G.R. No.

L-54919 May 30, 1984

POLLY
CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII,
Court of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.
GUTIERREZ, JR., J.:
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he
executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he
adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate
of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States
and for her appointment as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death
and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that
the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at
2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and
testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo
Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was
presented, probated, allowed, and registered with the Registry of Wins at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after
Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also
a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment
of an administratrix to administer and eventually distribute the properties of the estate located in
the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner
alleging among other things, that he has every reason to believe that the will in question is a
forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent
American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they
would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able
to verify the veracity thereof (of the will) and now confirms the same to be truly the probated
will of his daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of
the questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in

her lifetime, was a citizen of the United States of America with a permanent
residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when
alive, Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to
E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos
died in the City of Manila (Exhibit C) leaving property both in the Philippines and
in the United States of America; that the Last Will and Testament of the late
Adoracion C. Campos was admitted and granted probate by the Orphan's Court
Division of the Court of Common Pleas, the probate court of the Commonwealth
of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration
were issued in favor of Clement J. McLaughlin all in accordance with the laws of
the said foreign country on procedure and allowance of wills (Exhibits E to E-10);
and that the petitioner is not suffering from any disqualification which would
render her unfit as administratrix of the estate in the Philippines of the late
Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is
hereby admitted to and allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix of the estate of said decedent; let
Letters of Administration with the Will annexed issue in favor of said
Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned
under the provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal
of his opposition, acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing
the will be set aside on the ground that the withdrawal of his opposition to the same was secured
through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted
among the papers which he signed in connection with two Deeds of Conditional Sales which he
executed with the Construction and Development Corporation of the Philippines (CDCP). He
also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-ofrecord in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several
motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside
the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the
notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30
in the morning for submission for reconsideration and resolution of the Honorable
Court. Until this Motion is resolved, may I also request for the future setting of
the case for hearing on the Oppositor's motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was
called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate
instead of adducing evidence in support of the petition for relief. Thus, the respondent judge
issued an order dismissing the petition for relief for failure to present evidence in support thereof.
Petitioner filed a motion for reconsideration but the same was denied. In the same order,
respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which,
incidentally has been questioned by the respondent, his children and forced heirs as, on its face,
patently null and void, and a fabrication, appointing Polly Cayetano as the executrix of his last
will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the
instant case which was granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes
Campos merged upon his death with the rights of the respondent and her sisters, only remaining
children and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in
excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to Notice
(sic) upon the filing of the Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C. Campos, thus, paving the
way for the hearing ex-parte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not made in a public
or authenticated instrument), or by way of a petition presented to the court but by
way of a motion presented prior to an order for the distribution of the estate-the
law especially providing that repudiation of an inheritance must be presented,
within 30 days after it has issued an order for the distribution of the estate in
accordance with the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be divested by a
decree admitting a will to probate in which no provision is made for the forced
heir in complete disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition a denial of the due process
and a grave abuse of discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmarias, Cavite, consequently Cavite
Court of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan,
G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent
judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's
opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced
to support petitioner's contention that the motion to withdraw was secured through fraudulent
means and that Atty. Franco Loyola was not his counsel of record. The records show that after
the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he
confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at
the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the
motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record
was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the
respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other
opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will, the due
execution thereof, the testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will normally come
only after the court has declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be passed upon, even before
it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate
of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by
the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the time of her death, an American citizen
and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article
16 par. (2) and 1039 of the Civil Code which respectively provide:
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is
the national law of the decedent. Although the parties admit that the Pennsylvania law does
not provide for legitimes and that all the estate may be given away by the testatrix to a
complete stranger, the petitioner argues that such law should not apply because it would be
contrary to the sound and established public policy and would run counter to the specific
provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided
for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of
merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 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 in the province in which he resided 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.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion
at the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is
now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is
a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief,
against his opponent and after failing to obtain such relief, repudiate or question that same
jurisdiction. (See Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4,
1984).

Lukban vs. Republic , 98 Phil 574

Lourdes G. Lukban, petitioner herein, contracted marriage with Francisco Chuidian on
December 10, 1933 at the Paco Catholic Church, Manila. On December 27, of the same year,
Francisco left Lourdes after a violent quarrel and since then he has not been heard f rom despite
diligent search made by her. She also inquired about him from his parents and friends but no one
was able to indicate his whereabouts. She has no knowledge if he is still alive, his last known
address being Calle Merced, Paco, Manila. She believes. that. he is already dead because he had
been absent for more than twenty years, and because she intends to marry again, she desires that
her civil status be defined in order that she may be relieved of any liability under the law.
We believe that the petition at bar comes within the purview of our decision in the case of
Nicolai Szartraw, 46 Off. Gaz., 1st Sup., 243, wherein it was held that a petition for judicial
declaration that petitioners husband is presumed to be dead cannot be entertained because it is
not authorized by law, and if such declaration cannot be made in a special proceeding similar to
the present, much less can the court determine the status of petitioner as a widow since this
matter must of necessity depend upon the fact of death of the husband. This the court can declare

upon proper evidence, but not to decree that he is merely presumed to be dead. (Nicolai
Szartraw, 46 Off. Gaz., 1st sup. 243).
The philosophy behind the ruling that such judicial pronouncement cannot be made in a
proceeding of this nature is well expressed in the case above-cited. Thus, we there said that A
judicial pronouncement to that effect, even if final and executory, would still be a prima facie
presumption only. It is still disputable. It is for that reason that it cannot be the subject of a
judicial pronouncement or declaration, if it is the only question or matter involved in a case, or
upon which a competent court has to pass * * *. It is, therefore, clear that a judicial declaration
that a person is presumptively dead, because he had been unheard from in seven years, being a
presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or
become final.
Appellant claims that the remedy she is seeking for can be granted in the present proceedings
because in the case of Hagans vs. Wislizenus, 42 Phil., 880, it was declared that a special
proceeding is an application or proceeding to establish the status or right of a party, or a
particular fact; but, as already said, that remedy can be invoked if the purpose is to seek the
declaration of death of the husband, and not, as in the present case, to establish a presumption of
death. If it can be satisfactorily proven that the husband is dead, the court would not certainly
deny a declaration to that effect as has been intimated in the case of Nicolas Szartraw, supra.
Appellant also claims that the present petition can be entertained because article 349 of the
Revised Penal Code, in defining bigamy, provides that a person commits that crime if he
contracts a second marriage before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings and, it is claimed, the present petition
comes within the purview of this legal provision. The argument is untenable for the words
proper proceedings used in said article can only refer to those authorized by law such as those
which refer to the administration or settlement of the estate of a deceased person (Articles 390
and 391, new Civil Code). That such is the correct interpretation of the provision in question
finds support in the case of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court made the
following comment:
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)."

The decision appealed from is affirmed, without pronouncement; as to costs.

Pars, C.J., Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, Reyes, J.B. L. and
Endencia, JJ., concur.

Baybayan vs. Aquino, 149 SCRA 186

This is a petition for certiorari to annul and set aside the Order issued by the respondent Judge on
4 December 1975, which dismissed, without prejudice, the petitioners' complaint filed in Civil
Case No. 231-R of the then Court of First Instance of Pangasinan, as well as the Order, dated 24
December 1975, which denied petitioners' motion for the reconsideration of said order.
The antecedent facts of the case are as follows:
On 19 January 1960, herein private respondents Norberto Padua, Paulina Padua, Felisa Padua,
Dionisia Orpiano, Laureano Orpiano, Leonardo Orpiano, Josefina Orpiano, Valentina Orpiano,
Servillano Delfin, Gertrudes Delfin, Pastora Delfin, Lorenzo Delfin, Fausta Delfin, Dionisio
Oria, Faustina Oria, Amado Oria, and Benjamin Oria, all claiming to be the nephews and nieces
of one Vicente Oria who died intestate sometime in 1945 in Balungao, Pangasinan, filed a
petition for the summary settlement of the decedent's estate, the value of which did not exceed
P6,000.00. The petition was filed in the then Court of First Instance of Pangasinan, Tayug
Branch. The case was docketed therein as Special Proceeding No. T-300.1
After due publication and hearing, the probate court issued an order adjudicating the estate to the
heirs of the decedent, who were ordered to submit a project of partition.2 Sometime in 1971, the
case was transferred to the Rosales Branch of the Court of First Instance of Pangasinan where it
was docketed as Spec. Proc. No. 24-R.
On 18 September 1974, the probate court confirmed the adjudication earlier made and ordered
Eulalia Evangelista to deliver the respective shares of her co-heirs; to make an accounting of the
produce thereof from 1960; and to deliver said produce to her co-heirs or pay its equivalent. A
writ of execution was subsequently issued pursuant thereto.3
A writ of possession was also issued sometime thereafter, and the private respondents were
placed in possession of their respective shares.4 However, when a representative of the
private respondents went to cultivate the portion adjudicated to said private respondents,
he was prevented by Jose Diaz and Cipriano Evangelista. In view thereof, the private
respondents filed a motion to cite said Jose Diaz and Cipriano Evangelista in contempt of court.5
As a consequence, herein petitioners Pedro Baybayan, Cipriano Evangelista, and the spouses
Bartolome and Consuelo Baybayan, claiming to be the registered owners of the lots involved,

filed a complaint in the Court of First Instance of Pangasinan, Rosales Branch, docketed therein
as Civil Case No. 231-R, against the Deputy Sheriff and the herein private respondents, for the
quieting of their title, plus damages, and to restrain said defendants from enforcing the writ of
execution issued in Spec. Proc. No. 24-R.6
Meanwhile, at the hearing of the motion for contempt in Spec. Proc. No, 24-R, the question of
the identity of the lands subject of Spec. Proc. No. 24-R, was brought up, so that the probate
court ordered a relocation survey and commissioned a geodetic engineer to undertake said
survey. After the survey, the commissioner submitted to the Court a report stating, among others,
that the lands which were delivered by the Deputy Sheriff to the heirs of Vicente Oria, pursuant
to the writ of possession issued by the probate court, are registered in the names of herein
petitioners under TCT No. 50269 and TCT No. 50270 of the Register of Deeds of Pangasinan.7
By reason thereof, the probate court, in an order dated 30 October 1975, dismissed the contempt
charge against Jose Diaz and Cipriano Evangelista. However, the same court ordered the
petitioners to amend their complaint filed in Civil Case No. 231-R since "it is necessary that
an amended complaint be filed by Pedro Baybayan in order to determine whether or not
the property in question is part of the property under Spec. Proc. No. 24-R, inasmuch as it
is now the property claimed by him which is covered by Transfer Certificate of Title No.
50269. "8
Pursuant thereto, the herein petitioners filed an Omnibus Motion in Civil Case No. 231-R, to
which was attached an amended complaint wherein some defendants were dropped.9 The
respondent Judge, however, found that the Amended Complaint did not comply with his
order of 30 October 1975 to exclude Lot E and dismissed the case, "without prejudice on
the part of the plaintiffs to file a proper complaint for the recovery of ownership or
possession of the property in controversy which is Lot B in the relocation plan and formerly
covered by Original Certificate of Title No. 23684, now under Transfer Certificate of Title No.
50269."10
The petitioners filed a motion for reconsideration of the order,11 but the motion was denied on
24 December 1975.12 Thereupon, they filed with this Court a petition for certiorari for the
review of the orders of the lower court. The Court treated the petition as a special civil action f or
certiorari.13 Counsel for the petitioners, in this petition, contends that the respondent Judge had
no authority under the law, both substantive and procedural, to issue the questioned orders
because the order to amend the complaint was issued in, and in connection with Spec. Proc. No.
24-R where the herein petitioners are not even parties.
The contention, in our opinion, is not meritorious. While it may be true that the order to amend
the complaint filed in Civil Case No. 231-R was issued in Spec. Proc. No. 24-R, so that it cannot
ordinarily bind the herein petitioners who are not parties in said special proceedings, it appears,
however, that the petitioners voluntarily submitted themselves to the jurisdiction of the

probate court, when they filed an Omnibus Motion in Civil Case No. 231-R, wherein they
prayed for leave to amend their complaint in accordance with the order of the probate court of 30
October 1975. They cannot now be allowed belatedly to adopt an inconsistent posture by
attacking the jurisdiction of the respondent trial Judge to whom they submitted their cause
voluntarily.
We find, however, that the respondent Judge committed a grave abuse of discretion, amounting
to lack of jurisdiction, in dismissing the complaint filed by the petitioners, for their alleged
failure to amend their complaint to exclude therefrom Lot E which the respondent Judge found,
in his order of 30 October 1975, issued in the probate court, to be owned by the petitioners
Cipriano Evangelista and Consuelo Baybayan. The findings of the respondent Judge as to the
ownership of Lot E after the hearing conducted in Spec. Proc. No. 24-R do not justify the order
to amend the complaint since the determination of the ownership of the said lot by the
respondent Judge presiding over a court exercising probate jurisdiction is not final or ultimate in
nature and is without prejudice to the right of an interested party to raise the question of
ownership in a proper action.15
It is a well-settled rule in this jurisdiction, sanctioned and reiterated in a long line of decisions,
that "when questions arise as to ownership of property alleged to be a 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, such
questions cannot be determined in the courts of administrative proceedings. The Court of First
Instance, acting, as a probate court, has no jurisdiction to adjudicate such contentions, which
must be submitted to the Court of First Instance in the exercise of its general jurisdiction as a
court of first instance.'"16
Besides, the order to amend the complaint is vague and hazy and does not specify what the
amendments should be or how the complaint should be amended so that the petitioners should
not be f aulted if the amended complaint subsequently filed by them in Civil Case No. 231-R
does not contain the allegations that the respondent Judge would want to appear therein.
WHEREFORE, the petition is GRANTED and a writ issued, setting aside the Orders issued by
the respondent. Without costs.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., Paras, Bidin and Cortes, JJ., concur.
Petition granted Orders set aside.
Notes.What determines the jurisdiction of the court are the facts alleged in the complaint or
petition, not the facts averred in the answer or opposition of the adverse parties. (Salao vs.
Crisostomo, 138 SCRA 17.)

Violation of the State's right to due process raises a serious jurisdictional issue. Decision
rendered in disregard of the fundamental right to due process is void for lack of jurisdiction.
(People vs. Bocar, 138 SCRA 166.)
As a rule, during the pendency of special proceedings, the probate court retains control and
jurisdiction over incidents connected with it, including its orders not affecting third parties who
may have acquired vested rights. (Candelario vs. Canizares, 4 SCRA 738.)

[Nos. L-3087 and L-3088. 31 July 1954]

In re: Testate Estate of the deceased JOS B. SUNTAY. SILVINO SUNTAY, petitioner
and appellant. In re: Intestate Estate of the deceased JOS B. SUNTAY, FEDERICO C.
SUNTAY, administrator and appellee
1.WlLLS; PROBATE OF WlLLS; ASSIGNMENT OF INTEREST IN THE ESTATE, NOT A
BAR TO PROBATE OF A LOST OR FOREIGN WlLL. In an intestate proceeding that had
already been instituted in the Philippines, the widow and child of the testator are not estopped
from asking for the probate of a lost will or of a foreign will just because of the transfer or
assignment of their share, right, title and interest in the estate of the deceased. The validity and
legality of such assignments can not be threshed out in the probate proceeding which is
concerned only with the probate of the will.
2.ID.; ID.; PROOF OF LOST WILL; PROVISIONS OF WILL MUST BE PROVED BY AT
LEAST Two CREDIBLE WITNESSES; WHO ARE CREDIBLE WITNESSES.Granting that
a will was duly executed and that it was in existence at the time of, and not revoked before, the
death of the testator, still the provisions of the lost will must be clearly and distinctly proved by
at least two credible witnesses. "Credible witnesses" mean competent witnesses and not those
who testify to facts from or upon hearsay.
501

VOL. 95, JULY 31, 1954

501
Suntay vs. Suntay
3.ID.; PROBATE OF WILL is A PROCEEDING IN REM; NOTICE TO ALL PARTIES
ESSENTIAL FOR ITS VALIDITY.In the absence of proof that the municipal district court of
Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be
presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts

are the same as those provided for in our laws on the subject. It is a proceeding in rem and for the
validity of such proceedings personal notice or by publication or both to all interested parties
must be made.
4.ID. ; ID. ; PROCEEDINGS LIKENED TO A DEPOSITION OR TO A PERPETUATION OF
TESTIMONY.The proceedings had in the municipal district court of Amoy, China, may be
likened to a deposition or to a perpetuation of testimony, and even if it were so, notice to all
interested parties was necessary for the validity of such proceedings.
5.ID.; WILLS PROVED IN A FOREIGN COUNTRY; PROBATE SHOULD BE IN
ACCORDANCE WlTH ACCEPTED BASIC AND FUNDAMENTAL CONCEPTS AND
PRINCIPLES.Where it appears that the proceedings in the court of a foreign country were
held for the purpose of taking the testimony of two attesting witnesses to the will and the order of
the probate court did not purport to allow the will, the proceedings cannot be deemed to be for
the probate of a will, as it was not done in accordance with the basic and fundamental concepts
and principles followed in the probate and allowance of wills. Consequently, the will referred to
therein cannot be allowed, filed and recorded by a competent court of this country.
6.WILL, PROBATE OF; LACK OF OBJECTION TO PROBATE OF LOST WILL DOES
EXECUTION.The lack of objection to the probate of a lost will does not relieve the proponent
thereof or the party interested in its probate from establishing its due execution and proving
clearly and distinctly the provisions thereof by at least two credible witnesses, as provided for in
section 6, Rule 77 of the Rules of Court.
7.ID. ; APPEALS ; JURISDICTION OF SUPREME COURT TO REVIEW FINDINGS OF
FACT AND LEGAL PRONOUNCEMENTS IN CASES INVOLVING MORE THAN
P50,000.In an appeal from a judgment of the probate court, the Supreme Court, in the exercise
of its appellate jurisdiction, has the power to review and correct erroneous findings of fact and
legal pronouncements of the probate court, where the amount involved is more than P50,000.
502

502
PHILIPPINE REPORTS ANNOTATED
Suntay vs. Suntay
APPEAL from a decree of the Court of First Instance of Bulacan. Pecson, J.
The facts are stated in the opinion of the Court
Claro M. Recto for appellant.

Sison & Aruego for appellee.

