n]o
opposition had been received by this Court from any person including the government
which was represented by the Office of the Solicitor General." 19 A certificate of
finality20 was issued on February 9, 2006.
Meanwhile, on July 3, 2006, Rosario, through her lawyer, Atty. Rene V. Saguisag, filed
a complaint for disbarment against Jose with the Integrated Bar of the Philippines. 21 In
her complaint, she alleged that Jose had been remiss in providing support for their
daughter, Joanne, for the past 36 years. 22 She alleged that she single-handedly raised
and provided financial support to Joanne while Jose had been showering gifts to his
driver and alleged lover, Larry R. Rentegrado (Larry), and even went to the extent of
adopting Larry’s two children, Jed and Regina, without her and Joanne’s knowledge and
consent.23 She also alleged that Jose made blatant lies to the trial court by alleging that
Jed and Regina were his illegitimate children with Larry’s wife, Lilibeth, to cover up for
his homosexual relationship with Larry.24
In his answer before the Integrated Bar of the Philippines, Jose denies being remiss in
his fatherly duties to Joanne during her minority. He alleged that he always offered help,
but it was often declined.25 He also alleged that he adopted Jed and Regina because
they are his illegitimate children. He denied having committed any of the falsification
alluded to by Rosario. He also stated that he had suffered a stroke in 1998 that left him
paralyzed. He alleged that his income had been diminished because several properties
had to be sold to pay for medical treatments. 26 He then implored the Integrated Bar of
the Philippines to weigh on the case with "justice and equity." 27
On October 8, 2006, Jose died in Laoag City, Ilocos Norte. 28
On October 18, 2007, Rosario and Joanne filed a petition for annulment of judgment
under Rule 47 of the Rules of Civil Procedure with the Court of Appeals, seeking to
annul the October 16, 2000 decision of the trial court approving Jed and Regina’s
adoption.29
In their petition, Rosario and Joanne allege that they learned of the adoption sometime
in 2005.30 They allege that Rosario’s affidavit of consent, marked by the trial court as
"Exh. K,"31 was fraudulent.32 They also allege that Jed and Regina’s birth certificates
showed different sets of information, such as the age of their mother, Lilibeth, at the
time she gave birth. They argue that one set of birth certificates states the father to be
Jose and in another set of National Statistic Office certificates shows the father to be
Larry, Jose’s driver and alleged lover.33 It was further alleged that Jed and Regina are
not actually Jose’s illegitimate children but the legitimate children of Lilibeth and Larry
who were married at the time of their birth.34 On May 26, 2009, the Court of Appeals
denied the petition.
While admittedly, no notice was given by the trial court to Rosario and Joanne of the
adoption, the appellate court ruled that there is "no explicit provision in the rules that the
spouse and legitimate child of the adopter . . . should be personally notified of the
hearing."35
The appellate court "abhor[red] the mind baffling scheme employed by [Jose] in
obtaining an adoption decree in favor of [his illegitimate children] to the prejudice of the
interests of his legitimate heirs"36 but stated that its hands were bound by the trial court
decision that had already attained "finality and immutability." 37
The appellate court also ruled that the alleged fraudulent information contained in the
different sets of birth certificates required the determination of the identities of the
persons stated therein and was, therefore, beyond the scope of the action for
annulment of judgment. The alleged fraud was also perpetrated during the trial and
could not be classified as extrinsic fraud, which is required in an action for annulment of
judgment.38
When Rosario and Joanne’s motion for reconsideration was denied on July 10,
2009,39 they filed this petition.
The issue before this court is whether the Court of Appeals erred in denying the petition
for annulment for failure of petitioners to (1) show that the trial court lacked jurisdiction
and (2) show the existence of extrinsic fraud.
In their petition, petitioners argue that the appellate court erred in its application of the
law on extrinsic fraud as ground to annul a judgment. 40 They argue that because of the
fabricated consent obtained by Jose and the alleged false information shown in the birth
certificates presented as evidence before the trial court, 41 they were not given the
opportunity to oppose the petition since the entire proceedings were concealed from
them.42
Petitioners also argue that the appellate court misunderstood and misapplied the law on
jurisdiction despite the denial of due process, notice, and non-inclusion of indispensable
parties.43 They argue that the adoption of illegitimate children requires the consent, not
only of the spouse, but also the legitimate children 10 years or over of the adopter, and
such consent was never secured from Joanne.44
Respondents, however, argue in their comment that petitioners could not have been
deprived of their day in court since their interest was "amply protected by the
participation and representation of the Solicitor General through the deputized public
prosecutor."45
Respondents also argue that there was constructive notice through publication for three
consecutive weeks in a newspaper of general circulation, which constitutes not only
notice to them but also notice to the world of the adoption proceedings. 46 They argue
that since the alleged fraud was perpetrated during the trial, it cannot be said to be
extrinsic fraud but intrinsic fraud, which is not a ground for annulment of
judgment.47 They also argue that petitioners were not indispensable parties because
adoption is an action in rem and, as such, the only indispensable party is the state. 48
The petition is granted.
Annulment of judgment under Rule
47 of the Rules of Civil Procedure
Under Rule 47, Section 1 of the Rules of Civil Procedure, a party may file an action with
the Court of Appeals to annul judgments or final orders and resolutions in civil actions of
Regional Trial Courts. This remedy will only be available if "the ordinary remedies of
new trial, appeal, petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner."49
In Dare Adventure Farm Corporation v. Court of Appeals: 50
A petition for annulment of judgment is a remedy in equity so exceptional in nature that
it may be availed of only when other remedies are wanting, and only if the judgment,
final order or final resolution sought to be annulled was rendered by a court lacking
jurisdiction or through extrinsic fraud. Yet, the remedy, being exceptional in character, is
not allowed to be so easily and readily abused by parties aggrieved by the final
judgments, orders or resolutions. The Court has thus instituted safeguards by limiting
the grounds for the annulment to lack of jurisdiction and extrinsic fraud, and by
prescribing in Section 1 of Rule 47 of the Rules of Court that the petitioner should show
that the ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the petitioner. A petition for
annulment that ignores or disregards any of the safeguards cannot prosper.
The attitude of judicial reluctance towards the annulment of a judgment, final order or
final resolution is understandable, for the remedy disregards the time-honored doctrine
of immutability and unalterability of final judgments, a solid corner stone in the
dispensation of justice by the courts. The doctrine of immutability and unalterability
serves a two-fold purpose, namely: (a) to avoid delay in the administration of justice and
thus, procedurally, to make orderly the discharge of judicial business; and (b) to put an
end to judicial controversies, at the risk of occasional errors, which is precisely why the
courts exist. As to the first, a judgment that has acquired finality becomes immutable
and unalterable and is no longer to be modified in any respect even if the modification is
meant to correct an erroneous conclusion of fact or of law, and whether the modification
is made by the court that rendered the decision or by the highest court of the land. As to
the latter, controversies cannot drag on indefinitely because fundamental considerations
of public policy and sound practice demand that the rights and obligations of every
litigant must not hang in suspense for an indefinite period of time. 51 (Emphasis supplied)
Because of the exceptional nature of the remedy, there are only two grounds by which
annulment of judgment may be availed of: extrinsic fraud, which must be brought four
years from discovery, and lack of jurisdiction, which must be brought before it is barred
by estoppel or laches.52
Lack of jurisdiction under this rule means lack of jurisdiction over the nature of the
action or subject matter, or lack of jurisdiction over the parties. 53 Extrinsic fraud, on the
other hand, is "[that which] prevents a party from having a trial or from presenting his
entire case to the court, or [that which] operates upon matters pertaining not to the
judgment itself but to the manner in which it is procured." 54
The grant of adoption over respondents should be annulled as the trial court did not
validly acquire jurisdiction over the proceedings, and the favorable decision was
obtained through extrinsic fraud.
Jurisdiction over adoption
proceedings vis-à-vis the law on
adoption
Petitioners argue that they should have been given notice by the trial court of the
adoption, as adoption laws require their consent as a requisite in the proceedings.
Petitioners are correct.
It is settled that "the jurisdiction of the court is determined by the statute in force at the
time of the commencement of the action."55 As Jose filed the petition for adoption on
August 1, 2000, it is Republic Act No. 855256 which applies over the proceedings. The
law on adoption requires that the adoption by the father of a child born out of wedlock
obtain not only the consent of his wife but also the consent of his legitimate children.
Under Article III, Section 7 of Republic Act No. 8552, the husband must first obtain the
consent of his wife if he seeks to adopt his own children born out of wedlock:
 ARTICLE III
ELIGIBILITY
SEC. 7. Who May Adopt. — The following may adopt:
....
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided,
however, That the other spouse has signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other. . . (Emphasis supplied)
The provision is mandatory. As a general rule, the husband and wife must file a joint
petition for adoption. The rationale for this is stated in In Re: Petition for Adoption of
Michelle P. Lim:57
The use of the word "shall" in the above-quoted provision means that joint adoption by
the husband and the wife is mandatory. This is in consonance with the concept of joint
parental authority over the child which is the ideal situation. As the child to be adopted is
elevated to the level of a legitimate child, it is but natural to require the spouses to adopt
jointly. The rule also insures harmony between the spouses. 58
The law provides for several exceptions to the general rule, as in a situation where a
spouse seeks to adopt his or her own children born out of wedlock. In this instance, joint
adoption is not necessary. However, the spouse seeking to adopt must first obtain the
consent of his or her spouse.
In the absence of any decree of legal separation or annulment, Jose and Rosario
remained legally married despite their de facto separation. For Jose to be eligible to
adopt Jed and Regina, Rosario must first signify her consent to the adoption. Jose,
however, did not validly obtain Rosario’s consent. His submission of a fraudulent
affidavit of consent in her name cannot be considered compliance of the requisites of
the law. Had Rosario been given notice by the trial court of the proceedings, she would
have had a reasonable opportunity to contest the validity of the affidavit. Since her
consent was not obtained, Jose was ineligible to adopt.
The law also requires the written consent of the adopter’s children if they are 10 years
old or older. In Article III, Section 9 of Republic Act No. 8552:
SEC. 9. Whose Consent is Necessary to the Adoption. — After being properly
counseled and informed of his/her right to give or withhold his/her approval of the
adoption, the written consent of the following to the adoption is hereby required: . . . .
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the
adopter(s) and adoptee, if any; (Emphasis supplied)
The consent of the adopter’s other children is necessary as it ensures harmony among
the prospective siblings. It also sufficiently puts the other children on notice that they will
have to share their parent’s love and care, as well as their future legitimes, with another
person.
It is undisputed that Joanne was Jose and Rosario’s legitimate child and that she was
over 10 years old at the time of the adoption proceedings. Her written consent,
therefore, was necessary for the adoption to be valid.
To circumvent this requirement, however, Jose manifested to the trial court that he and
Rosario were childless, thereby preventing Joanne from being notified of the
proceedings. As her written consent was never obtained, the adoption was not valid.
For the adoption to be valid, petitioners’ consent was required by Republic Act No.
8552.1âwphi1 Personal service of summons should have been effected on the spouse
and all legitimate children to ensure that their substantive rights are protected. It is not
enough to rely on constructive notice as in this case. Surreptitious use of procedural
technicalities cannot be privileged over substantive statutory rights.
Since the trial court failed to personally serve notice on Rosario and Joanne of the
proceedings, it never validly acquired jurisdiction.
There was extrinsic fraud
The appellate court, in denying the petition, ruled that while fraud may have been
committed in this case, it was only intrinsic fraud, rather than extrinsic fraud. This is
erroneous.
In People v. Court of Appeals and Socorro Florece:59
Extrinsic fraud refers to any fraudulent act of the prevailing party in litigation committed
outside of the trial of the case, whereby the defeated party is prevented from fully
exhibiting his side of the case by fraud or deception practiced on him by his
opponent, such as by keeping him away from court, by giving him a false promise of
a compromise, or where the defendant never had the knowledge of the suit, being kept
in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without
authority connives at his defeat.60 (Emphasis supplied)
An action for annulment based on extrinsic fraud must be brought within four years from
discovery.61 Petitioners alleged that they were made aware of the adoption only in 2005.
The filing of this petition on October 18, 2007 is within the period allowed by the rules.
The badges of fraud are present in this case.
First, the petition for adoption was filed in a place that had no relation to any of the
parties. Jose was a resident of Laoag City, Ilocos Norte. 62 Larry and Lilibeth were
residents of Barangay 6, Laoag City.63 Jed and Regina were born in San Nicolas, Ilocos
Norte.64 Rosario and Joanne were residents of Parañaque City, Manila. 65 The petition
for adoption, however, was filed in the Regional Trial Court of Batac, Ilocos Norte. 66 The
trial court gave due course to the petition on Jose’s bare allegation in his petition that he
was a resident of Batac,67 even though it is admitted in the Home Study Report that he
was a practicing lawyer in Laoag City.68
Second, using the process of delayed registration, 69 Jose was able to secure birth
certificates for Jed and Regina showing him to be the father and Larry as merely the
informant.70 Worse still is that two different sets of fraudulent certificates were procured:
one showing that Jose and Lilibeth were married on December 4, 1986 in Manila, 71 and
another wherein the portion for the mother’s name was not filled in at all. 72 The birth
certificates of Jed and Regina from the National Statistics Office, however, show that
their father was Larry R. Rentegrado.73 These certificates are in clear contradiction to
the birth certificates submitted by Jose to the trial court in support of his petition for
adoption.
Third, Jose blatantly lied to the trial court when he declared that his motivation for
adoption was because he and his wife, Rosario, were childless, 74 to the prejudice of
their daughter, Joanne. The consent of Rosario to the adoption was also disputed by
Rosario and alleged to be fraudulent. 75
All these tactics were employed by Jose, not only to induce the trial court in approving
his petition, but also to prevent Rosario and Joanne from participating in the
proceedings or opposing the petition.
The appellate court erroneously classified the fraud employed by Jose as intrinsic on
the basis that they were "forged instruments or perjured testimonies" 76 presented during
the trial. It failed to understand, however, that fraud is considered intrinsic when the
other party was either present at the trial or was a participant in the proceedings when
such instrument or testimony was presented in court, thus:
[I]ntrinsic fraud refers to the acts of a party at a trial that prevented a fair and just
determination of the case, but the difference is that the acts or things, like falsification
and false testimony, could have been litigated and determined at the trial or adjudication
of the case. In other words, intrinsic fraud does not deprive the petitioner of his day in
court because he can guard against that kind of fraud through so many means,
including a thorough trial preparation, a skillful cross-examination, resorting to the
modes of discovery, and proper scientific or forensic applications. Indeed, forgery of
documents and evidence for use at the trial and perjury in court testimony have been
regarded as not preventing the participation of any party in the proceedings, and are
not, therefore, constitutive of extrinsic fraud.77 (Emphasis supplied)
When fraud is employed by a party precisely to prevent the participation of any other
interested party, as in this case, then the fraud is extrinsic, regardless of whether the
fraud was committed through the use of forged documents or perjured testimony during
the trial.
Jose’s actions prevented Rosario and Joanne from having a reasonable opportunity to
contest the adoption. Had Rosario and Joanne been allowed to participate, the trial
court would have hesitated to grant Jose’s petition since he failed to fulfill the necessary
requirements under the law. There can be no other conclusion than that because of
Jose’s acts, the trial court granted the decree of adoption under fraudulent
circumstances.
The law itself provides for penal sanctions for those who violate its provisions. Under
Article VII, Section 21 of Republic Act No. 8552:
ARTICLE VII
VIOLATIONS AND PENALTIES
SEC. 21. Violations and Penalties. —
(a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve
(12) years and/or a fine not less than Fifty thousand pesos (P50,000.00), but not more
than Two hundred thousand pesos (P200,000.00) at the discretion of the court shall be
imposed on any person who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper
material inducement, or other similar acts;
(ii) non-compliance with the procedures and safeguards provided by the law for
adoption; or
(iii)subjecting or exposing the child to be adopted to danger, abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of the birth of a child under the
name(s)of a person(s) who is not his/her biological parents(s) shall be guilty of
simulation of birth, and shall be punished by prision mayorin its medium period and a
fine not exceeding Fifty thousand peso (P50,000.00). (Emphasis supplied)
Unfortunately, Jose's death carried with it the extinguishment of any of his criminal
liabilities.78 Republic Act No. 8552 also fails to provide any provision on the status of
adoption decrees if the adoption is found to have been obtained fraudulently. Petitioners
also cannot invoke Article VI, Section 19 of Republic Act No. 8552 79 since rescission of
adoption can only be availed of by the adoptee. Petitioners, therefore, are left with no
other remedy in law other than the annulment of the judgment.
The fraud employed in this case has been to Joanne's prejudice. There is reason to
believe that Joanne has grown up having never experienced the love and care of a
father, her parents having separated a year after her birth. She has never even
benefited from any monetary support from her father. Despite all these adversities,
Joanne was able to obtain a medical degree from the University of the Philippines
College of Medicine80 and is now working as a doctor in Canada.81 These
accomplishments, however, are poor substitutes if the injustice done upon her is
allowed to continue.
WHEREFORE, the petition is GRANTED. The decision dated October 16, 2000 of the
Regional Trial Court of Batac, Ilocos Norte, Branch 17 in SP. Proc. No. 3445-17 is
rendered NULL and VOID.
SO ORDERED.
G.R. No. 148788 November 23, 2007
SOLEDAD CAÑEZO, substituted by WILLIAM CAÑEZO and VICTORIANO
CAÑEZO Petitioners,
vs.
CONCEPCION ROJAS, Respondent.
DECISION
NACHURA, J.:
This is a petition for review on certiorari from the Decision 1 of the Court of Appeals,
dated September 7, 2000, in CA-G.R. SP No. 53236, and Resolution dated May 9,
2001.
On January 29, 1997, petitioner Soledad Cañezo filed a Complaint 2 for the recovery of
real property plus damages with the Municipal Trial Court (MTC) of Naval, Biliran,
against her father’s second wife, respondent Concepcion Rojas. The subject property is
an unregistered land with an area of 4,169 square meters, situated at Higatangan,
Naval, Biliran. Cañezo attached to the complaint a Joint Affidavit 3 executed on May 10,
1979 by Isidro Catandijan and Maximina Cañezo attesting to her acquisition of the
property.
In her complaint, the petitioner alleged that she bought the parcel of land in 1939 from
Crisogono Limpiado, although the transaction was not reduced into writing. Thereafter,
she immediately took possession of the property. When she and her husband left for
Mindanao in 1948, she entrusted the said land to her father, Crispulo 4 Rojas, who took
possession of, and cultivated, the property. In 1980, she found out that the respondent,
her stepmother, was in possession of the property and was cultivating the same. She
also discovered that the tax declaration over the property was already in the name of
Crispulo Rojas.5
In her Answer, the respondent asserted that, contrary to the petitioner’s claim, it was her
husband, Crispulo Rojas, who bought the property from Crisogono Limpiado in 1948,
which accounts for the tax declaration being in Crispulo’s name. From then on, until his
death in 1978, Crispulo possessed and cultivated the property. Upon his death, the
property was included in his estate, which was administered by a special administrator,
Bienvenido Ricafort. The petitioner, as heir, even received her share in the produce of
the estate. The respondent further contended that the petitioner ought to have
impleaded all of the heirs as defendants. She also argued that the fact that petitioner
filed the complaint only in 1997 means that she had already abandoned her right over
the property.6
On July 3, 1998, after hearing, the MTC rendered a Decision in favor of the petitioner,
thus:
WHEREFORE, premises considered, the Court finds a preponderance of evidence in
favor of plaintiff Soledad Cañezo and against defendant Concepcion Rojas by declaring
plaintiff the true and lawful owner of the land more particularly described under
paragraph 5 of the complaint and hereby orders defendant Concepcion Rojas:
a) To vacate and surrender possession of the land to plaintiff;
b) To pay plaintiff the sum of ₱34,000.00 actual damages, ₱10,000.00 for
attorney’s fees and litigation expenses; and
c) To pay the costs.
SO ORDERED.7
Despite the respondent’s objection that the verbal sale cannot be proven without
infringing the Statute of Frauds, the MTC gave credence to the testimony of the
petitioners’ two witnesses attesting to the fact that Crisogono Limpiado sold the property
to the petitioner in 1939. The MTC also found no evidence to show that Crispulo Rojas
bought the property from Crisogono Limpiado in 1948. It held that the 1948 tax
declaration in Crispulo’s name had little significance on respondent’s claim, considering
that in 1948, the "country was then rehabilitating itself from the ravages of the Second
World War" and "the government was more interested in the increase in tax collection
than the observance of the niceties of law." 8
The respondent appealed the case to the Regional Trial Court (RTC) of Naval, Biliran.
On October 12, 1998, the RTC reversed the MTC decision on the ground that the action
had already prescribed and acquisitive prescription had set in. The dispositive portion of
the Decision reads:
WHEREFORE, premises considered, the decision of the Municipal Trial Court of Naval,
Biliran awarding ownership of the disputed land to the plaintiff and further allowing
recovery of damages is hereby REVERSED in toto. There is no award of damages.
The said property remains as the legitime of the defendant Concepcion Rojas and her
children.
SO ORDERED.9
However, acting on petitioner’s motion for reconsideration, the RTC amended its
original decision on December 14, 1998. 10 This time, it held that the action had not yet
prescribed considering that the petitioner merely entrusted the property to her father.
The ten-year prescriptive period for the recovery of a property held in trust would
commence to run only from the time the trustee repudiates the trust. The RTC found no
evidence on record showing that Crispulo Rojas ever ousted the petitioner from the
property. The dispositive portion of the amended decision reads as follows:
WHEREFORE, in view of the foregoing considerations, the decision of this Court dated
October 12, 1998 is hereby set aside and another is hereby entered modifying the
decision of the Court a quo and declaring Soledad Rojas Vda. De Cañezo as the true
and lawful owner of a parcel of land, more particularly described and bounded as
follows:
A parcel of land situated at Higatangan, Naval, Biliran, bounded on the North by
Policarpio Limpiado; on the South by Fidel Limpiado; on the East by Seashore; and on
the West by Crispolo (sic) Limpiado with an approximate area of 4,169 square meters
per Tax Declaration No. 2258, later under Tax Declaration No. 4073 in the name of
Crispolo Rojas and later in the name of the Heirs of Crispolo Rojas.
Further, ordering defendant-appellant Concepcion Rojas and all persons claiming rights
or interest under her to vacate and surrender possession of the land aforecited to the
plaintiff or any of her authorized representatives, Ordering the Provincial and/or
Municipal Assessor’s Office to cancel the present existing Tax Declaration in the name
of Heirs of Crispolo Rojas referring to the above-described property in favor of the name
of Soledad Rojas Vda. De Cañezo, Ordering the defendant-appellant Concepcion Rojas
to pay the plaintiff-appellee the sum of ₱34,000.00 in actual damages, and to pay for
the loss of her share in money value of the products of the coconuts of said land from
1979 to 1997 and to pay further until the case is terminated at the rate of ₱200.00 per
quarter based on the regular remittances of the late Crispolo Rojas to the plaintiff-
appellee, and to pay the costs.
SO ORDERED.11
The respondent filed a motion to reconsider the Amended Decision but the RTC denied
the same in an Order dated April 25, 1999.
She then filed a petition for review with the Court of Appeals (CA), which reversed the
Amended Decision of the RTC on September 7, 2000, thus:
WHEREFORE, the amended decision dated December 14, 1998 rendered in Civil Case
No. B-1041 is hereby REVERSED and SET ASIDE. The complaint filed by Soledad
Cañezo before the Municipal Trial Court of Naval, Biliran is hereby DISMISSED on
grounds of laches and prescription and for lack of merit.
SO ORDERED.12
The CA held that the petitioner’s inaction for several years casts a serious doubt on her
claim of ownership over the parcel of land. It noted that 17 years lapsed since she
discovered that respondent was in adverse possession of the property before she
instituted an action to recover the same. And during the probate proceedings, the
petitioner did not even contest the inclusion of the property in the estate of Crispulo
Rojas. 13
The CA was convinced that Crispulo Rojas owned the property, having bought the
same from Crisogono Limpiado in 1948. Supporting this conclusion, the appellate court
cited the following circumstances: (1) the property was declared for taxation purposes in
Crispulo’s name and he had been paying the taxes thereon from 1948 until his death in
1978; (2) Crispulo adversely possessed the same property from 1948 until his death in
1978; and (3) upon his death in 1978, the property was included in his estate, the
proceeds of which were distributed among his heirs. 14
The CA further held that, assuming that there was an implied trust between the
petitioner and her father over the property, her right of action to recover the same would
still be barred by prescription since 49 years had already lapsed since Crispulo
adversely possessed the contested property in 1948. 15
On May 9, 2001, the CA denied the petitioner’s motion for reconsideration for lack of
merit.16
In this petition for review, the petitioner, substituted by her heirs, assigns the following
errors:
That the Court of Appeals committed grave abuse of discretion in setting aside
petitioner’s contention that the Petition for Review filed by respondent CONCEPCION
ROJAS before the Court of Appeals was FILED OUT OF TIME;
That the Court of Appeals erred and committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it decided that the filing of the case by SOLEDAD
CAÑEZO for Recovery of Real Property was already barred by PRESCRIPTION AND
LACHES.17
The petitioner insists that the respondent’s petition for review before the CA was filed
out of time. The petitioner posits that the CA may not grant an additional extension of
time to file the petition except for the most compelling reason. She contends that the
fact that respondent’s counsel needed additional time to secure the certified copy of his
annexes cannot be considered as a compelling reason that would justify an additional
period of extension. She admits, though, that this issue was raised for the first time in
their motion for reconsideration, but insists that it can be raised at any time since it
concerns the jurisdiction of the CA over the petition.
The petitioner further posits that prescription and laches are unavailing because there
was an express trust relationship between the petitioner and Crispulo Rojas and his
heirs, and express trusts do not prescribe. Even assuming that it was not an express
trust, there was a resulting trust which generally does not prescribe unless there is
repudiation by the trustee.
For her part, the respondent argues that the petitioners are now estopped from
questioning the CA Resolution granting her second motion for extension to file the
petition for review. She notes that the petitioner did not raise this issue in the comment
that she filed in the CA. In any case, the grant of the second extension of time was
warranted considering that the certified true copy of the assailed RTC orders did not
arrive at the office of respondent’s counsel in Cebu City in time for the filing of the
petition.
On the merits, the respondent asserts that the complaint is barred by prescription,
laches and estoppel. From 1948 until his death in 1978, Crispulo cultivated the property
and was in adverse, peaceful and continuous possession thereof in the concept of
owner. It took the petitioner 49 years from 1948 before she filed the complaint for
recovery of the property in 1997. Granting that it was only in 1980 that she found out
that the respondent adversely possessed the property, still petitioner allowed 17 years
to elapse before she asserted her alleged right over the property.
Finally, the respondent maintains that the other co-owners are indispensable parties to
the case; and because they were not impleaded, the case should be dismissed.
The petition has no merit.
On the procedural issue raised by the petitioner, we find no reversible error in the grant
by the CA of the second motion for extension of time to file the respondent’s petition.
The grant or denial of a motion for extension of time is addressed to the sound
discretion of the court.18 The CA obviously considered the difficulty in securing a
certified true copy of the assailed decision because of the distance between the office of
respondent’s counsel and the trial court as a compelling reason for the request. In the
absence of any showing that the CA granted the motion for extension capriciously, such
exercise of discretion will not be disturbed by this Court.
On the second issue, the petitioner insists that her right of action to recover the property
cannot be barred by prescription or laches even with the respondent’s uninterrupted
possession of the property for 49 years because there existed between her and her
father an express trust or a resulting trust. Indeed, if no trust relations existed, the
possession of the property by the respondent, through her predecessor, which dates
back to 1948, would already have given rise to acquisitive prescription in accordance
with Act No. 190 (Code of Civil Procedure).19 Under Section 40 of Act No. 190, an action
for recovery of real property, or of an interest therein, can be brought only within ten
years after the cause of action accrues. This period coincides with the ten-year period
for acquisitive prescription provided under Section 41 20 of the same Act.
Thus, the resolution of the second issue hinges on our determination of the existence of
a trust over the property --- express or implied --- between the petitioner and her father.
A trust is the legal relationship between one person having an equitable ownership of
property and another person owning the legal title to such property, the equitable
ownership of the former entitling him to the performance of certain duties and the
exercise of certain powers by the latter.21 Trusts are either express or implied. 22 Express
trusts are those which are created by the direct and positive acts of the parties, by some
writing or deed, or will, or by words evincing an intention to create a trust. 23 Implied
trusts are those which, without being expressed, are deducible from the nature of the
transaction as matters of intent or, independently, of the particular intention of the
parties, as being superinduced on the transaction by operation of law basically by
reason of equity.24 An implied trust may either be a resulting trust or a constructive trust.
It is true that in express trusts and resulting trusts, a trustee cannot acquire by
prescription a property entrusted to him unless he repudiates the trust. 25 The following
discussion is instructive:
There is a rule that a trustee cannot acquire by prescription the ownership of property
entrusted to him, or that an action to compel a trustee to convey property registered in
his name in trust for the benefit of the cestui que trust does not prescribe, or that the
defense of prescription cannot be set up in an action to recover property held by a
person in trust for the benefit of another, or that property held in trust can be recovered
by the beneficiary regardless of the lapse of time.
That rule applies squarely to express trusts. The basis of the rule is that the possession
of a trustee is not adverse. Not being adverse, he does not acquire by prescription the
property held in trust. Thus, Section 38 of Act 190 provides that the law of prescription
does not apply "in the case of a continuing and subsisting trust."
The rule of imprescriptibility of the action to recover property held in trust may possibly
apply to resulting trusts as long as the trustee has not repudiated the trust.
xxxx
Acquisitive prescription may bar the action of the beneficiary against the trustee in an
express trust for the recovery of the property held in trust where (a) the trustee has
performed unequivocal acts of repudiation amounting to an ouster of the cestui que
trust; (b) such positive acts of repudiation have been made known to the cestui que
trust, and (c) the evidence thereon is clear and conclusive. 26
As a rule, however, the burden of proving the existence of a trust is on the party
asserting its existence, and such proof must be clear and satisfactorily show the
existence of the trust and its elements. 27 The presence of the following elements must
be proved: (1) a trustor or settlor who executes the instrument creating the trust; (2) a
trustee, who is the person expressly designated to carry out the trust; (3) the trust res,
consisting of duly identified and definite real properties; and (4) the cestui que trust, or
beneficiaries whose identity must be clear. 28 Accordingly, it was incumbent upon
petitioner to prove the existence of the trust relationship. And petitioner sadly failed to
discharge that burden.
The existence of express trusts concerning real property may not be established by
parol evidence.29 It must be proven by some writing or deed. In this case, the only
evidence to support the claim that an express trust existed between the petitioner and
her father was the self-serving testimony of the petitioner. Bare allegations do not
constitute evidence adequate to support a conclusion. They are not equivalent to proof
under the Rules of Court.30
In one case, the Court allowed oral testimony to prove the existence of a trust, which
had been partially performed. It was stressed therein that what is important is that there
should be an intention to create a trust, thus:
What is crucial is the intention to create a trust. While oftentimes the intention is
manifested by the trustor in express or explicit language, such intention may be
manifested by inference from what the trustor has said or done, from the nature of the
transaction, or from the circumstances surrounding the creation of the purported trust.
However, an inference of the intention to create a trust, made from language, conduct
or circumstances, must be made with reasonable certainty. It cannot rest on vague,
uncertain or indefinite declarations. An inference of intention to create a trust,
predicated only on circumstances, can be made only where they admit of no other
interpretation.31
Although no particular words are required for the creation of an express trust, a clear
intention to create a trust must be shown; and the proof of fiduciary relationship must be
clear and convincing. The creation of an express trust must be manifested with
reasonable certainty and cannot be inferred from loose and vague declarations or from
ambiguous circumstances susceptible of other interpretations. 32
In the case at bench, an intention to create a trust cannot be inferred from the
petitioner’s testimony and the attendant facts and circumstances. The petitioner testified
only to the effect that her agreement with her father was that she will be given a share in
the produce of the property, thus:
Q: What was your agreement with your father Crispulo Rojas when you left this
property to him?
A: Every time that they will make copra, they will give a share.
Q: In what particular part in Mindanao [did] you stay with your husband?
A: Bansalan, Davao del Sur.
Q: And while you were in Bansalan, Davao del Sur, did Crispolo Rojas comply
with his obligation of giving your share the proceeds of the land?
A: When he was still alive, he gave us every three months sometimes ₱200.00
and sometimes ₱300.00.33
This allegation, standing alone as it does, is inadequate to establish the existence of a
trust because profit-sharing per se, does not necessarily translate to a trust relation. It
could also be present in other relations, such as in deposit.
What distinguishes a trust from other relations is the separation of the legal title and
equitable ownership of the property. In a trust relation, legal title is vested in the
fiduciary while equitable ownership is vested in a cestui que trust. Such is not true in
this case. The petitioner alleged in her complaint that the tax declaration of the land was
transferred to the name of Crispulo without her consent. Had it been her intention to
create a trust and make Crispulo her trustee, she would not have made an issue out of
this because in a trust agreement, legal title is vested in the trustee. The trustee would
necessarily have the right to transfer the tax declaration in his name and to pay the
taxes on the property. These acts would be treated as beneficial to the cestui que trust
and would not amount to an adverse possession. 34
Neither can it be deduced from the circumstances of the case that a resulting trust was
created. A resulting trust is a species of implied trust that is presumed always to have
been contemplated by the parties, the intention as to which can be found in the nature
of their transaction although not expressed in a deed or instrument of conveyance. A
resulting trust is based on the equitable doctrine that it is the more valuable
consideration than the legal title that determines the equitable interest in property. 35
While implied trusts may be proved by oral evidence, the evidence must be trustworthy
and received by the courts with extreme caution, and should not be made to rest on
loose, equivocal or indefinite declarations. Trustworthy evidence is required because
oral evidence can easily be fabricated. 36 In order to establish an implied trust in real
property by parol evidence, the proof should be as fully convincing as if the acts giving
rise to the trust obligation are proven by an authentic document. An implied trust, in fine,
cannot be established upon vague and inconclusive proof. 37 In the present case, there
was no evidence of any transaction between the petitioner and her father from which it
can be inferred that a resulting trust was intended.
In light of the disquisitions, we hold that there was no express trust or resulting trust
established between the petitioner and her father. Thus, in the absence of a trust
relation, we can only conclude that Crispulo’s uninterrupted possession of the subject
property for 49 years, coupled with the performance of acts of ownership, such as
payment of real estate taxes, ripened into ownership. The statutory period of
prescription commences when a person who has neither title nor good faith, secures a
tax declaration in his name and may, therefore, be said to have adversely claimed
ownership of the lot.38 While tax declarations and receipts are not conclusive evidence
of ownership and do not prove title to the land, nevertheless, when coupled with actual
possession, they constitute evidence of great weight and can be the basis of a claim of
ownership through prescription.39 Moreover, Section 41 of Act No. 190 allows adverse
possession in any character to ripen into ownership after the lapse of ten years. There
could be prescription under the said section even in the absence of good faith and just
title.40
All the foregoing notwithstanding, even if we sustain petitioner’s claim that she was the
owner of the property and that she constituted a trust over the property with her father
as the trustee, such a finding still would not advance her case.
Assuming that such a relation existed, it terminated upon Crispulo’s death in 1978. A
trust terminates upon the death of the trustee where the trust is personal to the trustee
in the sense that the trustor intended no other person to administer it. 41 If Crispulo was
indeed appointed as trustee of the property, it cannot be said that such appointment
was intended to be conveyed to the respondent or any of Crispulo’s other heirs. Hence,
after Crispulo’s death, the respondent had no right to retain possession of the property.
At such point, a constructive trust would be created over the property by operation of
law. Where one mistakenly retains property which rightfully belongs to another, a
constructive trust is the proper remedial device to correct the situation. 42
A constructive trust is one created not by any word or phrase, either expressly or
impliedly, evincing a direct intention to create a trust, but one which arises in order to
satisfy the demands of justice. It does not come about by agreement or intention but in
the main by operation of law, construed against one who, by fraud, duress or abuse of
confidence, obtains or holds the legal right to property which he ought not, in equity and
good conscience, to hold.43
As previously stated, the rule that a trustee cannot, by prescription, acquire ownership
over property entrusted to him until and unless he repudiates the trust, applies to
express trusts and resulting implied trusts. However, in constructive implied trusts,
prescription may supervene even if the trustee does not repudiate the relationship.
Necessarily, repudiation of the said trust is not a condition precedent to the running of
the prescriptive period.44 A constructive trust, unlike an express trust, does not emanate
from, or generate a fiduciary relation. While in an express trust, a beneficiary and a
trustee are linked by confidential or fiduciary relations, in a constructive trust, there is
neither a promise nor any fiduciary relation to speak of and the so-called trustee neither
accepts any trust nor intends holding the property for the beneficiary. 45 The relation of
trustee and cestui que trust  does not in fact exist, and the holding of a constructive trust
is for the trustee himself, and therefore, at all times adverse.
In addition, a number of other factors militate against the petitioner’s case. First, the
petitioner is estopped from asserting ownership over the subject property by her failure
to protest its inclusion in the estate of Crispulo. The CA, thus, correctly observed that:
Even in the probate proceedings instituted by the heirs of Crispulo Rojas, which
included her as a daughter of the first marriage, Cañezo never contested the inclusion
of the contested property in the estate of her father. She even participated in the project
of partition of her father’s estate which was approved by the probate court in 1984. After
personally receiving her share in the proceeds of the estate for 12 years, she suddenly
claims ownership of part of her father’s estate in 1997.
The principle of estoppel in pais applies when -- by one’s acts, representations,
admissions, or silence when there is a need to speak out -- one, intentionally or through
culpable negligence, induces another to believe certain facts to exist; and the latter
rightfully relies and acts on such belief, so as to be prejudiced if the former is permitted
to deny the existence of those facts.46 Such a situation obtains in the instant case.
Second, the action is barred by laches. The petitioner allegedly discovered that the
property was being possessed by the respondent in 1980. 47 However, it was only in
1997 that she filed the action to recover the property. Laches is negligence or omission
to assert a right within a reasonable time, warranting a presumption that the party
entitled to it has either abandoned or declined to assert it. 48
Finally, the respondent asserts that the court a quo ought to have dismissed the
complaint for failure to implead the other heirs who are indispensable parties. We agree.
We note that the complaint filed by the petitioner sought to recover ownership, not just
possession of the property; thus, the suit is in the nature of an action for reconveyance.
It is axiomatic that owners of property over which reconveyance is asserted are
indispensable parties. Without them being impleaded, no relief is available, for the court
cannot render valid judgment. Being indispensable parties, their absence in the suit
renders all subsequent actions of the trial court null and void for want of authority to act,
not only as to the absent parties but even as to those present. Thus, when
indispensable parties are not before the court, the action should be dismissed. 49 At any
rate, a resolution of this issue is now purely academic in light of our finding that the
complaint is already barred by prescription, estoppel and laches.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court
of Appeals, dated September 7, 2000, and Resolution dated May 9, 2001, are
AFFIRMED.
SO ORDERED.
G.R. No. 112872      April 19, 2001
THE INTESTATE ESTATE OF ALEXANDER T. TY, represented by the
Administratrix, SYLVIA S. TY, petitioner,
vs.
COURT OF APPEALS, HON. ILDEFONSO E.GASCON, and ALEJANDRO B.
TY, respondents.

