G.R. No.

L-5131

July 31, 1952

ANTONIO MA. CUI, and MERCEDES CUI DE RAMAS, petitioners,

vs.
EDMUNDO S. PICCIO, as Judge of the Court of First Instance of Cebu, EUGENIO
RODIL, as sheriff of the incompetent Don Mariano Cui, respondents.
Amador
E.
Claro M. Recto for respondent.

Gomez

for

petitioner.

MONTEMAYOR, J.:
Don Mariano Cui, widower, as owner of Lots Nos. 3212,2313 and 2319 situated in the
City of Cebu, with anare of 152 square meters, 144 square meters and 2,362 square
meters, respectively, of a total extension of 2,658 square meters, on March 8, 1946, sold
said three lots to three of his children named Rosario C. de Encarnacion, Mercedes C. de
Ramas and Antonio Ma. Cui, pro indiviso for the sum of P64,000. Because Rosario C. de
Encarnacion for lack of funds was unable to pay her corresponding share of the purchase
price, the sale to her was concealed and the one-third of the property corresponding to
her returned to the vendor. These three lots are commercial. The improvements thereon
were destroyed during the last Pacific War so that at the time of the sale in 1946, there
were no buildings or any other improvements on them. Because of the sale of these
lots pro indiviso and because of the cancellation of the sale to one of the three original
vendees, Don Mariano and his children Mercedes and Antonio became co-owners of the
whole mass in equal portions. In the deed of sale vendor Don Mariano retained for
himself the usufruct of the property in the following words:
. . . do hereby sell, transfer, and convey to Messrs. Rosario C. de Encarnacion,
Mercedes C. de Ramas and Antonio Ma. Cui, the above-mentioned parcel of land
in equal parts, . . . and the further consideration, that I, shall enjoy the fruits and
rents of the same, as long as my natural life shall last. Granting and conveying
unto the said buyers the full right as owners to enjoy the constructive
possession of the same, improve, construct and erect a building in the lot, or do
whatever they believe to be proper and wise, as long as the same will not
impair nor obstruct my right to enjoy the fruits and rents of the same . . . .
(Emphasis ours.)
Subsequently, a building was erected on a portion of this mass facing Calderon street
and was occupied by a Chinese businessman for which he paid Don Mariano P600 a
month as rental. The date when the building was constructed and by whom do not
appear in the record.
Sometime after the sale to Mercedes and Antonio the two applied to the Rehabilitation
Finance Corporation(RFC) for a loan of P130,00 with which to construct a 12-door
commercial building presumably on a portion of the entire parcel corresponding to their
share. In order to facilitate the granting of the loan an inasmuch as only two of the three

co-owners applied for the loan, Don Mariano on January 7, 1947, executed an authority
to mortgage (Annex U) authorizing his two children co-owners to mortgage his share, the
pertinent portion of said authority reading thus:
That by virtue of theses presents, I hereby agree, consent, permit, and
authorize my said co-owners to mortgage, pledge my share so that they may be
able to construct a house or building in the said property, provided however,
that the rents of the said land shall not be impaired and will always be received
by me. (Emphasis our.)
The loan was eventually granted and was secured by a mortgage on the three lots in
question. Don Mariano being included as one of the three mortgagors and signing the
corresponding promissory note with his two co-owners. He did not however, join in the
construction of the 12-door commercial building as may be gathered from the
"Conveniode Asignacion the three co-owners to assign to Don Mariano that one-third of
the whole mass facing Calderon street and on which was erected the building already
referred to as being occupied by a Chinese Businessman and for which he was paying
Don Mariano P600 a month rental. The area of this one-third of the total are of these
three lots. The pertinent portion of this Annex V reads as follows:
Que como quiera que. la propiedad arriba descrita esta actual-mente
hipotecada
a
la
Rehabilitation
Finance
Corporation
paragarantizar
la construccion que mis conduenos construyeron en laparte que les correponde;
Y que como quiera quie, el Sr. Don Mariano Cui, uno de los conduenos, no ha
querido unirse a la construccion de dicho edificio, y desea que la parte que le
corresponda sea la /3 que este dandofrente a la Calle Calderon. (Emphasis
ours.)
The 12-door commercial building was eventually constructed and the buildder-owners
thereof receive the rents thereof amounting to P4,800 a month and paying therefrom the
installments due for payment on the loan to the Rehabilitation Finance Corporation.
On March 25, 1948, two other children of Don Mariano named Jesus and Jorge brought an
action (civil case No. 59-R) in the Court of First Instance of Cebu for the purpose of
annulling the deed of sale of the three lots in question on the ground that they belonged
to the conjugal partnership of Don Mariano and his deceased wife Antonia Perales.
Thereafter, plaintiffs Jesus and Jorge applied for the appointment of a receiver to take
charge of the lots and of the rentals of the building. This petition was denied on
November 8, 1948.
On March 19, 1949, Rosario C. de Encarnacion, that daughter of Don Mariano who was
one of the original vendees filed a petition to declare her father incompetent and to have
a guardian appointed for his property, in Special Proceeding No. 481-R of the Court of
First Instance of Cebu. In May 1949 the petition was granted and Don Mariano was
declared incompetent and Victorino Reynes was appointed in civil case No. 599-R

seeking to annul the deed of sale of the three lots in favor of Mercedes and Antonio was
amended so as to include as plaintiffs not only the guardian Victorino Reyes but also all
the other children of Don Mariano.

Chief Justice Moran in his comments on the Rules of Court, Vol. II, 3rd, ed., pp. 478-479,
says the following on this section;
Substantially the same as sec. 573 of Act No. 190.

On June 15, 1949, guardian Victorino Reyes filed a motion in the gurdianship proceedings
seeking authority to collect the rentals from the three lots in question and asking the
Court to order Antonio and Mercedes to deliver to him as guardian all the rentals they
had previosly collected from the 12-door commercial building, together with all the
papers belonging to his ward. This motion was denied by Judge Piccio in his order of July
12, 1949. The guardian did not appeal from this order.
On May 22, 1951, Judge Saguin rendered a decision in civil case No. 599-R and found
that the three lots in question were not conjugal property but belonged to exclusively to
Don Mariano and so upheld the sale of two-thirds of said lots to Antonio and Mercedes.
The plaintiffs appealed to the Court of Appeals where the case is now pending.
On August 1, 1951, after the rendition of judgment in civil case No. 599-R upholding the
sale, guardian Victorino Reynes again presented of filed a motion in the guardianship
proceedings No. 481-R asking for the delivery of the rentals of the 12-door commercial
building to him and for authority to collect future rentals thereon. On September 5, 1951,
respondent Judge Piccio, the same Judge who had denied a similar motion about two
years before, that is, on July 12, 1949, granted the motion in his order of the same date
directing Antonio and Mercedes to deliver to the guardian the rentals of the building they
had so far collected, at the same time authorizing the guardian to collect future rentals.
The motion to reconsider the order filed by Antonio and Mercedes was denied in an order
dated October 1, 1951. The present petition for certiorari with preliminary injunction was
filed in this court for the purpose of annulling said order of September 5, 1951 and the
order of October 1, 1951 denying the motion for reconsideration, on the ground that the
trial court in the guardianship proceedings lacked jurisdiction to issue the order. To
decide whether or not the respondent Judge had jurisdiction to issue the order of
September 5, 1951 directing the petitioners herein to deliver to the guardian Victorino
Reynes the rentals collected by them from the building and authorizing said guardian to
collect future rentals, we must first determine the nature and status of said rentals in
relation with the guardianship proceedings. Said determination requires an interpretation
of section 6, Rule 97 of the Rules of Court which reads as follows:
SEC. 6. Proceedings when person suspected of embezzling or conceling
property of ward. Upon complaint of the guardian or ward, or of any person
having an actual or prospective interest in the estate of the ward as creditor,
heir, or otherwise, that anyone is suspected of having embezzled, concealed, or
conveyed away any money, goods, or interest, or a written instrument,
belonging to the ward or his estate, the court may cite the suspected person to
appear for examination, touching such money, goods, interest, or instrument,
and make such orders as will secure the estate against such embezzlement,
concealment, or conveyance.

This provision is similar to the procedure in the settlement of the estate of a

deceased person and its purpose is merely to elicit information or secure
evidence from the person suspected of having embezzled, concealed or
conveyed any personal property of the ward. In such proceeding the court has
no authority to determine the right of the property or to order delivery thereof. If
after the examination the court finds this sufficient evidence showing ownership
on the part of the ward, it is the duty of the guardian to bring the proper action.
Section 573 of Act 190 referred to above is now embodied in Rule 88, section 6 of the
Rules of Court, and under said rule, Moran has practically the same comment as that
reproduced above. In other words in his opinion neither in gaurdianship proceedings nor
in administration proceedings may the court determining the ownership of property
claimed by the gurdian or administrator to belong to the ward or to the estate of the
deceased, and order its delivery to them. We believe that the purpose of these two rules,
Rule 97, section 6 and Rule 88, section 6 of the Rules of Court is merely to secure
evidence from persons suspected of embezzling, concealing or conveying away any
property of the ward or of the deceased so as to enable said guardian or administrator to
institute the appropriate action to obtain the possession of and secure title to said
property, all for the protection of the interests of the ward and the estate of the
deceased.
Counsel for respondents invite our attention to several cases purporting to support the
theory that the court in guardianship proceedings may actually order the delivery of the
property of the ward found to be embezzled, concealed or conveyed. Out of the cases
cited, the only one we find to have some relevancy in that of Castillo vs. Bustamante, 64
Phil., 839. In this case, the court made a distinction between the provisions of sections
709 and 593 of the Code of Civil Procedure which now correspond to section 6, Rule 88
and section 6 of Rule 97 of the Rules of Court. This Court in that case said in effect that
while in admission proceedings the court under section 709 may only question the
person suspected of having embezzled, concealed or conveyed away property belonging
to the estate, section 593 of the same Code of Civil Procedure authorizes the Judge or
the court to issue such orders as may be necessary to secure the estate against
concealment, embezzlement and conveyance, and this distinction is now given emphasis
by respondents' counsel. The way we interpret section 573 of the Code of Civil
procedures as now embodied in Rule 97, section 6 of the Rules of Court in the light of the
ruling laid down in the case of Castillo vs. Bustamante, supra, is that the court may issue
an order directing the delivery or return of any property embezzled, concealed or
conveyed which belongs to a ward, where the right or title of said ward is clear and
indisputable. Such was the case of Castillo vs. Bustamante where husband and wife,
parties in litigation, arrived at a compromise whereby they donated their conjugal
property to their only child and this donation was duly accepted. This compromise was
approved by the court and embodied in the decision and the parties were directed to

comply with the terms of the compromise. Later, the husband refused to deliver the
property donated. This court affirmed the order of the trial court requiring the husband to
deliver said property to the guardians of the minor child because the title of the ward
of res judicata. "We believe, however, that where title to any property said to be
embezzled, concealed or conveyed is in question as in the present case, the
determination of said title or right whether in favor of the ward or in favor of the persons
said to have embezzled, concealed or conveyed the property must be determined in a
separate ordinary action and not in guardianship proceedings. Incidentally it may be here
stated that about a month after the filing of the present case of certiorari, or rather on
November 1, 1951, guardian Victorino Reynes filed an ordinary action, civil case No. R1720, in the Court of First Instance of Cebu against Antonio and Mercedes to recover all
the rentals of the 12-door building collected by them (Annex A-3).
In the present case, is the right of the ward, Don Mariano, to the rentals of the 12-door
building, clear and indisputable? The answer is definitely in the negative. Without any
attempt or desire to determine the rights or lack of right of the ward to said rentals and
prejudge the civil action No. R-1720 brought by the guardian in the Court of First Instance
of Cebu to recover said rentals, on the basis only of the documents involved or presented
in this certiorari proceedings and without any additional evidence, these are reasons to
believe that the scales of title instead of favoring the ward, incline more in favor of and
point to the owners of the building. We need not estate those reasons here.
In conclusion, we hold that the respondent Judge had no jurisdiction to issue his order of
September 5, 1951, in the guardianship proceedings requiring the petitioners to deliver
the rentals collected by them to the guardian and authorizing the latter to collect rentals
in the future, for the reason that the jurisdiction of the court guardianship proceedings,
ordinarily, is to cite persons suspected of having embezzled, concealed or conveyed
property belonging to the ward for the purpose of obtaining information which may be
used in an action later to be instituted by the guardian to protect the right of the ward;
and that only in extreme cases, where property clearly belongs to the ward or where his
title thereto has already been judicially decided, may the court direct its delivery to the
guardian.
In view of the foregoing, the petition is granted and the order of respondent Judge of
September 5, 1951, and his order of October 1, 1951, are hereby set aside. The writ of
preliminary injunction is hereby made permanent. The respondent-guardian, Victorino
Reynes, will pay the costs

G.R. No. L-14302

April 30, 1963

JOSE MARGATE, applicant-appellee,

vs.
JULIA RABACAL and her minor children JESUS, CORAZON, JULIO, FE, HELEN,
RAMON and ELI, all surnamed BERINA, appellants-oppositors.
PAREDES, J.:
This is an application for the registration of a residential land, with a house, containing
an area of 465 square meters, situated in the barrio of San Miguel, Iriga, Camarines Sur,
more particularly describe in plan PSU 123636 (Exh. A), and in the technical description
(Exh. 4), by Jose Margate who claims to have purchased the property from Julia Rabacal,
for P4,000.00. An order of general default was entered against the whole world, with the
exception of the Director of Lands who did not file any formal opposition, andJulia
Rabacal and her minor children who opposed the application, on the ground that the
property was under gauardianship proceedings when sold; that the sale was not
authorized by the court; that the purchase price of P4,000.00 was not fully paid, as there
was a remainining balance of P500.00 and that the market price of the lot and house was
P10,000.00. After due hearing, the registration court confirmed the title of the applicant
to the parcel of land in question, and ordered that the same be registered in the name of
Jose F. Margate, widower, citizen of the Philippines, with residence at Iriga, Camarines
Sur, and that once the decision has become final, the decree and title thereof issue.
Oppositors appealed to the Court of Appeals which certified the case to Us, stating that
the issues involved are purely legal in character.
As found by the registration court, the parcel of land and house, in question,originally
belonged to Francisco Vela who was in possession thereof as early as 1889. After his
death in 1903, he was succeeded by Pedro Evangelista, who purchased the land.
Evangelista later on sold the land to Valentin Magistrado,who possessed it until he sold
the same to a certain Tinay, mother-in-law of Vicente Brinas who built a house thereon
and possessed the land until be sold it to Dr. Julio Berina. Dr. Julio Berina died on October
15, 1945, survived by his widow, Julia Rabacal, and his minor children Jesus, Corazon,
Julio, Fe,Helen, Ramon and Eli, all surnamed Berina, the oppositors herein.
In 1946, Julia Rabacal filed a petition for the appointment of a guardian of the persons
and properties of the minor children of Dr. Berina, which petition was amended on June 3,
1946 (Exhibit 1). Julia Rabacal was appointed guardian of her minor children and letters
of guardianship was issued in her favor (Exh. 5). On March 16, 1948, a petition (Exh. B),
was filed by the guardian Julia Rabacal, alleging that it was necessary to sell parcel 4 of
the inventory (Exh. 6), in order to defray the expenses in the prosecution of Civil Case
No. 919 and for the support and education of the wards. This petition was approved by
the court in its order of May 23, 1948, authorizing the guardian to sell the residential lot
and its improvements.

Applicant Jose F. Margate, who was then intending to buy a house and lot of one Mr.
Brown, happened to meet Julia Rabacal who offered to sell to him the residential lot in
question, for P5,000.00. After negotiations, the parties agreed on the selling price of
P4,000.00. After the agreement, Rabacal began getting money from Margate, such that
when Rabacal secured the authority to sell (Exh. C), from the court, she had already
obtained from Margate the sum of P500.00, and after having secured the order of
authority to sell, Rabacal showed to Margate a copy of the order. On May 27, 1948, a
deed of sale was executed by Julia Rabacal, acknowledged before a Notary Public, Jose
Madara, selling the land in question to Margate for P4,000.00 (Exh. D), on which date
Margate paid the balance of P3,500.00 to Rabacal. At the time the house was already in
a ruinous condition, because of the typhoon Jean, and for the repair and improvement of
the same, Margate spent around P6,000.00..
On the allegation of Rabacal that Margate had still a balance of P500.00 unpaid of the
purchase price, the trial court held that Rabacal and her evidence do not deserve any
credence after the said court had found that she had deliberately deceived the court in
the guardianship proceedings. The trial court declared that notwithstanding the fact that
Rabacal had sold parcel 4 of the inventory, and executed a deed of sale on May 27, 1948
(Exh. D), Rabacal still filed Exh. 3, in the guardianship proceedings, asserting that
despite her efforts, she was unable to find a buyer for said parcel of land. The trial court
concluded that if it is true that Margate lacked P500.00 or more, Rabacal would have
taken action against him, considering the fact that from 1948 (date of sale), to the filing
of her amended opposition in this registration proceeding (1953), nearly 5 years had
already elapsed.
Oppositors-appellants claim that the registration court erred (1) in holding that the deed
of sale, Exh. A, is valid; (2) In ordering the registration of the property, in applicant's
name; (3) In not dismissing the application for lack of merits; and (4) In not ordering the
registration of the property in the name of the oppositors.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1wph1.t
Appellants argue that the deed of sale (Exh. B), executed by the guardian, Julia Rabacal
in favor of applicant, had no binding effect, because the authority to sell was cancelled
and the sale was not approved by the guardianship Court. As appropriately commented
by the trial court, the cancellation of the authority to sell did not, and could not, affect,
the rights of the buyer, because "at the time that the order cancelling the authority to
sell was entered, the guardian, Julia Rabacal, had already acted in accordance with
authority, Exhibit C, and sold the land to Jose F. Margate.The authority of the Court had
already been exhausted, after it was fulfilled by the guardian, and there was nothing to
cancel. Moreover, the cancellation of the order to sell was entered by the Court due to
the deception of the guardian, who informed the court that she could not find any buyer
of parcel 4 of the inventory. If the court had been informed of the sale, the court would
certainly not have revoked the authority. Moreover, the revocation was entered without

notice to the purchaser Jose F. Margate". The persuasiveness of those disquisitions

cannot be over emphasized. With respect to the lack of approval of the sale by the court,
His Honor held that the law merely requiresthat the guardian should be authorized, and
that the authority to sell did not impose the condition that the deed of sale executed by
the guardian shouldbe approved by the Court. The approval of the sale by the court,
under the facts and circumstances obtaining in this case, would then be merely proforma, since the appellants were not able to show any reason why the guardianship
could would have refused to approved the sale which was already afait accompli and
within the authority given by said court.
The appellants should be the last to impugn the lack of approval of the sale. The defeat
was not substantial so as to render the sale invalid or void. Being the petitioners-vendors
in Exhibit B, appellants cannot validly attack the proceedings had in the sale, on certain
formal technicalities, considering the fact that they were the very persons who
requested, obliged and prayed the court in the guardianship proceedings to approve the
said sale, and that they had derived the utmost advantage and benefit out of the
proceeds thereof. They are not estopped from asserting a fact inconsistent with their
previous acts.
In the original and amended oppositions, the land and house were admittedly the
conjugal property of the deceased Dr. Julio Berina and herein oppositor Julia Rabacal.
Upon the death of Dr. Berina on October 15, 1945, said properties descended to the
surviving spouse Julia Rabacal and his minor children. Under the old Civil Code (whose
provisions should apply), Julia Rabacal was entitled to one-half (1/2) as her share in the
conjugal property. This being the case, at least, the one-half portion belonging to her
which was included in the sale of the entire property to the appellee, could stand as legal
and valid. In her behalf, she could dispose of her share, even without the benefit of
judicial approval which merely goes to show that, the sale of the entire or whole
property in question, was not altogether null and void.
The rules alleged to have been violated, (Secs. 2, 3 and 4, of Rule 96, Rules of Court)
refer to the proceedings in the guardianship court and not to the proceedings in the
registration court, where the Registration Law (Act No. 495), specifically provides the
procedure to be followed, in the event the parties in a registration case desire to have
the decision thereof reviewed. The present appeal does not allege fraud in the
registration. Moreover, there being a presumption that the sale in question is valid, the
same can not be attacked collaterally in the registration proceedings. Appellants should
have filed a separate action to avoid or rescind the said sale, on the ground specified by
law.
IN VIEW HEREOF, the decision appealed from is affirmed, with costs against the
appellant.

[G.R. No. L-3071. May 29, 1950.]

SALVACION LOPEZ, Petitioner, v. JOSE TEODORO, SR., Judge of the Court of
First Instance of Occidental Negros, EULALIO LOPEZ, JR., and JESUS
JALBUENA, Respondents.
Januario L. Jison, Jose O. Hizon and Jose T. Jamandre for Petitioner.
Lakandola G. Lopez for respondents Teodoro, Sr. and Lopez, Jr.
Antonio T. Lozada for respondent Jalbuena.
SYLLABUS

1. GUARDIAN AND WARD; TO ASSAIL ORDER OF COURT TO SELL PROPERTY OF WARD;

APPEAL IS THE PROPER REMEDY. To assail the order of probate court to sell the
property of a ward, appeal and not certiorari or mandamus is the proper remedy.
2. ID.; "NEXT OF KIN" ; SISTER OF THE WARD. "Next of kin" within the meaning of Rule
96 are relatives whose relationship is such that they are entitled to share in the estate as
distributees. (33C.J., 930-931.) "Next of kin" is also defined in Blacks Law Dictionary, 3d
ed., as to mean not the next of kindred but those relatives who share in the estate
according to the statute of distribution including those claiming per stirpes or by
representation.
3. ID.; PARTIES; RIGHT TO OBJECT TO THE SALE OF WARDS PROPERTY. Only the
children have an interest in the land of their father, besides the creditors, and only they
or the creditors who may have been prejudiced by the sale have a right to obJect thereto.

DECISION
TUASON, J.:

Eulalio Lopez, Sr., an incapacitated under the judicial guardianship of Eulalio Lopez, Jr.,
was the exclusive and absolute owner of an hacienda in Silay, Negros Occidental, having
a total area of over 100 hectares. On September 3, 1948, the Court of First Instance,
acting upon a motion of Senen L. Gamboa and Adelaida Gamboa filed in the proceedings
for guardianship, ordered the guardian to pay the movants P7,312 plus 12 per cent
interest from August, 1944, amount which represented loans properly authorized by
court. The order provided that if the guardian did not have funds to pay those debts, he
should take the necessary steps for the sale of some of the property of the guardianship.
In pursuance of this authority, the guardian sold the above tract of land, the only
property of which the incapacitated was possessed, on January 11, 1949, to Jesus
Jalbuena for P66,000, who, under the terms of the sale, bound himself to pay the
mortgage debt and other obligations aggregating P22,346.30, and to satisfy the balance
in two installments.
It is admitted that in authorizing the sale of some of the property of the incapacitated,
the court did not follow the requirement of section 2 of Rule 96 to the effect that the
court shall direct the next of kin of the ward, and all persons interested in the estate, to
appear at a reasonable time and place to be specified in the order, to show cause why
the prayer for the sale should not be granted. Nor did the court specify, as provided by
section 4 of the same Rule, whether the sale should be effected publicly or privately.

the petitioner has no interest whatsoever in the subject matter of her petition; third, that
whether the sale is prejudicial or not is a proper ground for a separate action and
not certiorari or mandamus; fourth, that the sale was not made in contravention of
existing laws; and fifth, that the court, as a probate court, has lost jurisdiction over the
property sold because the land is now registered in the name of the purchaser to whom a
new transfer certificate of title has been duly issued.
Without deciding the legality or illegality of the sale, or whether this matter should be
ventilated in an ordinary action instead of in a proceeding for certiorari, it is evident that
appeal and not certiorari or mandamus is the proper remedy. Unquestionably, the court
of first instance in which the guardianship proceedings were pending had jurisdiction to
order the questioned sale. The courts jurisdiction is not disputed. Nor was there an
abuse of discretion, judging from the averments in the answers. It appears that the
outstanding indebtedness of the guardianship properly and legally incurred amounted to
P36,833.66, part of which was due the petitioner for the support and maintenance of the
incapacitated.
The other defense that does not leave much room for discussion is that the petitioner
has no legal interest in her complaint. The incapacitated has children, all of age, one of
whom is the judicial guardian, while the petitioner is only the wards sister. Not being
Eulalio Lopezs forced heir, she was not prejudiced by the sale she seeks to impugn. It is
true that she was a creditor but she does not claim any right to be notified of the sale as
such creditor, and her credit was not impaired. On the contrary, she was benefited by the
sale in that she was paid what was due her from its proceeds. As to the other creditors,
they did not appear to have any objection to the action taken by the judicial guardian
and authorized by the court.
The petitioner insists that she is next of kin. She is in error "Next of kin" within the
meaning of Rule 96 are relatives whose relationship is such that they are entitled to
share in the estate as distributees. (33 C. J., 930-931.) "Next of kin" is also defined in
Blacks Law Dictionary, 3d ed., as to mean not the next of kindred but those relatives
who share in the estate according to the statute of distribution including those claiming
per stirpes or by representation.
None of the children of the incapacitated is or was opposed to the sale sought to be set
aside. Only these had an interest in the land of their father, besides the creditors, and
only they or the creditors who may have been prejudiced by the sale have a right to
object thereto. Having reached these conclusions, it is unnecessary for us to discuss the
other questions raised.
The petition is denied, without costs.

Although Eulalio Lopez, Jr. was the judicial guardian, the incapacitated was and is under
the actual care and custody of his sister, Salvacion Lopez. Believing that the sale was
prejudicial to her brothers interests, Salvacion Lopez filed a motion for reconsideration of
the courts order authorizing said sale, and upon the motion being denied, she brought
this petition for certiorari and mandamus, contending that the sale was null and void by
reason of the courts failure to adhere to Rule 96, and praying that the orders of the
respondent court be corrected and the said court directed to revoke the sale.
The judicial guardian, Eulalio Lopez, Jr., and the vendee, Jesus Jalbuena, have filed
separate answers and raised several defenses. These are, first, that the petitioners
remedy, if she has any is by appeal and not certiorari and/or mandamus; second, that

In re Guardianship of Luis Ribaya. ADELA CARBONELL VDA. DE

RIBAYA, petitioner-appellant,

vs.
AGUSTINA R. VDA. DE RIBAYA, oppositor-appellee.
OZAETA, J.:
Adela Carbonell Vda. de Ribaya (now Mrs. Ricardo Mirasol), the mother and judicial
guardian of the minor Luis Ribaya, appeals from certain orders of the Court of First
Instance of Albay (1) approving her accounts as such guardian and ordering her to
deposit the balance of P1,574.30 in favor of said minor in the Legaspi branch of the
Philippine National Bank, and (2) removing her as such guardian and appointing in her
stead Agustina Vda. de Ribaya, paternal grandmother and said minor.
Vicente Ribaya died intestate on September 29, 1935, leaving as his only legal heirs his
minor son Luis and his widow Adela Carbonell. No intestate proceeding has been
instituted for the settlement of the estate. On July 21, 1936, Adela Carbonell applied for
her appointment as guardian of the person and property of her minor son Luis Ribaya,
stating in her application that said minor had property worth about P10,000. On July 25,
1936, the court appointed her guardian of the person and property of said minor.
On August 7, 1937, in compliance with an order of the court, the guardian presented her
first annual account, which shows an income of P1,500.55 for the period from August 2,
1936, to July 12, 1937, and expenses of P1453.11 during the same period, leaving a
balance of P47.44 in favor of the minor. Agustina Vda. de Ribaya, grandmother of the
minor, opposed the approval of said account on the ground that various items of income,
which she specified, had not been included or accounted for therein. On January 4, 1940,
the guardian presented her second annual account covering the period up to December
31, 1939, and which, including the balance of the first account, showed a total balance of
P1,574.30 in favor of the minor. Agustina R. Vda. de Ribaya, in a writing entitled
"Motion," manifested to the court (1) that the expenses appearing in said No. 2 account
of the guardian were excessive; (2) that the said guardian had contracted a second
marriage with Mr. Ricardo Mirasol, and that consequently (sic) the usufruct which she
had as widow on sixty hectares of coconut land situated in the barrios of Cullat, Pistola,
Tinampo, and Allang, municipalities of Oas and Ligao, should be considered terminated;
and (3) that, it appearing from the guardian's accounts that there exists a balance of
P1,574.30 in favor the minor, the said amount should be ordered deposited in the
Legaspi branch of the Philippine National Bank.
On April 5, 1940, the court passed upon the said two accounts of the guardian and
resolved that, although it found some of the items of the expenses to be excessive, it
approved the same with a balance of P1,574.30 in favor of the minor, and ordered the
guardian to deposit said balance within ten days in the Legaspi branch of the Philippine
National Bank. Regarding the motion for the extinction of the widow's usufruct on sixty
hectares of coconut land, the court in the same order required her to show cause within
five days why all the fruits of the said sixty hectares of land should not be credited in
favor of the minor in view of the fact that she had contracted a second marriage. Instead
of complying with the said order the guardian, through her counsel, filed a motion on

June 13, 1940, asking that the effectivity of said order be suspended pending
negotiations for amicable settlement with the oppositor, and announcing her intention to
present an amended account. On July 8, 1940, the court entered an order (a) denying the
petition for suspension of the order of April 5, 1940, and (b) declaring extinguished the
usufructuary right of the widow over the paraphernal properties of her deceased
husband, on account of her having contracted a second marriage.
On July 22, 1940, the guardian through her counsel filed a motion for the reconsideration
of the last-mentioned order. In the meantime, and on July 17 of the same year, the
oppositor Agustina R. Vda. de Ribaya had filed a motion for the removal of Adela
Carbonell as guardian of the property of the minor, on the grounds that her management
and administration had been wasteful and extravagant, and that she had refused to obey
the order of the court of April 5, 1940, to deposit the sum of P1,574.30 with the
Philippine National Bank.
On August 30, 1940, the court resolved the guardian's motion for reconsideration and
the oppositor's motion for removal and substitution of said guardian by denying the first
and granting the second. With respect, however, to the usufructuary right of the widow,
the court declared that the same should be resolved in an interstate proceeding in
accordance with articles 834-839 of the Civil Code. From the three orders of the court
above-mentioned, dated respectively April 5, July 8, and August 30, 1940, Adela
Carbonell appealed, but the court allowed the appeal only as to the last-mentioned order
and declared that those of April 5 and July 8 had become final. The order of the court of
April 5, 1940, was notified to appellant on April 20, 1940. She did not file her motion to
suspend its effectivity until June 13, 1940, that is to say, after the lapse of 54 days. The
court was, therefore, right in declaring said order final and unappealable. As to the order
of July 8, 1940, whereby the widow's usufruct was declared extinguished, the same was
set aside by the court in its order of August 30, 1940, by declaring that the matter should
be resolved in an intestate proceeding. Hence it only remains for us to review the lastmentioned order whereby the appellant was removed as guardian of the property of the
minor Luis Ribaya, and Agustina Vda. de Ribaya was appointed in her stead.
We deduce from the record that the deceased Vicente Ribaya left considerable properties
and assets and some debts, and that without instituting intestate proceedings his widow
Adela Carbonell appears to have assigned to herself the usufruct of some sixty hectares
of coconut land belonging to the deceased, leaving the rest of the decedent's assets with
the liabilities to his only son, the minor in question. For the guidance of the parties and of
the trial court, we declare such extrajudicial settlement void and of the no legal effect.
The widow, as legal heir of her deceased husband, could not validly enter into an
agreement with herself as natural guardian of her minor son for the determination and
apportionment of their respective shares in the inheritance. Moreover, the widow's
usufructuary share cannot be determined until after the debts of the estate are
liquidated. It is imperative that she institute intestate proceedings in court so that the
debts may be paid and the net assets distributed to the heirs in accordance with law. The
right of the widow is governed by the second paragraph of article 834 of the Civil Code,
which reads as follows:

If only one legitimate child or descendant survives, the widower or widow shall
have the usufruct of the third available for betterment, such child or descendant
to have the naked ownership until, on the death of the surviving spouse, the
whole title is merged in him.
The record of this case evinces a conflict of interests between the appellant and the
minor as heirs of the deceased. This fact alone, independently of the five grounds
specified by the trial court in its order substituting the appellant as guardian of the
property of the minor, suggests the property and advisability of relieving appellant as
such guardian. (Gabriel vs. Sotelo, 2 Off. Gaz., 172.)
The appellant also assigns as error the refusal of the trial court to allow her to present an
additional account and a final account before her removal as guardian. We note in this
connection that the two accounts she presented to the court as well as her proposed
additional account consist mostly of items that should be presented to and passed upon
by the court in the administration and settlement of the intestate of the deceased rather
than in this guardianship proceeding. As to the final account, the trial court in the order
appealed from did not refuse to allow the appellants to present it. On the contrary, it is
understood that before the appellant could be relieved as guardian of the property of her
ward and her bond cancelled, she has to present a final account covering the period from
January 1, 1940, to the date on which she delivers the properties of the ward to the new
guardian. The order of August 30, 1940, is affirmed with the direction made in the body
of this decision regarding the institution by the appellant of intestate proceedings for the
settlement and adjudication of the estate of the deceased Vicente Ribaya, Appellant shall
pay the costs.
G.R. No. L-11390

March 26, 1918

EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,

vs.
VICENTE PALANCA, administrator of the estate of Engracio Palanca
Tanquinyeng, defendant-appellant.
Aitken and DeSelms for appellant.
Hartigan and Welch for appellee.
STREET, J.:
This action was instituted upon March 31, 1908, by "El Banco Espanol-Filipino" to
foreclose a mortgage upon various parcels of real property situated in the city of Manila.
The mortgage in question is dated June 16, 1906, and was executed by the original
defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt
owing by him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and
was drawing interest at the rate of 8 per centum per annum, payable at the end of each
quarter. It appears that the parties to this mortgage at that time estimated the value of
the property in question at P292,558, which was about P75,000 in excess of the

indebtedness. After the execution of this instrument by the mortgagor, he returned to

China which appears to have been his native country; and he there died, upon January
29, 1810, without again returning to the Philippine Islands.
As the defendant was a nonresident at the time of the institution of the present action, it
was necessary for the plaintiff in the foreclosure proceeding to give notice to the
defendant by publication pursuant to section 399 of the Code of Civil Procedure. An order
for publication was accordingly obtained from the court, and publication was made in
due form in a newspaper of the city of Manila. At the same time that the order of the
court should deposit in the post office in a stamped envelope a copy of the summons and
complaint directed to the defendant at his last place of residence, to wit, the city of
Amoy, in the Empire of China. This order was made pursuant to the following provision
contained in section 399 of the Code of Civil Procedure:
In case of publication, where the residence of a nonresident or absent
defendant is known, the judge must direct a copy of the summons and
complaint to be forthwith deposited by the clerk in the post-office, postage
prepaid, directed to the person to be served, at his place of residence
Whether the clerk complied with this order does not affirmatively appear. There is,
however, among the papers pertaining to this case, an affidavit, dated April 4, 1908,
signed by Bernardo Chan y Garcia, an employee of the attorneys of the bank, showing
that upon that date he had deposited in the Manila post-office a registered letter,
addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the
complaint, the plaintiff's affidavit, the summons, and the order of the court directing
publication as aforesaid. It appears from the postmaster's receipt that Bernardo probably
used an envelope obtained from the clerk's office, as the receipt purports to show that
the letter emanated from the office.
The cause proceeded in usual course in the Court of First Instance; and the defendant
not having appeared, judgment was, upon July 2, 1908, taken against him by default.
Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision it was
recited that publication had been properly made in a periodical, but nothing was said
about this notice having been given mail. The court, upon this occasion, found that the
indebtedness of the defendant amounted to P249,355. 32, with interest from March 31,
1908. Accordingly it was ordered that the defendant should, on or before July 6, 1908,
deliver said amount to the clerk of the court to be applied to the satisfaction of the
judgment, and it was declared that in case of the failure of the defendant to satisfy the
judgment within such period, the mortgage property located in the city of Manila should
be exposed to public sale. The payment contemplated in said order was never made;
and upon July 8, 1908, the court ordered the sale of the property. The sale took place
upon July 30, 1908, and the property was bought in by the bank for the sum of P110,200.
Upon August 7, 1908, this sale was confirmed by the court.
About seven years after the confirmation of this sale, or to the precise, upon June 25,
1915, a motion was made in this cause by Vicente Palanca, as administrator of the estate

of the original defendant, Engracio Palanca Tanquinyeng y Limquingco, wherein the

applicant requested the court to set aside the order of default of July 2, 1908, and the
judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent
thereto. The basis of this application, as set forth in the motion itself, was that the order
of default and the judgment rendered thereon were void because the court had never
acquired jurisdiction over the defendant or over the subject of the action.
At the hearing in the court below the application to vacate the judgment was denied, and
from this action of the court Vicente Planca, as administrator of the estate of the original
defendant, has appealed. No other feature of the case is here under consideration than
such as related to the action of the court upon said motion.
The case presents several questions of importance, which will be discussed in what
appears to be the sequence of most convenient development. In the first part of this
opinion we shall, for the purpose of argument, assume that the clerk of the Court of First
Instance did not obey the order of the court in the matter of mailing the papers which he
was directed to send to the defendant in Amoy; and in this connection we shall consider,
first, whether the court acquired the necessary jurisdiction to enable it to proceed with
the foreclosure of the mortgage and, secondly, whether those proceedings were
conducted in such manner as to constitute due process of law.
The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in
several different, though related, senses since it may have reference (1) to the authority
of the court to entertain a particular kind of action or to administer a particular kind of
relief, or it may refer to the power of the court over the parties, or (2) over the property
which is the subject to the litigation.
The sovereign authority which organizes a court determines the nature and extent of its
powers in general and thus fixes its competency or jurisdiction with reference to the
actions which it may entertain and the relief it may grant.
Jurisdiction over the person is acquired by the voluntary appearance of a party in court
and his submission to its authority, or it is acquired by the coercive power of legal
process exerted over the person.
Jurisdiction over the property which is the subject of the litigation may result either from
a seizure of the property under legal process, whereby it is brought into the actual
custody of the law, or it may result from the institution of legal proceedings wherein,
under special provisions of law, the power of the court over the property is recognized
and made effective. In the latter case the property, though at all times within the
potential power of the court, may never be taken into actual custody at all. An illustration
of the jurisdiction acquired by actual seizure is found in attachment proceedings, where
the property is seized at the beginning of the action, or some subsequent stage of its
progress, and held to abide the final event of the litigation. An illustration of what we
term potential jurisdiction over the res, is found in the proceeding to register the title of
land under our system for the registration of land. Here the court, without taking actual

physical control over the property assumes, at the instance of some person claiming to
be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in
favor of the petitioner against all the world.
In the terminology of American law the action to foreclose a mortgage is said to be a
proceeding quasi in rem, by which is expressed the idea that while it is not strictly
speaking an action in rem yet it partakes of that nature and is substantially such. The
expression "action in rem" is, in its narrow application, used only with reference to
certain proceedings in courts of admiralty wherein the property alone is treated as
responsible for the claim or obligation upon which the proceedings are based. The action
quasi rem differs from the true action in rem in the circumstance that in the former an
individual is named as defendant, and the purpose of the proceeding is to subject his
interest therein to the obligation or lien burdening the property. All proceedings having
for their sole object the sale or other disposition of the property of the defendant,
whether by attachment, foreclosure, or other form of remedy, are in a general way thus
designated. The judgment entered in these proceedings is conclusive only between the
parties.
In speaking of the proceeding to foreclose a mortgage the author of a well known
treaties, has said:
Though nominally against person, such suits are to vindicate liens; they proceed
upon seizure; they treat property as primarily indebted; and, with the
qualification above-mentioned, they are substantially property actions. In the
civil law, they are styled hypothecary actions, and their sole object is the
enforcement of the lien against the res; in the common law, they would be
different in chancery did not treat the conditional conveyance as a mere
hypothecation, and the creditor's right ass an equitable lien; so, in both, the suit
is real action so far as it is against property, and seeks the judicial recognition of
a property debt, and an order for the sale of the res. (Waples, Proceedings In
Rem. sec. 607.)
It is true that in proceedings of this character, if the defendant for whom publication is
made appears, the action becomes as to him a personal action and is conducted as such.
This, however, does not affect the proposition that where the defendant fails to appear
the action is quasi in rem; and it should therefore be considered with reference to the
principles governing actions in rem.
There is an instructive analogy between the foreclosure proceeding and an action of
attachment, concerning which the Supreme Court of the United States has used the
following language:
If the defendant appears, the cause becomes mainly a suit in personam, with
the added incident, that the property attached remains liable, under the control
of the court, to answer to any demand which may be established against the
defendant by the final judgment of the court. But, if there is no appearance of

the defendant, and no service of process on him, the case becomes, in its
essential nature, a proceeding in rem, the only effect of which is to subject the
property attached to the payment of the defendant which the court may find to
be due to the plaintiff. (Cooper vs. Reynolds, 10 Wall., 308.)
In an ordinary attachment proceeding, if the defendant is not personally served, the
preliminary seizure is to, be considered necessary in order to confer jurisdiction upon the
court. In this case the lien on the property is acquired by the seizure; and the purpose of
the proceedings is to subject the property to that lien. If a lien already exists, whether
created by mortgage, contract, or statute, the preliminary seizure is not necessary; and
the court proceeds to enforce such lien in the manner provided by law precisely as
though the property had been seized upon attachment. (Roller vs. Holly, 176 U. S., 398,
405; 44 L. ed., 520.) It results that the mere circumstance that in an attachment the
property may be seized at the inception of the proceedings, while in the foreclosure suit
it is not taken into legal custody until the time comes for the sale, does not materially
affect the fundamental principle involved in both cases, which is that the court is here
exercising a jurisdiction over the property in a proceeding directed essentially in rem.
Passing now to a consideration of the jurisdiction of the Court of First Instance in a
mortgage foreclosure, it is evident that the court derives its authority to entertain the
action primarily from the statutes organizing the court. The jurisdiction of the court, in
this most general sense, over the cause of action is obvious and requires no comment.
Jurisdiction over the person of the defendant, if acquired at all in such an action, is
obtained by the voluntary submission of the defendant or by the personal service of
process upon him within the territory where the process is valid. If, however, the
defendant is a nonresident and, remaining beyond the range of the personal process of
the court, refuses to come in voluntarily, the court never acquires jurisdiction over the
person at all. Here the property itself is in fact the sole thing which is impleaded and is
the responsible object which is the subject of the exercise of judicial power. It follows that
the jurisdiction of the court in such case is based exclusively on the power which, under
the law, it possesses over the property; and any discussion relative to the jurisdiction of
the court over the person of the defendant is entirely apart from the case. The
jurisdiction of the court over the property, considered as the exclusive object of such
action, is evidently based upon the following conditions and considerations, namely: (1)
that the property is located within the district; (2) that the purpose of the litigation is to
subject the property by sale to an obligation fixed upon it by the mortgage; and (3) that
the court at a proper stage of the proceedings takes the property into custody, if
necessary, and expose it to sale for the purpose of satisfying the mortgage debt. An
obvious corollary is that no other relief can be granted in this proceeding than such as
can be enforced against the property.
We may then, from what has been stated, formulated the following proposition relative to
the foreclosure proceeding against the property of a nonresident mortgagor who fails to
come in and submit himself personally to the jurisdiction of the court: (I) That the
jurisdiction of the court is derived from the power which it possesses over the property;
(II) that jurisdiction over the person is not acquired and is nonessential; (III) that the relief

granted by the court must be limited to such as can be enforced against the property
itself.
It is important that the bearing of these propositions be clearly apprehended, for there
are many expressions in the American reports from which it might be inferred that the
court acquires personal jurisdiction over the person of the defendant by publication and
notice; but such is not the case. In truth the proposition that jurisdiction over the person
of a nonresident cannot be acquired by publication and notice was never clearly
understood even in the American courts until after the decision had been rendered by
the Supreme Court of the United States in the leading case of Pennoyer vs. Neff (95 U. S.
714; 24 L. ed., 565). In the light of that decision, and of other decisions which have
subsequently been rendered in that and other courts, the proposition that jurisdiction
over the person cannot be thus acquired by publication and notice is no longer open to
question; and it is now fully established that a personal judgment upon constructive or
substituted service against a nonresident who does not appear is wholly invalid. This
doctrine applies to all kinds of constructive or substituted process, including service by
publication and personal service outside of the jurisdiction in which the judgment is
rendered; and the only exception seems to be found in the case where the nonresident
defendant has expressly or impliedly consented to the mode of service. (Note to Raher
vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312
The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the
process from the tribunals of one State cannot run into other States or countries and that
due process of law requires that the defendant shall be brought under the power of the
court by service of process within the State, or by his voluntary appearance, in order to
authorize the court to pass upon the question of his personal liability. The doctrine
established by the Supreme Court of the United States on this point, being based upon
the constitutional conception of due process of law, is binding upon the courts of the
Philippine Islands. Involved in this decision is the principle that in proceedings in rem or
quasi in rem against a nonresident who is not served personally within the state, and
who does not appear, the relief must be confined to the res, and the court cannot
lawfully render a personal judgment against him. (Dewey vs. Des Moines, 173 U. S., 193;
43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.)
Therefore in an action to foreclose a mortgage against a nonresident, upon whom service
has been effected exclusively by publication, no personal judgment for the deficiency
can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.)
It is suggested in the brief of the appellant that the judgment entered in the court below
offends against the principle just stated and that this judgment is void because the court
in fact entered a personal judgment against the absent debtor for the full amount of the
indebtedness secured by the mortgage. We do not so interpret the judgment.
In a foreclosure proceeding against a nonresident owner it is necessary for the court, as
in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of
the Code of Civil Procedure, and to make an order requiring the defendant to pay the
money into court. This step is a necessary precursor of the order of sale. In the present
case the judgment which was entered contains the following words:

Because it is declared that the said defendant Engracio Palanca Tanquinyeng y

Limquingco, is indebted in the amount of P249,355.32, plus the interest, to the
'Banco Espanol-Filipino' . . . therefore said appellant is ordered to deliver the
above amount etc., etc.
This is not the language of a personal judgment. Instead it is clearly intended merely as
a compliance with the requirement that the amount due shall be ascertained and that
the evidence of this it may be observed that according to the Code of Civil Procedure a
personal judgment against the debtor for the deficiency is not to be rendered until after
the property has been sold and the proceeds applied to the mortgage debt. (sec. 260).
The conclusion upon this phase of the case is that whatever may be the effect in other
respects of the failure of the clerk of the Court of First Instance to mail the proper papers
to the defendant in Amoy, China, such irregularity could in no wise impair or defeat the
jurisdiction of the court, for in our opinion that jurisdiction rest upon a basis much more
secure than would be supplied by any form of notice that could be given to a resident of
a foreign country.
Before leaving this branch of the case, we wish to observe that we are fully aware that
many reported cases can be cited in which it is assumed that the question of the
sufficiency of publication or notice in a case of this kind is a question affecting the
jurisdiction of the court, and the court is sometimes said to acquire jurisdiction by virtue
of the publication. This phraseology was undoubtedly originally adopted by the court
because of the analogy between service by the publication and personal service of
process upon the defendant; and, as has already been suggested, prior to the decision of
Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of
service was obscure. It is accordingly not surprising that the modes of expression which
had already been molded into legal tradition before that case was decided have been
brought down to the present day. But it is clear that the legal principle here involved is
not effected by the peculiar language in which the courts have expounded their ideas.
We now proceed to a discussion of the question whether the supposed irregularity in the
proceedings was of such gravity as to amount to a denial of that "due process of law"
which was secured by the Act of Congress in force in these Islands at the time this
mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions involving
the application of the constitutional provisions relating to due process of law the
Supreme Court of the United States has refrained from attempting to define with
precision the meaning of that expression, the reason being that the idea expressed
therein is applicable under so many diverse conditions as to make any attempt ay
precise definition hazardous and unprofitable. As applied to a judicial proceeding,
however, it may be laid down with certainty that the requirement of due process is
satisfied if the following conditions are present, namely; (1) There must be a court or
tribunal clothed with judicial power to hear and determine the matter before it; (2)
jurisdiction must be lawfully acquired over the person of the defendant or over the
property which is the subject of the proceeding; (3) the defendant must be given an
opportunity to be heard; and (4) judgment must be rendered upon lawful hearing.