PADILLA, J.:

This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the
alleged will and testament executed in Manila on November 1929, and the alleged last will
and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay.
The value of the estate left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the
city of Amoy, Fookien province, Republic of China, leaving real and personal properties in the
Philippines and a house in Amoy, Fookien province, China, and children by the first marriage
had with the late Manuela T. Cruz namely, Apolonio, Concepcin, Angel, Manuel, Federico,
Ana, Aurora, Emiliano and Jose, Jr. and a child named Silvino by the second marriage had with
Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the
Court of First Instance of Bulacan (special proceedings No. 4892) and after hearing letters of
administration were issued to Apolonio Suntay.
After the latter's death, Federico C. Suntay was appointed administrator of the estate. On 15
October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for
the probate of a last will and testament claimed to have been executed and signed in the
Philippines on November 1929 by the late Jose B. Suntay. This petition was denied because of
the loss of said will after the filing of the petition and before the hearing thereof and of the
insufficiency of the evidence to establish the loss of the said will- An appeal was taken from said
order denying the probate of the will and this Court held the evidence before the probate court
sufficient to prove the loss of the will and remanded the case to the court for further proceedings
In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the
taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the
probate court denied a motion for continuance of the hearing sent by cablegram from China by
the surviving widow and dismissed the petition. In the meantime the Pacific War supervened.
After liberation, claiming that he had found among the files, records and documents of his late
father a will and testament in Chinese characters executed and signed by the deceased on 4
January 1931 and that the same was filed, recorded and probated in the Amoy district court,
Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying
for the probate of the will executed in the Philippines on November 1929 (Exhibit B) or of the
will executed in Amoy, Fookien, China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria
Natividad Lim Billian are estopped from asking for the probate of the lost will or of the foreign

will because of the transfer or assignment of their share right, title and interest in the estate of the
late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo
and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to
Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in
this proceedings which is concerned only with the probate of the will and testament executed in
the Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4
January 1931 and claimed to have been probated in the municipal district court of Amoy,
Fookien province, Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no
bar to the filing of this petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the
same be established, and the will is proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or accidentally destroyed in
the lifetime of the testator without his knowledge, nor unless its provisions are clearly
and distinctly proved by at least two credible witnesses. When a lost will is proved, the
provisions thereof must be distinctly stated and certified by the judge, under the seal of
the court, and the certificate must be filed and recorded as other wills are filed and
recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost
will, was dead at the time of the hearing of this alternative petition. In his deposition Go Toh
testifies that he was one of the witnesses to the lost will consisting of twenty-three sheets signed
by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of
Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the
attesting witnesses signed and each of them signed the attestation clause and each and every
page of the will in the presence of the testator and of the other witnesses, but did not take part in
the drafting thereof ; that he knew the contents of the will written in Spanish although he knew
very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 crossinterrogatory, Id.) and all he knows about the contents of the lost will was revealed to him by
Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8
cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as
those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory,
Id.) which he saw in theoffice of Alberto Barretto in November 1929 when the will was signed
(answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft
and said to Jose B. Suntay: "You had better see if you want any correction" (answers to the 81st,
82nd and 83rd interrogatories, Id.) ; that "after checking Jose B. Suntay put the 'Exhibit B' in his
pocket and had the original signed and executed" (answers to the 91st interrogatory, and to X-18

cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into
Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read
the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20
cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio
Suntay she learned that her father left a will "because of the arrival of my brother Manuel
Suntay, who was bringing along with him certain document and he told us or he was telling us
that it was the will of our ex ather Jose B. Suntay which was taken from Go Toh. . . ." (p. 524, t.
s. n., hearing of 24 February 1948} ; that she saw her brother Apolonio Suntay read the
document in her presence and of Manuel and learned of the adjudication made in the will by her
father of his estate, to wit: one-third to his children, one-third to Silvino and his mother and the
other third to Silvino. Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.) ;
that "after Apolonio read that portion, then he turned over the document to Manuel, and he went
away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will
on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on
redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto
Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934,before the last postponement of the
hearing granted by the Court,Go Toh arrived at his law office in the De los Reyes Building and
left an envelope wrapped in red handkerchief; that he checked up the signatures on the envelope
Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was
exactly the same as the draft Exhibit B. (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned
by the latter to the former because they could not agree on the amount of fees, the former coming
to the latter's office straight from the boat that brought him to the Philippines from Amoy, and
that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay
that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934,
must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own
interest, still the fact remains that she did not read the whole will but only the adjudication and
saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto
Barretto. But her testimony on cross-examination that she read the part of the will on
adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of
the will he turned over or handed the document to Manuel who went away.
If it is true that Go Toh saw the draft Exhibit B. in the office of Alberto Barretto in November
1929 when the will was signed, then the part of his testimony that Alberto Barretto handed the
draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that

"after checking Jose B. Suntay put the 'Exhibit B' in his pocket and had the original signed and
executed" cannot be true, for it was not the time for correcting the draft of the will, because it
must have been corrected before and all corrections and additions written in lead pencil must
have been inserted and copied in the final draft of the will which was signed on that occasion.
The bringing in of the draft on that occasion is just to fit it within the framework of the
appellant's theory. At any rate, all of Go Toh's testimony by deposition on the provisions of the
alleged lost will is hearsay, because he came to know or he learned of them from information
given him by Jose B. Suntay and from reading the translation of the draft into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviing widow, according
to the will, is two-thirds of the estate. But this witness testified to oppose the appointment of a
co-administrator of the estate, for the reason that he had acquired the interest of the surviving
widow not only in the estate of her deceased husband but also in the conjugal property. Whether
he read the original will or just the copy thereof (Exhibit B) is not clear. For him the important
point was that he had acquired all the share, participation and interest of the surviving widow and
of the only child by the second marriage in the estate of his deceased father. Be that as it may, his
testimony that under the will the surviving widow would take two-thirds of the estate of the late
Jose B. Suntay is at variance with Exhibit B. and the testimony of Anastacio Teodoro. According
to the latter, the third for strict legitime is for the ten children; the third for betterment is for
Silvino, Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving
widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope
(Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the
testimony of Anastacio Teodoro alone falls short of the legal requirement that the
provisions of the lost will must be "clearly and distinctly proved by at least two credible
witnesses." Credible witnesses mean competent witnesses and those who testify to facts
from or upon hearsay are neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up
two wills for Jose B. Suntay at the latter's request, the rough draft of the ex irst will was in his
own handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that
after checking up the final with the rough draft he tore it and returned the final draft to Manuel
Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n.,
hearing of 21 February 1948) ; that two months later Jose B. Suntay and Manuel Lopez called on
him and the former asked him to draw up another will favoring more his wife and child Silvino;
that he had the rough draft of the second will typed (pp. 395. 449 t. s. n., Id.) and gave it to
Manuel Lopez (p. 396. t. s. n., Id.); that he did not sign as witness the second will of Jose B.
Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.) ; that the handwritten
insertions or additions in lead pencil to Exhibit B. are not his (pp. 4157 435-6, 457, t. s. n., Id.)
; that the final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed

and executed, two or three months after Suntay and Lopez had called on him (pp. 397-8, 403,
449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking Building on
Dasmarias street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come ex rom
Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where
the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.);
that after the signing of the will it was placed inside the envelope (Exhibit A) together with an
inventory of the properties of Jose B. Suntay and the envelope was sealed by the signatures of
the testator and the attesting witnesses; that he again saw the envelope (Exhibit A) in his house
one Saturday in the later part of August 1934, brought by Go Toh and it was then in perfect
condition (pp. 405-6, 411, 440-2, t. s. n., Id.) ; that on the following Monday Go Toh went to his
law office bringing along with him the envelope (Exhibit A) in the same condition; that he told
Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.) ; that Go
Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n.,
Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him (pp.
409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope
(Exhibit A), corroborates the testimony of Alberto Barretto to the effect that only one will was
signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh
took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same
assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n.,
Exhibit 6). He said, quoting his own words, "Because I. can not give him this envelope even
though the contract (on fees) was signed. I. have to bring that document to court or to anywhere
else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the
point is Rule 78, Section 1. of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of First Instance in the Philippines, Section 2.
provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition
for allowance in the Philippines, by the executor or other person interested, in the court having
jurisdiction, such 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.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court shall so
allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the

court, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and
the will shall have the same effect as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be
proved. The law of China on procedure in the probate or allowance of wills must also be
proved. The legal requirements for the execution of a valid will in China in 1931 should
also be established by competent evidence. There is no proof on these points. The unverified
answers to the questions propounded by counsel ex or the appellant to the Consul General of the
Republic of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are
inadmissible, because apart from the fact that the office of Consul General does not qualify and
make the person who holds it an expert on the Chinese law on procedure in probate matters, if
the same be admitted, the adverse party would be deprived of his right to confront and crossexamine the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that
all the proceedings had in the municipal district court of Amoy were for the purpose of taking the
testimony of two attesting witnesses to the will and that the order of the municipal district court
of Amoy does not purport to probate the will. In the absence of proof that the municipal district
court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may
be presumed that the proceedings in the matter of probating or allowing a will in the Chinese
courts are the same as those provided for in our laws on the subject.
It is a proceeding in rem and for the validity of such proceedings personal notice or by
publication or both to all interested parties must be made. The interested parties in the case were
known to reside in the Philippines. The evidence shows that no such notice was received by the
interested parties residing in the Philippines. The proceedings had in the municipal district court
of Amoy, China, may be likened to a deposition or to a perpetuation of testimony, and even if it
were so it does not measure or come up to the standard of such proceedings in the Philippines for
lack of notice to all interested parties and the proceedings were held at the back of such
interested parties.
The order of the municipal district court of Amoy, China, which reads, as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare that
there are no errors, after said minutes were loudly read and announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the
Republic of China in the Civil Section of the Municipal District Court of Amoy, China.
HUANG KUANG CHENG
Clerk of Court

CHIANG TENG HWA

Judge
does not purport to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in accordance
with the accepted basic and fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript of proceedings held in the
municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading
to the probate or allowance of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.
Pablo, Bengzon, Reyes, A. and Concepcion, JJ., concur.
Palaganas vs. Palaganas
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 Rupertas
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 Rupertas will should
not be probated in the Philippines but in the U.S. where she executed it. Manuel and Benjamin
added that, assuming Rupertas will could be probated in the Philippines, it is invalid nonetheless
for having been executed under duress and without the testators full understanding of the
consequences of such act. Ernesto, they claimed, is also not qualified to act as administrator of
the estate.
Meantime, since Rupertas 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 Rupertas 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 Rupertas 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 RTCs 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
Ernestos 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 Courts 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 where he resides, or according to
the formalities observed in his country.
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 Rupertas 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 Rupertas 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 testators 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 courts directive for Ernesto to submit the duly authenticated copy of Rupertas
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.

ESCHEAT:
CATALINA BALAIS-MABANAG, assisted by her husband, ELEUTERIO MABANAG,
petitioner, vs. THE REGISTER OF DEEDS OF QUEZON CITY, CONCEPCION D.
ALCARAZ, and RAMONA PATRICIA ALCARAZ, respondents.
Actions; Judgments; Pleadings and Practice; In every action, indeed, the parties and their counsel
are enjoined to present all available defenses and objections in order that the matter in issue can
finally be laid to rest in an appropriate contest before the court.The petitioner did not raise any
issue against Ramonas qualifications to own land in the Philippines during the trial or, at the
latest, before the finality of the RTC judgment. The petitioner was thereby deemed to have
waived the objection, pursuant to Section 1, Rule 9 of the Rules of Court, to wit: Section 1.
Defenses and objections not pleaded.
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed
waived. However, when it appears from the pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that there is another action pending between the same
parties for the same cause, or that the action is barred by a prior judgment or by statute of
limitations, the court shall dismiss the claim. (2a) In every action, indeed, the parties and their
counsel are enjoined to present all available defenses and objections in order that the matter in
issue can finally be laid to rest in an appropriate contest before the court. The rule is a wise and
tested one, borne by necessity. Without the rule, there will be no end to a litigation, because the
dissatisfied litigant may simply raise new or additional issues in order to prevent, defeat, or
delay the implementation of an already final and executory judgment. The endlessness of
litigation can give rise to added costs for the parties, and can surely contribute to the unwarranted
clogging of court dockets. The prospect of a protracted litigation between the parties annuls the
very rationale of every litigation to attain justice. Verily, there must be an end to litigation.
Same; Same; Res Judicata; It is fundamental that 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 for the same thing and under the
same title and in the same capacity.The petitioner cannot now insist that the RTC did not settle
the question of the respondents qualifications to own land due to non-citizenship. It is
fundamental that 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 for the same thing and under the same title and in the same capacity. Thus,
in Gabuya v. Layug, 250 SCRA 218 (1995) this Court had the occasion to hold that a judgment
involving the same parties, the same facts, and the same issues binds the parties not only as to
every matter offered and received to sustain or defeat their claims or demands, but also as to any
other admissible matter that might have been offered for that purpose and all other matters that
could have been adjudged in that case.
Same; Same; Same; Requisites; Legal Research; The guiding principle of the doctrine of res
judicata was formulated by Vice Chancellor Wigram in an English case circa 1843; The doctrine
of res judicata is also known as estoppel per rem judicatam and involves both cause of action
estoppel and issue estoppel.For res judicata to bar the institution of a subsequent action, the
following requisites must concur: (a) the former judgment must be final; (b) it must have been
rendered by a court having jurisdiction of the subject matter and the parties; (c) it must be a
judgment on the merits; and (d) there must be between the first and second actions identity of
parties, identity of the subject matter, and identity of cause of action. The guiding principle of the
doctrine of res judicata was formulated by Vice Chancellor Wigram in an English case circa
1843, thus: xxx that where a given matter becomes the subject of litigation in, and of
adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation
to bring forward their whole case, and will not (except under special circumstances) permit the
same parties to open the same subject of litigation in respect of matter which might have been
brought forward as part of the subject in contest, but which was not brought forward, only
because they have, from negligence, inadvertence, or even accident, omitted part of their case.
The plea of res judicata applies, except in special cases, not only to points which the court was
actually required by the parties to form an opinion and pronounce a judgment, but to every point
which properly belonged to the subject of litigation, and which the parties, exercising reasonable
diligence, might have brought forward at the time. The doctrine is also known as estoppel per
rem judicatam and involves both cause of action estoppel and issue estoppel. The purpose of the
doctrine is two-foldto prevent unnecessary proceedings involving expenses to the parties and
wastage of the courts time which could be used by others, and to avoid stale litigations as well
as to enable the defendant to know the extent of the claims being made arising out of the same
single incident.
Citizenship; Escheat; Land Titles; Solicitor General; Although the law does not categorically
state that only the Government, through the Solicitor General, may attack the title of an alien
transferee of land, it is nonetheless correct to hold that only the Government, through the
Solicitor General, has the personality to file a case challenging the capacity of a person to
acquire or to own land based on non-citizenship.It should also be pointed out that the
petitioner was not the proper party to challenge Ramonas qualifications to acquire land. Under
Section 7, Batas Pambansa Blg. 185, the Solicitor General or his representative shall institute

escheat proceedings against its violators. Although the law does not categorically state that only
the Government, through the Solicitor General, may attack the title of an alien transferee of land,
it is nonetheless correct to hold that only the Government, through the Solicitor General,
has the personality to file a case challenging the capacity of a person to acquire or to own
land based on non-citizenship. This limitation is based on the fact that the violation is
committed against the State, not against any individual; and that in the event that the
transferee is adjudged to be not a Filipino citizen, the affected property reverts to the State,
not to the previous owner or any other individual. Herein, even assuming that Ramona was
legally disqualified from owning the subject property, the decision that voids or annuls their right
of ownership over the subject land will not inure to the benefit of the petitioner. Instead, the
subject property will be escheated in favor of the State in accordance with Batas Pambansa Blg.
185.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Argue Law Firm for petitioner.
Ferrer & Ferrer Law Office for private respondents Alcaraz.
BERSAMIN, J.:
The issue of citizenship of the registered owner of land cannot anymore be raised to forestall the
execution of a final and executory judgment where the objecting party had the opportunity to
raise the issue prior to the finality of the judgment. The time for assailing the capacity of the
winning party to acquire the land was during the trial, not during the execution of a final
decision.

Antecedents
As culled from the assailed decision dated December 5, 2000 of the Court of Appeals (CA),1 and
from the Courts decision promulgated on October 7, 1996 in G.R. No. 103577,2 the following
are the antecedent facts.
On January 19, 1985, Romulo A. Coronel, Alarico A. Coronel, Annette A. Coronel, Annabelle
C. Gonzales, Floraida C. Tupper, and Cielito A. Coronel (Coronels) executed a document
entitled receipt of down payment, stipulating that they received from respondent Ramona
Patricia Alcaraz (Ramona), through Ramonas mother, respondent Concepcion D. Alcaraz
(Concepcion), the sum of P50,000.00 as downpayment on the total purchase price of
P1,240,000.00 for their inherited house and lot, covered by TCT No. 119627 of the Registry of
Deeds of Quezon City.

The receipt of down payment contained other stipulations, as follows:

We bind ourselves to effect the transfer in our names from our deceased father, Constancio P.
Coronel, the transfer certificate of title immediately upon our receipt of the down payment
above-stated amount. On our presentation of the TCT already in our name, we will immediately
execute the deed of absolute sale of said property and Miss Ramona Patricia Alcaraz shall
immediately pay the balance of the P1,190,000.00.
On February 6, 1985, the property originally registered in the name of the Coronels father was
transferred in the name of the Coronels under Transfer Certificate of Title (TCT) No. 327043 of
the Registry of Deeds of Quezon City.
On February 18, 1985, the Coronels sold the property covered by TCT No. 327043 to the
petitioner for the higher price of P1,580,000.00 after the latter delivered an initial sum of
P300,000.00. For this reason, the Coronels rescinded their contract with Ramona by depositing
her downpayment of P50,000.00 in the bank in trust for Ramona Patricia Alcaraz.
On February 22, 1985, Concepcion, through one Gloria P. Noel as her attorney-in-fact, filed a
complaint for specific performance and damages in her own name in the Regional Trial Court
(RTC) in Quezon City against the Coronels, docketed as Civil Case No. Q-44134.4 Concepcion
subsequently caused the annotation of a notice of lis pendens on TCT No. 327403.
On April 2, 1985, the petitioner had a notice of adverse claim annotated on TCT No. 327403 in
the Registry of Deeds of Quezon City.
On April 25, 1985, the Coronels executed a deed of absolute sale in favor of the petitioner.
On June 5, 1985, TCT No. 351582 was issued in the name of the petitioner.
It is relevant to mention that on May 24, 1985 the petitioner moved to have her answer in
intervention admitted in Civil Case No. Q-44134.5 Her intervention was allowed on May 31,
1985.
Earlier, on May 19, 1986, Concepcion sought leave of court to amend the complaint for the
purpose of impleading Ramona as a co-plaintiff.7 The amended complaint naming both
Concepcion and Ramona as plaintiffs was attached to the motion.8 On June 25, 1986, the
amended complaint was admitted.9
On March 1, 1989, the RTC rendered its decision, disposing:
WHEREFORE, judgment for specific performance is hereby rendered ordering defendant to
execute in favor of plaintiffs a deed of absolute sale covering that parcel of land embraced in and
covered by Transfer Certificate of Title No. 327403 (now TCT No. 331582) of the Registry of
Deeds for Quezon City, together with all the improvements existing thereon, free from all liens
and encumbrances, and once accomplished, to immediately deliver said document of sale to

plaintiffs, and upon receipt thereof, the plaintiffs are ordered to pay defendants the whole balance
of the purchase price amounting to P1,190,000.00 in cash. Transfer Certificate of Title No.
331582 of the Registry of Deeds for Quezon City in the name of intervenor is hereby cancelled
and declared to be without any force and effect. Defendants and intervenor and all other persons
claiming under them are hereby ordered to vacate the subject property, and deliver possession
thereof to plaintiff. Plaintiffs claim for damages and attorneys fees, as well as the counterclaims
of defendants and intervenors are hereby dismissed.
No pronouncement as to costs.
So Ordered.
Upon denial of the motion for reconsideration, the Coronels and the petitioner interposed an
appeal to the CA, which promulgated a judgment on December 16, 1991, fully upholding the
decision of the RTC.
Thus, the petitioner and the Coronels appealed the CA judgment to this Court (G.R. No.
103577), which affirmed the CA on October 7, 1996.
Thereafter, the decision of the RTC became final and executory.
Acting on the respondents motion for execution, the RTC issued a writ of execution on October
1, 1997. However, the petitioner and the Coronels filed their motion to stay execution and
supplemental motion for reconsideration, which the RTC denied on March 10, 1998.
Upon failure of the petitioner and the Coronels to comply with the writ of execution, the RTC
approved the respondents motion for appointment of suitable person to execute deed, etc., and
ordered on April 8, 1998 the Branch Clerk of the RTC, Branch 83, Quezon City, to execute the
deed of absolute sale in favor of Ramona in lieu of the defendants (i.e., the petitioner and the
Coronels).
On May 19, 1998, the petitioner and the Coronels filed in the CA a petition for certiorari
assailing the RTCs orders of October 1, 1997 and March 10, 1998, but the CA dismissed the
petition on July 30, 1998.
On August 21, 1998, the petitioner and the Coronels presented their motion for reconsideration
in the CA.
On September 2, 1998, the RTC held in abeyance the respondents motion reiterating previous
motion to resolve respondents motion, whereby the respondents sought an order to direct the
petitioner to surrender her TCT No. 331582, and the Registrar of Deeds of Quezon City to cancel
the petitioners copy of said TCT for her failure to comply with the earlier order for her to
surrender the TCT to the Registrar of Deeds pending resolution by the CA of the petitioners
motion for reconsideration.

Ultimately, on September 30, 1998, the CA denied the petitioners motion for reconsideration.
The petitioner thus appealed to the Court, which denied her petition for review for being filed out
of time. The Court also denied the petitioners motion for reconsideration on April 21, 1999.
Thereafter, the respondents moved in the RTC for the resolution of their pending motion. After
the RTC granted the respondents pending motion on July 29, 1999, the petitioner filed a motion
for reconsideration against such order, but the RTC denied her motion on September 23, 1999.
Following the denial of her motion for reconsideration, the petitioner commenced a special civil
action of certiorari in the CA to assail the RTCs action (CA-G.R. SP No. 55576). However, the
CA dismissed her petition through its decision dated December 5, 2000, Rollo, pp. 61-69, and
denied her motion for reconsideration on April 16, 2002.11
Issues
Hence, this appeal, in which the petitioner submits that the CA erred in sustaining the
registration by the Registrar of Deeds of the deed of absolute sale despite the lack of indication
of the citizenship of the buyer of the subject property; and in sustaining the order of the RTC
directing the Branch Clerk of Court to execute the deed of absolute sale without first requiring
the defendants to execute the deed of absolute sale as required by the decision.
Ruling
The petition lacks merit.
Res judicata barred petitioners objection
In the complaint dated February 22, 1985, respondent Concepcion, as plaintiff, categorically
averred that she was a Filipino citizen. The petitioner did not deny or disprove the averment of
Filipino citizenship during the trial and on appeal. The petitioner did not also advert to the issue
of citizenship after the complaint was amended in order to implead Ramona as a co-plaintiff,
despite the petitioners opportunity to do so.
Yet, now, when the final decision of the RTC is already being implemented, the petitioner would
thwart the execution by assailing the directive of the RTC for the Branch Clerk of Court to
execute the deed of absolute sale and by blocking the registration of the deed of absolute sale in
the Registry of Deeds of Quezon City, on the ground that Ramona was disqualified from owning
land in the Philippines.
The petitioners move was outrightly unwarranted.
First: The petitioner did not raise any issue against Ramonas qualifications to own land in
the Philippines during the trial or, at the latest, before the finality of the RTC judgment.