G.R. No. 114672      April 19, 2001

SYLVIA S. TY, in her capacity as Administratrix of the Intestate Estate of
Alexander T. Ty, petitioner,
vs.
COURT OF APPEALS and ALEJANDRO B. TY, respondents.
MELO, J.:
Before the Court are two separate petitions for certiorari, G.R. 112872 under Rule 65
alleging grave abuse of discretion amounting to lack or excess of jurisdiction, and G.R.
No.114672 under Rule 45 on purely questions of law. As these two cases involved the
same parties and basically the same issues, including the main question of jurisdiction,
the Court resolved to consolidate them.
On February 27, 2001, the Court issued its resolution in A.M. 00-9-03 directing the re-
distribution of old cases such as the ones on hand. Thus, the present ponencia.
The antecedent facts are as follows:lawphil.net
Petitioner Sylvia S. Ty was married to Alexander T. Ty, son of private respondent
Alejandro B. Ty, on January 11, 1981. Alexander died of leukemia on May 19, 1988 and
was survived by his wife, petitioner Sylvia, and only child, Krizia Katrina. In the
settlement of his estate, petitioner was appointed administratrix of her late husband’s
intestate estate.
On November 4, 1992, petitioner filed a motion for leave to sell or mortgage estate
property in order to generate funds for the payment of deficiency estate taxes in the
sum of P4,714,560.00. Included in the inventory of property were the following:
1) 142,285 shares of stock in ABT Enterprises valued at P14,228,500.00;itc-alf
 2) 5,000 shares of stock in Intercontinental Paper Industries valued at
P500,000.00;
3) 15,873 shares of stock in Philippine Crystal Manufacturing, Inc. valued at
P1,587,300.00;
4) 800 shares of stock in Polymart Paper Industries, Inc. valued at
P80,000.00;itc-alf
5) 1,800 shares of stock in A.T. Car Care Center, Inc. valued at P188,000.00;
6) 360 shares of stock in Union Emporium, Inc. valued at P36,000.00;lawphil.net
7) 380 shares of stock in Lexty, Inc. valued at P38,000.00; and
8) a parcel of land in Biak-na-Bato, Matalahib, Sta. Mesa, with an area of 823
square meters and covered by Transfer Certificate of Title Number 214087.
Private respondent Alejandro Ty then filed two complaints for the recovery of the above-
mentioned property, which was docketed as Civil Case Q-91-10833 in Branch 105
Regional Trial Court of Quezon City (now herein G.R. No. 112872), praying for the
declaration of nullity of the deed of absolute sale of the shares of stock executed by
private respondent in favor of the deceased Alexander, and Civil Case Q-92-14352 in
Branch 90 Regional Trial Court of Quezon City (now G.R. No. 114672), praying for the
recovery of the pieces of property that were placed in the name of deceased Alexander
by private respondent, the same property being sought to be sold out, mortgaged, or
disposed of by petitioner. Private respondent claimed in both cases that even if said
property were placed in the name of deceased Alexander, they were acquired through
private respondent’s money, without any cause or consideration from deceased
Alexander.
Motions to dismiss were filed by petitioner. Both motions alleged lack of jurisdiction of
the trial court, claiming that the cases involved intra-corporate dispute cognizable by the
Securities and Exchange Commission (SEC). Other grounds raised in G.R. No. 114672
were:
1) An express trust between private respondent Alejandro and his deceased son
Alexander:itc-alf
2) Bar by the statute of limitations;
3) Private respondent’s violation of Supreme Court Circular 28-91 for failure to
include a certification of non-forum shopping in his complaints; and
4) Bar by laches.lawphil.net
The motions to dismiss were denied. Petitioner then filed petitions for certiorari in the
Court of Appeals, which were also dismissed for lack of merit. Thus, the present
petitions now before the Court.
Petitioner raises the issue of jurisdiction of the trial court. She alleges that an intra-
corporate dispute is involved. Hence, under Section 5(b) of Presidential Decree 902-A,
the SEC has jurisdiction over the case. The Court cannot agree with petitioner.
Jurisdiction over the subject matter is conferred by law (Union Bank of the Philippines
vs. Court of Appeals, 290 SCRA 198 [1998]). The nature of an action, as well as which
court or body has jurisdiction over it, is determined based on the allegations contained
in the complaint of the plaintiff (Serdoncillo vs. Benolirao, 297 SCRA 448
[1998]; Tamano vs. Ortiz, 291 SCRA 584 [1998]), irrespective of whether or not plaintiff
is entitled to recover upon all or some of the claims asserted therein (Citibank, N.A. vs.
Court of Appeals, 299 SCRA 390 [1998]). Jurisdiction cannot depend on the defenses
set forth in the answer, in a motion to dismiss, or in a motion for reconsideration by the
defendant (Dio vs. Conception, 296 SCRA 579 [1998]).
Petitioner argues that the present case involves a suit between two stockholders of the
same corporation which thus places it beyond the jurisdictional periphery of regular trial
courts and more within the exclusive competence of the SEC by reason of Section 5(b)
of Presidential Decree 902-A, since repealed. However, it does not necessarily follow
that when both parties of a dispute are stockholders of a corporation, the dispute is
automatically considered intra-corporate in nature and jurisdiction consequently falls
with the SEC. Presidential Decree 902-A did not confer upon the SEC absolute
jurisdiction and control over all matters affecting corporations, regardless of the nature
of the transaction which gave rise to such disputes (Jose Peneyra, et. al. vs.
Intermediate Appellate Court, et. al., 181 SCRA 245 [1990] citing DMRC Enterprises vs.
Este del Sol Mountain Reserve, Inc., 132 SCRA 293 [1984]). The better policy in
determining which body has jurisdiction over this case would be to consider, not merely
the status of the parties involved, but likewise the nature of the question that is the
subject of the controversy (Viray vs. Court of Appeals, 191 SCRA 309 [1990]). When
the nature of the controversy involves matters that are purely civil in character, it is
beyond the ambit of the limited jurisdiction of the SEC (Saura vs. Saura, Jr., 313 SCRA
465 [1999]).
In the cases at bar, the relationship of private respondent when he sold his shares of
stock to his son was one of vendor and vendee, nothing else. The question raised in the
complaints is whether or not there was indeed a sale in the absence of cause or
consideration. The proper forum for such a dispute is a regular trial court. The Court
agrees with the ruling of the Court of Appeals that no special corporate skill is
necessary in resolving the issue of the validity of the transfer of shares from one
stockholder to another of the same corporation. Both actions, although involving
different property, sought to declare the nullity of the transfers of said property to the
decedent on the ground that they were not supported by any cause or consideration,
and thus, are considered void ab initio for being absolutely simulated or fictitious. The
determination whether a contract is simulated or not is an issue that could be resolved
by applying pertinent provisions of the Civil Code, particularly those relative to
obligations and contracts. Disputes concerning the application of the Civil Code are
properly cognizable by courts of general jurisdiction. No special skill is necessary that
would require the technical expertise of the SEC.
It should also be noted that under the newly enacted Securities Regulation Code
(Republic Act No. 8799), this issue is now moot and academic because whether or not
the issue is intra-corporate, it is the regional trial court and not longer the SEC that
takes cognizance of the controversy. Under Section 5.2 of Republic Act No. 8799,
original and exclusive jurisdiction to hear and decide cases involving intra-corporate
controversies have been transferred to courts of general jurisdiction or the appropriate
regional trial court.
Other issues raised by the petitioner in G.R. No. 114672 are equally not impressed with
merit.
Petitioner contends that private respondent is attempting to enforce an unenforceable
express trust over the disputed real property. Petitioner is in error when she contends
that an express trust was created by private respondent when he transferred the
property to his son. Judge Abraham P. Vera, in his order dated March 31, 1993 in Civil
Case No. Q-92-14352, declared:
… [e]xpress trusts are those that are created by the direct and positive acts of
the parties, by some writing or deed or will or by words evidencing an intention to
create a trust. On the other hand, implied trusts are those which, without being
expressed, are deducible from the nature of the transaction by operation of law
as matters of equity, independently of the particular intention of the parties. Thus,
if the intention to establish a trust is clear, the trust is express; if the intent to
establish a trust is to be taken from circumstances or other matters indicative of
such intent, then the trust is implied (Cuaycong vs. Cuaycong, 21 SCRA 1191
[1967].
In the cases at hand, private respondent contends that the pieces of property were
transferred in the name of the deceased Alexander for the purpose of taking care of the
property for him and his siblings. Such transfer having been effected without cause of
consideration, a resulting trust was created.
A resulting trust arises in favor of one who pays the purchase money of an estate
and places the title in the name of another, because of the presumption that he
who pays for a thing intends a beneficial interest therein for himself. The trust is
said to result in law from the acts of the parties. Such a trust is implied in fact
(Tolentino, Civil Code of the Philippines, Vol. 4, p. 678).
If a trust was then created, it was an implied, not an express trust, which may be proven
by oral evidence (Article 1457, Civil Code), and it matters not whether property is real or
personal (Paras, Civil Code of the Philippines, Annotated, Vol. 4, p. 814).
Petitioner’s assertion that private respondent’s action is barred by the statute of
limitations is erroneous. The statute of limitations cannot apply in this case. Resulting
trusts generally do not prescribe (Caladiao vs. Vda. de Blas, 10 SCRA 691 [1964]),
except when the trustee repudiates the trust. Further, an action to reconvey will not
prescribe so long as the property stands in the name of the trustee (Manalang, et. al.
vs. Canlas, et. al., 94 Phil. 776 [1954]). To allow prescription would be to permit a
trustee to acquire title against his principal and the true owner.
Petitioner is also mistaken in her contention that private respondent violated Supreme
Court Circular 28-91, dated September 17, 1991 and transfer having been effected
without cause of consideration, a resulting trust was created.
A resulting trust arises in favor of one who pays the purchase money of an estate
and places the title in the name of another, because of the presumption that he
who pays for a thing intends a beneficial interest therein for himself. The trust is
said to result in law from the acts of the parties. Such a trust is implied in fact
(Tolentino, Civil Code of the Philippines, Vol. 4, p. 678).
If a trust was then created, it was an implied, not an express trust, which may be proven
by oral evidence (Article 1457, Civil Code), and it matters not whether property is real or
personal (Paras, Civil Code of the Philippines, Annotated, Vol. 4, p. 814).1âwphi1.nêt
Petitioner’s assertion that private respondent’s action is barred by the statute of
limitations is erroneous. The statute of limitations cannot apply in this case. Resulting
trusts generally do not prescribe (Caladiao vs. Vda. de Blas, 10 SCRA 691 [1964]),
except when the trustee repudiates the trust. Further, an action to reconvey will not
prescribe so long as the property stands in the name of the trustee (Manalang, et. al.
vs. Canlas, et. al., 94 Phil. 776 [1954]). To allow prescription would be to permit a
trustee to acquire title against his principal and the true owner.
Petitioner is also mistaken in her contention that private respondent violated Supreme
Court Circular 28-91, dated September 17, 1991 and which took effect on January 1,
1992. Although Section 5, Rule 7 of the 1997 Rules on Civil Procedure makes the
requirement of filing a verification and certificate of non-forum-shopping applicable to all
courts, this cannot be applied in the case at bar. At the time the original complaint was
first filed on December 10 (for G.R. 112872) and 28 (for G.R. 114672), 1992, such
certification requirement only pertained to cases in the Court of Appeals and the
Supreme Court. The Revised Circular 28-91, which covered the certification
requirement against non-forum shopping in all courts, only took effect April 1, 1994.
Further, the subject heading of the original circular alone informs us of its topic: that of
additional requisites for petitions filed with the Supreme Court and the Court of Appeals
to prevent forum shopping or multiple filing of petitions and complaints. Section 1 of the
Circular makes it mandatory to include the docket number of the case in the lower court
or quasi-judicial agency whose order or judgment is sought to be reviewed. Such a
requirement clearly indicates that the Circular only applies to actions filed with the Court
of Appeals and the Supreme Court.
Contrary to what petitioner contends, there could be no laches in this case. Private
respondent filed his complaint in G.R. No. 112872 on December 10, 1992 (later
amended on December 23, 1992) and in G.R. No. 114672 on December 28, 1992, only
over a month after petitioner filed in the probate proceedings a petition to mortgage or
sell the property in dispute. Private respondent’s actions were in fact very timely. As
stated in the complaints, private respondent instituted the above actions as the property
were in danger of being sold to a third party. If there were no pending cases to stop their
sale, he would no longer be able to recover the same from an innocent purchaser for
value.
Withal, the Court need not go into any further discussion on whether the trial court erred
in issuing a writ of preliminary injunction.1âwphi1.nêt
WHEREFORE, the petition for certiorari in G.R. No. 112872 is DISMISSED, having
failed to show that grave abuse of discretion was committed in declaring that the
regional trial court had jurisdiction over the case. The petition for review on certiorari in
G.R. 114672 is DENIED, having found no reversible error was committed.
SO ORDERED.lawphil.net
Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.
G.R. Nos. L-16185-86             May 31, 1962
TRUSTEESHIP OF THE MINORS BENIGNO, ANGELA and ANTONIO, all surnamed
PEREZ Y TUASON,
PHILIPPINE NATIONAL BANK, Judicial Guardian, J. ANTONIO ARANETA, trustee-
appellee,
vs.
ANTONIO M. PEREZ, judicial guardian-appellant.
Araneta and Araneta for trustee-appellee.
Alfonso Felix, Jr. for judicial guardian-appellant.
CONCEPCION, J.:
These are two (2) incidents of the trusteeship of the minors Benigno, Angela and
Antonio, all surnamed Perez Y Tuason. The issue in G.R. No. L-16185 is whether or not
the trustee, J. Antonio Araneta — hereinafter referred to as the appellee — may be
allowed to pay a sum of money to the law firm, Araneta & Araneta, of which he is a
member, for services rendered to him, in his aforementioned capacity as such trustee,
in several judicial proceedings, whereas G.R. No. L-16186 concerns the question
whether the purchase of certain shares of stock nude by the appellee for the benefit of
the trusteeship merits judicial approval. Both questions were decided by the Court of
First Instance of Rizal (Quezon City Branch) in the affirmative. Hence, this appeal by
Antonio M. Perez — hereinafter referred to as the appellant — as guardian of the
person of said minors.
With respect to G.R. No. L-16185, it appears that the law firm Araneta & Araneta,
through its assistant, Atty. Francisco T. Papa, had rendered services, as counsel for the
appellee, in connection with the following:
1. The approval of his accounts for January to March, 1956, which were objected
to by the appellant. Said objection was, on October 19, 1956, overruled by the
lower court, the action of which was affirmed by this Court in G.R. No. L-11788,
on May 16, 1958, on appeal taken by appellant.
2. The appellee's accounts for April to June, 1957; which were approved by the
lower court on July 13, 1957, despite appellant's objection thereto. Although
appellant appealed to the Supreme Court, he, subsequently, withdrew the
appeal.
3. In 1958, appellant instituted CA-G.R. No. 22810-R of the Court of Appeals for
a writ of certiorari and mandamus against the appellee and the lower court, the
latter having sustained the action of the appellee in withholding certain sums
from the shares of the minors aforementioned in the net income of the trust
estate for July to September, 1957, in view of the appellant's refusal to reimburse
to said estate identical sums received in the form of allowances for the period
from April to June, 1957, in excess of the shares of said minors in the net income
for that period. After appropriate proceedings, the Court of Appeals rendered a
decision on June 25, 1958, dismissing said petition.
The lower court authorized the payment of P5,500.00 for the services thus rendered by
Araneta & Araneta, which appellant assails upon the ground that, pursuant to Section 7
of Rule 86 of the Rules of Court:
When the executor or administrator is an attorney he shall not charge against the
estate any professional fees for legal services rendered by him.
that the services above referred to inured to the benefit, not of the trust estate, but of the
trustee; that the amount of the award is excessive; and that the lower court should have
required the introduction of evidence on the extent of the services rendered by the
aforementioned law firm before making said award.
Appellant's pretense is untenable. Said Section 7 of Rule 86 refers only to "executors or
administrators" of the estate of deceased persons, and does not necessarily apply to
trustees. It is true that some functions of the former bear a close analogy with those of
the latter. Moreover, a trustee, like, an executor or administrator, holds an office of trust,
particularly when, as in the case of appellee herein, the trustee acts as such under
judicial authority. Hence, generally, the policy set forth in said Section 7 of Rule 86 —
basically sound and wise as it is — should be applicable to trustees. The duties of
executors or administrators are, however, fixed and/or limited by law, whereas those of
trustee of an express trust — like that which we have under consideration — are,
usually, governed by the intention of the trustor or of the parties, if established by
contract (Art. 1441, Civil Code of the Philippines). Besides, the duties of trustees may
cover a much wider range than those of executors or administrators of the estate of
deceased persons. Again the application of Section 7 of Rule 86 to all trusteeships
without distinction may dissuade deserving persons from accepting the position of
trustee and consequently have a deterrent effect upon the establishment of trusts, at a
time when a sizeable part of the burden to undertake important and even essential
activities in advanced and/or developing communities or states, particularly in the field
of education, science and social welfare, is borne by foundations or other similar
organizations based upon the principles of trust. We believe it, therefore, to be the
better policy to acknowledge the authority of courts of justice to exercise a sound
judgment in determining, in the light of the peculiar circumstances obtaining in each
case, whether or not a trustee shall be allowed to pay attorney's fees and charge the
same against the trust estate, independently of his compensation as a trustee.
In the case at bar, considering that the appellee was merely defending himself in the
proceedings that required the services of counsel; that in each case the stand taken by
the appellee was upheld by the court; that the will creating the trust and designating the
appellee as trustee explicitly grants him the right to collect for his services such
reasonable fees; that, in view of the nature of the relations between the trustor and the
trustee, on the one hand, and the trustor and appellant on the other, there can be little
doubt but that the trustor would have sanctioned the payment of the attorney's fees
involved in this incident; and that it may have been more costly for the trust estate to
engage the services of a law firm other than that of Araneta & Araneta, we are not
prepared to hold that the lower court has erred in authorizing the payment of said
attorney's fees by herein appellee.
For the rest, it is well settled that "a trustee may be indemnified out of the trust estate for
his expenses in rendering and proving his accounts and for costs and counsel fees" in
connection therewith (54 Am. Jur. 415-416), apart from the fact that the nature of the
professional services in question appeared in the records before the lower court and
that the amount of P5,500 fixed by the same as compensation for such services is not
excessive.
Referring now to G.R. No. L-16186, it appears that from July to September, 1958, the
appellee had bought for the trust estate, through a broker (Pedro Nolasco da Silva &
Co.), a total of 118 common shares of stock of the Philippine-American Drug Co. at
P100 each, and that, upon submission of appellee's accounts for said period, appellant
objected to the items of expenses relative to the acquisition of said common shares,
upon the ground that the investment therein is "unwise in that (the operation of) said
company has not, to our knowledge, proved profitable and unlawful in that it is actually
an act of self-dealing between the trustee and the beneficiaries of the trust", because
the former (appellee) is, also, a stockholder of said company. After the introduction of
the evidence of both parties, the lower court overruled the objection and approved said
accounts.
It is not disputed that appellee holds, in his individual capacity, 199 out of 30,000
common shares of stock of the Philippine-American Drug Co., whereas his children own
270 out of 5,000 preferred shares of stock of the same enterprise. As a consequence,
the interest of appellees and his children in said company is not such as to warrant the
charge that the purchase of 118 common stocks for the trust estate amounts to self-
dealing by the appellee with himself. What is more, said purchase by the trustee may be
considered as an indication that he had displayed in the management of the trust estate
the same interest he had in the protection of his own property.
Upon the other hand, it has, also, been established that the book value of each of said
118 common shares of stock, purchased by the trustee at P100 each, is P202.80; that
in 1954 the Philippine-American Drug Co. had paid a cash dividend of 6%, side from
declaring a 33-1/3% stock dividend for its common shares; and that 6-½ % and 4%
cash dividends were paid in 1955 and 1957, respectively. Furthermore, the statement of
accounts of the company for the years 1954, 1955, 1956 and 1957, satisfied the lower
court that the enterprise "is financially stable and sound". Under the circumstances, we
cannot say that the investment in question is unwise.
Appellant's allegation to the effect that shares of stock of the San Miguel Brewery pay
higher returns, even if true, does not establish his pretense. Whether an investment is
good or not does not depend upon the general, abstract possibility of better
investments. Again, one factor that should be taken into account is the degree of
influence that the investor may have upon the management of the enterprise
concerned, which appellee admittedly has in the Philippine-American Drug Co., but
which it is not claimed he wields in the San Miguel Brewery Co.
WHEREFORE, the orders appealed from are hereby affirmed, with costs against the
appellant. It is so ordered.

[ G.R. No. 157784, December 16, 2008 ]

RICHARD B. LOPEZ, IN HIS CAPACITY AS TRUSTEE OF THE TRUST ESTATE OF
THE LATE JULIANA LOPEZ-MANZANO, PETITIONER, VS. COURT OF APPEALS,
CORAZON LOPEZ, FERNANDO LOPEZ, ROBERTO LOPEZ, REPRESENTED BY
LUZVIMINDA LOPEZ, MARIA ROLINDA MANZANO, MARIA ROSARIO MANZANO
SANTOS, JOSE MANZANO, JR., NARCISO MANZANO (ALL REPRESENTED BY
ATTORNEY-IN-FACT, MODESTO RUBIO), MARIA CRISTINA MANZANO RUBIO,
IRENE MONZON AND ELENA MANZANO, RESPONDENTS.

DECISION

TINGA, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, assailing the Decision[1] and Resolution of the Court of Appeals in CA-G.R.
CV No. 34086. The Court of Appeals' decision affirmed the summary judgment of the
Regional Trial Court (RTC), Branch 10, Balayan, Batangas, dismissing petitioner's
action for reconveyance on the ground of prescription.

The instant petition stemmed from an action for reconveyance instituted by petitioner
Richard B. Lopez in his capacity as trustee of the estate of the late Juliana Lopez
Manzano (Juliana) to recover from respondents several large tracts of lands allegedly
belonging to the trust estate of Juliana.

The decedent, Juliana, was married to Jose Lopez Manzano (Jose). Their union did not
bear any children. Juliana was the owner of several properties, among them, the
properties subject of this dispute. The disputed properties totaling more than 1,500
hectares consist of six parcels of land, which are all located in Batangas. They were the
exclusive paraphernal properties of Juliana together with a parcel of land situated in
Mindoro known as Abra de Ilog and a fractional interest in a residential land on
Antorcha St., Balayan, Batangas.

On 23 March 1968, Juliana executed a notarial will, [2] whereby she expressed that she
wished to constitute a trust fund for her paraphernal properties, denominated
as Fideicomiso de Juliana Lopez Manzano (Fideicomiso), to be administered by her
husband. If her husband were to die or renounce the obligation, her nephew, Enrique
Lopez, was to become administrator and executor of the Fideicomiso. Two-thirds (2/3)
of the income from rentals over these properties were to answer for the education of
deserving but needy honor students, while one-third 1/3 was to shoulder the expenses
and fees of the administrator. As to her conjugal properties, Juliana bequeathed the
portion that she could legally dispose to her husband, and after his death, said
properties were to pass to her biznietos or great grandchildren.

Juliana initiated the probate of her will five (5) days after its execution, but she died on
12 August 1968, before the petition for probate could be heard. The petition was
pursued instead in Special Proceedings (S.P.) No. 706 by her husband, Jose, who was
the designated executor in the will. On 7 October 1968, the Court of First Instance,
Branch 3, Balayan, Batangas, acting as probate court, admitted the will to probate and
issued the letters testamentary to Jose. Jose then submitted an inventory of Juliana's
real and personal properties with their appraised values, which was approved by the
probate court.

Thereafter, Jose filed a Report dated 16 August 1969, which included a proposed
project of partition. In the report, Jose explained that as the only compulsory heir of
Juliana, he was entitled by operation of law to one-half (1/2) of Juliana's paraphernal
properties as his legitime, while the other one-half (1/2) was to be constituted into
the Fideicomiso. At the same time, Jose alleged that he and Juliana had outstanding
debts totaling P816,000.00 excluding interests, and that these debts were secured by
real estate mortgages. He noted that if these debts were liquidated, the "residuary
estate available for distribution would, value-wise, be very small."

From these premises, Jose proceeded to offer a project of partition. The relevant portion
pertaining to the Fideicomiso stated, thus:
PROJECT OF PARTITION
14. Pursuant to the terms of the Will, one-half (1/2) of the following properties,
which are not burdened with any obligation, shall be constituted into the
 "Fidei-comiso de Juliana Lopez Manzano" and delivered to Jose Lopez
Manzano as trustee thereof:
Location Title No. Area (Sq. M.)
Improvements
       
Abra de Ilog, TCT - 540 2,940,000 pasture, etc.
Mindoro
       
Antorcha St. TCT - 1217-A     13,040 residential
Balayan, (1/6 thereof)
Batangas
15.
16. The other half (1/2) of the aforesaid properties is adjudicated to Jose
Lopez Manzano as heir.
Then, Jose listed those properties which he alleged were registered in both his and
Juliana's names, totaling 13 parcels in all. The disputed properties consisting of six (6)
parcels, all located in Balayan, Batangas, were included in said list. These properties,
as described in the project of partition, are as follows:
Location Title No. Area (Sq. M.)
Improvements
       
Pantay, Calaca,   91,283
coconuts
Batangas
       
Mataywanak, OCT-29[6]94 485,486
sugar
Tuy, Batangas
       
Patugo, Balayan, OCT-2807 16,757,615  
coconut, sugar,
Batangas citrus,
pasteur
       
Cagayan, TCT-1220    411,331
Balayan, sugar
Batangas
       
Pook, Baayan TCT-1281   135,922
Batangas sugar
       
Bolbok, Balayan, TCT-18845   444,998
Batangas sugar
Calzada, TCT 1978       2,312
Balayan, sugar
Batangas
 Gumamela, TCT-2575          829  
Balayan,
Batangas
Bombon,          4,532  
Balayan,
Batangas
Parañaque, Rizal TCT-282340           800 residential
Parañaque, Rizal TCT-11577           800 residential
Modesto St., TCT-52212             137.8 residential
Manila

and the existing sugar quota in the name of the deceased with the Central
Azucarera Don Pedro at Nasugbo.
16. The remaining ¼ shall likewise go to Jose Lopez Manzano, with the
condition to be annotated on the titles thereof, that upon his death, the
same shall pass on to Corazon Lopez, Ferdinand Lopez, and Roberto
Lopez:
Location Title No. Area (Sq. M.)
Improvements
       
Dalig, Balayan, TCT-10080 482,872
sugar
Batangas
San Juan, Rizal TCT-53690 523 residential
On 25 August 1969, the probate court issued an order approving the project of partition.
As to the properties to be constituted into the Fideicomiso, the probate court ordered
that the certificates of title thereto be cancelled, and, in lieu thereof, new certificates be
issued in favor of Jose as trustee of the Fideicomiso covering one-half (1/2) of the
properties listed under paragraph 14 of the project of partition; and regarding the other
half, to be registered in the name of Jose as heir of Juliana. The properties which Jose
had alleged as registered in his and Juliana's names, including the disputed lots, were
adjudicated to Jose as heir, subject to the condition that Jose would settle the
obligations charged on these properties. The probate court, thus, directed that new
certificates of title be issued in favor of Jose as the registered owner thereof in its Order
dated 15 September 1969. On even date, the certificates of title of the disputed
properties were issued in the name of Jose.

The Fideicomiso was constituted in S.P No. 706 encompassing one-half (1/2) of the

Abra de Ilog lot on Mindoro, the 1/6 portion of the lot in Antorcha St. in Balayan,
Batangas and all other properties inherited ab intestato by Juliana from her sister,
Clemencia, in accordance with the order of the probate court in S.P. No. 706. The
disputed lands were excluded from the trust.

Jose died on 22 July 1980, leaving a holographic will disposing of the disputed
properties to respondents. The will was allowed probate on 20 December 1983 in S.P.
No. 2675 before the RTC of Pasay City. Pursuant to Jose's will, the RTC ordered on 20
December 1983 the transfer of the disputed properties to the respondents as the heirs
of Jose. Consequently, the certificates of title of the disputed properties were cancelled
and new ones issued in the names of respondents.

Petitioner's father, Enrique Lopez, also assumed the trusteeship of Juliana's estate. On
30 August 1984, the RTC of Batangas, Branch 9 appointed petitioner as trustee of
Juliana's estate in S.P. No. 706. On 11 December 1984, petitioner instituted an action
for reconveyance of parcels of land with sum of money before the RTC of Balayan,
Batangas against respondents. The complaint essentially alleged that Jose was able to
register in his name the disputed properties, which were the paraphernal properties of
Juliana, either during their conjugal union or in the course of the performance of his
duties as executor of the testate estate of Juliana and that upon the death of Jose, the
disputed properties were included in the inventory as if they formed part of Jose's estate
when in fact Jose was holding them only in trust for the trust estate of Juliana.

Respondents Maria Rolinda Manzano, Maria Rosario Santos, Jose Manzano, Jr.,
Narciso Manzano, Maria Cristina Manzano Rubio and Irene Monzon filed a joint answer
with counterclaim for damages. Respondents Corazon, Fernando and Roberto, all
surnamed Lopez, who were minors at that time and represented by their mother, filed a
motion to dismiss, the resolution of which was deferred until trial on the merits. The RTC
scheduled several pre-trial conferences and ordered the parties to submit pre-trial briefs
and copies of the exhibits.

On 10 September 1990, the RTC rendered a summary judgment, dismissing the action
on the ground of prescription of action. The RTC also denied respondents' motion to set
date of hearing on the counterclaim.

Both petitioner and respondents elevated the matter to the Court of Appeals. On 18
October 2002, the Court of Appeals rendered the assailed decision denying the appeals
filed by both petitioner and respondents. The Court of Appeals also denied petitioner's
motion for reconsideration for lack of merit in its Resolution dated 3 April 2003.

Hence, the instant petition attributing the following errors to the Court of Appeals:
I. THE COURT OF APPEAL'S CONCLUSION THAT PETITIONER'S
ACTION FOR [RECONVEYANCE] HAS PRESCRIBED TAKING AS
BASIS SEPTEMBER 15, 1969 WHEN THE PROPERTIES IN DISPUTE
WERE TRANSFERRED TO THE NAME OF THE LATE JOSE LOPEZ
MANZANO IN RELATION TO DECEMBER 12, 1984 WHEN THE
ACTION FOR RECONVEYANCE WAS FILED IS ERRONEOUS.
II. THE RESPONDENT COURT OF APPEALS CONCLUSION IN FINDING
THAT THE FIDUCIARY RELATION ASSUMED BY THE LATE JOSE
LOPEZ MANZANO, AS TRUSTEE, PURSUANT TO THE LAST WILL
AND TESTAMENT OF JULIANA LOPEZ MANZANO WAS IMPLIED
TRUST, INSTEAD OF EXPRESS TRUST IS EQUALLY ERRONEOUS.
None of the respondents filed a comment on the petition. The counsel for respondents
Corazon, Fernando and Roberto, all surnamed Lopez, explained that he learned that
respondents had migrated to the United States only when the case was pending before
the Court of Appeals.[3] Counsel for the rest of the respondents likewise manifested that
the failure by said respondents to contact or communicate with him possibly signified
their lack of interest in the case.[4] In a Resolution dated 19 September 2005, the Court
dispensed with the filing of a comment and considered the case submitted for decision.

The core issue of the instant petition hinges on whether petitioner's action for
reconveyance has prescribed. The resolution of this issue calls for a determination of
whether an implied trust was constituted over the disputed properties when Jose, the
trustee, registered them in his name.

Petitioner insists that an express trust was constituted over the disputed properties; thus
the registration of the disputed properties in the name of Jose as trustee cannot give
rise to prescription of action to prevent the recovery of the disputed properties by the
beneficiary against the trustee.

Evidently, Juliana's testamentary intent was to constitute an express trust over her
paraphernal properties which was carried out when the Fideicomiso was established in
S.P. No. 706.[5] However, the disputed properties were expressly excluded from
the Fideicomiso. The probate court adjudicated the disputed properties to Jose as the
sole heir of Juliana. If a mistake was made in excluding the disputed properties from
the Fideicomiso and adjudicating the same to Jose as sole heir, the mistake was not
rectified as no party appeared to oppose or appeal the exclusion of the disputed
properties from the Fideicomiso. Moreover, the exclusion of the disputed properties
from the Fideicomiso bore the approval of the probate court. The issuance of the
probate court's order adjudicating the disputed properties to Jose as the sole heir of
Juliana enjoys the presumption of regularity. [6]

On the premise that the disputed properties were the paraphernal properties of Juliana
which should have been included in the Fideicomiso, their registration in the name of
Jose would be erroneous and Jose's possession would be that of a trustee in an implied
trust. Implied trusts are those which, without being expressed, are deducible from the
nature of the transaction as matters of intent or which are superinduced on the
transaction by operation of law as matters of equity, independently of the particular
intention of the parties.[7]

The provision on implied trust governing the factual milieu of this case is provided in
Article 1456 of the Civil Code, which states:
ART. 1456. If property is acquired through mistake or fraud, the person obtaining it is,
by force of law, considered a trustee of an implied trust for the benefit of the person
from whom the property comes.
In Aznar Brothers Realty Company v. Aying,[8] the Court differentiated two kinds of
implied trusts, to wit:
x x x In turn, implied trusts are either resulting or constructive trusts. These two are
differentiated from each other as follows:
Resulting trusts are based on the equitable doctrine that valuable consideration and not
legal title determines the equitable title or interest and are presumed always to have
been contemplated by the parties. They arise from the nature of circumstances of the
consideration involved in a transaction whereby one person thereby becomes invested
with legal title but is obligated in equity to hold his legal title for the benefit of another.
On the other hand, constructive trusts are created by the construction of equity in order
to satisfy the demands of justice and prevent unjust enrichment. They arise contrary to
intention against one who, by fraud, duress or abuse of confidence, obtains or holds the
legal right to property which he ought not, in equity and good conscience, to hold. [9]
A resulting trust is presumed to have been contemplated by the parties, the intention as
to which is to be found in the nature of their transaction but not expressed in the deed
itself.[10] Specific examples of resulting trusts may be found in the Civil Code, particularly
Arts. 1448,[11] 1449,[12] 1451,[13] 1452[14] and 1453.[15]

A constructive trust is created, not by any word evincing a direct intention to create a
trust, but by operation of law in order to satisfy the demands of justice and to prevent
unjust enrichment.[16] It is raised by equity in respect of property, which has been
acquired by fraud, or where although acquired originally without fraud, it is against
equity that it should be retained by the person holding it. [17] Constructive trusts are
illustrated in Arts. 1450,[18] 1454,[19] 1455[20] and 1456.[21]

The disputed properties were excluded from the Fideicomiso at the outset. Jose
registered the disputed properties in his name partly as his conjugal share and partly as
his inheritance from his wife Juliana, which is the complete reverse of the claim of the
petitioner, as the new trustee, that the properties are intended for the beneficiaries of
the Fideicomiso. Furthermore, the exclusion of the disputed properties from
the Fideicomiso was approved by the probate court and, subsequently, by the trial court
having jurisdiction over the Fideicomiso. The registration of the disputed properties in
the name of Jose was actually pursuant to a court order. The apparent mistake in the
adjudication of the disputed properties to Jose created a mere implied trust of the
constructive variety in favor of the beneficiaries of the Fideicomiso.

Now that it is established that only a constructive trust was constituted over the disputed
properties, may prescription for the recovery of the properties supervene?

Petitioner asserts that, if at all, prescription should be reckoned only when respondents
caused the registration of the disputed properties in their names on 13 April 1984 and
not on 15 September 1969, when Jose registered the same in his name pursuant to the
probate court's order adjudicating the disputed properties to him as the sole heir of
Juliana. Petitioner adds, proceeding on the premise that the prescriptive period should
be counted from the repudiation of the trust, Jose had not performed any act indicative
of his repudiation of the trust or otherwise declared an adverse claim over the disputed
properties.

The argument is tenuous.

The right to seek reconveyance based on an implied or constructive trust is not
absolute. It is subject to extinctive prescription.[22] An action for reconveyance based on
implied or constructive trust prescribes in 10 years. This period is reckoned from the
date of the issuance of the original certificate of title or transfer certificate of title. Since
such issuance operates as a constructive notice to the whole world, the discovery of the
fraud is deemed to have taken place at that time.[23]

In the instant case, the ten-year prescriptive period to recover the disputed property
must be counted from its registration in the name of Jose on 15 September 1969, when
petitioner was charged with constructive notice that Jose adjudicated the disputed
properties to himself as the sole heir of Juana and not as trustee of the Fideicomiso.

It should be pointed out also that Jose had already indicated at the outset that the
disputed properties did not form part of the Fideicomiso contrary to petitioner's claim
that no overt acts of repudiation may be attributed to Jose. It may not be amiss to state
that in the project of partition submitted to the probate court, Jose had indicated that the
disputed properties were conjugal in nature and, thus, excluded from
Juliana's Fideicomiso. This act is clearly tantamount to repudiating the trust, at which
point the period for prescription is reckoned.

In any case, the rule that a trustee cannot acquire by prescription ownership over
property entrusted to him until and unless he repudiates the trust applies only to
express trusts and resulting implied trusts. However, in constructive implied trusts,
prescription may supervene even if the trustee does not repudiate the relationship.
Necessarily, repudiation of said trust is not a condition precedent to the running of the
prescriptive period.[24] Thus, for the purpose of counting the ten-year prescriptive period
for the action to enforce the constructive trust, the reckoning point is deemed to be on
15 September 1969 when Jose registered the disputed properties in his name.

WHEREFORE, the instant petition for review on certiorari is DENIED and the decision
and resolution of the Court of Appeals in CA-G.R. CV No. 34086 are AFFIRMED. Costs
against petitioner.

SO ORDERED.

Quisumbing (Chairperson), Carpio Morales, Velasco, Jr., and Brion, JJ., concur.