Passing at once to the requisite that the defendant shall have an opportunity to be
heard, we observe that in a foreclosure case some notification of the proceedings to the
nonresident owner, prescribing the time within which appearance must be made, is
everywhere recognized as essential. To answer this necessity the statutes generally
provide for publication, and usually in addition thereto, for the mailing of notice to the
defendant, if his residence is known. Though commonly called constructive, or
substituted service of process in any true sense. It is merely a means provided by law
whereby the owner may be admonished that his property is the subject of judicial
proceedings and that it is incumbent upon him to take such steps as he sees fit to
protect it. In speaking of notice of this character a distinguish master of constitutional
law has used the following language:
. . . if the owners are named in the proceedings, and personal notice is provided
for, it is rather from tenderness to their interests, and in order to make sure that
the opportunity for a hearing shall not be lost to them, than from any necessity
that the case shall assume that form. (Cooley on Taxation [2d. ed.], 527, quoted
in Leigh vs. Green, 193 U. S., 79, 80.)
It will be observed that this mode of notification does not involve any absolute assurance
that the absent owner shall thereby receive actual notice. The periodical containing the
publication may never in fact come to his hands, and the chances that he should
discover the notice may often be very slight. Even where notice is sent by mail the
probability of his receiving it, though much increased, is dependent upon the correctness
of the address to which it is forwarded as well as upon the regularity and security of the
mail service. It will be noted, furthermore, that the provision of our law relative to the
mailing of notice does not absolutely require the mailing of notice unconditionally and in
every event, but only in the case where the defendant's residence is known. In the light
of all these facts, it is evident that actual notice to the defendant in cases of this kind is
not, under the law, to be considered absolutely necessary.
The idea upon which the law proceeds in recognizing the efficacy of a means of
notification which may fall short of actual notice is apparently this: Property is always
assumed to be in the possession of its owner, in person or by agent; and he may be
safely held, under certain conditions, to be affected with knowledge that proceedings
have been instituted for its condemnation and sale.
It is the duty of the owner of real estate, who is a nonresident, to take measures
that in some way he shall be represented when his property is called into
requisition, and if he fails to do this, and fails to get notice by the ordinary
publications which have usually been required in such cases, it is his misfortune,
and he must abide the consequences. (6 R. C. L., sec. 445 [p. 450]).
It has been well said by an American court:
If property of a nonresident cannot be reached by legal process upon the
constructive notice, then our statutes were passed in vain, and are mere empty

legislative declarations, without either force, or meaning; for if the person is not
within the jurisdiction of the court, no personal judgment can be rendered, and
if the judgment cannot operate upon the property, then no effective judgment
at all can be rendered, so that the result would be that the courts would be
powerless to assist a citizen against a nonresident. Such a result would be a
deplorable one. (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.)
It is, of course universally recognized that the statutory provisions relative to publication
or other form of notice against a nonresident owner should be complied with; and in
respect to the publication of notice in the newspaper it may be stated that strict
compliance with the requirements of the law has been held to be essential. In Guaranty
Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S., 137, 138), it was held that
where newspaper publication was made for 19 weeks, when the statute required 20, the
publication was insufficient.
With respect to the provisions of our own statute, relative to the sending of notice by
mail, the requirement is that the judge shall direct that the notice be deposited in the
mail by the clerk of the court, and it is not in terms declared that the notice must be
deposited in the mail. We consider this to be of some significance; and it seems to us
that, having due regard to the principles upon which the giving of such notice is required,
the absent owner of the mortgaged property must, so far as the due process of law is
concerned, take the risk incident to the possible failure of the clerk to perform his duty,
somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose
or destroy the parcel or envelope containing the notice before it should reach its
destination and be delivered to him. This idea seems to be strengthened by the
consideration that placing upon the clerk the duty of sending notice by mail, the
performance of that act is put effectually beyond the control of the plaintiff in the
litigation. At any rate it is obvious that so much of section 399 of the Code of Civil
Procedure as relates to the sending of notice by mail was complied with when the court
made the order. The question as to what may be the consequences of the failure of the
record to show the proof of compliance with that requirement will be discussed by us
further on.
The observations which have just been made lead to the conclusion that the failure of
the clerk to mail the notice, if in fact he did so fail in his duty, is not such an irregularity,
as amounts to a denial of due process of law; and hence in our opinion that irregularity, if
proved, would not avoid the judgment in this case. Notice was given by publication in a
newspaper and this is the only form of notice which the law unconditionally requires. This
in our opinion is all that was absolutely necessary to sustain the proceedings.
It will be observed that in considering the effect of this irregularity, it makes a difference
whether it be viewed as a question involving jurisdiction or as a question involving due
process of law. In the matter of jurisdiction there can be no distinction between the much
and the little. The court either has jurisdiction or it has not; and if the requirement as to
the mailing of notice should be considered as a step antecedent to the acquiring of
jurisdiction, there could be no escape from the conclusion that the failure to take that
step was fatal to the validity of the judgment. In the application of the idea of due

process of law, on the other hand, it is clearly unnecessary to be so rigorous. The

jurisdiction being once established, all that due process of law thereafter requires is an
opportunity for the defendant to be heard; and as publication was duly made in the
newspaper, it would seem highly unreasonable to hold that failure to mail the notice was
fatal. We think that in applying the requirement of due process of law, it is permissible to
reflect upon the purposes of the provision which is supposed to have been violated and
the principle underlying the exercise of judicial power in these proceedings. Judge in the
light of these conceptions, we think that the provision of Act of Congress declaring that
no person shall be deprived of his property without due process of law has not been
infringed.
In the progress of this discussion we have stated the two conclusions; (1) that the failure
of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of
the court and (2) that such irregularity did not infringe the requirement of due process of
law. As a consequence of these conclusions the irregularity in question is in some
measure shorn of its potency. It is still necessary, however, to consider its effect
considered as a simple irregularity of procedure; and it would be idle to pretend that
even in this aspect the irregularity is not grave enough. From this point of view, however,
it is obvious that any motion to vacate the judgment on the ground of the irregularity in
question must fail unless it shows that the defendant was prejudiced by that irregularity.
The least, therefore, that can be required of the proponent of such a motion is to show
that he had a good defense against the action to foreclose the mortgage. Nothing of the
kind is, however, shown either in the motion or in the affidavit which accompanies the
motion.
An application to open or vacate a judgment because of an irregularity or defect in the
proceedings is usually required to be supported by an affidavit showing the grounds on
which the relief is sought, and in addition to this showing also a meritorious defense to
the action. It is held that a general statement that a party has a good defense to the
action is insufficient. The necessary facts must be averred. Of course if a judgment is
void upon its face a showing of the existence of a meritorious defense is not necessary.
(10 R. C. L., 718.)
The lapse of time is also a circumstance deeply affecting this aspect of the case. In this
connection we quote the following passage from the encyclopedic treatise now in course
of publication:
Where, however, the judgment is not void on its face, and may therefore be
enforced if permitted to stand on the record, courts in many instances refuse to
exercise their quasi equitable powers to vacate a judgement after the lapse of
the term ay which it was entered, except in clear cases, to promote the ends of
justice, and where it appears that the party making the application is himself
without fault and has acted in good faith and with ordinary diligence. Laches on
the part of the applicant, if unexplained, is deemed sufficient ground for
refusing the relief to which he might otherwise be entitled. Something is due to
the finality of judgments, and acquiescence or unnecessary delay is fatal to
motions of this character, since courts are always reluctant to interfere with

judgments, and especially where they have been executed or satisfied. The
moving party has the burden of showing diligence, and unless it is shown
affirmatively the court will not ordinarily exercise its discretion in his favor. (15
R. C. L., 694, 695.)
It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y
Limquingco, died January 29, 1910. The mortgage under which the property was sold
was executed far back in 1906; and the proceedings in the foreclosure were closed by
the order of court confirming the sale dated August 7, 1908. It passes the rational
bounds of human credulity to suppose that a man who had placed a mortgage upon
property worth nearly P300,000 and had then gone away from the scene of his life
activities to end his days in the city of Amoy, China, should have long remained in
ignorance of the fact that the mortgage had been foreclosed and the property sold, even
supposing that he had no knowledge of those proceedings while they were being
conducted. It is more in keeping with the ordinary course of things that he should have
acquired information as to what was transpiring in his affairs at Manila; and upon the
basis of this rational assumption we are authorized, in the absence of proof to the
contrary, to presume that he did have, or soon acquired, information as to the sale of his
property.
The Code of Civil Procedure, indeed, expressly declares that there is a presumption that
things have happened according to the ordinary habits of life (sec. 334 [26]); and we
cannot conceive of a situation more appropriate than this for applying the presumption
thus defined by the lawgiver. In support of this presumption, as applied to the present
case, it is permissible to consider the probability that the defendant may have received
actual notice of these proceedings from the unofficial notice addressed to him in Manila
which was mailed by an employee of the bank's attorneys. Adopting almost the exact
words used by the Supreme Court of the United States in Grannis vs. Ordeans (234 U. S.,
385; 58 L. ed., 1363), we may say that in view of the well-known skill of postal officials
and employees in making proper delivery of letters defectively addressed, we think the
presumption is clear and strong that this notice reached the defendant, there being no
proof that it was ever returned by the postal officials as undelivered. And if it was
delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that
the recipient was a person sufficiently interested in his affairs to send it or communicate
its contents to him.
Of course if the jurisdiction of the court or the sufficiency of the process of law depended
upon the mailing of the notice by the clerk, the reflections in which we are now indulging
would be idle and frivolous; but the considerations mentioned are introduced in order to
show the propriety of applying to this situation the legal presumption to which allusion
has been made. Upon that presumption, supported by the circumstances of this case,
,we do not hesitate to found the conclusion that the defendant voluntarily abandoned all
thought of saving his property from the obligation which he had placed upon it; that
knowledge of the proceedings should be imputed to him; and that he acquiesced in the
consequences of those proceedings after they had been accomplished. Under these
circumstances it is clear that the merit of this motion is, as we have already stated,
adversely affected in a high degree by the delay in asking for relief. Nor is it an adequate

reply to say that the proponent of this motion is an administrator who only qualified a
few months before this motion was made. No disability on the part of the defendant
himself existed from the time when the foreclosure was effected until his death; and we
believe that the delay in the appointment of the administrator and institution of this
action is a circumstance which is imputable to the parties in interest whoever they may
have been. Of course if the minor heirs had instituted an action in their own right to
recover the property, it would have been different.
It is, however, argued that the defendant has suffered prejudice by reason of the fact
that the bank became the purchaser of the property at the foreclosure sale for a price
greatly below that which had been agreed upon in the mortgage as the upset price of the
property. In this connection, it appears that in article nine of the mortgage which was the
subject of this foreclosure, as amended by the notarial document of July 19, 1906, the
parties to this mortgage made a stipulation to the effect that the value therein placed
upon the mortgaged properties should serve as a basis of sale in case the debt should
remain unpaid and the bank should proceed to a foreclosure. The upset price stated in
that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in
behalf of the appellant that when the bank bought in the property for the sum of
P110,200 it violated that stipulation.
It has been held by this court that a clause in a mortgage providing for a tipo, or upset
price, does not prevent a foreclosure, nor affect the validity of a sale made in the
foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil. Rep., 402;
Banco-Espaol Filipino vs. Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both the cases
here cited the property was purchased at the foreclosure sale, not by the creditor or
mortgagee, but by a third party. Whether the same rule should be applied in a case
where the mortgagee himself becomes the purchaser has apparently not been decided
by this court in any reported decision, and this question need not here be considered,
since it is evident that if any liability was incurred by the bank by purchasing for a price
below that fixed in the stipulation, its liability was a personal liability derived from the
contract of mortgage; and as we have already demonstrated such a liability could not be
the subject of adjudication in an action where the court had no jurisdiction over the
person of the defendant. If the plaintiff bank became liable to account for the difference
between the upset price and the price at which in bought in the property, that liability
remains unaffected by the disposition which the court made of this case; and the fact
that the bank may have violated such an obligation can in no wise affect the validity of
the judgment entered in the Court of First Instance.
In connection with the entire failure of the motion to show either a meritorious defense
to the action or that the defendant had suffered any prejudice of which the law can take
notice, we may be permitted to add that in our opinion a motion of this kind, which
proposes to unsettle judicial proceedings long ago closed, can not be considered with
favor, unless based upon grounds which appeal to the conscience of the court. Public
policy requires that judicial proceedings be upheld. The maximum here applicable is non
quieta movere. As was once said by Judge Brewer, afterwards a member of the Supreme
Court of the United States:

Public policy requires that judicial proceedings be upheld, and that titles
obtained in those proceedings be safe from the ruthless hand of collateral
attack. If technical defects are adjudged potent to destroy such titles, a judicial
sale will never realize that value of the property, for no prudent man will risk his
money in bidding for and buying that title which he has reason to fear may
years thereafter be swept away through some occult and not readily
discoverable defect. (Martin vs. Pond, 30 Fed., 15.)
In the case where that language was used an attempt was made to annul certain
foreclosure proceedings on the ground that the affidavit upon which the order of
publication was based erroneously stated that the State of Kansas, when he was in fact
residing in another State. It was held that this mistake did not affect the validity of the
proceedings.
In the preceding discussion we have assumed that the clerk failed to send the notice by
post as required by the order of the court. We now proceed to consider whether this is a
proper assumption; and the proposition which we propose to establish is that there is a
legal presumption that the clerk performed his duty as the ministerial officer of the court,
which presumption is not overcome by any other facts appearing in the cause.
In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is a
presumption "that official duty has been regularly performed;" and in subsection 18 it is
declared that there is a presumption "that the ordinary course of business has been
followed." These presumptions are of course in no sense novelties, as they express ideas
which have always been recognized. Omnia presumuntur rite et solemniter esse acta
donec probetur in contrarium. There is therefore clearly a legal presumption that the
clerk performed his duty about mailing this notice; and we think that strong
considerations of policy require that this presumption should be allowed to operate with
full force under the circumstances of this case. A party to an action has no control over
the clerk of the court; and has no right to meddle unduly with the business of the clerk in
the performance of his duties. Having no control over this officer, the litigant must
depend upon the court to see that the duties imposed on the clerk are performed.
Other considerations no less potent contribute to strengthen the conclusion just stated.
There is no principle of law better settled than that after jurisdiction has once been
required, every act of a court of general jurisdiction shall be presumed to have been
rightly done. This rule is applied to every judgment or decree rendered in the various
stages of the proceedings from their initiation to their completion (Voorhees vs. United
States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with respect to any
fact which must have been established before the court could have rightly acted, it will
be presumed that such fact was properly brought to its knowledge. (The Lessee of
Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.)
In making the order of sale [of the real state of a decedent] the court are
presumed to have adjudged every question necessary to justify such order or
decree, viz: The death of the owners; that the petitioners were his

administrators; that the personal estate was insufficient to pay the debts of the
deceased; that the private acts of Assembly, as to the manner of sale, were
within the constitutional power of the Legislature, and that all the provisions of
the law as to notices which are directory to the administrators have been
complied with. . . . The court is not bound to enter upon the record the evidence
on which any fact was decided. (Florentine vs. Barton, 2 Wall., 210; 17 L. ed.,
785.) Especially does all this apply after long lapse of time.
Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an
instructive discussion in a case analogous to that which is now before us. It there
appeared that in order to foreclose a mortgage in the State of Kentucky against a
nonresident debtor it was necessary that publication should be made in a newspaper for
a specified period of time, also be posted at the front door of the court house and be
published on some Sunday, immediately after divine service, in such church as the court
should direct. In a certain action judgment had been entered against a nonresident, after
publication in pursuance of these provisions. Many years later the validity of the
proceedings was called in question in another action. It was proved from the files of an
ancient periodical that publication had been made in its columns as required by law; but
no proof was offered to show the publication of the order at the church, or the posting of
it at the front door of the court-house. It was insisted by one of the parties that the
judgment of the court was void for lack of jurisdiction. But the Supreme Court of the
United States said:
The court which made the decree . . . was a court of general jurisdiction.
Therefore every presumption not inconsistent with the record is to be indulged
in favor of its jurisdiction. . . . It is to be presumed that the court before making
its decree took care of to see that its order for constructive service, on which its
right to make the decree depended, had been obeyed.
It is true that in this case the former judgment was the subject of collateral , or indirect
attack, while in the case at bar the motion to vacate the judgment is direct proceeding
for relief against it. The same general presumption, however, is indulged in favor of the
judgment of a court of general jurisdiction, whether it is the subject of direct or indirect
attack the only difference being that in case of indirect attack the judgment is
conclusively presumed to be valid unless the record affirmatively shows it to be void,
while in case of direct attack the presumption in favor of its validity may in certain cases
be overcome by proof extrinsic to the record.
The presumption that the clerk performed his duty and that the court made its decree
with the knowledge that the requirements of law had been complied with appear to be
amply sufficient to support the conclusion that the notice was sent by the clerk as
required by the order. It is true that there ought to be found among the papers on file in
this cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing
that the order was in fact so sent by the clerk; and no such affidavit appears. The record
is therefore silent where it ought to speak. But the very purpose of the law in recognizing
these presumptions is to enable the court to sustain a prior judgment in the face of such
an omission. If we were to hold that the judgment in this case is void because the proper

affidavit is not present in the file of papers which we call the record, the result would be
that in the future every title in the Islands resting upon a judgment like that now before
us would depend, for its continued security, upon the presence of such affidavit among
the papers and would be liable at any moment to be destroyed by the disappearance of
that piece of paper. We think that no court, with a proper regard for the security of
judicial proceedings and for the interests which have by law been confided to the courts,
would incline to favor such a conclusion. In our opinion the proper course in a case of this
kind is to hold that the legal presumption that the clerk performed his duty still maintains
notwithstanding the absence from the record of the proper proof of that fact.
In this connection it is important to bear in mind that under the practice prevailing in the
Philippine Islands the word "record" is used in a loose and broad sense, as indicating the
collective mass of papers which contain the history of all the successive steps taken in a
case and which are finally deposited in the archives of the clerk's office as a memorial of
the litigation. It is a matter of general information that no judgment roll, or book of final
record, is commonly kept in our courts for the purpose of recording the pleadings and
principal proceedings in actions which have been terminated; and in particular, no such
record is kept in the Court of First Instance of the city of Manila. There is, indeed, a
section of the Code of Civil Procedure which directs that such a book of final record shall
be kept; but this provision has, as a matter of common knowledge, been generally
ignored. The result is that in the present case we do not have the assistance of the
recitals of such a record to enable us to pass upon the validity of this judgment and as
already stated the question must be determined by examining the papers contained in
the entire file.
But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y Garcia
showing that upon April 4, 1908, he sent a notification through the mail addressed to the
defendant at Manila, Philippine Islands, should be accepted as affirmative proof that the
clerk of the court failed in his duty and that, instead of himself sending the requisite
notice through the mail, he relied upon Bernardo to send it for him. We do not think that
this is by any means a necessary inference. Of course if it had affirmatively appeared
that the clerk himself had attempted to comply with this order and had directed the
notification to Manila when he should have directed it to Amoy, this would be conclusive
that he had failed to comply with the exact terms of the order; but such is not this case.
That the clerk of the attorneys for the plaintiff erroneously sent a notification to the
defendant at a mistaken address affords in our opinion very slight basis for supposing
that the clerk may not have sent notice to the right address.
There is undoubtedly good authority to support the position that when the record states
the evidence or makes an averment with reference to a jurisdictional fact, it will not be
presumed that there was other or different evidence respecting the fact, or that the fact
was otherwise than stated. If, to give an illustration, it appears from the return of the
officer that the summons was served at a particular place or in a particular manner, it
will not be presumed that service was also made at another place or in a different
manner; or if it appears that service was made upon a person other than the defendant,
it will not be presumed, in the silence of the record, that it was made upon the defendant
also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U. S., 444, 449).

While we believe that these propositions are entirely correct as applied to the case where
the person making the return is the officer who is by law required to make the return, we
do not think that it is properly applicable where, as in the present case, the affidavit was
made by a person who, so far as the provisions of law are concerned, was a mere
intermeddler.
The last question of importance which we propose to consider is whether a motion in the
cause is admissible as a proceeding to obtain relief in such a case as this. If the motion
prevails the judgment of July 2, 1908, and all subsequent proceedings will be set aside,
and the litigation will be renewed, proceeding again from the date mentioned as if the
progress of the action had not been interrupted. The proponent of the motion does not
ask the favor of being permitted to interpose a defense. His purpose is merely to annul
the effective judgment of the court, to the end that the litigation may again resume its
regular course.
There is only one section of the Code of Civil Procedure which expressly recognizes the
authority of a Court of First Instance to set aside a final judgment and permit a renewal
of the litigation in the same cause. This is as follows:
SEC. 113. Upon such terms as may be just the court may relieve a party or legal
representative from the judgment, order, or other proceeding taken against him
through his mistake, inadvertence, surprise, or excusable neglect; Provided,
That application thereof be made within a reasonable time, but in no case
exceeding six months after such judgment, order, or proceeding was taken.
An additional remedy by petition to the Supreme Court is supplied by section 513 of the
same Code. The first paragraph of this section, in so far as pertinent to this discussion,
provides as follows:
When a judgment is rendered by a Court of First Instance upon default, and a
party thereto is unjustly deprived of a hearing by fraud, accident, mistake or
excusable negligence, and the Court of First Instance which rendered the
judgment has finally adjourned so that no adequate remedy exists in that court,
the party so deprived of a hearing may present his petition to the Supreme
Court within sixty days after he first learns of the rendition of such judgment,
and not thereafter, setting forth the facts and praying to have judgment set
aside. . . .
It is evident that the proceeding contemplated in this section is intended to supplement
the remedy provided by section 113; and we believe the conclusion irresistible that there
is no other means recognized by law whereby a defeated party can, by a proceeding in
the same cause, procure a judgment to be set aside, with a view to the renewal of the
litigation.
The Code of Civil Procedure purports to be a complete system of practice in civil causes,
and it contains provisions describing with much fullness the various steps to be taken in

the conduct of such proceedings. To this end it defines with precision the method of
beginning, conducting, and concluding the civil action of whatever species; and by
section 795 of the same Code it is declared that the procedure in all civil action shall be
in accordance with the provisions of this Code. We are therefore of the opinion that the
remedies prescribed in sections 113 and 513 are exclusive of all others, so far as relates
to the opening and continuation of a litigation which has been once concluded.
The motion in the present case does not conform to the requirements of either of these
provisions; and the consequence is that in our opinion the action of the Court of First
Instance in dismissing the motion was proper.
If the question were admittedly one relating merely to an irregularity of procedure, we
cannot suppose that this proceeding would have taken the form of a motion in the cause,
since it is clear that, if based on such an error, the came to late for relief in the Court of
First Instance. But as we have already seen, the motion attacks the judgment of the
court as void for want of jurisdiction over the defendant. The idea underlying the motion
therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and
at any time. If the judgment were in fact void upon its face, that is, if it were shown to be
a nullity by virtue of its own recitals, there might possibly be something in this. Where a
judgment or judicial order is void in this sense it may be said to be a lawless thing, which
can be treated as an outlaw and slain at sight, or ignored wherever and whenever it
exhibits its head.
But the judgment in question is not void in any such sense. It is entirely regular in form,
and the alleged defect is one which is not apparent upon its face. It follows that even if
the judgment could be shown to be void for want of jurisdiction, or for lack of due
process of law, the party aggrieved thereby is bound to resort to some appropriate
proceeding to obtain relief. Under accepted principles of law and practice, long
recognized in American courts, a proper remedy in such case, after the time for appeal
or review has passed, is for the aggrieved party to bring an action to enjoin the
judgment, if not already carried into effect; or if the property has already been disposed
of he may institute suit to recover it. In every situation of this character an appropriate
remedy is at hand; and if property has been taken without due process, the law concedes
due process to recover it. We accordingly old that, assuming the judgment to have been
void as alleged by the proponent of this motion, the proper remedy was by an original
proceeding and not by motion in the cause. As we have already seen our Code of Civil
Procedure defines the conditions under which relief against a judgment may be
productive of conclusion for this court to recognize such a proceeding as proper under
conditions different from those defined by law. Upon the point of procedure here
involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held
that a motion will not lie to vacate a judgment after the lapse of the time limited by
statute if the judgment is not void on its face; and in all cases, after the lapse of the time
limited by statute if the judgment is not void on its face; and all cases, after the lapse of
such time, when an attempt is made to vacate the judgment by a proceeding in court for
that purpose an action regularly brought is preferable, and should be required. It will be
noted taken verbatim from the California Code (sec. 473).

The conclusions stated in this opinion indicate that the judgment appealed from is
without error, and the same is accordingly affirmed, with costs. So ordered.

For clarity, We have hereunder summarized the sequence of events and material dates
as it appears in the records from the time respondent Judge of Branch IV of the Court of
First Instance of Quezon took cognizance of Special Proceedings No. 2641.
On December 20, 1966, respondent Judge authorized and approved, upon motion of
Fransisco Rodriguez, Jr. (guardian of Soledad Rodriguez), hereinafter referred to as
private respondent, the sale to Luis Parco and Virginia Bautista, hereinafter referred to as
the petitioners, of Lot Nos. 3437 (613 sq. meters) and 4389 (4,068 sq. meters) covered
by TCT Nos. 16939 and 18035, respectively, for the sum of P4,400.00 for the support,
maintenance and medical treatment of the ward Soledad Rodriguez.

G.R. No. L-33152 January 30, 1982

LUIS PARCO and VIRGINIA BAUTISTA, petitioners,
vs.
HONORABLE COURT OF APPEALS, HON. UNION C. KAYANAN, Judge, COURT OF
FIRST INSTANCE OF QUEZON (BRANCH IV), CALAUAG, and FRANCISCO
RODRIGUEZ, JR., Legal Guardian of the Incompetent SOLEDAD
RODRIGUEZ, respondents.

On January 6, 1967, respondent Judge again approved and authorized, upon motion of
private respondent, the sale to petitioners of Lot No. 1207 covered by TCT No. 16944
containing an area of 63,598 sq. meters, more or less, for the same reason. All the sales
of the three (3) lots being absolute, new transfer certificates of title were issued in the
name of petitioners.
On May 13, 1968, or almost one year and five months from the approval of the sale of
Lot Nos. 3437, 4389, and 1207, private respondent filed an urgent petition in the Court of
First Instance of Quezon, Ninth Judicial District, invoking Section 6 Rule 96 of the Revised
Rules of Court, praying that an order be immediately issued requiring petitioners to
appear before the court so that they can be examined as regards the three (3) lots in
question which are allegedly in danger of being lost, squandered, concealed and
embezzled and upon failure to do so or to comply with any order that may be issued in
relation therewith to hold them in contempt of court. The pertinent allegations read as
follows:

DE CASTRO, J.:

xxx xxx xxx

By this petition for review on certiorari, petitioners seek to set aside the Resolution of the
Court of Appeals dated January 20, 1971 1 which revived and declared in full force and
effect its decision on August 20, 1970 2 dismissing the petition for certiorari with
preliminary injunction in CA-G.R. No. 43732, entitled "Luis Parco, et al. vs. Hon. Judge of
the Court of First Instance of Quezon, Branch IV, Calauag, et al., " and pray that the
decision dated April 15, 1969 3 and all subsequent orders 4 issued by respondent Judge
of Branch IV-Calauag, Court of First Instance of Quezon in Special Proceedings No. 2641
be declared as null and void.

1. That as legal guardian (private respondent) of the abovenamed

incompetent and upon authorization by this Hon. Court he has
transferred in good faith to the spouses LUIS PARCO and VIRGINIA (UY)
BAUTISTA, both of Atimonan, Quezon, the titles over the following
realties belonging to his ward, namely:

This case, G. R. No. L-33152, started from Special Proceedings No. 2641. a guardianship
proceedings for the incompetent Soledad Rodriguez of Sriaya, Quezon, which originally
pertained to Branch 1, Court of First Instance of Quezon, then presided by the late Hon.
Judge Vicente Arguelles, 5 later on succeded by Hon. Judge Ameurfina Melencio-Herrera
(now Associate Justice of the Supreme Court). In 1966, respondent Judge of Branch IVCalauag of the Court of First Instance of Quezon, Hon. Union C. Kayanan, took cognizance
of Special Proceedings No. 2641 when the Secretary of Justice authorized respondent
Judge to help unclog the docket of Branch I at Lucena City, Quezon.

a. A parcel of land (Lot No. 3437 of the Cadastral

Survey of Sariaya) with the improvements thereon
situated in the Municipality of Sariaya ... containing
an area of Six Hundred Thirteen (613) sq. meters,
more or less;
b. A parcel of land (Lot No. 4389 of the Cadastral
Survey of Sariaya) situated in the Municipality of
Sariaya ... containing an area of Four Thousand And
Sixty-Eight (4,068) sq. meters, more or less;

c. A parcel of land (Lot No. 1207 of the Cadastral

Survey of Sariaya) situated in the Municipality of
Sariaya ... containing an area of Sixty-three Thousand
Five Hundred and Ninety-eight (63,598) sq. meters,
more or less.
2. That anent the first TWO (2) PARCELS above-described he
transferred the titles thereto in favor of the recited spouses under a
loan agreement (not an absolute sale thereto and with the express
commitment in writing that he can recover the same within three (3)
months from December 19, 1966, ...
That prior to the expiration of the cited period of three months, he tried
to recover the stated two parcels of land from them, however, the
same was not carried out because he was then transacting with them
the sale of PARCEL THREE and under the Agreement that they will not
sell cede, or convey the mentioned two (2) lots to anyone (except to
petitioner now private respondent herein) and once the stated PARCEL
THREE has been sold at the price of P48,000.00 the borrowed amount
of P4,400.00 shall be deducted therefrom and said two parcels shall be
returned to him;

b. They shall pay to NIEVES ALCALA and PURA

AGCAOILE (who are private respondent's agents and
representatives in negotiating the sale of parcel
three) the sum of Fifteen Thousand (P15,000.00)
Pesos after they have sold the realty, ...
5. That recently, he discovered that the cited couple have already sold
and ceded the mentioned parcel three to another person, and despite
his repeated request upon them to pay and deliver to him or to Nieves
Alcala the sum of money specified in the foregoing paragraph, they
have maliciously and unjustly failed and refused to do so, and have
fraudulently retained the said amount of money for thier own personal
use and benefit;
6. That the enumerated parcels of land together with all the proceeds
derived therefrom, undeniably belonged to his ward as trust properties,
which are subject to the disposition of this Hon. Court, and due to the
mentioned fraudulent, malicious and dishonest acts of the abovenamed couple, are in danger of being lost, squandered, concealed and
embezzled;
xxx xxx xxx

3. That recently, he discovered that the cited couple, in bad faith and
in violation of their agreement and of the trust and confidence which
he had reposed upon them, have fraudulently ceded and transferred
the titles over the stated two parcels of land to another person,
allegedly for a price of (over P30,000.00) and in spite of his repeated
request upon them to reconvey to him the titles thereto or to turn over
to him the total proceeds they have received (minus the sum of
P4,400.00), they have maliciously and unjustly refused to do so, and
are intending to keep and retain said amount for their own personal
use and benefit;
4. That as already adverted to in the previous paragraph hereof, the
mentioned couple induced him to transfer to them the title of parcel
three, so that they can sell the same for the agreed price of
P48,000.00 and believing in good faith that the cited spouses are
honest and trustworthy, he agreed and executed the requisite
document transferring the title to them subject to the following
conditions:
a. They shall pay to him the amount of Twelve
Thousand (Pl2,000.00) Pesos after they have secured
a buyer of the property, ...

In an answer dated June 5, 1968, petitioners contended mainly, among others, that the
three lots have been conveyed to them by deeds of absolute sale which were duly
approved by the guardianship court.
Pre-trial hearings were set for possible amicable settlement beginning on September 6,
1968 but was postponed and reset to October 9, 1968 on petitioners' counsel motion. On
October 9, 1968, both parties and their counsels appeared but failed to reach any
amicable settlement. Again, the pre-trial hearing was reset to November 28 and 29, 1968
but was likewise postponed to January 8, 1969 at petitioners' counsel motion.
On January 8, 1969, for failure to petitioners and their counsel to appear although there
was a telegram requesting for postponement, respondent Judge issued an
order, 6 authorizing private respondent to present evidence before the Clerk of Court
who was instructed to make the corresponding report which shall be made as the basis
of this decision.
In a petition dated January 30, 1969, petitioners prayed for the reconsideration of the
order of January 8, 1969 pointing out, among others, that there was a First Order dated
July 29, 1968, 7 issued by then Judge Ameurfina M. Herrera, Presiding Judge of Branch I,
Court of First Instance of Quezon that said branch "will henceforth take cognizance of this
case" and thus, asked for the transfer of the incident sought before Branch IV to Branch I
for proper action.

On February 20, 1969, respondent Judge, finding the petition for reconsideration wellgrounded, issued an order directing the Clerk of Court to transmit the records of the case
to the Court of First Instance, Branch I, Lucena City, quoted below:
ORDER
Acting on the Petition for Reconsideration filed by counsel for the
respondent on February 4, 1969, considering that Hon. A. MelencioHerrera, Presiding Judge of Branch 1, CFI, Lucena City, issued an order
on July 29, 1968, the dispositive portion of which is quoted as follows.
'WHEREFORE, it is hereby confirmed that this court will henceforth take
cognizance of this case,' and considering that this special proceedings
actually belongs to Branch I, although incidents therein were taken
cognizance of by the Presiding Judge of CFI, Branch IV when he was
holding court session in Lucena City and notwithstanding
Administrative Order No. 261 dated October 7, 1968 which states that
'This administrative order shall not apply to cases pending in the
different salas which have been partially tried and shall remain therein
for final disposition', because to case was originally filed during the
incumbency of the late Judge Vicente Arguelles, finding therefore the
said petition to be well-grounded, the Clerk of Court is hereby
authorized to transmit these records to the Deputy Clerk of Court, CFI,
Branch I, of Lucena City.
SO ORDERED.
Given at Calauag, Quezon this 20th day of February, 1969.
(SGD.) UNION C. KAYANAN Judge
On March 24, 1969, Private respondent, without the assistance of a counsel, filed before
Branch IV, Court of First Instance of Quezon an amended petition praying that the three
(3) lots subject matter of the original urgent petition be ordered reconveyed to the ward
in said Special Proceedings No. 2641 for he was informed that petitioners win transfer
and properties to third person.
On March 26, 1969, the Clerk of Court of Branch IV, Court of First Instance of Quezon,
issued the notice of hearing of the amended petition filed by private respondent dated
March 24, 1969 notifying counsel for both parties that the case will be heard before
Branch IV on April 10, 1969 at 2:30 p.m. at Calauag, Quezon. On the date set for hearing,
counsels for both parties appeared but for failure of the petitioners to appear respondent
Judge issued an order 8reiterating its previous order dated January 8, 1969 allowing
private respondent to present his evidence ex-parte and considered the case submitted
for resolution.

On April 15, 1969, respondent Judge rendered a decision 9 on the basis of the report of
the Clerk of Court dated February 19, 1969 ordering petitioners to reconvey the three (3)
parcels of land to private respondent.
On June 14, 1969, petitioners moved to reconsider the decision stating, among others,
that respondent Judge has no authority to take cognizance of the case which, according
to petitioners, is an issue raised in the petition for reconsideration of the court order of
January 8, 1969, and that the decision was without legal basis. Petitioners prayed that
the case or incident be transferred to the proper court which had taken cognizance of
this case.
On June 23, 1969, respondent Judge denied the petition for reconsideration for lack of
merit. Petitioners' counsel received the said order of denial on June 26, 1969.
Meanwhile, on June 21, 1969, private respondent filed an urgent motion in Branch IV
praying that petitioners be required to appear before the court to be examined as
regards the properties of the ward and to explain why they should not be cited for
contempt for not complying with a final order of the court directing the reconveyance of
the three (3) parcels of land to private respondent.
On June 23, 1969, respondent Judge, acting on the urgent motion, issued an
order 10 directing petitioners to explain why they should not be cited for contempt of
court pursuant to par. (b) Section 3 Rule 71 of the Revised Rules of Court.
On June 27, 1969, petitioners filed an urgent motion claiming that the urgent motion for
contempt of court was premature considering that the decision ordering the
reconveyance of the properties in question has not yet become final and executory and
is still subject to appeal. In their prayer for the setting aside of the order of June 23,
1969, petitioners informed the court that they win appeal the decision to the Court of
Appeals and that the corresponding notice of appeal, appeal bond and the record on
appeal will be filed in due time.
The following day, June 28, 1969, petitioners filed the notice of appeal and appeal bond
with a manifestation that the record on appeal will be filed in due time.
On July 3, 1963, respondent Judge issued an order 11 denying for lack of merit
petitioners' urgent motion of June 27, 1969, thus declaring that the order dated June 23,
1969 stands considering that petitioners' right to appeal has already lapsed. In the same
order, petitioners were given ten (10) days upon receipt to explain why they should not
be cited for contempt pursuant to Section 4, Rule 71 in relation to Section 6, Rule 96 of
the Revised Rules of Court.
On July 7, 1969, petitioners filed a petition for extension of ten (10) days to expire on July
20, 1969 within which to file the record on appeal. In an order 12 dated July 9, 1969,

respondent Judge denied the said petition for having been filed beyond the reglementary
period.

Hence, the instant petition for review on the following assignment of errors, to wit:
I

On July 10, 1969, petitioners filed an unverified second petition for reconsideration of the
decision dated April 15, 1969 and the order of July 3, 1969 contending that Branch IV lost
its jurisdiction over the raise from the time the order dated February 20, 1969 was issued
by Judge A. Melencio- Herrera; that the proceedings under Section 6 Rule 96 do not
authorize the Hon. Court (Branch IV) to determine the question of right over the property
or to order delivery thereof; that the purpose is merely to elicit information or secure
evidence from the person suspected of having embezzled, concealed or conveyed away
any personal property of the ward; that if the court finds sufficient evidence showing
ownership on the part of the ward, it is the duty of the guardian to bring the proper
action.
On the other hand, on July 17, 1969, a motion for reconsideration of the order dated July
9, 1969 was filed by petitioners claiming that all the pleadings related to the intended
appeal were filed within the period allowed by the Revised Rules of Court. After an
opposition was filed, respondent Judge issued an order on 13 July 18, 1969 denying the
second petition for reconsideration for lack of basis and on the ground that the period to
appeal either the decision or any of the previous orders had already expired.
On August 20, 1969, petitioners went to the Court of Appeals on a petition for certiorari
with preliminary injunction pleading nullity of the decision of the Court of First Instance,
Branch IV,

THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF

APPEALS ERRED IN SUSTAINING THE RETENTION BY THE RESPONDENT
JUDGE OF BRANCH IV-CALAUAG OF THE CASE OF BRANCH I-LUCENA
CITY AFTER HE ORDERED THE RETURN OF THE CASE TO BRANCH
I,LUCENA CITY TO WHICH THE CASE BELONGS AND AFTER THE
PRESIDING JUDGE OF BRANCH I LUCENA CITY HAD RESUMED AND
EXERCISED HER JURISDICTION OVER SAID CASE.
II
ASSUMING THAT THE RESPONDENT JUDGE COULD LEGALLY AND
VALIDLY RETAIN JURISDICTION OVER THE CASE OF BRANCH I LUCENA
CITY DESPITE THE CIRCUMSTANCES ADVERTED TO IN THE FIRST
ASSIGNED ERROR, THE MAJORITY OF THE DIVISION OF FIVE JUSTICES
OF THE COURT OF APPEALS ERRED IN SANCTIONING THE RESPONDENT
JUDGE'S ASSUMPTION OF JURISDICTION TO ADJUDICATE THE ISSUE OF
OWNERSHIP AND/OR ORDER RECONVEYANCE OF PETITIONERS'
PROPERTY SOLD TO THEM AND TITLED IN THEIR NAMES,
NOTWITHSTANDING THE LIMITED JURISDICTION OF A GUARDIANSHIP
COURT.

Quezon dated April 15, 1969 on grounds of lack of jurisdiction and grave abuse of
discretion in denying their right of appeal.

III

On September 27, 1969, the Court of Appeals dismissal the petition for lack of
merit. 14 On motion by petitioners, the dismissal was reconsidered in a split resolution
dated December 15, 1969 thereby giving due course to the petition, and private
respondent was required to answer.

THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF

APPEALS ERRED IN NOT HOLDING THAT THE JUDICIAL AUTHORITY AND
APPROVAL OF THE SALES ARE CONCLUSIVE UPON THE VALIDITY AND
REGULARITY OF SAID SALES BETWEEN THE PARTIES AND THEIR
SUCCESSORS IN INTEREST.

After private respondent filed their answer and the parties submitted their respective
memoranda, the Court of Appeals, in a three-to-two vote decision 15 dated August 21,
1970 dismissed the petition.
On motion for reconsideration filed by petitioners, the Court of Appeals, in a split
resolution 16 dated October 10, 1970 granted the motion for reconsideration and set
aside the decision dated August 20,1970.
However, upon motion for reconsideration filed by private respondent, the Court of
Appeals, in a three-to-two vote resolution 17 dated January 20, 1971, reverted to its
decision of August 21, 1970 dismissing the petition.

IV
THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF
APPEALS ERRED IN SANCTIONING BY SILENCE THE QUESTIONED
ORDER OF THE RESPONDENT JUDGE ENFORCING HIS DECISION BY
CONTEMPT PROCEEDINGS.
THE MAJORITY OF THE DIVISION OF FIVE JUSTICES OF THE COURT OF
APPEALS ERRED IN SANCTIONING DENIAL OF PETITIONERS' RIGHT TO
APPEAL.

This petition was given due course in view of the peculiar incidents during its trial stage
where, as borne out by the records, two (2) branches of the Court of First Instance of
Quezon Province, 9th Judicial District assert jurisdiction over Special Proceedings No.
2641, which, when the decision rendered by one branch was brought in the Court of
Appeals on certiorari with preliminary injunction, the Special Division of Five Justices, in a
three-to-two vote resolution in four (4) occasions after its dismissal for lack of merit on
September 27, 1968, reconsidered the same and was given due course on December 15,
1968, again dismissed on August 21, 1970, but again reconsidered on October 10, 1970,
until finally dismissed on January 20, 1971 when the Special Division of Five reverted to
its August 21, 1970 resolution. The Special Division was equally split on the issue
whether or not the Court of First Instance, Branch IV, Calauag, Quezon, acting with
limited jurisdiction as a guardianship court under Section 6 Rule 96 of the Rules of Court,
has the authority to adjudicate the question of ownership and order the reconveyance of
the three (3) parcels of land in question to private respondent, guardian of the ward
Soledad Rodriguez. On these two (2) principal issues, We are called upon to finally
resolve the legal controversy peculiar on this case.
After the parties submitted their respective briefs, the case was deemed submitted for
decision on October 28, 1971.
In a Resolution 18 of this Court dated November 29, 1978, the urgent manifestation and
motion of Leonisa S. Rodriguez, the surviving spouse of Mario Rodriguez (brother of the
ward) that the ward Soledad Rodriguez died on September 15, 1970 and private
respondent Francisco Rodriguez, Jr. died on October 24, 1973; and that the heirs of the
ward be substituted as the private respondents in this case was noted. To begin with, the
principal issue al hand is whether or not respondent Judge of the Court of First Instance
of Quezon, Branch IV-Calauag has the authority or power to take further action in Special
Proceedings No. 2641 after the Presiding Judge of the Court of First Instance of Quezon,
Branch I-Lucena City asserted its jurisdiction by issuing two (2) orders dated July 29,
1968 and respondent Judge correspondingly ordered the return of the case to Branch I in
an order dated February 20,1969.

the issuance of such orders constitute undue interference with the processes and
proceedings already undertaken by respondent Judge; that petitioners are guilty of
estoppel when they failed to raise the issue of jurisdiction from the very beginning and
when they voluntarily appeared before respondent Judge, filed their answer and other
pleadings, and moved for postponements of the scheduled dates of hearing.
We sustain petitioners' stand. Of course, jurisdiction is vested in the court not in any
particular branch or judge, and as a corollary rule, the various branches of the Court of
First Instance of a judicial district are a coordinate and co-equal courts 19 one branch
stands on the same level as the other. Undue interference by one on the proceedings
and processes of another is prohibited by law. In the language of this Court, the various
branches of the Court of First Instance of a province or city, having as they have the
same or equal authority and exercising as they do concurrent and coordinate jurisdiction
should not, cannot, and are not permitted to interfere with their respective cases, much
less with their orders or judgments. 20 A contrary rule would obviously lead to confusion
and might seriously hinder the administration of justice. A judge is competent to act so
long as the case remains before him, but after it passed from his branch to the other, the
case could be acted upon by the judge of the latter branch. 21 Otherwise, an anomalous
situation would occur at the detriment of the party litigants who are likewise confused
where to appear and plead their cause.

Petitioners maintain that respondent Judge of Branch IV, Court of First Instance of
Quezon has no power or authority to retain jurisdiction over Special Proceedings No.
2641 which, at its inception, originally pertained to Branch I-Lucena City, Court of First
Instance of Quezon. To support such chum, petitioners contend that the Second Order
dated July 29, 1968 requiring private respondent for an inventory and accounting of the
ward's property confirms that the Presiding Judge of Branch I has resumed its jurisdiction
over said case, more so, when respondent Judge ordered on February 20, 1969 the
transmittal of the records of the case to the Deputy Clerk of Court, Court of First
Instance, Branch I-Lucena City.

In the case before Us, there is no dispute that both Branch I and Branch IV of the Court of
First Instance of Quezon, have jurisdiction over the subject matter, a guardianship
proceedings under Section 1, Rule 92 of the Rules of Court and Section 44(a) of the
Judiciary Act of 1948. While it is recognized that when a case is filed in one branch,
jurisdiction over the case does not attach to the branch or judge alone, to the exclusion
of the other branches, 22 We are of the view however, considering the unusual
circumstances and incidents attendant in this case the situation in the case at bar is
different. Here, it must be noted that the Presiding Judge of Branch I asserted and
resumed its prior jurisdiction by issuing two (2) orders, one of which requires private
respondent to render an inventory and accounting of the property of the ward. On the
other hand, respondent Judge of Branch IV, in confirmation of such resumption of
jurisdiction, ordered the return of the records of Special Proceedings No. 2641 to Branch
I-Lucena City, Court of First Instance of Quezon, but, instead of regularly relinquishing
jurisdiction over the case, respondent Judge continued to take further action on the case
in total disregard of the two (2) orders of the Presiding Judge of Branch I. Should one
branch be permitted to equally assert, assume or retain jurisdiction over a case or
controversy over which another coordinate or co-equal branch has already resumed its
jurisdiction, We would then sanction undue interference by one branch over another.
With that, the judicial stability of the decrees or orders of the courts would be a
meaningless precept in a well-ordered administration of justice.

Private respondent, on the other hand, justifies the retention of jurisdiction by

respondent Judge over Special Proceedings No. 2641 contending, among others, that the
two (2) orders dated July 29, 1968 issued by then Judge A. Melencio-Herrera are not
sufficient bases for claiming that Branch IV has been deprived of its, jurisdiction because
jurisdiction is vested upon the court not upon any particular branch or judge thereof and

There is no question that the prior proceedings had in Branch IV by respondent Judge
were valid and regular as they were admittedly authorized by the Secretary of Justice. It
must be emphasized however, that Branch IV lost its jurisdiction over Special
Proceedings No. 2641 when respondent Judge ordered the return of the records to
Branch I after having been informed in a motion for reconsideration filed on January 30,

1969 of the existence of the two (2) orders issued by the Presiding Judge of Branch 1.
From that point of time, all subsequent proceedings and processes in connection with or
related to Special Proceedings No. 2641 undertaken by the respondent Judge became
irregular. It amounted to an undue interference with the processes and proceedings of
Branch I.
Nevertheless, from the standpoint of the pertinent law on the matter, it may be observed
that the detail of respondent Judge of Branch IV stationed permanently in Calauag,
Quezon to Branch I in Lucena City, Quezon authoritatively rests on the provision of
Section 51 of the Judiciary Act of 1948 which reads:
Section 51. Detail of judge to another district or province.-Whenever a
judge stationed in. any province or branch of a court in a province shag
certify to the Secretary of Justice that the condition of the docket in his
court is such as to require the assistance of an additional judge, or
when there is any vacancy in any court or branch of a court in a
province, the Secretary of Justice may, in the interest of justice, with
the approval of the Supreme Court and for a period of not more than
three months for each time, assign any judge of any court or province,
whose docket permits his temporary absence from said court, to hold
sessions in the court needing such assistance or whether such vacancy
exists. No judge so detailed shall take cognizance of any case when
any of the parties thereto objects and the objection is sustained by the
Supreme Court. (emphasis supplied)
xxx xxx xxx
Apparently, when the circumstances contemplated under Section 51 of the Judiciary Act
of 1948 occur, the detailed Judge holds sessions in the court needing such assistance or
where such vacancy exists as if he is the presiding judge of that particular branch where
the clogged docket or vacancy exists. The detailed Judge does not hold sessions therein
as if he is the Presiding Judge of the branch where he is originally or permanently
designated. In the case before Us, respondent Judge Kayanan was duly authorized to
help unclog the docket of Branch I stationed in Lucena City, Quezon which at that time
was rendered vacant due to the death of Judge Vicente Arguelles. When respondent
Judge Kayanan took cognizance of the cases left by Judge Arguelles, pending the
designation of a replacement, he merely sits as a judge of Branch I, Court of First
Instance of Quezon Province. In the event of designation of a new Presiding Judge of
Branch 1, accepted practice and procedure of speedy administration of justice requires
that the detailed judge turns over the cases he took cognizance of to the new Presiding
Judge. Justification for the continued retention of jurisdiction over those cases in the case
at bar appears to be not convincing.
We find no plausible indication how estoppel could operate against petitioners. It is true
that petitioners filed their answer to the urgent petition of private respondent and
appeared before respondent Judge of Branch IV without questioning the latter's authority

to hear the case. The answer to the urgent petition of private respondent dated May 13,
1968 was filed by petitioners on June 5, 1968 or almost two (2) months before Judge
Melencio-Herrera of Branch I issued the two (2) orders dated July 29, 1968 asserting
jurisdiction over the case. The appearances of petitioners and counsel in the sala of
respondent Judge during the intervening period from July 29, 1968 were apparently due
to the fact that petitioners came to know only of the two orders of Branch I when they
examined the records of the case prompted by the manifestation of the counsel of
private respondent, in the course of the proceedings in Branch IV, to submit for an
accounting in connection with the administration of the properties of the ward Soledad
Rodriguez. Petitioners manifested such information to respondent Judge in a petition for
reconsideration of the order of January 8, 1968 authorizing the presentation of
evidence ex parte. The silence or inaction of petitioners was therefore due to their lack of
knowledge of respondent Judge's lack of authority to retain or take further action on the
case. Such lack of authority was confirmed when respondent Judge, acting on the
petition for reconsideration dated January 30, 1969, issued on February 20, 1969 an
order authorizing the return of the records of the case to Branch I. In claiming that the
records referred to by the order concern the first portion of the records of Special
Proceedings No. 2641 and not the second portion containing the urgent petition filed by
private respondent on May 13, 1968, private respondent would then encourage split
jurisdiction of courts which is abhorred by the law.
Assuming that Branch IV-Calauag, Court of First Instance of Quezon has jurisdiction over
Special Proceedings No. 2641 notwithstanding the attendant circumstances adverted to
earlier, We now dwell on another issue, which standing alone would decisively resolve
the assigned errors raised in this petition, that is, whether or not Branch IV exercising
limited and special, jurisdiction as a guardianship court under Section 6 Rule 96 of the
Rules of Court has jurisdiction to order the delivery or reconveyance of the three parcels
of land in question to the ward, represented herein by private respondent.
In two leading cases, Castillo vs. Bustamante, 64 Phil. 839 and Cui vs. Piccio et al, 91
Phil. 712, this Court laid the rule on the issue raised before Us as interpreted in the light
of Section 6 Rule 96 of the Rules of Court which reads:
Section 6. Proceedings when person suspected of embezzling or
concealing property of the ward. Upon complaint of the guardian or
ward, or of any person having actual or prospective interest in the
estate of the ward as creditor, heir, or otherwise, that anyone is
suspected of having embezzled, concealed, or conveyed away any
money, goods, or interest, or a written instrument, belonging to the
ward or his estate, the court may cite the suspected person to appear
for examination touching such money, goods, interests, or instrument,
and make such orders as will secure the estate against such
embezzlement, concealment or conveyance.
In Cui vs. Piccio et al., supra, this Court held that the jurisdiction of the court in
guardianship proceedings, ordinarily, is to cite persons suspected of having embezzled,
concealed or conveyed the property belonging to the ward for the purpose of obtaining

information which may be used in an action later to be instituted by the guardian to

protect the right of the ward. Generally, the guardianship court exercising special and
limited jurisdiction cannot actually order the delivery of the property of the ward found to
be embezzled, concealed or conveyed. In a categorical language of this Court, only in
extreme cases, where property clearly belongs to the ward or where his title thereto has
been already judicially decided, may the court direct its delivery to the guardian. 23 In
effect, there can only be delivery or return of the embezzled, concealed or conveyed
property of the ward, where the right or title of said ward is clear and undisputable.
However, where title to any property said to be embezzled, concealed or conveyed is in
dispute, under the Cuicase, the determination of said title or right whether in favor of the
person said to have embezzled, concealed or conveyed the property must be determined
in a separate ordinary action and not in guardianship proceedings.
In the case at bar, We are not prepared to say, at this premature stage, whether or not,
on the basis alone of the pleadings of the parties in the trial court, the title or right of the
ward Soledad Rodriguez over the three (3) parcels of land in question is clear and
undisputable. What is certain here is the fact that the sale of the properties in question
were duly approved by the respondent Judge in accordance with the provisions on selling
and encumbering of the property of the ward under Rule 97 of the Rules of Court. It must
be noted that while the original urgent petition dated May 13, 1968 prayed for the
examination of petitioners herein regarding the alleged concealing, conveyancing and
embezzling of the questioned properties, the amended petition dated March 24, 1969
asked for reconveyance.
Moreover, it may be observed that private respondent contended that the sale of the
first two lots was actually a loan agreement with right of recovery while that of the third
lot was subject to condition, hence, a fictitious or simulated sale. On the other hand,
according to petitioners, the sales were all absolute and protected by the Torrens System
since new transfer certificate of titles were issued in their name. Apparently, there is a
cloud of doubt as to who has a better right or title to the disputed properties. This, We
believe, requires the determination of title or ownership of the three parcels of land in
dispute which is beyond the jurisdiction of the guardianship court and should be threshed
out in a separate ordinary action not a guardianship proceedings as held in Cui vs. Piccio
supra.
The ruling in Castillo vs. Bustamante, 64 Phil. 839, relied upon by private respondent
finds no application in the instant case. As differentiated from the case at bar,
in Castillo case, the right or title of the ward to the property in dispute was clear and
undisputable as the same was donated to her through compromise agreement approved
by the court which title had the authority of res judicata. As enunciated above, the right
or title of the ward to the properties in question is in dispute and as such should be
determined in a separate ordinary action.
Furthermore, private respondent's claim that petitioners are barred by laches to raise the
issue of jurisdiction is without merit. In support of such claim, private respondent invoked
the exception laid down in Tijam vs. Sibonghanoy, 23 SCRA 29, to the rule that the lack
of jurisdiction over the subject matter is fatal and may be raised at any stage of the

proceedings; that it is conferred only by law, and in the manner prescribed by law and an
objection on the lack of jurisdiction cannot be waived by the parties; and the infirmity
cannot be cured by silence, acquiescence, or even by express consent, or win of the
parties. 24
The doctrine laid down in Tijam vs. Sibonghanoy, supra, and in the latter case
of Rodriguez vs. Court of Appeals, 29 SCRA 419 is not applicable in the case at bar. In
Tijam case, the appellant had all the opportunity to challenged the court's jurisdiction in
the court a quo as well as in the Court of Appeals but instead invoked its jurisdiction to
obtain affirmative relief and submitted its case for final adjudication on the merits. It was
only after an adverse decision was rendered by the Court of Appeals and fifteen (15)
years later from the inception of the case that it finally chose to raise the question of j
jurisdiction. I t is clear that t the circumstances present in Tijam case are not present
here. The petitioners in the instant case challenged the authority of the trial court to take
further cognizance of the case the moment they become aware of Branch I assuming
jurisdiction. The lack of jurisdiction was raised in a petition for reconsideration of the
order dated January 8, 1969, in a petition for reconsideration of the decision dated April
15, 1969, in a second petition for reconsideration of the said decision, and alleged as an
additional ground in the petition for certiorari in the Court of Appeals. In any case, the
operation of the principle of estoppel on the question of jurisdiction seemingly depends
upon whether the lower court actually had jurisdiction. If it had no jurisdiction, but the
case was tried and decided upon the theory that it had jurisdiction, the parties are not
barred, on appeal, from assailing such jurisdiction, for the same must exist as a matter of
law, and may not be conferred by consent of the parties or by estoppel. 25
As respondent trial court has no jurisdiction, We deem it unnecessary to pass upon the
assigned errors raised in the petition.
WHEREFORE, the Resolution of the Court of Appeals dated January 20, 1971 is hereby
reversed and set aside, and the decision rendered by respondent Judge of Branch IVCalauag, Court of First Instance of Quezon dated April 15, 1969 and the orders issued
thereafter are declared null and void, and the case is hereby remanded to Branch ILucena City, Court of First Instance of Quezon for further proceedings.
SO ORDERED.