The petitioner was thereby deemed to have waived the objection, pursuant to Section 1, Rule 9 of
the Rules of Court, to wit:
Section 1. Defenses and objections not pleaded.Defenses and objections not pleaded either
in a motion to dismiss or in the answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that
there is another action pending between the same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (2a)
In every action, indeed, the parties and their counsel are enjoined to present all available
defenses and objections in order that the matter in issue can finally be laid to rest in an
appropriate contest before the court. The rule is a wise and tested one, borne by necessity.
Without the rule, there will be no end to a litigation, because the dissatisfied litigant may simply
raise new or additional issues in order to prevent, defeat, or delay the implementation of an
already final and executory judgment. The endlessness of litigation can give rise to added costs
for the parties, and can surely contribute to the unwarranted clogging of court dockets. The
prospect of a protracted litigation between the parties annuls the very rationale of every litigation
to attain justice. Verily, there must be an end to litigation.
Second: The petitioner cannot now insist that the RTC did not settle the question of the
respondents qualifications to own land due to non-citizenship. It is fundamental that 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 for the same thing and under the same title and in the same capacity.13
Thus, in Gabuya v. Layug,14 this Court had the occasion to hold that a judgment involving the
same parties, the same facts, and the same issues binds the parties not only as to every matter
offered and received to sustain or defeat their claims or demands, but also as to any other
admissible matter that might have been offered for that purpose and all other matters that could
have been adjudged in that case.
Third: The present recourse has not been the only one taken by the petitioner and her counsel to
assail the qualification of Ramona to acquire and own the subject property. In fact, the Court
catalogued such recourses taken for the petitioner herein in A.C. No. 5469, entitled Foronda v.
Guerrero,15 an administrative case for disbarment commenced on June 29, 2001 by Ricardo A.
Foronda (an attorney-in-fact of the respondents) against Atty. Arnold V. Guerrero, the attorney
of the petitioner,16 as follows:
1. Catalina Balais-Mabanag, assisted by her husband Eleuterio Mabanag v. Hon. Estrella T.
Estrada, et al. docketed as CA-G.R. SP No. 47710:
A special civil action for certiorari, prohibition and mandamus with prayer for temporary
restraining order and/or writ of preliminary injunction filed with the CA, on the ground that the

respondent judge committed grave abuse of discretion, excess or lack of jurisdiction in issuing
and/or refusing to stay the execution of its decision. The respondent put forth the argument that
Ramona Patricia Alcaraz, being a foreign national, was incapacitated to purchase the subject
property due to the limitations embodied in the 1987 Constitution.
The petition was denied, with the CA ratiocinating as follows:
We are not impressed. We find the trial courts stand on the matter to be legally
unassailable. In the first place, petitioner is not the proper party to question the qualification or
eligibility of Ramona Alcaraz. It is the State, through the Office of the Solicitor General, which
has the legal personality and the authority to question the qualification of Ramona Alcaraz to
own rural or urban land. In the second place, the decision sought to be executed has already
gained finality. As held by the Supreme Court, when a courts judgment or order becomes final
and executory it is the ministerial duty of the trial court to issue a writ of execution to enforce its
judgment (Rollo, pp. 65-66).
This petition was filed by the respondent on behalf of his clients asking the Supreme Court to
review the decision of the CA dismissing the petition for injunction in CA-G.R. SP No. 47710.
The petition was denied for having been filed out of time, and the motion for reconsideration
therefrom was denied with finality on April 21, 1999.
3. Spouses Eleuterio & Catalina Mabanag v. Ramona Patricia Alcaraz and the Register of
Deeds for Quezon City docketed as Civil Case No. Q-97-31268:
A complaint for Declaration of Inability to Acquire Real Property and Damages filed in
the RTC QC, Branch 83. In its Order dated July 9, 1999, the court dismissed the case on the
grounds of res judicata and forum shopping. The RTC observed that for failure of the plaintiffs
in this case to get a favorable decision from the earlier case, they tried to prevent the execution
by disqualifying the herein defendant Alcaraz
4. Catalina Balais-Mabanag, assisted by her husband, Eleuterio Mabanag v. Emelita L
Mariano, Concepcion D. Alcaraz and Ramona P. Alcaraz, et al. docketed as Civil Case No. Q01-43396:
An action for Annulment of Title and Deed of Absolute Sale and Damages with Prayer for
Temporary Restraining Order and/or Writ of Preliminary Injunction. In its Order dated March
20, 2001, acting on the injunctive aspect of the case, the RTC denied the injunction prayed for
for failure of the plaintiff to make at least a prima facie showing of a right to the issuance of the
writ. The subsequent motion for reconsideration filed by the respondent on behalf of his clients
was denied on June 18, 2001. Acting on the defendants Special and Affirmative Defenses and
Motion to Dismiss, the court issued an order dated January 16, 2002 dismissing the complaint
finding that the decision in Civil Case No. Q-44134 had already been turned over to complainant
as attorney-in-fact of defendants Alcarazes.

14

14
SUPREME COURT REPORTS ANNOTATED
Balais-Mabanag vs. Register of Deeds of Quezon City
5. Catalina Balais-Mabanag, assisted by her husband, Eleuterio Mabanag v. Emelita L
Mariano, Concepcion D. Alcaraz and Ramona P. Alcaraz, et al. docketed as CA-G.R. SP No.
65783 (Annex 12, Comment)
A special civil action for certiorari and prohibition with prayer for temporary restraining
order and/or writ of preliminary injunction filed by Atty. Guerrero on behalf of Catalina BalaisMabanag. The CA dismissed the petition on June 14, 2002, and pointed out the following:
a) On December 5, 2000, the Twelfth Division of the CA had already affirmed the decision of
the RTC that the authority of the Register of Deeds was confined only to the determination of
whether all the requisites for registration are complied with. To authorize the Register of Deeds
to determine whether Ramona Alcaraz was qualified to own real property in the Philippines was
to clothe the Register of Deeds with judicial powers that only courts could exercise.
b) The issue as to whether Ramona Alcaraz was qualified to own real property had been passed
upon by the Third Division of the CA in CA-G.R. SP No. 47710.
c) The Third Division of the Supreme Court in G.R. No. 103577 upheld the RTC and the CA
when it ruled on October 7, 1996 that the sale of the subject land between Alcaraz and the
Coronels was perfected before the sale between Mabanag and the Coronels.
6. Catalina Balais-Mabanag, etc. v. Emelita L. Mariano, et al. docketed as CA-G.R. CV No.
75911:
Appeal filed by Atty. Guerrero on behalf of Catalina Balais-Mabanag on February 1, 2003
after Civil Case No. Q-01-43396 for Annulment of Title and Deed of Absolute Sale and
Damages was dismissed by RTC QC, Branch 80.
7. Catalina Balais-Mabanag, assisted by her husband, Eleuterio Mabanag v. Hon. Estrella
Estrada, The Register of Deeds of Quezon City, Concepcion D. Alcaraz and
A special civil action for certiorari, questioning the order of the RTC in Civil Case No. Q44134, ordering Balais-Mabanag to surrender the owners duplicate copy of TCT No. 331582 to
the Alcarazes. The CA dismissed the petition on December 5, 2000 with the final note, to wit:

The Supreme Court Third Division as well as in G.R. No. 103577, on October 7, 1996,
ruled: Thus the sale of the subject parcel of land between petitioners and Romana P. Alcaraz,
perfected on February 6, 1985, prior to that between petitioners and Catalina B. Mabanag on
February 18, 1985, was correctly upheld by both the lower courts below.[]
Obviously, the lower courts judgment has become final and executory as per Entry of
Judgment issued by the Supreme Court. It is axiomatic that final and executory judgment can no
longer be attacked by any of the parties or be modified, directly or indirectly, even by the highest
court of the land
All the aforestated recourses have had the uniform result of sustaining the right of Ramona to
acquire the property, which warranted a finding against Atty. Guerrero of resorting to forum
shopping, and leading to his suspension from the practice of law for two years.17 Such result
fully affirms that the petitioners objection is now barred by res judicata.
For res judicata to bar the institution of a subsequent action, the following requisites must
concur: (a) the former judgment must be final; (b) it must have been rendered by a court having
jurisdiction of the subject matter and the parties; (c) it must be a judgment on the merits; and (d)
there must be between the first and second actions identity of parties, identity of the subject
matter, and identity of cause of action.18
The guiding principle of the doctrine of res judicata was formulated by Vice Chancellor Wigram
in an English case circa 1843, thus:
xxx that where a given matter becomes the subject of litigation in, and of adjudication by, a
court of competent jurisdiction, the court requires the parties to that litigation to bring forward
their whole case, and will not (except under special circumstances) permit the same parties to
open the same subject of litigation in respect of matter which might have been brought forward
as part of the subject in contest, but which was not brought forward, only because they have,
from negligence, inadvertence, or even accident, omitted part of their case. The plea of res
judicata applies, except in special cases, not only to points which the court was actually required
by the parties to form an opinion and pronounce a judgment, but to every point which properly
belonged to the subject of litigation, and which the parties, exercising reasonable diligence,
might have brought forward at the time.19
The doctrine is also known as estoppel per rem judicatam and involves both cause of action
estoppel and issue estoppel. The purpose of the doctrine is two-foldto prevent unnecessary
proceedings involving expenses to the parties and wastage of the courts time which could be
used by others, and to avoid stale litigations as well as to enable the defendant to know the extent
of the claims being made arising out of the same single incident.20
Under the doctrine of res judicata, therefore, a final judgment or decree on the merits rendered by
a court of competent jurisdiction is conclusive of the rights of the parties or their privies in all

later suits and on all points and matters determined in the previous suit.21 The foundation
principle upon which the doctrine rests is that the 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, so long as it remains unreversed, should be conclusive upon
the parties and those in privity with them in law or estate.22
B

Petitioner lacked the capacity to institute suit

It should also be pointed out that the petitioner was not the proper party to challenge Ramonas
qualifications to acquire land.
Under Section 7, Batas Pambansa Blg. 185,23 the Solicitor General or his representative shall
institute escheat proceedings against its violators. Although the law does not categorically state
that only the Government, through the Solicitor General, may attack the title of an alien
transferee of land, it is nonetheless correct to hold that only the Government, through the
Solicitor General, has the personality to file a case challenging the capacity of a person to
acquire or to own land based on non-citizenship. This limitation is based on the fact that the
violation is committed against the State, not against any individual; and that in the event that the
transferee is adjudged to be not a Filipino citizen, the affected property reverts to the State, not to
the previous owner or any other individual.
Herein, even assuming that Ramona was legally disqualified from owning the subject property,
the decision that voids or annuls their right of ownership over the subject land will not inure to
the benefit of the petitioner. Instead, the subject property will be escheated in favor of the State
in accordance with Batas Pambansa Blg. 185.
Deed of absolute sale executed by Branch Clerk of Court was valid.
The petitioner contends that the RTC did not see to it that the writ of execution be first served on
her, and a demand for her compliance be first made; hence, the deed of absolute sale executed by
the Branch Clerk of Court to implement the judgment was void.
We do not agree.
The CA found that it was the petitioner who did not comply with the notice of the sheriff of the
implementation of the judgment through the writ of execution; and that her non-compliance then
justified the RTCs order to the Branch Clerk of Court to execute the deed of absolute sale to
implement the final judgment rendered in G.R. No. 103577.
The fact that the petitioner and her counsel maneuvered to thwart, or, at least, to delay the
inevitable execution of the judgment warranted the RTCs directing the Branch Clerk of Court

execute the deed of absolute sale to implement the judgment. The RTCs effort to implement the
judgment could not be stymied by the petitioners deliberate refusal to comply with the
judgment. Such deliberate refusal called for the RTC to order the Branch Clerk of Court to
execute the deed of absolute sale in favor of Ramona, which move of the trial court was precisely
authorized by Rule 39 of the Rules of Court, to wit:
Section 10. Execution of judgments for specific act.(a) Conveyance, delivery of deeds, or
other specific acts; vesting title.If a judgment directs a party who execute a conveyance of land
or personal property, or to deliver deeds or other documents, or to perform any other specific act
in connection therewith, and the party fails to comply within the time specified, the court may
direct the act to be done at the cost of the disobedient party by some other person appointed by
the court and the act when so done shall have like effect as if done by the party. If real or
personal property is situated within the Philippines, the court in lieu of directing a conveyance
thereof may be an order divest the title of any party and vest it in others, which shall have the
force and effect of a conveyance executed in due form of law. (10a)
A Word of Caution
In A.C. No. 5469,25 the Court observed as follows:
It has, thus, been clearly established that in filing such numerous petitions in behalf of his
client, the respondent thereby engaged in forum shopping. The essence of forum shopping is the
filing of multiple suits involving the same parties for the same cause of action, either
simultaneously or successively, for the purpose of obtaining a favorable judgment. It exists
when, as a result of an adverse opinion in one forum, a party seeks a favorable opinion in
another, or when he institutes two or more actions or proceedings grounded on the same cause to
increase the chances of obtaining a favorable decision. An important factor in determining the
existence of forum shopping is the vexation caused to the courts and the parties-litigants by the
filing of similar cases to claim substantially the same reliefs.
Indeed, while a lawyer owes fidelity to the cause of his client, it should not be at the expense of
truth and the administration of justice. Under the Code of Professional Responsibility, a lawyer
has the duty to assist in the speedy and efficient administration of justice, and is enjoined from
unduly delaying a case by impeding execution of a judgment or by misusing court processes.
Such filing of multiple petitions constitutes abuse of the Courts processes and improper conduct
that tends to impede, obstruct and degrade the administration of justice and will be punished as
contempt of court. Needless to add, the lawyer who files such multiple or repetitious petitions
(which obviously delays the execution of a final and executory judgment) subjects himself to
disciplinary action for incompetence (for not knowing any better) or for willful violation of his
duties as an attorney to act with all good fidelity to the courts, and to maintain only such actions
as appear to him to be just and are consistent with truth and honor.

We note that while lawyers owe their entire devotion to the interest of their clients and zeal in the
defense of their clients right, they should not forget that they are, first and foremost, officers of
the court, bound to exert every effort to assist in the speedy and efficient administration of
justice.
In filing multiple petitions before various courts concerning the same subject matter, the
respondent violated Canon 12 of the Code of Professional Responsibility, which provides that a
lawyer shall exert every effort and consider it his duty to assist in the speedy and efficient
administration of justice. He also violated Rule 12.02 and Rule 12.04 of the Code, as well as a
lawyers mandate to delay no man for money or malice.
The Court reminds that its foregoing observations on the deleterious effects of forum shopping
did not apply only to Atty. Guerrero, but also to the petitioner as the client whom he represented.
Thus, this decision becomes a good occasion to warn both the petitioner and her attorney that
another attempt by them to revive the issue of Ramonas lack of qualification to own the land
will be swiftly and condignly sanctioned.
WHEREFORE, the petition for review on certiorari is denied, and the decision dated December
5, 2000 promulgated in CA-G.R. SP No. 55576 is affirmed.

People v. Flores
Guardianship; Jurisprudence dictates that the guardian must be a person who has legal
relationship with his ward; Circumstances that qualify a crime and increase its penalty to death
cannot be subject of stipulationthe accused cannot be condemned to suffer the extreme penalty
of death on the basis of stipulations or admissions.The Court of Appeals appreciated the
qualifying circumstances of minority and relationship in imposing the penalty of reclusion
perpetua. It relied on the established fact that AAA was still a minor when she was raped and on
the stipulated fact that appellant is her guardian. One of the instances wherein the crime of rape
may be qualified is when the victim is a minor AND the accused is her guardian. At this point,
we cannot subscribe to this interpretation and hence, we hold that the Court of Appeals erred in
considering the qualifying circumstance of relationship. Indeed, it was stipulated during the pretrial conference that appellant is the guardian of AAA. However, we cannot simply invoke this
admission to consider guardianship as a qualifying circumstance in the crime of rape.
Circumstances that qualify a crime and increase its penalty to death cannot be subject of
stipulation. The accused cannot be condemned to suffer the extreme penalty of death on the basis
of stipulations or admissions. This strict rule is warranted by the gravity and irreversibility of
capital punishment. To justify the death penalty, the prosecution must specifically allege in the
information and prove during the trial the qualifying circumstances of minority of the victim and
her relationship to the offender. Jurisprudence dictates that the guardian must be a person who
has legal relationship with his ward. The theory that a guardian must be legally appointed was

first enunciated in the early case of People v. De la Cruz. [People vs. Flores, 629 SCRA
478(2010)]
Cabales vs. Court of Appeals, 531 SCRA 691(2007)
Guardianships; The legal guardian only has the plenary power of administration of the minors
propertyit does not include the power of alienation which needs judicial authority, and the
resulting sale is unenforceable; Subsequent receipt by the ward when already of age of the
proceeds of the sale effectively ratifies the sale.The legal guardian only has the plenary power
of administration of the minors property. It does not include the power of alienation which
needs judicial autho rity. Thus, when Saturnina, as legal guardian of petititoner Rito, sold the
latters 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 the name of another person by one
who has been given no authority or legal representation, or who has acted beyond his powers; x x
x x 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.
Rufino Cabales died on July 4, 1966 and left a 5,714-squatre 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 (P2,686.00) corresponding and belonging to the Heirs of Alberto Cabales
and to Rito Cabales who are still minors upon the execution of the 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 respondentsspouses when
he reaches the age of 21 considering that Saturnina paid Dr. Corrompido P966.66 for the
obligation of petitioner Nelsons 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 formers share in the proceeds of the
sale of the subject property.
In 1988, Saturnina died. Petitioner Nelson, then residing in Manila, went back to his fathers
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, petitioner 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 Albertos 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 Ritos undivided share to the property was unenforceable for lack of
authority or legal representation but that the contract was effectively ratified by petitioner Ritos
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 Albertos 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 Nelsons late father Alberto. Finally,
however, it denied petitioner Nelsons 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 Nelsons 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 oneseventh of subject land were transferred to his legal heirshis 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, Albertos mother, and not his heirs, who repurchased for him. As correctly
ruled by the Court of Appeals, Saturnina was not subrogated to Albertos 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 Albertos 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 has 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 Code6 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 childs 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 latters 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
SUPREME COURT REPORTS ANNOTATED
Cabales vs. Court of Appeals
Saturnina was clearly petitioner Ritos 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. 110 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 minors property.
It does not include the power of alienation which needs judicial authority.11 Thus, when
Saturnina, as legal guardian of petititoner Rito, sold the latters 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 the name of another person by one who has been given no authority or
legal representation, or who has acted beyond his powers;
_______________

Section 1. Applicability of the Rule.This Rule shall apply to petitioners for guardianship over
the person or property, or both, of a minor.
The father and the mother shall jointly exercise legal guardianship over the person and property
of their unemancipated common child without the necessity of a court appointment. In such case,
this Rule shall be suppletory to the provisions of the Family Code on guardianship.
10 Revised Rules of Court of 1964.
11 Revised Rules of Court of 194, Rule 95.
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701
Cabales vs. Court of Appeals
x x x x
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 preemption 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.
_______________

12 Nothing on records indicates that petitioner Nelsons mother predeceased him.

702

702
SUPREME COURT REPORTS ANNOTATED
Cabales vs. Court of Appeals
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 lawmakers will.
_______________

13 No. L-72873, May 28, 1987, 150 SCRA 259.

703

VOL. 531, AUGUST 31, 2007

703
Cabales vs. Court of Appeals
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 thirtyday 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.
_______________

14 Included for its application in the case at bar.

704

704
SUPREME COURT REPORTS ANNOTATED
Cabales vs. Court of Appeals
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 remains 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 the 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.
Petition denied, assailed decision and resolution affirmed with modification.
Notes.A third person, within the meaning of Article 1620 of the Civil Code (on the right of
legal redemption of a co-owner) is anyone who is not a co-owner. (Pilapil vs. Court of Appeals,
250 SCRA 566 [1995])
The exercise of the right to redeem presupposes the existence of a co-ownership at the time the
conveyance is made by a co-owner and when it is demanded by the other co-owner or coownersas legal redemption is intended to minimize co-ownership, once the property is
subdivided and distributed among the co-owners, the community ceases to exist and
_______________
Guardianship; Family Code; Husband and Wife; Conjugal Partnership; Administration; The
situation contemplated under Article 124 of the Family Code to be governed by summary
judicial proceedings is one where the spouse is absent, or separated in fact or has abandoned the
other or consent is withheld or cannot be obtainedsuch rules do not apply to cases where the
non-consenting spouse is incapacitated or incompetent to give consent, in which case the proper
remedy is judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules of
Court.In regular manner, the rules on summary judicial proceedings under the Family Code
govern the proceedings under Article 124 of the Family Code. The situation contemplated is one
where the spouse is absent, or separated in fact or has abandoned the other or consent is withheld
or cannot be obtained. Such rules do not apply to cases where the non-consenting spouse is
incapacitated or incompetent to give consent. In this case, the trial court found that the subject
spouse is an incompetent who was in comatose or semi-comatose condition, a victim of stroke,
cerebrovascular accident, without motor and mental faculties, and with a diagnosis of brain stem
infarct. In such case, the proper remedy is a judicial guardianship proceedings under Rule 93 of
the 1964 Revised Rules of Court.
Same; Same; Same; Same; Same; Same; A spouse who desires to sell real property as such
administrator of the conjugal property must observe the procedure for the sale of the wards
estate required of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the
summary judicial proceedings under the Family Code.Even assuming that the rules of
summary judicial proceedings under the Family Code may apply to the wifes administration of
the conjugal property, the law provides that the wife who assumes sole powers of administration
has the same powers and duties as a guardian under the Rules of Court. Consequently, a spouse

who desires to sell real property as such administrator of the conjugal property must observe the
procedure for the sale of the wards estate required of judicial guardians under Rule 95, 1964
Revised Rules of Court, not the summary judicial proceedings under the Family Code.
________________

* FIRST DIVISION.
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Uy vs. Court of Appeals
Same; Same; Same; Due Process; The doctrine consistently adhered to by the Supreme Court is
that a denial of due process suffices to cast on the official act taken by whatever branch of the
government the impress of nullity.In the case at bar, the trial court did not comply with the
procedure under the Revised Rules of Court. Indeed, the trial court did not even observe the
requirements of the summary judicial proceedings under the Family Code. Thus, the trial court
did not serve notice of the petition to the incapacitated spouse; it did not require him to show
cause why the petition should not be granted. Hence, we agree with the Court of Appeals that
absent an opportunity to be heard, the decision rendered by the trial court is void for lack of due
process. The doctrine consistently adhered to by this Court is that a denial of due process suffices
to cast on the official act taken by whatever branch of the government the impress of nullity. A
decision rendered without due process is void ab initio and may be attacked directly or
collaterally. A decision is void for lack of due process if, as a result, a party is deprived of the
opportunity of being heard. A void decision may be assailed or impugned at any time either
directly or collaterally, by means of a separate action, or by resisting such decision in any action
or proceeding where it is invoked.
PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Jiz, Jiz, Andrada, Gellada & Associates for petitioners.
Roco, Buag, Kapunan & Migallos for private respondent Teodoro Jardeleza.