[ G.R. No. L-30453, December 04, 1989 ]
ANGELINA PUENTEVELLA ECHAUS, IN HER OWN BEHALF AND AS
ADMINISTRATRIX OF THE ESTATE OF LUIS PUENTEVELLA, ASSISTED BY HER
HUSBAND, RENE ECHAUS, PETITIONER, VS. HON. RAMON BLANCO, AS JUDGE
OF THE COURT OF FIRST INSTANCE OF ILOILO, AND PHILIPPINE COMMERCIAL
& INDUSTRIAL BANK, AS ADMINISTRATOR OF THE TESTATE ESTATE OF THE
LATE CHARLES NEWTON HODGES, AVELINA A. MAGNO, AS ADMINISTRATRIX
OF THE TESTATE ESTATE OF THE LATE LINNIE JANE HODGES,
RESPONDENTS.
 DECISION

MEDIALDEA, J.:

This is a petition for mandamus seeking to compel respondent presiding judge of the

then Court of First Instance of Iloilo (now Regional Trial Court) in Special Proceedings
No. 1672 to issue an order directing respondent Philippine Commercial and Industrial
Bank (PCIB) as administrator of the estate of the late Charles Newton Hodges (C.N.
Hodges) to pay herein petitioner the amount of eight hundred fifty one thousand four
hundred seventy-two pesos and eighty- three centavos (P851,472.83) with
legal interest, adjudged in Civil Case No. 6628.
The antecedent facts of the instant case are as follows:
Herein petitioner Angelina Puentevella Echaus, in her own behalf and as Administratrix
of the intestate estate of her deceased father Luis Puentevella, assisted by her
husband, Rene Echaus, filed a complaint on May 30, 1962 against Charles Newton
Hodges (C. N. Hodges) praying for an accounting of the business covering the Ba-Ta
Subdivision, the recovery of her share in the profits and remaining assets of their
business and the payment of expenses and moral and exemplary damages (p.
10, Rollo).  The complaint was docketed as Civil Case No. 6628 of the Court of First
Instance of Negros Occidental.
On July 20, 1962, C. N. Hodges, through counsel, filed his Answer (p. 10, Rollo).
Trial on the merits commenced on December 7, 1962, with the testimony of
Angelina Echaus (p. 12, Rollo).  Sometime thereafter, counsel for C. N. Hodges
manifested that defendant C. N. Hodges died on December 25, 1962.  No motion to
dismiss was filed by C. N. Hodges' counsel.  On February 14, 1964, the trial court
ordered the substitution of the Philippine Commercial and Industrial Bank (PCIB), as
administrator of the estate of deceased C. N. Hodges, as party defendant.  No objection
to the order was interposed by PCIB.
A petition for the settlement of the estate of C. N. Hodges was instituted before the
Court of First Instance of Iloilo, the date of which does not appear in the records, and
docketed as Special Proceedings No. 1672.  A notice to creditors was published in
"Yuhum" a newspaper of general circulation in its issues of March 13, 20 and 27, 1963
(p. 190, Rollo).
On November 12, 1966, the parties in Civil Case No. 6628 submitted a stipulation of
facts and submitted the case for decision on the basis of said stipulation of facts (p.
12, Rollo).  The parties also agreed in the stipulation of facts that:
"1.  The parties, being duly represented in the panel of Commissioners constituted by
this Honorable Court, shall be bound by the Commissioners' findings on the questions
of facts presented to them for determination, if such findings are accepted by this
Honorable Court in its Decision.
"2.  With a view to the speedy settlement and termination not only of the Estate of C. N.
Hodges (Special Proceedings 1672 of the Court of First Instance of Iloilo pending since
1962) but also of the estate of Luis Puentevella (Special Proceedings 1968 of the Court
of First Instance of Negros Occidental pending since 1951), in accordance with the
letter and spirit of the Rules of Court, and relying upon the wisdom and impartiality of
the Presiding Judge of this Honorable Court who is now on the point of closing a brilliant
and exemplary career on the Bench, the parties shall accept its Decision herein as final.
"x x x." (p. 20, Rollo)
On December 5, 1966, judgment was rendered by the trial court in favor of plaintiff
Angelina F. Echaus, the dispositive portion of which states:
"IN VIEW OF ALL THE FOREGOING, the defendant, in its capacity as Administrator of
the Estate of Charles Newton Hodges is hereby ordered to pay the plaintiffs the sum of
EIGHT(Y) HUNDRED FIFTY-ONE THOUSAND FOUR HUNDRED SEVENTY-TWO
PESOS and EIGHTY THREE CENTAVOS (P851,472.83) with legal interest thereon
from date of judgment until paid.  All other claims arising from the counterclaim, and
third-party complaint, not otherwise adjudicated, are hereby dismissed, with costs
against the defendant.
"IT IS SO ORDERED."
"Bacolod City, Philippines, December 5, 1966.
(SGD) EDUARDO D. ENRIQUEZ
Judge"
(p. 41, Rollo)
On January 21, 1967, the same trial court issued an order granting plaintiff’s motion for
the issuance of a writ of execution (p. 43, Rollo) against PCIB.  However, the writ was
not enforced as plaintiff opted to file a motion dated February 20, 1967 (pp. 44-
46, Rollo) in Special Proceedings No. 1672 (estate proceedings of deceased C. N.
Hodges) for the payment of the judgment.  Herein respondent Avelina A. Magno,
as administratrix of the estate of the deceased Linnie Jane Hodges (wife of C. N.
Hodges) opposed the motion (p. 3, Rollo).  Meanwhile, in Civil Case No.
6628, Avelina Magno, filed a petition for relief from judgment on March 27, 1967 and a
motion to intervene dated April 24, 1967 (p. 57, Rollo).  On June 6, 1967, the heirs of C.
N. Hodges filed a motion to intervene in the same Civil Case No. 6628.  On July 20,
1967, respondent Judge Ramon Blanco, presiding judge of the Court of First Instance of
Iloilo City, Branch V, taking cognizance of Special Proceedings No. 1672, issued an
Order (pp. 52-56, Rollo) holding in abeyance the resolution of the motion of
Angelina Echaus for payment of the judgment rendered in her favor in Civil Case No.
6628, until after the resolution of the "Petition for Relief from Judgment" filed
by Administratrix Magno before the Court of First Instance of Negros Occidental in Civil
Case No. 6628.
On November 23, 1967, the petition for relief from judgment was denied on the ground
that Magno, as administratrix of the estate of Linnie Jane Hodges was not a party to the
case (p. 58, Rollo).  The twin motions to intervene filed by the heirs of C. N. Hodges
and Evelina Magno, as administratrix of the estate of Linnie Jane Hodges were likewise
denied on the ground that pleadings in intervention are allowed only before or during the
trial and not when a final and executory judgment had already been rendered (p.
61, Rollo).
In a motion (pp. 66-68, Rollo) dated November 25, 1968, Angelina P. Echaus prayed for
the resolution of her previous motion to direct payment of the judgment credit which was
held in abeyance, stating that the petition for relief from judgment filed in Civil Case No.
6628 was dismissed by the trial court which dismissal has become final
and executory in view of the failure of Avelina Magno to file a record on appeal on time.
On February 26, 1969, respondent Judge Ramon Blanco issued an Order (pp. 72-
74, Rollo) reiterating his position that the motion to direct payment of the judgment
credit cannot yet be resolved and holding in abeyance the resolution thereof in view of
the writ of preliminary injunction issued by the Supreme Court in G.R.  Nos. L-27860 and
L-27896, (PCIB v. Blanco), enjoining respondent judge from hearing Special
Proceedings Nos. 1307 and 1672, entitled "Testate Estate of the late  Linnie Jane
Hodges" and "Testate Estate of Charles N. Hodges," respectively.  It is noted that in the
same Order, respondent judge mentioned that the writ of preliminary injunction issued
by the Supreme Court was clarified in another resolution dated October 4, 1967 to the
effect that he (respondent judge) is not restrained from approving final deeds of sale
executed by the Administrator PCIB covering properties of the respective estates and
that he can act on such other routinary administrative matters necessary for the
gathering and preservation of the estate (pp. 73-74, Rollo).
The pertinent portion of said Order states:
"In G.R. Nos. L-27860 and L-27896, PCIB vs. Blanco, the Supreme Court on August 12,
1967 issued a writ of preliminary injunction restraining the presiding judge of this Branch
V from hearing Sp. Proc. 1307 and 1672 of the Court of First Instance of Iloilo entitled
'Testate Estate of the late Linnie Jane Hodges and Testate Estate of C. N. Hodges'
which writ of preliminary injunction was clarified by the Supreme Court in its resolution
of October 4, 1967 to the effect that the presiding judge of this Branch V is not
restrained from approving final deeds of sale executed by the administrator PCIB
covering properties of the said estate and that the presiding judge of this Branch can act
on such other routinary administration matters necessary for the gathering and
preservation of the estate.
"In view therefore of the said writ of preliminary injunction, it is the considered opinion of
the undersigned presiding judge that he cannot act, meanwhile, on the motion or
motions and the oppositions thereto taking into account that the said motions involve
substantive and mandatory procedural requirements considering that the decision of the
Court of First Instance of Negros Occidental in Civil Case 6628 is being questioned by
the oppositors as a money claim and as such should have been prosecuted in the
probate court.
"WHEREFORE, unless allowed by the Supreme Court to resolve the instant motions
and oppositions thereto thus, further clarifying the writ of preliminary injunction which
was issued on August 12, 1967, the resolution on the said motions and oppositions
thereto is hereby held in abeyance.
"SO ORDERED."
In a manifestation (pp. 69-71, Rollo, Annex "H" of Petition) dated February
28, 1969, petitioner manifested that private respondent Avelina Magno's petition
for certiorari and mandamus (G.R. L-30013) filed before this Court questioning the
validity of the decision in Civil Case No. 6628 was dismissed for lack of merit on
January 15, 1969 (p. 109, Rollo).  Still, petitioner failed to obtain an affirmative response
to their motion.
Petitioner then filed the instant petition for mandamus dated April 21, 1969 seeking:  a)
to set aside respondent judge's order of February 26, 1969; and b) to order PCIB to pay
the judgment credit in Civil Case No. 6628.
It is the contention of petitioner that the judgment in Civil Case No. 6628 is now final
and executory and the execution thereof becomes a matter of right under
Rule 39, Section 1 of the Rules of Court.  The duty to order the execution of a final and
executory judgment is ministerial and the failure of respondent judge to issue such order
is a proper case for mandamus.
On the other hand, private respondents contend that the judgment rendered in Civil
Case No. 6628 is null and void for having been rendered without jurisdiction.  Money
claims against a defendant who dies without a judgment having been rendered in the
Regional Trial Court shall be dismissed and prosecuted as a claim in the estate
proceedings as laid down under Section 21, Rule 3 of the Rules of Court.  This
procedure was not followed in Civil Case No. 6628.  Also, even if it is assumed that the
judgment in the said civil case is valid, the claim presented in the estate proceedings is
already barred by the statute of non-claims.
It must be noted that Civil Case No. 6628 which is a money claim, was instituted during
the lifetime of C. N. Hodges.  During its pendency and before a decision could be
rendered by the Regional Trial Court hearing the case, C. N. Hodges died.   Upon his
death, he was substituted by PCIB as administrator of his estate.   Being a money claim,
said civil case should have been dismissed and instituted as a money claim in the
intestate estate of C. N. Hodges (Sp. Proc. No. 1627) in accordance with Section 21 of
Rule 3 of the Revised Rules of Court, which provides:
"Sec. 21.  Where claim does not survive. -When the action is for recovery of money,
debt or interest thereon, and the defendant dies before final judgment in the Court of
First Instance, it shall be dismissed to be prosecuted in the manner especially provided
in these rules."
However, this is not to suggest that because the  claim of petitioner was pursued to its
conclusion in Civil Case No. 6682 instead of being dismissed and filed as a money
claim in Special Proceedings No. 1672, the judgment rendered therein is null and
void.  The case of Ignacio v. Pampanga Bus Co., Inc. L-18936, May 23, 1967, 20 SCRA
126, is in point.  In the said case, Pampanga Bus Co., Inc., (Pambusco) filed a suit to
collect P105,000.00 against defendants Valentin Fernando and Encarnacion Elchico
Vda. De Fernando.  The latter died during the pendency of the
case.  On Pambusco's motion, the court ordered Jose Nicolas, then Administrator, to
substitute for deceased Encarnacion Elchico Vda. De Fernando as one of the
defendants.  No objection to the order was registered.  A judgment was rendered
therein which became final.  Pambusco then moved in the intestate proceedings of the
deceased for the payment of the judgment
credit.  The administratrices opposed.  Pambusco's motion was granted.  This order
admitting Pambusco's claim was brought to Us.  We ruled therein that:
“1.  x x x
"The philosophy behind the rule which provides for the dismissal of the civil case is that,
upon the death of a defendant, all money claims should be filed in the testate or
intestate proceedings ‘to avoid useless duplicity of procedure.’  Obviously, the legal
precept just quoted is procedural in nature.  It outlines the method by which an action
for recovery of money, debt or interest may continue, upon the terms therein
prescribed.  Whether the original suit for the recovery of money -- as here -- proceeds to
its conclusion, or is dismissed and the claim covered thereby filed with the probate
court, one thing is certain:  no substantial rights of the parties are prejudiced.
“2.  x x x.  Now that the judgment has become final, the estate cannot be heard to say
that said judgment --reached after a full dress trial on the merits -- will now
go for naught.  The estate has thus waived its right to have Pambusco's claim re-
litigated in the estate proceedings.  For, though presentment of probate claims is
imperative, it is generally understood that it may be waived by the estate's
representative. And, waiver is to be determined from the administrator's ‘acts and
conduct.’  Certainly, the administrator's failure to plead the statute of non-claims, his
active participation, and resistance to plaintiff's claim, in the civil suit, amount to
such waiver.
"3.  Courts are loathe’ to overturn a final judgment.  Judicial proceedings are entitled to
respect.  Non quieta movere.  Plaintiff's claim has passed the test in three courts of
justice:  the Court of First Instance, the Court of Appeals and this Court.  The judgment
in plaintiff's favor should be enforced.  Appellant's technical objection -- after judgment
had become final in the civil case -- that plaintiff's claim should have been litigated in the
probate court does not impair the validity of said judgment.  For, such
objection does not go into the court's jurisdiction over the subject matter."
Moreover, when PCIB as administrator of the estate of C. N. Hodges was ordered to be
substituted as defendant, it registered no objection to the order.  Thus, even if  we admit
for the sake of argument that the trial court, after the death of C. N. Hodges has no
jurisdiction to render a judgment therein, the argument must fail.  PCIB, participated
actively in the said case.  It did not appeal the decision rendered therein, neither did it
raise the issue of jurisdiction at any stage.  It has been consistently held by this court
that while lack of jurisdiction may be assailed at any stage, a party's active participation
in the proceedings before the court without jurisdiction will estop such party from
assailing such lack of jurisdiction (Tajonera v. Lamaroza, (1981), 110 SCRA
438; Nieta v. Manila Banking Corp., (1983), 124 SCRA 455; cited in Sps. Antonio
Martinez and Benedicta Balatbat v. The Hon. Judge de la Merced, et al., G.R. No.
82039, June 20, 1989).
Of more importance is the fact that the validity of the decision in Civil Case No.
6628 had been passed upon by Us with finality in G.R. No. L-30013 (PCIB v.
Blanco).  In that case, the estate of C. N. Hodges and Linnie Jane Hodges questioned
the decision of the trial court dismissing the petition for relief from judgment.  We
dismissed the petition for lack of merit on January 15, 1969 (p. 109, Rollo).
Private respondent Avelina Magno, in her memorandum in lieu of oral argument,
alleged that the judgment sought to be enforced is barred under the Rules of Court
(p.180, Rollo).  The proceedings for the settlement of the estate of C. N. Hodges was
opened in 1962 and the notice to creditors was published in "Yuhum," a newspaper of
general circulation in its issues of March 12, 10, and 27, 1963.  Under Section 2, Rule
27 of the Rules of Court, the time provided for filing claims against the estate shall be
stated by the court in the notice, which shall not be more than twelve (12) months nor
less than six (6) months after the date of its first publication.  Since petitioner filed her
motion to direct payment only on February 20, 1967, which is more than four years from
the publication of the notice then, it is already barred.
The above argument of private respondent is not correct.  The Rules of Court allows a
creditor to file his claim after the period set by the court in the notice to creditors,
provided the conditions stated in the rules are present.  The rule provides:
"Sec. 2.  Time within which claims shall be filed. - XXX.  However, at any time before an
order of distribution is entered, on application of a creditor who has failed to file his
claim within the time previously limited, the court may, for cause shown and on such
terms as are equitable, allow such claim to be filed within a time not exceeding one (1)
month." (Rule 86)
It is clear from the foregoing (Section 2 of Rule Rule 87 [now Rule 86]) that the period
prescribed in the notice to creditors is not exclusive; that money claims against the
estate may be allowed any time before an order of distribution is entered, at the
discretion of the court for cause and upon such terms as are equitable
(Quisumbing v. Guison, 76 Phil. 730; Edmands v. Phil. Trust Co., G.R. No. L-
2670, September 29, 1950, 48 O.G. 139; Paulin v. Aquino, G.R. No. L-11267, March
20, 1958; Afan v. de Guzman, G.R. No. L-14715, April 28, 1960).  At the time
petitioner's motion to direct payment of the judgment credit was filed, no order of
distribution was issued yet.  Also, it is worthy to cite herein a situation, similar to the
case at bar, which was considered by this court as a good excuse for the late filing of a
claim against the decedent:
"Here, the claim was filed in the probate court on February 25, 1959, while the
defendants in the civil case were still perfecting their appeal therein.  The record does
not show that the administrator objected thereto upon the ground that it was filed out of
time.  The pendency of that case, we are persuaded to say is a good excuse for tardine
ss in the filing of the claim.  (In pari materia:  De Rama v. Palileo, L-18935, Feb. 26,
1965).  And the order of the final distribution is still to be given." (Ignacio v. Pambusco,
supra.)
It is also petitioner's contention that properties under custodia legis may be reached for
the satisfaction of a judgment, citing the case of Reganon v. Imperial, G.R. No. 24434,
January 17, 1968; Fores v. Santos, G.R. No. L-24538, May 4, 1968 and De Borja, et al.
v. De Borja, et al., L-14951, August 31, 1961.  A cursory reading of the text of the
above-cited cases will reveal that what is involved therein is the attachment for
purposes of execution of the interest of an heir (to answer for claims against such heir)
in the estate of the decedent which is allowed by the Rules; and not the attachment of
the estate itself nor any property therein for the satisfaction of a claim against the
decedent:
"Sec. 7.  Attachment of real and personal property; recording thereof. - Properties shall
be attached by the officer executing the order in the following manner:
"x x x
"(f) The interest of the party against whom attachment is issued in property belonging to 
the estate of the decedent, whether as heir, legatee or devisee, by serving the executor
or administrator or other personal representative of the decedent with a copy of the
order and notice that said interest is attached. x x x." (Rule 57, Rules of Court)
While the judgment in Civil Case No. 6628 has become final and executory, execution is
not the proper remedy to enforce payment thereof.  The ordinary procedure by which to
settle claims of indebtedness against the estate of a deceased person, x x x, is for the
claimant to present a claim before the probate court so that said court may order the
administrator to pay the amount thereof (Domingo v. Garlitos, L-18994, June 29,
1963).  This was the procedure correctly chosen by petitioner.  In Aldamiz v. Judge of
the Court of First Instance of Mindoro, L-2360, December 29, 1949, We held:
“x x x a writ of execution is not the proper procedure allowed by the Rules of Court for
the payment of debts and expenses of administration.  The proper procedure is for the
court to order the sale of personal estate or the sale or mortgage of real property of the
deceased and all debts or expenses of administration should be paid out of the
proceeds of the sale or mortgage.  The order for the sale or mortgage should be issued
upon motion of the administrator and with the written notice to all the heirs, legatees and
devisees residing in the Philippines, according to Rule 89, Section 3, and Rule 90,
Section 2.  And when sale or mortgage of real estate is to be made, the regulations
contained in Rule 90, Section 7, should be complied with."
"x x x.
And in the case of Domingo v. Garlitos, p. 446, supra:
"The legal basis for such a procedure is the fact that in the testate or intestate
proceedings to settle the estate of a deceased person, the properties belonging to the
estate are under the jurisdiction of the Court and such jurisdiction continues until said
properties have been distributed among the heirs entitled thereto.  During
the pendency of the proceedings all the estate is in custodia legis and the proper
procedure is not to allow the sheriff, in case of a court judgment, to seize the properties
but to ask the court for an order to require the administrator to pay the amount due from
the estate and required to be paid."
Nevertheless, while We hold that the judgment credit should be admitted as a claim
against the estate of C.N. Hodges, the question of whether an order to direct payment
thereof is compellable by mandamus is doubtful.  At the time the second motion for
payment was filed by petitioner, respondent judge's hands were "tied" by an existing writ
of preliminary injunction issued by Us in G.R. Nos. L-27860 and L-27896 (PCIB v.
Blanco) restraining him from hearing Special Proceedings Nos. 1307 (Testate Estate
of Linnie Jane Hodges) and No. 1672 (Testate Estate of C. N. Hodges where the motion
to direct payment was filed).  While this writ was clarified by a subsequent resolution
issued on October 4, 1967 to the effect that respondent judge is not restrained from
approving final deeds of sale executed by the administrator PCIB covering properties of
the estate and from acting on such other routinary administration matters necessary for
the gathering and preservation of the estate, it is clear that an order to direct payment is
not embraced under the clarificatory resolution.  Even if petitioners' judgment credit
were allowed as a claim against the estate, immediate payment thereof by the
administrator of the estate, is not a matter of
right.  A judgment against the executor or administrator shall be that he pay, in due cour
se of administration, the amount ascertained to be due, and it shall not create a lien upo
n the property of the estate, or give the judgment creditor any priority in payment (Sec.
13, Rule 86, Revised Rules).  The time for paying debts (and legacies) is to be fixed by
the probate court having jurisdiction over the estate of the deceased (Sec. 15, Rule
18).  In the absence of any showing that respondent judge who is taking cognizance of
the estate proceedings had already allowed the administrator to dispose of the estate
and to pay the debts and legacies of the deceased, a writ of mandamus will not issue to
compel him to order payment of petitioner's claim.
It is essential to the issuance of the writ of mandamus that the (plaintiffs) should have a
clear legal right to the thing demanded and it must be the imperative duty of the
defendant to perform the act required (Province of Pangasinan v. Reparations
Commission, 80 SCRA 376).
ACCORDINGLY, the petition for the writ of mandamus is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, (Chairman), Gancayco, and Griño-Aquino, JJ., concur.
[ G.R. No. 51278, May 09, 1988 ]
HEIRS OF RAMON PIZARRO, SR., PETITIONERS, VS. HON. FRANCISCO Z.
CONSOLACION, CFI OF DAVAO AND LUIS TAN ALIAS CHEN YEH-AN,
RESPONDENTS.

DECISION

GANCAYCO, J.:

This is a petition for review on certiorari seeking the reversal of the Order of June 1,
1979, of the then Court of First Instance of Davao ** dismissing petitioners' claim against
the estate of the late Dominga Garcia, and questioning the legality of the Order of the
same court dated 17, 1979 which denied due course to the petitioners' notice of appeal
to the Court of Appeals and directed them to file instead a petition for review before this
Tribunal.

Petitioners are the oppositors in Special Proceeding No. 2116 in the then Court of First
Instance (CFI) of Davao City Branch II, for settlement of the estate of the deceased
Dominga Garcia, filed by private respondent herein, Luis Tan alias Chen Yeh-An.

The records disclose that on August 12, 1977, Luis Tan filed a verified petition with the
CFI of Davao for the issuance of letters of administration in favor of a certain Alfonso
Atilano. The petition alleged, among others, that private respondent is the only surviving
son of the deceased Dominga Garcia who died intestate sometime in 1930 in Canton,
China; that the deceased left a parcel of land [1] located at C.M. Recto Avenue, Davao
City; and that the said lot is in the possession of the heirs of Ramon Pizarro,
[2]
 petitioners herein.

On October 4, 1977, petitioners filed an opposition to the said petition claiming that they
are the heirs of Ramon Pizarro who died intestate on June 16, 1974 and that the
deceased was the vendee of one-half (1/2) of the aforementioned lot by virtue of an
extrajudicial settlement of estate and deed of absolute sale executed by Vicenta Tan in
Hongkong on May 27, 1966. Petitioners prayed that letters of administration of Dominga
Garcia's estate be issued in favor of anyone of them.

The respondent court set the petition for hearing. Said order and the petition were duly
published in the Mindanao Times***. The City of Davao[3] was likewise served with a copy
of said petition. On December 6, 1977; after private respondent had begun presentation
of evidence in support of his petition, the parties herein entered into a compromise
whereby petitioners agreed, among others, to withdraw their opposition to the
appointment of private respondent's recommendee and for the intestate proceedings to
proceed in due course. Said agreement was approved in the order of respondent court
dated December 6, 1977.[4]

Accordingly, on March 27, 1978, after the judicial administrator had qualified and his
inventory of the assets of the late Dominga Garcia was approved, respondent court
issued an order requiring the filing of creditors’ claim against the said estate within the
period of six (6) months from the date of the first publication. [5] Copy of said order was
received by petitioners through counsel on March 28, 1979. [6]

Meanwhile, on January 23, 1979, private respondent and the City of Davao filed a joint
motion asking respondent court to take notice of their agreement which in substance
provides for an agreement to file a joint motion in the CFI of Davao to proceed with the
determination of the heirs of the deceased Dominga Garcia which shall be
determinative of their respective claims against the estate. On February 19, 1979,
petitioners filed their opposition to the said joint motion on the sole ground that it is
without procedural basis. Private respondent filed his reply thereto on February 21,
1979. On February 22, 1979, respondent court issued an order taking note of the
agreement between private respondent and the City of Davao.

On February 28, 1979, private respondent filed a motion to drop and exclude the
petitioners on the ground that they do not even claim to be the heirs of the deceased
Dominga Garcia and that the extrajudical deed of partition and deed of absolute sale
allegedly executed in Hongkong in favor of the petitioners' deceased father is spurious
and simulated. On March 5, 1979, petitioners filed their opposition to said motion. They
likewise filed a claim against the estate of the deceased Garcia in the amount of
P350,000.00 representing services allegedly rendered by their deceased father in favor
of Vicenta Tan. On March 8, 1979, private respondent filed a reply to petitioners'
opposition and a motion to strike out or dismiss the claim on the ground that it is
spurious and barred for having been filed beyond the six (6) month period set in the
notice for the filing of creditors' claim. On March 29, 1979, petitioners filed another claim
against the estate for P200,000.00 allegedly advanced by their deceased father for the
payment of realty and income taxes of the said lot sometime in 1936, to which claim
private respondent filed an opposition on the ground that it is barred for having been
filed beyond the six (6) month period and that it was merely intended to delay the
proceedings.

In the Order of June 1, 1979, respondent court dismissed both claims of the petitioners
on the ground that they are barred for having been filed out of time. [7] On June 26, 1979,
petitioners filed a notice of appeal stating that they are appealing the order of June 1,
1979 to the Court of Appeals in so far as it declared their claims barred. [8] On July 5,
1979, private respondent filed an opposition to the projected appeal on the ground that
the appeal involves a pure question of law and thus, the same should be directed to the
Supreme Court.[9] On July 17, 1979, respondent court issued an order dismissing
petitioners' appeal and directed petitioners to file instead a petition for review
on certiorari before this Court.[10]

Hence, the present petition.****

It is the position of the petitioners that the order of June 1, 1979 of the respondent court,
which directed that the filing of claims against the estate of the late Dominga Garcia be
filed within six (6) months after the first publication of the notice thereof, is null and void
in that it is violative of Section 2, Rule 86 of the Revised Rules of Court. They contend
that said provision mandates that the filing of such claims should be for a period of six
(6) months starting from the sixth month after the date of the first publication of the
notice down to the twelfth month.[11] They argue that to require filing of claims within the
sixth month from publication of notice will shorten the period in violation of the
mandatory provisions of Section 2, Rule 86, which provides:
"Sec. 2. Time within which claims shall be filed. - In the notice provided in the preceding
section, the court shall state the time for the filing of claims against the estate, which
shall not be more than twelve (12) nor less than six (6) months after the date of the first
publication of the notice. However, at anytime before an order of distribution is entered,
on application of a creditor who has failed to file his claim within the time previously
limited, the court may, for cause shown and on such terms as are equitable, allow such
claim to be filed within a time not exceeding one (1) month."
We agree. The range of the period specified in the rule is intended to give the probate
court the discretion to fix the period for the filing of claims. The probate court is
permitted by the rule to set the period provided it is not less than six (6) months nor
more than twelve (12) months from the day of the first publication of the notice thereof.
Such period once fixed by the court is mandatory.

The purpose of the law, in fixing a period within which claims against an estate must be
presented, is to insure a speedy settlement of the affairs of the deceased person and
the early delivery of the property to the person entitled to the same. [12]

In Sikat vs. Vda. de Villanueva[13] this Court ruled that the speedy settlement of the
estate of deceased persons for the benefit of creditors and those entitled to the residue
by way of inheritance or legacy after the debts and expenses of administration have
been paid is the ruling spirit of our probate law.

However, in this case the trial court set the period for the filing of the claims within six
(6) months from the date of the first publication of the notice. It was obviously short of
the minimum limit of six (6) months provided for by the law. Petitioner correctly
observed that the trial court thereby shortened the period set by the law.

Since the notice issued and the period set by the trial court was not in accordance with
the requirements of Section 2, Rule 86 of the Rules of court, what should then apply is
the period as provided for by the rules which is not less than six months nor more than
twelve (12) months from the date of first publication of notice. The first publication of the
notice in the Mindanao Times was on March 30, 1978. Thus the two claims of
petitioners against the estate which were filed on March 5, 1979 and March 29, 1979
respectively were filed on time.s

The other issue raised in the petition is the authority of the trial court to determine
whether the appeal involves a question of law or both questions of law and facts. The
petitioners cite Section 3, Rule 50 of the Rules of Court, which provides as follows:
"SEC. 3. Where appealed case erroneously brought. - Where the appealed case has
been erroneously brought to the Court of Appeals, it shall not dismiss the appeal, but
shall certify the case to the proper court, with a specific and clear statement of the
grounds therefor."
Petitioners contend that it is the Court of Appeals which has the authority to determine
whether the issue in the appeal is purely a question of law in which case it shall certify
the same to the proper court, which in this case is this Tribunal.

In the present case, when the lower court found that the order sought to be appealed
was its order of June 1, 1979 wherein it held that the claims filed by petitioners against
the estates were barred having been filed beyond the period fixed by the trial court in
the notice, which appeal involves an interpretation of Section 2, Rule 86 of the Rules of
Court, instead of giving due course to the notice of appeal to the Court of Appeals filed
by petitioners, the petitioners were instructed to file a petition for review with this Court
as the issue is a pure question of law.

We find the action taken by the trial court to be well-taken. Certainly, it is within the
competence and jurisdiction of the trial court to determine whether the appeal
interposed was based on pure questions of law or involves both questions of law and
facts in considering the appeal.[14] The provision of Section 3, Rule 50 of the Rules of
Court applies only when the appeal is already brought to the Court of Appeals at which
time it may, instead of dismissing the appeal, upon determination that it involves a pure
question of law, order that the case be certified to this Court.

It must be noted that in the notice of appeal it is not even required that the appellant
indicate the court to which its appeal is being interposed. The requirement is merely
directory and failure to comply with it or error in the court indicated is not fatal to the
appeal.[15]

WHEREFORE, the petition is GRANTED and the orders of the respondent court of June
1, 1979 and July 17, 1979 are reversed and set aside in so far as the claims filed by
petitioners were found to be barred, the same having been timely filed, without
pronouncement as to costs.

SO ORDERED.
METROPOLITAN BANK & TRUST COMPANY, PETITIONER, VS. ABSOLUTE
MANAGEMENT CORPORATION, RESPONDENT.

DECISION
BRION, J.:

We resolve petitioner Metropolitan Bank & Trust Company's (Metrobank 's) petition for
review on certiorari[1] seeking the reversal of the decision[2] dated August 25, 2005 and
the resolution[3] dated November 17, 2005 of the Court of Appeals (CA) in CA-G.R. SP
No. 86336. The assailed decision affirmed the order [4] dated May 7, 2004 of the
Regional Trial Court (RTC) of Quezon City, Branch 80. The RTC had denied the
admission of Metrobank's Fourth-Party Complaint[5] against the Estate of Jose L. Chua
for being a money claim that falls under Section 5, Rule 86 of the Rules of Court; the
claim should have been filed in the pending judicial settlement of Chua’s estate before
the RTC of Pasay City. The CA affirmed the RTC’s order based on the same ground.
Factual Antecedents

On October 5, 2000, Sherwood Holdings Corporation, Inc. (SHCI) filed a complaint for
sum of money against Absolute Management Corporation (AMC). The complaint was
docketed as Civil Case No. Q-00-42105 and was assigned to the RTC of Quezon City,
Branch 80.[6]

SHCI alleged in its complaint that it made advance payments to AMC for the purchase
of 27,000 pieces of plywood and 16,500 plyboards in the sum of P12,277,500.00,
covered by Metrobank Check Nos. 1407668502, 140768507, 140768530, 140768531,
140768532, 140768533 and 140768534. These checks were all crossed, and were all
made payable to AMC. They were given to Chua, AMC’s General Manager, in 1998. [7]

Chua died in 1999,[8] and a special proceeding for the settlement of his estate was
commenced before the RTC of Pasay City. This proceeding was pending at the time
AMC filed its answer with counterclaims and third-party complaint. [9]

SHCI made demands on AMC, after Chua’s death, for allegedly undelivered items worth
P8,331,700.00. According to AMC, these transactions could not be found in its records.
Upon investigation, AMC discovered that in 1998, Chua received from SHCI 18
Metrobank checks worth P31,807,500.00. These were all payable to AMC and were
crossed or “for payee’s account only[.]”[10]

In its answer with counterclaims and third-party complaint, [11] AMC averred that it had no
knowledge of Chua’s transactions with SHCI and it did not receive any money from the
latter. AMC also asked the RTC to hold Metrobank liable for the subject checks in case
it is adjudged liable to SHCI.

Metrobank filed a motion for bill of particulars, [12] seeking to clarify certain ambiguous
statements in AMC’s answer. The RTC granted the motion but AMC failed to submit the
required bill of particulars. Hence, Metrobank filed a motion to strike out the third-party
complaint.[13]

In the meantime, Metrobank filed a motion to dismiss [14] against AMC on the ground that
the latter engaged in prohibited forum shopping. According to Metrobank, AMC’s claim
against it is the same claim that it raised against Chua’s estate in Special Proceedings
No. 99-0023 before the RTC of Pasay City, Branch 112. The RTC subsequently denied
this motion.[15]

The RTC of Quezon City opted to defer consideration [16] of Metrobank’s motion to strike
out third-party complaint[17] and it instead granted AMC’s motion for leave to serve
written interrogatories on the third- party defendant. [18] While Metrobank filed its answer
to the written interrogatories, AMC was again directed by the RTC, in an order [19] dated
August 13, 2003, to submit its bill of particulars. Instead, AMC filed a motion for
reconsideration [20] which was denied in an order [21] dated October 28, 2003. AMC still
did not file its bill of particulars. The RTC, on the other hand, did not act on Metrobank’s
motion to strike out AMC’s third-party complaint. [22]

In its answer[23] dated December 1, 2003, Metrobank admitted that it deposited the

checks in question to the account of Ayala Lumber and Hardware, a sole proprietorship
Chua owned and managed. The deposit was allegedly done with the knowledge and
consent of AMC. According to Metrobank, Chua then gave the assurance that the
arrangement for the handling of the checks carried AMC’s consent. Chua also
submitted documents showing his position and interest in AMC. These documents, as
well as AMC’s admission in its answer that it allowed Chua to manage AMC with a
relative free hand, show that it knew of Chua’s arrangement with Metrobank. Further,
Chua’s records show that the proceeds of the checks were remitted to AMC which
cannot therefore now claim that it did not receive these proceeds.

Metrobank also raised the defense of estoppel. According to Metrobank, AMC had
knowledge of its arrangements with Chua for several years. Despite this arrangement,
AMC did not object to nor did it call the attention of Metrobank about Chua’s alleged
lack of authority to deposit the checks in Ayala Lumber and Hardware’s account. At this
point, AMC is already estopped from questioning Chua’s authority to deposit these
checks in Ayala Lumber and Hardware’s account.

Lastly, Metrobank asserted that AMC gave Chua unbridled control in managing AMC’s
affairs. This measure of control amounted to gross negligence that was the proximate
cause of the loss that AMC must now bear.

Subsequently, Metrobank filed a motion for leave to admit fourth- party

complaint[24] against Chua’s estate. It alleged that Chua’s estate should reimburse
Metrobank in case it would be held liable in the third-party complaint filed against it by
AMC.
The RTC’s Ruling

In an order[25] dated May 7, 2004, the RTC denied Metrobank’s motion. It likewise

denied Metrobank’s motion for reconsideration in an order [26] dated July 7, 2004.

The RTC categorized Metrobank’s allegation in the fourth-party complaint as a “cobro

de lo indebido”[27] – a kind of quasi-contract that mandates recovery of what has been
improperly paid. Quasi-contracts fall within the concept of implied contracts that must be
included in the claims required to be filed with the judicial settlement of the deceased’s
estate under Section 5, Rule 86 of the Rules of Court. As such claim, it should have
been filed in Special Proceedings No. 99-0023, not before the RTC as a fourth-party
complaint. The RTC, acting in the exercise of its general jurisdiction, does not have the
authority to adjudicate the fourth-party complaint. As a trial court hearing an ordinary
action, it cannot resolve matters pertaining to special proceedings because the latter is
subject to specific rules.

Metrobank responded to the RTC ruling by filing a petition for certiorari[28] under Rule 65

before the CA.
The CA’s Ruling

The CA affirmed the RTC’s ruling that Metrobank’s fourth-party complaint should have
been filed in Special Proceedings No. 99-0023. [29]

According to the CA, the relief that Metrobank prayed for was based on a quasi-contract
and was a money claim categorized as an implied contract that should be filed under
Section 5, Rule 86 of the Rules of Court.

Based on the statutory construction principle of lex specialis derogat generali, the CA
held that Section 5, Rule 86 of the Rules of Court is a special provision that should
prevail over the general provisions of Section 11, Rule 6 of the Rules of Court. The
latter applies to money claims in ordinary actions while a money claim against a person
already deceased falls under the settlement of his estate that is governed by the rules
on special proceedings. If at all, rules for ordinary actions only apply suppletorily to
special proceedings.

The Present Petition

In its present petition for review on certiorari,[30] Metrobank asserts that it should be

allowed to file a fourth-party complaint against Chua’s estate in the proceedings before
the RTC; its fourth-party complaint was filed merely to enforce its right to be reimbursed
by Chua’s estate in case Metrobank is held liable to AMC. Hence, Section 11, Rule 6 of
the Rules of Court should apply.

AMC, in its comment,[31] maintains the line that the CA and the RTC rulings should be
followed, i.e., that Metrobank’s claim is a quasi-contract that should be filed as a claim
under Section 5, Rule 86 of the Rules of Court.

AMC also challenges the form of Metrobank’s petition for failure to comply with Section
4, Rule 45 of the Rules of Court. This provision requires petitions filed before the
Supreme Court to be accompanied by “such material portions of the record as would
support the petition[.]” According to AMC, the petition’s annexes are mostly Metrobank’s
pleadings and court issuances. It did not append all relevant AMC pleadings before the
RTC and the CA. For this reason, the petition should have been dismissed outright.
Issues

The parties’ arguments, properly joined, present to us the following issues:

1) Whether the petition for review on certiorari filed by Metrobank before the Supreme
Court complies with Section 4, Rule 45 of the Rules of Court; and
2) Whether Metrobank’s fourth-party complaint against Chua’s estate should be
allowed.

The Court’s Ruling

The Present Petition Complies With Section 4, Rule 45 of the Rules of Court

AMC posits that Metrobank’s failure to append relevant AMC pleadings submitted to the
RTC and to the CA violated Section 4, Rule 45 of the Rules of Court, [32] and is a
sufficient ground to dismiss the petition under Section 5, Rule 45 of the Rules of Court.
[33]

We disagree with AMC’s position.

In F.A.T. Kee Computer Systems, Inc. v. Online Networks International, Inc., [34] Online
Networks International, Inc. similarly assailed F.A.T. Kee Computer Systems, Inc.’s
failure to attach the transcript of stenographic notes (TSN) of the RTC proceedings, and
claimed this omission to be a violation of Section 4, Rule 45 of the Rules of Court that
warranted the petition’s dismissal. The Court held that the defect was not fatal, as the
TSN of the proceedings before the RTC forms part of the records of the case. Thus,
there was no incurable omission that warranted the outright dismissal of the petition.

The Court significantly pointed out in F.A.T. Kee that the requirement in Section 4, Rule
45 of the Rules of Court is not meant to be an absolute rule whose violation would
automatically lead to the petition’s dismissal. [35]  The Rules of Court has not been
intended to be totally rigid. In fact, the Rules of Court provides that the Supreme Court
“may require or allow the filing of such pleadings, briefs, memoranda or documents as it
may deem necessary within such periods and under such conditions as it may consider
appropriate";[36] and "[i]f the petition is given due course, the Supreme Court may require
the elevation of the complete record of the case or specified parts thereof within fifteen
(15) days from notice."[37] These provisions are in keeping with the overriding standard
that procedural rules should be liberally construed to promote their objective and to
assist the parties in obtaining a just, speedy and inexpensive determination of every
action or proceeding.[38]

Under this guiding principle, we do not see Metrobank’s omission to be a fatal one that
should warrant the petition’s outright dismissal. To be sure, the omission to submit the
adverse party’s pleadings in a petition before the Court is not a commendable practice
as it may lead to an unduly biased narration of facts and arguments that masks the real
issues before the Court. Such skewed presentation could lead to the waste of the
Court’s time in sifting through the maze of the parties’ narrations of facts and arguments
and is a danger the Rules of Court seeks to avoid.

Our examination of Metrobank’s petition shows that it contains AMC’s opposition to its
motion to admit fourth-party complaint among its annexes. The rest of the pleadings
have been subsequently submitted as attachments in Metrobank’s Reply. A reading of
these pleadings shows that their arguments are the same as those stated in the orders
of the trial court and the Court of Appeals. Thus, even if Metrobank’s petition did not
contain some of AMC’s pleadings, the Court still had the benefit of a clear narration of
facts and arguments according to both parties’ perspectives. In this broader view, the
mischief that the Rules of Court seeks to avoid has not really been present. If at all, the
omission is not a grievous one that the spirit of liberality cannot address.

The Merits of the Main Issue

The main issue poses to us two essential points that must be addressed. First, are
quasi-contracts included in claims that should be filed pursuant to Rule 86, Section 5 of
the Rules of Court? Second, if so, is Metrobank’s claim against the Estate of Jose Chua
based on a quasi- contract?

Quasi-contracts are included in

claims that should be filed under Rule
86, Section 5 of the Rules of Court

In Maclan v. Garcia,[39] Gabriel Maclan filed a civil case to recover from Ruben Garcia
the necessary expenses he spent as possessor of a piece of land. Garcia acquired the
land as an heir of its previous owner. He set up the defense that this claim should have
been filed in the special proceedings to settle the estate of his predecessor. Maclan, on
the other hand, contended that his claim arises from law and not from contract, express
or implied. Thus, it need not be filed in the settlement of the estate of Garcia’s
predecessor, as mandated by Section 5, Rule 87 of the Rules of Court (now Section 5,
Rule 86).

The Court held under these facts that a claim for necessary expenses spent as previous
possessor of the land is a kind of quasi-contract. Citing Leung Ben v. O’Brien,[40] it
explained that the term “implied contracts,” as used in our remedial law, originated from
the common law where obligations derived from quasi-contracts and from law are both
considered as implied contracts. Thus, the term quasi-contract is included in the
concept “implied contracts” as used in the Rules of Court. Accordingly, liabilities of the
deceased arising from quasi-contracts should be filed as claims in the settlement of his
estate, as provided in Section 5, Rule 86 of the Rules of Court. [41]

Metrobank’s fourth-party complaint

is based on quasi-contract
Both the RTC and the CA described Metrobank’s claim against Chua’s estate as one
based on quasi-contract. A quasi-contract involves a juridical relation that the law
creates on the basis of certain voluntary, unilateral and lawful acts of a person, to avoid
unjust enrichment.[42] The Civil Code provides an enumeration of quasi-contracts, [43] but
the list is not exhaustive and merely provides examples. [44]

According to the CA, Metrobank’s fourth-party complaint falls under the quasi-contracts
enunciated in Article 2154 of the Civil Code. [45] Article 2154 embodies the concept
“solutio indebiti” which arises when something is delivered through mistake to a person
who has no right to demand it. It obligates the latter to return what has been received
through mistake.[46]

Solutio indebiti, as defined in Article 2154 of the Civil Code, has two indispensable
requisites: first, that something has been unduly delivered through mistake; and second,
that something was received when there was no right to demand it. [47]

In its fourth-party complaint, Metrobank claims that Chua’s estate should reimburse it if
it becomes liable on the checks that it deposited to Ayala Lumber and Hardware’s
account upon Chua’s instructions.

This fulfills the requisites of solutio indebiti. First, Metrobank acted in a manner akin to a
mistake when it deposited the AMC checks to Ayala Lumber and Hardware’s account;
because of Chua’s control over AMC’s operations, Metrobank assumed that the checks
payable to AMC could be deposited to Ayala Lumber and Hardware’s account. Second,
Ayala Lumber and Hardware had no right to demand and receive the checks that were
deposited to its account; despite Chua’s control over AMC and Ayala Lumber and
Hardware, the two entities are distinct, and checks exclusively and expressly payable to
one cannot be deposited in the account of the other. This disjunct created an obligation
on the part of Ayala Lumber and Hardware, through its sole proprietor, Chua, to return
the amount of these checks to Metrobank.

The Court notes, however, that its description of Metrobank’s fourth- party complaint as
a claim closely analogous to solutio indebiti is only to determine the validity of the lower
courts’ orders denying it. It is not an adjudication determining the liability of Chua’s
estate against Metrobank. The appropriate trial court should still determine whether
Metrobank has a lawful claim against Chua’s estate based on quasi-contract.