G.R. No. L-58319 June 29, 1982

PATRIA PACIENTE, petitioner,
vs.
HON. AUXENCIO C. DACUYCUY, Presiding Judge of the Juvenile and Domestic
Relations Court of Leyte and Southern Leyte; FELICIANA CALLE, courtappointed guardian of the minors Shirley and Leandro, both surnamed
HOMERES; the SOLICITOR GENERAL; THE CITY FISCAL OF TACLOBAN; and, THE
REGISTER OF DEEDS, Tacloban City, respondents.
RESOLUTION

GUTIERREZ, J.:
This is a petition for certiorari and prohibition challenging the validity of an April 24, 1981
order of the respondent Juvenile and Domestic Relations Court of Leyte which required
the petitioner and Conchita Dumdum to
give and deposit with the clerk of this court the amount of TEN
THOUSAND PESOS (PI0,000.00) more as additional consideration of Lot
No. 3085-G of the Tacloban Cadastre which the court believes to be fair
and reasonable price of the property. This amount should be deposited
with the clerk of this court on or before June 24, 1981; otherwise TCT
No. T-13238 in the name of Patria Paciente now subject of a mortgage
in favor of the Consolidated Bank and Trust Corporation to guarantee
an obligation in the amount of P30,000.00, dated December 27, 1978,
will be cancelled.

as well as the validity of its resolution dated August 21, 1981 which denied the motion
for reconsideration of the petitioner and Conchita Dumdum of the aforesaid order and
directed the Register of Deeds of Tacloban City
to cancel TCT No. 13238 of Patria Paciente and issue in lieu thereof a
new transfer certificate of title to the following present owners of Lot
3085- G of the Tacloban Cadastre: Patria Paciente, of legal age, Filipino,
married, residing in Tacloban City, 1/3; Shirley Homeres, 10 years old,
residing in Tacloban City, 1/3; and, Leandro Homeres, 10 years old,
residing in Tacloban City, Philippines, 1/3, subject to the mortgage lien
of the Consolidated Bank and Trust Corporation.
because of their failure to comply with the same aforestated order. The facts of the case
are as follow:
In 1972, Leonardo Homeres died leaving his wife, Lilia Samson Homeres, and two minor
children, Shirley and Leandro, a parcel of land known as Lot No. 3085-G situated in
Sagkahan, Tacloban City, covered by TCT No. 12138. This lot which he had inherited from
his deceased father, Felizardo Homeres, has an area of one thousand seven hundred one
(1,701) square meters.
On September 9, 19-76, Lilia S. Homeres, sold Lot No. 3085-G to Conchita Dumdum for
P10,000.00.

cause why TCT No. T-13238, covering a parcel of land co-owned by the minors, Shirley
and Leandro Homeres, should not be cancelled for having been alienated without
authority from the court.
When January 21, 1981 came, the petitioner and the manager of Consolidated Bank and
Trust Corporation did not appear before the court. Instead, Conchita Dumdum appeared
and explained to the respondent court that she sold the lot which she acquired from Lilia
S. Homeres to the petitioner without obtaining the approval of the court because she was
not aware of such requirement regarding the properties of the minors. On the same date,
the respondent court again issued an order requiring the petitioner and the manager of
the Consolidated Bank and Trust Corporation to explain why TCT No. T- 13238 should not
be cancelled for their failure to first secure judicial authority before disposing of the said
property.
At the hearing on April 24, 1981, George Go, the petitioner's husband, apprised the court
that the petitioner was an innocent purchaser for value of the lot in question.
Respondent court then issued the questioned order.
A motion for reconsideration filed by her and Conchita Dumdum having been denied,
petitioner filed the present petition.

On November 11, 1976, Lilia S. Homeres filed a petition for guardianship over the
persons and estate of the minors. The petition was granted on August 9, 1977. Lilia S.
Homeres took her oath as guardian on September 13, 1977,

The issue in this case is whether the respondent court acting as a guardianship court has
jurisdiction to order the Register of Deeds to cancel the transfer certificate of title of
petitioner and to order the issuance of a new title to include the minors as co-owners
with the petitioner for her having failed to comply with the court's order directing her to
pay the minors the reasonable price of their property that their mother alienated without
authority of a competent court.

On September 21, 1977, Conchita Dumdum sold Lot No. 3085-G, which had been titled in
her name under TCT No. T-13121, to petitioner Patria Paciente for the amount of
P15,000.00. Consequently, Patria Paciente was issued TCT No. T-13238 by the Register of
Deeds of Tacloban City.

Relying on the cases of Cui, et al. vs. Piccio, et al. 91 Phil. 712, and Parco and Bautista
vs. Court of Appeals, G.R. No. L-33152, January 30, 1982, petitioner contends that
respondent court in hearing a petition for guardianship is not the proper situs for the
cancellation of a Torrens Title. In the Cui case, this Court ruled:

On December 27, 1978, the petitioner mortgaged the lot to the Consolidated Bank and
Trust Corporation for P30,000.00.
On September 12, 1980, the Acting City Register of Deeds of Tacloban City, filed a
manifestation informing respondent court that Lot No. 3085-G which is the subject of the
guardianship proceedings had been registered in the name of the petitioner under TCT
No. T-13238 and that it was mortgaged to the Consolidated Bank and Trust Corporation
to guarantee petitioner's loan of P30,000.00.
Upon being thus informed by the Register of Deeds, the respondent court issued an order
on November 14, 1980, directing the petitioner and the manager of the Consolidated
Bank and Trust Corporation to appear before the court on January 21, 1981 and show

... Out of the cases cited, the only one we find to have some relevancy
is that of Castillo vs. Bustamante, 64 Phil. 839. In this case, the court
made a distinction between the provisions of sections 709 and 593 of
the Code of Civil Procedure which now correspond to section 6, Rule 88
and section 6 of Rule 97 of the Rules of Court. This Court in that case
said in effect that while in administration proceedings the court under
section 709 may only question the person suspected of having
embezzled, concealed or conveyed away property belonging to the
estate, section 593 of the same Code of Civil Procedure authorizes the
Judge or the court to issue such orders as maybe necessary to secure
the estate against concealment, embezzlement and conveyance, and
this distinction is now given emphasis by respondents' counsel. the
way we interpret section 573 of the Code of Civil Procedure as now

embodied in Rule 97, section 6 of the Rules of Court in the light of the
ruling laid down in the case of Castillo vs. Bustamante, supra, is that
the court may issue an order directing the delivery or return of any
property embezzled, concealed or conveyed which belongs to a ward,
where the right or title of said ward is clear and indisputable.
xxx xxx xxx
In conclusion, we hold that the respondent Judge had no jurisdiction to
issue his order of September 5, 1951, in the guardianship proceedings
requiring the petitioners to deliver the rentals collected by them to the
guardian and authorizing the latter to collect rentals in the future, for
the reason that the jurisdiction of the court in guardianship
proceedings, ordinarily, is to cite persons suspected of having
embezzled, concealed or conveyed property belonging to the ward for
the purpose of obtaining information which may be used in action later
to be instituted by the guardian to protect the right of the ward; and
that only in extreme cases, where property clearly belongs to the ward
or where his title thereto has already been judicially decided, may the
court direct its delivery to the guardian.
and in the case of Parco and Bautista the ruling reads as follows:
In Cui vs. Piccio, et al., supra, this Court held that the jurisdiction of the
court in guardianship proceedings, ordinarily, is to cite persons
suspected of having embezzled, concealed or conveyed the property
belonging to the ward for the purpose of obtaining information which
may be used in an action later to be instituted by the guardian to
protect the right of the ward. Generally, the guardianship court
exercising special and limited jurisdiction cannot actually order the
delivery of the property of the ward found to be embezzled, concealed,
or conveyed. In a categorical language of this Court, only in extreme
cases, where property clearly belongs to the ward or where his title
thereto has been already judicially decided, may the court direct its
delivery to the guardian. In effect, there can only be delivery or return
of the embezzled, concealed or conveyed property of the ward, where
the right or title of said ward is clear and undisputable. However,
where title to any property said to be embezzled, concealed or
conveyed is in dispute, under the Cui case, the determination of said
title or right whether in favor of the persons said to have embezzled,
concealed or conveyed the property must be determined in a separate
ordinary action and not in a guardianship proceedings.
Insofar as the acts of the guardianship court intended to effect the delivery or return of
the property conveyed are concerned, We find the orders of the respondent court valid.
The petitioner's contentions in this regard are untenable. Even the aforecited cases relied

upon do not support her argument. While it is true that in these two cases We ruled that
where title to any property said to be embezzled, concealed or conveyed is in question,
the determination of said title or right whether in favor of the ward or in favor of the
person said to have embezzled, concealed or conveyed the property must be determined
in a separate ordinary action and not in guardianship proceedings, We also emphasized
that if the right or title of the ward to the property is clear and indisputable the court
may issue an order directing its delivery or return.
In the present case the right or title of the two minors to the property is clear and
indisputable. They inherited a part of the land in question from their father. The sale of
this land, where they are co-owners, by their mother without the authority of the
guardianship court is illegal (Yuson de Pua vs. San Agustin, 106 SCRA 7, 16).
In issuing the above questioned order and resolution, the respondent court did not
exceed its jurisdiction but merely exercised its duty to protect persons under disability.
The respondent court's order directing the deposit of an additional consideration of
P10,000.00 is a different matter. It was issued without a hearing to determine not only
the valuation of the property but the time frame for fixing said valuation which is not
clear. It is, consequently, null and void.
It is true that when the petitioner and Conchita Dumdum failed to give the additional
amount, the second order directing the cancellation of the petitioner's title may be said
to have superseded or cancelled the first order. The second order directed the issuance
of a new title over the land inherited by Leandro Homeres from his late father with each
heir getting title to one-third of the property. Considering, however, the petitioner's
protestations of violations of due process and the guardianship court's unusual
procedures in dealing with the properties under guardianship, the respondent court is
directed to conduct regular hearings and take evidence on the reasonable price of Lot
No. 3085-G, if its alienation is found to be in the best interests of the wards and
consistent with the rights of all parties involved.
WHEREFORE, the petition is dismissed. The guardianship court in Special Proceedings No.
JP-0156 of the Juvenile and Domestic Relations Court of Leyte is hereby ordered to
conduct further hearings of the case as above indicated.
SO ORDERED,

without personal notice to their mother, who was alleged "could not be located
inspite of the efforts exerted" (ROA, p. 26).
On July 23, 1970, their guardian caused the minor plaintiffs to file a complaint in
the case below for the annulment of the sale of their participation in the
PROPERTY to defendants-appellants and, conceding the validity of the sale of
the widow's participation in the PROPERTY, they asked that, as co-owners, they
be allowed to exercise the right of legal redemption.
The lower court defined the issues in the case below as follows:
G.R. No. L-51369

July 29, 1987

The minors ALBERTO, NENITA, HILLY, CRISTY, and MARIA SALOME, all surnamed
BADILLO, assisted by their guardian MODESTA BADILLO, appellees,
vs.
CLARITA FERRER, defendant,
GREGORIO SOROMERO and ELEUTERIA RANA, defendants-appellants.
GANCAYCO, J.:
This case was certified to this Court by the Court of Appeals which found in its Resolution
dated August 13, 1979, that the issues raised therein are pure questions of law. The
instant case is treated as a petition for review on certiorari.
The facts of this case as found by the Court of Appeals are as follows:
... Macario Badillo died intestate onFebruary 4, 1966,survived by his widow,
Clarita Ferrer, and five minor children: Alberto, 16, Nenita, 14, Hilly 12, Cristy, 9,
and Maria Salome, 5. He left a parcel of registered land of 77 square meters in
Lumban, Laguna, with a house erected thereon, valued at P7,500.00, (the
"PROPERTY", for short). Hence, each of the five minor plaintiffs had inherited a
1/12 share of the P7,500.00, or P625.00 each, which is less than the P2,000.00
mentioned in Article 320 of the Civil Code.
On January 18, 1967, the surviving widow, in her own behalf and as natural
guardian of the minor plaintiffs, executed a Deed of Extrajudicial Partition and
Sale of the PROPERTY through which the PROPERTY was sold to defendantsappellants, the spouses Gregorio Soromero and Eleuteria Rana. The Register of
Deeds at Sta. Cruz, Laguna, extended recognition to the validity of the Deed of
Extrajudicial Partition and Sale, recorded the same, and issued a new transfer
certificate of title to defendants-appellants. ...
On November 11, 1968, Modesta Badillo, a sister of Macario Badillo, was able to
obtain guardianship over the persons and properties of the minor plaintiffs,

(1) Was the sale of the shares of the plaintiffs in the ownership of the
land in question which was made by their mother, defendant Clarita
Ferrer Badillo, in favor of the defendant spouses Gregorio Soromero
and Eleuteria Rana as evidenced by the document marked as Exhibit
"A" for the plaintiffs and Exhibit "2" for the defendants, valid and
binding upon the plaintiffs?
(2) May the plaintiffs, as co-owners of the property in question, still
exercise their right of redemption under Art. 1620 and pursuant to Art.
1623 of the Civil Code; and if so, for how much?
The lower court, invoking the Nario case (Nario vs. Philippine American Life
Insurance Co., 20 SCRA 434), promulgated the appealed judgment annulling the
sale to defendants-appellants of the minor plaintiffs' participation in the
PROPERTY, and allowing them to redeem the sold participation of their
mother. 1
In this appeal, the defendants-appellants assign the following errors:
1
THE COURT ERRED IN FINDING THAT THE PERIOD OF THIRTY (30) DAYS PROVIDED FOR BY
ARTICLE 1623 OF THE NEW CIVIL CODE FOR PLAINTIFFS TO REDEEM THE SHARE OF
THEIR MOTHER IN THE PROPERTY SUBJECT OF THEIR CO-OWNERSHIP SOLD BY THE
LATTER TO DEFEN DANTS HAS NOT YET ELAPSED.
2
THE COURT ERRED IN DECLARING THE SALE BY CLARITA FERRER BADILLO OF THE 5/12
SHARE OF HIS CHILDREN ON THE PROPERTY INVOLVED TO DEFENDANTS AS NULL AND
VOID AND RELATIVE THERETO THE COURT CONSEQUENTLY ERRED IN ITS FAILURE TO
ORDER PLAINTIFFS MINORS TO RETURN TO DEFENDANTS THE PURCHASE PRICE AS WELL
AS THE VALUE OF THE IMPROVEMENTS MADE BY DEFENDANTS ON THE PROPERTY,

3
THE COURT ERRED IN ORDERING THE DEFENDANTS TO RE-SELL TO PLAINTIFFS THE
REMAINING 7/12 PORTION OF THE PROPERTY IN QUESTION IN THE AMOUNT OF P4,375 .
00.2
The Statutory provision involved in the first error assigned is Article 1623 of the New Civil
Code, which is hereunder reproduced thus:
ART. 1623. The right of legal pre-emption or redemption shall not be exercised
except within thirty days from the notice in writing by the prospective vendor,
or by the vendor, as the case may be. The deed of sale shall not be recorded in
the Registry of Property, unless accompanied by an affidavit of the vendor that
he has given written notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that of adjoining owners.
Under their first assignment of error, the appellants advance the view that "the requisite
notice in writing provided for by Article 1623 of the New Civil Code was already received
by the minors-plaintiffs thru their then legal guardian, Clarita Ferrer Badillo, their mother,
on the date the deed of extrajudicial partition and sale was executed on January 18,
1967. And the thirty-day period of redemption must be reckoned from this date."3 Stated
differently, under Article 320 of the New Civil Code, the right granted to Clarita Ferrer
Badillo to administer her children's property if the same is less than P2,000.00 includes
the right to receive for her minor children such notice in writing. When she received her
copy of the Deed of Extrajudicial Partition and Sale, Clarita Ferrer Badillo in effect
received a notice in writing of the said sale in behalf of her minor children.
This argument is meritorious.
Articles 320 and 326 of the New Civil Code state that:
ART. 320. The father, or in his absence the mother, is the legal administrator of
the property pertaining to the child under parental authority. If the property is
worth more than two thousand pesos, the father or mother shall give a bond
subject to the approval of the Court of First Instance.
ART. 326. When the property of the child is worth more than two thousand
pesos, the father or mother shall be considered a guardian of the child's
property, subject to the duties and obligations of guardians under the Rules of
Court.
In other words, the father, or in his absence the mother, is considered the legal
administrator of the property pertaining to his child under parental authority without

need of giving a bond in case the amount of his child's property does not exceed Two
Thousand Pesos.
Rule 93, Section 7, of the Revised Rules of Court goes further by automatically
designating the parent as the legal guardian of the child without need of any judicial
appointment in case the latter's property does not exceed Two Thousand Pesos. It reads,
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. When the
property of the child is worth more than two thousand pesos, the father or the
mother shall be considered guardian of the child's property, with the duties and
obligations of guardians under these rules, and shall file the petition required by
section 2 hereof. For good reasons the court may, however, appoint another
suitable person.
Our standing jurisprudence reveals that there is a case which is applicable to the case at
bar. This case involved an interpretation of Article 1524 of the Old Civil Code, the
statutory provision from which Article 1623 of the New Civil Code originated and the one
which the latter amended. The two articles are basically the same except that Article
1623 mandates a longer period for redemption and limits the manner of transmitting the
notice of the sale of the property co-owned to one in writing served by the vendor.
The case is Villasor vs. Medel, et al.4
In this case, the co-owner plaintiff, upon reaching the age of majority, sought to redeem
a portion of a large tract of land which was sold to the defendant while the former was
still a minor. The plaintiff, during his minority, became a co-owner of an undivided
property which he, together with his cousins, acquired by donation from his
grandmother. A legal guardian was duly appointed by the court to represent the minor
co-owners. This legal guardian later sold, with the necessary permission of the court, the
shares of three co-owners to the defendant. When the plaintiff reached the age of
majority, he wanted to redeem the said shares.
This Court ruled in favor of the defendant, holding that:
The law in prescribing certain contingencies as the starting point from which the
nine-day period should be counted, is to be presumed to exclude all
others. Exclusio unius est exclusio alterius. The starting point is registration or,
in the absence of registration, knowledge of the conveyance by the co-owners.
It is logical to assume that if minority had been contemplated, the law would
have so expressly stated. This is specially true in a code which, unlike an
ordinary statute, is framed with meticulous care and thorough reflection. The
role of minors in cases of legal redemption is too conspicuous and perceptible to
have been overlooked in the framing of article 1524. The onerous position of the

purchaser and considerations of public interest, we believe forbade liberality as

to time in favor of redemptioners; hence the limitation of the causes of
extension to those factors (actual or constructive notice) without which the
exercise of the right of redemption would not be possible. The shortness of the
period fixed in the above article is itself a safe index, in our opinion, of its
peremptoriness and inflexibility.

Pesos and who is merely represented by his father or mother with no judicial
appointment as a guardian because according to Rule 93, Section 7 of the Revised Rules
of Court, the parent in this situation is automatically the child's legal guardian. Of course,
the parent-guardian must first be served with a notice in writing of the sale of an
undivided portion of the property by the vendor in order that the period for redemption
may begin to accrue.

... The present appellant not only had such a guardian but it was this very
guardian, Jose C. Villasor who, as guardian of plaintiff's cousins and former coowners, sold the lots in question to the defendant-appellee. This guardian not
only could have repurchased those lots for the plaintiff within nine days but
could have sold them, with the court's authority, directly to the plaintiff himself
instead of to Medalla. 5

In the case at bar, the value of the property of each appellee minor does not exceed Two
Thousand Pesos. The Court of Appeals found that each of them inherited only an
undivided portion worth P625.00.7 Therefore, after the minors' father died, their mother,
Clarita Ferrer Badillo, automatically became their legal guardian. As such, she acquired
the plenary powers of a judicial guardian except that power to alienate or encumber her
children's property without judicial authorization.8

In the decision, this Court frowned against a liberal interpretation of the codal provision
prescribing the period for legal redemption, hence, the following disquisition, to wit:
... legal redemption is in the nature of a mere privilege created by law partly for
reasons of public policy and partly for the benefit and convenience of the
redemptioner, to afford him a way out of what might be a disagreeable or
inconvenient association into which he has been trust.

When Clarita Ferrer Badillo signed and received on January 18, 1967, her copy of the
Deed of Extrajudicial Partition and Sale, the document evidencing the transfer of the
property in question to the appellants, she also in effect received the notice in writing
required by Article 1623 in behalf of her children. This manner of receiving a written
notice is specifically sanctioned by the case of Conejero, et al. vs. Court of Appeals, et
al.9 Thus, in this case, the period of redemption began to toll from the time of that
receipt.

... The right of legal redemption is a pure creature of the law regulated by law,
and works only one way in favor of the redemptioner. Not having parted with
anything, the legal redemptioner can compel the purchaser to sell but can not
be compelled to buy.

On the other hand, the judicial guardian of the appellee minors, Modesta Badillo, was
only appointed as such on November 11, 1968. She thereafter manifested her desire to
redeem the property from the appellants, formalizing such intention in the complaint that
was finally filed for this case on July 23, 1970.

We do not believe that the framers of the Civil Code ever intended to
countenance a situation so unjust to one of the parties and prejudicial to social
interest. The construction of article 1524 which the plaintiff offers would keep
the property in a state of indivision even if one of the co-owners wanted to
separate. This is contrary to the express policy of the law that "No co-owner
shall be obliged to remain a party to the community, but each may, at any time,
demand partition of the thing held in common." (Article 400, Civil Code.) It
would be extremely unfair to the purchaser and injurious to the public welfare to
keep in a state of suspense, for possibility as long as 20 years or more, what his
co-owner might do when he becomes of age. While the uncertainty continued
the purchaser could not make any improvement on the property without
running the risk of losing his investments and the fruits of his labor. 6

Since the required written notice was served on January 18, 1967 and the offer to
redeem was only made after November 11, 1968, the period for legal redemption had
already expired and the appellants cannot now be ordered to reconvey to the appellees
that portion of the undivided property which originally belonged to Clarita Ferrer Badillo.

The wisdom that can easily be formulated in reconciling the laws and the case discussed
above is that the period fixed for legal redemption in accordance with Article 1623 (then
Article 1524) of the New Civil Code will run against a minor co-owner duly represented by
a judicially appointed guardian, provided that said guardian is served with the necessary
written notice by the vendor. Corollary to this, the period fixed for legal redemption will
also run against a minor co-owner whose property is valued no more than Two Thousand

Under the second assignment of error, the appellants contend that the Deed of
Extrajudicial Partition and Sale, in so far as it sold to them the appellee minors' share of
5/12, is a voidable contract pursuant to Article 1390 of the New Civil Code. They then
quoted verbatim the text of the said article without Identifying the particular portion of
that provision which directly supports their contention.
According to the appellants, in case a voidable contract is annulled, Article 1398 requires
the restitution by the contracting parties to each other of the things received by them
under the contract. The appellants, however, concede that by express mandate of Article
1399, full restitution cannot be ordered from the minors involved in the contract. Said
minors can only be required to restore partially, only to the extent of the benefits they
received by virtue of the questioned contract.
This contention is untenable.

The Deed of Extrajudicial Partition and Sale is not a voidable or an annullable contract
under Article 1390 of the New Civil Code. Article 1390 renders a contract voidable if one
of the parties is incapable of giving consent to the contract or if the contracting party's
consent is vitiated by mistake, violence, intimidation, undue influence or fraud. In this
case, however, the appellee minors are not even parties to the contract involved. Their
names were merely dragged into the contract by their mother who claimed a right to
represent them, purportedly in accordance with Article 320 of the New Civil Code.10
The Deed of Extrajudicial Partition and Sale is an unenforceable or, more specifically, an
unauthorized contract under Articles 1403 (1) and 1317 of the New Civil Code. These
provisions state that:

In view of the foregoing, the appellants are hereby ordered to restore to the appellees
the full ownership and possession of the latter's 5/12 share in the undivided property by
executing the proper deed of reconveyance. The appellants' ownership over the
remaining 7/12 share in the undivided property is hereby confirmed.
WHEREFORE, the decision under review is hereby modified accordingly and appellants
are directed to deliver possession of above appellees' share, with no pronouncement as
to costs.
SO ORDERED.

ART. 1403. The following contracts are unenforceable, unless they are ratified:
(1) Those entered into in the name of another person by one who has been
given no authority or legal representation, or who has acted beyond his powers;
...
ART. 1317. No one may contract in the name of another without being
authorized by the latter, or unless he has by law a right to represent him.
A contract entered into in the name of another by one who has no authority or
legal representation, or who has acted beyond his powers, shall be
unenforceable, unless it is ratified, expressly or impliedly, by the person on
whose behalf it has been executed, before it is revoked by the other contracting
party.
Clearly, Clarita Ferrer Badillo has no authority or has acted beyond her powers in
conveying to the appellants that 5/12 undivided share of her minor children in the
property involved in this case.11 The powers given to her by the laws as the natural
guardian covers only matters of administration and cannot include the power of
disposition.12She should have first secured the permission of the court before she
alienated that portion of the property in question belonging to her minor children.13
The appellee minors never ratified this Deed of Extrajudicial Partition and
Sale.1avvphi1 In fact, they question its validity as to them. Hence, the contract remained
unenforceable or unauthorized. No restitution may be ordered from the appellee minors
either as to that portion of the purchase price which pertains to their share in the
property or at least as to that portion which benefited them because the law does not
sanction any.
The third error assigned need not be discussed further because Our pronouncement on
the first assignment of error has rendered it academic. Suffice it to state that since the
30-day period for redemption had already lapsed, the appellants cannot be ordered to resell to the appellees the remaining 7/12 portion of the property in question.

UY and his Spouse GLENDA J. UY and GILDA L. JARDELEZA, petitioners,

vs. COURT OF APPEALS and TEODORO L. JARDELEZA, respondents.
DECISION
PARDO, J.:
The case is an appeal via certiorari from the decision[1] of the Court of Appeals and
its resolution denying reconsideration[2] reversing that of the Regional Trial Court, Iloilo,
Branch 32[3] and declaring void the special proceedings instituted therein by petitioners
to authorize petitioner Gilda L. Jardeleza, in view of the 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.

WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991, the
Court hereby renders judgment as follows:

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 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.

SO ORDERED.

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:

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.

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.
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 ifGilda 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 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, 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 ExParte 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
property 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 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.[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 wife's 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 opportunity 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.

her sister Julieta Ledesma, Pilar Y. Goyena, Julieta's close friend and companion of more
than 60 years, comes to this Court on petition for review on certiorari.
On July 8, 1996, respondent filed at the RTC of Makati a "PETITION FOR LETTERS OF
GUARDIANSHIP"1 over the person and properties of her sister Julieta, the pertinent
allegations of which read:
2. That for the most part during the year 1995 and 1996, Julieta Ledesma has
been a patient in the Makati Medical Center where she is under medical
attention for old age, general debility, and a "mini"-stroke which she suffered in
the United States in early 1995;
3. That Julieta Ledesma is confined to her bed and can not get up from bed
without outside assistance, and she has to be moved by wheel chair;
4. That Julieta Ledesma owns real estate and personal properties in Metro
Manila and in Western Visayas, with an aggregate estimated assessed and par
value of P1 Million Pesos[;]
5. That Julieta Ledesma is not in a position to care for herself, and that she
needs the assistance of a guardian to manage her interests in on-going
corporate and agricultural enterprises;
6. That the nearest of kin of Julieta Ledesma are her sisters of the full blood,
namely, petitioner Amparo Ledesma Gustilo, Teresa Ledesma (aka. Sister
Cristina of the Religious of the Assumption, and Loreto Ledesma Mapa, all of
whom have given their consent to the filing of this petition as shown by their
signatures at the bottom of this petition[;]

G.R. No. 147148

January 13, 2003

PILAR Y. GOYENA, petitioner,

vs.
AMPARO LEDESMA-GUSTILO, respondent.
CARPIO MORALES, J.:
From the Court of Appeals June 19, 2000 Decision which affirmed that of the Regional
Trial Court (RTC) of Makati, Branch 149 in Special Proceeding No. N-4375 appointing
herein respondent Amparo Ledesma Gustilo as guardian over the person and property of

7. That petitioner has extensive experience in business management of

commercial, agricultural and corporate enterprises, many of which are in the
same entities where Julieta Ledesma holds an interest, and that she is in a
position to monitor and supervise the delivery of vitally needed medical
services to Julieta Ledesma whether in the Metro Manila area, or elsewhere.
Petitioner filed an Opposition to the petition for letters of guardianship. She later filed an
Amended Opposition on August 15, 1996 reading in part:
2.03 The petition lacked factual and legal basis in that Julieta Ledesma is
competent and sane and there is absolutely no need to appoint a guardian to
take charge of her person/property. She is very able to take charge of her
affairs, and this is clearly evident from her letters to the petitioner. Copies of her
recent letters are herewith attached as Annexes "A" to "E."
xxx

xxx

xxx

2.05 Petitioner is not fit to be appointed as the guardian of Julieta Ledesma

since their interests are antagonistic (Sudler v. Sudler, 121 Md. 46. 49 L.R.A.
800, as cited in vol. V-B Francisco Revised Rules of Court, Rule 93, Section 4, p.
414).
xxx

xxx

xxx

3.01 The above captioned petition should be dismissed for utter lack of legal
and/or factual basis.
3.02 In the remote event that this Honorable Court should find that Julieta
Ledesma is incompetent and resolve that there is need to appoint a guardian
over her person and property, this Honorable Court should appoint as such
guardian:
1. Oppositor Goyena;
2. Bart Lacson;
3. Fely Montelibano;
4. Jose T. Revilla; or
5. a qualified and reputable person as may be determined fit by this
Honorable Court.
By Decision2 of October 4, 1996, the trial court found Julieta "incompetent and incapable
of taking care of herself and her property" and appointed respondent as guardian of her
person and properties, ratiocinating as follows:
A perusal of the records shows that petitioner (Amparo) is 72 years of age, the
youngest sister of Julieta. Admittedly, the Oppositor Pilar Goyena, 90 years of
age has been the close friend and companion of Julieta for 61 years. Julieta was
with Oppositor when she suffered her first stroke in Makati in 1991 which was
the reason why Julieta had to give up the management of their hacienda in
Bacolod. It is also not disputed that Julieta was with Pilar when she had her
second stroke in the U.S. In short, the special bond of friendship existing
between Julieta and the Oppositor cannot be denied. Now that Julieta is unable
to manage her personal life and business concerns due to senility and "vascular
dementia," the oppositor wants to be appointed her guardian or else Bart
Lacson, Fely Montelibano and Jose T. Revilla.
It is interesting to note that the oppositor has interposed her objection to the
appointment of Amparo as guardian because she thinks that the latter dislikes

her. She further added that there were a number of letters allegedly written by
Julieta to Amparo which showed Julieta's sentiments regarding certain matters.
Nevertheless, not one of the nearest of kin of Julieta opposed the petition. As a
matter of fact, her sisters signified their conformity thereto. Thus, Ms. Goyena's
mere conjecture that Amparo dislikes her is no sufficient reason why the petition
should be denied. Neither does it make Amparo unsuitable and unfit to perform
the duties of a guardian. On the contrary, it is Ms. Goyena who could be
considered as to have an adverse interest to that of Julieta if it is true that 50%
of Julieta's holdings at the Makati Medical Center has been transferred to her as
alleged in Exhibit 1 and Exhibit A.
By and large, the qualification of Amparo to act as guardian over the person and
properties of Julieta has been duly established. As a sister, she can best take
care of Julieta's concerns and well being. Now that Julieta is in the twilight of her
life, her family should be given the opportunity to show their love and affection
for her without however denying Pilar Goyena access to her considering the
special bond of friendship between the two. Needless to say, the oppositor at 90
years of age could not be said to be physically fit to attend to all the needs of
Julieta.
WHEREFORE, petitioner Amparo Gustilo, is hereby appointed guardian over the
person and property of Julieta Ledesma, an incompetent with all the powers and
duties specified under the law.
Accordingly, let letters of guardianship issue to petitioner upon her filing of a
bond in the amount of P200,000.00 to guarantee the performance of the
obligations prescribed for general guardians.
SO ORDERED. (Emphasis supplied)
Petitioner's Motion for Reconsideration of the trial court's decision was, by Order of
November 4, 19963 , denied in this wise:
Acting on the Motion for Reconsideration filed by the Oppositor thru counsel,
and finding no merits on the ground stated therein, considering that petitioner
appears to be most qualified and suitable to act as Julieta Ledesma's guardian
after taking into consideration the qualifications of the oppositor and her other
recomendees [sic], aside from the fact that petitioner's appointment as such
was not objected to by any of her nearest kin, in contrast to the hostile interest
of oppositor, the same is hereby DENIED.
SO ORDERED.
On appeal of petitioner, the Court of Appeals affirmed the trial court's decision on the
following ratiocination:4

Indeed, oppositor-appellant (Pilar) has not shown the authenticity and due
execution of the letters which purport to show the existence of a rift between
Julieta and her family and dissatisfaction as to how the businesses were
managed. At any rate, while it is correct to say that no person should be
appointed guardian if his interest conflict with those of the ward (Guerrero vs.
Teran, 13 Phil. 212), there are really no antagonistic interests to speak of
between petitioner [Amparo] and Julieta, they being co-owners of certain
properties. There is also no showing that petitioner's business decisions in the
past had resulted in the prejudice of Julieta.
While the oppositor may have been very close to Julieta, there is no sufficient
showing that petitioner is hostile to the best interests of the latter. On the
contrary, it was the petitioner who, realizing the need for the appointment of a
person to guard her sister's interests, initiated the petition for guardianship. We
see no indication that petitioner is animated by a desire to prejudice
Julieta's health as well as financial interests. In point of fact, it was
oppositor-appellant who had initially concealed the deteriorating state
of mind of Julieta from the court. Oppositor's advanced age of 90 years also
militate against her assuming the guardianship of the incompetent. The
oppositor has declared that she is not interested to be appointed legal
guardian (p. 21[,] Appellant's Brief, Rollo, p. 59). But the persons that she
points to as being better choices as Julieta's guardian over the appellee have
not acted, nor even indicated, their desire to act as such. In any case, We see
no cogent reason why We should reverse the well-reasoned disquisition of the
trial court.
WHEREFORE, finding no error in the appealed decision, the same is
hereby AFFIRMED.
SO ORDERED. (Emphasis supplied)
Petitioner's Motion for Reconsideration of the Court of Appeals decision having been
denied, she filed the present petition which proffers that:
THE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY
NOT IN ACCORD WITH LAW AND APPLICABLE DECISIONS OF THIS HONORABLE
COURT.
THE COURT OF APPEALS HAS DEPARTED FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS IN AFFIRMING THE TRIAL COURT'S
DECISION DATED OCTOBER 4, 1996 AND IN ISSUING THE RESOLUTIONS DATED
JUNE 29, 2000 AND FEBRUARY 9, 2001.
The petition fails.

It is well-entrenched doctrine that questions of fact are not proper subjects of appeal by
certiorari under Rule 45 of the Rules of Court as this mode of appeal is confined to
questions of law.5 The test of whether the question is one of law or of fact is whether the
appellate court can determine the issue raised without reviewing or evaluating the
evidence, in which case it is a question of law; otherwise, it is question of fact.6
In the case at bar, the only issue before this Court is whether or not the appellate court
and the trial court erred in finding that respondent is not unsuitable for appointment as
guardian of the person and properties of Julieta. In support of an affirmative answer,
petitioner posits as follows:
1. The Court of Appeals' basis for its decision that there are no antagonistic
interests between [her] and [respondent] is contrary to the evidence on
record,7
2. The Court of Appeals' erred in holding that there is no showing that
[respondent] is hostile to the best interest of Julieta,8 and
3. Julieta Ledesma's appointed representatives are most suitable to be
appointed as her guardian.9
Clearly, the issues raised and arguments in support of petitioner's position require a
review of the evidence, hence, not proper for consideration in the petition at bar. This
Court cannot thus be tasked to go over the proofs presented by the parties and analyze,
assess, and weigh them to ascertain if the trial court and appellate court were correct in
according them superior credit.10
That the issues raised are factual is in fact admitted by petitioner in her Reply dated
August 30, 2001:11
Although the general rule is that this Honorable Court is not a trier of facts, its
jurisdiction being limited to reviewing and revising only errors of law, it is
nonetheless subject to the following exceptions which have been laid down in a
number of decisions of this Honorable Court:
(1) When the conclusion is a finding grounded entirely on speculation,
surmises and conjectures; (2) When the inference made is manifestly
mistaken, absurd or impossible; (3) When there is grave abuse of
discretion; (4) When the judgment is based on a misapprehension of
facts; (5) When the findings of facts are conflicting; (6) When the Court
of Appeals, in making its findings, went beyond the issues of the case
and the same is contrary to the admissions of both appellants and
appellee; (7) When the findings of the Court of Appeals are contrary to
those of the trial court; (8) When the findings of facts are conclusions
without citation of specific evidence on which they are based; (9) When

the facts set forth in the petition as well as in the petitioners' main and
reply briefs are not disputed by the respondents; and (10) When the
findings of fact of the Court of Appeals is premised on the supposed
absence of evidence and is contradicted by the evidence on record
(Emphasis supplied); (Rollo, 350351)
Petitioner claims that "there is no doubt that the instant petition falls within the abovestated exceptions because the findings of the Court of Appeals are clearly belied by the
evidence on record."12
In the selection of a guardian, a large discretion must be allowed the judge who deals
directly with the parties.13 As this Court said:
As a rule, when it appears that the judge has exercised care and diligence in selecting
the guardian, and has given due consideration to the reasons for and against his action
which are urged by the interested parties, his action should not be disturbed unless
it is made very clear that he has fallen into grievous error.14
In the case at bar, petitioner has not shown that the lower courts committed any error.
Petitioner cannot rely on Garchitorena v. Sotelo15 with respect to the existence of
antagonistic interests between respondent and Julieta. In that case, the interest of
Perfecto Gabriel as creditor and mortgagee of the minor-wards' properties (a house and
lot) is antagonistic to the interest of the wards as mortgagors, hence, Gabriel's
appointment as guardian was erroneous. For while he sought to foreclose the wards'
properties as creditor and mortgagee on one hand, he had to, on the other hand,
endeavor to retain them for the wards as their guardian. Added to that was Gabriel's
appointment as guardian without him informing the guardianship court that he held a
mortgage on the properties. Furthermore, he deliberately misinformed the said court that
the first mortgagee was the Santa Clara Monastery when it was him. None of the said
circumstances obtain in the present case.

correspond to me. I would like to have enough money as a reserve for any
future need that I might have like hospitalization, travel, buying whatever I like,
etc. etc. (Letter to appellee; Exhibit "2")
merely shows Julieta's lack of interest in future investments, not necessarily a business
disagreement, and certainly not per se amounting to antagonistic interests between her
and respondent to render the latter unsuitable for appointment as guardian.
The second letter18 which reads:
My mind is still clear to tell you about Fortuna when I had my stroke I was
confined in MMC for one month. If I am not mistaken you did not visit
me. One day Carlos came to visit me and asked me this question. Do you think
you will be able to continue managing the Hda? I answered him I don't know it
all depends on my sickness. Carlos said who do you want to take your place? I
said I want Cheling Zabaljauregui. Then Carlos said O.K. He asked Pilar can you
contact Cheling? Tell him to call me or see me. The nephew of Cheling was a
resident in MMC through him Pilar was able to contact Cheling and gave him
Carlo's message. So I thought all the time it was agreeable. I left for USA for
treatment. To my surprise when I came back from USA it was not
Cheling, but you (appellee) took over the management as you
requested. Carlos did not tell me but decided in your favor. . . . (Letter to
appellee; Exhibit "3"; emphasis supplied)
shows that: 1) respondent did not visit Julieta when she was confined at the Makati
Medical Center on account of her stroke, 2) there was disagreement as to who should run
the hacienda, with Julieta favoring a certain Cheling Zabaljaurigue, and 3) respondent
took over management of the hacienda with their brother Carlos (Ledesma) supporting
her. No inference as to the existence of antagonistic interests between respondent and
Julieta can thus be made.
The third letter19 which reads:

Petitioner can neither rely on certain letters of Julieta to establish her claim that there
existed16 a rift between the two which amounts to antagonistic interests. The first
letter17 sent by Julieta to respondent which reads:
x x x So if you (appellee) do not agree with me (Julieta) my decision is right to
let us divide as soon as possible, so we will have capital each of us to work, and
keep the Hda, for [sic] generation to generation.
xxx

xxx

xxx

For the last time I will repeat even if I have to kneel before you and Carlos I
have no interest anymore in any future investment due to my age and being
single and alone in life. I would like to be able to enjoy whatever monies that

. . . Carlos went to the house before I left and asked from me twenty thousand
(20,000) shares of San Carlos Milling which you gave because I wanted to sell
all. . . . If he does not sell or cannot sell, just arrange to send them back to
me. Amparing since I came here to America and Vancouver my requests have
been ignored. Everyone is suspecting that Pilar is the one ordering or
commanding me that is not true. What I asked from Julio is just to report to me
or send me reports so I can follow up from here. But up to now he has ignored
my requests x x x . (Letter to appellee Exhibit "4")
has no relevance to the issue of whether or not the lower courts erred in finding that
respondent is not unsuitable for appointment as guardian. The letter in fact discloses,
that it was Julieta's nephew Julio Ledesma, and not respondent, who ignored the
"request."

As for the fourth letter20 which reads:

I want all of you to know that whatever decision now and in the future I want to
do nobody can stop me especially regarding my properties, money, etc. I will be
the only one to dispose of it because it is mine. You said to Raul you are going to
court, you are most welcome x x x . (Letter to Connie, Exhibit "5")
it has also no relevance to the issue in the case at bar. The letter is not even addressed
to respondent but to a certain Connie (a sister-in-law of Julieta).
Petitioner's assertion that respondent's intent in instituting the guardianship proceedings
is to take control of Julieta's properties and use them for her own benefit21 is purely
speculative and finds no support from the records.
The claim that respondent is hostile to the best interests of Julieta also lacks merit. That
respondent removed Julieta from the Makati Medical Center where she was confined after
she suffered a stroke does not necessarily show her hostility towards Julieta, given the
observation by the trial court, cited in the present petition, that Julieta was still placed
under the care of doctors22 after she checked out and was returned to the hospital when
she suffered another stroke.
Finally, this Court notes two undisputed facts in the case at bar, to wit: 1) Petitioner
opposed the petition for the appointment of respondent as guardian before the trial court
because, among other reasons, she felt she was disliked by respondent,23 a ground
which does not render respondent unsuitable for appointment as guardian, and 2)
Petitioner concealed the deteriorating state of mind of Julieta before the trial
court, 24 which is reflective of a lack of good faith.
Discussion of the third argument is unnecessary, the suitability of Amparo for
appointment as guardian not having been successfully contested.
ACCORDINGLY, for lack of merit, the petition is hereby DISMISSED

Rosecommon, Ireland, and that he be directed that the same be used only for the
education of my brother's children and their descendants.
6. I direct that ten (10) years after my death my property be given to the above
mentioned Matthew Hanley to be disposed of in the way he thinks most
advantageous.
xxx

xxx

xxx

8. I state at this time I have one brother living, named Malachi Hanley, and that
my nephew, Matthew Hanley, is a son of my said brother, Malachi Hanley.

G.R. No. L-43082

June 18, 1937

PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiffappellant,

vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
LAUREL, J.:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of
Thomas Hanley, deceased, brought this action in the Court of First Instance of Zamboanga
against the defendant, Juan Posadas, Jr., then the Collector of Internal Revenue, for the
refund of the amount of P2,052.74, paid by the plaintiff as inheritance tax on the estate of
the deceased, and for the collection of interst thereon at the rate of 6 per cent per annum,
computed from September 15, 1932, the date when the aforesaid tax was [paid under
protest. The defendant set up a counterclaim for P1,191.27 alleged to be interest due on
the tax in question and which was not included in the original assessment. From the
decision of the Court of First Instance of Zamboanga dismissing both the plaintiff's
complaint and the defendant's counterclaim, both parties appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga,
leaving a will (Exhibit 5) and considerable amount of real and personal properties. On june
14, 1922, proceedings for the probate of his will and the settlement and distribution of his
estate were begun in the Court of First Instance of Zamboanga. The will was admitted to
probate. Said will provides, among other things, as follows:

The Court of First Instance of Zamboanga considered it proper for the best interests of ther
estate to appoint a trustee to administer the real properties which, under the will, were to
pass to Matthew Hanley ten years after the two executors named in the will, was, on March
8, 1924, appointed trustee. Moore took his oath of office and gave bond on March 10, 1924.
He acted as trustee until February 29, 1932, when he resigned and the plaintiff herein was
appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of Internal
Revenue, alleging that the estate left by the deceased at the time of his death consisted of
realty valued at P27,920 and personalty valued at P1,465, and allowing a deduction of
P480.81, assessed against the estate an inheritance tax in the amount of P1,434.24 which,
together with the penalties for deliquency in payment consisting of a 1 per cent monthly
interest from July 1, 1931 to the date of payment and a surcharge of 25 per cent on the
tax, amounted to P2,052.74. On March 15, 1932, the defendant filed a motion in the
testamentary proceedings pending before the Court of First Instance of Zamboanga
(Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to pay
to the Government the said sum of P2,052.74. The motion was granted. On September 15,
1932, the plaintiff paid said amount under protest, notifying the defendant at the same
time that unless the amount was promptly refunded suit would be brought for its recovery.
The defendant overruled the plaintiff's protest and refused to refund the said amount
hausted, plaintiff went to court with the result herein above indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased, passed to his
instituted heir, Matthew Hanley, from the moment of the death of the former, and
that from the time, the latter became the owner thereof.