PARDO, J.:

The case is an appeal via certiorari from the decision1 of the Court of Appeals and its resolution
denying reconsideration2 reversing that of the Regional Trial Court, Iloilo, Branch 323 and
declaring void the special proceedings instituted therein by petitioners to authorize petitioner
Gilda L. Jardeleza, in view of the Uy vs. Court of Appeals
comatose condition of her husband, Ernesto Jardeleza, Sr., with the approval of the court, to
dispose of their conjugal property in favor of co-petitioners, their daughter and son in law, for the
ostensible purpose of financial need in the personal, business and medical expenses of her
incapacitated husband.
The facts, as found by the Court of Appeals, are as follows:
This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the one hand, against
his mother Gilda L. Jardeleza, and sister and brother-in-law, the spouses Jose Uy and Glenda
Jardeleza (herein petitioners) on the other hand. The controversy came about as a result of Dr.
Ernesto Jardeleza, Sr.s suffering of a stroke on March 25, 1991, which left him comatose and
bereft of any motor or mental faculties. Said Ernesto Jardeleza, Sr. is the father of herein
respondent Teodoro Jardeleza and husband of herein private respondent Gilda Jardeleza.
Upon learning that one piece of real property belonging to the senior Jardeleza spouses was
about to be sold, petitioner Teodoro Jardeleza, on June 6, 1991, filed a petition (Annex A)
before the R.T.C. of Iloilo City, Branch 25, where it was docketed as Special Proceeding No.
4689, in the matter of the guardianship of Dr. Ernesto Jardeleza, Sr. The petitioner averred
therein that the present physical and mental incapacity of Dr. Ernesto Jardeleza, Sr. prevent him
from competently administering his properties, and in order to prevent the loss and dissipation of
the Jardelezas real and personal assets, there was a need for a court-appointed guardian to
administer said properties. It was prayed therein that Letters of Guardianship be issued in favor
of herein private respondent Gilda Ledesma Jardeleza, wife of Dr. Ernesto Jardeleza, Sr. It was
further prayed that in the meantime, no property of Dr. Ernesto Jardeleza, Sr. be negotiated,
mortgaged or otherwise alienated to third persons, particularly Lot No. 4291 and all the
improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by T.C.T. No.
47337.
A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself filed a petition
docketed as Special Proceeding No. 4691, before Branch 32 of the R.T.C. of Iloilo City,
regarding the declaration of incapacity of Ernesto Jardeleza, Sr., assumption of sole powers of
administration of conjugal properties, and authorization to sell the same (Annex B). Therein,
the petitioner Gilda L. Jardeleza averred the physical and mental incapacity of her husband, who
was then confined for intensive medical care and treatment at the Iloilo Doctors Hospital. She

signified to the court her desire to assume sole powers of administration of their conjugal
properties. She also alleged that her husbands medical treatment
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249
Uy vs. Court of Appeals
and hospitalization expenses were piling up, accumulating to several hundred thousands of pesos
already. For this, she urgently needed to sell one piece of real property, specifically Lot No. 4291
and its improvements. Thus, she prayed for authorization from the court to sell said property.
The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an Order
(Annex C) finding the petition in Spec. Proc. No. 4691 to be sufficient in form and substance,
and setting the hearing thereof for June 20, 1991. The scheduled hearing of the petition
proceeded, attended by therein petitioner Gilda Jardeleza, her counsel, her two children, namely
Ernesto Jardeleza, Jr., and Glenda Jardeleza Uy, and Dr. Rolando Padilla, one of Ernesto
Jardeleza, Sr.s attending physicians.
On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered its Decision
(Annex D), finding that it was convinced that Ernesto Jardeleza, Sr. was truly incapacitated to
participate in the administration of the conjugal properties, and that the sale of Lot No. 4291 and
the improvements thereon was necessary to defray the mounting expenses for treatment and
Hospitalization. The said court also made the pronouncement that the petition filed by Gilda L.
Jardeleza was pursuant to Article 124 of the Family Code, and that the proceedings thereon are
governed by the rules on summary proceedings sanctioned under Article 253 of the same Code x
x x.
The said court then disposed as follows:
WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991, the
Court hereby renders judgment as follows:
1) declaring Ernesto Jardeleza, Sr., petitioners husband, to be incapacitated and unable to
participate in the administration of conjugal properties;
2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of administration of their
conjugal properties; and

3) authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey of Iloilo,
situated in Iloilo City and covered by TCT No. 47337 issued in the names of Ernesto Jardeleza,
Sr. and Gilda L. Jardeleza and the buildings standing thereof.
SO ORDERED.
On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the proceedings
before Branch 32 in Spec. Proc. Case No. 4691, said petitioner being unaware and not knowing
that a decision has already been rendered on the case by public respondent.
250

250
SUPREME COURT REPORTS ANNOTATED
Uy vs. Court of Appeals
On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for reconsideration of the
judgment in Spec. Proc. No. 4691 and a motion for consolidation of the two cases (Annex F).
He propounded the argument that the petition for declaration of incapacity, assumption of sole
powers of administration, and authority to sell the conjugal properties was essentially a petition
for guardianship of the person and properties of Ernesto Jardeleza, Sr. As such, it cannot be
prosecuted in accordance with the provisions on summary proceedings set out in Article 253 of
the Family Code. It should follow the rules governing special proceedings in the Revised Rules
of Court which require procedural due process, particularly the need for notice and a hearing on
the merits. On the other hand, even if Gilda Jardelezas petition can be prosecuted by summary
proceedings, there was still a failure to comply with the basic requirements thereof, making the
decision in Spec. Proc. No. 4691 a defective one. He further alleged that under the New Civil
Code, Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal partner, and that these
rights cannot be impaired or prejudiced without his consent. Neither can he be deprived of his
share in the conjugal properties through mere summary proceedings. He then restated his
position that Spec. Proc. No. 4691 should be consolidated with Spec. Proc. No. 4689 which was
filed earlier and pending before Branch 25.
Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and the
improvements thereon supposedly to pay the accumulated financial obligations arising from
Ernesto Jardeleza, Sr.s hospitalization. He alleged that the market value of the property would
be around Twelve to Fifteen Million Pesos, but that he had been informed that it would be sold
for much less. He also pointed out that the building thereon which houses the Jardeleza Clinic is
a monument to Ernesto Jardeleza Sr.s industry, labor and service to his fellowmen. Hence, the
said property has a lot of sentimental value to his family. Besides, argued Teodoro Jardeleza,

then conjugal partnership had other liquid assets to pay off all financial obligations. He
mentioned that apart from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo Doctors Hospital
which can be off-set against the cost of medical and hospital bills. Furthermore, Ernesto
Jardeleza, Sr. enjoys certain privileges at the said hospital which allows him to pay on
installment basis. Moreover, two of Ernesto Jardeleza, Sr.s attending physicians are his own
sons who do not charge anything for their professional services.
On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to his motion
for reconsideration (Annex G). He reiterated his contention that summary proceedings was
irregularly applied. He also noted that the provisions on summary proceedings found in Chapter
2 of
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Uy vs. Court of Appeals
the Family Code comes under the heading on Separation in Fact Between Husband and Wife
which contemplates of a situation where both spouses are of disposing mind. Thus, he argued
that were one spouse is comatose without motor and mental faculties, the said provisions
cannot be made to apply.
While the motion for reconsideration was pending, Gilda Jardeleza disposed by absolute sale
Lot No. 4291 and all its improvements to her daughter, Ma. Glenda Jardeleza Uy, for Eight
Million Pesos (P8,000,000.00), as evidenced by a Deed Absolute Sale dated July 8, 1991
executed between them (p. 111, Rollo). Under date of July 23, 1991, Gilda Jardeleza filed an
urgent ex-parte motion for approval of the deed of absolute sale.
On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for approval of the
deed of sale on the grounds that: (1) the motion was prematurely filed and should be held in
abeyance until the final resolution of the petition; (2) the motion does not allege nor prove the
justifications for the sale; and (3) the motion does not allege that had Ernesto Jardeleza, Sr. been
competent, he would have given his consent to the sale.
Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent Court, who had penned
the decision in Spec. Proc. No. 4691 had in the meantime formally inhibited herself from further
acting in this case (Annex I). The case was then reraffled to Branch 28 of the said court.

On December 19, 1991, the said court issued an Order (Annex M) denying herein petitioners
motion for reconsideration and approving respondent Jardelezas motion for approval of the deed
of absolute sale. The said court ruled that:
After a careful and thorough perusal of the decision, dated June 20, 1991, the Motion for
Reconsideration, as well as its supplements filed by oppositor, Teodoro L. Jardeleza, through
counsel, and the opposition to the Motion for Reconsideration, including its supplements, filed
by petitioner, through counsel, this Court is of the opinion and so holds, that her Honor, Amelita
K. del Rosario-Benedicto, Presiding Judge of Branch 32, of this Court, has properly observed the
procedure embodied under Article 253, in relation to Article 124, of the Family Code, in
rendering her decision dated June 20, 1991.
Also, as correctly stated by petitioner, through counsel, that oppositor Teodor L. Jardeleza
does not have the personality to oppose the instant petition considering that the property or
properties,
252

252
SUPREME COURT REPORTS ANNOTATED
Uy vs. Court of Appeals
subject of the petition, belongs to the conjugal partnership of the spouses Ernesto and Gilda
Jardeleza, who are both still alive.
In view thereof, the Motion for Reconsideration of oppositor Teodoro L. Jardeleza, is hereby
denied for lack of merit.
Considering the validity of the decision dated June 20, 1991, which among others, authorized
Gilda L. Jardeleza to sell Lot No. 4291 of the Cadastral Survey of Iloilo, covered by Transfer
Certificate of Title No. 47337 issued in the names of Ernesto Jardeleza, Sr., and Gilda L.
Jardeleza and the building standing thereon, the Urgent Ex-Parte Motion for Approval of Deed
of Absolute Sale dated July 23, 1991, filed by petitioner, through counsel, is hereby granted and
the deed of absolute sale, executed and notarized on July 8, 1991, by and between Gilda L.
Jardeleza, as vendor, and Ma. Glenda Jardeleza, as vendee, is hereby approved, and the Register
of Deeds of Iloilo City, is directed to register the sale and issue the corresponding transfer
certificate of title to the vendee.
SO ORDERED.4

On December 9, 1992, the Court of Appeals promulgated its decision reversing the appealed
decision and ordering the trial court to dismiss the special proceedings to approve the deed of
sale, which was also declared void.5
On December 29, 1992, petitioners filed a motion for reconsideration,6 however, on March 29,
1993, the Court of Appeals denied the motion, finding no cogent and compelling reason to
disturb the decision.7
Hence, this appeal.8
The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto Jardeleza, Sr.
who suffered a stroke, a cerebrovascular accident, rendering him comatose, without motor and
mental faculties, and could not manage their conjugal partnership prop________________

4 Supra, Note 1, at pp. 194-198.

5 Ibid.
6 Petition, Annex S, Rollo, pp. 203-232.
7 Supra, Note 1, Marigomen, J., pononte, Rasul and Galvez, JJ., concurring, Rollo, pp. 233-234.
8 Petition filed on April 14, 1993, Rollo, pp. 2-49. On March 20, 1996, we gave due course to
the petition, Rollo, p. 383.
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VOL. 346, NOVEMBER 29, 2000

253
Uy vs. Court of Appeals
erty may assume sole powers of administration of the conjugal property under Article 124 of the
Family Code and dispose of a parcel of land with its improvements, worth more than twelve
million pesos, with the approval of the court in a summary proceedings, to her co-petitioners, her
own daughter and son-in-law, for the amount of eight million pesos.
The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the procedural
rules on summary proceedings in relation to Article 124 of the Family Code are not applicable.
Because Dr. Jardeleza, Sr. was unable to take care of himself and manage the conjugal property

due to illness that had rendered him comatose, the proper remedy was the appointment of a
judicial guardian of the person or estate or both of such incompetent, under Rule 93, Section 1,
1964 Revised Rules of Court. Indeed, petitioner earlier had filed such a petition for judicial
guardianship:
Article 124 of the Family Code provides as follows:
ART. 124. The administration and enjoyment of the conjugal partnership property shall belong
to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to
recourse to the court by the wife for a proper remedy which must be availed of within five years
from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include the powers of disposition or encumbrance which
must have the authority of the court or the written consent of the other spouse. In the absence of
such authority or consent, the disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the consenting spouse and the third person,
and may be perfected as a binding contract upon the acceptance by the other spouse or
authorization by the court before the offer is withdrawn by either or both offerors. (165a).
In regular manner, the rules on summary judicial proceedings under the Family Code govern the
proceedings under Article 124 of the Family Code. The situation contemplated is one where the
spouse is absent, or separated in fact or has abandoned the other or consent is withheld or cannot
be obtained. Such rules do not apply to cases where the non-consenting spouse is incapacitated
or in254

254
SUPREME COURT REPORTS ANNOTATED
Uy vs. Court of Appeals
competent to give consent. In this case, the trial court found that the subject spouse is an
incompetent who was in comatose or semi-comatose condition, a victim of stroke,
cerebrovascular accident, without motor and mental faculties, and with a diagnosis of brain stem
infarct.9 In such case, the proper remedy is a judicial guardianship proceedings under Rule 93 of
the 1964 Revised Rules of Court.
Even assuming that the rules of summary judicial proceedings under the Family Code may apply
to the wifes administration of the conjugal property, the law provides that the wife who assumes

sole powers of administration has the same powers and duties as a guardian under the Rules of
Court.10
Consequently, a spouse who desires to sell real property as such administrator of the conjugal
property must observe the procedure for the sale of the wards estate required of judicial
guardians under Rule 95,1964 Revised Rules of Court, not the summary judicial proceedings
under the Family Code.
In the case at bar, the trial court did not comply with the procedure under the Revised Rules of
Court. Indeed, the trial court did not even observe the requirements of the summary judicial
proceedings under the Family Code. Thus, the trial court did not serve notice of the petition to
the incapacitated spouse; it did not require him to show cause why the petition should not be
granted.
Hence, we agree with the Court of Appeals that absent an opportunity to be heard, the decision
rendered by the trial court is void for lack of due process. The doctrine consistently adhered to by
this Court is that a denial of due process suffices to cast on the official act taken by whatever
branch of the government the impress of nullity.11 A decision rendered without due process is
void ab initio and may be attacked directly or collaterally.12 A decision is void for lack of due
process if, as a result, a party is deprived of the oppor________________

9 Petition, Annexes J and K, medical certificates, Rollo, pp. 145-146.

10 Article 61, Family Code.
11 DBP v. Bautista, 135 Phil. 201, 205-206; 26 SCRA 366, 371 [1968].
12 David v. Aquilizan, 94 SCRA 707, 714 [1979].
255

VOL. 346, NOVEMBER 29, 2000

255
Uy vs. Court of Appeals
tunity of being heard.13 A void decision may be assailed or impugned at any time either
directly or collaterally, by means of a separate action, or by resisting such decision in any action
or proceeding where it is invoked.14

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G.R. SP No.
26936, in toto.
Costs against petitioners.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno, Kapunan and Ynares-Santiago, JJ., concur.
Judgment affirmed in toto.
Notes.A judicial guardian is clothed with authority to withdraw the wards earlier express
permission given to third persons to occupy a certain property. (Caiza vs. Court of Appeals, 268
SCRA 640 [1997])
Under the jurisprudence prevailing before the new Civil Code, the rule was that while parents
may be the guardians of their minor children, such guardianship did not extend to the property of
their minor childrenparents then had no power to dispose of the property of their minor
children without court authorization. (Villanueva-Mijares vs. Court of Appeals, 330 SCRA 349
[2000]) [Uy vs. Court of Appeals, 346 SCRA 246(2000)]

G.R. No. 169217. August 7, 2009.*

CECILIO C. HERNANDEZ, MA. VICTORIA C. HERNANDEZ-SAGUN and TERESA C.
HERNANDEZ-VILLA ABRILLE, petitioners, vs. JOVITA SAN JUAN-SANTOS,2 respondent.
Guardianship; Insanity; Witnesses; An ordinary witness may give his opinion on the mental
sanity of a person with whom he is sufficiently acquainted.Under Section 50, Rule 103 of the
Rules of Court, an ordinary witness may give his opinion on the mental sanity of a person with
whom he is sufficiently acquainted. Lulus attending physicians spoke and interacted with her.
Such occasions allowed them to thoroughly observe her behavior and conclude that her
intelligence level was below average and her mental stage below normal. Their opinions were
admissible in evidence.
_______________

* FIRST DIVISION.
1 Ma. Teresa Hernandez-Villa Abrille in some parts of the records.
2 The Court of Appeals was impleaded as respondent but was excluded as party in these cases
pursuant to Section 4, Rule 45 of the Rules of Court.