Metrobank’s fourth-party complaint,

as a contingent claim, falls within the
claims that should be filed under Section 5,
Rule 86 of the Rules of Court

A distinctive character of Metrobank’s fourth-party complaint is its contingent nature –

the claim depends on the possibility that Metrobank would be adjudged liable to AMC, a
future event that may or may not happen. This characteristic unmistakably marks the
complaint as a contingent one that must be included in the claims falling under the
terms of Section 5, Rule 86 of the Rules of Court:
Sec. 5. Claims which must be filed under the notice. If not filed, barred; exceptions. – All
claims for money against the decedent, arising from contract, express or implied,
whether the same be due, not due, or contingent, all claims for funeral expenses and
expenses for the last sickness of the decedent, and judgment for money against the
decedent, must be filed within the time limited in the notice[.] [italics ours]

Specific provisions of Section 5, Rule 86 of the

Rules of Court prevail over general provisions
of Section 11, Rule 6 of the Rules of Court

Metrobank argues that Section 11, Rule 6 of the Rules of Court should apply because it
impleaded Chua’s estate for reimbursement in the same transaction upon which it has
been sued by AMC. On this point, the Court supports the conclusion of the CA, to wit:
Notably, a comparison of the respective provisions of Section 11, Rule 6 and Section 5,
Rule 86 of the Rules of Court readily shows that Section 11, Rule 6 applies to ordinary
civil actions while Section 5, Rule 86 specifically applies to money claims against the
estate. The specific provisions of Section 5, Rule 86 x x x must therefore prevail over
the general provisions of Section 11, Rule 6[.] [48]

We read with approval the CA’s use of the statutory construction principle of lex
specialis derogat generali, leading to the conclusion that the specific provisions of
Section 5, Rule 86 of the Rules of Court should prevail over the general provisions of
Section 11, Rule 6 of the Rules of Court; the settlement of the estate of deceased
persons (where claims against the deceased should be filed) is primarily governed by
the rules on special proceedings, while the rules provided for ordinary claims, including
Section 11, Rule 6 of the Rules of Court, merely apply suppletorily. [49]

In sum, on all counts in the considerations material to the issues posed, the resolution
points to the affirmation of the assailed CA decision and resolution. Metrobank's claim in
its fourth-party complaint against Chua's estate is based on quasi-contract. It is also a
contingent claim that depends on another event. Both belong to the category of claims
against a deceased person that should be filed under Section 5, Rule 86 of the Rules of
Court and, as such, should have been so filed in Special Proceedings No. 99-0023.

WHEREFORE, premises considered, we hereby DENY the petition for lack of merit.

The decision of the Court of Appeals dated August 25, 2005, holding that the Regional
Trial Court of Quezon City, Branch 80, did not commit grave abuse of discretion in
denying Metropolitan Bank & Trust Company's motion for leave to admit fourth-party
complaint is AFFIRMED. Costs against Metropolitan Bank & Trust Company.

SO ORDERED.

Carpio, (Chairperson), Del Castillo, Perez, and Perlas-Bernabe, JJ., concur.

[ G.R. No. 53966, May 21, 1988 ]
 IN THE MATTER OF INTESTATE ESTATE OF JOSE B. YUSAY, JAIME
VILLANUEVA, ESTEBAN TUANTE, VIVENCIO BIGSAT, ANACLETO LIBO-ON,
FELECITO ARAQUIEL, NARCISO PARCON, JOSE JEONGCO, ARISTON DE JUAN,
DIONISIO CERCADO, GERONIMO YUNSAY, LEONCIO YUNSAY, MANUEL PILLA,
BUENVINIDO FRANCO, CIRIACO CABAL, ANTONIO LARANO, SALVADOR DEL
PRADO, AND CORNELIO PATRIARCA, MOVANTS-CLAIMANTS-APPELLANTS, VS.
TERESITA Y. RAMOS, ADMINISTRATRIC-OPPOSITOR-APPELLEE.

DECISION

GUTIERREZ, JR., J.:

The Court of Appeals forwarded this appeal to us on the ground that the question raised
is a purely legal one. The order appealed from was issued by the then Court of First
Instance of Iloilo, Branch IV which sustained the refusal of the administratrix of the late
Jose B. Yusay's estate to pay P26,907.22 earlier awarded to the petitioners by the
National Labor Relations Commission (NLRC). *

The facts of the case are found in the Court of Appeals' resolution, as follows:
xxx xxx xxx
"x x x The claimants-appellants were laborers working for Jose B. Yusay. After Mr.
Yusay's death on September 19, 1969 the workers filed a claim with the National Labor
Relations Commission for their share in the sugar amelioration fund. The NLRC office at
Iloilo City awarded them P26,907.22 corresponding to their participation in the said fund
from the 1968-69 crop year to the 1973-74 crop year but excluding the 1972-73 crop
year. The award was affirmed by the National Labor Relations Commission, Second
Division, on May 13, 1975. The decision became final and executory. It could not be
enforced, however, because the administratrix of the Yusay estate refused to pay the
award.

"The only issue on appeal is the correctness of the lower Court's ruling that the claim
was filed out of time.

"The lower Court stated:

"The records show that the late Jose B. Yusay died on September 17, 1969 and the
petition was published in the Visayan Tribune in its October 6, 12 and 20, 1969 issue.
The notice of creditors dated November 26, 1969 was published on December 1, 8 and
15, 1969 issues of the Visayan Tribune. The present claim in question was filed on
January 13, 1976 or a period of almost seven (7) years from the first notice of
publication of the creditors on December 1, 1969 and a period of almost two (2) years
from the approval of the project of partition which was on February 5, 1974. So many
years have lapsed before movants-claimants have realized that they have a claim
against the estate. They alleged that the delay in filing of the claim was due to the
pendency of their case before the National Labor Relations Commission. Where a
money claim, which was still being litigated in a civil action was filed in the intestate
proceeding after the expiration of the period fixed in the notice to creditors but before
the order of final distribution was issued, the pendency of the civil action was good
excuse for the tardy filing of the claim (Ignacio v. Pampanga Bus Co., Inc., L-18936,
May 23, 1967). It is to be noted that claims may be granted if filed before the final
distribution of the properties. The Court is of the opinion that if such claim was filed after
the final distribution, the same can be denied, otherwise, the heirs will wake up one day
to find out that nothing has been left to the estate. In the case at bar, movants-claimants
rights have already lapsed. It is true that it is discretionary upon the Court to grant
claims against the estate filed beyond the period fixed by law, but this is also limited.
Thus, extension can be made, but the time is one month from the expiration of such
period but in no case beyond the date of entry of the order of distribution. (Afan v. de
Guzman, L-14713, April 28, 1960).

"All the arguments of the appellants refute the conclusion of the Court that a claim filed
out of time may no longer be favorably considered." (p. 25, Rollo; pp. 2-3, Resolution of
the Court of Appeals).
It is quite true that the courts can extend the period within which to present claims
against the estate, even after the period limited has lapsed, but such extension could
only be granted under special circumstances (De Villanueva v. Philippine National
Bank, 9 SCRA 145). Given the law and facts of the case, the action taken by the lower
court in disallowing the claim can not be considered an abuse of discretion to justify its
reversal by this Court.

We agree with the appellee that the claim is barred by the Statute of Non-claims. The
pendency of the claim before the National Labor Relations Commission is not a
sufficient excuse for the belated filing of the disputed claim.

It appears from the records that the appellants instituted an action with the National
Labor Relations Commission to recover their share of the sugar amelioration fund after
the death of Jose B. Yusay. They were, therefore, trying to recover money from a
deceased person. They had notice of the period within which to file claims against the
estate. They were aware that settlement proceedings had been going on until a project
of partition was approved on February 5, 1974. The decision of the labor arbiter
awarding the appellants a sum of money was promulgated on January 10, 1975. The
decision was-affirmed in toto by the National Labor Relations Commission on May 13,
1975. The claim against the estate was filed only on January 13, 1976, one (1) year
after the promulgation of the decision or eight (8) months after the same had become
final and executory. Aside from the fact that the claim was filed almost seven (7) years
from the notice of publication to the creditors on December 1, 1969 and a period of two
(2) years from the approval of the project of partition, the appellants unreasonably
allowed many months to lapse after judgment was rendered before their claim for
money was filed.

Assuming arguendo that the appellants had a legitimate claim against the estate even
after the project of partition had been approved two years earlier, due diligence should
have been exercised in notifying the lower court immediately after the favorable
judgment was rendered (See De Rama v. Palileo, 13 SCRA 228). Unfortunately; the
appellants failed in the instant case. Absent any showing of excusable negligence,
unavoidable mistake, accident or fraud warranting the interposition of a court of equity,
the claim may no longer be allowed (Nebraska Wesleyan University v. Bowan, 103 NW
275).

WHEREFORE, finding no reversible error in the order appealed from, the appeal is

hereby DISMISSED. The decision of the trial court is AFFIRMED.

SO ORDERED.
[ G.R. No. 171206, September 23, 2013 ]
HEIRS OF THE LATE SPOUSES FLAVIANO MAGLASANG AND SALUD ADAZA-
MAGLASANG, NAMELY, OSCAR A. MAGLASANG, EDGAR A. MAGLASANG,
CONCEPCION CHONA A. MAGLASANG, GLENDA A. MAGLASANG-ARNAIZ,
LERMA A. MAGLASANG, FELMA A. MAGLASANG, FE DORIS A. MAGLASANG,
LEOLINO A. MAGLASANG, MARGIE LEILA A. MAGLASANG, MA. MILALIE A.
MAGLASANG, SALUD MAGLASANG, AND MA. FLASALIE A. MAGLASANG,
REPRESENTING THE ESTATES OF THEIR AFORE-NAMED DECEASED PARENTS,
PETITIONERS, VS. MANILA BANKING CORPORAT ON, NOW SUBSTITUTED BY
FIRST SOVEREIGN ASSET MANAGEMENT [SPV-AMC], INC. [FSAMI],
RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari[1] are the Decision[2] dated July 20, 2005
and Resolution[3] dated January 4, 2006 of the Court of Appeals (CA) in CA-G.R. CV
No. 50410 which dismissed petitioners’ appeal and affirmed the Decision [4] dated April
6, 1987 of the Regional Trial Court of Ormoc City, Branch 12 (RTC) directing petitioners
to jointly and severally pay respondent Manila Banking Corporation the amount of
P434,742.36, with applicable interests, representing the deficiency of the former’s total
loan obligation to the latter after the extra-judicial foreclosure of the real estate
mortgage subject of this case, including attorney’s fees and costs of suit.
The Facts

On June 16, 1975, spouses Flaviano and Salud Maglasang (Sps. Maglasang) obtained
a credit line from respondent[5] in the amount of P350,000.00 which was secured by a
real estate mortgage[6] executed over seven of their properties[7] located in Ormoc City
and the Municipality of Kananga, Province of Leyte. [8] They availed of their credit line by
securing loans in the amounts of P209,790.50 and P139,805.83 on October 24, 1975
and March 15, 1976, respectively,[9] both of which becoming due and demandable within
a period of one year. Further, the parties agreed that the said loans would earn interest
at 12% per annum (p.a.) and an additional 4% penalty would be charged upon default.
[10]
After Flaviano Maglasang (Flaviano) died intestate on February 14, 1977, his widow
Salud Maglasang (Salud) and their surviving children, herein petitioners Oscar (Oscar),
Concepcion Chona, Lerma, Felma, Fe Doris, Leolino, Margie Leila, Ma. Milalie, Salud
and Ma. Flasalie, all surnamed Maglasang, and Glenda Maglasang-Arnaiz,
appointed[11] their brother petitioner Edgar Maglasang (Edgar) as their attorney-in-fact.
[12]
 Thus, on March 30, 1977, Edgar filed a verified petition for letters of administration of
the intestate estate of Flaviano before the then Court of First Instance of Leyte, Ormoc
City, Branch 5 (probate court), docketed as Sp. Proc. No. 1604-0. [13] On August 9, 1977,
the probate court issued an Order[14] granting the petition, thereby appointing Edgar as
the administrator[15] of Flaviano’s estate.

In view of the issuance of letters of administration, the probate court, on August 30,
1977, issued a Notice to Creditors[16] for the filing of money claims against Flaviano’s
estate. Accordingly, as one of the creditors of Flaviano, respondent notified [17] the
probate court of its claim in the amount of P382,753.19 as of October 11, 1978,
exclusive of interests and charges.

During the pendency of the intestate proceedings, Edgar and Oscar were able to obtain
several loans from respondent, secured by promissory notes [18] which they signed.

In an Order[19] dated December 14, 1978 (December 14, 1978 Order), the probate court
terminated the proceedings with the surviving heirs executing an extra-judicial partition
of the properties of Flaviano’s estate. The loan obligations owed by the estate to
respondent, however, remained unsatisfied due to respondent’s certification that
Flaviano’s account was undergoing a restructuring. Nonetheless, the probate court
expressly recognized the rights of respondent under the mortgage and promissory
notes executed by the Sps. Maglasang, specifically, its “right to foreclose the same
within the statutory period.”[20]

In this light, respondent proceeded to extra-judicially foreclose the mortgage covering

the Sps. Maglasang’s properties and emerged as the highest bidder at the public
auction for the amount of P350,000.00.[21] There, however, remained a deficiency on
Sps. Maglasang’s obligation to respondent. Thus, on June 24, 1981, respondent filed a
suit to recover the deficiency amount of P250,601.05 as of May 31, 1981 against the
estate of Flaviano, his widow Salud and petitioners, docketed as Civil Case No. 1998-0.
[22]

The RTC Ruling and Subsequent Proceedings

After trial on the merits, the RTC (formerly, the probate court) [23] rendered a
Decision[24] on April 6, 1987 directing the petitioners to pay respondent, jointly and
severally, the amount of P434,742.36 with interest at the rate of 12% p.a., plus a 4%
penalty charge, reckoned from September 5, 1984 until fully paid. [25] The RTC found that
it was shown, by a preponderance of evidence, that petitioners, after the extra-judicial
foreclosure of all the properties mortgaged, still have an outstanding obligation in the
amount and as of the date as above-stated. The RTC also found in order the payment
of interests and penalty charges as above-mentioned as well as attorney’s fees
equivalent to 10% of the outstanding obligation. [26]

Dissatisfied, petitioners elevated the case to the CA on appeal, contending, [27] inter alia,
that the remedies available to respondent under Section 7, Rule 86 of the Rules of
Court (Rules) are alternative and exclusive, such that the election of one operates as a
waiver or abandonment of the others. Thus, when respondent filed its claim against the
estate of Flaviano in the proceedings before the probate court, it effectively abandoned
its right to foreclose on the mortgage. Moreover, even on the assumption that it has not
so waived its right to foreclose, it is nonetheless barred from filing any claim for any
deficiency amount.

During the pendency of the appeal, Flaviano’s widow, Salud, passed away on July 25,
1997.[28]
The CA Ruling

In a Decision[29] dated July 20, 2005, the CA denied the petitioners’ appeal and affirmed
the RTC’s Decision. At the outset, it pointed out that the probate court erred when it,
through the December 14, 1978 Order, closed and terminated the proceedings in Sp.
Proc. No. 1604-0 without first satisfying the claims of the creditors of the estate – in
particular, respondent – in violation of Section 1, Rule 90 of the Rules. [30] As a
consequence, respondent was not able to collect from the petitioners and thereby was
left with the option of foreclosing the real estate mortgage. [31] Further, the CA held that
Section 7, Rule 86 of the Rules does not apply to the present case since the same does
not involve a mortgage made by the administrator over any property belonging to the
estate of the decedent.[32] According to the CA, what should apply is Act No.
3135[33] which entitles respondent to claim the deficiency amount after the extra-judicial
foreclosure of the real estate mortgage of Sps. Maglasang’s properties. [34]

Petitioners’ motion for reconsideration was subsequently denied in a Resolution [35] dated

January 4, 2006. Hence, the present recourse.
The Issue Before the Court

The essential issue in this case is whether or not the CA erred in affirming the RTC’s
award of the deficiency amount in favor of respondent.

Petitioners assert[36] that it is not Act No. 3135 but Section 7, Rule 86 of the Rules which
applies in this case. The latter provision provides alternative and exclusive remedies for
the satisfaction of respondent’s claim against the estate of Flaviano. [37] Corollarily,
having filed its claim against the estate during the intestate proceedings, petitioners
argue that respondent had effectively waived the remedy of foreclosure and, even
assuming that it still had the right to do so, it was precluded from filing a suit for the
recovery of the deficiency obligation.[38]

Likewise, petitioners maintain that the extra-judicial foreclosure of the subject properties
was null and void, not having been conducted in the capital of the Province of Leyte in
violation of the stipulations in the real estate mortgage contract. [39] They likewise deny
any personal liability for the loans taken by their deceased parents. [40]
The Court’s Ruling

The petition is partly meritorious.

Claims against deceased persons should be filed during the settlement proceedings of
their estate.[41] Such proceedings are primarily governed by special rules found under
Rules 73 to 90 of the Rules, although rules governing ordinary actions may, as far as
practicable, apply suppletorily.[42]

Among these special rules, Section 7, Rule 86 of the Rules (Section 7, Rule 86)
provides the rule in dealing with secured claims against the estate:
SEC. 7. Mortgage debt due from estate. – A creditor holding a claim against the
deceased secured by a mortgage or other collateral security, may abandon the
security and prosecute his claim in the manner provided in this rule, and share in the
general distribution of the assets of the estate; or he may foreclose his mortgage or
realize upon his security, by action in court, making the executor or administrator a party
defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged
premises, or the property pledged, in the foreclosure or other proceeding to realize upon
the security, he may claim his deficiency judgment in the manner provided in the
preceding section; or he may rely upon his mortgage or other security alone, and
foreclose the same at any time within the period of the statute of limitations, and in that
event he shall not be admitted as a creditor, and shall receive no share in the
distribution of the other assets of the estate; but nothing herein contained shall prohibit
the executor or administrator from redeeming the property mortgaged or pledged, by
paying the debt for which it is held as security, under the direction of the court, if the
court shall adjudged it to be for the best interest of the estate that such redemption shall
be made. (Emphasis and underscoring supplied)
As the foregoing generally speaks of “[a] creditor holding a claim against the deceased
secured by a mortgage or other collateral security” as above-highlighted, it may be
reasonably concluded that the aforementioned section covers all secured claims,
whether by mortgage or any other form of collateral, which a creditor may enforce
against the estate of the deceased debtor. On the contrary, nowhere from its language
can it be fairly deducible that the said section would – as the CA interpreted – narrowly
apply only to mortgages made by the administrator over any property belonging to the
estate of the decedent. To note, mortgages of estate property executed by the
administrator, are also governed by Rule 89 of the Rules, captioned as “Sales,
Mortgages, and Other Encumbrances of Property of Decedent.”

In this accord, it bears to stress that the CA’s reliance on Philippine National Bank v.
CA[43] (PNB) was misplaced as the said case did not, in any manner, limit the scope of
Section 7, Rule 86. It only stated that the aforesaid section equally applies to cases
where the administrator mortgages the property of the estate to secure the loan he
obtained.[44] Clearly, the pronouncement was a ruling of inclusion and not one which
created a distinction. It cannot, therefore, be doubted that it is Section 7, Rule 86 which
remains applicable in dealing with a creditor’s claim against the mortgaged property of
the deceased debtor, as in this case, as well as mortgages made by the administrator,
as that in the PNB case.

Jurisprudence breaks down the rule under Section 7, Rule 86 and explains that the
secured creditor has three remedies/options that he may alternatively adopt for the
satisfaction of his indebtedness. In particular, he may choose to: (a) waive the mortgage
and claim the entire debt from the estate of the mortgagor as an ordinary claim; (b)
foreclose the mortgage judicially and prove the deficiency as an ordinary claim; and (c)
rely on the mortgage exclusively, or other security and foreclose the same before it is
barred by prescription, without the right to file a claim for any deficiency. [45] It must,
however, be emphasized that these remedies are distinct, independent and mutually
exclusive from each other; thus, the election of one effectively bars the exercise of the
others. With respect to real properties, the Court in Bank of America v. American Realty
Corporation[46] pronounced:
In our jurisdiction, the remedies available to the mortgage creditor are
deemed alternative and not cumulative. Notably, an election of one remedy
operates as a waiver of the other. For this purpose, a remedy is deemed chosen upon
the filing of the suit for collection or upon the filing of the complaint in an action for
foreclosure of mortgage, pursuant to the provision of Rule 68 of the 1997 Rules of Civil
Procedure. As to extrajudicial foreclosure, such remedy is deemed elected by the
mortgage creditor upon filing of the petition not with any court of justice but with the
Office of the Sheriff of the province where the sale is to be made, in accordance with the
provisions of Act No. 3135, as amended by Act No. 4118. [47] (Emphasis supplied)
Anent the third remedy, it must be mentioned that the same includes the option of extra-
judicially foreclosing the mortgage under Act No. 3135, as availed of by respondent in
this case. However, the plain result of adopting the last mode of foreclosure is that the
creditor waives his right to recover any deficiency from the estate. [48] These precepts
were discussed in the PNB case, citing Perez v. Philippine National Bank[49] which
overturned the earlier Pasno v. Ravina ruling:[50]
Case law now holds that this rule grants to the mortgagee three distinct, independent
and mutually exclusive remedies that can be alternatively pursued by the mortgage
creditor for the satisfaction of his credit in case the mortgagor dies, among them:
(1) to waive the mortgage and claim the entire debt from the estate of the mortgagor as
an ordinary claim;

(2) to foreclose the mortgage judicially and prove any deficiency as an ordinary claim;
and

(3) to rely on the mortgage exclusively, foreclosing the same at any time before it is
barred by prescription without right to file a claim for any deficiency.
In Perez v. Philippine National Bank, reversing Pasno vs. Ravina, we held:

The ruling in Pasno v. Ravina not having been reiterated in any other case, we have
carefully reexamined the same, and after mature deliberation have reached the
conclusion that the dissenting opinion is more in conformity with reason and law. Of the
three alternative courses that section 7, Rule 87 (now Rule 86), offers the mortgage
creditor, to wit, (1) to waive the mortgage and claim the entire debt from the estate of
the mortgagor as an ordinary claim; (2) foreclose the mortgage judicially and prove any
deficiency as an ordinary claim; and (3) to rely on the mortgage exclusively, foreclosing
the same at any time before it is barred by prescription, without right to file a claim
for any deficiency, the majority opinion in Pasno v. Ravina, in requiring a judicial
foreclosure, virtually wipes out the third alternative conceded by the Rules to the
mortgage creditor, and which would precisely include extra-judicial foreclosures by
contrast with the second alternative.

The plain result of adopting the last mode of foreclosure is that the creditor
waives his right to recover any deficiency from the estate. Following
the Perez ruling that the third mode includes extrajudicial foreclosure sales, the
result of extrajudicial foreclosure is that the creditor waives any further
deficiency claim. x x x.[51] (Emphases and underscoring supplied; italics in the original)
To obviate any confusion, the Court observes that the operation of Act No. 3135 does
not entirely discount the application of Section 7, Rule 86, or vice-versa. Rather, the two
complement each other within their respective spheres of operation. On the one hand,
Section 7, Rule 86 lays down the options for the secured creditor to claim against the
estate and, according to jurisprudence, the availment of the third option bars him from
claiming any deficiency amount. On the other hand, after the third option is chosen, the
procedure governing the manner in which the extra-judicial foreclosure should proceed
would still be governed by the provisions of Act No. 3135. Simply put, Section
7, Rule 86 governs the parameters and the extent to which a claim may be advanced
against the estate, whereas Act No. 3135 sets out the specific procedure to be followed
when the creditor subsequently chooses the third option – specifically, that of extra-
judicially foreclosing real property belonging to the estate. The application of the
procedure under Act No. 3135 must be concordant with Section 7, Rule 86 as the latter
is a special rule applicable to claims against the estate, and at the same time, since
Section 7, Rule 86 does not detail the procedure for extra-judicial foreclosures, the
formalities governing the manner of availing of the third option – such as the place
where the application for extra-judicial foreclosure is filed, the requirements of
publication and posting and the place of sale – must be governed by Act No. 3135.

In this case, respondent sought to extra-judicially foreclose the mortgage of the

properties previously belonging to Sps. Maglasang (and now, their estates) and,
therefore, availed of the third option. Lest it be misunderstood, it did not exercise the
first option of directly filing a claim against the estate, as petitioners assert, since it
merely notified[52] the probate court of the outstanding amount of its claim against the
estate of Flaviano and that it was currently restructuring the account. [53] Thus, having
unequivocally opted to exercise the third option of extra-judicial foreclosure under
Section 7, Rule 86, respondent is now precluded from filing a suit to recover any
deficiency amount as earlier discussed.

As a final point, petitioners maintain that the extra-judicial foreclosure of the subject
properties was null and void since the same was conducted in violation of the stipulation
in the real estate mortgage contract stating that the auction sale should be held in the
capital of the province where the properties are located, i.e., the Province of Leyte.

The Court disagrees.

As may be gleaned from the records, the stipulation under the real estate
mortgage[54] executed by Sps. Maglasang which fixed the place of the foreclosure sale
at Tacloban City lacks words of exclusivity which would bar any other acceptable fora
wherein the said sale may be conducted, to wit:
It is hereby agreed that in case of foreclosure of this mortgage under Act 3135, the
auction sale shall be held at the capital of the province if the property is within the
territorial jurisdiction of the province concerned, or shall be held in the city if the property
is within the territorial jurisdiction of the city concerned; x x x. [55]
Case law states that absent such qualifying or restrictive words to indicate the
exclusivity of the agreed forum, the stipulated place should only be as an additional, not
a limiting venue.[56] As a consequence, the stipulated venue and that provided under Act
No. 3135 can be applied alternatively.

In particular, Section 2 of Act No. 3135 allows the foreclosure sale to be done within the
province where the property to be sold is situated, viz.:
SEC. 2. Said sale cannot be made legally outside of the province which the property
sold is situated; and in case the place within said province in which the sale is to be
made is subject to stipulation, such sale shall be made in said place or in the municipal
building of the municipality in which the property or part thereof is situated. (Italics
supplied)
In this regard, since the auction sale was conducted in Ormoc City, which is within the
territorial jurisdiction of the Province of Leyte, then the Court finds sufficient compliance
with the above-cited requirement.

All told, finding that the extra-judicial foreclosure subject of this case was properly
conducted in accordance with the formalities of Act No. 3135, the Court upholds the
same as a valid exercise of respondent's third option under Section 7, Rule 86. To
reiterate, respondent cannot, however, file any suit to recover any deficiency amount
since it effectively waived its right thereto when it chose to avail of extra-judicial
foreclosure as jurisprudence instructs.

WHEREFORE, the petition is PARTLY GRANTED. The complaint for the recovery of
the deficiency amount after extra-judicial foreclosure filed by respondent Manila Banking
Corporation is hereby DISMISSED. The extra-judicial foreclosure of the mortgaged
properties, however, stands.

SO ORDERED.
[ G.R. No. L-28298, November 25, 1983 ]
ROSITA SANTIAGO DE BAUTISTA, ET AL., PLAINTIFFS-APPELLEES, VS.
VICTORIA DE GUZMAN, ET AL., DEFENDANTS-APELLANTS.
 DECISION

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Court of First Instance of Rizal, Pasay
City branch, in Civil Case No. 3530, ordering the defendants-appellants to pay the
plaintiffs-appellees damages and attorney’s fees and dismissing the former's
counterclaim. As no questions of facts were raised by the appellants in their brief, the
Court of Appeals certified this case to us for decision.
The facts, as stated in the resolution of the appellate court, are as follows:
On May 10, 1952, Numeriano Bautista, husband and father of the plaintiffs-appellees,
respectively, was a passenger of jeepney bearing Plate No. TPU-4013, owned and
operated by Rosendo de Guzman, deceased husband and father of defendants-
appellants, respectively, as one of the jeepneys used in his transportation business.
Eugenio Medrano y Torres was employed by said Rosendo de Guzman as the driver of
said jeepney. Said driver drove and managed said jeepney at that time along Taft
Avenue, Pasay City, in a negligent and reckless manner and, as a result, the jeepney
turned turtle and, conequently, passenger Numeriano Bautista sustained physical
injuries which caused his death. Eugenio Medrano, the driver, was accused and
convicted of homicide through reckless imprudence by the trial court in a decision
promulgated on May 27, 1952 and sentenced to a penalty of imprisonment of four (4)
months and one (1) day of arresto mayor and to indemnify the heirs of Numeriano
Bautista, plaintiffs-appellees herein, in the sum of P3,000.00. A writ of execution was
issued against said driver, Eugenio Medrano for the said sum of P3,000.00 but the
same was returned to the Court unsatisfied.
On May 12, 1952, Rosendo de Guzman died.
Because of their failure to collect the said sum of P3,000.00 from the driver, Eugenio
Medrano, plaintiffs-appellees filed a complaint (Cavil Case No. 2050) dated October 7,
1952, with the Court of First Instance of Rizal, Pasay City Branch, against defendants-
appellants alleging, among other things besides the above-mentioned incidents, that
they demanded from Rosendo de Guzman and from the defendants-appellants the
payment of the sums of P3,000.00 as subsidiary liability; P10,000.00 as actual
exemplary and moral damages and P1,000.00 as attorney’s fees for the suit by reason
of the death of Numeriano Bautista as related above, but Rosendo de Guzman and later
the herein defendants-appellants refused to pay the same. Plaintiffs-appellees therefore
prayed that the defendants-appellants be ordered to pay the said sums as well as the
costs of suit.
Defendants-appellants through counsel filed a motion to dismiss predicated on two
grounds, namely, that the lower court had no jurisdiction over the subject matter of the
litigation and that the complaint stated no cause of action. In support of said motion,
they maintained that the suit was for a money claim against the supposed debtor who
was already dead and as such it should be filed in testate or intestate proceedings or, in
the absence of such proceedings, after the lapse of thirty (30) days, the creditors should
initiate such proceedings; that the heirs could not be held liable therefor since there was
no allegation that they assumed the alleged obligation.
The lower court sustained the motion to dismiss in an order dated May 11, 1953,
stating, among other things, that:
"The procedure thus opened for a money claimant against a deceased person, as in the
instant case, is for said claimant to file proceedings for the opening of the judicial
administration of the estate of said deceased person and to present his claim in said
proceedings. The claimant may only proceed to sue the heirs of the deceased directly
where such heirs have entered into an extra-judicial partition of such estate and have
distributed the latter among themselves, in which case, the heirs become liable to the
claimant in proportion to the share which they have received as inheritance. Plaintiffs'
complaint does not state that the defendants have received any such inheritance from
their said deceased father, Rosendo de Guzman, and hence, there is no cause of action
against aforesaid defendants."
This order became final.
Then on December 14, 1954, plaintiffs-appelless filed with the same trial court Civil
Case No. 3530 (subject of this appeal) against the same defendants in the former case,
the complaint containing analogous allegations as those embodied in the first complaint
but in this second complaint they further allege that on June 12, 1952, Rosendo de
Guzman died intestate and that intestate proceedings were filed in the same court and
docketed therein as Special Proceedings No. 1303-P, wherein on April 20, 1953, a
project of partition was presented in and approved by said Court with the five heirs
receiving their shares valued at P2,294.05 each, and on May 14, 1953, said intestate
proceedings were closed. They also alleged that Numeriano Bautista during his lifetime
was the only one supporting them and his death caused them shock, sufferings and
anxiety and therefore defendants-appellants should pay to them, aside from
the P3,000.00, an adtional amount of P15,000.00 as moral, exemplary and
compensatory damages, plus the sum of P2,000.00 as attorney’s fees for the
prosecution of this case, besides the costs of suit.
Defendants-appellants again filed a motion to dismiss on May 5, 1955, alleging the
same grounds as those interposed in the first complaint but adding the further ground
of res judicata in view of the dismissal of the first case which became final as no appeal
or any other action was taken thereon by the appelees.
On August 22, 1955, the lower court denied the motion to dismiss for lack of sufficient
merit.
x x x                          x x x                             x x x
Then on July 11, 1961, the parties through their respective counsel submitted a partial
stipulation of facts found on pages 63 to 67 of the amended record on appeal which
stipulation of facts, was made the basis of the decision of the lower court which was
rendered on August 26, 1961 (should be August 14, 1961), aside from the testimony of
the widow of Numeriano Bautista, appellee Rosita Bautista, who testified on the same
incidents already recited herein and on the sufferings and shock she and her children,
all appellees in this case, suffered. From said decision, the present appeal has been
interposed x x x."
Defendants-appellants assign the following errors:
I
THE COURT BELOW ERRED IN NOT SUSTAINING THE MOTION TO DISMISS
(MOCION DE SOBRESIMIENTO) FILED BY THE DEFENDANTS-APPELLANTS ON
OR ABOUT MAY, 1955, APPEARING ON PAGE 10 ET SEQ. OF THE AMENDED
RECORD ON APPEAL.
II
THE COURT BELOW ERRED IN NOT DECLARING THAT THE CLAIM OF THE
PLAINTIFFS-APPELLEES IS ALREADY BARRED FOR FAILURE ON THEIR PART TO
FILE THEIR CLAIM IN THE INTESTATE PROCEEDINGS OF THE DECEASED
ROSENDO DE GUZMAN (SPECIAL PROCEEDINGS NO. 1303-P) OF THE COURT
OF FIRST INSTANCE OF RIZAL.
III
THE COURT ERRED IN NOT SUSTAINING THE DEFENSE OF RES JUDICATA
INTERPOSED BY DEFENDANTS-APPELLANTS BY VIRTUE OF THE FINAL ORDER
RENDERED OR ISSUED BY THE COURT OF FIRST INSTANCE OF RIZAL IN CIVIL
CASE NO. 2050, DATED MAY 11, 1953, COPY OF SAID ORDER IS ATTACHED AS
EXHIBIT "F" AND MADE AN INTEGRAL PART OF THE PARTIAL STIPULATION OF
FACTS.
IV
THE COURT BELOW ERRED IN RENDERING A DECISION ORDERING THE
HEREIN DEFENDANTS-APPELLANTS TO JOINTLY AND SEVERALLY PAY THE
PLAINTIFFS-APPELLEES THE SUM OF THREE THOUSAND PESOS (P3,000.00),
WITH INTERESTS AND COSTS.
V
THE COURT BELOW ERRED IN DISMISSING DEFENDANTS-APPELLANTS'
COUNTER-CLAIM AND IN NOT RENDERING A DECISION IN ACCORDANCE
THEREWITH.
The only question presented in the assigned errors is whether or not the trial court
erred in giving due course to the complaint on the grounds stated above. We
sympathize with the plight of the plaintiffs-appellees but they have lost their right to
recover because of negligence and a failure to observe mandatory provisions of the law
and the Rules. They overlooked the fact that they were no longer suing Rosendo de
Guzman who died shortly after the accident but his heirs.
Section 5, Rule 86 of the Rules of Court provides:
All claims for money against the decedent arising from contract, express or implied,
whether the same be due, not due, or contingent, all claims for funeral expenses and
expenses for the last sickness of the decedents, and judgment for money against the
decedent, must be filed within the time limited in the notice; otherwise they are barred
forever; except that they may be set forth as counterclaims in any action that the
executor or administrator may bring against the claimants. x x x Claims not yet due, or
contingent, may be approved at their present value.
The above-quoted rule is mandatory. The requirement therein is for the purpose of
protecting the estate of the deceased. The executor or administrator is informed of the
claims against it, thus enabling him to examine each claim and to determine whether it
is a proper one which should be allowed. Therefore, upon the dismissal of the first
complaint of herein plaintiffs-appellees in Civil Case No. 2050, they should have
presented their claims before the intestate proceedings filed in the same court and
docketed as Special Proceedings No. 1303-P. Instead of doing so, however, the
plaintiffs-appellees slept on their right. They allowed said proceedings to terminate and
the properties to be distributed to the heirs pursuant to a project of partition before
instituting this separate action. Such is not sanctioned by the above rule for it strictly
requires the prompt presentation and disposition of claims against the decedent's estate
in order to settle the affairs of the estate as soon as possible, pay off its debts and
distribute the residue. (See Py Eng Chong v. Herrera, 70 SCRA 130). With the
exception provided for in the above rule, the failure of herein plaintiffs-appellees to
present their claims before the intestate proceedings of the estate of Rosendo de
Guzman within the prescribed period constituted a bar to a subsequent claim against
the estate or a similar action of the same import.
Therefore, it was an error on the part of the trial court to hold that the plaintiffs-
appellees had a cause of action against the defendants-appellants who are the heirs of
the deceased against whom the liability is sought to be enforced, much less take
cognizance of the complaint. As in the first complaint, said court could not have
assumed jurisdiction over the second case for the simple reason that it was no longer
acting as a probate court which was the proper forum to file such complaint. The
termination of the intestate proceedings and the distribution of the estate to the heirs did
not alter the fact that plaintiffs-appellees' claim was a money claim which should have
been presented before the probate court. The liability of the late Rosendo de Guzman
arose from the breach of his obligations under the contract of carriage between him and
the unfortunate passenger. The obligations are spelled out by law but the liability arose
from a breach of contractual obligations. The resulting claim is a money claim.
The only instance wherein a creditor can file an action against a distributee of the
debtor's asset is under Section 5, Rule 88 of the Rules of Court which provides:
If such contingent claim becomes absolute and is presented to the court, or to the
executor or administrator, within two (2) years from the time limited for other creditors to
present their claims, it may be allowed by the court if not disputed by the executor or
administrator, and, if disputed, it may be proved and allowed or disallowed by the court
as the facts may warrant. If the contingent claim is allowed, the creditor shall receive
payment to the same extent as the other creditors if the estate retained by the executor
or administrator is sufficient. But if the claim is not so presented, after having became
absolute, within said two (2) years, and allowed, the assets retained in the hands of the
executor or administrator, not exhausted in the payment of claims, shall be distributed
by the order of the court to the persons entitled to the same; but the assets so
distributed may still be applied to the payment of the claim when established, and the
creditor may maintain an action against the distributees to recover the debt, and such
distributees and their estates shall be liable for the debt in proportion to the estate they
have respectively received from the property of the deceased.
Even under the above rule, the contingent claims must first have been established
and allowed in the probate court before the creditors can file an action directly against
the distributees. Such is not the situation, however, in the case at bar. The complaint
herein was filed after the intestate proceedings had terminated and the estate finally
distributed to the heirs. If we are to allow the complaint to prosper and the trial court to
take cognizance of the same, then the rules providing for the claims against the estate
in a testate or intestate proceedings within a specific period would be rendered nugatory
as a subsequent action for money claim against the distributees may be filed
independently of such proceedings. This precisely is what the rule seeks to prevent so
as to avoid further delays in the settlement of the estate of the deceased and in the
distribution of his property to the heirs, legatees or devisees.
Furthermore, even assuming that the plaintiffs-appellees had no knowledge of the
intestate proceedings which is not established, the law presumes that they had such
knowledge because the settlement of estate is a proceeding in rem and therefore the
failure to file their claims before such proceedings barred them from subsequently filing
the same claims outside said proceedings.
WHEREFORE, the decision of the Court of First Instance appealed from is hereby
reversed and set aside and another one entered dismissing the complaint and the
counterclaim. No costs.
SO ORDERED.

Plana and Relova, JJ., concur.
Teehankee, (Chairman), J., in the result.
Melencio-Herrera, J., concurring in the result in a separate opinion.

[ G.R. No. 174873, August 26, 2008 ]

QUASHA ANCHETA PEÑA AND NOLASCO LAW OFFICE FOR ITS OWN
BEHALF, AND REPRESENTING THE HEIRS OF RAYMOND TRIVIERE,
PETITIONERS, VS. LCN CONSTRUCTION CORP., RESPONDENT.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review under Rule 45 of the Revised Rules of Court with
petitioners Quasha Ancheta Peña and Nolasco Law Office (Quasha Law Office)
and the Heirs of Raymond Triviere praying for the reversal of the
Decision[1] dated 11 May 2006 and Resolution[2] dated 22 September 2006 of the
Court of Appeals granting in part the Petition for Certiorari filed by respondent
LCN Construction Corporation (LCN) in CA-G.R. SP No. 81296.

The factual antecedents of the case are as follows:

Raymond Triviere passed away on 14 December 1987. On 13 January 1988,

proceedings for the settlement of his intestate estate were instituted by his
widow, Amy Consuelo Triviere, before the Regional Trial Court (RTC) of Makati
City, Branch 63 of the National Capital Region (NCR), docketed as Special
Proceedings Case No. M-1678. Atty. Enrique P. Syquia (Syquia) and Atty.
William H. Quasha (Quasha) of the Quasha Law Office, representing the widow
and children of the late Raymond Triviere, respectively, were appointed
administrators of the estate of the deceased in April 1988. As administrators,
Atty. Syquia and Atty. Quasha incurred expenses for the payment of real estate
taxes, security services, and the preservation and administration of the estate, as
well as litigation expenses.

In February 1995, Atty. Syquia and Atty. Quasha filed before the RTC a Motion
for Payment of their litigation expenses. Citing their failure to submit an
accounting of the assets and liabilities of the estate under administration, the
RTC denied in May 1995 the Motion for Payment of Atty. Syquia and Atty.
Quasha.

In 1996, Atty. Quasha also passed away. Atty. Redentor Zapata (Zapata), also of
the Quasha Law Office, took over as the counsel of the Triviere children, and
continued to help Atty. Syquia in the settlement of the estate.