4. I direct that any money left by me be given to my nephew Matthew Hanley.

5. I direct that all real estate owned by me at the time of my death be not sold or
otherwise disposed of for a period of ten (10) years after my death, and that the
same be handled and managed by the executors, and proceeds thereof to be
given to my nephew, Matthew Hanley, at Castlemore, Ballaghaderine, County of

II. In holding, in effect, that there was deliquency in the payment of inheritance
tax due on the estate of said deceased.
III. In holding that the inheritance tax in question be based upon the value of the
estate upon the death of the testator, and not, as it should have been held, upon

the value thereof at the expiration of the period of ten years after which,
according to the testator's will, the property could be and was to be delivered to
the instituted heir.
IV. In not allowing as lawful deductions, in the determination of the net amount of
the estate subject to said tax, the amounts allowed by the court as compensation
to the "trustees" and paid to them from the decedent's estate.
V. In not rendering judgment in favor of the plaintiff and in denying his motion for
new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns the following
error besides:
The lower court erred in not ordering the plaintiff to pay to the defendant the sum
of P1,191.27, representing part of the interest at the rate of 1 per cent per month
from April 10, 1924, to June 30, 1931, which the plaintiff had failed to pay on the
inheritance tax assessed by the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in this appeal: (a)
When does the inheritance tax accrue and when must it be satisfied? (b) Should the
inheritance tax be computed on the basis of the value of the estate at the time of the
testator's death, or on its value ten years later? (c) In determining the net value of the
estate subject to tax, is it proper to deduct the compensation due to trustees? (d) What law
governs the case at bar? Should the provisions of Act No. 3606 favorable to the tax-payer
be given retroactive effect? (e) Has there been deliquency in the payment of the
inheritance tax? If so, should the additional interest claimed by the defendant in his appeal
be paid by the estate? Other points of incidental importance, raised by the parties in their
briefs, will be touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the same.
Section 1536 as amended, of the Administrative Code, imposes the tax upon "every
transmission by virtue of inheritance, devise, bequest, giftmortis causa, or advance in
anticipation of inheritance,devise, or bequest." The tax therefore is upon transmission or
the transfer or devolution of property of a decedent, made effective by his death. (61 C. J.,
p. 1592.) It is in reality an excise or privilege tax imposed on the right to succeed to,
receive, or take property by or under a will or the intestacy law, or deed, grant, or gift to
become operative at or after death. Acording to article 657 of the Civil Code, "the rights to
the succession of a person are transmitted from the moment of his death." "In other
words", said Arellano, C. J., ". . . the heirs succeed immediately to all of the property of the
deceased ancestor. The property belongs to the heirs at the moment of the death of the
ancestor as completely as if the ancestor had executed and delivered to them a deed for
the same before his death." (Bondad vs. Bondad, 34 Phil., 232. See also, Mijares vs. Nery, 3
Phil., 195; Suilong & Co., vs. Chio-Taysan, 12 Phil., 13; Lubrico vs. Arbado, 12 Phil., 391;
Innocencio vs. Gat-Pandan, 14 Phil., 491; Aliasas vs.Alcantara, 16 Phil., 489; Ilustre vs.
Alaras Frondosa, 17 Phil., 321; Malahacan vs. Ignacio, 19 Phil., 434; Bowa vs. Briones, 38

Phil., 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil., 531; Fule vs. Fule, 46 Phil.,
317; Dais vs. Court of First Instance of Capiz, 51 Phil., 396; Baun vs. Heirs of Baun, 53 Phil.,
654.) Plaintiff, however, asserts that while article 657 of the Civil Code is applicable to
testate as well as intestate succession, it operates only in so far as forced heirs are
concerned. But the language of article 657 of the Civil Code is broad and makes no
distinction between different classes of heirs. That article does not speak of forced heirs; it
does not even use the word "heir". It speaks of the rights of succession and the
transmission thereof from the moment of death. The provision of section 625 of the Code of
Civil Procedure regarding the authentication and probate of a will as a necessary condition
to effect transmission of property does not affect the general rule laid down in article 657
of the Civil Code. The authentication of a will implies its due execution but once probated
and allowed the transmission is effective as of the death of the testator in accordance with
article 657 of the Civil Code. Whatever may be the time when actual transmission of the
inheritance takes place, succession takes place in any event at the moment of the
decedent's death. The time when the heirs legally succeed to the inheritance may differ
from the time when the heirs actually receive such inheritance. "Poco importa", says
Manresa commenting on article 657 of the Civil Code, "que desde el falleimiento del
causante, hasta que el heredero o legatario entre en posesion de los bienes de la herencia
o del legado, transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al
momento de la muerte, y asi lo ordena el articulo 989, que debe considerarse como
complemento del presente." (5 Manresa, 305;see also, art. 440, par. 1, Civil Code.) Thomas
Hanley having died on May 27, 1922, the inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that
the obligation to pay the tax arose as of the date. The time for the payment on inheritance
tax is clearly fixed by section 1544 of the Revised Administrative Code as amended by Act
No. 3031, in relation to section 1543 of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. The following
shall not be taxed:
(a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy by the
fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in favor of
another beneficiary, in accordance with the desire of the predecessor.
In the last two cases, if the scale of taxation appropriate to the new beneficiary is
greater than that paid by the first, the former must pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article shall be paid:

(a) In the second and third cases of the next preceding section, before
entrance into possession of the property.
(b) In other cases, within the six months subsequent to the death of the
predecessor; but if judicial testamentary or intestate proceedings shall be
instituted prior to the expiration of said period, the payment shall be
made by the executor or administrator before delivering to each
beneficiary his share.
If the tax is not paid within the time hereinbefore prescribed, interest at the rate
of twelve per centum per annum shall be added as part of the tax; and to the tax
and interest due and unpaid within ten days after the date of notice and demand
thereof by the collector, there shall be further added a surcharge of twenty-five
per centum.
A certified of all letters testamentary or of admisitration shall be furnished the
Collector of Internal Revenue by the Clerk of Court within thirty days after their
issuance.
It should be observed in passing that the word "trustee", appearing in subsection (b) of
section 1543, should read "fideicommissary" or "cestui que trust". There was an obvious
mistake in translation from the Spanish to the English version.
The instant case does fall under subsection (a), but under subsection (b), of section 1544
above-quoted, as there is here no fiduciary heirs, first heirs, legatee or donee. Under the
subsection, the tax should have been paid before the delivery of the properties in question
to P. J. M. Moore as trustee on March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties
are concerned, did not and could not legally pass to the instituted heir, Matthew Hanley,
until after the expiration of ten years from the death of the testator on May 27, 1922 and,
that the inheritance tax should be based on the value of the estate in 1932, or ten years
after the testator's death. The plaintiff introduced evidence tending to show that in 1932
the real properties in question had a reasonable value of only P5,787. This amount added
to the value of the personal property left by the deceased, which the plaintiff admits is
P1,465, would generate an inheritance tax which, excluding deductions, interest and
surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose inheritance
taxes takes its being and if, upon the death of the decedent, succession takes place and
the right of the estate to tax vests instantly, the tax should be measured by the vlaue of
the estate as it stood at the time of the decedent's death, regardless of any subsequent
contingency value of any subsequent increase or decrease in value. (61 C. J., pp. 1692,
1693; 26 R. C. L., p. 232; Blakemore and Bancroft, Inheritance Taxes, p. 137. See
also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law. ed., 969.) "The right
of the state to an inheritance tax accrues at the moment of death, and hence is ordinarily

measured as to any beneficiary by the value at that time of such property as passes to
him. Subsequent appreciation or depriciation is immaterial." (Ross, Inheritance Taxation, p.
72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure
(vol. 37, pp. 1574, 1575) that, in the case of contingent remainders, taxation is postponed
until the estate vests in possession or the contingency is settled. This rule was formerly
followed in New York and has been adopted in Illinois, Minnesota, Massachusetts, Ohio,
Pennsylvania and Wisconsin. This rule, horever, is by no means entirely satisfactory either
to the estate or to those interested in the property (26 R. C. L., p. 231.). Realizing, perhaps,
the defects of its anterior system, we find upon examination of cases and authorities that
New York has varied and now requires the immediate appraisal of the postponed estate at
its clear market value and the payment forthwith of the tax on its out of the corpus of the
estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re Huber, 86 N. Y. App.
Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519; Estate of Brez,
172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079. Vide
also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul.
Cas., 888.) California adheres to this new rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a transmission by
inheritance is taxable at the time of the predecessor's death, notwithstanding the
postponement of the actual possession or enjoyment of the estate by the beneficiary, and
the tax measured by the value of the property transmitted at that time regardless of its
appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross in arriving at
the net value of the estate on which the inheritance tax is to be computed (sec. 1539,
Revised Administrative Code). In the case at bar, the defendant and the trial court allowed
a deduction of only P480.81. This sum represents the expenses and disbursements of the
executors until March 10, 1924, among which were their fees and the proven debts of the
deceased. The plaintiff contends that the compensation and fees of the trustees, which
aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO), should also be deducted
under section 1539 of the Revised Administrative Code which provides, in part, as follows:
"In order to determine the net sum which must bear the tax, when an inheritance is
concerned, there shall be deducted, in case of a resident, . . . the judicial expenses of the
testamentary or intestate proceedings, . . . ."
A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs.
Saunders, 16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the
compensation due him may lawfully be deducted in arriving at the net value of the estate
subject to tax. There is no statute in the Philippines which requires trustees' commissions
to be deducted in determining the net value of the estate subject to inheritance tax (61 C.
J., p. 1705). Furthermore, though a testamentary trust has been created, it does not appear
that the testator intended that the duties of his executors and trustees should be
separated. (Ibid.; In re Vanneck's Estate, 161 N. Y. Supp., 893; 175 App. Div., 363; In
re Collard's Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the
testator expressed the desire that his real estate be handled and managed by his

executors until the expiration of the period of ten years therein provided. Judicial expenses
are expenses of administration (61 C. J., p. 1705) but, in State vs. Hennepin County Probate
Court (112 N. W., 878; 101 Minn., 485), it was said: ". . . The compensation of a trustee,
earned, not in the administration of the estate, but in the management thereof for the
benefit of the legatees or devises, does not come properly within the class or reason for
exempting administration expenses. . . . Service rendered in that behalf have no reference
to closing the estate for the purpose of a distribution thereof to those entitled to it, and are
not required or essential to the perfection of the rights of the heirs or legatees. . . . Trusts . .
. of the character of that here before the court, are created for the the benefit of those to
whom the property ultimately passes, are of voluntary creation, and intended for the
preservation of the estate. No sound reason is given to support the contention that such
expenses should be taken into consideration in fixing the value of the estate for the
purpose of this tax."
(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas
Hanley under the provisions of section 1544 of the Revised Administrative Code, as
amended by section 3 of Act No. 3606. But Act No. 3606 went into effect on January 1,
1930. It, therefore, was not the law in force when the testator died on May 27, 1922. The
law at the time was section 1544 above-mentioned, as amended by Act No. 3031, which
took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at the time of
the death of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The
taxpayer can not foresee and ought not to be required to guess the outcome of pending
measures. Of course, a tax statute may be made retroactive in its operation. Liability for
taxes under retroactive legislation has been "one of the incidents of social life." (Seattle vs.
Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup. Ct. Rep., 44.) But legislative intent that a tax
statute should operate retroactively should be perfectly clear. (Scwab vs. Doyle, 42 Sup. Ct.
Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S., 602; Stockdale vs. Insurance
Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) "A statute should be considered as
prospective in its operation, whether it enacts, amends, or repeals an inheritance tax,
unless the language of the statute clearly demands or expresses that it shall have a
retroactive effect, . . . ." (61 C. J., P. 1602.) Though the last paragraph of section 5 of
Regulations No. 65 of the Department of Finance makes section 3 of Act No. 3606,
amending section 1544 of the Revised Administrative Code, applicable to all estates the
inheritance taxes due from which have not been paid, Act No. 3606 itself contains no
provisions indicating legislative intent to give it retroactive effect. No such effect can
begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain provisions of
Act No. 3606 are more favorable to the taxpayer than those of Act No. 3031, that said
provisions are penal in nature and, therefore, should operate retroactively in conformity
with the provisions of article 22 of the Revised Penal Code. This is the reason why he
applied Act No. 3606 instead of Act No. 3031. Indeed, under Act No. 3606, (1) the
surcharge of 25 per cent is based on the tax only, instead of on both the tax and the
interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty days from

notice and demand by rthe Collector of Internal Revenue within which to pay the tax,
instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an offense committed
against the state which, under the Constitution, the Executive has the power to pardon. In
common use, however, this sense has been enlarged to include within the term "penal
statutes" all status which command or prohibit certain acts, and establish penalties for
their violation, and even those which, without expressly prohibiting certain acts, impose a
penalty upon their commission (59 C. J., p. 1110). Revenue laws, generally, which impose
taxes collected by the means ordinarily resorted to for the collection of taxes are not
classed as penal laws, although there are authorities to the contrary. (See Sutherland,
Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct., 55; Rice
vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150; State vs.
Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is not applicable to
the case at bar, and in the absence of clear legislative intent, we cannot give Act No. 3606
a retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time
and the tax may be paid within another given time. As stated by this court, "the mere
failure to pay one's tax does not render one delinqent until and unless the entire period has
eplased within which the taxpayer is authorized by law to make such payment without
being subjected to the payment of penalties for fasilure to pay his taxes within the
prescribed period." (U. S. vs. Labadan, 26 Phil., 239.)
The defendant maintains that it was the duty of the executor to pay the inheritance tax
before the delivery of the decedent's property to the trustee. Stated otherwise, the
defendant contends that delivery to the trustee was delivery to the cestui que trust, the
beneficiery in this case, within the meaning of the first paragraph of subsection (b) of
section 1544 of the Revised Administrative Code. This contention is well taken and is
sustained. The appointment of P. J. M. Moore as trustee was made by the trial court in
conformity with the wishes of the testator as expressed in his will. It is true that the word
"trust" is not mentioned or used in the will but the intention to create one is clear. No
particular or technical words are required to create a testamentary trust (69 C. J., p. 711).
The words "trust" and "trustee", though apt for the purpose, are not necessary. In fact, the
use of these two words is not conclusive on the question that a trust is created (69 C. J., p.
714). "To create a trust by will the testator must indicate in the will his intention so to do by
using language sufficient to separate the legal from the equitable estate, and with
sufficient certainty designate the beneficiaries, their interest in the ttrust, the purpose or
object of the trust, and the property or subject matter thereof. Stated otherwise, to
constitute a valid testamentary trust there must be a concurrence of three circumstances:
(1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or ascertain object;
statutes in some jurisdictions expressly or in effect so providing." (69 C. J., pp. 705,706.)
There is no doubt that the testator intended to create a trust. He ordered in his will that
certain of his properties be kept together undisposed during a fixed period, for a stated
purpose. The probate court certainly exercised sound judgment in appointment a trustee to
carry into effect the provisions of the will (see sec. 582, Code of Civil Procedure).

P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him
(sec. 582 in relation to sec. 590, Code of Civil Procedure). The mere fact that the estate of
the deceased was placed in trust did not remove it from the operation of our inheritance
tax laws or exempt it from the payment of the inheritance tax. The corresponding
inheritance tax should have been paid on or before March 10, 1924, to escape the
penalties of the laws. This is so for the reason already stated that the delivery of the estate
to the trustee was in esse delivery of the same estate to the cestui que trust, the
beneficiary in this case. A trustee is but an instrument or agent for the cestui que
trust (Shelton vs. King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When
Moore accepted the trust and took possesson of the trust estate he thereby admitted that
the estate belonged not to him but to his cestui que trust (Tolentino vs. Vitug, 39 Phil.,126,
cited in 65 C. J., p. 692, n. 63). He did not acquire any beneficial interest in the estate. He
took such legal estate only as the proper execution of the trust required (65 C. J., p. 528)
and, his estate ceased upon the fulfillment of the testator's wishes. The estate then vested
absolutely in the beneficiary (65 C. J., p. 542).

revenue tax ( sec. 1578, Revised Administrative Code; Sarasola vs. Trinidad, 40 Phil., 252).
In the case of Lim Co Chui vs. Posadas (47 Phil., 461), this court had occassion to
demonstrate trenchment adherence to this policy of the law. It held that "the fact that on
account of riots directed against the Chinese on October 18, 19, and 20, 1924, they were
prevented from praying their internal revenue taxes on time and by mutual agreement
closed their homes and stores and remained therein, does not authorize the Collector of
Internal Revenue to extend the time prescribed for the payment of the taxes or to accept
them without the additional penalty of twenty five per cent." (Syllabus, No. 3.)

The highest considerations of public policy also justify the conclusion we have reached.
Were we to hold that the payment of the tax could be postponed or delayed by the creation
of a trust of the type at hand, the result would be plainly disastrous. Testators may provide,
as Thomas Hanley has provided, that their estates be not delivered to their beneficiaries
until after the lapse of a certain period of time. In the case at bar, the period is ten years.
In other cases, the trust may last for fifty years, or for a longer period which does not
offend the rule against petuities. The collection of the tax would then be left to the will of a
private individual. The mere suggestion of this result is a sufficient warning against the
accpetance of the essential to the very exeistence of government. (Dobbins vs. Erie
Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25 Law.
ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit
Co. vs. Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles River
Bridge vs. Warren Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes rests
not upon the privileges enjoyed by, or the protection afforded to, a citizen by the
government but upon the necessity of money for the support of the state (Dobbins vs. Erie
Country, supra). For this reason, no one is allowed to object to or resist the payment of
taxes solely because no personal benefit to him can be pointed out. (Thomas vs. Gay, 169
U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will not enlarge, by
construction, the government's power of taxation (Bromley vs. McCaughn, 280 U. S., 124;
74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax laws so loose a
construction as to permit evasions on merely fanciful and insubstantial distictions. (U. S. vs.
Watts, 1 Bond., 580; Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No.
16,690, followed in Froelich & Kuttner vs. Collector of Customs, 18 Phil., 461, 481; Castle
Bros., Wolf & Sons vs. McCoy, 21 Phil., 300; Muoz & Co. vs. Hord, 12 Phil., 624; Hongkong
& Shanghai Banking Corporation vs. Rafferty, 39 Phil., 145; Luzon Stevedoring Co. vs.
Trinidad, 43 Phil., 803.) When proper, a tax statute should be construed to avoid the
possibilities of tax evasion. Construed this way, the statute, without resulting in injustice to
the taxpayer, becomes fair to the government.

It results that the estate which plaintiff represents has been delinquent in the payment of
inheritance tax and, therefore, liable for the payment of interest and surcharge provided by
law in such cases.

That taxes must be collected promptly is a policy deeply intrenched in our tax system.
Thus, no court is allowed to grant injunction to restrain the collection of any internal

". . . It is of the utmost importance," said the Supreme Court of the United States, ". . . that
the modes adopted to enforce the taxes levied should be interfered with as little as
possible. Any delay in the proceedings of the officers, upon whom the duty is developed of
collecting the taxes, may derange the operations of government, and thereby, cause
serious detriment to the public." (Dows vs. Chicago, 11 Wall., 108; 20 Law. ed., 65, 66;
Churchill and Tait vs. Rafferty, 32 Phil., 580.)

The delinquency in payment occurred on March 10, 1924, the date when Moore became
trustee. The interest due should be computed from that date and it is error on the part of
the defendant to compute it one month later. The provisions cases is mandatory (see and
cf. Lim Co Chui vs. Posadas, supra), and neither the Collector of Internal Revenuen or this
court may remit or decrease such interest, no matter how heavily it may burden the
taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice and demand
thereof by the Collector of Internal Revenue, a surcharge of twenty-five per centum should
be added (sec. 1544, subsec. (b), par. 2, Revised Administrative Code). Demand was made
by the Deputy Collector of Internal Revenue upon Moore in a communiction dated October
16, 1931 (Exhibit 29). The date fixed for the payment of the tax and interest was November
30, 1931. November 30 being an official holiday, the tenth day fell on December 1, 1931.
As the tax and interest due were not paid on that date, the estate became liable for the
payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned
by the plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due from the
estate of Thomas Hanley inaccordance with the conclusions we have reached.
At the time of his death, the deceased left real properties valued at P27,920 and personal
properties worth P1,465, or a total of P29,385. Deducting from this amount the sum of
P480.81, representing allowable deductions under secftion 1539 of the Revised

Administrative Code, we have P28,904.19 as the net value of the estate subject to
inheritance tax.

by their foster parents Mariano Molo y Legaspi and Juana Juan with the understanding that
they should sell them to the plaintiffs under the terms above-stated.

The primary tax, according to section 1536, subsection (c), of the Revised Administrative
Code, should be imposed at the rate of one per centum upon the first ten thousand pesos
and two per centum upon the amount by which the share exceed thirty thousand pesos,
plus an additional two hundred per centum. One per centum of ten thousand pesos is P100.
Two per centum of P18,904.19 is P378.08. Adding to these two sums an additional two
hundred per centum, or P965.16, we have as primary tax, correctly computed by the
defendant, the sum of P1,434.24.

Defendants, in their answer, disclaimed any legal obligation on their part to sell the above
properties to the plaintiffs for the nominal consideration of P1.00 per lot alleging that if
they executed the document on which the complaint is predicated it was on the mistaken
assumption that their foster parents had requested them that they executed on August 9,
1956 a document revoking said donation which was acknowledged before Notary Public
Leoncio C. Jimenez.

To the primary tax thus computed should be added the sums collectible under section 1544
of the Revised Administrative Code. First should be added P1,465.31 which stands for
interest at the rate of twelve per centum per annum from March 10, 1924, the date of
delinquency, to September 15, 1932, the date of payment under protest, a period covering
8 years, 6 months and 5 days. To the tax and interest thus computed should be added the
sum of P724.88, representing a surhcarge of 25 per cent on both the tax and interest, and
also P10, the compromise sum fixed by the defendant (Exh. 29), giving a grand total of
P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally
due from the estate. This last sum is P390.42 more than the amount demanded by the
defendant in his counterclaim. But, as we cannot give the defendant more than what he
claims, we must hold that the plaintiff is liable only in the sum of P1,191.27 the amount
stated in the counterclaim.
The judgment of the lower court is accordingly modified, with costs against the plaintiff in
both instances. So ordered.
G.R. No. L-17809

December 29, 1962

RESURRECCION DE LEON, ET AL., plaintiffs-appellees,

vs.
EMILIANA MOLO-PECKSON, ET AL., respondents-appellants.
Cornelio R. Magsarili for plaintiffs-appellees.
Sycip, Salazar, Luna and Associates for respondents-appellants.

No testimonial evidence was presented by either party. Instead, both agreed to submit the
case upon the presentation of their respective exhibits which were all admitted by the trial
court.
After trial on the merits, the court a quo rendered on September 21, 1960 a decision
wherein it held that, under the facts established by the evidence, trust has been
constituted by the late spouses Mariano Molo and Juana Juan over the ten parcels of land in
question in favor plaintiffs as beneficiaries and, as a consequence concluded:
Considering all the foregoing, the Court orders:
1. The defendants, jointly and severally to free the said ten (10) parcels of land
from the mortgage lien in favor of the Rehabilitation Finance Corporation (now
Development Bank of the Philippines) and Claro Cortez, and thereafter to sign and
execute in favor of the plaintiffs a deed of absolute sale of the said properties for
and in consideration of TEN (P10.00) PESOS already deposited in Court after all
conditions imposed in Exhibit A have been complied with;
2. That in the event the defendants shall refuse to execute and perform the
above, they are ordered, jointly and severally, to pay the plaintiffs the value of
said ten (10) parcels of land in question, the amount to be assessed by the City of
Pasay City as the fair market value of the same, upon orders of the Court to
assess said value;
3. The defendants jointly and severally to pay the plaintiffs' Attorney's fees in the
amount of P3,000.00, as defendants acted in gross and evident bad faith in
refusing to satisfy the plaintiffs' plainly valid, just and demandable claim, under
Article 2208 sub-paragraph 5 of the New Civil Code;

BAUTISTA ANGELO, J.:

Resurreccion De Leon, et al. filed on November 13, 1958 before the Court of First Instance
of Rizal a complaint seeking to compel Emiliana Molo-Peckson, et al. to convey to the
former ten parcel of land located in Pasay City with an area of 1,749 sq. m. upon payment
of P1.00 per parcel upon the plea that said lots were willed or donated in 1948 to the latter

4. The defendants to render an accounting of the fruits of said ten (10) parcels of
land from the time plaintiffs demanded the conveyance of said parcels of land on
August 11, 1956 as per Exhibits B and C, in accordance with the provisions of
Article 1164, New Civil Code which provides that the creditor has a right to the
fruit of the thing from the time the obligation to deliver it arises; and

5. The defendants to pay the costs.

Defendants took the present appeal.
On January 24, 1941, Mariano Molo y Legaspi died leaving a will wherein he bequeathed his
entire estate to his wife, Juana Juan. This will was probated in the Court of First Instance of
Pasay City, Rizal, which was affirmed by the Supreme Court on November 26, 1956 (G.R.
No. L-8774). On May 11, 1948, Juana Juan in turn executed a will naming therein many
devisees and legatees, one of whom is Guillermo San Rafael, mother of the plaintiffs and
defendant Pilar Perez Nable. On June 7, 1948, however, Juana Juan executed a
donation inter vivos in favor of Emiliana Molo-Peckson and Pilar Perez Nable of almost all of
her entire property leaving only about P16,000.00 worth of property for the devisees
mentioned in the will. Among the properties conveyed to the donees are the ten parcels of
land subject of the present action. Juana Juan died on May 28, 1950.
On December 5, 1950, Emiliana Molo-Peckson and Pilar Perez Nable executed a document
which they called "MUTUAL AGREEMENT" the pertinent provisions of which are:
That the above named parties hereby mutually agree by these presents . . . that
the following lots should be sold at ONE (1) PESO each to the following persons
and organization:
xxx

xxx

xxx

TO JUSTA DE LEON and RESURRECCION DE LEON, several parcels of land

located at Calle Tolentino (South of Tenorio and Kapitan Magtibay), Pasay City,
share and share alike or half and half of TEN (10) LOTS described in:
Transfer Certificate of Title No. 28157 and allocated as follows:
(a) To JUSTA DE LEON Five (5) Lots.
(b) To RESURRECCION DE LEON, the remaining Five (5) Lots.
That this agreement is made in conformity with the verbal wish of the late Don
Mariano Molo y Legaspi and the late Dona Juana Francisco Juan y Molo. These
obligations were repeatedly told to Emiliana Molo Peckson, before their death and
that same should be fulfilled after their death.
On August 9, 1956, however, the same defendants, assisted by their husbands, executed
another document in which they revoked the so-called mutual agreement mentioned
above, and another relating to the same subject matter, stating therein that the parties,
"after matured and thorough study, realized that the above-mentioned public instruments .
. . do not represent their true and correct interpretation of the verbal wishes of the late

spouses Don Mariano Molo y Legaspi and Dona Juana Francisco Juan y Molo." But after the
execution of this document, that is, on August 11, 1956, the beneficiary Resurreccion de
Leon and Justa de Leon, thru their counsel demanded the conveyance to them of the ten
parcels of land for the consideration of P1.00 per parcel as stated in the document of
December 5, 1950. And having the defendants refused to do so, said beneficiaries
consigned on July 8, 1957 the amount of P10.00 as the consideration of the ten parcels of
land.lawphil.net
In this appeal, appellants assign the following errors:
I
THE LOWER COURT ERRED IN HOLDING THAT THE SPOUSES, MARIANO MOLO AND
JUANA JUAN, CONSTITUTED A TRUST OVER THE PROPERTIES IN QUESTION
PETITION WITH PLAINTIFFS-APPELLEES AS BENEFICIARIES.
II
THE LOWER COURT ERRED IN APPLYING ARTICLE 1440, 1441, 1449, 1453 AND
1457 OF THE NEW CIVIL CODE TO THE CASE AT BAR.
III
THE LOWER COURT ERRED IN HOLDING PLAINTIFFS-APPELLEES' EXHIBIT "A" TO BE
A DECLARATION AGAINST INTEREST AND AN ADMISSION BY DEFENDANTSAPPELLANTS.
IV
THE LOWER COURT ERRED IN HOLDING THAT DEFENDANTS-APPELLANTS HAD NO
RIGHT TO REVOKE EXHIBIT "A".
V
THE LOWER COURT ERRED, IN ORDERING APPELLANTS TO RENDER AN
ACCOUNTING OF THE FRUIT OF THE PROPERTIES IN QUESTION.
VI
THE LOWER COURT ERRED IN ORDERING APPELLANTS TO FREE THE PROPERTIES
FROM THE MORTGAGE LIENS IN FAVOR OF THE DEVELOPMENT BANK OF THE
PHILIPPINES AND CLARO CORTEZ.
VII

THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES TO THE APPELLEES.

VIII
THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT.
There is no merit in the claim that the document executed on December 5, 1950 does not
represent the true and correct interpretation by appellants of the verbal wish of their foster
parents relative to the conveyance for a nominal consideration to appellees of the ten
parcels of land in question considering the circumstances obtaining in the present case. To
begin with, this document was executed by appellants on December 5, 1950, or about two
years and six months from the time they acquired title to the lands by virtue of the
donation inter vivos executed in their favor by their foster mother Juana Juan and six
months after the death of the donor. There is nobody who could cajole them to execute it,
nor is there any force that could corce them to make the declaration therein expressed,
except the constraining mandat of their conscience to comply with "the obligations
repeatedly told to Emiliana Molo Peckson," one of appellants, before their death,
epitomized inthe "verbal wish of the late Don Mariano Molo y Legaspi and the late Doa
Juana Francisco Juan y Molo" to convey after their death said ten parcelsof land at P1.00 a
parcel to appellees. In fact, the acknowledgement appended to the document they
subscribed states that it was "their own free act andvoluntary deed."1awphi1.net
Indeed, it is to be supposed that appellants understood and comprehended the legal import
of said documents when they executed it more so when bothof them had studied in
reputable centers of learning, one being a pharmacist and the other a member of the bar.
Moreover, they have more than ample time the six months intervening betwen the
death of the donor and the execution of the document to ponder not only wish of their
predecessors-in-interest but also on the propriety of putting in writing the mandate they
have received. It is, therefore, reasonable to presume that that document represents the
real wish of appellants' predecessors-in-interest and that the only thing to be determinedis
its real import and legal implications.
That the document represents a recognition of pre-existing trust or a declaration of an
express trust impressed on the ten parcels of land in question is evident. A declaration of
trust has been defined as an act by which a person acknowledges that the property, title to
which he holds, is held by him for the use of another (Griffith v. Maxfield, 51 S.W. 832,
66Ark. 513, 521). This is precisely the nature of the will of the donor: to convey the titles of
the lands to appellants with the duty to hold them intrust for the appellees. Appellants
oblingly complied with this duty byexecuting the document under consideration.
True it is that to establish a trust the proof must be clear, satisfactory and convincing. It
cannot rest on vague, uncertain evidence, or on a loose,equivocal or indefinite declaration
(In re Tuttle's Estate, 200 A. 921, 132 Pa. Super 356); but here the document in question
clearly and unequivocallydeclares the existence of the trust even if the same was executed
subsequent to the death of the trustor, Juana Juan, for it has been held that the right
creating or declaring a trust need not be contemporaneous or inter-parties (Stephenson v.

Stephenson, 171 S.W. 2d 265, 351 Mo. 8; In re Corbin's Trust Orhp., 57 York Leg. Rec. 201).
It was even held that an express trust maybe declared by a writing made after the legal
estate has been vested in the trustee (Kurtz v. Robinson, Tex. Civ. App. 256 S.W. 2d 1003).
The contention, therefore, of appellants that the will and the donation executed by their
predecessors-in-interest were absolute for it did not contain a hint that the lots in question
will be held in trust by them does not merit weight because the fact that an express trust
was created by a deed which was absolute on its face may be shown by a writing separate
from the deed itself (Mugan v. Wheeler, 145 S.W. 462, 241 Mo. 376).
The fact that the beneficiaries were not notified of the existence of the trust or that the
latter have not been given an opportunity to accept it isof no importance, for it is not
essential to the existence of a valid trustand to the right of the beneficiaries to enforce the
same that they had knowledge thereof the time of its creation (Stoehr v. Miller, 296 F.
414).Neither is it necessary that the beneficiary should consent to the creation of the trust
(Wockwire-Spencer Steel Corporation v. United Spring Mfg. Co.,142 N.E. 758, 247 Mass.
565). In fact it has been held that in case of a voluntary trust the assent of the beneficiary
is not necessary to render itvalid because as a general rule acceptance by the beneficiary
is presumed (Article 1446, new Civil Code; Cristobal v. Gomez, 50 Phil. 810).
It is true, as appellants contend, that the alleged declaration of trust was revoked, and
having been revoked it cannot be accepted, but the attempted revocation did not have any
legal effect. The rule is that in the absence of any reservation of the power to revoke a
voluntary trust is irrevocable without the consent of the beneficiary (Allen v. Safe Deposit
and Trust Co.of Baltimore, 7 A. 2d 180, 177 Md. 26). It cannot be revoked by the
creatoralone, nor by the trustee (Fricke v. Weber, C.C.A. Ohio, 145 F. 2d 737;Hughes v.
C.I.R., C.C.A. 9, 104 F. 2d 144; Ewing v. Shannahan, 20 S.W. 1065,113 Mo. 188). Here, there
is no such reservation.
Appellants contend that the lower court erred in applying the provisions of the new Civil
Code on trust. This is correct. The express trust was constituted during the lifetime of the
predecessor-in-interest of appellants,that is, before the effectivity of the new Civil Code,
although the instrumentrecognizing and declaring such trust was executed on December 5,
1950, afterthe effectivity of said Code. The Civil Code of 1889 and previous laws
andauthorities on the matter, therefore, should govern the herein trust under the
provisions of Article 2253 of the new Civil code.
But the Civil Code of 1889 contains no specific provisions on trust as doesthe new Civil
Code. Neither does the Code of Civil Procedure of 1901 for thesame merely provides for the
proceeding to be followed relative to trustsand trustees (Chapter XVIII). This silence,
however, does not mean that thejuridical institution of trust was then unknown in this
jurisdiction, for theprinciples relied upon by the Supreme Court before the effectivity of
thenew Civil Code were those embodied in Anglo-American jurisprudence as derivedfrom
the Roman and Civil Law principles (Government v. Abadilla, 46 Phil. 42).And these are the
same principles on which we predicate our ruling heretoforestated and on which we now
rely for the validity of trust in question.

The trial court ordered appellants to render an accounting of the fruits of the properties in
question even if appellees did not expressly ask for it intheir prayer for relief. We, however,
believe that this is covered by the general prayer "for such other relief just and equitable
under the premises."What is important is to know from what what date the accounting
should bemade. The trial court ordered that the accounting be made from the time
appellees demanded the conveyance of the ten parcels of land on August 11, 1956, in
accordance with Article 1164 of the new Civil Code which provides that the creditor has a
right to the fruit of the thing from thetime the obligation to deliver it arises. But this cannot
be done without first submitting proof that the conditions stated in the mutual agreement
hadbeen complied with. And this only happened when the decision of the Supreme Court in
G.R. No. L-8774 became final and executory. The ruling of the trialcourt in this respect
should therefore be modified in the sense that the accounting should be made from the
date of the finality of the said decision.
We find no error in the directive of the trial court that appellants shouldfree the lands in
question from the encumbrance that was created thereon by them in favor of the
Development Bank of the Philippines and one Claro cortez, for as trustees it is their duty to
deliver the properties to the cestui que trust free from all liens and encumbrances.
To recapitulate, we hold: (1) that the document executed on December 5, 1950 creates an
express trust in favor of appellees; (2) that appellants had no right to revoke it without the
consent of the cestui que trust; (3) that appellants must render an accounting of the fruits
of the lands from the datethe judgement rendered in G.R. No. L-8774 became final and
executory; and (4)that appellants should free said lands from all liens and encumbrances.
WHEREFORE, with the modification as above indicated with regard to accounting,we
hereby affirm the decision appealed from, without pronouncement as to costs.

G.R. No. 109307 November 25, 1999

TEODORA SALTIGA DE ROMERO, PRESENTACION ROMERO MAMA, Represented by
SABDULLAH MAMA, LUCITA ROMERO PACAS, GLORIOSA ROMERO RASONABLE and
MINDALINA ROMERO NUENAY,petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THE HONORABLE SEVENTEENTH DIVISION
and LUTERO ROMERO and NATIVIDAD ROMERO and THE DEVELOPMENT BANK OF
THE PHILIPPINES, ILIGAN BRANCH, ILIGAN CITY and THE REGISTER OF DEEDS OF
LANAO DEL NORTE, respondents.

GONZAGA-REYES, J.:

namely Generosa, Diosdada, Mindalina, Lucita, Presentacion and

Gloriosa.

Before us is a Petition for Review on Certiorari of the decision of the Court of Appeals 1 in
CA-G.R. CV No. 33164 entitled TEODORA SALTIGA DE ROMERO ET. AL. vs. LUCERO ROMERO
ET. AL. and LUTERO ROMERO, ET. AL. vs. SPOUSES MELITON PACAS, ET. AL. involving two
civil cases which were tried jointly by the Regional Trial Court of Lanao Del Norte, Branch 7,
namely:
1. Civil Case No. 591, which was filed by herein Petitioners
Teodora Saltiga De Romero, Presentacion Romero-Mama
(PRESENTACION), Lucita Romero-Pacas (LUCITA), Gloriosa
Romero-Rasonable (GLORIOSA), and Mindalina Romero-Nuenay
(MINDALINA) against Lutero Romero (LUTERO) and the
Development Bank of the Philippines (DBP) for reconveyance of
their share in a parcel of land, Lot 23 Pls-35, titled in the name
of LUTERO; and
2. Civil Case No. 1056, which was filed by LUTERO and his wife
Natividad S. Romero against LUCITA and her husband Meliton
Pacas, PRESENTACION and her husband Sabdullah Mama and
GLORIOSA and her husband Dionisio Rasonable for annulment of
three affidavits wherein LUTERO supposedly sold to them shares
over Lot No. 23 Pls-35.
The facts as found by the Court of Appeals are as follows:
From the evidence presented by the appellants, it appears that on
December 12, 1939 Eugenio Romero bought from spouses Celedonio
Jaug and Sofia Macan the latter's "rights, interest, participation,
ownership and possession" of 12 hectares of land. The land in question
was then public land. When Eugenio Romero applied for a homestead
patent for said land, the same was disapproved by the Bureau of Lands
because said Romero already had applied for a homestead patent for 24
hectares and was disqualified from owning the additional 12 hectares.
Eugenio Romero placed the application in the name of his eldest son,
Eutiquio Romero, allegedly in trust for all the children of Eugenio. When
Eutiquio got married and had children, his brothers and sisters got
worried that his heirs may claim the land so the application was
transferred in the name of Lutero Romero, the second son of Eugenio who
was then still single. When Lutero in turn got married, he relinquished the
application in favor of his younger brother Ricardo through an instrument
dated July 5, 1952.
The spouses Eugenio Romero and Teodora Saltiga had nine (9) children.
Other than the three (3) sons aforenamed, they had six (6) daughters,

Eugenio Romero died sometime in 1948. In 1961 his widow Teodora

caused the land in question to be subdivided among six (6) of her
children, the other three (3) having already been given their shares in the
other properties of the Romero spouses. The twelve (12) hectares were
supposedly divided equally among Lutero, Ricardo, Mindalina, Lucita,
Presentacion, and Gloriosa who all got about two (2) hectares each.
Subsequently, however, Ricardo conveyed his share to Lucita and
Gloriosa who therefore had 3 hectares each. On the other hand,
Mindalina left her share in the care of her mother Teodora and her sister
Presentacion because she left for Davao City. Lutero later requested that
he be allowed to farm this share of Mindalina, thus he occupied a total of
4 hectares with the consent of his mother Teodora and sister
Presentacion.
The appellants further claimed that after the partition, they had been in
occupancy of their respective shares through their tenants.
However, appellee Lutero Romero presented evidence to the effect that
sometime in 1969 a policeman picked him up and brought him to the
office of Mayor Pablito Abragan of Kapatagan where he found his mother
Teodora and his three (3) sisters Gloriosa, Presentacion and Lucita and
the respective husbands of the latter two. He testified that when he
arrived at the office, he was presented three (3) affidavits for his
signature. Said affidavits were to the effect that he sold three (3)
hectares each out of the 12 hectares of land to his sister Gloriosa, his
brother-in-law Sabdullah Mama married to Presentacion Romero, and to
Meliton Pacas married to Lucita Romero for a consideration of P3,000.00
each.
Appellee Lutero Romero testified that he told the mayor that he was not
selling the land and that he could not do so because the five-year period
had not yet elapsed but the mayor told him to just sign the affidavits
because after five (5) years his sisters will get the land and pay for them
and that if they would not pay, the mayor will take steps to return the
land personally to him. Lutero stated that he has not been paid for the
land by his sisters.
Lutero Romeo claimed that as early as 1940-1941 he had already been in
occupancy of the 12 hectares in question when it was shown to him by
this father who owned the adjoining parcel; and that the said land had
been titled in his name even while his father Eugenio was still alive.
Indeed it appears that the title to the property, O.C.T No. P-2,261, had
been issued to Lutero Romero as early as April 26, 1967, after the

homestead patent was issued in his favor on April 7, 1967. He said that
his three (3) sisters occupied portions of the property only in 1969, after
he was forced to sign the affidavits by Mayor Abragan.

5. Ordering the defendants (Civil Case no. 1056) to pay

to the plaintiffs the sum of TEN THOUSAND
(P10,000.00) Pesos as moral damages; and

Lutero Romero had thereafter repudiated the three (3) affidavits on

August 12, 1974. Because of this, estafa charges were filed against him
by the three (3) parties concerned but said charges were dismissed.

6. Ordering the defendants (Civil Case No. 1056) to pay

the cost of this proceeding.
SO ORDERED.

It further appears that Lutero Romero obtained a loan from the

Development Bank of the Philippines on December 3, 1975 and
mortgaged the land in question as collateral for said loan. Appellants
claim that only then did they know that the land had been titled in the
name of Lutero Romero. Thereafter, through a letter dated August 2,
1976, Lutero Romero asked his sisters to vacate the land in question.
A few days thereafter, or on August 14, 1976, Civil Case No. 591 was filed
against Lutero Romero. 2
On March 11, 1991, the RTC rendered a decision the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:
1. Declaring the three (3) affidavits of sale as null and
void and no effect;
2. Ordering the plaintiffs in Civil Case No. 591 and
defendants in Civil Case No. 1056, namely Sabdullah
Mama, Presentation Romero-Mama Gloriosa Romero
Rasonable, Meliton Pacas and Lucita Romero to
surrender and to deliver to Lutero Romero the
possession of all the portions of Lot 23, Pls-35;
3. Ordering the Municipal Assessor of Kapatagan, Lanao
del Norte to cancel Tax Declaration Nos. 6029, 6030,
6031 and 6032 in the names of defendants (Civil Case
No. 1056) Sabdullah Mama, Gloriosa Rasonable,
plaintiff Lutero Romero and defendant Meliton Pacas
and to restore Tax Declaration No. 1347 in the name of
Lutero Romero for the entire Lot 23, Pls-35;
4. Ordering the defendants (Civil Case No. 1056) to pay
to the plaintiff the sum of TEN THOUSAND (P10,000.00)
PESOS as actual damages;

Not satisfied with the decision of the RTC, petitioners appealed to the Court of Appeals,
which affirmed the decision of the RTC in favor of LUTERO. Hence this petition where the
petitioners assign the following issues:
WHETHER OR NOT LUTERO ROMERO IS A TRUSTEE OF LOT 23 PLS-35
FOR THE BENEFIT OF THE HEIRS OF EUGENIO ROMERO.
WHETHER OR NOT WITH OR WITHOUT SAID THREE (3) AFFIDAVITS IN
QUESTION PETITIONERS' VALID CAUSE OF ACTION CAN STAND OR NOT.

DBP filed its comment to the petition and seeks the dismissal of the case against it
considering that the agricultural loan in favor of LUTERO has been paid in full. DBP
maintains that since the mortgage was already cancelled, petitioners have no cause of
action against it. 5
Petitioners contend that LUTERO merely holds Lot 23 Pls-35 in trust for the benefit of the
heirs of his father EUGENIO since it was actually EUGENIO who first applied for the
homestead but considering that EUGENIO was already granted a homestead, the
application had to be placed in the name of his eldest son EUTIQUIO. The application was
subsequently transferred to the name of LUTERO who later transferred the application in
the name of Ricardo Romero (RICARDO), his younger brother. To support their contention,
petitioners point to the testimony of LUTERO during the investigation of the homestead
application of RICARDO to the effect that he transferred and relinquished his rights as
trustee of the lot to RICARDO. The fact that LUTERO was able to cause the issuance of the
Homestead title of the land in question under his name clearly shows that LUTERO
employed fraud in procuring the same. Consequently, herein petitioners are entitled to
recover the said lot. Petitioners also rely on the three affidavits of sale executed by LUTERO
wherein he sold portions of Lot 23 Pls-35 in favor of GLORIOSA, PRESENTACION and her
husband and LUCITA and her husband. They claim that pursuant to these three affidavits,
LUTERO no longer has a claim over Lot 23 Pls-35. 6
On the other hand, respondents maintain that LUTERO did not commit fraud in the titling of
Lot 23 Pls-35. They allege that the petitioners failed to prove this during the trial of the
case. On the contrary, LUTERO complied with all the requirements of the law when he
successfully obtained title to the lot. Respondents also deny that LUTERO held the land in
trust for the benefit of the heirs of his father EUGENIO. According to them, this violates the

provisions of The Public Land Act. Even assuming that a trust in fact was created, such is
null and void for being contrary to law. Finally, respondents maintain that the three
affidavits of sale executed in favor of the petitioners are void since they were simulated
and not supported by any consideration; and they were executed within the five-year
prohibitory period from the issuance of the patent. 7
The Court of Appeals ruled in favor of LUTERO, stating:
Appellants herein maintain that the land was held by Lutero Romero, only
in trust for his brothers and sisters because the land belonged to their
father Eugenio Romero. We do not find any basis for this posture. Eugenio
Romero was never the owner of the land in question because all he
bought from the Jaug spouses were the alleged rights and interests, if
there was any, to the said land which was then part of the public domain.
The Jaugs could not have sold said land to Eugenio as they did not own it.
Eugenio Romero was not granted, and could not have been granted, a
patent for said land because he was disqualified by virtue of the fact that
he already had applied for the maximum limit of 24 hectares to which he
was entitled. The land in question could not therefore have passed on
from him to his children.
On the other hand, Lutero Romero applied for a homestead patent over
the land in question and his application was duly approved. The
appellants have not established that there was any fraud committed in
this application. In fact it appears that there was even a hearing
conducted by the Bureau of Lands on the application because a certain
Potenciano Jaug had been contesting the application. Under the
presumption of law, that official duty has been regularly performed, there
appears to be no ground to question the grant of the patent to Lutero
Romero in 1967.
His sisters Gloriosa, Presentacion, and Lucita apparently recognized
Lutero's ownership of the property when in 1969 they sought the help of
the mayor of Kapatagan to convince Lutero to execute affidavits of sale in
their favor. However, Lutero could not have sold any portion of the
property to them. Any such sale executed within five (5) year period from
the date of the issuance of the title is null and void even if the sale was
made by the homesteader in favor of his/her descendants (Gayapano vs.
IAC, 199 SCRA 309). Furthermore, it has been established that the three
supposed vendees never paid any consideration for the supposed sale of
the lots they occupied.
We agree with the observation of the appellee that under the theory of
the appellants, the latter had sought to circumvent the law. It would
appear that because Eugenio Romero could not legally qualify to have
the land in question, he had allegedly sought to place the application in

another's name with the same intention to own it through another. This
certainly cannot be countenanced. 8
We find no reversible error committed by the Court of Appeals.
The core issue in this case is whether LUTERO acquired Lot 23 Pls-35 in trust for the benefit
of the heirs of EUGENIO.
"A trust is the legal relationship between a person having an equitable ownership in
property and another person owning the legal title to such property, the equitable
ownership of the former entitling him to performance of certain duties and the exercise of
certain powers by the latter." 9 Trust relations between parties may be express or
implied. 10Express trusts are those which are created by the direct and positive acts of the
parties, by some writing or deed, or will, or by words evidencing an intention to create a
trust. 11 Implied trusts are those which without being express, are deducible from the
nature of the transaction as matters of intent, or which are superinduced on the
transaction by operation of law as a matter of equity, independently of the particular
intention of the parties. 12 Implied trusts may either be resulting or constructive trusts, both
coming into by operation of law.
Resulting trusts are based on the equitable doctrine that valuable consideration and not
legal title determines the equitable title or interest and are presumed always to have been
contemplated by the parties. They arise from the nature or circumstances of the
consideration involved in a transaction whereby one person thereby becomes invested with
legal title but is obligated in equity to hold his legal title for the benefit of another. On the
other hand, constructive trusts are created by the construction of equity in order to satisfy
the demands of justice and prevent unjust enrichment. They arise contrary to intention
against one who, by fraud, duress or abuse of confidence, obtains or hold the legal right to
property, which he ought not, in equity and good conscience, to hold. 13
However, it has been held that a trust will not be created when, for the purpose of evading
the law prohibiting one from taking or holding real property, he takes a conveyance thereof
in the name of a third person. 14
In the present case, the petitioners did not present any evidence to prove the existence of
the trust. Petitioners merely alleged that LUTERO, through fraudulent means, had the title
of Lot 23 Pls-35 issued in his name contrary to the alleged agreement between the family
that LUTERO would merely hold the lot in trust for the benefit of EUGENIO's heirs. The
alleged agreement was not proven and even assuming that the petitioners duly proved the
existence of the trust, said trust would be of doubtful validity considering that it would
promote a direct violation of the provisions of the Public Land Act as regards the acquisition
of a homestead patent. A homestead applicant is required by law to occupy and cultivate
the land for his own benefit, and not for the benefit of someone else. 15Furthermore, under
Section 12 of The Public Land Act (CA 141), a person is allowed to enter a homestead not
exceeding twenty-four (24) hectares. In the present case, it is not disputed that EUGENIO
already applied for a homestead patent for twenty-four (24) hectares of land and was

disqualified from applying for an additional twelve (12) hectares. If we uphold the theory of
the petitioners and rule that a trust in fact existed, we would be abetting a circumvention
of the statutory prohibitions stated under the Public Land Act. We therefore find no legal or
factual basis to sustain the contention of the petitioners that LUTERO merely held Lot 23
Pls-35 in trust for the benefit of the heirs of EUGENIO.
As for the alleged sale of three portions of the lot for a consideration of P3,000.00 each
evidenced by the three affidavits of sale executed by LUTERO in favor of GLORIOSA,
PRESENTACION and LUCITA, the Court of Appeals correctly declared the three conveyances
void. CA 141 prohibits the alienation of a homestead within five years from the issuance of
the patent and grant under Section 118, which states:
Sec. 118. Except in favor of the Government or any of its branches, units,
or institutions, lands acquired under free patent or homestead provisions
shall not be subject to encumbrance or alienation from the date of the
approval of the application and for a term of five years from and after the
date of issuance of the patent and grant, nor shall they become liable to
the satisfaction of any debt contracted prior to the expiration of said
period, but the improvements or crops on the land may be mortgaged or
pledged to qualified persons, associations, or corporations.
No alienation, transfer, or conveyance of any homestead after five years
and before twenty-five years after the issuance of title shall be valid
without the approval of the Secretary of Agriculture and Commerce,
which approval shall not be denied except on constitutional and legal
grounds.
"The conveyance of a homestead before the expiration of the five-year prohibitory
period following the issuance of the homestead patent is null and void and cannot
be enforced, for it is not within the competence of any citizen to barter away what
public policy by law seeks to preserve." 16 In the present case, since the sales
were made on January 17, 1969 or less than two years after the issuance of
LUTERO's title to the homestead on April 7, 1967, the sales are clearly void.
Finally, we cannot grant DBP's prayer to be dropped from the case even if the
mortgage in its favor has been cancelled. DBP did not appeal the decision of the
Court of Appeals and cannot therefore seek affirmative relief from this Court other
than the ones granted in the decision of the court below. 17 All that said appellee
can do is to make a counter-assignment of errors or to argue on issues raised at
the trial only for he purpose of sustaining the judgment in his favor, even on
grounds not included in the decision of the court a quo nor raised in the
appellant's assignment of errors or arguments.
WHEREFORE, the instant petition is hereby DENIED

LAND BANK OF THE PHILIPPINES, petitioner, vs. THE HON. COURT OF APPEALS,
MAMERTA B. RODRIGUEZ, SPS. ARMANDO and ZENAIDA STA ANA, EL
OBSERVATORIO DE MANILA INCORPORADA, SPS. WILFREDO and AURORA
POSADAS, REGINALD F. FRANCISCO, BIENVENIDO L. MACEDA, SPS.
HECTOR and MATILDE MENDOZA and EUGENIO V. ROMILLO, respondents.
DECISION
CALLEJO, SR., J.:
Before this Court is a petition for certiorari under Rule 65 of the Revised Rules of Court
which seeks to annul and set aside the Decision [1] and Resolution of the Court of Appeals in
CA-G.R. CV Nos. 12533-35 dated November 12, 1996 and April 14, 1997, respectively,
reversing the Order[2] of the Regional Trial Court of Makati City, Branch 136, in Special
Proceedings Cases Nos. M-108, M-125 and M-126.
THE ANTECEDENTS
Manotoc Securities, Inc. (MSI) was a duly licensed broker and dealer in securities,
doing business and operating under the provisions of the Securities Act. The Insular Bank of
Asia and America (IBAA) and the Land Bank of the Philippines (LBP) are private commercial
banking corporations duly authorized to operate as trust companies.
IBAA and MSI offered and sold securities to the public. Among the purchasers were
private respondents Mamerta B. Rodriguez, the Spouses Armando and Zenaida Sta. Ana, El
Observatorio de Manila, Incorporada, Spouses Wilfredo and Aurora Posadas, Reginald F.
Francisco, Bienvenido L. Maceda, Spouses Hector and Matilde Mendoza, and Eugenio V.
Romillo.[3] As evidence of their purchases, the private respondents executed individual
investment agreements with MSI.
Under the said agreements, MSI undertook to invest funds primarily in a portfolio of
certain specified securities for fixed periods of time, and to return upon maturity the funds
of the investors and their corresponding share in the income of the same. As security for
compliance of its undertaking with private respondents, MSI, as the investment agent of
the private respondents, delivered qualified securities to the IBAA. Thus, on August 19,
1976, MSI and IBAA executed a custodianship agreement in which the latter was
constituted as custodian bank of the investment portfolio/collateral pool of securities of the
private respondents with corresponding duties and responsibilities thereunder defined,
some of which are as follows:

g) To sell out the portfolio in whole or in part upon failure by the Company to
deliver additional securities as provided for in Section 2.03 hereof, up to
an amount that would at least equal to the maximum security value of
the Custodian Receipt outstanding and to hold such proceeds from the
sale as part of the portfolio under cash accounts until duly claimed (i) by
the Company upon presentation of additional qualified securities or
cancellation of custodian receipts or (ii) the Investor upon failure of the
Company to make such presentation, upon proper presentation of the
Investment Agreement together with the Custodian Receipt.
h) To do and perform such other acts and things as the Company may, by any
future instrument in writing delivered to the Custodian, require of the
Custodian, provided that such other acts and things are germane to the
intent and purpose of this Agreement.[4]
In case of default by the investment agent, the custodian bank as its attorney-in-fact
was authorized to sell so much of the qualified securities held in the portfolio and to apply
the proceeds thereof, thus:
Section 5.03. Sale of Securities Portfolio
The Company, by adhesion to this Agreement in the manner herein provided, shall be
deemed as having expressly in (sic) irrevocably constituted and appointed the Custodian,
as its true and lawful attorney-in-fact, with full power and authority, upon the occurrence of
an event of default, to perform the following:
a) To sell so much of the qualified securities held in the portfolio as may be
necessary to satisfy the amounts due and payable whether by
term or by declaration or otherwise such sale to be effected at
such time or times as the Trustee may determine, and any such
sale or sales may be made at a public or private sale in any
brokers board or securities exchange, or may be made over-thecounter;
b) To collect and receive the proceeds of the sale and to issue receipts
therefor and/or execute and/or deliver such papers or
documents and perform such acts as may be necessary to
transfer to the purchaser or purchasers of the qualified
securities so sold, all the rights, title and interest on such
securities.
Section 5.04. Application of Proceeds of Sale; Accounting
The proceeds from the sale of the qualified securities held in the Portfolio shall be applied
as follows:

a) First To the payment of the costs and expenses of the sale, and the
compensation and other claims of the Custodian
pursuant to Section 3.09 hereof;
b) Second To the payment in full of the amounts then due and unpaid for
principal and income of the Investors investment upon
the maturity of the Investment Agreement;
c) Third To the placement of cash accounts as part of the portfolio so as to
maintain the aggregate maximum security value
required to cover custodian receipts outstanding
pursuant to Section 2.03 and 3.01 (g) hereof;
d) Fourth Any surplus remaining shall be returned to the Company, its
successors or assigns or to whomsoever may be
lawfully entitled to receive the same.
The Custodian shall submit and render to the Company written statements and reports of
sales transactions under this Section, if any, fifteenth (15th) day of each calendar month. [5]
MSI executed in favor of IBAA, conformably to the said custodianship agreement,
deeds of assignment, quoted in part as follows:
NOW THEREFORE, for and in consideration of the foregoing premises and by way of
security for the faithful compliance by the Company with the terms and conditions of the
Investment Agreement and pursuant to the Agreement, the Company hereby transfers,
assigns, sets over and delivers to the Custodian for the benefit and security of Investors,
all rights, title and interest whether legal or beneficial in and to the securities more
particularly described in the schedule attached hereto as Exhibit 1 hereof, and to such
other securities as may from time to time be brought under the operation of this
assignment from time to time by way of supplementary schedules hereto incorporated and
made an integral part hereof by their terms of reference.
The Company hereby reiterates and affirms, as integral parts of this Agreement, all of the
warranties set forth in Section 4.01 of the Agreement, to which Agreement reference is
hereby made for the other terms and conditions applicable hereto. [6]
On December 12, 1979, MSI as trustor and LBP as trustee executed a contract
denominated as Substitution of Trustee with Assumption of Liabilities in which LBP
substituted and succeeded IBAA as custodian bank of the collateral pool of securities under
the custodianship agreement, and thus assumed the previous duties and responsibilities of
IBAA as custodian and safekeeper of qualified securities for the benefit of the investors:

2. Also effective as of December 12, 1979, Land Bank has agreed to be substituted as
Custodian in place of IBAA under the aforementioned Custodianship Agreement, and has
assumed any and all liabilities of IBAA thereunder.

issued another order on April 2, 1980 delineating the duties of the Management Committee
as interim receiver:
1. To bring and defend such action in its own name;

3. IBAA, upon the instruction of the TRUSTOR shall, under the mechanics to be agreed upon
subsequent hereto, transfer the custody and management of the collateral pool to LAND
BANK.
4. TRUSTOR undertake[s] to hold IBAA free from any and all liability which may arise under
the CUSTODIANSHIP AGREEMENT, referred to above, and agree to defend IBAA from any
and all suits which may arise by virtue thereof.
5. LAND BANK undertakes to collect all outstanding IBAA Custodian Receipts issued
pursuant to the CUSTODIANSHIP AGREEMENT mentioned above, and to substitute its own
Custodianship Receipts thereof within thirty (30) days from the execution of this
AGREEMENT.
6. LAND BANK further agrees to notify all investors of the fact of substitution of IBAA as
trustee of the collateral pool, pursuant to Section 3.05 of the CUSTODIANSHIP AGREEMENT
dated August 19, 1976.
7. The provision of Section 3.04-A of the said AGREEMENT relative to the effectivity of
removal or resignation of the trustee after the thirtieth banking day from date of notice is
hereby waived.
8. The TRUSTOR shall, upon the execution of this AGREEMENT, liquidate all its outstanding
obligations with IBAA, including but not limited to outstanding trust fees and out of pocket
expenses.
9. Upon the execution of this AGREEMENT, IBAA will render its final accounting to the
TRUSTOR. Any exception thereto must be communicated in writing to IBAA within thirty
(30) days from receipt thereof, otherwise the same shall be deemed conclusively correct. [7]

2. To take and keep possession of the properties in controversy;

3. To receive rents and other income;
4. To collect debts due to the corporations as receiver and all such funds,
property and estate, due to person or corporation of which it is receiver;
5. To compound for and compromise the same;
6. To make transfer;
7. To pay outstanding debts; to divide the money and other property that shall
remain among the persons legally entitled to receive the same;
8. To negotiate with any financial institution whether public or private, domestic
or foreign, for such funding and financial arrangement as may be
necessary to support the rehabilitation project and program. For this
purpose, the Committee or its duly authorized representative may sign
such documents and papers as may be necessary;
9. To make such reports to the Commission as may be decreed necessary from
time to time regarding the aforementioned projects; and generally to do
such acts respecting the property as the Commission may authorize,
including the authority to rehabilitate the said corporation, if possible. [8]
Wilfrido B. Jacinto was appointed as Officer-In-Charge of the Committee.