465

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465
Hernandez vs. SanJuan-Santos
Same; Same; Same; 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.Where the sanity of a person is at issue, expert opinion is not necessary. The
observations of the trial judge coupled with evidence establishing the persons state of mental
sanity will suffice. Here, the trial judge was given ample opportunity to observe Lulu personally
when she testified before the RTC. Under Section 2, Rule 92 of the Rules of Court, persons who,
though of sound mind but by reason of age, disease, weak mind or other similar causes are
incapable of taking care of themselves and their property without outside aid, are considered as
incompetents who may properly be placed under guardianship. The RTC and the CA both found
that Lulu was incapable of taking care of herself and her properties without outside aid due to her
ailments and weak mind. Thus, since determining whether or not Lulu is in fact an incompetent
would require a reexamination of the evidence presented in the courts a quo, it undoubtedly
involves questions of fact.
Same; Habeas Corpus; A writ of habeas corpus extends to all cases of illegal confinement or
detention or by which the rightful custody of person is withheld from the one entitled thereto.
Inasmuch as respondents appointment as the judicial guardian of Lulu was proper, the issuance
of a writ of habeas corpus in her favor was also in order. A writ of habeas corpus extends to all
cases of illegal confinement or detention or by which the rightful custody of person is withheld
from the one entitled thereto. Respondent, as the judicial guardian of Lulu, was duty-bound to
care for and protect her ward. For her to perform her obligation, respondent must have custody of
Lulu. Thus, she was entitled to a writ of habeas corpus after she was unduly deprived of the
custody of her ward.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Soo, Gutierrez, Leogardo & Lee for petitioners in G.R. No. 169217.
466

466
SUPREME COURT REPORTS ANNOTATED
Hernandez vs. SanJuan-Santos
Gutierrez, Nitura, Zulueta Law Offices for petitioners in G.R. No. 166470.
E.G. Ferry Law Offices for respondent.
CORONA, J.:
Maria Lourdes San Juan Hernandez (or Lulu) was born on February 14, 1947 to the spouses
Felix Hernandez and Maria San Juan Hernandez. Unfortunately, the latter died due to
complications during childbirth. After Marias death, Felix left Lulu in the care of her maternal
uncle, Sotero C. San Juan.
On December 16, 1951, Felix married Natividad Cruz. The union produced three children,
petitioners Cecilio C. Hernandez, Ma. Victoria C. Hernandez-Sagun and Teresa C. HernandezVilla Abrille.
Meanwhile, as the only child of Maria and the sole testate heir of Sotero, Lulu inherited valuable
real properties from the San Juan family (conservatively estimated at P50 million in 1997).
Sometime in 1957, Lulu went to live with her father and his new family. She was then 10 years
old and studying at La Consolacion College. However, due to her violent personality, Lulu
stopped schooling when she reached Grade 5.
In 1968, upon reaching the age of majority, Lulu was given full control of her estate.3
Nevertheless, because Lulu did not even finish her elementary education, Felix continued to
exercise actual administration of Lulus properties. Upon Felixs death in 1993, petitioners took
over the task of administering Lulus properties.
_______________

3 Order dated July 31, 1968 in SP No. 1127 penned by Judge Andres Reyes of the Court of First
Instance of Pasig, Rizal, Branch VI. Rollo (G.R. No. 166470), p. 128.
467

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467

Hernandez vs. SanJuan-Santos

During the period of their informal administration (from 1968 until 1993), Felix and petitioners
undertook various projects involving Lulus real properties. In 1974, Felix allegedly purchased
one of Lulus properties for an undisclosed amount to develop the Marilou Subdivision.4 In
1995, Ma. Victoria informed Lulu that her 11-hectare Montalban, Rizal property5 was under
litigation. Thus, Lulu signed a special power of attorney6 (SPA) believing that she was
authorizing Ma. Victoria to appear in court on her behalf when she was in fact unknowingly
authorizing her half-sister to sell the said property to the Manila Electric Company for
P18,206,400.7 Thereafter, Cecilio asked Lulu to authorize him to lease her 45-hectare property
in Montalban, Rizal to Oxford Concrete Aggregates for P58,500 per month so that she could
have a car and driver at her disposal.
In September 1998, Lulu sought the assistance of her maternal first cousin, respondent Jovita San
Juan-Santos, after learning that petitioners had been dissipating her estate. She confided to Jovita
that she was made to live in the basement of petitioners Montalban, Rizal home and was
receiving a measly daily allowance of P400 for her food and medication.
Respondent was appalled as Lulu was severely overweight, unkempt and smelled of urine. She
later found out that Lulu was occupying a cramped room lit by a single fluorescent lamp without
running water. Since she had not been given a proper toilet, Lulu urinated and defecated in the
garden. Due to Lulus poor hygiene, respondent brought her to several physicians for medical
examination. Lulu was found to be afflicted with tuberculosis, rheumatism and diabetes from
which she was suffering several complications.8
_______________

4 Referred to as Marylou Subdivision or Marilou Village Subdivision in some parts of the

records.
5 Covered by TCT No. 248784. Rollo (G.R. No. 166470), p. 109.
6 Id., pp. 110-111.
7 Deed of Sale. Id., pp. 112-115.
8 Medical report dated September 18, 1998. Id., pp. 118-121.
468

468

SUPREME COURT REPORTS ANNOTATED

Hernandez vs. SanJuan-Santos
Thereafter, the San Juan family demanded an inventory and accounting of Lulus estate from
petitioners.9 However, the demand was ignored.
On October 2, 1998, respondent filed a petition for guardianship10 in the Regional Trial Court
(RTC) of San Mateo, Rizal, Branch 76. She alleged that Lulu was incapable of taking care of
herself and managing her estate because she was of weak mind.
Subsequently, petitioners moved to intervene in the proceedings to oppose the same.
Natividad denied that Marilou Subdivision belonged to Lulu. Since she and her late husband
were the registered owners of the said property, it was allegedly part of their conjugal
partnership.
Cecilio, Teresa and Ma. Victoria, for their part, claimed that the issue of Lulus competency had
been settled in 1968 (upon her emancipation) when the court ordered her legal guardian and
maternal uncle, Ciriaco San Juan, to deliver the properties for her to manage.
They likewise asserted that Lulu was literate and, for that reason, aware of the consequences of
executing an SPA. Furthermore, whether or not Cecilio and Ma. Victoria acted within the scope
of their respective authorities could not be determined in a guardianship proceeding, such matter
being the proper subject of an ordinary civil action.
Petitioners also admitted that the property developed into the Marilou Subdivision was among
those parcels of land Lulu inherited from the San Juan family. However, because the sale
between Felix and Lulu had taken place in 1974, questions regarding its legality were already
barred by the statute of limitations. Thus, its validity could no longer be impugned, or so they
claimed.
_______________

9 Letter dated September 20, 1998. Id., pp. 116-117.

10 Docketed as Sp. Proc. No. 250. Id., pp. 99-102.
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469
Hernandez vs. SanJuan-Santos
During the hearing, Lulu was presented and asked to testify on her genealogy and experiences
with the San Juan and Hernandez families. Lulu identified and described her parents, stepmother,
half-siblings and maternal relatives. She claimed inheriting tracts of land from the San Juan
family. However, these properties were dissipated by the Hernandez family as they lived a
luxurious lifestyle. When asked to explain this allegation, Lulu said that her stepmother and
half-siblings rode in cars while she was made to ride a tricycle.
Medical specialists testified to explain the results of Lulus examinations which revealed the
alarming state of her health.11 Not only was Lulu severely afflicted with diabetes mellitus and
suffering from its complications,12 she also had an existing artheroselorotic cardiovascular
disease (which was aggravated by her obesity). Furthermore, they unanimously opined that in
view of Lulus intelligence level (which was below average) and fragile mental state, she would
not be able to care for herself and self-administer her medications.
In a decision dated September 25, 2001,13 the RTC concluded that, due to her weak physical and
mental condition, there was a need to appoint a legal guardian over the person and property of
Lulu. Thus, it declared Lulu an incompetent and appointed respondent as guardian over the
person and property of Lulu on a P1 million bond.
Petitioners moved for reconsideration asserting that the P1 million bond was grossly insufficient
to secure Lulus P50_______________

11 Lulu was examined by cardiologist-internist Perfecto Palafox, diabetologist-internist Rosa

Allyn Sy and general practitioner Eliza Mei Perez. Surgeon Jacinto Bautista removed a mass
from Lulus ear lobe and skin.
12 Lulu was nearly blind due to cataract and suspected to have gallstones in her kidneys.
13 Penned by Judge Jose C. Reyes, Jr. Rollo, pp. 87-98.
470

470
SUPREME COURT REPORTS ANNOTATED

Hernandez vs. SanJuan-Santos

million estate against fraudulent loss or dissipation.14 The motion, however, was denied.15
On July 2, 2002, petitioners appealed the September 25, 2001 decision of the RTC to the Court
of Appeals (CA).16 The appeal was docketed as CA-G.R. CV No. 75760.
On December 29, 2004, the CA issued a decision affirming the September 25, 2001 decision of
the RTC (in the petition for guardianship) in toto.17 It held that respondent presented sufficient
evidence to prove that Lulu, because of her illnesses and low educational attainment, needed
assistance in taking care of herself and managing her affairs considering the extent of her estate.
With regard to the respondents appointment as the legal guardian, the CA found that, since Lulu
did not trust petitioners, none of them was qualified to be her legal guardian. Because
guardianship was a trust relationship, the RTC was bound to appoint someone Lulu clearly
trusted.
Petitioners now assail the December 29, 2004 decision of the CA in this Court in a petition for
review on certiorari docketed as G.R. No. 166470.18
Meanwhile, Lulu moved into 8 R. Santos St., Marikina City (Marikina apartment) and was
provided with two housemaids tasked to care for her. Sometime in November 2003, Lulu was
abducted from her Marikina apartment. Jovita immediately sought the assistance of the Police
Anti-Crime Emergency Response (PACER) division of the Philippine National Police.
_______________

14 Id., pp. 143-147.

15 Order dated April 26, 2002. Id., pp. 154-155.
16 Docketed as CA-G.R. CV No. 75760.
17 Penned by Associate Justice Delilah Vidallon-Magtolis (retired) and concurred in by
Associate Justices Eliezer R. de los Santos (retired) and Monina Arevalo-Zearosa of the Special
Fourth Division of the Court of Appeals. Dated December 29, 2004. Rollo (G.R. No. 166470),
pp. 61-86.
18 Under Rule 45 of the Rules of Court.

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471
Hernandez vs. SanJuan-Santos
The PACER subsequently discovered that petitioners were keeping Lulu somewhere in
Rodriguez, Rizal. Despite their initial hostility to the investigation, Ma. Victoria and Cecilio
subsequently contacted the PACER to inform them that Lulu voluntarily left with Natividad
because her guardian had allegedly been maltreating her.19
On December 15, 2003, respondent filed a petition for habeas corpus20 in the CA alleging that
petitioners abducted Lulu and were holding her captive in an undisclosed location in Rodriguez,
Rizal.
On April 26, 2005, the CA granted the petition for habeas corpus, ruling that Jovita, as her legal
guardian, was entitled to her custody. 21
Petitioners moved for the reconsideration of the said decision but it was denied in a resolution
dated July 12, 2005.22 Aggrieved, they filed this petition for review on certiorari docketed as
G.R. No. 169217. This was consolidated with G.R. No. 166470.
The basic issue in petitions of this nature is whether the person is an incompetent who requires
the appointment of a judicial guardian over her person and property.
Petitioners claim that the opinions of Lulus attending physicians23 regarding her mental state
were inadmissible in evidence as they were not experts in psychiatry. Respondent therefore
failed to prove that Lulus illnesses rendered her an incompetent. She should have been
presumed to be of sound mind and/or in full possession of her mental capacity. For this
_______________

19 Signed by Police Superintendent Nicolas M. Gregorio. Rollo (G.R. No. 169217), pp. 81-82.
20 Id., pp. 58-63.
21 Penned by Associate Justice Amelita G. Tolentino and concurred in by Associate Justices
Roberto A. Barrios and Vicente S.E. Veloso of the Ninth Division of the Court of Appeals. Id.,
pp. 39-54.
22 Id., pp. 56-57.
23 Supra note 11.

472

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SUPREME COURT REPORTS ANNOTATED
Hernandez vs. SanJuan-Santos
reason, Lulu should be allowed to live with them since under Articles 194 to 196 of the Family
Code,24 legitimate brothers and sisters, whether half-blood or full-blood are required to support
each other fully.
Respondent, on the other hand, reiterated her arguments before the courts a quo. She disclosed
that Lulu had been confined in Recovery.com, a psychosocial rehabilitation center and
convalescent home care facility in Quezon City, since 2004 due to violent and destructive
behavior. She also had delusions of being physically and sexually abused by Boy
_______________

24 Family Code, Arts. 194, 195 and 196 provide:

Article 194. Support compromises everything indispensable for sustenance, dwelling,
clothing, medical attendance, education and transportation, in keeping with the financial capacity
of the family.
The education of the person entitled to be supported referred to in the preceding paragraph shall
include his schooling or training for some profession, trade or vocation, even beyond the age of
majority. Transportation shall include expenses in going to and from school, or to and from place
of work.
Article 195. Subject to the provisions of the succeeding articles, the following are obliged to
support each other to the whole extent set forth in the preceding article:
1.

The spouses;

2.

Legitimate ascendants and descendants;

3.

Parents and their legitimate children and the legitimate and illegitimate children of the latter;

4. Parents and their illegitimate children and the legitimate and illegitimate children of the
latter; and
5.

Legitimate brothers and sisters, whether of full or half-blood.

Article 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are
likewise bound to support each other to the full extent set forth in Article 194, except only when
the need for support of the brother or sister, being of age, is due to a cause imputable to the
claimants fault or negligence.
473

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473
Hernandez vs. SanJuan-Santos
Negro and imaginary pets she called Michael and Madonna.25 The November 21, 2005
medical report26 stated Lulu had unspecified mental retardation with psychosis but claimed
significant improvements in her behavior.
We find the petition to be without merit.
Under Section 50, Rule 103 of the Rules of Court, an ordinary witness may give his opinion on
the mental sanity of a person with whom he is sufficiently acquainted.27 Lulus attending
physicians spoke and interacted with her. Such occasions allowed them to thoroughly observe
her behavior and conclude that her intelligence level was below average and her mental stage
below normal. Their opinions were admissible in evidence.
Furthermore, where the sanity of a person is at issue, expert opinion is not necessary.28 The
observations of the trial
_______________

25 Report [the Court of Appeals] on the Condition of the Ward, Ma. Lourdes S.J. Fernandez,
Annex A. Rollo (G.R. No. 166470), pp. 248-249.
26 Prepared by attending physician Edison C. Galindez, pp. 250-254.
27 Section 50, Rule 130, Rules of Court, provides:
Section 50. Opinion of an Ordinary Witness.The opinion of a witness for which proper basis
is given shall be received in evidence regarding
(a) The identity of a person about whom he has adequate knowledge;
(b) A handwriting with which he has sufficient familiarity; and

(c) The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impression of the emotion, behavior, condition or appearance
of a person. (emphasis supplied)
28 People v. Bacaling, 447 Phil. 197, 204; 399 SCRA 117, 123 (2003). (citations omitted)
474

474
SUPREME COURT REPORTS ANNOTATED
Hernandez vs. SanJuan-Santos
judge coupled with evidence29 establishing the persons state of mental sanity will suffice.30
Here, the trial judge was given ample opportunity to observe Lulu personally when she testified
before the RTC.
Under Section 2, Rule 92 of the Rules of Court,31 persons who, though of sound mind but by
reason of age, disease, weak mind or other similar causes are incapable of taking care of
themselves and their property without outside aid, are considered as incompetents who may
properly be placed under guardianship. The RTC and the CA both found that Lulu was incapable
of taking care of herself and her properties without outside aid due to her ailments and weak
mind. Thus, since determining whether or not Lulu is in fact an incompetent would require a
reexamination of the evidence presented in the courts a quo, it undoubtedly involves questions of
fact.
As a general rule, this Court only resolves questions of law in a petition for review. We only take
cognizance of questions of fact in exceptional circumstances, none of which is present
_______________

29 The opinions of Lulus attending physicians have been verified by the 2001 medical report of
Recovery.com which diagnosed Lulus condition as unspecified mental retardation with
psychoses.
30 People v. Bacaling, supra note 28.
31 Section 2, Rule 92, Rules of Court, provides:

Section 2. Meaning of 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.
475

VOL. 595, AUGUST 7, 2009

475
Hernandez vs. SanJuan-Santos
in this case.32 We thus adopt the factual findings of the RTC as affirmed by the CA.
Similarly, we see no compelling reason to reverse the trial and appellate courts finding as to the
propriety of respondents appointment as the judicial guardian of Lulu.33 We therefore affirm
her appointment as such. Consequently, respondent is tasked to care for and take full custody of
Lulu, and manage her estate as well.34
Inasmuch as respondents appointment as the judicial guardian of Lulu was proper, the issuance
of a writ of habeas corpus in her favor was also in order.
A writ of habeas corpus extends to all cases of illegal confinement or detention or by which the
rightful custody of person is withheld from the one entitled thereto.35 Respondent, as the judicial
guardian of Lulu, was duty-bound to care for and protect her ward. For her to perform her
obligation, respondent must have custody of Lulu. Thus, she was entitled to a writ of habeas
corpus after she was unduly deprived of the custody of her ward.36
_______________

32 Goyena v. Ledesma-Gustilo, 443 Phil. 150, 158-160; 395 SCRA 117, 122-123 (2003).
(citations omitted)
33 See Rules of Court, Rule 93 for the qualifications of a judicial guardian.
34 Section 1, Rule 96, Rules of Court, provides:

Section 1. To what guardianship shall extend.A guardian appointed shall have care and
custody of the person of his ward, and the management of his estate, or the management of his
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. (emphasis
supplied)
35 Ilusorio v. Bildner, 387 Phil. 915, 922; 332 SCRA 169, 175 (2000).
36 See Tijing v. Court of Appeals, 406 Phil. 449; 354 SCRA 17 (2001).
WHEREFORE, the petitions are hereby DENIED.
Petitioners are furthermore ordered to render to respondent, Lulus legal guardian, an accurate
and faithful accounting of all the properties and funds they unlawfully appropriated for
themselves from the estate of Maria Lourdes San Juan Hernandez, within thirty (30) days from
receipt of this decision. If warranted, the proper complaints should also be filed against them for
any criminal liability in connection with the dissipation of Maria Lourdes San Juan Hernandezs
estate and her unlawful abduction from the custody of her legal guardian.
Treble costs against petitioners.
SO ORDERED.
Puno (C.J., Chairperson), Carpio, Leonardo-De Castro and Bersamin, JJ., concur.
Petition denied. [Hernandez vs. SanJuan-Santos, 595 SCRA 464(2009)]

G.R. No. 132223. June 19, 2001.*

BONIFACIA P. VANCIL, petitioner, vs. HELEN G. BELMES, respondent.
Civil Law; Guardianship; Respondent, being the natural mother of the minor, has the preferential
right over that of petitioner to be his guardian.We agree with the ruling of the Court of
Appeals that respondent, being the natural mother of the minor, has the preferential right over
that of petitioner to be his guardian. This ruling finds support in Article 211 of the Family Code
which provides: Art. 211. The father and the mother shall jointly exercise parental authority
over the persons of their common children. In case of disagreement, the fathers decision shall
prevail, unless there is a judicial order to the contrary, x x x.
________________

25 People vs. Pugong, G.R. No. 119013, March 6, 1998, 287 SCRA 158.
* THIRD DIVISION.
708

708
SUPREME COURT REPORTS ANNOTATED
Vancil vs. Belmes
Same; Same; Petitioner, as the surviving grandparent, can exercise substitute parental authority
only in case of death, absence or unsuitability of respondent.Petitioner, as the surviving
grandparent, can exercise substitute parental authority only in case of death, absence or
unsuitability of respondent. Considering that respondent is very much alive and has exercised
continuously parental authority over Vincent, petitioner has to prove, in asserting her right to be
the minors guardian, respondents unsuitability. Petitioner, however, has not proffered
convincing evidence showing that respondent is not suited to be the guardian of Vincent.
Same; Same; Courts should not appoint persons as guardians who are not within the jurisdiction
of our courts.Significantly, this Court has held that courts should not appoint persons as
guardians who are not within the jurisdiction of our courts for they will find it difficult to protect
the wards.
VITUG, J., Concurring Opinion:

Civil Law; Guardianship; Parents are placed first in rank in matters of parental authority.There
is in law and jurisprudence a recognition, of the deep ties that bind parent and child. Parents are
thus placed first in rank in matters of parental authority. Substitute parental authority may be
exercised by the grandparents only in case the parents have died or are absent or declared unfit in
proper proceedings for that purpose. Parental authority stands to include the right and duty to the
custody of the child, excepting only, of course, what might otherwise be best for the childs
welfare.
Same; Same; The childs illegitimacy does not in any way affect the order of priority in the
exercise of parental authority.When the law speaks of family relations, it must be deemed to
refer, unless the contrary is there indicated or the context of the law otherwise clearly conveys, to
both legitimate and illegitimate ties. The childs illegitimacy does not in any way affect the order
of priority in the exercise of parental authority. Indeed, Article 176 of the Family Code states that

an illegitimate child shall be under the parental authority of the mother who, consequentially,
should also be entitled to the custody of the child.
PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

709

VOL. 358, JUNE 19, 2001

709
Vancil vs. Belmes
Democrito C. Barcenas for petitioner.
Manuel P. Legaspi for respondent.
SANDOVAL-GUTIERREZ, J.:

Petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. CV No.
45650, In the Matter of Guardianship of Minors Valerie Vancil and Vincent VancilBonifacia
P. Vancil, Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant, promulgated on July
29, 1997, and its Resolution dated December 18, 1997 denying the motion for reconsideration of
the said Decision.
The facts of the case as summarized by the Court of Appeals in its Decision are:
Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy serviceman of the
United States of America who died in the said country on December 22, 1986. During his
lifetime, Reeder had two (2) children named Valerie and Vincent by his common-law wife,
Helen G. Belmes.
Sometime in May of 1987, Bonifacia Vancil commenced before the Regional Trial Court of
Cebu City a guardianship proceedings over the persons and properties of minors Valerie and
Vincent docketed as Special Proceedings No. 1618-CEB. At the time, Valerie was only 6 years
old while Vincent was a 2-year old child. It is claimed in the petition that the minors are
residents of Cebu City, Philippines and have an estate consisting of proceeds from their fathers
death pension benefits with a probable value of P100,000.00.