On 6 September 2002, Atty. Syquia and Atty. Zapata filed another Motion for
Payment,[3] for their own behalf and for their respective clients, presenting the
following allegations:
(1) That the instant Petition was filed on January 13, 1988; and Atty. Enrique P.
Syquia was appointed Administrator by the Order of this Honorable Court dated
April 12, 1988, and discharged his duties starting April 22, 1988, after properly
posting his administrator's bond up to this date, or more than fourteen (14) years
later. Previously, there was the co-administrator Atty. William H. Quasha, but he
has already passed away.
(2) That, together with Co-administrator Atty. William H. Quasha, they have performed
diligently and conscientiously their duties as Co-administrators, having paid the
required Estate tax and settled the various claims against the Estate, totaling
approximately twenty (20) claims, and the only remaining claim is the
unmeritorious claim of LCN Construction Corp., now pending before this Honorable
Court;
(3) That for all their work since April 22, 1988, up to July 1992, or for four (4) years,
they were only given the amount of P20,000.00 each on November 28, 1988; and
another P50,00.00 each on October 1991; and the amount of P100,000.00 each
on July 1992; or a total of P170,000.00 to cover their administration fees, counsel
fees and expenses;
(4) That through their work, they were able to settle all the testate (sic) claims except
the remaining baseless claim of LCN Construction Corp., and were able to dismiss
two (2) foreign claims, and were also able to increase the monetary value of the
estate from roughly over P1Million to the present P4,738,558.63 as of August 25,
2002 and maturing on September 27, 2002; and the money has always been with
the Philippine National Bank, as per the Order of this Honorable Court;
(5) That since July 1992, when the co-administrators were paid P100,000.00 each,
nothing has been paid to either Administrator Syquia or his client, the widow
Consuelo Triviere; nor to the Quasha Law Offices or their clients, the children of
the deceased Raymond Triviere;
(6) That as this Honorable Court will notice, Administrator Syquia has always been
 present during the hearings held for the many years of this case; and the Quasha
Law Offices has always been represented by its counsel, Atty. Redentor C.
Zapata; and after all these years, their clients have not been given a part of their
share in the estate;
(7) That Administrator Syquia, who is a lawyer, is entitled to additional Administrator's
fees since, as provided in Section 7, Rule 85 of the Revised Rules of Court:
"x x x where the estate is large, and the settlement has been attended with
great difficulty, and has required a high degree of capacity on the part of the
executor or administrator, a greater sum may be allowed..."
In addition, Atty. Zapata has also been present in all the years of this case. In
addition, they have spent for all the costs of litigation especially the transcripts, as
out-of-pocket expenses.
(8) That considering all the foregoing, especially the fact that neither the Administrator
or his client, the widow; and the Quasha Law Offices or their clients, the children of
the deceased, have received any money for more than ten (10) years now, they
respectfully move that the amount of P1Million be taken from the Estate funds, to
be divided as follows:
a) P450,000.00 as share of the children of the deceased [Triviere] who are
represented by the Quasha Ancheta Peña & Nolasco Law Offices;
b) P200,000.00 as attorney's fees and litigation expenses for the Quasha Ancheta
Peña & Nolasco Law Offices;
c) P150,000.00 as share for the widow of the deceased [Raymond Triviere], Amy
Consuelo Triviere; and
d) P200,000.00 for the administrator Syquia, who is also the counsel of the widow;
and for litigation costs and expenses.
LCN, as the only remaining claimant[4] against the Intestate Estate of the Late
Raymond Triviere in Special Proceedings Case No. M-1678, filed its Comment
on/Opposition to the afore-quoted Motion on 2 October 2002. LCN countered that
the RTC had already resolved the issue of payment of litigation expenses when it
denied the first Motion for Payment filed by Atty. Syquia and Atty. Quasha for
failure of the administrators to submit an accounting of the assets and expenses
of the estate as required by the court. LCN also averred that the administrators
and the heirs of the late Raymond Triviere had earlier agreed to fix the former's
fees at only 5% of the gross estate, based on which, per the computation of LCN,
the administrators were even overpaid P55,000.00. LCN further asserted that
contrary to what was stated in the second Motion for Payment, Section 7, Rule
85 of the Revised Rules of Court was inapplicable,[5] since the administrators
failed to establish that the estate was large, or that its settlement was attended
with great difficulty, or required a high degree of capacity on the part of the
administrators. Finally, LCN argued that its claims are still outstanding and
chargeable against the estate of the late Raymond Triviere; thus, no distribution
should be allowed until they have been paid; especially considering that as of 25
August 2002, the claim of LCN against the estate of the late Raymond Triviere
amounted to P6,016,570.65 as against the remaining assets of the estate totaling
P4,738,558.63, rendering the latter insolvent.

On 12 June 2003, the RTC issued its Order[6] taking note that "the widow and the
heirs of the deceased Triviere, after all the years, have not received their
respective share (sic) in the Estate x x x."

The RTC declared that there was no more need for accounting of the assets and
liabilities of the estate considering that:
[T]here appears to be no need for an accounting as the estate has no more
assets except the money deposited with the Union Bank of the Philippines under
Savings Account No. 12097-000656-0 x x x; on the estate taxes, records shows
(sic) that the BIR Revenue Region No. 4-B2 Makati had issued a certificate dated
April 27, 1988 indicating that the estate taxes has been fully paid.[7]
As to the payment of fees of Atty. Syquia and the Quasha Law Office, the RTC
found as follows:
[B]oth the Co-Administrator and counsel for the deceased (sic) are entitled to the
payment for the services they have rendered and accomplished for the estate
and the heirs of the deceased as they have over a decade now spent so much
time, labor and skill to accomplish the task assigned to them; and the last time
the administrators obtained their fees was in 1992.[8]
Hence, the RTC granted the second Motion for Payment; however, it reduced the
sums to be paid, to wit:
In view of the foregoing considerations, the instant motion is hereby GRANTED.
The sums to be paid to the co-administrator and counsel for the heirs of the
deceased Triviere are however reduced.

Accordingly, the co-administrator Atty. Syquia and aforenamed counsel are

authorized to pay to be sourced from the Estate of the deceased as follows:
a) P450,000.00 as share of the children of the deceased who are represented by the
Quasha, Ancheta, Pena, Nolasco Law Offices;
b) P100,000.00 as attorney's fees and litigation expenses for said law firm;
c) P150,000.00 as share for the widow of the deceased Amy Consuelo Triviere; and
d) P100,000.00 for the Co-administrator Atty. Enrique P. Syquia and for litigation
costs and expenses.[9]
LCN filed a Motion for Reconsideration[10] of the foregoing Order on 2 July 2003,
but it was denied by the RTC on 29 October 2003.[11]

On 13 May 2004, LCN sought recourse from the Court of Appeals by assailing in
CA-G.R. SP No. 81296, a Petition for Certiorari, the RTC Orders dated 12 June
2003 and 2 July 2003, for having been rendered with grave abuse of discretion.
[12]
 LCN maintained that:
(1) The administrator's claim for attorney's fees, aside from being prohibited under
paragraph 3, Section 7 of Rule 85 is, together with administration and litigation
 expenses, in the nature of a claim against the estate which should be ventilated
and resolved pursuant to Section 8 of Rule 86;
(2) The awards violate Section 1, Rule 90 of the Rules of Court, as there still exists its
(LCN's) unpaid claim in the sum of P6,016,570.65; and
(3) The alleged deliberate failure of the co-administrators to submit an accounting of
the assets and liabilities of the estate does not warrant the Court's favorable action
on the motion for payment.[13]
On 11 May 2006, the Court of Appeals promulgated a Decision essentially ruling
in favor of LCN.

While the Court of Appeals conceded that Atty. Syquia and the Quasha Law
Office, as the administrators of the estate of the late Raymond Triviere, were
entitled to administrator's fees and litigation expenses, they could not claim the
same from the funds of the estate. Referring to Section 7, Rule 85 of the Revised
Rules of Court, the appellate court reasoned that the award of expenses and
fees in favor of executors and administrators is subject to the qualification that
where the executor or administrator is a lawyer, he shall not charge against the
estate any professional fees for legal services rendered by him. Instead, the
Court of Appeals held that the attorney's fees due Atty. Syquia and the Quasha
Law Offices should be borne by their clients, the widow and children of the late
Raymond Triviere, respectively.

The appellate court likewise revoked the P450,000.00 share and P150,000.00
share awarded by the RTC to the children and widow of the late Raymond
Triviere, respectively, on the basis that Section 1, Rule 91 of the Revised Rules
of Court proscribes the distribution of the residue of the estate until all its
obligations have been paid.

The appellate court, however, did not agree in the position of LCN that the
administrators' claims against the estate should have been presented and
resolved in accordance with Section 8 of Rule 86 of the Revised Rules of Court.
Claims against the estate that require presentation under Rule 86 refer to "debts
or demands of a pecuniary nature which could have been enforced against the
decedent during his lifetime and which could have been reduced to simple
judgment and among which are those founded on contracts." The Court of
Appeals also found the failure of the administrators to render an accounting
excusable on the basis of Section 8, Rule 85 of the Revised Rules of Court.[14]

Finding the Petition for Certiorari of LCN partly meritorious, the Court of Appeals
decreed:
WHEREFORE, premises considered, the instant petition is hereby PARTLY
GRANTED. The assailed Orders of the public respondent are hereby AFFIRMED
with MODIFICATION in that -
(1) the shares awarded to the heirs of the deceased Triviere in the assailed Order of
June 12, 2003 are hereby DELETED; and
(2) the attorney's fees awarded in favor of the co-administrators are
hereby DELETED. However, inasmuch as the assailed order fails to itemize these
fees from the litigation fees/administrator's fees awarded in favor of the co-
administrators, public respondent is hereby directed to determine with particularity
the fees pertaining to each administrator.[15]
Petitioner filed a Motion for Reconsideration[16] of the 11 May 2006 Decision of
the Court of Appeals. The Motion, however, was denied by the appellate court in
a Resolution dated 22 September 2006,[17] explaining that:
In sum, private respondents did not earlier dispute [herein respondent LCN's]
claim in its petition that the law firm and its lawyers served as co-administrators
of the estate of the late Triviere. It is thus quite absurd for the said law firm to
now dispute in the motion for reconsideration its being a co-administrator of the
estate.

[Herein petitioners], through counsel, likewise appear to be adopting in their

motion for reconsideration a stance conflicting with their earlier theory submitted
to this Court. Notably, the memorandum for [petitioner] heirs states that the claim
for attorney's fees is supported by the facts and law. To support such allegation,
they contend that Section 7 (3) of Rule 85 of the 1997 Rules of Civil Procedure
finds no application to the instant case since "what is being charged are not
professional fees for legal services rendered but payment for administration of
the Estate which has been under the care and management of the co-
administrators for the past fourteen (14) years." Their allegation, therefore, in
their motion for reconsideration that Section 7 (3) of Rule 85 is inapplicable to the
case of Quasha Law Offices because it is "merely seeking payment for legal
services rendered to the estate and for litigation expenses" deserves scant
consideration.

xxxx

WHEREFORE, premises considered, private respondents' motion for

reconsideration is hereby DENIED for lack of merit. [18]
Exhausting all available legal remedies, petitioners filed the present Petition for
Review on Certiorari based on the following assignment of errors:
I.
THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE
AWARD IN FAVOR OF THE HEIRS OF THE LATE RAYMOND TRIVIERE IS
ALREADY A DISTRIBUTION OF THE RESIDUE OF THE ESTATE.
II.
THE HONORABLE COURT OF APPEALS ERRED IN NULLIFYING THE
AWARD OF ATTORNEY'S FEES IN FAVOR OF THE CO-ADMINISTRATORS
I

The Court of Appeals modified the 12 June 2003 Order of the RTC by deleting
the awards of P450,000.00 and P150,000.00 in favor of the children and widow
of the late Raymond Triviere, respectively. The appellate court adopted the
position of LCN that the claim of LCN was an obligation of the estate which was
yet unpaid and, under Section 1, Rule 90 of the Revised Rules of Court, barred
the distribution of the residue of the estate.

Petitioners, though, insist that the awards in favor of the petitioner children and
widow of the late Raymond Triviere is not a distribution of the residue of the
estate, thus, rendering Section 1, Rule 90 of the Revised Rules of Court
inapplicable.

Section 1, Rule 90 of the Revised Rules of Court provides:

Section 1. When order for distribution of residue made. - When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and
inheritance tax, if any, chargeable to the estate in accordance with law, have
been paid, the court, on the application of the executor or administrator, or of a
person interested in the estate, and after hearing upon notice, shall assign the
residue of the estate to the persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled, and such persons may demand
and recover their respective shares from the executor or administrator, or any
other person having the same in his possession. If there is a controversy before
the court as to who are the lawful heirs of the deceased person or as to the
distributive shares to which each person is entitled under the law, the controversy
shall be heard and decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above

mentioned has been made or provided for, unless the distributees, or any of
them, give a bond, in a sum to be fixed by the court, conditioned for the payment
of said obligations within such time as the court directs.

According to petitioners, the 12 June 2003 Order of the RTC should not be
construed as a final order of distribution. The 12 June 2003 RTC Order granting
the second Motion for Payment is a mere interlocutory order that does not end
the estate proceedings. Only an order of distribution directing the delivery of the
residue of the estate to the proper distributees brings the intestate proceedings to
a close and, consequently, puts an end to the administration and relieves the
administrator of his duties.
A perusal of the 12 June 2003 RTC Order would immediately reveal that it was
not yet distributing the residue of the estate. The said Order grants the payment
of certain amounts from the funds of the estate to the petitioner children and
widow of the late Raymond Triviere considering that they have not received their
respective shares therefrom for more than a decade. Out of the reported
P4,738,558.63 value of the estate, the petitioner children and widow were being
awarded by the RTC, in its 12 June 2003 Order, their shares in the collective
amount of P600,000.00. Evidently, the remaining portion of the estate still needs
to be settled. The intestate proceedings were not yet concluded, and the RTC
still had to hear and rule on the pending claim of LCN against the estate of the
late Raymond Triviere and only thereafter can it distribute the residue of the
estate, if any, to his heirs.

While the awards in favor of petitioner children and widow made in the RTC
Order dated 12 June 2003 was not yet a distribution of the residue of the estate,
given that there was still a pending claim against the estate, still, they did
constitute a partial and advance distribution of the estate. Virtually, the petitioner
children and widow were already being awarded shares in the estate, although
not all of its obligations had been paid or provided for.

Section 2, Rule 109 of the Revised Rules of Court expressly recognizes advance
distribution of the estate, thus:
Section 2. Advance distribution in special proceedings. - Notwithstanding a
pending controversy or appeal in proceedings to settle the estate of a
decedent, the court may, in its discretion and upon such terms as it may
deem proper and just, permit that such part of the estate as may not be
affected by the controversy or appeal be distributed among the heirs or
legatees, upon compliance with the conditions set forth in Rule 90 of these
rules. (Emphases supplied.)
The second paragraph of Section 1 of Rule 90 of the Revised Rules of Court
allows the distribution of the estate prior to the payment of the obligations
mentioned therein, provided that "the distributees, or any of them, gives a bond,
in a sum to be fixed by the court, conditioned for the payment of said obligations
within such time as the court directs."

In sum, although it is within the discretion of the RTC whether or not to permit the
advance distribution of the estate, its exercise of such discretion should be
qualified by the following: [1] only part of the estate that is not affected by any
pending controversy or appeal may be the subject of advance distribution
(Section 2, Rule 109); and [2] the distributees must post a bond, fixed by the court,
conditioned for the payment of outstanding obligations of the estate (second
paragraph of Section 1, Rule 90). There is no showing that the RTC, in awarding
to the petitioner children and widow their shares in the estate prior to the
settlement of all its obligations, complied with these two requirements or, at the
very least, took the same into consideration. Its Order of 12 June 2003 is
completely silent on these matters. It justified its grant of the award in a single
sentence which stated that petitioner children and widow had not yet received
their respective shares from the estate after all these years. Taking into account
that the claim of LCN against the estate of the late Raymond Triviere allegedly
amounted to P6,016,570.65, already in excess of the P4,738,558.63 reported
total value of the estate, the RTC should have been more prudent in approving
the advance distribution of the same.

Petitioners earlier invoked Dael v. Intermediate Appellate Court,,[19] where the

Court sustained an Order granting partial distribution of an estate.

However, Dael is not even on all fours with the case at bar, given that the Court
therein found that:
Where, however, the estate has sufficient assets to ensure equitable
distribution of the inheritance in accordance with law and the final judgment in the
proceedings and it does not appear there are unpaid obligations, as
contemplated in Rule 90, for which provisions should have been made or a bond
required, such partial distribution may be allowed. (Emphasis supplied.)
No similar determination on sufficiency of assets or absence of any outstanding
obligations of the estate of the late Raymond Triviere was made by the RTC in
this case. In fact, there is a pending claim by LCN against the estate, and the
amount thereof exceeds the value of the entire estate.

Furthermore, in Dael, the Court actually cautioned that partial distribution of the
decedent's estate pending final termination of the testate or intestate proceeding
should as much as possible be discouraged by the courts, and, except in
extreme cases, such form of advances of inheritance should not be
countenanced. The reason for this rule is that courts should guard with utmost
zeal and jealousy the estate of the decedent to the end that the creditors thereof
be adequately protected and all the rightful heirs be assured of their shares in the
inheritance.

Hence, the Court does not find that the Court of Appeals erred in disallowing the
advance award of shares by the RTC to petitioner children and the widow of the
late Raymond Triviere.
II

On the second assignment of error, petitioner Quasha Law Office contends that it
is entitled to the award of attorney's fees and that the third paragraph of Section
7, Rule 85 of the Revised Rules of Court, which reads:
Section 7. What expenses and fees allowed executor or administrator. Not to
charge for services as attorney. Compensation provided by will controls unless
renounced. x x x.

xxxx

When the executor or administrator is an attorney, he shall not charge against

the estate any professional fees for legal services rendered by him. (Emphasis
supplied.)
is inapplicable to it. The afore-quoted provision is clear and unequivocal and
needs no statutory construction. Here, in attempting to exempt itself from the
coverage of said rule, the Quasha Law Office presents conflicting arguments to
justify its claim for attorney's fees against the estate. At one point, it alleges that
the award of attorney's fees was payment for its administration of the estate of
the late Raymond Triviere; yet, it would later renounce that it was an
administrator.

In the pleadings filed by the Quasha Law Office before the Court of Appeals, it
referred to itself as co-administrator of the estate.

In the Comment submitted to the appellate court by Atty. Doronila, the member-
lawyer then assigned by the Quasha Law Office to the case, it stated that:
The 12 June 2003 Order granted the Motion for Payment filed by Co-
Administrator and counsel Atty. Enrique P. Syquia and the counsel Atty. Cirilo
E. Doronila and Co-Administrator for the children of the late Raymond Triviere.
x x x.[20] (Emphasis supplied.)
It would again in the same pleading claim to be the "co-administrator and counsel
for the heirs of the late Raymond Triviere."[21]

Finally, the Memorandum it submitted to the Court of Appeals on behalf of its

clients, the petitioner-children of the late Raymond Triviere, the Quasha Law
Office alleged that:
2. The petition assails the Order of the Honorable Regional Trial Court of
Makati, Branch 63 granting the Motion for Payment filed by Co-
Administrators Atty. Enrique P. Syquia and the undersigned
counsel together with the children of the deceased Raymond Triviere, and
the Order dated 29 October 2003 denying Petitioner's Motion for
Reconsideration of the First Order.
xxxx
I. Statement of Antecedent Facts
xxxx
4. On 13 May 2004, Atty. Enrique Syquia, co-administrator and counsel for
respondent Amy Consuelo Triviere and the undersigned counsel, co-
 administrator and counsel for the children of the late Raymond
Triviere filed their Comment.[22]
Petitioner Quasha Law Office asserts that it is not within the purview of Section 7,
Rule 85 of the Revised Rules of Court since it is not an appointed administrator
of the estate.[23] When Atty. Quasha passed away in 1996, Atty. Syquia was left
as the sole administrator of the estate of the late Raymond Triviere. The person
of Atty. Quasha was distinct from that of petitioner Quasha Law Office; and the
appointment of Atty. Quasha as administrator of the estate did not extend to his
law office. Neither could petitioner Quasha Law Office be deemed to have
substituted Atty. Quasha as administrator upon the latter's death for the same
would be in violation of the rules on the appointment and substitution of estate
administrators, particularly, Section 2, Rule 82 of the Revised Rules of Court.
[24]
 Hence, when Atty. Quasha died, petitioner Quasha Law Office merely helped
in the settlement of the estate as counsel for the petitioner children of the late
Raymond Triviere.

In its Memorandum before this Court, however, petitioner Quasha Law Office
argues that "what is being charged are not professional fees for legal services
rendered but payment for administration of the Estate which has been under the
care and management of the co-administrators for the past fourteen (14)
years."[25]

On the other hand, in the Motion for Payment filed with the RTC on 3 September
2002, petitioner Quasha Law Office prayed for P200,000.00 as "attorney's fees
and litigation expenses." Being lumped together, and absent evidence to the
contrary, the P200,000.00 for attorney's fees and litigation expenses prayed for
by the petitioner Quasha Law Office can be logically and reasonably presumed to
be in connection with cases handled by said law office on behalf of the estate.
Simply, petitioner Quasha Law Office is seeking attorney's fees as compensation
for the legal services it rendered in these cases, as well as reimbursement of the
litigation expenses it incurred therein.

The Court notes with disfavor the sudden change in the theory by petitioner
Quasha Law Office. Consistent with discussions in the preceding paragraphs,
Quasha Law Office initially asserted itself as co-administrator of the estate before
the courts. The records do not belie this fact. Petitioner Quasha Law Office later
on denied it was substituted in the place of Atty. Quasha as administrator of the
estate only upon filing a Motion for Reconsideration with the Court of Appeals,
and then again before this Court. As a general rule, a party cannot change his
theory of the case or his cause of action on appeal.[26] When a party adopts a
certain theory in the court below, he will not be permitted to change his theory on
appeal, for to permit him to do so would not only be unfair to the other party but it
would also be offensive to the basic rules of fair play, justice and due process.
[27]
 Points of law, theories, issues and arguments not brought to the attention of
the lower court need not be, and ordinarily will not be, considered by a reviewing
court, as these cannot be raised for the first time at such late stage.[28]

This rule, however, admits of certain exceptions.[29] In the interest of justice and
within the sound discretion of the appellate court, a party may change his legal
theory on appeal, only when the factual bases thereof would not require
presentation of any further evidence by the adverse party in order to enable it to
properly meet the issue raised in the new theory.[30]

On the foregoing considerations, this Court finds it necessary to exercise

leniency on the rule against changing of theory on appeal, consistent with the
rules of fair play and in the interest of justice. Petitioner Quasha Law Office
presented conflicting arguments with respect to whether or not it was co-
administrator of the estate. Nothing in the records, however, reveals that any one
of the lawyers of Quasha Law Office was indeed a substitute administrator for
Atty. Quasha upon his death.

The court has jurisdiction to appoint an administrator of an estate by granting

letters of administration to a person not otherwise disqualified or incompetent to
serve as such, following the procedure laid down in Section 6, Rule 78 of the
Rules of Court.

Corollary thereto, Section 2, Rule 82 of the Rules of Court provides in clear and
unequivocal terms the modes for replacing an administrator of an estate upon the
death of an administrator, to wit:
Section 2. Court may remove or accept resignation of executor or administrator.
Proceedings upon death, resignation, or removal. x x x.

When an executor or administrator dies, resigns, or is removed the remaining

executor or administrator may administer the trust alone, unless the court
grants letters to someone to act with him. If there is no remaining executor or
administrator, administration may be granted to any suitable person.
The records of the case are wanting in evidence that Quasha Law Office or any
of its lawyers substituted Atty. Quasha as co-administrator of the estate. None of
the documents attached pertain to the issuance of letters of administration to
petitioner Quasha Law Office or any of its lawyers at any time after the demise of
Atty. Quasha in 1996. This Court is thus inclined to give credence to petitioner's
contention that while it rendered legal services for the settlement of the estate of
Raymond Triviere since the time of Atty. Quasha's death in 1996, it did not serve
as co-administrator thereof, granting that it was never even issued letters of
administration.
The attorney's fees, therefore, cannot be covered by the prohibition in the third
paragraph of Section 7, Rule 85 of the Revised Rules of Court against an
attorney, to charge against the estate professional fees for legal services
rendered by them.
However, while petitioner Quasha Law Office, serving as counsel of the Triviere
children from the time of death of Atty. Quasha in 1996, is entitled to attorney's
fees and litigation expenses of P100,000.00 as prayed for in the Motion for
Payment dated 3 September 2002, and as awarded by the RTC in its 12 June
2003 Order, the same may be collected from the shares of the Triviere children,
upon final distribution of the estate, in consideration of the fact that the Quasha
Law Office, indeed, served as counsel (not anymore as co-administrator),
representing and performing legal services for the Triviere children in the
settlement of the estate of their deceased father.

Finally, LCN prays that as the contractor of the house (which the decedent
caused to be built and is now part of the estate) with a preferred claim thereon, it
should already be awarded P2,500,000.00, representing one half (1/2) of the
proceeds from the sale of said house. The Court shall not take cognizance of and
rule on the matter considering that, precisely, the merits of the claim of LCN
against the estate are still pending the proper determination by the RTC in the
intestate proceedings below.

WHEREFORE, premises considered, the Petition for Review on Certiorari is

hereby PARTLY GRANTED. The Decision dated 11 May 2006 and Resolution
dated 22 September 2006 of the Court of Appeals in CA-G.R. SP No.
81296 are AFFIRMED, with the following MODIFICATIONS:
1) Petitioner Quasha Law Office is entitled to attorney's fees of ONE HUNDRED
THOUSAND PESOS (P100,000.00), for legal services rendered for the Triviere
children in the settlement of the estate of their deceased father, the same to be
paid by the Triviere children in the manner herein discussed; and
2) Attorneys Enrique P. Syquia and William H. Quasha are entitled to the payment of
their corresponding administrators' fees, to be determined by the RTC handling
Special Proceedings Case No. M-1678, Branch 63 of the Makati RTC, the same to
be chargeable to the estate of Raymond Trieviere.
SO ORDERED.

Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes,

JJ., concur.

[ G.R. NO. 128781, August 06, 2002 ]

TERESITA N. DE LEON, ZENAIDA C. NICOLAS AND THE HEIRS OF ANTONIO
NICOLAS, PETITIONERS, VS. HON. COURT OF APPEALS, HON. PABLO P.
INVENTOR AND RAMON NICOLAS, RESPONDENTS.
 DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court which
prays that the Decision dated February 28, 1997 and the Resolution dated April 3, 1997
issued by the Court of Appeals in CA-G.R. SP No. 42958, [1] be set aside; and, that
another judgment be entered ordering the Presiding Judge of Branch 123 of the
Regional Trial Court of Caloocan City to give due course to petitioners’ notice of appeal,
to approve their record on appeal and to elevate the records of Sp. Proc. No. C-1679 to
respondent appellate court for further proceedings.
The factual background:
Herein petitioner Teresita N. de Leon was appointed administratrix of the estate of
Rafael C. Nicolas in Sp. Proc. No. C-1679, entitled, “In the Matter of the Intestate Estate
of Rafael C. Nicolas”. Said case was subsequently consolidated with Sp. Proc No. C-
1810[2] and Civil Case No. C-17407.[3] Deceased spouses Rafael and Salud Nicolas
were the parents of petitioner Teresita N. de Leon, Estrellita N. Vizconde, Antonio
Nicolas (deceased husband of petitioner Zenaida Nicolas and predecessor of the
petitioners Heirs of Antonio Nicolas), Ramon Nicolas and Roberto Nicolas.
On September 19, 1994, private respondent Ramon G. Nicolas, an oppositor–applicant
in the intestate proceedings, filed a “Motion for Collation,” claiming that deceased Rafael
Nicolas, during his lifetime, had given the following real properties to his children by
gratuitous title and that administratrix-petitioner Teresita failed to include the same in
the inventory of the estate of the decedent:
“1. Title No. T-36734 located at Polo, Bulacan with an area of 14,119 sq. m. distributed
as follows:
1.1 10,110 sq. m. given to daughter Estrellita N. Visconde–
1.2 4,009 sq. m. given to son Antonio Nicolas
2. Title No. T-40333 located at Polo, Bulacan with an area of 1,000 sq. m. given to son
Antonio Nicolas
3. Title No. T-36989 located at Polo, Bulacan with an area of 4,000 sq. m. given to
daughter Teresita N. de Leon (herein petitioner)
4. Title No. T-36987 located at Polo, Bulacan with an area of 283 sq. m. given to son
Antonio Nicolas
5. T-33658 located at Polo, Bulacan with an area of 6,109 sq. m. given to daughter
Teresita N. de Leon
6. T-68554 located at Caloocan City with an area of 690 sq. m. given to son Ramon
(Oppositor-Applicant herein)
7. T-10907 located at Caloocan City with an area of 310 sq. m. given to son Ramon but
was somehow transferred to Antonio Nicolas, and the property is now titled in the name
of the latter’s widow, Zenaida Carlos Nicolas.”
x x x x x x x x x.”[4]
On September 27, 1994, the RTC issued an Order directing Ramon “to submit pertinent
documents relative to the transfer of the properties from the registered owners during
their lifetime for proper determination of the court if such properties should be collated,
and set it for hearing with notice to the present registered owners to show cause why
their properties may not be included in the collation of properties.” [5]
On October 10, 1994, respondent Ramon filed an Amended Motion for Collation
specifying the properties to be collated and attaching to said motion, the documents in
support thereof, to wit:
“3. A more complete list of the properties to be collated is as follows:
1. Title No. T-36734 located at Polo, Bulacan with an area of 14,119 sq. m., xerox copy
hereto attached as Annex “A”, distributed as follows:
1.1 10,110 sq. m. given to daughter Estrellita N. Visconde, under TCT No. V-554 of
Valenzuela Bulacan (Annex “B”), and later sold by Estrellita to Amelia Lim Sy for
P3,405,612.00 and the Deed of Sale hereto attached as Annex “B-1”;
“1.2 4,009 sq. m. given to son Antonio Nicolas, xerox copy hereto attached as Annex
“C”;
2. Two lots, covered by TCT No. T-36989 located at Polo, Bulacan with an area of
4,000 sq. m. and TCT No. T-33658 located at Polo, Bulacan with an area of 6,109 sq.
m. “given to daughter Teresita N. de Leon by a Deed of Sale, xerox copies are hereto
attached as Annex “D”, “D-1” and “D-2”;
The 4,000 sq. m. lot was sold by Petitioner Teresita for the amount of P1,888,000.00,
xerox copy of the Deed of Sale is hereto attached as Annex “D-3”;
4. Son Antonio received additional properties under a Deed of Sale, hereto attached as
Annex “E”, which are those covered by TCT No. T-36987 located at Polo, Bulacan with
an area of 283 sq. m.; TCT No. T-40333 located at Polo, Bulacan with an area of 1,000
sq. m. and TCT No. T-10907 located at Caloocan City with an area of 310 sq. m., xerox
copies hereto attached as Annexes “E-1”, “E-2” and “E-3”;
The lot with an area of 310 sq. m. is supposedly earmarked for Oppositor-applicant
Ramon but was somehow included in the Deed of Sale to son Antonio, and the property
is now titled in the name of the latter’s widow, Zenaida Carlos Nicolas;
5. TCT No. T-68554 located at Caloocan City with an area of 690 sq. m. where the
ancestral home is presently located;
6. Son Antonio received another property with an area of 1,876 sq. m. and sold for
P850,000.00, hereto attached as Annex “F”;
7. Son Antonio received another property with an area of 1,501 sq. m. and sold for
P200,000.00, hereto attached as Annex “G”;
x x x x x x x x x.”[6]
A comparison with the original motion for collation reveals that the amended motion
refers to the same real properties enumerated in the original except Nos. 6 and 7 above
which are not found in the original motion.
On November 11, 1994, the RTC issued an Order, to wit:
“Acting on the Amended Motion for Collation filed by oppositor-applicant Ramon G.
Nicolas and the comment thereto filed by petitioner-administratrix, the Court finds the
following properties to be collated to the estate properties under present administration,
to wit:
(1). 4,009 sq. m. given to son Antonio Nicolas described in paragraph 1.2 of the
Amended Motion For Collation, marked as Annex “C”; (the xerox copy of the transfer
certificate of title in the name of Antonio Nicolas did not state “the number and the
technical description of the property. The administratrix should get hold of a certified
copy of the title of Antonio Nicolas about subject property;
(2). Two lots, covered by TCT No. T-36989 located at Polo, Bulacan with an area of
4,000 sq. m. and TCT No. T-33658 located at Polo, Bulacan with an area of 6,109 sq.
m. given to daughter Teresita N. de Leon by a Deed of Sale;
(3). The property covered by TCT No. T-36987 located at Polo, Bulacan, with an area of
283 sq. m.; the property covered by TCT No. T-40333 located at Polo, Bulacan, with an
area of 1,000 sq. m. and another property covered by TCT No. T-10907 located at
Caloocan City with an area of 310 sq. m. xerox copies of which are attached to the
Amended Motion For Collation, marked as Annexes “E’1”, “E-2” and “E-3”;
(4). The lot with an area of 310 sq. m. given to son Antonio Nicolas which property is
now titled in the name of the latter’s widow, Zenaida Carlos Nicolas.
“Accordingly, the Administratrix is hereby ordered to include the foregoing properties
which were received from the decedent for collation in the instant probate proceedings.
“SO ORDERED.”[7]
We note that only those lots described under paragraphs 3.1.2, 3.2 and 4 of the
“Amended Motion for Collation” were ordered included for collation.
On November 18, 1994, petitioner Teresita N. de Leon filed a Motion for
Reconsideration alleging that the properties subject of the Order “were already titled in
their names years ago”[8] and that titles may not be collaterally attacked in a motion for
collation. On February 23, 1995, the RTC issued an Order denying said motion, ruling
that it is within the jurisdiction of the court to determine whether titled properties should
be collated,[9] citing Section 2, Rule 90 of the Rules of Court which provides that the final
order of the court concerning questions as to advancements made shall be binding on
the person raising the question and on the heir.
Petitioner Teresita N. de Leon filed a Motion for Reconsideration of the Order dated
February 23, 1995[10] which respondent opposed.[11]
On July 18, 1995, the RTC issued an Order, pertinent portions of which read:
“x x x Foremost to be resolved is the issue of collation of the properties of the deceased
Rafael Nicolas which were disposed by the latter long before his death. The oppositor-
applicant Ramon Nicolas should prove to the satisfaction of the Court whether the
properties disposed of by the late Rafael Nicolas before the latter’s death was gratuitous
or for valuable consideration. The Court believes that he or she who asserts should
prove whether the disposition of the properties was gratuitously made or for valuable
consideration.
The Court has already set for hearing on July 21, 1995, at 8:30 a.m., the reception
and/or presentation of evidence in the issue of collated properties disposed before the
death of Rafael Nicolas.”[12]
On November 4, 1996, the RTC removed petitioner from her position as administratrix
on ground of conflict of interest considering her claim that she paid valuable
consideration for the subject properties acquired by her from their deceased father and
therefore the same should not be included in the collation; [13] and, ordered the hearing
on the collation of properties covered by TCT No. T-V-1211 and T-V-1210 only. [14]
On November 28, 1996, acting on the impression that the collation of the real properties
enumerated in the Order dated November 11, 1994 is maintained by the RTC, petitioner
Teresita N. de Leon filed a Motion for Reconsideration praying that her appointment as
administratrix be maintained; and that the properties covered by TCT Nos. T-36989, T-
33658, T-36987, T-40333, T-10907 and a portion of TCT No. T-13206 described as Lot
4-A with 4,009 square meters be declared and decreed as the exclusive properties of
the registered owners mentioned therein and not subject to collation. [15]
The RTC denied said motion in its Order dated December 23, 1996. [16]
Petitioners Teresita N. de Leon, Zenaida Nicolas (the surviving spouse of Antonio
Nicolas) and the Heirs of Antonio Nicolas filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with prayer for a temporary restraining order and
writ of preliminary injunction claiming that:
"I
“RESPONDENT JUDGE HAS ACTED IN EXCESS OF HIS JURISDICTION AND WITH
GRAVE ABUSE OF DISCRETION WHEN WITHOUT GIVING PETITIONERS
OPPORTUNITY TO VENTILATE THEIR APPEAL HE INSISTED ON HEARING THE
MATTERS ON THE APPOINTMENT OF A REGULAR ADMINISTRATOR AND
COLLATION ON DECEMBER 24, 1996 AND RESETTING ITS CONTINUATION TO
JANUARY 21 and 28, 1997 INSPITE OF THE PENDENCY OF THE NOTICE OF
APPEAL AND/OR RE-AFFIRMATION OF THE NOTICE OF APPEAL FROM WHICH
ACTS THERE IS NO APPEAL NOR ANY PLAIN, SPEEDY AND ADEQUATE REMEDY
IN THE ORDINARY COURSE OF LAW.”
“II
“RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE
DID NOT INCLUDE IN HIS ORDER-ANNEX J THE HEARING ON THE FINAL
DETERMINATION OF TCT NOS. T-36734, T-36989, T-33658, T-36987, T-40333 and
T-10907 (WHETHER THEY ARE STILL PART OF THE ESTATE OR SHOULD BE
EXCLUDED FROM THE INVENTORY/ESTATE) THEREBY ASSUMING WITHOUT
ANY BASIS THAT THESE PROPERTIES TO BE STILL PART OF THE ESTATE OF
RAFAEL NICOLAS WHEN THEY ARE NOT BECAUSE THEY HAVE BEEN SOLD
WAY BACK IN 1979 FOR VALUABLE CONSIDERATIONS TO PETITIONER
TERESITA N. DE LEON AND ANTONIO NICOLAS HUSBAND OF PETITIONER
ZENAIDA NICOLAS.”[17]
After private respondent Ramon had filed his comment, and petitioners, their reply, and
after hearing the oral arguments of the parties, the Special Fourth Division of the Court
of Appeals found the petition devoid of merit, ruling that the Order dated November 11,
1994 directing the inclusion of the properties therein enumerated in the estate of the
deceased Rafael Nicolas had already become final for failure of petitioners to appeal
from the order of collation; that the appeal of the petitioner from the Orders dated
November 4, 1996 and December 3, 1996 removing petitioner as administratrix is timely
appealed; and, observing that the notice of appeal and record on appeal appear to be
unacted upon by the RTC, the appellate court resolved:
“WHEREFORE, while finding no grave abuse of discretion on the part of respondent
Judge, he is hereby ORDERED to act on petitioner’s appeal on the matter of the
removal of petitioner as administratrix.
SO ORDERED.”[18]
Hence, herein petition anchored on the following assignments of error:
“FIRST ASSIGNMENT OF ERROR
“RESPONDENT HONORABLE COURT ERRED WHEN IT DECLARED IN THE
QUESTIONED DECISION THAT THE ORDER OF THE COURT A QUO DATED
NOVEMBER 11, 1994 WAS FINAL.
“SECOND ASSIGNMENT OF ERROR
“RESPONDENT HONORABLE COURT ERRED WHEN IT DECLARED IN THE
QUESTIONED RESOLUTION THAT THERE WAS NO COGENT OR COMPELLING
REASON TO DISTURB THE QUESTIONED DECISION.” [19]
Petitioners claim that: private respondent never presented any document to prove that
the properties transferred by their deceased parents to petitioners are by gratuitous title;
private respondent never notified petitioner of any hearing on said documents to give
them opportunity to show cause why their properties should not be collated; the
assailed Order dated November 11, 1994 is arbitrary, capricious, whimsical,
confiscatory, depriving them of due process; the said order is interlocutory in nature and
therefore non-appealable; the properties acquired by petitioner Teresita N. de Leon and
her deceased brother Antonio Nicolas, married to petitioner Zenaida C. Nicolas and
their children, were sold to them as evidenced by public documents; and, the properties
were already titled in their respective names or sold to third persons.
Private respondent contends that: due process has been afforded the petitioners when
the RTC resolved the issue of collation of the subject properties after hearing; petitioner
deliberately omitted certain material facts in the petition to mislead the Court because
petitioners were actually given at least three (3) times the opportunity to ventilate and
oppose the issue of collation; as stated by the appellate court in the Resolution
promulgated on February 10, 1997, both parties affirmed that the RTC had proceeded
to conduct hearings on January 21 and 28, 1997 as originally scheduled; presentation
of evidence had been terminated and the twin issues of the appointment of a new
administratrix and the collation of two (2) properties covered by TCT No. T-V-1210 and
T-V-1211 were already submitted for resolution to the court below; [20] subject properties
are collatable under Articles 1601 and 1071 of the Civil Code and Section 2
of Rule 90 of the Rules of Court and the ruling in Guinguing v. Abuton and Abuton, 48
Phil. 144; petitioner failed to present evidence that there was valuable consideration for
these properties and failed to rebut the evidence that petitioners do not have the
financial capability to pay for these properties as evidenced by the testimony of credible
witnesses who are relatives of spouses decedents.
We find the petition partly meritorious.
Contrary to the finding of the Court of Appeals that the Order of November 11, 1994 had
become final for failure of petitioners to appeal therefrom in due time, we hold that said
Order is interlocutory in nature. Our pronouncement in Garcia v. Garcia supports this
ruling:
“The court which acquires jurisdiction over the properties of a deceased person through
the filing of the corresponding proceedings, has supervision and control over the said
properties, and under the said power, it is its inherent duty to see that the inventory
submitted by the administrator appointed by it contains all the properties, rights and
credits which the law requires the administrator to set out in his inventory. In compliance
with this duty the court has also inherent power to determine what properties, rights and
credits of the deceased should be included in or excluded from the inventory. Should an
heir or person interested in the properties of a deceased person duly call the court’s
attention to the fact that certain properties, rights or credits have been left out in the
inventory, it is likewise the court’s duty to hear the observations, with power to
determine if such observations should be attended to or not and if the properties
referred to therein belong prima facie to the intestate, but no such determination is final
and ultimate in nature as to the ownership of the said properties.” [21] (Emphasis
supplied)
A probate court, whether in a testate or intestate proceeding, [22] can only pass upon
questions of title provisionally.[23] The rationale therefor and the proper recourse of the
aggrieved party are expounded in Jimenez v. Court of Appeals:
“The patent reason is the probate court’s limited jurisdiction and the principle that
questions of title or ownership, which result in inclusion or exclusion from the inventory
of the property, can only be settled in a separate action.
“All that the said court could do as regards said properties is determine whether they
should or should not be included in the inventory or list of properties to be administered
by the administrator. If there is a dispute as to the ownership, then the opposing parties
and the administrator have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so.” [24]
Further, In Sanchez v. Court of Appeals, we held:
“[A] probate court or one in charge of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a part of the estate and which
are claimed to belong to outside parties. All that the said court could do as regards said
properties is to determine whether they should or should not be included in the
inventory or list of properties to be administered by the administrator. If there is no
dispute, well and good, but if there is, then the parties, the administrator, and the
opposing parties have to resort to an ordinary action for a final determination of the
conflicting claims of title because the probate court cannot do so.” [25]
Guided by the above jurisprudence, it is clear that the Court of Appeals committed an
error in considering the assailed Order dated November 11, 1994 as final or binding
upon the heirs or third persons who dispute the inclusion of certain properties in the
intestate estate of the deceased Rafael Nicolas. Under the foregoing rulings of the
Court, any aggrieved party, or a third person for that matter, may bring an ordinary
action for a final determination of the conflicting claims.
Private respondent’s reliance on Section 2, Rule 90 of the Rules of Court, to wit:
“SEC. 2. Questions as to advancement to be determined. – Questions as to
advancement made, or alleged to have been made, by the deceased to any heir may be
heard and determined by the court having jurisdiction of the estate proceedings; and the
final order of the court thereon shall be binding on the person raising the question and
on the heir.”
in support of his claim that the assailed Order is a final order and therefore appealable
and that due to petitioners’ failure to appeal in due time, they are now bound by said
Order, is not feasible.
What seems to be a conflict between the above-quoted Rule and the afore–discussed
jurisprudence that the Order in question is an interlocutory and not a final order is more
apparent than real. This is because the questioned Order was erroneously referred to
as an order of collation both by the RTC and the appellate court. For all intents and
purposes, said Order is a mere order including the subject properties in the inventory of
the estate of the decedent.
The Court held in Valero Vda. de Rodriguez v. Court of Appeals [26] that the order of
exclusion (or inclusion) is not a final order; that it is interlocutory in the sense that it did
not settle once and for all the title to the subject lots; that the prevailing rule is that for
the purpose of determining whether a certain property should or should not be included
in the inventory, the probate court may pass upon the title thereto but such
determination is not conclusive and is subject to the final decision in a separate action
regarding ownership which may be instituted by the parties.
In the Rodriguez case, the Court distinguished between an order of collation and an
order of exclusion from or inclusion in the estate’s inventory, thus:
“We hold further that the dictum of the Court of Appeals and the probate court that the
two disputed lots are not subject to collation was a supererogation and was not
necessary to the disposition of the case which merely involved the issue of inclusion in,
or exclusion from, the inventory of the testator’s estate. The issue of collation was not
yet justiciable at that early stage of the testate proceeding. It is not necessary to
mention in the order of exclusion the controversial matter of collation.
“Whether collation may exist with respect to the two lots and whether Mrs. Rustia’s
Torrens titles thereto are indefeasible are matters that may be raised later or may not be
raised at all. How those issues should be resolved, if and when they are raised, need
not be touched upon in the adjudication of this appeal.
“The intestate and testate proceedings for the settlement of the estates of the deceased
Valero spouses were consolidated, as ordered by the lower court on November 21,
1974, so that the conjugal estate of the deceased spouses may be properly liquidated,
as contemplated in section 2, Rule 73 of the Rules of Court and Act No. 3176.
“We have examined the expedientes of the two cases. We found that the proceedings
have not yet reached the stage when the question of collation or advancement to an
heir may be raised and decided. The numerous debts of the decedents are still being
paid. The net remainder (remanente liquido) of their conjugal estate has not yet been
determined. On the other hand, up to this time, no separate action has been brought by
the appellants to nullify Mrs. Rustia’s Torrens titles to the disputed lots or to show that
the sale was in reality a donation.
“In this appeal, it is not proper to pass upon the question of collation and to decide
whether Mrs. Rustia’s titles to the disputed lots are questionable. The proceedings
below have not reached the stage of partition and distribution when the legitimes of the
compulsory heirs have to be determined.”[27]
In the light of the foregoing, Section 2, Rule 90 should be interpreted in the context of
Section 1 of the same Rule, to wit:
“Section 1. When order for distribution of residue made. – When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law, have been paid, the court,
on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which each
is entitled, and such person may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession. If
there is a controversy before the court as to who are the lawful heirs of the deceased
person or as to the distributive shares to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above mentioned
has been made or provided for, unless the distributes, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of said obligations within such
time as the court directs.”
Based thereon, we find that what the parties and the lower courts have perceived to be
as an Order of Collation is nothing more than an order of inclusion in the inventory of
the estate which, as we have already discussed, is an interlocutory order. The motion
for collation was filed with the probate court at the early stage of the intestate estate
proceedings. We have examined the records of the case and we found no indication
that the debts of the decedents spouses have been paid and the net remainder of the
conjugal estate have already been determined, and the estates of the deceased
spouses at the time filing of the motion for collation were ready for partition and
distribution. In other words, the issue on collation is still premature.
And even if we consider, en arguendo, that said assailed Order is a collation order and
a final order, still, the same would have no force and effect upon the parties. It is a
hornbook doctrine that a final order is appealable. As such, the Order should have
expressed therein clearly and distinctly the facts and the laws on which it is based as
mandated by Section 14, Article VIII of the 1987 Constitution of the Republic of the
Philippines, which provides:
“SEC. 14. No decision shall be rendered by any court without expressing therein clearly
and distinctly the facts and the law on which it is based.
No petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without stating the legal basis therefore.”
An examination of the subject Order as quoted earlier, [28] readily reveals that the
presiding Judge failed to comply with the said constitutional mandate. The assailed
Order did not state the reasons for ordering the collation of the properties enumerated
therein. The Order simply directed the inclusion of certain real properties in the estate of
the deceased. It did not declare that the properties enumerated therein were given to
the children of the deceased gratuitously, despite the title in the children’s names or
deeds of sale in their favor. Moreover, in his Comment, private respondent makes
mention of the testimonies of his witnesses but these were not even mentioned in the
Order of November 11, 1994. Petitioner would have been deprived of due process as
they would be divested of the opportunity of being able to point out in a motion for
reconsideration or on appeal, any errors of facts and/or law considering that there were
no facts or laws cited in support of the assailed Order of collation. As a final Order, it is,
on its face patently null and void. It could have never become final. A void judgment is
not entitled to the respect accorded to a valid judgment, but may be entirely disregarded
or declared inoperative by any tribunal in which effect is sought to be given to it. [29] For it
to be considered as a valid final order, the RTC must then first rule and state in its order
whether the properties covered by TCT Nos. T-36734, T-36989, T-33658, T-36987, T-
40333, T-10907 and the 4,009 square meter lot were acquired by petitioners from the
deceased parents of the parties by onerous or gratuitous title; and must specifically
state in its order the reasons why it ordered the subject properties collated. It is only
then that the order of collation may be the subject of a motion for reconsideration and/or
appeal within the 15-day reglementary period. Until and unless the constitutional
mandate is complied with, any appeal from said Order would have been premature.
Either way therefore, whether the Order in question is a final or interlocutory order, it is
a reversible error on the part of the appellate court to rule that the so-called order of
collation dated November 11, 1994 had already attained finality.
As to the prayer of petitioners that the RTC be ordered to give due course to their notice
of appeal from the Orders dated November 4, 1996 and December 23, 1996 removing
petitioner Teresita N. de Leon as administratrix of the estate of private parties’
deceased parents,[30] to approve their record on appeal[31] and to elevate the records of
Special Proceeding No. C-1679 to the Court of Appeals – It is not disputed by the
parties that said Orders are appealable. In fact, the Court of Appeals had correctly
directed the RTC to give due course to petitioners’ appeal and this is not assailed by the
private respondent.
But, the approval or disapproval of the record on appeal is not a proper subject matter
of the present petition for review on certiorari as it is not even a subject-matter in CA-
G.R. SP No. 42958. Whether or not the record on appeal should be approved is a
matter that is subject to the sound discretion of the RTC, provided that Sections 6 to 9,
Rule 41 of the Rules of Court are observed by appellant.
Finally, the elevation of the records of Special Proceedings No. C-1679 to the Court of
Appeals for the purpose of petitioners’ appeal from the order removing the administratrix
is unnecessary where a record on appeal is allowed under the Rules of Court. The court
a quo loses jurisdiction over the subject of the appeal upon the approval of the record
on appeal and the expiration of the time to appeal of the other parties; but retains
jurisdiction over the remaining subject matter not covered by the appeal. [32]
WHEREFORE, the petition is partly GRANTED. The assailed Decision dated February
28, 1997 and Resolution dated April 3, 1997 of the Court of Appeals are MODIFIED.
The Order dated November 11, 1994 issued by the Regional Trial Court and all other
orders of said court emanating from said Order which involve the properties enumerated
therein are considered merely provisional or interlocutory, without prejudice to any of
the heirs, administrator or approving parties to resort to an ordinary action for a final
determination of the conflicting claims of title.
The Regional Trial Court of Caloocan City (Branch 123) is directed to immediately act,
without further delay, on petitioners’ appeal from the Orders dated November 4, 1996
and December 23, 1996, subject to Sections 6 to 9, Rule 41 of the Rules of Court.
No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), and Kapunan, JJ., concur. Vitug, and Ynares-Santiago,
JJ., in the result.