In the same month, Ricardo L. Manotoc, Jr. and Teodoro M. Kalaw filed a petition with
the Securities and Exchange Commission (SEC) docketed as SEC Case No. 1826 for the
rehabilitation of MSI and the appointment of a Management Committee for the said
corporation to avoid an imminent danger of paralyzation of its business operations brought
about by serious financial problems. Teodoro M. Kalaw likewise filed a similar petition with
the SEC docketed as SEC Case No. 1835 for the rehabilitation of the Trans-Insular
Management, Inc. et al. and for the appointment of a Management Committee.

On February 13, 1980, MSI wrote the LBP, advising the latter that the corporation had
been placed under rehabilitation, and that the SEC had appointed a Management
Committee to handle its affairs. MSI directed the LBP--

On December 20, 1979 and January 11, 1980, the SEC issued orders placing MSI
under rehabilitation and appointing a Management Committee as interim receiver of the
real and personal properties and assets of MSI, its subsidiaries and subdivisions. The SEC

On April 18, 1982, the private respondents, through counsel, wrote the LBP,
requesting the latter to return their investments with the MSI. The LBP referred the letter of
the private respondents to the Management Committee which on May 28, 1982 rejected

to suspend any movement, disposition or substitution of any and all properties you now
hold either, as collateral, security or custodian for the above-mentioned companies as per
the directive of the Securities and Exchange Commission.[9]

the demands of the private respondents. On June 1, 1982, the LBP wrote the private
respondents that it could not possibly comply with their demands:
As what we have told you in our letter of May 20, 1982 we referred your demands to the
SEC-Appointed Management Committee which took over Manotoc Securities, Inc. in view of
the SEC order suspending any movement or disposition of any and all properties of the
company under our custody as per letter of Enrique J. Unson, Asst. Vice-President of
Manotoc Securities, Inc., and noted by W. B. Jacinto, Officer-In-Charge for the SECAppointed Management Committee, dated February 13, 1980.

(a) To liquidate the assets immediately for distribution to creditors and investors
without prejudice to the possibility of developing small but viable real
estate properties;
(b) To continue to pursue collection efforts and/or legal action against all
debtors;
(c) To run after the unlimited liability of the principal stockholders, Teodoro V.
Kalaw, Jr. and Ricardo L. Manotoc, Jr.;

We are, therefore, attaching herewith a copy of the reply-letter from the SEC-Appointed
Management Committee dated May 28, 1982 which is self-explanatory.

(d) To call on the terms of the broker/dealer bond issued by FGU Insurance
Corporation;

Likewise, we would like to inform you that we shall be turning over all the
properties/securities lodged with us by Manotoc to the SEC-Appointed Management
Committee pursuant to the directive of the Banks top management to terminate and close
this account.[10]

(e) To file a case against a former company officer, Raul R. Leveriza, Jr. and other
parties involved in the fake title case; and

On June 24, 1982, the private respondents acknowledged receipt of the June 1, 1982
Letter and informed LBP that as trustee of the investment portfolio, it held legal title over
the same. As such, the said portfolio could not be affected by any directives of the
Management Committee. The private respondents urged the LBP to-desist from terminating and closing the account and turning over the Investment Portfolio
to the Securities and Exchange Commission as you propose to do, and we hereby reiterate
our request that you proceed to sell and dispose of the securities in your custody for the
satisfaction of the claims of our clients, without prejudice to taking such action as you may
consider necessary for securing a clarificatory order or directive from the Securities and
Exchange Commission regarding the scope and extent of its alleged directive to you, or a
reversal or nullification of said directive, as the case may require. Needless to say, our
clients shall hold you responsible for any and all acts or omissions in breach of trust, and
for any loss or damage which they or the trust estate may suffer resulting from such acts
or omissions.[11]
The LBP rejected the demands of the private respondents.
On June 29, 1982, the private respondents demanded for an accounting of their
portfolio.[12] The LBP, in a Letter dated July 20, 1982, informed the private respondents that
it could not give due course to the demands because as mere custodian of the securities in
the portfolio, it does not have legal title over the same. The demands of the private
respondents for the remittance of their investments and the earnings thereof, and for an
accounting of their portfolio was, thus, further rejected by the bank. [13]
In the meantime, the Management Committee proposed the appointment of
a permanent Receiver to perform the following:

(f) To take proper action against the company and other parties for violations of
the Securities Act regarding the pledging of shares of stock without the
approval of the client-owners.[14]
Fearing that their investments were in serious jeopardy due to the abovementioned
developments, private respondents Mamerto B. Rodriguez and Spouses Armando and
Zenaida Sta. Ana filed a petition with the RTC of Makati under Rule 98 of the Revised Rules
of Court, seeking the removal of IBAA as trustee and the appointment of a substitute
trustee.[15] On June 30, 1983, private respondents El Observatorio de Manila, Incorporada,
Spouses Wilfredo and Aurora Posadas and Reginald Francisco [16] on the one hand, and
private respondents Bienvenido Maceda, Spouses Hector and Matilde Mendoza and
Eugenio Romillo,[17] on the other, also filed similar petitions. The respective petitions of the
private respondents were thereafter consolidated and assigned to the RTC of Makati,
Branch 136.[18]
ALLEGATIONS OF FACTS IN THE COMPLAINTS
The three petitions for the removal of IBAA as trustee of the investment portfolio
created under the custodianship agreements contained substantially similar
allegations. The private respondents alleged inter alia that MSI named and appointed IBAA
as the trustee of an investment portfolio, which was to consist initially of investment funds
solicited and obtained by MSI and IBAA from the issuance and sale to the public of certain
securities denominated as investment agreements and custodian receipts. [19] On May 24,
1977 and October 4, 1977, MSI and IBAA amended the agreement under instruments
entitled Amendment to Custodianship Agreement. Under its provisions, the funds of the
investors in the investment pool were to be invested primarily in financing the margin
accounts of clients of MSI and other stockbrokers in the stock market, the payment of
which was to be secured only with certain specified shares of stock at 150% cover and/or
real estate properties at 200% cover, based on the latest available market quotations on

such shares and the latest independent appraisal of such real estate properties. [20] The
investment portfolio was to be held by IBAA in trust for the benefit and protection of the
investors therein, as security for the payment at maturity of the principal and income due
on their respective investments.[21]
The petitioner in Sp. Proc. Case No. M-125 alleged that on August 3, 1979, IBAA
opened Trust Account No. 576 and entered upon the discharge of its duties as trustee when
it received investment funds in the amount of P545,000 and accepted the conveyance and
delivery of 9,900,000 A shares of Basic Petroleum and Minerals, Inc. and 5,990,000 A
shares of Philippine Overseas Drilling and Development Corporation under a deed of
assignment.[22]

g. P53,416.67 to Aurora S. Posadas under IA No. 015 as of December 4, 1979;

h. P309,133.11 to Reginald Francisco under IA No. 069 as of February 1, 1980; [27]
i. P135,005.00 to Bienvenido L. Maceda under IA No. 4231 as of December 10,
1979;
j. P120,000.00 to Matilde R. Mendoza and/or Bienvenido L. Maceda under IA No.
4232 as of December 10, 1979; and
k. P40,895.56 to Eugenio V. Romillo under IA No. 4277 as of December 18, 1979.

On August 14, 1978, LBP opened Trust Account No. 03-019 in its Makati Branch for the
petitioner in Sp. Proc. Case No. M-126. LBP entered into the discharge of its duties as
trustee upon its acceptance of the conveyance and delivery of certain securities. [23] In Sp.
Proc. Case No. M-108, the custodianship agreement was entered into on August 23, 1976,
upon IBAAs initial receipt of funds in the amount of P1,074,558.66, and the receipt of
specified securities.[24]
As part of and in connection with the investments made by the private respondents
and other investors in the portfolio, and as security for the payment or return of the said
investments, IBAA as trustee issued custodian receipts to the private respondents,
certifying that it was holding in custody a portfolio of qualified securities with values
equivalent to the amounts of the investments, and acknowledged that its custodian
receipts, together with their corresponding investment agreements, constituted a lien on
the portfolio of qualified securities in its custody to the total amount of the investment
portfolio.[25]
Despite repeated demands made by the private respondents, MSI refused, failed and
neglected to pay over or return their investments as and when they matured, as follows:
a. P20,000.00 to Mamerta Rodriguez under Investment Agreement (IA) No. 4493
as of January 18, 1980;
b. P13,569.01 to the Sta. Ana spouses, under IA No. 3874 as of January 23,
1980;
c. P11,593.67 to Zenaida Sta. Ana under IA No. 4186 as of January 21, 1980;
d. P11,241.07 to Zenaida Sta. Ana under IA No. 4265 as of December 5, 1979;
e. P13,579.29 to Zenaida Sta. Ana under IA No. 4312 as of January 21, 1980;
f. P53,416.67 to Observatorio de Manila under IA No. 019 as of December 7,
1979;

[26]

[28]

The private respondents further alleged that MSI failed to maintain the required
security value of the investment portfolio at a level equivalent to at least 100% of the
amount of the outstanding custodian receipts even earlier than July 30, 1979, and at no
time during the period between July 10 to December 10, 1979 did MSI deliver or assign
sufficient securities to bring the security value of the portfolio to the level of at least 100%
of the amount of the outstanding custodian receipts. Thus, the non-payment by MSI to
private respondents and other investors of their returns on the investment agreements at
maturity, and the failure of MSI to maintain the security value of the investment portfolio
as agreed upon, constituted events of default under the terms and conditions of the
custodianship agreement.[29]
The private respondents claimed that instead of being obliged to deliver additional
qualified securities to cover the recurring deficiencies in the said investment portfolio, MSI
was repeatedly allowed to effect the release or withdrawal and/or substitution of securities
which formed part of the same. IBAA likewise failed and neglected to declare the principal
and income of all investments then outstanding as due and payable, or to make any
serious and prompt demand on MSI to deliver additional securities. IBAA allowed MSI to
avail of funds pertaining to the trust, and to misappropriate and misapply the funds by
directly borrowing therefrom, and/or by extending loans to its parent and subsidiary
companies, to companies and enterprises owned and controlled by its principal officers and
directors or their families, and/or controlling stockholders, as well as to other ineligible
borrowers. IBAA furthermore allowed MSI to accept inadequate security, or to accept as
security unimproved real estate, or real estate of dubious value or with questionable title,
notwithstanding clear indications that such security was worthless, grossly inflated in
value, ineligible and not readily convertible to cash if needed to pay maturing investment
agreements.[30]
To prevent IBAA from declaring all outstanding investment agreements as
immediately due and payable, MSI wrote a letter on December 10, 1979 advising IBAA that
it was terminating the custodianship agreement effective that same date and that LBP was
assuming as the new trustee. On December 12, 1979, MSI and IBAA, together with LBP,
executed an instrument entitled Substitution of Trustee with Assumption of Liabilities
whereby IBAA ceased to act as trustee, and LBP assumed as its substitute. Both the

purported termination of the agreement and the purported substitution of IBAA by LBP as
trustee of the investment portfolio were sought to be implemented or carried out without
the knowledge and consent of the investors, without the benefit of any accounting by IBAA,
on its administration and management of the investment portfolio, and without IBAA being
discharged of its office and liability as trustee of the investment portfolio by a court of
competent jurisdiction.[31] In the interim, the SEC had appointed a Management Committee
to take custody of the properties and assets of MSI, to protect the interest of the investors,
creditors and stockholders, and to effectively carry out a program of rehabilitation.
The private respondents prayed that after due proceedings, judgment be rendered in
their favor (a) ordering the removal of IBAA and LBP as trustee and substitute trustee of
the investment portfolio of the private respondents; (b) appointing Prudential Bank as
trustee in substitute of IBAA and LBP; (c) declaring as of no force and effect with respect to
them the Substitution of Trustee with Assumption of Liabilities executed by LBP and MSI;
and to -1. Order IBAA and LBP to render to the court for approval a full, just and
complete accounting of their administration and management of the IP;
2. Order IBAA and LBP to restore to the Investment Portfolio whatever losses,
damages and injuries it may have suffered through their fault or
negligence or due to their failure to observe the terms and conditions of
the Custodianship Agreement and to perform the duties of trustee
thereunder;
3. Restrain and enjoin LBP from selling, disposing or encumbering any of the
securities or assets of the IP presently in its custody;
4. Order IBAA and LBP to turn over all the trust properties in their custody to the
new trustee and to execute any and all instruments necessary to
accomplish such purpose, and restrain and enjoin both of them from any
further interference in the administration and management of the trust;
5. Order the forfeiture by the IBAA and/or LBP of any right of compensation as
trustee of the IP;
6. Order IBAA and LBP, jointly and severally, to pay petitioners damages by way
of attorneys fees and expenses of litigation in such amount as may be
considered just and reasonable;
7. Order the discharge or release of IBAA and LBP from any and all other duties
and responsibilities as trustee under the CA only upon full restoration to
the IP of all losses, damages and injuries it may have suffered which are
properly chargeable to either or both IBAA and LBP, full payment of

attorneys fees and expenses of litigation, and approval in due course of

their accounting of the administration and management of the IP.
Both IBAA and LBP moved to dismiss/suspend the said petitions on the ground that it
was the SEC, and not the RTC, which had jurisdiction over the subject matter of the cases,
pursuant to Presidential Decree No. 902-A as amended by P.D. Nos. 1653 and 1799.Thus,
conformably to Section 6(c) of P.D. 902-A, as amended, all claims against the distressed
corporation should be suspended upon the constitution of the Management
Committee. MSI, through its SEC-Appointed Management Committee, also filed a motion to
dismiss/suspend proceedings in SP Proc. Case No. 125 on the same ground. In behalf of
MSI, Ricardo L. Manotoc, Jr. filed a motion to intervene and a motion to suspend the
proceedings, also on the same ground. In their Reply, the private respondents averred that
IBAA and LBP were trustees of the investment portfolio, and as such, had acquired title
over the properties included in the same; hence, the distressed corporation was not the
owner of the said investment portfolio. Consequently, the SEC had no jurisdiction over the
matter.
The petitions were set for hearing, during which the petitioners therein (private
respondents herein) adduced evidence to prove their claim.
THE TRIAL COURTS RULING[32]
In an Order dated February 12, 1985, the trial court found merit in the motion to
suspend the proceedings pursuant to Section 6 of P.D. 902-A as amended. According to the
court, the allegations in the petitions indicated that although there was no prayer
specifically directed against Manotoc or MSI, the petitions were in reality claims against the
latter, or, at the very least, the disposition of the petitions would affect properties
belonging or pertaining to a corporation under management or receivership of the SEC.
In ruling for the petitioners, the trial court held that the SEC had primary jurisdiction
to the exclusion of the RTC, and that the matter of determining whether the agreement was
one of agency, bailment, or trust, should be raised in and determined first by the SEC to
the exclusion of the court. Since its jurisdiction was merely secondary, the authority of the
court was limited to reviewing the SECs final deliberations on the petitions. The private
respondents should have exhausted all remedies before the SEC. To entertain the suit
would open the gates to confusion, resulting in a duplication of proceedings arising out of a
conflict of jurisdiction, which could very well be avoided by respecting the jurisdiction of
the SEC.
The trial court resolved, thus:
1. Allowing Manotoc/MSI to intervene in all the cases;
2. Ordering the suspension and archiving of the case until after the termination
of the proceedings before the SEC in SEC Cases Nos. 1826 and 1835. [33]

The private respondents thereafter filed a motion for reconsideration which was
denied on January 16, 1986. The private respondents appealed from the order to the Court
of Appeals.
The private respondents alleged on appeal that when MSI named and appointed IBAA
as trustee of the investment portfolio, it carried no other implication than that IBAA, as
trustee, became the legal owner of the funds in the investment portfolio. [34] Although the
SEC placed MSI under management and receivership, its jurisdiction extends only to the
properties and assets of MSI. The doctrine of exhaustion of administrative remedies should
be applied only to those who, having gone to the SEC for relief, failed to avail of and
exhaust all possible remedies therein before seeking judicial intervention. The said doctrine
was erroneously applied by the trial court, as they were not parties to SEC Cases Nos. 1826
and 1835.[35] While Ricardo Manotoc, Jr. may be a stockholder of MSI, he does not have any
legal interest in the trust properties involved in the proceedings; it is the trustee who has
legal ownership of the properties held in trust, subject, however, to the equitable rights of
the beneficiaries of the same.[36]
The petitioner bank, for its part, maintained that IBAA/LBP is a mere custodian of MSI
under the custodianship agreement with specific duties to perform, and as such, is only an
agent of MSI; it is not a trustee in the strict and legal sense, and does not hold any legal
title over the properties or securities.[37]
Manotoc, in behalf of MSI, contended that as one of the parties who filed the petition
for the appointment of a Management Committee and the approval of a rehabilitation
scheme for the said corporation and its affiliate companies, he has legal interests in the
matter in litigation sufficient to entitle him to intervene in the action. [38]
THE RULING OF THE COURT OF APPEALS[39]
The CA reversed and set aside the assailed orders of the RTC. It held that IBAA and
LBP were trustees of the investments of the private respondents and not merely custodians
thereof; hence, IBAA and LBP had legal title over the property covered by the said
investments. The order of the lower court to archive the cases and to relinquish in toto its
jurisdiction over the actions initiated by the private respondents was premature. The RTC
should have resolved the motions on their merits and determined whether or not the
petitioner and IBAA were trustees of the investment portfolio.
The CA further explained that because of the existence of a trusteeship agreement,
under Rule 98, Sections 8 and 9 of the Rules of Court, the RTC had jurisdiction over the
petitions of the private respondents. The court a quo ought to have given due course to the
petitions as originally filed, and thereafter determine which of the reliefs sought were
available, in the light of the limitations imposed by the receivership status of the MSI and
the SECs jurisdiction over its affairs and the claims against it, instead of archiving the
petition and suspending the proceedings. Moreover, the doctrine of primary jurisdiction
cannot be invoked as a pretext to bar the private respondents from seeking judicial relief
until the final resolution of SEC Cases Nos. 1826 and 1835, given the fact that the IBAA and

LBP were trustees of the portfolio of the private respondents. The CA further stated that the
RTC had jurisdiction over petitions for the removal of trustees:
MSI and its assets have been placed under a management committee assigned by the
Securities and Exchange Commission. We do not see, however, how this, of necessity,
cancels the power of the court, when it finds it meritorious and just, to order IBAA to render
an accounting to the beneficiaries. The doctrine of primary jurisdiction, in fact, has a
positive import, insofar as judicial authority is concerned. It is this that Davis, an
acknowledged American authority on administrative law, propounds:
The purpose of the doctrine of primary jurisdiction is not to divide powers between courts
and agencies, but to determine which tribunal should take initial action. An agency which
has primary jurisdiction may in effect merely lay the foundation for a judicial
determination. x x x The reason for the primary jurisdiction doctrine is not a belief that an
agencys expertise makes it superior to a court; the reason is that a court confronted with
problems within an agencys area of specialization should have the advantage of whatever
contributions the agency can make to the solutions (Davis,Administrative Law, 381)
Seen as urged on us by Davis, some circumstances of the instant cases become important:
the investor-appellees worry that in the tangle of convoluted relations entered into by MSI
with IBAA and LBP, they have lost track of their investment and worse still that IBAA, to
their disadvantage, has not complied with the terms of the trust. Coupled with the clear
mandate of the Rules of Court to entertain petitions for the removal of a trustee, the
doctrine of primary jurisdiction cannot be invoked as a pretext to bar the petitioners from
seeking judicial relief. They have the right, at least, to be heard by the court. It is for the
lower court, after due hearing and after having passed on the evidence, to determine
which reliefs sought for are allowed and which are not, in view of the receivership status of
MSI. It cannot be right, however, for the lower court to eschew any authority over the cases
at all.[40]
The petitioner received a copy of the assailed decision of the CA on November 18,
1996 and consequently filed its motion for reconsideration on December 3, 1996. On April
18, 1997, the petitioner received a copy of the questioned resolution dated April 14, 1997,
denying its motion for reconsideration. Instead of filing a petition for review
on certiorari under Rule 45 of the Revised Rules of Court, the petitioner filed on June 17,
1997 the instant petition for certiorari under Rule 65.
PETITIONERS ARGUMENTS
The petitioner avers that the CA committed a grave abuse of its discretion amounting
to lack or excess of jurisdiction in ruling that the petitioner was a trustee of the portfolio of
the private respondents and that the RTC had jurisdiction over the petitions of the latter.It
asserts that it has no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law. As a mere custodian of MSI under the custodianship agreement with specific
duties to perform, it is only an agent and not a trustee in the strict legal sense, and does
not hold any legal title over the properties and securities. [41] The CA acted despotically

when it ignored the various documents showing the true relationship between it and the
private respondents.
The petitioner asserts that since it is not a trustee but a mere custodian, Section 8,
Rule 98 of the Rules of Court [42] is clearly inapplicable. Consequently, the trial court does
not have jurisdiction over the petitions filed by the private respondents for the removal of
LBP as trustee. Instead, the petitioner asserts, it is the SEC who rightly has jurisdiction over
the petitions. While cleverly denominated as petition for the removal of IBAA or LBP as
trustee, the petitions are, in reality, a mere sly scheme of private respondents to
implement the custodianship agreement between LBP and MSI through the instrumentality
of the trial court. Even assuming that the petitions are not claims or actions against MSI,
nonetheless, at the very least, their disposition would affect properties belonging or
pertaining to a corporation under management or receivership of the SEC, and thus should
accordingly be suspended, conformably to Section 6(c) of P.D. 902-A, as amended. Since
the petitions before the court a quo are in effect clearly claims/actions against a
corporation under management or receivership by the SEC which even private respondents
admit to have been placed under management/receivership due to, among others, the
alleged acts/schemes of its board of directors/officers/partners amounting to fraud and
misrepresentation which may be detrimental to the interest of the public, it then follows
that the trial court has no jurisdiction to entertain the same. Thus, only the SEC has
jurisdiction over the said cases to the exclusion of the courts. [43]
Petitioner LBP also states its willingness to perform its duties and obligations as
custodian bank under the custodianship agreement even without instigation. It, however,
averred that in deference to the SEC Order of April 2, 1980 which directed it to suspend
any movement, disposition or substitution of any and all properties held in behalf of MSI,
whether as collateral security or as custodian thereof, it is unable to do so. The petitioner
contends that it is duty-bound to comply with the order, considering that it was issued by
the SEC in the legitimate and valid exercise of its regulatory and adjudicatory powers
pursuant to P.D. 902-A. LBP reiterates that the petitions are part of a sly scheme to
implement the custodianship agreement between LBP and MSI through the instrumentality
of the trial court.[44]

Precisely, where the remedy of appeal is available, as it was in this case, the
petitioner must interpose its appeal under Rule 45 within the reglementary period of 15
days from notice of the decision, or of the resolution denying its motion for
reconsideration. The private respondents vehemently argue that the petitioner cannot
allow the period to appeal to expire, and after having lost his right to appeal, seek to regain
it by recourse to certiorari under Rule 65.[46]
The petitioner admits in its petition that it received a copy of the questioned decision
on November 18, 1996 and filed its motion for reconsideration on December 3, 1996. Then,
on April 18, 1997, it received a copy of the questioned resolution denying its motion for
reconsideration. According to the private respondents, it is clear from the foregoing that
the petitioner had 15 days from receipt of the resolution denying its motion for
reconsideration (April 18, 1997), within which to take an appeal to this Court. For failure to
do so, the decision and resolution of the CA became final and executory on May 3, 1997. It
was, thus, too late for petitioner LBP to take an appeal or to file a petition for certiorari
under Rule 65.[47]
In the statement of facts and of the case in the petition for certiorari, petitioner LBP
makes reference to the following pleadings and documents:
a. Investment Agreements of private respondents with MSI (3rd paragraph, p. 2);
b. Custodianship Agreement dated August 19, 1976 (1st paragraph, p. 3);
c. Order/s of the Securities and Exchange Commission issued in SEC Cases No.
1826 and No. 1835 placing MSI and all its subsidiaries under Receivership
and Management Committee (1st paragraph, p. 4);
d. Petition filed on June 8, 1983 by private respondents Mamerta Rodriguez and
Spouses Armando and Zenaida Sta. Ana with the Regional Trial Court of
Makati seeking the removal of IBAA as trustee and the appointment of a
substitute trustee (2nd paragraph, p. 4);

PRIVATE RESPONDENTS ARGUMENTS

In their Comment, the private respondents moved to dismiss the petition. According
to them, appeal under Rule 45 of the Rules of Court was available to the petitioner and that
it was an equally beneficial, speedy and sufficient remedy in the ordinary course of law,
which consequently should have been availed of. [45] It is not enough for the petitioner to
merely allege that appeal is not a speedy or adequate remedy in the instant case. Although
the petitioner contends that it had to file the instant petition for certiorari under Rule 65 to
prevent it from further litigating the matter, it has not shown that an ordinary appeal from
the assailed decision would not have obtained the same effect. As a matter of fact, as the
private respondents assert, an appeal would have stayed the decision by preventing it from
becoming final and executory, from being entered by the Clerk of Court of the CA in the
book of entries of judgments, and from being remanded to the lower court.

e. Petition filed on June 30, 1983 by private respondents El Observatorio de

Manila Incorporada, Spouses Wilfredo and Aurora Posadas and Reginald
Francisco seeking the removal of IBAA (as alleged trustee) and LBP (as
alleged substitute trustee [sic]) and the appointment of a substitute
trustee (Ibid.);
f. Petition filed on June 30, 1983 by private respondents Bienvenido Maceda,
Spouses Hector and Matilde Mendoza and Eugenio Romillo (Ibid.);
g. Order/s consolidating the above petitions and their assignment to Branch 136
of the Regional Trial Court (Ibid.);

h. Motion/s filed by petitioner LBP to dismiss/suspend said petitions (Ibid.);

i. Motion for reconsideration filed by private respondents (1st paragraph, p. 5);
j. Order dated January 16, 1986 denying private respondents motion for
reconsideration (Ibid.);
k. (Notice of) Appeal filed by private respondents (2nd paragraph, p. 5);
l. Appellants Brief filed by private respondents herein with the Court of Appeals
(Ibid.);
m. Appellees Brief filed by petitioner LBP (Ibid.);

Anent the contention of LBP that it is willing to perform its duties were it not for the
directive issued by the SEC, the private respondents assert that the SEC Order dated April
2, 1980 contains no such directive, nor is it even addressed to LBP. It is simply a resolution
placing MSI and its subsidiaries under receivership, and appointing the Management
Committee of the said entities as interim receiver of their properties. And even if the SEC
order had indeed contained an actual directive addressed to LBP to suspend any
movement, disposition or substitution of any and all properties of MSI, it knew or ought to
have known that an order so issued would be in excess of jurisdiction and would not be
binding upon it, because no court or tribunal can take property in the possession of a
stranger to the action who claims in good faith to be the owner thereof. Furthermore, under
the terms of the appointment, the Management Committee was not given the power or
authority to take over the management or control of assets or properties not belonging to
MSI. LBP, according to the private respondents, would then be obliged, in the exercise of its
duty as trustee, to defend the trust property from all adverse claimants and to take the
necessary action to nullify or set such order aside. [51]

n. Custodian receipts (3rd paragraph, p. 10).[48]

According to the private respondents, most, if not all, of the foregoing pleadings and
documents are relevant and pertinent to the instant petition for certiorari, and are
absolutely necessary for a clear understanding of the facts of the case. The petitioners
failure to attach them to its petition, in violation of the requirements of Section 1, Rule 65
of the Revised Rules of Court can only be fatal to its cause, and constitutes another ground
for dismissal of the instant petition.[49]
Another argument relied upon by the private respondents is that one of the
conclusions reached by public respondent CA which is sought to be corrected by the instant
petition for certiorari is that a trust was created in each of the custodianship
agreements. This conclusion, even if erroneous, amounts to nothing more than an error of
judgment, correctible by appeal. The private respondents assert that the instant petition
for certiorari cannot correct errors of judgment, since it is confined to the correction of
errors of jurisdiction only, or grave abuse of discretion amounting to lack or excess of
jurisdiction.[50]

THE DECISIVE ISSUE

The threshold issue in the case at bar is whether or not a petition for certiorari under
Rule 65 of the Revised Rules of Court is the proper recourse of the petitioner for the
reversal of the assailed decision and resolution of the CA.
The petition is dismissed.
Section 1, Rule 65 of the Revised Rules of Court reads:
SECTION 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law and justice may require.

According to the petitioner, the finding of facts made by the respondent CA as to the
transfer, assignment, set over, and delivery to IBAA and LBP of the securities in the
investment portfolios for the benefit and security of the investors should be conclusive
upon the Court, except only if shown to have been reached with abuse of discretion
amounting to lack of jurisdiction, which petitioner has failed to do.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third paragraph
of Section 3, Rule 46.

Even the claim of petitioner LBP that the disposition of the petitions for removal of
trustees would affect properties belonging or pertaining to a corporation (MSI) under SEC
management or receivership lacks factual basis. By virtue of the assignment of the
securities in the investment portfolios to the trustee banks, title and interest therein were
in fact vested in them, making them the legal owners of the same.

A writ of certiorari has been called a supervisory or superintending writ. It was a

common law writ of ancient origin. Its earliest use was in the crown or criminal side of the
Court of Kings bench. Its use on the civil side later came into general use.[52] Certiorari is a
remedy narrow in scope and unflexible in character. It is not a general utility tool in the
legal workshop.[53]

The writ of certiorari issues for the correction of errors of jurisdiction only or grave
abuse of discretion amounting to lack or excess of jurisdiction. It cannot be legally used for
any other purpose. Its function is only to keep the inferior court within the bounds of its
jurisdiction or to prevent it from committing such a grave abuse of discretion amounting to
lack or excess of jurisdiction.[54] It may issue only when the following requirements are
alleged in the petition and established: (1) the writ is directed against a tribunal, a board or
any officer exercising judicial or quasi-judicial functions; (2) such tribunal, board or officer
has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law. [55] Excess of jurisdiction as distinguished
from absence of jurisdiction means that an act, though within the general power of a
tribunal, board or officer is not authorized, and invalid with respect to the particular
proceeding, because the conditions which alone authorize the exercise of the general
power in respect of it are wanting.[56] Without jurisdiction means lack or want of legal
power, right or authority to hear and determine a cause or causes, considered either in
general or with reference to a particular matter. It means lack of power to exercise
authority.[57]
The general rule is that a cert writ will not issue where the remedy of appeal is
available to the aggrieved party. The remedies of appeal in the ordinary course of law and
that of certiorari under Rule 65 of the Revised Rules of Court are mutually exclusive and not
alternative or cumulative.[58] Hence, the special civil action for certiorari under Rule 65 is
not and cannot be a substitute for an appeal, where the latter remedy is available. Such a
remedy will not be a cure for failure to timely file a petition for review on certiorari under
Rule 45. Nor can it be availed of as a substitute for the lost remedy of an ordinary appeal,
especially if such loss or lapse was occasioned by ones own negligence or error in the
choice of remedies.[59] However, there are cases where the cert writ may still issue even if
the aggrieved party has a remedy of appeal in the ordinary course of law. Thus, where the
exigencies of the case are such that the ordinary methods of appeal may not prove
adequate either in point of promptness or completeness so that a partial or total failure of
justice may result, a cert writ may issue.[60]
In SMI Development Corporation v. Republic of the Philippines,[61] we held
that certiorari is available when the remedy of appeal is not adequate, or equally
beneficial, speedy and sufficient. The determination as to what exactly constitutes a plain,
speedy and adequate remedy rest on judicial discretion and depends on the particular
circumstances of each case. There are many authorities that subscribe to the view that it is
the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a
failure of justice without it, that must usually determine the propriety of the writ. [62] An
adequate remedy is a remedy which is equally beneficial, speedy and sufficient, not merely
a remedy which at some time in the future will bring about a revival of the judgment of the
lower court complained of in the certiorari proceeding, but a remedy which would promptly
relieve the petitioner from the injurious effects of that judgment and the acts of the inferior
court, tribunal, board or officer.[63]
Grave abuse of discretion implies such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an

arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so

patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.[64]
The special civil action for certiorari is a remedy designed for the correction of errors
of jurisdiction and not errors of judgment. The raison detre for the rule is when a court
exercises its jurisdiction, an error committed while so engaged does not deprive it of the
jurisdiction being exercised when the error is committed. If it did, every error committed by
a court would deprive it of its jurisdiction and every erroneous judgment would be a void
judgment. In such a scenario, the administration of justice would not survive. [65] Hence,
where the issue or question involved affects the wisdom or legal soundness of the decision
- not the jurisdiction of the court to render said decision - the same is beyond the province
of a special civil action for certiorari.[66]
The proper recourse of the aggrieved party from a decision of the CA is a petition for
review on certiorari under Rule 45 of the Revised Rules of Court. On the other hand, if the
error subject of the recourse is one of jurisdiction, or the act complained of was perpetrated
by a quasi-judicial officer or agency with grave abuse of discretion amounting to lack or
excess of jurisdiction, the proper remedy available to the aggrieved party is a petition for
certiorari under Rule 65 of the said Rules. As expostulated by the Court inFortich v. Corona:
[67]

Anent the first issue, in order to determine whether the recourse of petitioners is proper or
not, it is necessary to draw a line between an error of judgment and an error of
jurisdiction. An error of judgment is one which the court may commit in the exercise of its
jurisdiction, and which error is reviewable only by an appeal. On the other hand, an error of
jurisdiction is one where the act complained of was issued by the court, officer or a quasijudicial body without or in excess of jurisdiction, or with grave abuse of discretion which is
tantamount to lack or in excess of jurisdiction.This error is correctible only by the
extraordinary writ of certiorari.[68]
The supervisory jurisdiction of the court to issue a cert writ cannot be exercised in
order to review the judgment of the lower court as to its intrinsic correctness, either upon
the law or the facts of the case.[69]
The general rule is that questions or findings of facts in the lower court, board or
tribunal, and the probative weight and sufficiency of the evidence upon which the said
findings were based are not reviewable by certiorari under Rule 65 of the Revised Rules of
Court. However, the sufficiency of the evidence may be inquired into in order to determine
whether jurisdictional facts were or were not proved or whether the lower court had
exceeded its jurisdiction. This exception arises out of the most important office and
function of the writ the keeping of the lower court and tribunal within their jurisdiction. If
the decision of the lower court as to the sufficiency of the evidence to establish
jurisdictional facts were not reviewable, certiorari would be of no avail as a remedy against
an assumption of jurisdiction. For the purpose of enabling the reviewing court to determine

whether jurisdictional facts were established, it may delve into and review the evidence on
which such facts were based.[70]

oncertiorari under Rule 45 within the period therefor, and not a petition for certiorari under
Rule 65 of the said Rules.

THE ERRORS ASCRIBED TO

APPEAL UNDER RULE 45 OF

THE COURT OF APPEALS IN

THE RULES OF COURT AS

ITS DECISION ARE ERRORS

AMENDED IS A SPEEDY AND

OF JUDGMENT AND NOT

ADEQUATE REMEDY IN THE

OF JURISDICTION.

ORDINARY COURSE OF LAW.

Inscrutably, the CA had jurisdiction over the appeals of the private respondents from
the order of the trial court. The decision of the CA was thus rendered by it in the proper
exercise of its jurisdiction. In its decision, the CA enumerated the following findings of facts:

The petitioner avers that an appeal via a petition for review on certiorari under Rule
45 would not promptly relieve it from the injurious effects of the patently erroneous
decision and resolution of the CA; the instant petition for certiorari under Rule 65 would
afford it a more expeditious and efficient relief. The petitioner also points out that if the
petitions of the private respondents were to be remanded to the RTC for appropriate
proceedings, the already clogged dockets of the trial court would be needlessly
exacerbated considering that it had no jurisdiction over the petitions.

(a) the RTC erred in ordering the petitions archived and the proceedings in said
petitions suspended simply because of the pendency of SEC Cases Nos.
1826 and 1835 and of the appointment of Management Committee as
interim receiver;
(b) based on the pleadings of the parties and the evidence on record, the
petitioner and the IBAA were trustees of the investment portfolios; hence,
owners and not mere agents of MSI;
(c) the investment portfolios are not assets of MSI;
(d) the SEC had no jurisdiction over the investment portfolios held in trust by the
petitioner and IBAA;
(e) only those actions for claims against the distressed corporation are
suspended, but the petition for the dissolution of the trusteeship for IBAA
and the petitioner LBP to render an accounting of their stewardship of the
investment portfolios, and to pay damages on account of their mishandling
and/or defalcation of the same, are not suspended but may proceed until the
petitions are finally resolved;
(f) the principle of primary administrative jurisdiction does not apply in the
instant case.[71]
These findings are mere errors of judgment and not errors of jurisdiction, correctible by a
petition for review on certiorari with this Court under Rule 45 of the Revised Rules of
Court. Hence, the petitioner should have filed with this Court a petition for review

We do not agree with the petitioner. A petition for review on certiorari under Rule 45
of the Revised Rules of Court is a plain, speedy and adequate remedy in the ordinary
course of law. It bears stressing that if the petitioner had filed its petition for review
oncertiorari under Rule 45 within the period therefor, the assailed decision would have
been stayed. In such case, the petitioner could have raised issues involving questions of
law, such as whether or not the RTC has jurisdiction over the petitions of the private
respondents, or whether the petitions are in effect actions for claims as defined by this
Court in Finasia Investments & Finance Corp. v. Court of Appeals:[72]
The word claim is also defined as:
Right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured; or right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
disputed, undisputed, secured, unsecured.
In conflicts of law, a receiver may be appointed in any state which has jurisdiction over the
defendant who owes a claim.[73]
THE DECISION OF THE

CA HAS BECOME FINAL

AND EXECUTORY.
The petitioner received a copy of the decision of the CA on November 18, 1996. It had
until December 3, 1996 within which to file its motion for reconsideration of the
decision. The petitioner did so on the said date and received on April 18, 1997 the
resolution of the CA denying its motion for reconsideration. The petitioner filed its petition
at bar only on June 17, 1997, well beyond the period therefor. Patently then, the decision of
the CA had become, in the interim, final and executory, beyond the purview of this Court to
act upon.[74]
IN LIGHT OF ALL THE FOREGOING, the Petition is DISMISSED. The Decision of the
Court of Appeals in CA-G.R. CV Nos. 12533-35 is AFFIRMED. Costs against the petitioner.
SO ORDERED

G.R. No. 92542 October 15, 1991

REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. ZENAIDA ELEPANO, Presiding Judge of RTC Kalookan, Branch 128 and
CORAZON SANTOS PUNSALAN, respondents.
PARAS, J.:p

On January 3, 1990, private respondent Corazon Santos Punsalan filed a verified petition
for adoption before the Regional Trial Court of Caloocan City, Branch CXXVIII praying that
after due notice and hearing, the minors Pinky Gonzales Punsalan, the daughter of her full
blood brother, and Ellyn Mae Punsalan Urbano, the daughter of her full blood sister, be
declared her daughters by adoption for all intents and purposes.
On January 5, 1990, however, private respondent filed a "MOTION FOR TAKING OF
DEPOSITION" on the ground that she received an urgent call from the United Nations Office
in Geneva, Switzerland requiring her to report for work on January 17, 1990, so much so
that she will not be able to testify at the hearing of her petition yet to be scheduled by the
respondent judge.
On January 8, 1990, the respondent judge granted the motion and ordered that notice of
the taking of the deposition on January 12, 1990 at 10:00 a.m. be furnished to the OSG (the
only known oppositor in the case). On the same date, the respondent judge issued an order
setting the hearing for the petition for adoption on February 27, 1990 at 10:00 a.m. and
directed the publication of the said order once a week for three (3) consecutive weeks in a
newspaper of general circulation in Metro Manila. A copy of said order as well as a copy of
the said petition for adoption was likewise sent to the OSG.
On January 12, 1990, private respondent's deposition was taken. Despite notice, no
representative from the OSG appeared to oppose the taking of the deposition.

Again, despite notice, the OSG failed to appear in the said hearing and in all the
subsequent hearings for the petition for adoption.
On July 12, 1990, the respondent judge granted the petition for adoption (p. 99, Rollo).
The OSG filed a motion for reconsideration of the aforesaid decision but the respondent
judge denied the same.
Hence, the instant petition for certiorari.
In brief, the argument of the OSG is that depositions should not be allowed in adoption
proceedings until the publication requirement has been fully complied with. In support of
its position, the OSG cites Rule 24 Section 1 of the Rules of Court, which provides
Section 1. Depositions pending action, when may be taken. By leave
of court after jurisdiction has been obtained over any defendant or over
property which is the subject of the action, or without such leave after an
answer has been served, the testimony of any person, whether a party or
not, may be taken, at the instance of any party, by deposition upon oral
examination or written interrogatories. (emphasis supplied)
The petition has no merit.

The OSG, however, subsequently filed an "Opposition to the Deposition", averring that
Section 1 of Rule 24 of the Rules of Court allows deposition by leave of Court after
jurisdiction has been obtained over any defendant or property subject of the action. Since
the jurisdictional requirement of publication has not been complied with, the OSG goes on
to argue, the lower court had not yet acquired jurisdiction over the defendant so much so
that the taking of the deposition cannot yet be allowed at this stage.
On February 14, 1990, the respondent judge denied the said Opposition.
Meanwhile, on February 27, 1990, after the notice of the hearing for the petition for
adoption had been duly published in The Manila Chronicle in accordance with law (Exhibits
"P", "Q", "R", "S" and "T"), counsel for private respondent presented evidence consisting of
testimonies of witnesses and documentary exhibits, showing: that private respondent is a
resident of Caloocan City, but is presently residing at 36 Avenue del Tilleuis, 1203 Geneva,
Switzerland where she is employed by the United Nations as Statistical Assistant with a
monthly salary of 7,500 Swiss Francs (Exh. "K"); that she seeks to adopt as her children the
minors Pinky Gonzales Punsalan and Ellyn Mae Punsalan Urbano who are her nieces of the
full blood; that she has been taking care of said minors for the past several years by way of
giving them moral, material and spiritual support; that they have grown to love each other;
that the parents by nature of the said minors as well as the minors themselves have given
their consent to the adoption (Exhs. "G", "H", "I" and "J"); and that the Department of Social
Welfare and Development social worker has favorably recommended the adoption.

The rule cited by the OSG is inapplicable to the case at bar.

While it is true that in an action in personam, personal service of summons within the
forum or voluntary appearance in the case is essential for the court to acquire jurisdiction
over the person of the defendant, in an adoption case which involves the status of a
person, there is no particular defendant to speak of since the action is one in rem. In such
case, jurisdiction over the person of the defendant is a non-essential condition for the
taking of a deposition for the jurisdiction of the court is based on its power over the res, to
render judgment with respect to such "thing" (or status, as in this case) so as to bar
indifferently all who might be minded to make an objection against the right so established.
(Banco Espanol Filipino vs. Palanca, 37 Phil. 921; Greg Alba vs. de la Cruz, 17 Phil. 49).
Indeed, publication of the scheduled hearing for the petition for adoption is necessary for
the validity of a decree of adoption but not for the purpose merely of taking a deposition. In
taking a deposition, no substantial rights are affected since depositions may or may not be
presented or may even be objected to when formally offered as evidence at the trial of the
main case later on.
In the instant case, We find no abuse of discretion committed by the respondent judge in
allowing the taking of private respondent's deposition. Due to urgent and compelling
reasons beyond her control, private respondent could not be present to testify at the trial
of the main case for adoption. The OSG, however, was notified of the scheduled taking of

the deposition, as well as of all the hearings of the petition for adoption, but the OSG chose
not to attendALL the said hearings, without explanation. The OSG, therefore, has no reason
to invoke lack of procedural due process. Finally, it must not be forgotten that the
philosophy behind adoption statutes is to promote the welfare of the child and every
reasonable intendment should be sustained to promote that objective. (Santos et al. vs.
Aranzanso, et al. 16 SCRA 353). In the instant case, the record shows that private
respondent's adoption of the minors shall redound to the best interests of the latter.
WHEREFORE, the petition is hereby DISMISSED for lack of merit. SO ORDERED.
G.R. No. L-21951

November 27, 1964

IN THE MATTER OF THE PETITION OF THE MINOR CHARLES JOSEPH BLANCAFLOR

WEEKS. UGGI LINDAMAND THERKELSEN and ERLINDA G. BLANCAFLOR, petitionersappellants,
vs.
REPUBLIC OF THE PHILIPPINES, respondent-appellee.
Campos, Mendoza & Hernandez for petitioners-appellants.
Office of the Solicitor General and J. Domingo de Leon for respondent-appellee.
REYES, J.B.L., J.:
This appeal was taken against a decision of the Manila Juvenile and Domestic Relations
Court, in its special Proceedings, No. D-00007, denying appellants' application for adoption
of the minor Charles Joseph Blancaflor Weeks.
The factual background of the case is stated in the decision appealed from to be as follows:
In this adoption proceeding, the petitioners are husband and wife who were
married on June 2, 1962, or barely a year ago. The minor sought to be adopted,
born on February 16, 1960, is the natural child of petitioner wife. His father was
Charles Joseph Week, who abandoned mother and child after the latter's birth. He
is said to have gone back to the United States.
Except for the legal impediment hereinafter to be mentioned, the facts before the
Court may warrant the approval of the adoption sought herein. Petitioner husband
is a Danish subject, who has been granted permanent residence in the Philippines
(Exhs. "D" and "E"). A former employee of Scandinavian Airlines System, he is now
Manager of M. Y. Travel International Hongkong Ltd., with a monthly salary of
P1,200.00. plus allowances. It does not appear that either petitioner has been
convicted of a crime involving moral turpitude. On the other hand, the minor
sought to be adopted has been living with them ever since the marriage of
petitioners. Petitioner husband has treated the minor as his son, and the latter
calls him "Daddy." Although the possibility exists that petitioners may yet have

their own children, the adoption at this time, before any such children are
begotten, may strengthen, rather than disrupt, future domestic relations.
The court a quo denied the adoption sought, saying:
In Sp. Proc. No. D-00011, adoption of Benigno Lim, this Court has had occasion to
rule that a Filipino cannot adopt an alien (Chinese) minor about 19 years old. The
adoption would not confer Philippine citizenship on the Chinese, but could
definitely legalize his stay in this country. It was also stated that conversely, an
alien cannot adopt a Filipino unless the adoption would make the Filipino minor a
citizen of the alien's country. As petitioner husband in this case is a Danish
subject, it has to be held that he cannot legally adopt the minor Charles Joseph
Blancaflor Weeks, whose citizenship is of this country, following that of his natural
mother.
If we understand the decision correctly, the adoption was denied solely because the same
would not result in the loss of the minor's Filipino citizenship and the acquisition by him of
the citizenship of his adopter. Unfortunately, the Juvenile and Domestic Relations Court did
not expound the reasons for its opinion; but it is clear that, if pursued to its logical
consequences, the judgment appealed from would operate to impose a further prerequisite
on adoptions by aliens beyond those required by law. As pointed out by the Solicitor
General in his brief, the present Civil Code in force (Article 335) only disqualifies from being
adopters those aliens that are either(a) non-residents or (b) who are residents but the
Republic of the Philippines has broken diplomatic relations with their government. Outside
of these two cases, alienage by itself alone does not disqualify a foreigner from adopting a
person under our law. Petitioners admittedly do not fall in either class.
The criterion adopted by the Court a quo would demand as a condition for the approval of
the adoption that the process should result in the acquisition, by the person adopted, of the
alien citizenship of the adopting parent. This finds no support in the law, for, as observed
by this Court in Ching Leng vs. Galang, G.R. No. L-11931, promulgated on 27 October 1958,
the citizenship of the adopter is a matter political, and not civil, in nature, and the ways in
which it should be conferred lay outside the ambit of the Civil Code. It is not within the
province of our civil law to determine how or when citizenship in a foreign state is to be
acquired. The disapproval of the adoption of an alien child in order to forestall
circumvention of our exclusion laws does not warrant, denial of the adoption of a Filipino
minor by qualified alien adopting parents, since it is not shown that our public policy would
be thereby subverted.
IN VIEW OF THE FOREGOING, the decision appealed from is reversed, and the court a quo is
directed to allow the adoption sought. Without costs.