Finding sufficiency in form and in substance, the case was set for hearing after a 3-consecutiveweekly publications with the Sunstar Daily. On July 15, 1987, petitioner, Bonifacia Vancil was
appointed legal and judicial guardian over the persons and estate of Valerie Vancil and Vincent
Vancil, Jr.
On August 13, 1987, the natural mother of the minors, Helen Belmes, submitted an opposition
to the subject guardianship proceedings asseverating that she had already filed a similar petition
for guardianship under Special Proceedings No. 2819 before the Regional Trial Court of
Pagadian City.
710

710
SUPREME COURT REPORTS ANNOTATED
Vancil vs. Belmes
Thereafter, on June 21, 1988, Helen Belmes followed her opposition with a motion for the
Removal of Guardian and Appointment of a New One, asserting that she is the natural mother in
actual custody of and exercising parental authority over the subject minors at Maralag,
Dumingag, Zamboanga del Sur where they are permanently residing; that the petition was filed
under an improper venue; and that at the time the petition was filed Bonifacia Vancil was a
resident of 140 Hurliman Court, Canon City, Colorado, U.S.A. being a naturalized American
citizen.
On October 12, 1988, after due proceedings, the trial court rejected and denied Belmes motion
to remove and/or to disqualify Bonifacia as guardian of Valerie and Vincent, Jr. and instead
ordered petitioner Bonifacia Vancil to enter the office and perform her duties as such guardian
upon the posting of a bond of P50,000.00. The subsequent attempt for a reconsideration was
likewise dismissed in an Order dated November 24, 1988.1
On appeal, the Court of Appeals rendered its assailed Decision reversing the RTC order of
October 12, 1988 and dismissing Special Proceedings No. 1618-CEB.
The Court of Appeals held:
Stress should likewise be made that our Civil Code considers parents, the father, or in the
absence, the mother, as natural guardian of her minor children. The law on parental authority
under the Civil Code or P.D. 603 and now the New Family Code, (Article 225 of the Family
Code) ascribe to the same legal pronouncements. Section 7 of Rule 93 of the Revised Rules of
Court confirms the designation of the parents as ipso facto guardian of their minor children
without need of a court appointment and only for good reason may another person be named.

Ironically, for the petitioner, there is nothing on record of any reason at all why Helen Belmes,
the biological mother, should be deprived of her legal rights as natural guardian of her minor
children. To give away such privilege from Helen would be an abdication and grave violation of
the very basic fundamental tenets in civil law and the constitution on family solidarity.2
On March 10, 1998, Bonifacia Vancil filed with this Court the present petition, raising the
following legal points:
______________

1 Rollo, pp. 43-44.

2 Rollo, p. 47.
711

VOL. 358, JUNE 19, 2001

711
Vancil vs. Belmes
1. The Court of Appeals gravely erred in ruling that the preferential right of a parent to be
appointed guardian over the persons and estate of the minors is absolute, contrary to existing
jurisprudence.
2. The Court of Appeals gravely erred in ruling that Oppositor Helen G. Belmes, the biological
mother, should be appointed the guardian of the minors despite the undisputed proof that under
her custody, her daughter minor Valerie Vancil was raped seven times by Oppositors livein
partner.
3. The respondent (sic) Court of Appeals gravely erred when it disqualified petitioner Bonifacia
P. Vancil to be appointed as judicial guardian over the persons and estate of subject minors
despite the fact that she has all the qualifications and none of the disqualifications as judicial
guardian, merely on the basis of her U.S. citizenship which is clearly not a statutory requirement
to become guardian.
At the outset, let it be stressed that in her Manifestation/ Motion, dated September 15, 1998,
respondent Helen Belmes stated that her daughter Valerie turned eighteen on September 2, 1998
as shown by her Birth Certificate.3 Respondent thus prayed that this case be dismissed with
respect to Valerie, she being no longer a proper subject of guardianship proceedings. The said
Manifestation/Motion was noted by this Court in its Resolution dated November 11, 1998.

Considering that Valerie is already of major age, this petition has become moot with respect to
her. Thus, only the first and third legal points raised by petitioner should be resolved.
The basic issue for our resolution is who between the mother and grandmother of minor Vincent
should be his guardian.
We agree with the ruling of the Court of Appeals that respondent, being the natural mother of the
minor, has the preferential right over that of petitioner to be his guardian. This ruling finds
support in Article 211 of the Family Code which provides:
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of
their common children. In case of disagreement, the fathers decision shall prevail, unless there
is a judicial order to the contrary, x x x.
_________________

3 Rollo, p. 127.
712

712
SUPREME COURT REPORTS ANNOTATED
Vancil vs. Belmes
Indeed, being the natural mother of minor Vincent, respondent has the corresponding natural and
legal right to his custody. In Sagala-Eslao vs. Court of Appeals,4 this Court held:
Of considerable importance is the rule long accepted by the courts that the right of parents to
the custody of their minor children is one of the natural rights incident to parenthood, a right
supported by law and sound public policy. The right is an inherent one, which is not created by
the state or decisions of the courts, but derives from the nature of the parental relationship.
Petitioner contends that she is more qualified as guardian of Vincent.
Petitioners claim to be the guardian of said minor can only be realized by way of substitute
parental authority pursuant to Article 214 of the Family Code, thus:
Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority
shall be exercised by the surviving grandparent, x x x.
In Santos, Sr. vs. Court of Appeals,5 this Court ruled:

The law vests on the father and mother joint parental authority over the persons of their
common children. In case of absence or death of either parent, the parent present shall continue
exercising parental authority. Only in case of the parents death, absence or unsuitability may
substitute parental authority be exercised by the surviving grandparent.
Petitioner, as the surviving grandparent, can exercise substitute parental authority only in case of
death, absence or unsuitability of respondent. Considering that respondent is very much alive and
has exercised continuously parental authority over Vincent, petitioner has to prove, in asserting
her right to be the minors guardian, respondents unsuitability. Petitioner, however, has not
proffered convincing evidence showing that respondent is not suited to be the guardian of
Vincent. Petitioner merely insists that respon_________________

4 266 SCRA 317 (1997).

5 242 SCRA 407 (1995).
713

VOL. 358, JUNE 19, 2001

713
Vancil vs. Belmes
dent is morally unfit as guardian of Valerie considering that her (respondents) live-in partner
raped Valerie several times. But Valerie, being now of major age, is no longer a subject of this
guardianship proceeding.
Even assuming that respondent is unfit as guardian of minor Vincent, still petitioner cannot
qualify as a substitute guardian. It bears stressing that she is an American citizen and a resident
of Colorado. Obviously, she will not be able to perform the responsibilities and obligations
required of a guardian. In fact, in her petition, she admitted the difficulty of discharging the
duties of a guardian by an expatriate, like her. To be sure, she will merely delegate those duties
to someone else who may not also qualify as a guardian.
Moreover, we observe that respondents allegation that petitioner has not set foot in the
Philippines since 1987 has not been controverted by her. Besides, petitioners old age and her
conviction of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal Case No. CBU168846 filed by one Danilo R. Deen, will give her a second thought of staying here. Indeed, her

coming back to this country just to fulfill the duties of a guardian to Vincent for only two years is
not certain.
Significantly, this Court has held that courts should not appoint persons as guardians who are not
within the jurisdiction of our courts for they will find it difficult to protect the wards. In Guerrero
vs. Teran,7 this Court held:
Doa Maria Muoz y Gomez was, as above indicated, removed upon the theory that her
appointment was void because she did not reside in the Philippine Islands. There is nothing in
the law which requires the courts to appoint residents only as administrators or guardians.
However, notwithstanding the fact that there are no statutory requirements upon this question,
the courts, charged with the responsibilities of protecting the estates of deceased persons, wards
of the estate, etc., will find much
_________________

6 Sentenced to suffer the penalty of imprisonment from 4 months and 1 day of prision
correccional as maximum and a fine of P3,000.00 with subsidiary imprisonment in case of
insolvency and to indemnify offended party in the sum of P200,000.00 as moral damages. See p.
118, Rollo.
7 13 Phils. 212, 217 (1909).
714

714
SUPREME COURT REPORTS ANNOTATED
Vancil vs. Belmes
difficulty in complying with this duty by appointing administrators and guardians who are not
personally subject to their jurisdiction. Notwithstanding that there is no statutory requirement,
the courts should not consent to the appointment of persons as administrators and guardians who
are not personally subject to the jurisdiction of our courts here.
WHEREFORE, the appealed Decision is hereby AFFIRMED, with modification in the sense that
Valerie, who has attained the age of majority, will no longer be under the guardianship of
respondent Helen Belmes.
Costs against petitioner.

SO ORDERED.
Melo (Chairman), Panganiban and Gonzaga-Reyes, JJ., concur.
Vitug, J., Please see Concurring Opinion.
CONCURRING OPINION
VITUG, J.:

I share the opinion very well expressed by Madame Justice Angelina Sandoval-Gutierrez in her
ponencia.
There is in law and jurisprudence a recognition of the deep ties that bind parent and child.
Parents are thus placed first in rank in matters of parental authority. Substitute parental authority
may be exercised by the grandparents only in case the parents have died or are absent or declared
unfit in proper proceedings for that purpose.1 Parental authority stands to include the right and
duty to the custody of the child, excepting only, of course, what might otherwise be best for the
childs welfare.
When the law speaks of family relations, it must be deemed to refer, unless the contrary is there
indicated or the context of the law otherwise clearly conveys, to both legitimate and illegitimate
ties. The childs illegitimacy does not in any way affect the order of priority in the exercise of
parental authority. Indeed, Article 176 of the Family Code states that an illegitimate child shall
be under the parental authority of the mother who, consequentially, should also be entitled to the
custody of the child.
Judgment affirmed with modification. [Vancil vs. Belmes, 358 SCRA 707(2001)]

G.R. No. 154994. June 28, 2005.*

JOYCELYN PABLO-GUALBERTO, petitioner, vs. CRISANTO RAFAELITO GUALBERTO
V, respondent.
G.R. No. 156254. June 28, 2005.*
CRISANTO RAFAELITO G. GUALBERTO V, petitioner, vs. COURT OF APPEALS; Hon.
HELEN B. RICAFORT, Presiding Judge, Regional Trial Court, Paraaque City, Branch 260;
and JOYCELYN D. PABLO-GUALBERTO, respondents.

Actions; Pleadings and Practice; Post Office; Registry Receipts; The date of filing may be shown
either by the post office stamp on the envelope or by the registry receipt.The records disclose
that Joycelyn received the CAs August 30, 2002 Decision on September 9,
_______________

* THIRD DIVISION.
451

VOL. 461, JUNE 28, 2005

451
Pablo-Gualberto vs. Gualberto V
2002. On September 17, she filed before this Court a Motion for a 30-day extension of time to
file a petition for review on certiorari. This Motion was granted, and the deadline was thus
extended until October 24, 2002. A further perusal of the records reveals that copies of the
Petition were sent to this Court and to the parties by registered mail at the Bian, Laguna Post
Office on October 24, 2002. This is the date clearly stamped on the face of the envelope and
attested to in the Affidavit of Service accompanying the Petition. Petitioner Joycelyn explained
that the filing and the service had been made by registered mail due to the volume of delivery
assignments and the lack of a regular messenger. The Petition is, therefore, considered to have
been filed on October 24, 2002, its mailing date as shown by the post office stamp on the
envelope. The last sentence of Section 3 of Rule 13 of the Rules provides that the date of filing
may be shown either by the post office stamp on the envelope or by the registry receipt. Proof of
its filing, on the other hand, is shown by the existence of the petition in the record, pursuant to
Section 12 of Rule 13.
Same; Same; Same; Same; The Registry Bill does not reflect the actual mailing dateit is the
postal Registration Book that shows the list of mail matters that have been registered for mailing
on a particular day, along with the names of the senders and the addressees.The postmaster
satisfactorily clarifies that Registry Bill No. 88, which shows the date November 2, 2002, merely
discloses when the mail matters received by the Bian Post Office on October 24, 2002, were
dispatched or sent to the Central Mail Exchange for distribution to their final destinations. The
Registry Bill does not reflect the actual mailing date. Instead, it is the postal Registration Book
that shows the list of mail matters that have been registered for mailing on a particular day, along
with the names of the senders and the addressees. That book shows that Registry Receipt Nos.

2832-A and 2832-B, pertaining to the mailed matters for the Supreme Court, were issued on
October 24, 2002.
Same; Certiorari; Words and Phrases; Grave abuse of discretion is committed when an act is 1)
done contrary to the Constitution, the law or jurisprudence, or 2) executed whimsically or
arbitrarily in a manner so patent and so gross as to amount to an evasion of a positive duty, or
to a virtual refusal to perform the duty enjoined.To begin with, grave abuse of discretion is
committed when an act is 1) done contrary to the Constitution, the law or jurisprudence; or 2)
452

452
SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
executed whimsically or arbitrarily in a manner so patent and so gross as to amount to an
evasion of a positive duty, or to a virtual refusal to perform the duty enjoined. What constitutes
grave abuse of discretion is such capricious and arbitrary exercise of judgment as that which is
equivalent, in the eyes of the law, to lack of jurisdiction.
Same; Same; There can be no question that a court of competent jurisdiction is vested with the
authority to resolve even unassigned issues.There can be no question that a court of competent
jurisdiction is vested with the authority to resolve even unassigned issues. It can do so when such
a step is indispensable or necessary to a just resolution of issues raised in a particular pleading or
when the unassigned issues are inextricably linked or germane to those that have been pleaded.
This truism applies with more force when the relief granted has been specifically prayed for, as
in this case.
Same; Same; Pleadings and Practice; Verifications; Under Rule 38 of the Rules of Court,
verification is required only when relief is sought from a final and executory Order.Joycelyns
Motion need not have been verified because of the provisional nature of the April 3, 2002 Order.
Under Rule 38 of the Rules of Court, verification is required only when relief is sought from a
final and executory Order. Accordingly, the court may set aside its own orders even without a
proper motion, whenever such action is warranted by the Rules and to prevent a miscarriage of
justice.
Same; Judgments; The requirement in Section 1 of Rule 36 (for judges to state clearly and
distinctly the reasons for their dispositions) refers only to decisions and final orders on the
merits, not to those resolving incidental matters.The requirement in Section 1 of Rule 36 (for
judges to state clearly and distinctly the reasons for their dispositions) refers only to decisions

and final orders on the merits, not to those resolving incidental matters. The provision reads:
SECTION 1. Rendition of judgments and final orders.A judgment or final order determining
the merits of the case shall be in writing personally and directly prepared by the judge, stating
clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the
clerk of court.
453

VOL. 461, JUNE 28, 2005

453
Pablo-Gualberto vs. Gualberto V
Parents and Children; Custody; The award of temporary custody is provisional and subject to
change as circumstances may warranteven the award of child custody after a judgment on a
marriage annulment is not permanent as it may be reexamined and adjusted if and when the
parent who was given custody becomes unfit.The award of temporary custody, as the term
implies, is provisional and subject to change as circumstances may warrant. In this connection,
there is no need for a lengthy discussion of the alleged finality of the April 3, 2002 RTC Order
granting Crisanto temporary custody of his son. For that matter, even the award of child custody
after a judgment on a marriage annulment is not permanent; it may be reexamined and adjusted if
and when the parent who was given custody becomes unfit.
Same; Same; The general rule that children under seven years of age shall not be separated from
their mother finds its raison dtre in the basic need of minor children for their mothers loving
care.The general rule that children under seven years of age shall not be separated from their
mother finds its raison dtre in the basic need of minor children for their mothers loving care.
In explaining the rationale for Article 363 of the Civil Code, the Code Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a mother has seen her baby
torn away from her. No man can sound the deep sorrows of a mother who is deprived of her
child of tender age. The exception allowed by the rule has to be for compelling reasons for the
good of the child: those cases must indeed be rare, if the mothers heart is not to be unduly hurt.
If she has erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce
decree will ordinarily be sufficient punishment for her. Moreover, her moral dereliction will not
have any effect upon the baby who is as yet unable to understand the situation.
Same; Same; Statutory Construction; The word shall in Article 213 of the Family Code and
Section 6 of Rule 99 of the Rules of Court has been held to connote a mandatory character.The
word shall in Article 213 of the Family Code and Section 6 of Rule 99 of the Rules of Court
has been held to connote a mandatory character. Article 213 and Rule 99 similarly contemplate a

situation in which the parents of the minor are married to each other, but are separated by virtue
of either a decree of legal separation or a de facto
454

454
SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
separation. In the present case, the parents are living separately as a matter of fact.
Same; Same; Convention on the Rights of the Child; The principle of best interest of the child
pervades Philippine cases involving adoption, guardianship, support, personal status, minors in
conflict with the law, and child custody.The Convention on the Rights of the Child provides
that [i]n all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration. The principle of best interest of the child pervades
Philippine cases involving adoption, guardianship, support, personal status, minors in conflict
with the law, and child custody. In these cases, it has long been recognized that in choosing the
parent to whom custody is given, the welfare of the minors should always be the paramount
consideration. Courts are mandated to take into account all relevant circumstances that would
have a bearing on the childrens well-being and development. Aside from the material resources
and the moral and social situations of each parent, other factors may also be considered to
ascertain which one has the capability to attend to the physical, educational, social and moral
welfare of the children. Among these factors are the previous care and devotion shown by each
of the parents; their religious background, moral uprightness, home environment and time
availability; as well as the childrens emotional and educational needs.
Same; Same; The so-called tender-age presumption under Rule 213 of the Family Code may
be overcome only by compelling evidence of the mothers unfitness.There is express statutory
recognition that, as a general rule, a mother is to be preferred in awarding custody of children
under the age of seven. The caveat in Article 213 of the Family Code cannot be ignored, except
when the court finds cause to order otherwise. The so-called tender-age presumption under
Article 213 of the Family Code may be overcome only by compelling evidence of the mothers
unfitness. The mother has been declared unsuitable to have custody of her children in one or
more of the following instances: neglect, abandonment, unemployment, immorality, habitual
drunkenness, drug addiction, maltreatment of the child, insanity or affliction with a
communicable disease.
455

VOL. 461, JUNE 28, 2005

455
Pablo-Gualberto vs. Gualberto V
Same; Same; Homosexuality; Sexual preference or moral laxity alone does not prove parental
neglect or incompetenceto deprive the wife of custody, the husband must clearly establish that
her moral lapses have had an adverse effect on the welfare of the child or have distracted the
offending spouse from exercising proper parental care.Crisanto cites immorality due to alleged
lesbian relations as the compelling reason to deprive Joycelyn of custody. It has indeed been held
that under certain circumstances, the mothers immoral conduct may constitute a compelling
reason to deprive her of custody. But sexual preference or moral laxity alone does not prove
parental neglect or incompetence. Not even the fact that a mother is a prostitute or has been
unfaithful to her husband would render her unfit to have custody of her minor child. To deprive
the wife of custody, the husband must clearly establish that her moral lapses have had an adverse
effect on the welfare of the child or have distracted the offending spouse from exercising proper
parental care.
Same; Same; Same; It is not enough for a father to show merely that a mother is a lesbianhe
must also demonstrate that she carried on her purported relationship with a person of the same
sex in the presence of their son or under circumstances not conducive to the childs proper moral
development.Based on the above jurisprudence, it is therefore not enough for Crisanto to show
merely that Joycelyn was a lesbian. He must also demonstrate that she carried on her purported
relationship with a person of the same sex in the presence of their son or under circumstances not
conducive to the childs proper moral development. Such a fact has not been shown here. There
is no evidence that the son was exposed to the mothers alleged sexual proclivities or that his
proper moral and psychological development suffered as a result.
Same; Same; Habeas Corpus; A writ of habeas corpus may be issued only when the rightful
custody of any person is withheld from the person entitled thereto.As we have ruled that
Joycelyn has the right to keep her minor son in her custody, the writ of habeas corpus and the
preliminary mandatory injunction prayed for by Crisanto have no leg to stand on. A writ of
habeas corpus may be issued only when the rightful custody of any person is withheld from the
person entitled thereto, a situation that does not apply here.
Same; Same; Preliminary Mandatory Injunctions; Unlike an ordinary preliminary injunction, the
writ of preliminary mandatory
456

456
SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
injunction is more cautiously regarded since the latter requires the performance of a particular act
that tends to go beyond the maintenance of the status quo.The ancillary remedy of preliminary
mandatory injunction cannot be granted, because Crisantos right to custody has not been proven
to be clear and unmistakable. Unlike an ordinary preliminary injunction, the writ of
preliminary mandatory injunction is more cautiously regarded, since the latter requires the
performance of a particular act that tends to go beyond the maintenance of the status quo.
Besides, such an injunction would serve no purpose, now that the case has been decided on its
merits.
PETITION for review on certiorari of a decision of the Court of Appeals and SPECIAL CIVIL
ACTION for certiorari in the Supreme Court.