MARCELO INVESTMENT AND MANAGEMENT CORPORATION, AND THE HEIRS

OF EDWARD T. MARCELO, NAMELY, KATHERINE J. MARCELO, ANNA MELINDA
J. MARCELO REVILLA, AND JOHN STEVEN J. MARCELO, PETITIONERS, VS.
JOSE T. MARCELO, JR., RESPONDENT.
 DECISION

PEREZ, J.:

The vesting of succession rights on the heirs upon the death of the decedent gives
occasion for the baring of sibling disaccords right at the onset of the estate proceedings
which is the determination of the administrator of the decedent’s estate. In such
instances, the liquidation, partition and distribution of the decedent’s estate is prolonged
and the issue of administration becomes, contrary to its very objective, itself the
hindrance to the ultimate goal of settlement of the decedent’s estate. We catch a
glimpse of that in this case.

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court

assailing the 24 May 2013 Decision of the Court of Appeals in CA-G.R. CV No.
95219[1] which affirmed the Order[2] of the Regional Trial Court (RTC), Branch 76,
Quezon City appointing respondent Jose T. Marcelo, Jr. (Jose, Jr.) as the new regular
administrator of the intestate estate of decedent Jose T. Marcelo, Sr.

The facts herein occurred in two stages: (1) the first litigation between two of Jose
Marcelo, Sr.’s (Jose, Sr.) compulsory heirs, his sons, Edward, (ascendant of herein
petitioners, heirs of Edward T. Marcelo, Katherine J. Marcelo, Anna Melinda J. Marcelo
Revilla, and John Steven J. Marcelo) and respondent Jose, Jr., for the appointment of
regular administrator of Jose, Sr.’s estate; and (2) after Edward was appointed regular
administrator of Jose, Sr.’s estate and Edward’s death in 2009, respondent Jose, Jr.’s
revival of his pursuit to administer his father’s, Jose, Sr.’s, estate.

These details of these stages follow:

On 24 August 1987, decedent Jose, Sr. died intestate. He was survived by his four
compulsory heirs: (1) Edward, (2) George, (3) Helen and (4) respondent Jose, Jr.

Initially, petitioner Marcelo Investment and Management Corporation (MIMCO) filed a

Petition for the issuance of Letters of Administration of the estate of Jose, Sr. before the
RTC, Branch 76, Quezon City docketed as S.P. Proc. No. Q-88-1448. At first, Helen,
along with her brother, Jose, Jr. separately opposed MIMCO’s petition; the two prayed
for their respective appointment as administrator. Edward opposed Helen’s and Jose,
Jr.’s respective petitions for issuance of Letters of Administration in their favor and
Edward himself prayed for his appointment as regular administrator. Ultimately, MIMCO,
George and Edward banded together: (1) opposed Helen’s and Jose, Jr.’s petitions, and
(2) prayed for Edward’s appointment as regular administrator of Jose, Sr.’s estate.

On 21 September 1989, pending issuance of letters of administration, the RTC

appointed Helen and Jose, Jr. as special administrators.
In an Order dated 13 December 1991, the RTC appointed Edward as regular
administrator of Jose, Sr.’s estate:
WHEREFORE, PREMISES CONSIDERED, this Court resolves as it hereby resolves to
appoint Edward T. Marcelo as the Regular Administrator of the estate of the late Jose P.
Marcelo, Sr. upon the posting of a bond amounting to THREE HUNDRED THOUSAND
PESOS (P300,000.00). The aforementioned appointment shall take effect upon his oath
as such and conditioned by a bond of P300,000.00 which shall insure the fidelity of the
said regular administrator in the performance of his duties and obligations as such. [3]
Taking issue with the RTC’s Order and questioning Edward’s appointment, Jose, Jr.
filed successive oppugnant motions: (1) motion for reconsideration of the 13 December
1991 Order; and (2) omnibus motion alleging the RTC Acting Presiding Judge Efren N.
Ambrosio’s (Judge Ambrocio) unusual interest and undue haste in issuing letters of
administration in favor of Edward.

In an Order dated 12 March 1992, the RTC, through Judge Ambrosio, denied Jose, Jr.’s
motion for reconsideration:
WHEREFORE, prescinding from the foregoing, and fortified by the balm of clear judicial
conscience, the herein motion is hereby denied. The letters of administration under date
of March 4, 1992 issued in favor of Edward T. Marcelo is maintained with full force and
effect. The letters testamentary issued in favor of Special Administrator, Jose T.
Marcelo, Jr. under date of October 2, 1989 as well as the bond posted by him are
hereby ordered cancelled. Likewise, the Special Administrator, Jose T. Marcelo, Jr. is
hereby ordered to forthwith deliver to the regular administrator the goods, chattels,
money and estate of the deceased in his hands.[4]
In the same vein of denial, the RTC ruled on the Omnibus Motion, thus:
After a re-examination of the evidence adduced by the parties and a consideration of
the arguments raised in the aforecited pleadings, this court arrived at a conclusion that
no substantial error was committed by then Acting Presiding Judge Edren N. Ambrosio
which would warrant a reversal of the questioned orders, namely, the order dated
December 13, 1991 and March 12, 1992. [5]
Adamant on his competence to better administer his father’s estate, Jose, Jr. appealed
Edward’s appointment as regular administrator to the Court of Appeals in CA-G.R. CV
No. 43674. However, the appellate court affirmed in toto[6] the Orders dated 1 October
1993, 13 December 1991 and 12 March 1992 of the intestate court.

The question of who between Edward and Jose, Jr. should administer their father’s
estate reached us in G.R. No. 123883 (Jose Marcelo, Jr. v. Court of Appeals and
Edward Marcelo): we did not find reversible error in the appellate court’s decision in CA-
G.R. CV No. 43674. We disposed of the case via a Minute Resolution dated 22 May
1996,[7] ultimately affirming the RTC’s and the appellate court’s separate rulings of
Edward’s competence and better suited ability to act as regular administrator of Jose,
Sr.’s estate.

Thereafter, Jose, Jr. persistently opposed Edward’s actions as administrator and his
inventory of Jose, Sr.’s estate. He filed anew serial motions which culminated in the
following 23 June 2000 Order of the RTC:
After a careful study of the arguments raised by the parties in support of their
respective claims, the Court finds that the motion filed by oppositor [Jose, Jr.] is
not well-taken.

Anent the submission of complete list of stockholders of all the Marcelo group of
companies together with the number and current par value of their respective
shareholding, suffice it to say that as correctly pointed out by regular administrator
[Edward], the shares of stock of the decedent will be equally distributed to the heirs that
there is no necessity therefor.

Considering oppositor’s insistence on the submission by regular administrator of a true

and updated list as well as current market values of all real estate and personal
properties of the decedent, the [c]ourt hereby directs herein oppositor [Jose, Jr.] to
inform the regular administrator of such data to aid the regular administrator in the
preparation of a complete and accurate inventory of the real and personal properties
comprising the estate of Jose, Sr.

As regards oppositor [Jose, Jr.’s] prayer for the submission by regular administrator of a
true and complete accounting of the subject corporations reckoned from the death of
[Jose, Sr.] up to the present, the [c]ourt likewise sees no need therefor as said
corporations are not parties to the case and have separate and distinct personalities
from the stockholders.

With respect to the project of partition, it appears that regular administrator had already
furnished oppositor [Jose, Jr.] with a copy thereof. Considering however oppositor
[Jose, Jr.’s] oral motion for regular administrator to identify the heirs of the decedent and
to secure their conformity to the project of partition, oppositor [Jose, Jr.] is given ten (10)
days from receipt of the project of partition bearing the conformity of the heirs within to
(sic) to comment thereon. Thereafter, the parties are directed to submit their project of
partition for approval and consideration of the [c]ourt. [8] (Emphasis supplied)
On 15 January 2001, Edward filed a Manifestation and Motion stating that:
1. Oppositor [Jose, Jr.] now conforms to, and has accordingly signed, the attached
“Liquidation of the Inventory of the Estate of Jose P. Marcelo, Sr. as of July 26, 2000” x
x x.

2. Regular Administrator [Edward] respectfully prays that the Liquidation, duly signed by
all four (4) compulsory heirs, be approved as the project of partition of the Estate of
Jose P. Marcelo Sr.[9] and moved for the approval of the Liquidation of the Inventory of
the Estate of Jose, Sr. as the project of partition of the Estate of Jose, Sr.

The project of partition reads:

LIQUIDATION OF THE INVENTORY OF THE ESTATE OF JOSE P. MARCELO, SR.

AS OF JULY 26, 2000

I. Settlement of the claims against the estate (SCH IV)

Payables
1. Marcelo Chemical & Pigment Corp. P 1,556,002.06
2. Maria Cristina Fertilizer Corp. 797,487.00
3. Marcelo Rubber & Latex Products, Inc. 542,932.74
4. Marcelo Investment & Mgnt. Corp. 532,066.35
5. Marcelo Steel Corporation 1,108,252.19
6. H. Marcelo & Co., Inc. 2,356,684.99
TOTAL P 6,893,425.33

Considering that the Estate as of June 3, 1999 has no sufficient cash to pay-off the
above claims of P6,893,425.33, I can work out an offsetting arrangement since the
Estate has also receivables from these companies as shown below:
  SCH. III-A SCH. III-B  
  Shares of Stock Receivables Total
1. MCPC P337,018.00 P 0.00 P 337,018.00
2. MCFC 300,000.00 0.00 300,000.00
3. MRLP 1,288,580.00 3,595,500.00 4,884,080.00
4. MIMCO 0.00 0.00 0.00
5. MSC 11,370.00 532,419.04 543,789.04
6. H. Marcelo 881,040.00 802,521.15 1,683,561.15
TOTAL P2,818,008.00 P 4,930,440.19 P7,748,448.19

If the above receivables and equity with total value of P7,748,448.19 will be offset
against the claims of P6,893,425.33 the net will show the following:
  SCH. III-A & B   SCH. IV
Net Claims
Companies Equity & Receivables Claims
(Receivables)
1. MCPC P 337,018.00 P1,556,002.06 P1,218,984.06
2. MCFC 300,000.00 797,487.00 497,487.00
3. MRLP 4,884,080.00 542,932.74 (4,341,147.26)
4. MIMCO   532,066.35 532,066.35
5. MSC 543,789.04 1,108,252.19 564,463.15
6. H. MARCELO &
1,683,561.15 2,356,684.99 673,123.84
CO., Inc.
TOTAL P7,748,448.19 P6,893,425.33 P (855,022.86)

Based on the offsetting except for MRLP, which the Estate has net receivables of
P4,341,147.26 there will be net claims or payables of P3,486,124.40 as follows:
1. MCPC P1,218,984.06
2. MCFC 497,487.00
3. MIMCO 532,066.35
4. MSC 564,463.15
5. H. Marcelo & Co. 673,123.84
TOTAL P3,486,124.40

It is recommended that the net from MRLP of P4,341,147.26 be deducted to the above
claims as shown below:
Net Receivables from MRLP P4,341,147.26
Net Claim 3,486,124.40
Net Receivables from MRLP P 855,022.86

II.  After the claims are settled based on the above recommendation, the Estate will
have the following assets for distribution to the four (4) of us:
1. PCIB (to be updated) 3,099.81   3,099.81
2. Shares of Stocks No. Of Shares Amount
a.  MTRC 12,874 P1,287,400.00
b. MRLP 85,502 855,022.86
c. Farmer Fertilizer Corp. 5,000 5,000.00
d. Republic Broadcasting System 18,054 18,054.00
e. Seafront Resources 6,000,000 60,000.00
f. Industrial Finance 137 1,370.00
g.  Astro Mineral 500,000 5,000.00
h. Sta. Mesa Market 42,105 42,105.00
i. Atlas Consolidated Mining 122 2,562.00
j. Phil. Long Distance Telephone 180 130,050.00
k. Jinico (Jabpract Minind) 2,500,000 25,000.00
l. Baguio Country Club 1 12,500.00
4. Receivables – Marcelo
  212,729.17
Fiberglass

* Based at Par Value

Above assets will be distributed equally by the four (4) of us depending if these will be
sold or not. It is very important to note that equal distribution will be based on actual
selling price minus taxes and other deduction if any, on the above inventories of estate
properties.
Sgd.
EDWARD T. MARCELO
Regular Administrator

Conforme:

              Sgd.
_________________
GEORGE T. MARCELO
              Sgd.
____________________
JOSE T. MARCELO, JR.

             Sgd.
________________
HELEN T. MARCELO[10]

On 16 February 2001, the RTC issued an Order approving the partition of Jose, Sr.’s
estate as proposed by Edward:
Regular administrator [Edward] manifests that oppositor Jose T. Marcelo, Jr. had
already expressed his conformity to the Liquidation of the Inventory of the Estate of
Jose P. Marcelo, Sr., as of July 26, 2000, as evidenced by his signature therein. He
therefore prays that the said document which bears the conformity of all four (4)
compulsory heirs of Jose P. Marcelo, Sr. be approved as the project of partition of the
estate of Jose P. Marcelo, Sr.

Finding said liquidation of the Inventory of the Estate of Jose P. Marcelo, Sr. to bear the
conformity of all the heirs of the decedent and considering further that the period for
filing of money claims against the subject estate had already lapsed, the Court resolves
to approve said liquidation of Inventory as the project of partition of the estate of Jose P.
Marcelo, Sr.

Nonetheless, let the distribution of the estate of Jose P. Marcelo, Sr. among his
compulsory heirs in accordance with the approved Liquidation of the Inventory of the
Estate of Jose P. Marcelo, Sr. be deferred until herein regular administrator Edward T.
Marcelo has submitted to the Court proof of payment of estate taxes of the subject
estate.[11]
On 14 September 2001, the RTC archived the intestate proceedings, S.P. Proc. No. Q-
88-1448, pending Edward’s submission of proof of payment of estate taxes as directed
in the 16 February 2001 Order.[12]

On 3 July 2009, Edward died,[13] ushering in the antecedents to the present controversy.

Wasting no time, Jose, Jr. moved to revive the intestate proceedings involving his
father’s estate, S.P. Proc. No. Q-88-1448, and moved for his appointment as new
regular administrator thereof.

Petitioners MIMCO and heirs of Edward, joined by George, opposed Jose, Jr.’s motion
and nominated Atty. Henry Reyes as regular administrator in Edward’s stead.

On 6 January 2010, the RTC issued the assailed Order, now appointing Jose, Jr. as
regular administrator of Jose, Sr.’s estate:
Contrary to the assertion of petitioners, there is no showing that the [c]ourt has
previously declared oppositor-movant [Jose, Jr.] unfit to be appointed as an
administrator.
The estate is left with no one who will administer the estate, i.e., to liquidate the estate
and distribute the residue among the heirs. As well-settled, to liquidate means to
determine the assets of the estate and to pay all debts and expenses. Records clearly
show that the estate taxes due to the government have not been paid. It is, in fact, held
that approval of the project of partition does not necessarily terminate administration x x
x. There is a necessity to appoint a new regular administrator. Equally noteworthy is that
the judicially approved inventory was prepared way back on August 30, 2000. It is but
imperative that the same be updated.

In the sound judgment of the [c]ourt, oppositor-movant [Jose, Jr.], a legitimate child of
the decedent, appears to occupy higher interest than Atty. Henry A. Reyes in
administering the subject estate.

WHEREFORE, premises considered, oppositor Jose T. Marcelo, Jr. is appointed as the

new regular administrator of the estate of Jose T. Marcelo, Sr.

Before he enters upon the execution of his trust, and letters of administration issue, he
shall give a bond in the amount of P200,000.00, conditioned as follows:

a. To make and return to the [c]ourt, within three (3) months, an updated inventory of all
goods, chattels, rights, credits, and estate of the deceased which shall come to his
possession or knowledge or to the possession of any other person for him;

b. To administer according to the Rules of Court rules, all goods, chattels, rights,
credits, and estate which shall at any time come to his possession or to the possession
of any other person for him, and from the proceeds to pay and discharge all debts,
legacies, and charges on the same, or such dividends thereon as shall be decreed by
the court, not to mention the taxes due to the government;

c. To render a true and just account of his administration to the [c]ourt within one (1)
year; and at any other time when required by the Court; and

d. To perform all orders of the [c]ourt.[14]

Petitioners filed an Omnibus Motion for Reconsideration of the 6 January 2010 Order
and now moved for the appointment instead of George as administrator of Jose, Sr.’s
estate. After Comment on the Omnibus Motion, the RTC issued another Order dated 23
March 2010, denying the Omnibus Motion and affirming the appointment of Jose, Jr. as
new regular administrator.

Petitioners appealed the RTC’s twin Orders dated 6 January 2010 and 23 March 2010
before the appellate court. This time around, the Court of Appeals affirmed Jose, Jr.’s
appointment as new regular administrator. Ruling that the selection of administrator lies
in the sound discretion of the trial court, the Court of Appeals held that:

1. The prior Order dated 13 December 1991 of the RTC appointing Edward as regular
administrator instead of Jose, Jr., which appointment was affirmed by this Court in G.R.
No. 123883, did not make a finding on Jose, Jr.’s fitness and suitableness to serve as
regular administrator; and

2. On the whole, Jose, Jr. is competent and “not wanting in understanding and integrity,”
to act as regular administrator of Jose, Sr.’s estate.

Hence, this appeal by certiorari ascribing grave error in the Court of Appeals’ Decision,
to wit:
A.

THERE WAS NO NEED TO APPOINT AN ADMINISTRATOR FOR THE ESTATE OF

JOSE P. MARCELO, SR. AS THERE WAS THEN NO PENDING INCIDENTS IN THE
ESTATE PROCEEDINGS TO WARRANT THE APPOINTMENT OF AN
ADMINISTRATOR.
B.

THE COURT OF APPEALS ERRED IN APPOINTING JOSE, JR. AS THE

ADMINISTRATOR OF JOSE, SR.’S ESTATE CONSIDERING THAT JOSE, JR. WAS
FOUND, BY A FINAL, IMMUTABLE, AND UNALTERABLE JUDGMENT, TO BE UNFIT
TO ACT AS SUCH. THUS, THE COURT OF APPEALS WAS CLEARLY MISTAKEN
WHEN IT DISREGARDED THE EARLIER PRONOUNCEMENT ON THE UNFITNESS
OF JOSE, JR. TO ACT AS AN ADMINISTRATOR AS IT GOES AGAINST THE
PRINCIPLE OF CONCLUSIVENESS OF JUDGMENT.
C.

THE COURT OF APPEALS VIOLATED THE PETITIONERS’ RIGHT TO DUE

PROCESS, WHEN IT AFFIRMED THE RTC ORDERS, WITHOUT EVEN BOTHERING
TO EXPLAIN WHY JOSE, JR. AND NOT GEORGE, SHOULD BE APPOINTED AS
ADMINISTRATOR OF JOSE, SR.’S ESTATE.[15]
The appeal is impressed with merit. While we agree with the lower courts that the
appointment of a regular administrator is still necessary, we disagree with the
appointment of Jose, Jr. as new regular administrator of Jose, Sr.’s estate.

We first dispose of the issue of whether the appointment of a regular administrator is

still necessary at this liquidation, partition and distribution stage of the intestate
proceedings involving Jose, Sr.’s estate.

Petitioners contend that the appointment of a regular administrator is unnecessary

where there remains no pending matter in the settlement of Jose, Sr.’s estate requiring
attention and administration. Specifically, petitioners point out that there is no existing or
unliquidated debt against the estate of Jose, Sr, the settlement thereof being already at
the liquidation, partition and distribution stage. Further on that, the liquidation and
proposed partition had long been approved by the probate court.

We are not convinced. The settlement of Jose, Sr.’s estate is not yet through and
complete albeit it is at the liquidation, partition and distribution stage.

Rule 90 of the Rules of Court provides for the Distribution and Partition of the Estate.
The rule provides in pertinent part:
SECTION 1.  When order for distribution of residue made. – x x x

No distribution shall be allowed until payment of the obligations above mentioned has
been made or provided for, unless the distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of said obligations within such
time as the court directs.

xxxx

SEC. 3. By whom expenses of partition paid. – If at the time of the distribution the
executor or administrator has retained sufficient effects in his hands which may lawfully
be applied for the expenses of partition of the properties distributed, such expenses of
partition may be paid by such executor or administrator when it appears equitable to the
court and not inconsistent with the intention of the testator; otherwise, they shall be paid
by the parties in proportion to their respective shares or interest in the premises, and the
apportionment shall be settled and allowed by the court, and, if any person interested in
the partition does not pay his proportion or share, the court may issue an execution in
the name of the executor or administrator against the party not paying for the sum
assessed.
In this case, we observe that the Liquidation of the Inventory of the Estate, approved by
the RTC in its Order dated 16 February 2001, is not yet in effect and complete. We
further note that there has been no manifestation forthcoming from any of the heirs, or
the parties in this case, regarding the completion of the proposed liquidation and
partition of the estate. In fact, as all parties are definitely aware, the RTC archived the
intestate proceedings pending the payment of estate taxes.

For clarity, we refer to the Liquidation of the Inventory of the Estate, which was divided
into two (2) parts: (1) Settlement of the Claims against the Estate, and (2) After
Settlement of the Claims, distribution of the remaining assets of the estate to the four (4)
compulsory heirs. The same document listed payables and receivables of the estate
dependent on a number of factors and contingencies:

1. Payables to various companies where the Marcelo family had equity amounting to
P6,893,425.33;
Considering that the Estate as of June 3, 1999 has no sufficient cash to pay-off the
above claims of P6,893,425.33, [Edward] can work out an offsetting arrangement since
the Estate has also receivables or equity from these companies as shown below:[16]

xxxx
2. Receivables from the same companies amounting to P7,748,448.19;
If the above receivables and equity with total value of P7,748,448.19 will be offset
against the claims of P6,893,425.33 the net will show the following: [17]
xxxx
3. An offsetting of the payables and receivables to be arranged by the then regular
administrator, Edward; and

4. Offsetting of the receivables from Marcelo Rubber & Latex Products, Inc. amounting
to P4,341,147.26 against the net claims against the estate amounting to P3,486,124.40
resulting in net receivables of the estate in the amount of P855,022.86.

There has been no showing from either of the parties that the receivables of, and claims
against, Jose, Sr.’s estate has been actually liquidated, much less, if an offsetting
occurred with the companies listed in the inventory on one hand, and Jose, Sr.’s estate,
on the other. Although the Marcelo family, in particular the compulsory heirs of Jose,
Sr., hold equity in the corporations mentioned in the inventory, considering that the
corporations are family owned by the Marcelos’, these corporations are different juridical
persons with separate and distinct personalities from the Marcelo patriarch, the
decedent, Jose, Sr.[18]

More importantly, the liquidation scheme appears yet to be effected, the actual partition
of the estate, where each heir separately holds his share in the estate as that which
already belongs to him, remains intangible and the ultimate distribution to the heirs still
held in abeyance pending payment of estate taxes. [19]

Significantly, even the Liquidation of the Inventory of Jose, Sr.’s estate states that the
valuation amount of the shares of stock as listed therein is based on par value, which
may have varied given the passage of time. The same document delivers a very
important notation that the equal distribution of the listed assets of the estate will
depend on the actual selling price of these assets less taxes and other deductions:
Above assets will be distributed equally by the four (4) [compulsory heirs] depending if
these will be sold or not. It is very important to note that equal distribution will be based
on actual selling price minus taxes and other deduction if any, on the above inventories
of estate properties.[20]
To date, more than a decade has passed since the intestate proceedings were
archived, thus, affecting the value of the estate’s assets.

From all of the foregoing, it is apparent that the intestate proceedings involving Jose,
Sr.’s estate still requires a regular administrator to finally settle the estate and distribute
remaining assets to the heirs of the decedent.

We now come to the issue of whether Jose, Jr. may be appointed as regular
administrator despite the previous Order of the RTC on 13 December 1991, affirmed by
the appellate court and this Court in G.R. No. 123883, that as between Jose, Jr. and
Edward, the latter was better suited to act as regular administrator of their father’s
estate. Stated differently, whether Jose, Jr.’s previous non-appointment as regular
administrator of Jose, Sr.’s estate bars his present appointment as such even in lieu of
Edward who is now dead.
A close scrutiny of the records reveals that in all of Jose, Jr.’s pleadings opposing
Edward’s appointment as regular administrator, he simultaneously prayed for his
appointment as regular administrator of their father’s estate. In short, he proffered his
competence and qualification to be appointed as regular administrator as a legal issue
for resolution of the courts. Essentially, Jose, Jr. was weighed and found wanting by the
RTC, the appellate court, and this Court.

In its 13 December 1991 Order, the RTC categorically ruled on who between Edward
and Jose, Jr. was fit to administer the estate of Jose, Sr., framing the issue in this wise:
The [c]ourt’s choice as to who among the [compulsory heirs] will be appointed regular
administrator of the estate of Jose, Sr. is now limited to Edward and Jose, Jr. in view of
the withdrawal of Helen T. Marcelo.

It is this [c]ourt’s observation that the continuous internal wranglings between the heirs
would achieve nothing. In the meantime, the estate of the late Jose, Marcelo, Sr. is
dragged further into the quagmire of dissipation and loss. It would not be amiss to state
that the animosity among the interested [petitioners therein], Edward and Jose, Jr. have
considerably increased since the filing of their respective petitions, but the [c]ourt on the
basis of their qualifications will have to decide whom to appoint as regular administrator.
Willingness to act and/or serve as regular administrator is no longer in issue here as
both applicants are undoubtedly willing to serve as such. However, after subjecting the
evidence, both testimonial and documentary to careful judicial study, this [c]ourt now
resolves as it hereby resolves to appoint Edward T. Marcelo as regular administrator of
the estate of the late Jose, Sr.

As aptly cited by petitioner, Edward T. Marcelo, there can be no adverse conclusion that
may be inferred from the withdrawal of a petition or nomination. While it may be true
that initially the petition for the issuance of letters testamentary was filed by Marcelo
Investment and Management Corporation (MIMCO for brevity) and by Danilo O. Ibay as
nominee of Edward and George Marcelo, the same did not constitute a waiver on the
part of Edward T. Marcelo. This can be gleaned from the withdrawal of the nomination
of Danilo O. Ibay and the subsequent filing of Edward T. Marcelo of his petition for the
appointment as legal administrator on September 14, 1989. Further, nowhere in the
provisions of the Revised Rules of Court is such a nomination of a party other than a
compulsory heir prohibited.

The documents presented by Jose, Jr. purporting to show that the deceased had other
assets other than those enumerated in the original petition filed by MIMCO and which
should have been included in the estate cannot be accorded any weight or credence by
this [c]ourt, as the individual who supposedly prepared the document was never
identified and the sources of information not disclosed. Upon the other hand, the petition
filed by MIMCO was based on the Financial Statements prepared by an independent
auditor, A. F. Pablo and Associates. On the basis of the information provided by MIMCO
in the original petition, this [c]ourt can determine the probable value and nature of the
estate of the deceased Jose P. Marcelo, Sr.
There is no argument that both Edward and Jose, Jr. are willing to serve as regular
administrator but undoubtedly, Edward appears to be more responsible and competent
that his younger brother, Jose, Jr. This is bolstered by the fact that the family
corporations and his own personal corporation are presently of sound financial
condition. This success, the [c]ourt believes can be attributed to the management skills
and the sound management policies Edward has adopted throughout the years.
Likewise, it can be deduced that among the four (4) children of Jose, Sr., it was Edward
whom he trusted the most. The deceased valued the opinion of Edward on decisions
that had to be made and he would have Edward around in his meetings to discuss
matter relating to the corporations which he managed. Further, as can be gleaned from
the evidence presented by Jose, Jr., it was Edward Marcelo who was appointed as
trustee to vote the deceased’s share in a Marcelo Corporation, Polaris Marketing
Corporation. It was also Edward who was made co-signatory when the deceased
deposited money in the bank to be given to the children of Jose, Jr. It is thus quite
evident that Edward was really the most trusted child of the deceased.

Upon the other hand, this court looks with deep concern the manner by which Jose, Jr.
treats the corporate properties of the Marcelo Group of Companies. Evidence shows
that sometime October 21, 1998, Jose, Jr. took evidencing liabilities of the deceased
and other pertinent records and up to the present has not returned them. Jose, Jr.
cannot justify the taking of the records/or borrowing of the same by asserting that he is
now keeping them in his capacity as Special Administrator as he was appointed Special
Administrator only on September 21, 1989 whereas the records were “borrowed” as
early as October 21, 1988. Be that as it may, what belies Jose, Jr.’s assertion is the fact
that the records of the corporation which were allegedly “borrowed/taken” do not form
part of the estate of Jose, Sr. but to the corporation from where they were taken.

Likewise, it should be noted that the appointment of Jose, Jr. as one of the Special
Administrators does not necessarily make him more qualified to be appointed as regular
administrator. The records of the case will bear out, that the appointment of a Special
Administrator was premised on the need to have someone, oversee, manage and
preserve the estate of Jose, Sr., as there was the danger of the estate being dissipated.
Moreover, the [c]ourt never touched on the issue of the qualifications of the applicants,
as there was in fact, no evidence presented on the matter, other than the bare
allegations of the applicants that they were all qualified to act as such. [21] (Citations
omitted)
Notably, the decision of the trial court appointing Edward as the Administrator of the
Estate of Jose, Sr., which decision had the imprimatur of a final resolution by this Court,
was not merely a comparison of the qualifications of Edward and Jose, Jr., but a finding
of the competence of Edward compared to the unfitness of Jose, Jr.

As against this Order of the RTC, its subsequent opposite Order dated 6 January 2010
appointing Jose, Jr. as new regular administrator only had two (2) sentences to
essentially reverse the previous findings.
Contrary to the assertion of petitioners, there is no showing that the [c]ourt has
previously declared [Jose, Jr.] unfit to be appointed as an administrator.

xxxx

In the sound judgment of the [c]ourt, [Jose, Jr.], a legitimate child of the decedent,
appears to occupy a higher interest than Atty. Henry A. Reyes in administering the
subject estate.[22]
The first sentence contained in the Order of 6 January 2010 is disproven by the definite
finding of “deep concern” in the original Order.  The second sentence does not amount
to a finding of a qualification superior to that of the rest of the children of Jose, Sr.

In affirming the issuance of letters of administration to Jose, Jr., the appellate court
dwelt largely on the considerable latitude allowed a probate court in the determination of
a person’s suitability for the office of judicial administrator. The Court of Appeals only
briefly delved into Jose, Jr.’s numerous attempts to be appointed regular administrator
of Jose, Sr.’s estate which were all denied previously by the same probate court:
The RTC Order dated 13 December 1991, as affirmed by this [c]ourt in Decision dated
30 March 1995, and by the Supreme Court in the Resolution dated 22 May 1996, did
not declare [respondent] Jose, Jr. unfit to serve as administrator. What was ruled upon
by the RTC, and affirmed by this [c]ourt, and by the Supreme Court, was the
appointment of Edward as the administrator of Jose, Sr.’s estate, and the denial of
[respondent] Jose, Jr.’s opposition to Edward’s appointment. Nowhere was there any
categorical ruling, or a definite finding, that [respondent] Jose, Jr. was, unfit to execute
the duties of the trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an offense involving moral
turpitude. Thus, there is no merit in [petitioners’] contention that the finding on the
unfitness of [respondent] Jose, Jr. became binding, and precluded the RTC from
appointing [respondent] Jose, Jr., as the new regular administrator of Jose, Sr.’s estate.