By resolution adopted on September 23, 1996, we accepted the appeal. We shall treat
the appeal as one via certiorari from a decision of the Regional Trial Court under the
Supreme Court Circular 2-90, dated March 9, 1990, on pure questions of law.
The facts are undisputed and may be related as follows:
On July 29, 1988, the spouses Claude A. Miller and Jumrus S. Miller, filed with the
Regional Trial Court, Branch 59, Angeles City, a verified petition to adopt the minor Michael
Magno Madayag.
The trial court scheduled the petition for hearing on September 9, 1988, at 9:00 in the
morning. At the hearing, with the attendance of an assistant city fiscal of Angeles City, in
representation of the Solicitor General, respondents adduced evidence showing that:
"Claude A. Miller, 38 years old and Jumrus S. Miller, 40 years of age, both American
citizens, are husband and wife, having been married on June 21, 1982.
They were childless and "do not expect to have sibling out of their union on account of a
medical problem of the wife."
Claude A. Miller was a member of the United States Air Force, as airman first class,
assigned at Clark Air Base since January 26, 1985.
"The family maintains their residence at Don Bonifacio Subdivision, Balibago, Angeles City,
since 1985."[1]

REPUBLIC OF THE PHILIPPINES, petitioner, vs. CLAUDE A. MILLER and JUMRUS S.

MILLER, respondents.
DECISION
PARDO, J.:
The Republic of the Philippines, through the Solicitor General, appealed originally to
the Court of Appeals from a decision of the Regional Trial Court, Branch 59, Angeles City,
granting the petition of respondent spouses to adopt the minor Michael Magno Madayag.
In its decision promulgated on April 17, 1996, the Court of Appeals certified the case
to the Supreme Court because the petition raised only questions of law.

"The minor Michael Magno Madayag is the legitimate son of Marcelo S. Madayag, Jr. and
Zenaida Magno. Born on July 14, 1987, at San Fernando, La Union, the minor has been in
the custody of respondents since the first week of August 1987. Poverty and deep concern
for the future of their son prompted the natural parents who have no visible means of
livelihood to have their child adopted by respondents. They executed affidavits giving their
irrevocable consent to the adoption by respondents."
The Department of Social Welfare and Development, through its Regional Office at San
Fernando, Pampanga, recommended approval of the petition on the basis of its evaluation
that respondents were morally, emotionally and financially fit to be adoptive parents and
that the adoption would be to the minor's best interest and welfare." [2]
On May 12, 1989, the trial court rendered decision granting the petition for adoption,
the dispositive portion of which reads as follows:
"WHEREFORE, finding that petitioners possess all the qualifications and none of the
disqualifications for adoption, the instant petition is hereby Granted, and this Court decrees
the minor MICHAEL MAGNO MADAYAG freed from all obligation of obedience and support

with respect to natural parents and is hereby declared the child of the herein petitioners by
adoption. The minor's surname shall be changed from "MADAYAG" to "MILLER", which is the
surname of the herein petitioners."[3]
In due time, the Solicitor General, in behalf of the Republic, interposed an appeal to
the Court of Appeals. As heretofore stated, the Court of Appeals certified the case to this
Court.
The issue raised is whether the court may allow aliens to adopt a Filipino child despite
the prohibition under the Family Code,[4] effective on August 3, 1988[5] when the petition for
adoption was filed on July 29, 1988, under the provision of the Child and Youth Welfare
Code[6] which allowed aliens to adopt.
The issue is not new. This Court has ruled that an alien qualified to adopt under the
Child and Youth Welfare Code, which was in force at the time of the filing of the petition,
acquired a vested right which could not be affected by the subsequent enactment of a new
law disqualifying him.[7] 7
Consequently, the enactment of the Family Code, effective August 3, 1988, will not
impair the right of respondents who are aliens to adopt a Filipino child because the right
has become vested at the time of filing of the petition for adoption and shall be governed
by the law then in force. "A vested right is one whose existence, effectivity and extent does
not depend upon events foreign to the will of the holder. The term expresses the concept of
present fixed interest which in right reason and natural justice should be protected against
arbitrary State action, or an innately just and imperative right which enlightened free
society, sensitive to inherent and irrefragable individual rights, cannot deny." [8] "Vested
rights include not only legal or equitable title to the enforcement of a demand, but also an
exemption from new obligations created after the right has vested." [9]
"As long as the petition for adoption was sufficient in form and substance in
accordance with the law in governance at the time it was filed, the court acquires
jurisdiction and retains it until it fully disposes of the case. To repeat, the jurisdiction of the
court is determined by the statute in force at the time of the commencement of the
action. Such jurisdiction of a court, whether in criminal or civil cases, once it attaches
cannot be ousted by a subsequent happenings or events, although of a character which
would have prevented jurisdiction from attaching in the first instance." [10]
Therefore, an alien who filed a petition for adoption before the effectivity of the Family
code, although denied the right to adopt under Art. 184 of said Code, may continue with
his petition under the law prevailing before the Family Code.[11]
"Adoption statutes, being humane and salutary, hold the interests and welfare of the
child to be of paramount consideration. They are designed to provide homes, parental care
and education for unfortunate, needy or orphaned children and give them the protection of
society and family in the person of the adopter, as well as childless couples or persons to
experience the joy of parenthood and give them legally a child in the person of the adopted

for the manifestation of their natural parent instincts. Every reasonable intendment should
be sustained to promote and fulfill these noble and compassionate objectives of the law." [12]
WHEREFORE, we hereby AFFIRM the appealed decision of the Regional Trial Court,
Branch 59, Angeles City, in SP. Proc. No. 3562.
No costs.
SO ORDERED.
G.R. No. 94147 June 8, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HONORABLE RODOLFO TOLEDANO, in his capacity as Presiding Judge of the
Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales and
SPOUSES ALVIN A. CLOUSE and EVELYN A. CLOUSE,respondents.
The Solicitor General for petitioner.
R.M. Blanco for private respondents.

PUNO, J.:
Before us is a petition for review on certiorari of the decision 1 of the Regional Trial Court of
Iba, Zambales, Branch 69, in Special Proceeding No. RTC-140-I, entitled, "In the Matter of
the Adoption of the Minor named Solomon Joseph Alcala", raising a pure question of law.
The sole issue for determination concerns the right of private respondents spouses Alvin A.
Clouse and Evelyn A. Clouse who are aliens to adopt under Philippine Law.
There is no controversy as to the facts.
On February 21, 1990, in a verified petition filed before the Regional Trial Court of Iba,
Zambales, private respondents spouses Clouse sought to adopt the minor, Solomon Joseph
Alcala, the younger brother of private respondent Evelyn A. Clouse. In an Order issued on
March 12, 1990, the petition was set for hearing on April 18, 1990. The said Order was
published in a newspaper of general circulation in the province of Zambales and City of
Olongapo for three (3) consecutive weeks.
The principal evidence disclose that private respondent Alvin A. Clouse is a natural born
citizen of the United States of America. He married Evelyn, a Filipino on June 4, 1981 at

Olongapo City. On August 19, 1988, Evelyn became a naturalized citizen of the United
States of America in Guam. They are physically, mentally, morally, and financially capable
of adopting Solomon, a twelve (12) year old minor.
Since 1981 to 1984, then from November 2, 1989 up to the present, Solomon Joseph Alcala
was and has been under the care and custody of private respondents. Solomon gave his
consent to the adoption. His mother, Nery Alcala, a widow, likewise consented to the
adoption due to poverty and inability to support and educate her son.
Mrs. Nila Corazon Pronda, the social worker assigned to conduct the Home and Child Study,
favorably recommended the granting of the petition for adoption.
Finding that private respondents have all the qualifications and none of the
disqualifications provided by law and that the adoption will redound to the best interest
and welfare of the minor, respondent judge rendered a decision on June 20, 1990,
disposing as follows:
WHEREFORE, the Court grants the petition for adoption filed by Spouses
Alvin A. Clouse and Evelyn A. Clouse and decrees that the said minor be
considered as their child by adoption. To this effect, the Court gives the
minor the rights and duties as the legitimate child of the petitioners.
Henceforth, he shall be known as SOLOMON ALCALA CLOUSE.
The Court dissolves parental authority bestowed upon his natural parents
and vests parental authority to the herein petitioners and makes him
their legal heir. Pursuant to Article 36 of P.D. 603 as amended, the decree
of adoption shall be effective as of the date when the petition was filed.
In accordance with Article 53 of the same decree, let this decree of
adoption be recorded in the corresponding government agency,
particularly the Office of the Local Civil Registrar of Merida, Leyte where
the minor was born. The said office of the Local Civil Registrar is hereby
directed to issue an amended certificate of live birth to the minor
adopted by the petitioners.
Let copies of this decision be furnished (sic) the petitioners, DSWD,
Zambales Branch, Office of the Solicitor General and the Office of the
Local Civil Registrar of Merida, Leyte.
SO ORDERED. 2
Petitioner, through the Office of the Solicitor General appealed to us for relief, contending:
THE LOWER COURT ERRED IN GRANTING THE PETITION FOR ADOPTION
OF ALVIN AND EVELYN CLOUSE, BECAUSE THEY ARE NOT QUALIFIED TO
ADOPT UNDER PHILIPPINE LAW.

We rule for petitioner.

Under Articles 184 and 185 of Executive Order (E.O.) No. 209, otherwise known as "The
Family Code of the Philippines", private respondents spouses Clouse are clearly barred from
adopting Solomon Joseph Alcala.
Article 184, paragraph (3) of Executive Order No. 209 expressly enumerates the persons
who are not qualified to adopt, viz.:
(3) An alien, except:
(a) A former Filipino citizen who seeks to adopt a
relative by consanguinity;
(b) One who seeks to adopt the legitimate child of his
or her Filipino spouse; or
(c) One who is married to a Filipino citizen and seeks to
adopt jointly with his or her spouse a relative by
consanguinity of the latter.
Aliens not included in the foregoing exceptions may
adopt Filipino children in accordance with the rules on
inter-country adoption as may be provided by law.
There can be no question that private respondent Alvin A. Clouse is not qualified to adopt
Solomon Joseph Alcala under any of the exceptional cases in the aforequoted provision. In
the first place, he is not a former Filipino citizen but a natural born citizen of the United
States of America. In the second place, Solomon Joseph Alcala is neither his relative by
consanguinity nor the legitimate child of his spouse. In the third place, when private
respondents spouses Clouse jointly filed the petition to adopt Solomon Joseph Alcala on
February 21, 1990, private respondent Evelyn A. Clouse was no longer a Filipino citizen.
She lost her Filipino citizenship when she was naturalized as a citizen of the United States
in 1988.
Private respondent Evelyn A. Clouse, on the other hand, may appear to qualify pursuant to
paragraph 3(a) of Article 184 of E.O. 209. She was a former Filipino citizen. She sought to
adopt her younger brother. Unfortunately, the petition for adoption cannot be granted in
her favor alone without violating Article 185 which mandates a joint adoption by the
husband and wife. It reads:
Article 185. Husband and wife must jointly adopt, except in the following
cases:

(1) When one spouse seeks to adopt his own illegitimate child; or

Article 185 is all too clear and categorical and there is no room for its interpretation. There
is only room for application. 10

(2) When one spouse seeks to adopt the legitimate child of the other.
Article 185 requires a joint adoption by the husband and wife, a condition that must be
read along together with Article 184. 3
The historical evolution of this provision is clear. Presidential Decree 603 (The Child and
Youth Welfare Code), provides that husband and wife "may" jointly adopt. 4 Executive Order
No. 91 issued on December 17, 1986 amended said provision of P.D. 603. It demands that
both husband and wife "shall" jointly adopt if one of them is an alien. 5 It was so crafted to
protect Filipino children who are put up for adoption. The Family Code reiterated the rule by
requiring that husband and wife "must" jointly adopt, except in the cases mentioned
before. Under the said new law, joint adoption by husband and wife is mandatory. 6 This is
in consonance with the concept of joint parental authority over the child, which is the ideal
situation. 7 As the child to be adopted is elevated to the level of a legitimate child, it is but
natural to require the spouses to adopt jointly. The rule also insures harmony between the
spouses. 8

We are not unaware that the modern trend is to encourage adoption and every reasonable
intendment should be sustained to promote that objective. 11 Adoption is geared more
towards the promotion of the welfare of the child and enhancement of his opportunities for
a useful and happy life. 12 It is not the bureaucratic technicalities but the interest of the
child that should be the principal criterion in adoption cases. 13 Executive Order 209
likewise upholds that the interest and welfare of the child to be adopted should be the
paramount consideration. These considerations notwithstanding, the records of the case do
not evince any fact as would justify us in allowing the adoption of the minor, Solomon
Joseph Alcala, by private respondents who are aliens.
WHEREFORE, the petition is GRANTED. The decision of the lower court is REVERSED and
SET ASIDE. No costs.
SO ORDERED.

In a distinctly similar case, we held:

As amended by Executive Order 91, Presidential Decree No. 603, had
thus made it mandatory for both the spouses to jointly adopt when one of
them was an alien. The law was silent when both spouses were of the
same nationality.
The Family Code has resolved any possible uncertainty. Article 185
thereof expresses the necessity for a joint adoption by the spouses
except in only two instances
(1) When one spouse seeks to adopt
his own illegitimate child; or
(2) When one spouse seeks to adopt
the legitimate child of the other.
It is in the foregoing cases when Article 186 of the Code, on the parental
authority, can aptly find governance.
Article 186. In case husband and wife jointly adopt or one spouse adopts
the legitimate child of the other, jointly parental authority shall be
exercised by the spouses in accordance with this Code. 9

LANDINGIN V. REPUBLIC

CALLEJO, SR., J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the
Decision[1] of the Court of Appeals in CA-G.R. CV No. 77826 which reversed the Decision [2] of
the Regional Trial Court (RTC) of Tarlac City, Branch 63 in Civil Case No. 2733 granting the
Petition for Adoption of the petitioner herein.
The Antecedents
On February 4, 2002, Diwata Ramos Landingin, a citizen of the United States of
America (USA), of Filipino parentage and a resident of Guam, USA, filed a petition [3] for the
adoption of minors Elaine Dizon Ramos who was born on August 31, 1986; [4] Elma Dizon
Ramos, who was born on September 7, 1987;[5] and Eugene Dizon Ramos who was born on
August 5, 1989.[6] The minors are the natural children of Manuel Ramos, petitioners brother,
and Amelia Ramos.
Landingin, as petitioner, alleged in her petition that when Manuel died on May 19,
1990, the children were left to their paternal grandmother, Maria Taruc Ramos; their
biological mother, Amelia, went to Italy, re-married there and now has two children by her
second marriage and no longer communicated with her children by Manuel Ramos nor with
her in-laws from the time she left up to the institution of the adoption; the minors are being
financially supported by the petitioner and her children, and relatives abroad; as Maria
passed away on November 23, 2000, petitioner desires to adopt the children; the minors
have given their written consent[8] to the adoption; she is qualified to adopt as shown by
the fact that she is a 57-year-old widow, has children of her own who are already married,
gainfully employed and have their respective families; she lives alone in her own home in
Guam, USA, where she acquired citizenship, and works as a restaurant server. She came
back to thePhilippines to spend time with the minors; her children gave their written
consent[9] to the adoption of the minors. Petitioners brother, Mariano Ramos, who earns
substantial income, signified his willingness and commitment to support the minors while
in petitioners custody.

the initial hearing of the petition. [11] The Office of the Solicitor General (OSG) entered its
appearance[12] but deputized the City Prosecutor of Tarlac to appear in its behalf. [13] Since
her petition was unopposed, petitioner was allowed to present her evidence ex parte.[14]
The petitioner testified in her behalf. She also presented Elaine Ramos, the eldest
of the adoptees, to testify on the written consent executed by her and her siblings. [15] The
petitioner marked in evidence the Affidavit of Consent purportedly executed by her children
Ann, Errol, Dennis and Ricfel Branitley, all surnamed Landingin, and notarized by a notary
public in Guam, USA, as proof of said consent.[16]
On May 24, 2002, Elizabeth Pagbilao, Social Welfare Officer II of the DSWD, Field
Office III, Tarlac, submitted a Child Study Report, with the following recommendation:
In view of the foregoing, undersigned finds minors Elaine, Elma & Eugene
all surnamed Ramos, eligible for adoption because of the following
reasons:
1.

Minors surviving parent, the mother has voluntarily

consented to their adoption by the paternal aunt, Diwata
Landingin this is in view of her inability to provide the
parental care, guidance and support they need. An Affidavit
of Consent was executed by the mother which is hereto
attached.

2.

The three minors subject for adoption have also expressed

their willingness to be adopted and joins the petitioners
in Guam, USA in the future. A joint Affidavit of consent is
hereto attached. The minors developed close attachment to
the petitioners and they regarded her as second parent.

3.

The minors are present under the care of a temporary

guardian who has also family to look after. As young
adolescents they really need parental love, care, guidance
and support to ensure their protection and well being.

[7]

Petitioner prayed that, after due hearing, judgment be rendered in her favor, as
follows:
WHEREFORE, it is most respectfully prayed to this Honorable
Court that after publication and hearing, judgment be rendered allowing
the adoption of the minor children Elaine Dizon Ramos, Elma Dizon
Ramos, and Eugene Dizon Ramos by the petitioner, and ordering that the
minor childrens name follow the family name of petitioner.
Petitioner prays for such other reliefs, just and equitable under
the premises.[10]
On March 5, 2002, the court ordered the Department of Social Welfare and Development
(DSWD) to conduct a case study as mandated by Article 34 of Presidential Decree No. 603,
as amended, and to submit a report thereon not later than April 4, 2002, the date set for

In view of the foregoing, it is hereby respectfully recommended

that minors Elaine D. Ramos, Elma D. Ramos and Eugene D.
Ramos be adopted by their maternal aunt Diwata
Landingin. Trial custody is hereby further recommended to be
dispensed with considering that they are close relatives and that
close attachments was already developed between the
petitioner and the 3 minors.[17]

Pagbilao narrated what transpired during her interview, as follows:

The mother of minors came home together with her son John
Mario, this May 2002 for 3 weeks vacation. This is to enable her appear
for the personal interview concerning the adoption of her children.

The plan for the adoption of minors by their paternal aunt

Diwata Landingin was conceived after the death of their paternal
grandmother and guardian. The paternal relatives including the petitioner
who attended the wake of their mother were very much concerned about
the well-being of the three minors. While preparing for their adoption,
they have asked a cousin who has a family to stay with minors and act as
their temporary guardian.
The mother of minors was consulted about the adoption plan
and after weighing the benefits of adoption to her children, she
voluntarily consented. She realized that her children need parental love,
guidance and support which she could not provide as she already has a
second family & residing in Italy. Knowing also that the petitioners & her
children have been supporting her children up to the present and truly
care for them, she believes her children will be in good hands. She also
finds petitioners in a better position to provide a secured and bright
future to her children.[18]

However, petitioner failed to present Pagbilao as witness and offer in evidence the
voluntary consent of Amelia Ramos to the adoption; petitioner, likewise, failed to present
any documentary evidence to prove that Amelia assents to the adoption.
On November 23, 2002, the court, finding merit in the petition for adoption,
rendered a decision granting said petition. The dispositive portion reads:
WHEREFORE, it is hereby ordered that henceforth, minors Elaine
Dizon Ramos, Elma Dizon Ramos, Eugene Dizon Ramos be freed from all
legal obligations obedience and maintenance from their natural parents
and that they be declared for all legal intents and purposes the children
of Diwata Ramos Landingin. Trial custody is dispensed with considering
that parent-children relationship has long been established between the
children and the adoptive parents. Let the surnames of the children be
changed from Dizon-Ramos to Ramos-Landingin.
Let a copy of this decision be furnished the Local Civil Registrar
of Tarlac, Tarlac for him to effect the corresponding changes/amendment
in the birth certificates of the above-mentioned minors.
SO ORDERED.

[19]

The OSG appealed[20] the decision to the Court of Appeals on December 2, 2002. In
its brief
for the oppositor-appellant, the OSG raised the following arguments:
[21]

I
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION
DESPITE THE LACK OF CONSENT OF THE PROPOSED ADOPTEES
BIOLOGICAL MOTHER.
II
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION
DESPITE THE LACK OF THE WRITTEN CONSENT OF THE PETITIONERS
CHILDREN AS REQUIRED BY LAW.

III
THE TRIAL COURT ERRED IN GRANTING THE PETITION FOR ADOPTION
DESPITE PETITIONERS FAILURE TO ESTABLISH THAT SHE IS IN A POSITION
TO SUPPORT THE PROPOSED ADOPTEES.

On April 29, 2004, the CA rendered a decision [22] reversing the ruling of the RTC. It
held that petitioner failed to adduce in evidence the voluntary consent of Amelia Ramos,
the childrens natural mother. Moreover, the affidavit of consent of the petitioners children
could not also be admitted in evidence as the same was executed in Guam, USA and was
not authenticated or acknowledged before a Philippine consular office, and although
petitioner has a job, she was not stable enough to support the children. The dispositive
portion of the CA decision reads:
WHEREFORE, premises considered, the appealed decision
dated November 25, 2002 of the Regional Trial Court, Branch
63, Tarlac City in Spec. Proc. No. 2733 is hereby REVERSED and SET
ASIDE.
SO ORDERED.[23]

Petitioner filed a Motion for Reconsideration[24] on May 21, 2004, which the CA
denied in its Resolution dated August 12, 2004.[25]
Petitioner, thus, filed the instant petition for review on certiorari[26] on September
7, 2004, assigning the following errors:
1. THAT THE HONORABLE LOWER COURT HAS OVERLOOKED AND
MISAPPLIED SOME FACTS AND CIRCUMSTANCES WHICH ARE OF WEIGHT
AND IMPORTANCE AND WHICH IF CONSIDERED WOULD HAVE AFFECTED
THE RESULT OF THE CASE.
2.
THAT THE HONORABLE LOWER COURT ERRED IN
CONCLUDING THAT THE PETITIONER-APPELLEE IS NOT FINANCIALLY
CAPABLE TO SUPPORT THE THREE CHILDREN.[27]

The issues raised by the parties in their pleadings are the following: (a) whether
the petitioner is entitled to adopt the minors without the written consent of their biological
mother, Amelia Ramos; (b) whether or not the affidavit of consent purportedly executed by
the petitioner-adopters children sufficiently complies with the law; and (c) whether or not
petitioner is financially capable of supporting the adoptees.
The Courts Ruling
The petition is denied for lack of merit.

It has been the policy of the Court to adhere to the liberal concept, as stated
in Malkinson v. Agrava,[28] that adoption statutes, being humane and salutary, hold the
interest and welfare of the child to be of paramount consideration and are designed to
provide homes, parental care and education for unfortunate, needy or orphaned children
and give them the protection of society and family in the person of the adopter as well as
to allow childless couples or persons to experience the joys of parenthood and give them
legally a child in the person of the adopted for the manifestation of their natural parental
instincts. Every reasonable intendment should thus be sustained to promote and fulfill
these noble and compassionate objectives of the law. [29]
However, in Cang v. Court of Appeals,[30] the Court also ruled that the liberality
with which this Court treats matters leading to adoption insofar as it carries out the
beneficent purposes of the law to ensure the rights and privileges of the adopted child
arising therefrom, ever mindful that the paramount consideration is the overall benefit and
interest of the adopted child, should be understood in its proper context and
perspective. The Courts position should not be misconstrued or misinterpreted as to extend
to inferences beyond the contemplation of law and jurisprudence. Thus, the discretion to
approve adoption proceedings is not to be anchored solely on best interests of the child but
likewise, with due regard to the natural rights of the parents over the child. [31]
Section 9 of Republic Act No. 8552, otherwise known as the Domestic Adoption Act
of 1998, provides:
Sec. 9. Whose Consent is Necessary to the Adoption. - After being
properly counseled and informed of his/her right to give or withhold
his/her approval of the adoption, the written consent of the following to
the adoption is hereby required:
(a)
(b)

The adoptee, if ten (10) years of age or over;

The biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality which
has legal custody of the child;

(c)

The legitimate and adopted sons/daughters, ten (10) years

of age or over, of the adopter(s) and adoptee, if any;

(d)

The illegitimate sons/daughters, ten (10) years of age or

over, of the adopter, if living with said adopter and the
latters souse, if any;

(e)

The spouse, if any, of the person adopting or to be

adopted.

The general requirement of consent and notice to the natural parents is intended
to protect the natural parental relationship from unwarranted interference by interlopers,
and to insure the opportunity to safeguard the best interests of the child in the manner of
the proposed adoption.[32]

Clearly, the written consent of the biological parents is indispensable for the
validity of a decree of adoption. Indeed, the natural right of a parent to his child requires
that his consent must be obtained before his parental rights and duties may be terminated
and re-established in adoptive parents. In this case, petitioner failed to submit the written
consent of Amelia Ramos to the adoption.
We note that in her Report, Pagbilao declared that she was able to interview
Amelia Ramos who arrived in the Philippines with her son, John Mario in May 2002. If said
Amelia Ramos was in the Philippines and Pagbilao was able to interview her, it is incredible
that the latter would not require Amelia Ramos to execute a Written Consent to the
adoption of her minor children. Neither did the petitioner bother to present Amelia Ramos
as witness in support of the petition.
Petitioner, nonetheless, argues that the written consent of the biological mother is
no longer necessary because when Amelias husband died in 1990, she left for Italy and
never came back. The children were then left to the guidance and care of their paternal
grandmother. It is the paternal relatives, including petitioner, who provided for the
childrens financial needs. Hence, Amelia, the biological mother, had effectively abandoned
the children. Petitioner further contends that it was by twist of fate that after 12 years,
when the petition for adoption was pending with the RTC that Amelia and her child by her
second marriage were on vacation in the Philippines. Pagbilao, the DSWD social worker,
was able to meet her, and during the meeting, Amelia intimated to the social worker that
she conformed to the adoption of her three children by the petitioner.
Petitioners contention must be rejected. When she filed her petition with the trial
court, Rep. Act No. 8552 was already in effect. Section 9 thereof provides that if the written
consent of the biological parents cannot be obtained, the written consent of the legal
guardian of the minors will suffice. If, as claimed by petitioner, that the biological mother of
the minors had indeed abandoned them, she should, thus have adduced the written
consent of their legal guardian.
Ordinarily, abandonment by a parent to justify the adoption of his child without his
consent, is a conduct which evinces a settled purpose to forego all parental duties. [33] The
term means neglect and refusal to perform the filial and legal obligations of love and
support. If a parent withholds presence, love, care, the opportunity to display filial
affection, and neglects to lend support and maintenance, the parent, in effect, abandons
the child.[34]
Merely permitting the child to remain for a time undisturbed in the care of others
is not such an abandonment.[35] To dispense with the requirement of consent, the
abandonment must be shown to have existed at the time of adoption. [36]
In this case, petitioner relied solely on her testimony and that of Elaine Ramos to
prove her claim that Amelia Ramos had abandoned her children. Petitioners testimony on
that matter follows:

Q Where is the mother of these three children now?

A She left for Italy on November 20, 1990, sir.
Q At the time when Amelia Ramos left for Italy, was there an instance
where she communicated with the family?
A None, sir.

V.

Background Information about the Minors Being Sought for

Adoption:
xxxx

Q How about with her children?

A None, sir.
Q Do you know what place in Italy did she reside?
A I do not know, sir.
Q Did you receive any news about Amelia Ramos?
A What I know, sir, was that she was already married with another man.
Q From whom did you learn that?
A From others who came from Italy, sir.
Q Did you come to know whether she has children by her second
marriage?
A Yes, sir, she got two kids.[37]

Elaine, the eldest of the minors, testified, thus:

Q Where is your mother now?
A In Italy, sir.
Q When did your mother left for Italy?
A After my father died, sir.
Q How old were you when your mother left for Italy in 1990?
A Two years old, sir.
Q At the time when your mother left for Italy, did your mother
communicate with you?
A No, sir.[38]
However, the Home Study Report of the DSWD Social Worker also stated the
following:
IV.

xxxx

Background of the Case:

xxxx

Since the mother left for Italy, minors siblings had been under the care
and custody of their maternal grandmother. However, she died in Nov.
2001 and an uncle, cousin of their deceased father now serves as their
guardian. The petitioner, together with her children and other
relatives abroad have been supporting the minor children
financially, even during the time that they were still living with
their natural parents. Their mother also sends financial support
but very minimal.[39]

As the eldest she tries her best to be a role model to her younger
siblings. She helps them in their lessons, works and has fun with
them. She also encourages openness on their problems and concerns
and provides petty counseling. In serious problems she already
consult (sic) her mother and petitioner-aunt.[40]
xxxx
In their 5 years of married life, they begot 3 children, herein minors,
Amelia recalled that they had a happy and comfortable life. After the
death of her husband, her in-laws which include the petitioner had
continued providing support for them. However being ashamed of just
depending on the support of her husbands relatives, she decided to work
abroad. Her parents are also in need of financial help as they are
undergoing maintenance medication. Her parents mortgaged their farm
land which she used in going to Italy and worked as domestic helper.
When she left for Italy in November 1990, she entrusted her 3 children to
the care & custody of her mother-in-law who returned home for good,
however she died on November 2000.
While working in Italy, she met Jun Tayag, a married man from
Tarlac. They became live-in partners since 1995 and have a son John
Mario who is now 2 years old. The three of them are considered Italian
residents. Amelia claimed that Mr. Tayag is planning to file an annulment
of his marriage and his wife is amenable to it. He is providing his
legitimate family regular support.
Amelia also sends financial support ranging from P10,000P15,000 a month through her parents who share minimal amount
of P3,000-P5,000 a month to his (sic) children. The petitioner and
other paternal relatives are continuously providing support for most of
the needs & education of minors up to present.[41]

Thus, when Amelia left for Italy, she had not intended to abandon her children, or to
permanently sever their mother-child relationship. She was merely impelled to leave the
country by financial constraints. Yet, even while abroad, she did not surrender or relinquish
entirely her motherly obligations of rearing the children to her now deceased mother-inlaw, for, as claimed by Elaine herself, she consulted her mother, Amelia, for serious
personal problems. Likewise, Amelia continues to send financial support to the children,
though in minimal amounts as compared to what her affluent in-laws provide.
Let it be emphasized, nevertheless, that the adoption of the minors herein will
have the effect of severing all legal ties between the biological mother, Amelia, and the

adoptees, and that the same shall then be vested on the adopter. [42] It would thus be
against the spirit of the law if financial consideration were to be the paramount
consideration in deciding whether to deprive a person of parental authority over his/her
children. More proof has to be adduced that Amelia has emotionally abandoned the
children, and that the latter will not miss her guidance and counsel if they are given to an
adopting parent.[43] Again, it is the best interest of the child that takes precedence in
adoption.
Section 34, Rule 132 of the Rules of Court provides that the Court shall consider no
evidence which has not been formally offered. The purpose for which the evidence is
offered must be specified. The offer of evidence is necessary because it is the duty of the
Court to rest its findings of fact and its judgment only and strictly upon the evidence
offered by the parties. Unless and until admitted by the court in evidence for the purpose
or purposes for which such document is offered, the same is merely a scrap of paper
barren of probative weight. Mere identification of documents and the markings thereof as
exhibits do not confer any evidentiary weight on documents unless formally offered. [44]
Petitioner failed to offer in evidence Pagbilaos Report and of the Joint Affidavit of Consent
purportedly executed by her children; the authenticity of which she, likewise, failed to
prove. The joint written consent of petitioners children [45] was notarized on January 16,
2002 in Guam, USA; for it to be treated by the Rules of Court in the same way as a
document notarized in this country it needs to comply with Section 2 of Act No. 2103,
[46]
which states:
Section 2. An instrument or document acknowledged and authenticated
in a foreign country shall be considered authentic if the acknowledgment
and authentication are made in accordance with the following
requirements:
(a) The acknowledgment shall be made before (1) an
ambassador, minister, secretary of legation, charg d
affaires, consul, vice-consul, or consular agent of the
Republic of the Philippines, acting within the country or
place to which he is accredited, or (2) a notary public or
officer duly authorized by law of the country to take
acknowledgments of instruments or documents in the
place where the act is done.
(b) The person taking the acknowledgment shall certify
that the person acknowledging the instrument or
document is known to him, and that he is the same
person who executed it, and acknowledged that the
same is his free act and deed. The certificate shall be
under his official seal, if he is by law required to keep a
seal, and if not, his certificate shall so state. In case the
acknowledgment is made before a notary public or an
officer mentioned in subdivision (2) of the preceding
paragraph, the certificate of the notary public or the
officer
taking
the
acknowledgment
shall
be
authenticated by an ambassador, minister, secretary of

legation, charg de affaires, consul, vice-consul, or

consular agent of the Republic of the Philippines, acting
within the country or place to which he is
accredited. The officer making the authentication shall
certify under his official seal that the person who took
the acknowledgment was at the time duly authorized to
act as notary public or that he was duly exercising the
functions of the office by virtue of which he assumed to
act, and that as such he had authority under the law to
take acknowledgment of instruments or documents in
the place where the acknowledgment was taken, and
that his signature and seal, if any, are genuine.

As the alleged written consent of petitioners legitimate children did not comply
with the afore-cited law, the same can at best be treated by the Rules as a private
document whose authenticity must be proved either by anyone who saw the document
executed or written; or by evidence of the genuineness of the signature or handwriting of
the makers.[47]
Since, in the instant case, no further proof was introduced by petitioner to
authenticate the written consent of her legitimate children, the same is inadmissible in
evidence.
In reversing the ruling of the RTC, the CA ruled that petitioner was not stable enough to
support the children and is only relying on the financial backing, support and commitment
of her children and her siblings.[48] Petitioner contradicts this by claiming that she is
financially capable as she has worked in Guam for 14 years, has savings, a house, and
currently earns $5.15 an hour with tips of not less than $1,000.00 a month. Her children
and siblings have likewise committed themselves to provide financial backing should the
need arise. The OSG, again in its comment, banks on the statement in the Home Study
Report that petitioner has limited income. Accordingly, it appears that she will rely on the
financial backing of her children and siblings in order to support the minor adoptees. The
law, however, states that it is the adopter who should be in a position to provide support in
keeping with the means of the family.
Since the primary consideration in adoption is the best interest of the child, it follows that
the financial capacity of prospective parents should also be carefully evaluated and
considered. Certainly, the adopter should be in a position to support the would-be adopted
child or children, in keeping with the means of the family.
According to the Adoption Home Study Report [49] forwarded by the Department of Public
Health & Social Services of the Government of Guam to the DSWD, petitioner is no longer
supporting her legitimate children, as the latter are already adults, have individual lives
and families. At the time of the filing of the petition, petitioner was 57 years old, employed
on a part-time basis as a waitress, earning $5.15 an hour and tips of around $1,000 a
month. Petitioners main intention in adopting the children is to bring the latter

to Guam, USA. She has a house at Quitugua Subdivision in Yigo, Guam, but the same is still
being amortized. Petitioner likewise knows that the limited income might be a hindrance to
the adoption proceedings.
Given these limited facts, it is indeed doubtful whether petitioner will be able to sufficiently
handle the financial aspect of rearing the three children in the US. She only has a part-time
job, and she is rather of age. While petitioner claims that she has the financial support and
backing of her children and siblings, the OSG is correct in stating that the ability to support
the adoptees is personal to the adopter, as adoption only creates a legal relation between
the former and the latter. Moreover, the records do not prove nor support petitioners
allegation that her siblings and her children are financially able and that they are willing to
support the minors herein. The Court, therefore, again sustains the ruling of the CA on this
issue.
While the Court recognizes that petitioner has only the best of intentions for her nieces and
nephew, there are legal infirmities that militate against reversing the ruling of the CA. In
any case, petitioner is not prevented from filing a new petition for adoption of the herein
minors.
WHEREFORE, premises considered, the petition is hereby DENIED.

IN RE: PETITION FOR ADOPTION OFMICHELE P LIM GR NO. 168992-93

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

SO ORDERED.

Jude P. Lim.

The Facts
The following facts are undisputed. Petitioner is an optometrist by profession. On 23 June
1974, she married Primo Lim (Lim). They were childless. Minor children, whose parents
were unknown, were entrusted to them by a certain Lucia Ayuban (Ayuban). Being so eager
to have a child of their own, petitioner and Lim registered the children to make it appear
that they were the childrens parents. The children [2] were named Michelle P. Lim (Michelle)
and Michael Jude P. Lim (Michael). Michelle was barely eleven days old when brought to the
clinic of petitioner. She was born on 15 March 1977. [3] Michael was 11 days old when
Ayuban brought him to petitioners clinic. His date of birth is 1 August 1983. [4]
The spouses reared and cared for the children as if they were their own. They sent the
children to exclusive schools. They used the surname Lim in all their school records and
documents. Unfortunately, on 28 November 1998, Lim died. On 27 December 2000,
petitioner married Angel Olario (Olario), an American citizen.

Thereafter, petitioner decided to adopt the children by availing of the amnesty [5] given
under Republic Act No. 8552

[6]

(RA 8552) to those individuals who simulated the birth of a

Hence, the present petition.

Issue

child. Thus, on 24 April 2002, petitioner filed separate petitions for the adoption of Michelle
and Michael before the trial court docketed as SPL PROC. Case Nos. 1258 and 1259,

Petitioner appealed directly to this Court raising the sole issue of whether or not petitioner,

respectively. At the time of the filing of the petitions for adoption, Michelle was 25 years old

who has remarried, can singly adopt.

and already married, while Michael was 18 years and seven months old.
The Courts Ruling
Michelle and her husband gave their consent to the adoption as evidenced by their
Affidavits of Consent.[7] Michael also gave his consent to his adoption as shown in his
Affidavit of Consent.

[8]

Petitioners husband Olario likewise executed an Affidavit of

Consent[9] for the adoption of Michelle and Michael.

Petitioner contends that the rule on joint adoption must be relaxed because it is the duty of
the court and the State to protect the paramount interest and welfare of the child to be
adopted. Petitioner argues that the legal maxim dura lex sed lex is not applicable to
adoption cases. She argues that joint parental authority is not necessary in this case since,

In the Certification issued by the Department of Social Welfare and Development (DSWD),

at the time the petitions were filed, Michelle was 25 years old and already married, while

Michelle was considered as an abandoned child and the whereabouts of her natural parents

Michael was already 18 years of age. Parental authority is not anymore necessary since

were unknown.

[10]

The DSWD issued a similar Certification for Michael.

[11]

they have been emancipated having attained the age of majority.

The Ruling of the Trial Court

We deny the petition.

On 15 September 2004, the trial court rendered judgment dismissing the petitions. The
trial court ruled that since petitioner had remarried, petitioner should have filed the

Joint Adoption by Husband and Wife

petition jointly with her new husband. The trial court ruled that joint adoption by the
husband and the wife is mandatory citing Section 7(c), Article III of RA 8552 and Article 185

It is undisputed that, at the time the petitions for adoption were filed, petitioner had

of the Family Code.

already remarried. She filed the petitions by herself, without being joined by her husband
Olario. We have no other recourse but to affirm the trial courts decision denying the

Petitioner filed a Motion for Reconsideration of the decision but the motion was denied

petitions for adoption. Dura lex sed lex. The law is explicit. Section 7, Article III of RA 8552

in the Order dated 16 June 2005. In denying the motion, the trial court ruled that petitioner

reads:

did not fall under any of the exceptions under Section 7(c), Article III of RA 8552. Petitioners
argument that mere consent of her husband would suffice was untenable because, under
the law, there are additional requirements, such as residency and certification of his
qualification, which the husband, who was not even made a party in this case, must
comply.
As to the argument that the adoptees are already emancipated and joint adoption is
merely for the joint exercise of parental authority, the trial court ruled that joint adoption is
not only for the purpose of exercising parental authority because an emancipated child
acquires

certain

responsibilities.

rights

from

his

parents

and

assumes

certain

obligations

and

SEC. 7. Who May Adopt. - The following may adopt:

(a) Any Filipino citizen of legal age, in possession of full civil capacity and
legal rights, of good moral character, has not been convicted of any
crime involving moral turpitude, emotionally and psychologically capable
of caring for children, at least sixteen (16) years older than the adoptee,
and who is in a position to support and care for his/her children in
keeping with the means of the family. The requirement of sixteen (16)
year difference between the age of the adopter and adoptee may be
waived when the adopter is the biological parent of the adoptee, or is the
spouse of the adoptees parent;
(b) Any alien possessing the same qualifications as above stated for
Filipino nationals: Provided, That his/her country has diplomatic relations
with the Republic of the Philippines, that he/she has been living in the
Philippines for at least three (3) continuous years prior to the filing of the
application for adoption and maintains such residence until the adoption
decree is entered, that he/she has been certified by his/her diplomatic or

consular office or any appropriate government agency that he/she has

the legal capacity to adopt in his/her country, and that his/her
government allows the adoptee to enter his/her country as his/her
adopted son/daughter: Provided, further, That the requirements on
residency and certification of the aliens qualification to adopt in his/her
country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within
the fourth (4th) degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate son/daughter of
his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt
jointly with his/her spouse a relative within the fourth (4 th)
degree of consanguinity or affinity of the Filipino spouses; or

husband Olario. Second, the children are not the illegitimate children ofpetitioner. And
third, petitioner and Olario are not legally separated from each other.
The fact that Olario gave his consent to the adoption as shown in his Affidavit of Consent
does not suffice. There are certain requirements that Olario must comply being an
American citizen. He must meet the qualifications set forth in Section 7 of RA 8552 such as:
(1) he must prove that his country has diplomatic relations with the Republic of the
Philippines; (2) he must have been living in the Philippines for at least three continuous
years prior to the filing of the application for adoption; (3) he must maintain such residency
until the adoption decree is entered; (4) he has legal capacity to adopt in his own country;
and (5) the adoptee is allowed to enter the adopters country as the latters adopted child.

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

None of these qualifications were shown and proved during the trial.

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

These requirements on residency and certification of the aliens qualification to adopt

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

the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate
son/daughter: Provided, however, That the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the
illegitimate son/daughter of the other, joint parental authority shall be
exercised by the spouses. (Emphasis supplied)

The use of the word shall in the above-quoted provision means that joint adoption by the
husband and the wife is mandatory. This is in consonance with the concept of joint parental
authority over the child which is the ideal situation. As the child to be adopted is elevated
to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The
rule also insures harmony between the spouses.[12]
The law is clear. There is no room for ambiguity. Petitioner, having remarried at the time
the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption
were filed only by petitioner herself, without joining her husband, Olario, the trial court was
correct in denying the petitions for adoption on this ground.
Neither does petitioner fall under any of the three exceptions enumerated in Section 7.
First, the children to be adopted are not the legitimate children of petitioner or of her

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

Effects of Adoption
Petitioner contends that joint parental authority is not anymore necessary since the
children have been emancipated having reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children for civic consciousness and
efficiency and the development of their moral, mental and physical character and wellbeing.[13] The father and the mother shall jointly exercise parental authority over the
persons of their common children.[14] Even the remarriage of the surviving parent shall not
affect the parental authority over the children, unless the court appoints another person to
be the guardian of the person or property of the children. [15]
It is true that when the child reaches the age of emancipation that is, when he attains the
age of majority or 18 years of age[16] emancipation terminates parental authority over the
person and property of the child, who shall then be qualified and responsible for all acts of
civil life.[17] However, parental authority is merely just one of the effects of legal adoption.
Article V of RA 8552 enumerates the effects of adoption, thus:

ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the biological parent
is the spouse of the adopter, all legal ties between the biological
parent(s) and the adoptee shall be severed and the same shall then be
vested on the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the legitimate
son/daughter of the adopter(s) for all intents and purposes and as such is
entitled to all the rights and obligations provided by law to legitimate
sons/daughters born to them without discrimination of any kind. To this
end, the adoptee is entitled to love, guidance, and support in keeping
with the means of the family.
SEC. 18. Succession. - In legal and intestate succession, the adopter(s)
and the adoptee shall have reciprocal rights of succession without
distinction from legitimate filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on testamentary succession
shall govern.
Adoption has, thus, the following effects: (1) sever all legal ties between the biological
parent(s) and the adoptee, except when the biological parent is the spouse of the adopter;
(2) deem the adoptee as a legitimate child of the adopter; and (3) give adopter and
adoptee reciprocal rights and obligations arising from the relationship of parent and child,
including but not limited to: (i) the right of the adopter to choose the name the child is to
be known; and (ii) the right of the adopter and adoptee to be legal and compulsory heirs of
each other.[18] Therefore, even if emancipation terminates parental authority, the adoptee is
still considered a legitimate child of the adopter with all the rights[19] of a legitimate child
such as: (1) to bear the surname of the father and the mother; (2) to receive support from
their parents; and (3) to be entitled to the legitime and other successional rights.
Conversely, the adoptive parents shall, with respect to the adopted child, enjoy all the
benefits to which biological parents are entitled [20] such as support[21] and successional
rights.[22]
We are mindful of the fact that adoption statutes, being humane and salutary, hold the

be construed liberally, in a manner that will sustain rather than defeat

said purpose. The law must also be applied with compassion,
understanding and less severity in view of the fact that it is intended to
provide homes, love, care and education for less fortunate children.
Regrettably, the Court is not in a position to affirm the trial courts
decision favoring adoption in the case at bar, for the law is clear and it
cannot be modified without violating the proscription against
judicial legislation. Until such time however, that the law on the matter
is amended, we cannot sustain the respondent-spouses petition for
adoption. (Emphasis supplied)
Petitioner, being married at the time the petitions for adoption were filed, should have
jointly filed the petitions with her husband. We cannot make our own legislation to suit
petitioner.
Petitioner, in her Memorandum, insists that subsequent events would show that joint
adoption could no longer be possible because Olario has filed a case for dissolution of his
marriage to petitioner in the Los Angeles Superior Court.
We disagree. The filing of a case for dissolution of the marriage between petitioner and
Olario is of no moment. It is not equivalent to a decree of dissolution of marriage. Until and
unless there is a judicial decree for the dissolution of the marriage between petitioner and
Olario, the marriage still subsists. That being the case, joint adoption by the husband and
the wife is required. We reiterate our ruling above that since, at the time the petitions for
adoption were filed, petitioner was married to Olario, joint adoption is mandatory.
WHEREFORE, we DENY the petition. We AFFIRM the Decision dated 15 September 2004
of the Regional Trial Court, General Santos City, Branch 22 in SPL. PROC. Case Nos. 1258
and 1259. Costs against petitioner.
SO ORDERED.

interests and welfare of the child to be of paramount consideration. They are designed to
provide homes, parental care and education for unfortunate, needy or orphaned children
and give them the protection of society and family, as well as to allow childless couples or
persons to experience the joys of parenthood and give them legally a child in the person of
the adopted for the manifestation of their natural parental instincts. Every reasonable
intendment should be sustained to promote and fulfill these noble and compassionate
objectives of the law.[23] But, as we have ruled in Republic v. Vergara:[24]
We are not unmindful of the main purpose of adoption statutes, which is
the promotion of the welfare of the children. Accordingly, the law should

IN THE MATTER OF THE ADOPTION OF STEPHANIE NATHY ASTORGA GARCIA

HONORATO B. CATINDIG, petitioner.

DECISION
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural father, use the surname of
her natural mother as her middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner, filed a petition [1] to
adopt his minor illegitimate child Stephanie Nathy Astorga Garcia. He alleged therein,
among others, that Stephanie was born on June 26, 1994; [2] that her mother is Gemma
Astorga Garcia; that Stephanie has been using her mothers middle name and surname;
and that he is now a widower and qualified to be her adopting parent. He prayed that
Stephanies middle name Astorga be changed to Garcia, her mothers surname, and that
her surname Garcia be changed to Catindig, his surname.
On March 23, 2001,[3] the trial court rendered the assailed Decision granting the
adoption, thus:
After a careful consideration of the evidence presented by the petitioner, and in the
absence of any opposition to the petition, this Court finds that the petitioner possesses all
the qualifications and none of the disqualification provided for by law as an adoptive
parent, and that as such he is qualified to maintain, care for and educate the child to be
adopted; that the grant of this petition would redound to the best interest and welfare of
the minor Stephanie Nathy Astorga Garcia. The Court further holds that the petitioners care
and custody of the child since her birth up to the present constitute more than enough
compliance with the requirement of Article 35 of Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the same is GRANTED. Henceforth,
Stephanie Nathy Astorga Garcia is hereby freed from all obligations of obedience and
maintenance with respect to her natural mother, and for civil purposes, shall henceforth be
the petitioners legitimate child and legal heir. Pursuant to Article 189 of the Family Code of
the Philippines, the minor shall be known as STEPHANIE NATHY CATINDIG.
Upon finality of this Decision, let the same be entered in the Local Civil Registrar concerned
pursuant to Rule 99 of the Rules of Court.
Let copy of this Decision be furnished the National Statistics Office for record purposes.
SO ORDERED.[4]

On April 20, 2001, petitioner filed a motion for clarification and/or

reconsideration[5] praying that Stephanie should be allowed to use the surname of her
natural mother (GARCIA) as her middle name.
On May 28, 2001,[6] the trial court denied petitioners motion for reconsideration
holding that there is no law or jurisprudence allowing an adopted child to use the surname
of his biological mother as his middle name.
Hence, the present petition raising the issue of whether an illegitimate child may use
the surname of her mother as her middle name when she is subsequently adopted by her
natural father.
Petitioner submits that the trial court erred in depriving Stephanie of a middle name
as a consequence of adoption because: (1) there is no law prohibiting an adopted child
from having a middle name in case there is only one adopting parent; (2) it is customary
for every Filipino to have as middle name the surname of the mother; (3) the middle name
or initial is a part of the name of a person; (4) adoption is for the benefit and best interest
of the adopted child, hence, her right to bear a proper name should not be violated; (5)
permitting Stephanie to use the middle name Garcia (her mothers surname) avoids the
stigma of her illegitimacy; and; (6) her continued use of Garcia as her middle name is not
opposed by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General (OSG), agrees with petitioner
that Stephanie should be permitted to use, as her middle name, the surname of her natural
mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies filiation with her natural
mother because under Article 189 of the Family Code, she remains to be an intestate heir
of the latter. Thus, to prevent any confusion and needless hardship in the future, her
relationship or proof of that relationship with her natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to use the surname of her
natural mother as her middle name. What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name, which is ordinarily the
surname of the mother. This custom has been recognized by the Civil Code and Family
Code. In fact, the Family Law Committees agreed that the initial or surname of the mother
should immediately precede the surname of the father so that the second name, if any, will
be before the surname of the mother.[7]
We find merit in the petition.
Use Of Surname Is Fixed By Law

For all practical and legal purposes, a man's name is the designation by which he is
known and called in the community in which he lives and is best known. It is defined as the
word or combination of words by which a person is distinguished from other individuals
and, also, as the label or appellation which he bears for the convenience of the world at
large addressing him, or in speaking of or dealing with him.[8] It is both of personal as well
as public interest that every person must have a name.
The name of an individual has two parts: (1) the given or proper name and (2)
the surname or family name. The given or proper name is that which is given to the
individual at birth or at baptism, to distinguish him from other individuals. The surname or
family name is that which identifies the family to which he belongs and is continued from
parent to child. The given name may be freely selected by the parents for the child, but the
surname to which the child is entitled is fixed by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the substantive rules which
regulate the use of surname[10] of an individual whatever may be his status in life, i.e.,
whether he may be legitimate or illegitimate, an adopted child, a married woman or a
previously married woman, or a widow, thus:

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

Art. 372. When legal separation has been granted, the wife shall continue using her name
and surname employed before the legal separation.
Art. 373. A widow may use the deceased husband's surname as though he were still
living, in accordance with Article 370.
Art. 374. In case of identity of names and surnames, the younger person shall be obliged
to use such additional name or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between ascendants and descendants,
the word Junior can be used only by a son. Grandsons and other direct male descendants
shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.