The facts are stated in the opinion of the Court.

Miguel D. Larida and German A. Gineta for J.P. Gualberto.
Reynaldo B. Aralar & Associates for C.R. Gualberto V.
PANGANIBAN, J.:

When love is lost between spouses and the marriage inevitably results in separation, the bitterest
tussle is often over the custody of their children. The Court is now tasked to settle the opposing
claims of the parents for custody pendente lite of their child who is less than seven years of age.
There being no sufficient proof of any compelling reason to separate the minor from his mother,
custody should remain with her.
The Case
Before us are two consolidated petitions. The first is a Petition for Review 1 filed by Joycelyn
Pablo-Gualberto under Rule 45 of the Rules of Court, assailing the August 30, 2002 Deci_______________

1 G.R. No. 154994 Rollo, pp. 9-78.

457

VOL. 461, JUNE 28, 2005

457
Pablo-Gualberto vs. Gualberto V
sion2 of the Court of Appeals (CA) in CA-G.R. SP No. 70878. The assailed Decision disposed as
follows:
WHEREFORE, premises considered, the Petition for Certiorari is hereby GRANTED. The
assailed Order of May 17, 2002 is hereby SET ASIDE and ANNULLED. The custody of the
child is hereby ordered returned to [Crisanto Rafaelito G. Gualberto V].
The [respondent] court/Judge is hereby directed to consider, hear and resolve [petitioners]
motion to lift the award of custody pendente lite of the child to [respondent].3
The second is a Petition for Certiorari4 filed by Crisanto Rafaelito Gualberto V under Rule 65 of
the Rules of Court, charging the appellate court with grave abuse of discretion for denying his
Motion for Partial Reconsideration of the August 30, 2002 Decision. The denial was contained in
the CAs November 27, 2002 Resolution, which we quote:
We could not find any cogent reason why the [last part of the dispositive portion of our
Decision of August 30, 2002] should be deleted, hence, subject motion is hereby DENIED.5
The Facts
The CA narrated the antecedents as follows:
x x x [O]n March 12, 2002, [Crisanto Rafaelito G. Gualberto V] filed before [the Regional Trial
Court of Paraaque City] a petition for declaration of nullity of his marriage to x x x Joycelyn D.
Pablo Gualberto, with an ancillary prayer for custody pendente lite of their almost 4-year-old
son, minor Rafaello (the child, for brevity), whom [Joycelyn] allegedly took away with her from
the conjugal home and his school (Infant Toddlers Discovery Center in Paraaque City)
_______________

2 Id., pp. 80-86. Twelfth Division. Penned by Justice Edgardo F. Sundiam and concurred in by
Justices Portia Alio-Hormachuelos (Division chair) and Elvi John S. Asuncion (member).
3 Assailed CA Decision, p. 7; G.R. No. 154994; Rollo, p. 86.

4 G.R. No. 156254 Rollo, pp. 3-32.

5 Assailed CA Resolution, p. 1; G.R. No. 156254; Rollo, p. 34.
458

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SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
when [she] decided to abandon [Crisanto] sometime in early February 2002[.] x x x [O]n April 2,
2002, [RTC Judge Helen B. Ricafort] heard the ancillary prayer of [Crisanto] for custody
pendente lite. x x x [B]ecause [Joycelyn] allegedly failed to appear despite notice, [Crisanto], a
certain Col. Renato Santos, and Ms. Cherry Batistel, testified before the x x x Judge; x x x
documentary evidence [was] also presented[.] x x x [O]n April 3, 2002, x x x [the] Judge
awarded custody pendente lite of the child to [Crisanto.] [T]he Order partly read x x x:
x x x Crisanto Rafaelito Gualberto V testified. He stated that [Joycelyn] took their minor child
with her to Caminawit, San Jose, Occidental Mindoro. At that time, the minor was enrolled at
B.F. Homes, Paraaque City. Despite effort[s] exerted by him, he has failed to see his child.
[Joycelyn] and the child are at present staying with the formers step-father at the latters
[residence] at Caminawit, San Jose, Occidental Mindoro.
Renato Santos, President of United Security Logistic testified that he was commissioned by
[Crisanto] to conduct surveillance on [Joycelyn] and came up with the conclusion that [she] is
having lesbian relations with one Noreen Gay Cuidadano in Cebu City.
The findings of Renato Santos [were] corroborated by Cherry Batistel, a house helper of the
spouses who stated that [the mother] does not care for the child as she very often goes out of the
house and on one occasion, she saw [Joycelyn] slapping the child.
Art. 211 of the Family Code provides as follows:
The father and the mother shall jointly exercise parental authority over the persons of their
children. In the case of disagreement, the fathers decision shall prevail, unless there is a judicial
order to the contrary.
The authority of the father and mother over their children is exercised jointly. This recognition,
however, does not place her in exactly the same place as the father; her authority is subordinated
to that of the father.

In all controversies regarding the custody of minors, the sole and foremost consideration is the
physical, educational, social and moral welfare of the child, taking into account the
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459
Pablo-Gualberto vs. Gualberto V
respective resources and social and moral situations of the contending parties.
The Court believes that [Joycelyn] had no reason to take the child with her. Moreover, per
Sheriff returns, she is not with him at Caminawit, San Jose, Occidental Mindoro.
WHEREFORE, pendente lite, the Court hereby awards custody of the minor, Crisanto Rafaello
P. Gualberto X to his father, Crisanto Rafaelito G. Gualberto V.
x x x [O]n April 16, 2002, the hearing of [Joycelyns] motion to lift the award of custody
pendente lite of the child to [Crisanto] was set but the former did not allegedly present any
evidence to support her motion. However, on May 17, 2002, [the] Judge allegedly issued the
assailed Order reversing her Order of April 3, 2002 and this time awarding custody of the child
to [Joycelyn]. [T]he entire text of the Order [is] herein reproduced, to wit:
Submitted is [Crisantos] Motion to Resolve Prayer for Custody Pendente Lite and [Joycelyns]
Motion to Dismiss and the respective Oppositions thereto.
[Joycelyn], in her Motion to Dismiss, makes issue of the fact that the person referred to in the
caption of the Petition is one JOCELYN Pablo Gualberto and not Joycelyn Pablo Gualberto.
[Joycelyn] knows she is the person referred to in the Complaint. As a matter of fact, the body of
the Complaint states her name correct[ly]. The law is intended to facilitate and promote the
administration of justice, not to hinder or delay it. Litigation should be practicable and
convenient. The error in the name of Joycelyn does not involve public policy and has not
prejudiced [her].
This case was filed on March 12, 2002. Several attempts were made to serve summons on
[Joycelyn] as shown by the Sheriffs returns. It appears that on the 4th attempt on March 21,
2002, both Ma. Daisy and x x x Ronnie Nolasco, [Joycelyns mother and stepfather,
respectively,] read the contents of the documents presented after which they returned the same.
The Court believes that on that day, summons was duly served and this Court acquired
jurisdiction over [Joycelyn].

The filing of [Joycelyns annulment] case on March 26, 2002 was an after thought, perforce the
Motion to [D]ismiss should be denied.
460

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SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
The child subject of this Petition, Crisanto Rafaello P. Gualberto is barely four years old. Under
Article 213 of the Family Code, he shall not be separated from his mother unless the Court finds
compelling reasons to order otherwise. The Court finds the reason stated by [Crisanto] not [to] be
compelling reasons. The father should however be entitled to spend time with the minor. These
do not appear compelling reasons to deprive him of the company of his child.
When [Joycelyn] appeared before this Court, she stated that she has no objection to the father
visiting the child even everyday provided it is in Mindoro.
The Court hereby grants the mother, [Joycelyn], the custody of Crisanto Rafaello P. Gualberto,
with [the] right of [Crisanto] to have the child with him every other weekend.
WHEREFORE:
1. The [M]otion to Dismiss is hereby DENIED;
2. Custody pendente lite is hereby given to the mother Joycelyn Pablo Gualberto with the right of
the father, x x x [Crisanto], to have him every other week-end.
3. Parties are admonished not to use any other agencies of the government like the CIDG to
interfere in this case and to harass the parties. 6
In a Petition for Certiorari7 before the CA, Crisanto charged the Regional Trial Court (Branch
260) of Paraaque City with grave abuse of discretion for issuing its aforequoted May 17, 2002
Order. He alleged that this Order superseded, without any factual or legal basis, the still valid
and subsisting April 3, 2002 Order awarding him custody pendente lite of his minor son; and that
it violated Section 14 of Article VII of the 1987 Constitution.
_______________

6 CA Decision, pp. 1-4; G.R. No. 154994; Rollo, pp. 80-83. Citations omitted.

7 G.R. No. 154994 Rollo, pp. 88-118; G.R. No. 156254; Rollo, pp. 73-103.
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Ruling of the Court of Appeals
Partly in Crisantos favor, the CA ruled that grave abuse of discretion had been committed by the
trial court in reversing the latter courts previous Order dated April 3, 2002, by issuing the
assailed May 17, 2002 Order. The appellate court explained that the only incident to resolve was
Joycelyns Motion to Dismiss, not the issuance of the earlier Order. According to the CA, the
prior Order awarding provisional custody to the father should prevail, not only because it was
issued after a hearing, but also because the trial court did not resolve the correct incident in the
later Order.
Nonetheless, the CA stressed that the trial court judge was not precluded from considering and
resolving Joycelyns Motion to lift the award of custody pendente lite to Crisanto, as that Motion
had yet to be properly considered and ruled upon. However, it directed that the child be turned
over to him until the issue was resolved.
Hence, these Petitions.8
Issues
In G.R. No. 154994, Petitioner Joycelyn submits these issues for our consideration:
1. Whether or not the Respondent Court of Appeals, when it awarded the custody of the child to
the father, violated Art. 213 of
_______________

8 The two cases were consolidated on October 13, 2004. They were deemed submitted for
decision on June 14, 2004, upon the Courts receipt of Joycelyn Gualbertos Memorandum in
G.R. No. 156254, signed by Atty. German A. Gineta. Crisanto Gualberto Vs Memorandum,
signed by Atty. Reynaldo B. Aralar, was filed on June 4, 2004.

In G.R. No. 154994, Joycelyns Memorandum, also signed by Atty. Gineta, was received by the
Court on May 8, 2003. Crisantos Memorandum and Reply Memorandum, also signed by Atty.
Aralar, were filed on May 5, 2003 and May 16, 2003, respectively.
462

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SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
the Family Code, which mandates that no child under seven years of age shall be separated from
the mother, unless the court finds compelling reasons to order otherwise.
2. Is it Article 213 or Article 211 which applies in this case involving four-year old Rafaello?9
On the other hand, Crisanto raises the following issues:
A. Did Respondent Court commit grave abuse of discretion amounting to or in excess of
jurisdiction when, in its August 30, 2002 Decision, it ordered respondent court/Judge to
consider, hear and resolve the motion to lift award of custody pendente lite of the child to
petitioner and x x x denied the motion for reconsideration thereof in its November 27, 2002
Resolution, considering that: (1) there is no such motion ever, then or now pending, with the
court a quo; (2) the November 27, 2002 Resolution is unconstitutional; and (3) the April 3, 2002
Order of respondent Judge, the validity of which has been upheld in the August 30, 2002
Decision of the respondent Court, has become final and executory; and
B. Ought not the ancillary remedies [o]f habeas corpus,because the whereabouts, physical and
mental condition of the illegally detained Minor Rafaello is now unknown to petitioner and
preliminary mandatory injunction with urgent prayer for immediate issuance of preliminary
[injunction], petitioner having a clear and settled right to custody of Minor Rafaello which has
been violated and still is being continuously violated by [petitioner Joycelyn], be granted by this
Honorable Court?10
Being interrelated, the procedural challenges and the substantive issues in the two Petitions will
be addressed jointly.
The Courts Ruling
There is merit in the Petition in G.R. No. 154994, but not in G.R. No. 156254.
_______________

9 Joycelyn Gualbertos Memorandum, p. 7; G.R. No. 154994 Rollo, p. 320.

10 Crisanto Gualbertos Memorandum, pp. 11-12; G.R. No. 156254; Rollo, p. 371-372.
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Pablo-Gualberto vs. Gualberto V
Preliminary Issue:
The Alleged Prematurity
of the Petition in G.R. No. 154994
Before going into the merits of the present controversy, the Court shall first dispose of a
threshold issue. In G.R. No. 154994, therein Respondent Crisanto contends that the Petition for
Review was filed beyond the deadline (October 24, 2002) allowed by the Rules of Court and by
this Court. He claims that Registry Bill No. 88 shows that the Petition was sent by speed mail,
only on November 4, 2002. Furthermore, he assails the Petition for its prematurity, since his
Motion for Partial Reconsideration of the August 30, 2002 CA Decision was still pending before
the appellate court. Thus, he argues that the Supreme Court has no jurisdiction over Joycelyns
Petition.
Timeliness of the Petition

The manner of filing and service Joycelyns Petition by mail is governed by Sections 3 and 7 of
Rule 13 of the Rules of Court, which we quote:
SEC. 3. Manner of filing.The filing of pleadings, appearances, motions, notices, orders,
judgments and all other papers shall be made by presenting the original copies thereof, plainly
indicated as such personally to the clerk of court or by sending them by registered mail. x x x In
the second case, the date of mailing of motions, pleadings and other papers or payments or
deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be
considered as the date of their filing, payment, or deposit in court. The envelope shall be attached
to the records of the case.

x x x

xxx

xxx

SEC. 7. Service by mail.Service by registered mail shall be made by depositing the copy in
the office, in a sealed envelope, plainly addressed to the party or his counsel at his office, if
known, otherwise at his residence, if known, with postage fully pre-paid, and with instructions to
the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry
service is available in
464

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SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
the locality of either the sender of the addressee, service may be done by ordinary mail. (Italics
supplied)
The records disclose that Joycelyn received the CAs August 30, 2002 Decision on September 9,
2002. On September 17, she filed before this Court a Motion for a 30-day extension of time to
file a petition for review on certiorari. This Motion was granted,11 and the deadline was thus
extended until October 24, 2002.
A further perusal of the records reveals that copies of the Petition were sent to this Court and to
the parties by registered mail12 at the Bian, Laguna Post Office on October 24, 2002. This is
the date clearly stamped on the face of the envelope13 and attested to in the Affidavit of
Service14 accompanying the Petition. Petitioner Joycelyn explained that the filing and the
service had been made by registered mail due to the volume of delivery assignments and the
lack of a regular messenger.15
_______________

11 SC Resolution dated October 7, 2002; Rollo, p. 7.

12 Under Registry Receipt Nos. 2832-A and 2832-B for the Supreme Court, 2831 for the CA,
2830 for the Office of the Solicitor General, 2829 for the RTC Judge, and 2828 for private
respondents counsel; per Certification dated December 3, 2002, issued by the Bian postmaster
(G.R. No. 154994; Rollo, p. 277) and Certified True Copy of the Registration Book (Id., pp. 279280). These documents are attached as Annexes 1 and 3 to Joycelyns Motion to Allow and

Admit Comment/Opposition [Re: (Crisantos) Motion to Dismiss] and Manifestation before this
Court.
13 G.R. No. 154994; Rollo, p. 242.
14 Id., p. 78. The Affidavit was executed by one Michael John M. Armuete.
15 Ibid. 11 of Rule 13 provides that a resort to modes of service other than personal service
must be accompanied by a written explanation why the service or filing was not done
personally; and that [v]iolation thereof may be cause to consider the paper as not filed.
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Pablo-Gualberto vs. Gualberto V
The Petition is, therefore, considered to have been filed on October 24, 2002, its mailing date as
shown by the post office stamp on the envelope. The last sentence of Section 3 of Rule 13 of the
Rules provides that the date of filing may be shown either by the post office stamp on the
envelope or by the registry receipt. Proof of its filing, on the other hand, is shown by the
existence of the petition in the record, pursuant to Section 12 of Rule 13.16
The postmaster satisfactorily clarifies that Registry Bill No. 88, which shows the date November
2, 2002, merely discloses when the mail matters received by the Bian Post Office on October
24, 2002, were dispatched or sent to the Central Mail Exchange for distribution to their final
destinations.17 The Registry Bill does not reflect the actual mailing date. Instead, it is the postal
Registration Book18 that shows the list of mail matters that have been registered for mailing on a
particular day, along with the names of the senders and the addressees. That book shows that
Registry Receipt Nos. 2832-A and 2832-B, pertaining to the mailed matters for the Supreme
Court, were issued on October 24, 2002.
_______________

16 12 of Rule 13 of the Rules of Court provides:

SEC. 12. Proof of filing.The filing of a pleading or paper shall be proved by its existence in
the record of the case. If it is not in the record, but it is claimed to have been filed personally, the
filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of
court on a copy of the same; if filed by registered mail, by the registry receipt and by the

affidavit of the person who did the mailing, containing a full statement of the date and place of
depositing in the mail in the post office in a sealed envelope addressed to the court, with postage
fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten
(10) days if not delivered. (Italics supplied)
17 Letter of Bian Postmaster Jose M. Espineli dated December 4, 2002; G.R. No. 154994;
Rollo, p. 281.
18 Supra.
466

466
SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
Prematurity of the Petition

As to the alleged prematurity of the Petition of Joycelyn, Crisanto points out that his Urgent
Motion for Partial Reconsideration19 was still awaiting resolution by the CA when she filed her
Petition before this Court on October 24, 2002. The CA ruled on the Motion only on November
27, 2002.
The records show, however, that the Motion of Crisanto was mailed only on September 12,
2002. Thus, on September 17, 2002, when Joycelyn filed her Motion for Extension of Time to
file her Petition for Review, she might have still been unaware that he had moved for a partial
reconsideration of the August 20, 2002 CA Decision. Nevertheless, upon being notified of the
filing of his Motion, she should have manifested that fact to this Court.
With the CAs final denial of Crisantos Motion for Reconsideration, Joycelyns lapse may be
excused in the interest of resolving the substantive issues raised by the parties.
First Issue: Grave Abuse of Discretion
In G.R. No. 156254, Crisanto submits that the CA gravely abused its discretion when it ordered
the trial court judge to consider, hear and resolve the motion to lift the award of custody
pendente lite without any proper motion by Joycelyn and after the April 3, 2002 Order of the
trial court had become final and executory. The CA is also charged with grave abuse of
discretion for denying his Motion for Partial Reconsideration without stating the reasons for the
denial, allegedly in contravention of Section 1 of Rule 36 of the Rules of Court.