Jurisprudence has long held that the selection of an administrator lies in the sound
discretion of the trial court. The determination of a person’s suitability for the office of
judicial administrator rests, to a great extent, in the sound judgment of the court
exercising the power of appointment and said judgment is not to be interfered with on
appeal unless the said court is clearly in error.

The RTC did not err in appointing Jose, Jr. as the new administrator, even though his
previous prayer for appointment was denied. Notably, by virtue of Edward’s death, the
office of the regular administrator of Jose, Sr.’s estate was vacated, and it was within
the jurisdiction of the RTC, as probate court, to appoint a new administrator. [23]
Evidently, the Court of Appeals like the RTC in its second order, closed its eyes on the
facts detailed by the RTC in the first order.

Considering the two (2) sets of conflicting rulings of the RTC and the Court of Appeals
in the two stages of this litigation, we put into proper perspective the 13 December 1991
Order of the RTC appointing Edward over Jose, Jr. as regular administrator of their
father’s estate, which Order was upheld by us in G.R. No. 123883.

Section 1, Rule 78 of the Rules of Court provides for the general disqualification of
those who wish to serve as administrator:
SECTION 1. Who are incompetent to serve as executors or administrators.— No
person is competent to serve as executor or administrator who:
(a) Is a minor;
(b) Is not a resident of the Philippines; and
Is in the opinion of the court unfit to execute the duties of the trust by reason of
(c) drunkenness, improvidence, or want of understanding or integrity, or by reason of
conviction of an offense involving moral turpitude.
Section 6 of the same rule, on the other hand, lists an order of preference in instances
when there is a contest of who should be appointed administrator:
SEC. 6.  When and to whom letters of administration granted.— If no executor is named
in the will, or the executor or executors are incompetent, refuse the trust, or fail to give
bond, or a person dies intestate, administration shall be granted:

(a) To the surviving spouse, or next of kin, or both, in the discretion of the court, or to
such person as such surviving spouse, or next of kin, requests to have appointed, if
competent and willing to serve;

(b) If such surviving spouse, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the surviving spouse, or next of kin, neglects for thirty (30)
days after the death of the person to apply for the administration or to request that
administration be granted to some other person, it may be granted to one or more of the
principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such
other person as the court may select.
Because Edward and Jose, Jr. are both compulsory heirs of Jose, Sr., they were, at the
time the issue of administration first cropped, equally preferred to administer Jose, Sr.’s
estate. Necessarily, the courts also delved into the question of their suitableness and
fitness to serve as administrator, preferring one over the other, framing it as Edward
being more fit and suited to be administrator:
1. Edward has kept the Marcelo family corporations and his own in good
financial condition;
2. The trust reposed by the decedent on Edward who voted on Jose, Sr.’s
behalf in a Marcelo corporation; and
3. Edward being made a co-signatory for money deposited for Jose, Jr.’s
own children.
Plainly, the RTC in its Order dated 13 December 1991, found Edward competent to
serve as regular administrator, more competent than Jose, Jr., preferred despite equal
status in the Order of Preference, manifesting none of the disqualifications set by law.
Still and all, the same Order likewise judged Jose, Jr.’s suitableness and fitness, or lack
thereof, for the office of administrator, albeit in comparison with Edward and not with the
rest of Jose, Sr.’s children.  Jose, Jr. was not what Edward was.  The fact however, that
Edward was made co-signatory for money deposited for Jose, Jr.’s own children is a
telling commentary against Jose, Jr.’s competence, if not integrity.

Then too, the RTC in the original order made a specific finding, “[viewing it] with deep
concern,” Jose, Jr.’s handling of the records of the Marcelo Group of Companies. It
euphemistically called taking of the records evidencing liabilities of the decedent as
“borrowed/taken.” However, the RTC noted that such cannot be justified as the records
and other pertinent documents taken “do not form part of the estate of Jose P. Marcelo,
Sr. but to the corporation from where they were taken.”

Contrary to the recent rulings of the RTC and the Court of Appeals appointing Jose, Jr.
as administrator, there is a previous and categorical ruling on Jose, Jr.’s fitness to serve
as such:
It is Jose T. Marcelo’s position that he is more competent, qualified and suitable for the
position of regular administrator. This, above all else is the main thrust of this second
motion for reconsideration. However, the court in the exercise of its sound discretion
after a consideration of the evidence adduced by both parties, ruled otherwise and
instead appointed Edward T. Marcelo as regular administrator.

x x x True, Jose T. Marcelo, Jr. was initially appointed as Special Administrator of the
estate of their deceased father but the same was without the benefit of a hearing on the
qualifications of the parties concerned. x x x This did not however confer on Jose
Marcelo, Jr. as Special Administrator a better right to the office of regular administrator.
x x x.

xxxx

The third assigned error raised by [Jose, Jr.] “that both trial judges erred in not
appointing Special Administrator Jose T. Marcelo, Jr. as Regular Administrator
considering his tested probity and competence as special administrator, his good name
and integrity in accordance with the evidence,” is devoid of merit, as already discussed
earlier.

The findings of the lower court in this regard deserve full consideration x x x. [24]
Undoubtedly, there has been a declaration that Jose, Jr. is unfit and unsuitable to
administer his father’s estate.

To obviate further delay in the settlement of Jose, Sr.’s estate, we emphasize that such
is already at the liquidation and distribution stage which project of partition had long
been conformed to by the parties.

We note that this case has been unnecessarily prolonged and resulted in added
litigation by the non-payment of estate taxes which is the ultimate responsibility of the
heirs having inchoate right in the estate, should there be assets remaining, to be
partitioned and distributed. The inheritance tax is an obligation of the estate, indirectly
the heirs:
SECTION 1. When order for distribution of residue made. – When the debts, xxx, and
inheritance tax, if any, chargeable to the estate in accordance with law, have been paid,
xxx.

No distribution shall be allowed until payment of the obligations above mentioned has
been made or provided for, unless the distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of said obligations within such
time as the court directs.[25]
Given the factual considerations that led to the prior findings on the unfitness of Jose,
Jr. to act as regular administrator; the Affidavit of Helen [26] preferring George as
administrator; and the conformity on record of the rest of Jose, Sr.’s heirs to George’s
administration as reflected in petitioners’ Appellants’ Brief before the Court of Appeals:
More importantly, consistent with Section 6, Rule 78 of the Rules of Court, not only is
George the eldest son of Jose, Sr. and, therefore, his most immediate kin, he has,
moreover, been chosen by the rest of the heirs of Jose, Sr. to perform the functions of
an administrator. In this regard, in addition to George and the heirs of Edward, Helen
executed an Affidavit to manifest her opposition to Jose, Jr. and to support the
appointment of George and herself as joint administrators, a copy of which was given to
the [Court of Appeals.][27]
we thus issue Letters of Administration to George to facilitate and close the settlement
of Jose, Sr.’s estate.[28]

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-
G.R. CV No. 95219 and the Order dated 6 January 2010 of the Regional Trial Court,
Branch 76, Quezon City in S.P. Proc. No. Q-88-1448 are REVERSED and SET ASIDE.
Letters of Administration shall issue to George T. Marcelo upon payment of a bond to
be set by the Regional Trial Court, Branch 76, Quezon City. The Regional Trial Court,
Branch 76, Quezon City is likewise directed to complete the settlement of the
decedent’s, Jose T. Marcelo, Sr.’s, estate with dispatch starting from an Order setting a
deadline for the parties to pay the estate taxes and to inform this Court when such has
been paid.

SO ORDERED.

Sereno, Chief Justice (Chairperson), Leonardo-De Castro, Bersamin, and Villarama,

Jr.,* JJ., concur.

[ G.R. No. 55076, September 21, 1987 ]

MATILDE S. PALICTE, PETITIONER, VS. HON. JOSE O. RAMOLETE AS
PRESIDING JUDGE OF COURT OF FIRST INSTANCE OF CEBU, BRANCH III, AND
MARCELO SOTTO, ADMINISTRATOR, RESPONDENTS.

DECISION

GUTIERREZ, JR., J.:

This is a petition for review on certiorari of the order of the then Court of First Instance
of Cebu declaring the deed of redemption executed for the petitioner null and void and
denying the petitioner's motion that the Registrar of Deeds of the City of Cebu be
directed to transfer the Owner's Duplicate Certificates of Title to Lot Nos. 1049, 1051,
and 1052 from Filemon Sotto to her and to issue a new Owner's Duplicate Certificate of
Title to Lot 2179-C in her name.

On July 5, 1979, a sale at public auction was held pursuant to a writ of execution issued
on February 5, 1979 by the respondent judge and to a court order dated June 4, 1979 in
the case of Pilar Teves, et al. v. Marcelo Sotto, Administrator, Civil Case No. R-10027,
for the satisfaction of judgment in the amount of P725,270.00.

The following properties belonging to the late Don Filemon Sotto and administered by
respondent Marcelo Sotto were levied upon:

"1. Parcel of land on Lot No. 1049, covered by TCT No. 27640 of the Banilad Friar
Lands Estate, Cebu City;
2. Parcel of land on Lot No. 1052, covered by TCT No. 27642 of the Banilad Friar
Lands Estate, Cebu City;
3. Parcel of land on Lot No. 1051, covered by TCT No. 27641 of the Banilad Friar
Lands Estate, Cebu City;
4. Parcel of land on Lot No. 5253 of the Cebu Cadastre, Cebu City, covered by TCT
No. 27639;
5. Parcel of land situated at Mantalongan, Dalaguete, Cebu, covered by TD No.
010661, with an area of .76-708; (sic)
6. Parcel of land on Lot No. 4839 of the Opon Cadastre, at Barrio Sa-ac, Mactan
Island, with an area of Forty Four Thousand Six Hundred Forty Four (44,644) square
meters more or less;
7. Residential House of strong materials, situated on a Government lot at Lahug, Cebu
City;
8. Residential House of strong materials, situated at Central, Cebu City." (Rollo, p. 40)
Seven of the above-described properties were awarded to Pilar Teves, who alone bid
for them for the amount of P217,300.00.

The residential house situated on a government lot at Lahug, Cebu City, was awarded
to lone bidder Asuncion Villarante for the amount of P10,000.00.

Within the period for redemption, petitioner Matilde S. Palicte, as one of the heirs of the
late Don Filemon Sotto, redeemed from purchaser Pilar Teves, four (4) lots for the sum
of P60,000.00.

A deed of redemption dated July 29, 1980, executed by Deputy Provincial Sheriff Felipe
V. Belandres and approved by the Clerk of Court, Esperanza Garcia as Ex-Officio
Sheriff, was issued for these lots:
"1. A parcel of land or Lot No. 2179-C-PDI-25027, Cebu Cadastre, Cebu City, bid at
P20,000.00;
2. A parcel of land or Lot No. 1052, covered by TCT No. 27642, of the Banilad Friar
Lands Estate, Cebu City, bid at P15,000.00;
3. A parcel of land or Lot No. 1051, covered by TCT No. 27641, of the Banilad Friar
Lands Estate, Cebu City, at P5,000.00;
4. A parcel of land or Lot No. 1049, covered by TCT No. 27640, of the Banilad Friar
Lands Estate, Cebu City, at P20,000.00." (Rollo, p. 42)
On July 24, 1980, petitioner Palicte filed a motion with respondent Judge Ramolete for
the transfer to her name of the titles to the four (4) parcels of land covered by the deed
of redemption.

This motion was opposed by the plaintiffs in Civil Case No. R-10027, entitled "Pilar
Teves, et al. v. Marcelo Sotto, administrator" on several grounds, principal among
which, is that movant, Palicte, is not one of those authorized to redeem under the
provisions of the Rules of Court.

A hearing on the said motion, with both parties adducing evidence was held.

The lower court held that although Palicte is one of the declared heirs in Spl. Proc. No.
2706-R, she does not qualify as a successor-in-interest who may redeem the real
properties sold. It ruled that the deed of redemption is null and void. The motion of
Palicte was denied.

Hence, the present petition.

The petitioner raises the following assignment of errors:

"RESPONDENT JUDGE ERRED IN RULING THAT THE JUDGMENT DEBTOR

ENTITLED TO REDEEM UNDER SECTION 29(a), RULE 39 OF THE REVISED
RULES OF COURT REAL PROPERTY SOLD ON EXECUTION AGAINST THE
ESTATE OF THE DECEDENT IS ONLY THE ADMINISTRATOR OF THE ESTATE, OR
HIS SUCCESSOR-IN-INTEREST.

"RESPONDENT JUDGE ERRED IN RULING THAT PETITIONER, WHO IS A

DECLARED HEIR OF THE DECEDENT, IS NOT THE JUDGMENT DEBTOR NOR
DOES SHE QUALIFY AS A SUCCESSOR-IN-INTEREST OF THE ADMINISTRATOR
OF THE ESTATE ENTITLED TO RIGHT OF REDEMPTION UNDER SECTION 29(a),
RULE 39 OF THE RULES OF COURT.

C
"RESPONDENT JUDGE ERRED IN RULING THAT ALTHOUGH PETITIONER IS A
DECLARED HEIR OF THE DECEDENT, HER RIGHT TO THE ESTATE, LIKE THAT
OF REDEMPTION OF CERTAIN ESTATE PROPERTY, COULD ONLY ARISE AFTER
DISTRIBUTION OF THE ESTATE AS THERE IS STILL JUDGMENT DEBT
CHARGEABLE AGAINST THE ESTATE.

RESPONDENT JUDGE ERRED IN RULING THAT PETITIONER'S REDEMPTION OF

FOUR (4) PARCELS OF LAND OF THE ESTATE OF THE DECEDENT SOLD ON
EXECUTION OF JUDGMENT AGAINST THE ESTATE IS NULL AND VOID AND
INEFFECTIVE." (Rollo, pp. 17-18)

These assigned errors center on whether or not petitioner Palicte may validly exercise
the right of redemption under Sec. 29, Rule 39 of the Rules of Court.

We answer in the affirmative. Sec. 29 of Rule 39 provides:

"SEC. 29. Who may redeem real property so sold. Real property sold as provided in
the last preceding section, or any part thereof sold separately, may be redeemed in the
manner hereinafter provided, by the following persons:
“(a) The judgment debtor, or his successor in interest in the whole or any part of the
property;
“(b) A creditor having a lien by attachment, judgment or mortgage on the property sold,
or on some part thereof, subsequent to the judgment under which the property was
sold. Such redeeming creditor is termed a redemptioner."
Under Subsection (a), property sold subject to redemption may be redeemed by the
judgment debtor or his successor-in-interest in the whole or any part of the property.
Does Matilde Palicte fall within the term "successor-in-interest"?

Magno v. Viola and Sotto (61 Phil. 80, 84-85) states that:

"The rule is that the term 'successor in interest' includes one to whom the debtor has
transferred his statutory right of redemption. (Big Sespe Oil Co. v. Cochran, 276 Fed.,
216, 223); one to whom the debtor has conveyed his interest in the property for the
purpose of redemption (Southern California Lumber Co. v. McDowell, 105 Cal., 99; 38
Pac., 627; Simpson v. Castle, 52 Cal., 644; Schumacher v. Langford, 20 Cal. App., 61;
127 Pac., 1057); one who succeeds to the interest of the debtor by operation of law (XI
McKinney's California Jurisprudence, 99); one or more joint debtors who were joint
owners of the property sold (Emerson v. Yosemite Gold Min. etc. Co., 149 Cal., 50; 85
Pac., 122); the wife as regards her husband's homestead by reason of the fact that
some portion of her husband title passes to her (Hefner v. Urton, 71 Cal., 479; 12 Pac.,
486). This court has held that a surety can not redeem property of the principal sold on
execution because the surety, by paying the debt of the principal, stands in the place of
the creditor, not of the debtor, and consequently is not a successor in interest in the
property. (G. Urruitia & Co. v. Moreno and Reyes, 28 Phil., 260, 268)." (Underscoring
supplied).
In the case at bar, petitioner Palicte is the daughter of the late Don Filemon Sotto whose
estate was levied upon on execution to satisfy the money judgment against it. She is
one of the declared heirs in Special Proceeding No. 2706-R. As a legitimate heir, she
qualifies as a successor-in-interest.

Art. 777 of the Civil Code states that:

"The rights to the succession are transmitted from the moment of the death of the
decedent."
At the moment of the decedent's death, the heirs start to own the property, subject to
the decedent's liabilities. In fact, they may dispose of the same even while the property
is under administration. (Barretto v. Tuason, 59 Phil. 845; Jakosalem v. Rafols, 73 Phil.
628). If the heirs may dispose of their shares in the decedent's property ever while it is
under administration, with more reason should the heirs be allowed to redeem
redeemable properties despite the presence of an administrator.

The respondents contend that the petitioner must positively prove that the three other
co-heirs, the administrator, and the intestate court had expressly agreed to the
redemption of the disputed parcels of land. We see no need for such prior approval.
While it may have been desirable, it is not indispensable under the circumstances of this
case. What is important is that all of that acquiesced in the act of redeeming property
for the estate. The petitioner contends that the administrator and the three other heirs
agreed to the redemption. There is, however, no clear proof of such approval. What is
beyond dispute from the records is that they did not disapprove nor reprobate the acts
of the petitioner. There in likewise nothing in the records to indicate that the redemption
was not beneficial to the estate of Don Filemon Sotto.

It may be true that the interest of a specific heir is not yet fixed and determine pending
the order of distribution but, nonetheless the heir's interest in the preservation of the
estate and the recovery of its properties is greater than anybody else's, definitely more
than the administrator's who merely holds it for the creditors, the heirs and the legatees.

The petitioner cites precedents where persons with inchoate or contingent interest were
allowed to exercise the right of redemption as "successors-in-interest", e.g. Director of
Lands v. Lagniton (103 Phil. 889, 892) where a son redeemed the property of his
parents sold on execution and Rosete v. Provincial Sheriff of Zambales (95 Phil. 560,
564), where a wife by virtue of what the Court called "inchoate right of dower or
contingent interest" redeemed a homestead as successor-in-interest of her husband.

In fact, the Court was explicit in Lagniton that:

"xxx The right of a son, with respect to the property of a father or mother, is also an
inchoate or contingent interest, because upon the death of the father or the mother or
both, he will have a right to inherit said conjugal property. If any holder of an inchoate
interest is a successor in interest with right to redeem a property sold on execution, then
the son is such a successor in interest, as he has an inchoate right to the property of his
father."
The lower court, therefore, erred in considering the person of the administrator as the
judgment debtor and as the only "successor-in-interest". The estate of the deceased is
the judgment debtor and the heirs who will eventually acquire that estate should not be
prohibited from doing their share in its preservation.

Although petitioner Palicte validly redeemed the properties, her motion to transfer the
titles of the four (4) parcels of land covered by the Deed of Redemption from registration
in the name of Filemon Sotto to her name cannot prosper at this time.

Otherwise, to allow such transfer of title would amount to a distribution of the estate.

As held in the case of Philippine Commercial and Industrial Bank v. Escolin (56 SCRA
267, 345-346):

"Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of
Rule 90 provides:
"SECTION 1. When order for distribution of residue made. - When the debts, funeral
charges, and expenses of administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law, have been paid, the court,
on the application of the executor or administrator, or of a person interested in the
estate, and after hearing upon notice, shall assign the residue of the estate to the
persons entitled to the same, naming them and the proportions, or parts, to which each
is entitled, and such persons may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession. If
there is a controversy before the court as to who are the lawful heirs of the deceased
person or as to the distributive shares to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
"No distribution shall be allowed until the payment of the obligations above mention has
been made or provided for, unless the distributees, or any of them, give a bond, in a
sum to be fixed by the court, conditioned for the payment of said obligations within such
time as the court directs.
"These provisions cannot mean anything less than that in order that a proceeding for
the settlement of the estate of a deceased may be deemed ready for final closure, (1)
there should have been issued already an order of distribution or assignment of the
estate of the decedent among or to those entitled thereto by will or by law, but (2) such
order shall not be issued until after it is shown that the 'debts, funeral expenses,
expenses of administration, allowances, taxes, etc., chargeable to the estate' have been
paid, which is but logical and proper, (3) besides, such an order is usually issued upon
proper and specific application for the purpose of the interested party or parties, and not
of the court."
The other heirs are, therefore, given a six months period to join as co-redemptioners in
the redemption made by the petitioner before the motion to transfer titles to the latter's
name may be granted.
WHEREFORE, the petition is hereby GRANTED. The respondent court's orders
declaring the deed of redemption null and void and denying the motion to transfer title
over the redeemed properties to Matilde Palicte are REVERSED and SET ASIDE;
subject to the right of the other heirs to join in the redemption as stated above.

SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.

[ G.R. No. L-45425, March 27, 1992 ]

CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE PANLILIO AND

REMEDIOS L. VDA. DE GUINTO, PETITIONERS, VS. HON. JUDGE ERNESTO
TENGCO OF THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL,
BACOLOD CITY, BRANCH IV AND RODOLFO LIZARES AND AMELO LIZARES, AS
JUDICIAL ADMINISTRATORS OF THE ESTATE OF THE LATE EUSTAQUIA
LIZARES, RESPONDENTS.

[G.R. NO. L-45965. MARCH 27, 1992]

RODOLFO LIZARES AND AMELO LIZARES, AS JUDICIAL ADMINISTRATORS OF

THE ESTATE OF EUSTAQUIA LIZARES, PETITIONERS, VS. HON. JUDGE
ERNESTO TENGCO, CELSA L. VDA. DE KILAYKO, ENCARNACION L. VDA. DE
PANLILIO AND REMEDIOS VDA. DE GUINTO, RESPONDENTS.

DECISION

ROMERO, J.:

These consolidated cases seek to annul the orders [1] dated September 20, 1976,
January 7, 1977 and January 31, 1977 of the then Court of First Instance of Negros
Occidental, Branch IV, respectively, cancelling the notice of lis pendens filed by Celsa L.
Vda. de Kilayko, et al. with the Register of Deeds of Negros Occidental, denying the
motion for reconsideration of the order dated September 20, 1976 filed by Celsa L. Vda.
de Kilayko, et al., and holding in abeyance the resolution of defendants' motion to
dismiss.

The undisputed facts of the case are as follows:

On November 20, 1962, the late Maria Lizares y Alunan executed a "Testamento" [2]
which contains among its provisions, the following:
DECIMA - Asimismo, ordeno y dispongo que mi participacion consistente en una
tercera parte (1/3) de una catorce (1/14) avas partes proindivisas de la Hda. Minuluan,
que he adquirido mediante permuta de mi hermano Dr. Antonio A. Lizares, se
adjudique, como por el presente se adjudica, a mi sobrina Eustaquia Lizares;
ENTENDIENDOSE, sin embargo,
que en el caso de que mi citada sobrina. Eustaquia Lizares muera soltera o sin descen
dientes legitimos, mi referida participacion en la Hda. Minuluan se adjudicara a mi herm
ano Antonio A. Lizares que me sobrevivan.
UNDECIMA - Tambien ordeno y dispongo que el resto de todas mis propiendades,
incluyendo mis participaciones, derechos e intereses (no dispuestos mas arriba) en las
Haciendas "Minuluan" (Lotes Nos. 439, 403, 1273, 1274, 1278, 1279 y 1280 del
Catastro de Talisay, Negros Occidental) y "Matab-ang" (Lotes Nos. 514, 550, 552, 553
y 1287-C del Catastro de Talisay, Negros Occidental), situadas en el Municipio de
Talisay, Provincia de Negros Occidental, I.F., el resto de mis acciones en la Central
Talisay-Silay Milling Co., Inc. (unas 2,860 acciones) y de la Financing Corporation of
the Philippines (unas 53,636 acciones), registradas a mi nombre y no heredadas de mi
difunta madre Dña. Enrica A. Vda. de Lizares, mis acciones en la Central Bacolod-
Murcia Milling Co., Inc., Negros Navigation Co. y otras Compañas Mineras, y todos los
demas bienes no mencionados en este testamento y que me pertenezcan en la fecha
de mi muerte, se adjudiquen, como por el presente adjudico, a mi sobrina Srta.
Eustaquia Lizares, hija de mi difunto hermano Don Simplicio Lizares, en reconocimiento
de los valiosos servicios y cuidados que mi citada sobrina me ha prestado y signe
prestandome hasta ahora. Ordeno, sin embargo, a mi referida sobrina, Srta. Eustaquia
Lizares, que ella se haga cargo de pagar todas las obligaciones que tengo y que
gravan sobre las propriedades adjudicadas a la misma. Asimismo ordeno a mi citada
sobrina que ella mande celebrar una Misa Gregoriana cada año en sufragio de mi alma,
y misas ordinarias en sufragio de las almas de mi difunto Padre y de mi difunta Madre,
el 6 de Marzo y 17 de Deciembre de cada año, respectivamente, y mande celebrar
todos los años la fiesta de San Jose en Talisay como lo hago hasta
ahora. En el caso de, que mi citada sobrina, Srta. Eustaquia Lizares, falleciere sin dejar 
descendientes legitimos, ordeno y dispongo que mi participacion consistente en una se
xta parte (1/6) de la Hda. Matab-ang, con su corresnondiente cuota da azucar, y otros 
mejoras, se adjudique a mis hermanas y hermano antes mencionados y que me sobrev
ivan (Underscoring supplied)

On January 28, 1968, Maria Lizares y Alunan died without any issue leaving said
"testamento" in the possession and custody of her niece, Eustaquia Lizares. [3] On
February 6, 1968, Eustaquia filed a petition for the settlement of the testate estate of
Maria Lizares y Alunan, before the Court of First Instance of Negros Occidental, Branch
IV, docketed as Special Proceedings No. 8452. [4]

The required publication of the notice of hearing of the petition having been made, in
due course, the probate court issued an order declaring the will probated and appointing
Eustaquia as the executrix of the estate of Maria Lizares. [5]
On July 10, 1968, Eustaquia filed a project of partition[6] which was granted by the
probate court in an order dated January 8, 1971. Simultaneously, said court declared
the heirs, devisees, legatees and usufructuaries mentioned in the project of partition as
the only heirs, devisees, legatees and usufructuaries of the estate; adjudicated to them
the properties respectively assigned to each and every one of them, and ordered the
Register of Deeds of Negros Occidental and Bacolod City to effect the corresponding
transfer of the real properties to said heirs as well as the transfer of shares, stocks, and
dividends in different corporations, companies and partnerships in the name of Maria
Lizares to the heirs and legatees, and the closure of the testate proceedings of Maria
Lizares.[7]

Thereafter, Eustaquia filed an urgent motion to reopen the testate proceedings in order
that some properties of Maria Lizares which had been omitted in the partition be
adjudicated to her.[8] The Court granted the motion and correspondingly reopened the
testate proceedings. It adjudicated to Eustaquia certain shares of stocks, a revolving
fund certificate, plantation credits and sugar quota allocations, and real or personal
properties of Maria Lizares which were not given by her to any other person in her last
will and testament.[9]

On November 28, 1972, the heirs of Maria Lizares, namely: Encarnacion L. Vda. de
Panlilio, Remedios L. Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed an agreement of partition and subdivision,
thereby terminating their co-ownership over Lots Nos. 550, 514, 553, 1287-C of plan
SWO-7446, and 552, all of the Cadastral Survey of Talisay covered by Transfer
Certificates of Title Nos. T-65004, T-65005; T-65006, T-65007, and T-65008. [10]

A year later or on November 23, 1973, Eustaquia Lizares died single without any
descendant.[11] In due time, Rodolfo Lizares and Amelo Lizares were appointed joint
administrators of Eustaquia's intestate estate.

On the strength of the testamentary provisions contained in paragraphs 10 and 11 of

the will of Maria Lizares, which were allegedly in the nature of a simple substitution,
Celsa Vda. de Kilayko, Encarnacion Vda. de Panlilio, and Remedios Vda. de Guinto
(hereinafter collectively referred to as Celsa L. Vda. de Kilayko, et al.) filed a motion in
Special Proceedings No. 8452 to reopen once again the testate estate proceedings of
Maria Lizares. They prayed among others that a substitute administrator be appointed;
that the order dated January 8, 1971 be reconsidered and amended by declaring them
as heirs to 1/3 of 1/14 of Hda. Minuluan and to 1/6 of Hda. Matab-ang, both of which
form an aggregate area of 33 hectares; that the Register of Deeds of Negros
Occidental, after such amendment, be ordered to register at the back of their respective
certificates of title, the order of probate and a "declaration” that movants are the heirs of
said properties, and correspondingly issue new certificates of title in their names.[12]

Two (2) sets of intestate heirs of the deceased Eustaquia Lizares namely: Socorro L.
Vda. de Escario, Rodolfo Lizares, Mario Lizares, Lucrecia Gustilo, and Aurora Lizares
Wagner opposed the aforesaid motion. They alleged that the court had no more
jurisdiction to reopen the testate estate proceedings of Maria Lizares as the order of
closure had long become final and that the testamentary provisions sought to be
enforced are null and void.[13]

On April 6, 1974, the Court issued an order denying the motion to reopen the testate
proceedings and holding that inasmuch as the settlement of an estate is a
proceeding in rem, the judgment therein is binding against the whole world. It observed
that inspite of the fact that the movants knew that the court had jurisdiction over them,
they did not take part in the proceedings nor did they appeal the order of January 8,
1971. Thus, the court concluded, even if the said order was erroneous, and since the
error was not jurisdictional, the same could have been corrected only by a regular
appeal. The period for filing a motion for reconsideration having expired, the court
opined that the movants could have sought relief from judgment under Rule 38 of the
Rules of Court, but unfortunately for the movants, the period for filing such remedy had
also elapsed.[14]

Celsa L. Vda. de Kilayko, et al. then filed a motion for reconsideration of said order. It
was denied on June 17, 1974.[15] Hence, on October 14, 1974, the said movants filed a
complaint for recovery of ownership and possession of real property against the joint
administrators of the estate of Eustaquia Lizares, Rodolfo and Amelo Lizares. It was
docketed as Civil Case No. 11639 with the then Court of First Instance of Negros
Occidental, Branch IV.[16] On the same date, they availed of their rights under Rule
14, Section 24 of Rules of Court by filing a notice of lis pendens with the Register of
Deeds of Negros Occidental.[17]

As duly appointed judicial joint administrators of the estate of the late Eustaquia Lizares,
Rodolfo Lizares and Amelo Lizares (the joint administrators for brevity), filed a motion to
dismiss alleging that the court had no jurisdiction over the subject matter or nature of
the case; the cause of action was barred by prior judgment, and the complaint stated no
cause of action.[18] This motion was opposed by the plaintiffs.

On January 23, 1975, the joint administrators filed a motion for the cancellation of the
notice of lis pendens on the contentions that there existed exceptional circumstances
which justified the cancellation of the notice of lis pendens and that no prejudice would
be caused to the plaintiffs.[19] The latter opposed said motion. The defendants having
filed a reply thereto, the plaintiffs filed a rejoinder reiterating their arguments in their
opposition to the motion for cancellation of notice of lis pendens.[20]

On September 20, 1976, respondent judge issued an order granting the motion for
cancellation of notice of lis pendens.[21] The court simultaneously held in abeyance the
resolution of the motion to dismiss the complaint.

The joint administrators filed their answer to the complaint in Civil Case No. 11639.
[22]
 Thereafter, they filed a motion for preliminary hearing on affirmative defenses.
[23]
 Celsa L. Vda. de Kilayko, et al. vigorously opposed said motion. [24]
On November 3, 1976, Celsa L. Vda. de Kilayko, et al. filed a motion praying for the
reconsideration of the order dated September 20, 1976. [25] The joint administrators
having filed an opposition thereto,[26] on January 7, 1977 the lower court denied the
aforesaid motion for reconsideration.[27] It held that while a notice of lis pendens would
serve as notice to strangers that a particular property was under litigation, its annotation
upon the certificates of title to the properties involved was not necessary because such
properties, being in custodia legis, could not just be alienated without the approval of
the court. Moreover, the court added, a notice of lis pendens would prejudice any effort
of the estate to secure crop loans which were necessary for the viable cultivation and
production of sugar to which the properties were planted.

Upon receipt of a copy of said order, Celsa L. Vda. de Kilayko, et al. filed in this Court a
motion for extension of time to file a petition for review on certiorari. Docketed as G.R.
No. L-45425, the petition contends that the grounds of lis pendens, namely, that the
properties are in custodia legis and the lending institutions would not grant crop loans to
the estate, are not the legal grounds provided for under Sec. 24, Rule 14 of the Rules of
Court for the cancellation of a notice of lis pendens.

Meanwhile, on January 31, 1977, the lower court issued an order stating that since on
September 21, 1976 it had held in abeyance the resolution of the motion to dismiss, it
was also proper to suspend the resolution of the affirmative defenses interposed by the
defendants until after trial on the merits of the case. Accordingly, the court set the date
of pre-trial for March 24, 1977.[28]

On April 13, 1977, the joint administrators filed before this Court a petition for certiorari,
prohibition and/or mandamus with prayer for a writ of preliminary injunction. It was
docketed as G.R. No. L-45965. Petitioners contend that the lower court had no
jurisdiction over Civil Case No. 11639 as it involves the interpretation of the will of Maria
Lizares, its implementation and/or the adjudication of her properties. They assert that
the matter had been settled in Special Proceedings No. 8452 which had become final
and unappealable long before the complaint in Civil Case No. 11639 was filed, and
therefore, the cause of action in the latter case was barred by the principle
of res judicata. They aver that the claim of Celsa, Encarnacion and Remedios, sisters of
Maria Lizares, over the properties left by their niece Eustaquia and which the latter had
inherited by will from Maria Lizares, was groundless because paragraphs 10 and 11 of
Maria's will on which Celsa L. Vda. de Kilayko, et al. base their claim, conceived of a
fideicommissary substitution of heirs. Petitioners contend that said provisions of the will
are not valid because under Article 863 of the Civil Code, they constitute an invalid
fideicommissary substitution of heirs.

On April 26, 1977, this Court issued a temporary restraining order enjoining the lower
court from further proceeding with the trial of Civil Case No. 11639. [29] After both G.R.
Nos. L-45425 and L-45965 had been given due course and submitted for decision, on
January 20, 1986, the two cases were consolidated.

The petition in G.R. No. L-45965 is impressed with merit.

In testate succession, there can be no valid partition among the heirs until after the will
has been probated.[30] The law enjoins the probate of a will and the public requires it,
because unless a 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. [31] The
authentication of a will decides no other question than such as touch upon the capacity
of the testator and the compliance with those requirements or solemnities which the law
prescribes for the validity of a will.[32]

Pertinent to the issue interposed by the petitioners in G.R. No. L-45965 is Section 1,
Rule 90 of the Rules of Court which reads:

Section 1. When order for distribution of residue made. - When the debts, funeral

charges, and expenses of administration, the allowance to the widow, and inheritance
tax, if any, chargeable to the estate in accordance with law, have been paid, the court,
on application of the executor or administrator, or of a person interested in the estate,
and after hearing upon notice, shall assign the residue of the estate to the persons
entitled to the same, naming them and the proportions, or parts, to which each is
entitled, and such persons may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his possession. If
there is a controversy before the court as to who are the lawful heirs of the deceased
person or as to the distributive shares to which each person is entitled under the law,
the controversy shall be heard and decided as in ordinary cases.
No distribution shall be allowed until the payment of the obligations above-mentioned
has been made or provided for, unless the distributees, or any of them give a bond, in a
sum to be fixed by the court, conditioned for the payment of said obligations within such
time as the court directs."

Applying this rule, in the cases of De Jesus v. Daza,[33] and Torres v. Encarnacion,[34] the

Court said:

"x x x (T)he probate court, having the custody and control of the entire estate, is the
most logical authority to effectuate this provision, within the estate proceeding, said
proceeding being the most convenient one in which this power and function of the court
can be exercised and performed without the necessity of requiring the parties to
undergo the inconvenience and litigate an entirely different action."

Some decisions of the Court pertinent to the issue that the probate court has the
jurisdiction to settle the claims of an heir and the consequent adjudication of the
properties, are worth mentioning. In the cases of Arroyo v. Gerona,
[35]
 and Benedicto v. Javellana,[36] this Court said:

"x x x any challenge to the validity of a will, any objection to the authentication thereof,
and every demand or claim which any heir, legatee or party interested in a testate or
intestate succession may make, must be acted upon and decided within the same speci
al proceedings, not in a separate action, and the same judge having jurisdiction in the
administration of the estate shall take cognizance of the question raised, inasmuch as
when the day comes he will be called upon to make distribution and adjudication of the
property to the interested parties x x x." (Underscoring supplied)

The probate court, in the exercise of its jurisdiction to distribute the estate, has the
power to determine the proportion or parts to which each distributee is entitled x x x. [37] A
project of partition is merely a proposal for the distribution of the hereditary estate which
the court may accept or reject. It is the court that makes that distribution of the estate
and determines the persons entitled thereto. [38]

In the instant case, the records will show that in the settlement of the testate estate of
Maria Lizares, the executrix, Eustaquia Lizares submitted on January 8, 1971, a project
of partition in which the parcels of land, subject matters of the complaint for
reconveyance, were included as property of the estate and assigned exclusively to
Eustaquia as a devisee of Maria Lizares. In accordance with said project of partition
which was approved by the probate court, Encarnacion Lizares Vda. de Panlilio,
Remedios Lizares Vda. de Guinto, Felicidad Paredes Llopez, Rosario Paredes
Mendoza and Eustaquia Lizares executed an Agreement of Partition and Subdivision on
November 28, 1972, whereby they agreed to terminate their co-ownership over Lots
Nos. 550, 514, 553, 1287-C of SWO-7446 and 552 covered by Transfer Certificates of
Title Nos. T-65004, T-65005, T-65006, T-65007 and T-65008. These facts taken
altogether show that the Lizares sisters recognized the decree of partition sanctioned by
the probate court and in fact reaped the fruits thereof.

Hence, they are now precluded from attacking the validity of the partition or any part of it
in the guise of a complaint for reconveyance. A party cannot, in law and in good
conscience be allowed to reap the fruits of a partition, agreement or judgment and
repudiate what does not suit him.[39] Thus, where a piece of land has been included in a
partition and there is no allegation that the inclusion was effected through improper
means or without petitioner's knowledge, the partition barred any further litigation on
said title and operated to bring the property under the control and jurisdiction of the
court for its proper disposition according to the tenor of the partition. [40] The question of
private respondents' title over the lots in question has been concluded by the partition
and became a closed matter.

The admission made by Celsa L. Vda. de Kilayko, et al. in their complaint, Civil Case
No. 11639, that Eustaquia had been in possession of the questioned lots since March 2,
1971 up to the time of her death indicates that the distribution pursuant to the decree of
partition has already been carried out. Moreover, it cannot be denied that when Celsa L.
Vda. de Kilayko, et al. moved for the reopening of the testate estate proceedings of
Maria Lizares, the judicial decree of partition and order of closure of such proceedings
was already final and executory, the then reglementary period of thirty (30) days having
elapsed from the time of its issuance, with no timely appeal having been filed by them.
Therefore, they cannot now be permitted to question the adjudication of the properties
left by will of Maria Lizares, by filing an independent action for the reconveyance of the
very same properties subject of such partition.
A final decree of distribution of the estate of a deceased person vests the title to the
land of the estate in the distributees. If the decree is erroneous, it should be corrected
by opportune appeal, for once it becomes final, its binding effect is like any other
judgment in rem, unless properly set aside for lack of jurisdiction or fraud. Where the
court has validly issued a decree of distribution and the same has become final, the
validity or invalidity of the project of partition becomes irrelevant. [41]

It is a fundamental concept in the origin of every jural system, a principle of public

policy, that at the risk of occasional errors, judgments of courts should become final at
some definite time fixed by law, interest rei publicae ut finis sit litum. "The very object of
which the courts were constituted was to put an end to controversies." [42] The only
instance where a party interested in a probate proceeding may have a final liquidation
set aside is when he is left out by reason of circumstances beyond his control or
through mistake or inadvertence not imputable to negligence. Even then, the better
practice to secure relief is the opening of the same by proper motion within the
reglementary period, instead of an independent action, the effect of which if successful,
would be for another court or judge to throw out a decision or order already final and
executed and reshuffle properties long ago distributed and disposed of.[43]

The fundamental principle upon which the doctrine of res judicata rests is that parties
ought not to be permitted to litigate the same issue more than once, that, when a right
or fact has been judicially tried and determined by a court of competent jurisdiction, or
an opportunity for such trial has been given, the judgment of the court, so long as it
remains unreversed, should be conclusive upon the parties and those in privity with
them in law or estate.[44]

All the requisites for the existence of res judicata are present. Thus, the order approving
the distribution of the estate of Maria Lizares to the heirs instituted in said will has
become final and unappealable; the probate court that rendered judgment had
jurisdiction over the subject matter and over the parties; the judgment or orders had
been rendered on the merits; the special proceedings for the settlement of the estate of
Maria Lizares was a proceeding in rem that was directed against the whole world
including Celsa L. Vda. de Kilayko, et al., so that it can be said that there is a similarity
of parties in Special Proceedings No. 8452 and Civil Case No. 11639, the judicial
administrators of Eustaquia being privy to Celsa L. Vda. de Kilayko, et al.; there is
identity of subject matter involved in both actions, namely, the properties left by Maria
Lizares; there is identity of causes of action because in the first action there was a
declaration of the probate court in its order dated April 6, 1974, that although the
testatrix intended a fideicommissary substitution in paragraphs 10 and 11 of her will, the
substitution can have no effect because the requisites for it to be valid, had not been
satisfied.[45]

Granting that res judicata has not barred the institution of Civil Case No. 11639, the
contention of Celsa L. Vda. de Kilayko, et al. that they are conditional substitute heirs of
Eustaquia in the testate estate of Maria Lizares[46] is not meritorious. While the allegation
of the joint administrators that paragraphs 10 and 11 of Maria Lizares' last will and
testament conceives of a fideicommissary substitution under Article 863 of the Civil
Code is also baseless as said paragraphs do not impose upon Eustaquia a clear
obligation to preserve the estate in favor of Celsa L. Vda. de Kilayko, et al., neither may
said paragraphs be considered as providing for a vulgar or simple substitution.