Art. 364. Legitimate and legitimated children shall principally use the surname of the
father.

xxx

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

Law Is Silent As To The Use Of

xxx

Middle Name

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

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

Art. 370. A married woman may use:

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

The middle name or the mothers surname is only considered in Article 375(1), quoted
above, in case there is identity of names and surnames between ascendants and
descendants, in which case, the middle name or the mothers surname shall be added.
Notably, the law is likewise silent as to what middle name an adoptee may
use. Article 365 of the Civil Code merely provides that an adopted child shall bear the
surname of the adopter. Also, Article 189 of the Family Code, enumerating the legal effects
of adoption, is likewise silent on the matter, thus:
"(1) For civil purposes, the adopted shall be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights and obligations arising from the
relationship of parent and child, including the right of the adopted to use the surname
of the adopters;

xxx

xxx

However, as correctly pointed out by the OSG, the members of the Civil Code and
Family Law Committees that drafted the Family Code recognized the Filipino custom of
adding the surname of the childs mother as his middle name. In the Minutes of the
Joint Meeting of the Civil Code and Family Law Committees, the members approved the
suggestion that the initial or surname of the mother should immediately precede
the surname of the father, thus
Justice Caguioa commented that there is a difference between the use by the wife of the
surname and that of the child because the fathers surname indicates the family to
which he belongs, for which reason he would insist on the use of the fathers
surname by the child but that, if he wants to, the child may also use the surname
of the mother.
Justice Puno posed the question: If the child chooses to use the surname of the mother,
how will his name be written? Justice Caguioa replied that it is up to him but that his point
is that it should be mandatory that the child uses the surname of the father and
permissive in the case of the surname of the mother.
Prof. Baviera remarked that Justice Caguioas point is covered by the present Article 364,
which reads:
Legitimate and legitimated children shall principally use the surname of the father.
Justice Puno pointed out that many names change through no choice of the person himself
precisely because of this misunderstanding. He then cited the following example: Alfonso
Ponce Enriles correct surname is Ponce since the mothers surname is Enrile but everybody
calls him Atty. Enrile. Justice Jose Gutierrez Davids family name is Gutierrez and his mothers
surname is David but they all call him Justice David.

Justice Puno suggested that they agree in principle that in the Chapter on the
Use of Surnames, they should say that initial or surname of the mother should
immediately precede the surname of the father so that the second name, if any,
will be before the surname of the mother. Prof. Balane added that this is really
the Filipino way. The Committee approved the suggestion.[12] (Emphasis supplied)
In the case of an adopted child, the law provides that the adopted shall bear the
surname of the adopters.[13] Again, it is silent whether he can use a middle name. What it
only expressly allows, as a matter of right and obligation, is for the adoptee to bear the
surname of the adopter, upon issuance of the decree of adoption. [14]
The Underlying Intent of
Adoption Is In Favor of the
Adopted Child
Adoption is defined as the process of making a child, whether related or not to the
adopter, possess in general, the rights accorded to a legitimate child. [15] It is a juridical act,
a proceeding in rem which creates between two persons a relationship similar to that
which results from legitimate paternity and filiation. [16] The modern trend is to consider
adoption not merely as an act to establish a relationship of paternity and filiation, but also
as an act which endows the child with a legitimate status.[17] This was, indeed, confirmed in
1989, when the Philippines, as a State Party to the Convention of the Rights of the
Child initiated by the United Nations, accepted the principle that adoption is
impressed with social and moral responsibility, and that its underlying intent is
geared to favor the adopted child.[18] Republic Act No. 8552, otherwise known as
the Domestic Adoption Act of 1998,[19] secures these rights and privileges for the adopted.
[20]

Justice Caguioa suggested that the proposed Article (12) be modified to the
effect that it shall be mandatory on the child to use the surname of the father
but he may use the surname of the mother by way of an initial or a middle name.
Prof. Balane stated that they take note of this for inclusion in the Chapter on Use of
Surnames since in the proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification suggested by Justice Caguioa
that the surname of the father should always be last because there are so many traditions
like the American tradition where they like to use their second given name and the Latin
tradition, which is also followed by the Chinese wherein they even include the Clan name.

One of the effects of adoption is that the adopted is deemed to be a legitimate child
of the adopter for all intents and purposes pursuant to Article 189 [21] of the Family Code and
Section 17[22] Article V of RA 8552.[23]
Being a legitimate child by virtue of her adoption, it follows that Stephanie
is entitled to all the rights provided by law to a legitimate child without
discrimination of any kind, including the right to bear the surname of her father
and her mother, as discussed above. This is consistent with the intention of the
members of the Civil Code and Family Law Committees as earlier discussed. In fact, it is a
Filipino custom that the initial or surname of the mother should immediately precede the
surname of the father.

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

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

Moreover, records show that Stephanie and her mother are living together in the
house built by petitioner for them at 390 Tumana, San Jose, Baliuag, Bulacan. Petitioner
provides for all their needs. Stephanie is closely attached to both her mother and father.
She calls them Mama and Papa. Indeed, they are one normal happy family. Hence, to allow
Stephanie to use her mothers surname as her middle name will not only sustain her
continued loving relationship with her mother but will also eliminate the stigma of her
illegitimacy.
Liberal Construction of
Adoption Statutes In Favor Of
Adoption
It is a settled rule that adoption statutes, being humane and salutary, should be
liberally construed to carry out the beneficent purposes of adoption. [25] The interests and
welfare of the adopted child are of primary and paramount consideration, [26] hence, every
reasonable intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:
In case of doubt in the interpretation or application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.
This provision, according to the Code Commission, is necessary so that it may tip the
scales in favor of right and justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which may apparently be authorized
by some way of interpreting the law.[28]
Hence, since there is no law prohibiting an illegitimate child adopted by her natural
father, like Stephanie, to use, as middle name her mothers surname, we find no reason
why she should not be allowed to do so.

G.R. No. 143989

July 14, 2003

ISABELITA S. LAHOM, petitioner,

vs.
JOSE MELVIN SIBULO (previously referred to as "DR. MELVIN S.
LAHOM"), respondent.
VITUG, J.:

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

the sense that Stephanie should be allowed to use her mothers surname GARCIA as her
middle name.

The bliss of marriage and family would be to most less than complete without children. The
realization could have likely prodded the spouses Dr. Diosdado Lahom and Isabelita Lahom

to take into their care Isabelita's nephew Jose Melvin Sibulo and to bring him up as their
own. At the tender age of two, Jose Melvin enjoyed the warmth, love and support of the
couple who treated the child like their own. Indeed, for years, Dr. and Mrs. Lahom fancied
on legally adopting Jose Melvin. Finally, in 1971, the couple decided to file a petition for
adoption. On 05 May 1972, an order granting the petition was issued that made all the
more intense than before the feeling of affection of the spouses for Melvin. In keeping with
the court order, the Civil Registrar of Naga City changed the name "Jose Melvin Sibulo" to
"Jose Melvin Lahom."
A sad turn of events came many years later. Eventually, in December of 1999, Mrs. Lahom
commenced a petition to rescind the decree of adoption before the Regional Trial Court
(RTC), Branch 22, of Naga City. In her petition, she averred
"7. That x x x despite the proddings and pleadings of said spouses, respondent
refused to change his surname from Sibulo to Lahom, to the frustrations of
petitioner particularly her husband until the latter died, and even before his death
he had made known his desire to revoke respondent's adoption, but was
prevented by petitioner's supplication, however with his further request upon
petitioner to give to charity whatever properties or interest may pertain to
respondent in the future.
xxx

xxx

xxx

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

xxx

xxx

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

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

uncomfortable relationship between him and petitioner, the latter has suffered
wounded feelings, knowing that after all respondent's only motive to his adoption
is his expectancy of his alleged rights over the properties of herein petitioner and
her late husband, clearly shown by his recent filing of Civil Case No. 99-4463 for
partition against petitioner, thereby totally eroding her love and affection towards
respondent, rendering the decree of adoption, considering respondent to be the
child of petitioner, for all legal purposes, has been negated for which reason there
is no more basis for its existence, hence this petition for revocation," 1
Prior to the institution of the case, specifically on 22 March 1998, Republic Act (R.A.) No.
8552, also known as the Domestic Adoption Act, went into effect. The new statute deleted
from the law the right of adopters to rescind a decree of adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:
"SEC. 19. Grounds for Rescission of Adoption. Upon petition of the adoptee,
with the assistance of the Department if a minor or if over eighteen (18) years of
age but is incapacitated, as guardian/counsel, the adoption may be rescinded on
any of the following grounds committed by the adopter(s): (a) repeated physical
and verbal maltreatment by the adopter(s) despite having undergone counseling;
(b) attempt on the life of the adoptee; (c) sexual assault or violence; or (d)
abandonment and failure to comply with parental obligations.
"Adoption, being in the best interest of the child, shall not be subject to rescission
by the adopter(s). However, the adopter(s) may disinherit the adoptee for causes
provided in Article 919 of the Civil Code." (emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending principally (a) that the trial
court had no jurisdiction over the case and (b) that the petitioner had no cause of action in
view of the aforequoted provisions of R.A. No. 8552. Petitioner asseverated, by way of
opposition, that the proscription in R.A. No. 8552 should not retroactively apply, i.e., to
cases where the ground for rescission of the adoption vested under the regime of then
Article 3482 of the Civil Code and Article 1923 of the Family Code.
In an order, dated 28 April 2000, the trial court held thusly:

"14. That for the last three or four years, the medical check-up of petitioner in
Manila became more frequent in view of a leg ailment, and those were the times
when petitioner would need most the care and support from a love one, but
respondent all the more remained callous and utterly indifferent towards
petitioner which is not expected of a son.
"15. That herein respondent has recently been jealous of petitioner's nephews and
nieces whenever they would find time to visit her, respondent alleging that they
were only motivated by their desire for some material benefits from petitioner.

"On the issue of jurisdiction over the subject matter of the suit, Section 5(c) of R.A.
No. 8369 confers jurisdiction to this Court, having been designated Family Court in
A.M. No. 99-11-07 SC.
"On the matter of no cause of action, the test on the sufficiency of the facts
alleged in the complaint, is whether or not, admitting the facts alleged, the Court
could render a valid judgment in accordance with the prayer of said complaint (De
Jesus, et al. vs. Belarmino, et al., 95 Phil. 365).

"Admittedly, Section 19, Article VI of R.A. No. 8552 deleted the right of an adopter
to rescind an adoption earlier granted under the Family Code. Conformably, on the
face of the petition, indeed there is lack of cause of action.
"Petitioner however, insists that her right to rescind long acquired under the
provisions of the Family Code should be respected. Assuming for the sake of
argument, that petitioner is entitled to rescind the adoption of respondent granted
on May 5, 1972, said right should have been exercised within the period allowed
by the Rules. From the averments in the petition, it appears clear that the legal
grounds for the petition have been discovered and known to petitioner for more
than five (5) years, prior to the filing of the instant petition on December 1, 1999,
hence, the action if any, had already prescribed. (Sec. 5, Rule 100 Revised Rules
of Court)
"WHEREFORE, in view of the foregoing consideration, the petition is ordered
dismissed."4
Via a petition for review on certiorari under Rule 45 of the 1997 Rules of Court, petitioner
raises the following questions; viz:
1. May the subject adoption, decreed on 05 May 1972, still be revoked or
rescinded by an adopter after the effectivity of R.A. No. 8552?
2. In the affirmative, has the adopter's action prescribed?
A brief background on the law and its origins could provide some insights on the subject. In
ancient times, the Romans undertook adoption to assure male heirs in the family. 5 The
continuity of the adopter's family was the primary purpose of adoption and all matters
relating to it basically focused on the rights of the adopter. There was hardly any mention
about the rights of the adopted.6 Countries, like Greece, France, Spain and England, in an
effort to preserve inheritance within the family, neither allowed nor recognized adoption. 7 It
was only much later when adoption was given an impetus in law and still later when the
welfare of the child became a paramount concern. 8Spain itself which previously disfavored
adoption ultimately relented and accepted the Roman law concept of adoption which,
subsequently, was to find its way to the archipelago. The Americans came and introduced
their own ideas on adoption which, unlike most countries in Europe, made the interests of
the child an overriding consideration.9 In the early part of the century just passed, the
rights of children invited universal attention; the Geneva Declaration of Rights of the Child
of 1924 and the Universal Declaration of Human Rights of 1948, 10followed by the United
Nations Declarations of the Rights of the Child, 11 were written instruments that would also
protect and safeguard the rights of adopted children. The Civil Code of the Philippines 12 of
1950 on adoption, later modified by the Child and Youth Welfare Code13 and then by the
Family Code of the Philippines,14 gave immediate statutory acknowledgment to the rights of
the adopted. In 1989, the United Nations initiated the Convention of the Rights of the Child.
The Philippines, a State Party to the Convention, accepted the principle that adoption was
impressed with social and moral responsibility, and that its underlying intent was geared to

favor the adopted child. R.A. No. 8552 secured these rights and privileges for the adopted.
Most importantly, it affirmed the legitimate status of the adopted child, not only in his new
family but also in the society as well. The new law withdrew the right of an adopter to
rescind the adoption decree and gave to the adopted child the sole right to sever the legal
ties created by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not adversely affect her right to
annul the adoption decree, nor deprive the trial court of its jurisdiction to hear the case,
both being vested under the Civil Code and the Family Code, the laws then in force.
The concept of "vested right" is a consequence of the constitutional guaranty of due
process15 that expresses apresent fixed interest which in right reason and natural justice is
protected against arbitrary state action;16 it includes not only legal or equitable title to the
enforcement of a demand but also exemptions from new obligations created after the right
has become vested.17 Rights are considered vested when the right to enjoyment is a
present interest,18 absolute, unconditional, and perfect19 or fixed and irrefutable.
In Republic vs. Court of Appeals,20 a petition to adopt Jason Condat was filed by Zenaida C.
Bobiles on 02 February 1988 when the Child and Youth Welfare Code (Presidential Decree
No. 603) allowed an adoption to be sought by either spouse or both of them. After the trial
court had rendered its decision and while the case was still pending on appeal, the Family
Code of the Philippines (Executive Order No. 209), mandating joint adoption by the
husband and wife, took effect. Petitioner Republic argued that the case should be
dismissed for having been filed by Mrs. Bobiles alone and without being joined by the
husband. The Court concluded that the jurisdiction of the court is determined by the
statute in force at the time of the commencement of the action. The petition to adopt
Jason, having been filed with the court at the time when P.D. No. 603 was still in effect, the
right of Mrs. Bobiles to file the petition, without being joined by her husband, according to
the Court had become vested. In Republic vs. Miller,21spouses Claude and Jumrus Miller,
both aliens, sought to adopt Michael Madayag. On 29 July 1988, the couple filed a petition
to formalize Michael's adoption having theretofore been taken into their care. At the time
the action was commenced, P.D. No. 603 allowed aliens to adopt. After the decree of
adoption and while on appeal before the Court of Appeals, the Family Code was enacted
into law on 08 August 1988 disqualifying aliens from adopting Filipino children. The
Republic then prayed for the withdrawal of the adoption decree. In discarding the argument
posed by the Republic, the Supreme Court ruled that the controversy should be resolved in
the light of the law governing at the time the petition was filed.
It was months after the effectivity of R.A. No. 8552 that herein petitioner filed an action to
revoke the decree of adoption granted in 1975. By then, the new law, 22 had already
abrogated and repealed the right of an adopter under the Civil Code and the Family Code
to rescind a decree of adoption. Consistently with its earlier pronouncements, the Court
should now hold that the action for rescission of the adoption decree, having been initiated
by petitioner after R.A. No. 8552 had come into force, no longer could be pursued.

Interestingly, even before the passage of the statute, an action to set aside the adoption is
subject to the five-year bar rule under Rule 10023 of the Rules of Court and that the adopter
would lose the right to revoke the adoption decree after the lapse of that period. The
exercise of the right within a prescriptive period is a condition that could not fulfill the
requirements of a vested right entitled to protection. It must also be acknowledged that a
person has no vested right in statutory privileges.24 While adoption has often been referred
to in the context of a "right," the privilege to adopt is itself not naturally innate or
fundamental but rather a right merely created by statute. 25 It is a privilege that is governed
by the state's determination on what it may deem to be for the best interest and welfare of
the child.26 Matters relating to adoption, including the withdrawal of the right of an adopter
to nullify the adoption decree, are subject to regulation by the State. 27 Concomitantly,
a right of action given by statute may be taken away at anytime before it has been
exercised.28
While R.A. No. 8552 has unqualifiedly withdrawn from an adopter a consequential right to
rescind the adoption decree even in cases where the adoption might clearly turn out to be
undesirable, it remains, nevertheless, the bounden duty of the Court to apply the law. Dura
lex sed lex would be the hackneyed truism that those caught in the law have to live with. It
is still noteworthy, however, that an adopter, while barred from severing the legal ties of
adoption, can always for valid reasons cause the forfeiture of certain benefits otherwise
accruing to an undeserving child. For instance, upon the grounds recognized by law, an
adopter may deny to an adopted child his legitime and, by a will and testament, may freely
exclude him from having a share in the disposable portion of his estate.
WHEREFORE, the assailed judgment of the court a quo is AFFIRMED. No costs.
SO ORDERED.

G.R. Nos. 89224-25 January 23, 1992

MAURICIO SAYSON, ROSARIO SAYSON-MALONDA, BASILISA SAYSON-LIRIO,
REMEDIOS SAYSON-REYES and JUANA C. BAUTISTA, vs. THE HONORABLE COURT
OF APPEALS, DELIA SAYSON, assisted by her husband, CIRILO CEDO, JR.,
EDMUNDO SAYSON AND DORIBEL SAYSON, respondents.
At issue in this case is the status of the private respondents and their capacity to inherit
from their alleged parents and grandparents. The petitioners deny them that right,
asserting if for themselves to the exclusion of all others. The relevant genealogical facts
are as follows.

Eleno and Rafaela Sayson begot five children, namely, Mauricio, Rosario, Basilisa,
Remedios and Teodoro. Eleno died on November 10, 1952, and Rafaela on May 15, 1976.
Teodoro, who had married Isabel Bautista, died on March 23, 1972. His wife died nine years
later, on March 26, 1981. Their properties were left in the possession of Delia, Edmundo,
and Doribel, all surnamed Sayson, who claim to be their children.
On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios, together with Juana C.
Bautista, Isabel's mother, filed a complaint for partition and accounting of the intestate
estate of Teodoro and Isabel Sayson. It was docketed as Civil Case No. 1030 in Branch 13 of
the Regional Trial Court of Albay. The action was resisted by Delia, Edmundo and Doribel
Sayson, who alleged successional rights to the disputed estate as the decedents' lawful
descendants.
On July 11, 1983, Delia, Edmundo and Doribel filed their own complaint, this time for the
accounting and partition of the intestate estate of Eleno and Rafaela Sayson, against the
couple's four surviving children. This was docketed as Civil Case No. 1042 in the Regional
Trial Court of Albay, Branch 12. The complainants asserted the defense they raised in Civil
Case No. 1030, to wit, that Delia and Edmundo were the adopted children and Doribel was
the legitimate daughter of Teodoro and Isabel. As such, they were entitled to inherit
Teodoro's share in his parents' estate by right of representation.
Both cases were decided in favor of the herein private respondents on the basis of
practically the same evidence.
Judge Rafael P. Santelices declared in his decision dated May 26,
1986, 1 that Delia and Edmundo were the legally adopted children of Teodoro and Isabel
Sayson by virtue of the decree of adoption dated March 9, 1967. 2 Doribel was their
legitimate daughter as evidenced by her birth certificate dated February 27,
1967. 3 Consequently, the three children were entitled to inherit from Eleno and Rafaela by
right of representation.
In his decision dated September 30, 1986, 4 Judge Jose S. Saez dismissed Civil Case No.
1030, holding that the defendants, being the legitimate heirs of Teodoro and Isabel as
established by the aforementioned evidence, excluded the plaintiffs from sharing in their
estate.
Both cases were appealed to the Court of Appeals, where they were consolidated. In its
own decision dated February 28, 1989, 5 the respondent court disposed as follows:
WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541), the appealed
decision is hereby AFFIRMED. In Civil case No. 1042 (CA-G.R. No. 12364),
the appealed decision is MODIFIED in that Delia and Edmundo Sayson are
disqualified from inheriting from the estate of the deceased spouses
Eleno and Rafaela Sayson, but is affirmed in all other respects.

SO ORDERED.
That judgment is now before us in this petition for review by certiorari. Reversal of the
respondent court is sought on the ground that it disregarded the evidence of the
petitioners and misapplied the pertinent law and jurisprudence when it declared the private
respondents as the exclusive heirs of Teodoro and Isabel Sayson.
The contention of the petitioners is that Delia and Edmundo were not legally adopted
because Doribel had already been born on February 27, 1967, when the decree of adoption
was issued on March 9, 1967. The birth of Doribel disqualified her parents from adopting.
The pertinent provision is Article 335 of the Civil Code, naming among those who cannot
adopt "(1) Those who have legitimate, legitimated, acknowledged natural children, or
natural children by legal fiction."
Curiously enough, the petitioners also argue that Doribel herself is not the legitimate
daughter of Teodoro and Isabel but was in fact born to one Edita Abila, who manifested in a
petition for guardianship of the child that she was her natural mother. 6
The inconsistency of this position is immediately apparent. The petitioners seek to annul
the adoption of Delia and Edmundo on the ground that Teodoro and Isabel already had a
legitimate daughter at the time but in the same breath try to demolish this argument by
denying that Doribel was born to the couple.
On top of this, there is the vital question of timeliness. It is too late now to challenge the
decree of adoption, years after it became final and executory. That was way back in
1967. 7 Assuming the the petitioners were proper parties, what they should have done was
seasonably appeal the decree of adoption, pointing to the birth of Doribel that disqualified
Teodoro and Isabel from adopting Delia and Edmundo. They did not. In fact, they should
have done this earlier, before the decree of adoption was issued. They did not, although
Mauricio claimed he had personal knowledge of such birth.
As the respondent court correctly observed:
When Doribel was born on February 27, 1967, or about TEN (10) days
before the issuance of the Order of Adoption, the petitioners could have
notified the court about the fact of birth of DORIBEL and perhaps
withdrew the petition or perhaps petitioners could have filed a petition
for the revocation or rescission of the adoption (although the birth of a
child is not one of those provided by law for the revocation or rescission
of an adoption). The court is of the considered opinion that the adoption
of the plaintiffs DELIA and EDMUNDO SAYSON is valid, outstanding and
binding to the present, the same not having been revoked or rescinded.

Not having any information of Doribel's birth to Teodoro and Isabel Sayson, the trial judge
cannot be faulted for granting the petition for adoption on the finding inter alia that the
adopting parents were not disqualified.
A no less important argument against the petitioners is that their challenge to the validity
of the adoption cannot be made collaterally, as in their action for partition, but in a direct
proceeding frontally addressing the issue.
The settled rule is that a finding that the requisite jurisdictional facts
exists, whether erroneous or not,cannot be questioned in a collateral
proceeding, for a presumption arises in such cases where the validity of
the judgment is thus attacked that the necessary jurisdictional facts were
proven [Freeman on Judgments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis
supplied.)
In the case of Santos v. Aranzanso, 8 this Court declared:
Anent this point, the rulings are summed up in 2 American Jurisprudence,
2nd Series, Adoption, Sec. 75, p. 922, thus:
An adoption order implies the finding of the necessary facts and the
burden of proof is on the party attacking it; it cannot be considered
void merely because the fact needed to show statutory compliance
is obscure. While a judicial determination of some particular fact,
such as the abandonment of his next of kin to the adoption, may be
essential to the exercise of jurisdiction to enter the order of
adoption, this does not make it essential to the jurisdictional
validity of the decree that the fact be determined upon proper
evidence, or necessarily in accordance with the truth; a mere error
cannot affect the jurisdiction, and the determination must stand
until reversed on appeal, and hence cannot be collaterally attacked.
If this were not the rule, the status of adopted children would
always be uncertain, since the evidence might not be the same at
all investigations, and might be regarded with different effect by
different tribunals, and the adoption might be held by one court to
have been valid, while another court would hold it to have been of
no avail. (Emphasis supplied.)
On the question of Doribel's legitimacy, we hold that the findings of the trial courts as
affirmed by the respondent court must be sustained. Doribel's birth certificate is a
formidable piece of evidence. It is one of the prescribed means of recognition under Article
265 of the Civil Code and Article 172 of the Family Code. It is true, as the petitioners stress,
that the birth certificate offers only prima facie evidence 9 of filiation and may be refuted
by contrary evidence. However, such evidence is lacking in the case at bar.

Mauricio's testimony that he was present when Doribel was born to Edita Abila was
understandbly suspect, coming as it did from an interested party. The affidavit of
Abila 10 denying her earlier statement in the petition for the guardianship of Doribel is of
course hearsay, let alone the fact that it was never offered in evidence in the lower courts.
Even without it, however, the birth certificate must be upheld in line with Legaspi v. Court
of Appeals, 11 where we ruled that "the evidentiary nature of public documents must be
sustained in the absence of strong, complete and conclusive proof of its falsity or nullity."
Another reason why the petitioners' challenge must fail is the impropriety of the present
proceedings for that purpose. Doribel's legitimacy cannot be questioned in a complaint for
partition and accounting but in a direct action seasonably filed by the proper party.
The presumption of legitimacy in the Civil Code . . . does not have this
purely evidential character. It serves a more fundamental purpose. It
actually fixes a civil status for the child born in wedlock, and that civil
status cannot be attacked collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the proper
parties, and within the period limited by law.
The legitimacy of the child cannot be contested by way of defense or as
a collateral issue in another action for a different
purpose. . . . 12 (Emphasis supplied.)
In consequence of the above observations, we hold that Doribel, as the legitimate daughter
of Teodoro and Isabel Sayson, and Delia and Edmundo, as their adopted children, are the
exclusive heirs to the intestate estate of the deceased couple, conformably to the following
Article 979 of the Civil Code:
Art. 979. Legitimate children and their descendants succeed the parents
and other ascendants, without distinction as to sex or age, and even if
they should come from different marriages.

Art. 970. Representation is a right created by fiction of law, by virtue of which

the representative is raised to the place and the degree of the person
represented, and acquires the rights which the latter would have if he were
living or if he could have inherited.
Art. 971. The representative is called to the succession by the law and not by
the person represented. The representative does not succeed the person
represented but the one who the person represented would have succeeded.
Art. 981. Should children of the deceased and descendants of other children
who are dead, survive, the former shall inherit in their own right, and the latter
by right of representation.
There is no question that as the legitimate daughter of Teodoro and thus the
granddaughter of Eleno and Rafaela, Doribel has a right to represent her deceased father
in the distribution of the intestate estate of her grandparents. Under Article 981, quoted
above, she is entitled to the share her father would have directly inherited had he survived,
which shall be equal to the shares of her grandparents' other children. 13
But a different conclusion must be reached in the case of Delia and Edmundo, to whom the
grandparents were total strangers. While it is true that the adopted child shall be deemed
to be a legitimate child and have the same right as the latter, these rights do not include
the right of representation. The relationship created by the adoption is between only the
adopting parents and the adopted child and does not extend to the blood relatives of either
party. In sum, we agree with the lower courts that Delia and Edmundo as the adopted
children and Doribel as the legitimate daughter of Teodoro Sayson and Isabel Bautista, are
their exclusive heirs and are under no obligation to share the estate of their parents with
the petitioners. The Court of Appeals was correct, however, in holding that only Doribel has
the right of representation in the inheritance of her grandparents' intestate estate, the
other private respondents being only the adoptive children of the deceased Teodoro.
WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals is
AFFIRMED in toto, with costs against the petitioners.

An adopted child succeeds to the property of the adopting parents in the

same manner as a legitimate child.
The philosophy underlying this article is that a person's love descends first to his children
and grandchildren before it ascends to his parents and thereafter spreads among his
collateral relatives. It is also supposed that one of his purposes in acquiring properties is to
leave them eventually to his children as a token of his love for them and as a provision for
their continued care even after he is gone from this earth.
Coming now to the right of representation, we stress first the following pertinent provisions
of the Civil Code:

G.R. No. L-20997

April 27, 1967

IN THE MATTER OF THE PETITION TO CHANGE NAME OF ONG HUAN TIN TO

TERESITA TAN ONG. HUAN TIN, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.
J. C. Yuseco for petitioner and appellant.
Office of the Solicitor General for oppositor and appellee.

SANCHEZ, J.:
Petition to change the name of Ong Huan Tin to Teresita Tan (Special Proceeding 03521,
Juvenile and Domestic Relations Court). Due publication was had. The petition was set for
hearing. But, before the petition could be heard on the merits, the court, motu proprio, in
its order of November 6, 1962 expressed the opinion "that an alien cannot avail himself of
the provisions of our Rules of Court relating to change of name" and thereupon denied the
petition. A move to reconsider was rejected in the court's order of November 24, 1962.
Offshoot is the present appeal.
1. At issue is whether an alien may petition for a change of name. Primarily, this question
hinges on the proper interpretation of the word person as it is employed in Rule 103 of the
Rules of Court. This problem, by all means, is not new.
In a recent judicial test (In the Petition for the Change of Name of JOSELITO YU, G.R. L20874, May 25, 1966)* We held that Philippine citizenship of the applicant is not a
prerequisite for a petition to change name; and, that, accordingly, an alien may petition for
a change of name. There, this Court, speaking through Mr. Justice Makalintal, declared:
Rule 103 does not say that only citizens of the Philippines may petition for a
change of name. [Neither does Public Act No. 1386 of the Philippine Commission
(enacted September 1, 1905) from which the Rule has been adopted.] Section 1
provides that "a person desiring to change his name shall present the petition to
the Court of First Instance of the province in which he resides, or, in the City of
Manila, to the Juvenile and Domestic Relations Court." Here the word "person" is a
generic term which is not limited to Filipino citizens, but embraces all natural
persons. The rule does not even require that the citizenship of the petitioner be
stated in his petition. It is enough that the petition be verified, signed by the
petitioner or some other person in his behalf, and set forth (a) that the petitioner
has been a bona fide resident of the province where the petition is filed for at
least three (3) years prior to the date of filing; (b) the cause for which the change
of name is sought; and (c) the name asked for (Section 2). The rule is clear and
affords no room for interpretation. It sets forth all the requirements, and Filipino
citizenship is not one of them.
The court a quo ruled that since the use of surnames is based on family rights,
and since under Article 15 of the Civil Code laws relating to family rights and
duties, or to the status, condition and legal capacity of persons are binding upon
citizens of the Philippines even though living abroad, the converse of the principle
must be recognized, that is to say, the same matters in respect of are alien must
be governed by the laws of his own country. The major premise of the proposition
may be true in a general sense: one's surname is usually that by which not only
one as an individual but one's family as well is known. Thus Title XIII of the Civil
Code (Articles 364 to 373) contains provision for the use of surnames by
legitimate, legitimated, illegitimate, and adopted children, as well as by women
who are married, widowed or legally separated from their husbands. But a change

of name as authorized under Rule 103 does not by itself define, or effect a change
in, one's existing family relations, or in the rights and duties flowing therefrom;
nor does it create new family rights and duties where none before were existing. It
does not alter one's legal capacity, civil status or citizenship. What is altered is
only the name, which in that word or combination of words by which a person is
distinguished from others and which he bears as the label or appellation for the
convenience of the world at large in addressing him, or in speaking of or dealing
with him (38 Am. Jur. 595). The situation is no different whether the person whose
name is changed be a citizen or an alien.
To be sure, there could be instances where the change applied for maybe open to objection
by parties who already bear the surname desired by the applicant, not because he would
thereby acquire certain family ties with them but because the existence of such ties might
be erroneously impressed on the public mind. But this is precisely the purpose of the
judicial application to determine whether there is proper and reasonable cause for the
change of name. As held by this Court are several cases, in which pertinently enough the
petitioners were aliens, the change is not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the consequences that will likely follow
(Ong Peng Oan vs. Republic, L-8035, Nov. 1957; Tan vs. Republic, L-16384, April 26, 1962;
Ong Te vs. Republic, L-15549, June 30, 1962; Moore vs. Republic, L-18407, June 26, 1963).
In not one of those cases, however, has it been ruled that an alien is not entitled to file a
petition at all."
2. Nonetheless, we pause to consider whether every alien in this country may petition for a
change of name.
Change of name under our own law is a special proceeding to establish the status of a
person involving his relations with others, that is, his legal position in, or with regard to, the
rest of the community. The petition therefor is directed against all. It is in rem. So it is, that
under Section 3 of Rule 103, publication of the petition is required. 1
The broad general doctrine is that the status of an alien individual is governed and
controlled by the lex domicilii.2Implicit in this precept is that an alien may be allowed to
change his name here only if he be domiciled in the Philippines. And "domicile" means
"permanent home, the place to which, whenever absent for business or pleasure, one
intends to return, and depends on facts and circumstances, in the sense that they disclose
intent."3
An alien who temporarily stays in the Philippines may not there avail of the right to change
his name. For, what good will that be if, after all, his stay will be for a short period of time?
It would not be of much benefit to him; court proceedings for the purpose could yet be a
useless ceremony; that salutary effects flowing from a change of his social relation and
condition may not thus be achieved. And then, stock should be taken of the fact that in a
change of name, third persons and the State are concerned. Correct, then, it is to say that
change of name is not temporary in nature; the new name may not be shunted aside at
will.

We, accordingly, lay down the rule that only alien domiciled in the Philippines may apply
for change of name in the courts thereof.1wph1.t

On January 13, 1965, petitioner-appellee filed the amended petition with the corrected
verification, but containing the same allegations and the same prayer (pp. 5-8, ROA).

Considering that the petition herein complies with the requisites set forth in the Rules of
Court, we vote to set aside the orders of the Juvenile and Domestic Relations Court of
November 6, 1962 and November 24, 1962; and to direct said Court to proceed with the
hearing and determination of Special Proceeding 03521, entitled "In the Matter of the
Petition to Change Name of Ong Huan Tin to Teresita Tan." No costs. So ordered.

Accordingly, on January 18, 1965, the Court ordered the publication of the amended
petition (pp. 9-12, ROA).

G.R. No. L-27621 August 30, 1973

IN THE MATTER OF THE CHANGE OF NAMES OF SECAN KOK and MARILYN SE,
SECAN KOK, petitioner-appellee,
vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellant.
Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de
Castro for oppositor-appellant.
Emmanuel D. Badoy for petitioner-appellee.

MAKASIAR, J.:
Appeal by the Republic of the Philippines from the order of the Court of First Instance of
Cotabato dated September 3, 1966 reinstating the order dated March 30, 1966 granting
the motion for supplemental judgment of petitioner-appellee and authorizing appellee's
legal wife Lucia O. Tee and their minor children namely, Perfecto, Romeo, Tomas, Daniel
and Antonio, Jr., to bear his newly granted surname Cuakok.
On May 18, 1964, appellee Secan Kok filed a petition to change his name and that of his
daughter Marilyn Se respectively to Antonio Cuakok and Gloria Cuakok, although his
petition mentions his other minor children, namely Perfecto, Romeo, Betty, Tomas, Daniel
and Antonio, Jr. (p. 1, ROA) as having been born out of his marriage in the Catholic church
on August 2, 1947 at Cotabato City, without, significantly, mentioning the name of his wife
(pp. 1-4, ROA).
On November 7, 1964, the trial court directed the amendment of the verification as it was
insufficient (pp. 4-5, ROA).

On July 28, 1965, the trial court, after finding that:

The evidence shows that the petitioner, Secan Kok a prosperous
businessman, is a Chinese citizen, born of Chinese parents in Amoy,
China, on September 7, 1917. Sometime in 1928, the petitioner came to
the Philippines, landed at the City of Manila and resided there for ten
years. In 1938, the petitioner transferred to Cotabato, now Cotabato City,
and has since then continuously resided therein. The petitioner is in
possession of Alien Certificate of Registration No. A-62640, dated
September 22, 1950, issued by the Commissioner of Immigration. He is
also in possession of Certificate of Legalization of Residence, dated
January 24, 1947.
The evidence also shows that the petitioner's true and correct Chinese
name is Cua Kian Kok but by clerical mistake committed by the
immigration official who prepared his registration papers, he is officially
called Secan Kok. In 1947, the petitioner was converted to the Roman
Catholic Church and was baptized in Cotabato City with the name of
Antonio Cua. In that same year, the petitioner was married to his present
wife, Lucia O. Tee, a Filipina. Presently, the petitioner has seven children,
namely: Marilyn, Perfecto, Romeo, Betty, Tomas, Daniel and Antonio, Jr.,
all of minor ages and all born and residents of Cotabato City.
The petitioner has thus presently acquired three distinct names: Cua Kian
Kok, Secan Kok and Antonio Cua. He has consistently used Secan Ko as
registered in the Bureau of Immigration in his official and business
dealings. But his family and friends have also made use of his Christian
names, Antonio Cua. In fact, his youngest son has been baptized as
Antonio Cua, Jr.. This situation has caused confusion and embarrassment
to the petitioner so that he has taken this legal step to change his
registered name, and adopt his Christian baptismal name of Antonio
Cuakok.
Petitioner's daughter, Marilyn, 17 years old, is now enrolled in the Notre
Dame College at Cotabato City. Since her childhood, she has been called
"Gloria", not by her baptismal name "Marilyn". In official and school
records, she has been known as "Maria Gloria Cua". Therefore, to avoid
this confusion, petitioner desires to change the name of (his) daughter,
Marilyn, to "Gloria Cuakok" for all legal intents and purposes.

Petitioner has filed this petition in good faith. Asst. City Fiscal Guialuzon
Ibad submitted the case without presenting any evidence against the
petition.
Finding the petition meritorious, the Court hereby grants the name as
prayed for. The name of the petitioner, Secan Kok, is hereby changed to
Antonio Cuakok Petitioner's daughter's name, Marilyn, is hereby changed
to Gloria Cuakok (pp. 14-16, ROA).
On January 7, 1966, petitioner-appellee filed a motion for supplemental judgment, alleging
that the Bureau of Immigration refused to change the surname of his wife Lucia O. Tee and
their aforesaid six (6) minor children to Cuakok who were then registered in the Bureau of
Immigration with the surname of Cua (pp. 16-19, ROA).
On January 10, 1966, the government, thru the Assistant City Fiscal, opposed the motion on
the ground that (a) the order dated July 28, 1965 of the trial court authorizing the change
of his name from Secan Kok to Antonio Cuakok, and the name of his daughter from Marilyn
Se to Gloria Cuakok has long become final and therefore can no longer be supplemented;
and (b) that his wife Lucia O. Tee, being of age, should file a separate petition to change
her name, such a petition being an individual and personal matter and not a collective one
(pp. 20-22, ROA).
On February 4, 1966, petitioner-appellee replied to the said opposition contending that
legitimate children shall principally use the surname of their father (Article 264, Civil Code
of the Philippines) and that the wife has the right to use the surname of her husband
(Article 370, Civil Code; pp. 22-26, ROA).
On February 28, 1966, the court set the hearing of the motion for the reception of evidence
on the full identity of appellee's wife and six (6) minor children (pp. 26-27, ROA).
On March 24, 1966, the government filed a motion for the reconsideration of the aforesaid
order of February 28, 1966 (pp. 27-29, ROA).
In an order dated March 30, 1966, the court granted the motion for supplemental judgment
after finding that:
The evidence shown that Lucia Tee Kok is the legitimate wife of the
petitioner, with Alien Certificate of Registration No. A 62605. The children
of the petitioner, all born and residing in the City of Cotabato are:
1.
2.
3.
4.
5.

Gloria, 17, ACR No. B46434

Perfecto, 15, ACR No. B 105775
Romeo, 11, ACR No. A 252184
Betty, 7, ACR No. B 23005
Tomas (twin of Daniel), 5, ACR No. B 46417

6. Daniel (twin of Tomas), 5, ACR No. B 46417

7. Antonio, Jr., 3, ACR No. B 70913
All these children were baptized in the Roman Catholic Church of
Cotabato City bearing the old surname of the petitioner Cua. Now,
Lucia Tee Kok desire to follow the new surname of her husband
Cuakok. The children Perfecto, Romeo, Betty, Tomas, Daniel and
Antonio, Jr., also desire to adopt the new surname of their father,
pursuant to law. (pp. 31-32, ROA).
On May 3, 1966, the government filed a motion for the reconsideration of the aforesaid
order of March 30, 1966 (pp. 33-37, ROA), which was granted on May 12, 1966 by the trial
court on the ground that the judgment had long become final and was already executory
when the present motion for supplemental judgment was filed and that the said motion
amounted to the re-opening of the main petition in accordance with Rules 37 and 38 of the
Revised Rules of Court, and forthwith set aside its order dated February 28, 1966, without
prejudice to petitioner's right to file a new and separate petition for the purpose (p. 38,
ROA).
However, upon motion for reconsideration by petitioner-appellee on August 27, 1966 (pp.
39-44, ROA), despite the opposition thereto by the government filed on September 1, 1966
(pp. 45-47, ROA), the trial court in its order dated September 3, 1966 set aside its order
dated May 12, 1966 and reinstated its previous order dated March 30, 1966 (pp. 47-49,
ROA), from which the State appealed.
The appeal should be sustained.
The rules are very explicit. Section 2 of Rule 103 of the Revised Rules of Court provides that
a petition for a change of name shall be signed and verified by the person desiring his
name to be changed, or some other person in his behalf. There is need therefore for a
separate petition to be filed by the wife Lucia O. Tee, who is already of age, in her own
behalf and in behalf of her minor children.
Then again, to confer jurisdiction on the court, since petitions for change of name are
proceedings in rem, strict compliance with the requirements is essential, namely, that such
verified petition should be published for three (3) successive weeks in some newspapers of
general circulation in the province; and that both the title or caption of the petition and its
body shall recite (1) the name or names or aliases of the applicant; (2) the cause for which
the change of name is sought; and (3) the name or names or aliases of the applicant; (2)
the cause for which the change of name is sought; and (3) the new name asked for. The
reason for these requirements is that a change of name is a matter of public interest. The
petitioner might be in, the rogues' gallery or hiding to avoid service of sentence or
compliance with a judgment in a criminal case, or could have escaped from prison; or if an
alien, he might have given cause for deportation or might be one against whom an order of
deportation was issued or that the new name the petitioner desires to adopt may be similar
to that of a respectable person and the latter might have evidence that petitioner is of

unsavory reputation that might impair his own good name. Being a privilege and not a
right, a change of name lies within the discretion of the court give or withhold. Failure to
comply with these jurisdictional requirements, renders the proceedings a
nullity. 1
To allow the change of name of the wife and other minor children of petitioner-appellee,
upon a mere motion as an incident in the proceedings for the change of name of petitionerappellee, will not only deprive the government of the required filing fees therefor but will
also dispense with the aforesaid essential requirements respecting the recitals in the title
of the petition and the publication to apprise persons, who may be in possession of adverse
information or evidence against the grant of the petition, so that they will come forward
with such information or evidence in order to protect public interest as well as the interest
of private individuals who may be prejudiced by the change of name of the petitioner.
As reiterated in the aforecited cases, all the names or aliases of petitioner must appear in
the title or caption of the petition; because the reader usually merely glances at the title of
the petition and may only proceed to read the entire petition if the title is of interest to him.
Moreover, the petition and the order directing its publication are usually found in the inside
or back pages of a newspaper, which escape the notice of the reader who merely glances
at the title of the petition and does not notice the other names and/or aliases of the
applicant if these are mentioned only in the body of the petition or order.

MARCELO LEE, ALBINA LEE-YOUNG, MARIANO LEE, PABLO LEE, HELEN LEE,
CATALINO
K.
LEE,
EUSEBIO
LEE,
EMMA
LEE,
and
TIU
CHUAN, petitioners, vs. COURT OF APPEALS and HON. LORENZO B.
VENERACION and HON. JAIME T. HAMOY, in their capacities as Presiding
Judge of Branch 47, Regional Trial Court of Manila and Branch 130,
Regional Trial Court of Kalookan City, respectively and RITA K. LEE,
LEONCIO LEE TEK SHENG in their personal capacities and ROSA K. LEEVANDERLEK, MELODY K. LEE-CHIN, LUCIA K. LEE TEK SHENG, JULIAN K.
LEE, HENRY K. LEE, MARTIN K. LEE, VICTORIANO K. LEE, NATIVIDAD K.
LEE-MIGUEL,
and
THOMAS
K. LEE, represented
by
RITA
K.
LEE, respondents.
DECISION
DE LEON, JR., J.:

Since there is a total absence of a petition signed by Lucia O. Tee and her other minor
children and the publication thereof, the challenged orders dated March 30, 1966 and
September 3, 1966 are completely void ab initio.
Inasmuch as petitioner-appellee's own petition and the publication of the same do not
include all his names and aliases, the new name he desires to bear as well as those of his
minor daughter Marilyn Se, the trial court likewise acquired no jurisdiction over his petition
and the decision granting his petition is similarly void ab initio and could be attacked
collaterally, vitiated as it was by a fatal flaw lack of jurisdiction.
IN VIEW HEREOF, THE QUESTIONED ORDERS DATED SEPTEMBER 3, 1966 AND MARCH 30,
1966 OF THE TRIAL COURT, AS WELL AS THE JUDGMENT DATED JULY 28, 1965 ARE HEREBY
SET ASIDE AS NULL AND VOID; AND THIS CASE IS HEREBY REMANDED TO THE TRIAL
COURT WHICH SHALL DIRECT PETITIONER-APPELLEE TO FILE AN AMENDED PETITION THAT
SHOULD BE PUBLISHED AS HEREINABOVE INDICATED. WITH COSTS AGAINST PETITIONERAPPELLEE.

This Petition for Review on Certiorari, with Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction, seeks the reversal of the
Decision[1] of the Court of Appeals dated October 28, 1994 in CA-G.R. SP NO. 31786 [2]. The
assailed decision of the Court of Appeals upheld the Orders issued by respondents Judges
Hon. Lorenzo B. Veneracion[3]and Hon. Jaime T. Hamoy[4] taking cognizance of two (2)
separate petitions filed by private respondents before their respective salas for the
cancellation and/or correction of entries in the records of birth of petitioners pursuant to
Rule 108 of the Revised Rules of Court.
This is a story of two (2) sets of children sired by one and the same man but begotten
of two (2) different mothers. One set, the private respondents herein, are the children of
Lee Tek Sheng and his lawful wife, Keh Shiok Cheng. The other set, the petitioners herein,
are allegedly children of Lee Tek Sheng and his concubine, Tiu Chuan.
Rita K. Lee, Leoncio Lee Tek Sheng, Rosa K. Lee-Vanderlek, Melody K. Lee-Chin, Lucia
K. Lee Tek Sheng-Ong, Julian K. Lee, Henry K. Lee, Martin K. Lee, Victoriano K. Lee,
Natividad K. Lee-Miguel and Thomas K. Lee (hereinafter referred to as private respondents)
filed two (2) separate petitions for the cancellation and/or correction of entries in the
records of birth of Marcelo Lee, Albina Lee-Young, Mariano Lee, Pablo Lee, Helen Lee,
Catalino K. Lee, Eusebio Lee, and Emma Lee (hereinafter referred to as petitioners). On
December 2, 1992, the petition against all petitioners, with the exception of Emma Lee,
was filed before the Regional Trial Court (RTC) of Manila and docketed as SP. PROC. NO. 9263692[5] and later assigned to Branch 47 presided over by respondent Judge Lorenzo B.

Veneracion. On February 3, 1993, a similar petition against Emma Lee was filed before the
RTC of Kalookan and docketed as SP. PROC. NO. C-1674 [6]and assigned to the sala of
respondent Judge Jaime T. Hamoy of Branch 130.
Both petitions sought to cancel and/or correct the false and erroneous entries in all
pertinent records of birth of petitioners by deleting and/or canceling therein the name of
Keh Shiok Cheng as their mother, and by substituting the same with the name Tiu Chuan,
who is allegedly the petitioners true birth mother.
The private respondents alleged in their petitions before the trial courts that they are
the legitimate children of spouses Lee Tek Sheng and Keh Shiok Cheng who were legally
married in China sometime in 1931. Except for Rita K. Lee who was born and raised in
China, private respondents herein were all born and raised in the Philippines.
Sometime in October, 1948, Lee Tek Sheng, facilitated the arrival in the Philippines
from China of a young girl named Tiu Chuan. She was introduced by Lee Tek Sheng to his
family as their new housemaid but far from becoming their housemaid, Tiu Chuan
immediately became Lee Tek Shengs mistress. As a result of their illicit relations, Tiu Chuan
gave birth to petitioners.
Unknown to Keh Shiok Cheng and private respondents, every time Tiu Chuan gave
birth to each of the petitioners, their common father, Lee Tek Sheng, falsified the entries in
the records of birth of petitioners by making it appear that petitioners mother was Keh
Shiok Cheng.
Since the birth of petitioners, it was Tiu Chuan who gave maternal care and guidance
to the petitioners. They all lived in the same compound Keh Shiok Cheng and private
respondents were residing in. All was well, therefore, before private respondents discovery
of the dishonesty and fraud perpetrated by their father, Lee Tek Sheng.
The tides turned after Keh Shiok Chengs demise on May 9, 1989. Lee Tek Sheng
insisted that the names of all his children, including those of petitioners, be included in the
obituary notice of Keh Shiok Chengs death that was to be published in the newspapers. It
was this seemingly irrational act that piqued private respondents curiosity, if not suspicion.
[7]

per diagnosis of the attending physician, Dr. R. LIM, it was GRAVIDA I, PARA I
which means first pregnancy, first live birth delivery (refer to: MASTER
PATIENTS RECORDS SUMMARY Annex I). Also, the age of the mother when
she gave birth to MARCELO LEE as per record was only 17 years old, when in
fact and in truth, KEH SHIOK CHENGs age was then already 38 years old. The
address used by their father in the Master Patient record was also the same
as the Birth Certificate of MARCELO LEE (2425 Rizal Avenue, Manila). The
name of MARCELO LEE was recorded under Hospital No. 221768, page 73.
2. As per Birth Certificate of ALBINA LEE (Annex F-2), it was made to appear that
ALBINA LEE was the third child which is without any rationality, because the
3rd child of KEH SHIOK CHENG is MELODY LEE TEK SHENG (Annex E-2). Note
also, that the age of the mother as per Hospital Records jump (sic) from 17
to 22 years old, but the only age gap of MARCELO LEE and ALBINA LEE is
only 2 years.
3. As per Birth Certificate of MARIANO LEE (Annex F-3), it was made to appear
that MARIANO LEE was the 5 th child, but the truth is, KEH SHIOK CHENGs
5th child is LUCIA LEE TEK SHENG (Annex E-4). As per Hospital Record, the
age of KEH SHIOK CHENG was only 23 years old, while the actual age of KEH
SHIOK CHENG, was then already 40 years old.
4. As per Birth Certificate of PABLO LEE (Annex F-4), it was made to appear that
PABLO LEE was the 16th child of KEH SHIOK CHENG which is impossible to be
true, considering the fact that KEH SHIOK CHENG have stopped conceiving
after her 11th child. Also as per Hospital Record, the age of the mother was
omitted in the records. If PABLO LEE is the 16th child of KEH SHIOK CHENG, it
would only mean that she have (sic) given birth to her first born child at the
age of 8 to 9 years, which is impossible to be true.
Based on the birth record of MARIANO LEE in 1953, the recorded age of KEH
SHIOK CHENG was 23 years old. Two years after PABLO LEE was born in
1955, the difference is only 2 years, so it is impossible for PABLO LEE to be
the 16th child of KEH SHIOK CHENG, as it will only mean that she have (sic)
given birth at that impossible age.

Acting on their suspicion, the private respondents requested the National Bureau of
Investigation (NBI) to conduct an investigation into the matter. After investigation and
verification of all pertinent records, the NBI prepared a report that pointed out, among
others, the false entries in the records of birth of petitioners, specifically the following:

5. As per Birth Certificate of HELEN LEE (Annex F-5), it was made to appear that
she is the 6th child of KEH SHIOK CHENG, but as per Birth Certificate of
JULIAN LEE (Annex E-5), he is the true 6 th child of KEH SHIOK CHENG. Per
Hospital Record, KEH SHIOK CHENG is only 28 years old, while KEH SHIOK
CHENGS true age at that time was 45 years old.

1. As per Birth Certificate of MARCELO LEE (Annex F-1), their father, LEE TEK
SHENG made it appear that he is the 12 th child of Mrs. KEH SHIOK CHENG,
but upon investigation, it was found out that her Hospital Records, the
mother who gave birth to MARCELO LEE had given birth for the 1 st time, as

6. EMMA LEE has no record in the hospital because, as per complainants

allegation, she was born at their house, and was later admitted at Chinese
General Hospital.