_______________

19 G.R. No. 156254; Rollo, pp. 44-51.

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Pablo-Gualberto vs. Gualberto V
The Order to Hear the Motion
to Lift the Award of Custody
Pendente Lite Proper

To begin with, grave abuse of discretion is committed when an act is 1) done contrary to the
Constitution, the law or jurisprudence;20 or 2) executed whimsically or arbitrarily in a manner
so patent and so gross as to amount to an evasion of a positive duty, or to a virtual refusal to
perform the duty enjoined.21 What constitutes grave abuse of discretion is such capricious and
arbitrary exercise of judgment as that which is equivalent, in the eyes of the law, to lack of
jurisdiction.22
On the basis of these criteria, we hold that the CA did not commit grave abuse of discretion.
First, there can be no question that a court of competent jurisdiction is vested with the authority
to resolve even unassigned issues. It can do so when such a step is indispensable or necessary to
a just resolution of issues raised in a particular pleading or when the unassigned issues are
inextricably linked or germane to those that have been pleaded.23 This
_______________

20 Republic v. COCOFED, 423 Phil. 735, 774; 372 SCRA 462, 493, December 14, 2001.
21 Baylon v. Office of the Ombudsman, 423 Phil. 705, 720; 372 SCRA 437, 449, December 14,
2001; Benito v. Commission on Elections, 349 SCRA 705, 713-714, January 19, 2001;

Defensor-Santiago v. Guingona, Jr., 359 Phil. 276, 304; 298 SCRA 756, 786, November 18,
1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, 53, March 10, 1994.
22 Vda. de Bacaling v. Laguna, 54 SCRA 243, 251, December 18, 1973.
23 Ludo & Luym Corp. v. Court of Appeals, 351 SCRA 35, 40, February 1, 2001; Logronio v.
Talaseo, 370 Phil. 907, 910 & 917; 312 SCRA 52, 60, August 6, 1999 (citing Hernandez v.
Andal, 78 Phil. 196, 209-210, March 29, 1947); Sesbreo v. Central Board of Assessment
Appeals, 337 Phil. 89, 100; 270 SCRA 360, 370-371, March 24, 1997.
468

468
SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
truism applies with more force when the relief granted has been specifically prayed for, as in this
case.
Explicit in the Motion to Dismiss24 filed by Joycelyn befor e the RTC is her ancillary prayer for
the court to lift and set aside its April 3, 2002 Order awarding to Crisanto custody pendente lite
of their minor son. Indeed, the necessary consequence of granting her Motion to Dismiss would
have been the setting aside of the Order awarding Crisanto provisional custody of the child.
Besides, even if the Motion to Dismiss was deniedas indeed it wasthe trial court, in its
discretion and if warranted, could still have granted the ancillary prayer as an alternative relief.
Parenthetically, Joycelyns Motion need not have been verified because of the provisional nature
of the April 3, 2002 Order. Under Rule 3825 of the Rules of Court, verification is required only
when relief is sought from a final and executory Order. Accordingly, the court may set aside its
own orders
_______________

24 G.R. No. 154994 Rollo, pp. 232-236. Among others, Joycelyn prayed that the Order of this
Honorable Court dated April 3, 2002, awarding custody of minor Crisanto Rafaello P. Gualberto
X to [the father] be lifted and set aside and [a] new one issued maintaining the status quo.
25 1 and 3 of Rule 38 of the Rules of Court pertinently provides:

SEC. 1. Petition for relief from judgment, order, or other proceedings.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, he may file a petition in such court
and in the same case praying that the judgment, order or proceedings be set aside.
SEC. 3. Time for filing petition; contents and verification.A petition provided for in either of
the preceding sections of this Rule must be verified, filed within sixty (60) days after the
petitioner learns of the judgment, final order, or other proceeding to be set aside and not more
than six (6) months after such judgment or final order was entered, or such proceeding was
taken; x x x. (Italics supplied)
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Pablo-Gualberto vs. Gualberto V
even without a proper motion, whenever such action is warranted by the Rules and to prevent a
miscarriage of justice.26
Denial of the Motion for
Reconsideration Proper

Second, the requirement in Section 1 of Rule 36 (for judges to state clearly and distinctly the
reasons for their dispositions) refers only to decisions and final orders on the merits, not to those
resolving incidental matters.27 The provision reads:
SECTION 1. Rendition of judgments and final orders.A judgment or final order determining
the merits of the case shall be in writing personally and directly prepared by the judge, stating
clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the
clerk of court. (Italics supplied)
Here, the declaration of the nullity of marriage is the subject of the main case, in which the issue
of custody pendente lite is an incident. That custody and support of common children may be
ruled upon by the court while the action is pending is provided in Article 49 of the Family Code,
which we quote:

Art. 49. During the pendency of the action28 and in the absence of adequate provisions in a
written agreement between the spouses, the Court shall provide for the support of the spouses
and the custody and support of their common children. x x x.
_______________

26 Manongdo v. Vda. de Albano, 95 SCRA 88, 98, January 22, 1980.

27 Borromeo v. Court of Appeals, 186 SCRA 1, 6, June 1, 1990; Mendoza v. Court of First
Instance, 51 SCRA 369, 375, June 27, 1973; Bacolod Murcia Milling Co., Inc. v. Henare, 107
Phil. 560, 570, March 30, 1960.
28 The action here refers to the annulment of marriage under Article 45 of the Family Code.
470

470
SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
Clearly then, the requirement cited by Crisanto is inapplicable. In any event, in its questioned
Resolution, the CA clearly stated that it could not find any cogent reason to reconsider and set
aside the assailed portion of its August 30, 2002 Decision.
The April 3, 2002 Order Not
Final and Executory

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

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

29 Unson III v. Navarro, 101 SCRA 183, 189, November 17, 1980 (cited in Espiritu v. Court of
Appeals, 312 Phil. 431, 440; 242 SCRA 362, 369, March 15, 1995).
30 Crisanto Rafaello X was born on September 11, 1998. Exhibit C, Certificate of Birth,
Records of G.R. 154994, p. 11.
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Article 213 of the Family Code31 provides:
ART. 213. In case of separation of the parents, parental authority shall be exercised by the
parent designated by the court. The court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise.
This Court has held that when the parents are separated, legally or otherwise, the foregoing
provision governs the custody of their child.32 Article 213 takes its bearing from Article 363 of
the Civil Code, which reads:
Art. 363. In all questions on the care, custody, education and property of children, the latters
welfare shall be paramount. No mother shall be separated from her child under seven years of
age, unless the court finds compelling reasons for such measure. (Italics supplied)

The general rule that children under seven years of age shall not be separated from their mother
finds its raison dtre in the basic need of minor children for their mothers loving care.33 In
explaining the rationale for Article 363 of the Civil Code, the Code Commission stressed thus:
The general rule is recommended in order to avoid a tragedy where a mother has seen her baby
torn away from her. No man can sound the deep sorrows of a mother who is deprived of her
child of tender age. The exception allowed by the rule has to be for compelling reasons for the
good of the child: those cases must indeed be rare, if the mothers heart is not to be unduly hurt.
If she has erred, as in cases of adultery, the penalty of imprisonment and the (rela_______________

31 Executive Order No. 209.

32 Perez v. Court of Appeals, 325 Phil. 1014, 1021; 255 SCRA 661, 666, March 29, 1996.
33 Espiritu v. Court of Appeals, supra, p. 366.
472

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SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
tive) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral
dereliction will not have any effect upon the baby who is as yet unable to understand the
situation. (Report of the Code Commission, p. 12)
A similar provision is embodied in Article 8 of the Child and Youth Welfare Code (Presidential
Decree No. 603).34 Article 17 of the same Code is even more explicit in providing for the
childs custody under various circumstances, specifically in case the parents are separated. It
clearly mandates that no child under five years of age shall be separated from his mother, unless
the court finds compelling reasons to do so. The provision is reproduced in its entirety as
follows:
Art. 17. Joint Parental Authority.The father and the mother shall exercise jointly just and
reasonable parental authority and responsibility over their legitimate or adopted children. In case
of disagreement, the fathers decision shall prevail unless there is a judicial order to the contrary.

In case of the absence or death of either parent, the present or surviving parent shall continue to
exercise parental authority over such children, unless in case of the surviving parents
remarriage, the court for justifiable reasons, appoints another person as guardian.
In case of separation of his parents, no child under five years of age shall be separated from his
mother, unless the court finds compelling reasons to do so. (Italics supplied)
The above mandates reverberate in Articles 211, 212 and 213 of the Family Code. It is
unmistakable from the language of these provisions that Article 21135 was derived from the
_______________

34 Article 8 of P.D. No. 603:

Art. 8. Childs welfare paramount.In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount consideration.
35 Article 211 of the Family Code:
Art. 211. The father and the mother shall jointly exercise parental authority over the persons of
their common chil
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first sentence of the aforequoted Article 17; Article 212,36 from the second sentence; and Article
213,37 save for a few additions, from the third sentence. It should be noted that the Family Code
has reverted to the Civil Code provision mandating that a child below seven years should not be
separated from the mother.38
Mandatory Character
of Article 213 of the Family Code

In Lacson v. San Jose-Lacson,39 the Court held that the use of shall in Article 363 of the Civil
Code and the observations made by the Code Commission underscore the mandatory

_______________

dren. In case of disagreement, the fathers decision shall prevail, unless there is a judicial order
to the contrary.
Children shall always observe respect and reverence towards their parents and are obliged to
obey them as long as the children are under parental authority.
36 Article 212 of the Family Code:
Art. 212. In case of absence or death of either parent, the parent present shall continue
exercising parental authority. 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.
37 The Article is worded as follows:
Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent
designated by the court. The Court shall take into account all relevant considerations, especially
the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother unless the court finds
compelling reasons to order otherwise.
38 See Sempio-Diy, Handboook on the Family Code of the Philippines (1988), pp. 296-297.
39 133 Phil. 884, 894; 24 SCRA 837, 848, August 30, 1968.
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SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
character of the word.40 Holding in that case that it was a mistake to deprive the mother of
custody of her two children, both then below the age of seven, the Court stressed:
[Article 363] prohibits in no uncertain terms the separation of a mother and her child below
seven years, unless such a separation is grounded upon compelling reasons as determined by a
court.41

In like manner, the word shall in Article 213 of the Family Code and Section 642 of Rule 99 of
the Rules of Court has
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40 The Court in this case emphasized that under ordinary parlance and in its ordinary
signification, the term shall is a word of command; one that is generally imperative or
mandatory; and that which operates to impose a duty which may be enforced, particularly if
public policy is in favor of its meaning or when public interest is involved. x x x.
41 p. 895; p. 848, per Castro, J.
42 SEC. 6. Proceedings as to child whose parents are separated. Appeal.When husband and
wife are divorced or living separately and apart from each other, and the question as to the care,
custody, and control of a child or children of their marriage is brought before a Court of First
Instance by petition or as an incidence to any other proceeding, the court, upon hearing the
testimony as may be pertinent, shall award the care, custody, and control of each such child as
will be for its best interest, permitting the child to choose which parent it prefers to live with if it
be over ten years of age, unless the parent so chosen be unfit to take charge of the child by
reason of moral depravity, habitual drunkenness, incapacity, or poverty. If, upon such hearing, it
appears that both parents are improper persons to have the care, custody, and control of the child,
the court may either designate the paternal or maternal grandparents of the child, or his oldest
brother or sister, or some reputable and discreet person to take charge of such child, or commit it
to any suitable asylum, childrens home, or benevolent society. The court may in conformity
with the provisions of the Civil Code order either or both parents to support or help support said
child, irrespective of who may be its custodian, and may make any order that is just and
reasonable permitting the parent who is deprived of its care and custody to visit the child or have
temporary custody thereof. Either
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Pablo-Gualberto vs. Gualberto V
been held to connote a mandatory character.43 Article 213 and Rule 99 similarly contemplate a
situation in which the parents of the minor are married to each other, but are separated by virtue
of either a decree of legal separation or a de facto separation.44 In the present case, the parents
are living separately as a matter of fact.

The Best Interest of the Child

a Primary Consideration

The Convention on the Rights of the Child provides that [i]n all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a primary
consideration.45
The principle of best interest of the child pervades Philippine cases involving adoption,
guardianship, support, personal status, minors in conflict with the law, and child custody. In
these cases, it has long been recognized that in choosing the parent to whom custody is given, the
welfare of the minors should always be the paramount consideration.46
_______________

parent may appeal from an order made in accordance with the provisions of this section. No
child under seven years of age shall be separated from its mother, unless the court finds there are
compelling reasons therefor.
43 Perez v. Court of Appeals, supra, p. 1022; p. 667.
44 Briones v. Miguel, G.R. No. 156343, October 18, 2004, 440 SCRA 455, 466.
45 1 of Article 31 of the Convention on the Rights of the Child (CRC).
46 Tonog v. Court of Appeals, 427 Phil. 1, 7; 376 SCRA 523, 527, February 7, 2002; ArtadiBondagjy v. Bondagjy, 423 Phil. 127, 136, 138; 371 SCRA 642, 652, 653, December 7, 2001;
Perez v. Court of Appeals, supra, p. 1024; p. 669; Espiritu v. Court of Appeals, supra, p. 437;
Medina v. Makabali, 137 Phil. 329, 331; 27 SCRA 502, 504, March 28, 1969; Slade Perkins v.
Perkins, 57 Phil. 217, 219, September 12, 1932.
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SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V

Courts are mandated to take into account all relevant circumstances that would have a bearing on
the childrens well-being and development. Aside from the material resources and the moral and
social situations of each parent, other factors may also be considered to ascertain which one has
the capability to attend to the physical, educational, social and moral welfare of the children.47
Among these factors are the previous care and devotion shown by each of the parents; their
religious background, moral uprightness, home environment and time availability; as well as the
childrens emotional and educational needs.
Tender-Age
Presumption

As pointed out earlier, there is express statutory recognition that, as a general rule, a mother is to
be preferred in awarding custody of children under the age of seven. The caveat in Article 213 of
the Family Code cannot be ignored, except when the court finds cause to order otherwise.48
The so-called tender-age presumption under Article 213 of the Family Code may be overcome
only by compelling evidence of the mothers unfitness. The mother has been declared unsuitable
to have custody of her children in one or more of the following instances: neglect, abandonment,
unemployment, immorality, habitual drunkenness, drug addiction, maltreatment of the child,
insanity or affliction with a communicable disease.49
_______________

47 Bondagjy v. Bondagjy, supra; David v. Court of Appeals, 320 Phil. 138; 250 SCRA 82,
November 16, 1995; Espiritu v. Court of Appeals; supra; Unson v. Navarro, supra; Cervantes v.
Fajardo, 169 SCRA 575, January 27, 1989.
48 Briones v. Miguel, supra, 440 SCRA 455, 464.
49 See among others, Briones v. Miguel, supra; Tonog v. Court of Appeals, supra; Cervantes v.
Fajardo, supra; Medina v. Makabali, supra. See also Tolentino, Civil Code, (1990), p. 609;
Sempio-Diy, supra, p. 297.
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Pablo-Gualberto vs. Gualberto V

Here, Crisanto cites immorality due to alleged lesbian relations as the compelling reason to
deprive Joycelyn of custody. It has indeed been held that under certain circumstances, the
mothers immoral conduct may constitute a compelling reason to deprive her of custody.50
But sexual preference or moral laxity alone does not prove parental neglect or incompetence. Not
even the fact that a mother is a prostitute or has been unfaithful to her husband would render her
unfit to have custody of her minor child.51 To deprive the wife of custody, the husband must
clearly establish that her moral lapses have had an adverse effect on the welfare of the child or
have distracted the offending spouse from exercising proper parental care.52
To this effect did the Court rule in Unson III v. Navarro,53 wherein the mother was openly living
with her brother-in-law, the childs uncle. Under that circumstance, the Court deemed it in the
nine-year-old childs best interest to free her from the obviously unwholesome, not to say
immoral influence, that the situation in which the mother ha[d] placed herself might create in
[the childs] moral and social outlook.54
In Espiritu v. CA,55 the Court took into account psychological and case study reports on the
child, whose feelings of insecurity and anxiety had been traced to strong conflicts with the
mother. To the psychologist the child revealed, among other things, that the latter was disturbed
upon seeing her mother hugging and kissing a bad man who lived in their house and worked
for her father. The Court held that the illicit or
_______________

50 Espiritu v. Court of Appeals, supra; Cervantes v. Fajardo, supra; Unson III v. Navarro, supra;
Cortes v. Castillo, 41 Phil. 466, March 18, 1921.
51 Sempio-Diy, supra, p. 297.
52 70 ALR 3d 262, Ch. I, 2[b].
53 Supra.
54 P. 189, per Barredo, J.
55 Supra, p. 440, per Melo, J.
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SUPREME COURT REPORTS ANNOTATED

Pablo-Gualberto vs. Gualberto V
immoral activities of the mother had already caused the child emotional disturbances, personality
conflicts, and exposure to conflicting moral values x x x.
Based on the above jurisprudence, it is therefore not enough for Crisanto to show merely that
Joycelyn was a lesbian. He must also demonstrate that she carried on her purported relationship
with a person of the same sex in the presence of their son or under circumstances not conducive
to the childs proper moral development. Such a fact has not been shown here. There is no
evidence that the son was exposed to the mothers alleged sexual proclivities or that his proper
moral and psychological development suffered as a result.
Moreover, it is worthy to note that the trial court judge, Helen Bautista-Ricafort, ruled in her
May 17, 2002 Order that she had found the reason stated by [Crisanto] not to be compelling56
as to suffice as a ground for separating the child from his mother. The judge made this
conclusion after personally observing the two of them, both in the courtroom and in her
chambers on April 16, 2002, and after a chance to talk to the boy and to observe him firsthand.
This assessment, based on her unique opportunity to witness the childs behavior in the presence
of each parent, should carry more weight than a mere reliance on the records. All told, no
compelling reason has been adduced to wrench the child from the mothers custody.
No Grant of Habeas Corpus
and Preliminary Injunction

As we have ruled that Joycelyn has the right to keep her minor son in her custody, the writ of
habeas corpus and the preliminary mandatory injunction prayed for by Crisanto have no leg to
stand on. A writ of habeas corpus may be issued only when the rightful custody of any person is
with_______________

56 Order dated May 17, 2002, p. 2; G.R. No. 154994; Rollo, p. 120.
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Pablo-Gualberto vs. Gualberto V
held from the person entitled thereto,57 a situation that does not apply here.
On the other hand, the ancillary remedy of preliminary mandatory injunction cannot be granted,
because Crisantos right to custody has not been proven to be clear and unmistakable.58
Unlike an ordinary preliminary injunction, the writ of preliminary mandatory injunction is more
cautiously regarded, since the latter requires the performance of a particular act that tends to go
beyond the maintenance of the status quo.59 Besides, such an injunction would serve no
purpose, now that the case has been decided on its merits.60
_______________

57 1 of Rule 102 of the Rules of Court, which provides as follows:

Sec. 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. (Italics supplied)
58 As held in Pelejo v. Court of Appeals, 117 SCRA 665, 668, October 18, 1982, the issuance of
a writ of preliminary mandatory injunction is justified only when the following are shown: 1) the
complainant has a clear legal right; 2) that right has been violated and the invasion is material
and substantial; and 3) there is an urgent and permanent necessity for the writ to prevent serious
damage. See also Spouses Crystal v. Cebu International School, 356 SCRA 296, 305, April 4,
2001; Heirs of Asuncion v. Gervacio, Jr., 363 Phil. 666, 674; 304 SCRA 322, 330, March 9,
1999; Suico Industrial Corporation v. Court of Appeals, 361 Phil. 160, 169-170; 301 SCRA 212,
220, January 20, 1999 (citing Arcega v. Court of Appeals, 341 Phil. 166, 171; 275 SCRA 176,
180, July 7, 1997).
59 Spouses Crystal v. Cebu International School, Ibid.; Prosperity Credit Resources, Inc. v.
Court of Appeals, 361 Phil. 30, 37; 301 SCRA 52, 59, January 15, 1999 (citing Manila Electric
Railroad and Light Company v. Del Rosario, 22 Phil. 433, 437, March 29, 1912 and Bautista v.
Barcelona, 100 Phil. 1078, 1081, March 29, 1957).
60 Under Section 1 of Rule 58 of the Rules of Court, preliminary injunction is defined as an
order granted at any stage of an action
480

480
SUPREME COURT REPORTS ANNOTATED
Pablo-Gualberto vs. Gualberto V
WHEREFORE, the Petition in G.R. No. 154994 is GRANTED. The assailed Decision of the
Court of Appeals is hereby REVERSED and the May 17, 2002 Regional Trial Court Order
REINSTATED. The Petition in G.R. No. 156254 is DISMISSED. Costs against Petitioner
Crisanto Rafaelito Gualberto V.
SO ORDERED.
Sandoval-Gutierrez, Corona, Carpio-Morales and Garcia, JJ., concur.
Petition in G.R. No. 154994 granted, assailed decision reversed and order of the trial court dated
May 17, 2002 reinstated. Petition in G.R. No. 156254 dismissed.
Notes.Impugning the legitimacy of the child is a strictly personal right of the husband, or in
exceptional cases, his heirs for the simple reason that he is the one directly confronted with
scandal and ridicule which the infidelity of his wife produces and he should be the one to decide
whether to conceal that infidelity or expose it in view of the moral and economic interest
involved. (Liyao, Jr. vs. Tanhoti-Liyao, 378 SCRA 563 [2002])
In the continual evolution of legal institutions, the patria potestas has been transformed from the
jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was
virtually a chattel of his parents, into a radi_______________

or proceeding prior to the judgment or final order, requiring a party or a court, agency or a
person to refrain from a particular act or acts. It may also require the performance of a particular
act or acts, in which case it shall be known as a preliminary mandatory injunction. (Emphasis
supplied.) See Miriam College Foundation Inc. v. Court of Appeals, 348 SCRA 265, 277,
December 15, 2000; Spouses Lopez v. Court of Appeals, 379 Phil. 743, 749-750; 322 SCRA
686, January 20, 2000; Paramount Insurance Corporation v. Court of Appeals, 369 Phil. 641,
648; 310 SCRA 377, July 19, 1999.
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481
Kabankalan Catholic College vs. Kabankalan Catholic College Union-PACIWU-TUCP
cally different institution, due to the influence of Christian faith and doctrines. (Laxamana vs.
Laxamana, 388 SCRA 296 [2002])
[Pablo-Gualberto vs. Gualberto V, 461 SCRA 450(2005)]