It should be remembered that when a testator merely names an heir and provides that if
such heir should die a second heir also designated shall succeed, there is no
fideicommissary substitution. The substitution should then be construed as a vulgar or
simple substitution under Art. 859 of the Civil Code but it shall be effective only if the
first heir dies before the testator.[47] In this case, the instituted heir, Eustaquia, survived
the testatrix, Maria Lizares. Hence, there can be no substitution of heirs for, upon Maria
Lizares' death, the properties involved unconditionally devolved upon Eustaquia. Under
the circumstances, the sisters of Maria Lizares could only inherit the estate of Eustaquia
by operation of the law of intestacy.

With respect to the cancellation of the notice of lis pendens on the properties involved,
there is no merit in the contention of Celsa L. Vda. de Kilayko, et al., that the lower court
acted contrary to law and/or gravely abused its discretion in cancelling the notice
of lis pendens. The cancellation of such a precautionary notice, being a mere incident in
an action, may be ordered by the court having jurisdiction over it at any given time.
[48]
 Under Sec. 24, Rule 14 of the Rules of Court, a notice of lis pendens may be
cancelled "after proper showing that the notice is for the purpose of molesting the
adverse party, or that it is not necessary to protect the rights of the party who caused it
to be recorded"[49] In this case, the lower court ordered the cancellation of said notice on
the principal reason that the administrators of the properties involved are subject to the
supervision of the court and the said properties are under custodia legis. Therefore,
such notice was not necessary to protect the rights of Celsa L. Vda. de Kilayko, et al.
More so in this case where it turned out that their claim to the properties left by
Eustaquia is without any legal basis.

WHEREFORE, the petition for review on certiorari in L-45425 is hereby DENIED but the
petition for certiorari and prohibition and/or mandamus in L-45965 is GRANTED. The
temporary restraining order of April 26, 1977 which was issued by the Court in L-45965
is made PERMANENT. Costs against the petitioners in L-45425.

[ G.R. No. L-16642, April 18, 1962 ]

ANTONIO RAGUDO, AND EUGENIA PAREDES, PLAINTIFFS-APPELLANTS, VS.

EMELITA R. PASNO, REPRESENTED BY HER FATHER, ENRIQUE R. PASNO AS
HER GUARDIAN AD-LITEM, DEFENDANT-APPELLEE.

DECISION

BENGZON, C.J.:
Appeal from an order dismissing plaintiffs complaint. In the Quezon court of first
instance, the spouses Antonio Ragudo and Eugenia Paderes filed this complaint on
October 12, 1959, to annul the order of the justice of the peace of Tayabas, same
province, declaring Emelita R. Pasno their adopted child, which order, dated July 31,
1959, was already final. The spouses alleged substantially that they had been induced
by Emelita's parents to believe that the adoption proceeding in the justice of the peace
court, "was merely for the purpose of transferring to 8-year old Emelita some guerilla
educational benefits available to Antonio Ragudo." Plaintiffs further alleged that the
adoption had been secured "thru fraud and misrepresentation used by defendant
Enrique Pasno (father of Emelita) upon the plaintiffs, as the latter never intended to
adopt" Emelita "as their child."

Instead of answering, the defendants moved for dismissal of the complaint, arguing that
as the justice of the peace court has concurrent jurisdiction with the courts of first
instance to take cognizance of adoption cases, the latter has no jurisdiction to interfere
or annul the order issued in said adoption proceeding.

Upholding defendants' contention, the judge dismissed the case. Hence this appeal.

There is no question that a justice of the peace court has jurisdiction over adoption
cases. (Republic Acts 643 and 644). Courts of first instance also have jurisdiction over
the same.

But this is not an adoption case. This is a civil action to annul an order of a justice of the
peace court, allegedly obtained thru fraud. It is based on sec. 43 of Act 190 [1]. Of such
action, justice of the peace courts can not take cognizance. And it falls within the
general jurisdiction of courts of first instance.

It is argued for the appellees that under Art. 348 of the New Civil Code, fraud is not one
of the grounds for revocation of an adoption. The appellants reply, quite correctly, that
those grounds refer only to an adoption validly decreed—not to an adoption void from
the beginning because tainted with fraud. Anyway, this is an argument that should be
submitted when the case is considered on the merits.

The appealed order is reversed and the case is hereby remanded for further
proceedings.

Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Paredes, and Dizon, JJ.,

concur.

[ G. R. No. L-5436, June 30, 1953 ]

ROMAN OZAETA, ROSA GONZALES VDA. DE PALANCA, JUSTO G. PALANCA,

LEONARDA PALANCA DE ARANAS, SEVERINA G. PALANCA, CARLOS
PALANCA, JR., ANTONIO G. PALANCA, MACARIO G. PALANCA, MILAGROS
PALANCA DE FURER, AND RAMON G. PALANCA, PETITIONERS, VS.
HONORABLE POTENCIANO PECSON, JUDGE OF FIRST INSTANCE OF MANILA,
AND BANK OF THE PHILIPPINE ISLANDS, RESPONDENTS.

DECISION

LABRADOR, J.:

The question posed by the petition filed in this case is: Does a probate court commit an
abuse of discretion if, pending an appeal against its order or judgment admitting a will to
probate and appointing as judicial administrator the person named therein as executor,
it appoints as special administrator any person other than the executor named in the
will?

The facts giving rise to the question may be briefly summarized as follows: Carlos
Palanca died on September 2, 1950; leaving a will executed by him on May 19, 1945. 
In the will petitioner Roman Ozaeta, former associate justice of this Court, was named
executor if General Manuel A. Roxas fails to qualify.  Upon Palanca's death, and
General Roxas having died previously, petitioner presented a petition for the probate of
the will, at the same time praying that he be appointed special administrator.  Some of
the heirs of the decedent opposed this petition, and the court on October 6, 1950,
appointed the Philippine Trust Company, a nonapplicant and a stranger to the
proceedings, special administrator.  On April 20, 1951, the Philippine Trust Company
presented a petition to resign as special administrator on the ground of incompatibility of
interest, as it had granted a loan to heir Angel Palanca, who had pledged to it shares of
the Far Eastern University allegedly belonging to the estate of the deceased.  There
upon petitioner reiterated his previous petition, but the court appointed Sebastian
Palanca, one of the heirs, to take the place of the Philippine Trust Company.  The order
is dated June 30, 1951.  But on October 23rd, the court rendered an order admitting the
will to probate and appointing petitioner as administrator.  The order reads thus:
In view of all the foregoing, the court declares that the document which was executed by
the testator on May 19, 1945 (Exhibit D), is the last will of Carlos Palanca Tanguinlay,
and its probate is hereby allowed.  The court appoints the petitioner, Roman Ozaeta, as
executor, with a bond of P50,000 with sufficient sureties and subject to the approval by
this court.  Once this decision has become final and upon the approval of the said bond
and the taking of the oath of office, let letters testamentary issue accordingly.  With
costs against the oppositors.
And on October 25, 1951, the court allowed the Philippine Trust Company to resign,
reconsidered its order appointing Sebastian Palanca special administrator, and
appointed instead the Bank of the Philippine Islands.  Petitioner moved to reconsider
the order, but his motion was denied, and thereupon the present petition was filed.  In
its order the court held that it has discretion to choose the special administrator and is
not bound to appoint the person named therein as executor, because the order had
been appealed.

Petitioner claims that the reason why the respondent judge does not appoint him special
administrator is his personal dislike for him, and that the reasons given by the judge in
not appointing him, namely, alleged partiality to one group of heirs, less ability and
experience in handling estates as the appointees—the previous and the subsequent
one—are not actually the reasons that impelled him to deny petitioner's appointment. 
On the other hand, intervenors Maria Cuartero, et al., (a group of heirs), claim that
petitioner had close personal relations with Rosa Gonzales (second wife of deceased)
and her children, acting as sponsor in her marriage with the deceased, obtaining a loan
from her family, etc.  We have overlooked all the personal grounds or reasons given by
the parties, and have chosen to decide the issue from a purely legal point of view.

It should be noted at the outset that Rule 81 of the Rules of Court, under the provisions
of which the order appealed from was made, grants discretion to the probate court to
appoint or not to appoint a special administrator.  It is silent as to the person that may
be appointed as special administrator, unlike section 6 of Rule 79, which expressly
gives the order of preference of the persons that may be appointed regular
administrator.  We have held in the case of Roxas vs. Pecson, however, that the
appointment of special administrators is not governed by the rules regarding the
appointment of regular administrators.  (Roxas vs. Pecson, 82 Phil., 407, 46 Off. Gaz.
[5] 2058.)  But we further held, however, that while the choice of the person lies within
the court's discretion, such discretion should not be a whimsical one, but one that is
reasonable and logical and in accord with fundamental legal principles and justice.  The
fact that a judge is granted discretion does not authorize him to become partial, or to
make his personal likes and dislikes prevail over, or his passions to rule, his judgment. 
Such discretion must be based on reason and legal principle, and it must be exercised
within the limits thereof.  And there is no reason why the same fundamental and legal
principles governing the choice of a regular administrator should not be taken into
account in the appointment of the special administrator.

The choice of his executor is a precious prerogative of a testator, a necessary

concomitant of his right to dispose of his property in the manner he wishes.  It is natural
that the testator should desire to appoint one of his confidence, one who can be trusted
to carry out his wishes in the disposal of his estate.  The curtailment of this right may be
considered as a curtailment of the right to dispose.  And as the rights granted by will
take effect from the time of his death (Article 777, Civil Code of the Philippines), the
management of his estate by the administrator of his choice should be made as soon as
practicable, when no reasonable objection to his assumption of the trust can be
interposed any longer.  It has been held that when a will has been admitted to probate,
it is the duty of the court to issue letters testamentary to the person named as executor
upon his application (23 C. J. 1023).  It is the testator that appoints his executor, as the
question as to his peculiar fitness for such a position or his want of ability to manage the
estate can not be addressed to the discretion of the county judge.  (Holbrook vs. Head,
6 S. W. 592, 593, 9 Ky. 755.)

In the case at bar, the will has already been admitted to probate, and respondent judge
himself has expressly appointed petitioner as administrator.  The only reason or ground,
therefore, for suspending his appointment, and for the appointment of a special
administrator, who is not the petitioner himself, is a very technical one.  It also appears
that the Philippine Trust Company, which had acted as special administrator for a period
of only a few months, has submitted a bill for P90,000.  This would cut deep into the
income of the estate, and if the new special administrator appointed by the respondent
judge takes office, it is not improbable that the estate may again be subjected to the
same expensive cost of administration.  Under these circumstances, it would seem
unreasonable to refuse to appoint the petitioner as special administrator.  To do so
would be delaying the fulfillment of the wishes of the testator and subjecting the estate
to unnecessary expense.  Petitioner has cited precedents in the surrogate courts of the
State of New York to support his claim that as the will appointing him regular
administrator has been admitted to probate by the trial judge, he should now be
appointed special administrator during the pendency of the appeal against the order
admitting the will to probate.  In the case of In re Shonts' Estate, 178 N. Y. S. 762, 767-
768, the judge makes the following very pertinent remarks:
"*  *  *  It is my firm, belief that the appointment of the executors named in a will as
temporary administrators during contested probates is not only more economical for
suitors and estates in ninety-nine cases out of a hundred, but more consonant with the
dignity of a court of this character.  The intrusion of nominees of the court, strangers to
the dead, very distasteful to the inhabitants of this state, should be as rare as possible
in this court if people of property are to continue to feel at ease and in security in this
state."
The case of In re Erlanger's Estate, 242 N. Y. S. 249, also reiterates the same principle.
"The courts have always respected the right which a testator enjoys to determine who is
most suitable to settle his testamentary affairs, and his solemn selection should not
lightly be disregarded.  After the admission of a will to probate, the courts will not name
a better executor for the testator nor disqualify, by a judicial veto, the widow or friend or
other person selected in the will, except upon strict proof of the statutory grounds of
incompetency.  Matter of Leland's Will, 219 N. Y. 387, 393, 114 N. E. 854.  For the
foregoing reasons the person selected by the testator in three successive wills will be
appointed.  (Pages 254-255)

"The claimant's principal objection to the selection of Mr. Baron as temporary

administrator is founded upon her charge that he exercised undue influence upon the
testator in the drafting of the will offered for probate here.  She also stresses his
personal hostility to her.  In my opinion, and in view of the special circumstances of this
case, these considerations do not constitute a disqualification.  Matter of Hilton's Will, 29
Misc. Rep. 532, 61 N. Y. S. 1073; Jessup-Redfield Surrogate's Courts, 6th Edit, page
743; Matter of Robert, N. Y. Law Journal, January 9th, 1912; Matter of Ashmore's
Estate, 48 Misc. Rep. 312, 96 N. Y. S. 772.  He receives no legacy under the will.  He is
an attorney of long experience and his professional standing is attested by several
affiants.  In addition to the fact that he was selected by Mr. Erlanger as executor in three
of the wills, it appears from several affidavits that he was for a long period of time
intimately associated with Mr. Erlanger.  This association not only involved a personal
friendship, but also the relationship of Mr. Baron as lawyer and Mr. Erlanger as client.  It
involved also knowledge of Mr. Erlanger's financial transactions, and, in addition, a
close business contact with Mr. Erlanger's various enterprises.  Mr, Baron was an officer
or director of over thirty corporations through which Mr. Erlanger's various activities
were conducted.  He held powers of attorney from him in the last years of Mr, Erlanger's
life.  He is qualified, therefore, by this experience to safeguard the estate as temporary
administrator."  (Pages 252- 253)
The writ prayed for is, therefore, granted, the appealed order reversed, and the
temporary injunction issued by the court made absolute.  Let temporary letters of
administration be issued in favor of petitioner during the pendency of the appeal from
the order admitting the will to probate.

Paras, C. J., Pablo, Bengzon, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo,

JJ., concur.

TESTATE ESTATE OF THE LATE GREGORIO VENTURA: MARIA

VENTURA, EXECUTRIX-APPELLANT, MIGUEL VENTURA AND JUANA
CARDONA, HEIRS-APPELLANTS, VS. GREGORIA VENTURA AND HER
HUSBAND, EXEQUIEL VICTORIO, MERCEDES VENTURA AND HER
HUSBAND, PEDRO D. CORPUZ, OPPOSITORS-APPELLEES.

DECISION

PARAS, J.:

This is an appeal from the order of the Court of First Instance of Nueva Ecija,
Guimba, Branch V in Special Proceedings No. 812, Testate of the late Gregorio
Ventura, dated October 5, 1965, removing the appellant Maria Ventura as
executrix and administratrix of the estate of the late Gregorio Ventura, and in her
place appointing the appellees Mercedes Ventura and Gregoria Ventura as joint
adiministratrices of the estate. (Record on Appeal, pp. 120-131.)

Appellant Maria Ventura is the illegitimate daughter of the deceased Gregorio

Ventura while Miguel Ventura and Juana Cardona are his son and surviving
spouse who are also the brother and mother of Maria Ventura. On the other
hand, appellees Mercedes and Gregoria Ventura are the deceased's legitimate
children with his former wife, the late Paulina Simpliciano (Record on Appeal, p.
122) but the paternity of appellees was denied by the deceased in his will
(Record on Appeal, p. 4).

On December 14, 1953, Gregorio Ventura filed a petition for the probate of his
will which did not include the appellees and the petition was docketed as Special
Proceedings No. 812 (Record on Appeal, pp. 1-3). In the said will, the appellant
Maria Ventura, although an illegitimate child, was named and appointed by the
testator to be the executrix of his will and the administratrix of his estate (Record
on Appeal, p. 7).

In due course, said will was admitted to probate on January 14, 1954 (Record on
Appeal, pp. 8-10). Gregorio Ventura died on September 26, 1955. On October
10, 1955, the appellant Maria Ventura filed a motion for her appointment as
executrix and for the issuance of letters testamentary in her favor (Record on
Appeal, pp. 10-11). On October 17, 1955, Maria Ventura was appointed executrix
and the corresponding letters testamentary was issued in her favor (Record on
Appeal, pp. 11-12).

On or about July 26, 1956, Maria Ventura submitted an inventory of the estate of
Gregorio Ventura (Record on Appeal, pp. 12-20).

On June 17, 1960, she filed her accounts of administration for the years 1955 to
1960, inclusive. (Record on Appeal, pp. 20-27). Said account of administration
was opposed by the spouses Mercedes Ventura and Pedro Corpuz on July 25,
1960 (Record on Appeal, pp. 27-33) and by Exequiel Victorio and Gregoria
Ventura on August 5, 1963 (Record on Appeal, pp. 46-50). Both oppositions
assailed the veracity of the report as not reflecting the true income of the estate
and the expenses which allegedly are not administration expenses. But on
January 25, 1961, Maria Ventura filed a motion to hold in abeyance the approval
of the accounts of administration or to have their approval without the opposition
of the spouses Mercedes Ventura and Pedro Corpuz and Gregoria Ventura and
Exequiel Victorio on the ground that the question of the paternity of Mercedes
Ventura and Gregoria Ventura is still pending final determination before the
Supreme Court and that should they be adjudged the adulterous children of
testator, as claimed, they are not entitled to inherit nor to oppose the approval of
the accounts of administration (Record on Appeal, pp. 33-36). Spouses
Mercedes Ventura and Pedro Corpuz filed on February 2, 1961 their opposition
to the motion to hold in abeyance the approval of the accounts of administration
on the ground that Mercedes and Gregoria Ventura had already been declared
by the Court of First Instance in Civil Cases No. 1064 and 1476, which cases are
supposed to be pending before the Supreme Court, as the legitimate children of
Gregoria Ventura, hence, they have reason to protect their interest (Record on
Appeal, pp. 36-39). On February 9, 1961, the motion to hold in abeyance the
approval of the accounts was denied (Record on Appeal, pp. 39-40).

It appears that on July 12, 1963, the Court set the case for pre-trial on August 7,
1963 in connection with the accounts of the executrix Maria Ventura dated June
17, 1960 and the Motion to Annul Provision of Will dated July 14, 1962 of
Mercedes Ventura (Record on Appeal, p. 45).
On October 22, 1963, four motions were filed by Mercedes Ventura and Gregoria
Ventura, namely: (1) motion to remove the executrix Maria Ventura which was
supplemented on April 27, 1965; (2) motion to require her to deposit the harvest
of palay of the property under administration in a bonded warehouse; (3) motion
to render an accounting of the proceeds and expenses of administration; and (4)
motion to require her to include in the inventory of the estate certain excluded
properties (Record on Appeal, pp. 50-53; 71). An opposition to said motions was
filed by the heirs Juana Cardona and Miguel Ventura and by the executrix Maria
Ventura herself (Record on Appeal, pp. 56-61; 61-70 and 71).

On motion of counsel for Exequiel Victorio and Gregoria Ventura the joint
motions to require an Up-to-date Accounting and to Require Executrix Ventura to
Include Excluded Properties in Her Inventory were ordered withdrawn (Order
dated February 2, 1965, Record on Appeal, p. 73). The other two motions were
however set for hearing.

The grounds of aforesaid joint motions to remove the executrix Maria Ventura
are: (1) that she is grossly incompetent; (2) that she has maliciously and
purposely concealed certain properties of the estate in the inventory; (3) that she
is merely an illegitimate daughter who can have no harmonious relations with the
appellees; (4) that the executrix has neglected to render her accounts and failed
to comply with the Order of the Court of December 12, 1963, requiring her to file
her accounts of administration for the years 1961 to 1963 (Record on Appeal, pp.
70 and 75-76) and the Order of June 11, 1964, reiterating aforesaid order of
December 12, 1963 (Record on Appeal, p. 76); and (5) that she is with
permanent physical defeat hindering her from efficiently performing her duties as
an executrix (Record on Appeal, pp. 50-53 and 74-79).

On May 17, 1965, the executrix Maria Ventura finally submitted her accounts of
administration covering the period 1961 to 1965 (Record on Apeal, pp. 79-84)
which were again opposed by the spouses Exequiel Victorio and Gregoria
Ventura on September 21, 1965 and by the spouses Mercedes Ventura and
Pedro Corpuz on September 29, 1965 (Record on Appeal, pp. 106-120). On
June 2, 1965, the executrix filed her supplemental opposition to the aforesaid
four motions, and prayed that the joint supplemental motion to remove the
executrix be denied or held in abeyance until after the status of Mercedes and
Gregoria Ventura as heirs of the testator is finally decided (Record on Appeal,
pp. 85-101). On June 3, 1965, the Court, finding that the estate taxes have not
been paid, ordered the administratrix to pay the same within thirty (30) days. On
September 13, 1965, the lower court denied the suspension of the proceedings
and deferred the resolution of the joint motion to remove executrix Maria Ventura
until after the examination of the physical fitness of said executrix to undertake
her duties as such. Also, it ordered the deposit of all palay to be harvested in the
next agricultural year and subsequent years to be deposited in a bonded
warehouse to be selected by the Court and the palay so deposited shall not be
withdrawn without the express permission of the Court (Record on Appeal, pp.
103-105). On September 21, 1965, spouses Exequiel Victorio and Gregoria
Ventura filed their opposition to the accounts of administration of Maria Ventura
dated May 17, 1965, while that of spouses Mercedes Ventura and Pedro Corpuz
was filed on September 29, 1965, both oppositions alleging among others that
said accounts do not reflect the true and actual income of the estate and that the
expenses reported thereunder are fake, exhorbitant and speculative (Record on
Appeal, pp. 106-120).

On October 5, 1965, the court a quo, finding that the executrix Maria Ventura has
squandered the funds of the estate, was inefficient and incompetent, has failed to
comply with the orders of the Court in the matter of presenting up-to-date
statements of accounts and neglected to pay the real estate taxes of the estate,
rendered the questioned decision, the dispositive portion of which reads:
“WHEREFORE, Maria Ventura is hereby removed as executrix and administratrix
of the estate and in her place Mercedes Ventura and Gregoria Ventura are
hereby appointed joint administratrices of the estate upon filing by each of them
of a bond of P7,000.00. Let letters of administration be issued to Mercedes
Ventura and Gregoria Ventura upon their qualification.

"IT IS SO ORDERED.”
(Record on Appeal, pp. 120-131).

Hence, this appeal.

In their brief, appellants Maria Ventura and spouses Juana Cardona and Miguel
Ventura assign the following errors allegedly committed by the probate court:

"ASSIGNMENT OF ERRORS

I
“The lower court erred in ordering the removal of Maria Ventura as executrix and
adiministratrix of the will and estate of the deceased Gregorio Ventura without
giving her full opportunity to be heard and to present all her evidence.

II

The lower court erred in finding that the executrix Maria Ventura had squandered
and dissipated the funds of the estate under her administration.
 III

The lower court erred in finding that the executrix Maria Ventura was inefficient
and incompetent.

IV

That, considering the circumstances surrounding the case, the lower court erred
in finding that the failure of Maria Ventura to submit her periodical accounting had
justified her removal as executrix.

The lower court erred in considering as an established fact that the appellees
Mercedes Ventura and Gregoria Ventura are the legitimate daughters of the
deceased Gregorio Ventura.

VI

The lower court erred in finding that the devises and bequests in favor of Maria
Ventura and Miguel Ventura as specified in paragraph 8 of the last Will and
Testament of the late Gregorio Ventura have ipso facto been annulled.

VII

The lower court erred in allowing the appellees Mercedes Ventura and Gregoria
Ventura to intervene in the hearing of the accounts of administration submitted by
the executrix Maria Ventura and/or in not suspending the hearing of the said
accounts until the said appellees have finally established their status as
legitimate children of the deceased Gregorio Ventura.

VIII

The lower court erred in appointing (even without a proper petition for
appointment and much less a hearing on the appointment of) the appellees
Mercedes Ventura and Gregoria Ventura who have an adverse interest as joint
administratrices of the estate of the deceased Gregorio Ventura.

IX

The lower court erred in not appointing the surviving widow, Juana Cardona, or
Miguel Ventura, as administratrix of the estate of Gregoria Ventura in case the
removal of Maria Ventura as executrix and administratrix thereof is legally
justified.
 X

Considering that there are in fact two (2) factions representing opposite interests
in the estate, the lower court erred in not appointing Juana Cardona, or Miguel
Ventura, as one of the two (2) administratrices.”
(Joint Brief for the Appellants, pp. 1-4)

On July 19, 1967, Atty. Arturo Tolentino (representing appellees Mercedes

Ventura and Pedro Corpuz) and Atty. Jose J. Francisco (representing Gregoria
and Exequiel Victoria), having failed to submit their respective briefs within the
period for the purpose, which expired on July 2 and May 29, 1967, respectively,
the Supreme Court Resolved to consider this case submitted for decision
WITHOUT SAID APPELLEES’ BRIEF (Rollo, p. 152).

The crucial issue in this case is whether or not the removal of Maria Ventura as
executrix is legally justified. This issue has, however, become moot and
academic in view of the decision of this court in related cases.

At the outset, it is worthy to note that aside from the instant special proceedings,
there are two other civil cases involving the estate of the deceased Gregorio
Ventura, namely, Civil Cases Nos. 1064 and 1476. Civil Case No. 1064 was filed
on December 2, 1952 by herein appellee Gregoria Ventura in the Court of First
Instance of Nueva Ecija, Branch I, against the other appellees herein Mercedes
Ventura and their father, Gregorio Ventura. Later Mercedes Ventura joined cause
with Gregoria Ventura. (Record on Appeal, p. 95). Gregoria and Mercedes
Ventura claimed that they are the legitimate children of Gregorio Ventura and his
wife Paulina Simpliciano, who died in 1943, and asked that one-half of the
properties described in the complaint be declared as the share of their mother in
the conjugal partnership, with them as the only forced heirs of their mother
Paulina (Joint Brief for the Appellants, pp. 53-68).

Subsequently, Civil Case No. 1476 was filed by Alipio, Eufracia and Juliana, all
surnamed Simpliciano, against Gregorio Ventura and the two sisters, Mercedes
and Gregoria Ventura, before the Court of First Instance of Nueva Ecija, Branch
I. They alleged that as the only children of Modesto Simpliciano, sole brother of
Paulina Simpliciano, they, instead of Mercedes and Gregoria Ventura, whom
they claimed are adulterous children of Paulina with another man, Teodoro
Ventura and as such are not entitled to inherit from her, are the ones who should
inherit the share of Paulina Simpliciano in the conjugal partnership with Gregoria
Ventura (Joint Brief For The Appellants, pp. 69-79).

It appears that on November 4, 1959, after a joint hearing of Civil Cases Nos.
1064 and 1476, the lower court rendered its judgment, the dispositive portion of
which reads as follows:
“WHEREFORE, judgment is hereby rendered declaring Mercedes Venture and
Gregoria Ventura to be the legitimate daughters of Paulina Simpliciano and
Gregorio Ventura; declaring that as such legitimate daughters of Paulina
Simpliciano they are entitled to 1/2 of the properties describe in paragraph six of
the complaint; ordering the defendant Maria Ventura, as administratrix of the
estate of Gregorio Ventura to pay to Mercedes Ventura and Gregoria Ventura the
amount of P19,074.09 which shall be divided equally between Mercedes and
Gregoria Ventura ... declaring that Mercedes Ventura and Pedro Corpuz are the
exclusive owners of the properties described in the certificates of Title Nos. T-
1102, T-1212, T-1213, T-1214, Exhibits 32, 33, 34 and 35, respectively; ordering
Mercedes Ventura and Pedro D. Corpuz to pay to the conjugal partnership of
Gregoria Ventura and Paulina Simpliciano the sum of P100,000.00, one-half of
which shall pertain to the estate of Gregorio Ventura and the other half to the
estate of Paulina Simpliciano to whom Mercedes and Gregoria Ventura have
succeeded, to be divided between Mercedes and Gregoria in equal parts; and
dismissing Civil Case No. 1476. The parties are urged to arrive at an amicable
partition of the properties herein adjudicated within twenty days from receipt of
this decision. Upon their failure to do so, the Court shall appoint commissioners
to divide the properties in accordance with the terms of the decision. Without
pronouncements as to costs.” (Underscoring supplied). (Joint Brief for the
Appellants, pp. 37-38.)
Thereafter, on July 14, 1962, Mercedes Ventura filed a motion to annul the
provisions of the will of the deceased Gregorio Ventura in Special Proceedings
No. 812, which motion was opposed by Miguel Ventura and Juana Cardona and
later by Maria Ventura. They claimed that the decision dated November 4, 1959
in Civil Cases Nos. 1064 and 1476 was not yet final.

On February 26, 1964, the trial court annulled the institution of the heirs in the
probated will of Gregorio Ventura. The motion for reconsideration of the aforesaid
order filed by executrix Maria Ventura was denied on June 11, 1964.

Accordingly, Maria Ventura appealed the February 26, 1964 and June 11, 1964
orders of the probate court in Special Proceedings No. 812 before the Supreme
Court and was docketed as G.R. No. L-23878. On May 27, 1977, this Court,
through then Associate Justice Antonio P. Barredo, ruled, as follows:
"And so, acting on appellees' motion to dismiss appeal, it is Our considered
opinion that the decision in Civil Cases Nos. 1064 and 1476 declaring that
appellees Mercedes and Gregoria Ventura are the legitimate children of the
deceased Gregorio Ventura and his wife, Paulina Simpliciano, and as such are
entitled to the annulment of the institution of heirs made in the probated will of
said deceased became final and executory upon the finality of the order
approving the partition directed in the decision in question. We need not indulge
in any discussion as to whether or not, as of the time the orders here in question
were issued by the trial court said decision had the nature of an interlocutory
order only. To be sure, in the case of Miranda, aforementioned, the opinion of the
majority of the Court may well be invoked against appellant's pose. In any event,
even if the Court were minded to modify again Miranda and go back to
Fuentebella and Zaldariaga, - and it is not, as of now - there can be no question
that the approval by the trial court in Civil Cases Nos. 1064 and 1476 of the
partition report of the commissioners appointed for the purpose, one of whom,
Emmanuel Mariano, is the husband of appellant, put a definite end to those
cases, leaving nothing else to be done in the trial court. That order of approval is
an appealable one, and inasmuch as no appeal has been taken from the same, it
is beyond dispute that the decision in controversy has already become final and
executory in all respects. Hence, the case at bar has become moot and
academic.” (Ventura vs. Ventura, 77 SCRA 159, May 27, 1977)
Under Article 854 of the Civil Code, “the preterition or omission of one, some, or
all of the compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as they are
not inofficious,” and as a result, intestacy follows, thereby rendering the previous
appointment of Maria Ventura as executrix moot and academic. This would now
necessitate the appointment of another administrator, under the following
provision:

Section 6, Rule 78 of the Rules of Court:

"When and to whom letters of administration granted. - If no executor is named in
the will, or the executor or executors are incompetent, refuse the trust, or fail to
give bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be or next of kin, or both,
in the discretion of the court, or to such person as such surviving husband or
wife, or next of kin, requests to have appointed, if competent and willing to
serve;"
xxx xxx xxx

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is
Juana Cardona while the next of kin are: Mercedes and Gregoria Ventura and
Maria and Miguel Ventura. The "next of kin" has been defined as those persons
who are entitled under the statute of distribution to the decedent's property
(Cooper vs. Cooper, 43 Ind. A. 620, 88 NE 341). It is generally said that "the
nearest of kin, whose interest in the estate is more preponderant, is preferred in
the choice of administrator. ‘Among members of a class the strongest ground for
preference is the amount or preponderance of interest. As between next of kin,
the nearest of kin is to be preferred’". (Cabanas, et al. vs. Enage, et al., 40 Off.
Gaz. 12 Suppl. 227; citing 12 Am. Jur. Sec. 77, p. 416, cited in Francisco Vicente
J., The Revised Rules of Court in the Philippines Vol. V-B, 1970 Ed., p. 23).

As decided by the lower court and sustained by the Supreme Court, Mercedes
and Gregoria Ventura are the legitimate children of Gregorio Ventura and his
wife, the late Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio
Ventura they are entitled to preference over the illegitimate children of Gregorio
Ventura, namely: Maria and Miguel Ventura. Hence, under the aforestated
preference provided in Section 6 of Rule 78, the person or persons to be
appointed administrator are Juana Cardona, as the surviving spouse, or
Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona and
Mercedes and Gregoria Ventura in the discretion of the Court, in order to
represent both interests.

PREMISES CONSIDERED, the appeal interposed by appellants Maria Ventura,

Juana Cardona and Miguel Ventura is hereby DISMISSED.

SO ORDERED.

Padilla and Sarmiento, JJ., concur.
Yap, C.J., joins J., Melencio-Herrera in her dissenting opinion.

[ G.R. No. L-6363, September 15, 1955 ]

IN THE MATTER OF THE TESTATE ESTATE OF DR. MAXIMO BORROMEO.
JOHANNA HOFER BORROMEO, WIDOW AND APPELLEE, VS. CANUTO O.
BORROMEO, EXECUTOR AND APPELLANT.

DECISION

BENGZON, ACTING C.J:

In July 1948, Dr. Maximo Borromeo, a resident of Cebu City, died without ascendants or
descendants, but leaving his widow Johanna Hofer Borromeo, and a will wherein he
designated the Borromeo Bros. Estate Inc. as his sole heir, even as he named his
brother Canuto O. Borromeo as the executor. The said corporation is owned entirely by
the deceased and his brothers and sisters.
Proceedings having been instituted, the court of first instance of that province probated
the will in due course, and granted letters testamentary to Canuto O. Borromeo, who
duly qualified as such executor.
Thereafter, on July 11,1949, the attorneys for the widow submitted an "Urgent Motion"
whereby they prayed for the removal of the executor on the grounds of negligence in
the performance of his duties and unfitness to continue discharging the powers of the
office.
This motion was scheduled to be heard on July 13, 1949 but it was postponed upon
representations by the executor of possible amicable settlement between the opposing
parties. No settlement was carried out nor even attempted. However, taking advantage
of the postponement and after a subpoena had been served on the Bank of the
Philippine Islands seeking information on the cash deposits therein of the deceased
Maximo Borromeo, the executor withdrew, without authority from the court, the total
amount of P23,930.39 from a joint current account, in said Bank, of Canuto Borromeo
and Maximo Borromeo, and then deposited P22,244.39 of the sum thus withdrawn in
the joint account of said Canuto Borromeo and his brother Exequiel.
In time the petition was heard, and voluminous evidence, oral and documentary, was
submitted. Thereafter on February 21, 1951 the Honorable Edmundo Piccio, Judge, for
several reasons, one of them the above withdrawal of funds, decreed
the removal of the executor. On motion for reconsideration the executor's attorney
prayed that the order be revoked or that at least, the executor be permitted to resign.
(Record on Appeal p. 251.)

On March 29, 1951 obviously to accommodate the executor—there being no practical

difference between removal and resignation—His Honor modified his order in the sense
that said executor was "relieved of (instead of removed from) his commitments as such
executor". Notwithstanding such modification the executor appealed, contending that
the modified order should be revoked.

There is no question that an order removing the executor or administrator is appealable.

[1]
 But we fail to perceive the utility of the instant appeal, [2] inasmuch as the executor
begged to be permitted to resign and the court all but granted his request explaining,
specifically, that the executor was not removed but only relieved of his commitment—
which is one way of accepting the proffered resignation. The executor got substantially
what he wanted.
Granting that the modified order was not literally what he desired, still the error, if any,
did not affect his substantial rights, and could not justify reversal under the Rules, (cf.
Rule 53 sec. 3.)

In any event, supposing he was removed, there were in our opinion sufficient grounds
therefor. Take the matter of withdrawals above described. Attempting to justify his
attitude, the executor points out that, according to the joint deposit agreement Exhibit H
signed by Canuto and Maximo Borromeo.

"We, the undersigned, agree with one another and with the Bank of the Philippine
Islands hereinafter called the Bank, that all moneys heretofore, now, or hereafter
deposited, by us, or any of us, to the credit of this Saving Account or Current Account,
are and shall be received and held by the Bank with 'the understanding, and upon the
condition that said money deposited, without reference to previous ownerships, and all
interest, dividends and credits thereon shall be the property of all of us as joint owners
and shall be payable to and collectible by anyone of us, during our lifetimes and after
the death of any one of us shall be the sole property of and payable to the survivors, or
survivor, provided that this last deposition is not contrary to provisions of laws now in
force or may hereafer be in force in the Philippine Islands." (Italics ours.)

He claims, in effect, that the money deposited was his at the time he withdrew it. But
would the Bank have allowed him to withdraw the whole amount if he were not the
executor? He got it then as executor, and should have kept it in his account as
executor. Instead, he deposited it in a joint account with his brother Exequiel, thereby
placing it at the latter's disposal, and hiding it from the widow.

Furthermore, and this is important, the agreement says "provided that this last
disposition is not contrary to provisions of laws now in force * * * in the P.I." The
question arises: may a husband validly agree that upon his death certain conjugal
money deposited in the bank shall belong to his brother, and thereby deprive his wife of
her share in the conjugal partnership?

According to Art. 1413 of the Civil Code, no alienation or agreement which the husband
may make with respect to conjugal property in fraud of the wife shall prejudice her or
her heirs.[3]

There is at least some ground to doubt whether the stipulation could deprive the wife of
her share in the conjugal assets. The validity of the agreement could properly be the
subject of debate in court; yet this executor avoided or bypassed judicial adjudication by
getting the money, specially at a time when his actuations were already being
questioned, and his appointment as executor in danger of revocation. And his conduct
is aggravated by the circumstance that he took advantage of a postponement, asked by
him on the false pretense of possible amicable settlement, in order to vest in himself
money on which the corporate heir and the widow might have a claim.

Another reason for the removal is the fact that in his Report for March 1949 the executor
omitted to include, as income of the estate, the sum of P6,000 which he had received
from Hacienda Plaridel of the decedent. This in itself might be involuntary error, as
claimed by him. But considering that he received other sums of P13,010 and
P10,559.40 as proceeds from the farm of the deceased, but instead of depositing them
in his name as executor, placed them in his joint account with his brother Exequiel
Borromeo, it is not unreasonable to suspect a plan—inconsistent with his trusteeship—
to conceal the money of the deceased to back up his assertion, in objecting to the
widow's allowance, that the estate had no funds.
A third reason is that the executor claimed as his own certain shares of the Interisland
Gas Service, in the name of Maximo Borromeo, valued at P12,000; he asserted that
Maximo was merely his "dummy". If we had any doubts about the Tightness of the trial
judge's determination, this circumstance should finally tip the judicial balance on the
side of removal or resignation. Conflict between the interest of the executor and the
interest of the deceased is ground for removal or resignation of the former, who was
thereby become unsuitable to discharge the trust (Section 2, Rule 83.)

"An executor or administrator should be removed where his personal interests conflict
with his official duties, but a mere hostile feeling towards persons interested in the
estate is not ground for removal unless it prevents the management of the estate
according to the dictates of prudence." (33 C. J. S. P. 1036.) (Citing many cases.)

"Reasons for rule.—'An executor is a quasi trustee, who should be indifferent between
the estate and claimants of the property, except to preserve it for due administration,
and when his interest conflicts with such right and duty the county court, in the exercise
of a sound discretion, may remove him.' (In re Manser, 60 Or. 240, 246, 118 p. 1024.)

"An executor will be removed where it appears that he asserts claims against the estate
of the testator to the exent of two-thirds of the value of the estate, and such claims are
disputed by the beneficiary under the will.' (Henry's Est., 54 Pa. Super. 274.)

"Claim of gift from decedent,—Where an executor, in answer to a petition for his

removal oh the ground of maladministration in claiming property of the estate, alleged a
gift by decedent to him of the property, he manifested an interest adverse to the
beneficiaries, authorizing his removal; but the. county court had no jurisdiction to
determine the question of gift." (In re Manser, 60 Or. 240, 118 p. 1024.)

It becomes unnecessary to examine the other reasons which induced the trial court to
let this executor go. The record discloses sufficient data justifying the decree of
separation or vindicating the judge's exercise of discretion. This, apart from the principle
supported by the weight of authorities that, "An appellate court is disinclined to interfere
with the action taken by the probate court in the matter of the removal of an executor or
administrator unless positive error or gross abuse of discretion is shown." (33 C. J. S. p.
1048.) Citing many cases.)
Wherefore, the appealed order should be, as it is hereby, affirmed with double costs
against appellant. It should be stated in this connection that for obvious reasons, no
petition for extension of the time to file a motion for reconsideration will be favorably
entertained. So ordered.
Padilla, Labrador, Jugo, Bautista Angelo, Reyes, A., Concepcion, and Reyes, J. B. L.,
JJ., concur.