7. As per Birth Certificate of CATALINO LEE (Annex F-7), it was made to appear
that he is the 14th child of KEH SHIOK CHENG, and that the age of KEH SHIOK
CHENG a.k.a. Mrs. LEE TEK SHENG, jumped from 28 years old at the birth of
HELEN LEE on 23 August 1957 to 38 years old at the birth of CATALINO LEE
on 22 April 1959.
8. As per Birth Certificate of EUSEBIO LEE, the alleged last son of KEH SHIOK
CHENG, the age of the mother is 48 years old. However, as per Hospital
Record, the age of Mrs. LEE TEK SHENG, then was only 39 years
old. Considering the fact, that at the time of MARCELOs birth on 11 May
1950. KEH SHIOK CHENGs age is 38 years old and at the time of EUSEBIOs
birth, she is already 48 years old, it is already impossible that she could have
given birth to 8 children in a span of only 10 years at her age. As per
diagnosis, the alleged mother registered on EUSEBIOs birth indicate that she
had undergone CEASARIAN SECTION, which Dr. RITA K. LEE said is not true.

Finding the petition to be sufficient in form and substance, the same is hereby given due
course. Let this petition be set for hearing on March 29, 1993 at 8:30 in the morning before
this Court located at the 5th Floor of the City Hall of Manila.
Notice is hereby given that anyone who has any objection to the petition should file on or
before the date of hearing his opposition thereto with a statement of the grounds therefor.
Let a copy of this Order be published, at the expense of the petitioners, once a week for
three (3) consecutive weeks in a newspaper of general circulation in the Philippines.
Let copies of the verified petition with its annexes and of this Order be served upon the
Office of the Solicitor General, and the respondents, and be posted on the Bulletin Board of
this Court, also at the expense of the petitioners.
SO ORDERED.[11]

In view of the foregoing facts, the NBI concluded that:

10. In conclusion, as per Chinese General Hospital Patients Records, it is very
obvious that the mother of these 8 children is certainly not KEH
SHIOK CHENG, but a much younger woman, most probably TIU
CHUAN. Upon further evaluation and analysis by these Agents, LEE
TEK SHENG, is in a quandary in fixing the age of KEH SHIOK CHENG
possibly to conform with his grand design of making his 8 children
as their own legitimate children, consequently elevating the status
of his 2nd family and secure their future.The doctor lamented that
this complaint would not have been necessary had not the father
and his 2nd family kept on insisting that the 8 children are the
legitimate children of KEH SHIOK CHENG.[8]

On the other hand, respondent Judge Hamoy issued an Order dated April 15, 1993
taking cognizance of SP. PROC. No. C-1674, to wit:
It appearing from the documentary evidence presented and marked by the petitioners that
the Order of the Court setting the case for hearing was published in Media Update once a
week for three (3) consecutive weeks, that is on February 20, 27, and March 6, 1993 as
evidenced by the Affidavit of Publication and the clippings attached to the affidavit, and by
the copies of the Media Update published on the aforementioned dates; further, copy of the
order setting the case for hearing together with copy of the petition had been served upon
the Solicitor General, City Prosecutor of Kalookan City, Civil Registrar of Kalookan City and
the private respondents, the Court holds that the petitioners have complied with the
jurisdictional requirements for the Court to take cognizance of this case.
x x x x x x x x x.

It was this report that prompted private respondents to file the petitions for
cancellation and/or correction of entries in petitioners records of birth with the lower courts.
SO ORDERED.[12]
The petitioners filed a motion to dismiss both petitions - SP. PROC. NO. 92-63692 and
SP. PROC. NO. C-1674 - on the grounds that: (1) resort to Rule 108 is improper where the
ultimate objective is to assail the legitimacy and filiation of petitioners; (2) the petition,
which is essentially an action to impugn legitimacy was filed prematurely; and (3) the
action to impugn has already prescribed.[9]
On February 12, 1993, respondent Judge Veneracion denied the motion to dismiss SP.
PROC. NO. 92-63692 for failure of the herein petitioners (defendants in the lower court) to
appear at the hearing of the said motion. [10] Then on February 17, 1993, Judge Veneracion
issued an Order, the pertinent portion of which, reads as follows:

Petitioners attempts at seeking a reconsideration of the above-mentioned orders of

Judge Veneracion and Judge Hamoy failed, hence their recourse to the Court of
Appeals via a Petition for Certiorari and Prohibition with Application for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction. Petitioners averred that
respondents judges had acted with grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the assailed orders allowing the petitions for the cancellation
and/or correction of entries in petitioners records of birth to prosper in the lower courts.
In their petition before the Court of Appeals, the petitioners raised the following
arguments: (1) Rule 108 is inappropriate for impugning the legitimacy and filiation of
children; (2) Respondents judges are sanctioning a collateral attack against the filiation and
legitimacy of children; (3) Respondents judges are allowing private respondents to impugn

the legitimacy and filiation of their siblings despite the fact that their undisputed common
father is still alive; (4) Respondents judges are entertaining petitions which are already
time-barred; and (5) The petitions below are part of a forum-shopping spree. [13]
Finding no merit in petitioners arguments, the Court of Appeals dismissed their
petition in a Decision dated October 28, 1994. [14] Petitioners Motion for Reconsideration of
the said decision was also denied by the Court of Appeals in a Resolution dated December
19, 1994.[15]
Hence, this petition.
I. Petitioners contend that resort to Rule 108 of the Revised Rules of Court is improper
since private respondents seek to have the entry for the name of petitioners mother
changed from Keh Shiok Cheng to Tiu Chuan who is a completely different person. What
private respondents therefore seek is not merely a correction in name but a declaration
that petitioners were not born of Lee Tek Shengs legitimate wife, Keh Shiok Cheng, but of
his mistress, Tiu Chuan, in effect a bastardization of petitioners. [16] Petitioners thus label
private respondents suits before the lower courts as a collateral attack against their
legitimacy in the guise of a Rule 108 proceeding.
Debunking petitioners above contention, the Court of Appeals observed:
x x x x x x x x x.
As correctly pointed out by the private respondents in their comment x x x, the
proceedings are simply aimed at establishing a particular fact, status and/or right. Stated
differently, the thrust of said proceedings was to establish the factual truth regarding the
occurrence of certain events which created or affected the status of persons and/or
otherwise deprived said persons of rights.[17]
x x x x x x x x x.
It is precisely the province of a special proceeding such as the one outlined under
Rule 108 of the Revised Rules of Court to establish the status or right of a party, or a
particular fact.[18] The petitions filed by private respondents for the correction of entries in
the petitioners records of birth were intended to establish that for physical and/or biological
reasons it was impossible for Keh Shiok Cheng to have conceived and given birth to the
petitioners as shown in their birth records. Contrary to petitioners contention that the
petitions before the lower courts were actually actions to impugn legitimacy, the prayer
therein is not to declare that petitioners are illegitimate children of Keh Shiok Cheng, but to
establish that the former are not the latters children. There is nothing to impugn as there is
no blood relation at all between Keh Shiok Cheng and petitioners.[19]
Further sanctioning private respondents resort to Rule 108, the Court of Appeals
adverted to our ruling in the leading case of Republic vs. Valencia[20] where we affirmed the

decision of Branch XI of the then Court of First Instance (CFI) of Cebu City ordering the
correction in the nationality and civil status of petitioners minor children as stated in their
records of birth from Chinese to Filipino, and legitimate to illegitimate,
respectively. Although recognizing that the changes or corrections sought to be effected
are not mere clerical errors of a harmless or innocuous nature, this Court, sitting en banc,
held therein that even substantial errors in a civil register may be corrected and the true
facts established provided the parties aggrieved by the error avail themselves of
the appropriate adversary proceeding.[21] In the said case, we also laid down the rule
that a proceeding for correction and/or cancellation of entries in the civil register under
Rule 108 ceases to be summary in nature and takes on the characteristics of
an appropriate adversary proceeding when all the procedural requirements under Rule
108 are complied with. Thus we held:
Provided the trial court has conducted proceedings where all relevant facts have been fully
and properly developed, where opposing counsel have been given opportunity to demolish
the opposite partys case, and where the evidence has been thoroughly weighed and
considered, the suit or proceeding is appropriate.
The pertinent sections of rule 108 provide:
SEC. 3. Parties. - When cancellation or correction of an entry in the civil register is sought,
the civil registrar and all persons who have or claim any interest which would be affected
thereby shall be made parties to the proceeding.
SEC. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order,
fix the time and place for the hearing of the same, and cause reasonable notice thereof to
be given to the persons named in the petition. The court shall also cause the order to be
published once in a week for three (3) consecutive weeks in a newspaper of general
circulation in the province.
SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under
the entry whose cancellation or correction is sought may, within fifteen (15) days from
notice of the petition, or from the last date of publication of such notice, file his opposition
thereto.
Thus, the persons who must be made parties to a proceeding concerning the cancellation
or correction of an entry in the civil register are - (1) the civil registrar, and (2) all persons
who have or claim any interest which would be affected thereby. Upon the filing of the
petition, it becomes the duty of the court to - (1) issue an order fixing the time and place
for the hearing of the petition, and (2) cause the order for hearing to be published once a
week for three (3) consecutive weeks in a newspaper of general circulation in the
province. The following are likewise entitled to oppose the petition: - (1) the civil registrar,
and (2) any person having or claiming any interest under the entry whose cancellation or
correction is sought.

If all these procedural requirements have been followed, a petition for correction and/or
cancellation of entries in the record of birth even if filed and conducted under Rule 108 of
the Revised Rules of Court can no longer be described as summary. There can be no doubt
that when an opposition to the petition is filed either by the Civil Registrar or any person
having or claiming any interest in the entries sought to be cancelled and/or corrected and
the opposition is actively prosecuted, the proceedings thereon become adversary
proceedings.[22] (Underscoring supplied.)
To the mind of the Court of Appeals, the proceedings taken in both petitions for
cancellation and/or correction of entries in the records of birth of petitioners in the lower
courts are appropriate adversary proceedings.
We agree. As correctly observed by the Court of Appeals:
In the instant case, a petition for cancellation and/or correction of entries of birth was filed
by private respondents and pursuant to the order of the RTC-Manila, dated February 17,
1993, a copy of the order setting the case for hearing was ordered published once a week
for three (3) consecutive weeks in a newspaper of general circulation in the Philippines. In
the RTC-Kalookan, there was an actual publication of the order setting the case for hearing
in Media Update once a week for three (3) consecutive weeks. In both cases notices of the
orders were ordered served upon the Solicitor General, the Civil Registrars of Manila and
Kalookan and upon the petitioners herein. Both orders set the case for hearing and directed
the Civil Registrars and the other respondents in the case below to file their oppositions to
the said petitions. A motion to dismiss was consequently filed by herein petitioners
Marcelo, Mariano, Pablo, Helen, Catalino and Eusebio, all surnamed Lee, and Albina LeeYoung in the RTC-Manila, and an opposition was filed by Emma Lee in the RTC-Kalookan.
In view of the foregoing, we hold that the petitions filed by the private respondents in the
courts below by way of a special proceeding for cancellation and/or correction of entries in
the civil registers with the requisite parties, notices and publications could very well be
regarded as that proper suit or appropriate action. [23] (Underscoring supplied.)
The petitioners assert, however, that making the proceedings adversarial does not
give trial courts the license to go beyond the ambit of Rule 108 which is limited to those
corrections contemplated by Article 412 of the New Civil Code or mere clerical errors of a
harmless or innocuous nature.[24] The petitioners point to the case of Labayo-Rowe vs.
Republic,[25] which is of a later date than Republic vs. Valencia,[26] where this Court reverted
to the doctrine laid down in earlier cases,[27] starting with Ty Kong Tin vs. Republic,
[28]
prohibiting the extension of the application of Rule 108 beyond innocuous or harmless
changes or corrections. Petitioners contend that as held in Go, et al. vs. Civil Registrar,
[29]
allowing substantial changes under Rule 108 would render the said rule unconstitutional
as the same would have the effect of increasing or modifying substantive rights.
At the outset, it should be pointed out that in the cited case of Labayo-Rowe vs.
Republic,[30] the reason we declared null and void the portion of the lower courts order
directing the change of Labayo-Rowes civil status and the filiation of one of her children as

appearing in the latters record of birth, is not because Rule 108 was inappropriate to effect
such changes, but because Labayo-Rowes petition before the lower court failed to implead
all indispensable parties to the case.
We explained in this wise:
x x x. An appropriate proceeding is required wherein all the indispensable parties should be
made parties to the case as required under Section 3, Rule 108 of the Revised Rules of
Court.
In the case before Us, since only the Office of the Solicitor General was notified through the
Office of the Provincial Fiscal, representing the Republic of the Philippines as the only
respondent, the proceedings taken, which is summary in nature, is short of what is required
in cases where substantial alterations are sought. Aside from the Office of the Solicitor
General, all other indispensable parties should have been made respondents. They include
not only the declared father of the child but the child as well, together with the paternal
grandparents, if any, as their hereditary rights would be adversely affected thereby. All
other persons who may be affected by the change should be notified or represented x x x.
x x x x x x x x x.
The right of the child Victoria to inherit from her parents would be substantially impaired if
her status would be changed from legitimate to illegitimate. Moreover, she would be
exposed to humiliation and embarrassment resulting from the stigma of an illegitimate
filiation that she will bear thereafter. The fact that the notice of hearing of the petition was
published in a newspaper of general circulation and notice thereof was served upon the
State will not change the nature of the proceedings taken. Rule 108, like all the other
provisions of the Rules of Court, was promulgated by the Supreme Court pursuant to its
rule-making authority under Section 13, Article VIII of the 1973 Constitution, which directs
that such rules shall not diminish, increase or modify substantive rights. If Rule 108 were to
be extended beyond innocuous or harmless changes or corrections of errors which are
visible to the eye or obvious to the understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy of paternity or filiation, or
legitimacy of marriage, without observing the proper proceedings as earlier mentioned,
said rule would thereby become an unconstitutional exercise which would tend to increase
or modify substantive rights. This situation is not contemplated under Article 412 of the
Civil Code.[31](Underscoring supplied).
Far from petitioners theory, this Courts ruling in Labayo-Rowe vs. Republic[32] does not
exclude recourse to Rule 108 of the Revised Rules of Court to effect substantial changes or
corrections in entries of the civil register. The only requisite is that the proceedings under
Rule 108 be an appropriate adversary proceeding as contra-distinguished from
a summary proceeding. Thus:
If the purpose of the petition [for cancellation and/or correction of entries in the civil
register] is merely to correct the clerical errors which are visible to the eye or obvious to

the understanding,the court may, under a summary procedure, issue an order for the
correction of a mistake. However, as repeatedly construed, changes which may affect the
civil status from legitimate to illegitimate, as well as sex, are substantial and controversial
alterations which can only be allowed after appropriate adversary proceedings depending
upon the nature of the issues involved.Changes which affect the civil status or citizenship
of a party are substantial in character and should be threshed out in a proper action
depending upon the nature of the issues in controversy, and wherein all the parties who
may be affected by the entries are notified or represented and evidence is submitted to
prove the allegations of the complaint, and proof to the contrary admitted. x x x.
[33]
(Underscoring supplied.)

On its face, the Rule would appear to authorize the cancellation of any entry regarding
marriages in the civil registry for any reason by the mere filing of a verified petition for the
purpose.However, it is not as simple as it looks. Doctrinally, the only errors that can be
canceled or corrected under this Rule are typographical or clerical errors, not material or
substantial ones like the validity or nullity of a marriage. A clerical error is one which is
visible to the eyes or obvious to the understanding; error made by a clerk or a transcriber;
a mistake in copying or writing (Black vs. Republic, L-10869, Nov. 28, 1958); or some
harmless and innocuous change such as a correction of name that is clearly misspelled or
of a misstatement of the occupation of the parent (Ansalada vs. Republic, L-10226, Feb. 14,
1958).

It is true that in special proceedings formal pleadings and a hearing may be dispensed
with, and the remedy granted upon mere application or motion. But this is not always the
case, as when the statute expressly provides. [34] Hence, a special proceeding is not always
summary. One only has to take a look at the procedure outlined in Rule 108 to see that
what is contemplated therein is not a summary proceeding per se. Rule 108 requires
publication of the petition three (3) times, i.e., once a week for three (3) consecutive weeks
(Sec. 4). The Rule also requires inclusion as parties of all persons who claim any interest
which would be affected by the cancellation or correction (Sec. 3). The civil registrar and
any person in interest are also required to file their opposition, if any, within fifteen (15)
days from notice of the petition, or from the last date of publication of such notice (Sec.
5). Last, but not the least, although the court may make orders expediting the proceedings,
it is after hearing that the court shall either dismiss the petition or issue an order granting
the same (Sec. 7).

Where the effect of a correction in a civil registry will change the civil status of petitioner
and her children from legitimate to illegitimate, the same cannot be granted except only in
an adversarial x x x.

Thus, we find no reason to depart from our ruling in Republic vs. Valencia,[35] that Rule
108, when all the procedural requirements thereunder are followed, is the appropriate
adversary proceeding to effect substantial corrections and changes in entries of the civil
register. It must be conceded, however, that even after Republic vs. Valencia[36] there
continues to be a seesawing of opinion on the issue of whether or not substantial
corrections in entries of the civil register may be effected by means of Rule 108 in relation
to Article 412 of the New Civil Code. The more recent cases of Leonor vs. Court of
Appeals[37] and Republic vs. Labrador[38] do seem to signal a reversion to the Ty Kong
Tin ruling which delimited the scope of application of Article 412 to clerical or typographical
errors in entries of the civil register.
In Republic vs. Labrador, the Court held that Rule 108 cannot be used to modify, alter
or increase substantive rights, such as those involving the legitimacy or illegitimacy of a
child. We ruled thus:
This issue has been resolved in Leonor vs. Court of Appeals. In that case, Respondent
Mauricio Leonor filed a petition before the trial court seeking the cancellation of the
registration of his marriage to Petitioner Virginia Leonor. He alleged, among others, the
nullity of their legal vows arising from the non-observance of the legal requirements for a
valid marriage. In debunking the trial courts ruling granting such petition, the Court held as
follows:

Clearly and unequivocally, the summary procedure under Rule 108, and for that matter
under Article 412 of the Civil Code cannot be used by Mauricio to change his and Virginias
civil status from married to single and of their three children from legitimate to
illegitimate. x x x
Thus, where the effect of a correction of an entry in a civil registry will change the status of
a person from legitimate to illegitimate, as in Sarah Zitas case, the same cannot be
granted in summary proceedings.[39]
It is, therefore, high time that we put an end to the confusion sown by
pronouncements seemingly in conflict with each other, and perhaps, in the process, stem
the continuing influx of cases raising the same substantial issue.
The basis for the pronouncement that extending the scope of Rule 108 to substantial
corrections is unconstitutional is embodied in the early case of Ty Kong Tin vs.
Republic[40] that first delineated the extent or scope of the matters that may be changed or
corrected pursuant to Article 412 of the New Civil Code. The Supreme Court ruled in this
case that:
x x x. After a mature deliberation, the opinion was reached that what was contemplated
therein are mere corrections of mistakes that are clerical in nature and not those that may
affect the civil status or the nationality or citizenship of the persons involved. If the purpose
of the petition is merely a clerical error then the court may issue an order in order that the
error or mistake may be corrected. If it refers to a substantial change, which affects the
status or citizenship of a party, the matter should be threshed out in a proper action
depending upon the nature of the issue involved.Such action can be found at random in our
substantive and remedial laws the implementation of which will naturally depend upon the
factors and circumstances that might arise affecting the interested parties. This opinion is
predicated upon the theory that the procedure contemplated in article 412 is summary in
nature which cannot cover cases involving controversial issues.[41]

This doctrine was taken a step further in the case of Chua Wee, et al. vs.
Republic[42] where the Court said that:
From the time the New Civil Code took effect on August 30, 1950 until the promulgation of
the Revised Rules of Court on January 1, 1964, there was no law nor rule of court
prescribing the procedure to secure judicial authorization to effect the desired innocuous
rectifications or alterations in the civil register pursuant to Article 412 of the New Civil
Code. Rule 108 of the Revised Rules of Court now provides for such a procedure which
should be limited solely to the implementation of Article 412, the substantive law on the
matter of correcting entries in the civil register.Rule 108, like all the other provisions of the
Rules of Court, was promulgated by the Supreme Court pursuant to its rule-making
authority under Section 13 of Art. VIII of the Constitution, which directs that such rules of
court shall not diminish or increase or modify substantive rights. If Rule 108 were to be
extended beyond innocuous or harmless changes or corrections of errors which are visible
to the eye or obvious to the understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy of paternity or filiation, or
legitimacy of marriage, said Rule 108 would thereby become unconstitutional for it would
be increasing or modifying substantive rights, which changes are not authorized under
Article 412 of the New Civil Code.[43] (Underscoring supplied).
We venture to say now that the above pronouncements proceed from a wrong
premise, that is, the interpretation that Article 412 pertains only to clerical errors of a
harmless or innocuous nature, effectively excluding from its domain, and the scope of its
implementing rule, substantial changes that may affect nationality, status, filiation and the
like. Why the limited scope of Article 412? Unfortunately, Ty Kong Tin does not satisfactorily
answer this question except to opine that the procedure contemplated in Article 412 is
summary in nature and cannot, therefore, cover cases involving controversial
issues. Subsequent cases have merely echoed the Ty Kong Tin doctrine without, however,
shedding light on the matter.
The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a summary
procedure.
First of all, Article 412 is a substantive law that provides as follows:
No entry in a civil register shall be changed or corrected, without a judicial order.
It does not provide for a specific procedure of law to be followed except to say that
the corrections or changes must be effected by judicial order. As such, it cannot be gleaned
therefrom that the procedure contemplated for obtaining such judicial order is summary in
nature.
Secondly, it is important to note that Article 412 uses both the terms corrected and
changed. In its ordinary sense, to correct means to make or set right; to remove the faults
or errors from[44]while to change means to replace something with something else of the
same kind or with something that serves as a substitute. [45] The provision neither qualifies

as to the kind of entry to be changed or corrected nor does it distinguish on the basis of the
effect that the correction or change may have. Hence, it is proper to conclude that all
entries in the civil register may be changed or corrected under Article 412. What are the
entries in the civil register? We need not go further than Articles 407 and 408 of the same
title to find the answer.
Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
Art. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions;
(9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
It is beyond doubt that the specific matters covered by the preceding provisions
include not only status but also nationality. Therefore, the Ty Kong Tin pronouncement that
Article 412 does not contemplate matters that may affect civil status, nationality or
citizenship is erroneous. This interpretation has the effect of isolating Article 412 from the
rest of the articles in Title XVI, Book I of the New Civil Code, in clear contravention of the
rule of statutory construction that a statute must always be construed as a whole such that
the particular meaning to be attached to any word or phrase is ascertained from the
context and the nature of the subject treated. [46]
Thirdly, Republic Act No. 9048 [47] which was passed by Congress on February 8, 2001
substantially amended Article 412 of the New Civil Code, to wit:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name
or Nickname.- No entry in a civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change of first name or nickname
which can be corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its implementing rules and
regulations.
The above law speaks clearly. Clerical or typographical errors in entries of the civil
register are now to be corrected and changed without need of a judicial order and by the
city or municipal civil registrar or consul general. The obvious effect is to remove from the
ambit of Rule 108 the correction or changing of such errors in entries of the civil
register. Hence, what is left for the scope of operation of Rule 108 are substantial changes
and corrections in entries of the civil register. This is precisely the opposite of what Ty Kong
Tin and other cases of its genre had said, perhaps another indication that it was not sound
doctrine after all.

It may be very well said that Republic Act No. 9048 is Congress response to the
confusion wrought by the failure to delineate as to what exactly is that so-called summary
procedure for changes or corrections of a harmless or innocuous nature as distinguished
from that appropriate adversary proceeding for changes or corrections of a substantial
kind. For we must admit that though we have constantly referred to an appropriate
adversary proceeding, we have failed to categorically state just what that procedure
is. Republic Act No. 9048 now embodies thatsummary procedure while Rule 108 is
that appropriate adversary proceeding. Be that as it may, the case at bar cannot be
decided on the basis of Republic Act No. 9048 which has prospective application. Hence,
the necessity for the preceding treatise.

birth to petitioner. In other words, the prayer therein is not to declare that petitioner is an
illegitimate child of Hermogena, but to establish that the former is not the latters child at
all. x x x.[51]
Similarly, we ruled in Benitez-Badua vs. Court of Appeals[52] that:
Petitioners insistence on the applicability of Articles 164, 166, 170 and 171 of the Family
Code to the case at bench cannot be sustained. x x x.
x x x x x x x x x.

II. The petitioners contend that the private respondents have no cause of action to
bring the cases below as Article 171 of the Family Code allows the heirs of the father to
bring an action to impugn the legitimacy of his children only after his death. [48]
Article 171 provides:
The heirs of the husband may impugn the filiation of the child within the period prescribed
in the preceding article only in the following cases:
(1) If the husband should die before the expiration of the period fixed for bringing this
action;
(2) If he should die after the filing of the complaint, without having desisted therefrom; or
(3) If the child was born after the death of the husband.
Petitioners contention is without merit.
In the recent case of Babiera vs. Catotal,[49] we upheld the decision of the Court of
Appeals that affirmed the judgment of the RTC of Lanao del Norte declaring the birth
certificate of one Teofista Guinto as null and void ab initio, and ordering the Local Civil
Registrar of Iligan City to cancel the same from the Registry of Live Births. We ruled therein
that private respondent Presentacion Catotal, child of spouses Eugenio Babiera and
Hermogena Cariosa, had the requisite standing to initiate an action to cancel the entry of
birth of Teofista Babiera, another alleged child of the same spouses because she is the one
who stands to be benefited or injured by the judgment in the suit, or the party entitled to
the avails of the suit.[50]
We likewise held therein that:
x x x Article 171 of the Family Code is not applicable to the present case. A close reading of
the provision shows that it applies to instances in which the father impugns the legitimacy
of his wifes child. The provision, however, presupposes that the child was the undisputed
offspring of the mother. The present case alleges and shows that Hermogena did not give

A careful reading of the above articles will show that they do not contemplate a situation,
like in the instant case, where a child is alleged not be the child of nature or biological child
of a certain couple. Rather, these articles govern a situation where a husband (or his heirs)
denies as his own a child of his wife. Thus, under Article 166, it is the husband who can
impugn the legitimacy of said child by proving: (1) it was physically impossible for him to
have sexual intercourse, with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for biological or other scientific
reasons, the child could not have been his child; (3) that in case of children conceived
through artificial insemination, the written authorization or ratification by either parent was
obtained through mistake, fraud, violence, intimidation or undue influence. Articles 170
and 171 reinforce this reading as they speak of the prescriptive period within which the
husband or any of his heirs should file the action impugning the legitimacy of said
child. Doubtless then, the appellate court did not err when it refused to apply these articles
to the case at bench. For the case at bench is not one where the heirs of the late Vicente
are contending that petitioner is not his child by Isabel. Rather, their clear submission is
that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim vs.
Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned decision is
apropos, viz:
Petitioners recourse to Article 263 of the New Civil Code [now Art. 170 of the Family Code]
is not well taken. This legal provision refers to an action to impugn legitimacy. It is
inapplicable to this case because this is not an action to impugn the legitimacy of a child,
but an action of the private respondents to claim their inheritance as legal heirs of their
childless deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is not the decedents child at all. Being
neither legally adopted child, nor an acknowledged natural child, nor a child by legal fiction
of Esperanza Cabatbat, Violeta is not a legal heir of the deceased. [53]
III. Petitioners claim that private respondents cause of action had already prescribed
as more than five (5) years had lapsed between the registration of the latest birth among
the petitioners in 1960 and the filing of the actions in December of 1992 and February of
1993.[54]
We disagree. As correctly pointed out by the Court of Appeals, inasmuch as no law or
rule specifically prescribes a fixed time for filing the special proceeding under Rule 108 in

relation to Article 412 of the New Civil Code, it is the following provision of the New Civil
Code that applies:
Art. 1149. All other actions whose periods are not fixed in this Code or in other laws must
be brought within five years from the time the right of action accrues.
The right of action accrues when there exists a cause of action, which consists of
three (3) elements, namely: a) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; b) an obligation on the part of the defendant to respect
such right; and c) an act or omission on the part of such defendant violative of the right of
the plaintiff. It is only when the last element occurs or takes place that it can be said in law
that a cause of action has arisen.[55]
It is indubitable that private respondents have a cause of action. The last element of
their cause of action, that is, the act of their father in falsifying the entries in petitioners
birth records, occurred more than thirty (30) years ago. Strictly speaking, it was upon this
occurrence that private respondents right of action or right to sue accrued. However, we
must take into account the fact that it was only sometime in 1989 that private respondents
discovered that they in fact had a cause of action against petitioners who continue to use
said falsified birth records.
Hence, it would result in manifest injustice if we were to deprive private respondents
of their right to establish the truth about a fact, in this case, petitioners true mother, and
their real status, simply because they had discovered the dishonesty perpetrated upon
them by their common father at a much later date. This is especially true in the case of
private respondents who, as their fathers legitimate children, did not have any reason to
suspect that he would commit such deception against them and deprive them of their sole
right to inherit from their mothers (Keh Shiok Chengs) estate. It was only sometime in 1989
that private respondents suspicions were aroused and confirmed. From that time until 1992
and 1993, less than five (5) years had lapsed.
Petitioners would have us reckon the five-year prescriptive period from the date of the
registration of the last birth among the petitioners-siblings in 1960, and not from the date
private respondents had discovered the false entries in petitioners birth records in
1989. Petitioners base their position on the fact that birth records are public documents,
hence, the period of prescription for the right of action available to the private respondents
started to run from the time of the registration of their birth certificates in the Civil Registry.

IV. Finally, petitioners accuse private respondents of forum shopping. They enumerate
the other actions filed by private respondents against them prior to the filing of their Rule
108 petitions in the lower courts, as follows:
(1) A criminal complaint for falsification of entries in the birth certificates filed
against their father as principal and against defendants as alleged
accessories;
(2) A petition for the cancellation of the naturalization certificate of their father,
Lee Tek Sheng; and
(3) A petition for partition of Keh Shiok Chengs estate.[57]
According to the petitioners, all the three (3) actions above-mentioned, as well as the
Rule 108 petitions, subject of the case before us, raise the common issue of whether
petitioners are the natural children of Keh Shiok Cheng or Tiu Chuan. They contend that in
all these cases, the judge or hearing officer would have to resolve this issue in order to
determine whether or not to grant the relief prayed for. [58]
Forum shopping is present when in the two or more cases pending there is identity of
parties, rights or causes of action and reliefs sought. [59] Even a cursory examination of the
pleadings filed by private respondents in their various cases against petitioners would
reveal that at the very least there is no identity of rights or causes of action and reliefs
prayed for. The present case has its roots in two (2) petitions filed under Rule 108, the
purpose of which is to correct and/or cancel certain entries in petitioners birth
records. Suffice it to state, the cause of action in these Rule 108 petitions and the relief
sought therefrom are very different from those in the criminal complaint against petitioners
and their father which has for its cause of action, the commission of a crime as defined and
penalized under the Revised Penal Code, and which seeks the punishment of the accused;
or the action for the cancellation of Lee Tek Shengs naturalization certificate which has for
its cause of action the commission by Lee Tek Sheng of an immoral act, and his ultimate
deportation for its object; or for that matter, the action for partition of Keh Shiok Chengs
estate which has for its cause of action the private respondents right under the New Civil
Code to inherit from their mothers estate.
We therefore concur in the finding of the Court of Appeals that there is no forum
shopping to speak of in the concept that this is described and contemplated in Circular No.
28-91 of the Supreme Court.

We cannot agree with petitioners thinking on that point.

It is true that the books making up the Civil Register and all documents relating
thereto are public documents and shall be prima facie evidence of the facts therein
contained.[56] Petitioners liken their birth records to land titles, public documents that serve
as notice to the whole world. Unfortunately for the petitioners, this analogy does not hold
water. Unlike a title to a parcel of land, a persons parentage cannot be acquired by
prescription. One is either born of a particular mother or not. It is that simple.

WHEREFORE, the petition is hereby DENIED and the assailed decision of the Court of
Appeals dated October 28, 1994 is AFFIRMED.
SO ORDERED.

MILAGROS M. BARCO, as the Natural Guardian and Guardian Ad Litem of MARY

JOY ANN GUSTILO, petitioner, vs. COURT OF APPEALS (SPECIAL
SIXTEENTH DIVISION), REGIONAL TRIAL COURT (BR. 133-MAKATI), NCJR;
THE
LOCAL
CIVIL
REGISTRAR
OF
MAKATI;
and
NADINA
G.
MARAVILLA, respondents.
DECISION
TINGA, J.:
The story behind the present petition is a portrait of dysfunction. The familial situation
of the parties is complicated, to say the least. The judicial conferment of the status of
illegitimacy on a daughter who is by law legitimate has created a tangled braid of various
legal doctrines that, like the Gordian knot of yore, is in this case ultimately unbound
through one fell swoop of the sword.
On 24 December 1970, private respondent Nadina Maravilla (Nadina) married
Francisco Maravilla (Francisco). By February of 1977, the spouses had opted to live
separately,[1] and in February of the following year they obtained an ecclesiastical
annulment of marriage issued by the Catholic Diocese of Bacolod City. [2] On 9 June 1978,
Nadina gave birth to a daughter named June Salvacion (June) in Makati, Metro Manila. Junes
birth certificate listed Francisco Maravilla as the father, and Maravilla as the childs
surname.[3]Nadina signed the birth certificate shortly after it was accomplished.
Despite the notation in Junes birth certificate, Nadina subsequently claimed that all
along, the real father of her child was Armando Gustilo (Gustilo), a former Congressman
with whom she maintained a relationship. At the time of Junes birth, Gustilo was married to
one Consuelo Caraycong, who would later perish in the MV Don Juan naval accident of
1981.[4] On 21 August 1982, Nadina and Gustilo were married in the United States. [5] This
marriage took place two and a half years before Nadinas marriage to Francisco was alleged

to have been annulled in the Philippines. On 12 March 1985, Nadina apparently was able to
obtain a judicial declaration annulling her marriage to Francisco. [6]
On 17 March 1983, Nadina filed in her own name a Petition for Correction of Entries in
the Certificate of Birth of her daughter June with the Regional Trial Court (RTC) of Makati.
[7]
Therein, she alleged that she had been living separately from her lawful spouse Francisco
since February of 1977, and that Gustilo was the real father of June. [8] She claimed that she
did not allow Francisco to have any sexual congress with her within the first 20 days of the
three hundred days preceding the birth of June. [9] She prayed that the Local Civil Registrar
of Makati be directed to correct the birth certificate of June to the effect that the latters full
name be made June Salvacion C. Gustilo, and that the name of her father be changed from
Francisco Maravilla to Armando Gustilo. Notably, Francisco affixed his signature to
the Petition signifying his conformity thereto.[10]
On 20 March 1983. Gustilo filed a Constancia, wherein he acknowledged June as his
daughter with Nadina, and that he was posing no objection to Nadinas petition. [11]
The Petition was docketed as SP Proc. No. M-130. On 26 July 1983, the RTC, in
accordance with Rule 108 of the Rules of Court, issued an Order setting the case for
hearing and directing that a copy of the order be published once a week for three
consecutive weeks in a newspaper of general circulation. On 7 September 1983, Nadina
filed an Amended Petition,[12] this time impleading Francisco and Gustilo as respondents.
Correspondingly, the RTC amended the Order on 22 September 1983 to reflect the
additional impleaded parties.[13]
The Office of the Solicitor General filed a Motion to Dismiss the petition on the ground
that the RTC had no jurisdiction over the subject matter and/or the nature of th[e] suit.
[14]
They cited various jurisprudence holding that only innocuous or clerical errors may be
corrected under a Rule 108 petition for correction of entries, and that the Petition seeks
changes are substantial and controversial in character which directly affect the filiation and
legitimacy of petitioners daughter.[15] On 23 February 1984, the Motion to Dismiss was
denied by the RTC, which also subsequently denied a Motion for Reconsideration thereto
filed by the Solicitor General.
On 7 January 1985, the RTC issued an Order (RTC Order) granting the petition and
ordering the requested corrections to be effected. The RTC considered the claim of Nadina
that she had relied completely on her uncle William R. Veto [16] to facilitate the preparation
of Junes birth certificate, that it was through his inadvertence that the mistaken entries
were made, and that she was in intense physical discomfort when she had affixed her
signature to the birth certificate containing the incorrect entries. [17] The RTC also noted that
Francisco had signified his conformity to the action by signing the original petition, and that
Gustilo had manifested through a Constancia dated 20 March 1983 that he was
acknowledging June as his daughter and expressing no objection to the petition. [18]
Gustilo died in 19 December 1986. [19] Two estate proceedings arose from his death,
one lodged in Makati,[20] the other in Harris County, Texas. [21] Among the participants in both

estate proceedings was Jose Vicente Gustilo (Jose Vicente), allegedly a biological child of
Gustilo.[22] On 5 March 1993, he filed with the Court of Appeals a Petition[23] seeking the
annulment of the RTC Order of 7 January 1985 which had effected changes in the civil
status of June. Jose Vicente amended his Petition in July of 1993 to implead Nadina as an
indispensable party.[24] In her Comment, Nadina countered that Jose Vicente had not
sufficiently proven that he was a child of Armando, and there was neither extrinsic fraud or
lack of jurisdiction that would justify the annulment of the RTC Order. [25] Nadina also pointed
out that the Makati intestate court had approved a compromise agreement wherein the
parties had agreed that the only heirs of the decedent Armando are the surviving spouse,
Nadina G. Gustilo, the daughter, June Salvacion G. Gustilo, the son, Jose Vicente Gustilo III,
and another daughter, Mary Joy Ann Gustilo. [26] However, this compromise agreement was
subsequently voided on petition by Jose Vicente to the Court of Appeals, on the ground that
the Civil Code prohibited compromise as to the civil status of persons. [27]
After the Court of Appeals commenced hearings on the petition, petitioner Milagros
Barco (Barco), on 11 January 1994, filed in her capacity as the natural guardian and/or
guardian ad litem of her daughter, Mary Joy Ann Gustilo (Mary Joy), a Motion for
Intervention with a Complaint-in-Intervention attached thereto.[28] Barco alleged that Mary
Joy had a legal interest in the annulment of the RTC Order as she was likewise fathered by
Gustilo. In her Complaint-in-Intervention, Barco claimed that she and Gustilo had
maintained a relationship since 1967, and to them was born Mary Joy in 1977. [29] Barco also
alleged that she actually moved in with Gustilo after the death of the latters wife in 1980,
and maintained her affair with Gustilo until 1983, when she was purportedly supplanted
by Nadina as Gustilos common-law companion after Gustilo had become gravely ill. [30]
After the parties had filed their respective memoranda, the Court of Appeals rendered
a Decision on 13 March 1995, dismissing both the Petition and the Complaint-inIntervention.[31] The appellate court held that neither Jose Vicente nor Barco were able to
establish the existence of lack of jurisdiction and extrinsic fraud, the two grounds that
would justify the annulment of a final judgment. [32] It ruled that while Jose Vicente and
Barco had not been made parties in the Petition for Correction, the subsequent notice and
publication of the Order setting the case for hearing served as constructive notice to all
parties who might have an interest to participate in the case. The publication of
the Order conferred upon the RTC the jurisdiction to try and decide the case. [33] It also
found no merit in Jose Vicentes claim that he learned of the RTC Order only in November of
1992, pointing out that as early as 1987, he filed a pleading with the intestate court
alleging that Junes birth certificate had been amended to record the name of her true
father.[34]
Only the intervenor Barco filed a Motion for Reconsideration[35] of the Court of
Appeals Decision, which the appellate court denied on 16 May 1995. [36] Thus, Barco filed
the present Petition for Review on Certiorari seeking the reversal of the Court of
AppealsDecision and the annulment of the 1985 RTC Order.
Before this Court, Barco assails that RTC Order on the ground of lack of
jurisdiction. That was the same ground she invoked in the Court of Appeals. Specifically,
she raises the following issues:

1) Barco should have been made a party to the Nadinas petition and the failure to
implead her deprived the RTC of jurisdiction;
2) This RTC could not have entertained Nadinas petition, since the Courts ruling in a
long line of cases, beginning with Republic v. Valencia,[37] that a petition for correction of
entries in the civil register is not limited to innocuous or clerical mistakes, applies only to
citizenship cases;
3) The petition for correction was filed out of time, as Article 263 of the Civil Code of
1950 sets a prescriptive period for impugning the legitimacy of a child which is one year
from the recording of birth in the Civil Registry, if the husband should be in the same place,
or in a proper case, any of his heirs;
4) Nadinas petition should have been treated as a petition for change of name, which
can only be filed by the person whose name is sought to be changed;
5) The RTC Order contravenes the legal presumption that children born during the
pendency of a marriage are legitimate and the rule that legitimate children cannot adopt
the surname of a person who is not their father; and
6) The RTC should have excluded as hearsay the Constancia allegedly signed by
Gustilo and that the surrounding circumstances under which it was issued gave reason to
doubt its authenticity and credibility.
Interestingly, the questions that Barco raised would tickle the fancies of erudite
civilists yearning for a challenge. However, the ultimate resolution of this case hinges on
whether the de rigueur requirements of the extraordinary remedy of annulment of
judgment have been satisfied.
First, a brief revisit of the action to annul judgment.
The recourse is equitable in character, allowed only in exceptional cases, as where
there is no available or other adequate remedy. Annulment of judgments is a remedy long
authorized and sanctioned in our jurisdiction. [38] As far back as 1918, this Court in Banco
Espaol-Filipino v. Palanca[39] recognized the availability of a direct attack of a final judgment
on the ground that it is void for want of jurisdiction. In Reyes v. Datu[40] we held that the
validity of a final judgment or order of the court may be attacked only by a direct action or
proceeding or by motion in another case on the ground of lack of jurisdiction.
Yet, it was only in the 1997 Rules of Civil Procedure that for the first time the
procedure for the annulment of judgments or final orders and resolutions in civil cases of
regional trial courts, through a petition before the Court of Appeals, was formally
provided. Rule 47 thereof under which the procedure was integrated incorporates settled
jurisprudence on annulment of judgment.

Statutory basis for the remedy was laid way back in 1980, with the enactment of The
Judiciary Reorganization Act of 1980.[41] Section 9 thereof vests in the Court of Appeals
exclusive original jurisdiction over actions for annulment of judgments of the lower courts.
Section 2, Rule 47 of the 1997 Rules of Civil Procedure explicitly provides only two
grounds for annulment of judgment, namely: extrinsic fraud and lack of jurisdiction. This
express limitation is significant since previous jurisprudence recognized other grounds as
well.[42] The underlying reason is traceable to the notion that annulling final judgments goes
against the grain of finality of judgment. Litigation must end and terminate sometime and
somewhere, and it is essential to an effective administration of justice that once a
judgment has become final the issue or cause involved therein should be laid to rest. The
basic rule of finality of judgment is grounded on the fundamental principle of public policy
and sound practice that at the risk of occasional error, the judgment of courts and the
award of quasi-judicial agencies must become final at some definite date fixed by law.
[43]
Even if the rule on annulment of judgment is grounded on equity, the relief is of an
extraordinary character, and not as readily available as the remedies obtaining to a
judgment that is not yet final.
There are two aspects of jurisdiction which are vital for disposition of this case jurisdiction over the nature of the action or subject matter, and jurisdiction over
the parties.[44] Barco claims that the RTC failed to satisfy both aspects of jurisdiction. She
opines that the RTC did not acquire jurisdiction over the parties due to the failure to
implead her as a party to the petition for correction. On the other hand, the remaining
issues that she raises as errors put into question whether the RTC had jurisdiction over the
subject matter of Nadinas petition.
We shall first tackle the question of whether the RTC had acquired jurisdiction over
Barco and all other indispensable parties to the petition for correction.
The essential requisite for allowing substantial corrections of entries in the civil
registry is that the true facts be established in an appropriate adversarial proceeding. This
is embodied in Section 3, Rule 108 of the Rules of Court, which states:
Section 3. Parties When cancellation or correction of an entry in the civil register is sought,
the civil registrar and all persons who have or claim any interest which would be affected
thereby shall be made parties to the proceeding.
The Court of Appeals held that jurisdiction over the parties was properly acquired
through the notice by publication effected in conformity with Section 4 of Rule 108. Barco
assails this holding and claims that the failure to implead her as a party to the petition for
correction deprived the RTC of jurisdiction.
Undoubtedly, Barco is among the parties referred to in Section 3 of Rule 108. Her
interest was affected by the petition for correction, as any judicial determination that June
was the daughter of Armando would affect her wards share in the estate of her father. It
cannot be established whether Nadina knew of Mary Joys existence at the time she filed

the petition for correction. Indeed, doubt may always be cast as to whether a petitioner
under Rule 108 would know of all the parties whose interests may be affected by the
granting of a petition. For example, a petitioner cannot be presumed to be aware of all the
legitimate or illegitimate offsprings of his/her spouse or paramour. The fact that Nadina
amended her petition to implead Francisco and Gustilo indicates earnest effort on her part
to comply with Section 3 as quoted above.
Yet, even though Barco was not impleaded in the petition, the Court of Appeals
correctly pointed out that the defect was cured by compliance with Section 4, Rule 108,
which requires notice by publication, thus:
Section 4. Upon the filing of the petition, the court shall, by order, fix the time and place for
the hearing of the same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be published once a week for
three (3) consecutive weeks in a newspaper of general circulation in the province.
The purpose precisely of Section 4, Rule 108 is to bind the whole world to the
subsequent judgment on the petition. The sweep of the decision would cover even parties
who should have been impleaded under Section 3, Rule 108, but were inadvertently left
out. The Court of Appeals correctly noted:
The publication being ordered was in compliance with, and borne out by the Order of
January 7, 1985. The actual publication of the September 22, 1983 Order, conferred
jurisdiction upon the respondent court to try and decide the case. While nobody appeared
to oppose the instant petition during the December 6, 1984 hearing, that did not divest the
court from its jurisdiction over the case and of its authority to continue trying the case. For,
the rule is well-settled, that jurisdiction, once acquired continues until termination of the
case.[45]
Verily, a petition for correction is an action in rem, an action against a thing and not
against a person.[46] The decision on the petition binds not only the parties thereto [47] but
the whole world.[48] An in rem proceeding is validated essentially through publication.
[49]
Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the right
sought to be established.[50] It is the publication of such notice that brings in the whole
world as a party in the case and vests the court with jurisdiction to hear and decide it. [51]
Since the RTC properly acquired jurisdiction over the parties, what remains for
determination is whether it had acquired jurisdiction over Nadinas cause of action. It should
be emphasized that jurisdiction over the nature of the action or the subject matter is
conferred by law. This Courts recent holding in Durisol Philippines, Inc. v. Court of
Appeals[52] is instructive in this regard:
[I]t should be stressed that in a petition for annulment of judgment based on lack of
jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion but an
absolute lack of jurisdiction. Lack of jurisdiction means absence of or no jurisdiction, that is,

the court should not have taken cognizance of the petition because the law does not vest it
with jurisdiction over the subject matter.[53]
The question of whether a court has jurisdiction over the subject matter can be
answered simply by determining if on the basis of the complaint or petition the court has,
under the law, the power to hear and decide the case. Barcos remaining arguments are to
be tested against this standard.
One of Barcos striking assertions is that the general rule still is that the jurisdiction of
the court in the correction of entries in the civil register is limited to innocuous or clerical
mistakes, as what she insinuates as the apparent contrary holding in Republic v.
Valencia[54] applies only to citizenship cases.
Since the promulgation of the Valencia ruling in 1986 the Court has repeatedly ruled
that even substantial errors in a civil registry may be corrected through a petition filed
under Rule 108, with the true facts established and the parties aggrieved by the error
availing themselves of the appropriate adversarial proceeding. Barco, by seeking to limit
the application of the Valencia doctrine to citizenship cases, is flogging a dead horse. This
argument was debunked in subsequent cases, [55] notably the recent case of Lee v. Court of
Appeals.[56] The exhaustive disquisition therein of Justice Sabino de Leon should preclude
any further arguments on the scope of Rule 108.
The Court in Lee acknowledged that there existed a line of decided cases, some of
them decided after Valencia, stating that Rule 108 cannot be used to effect substantial
corrections in entries of the civil register. [57] The doctrine was traced back to the 1954 case
of Ty Kong Tin v. Republic,[58] the rationale of which the Court reevaluated in Lee:
We venture to say now that the above pronouncements proceed from a wrong premise,
that is, the interpretation that Article 412 pertains only to clerical errors of a harmless or
innocuous nature, effectively excluding from its domain, and the scope of its implementing
rule, substantial changes that may affect nationality, status, filiation and the like. Why the
limited scope of Article 412? Unfortunately, Ty Kong Tin does not satisfactorily answer this
question except to opine that the procedure contemplated in Article 412 is summary in
nature and cannot, therefore, cover cases involving controversial issues. Subsequent cases
have merely echoed the Ty Kong Tin doctrine without, however, shedding light on the
matter.
The flaw in Ty Kong Tin lies in its theory that Article 412 contemplates a summary
procedure.
First of all, Article 412 is a substantive law that provides as follows:
No entry in a civil register shall be changed or corrected, without a judicial order.

It does not provide for a specific procedure of law to be followed except to say that the
corrections or changes must be effected by judicial order. As such, it cannot be gleaned
therefrom that the procedure contemplated for obtaining such judicial order is summary in
nature.
Secondly, it is important to note that Article 412 uses both the terms corrected and
changed. In its ordinary sense, to correct means to make or set right; to remove the faults
or errors from while to change means to replace something with something else of the
same kind or with something that serves as a substitute. The provision neither qualifies as
to the kind of entry to be changed or corrected nor does it distinguish on the basis of the
effect that the correction or change may have. Hence, it is proper to conclude that all
entries in the civil register may be changed or corrected under Article 412. What are the
entries in the civil register? We need not go further than Articles 407 and 408 of the same
title to find the answer.
Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.
Art. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
It is beyond doubt that the specific matters covered by the preceding provisions include not
only status but also nationality. Therefore, the Ty Kong Tin pronouncement that Article 412
does not contemplate matters that may affect civil status, nationality or citizenship is
erroneous. This interpretation has the effect of isolating Article 412 from the rest of the
articles in Title XVI, Book I of the New Civil Code, in clear contravention of the rule of
statutory construction that a statute must always be construed as a whole such that the
particular meaning to be attached to any word or phrase is ascertained from the context
and the nature of the subject treated.[59]
Lee also points out that Republic Act No. 9048, enacted in 2001, has effectively
changed the nature of a proceeding under Rule 108. Under this new law, clerical or
typographical errors and change of first name or nickname may now be corrected or
changed by the concerned city or municipal registrar or consul general, without need of
any judicial order. The obvious effect is to remove from the ambit of Rule 108 the
correction or changing of such errors in entries of the civil register. Hence, what is left for
the scope of operation of Rule 108 are substantial changes and corrections in entries of the
civil register.[60]

It may be very well said that Republic Act No. 9048 is Congresss response to the confusion
wrought by the failure to delineate as to what exactly is that so-called summary procedure
for changes or corrections of a harmless or innocuous nature as distinguished from that
appropriate adversary proceeding for changes or corrections of a substantial kind. For we
must admit that though we have constantly referred to an appropriate adversary
proceeding, we have failed to categorically state just what that procedure is. Republic Act
No. 9048 now embodies that summary procedure while Rule 108 is that appropriate
adversary proceeding. xxx[61]
Republic Act No. 9048 may not find application in this case, yet it is clearly another
indicium of how entrenched the Valencia ruling is today. With the enactment of the law, the
legislature acknowledged the potency of the ruling. To repeat, substantial corrections to the
civil status of persons recorded in the civil registry may be effected through the filing of a
petition under Rule 108. Any further attempt to limit the scope of application of Rule 108
runs against the wall of judicial precedent cemented by legislative affirmation.
Next, Barco argues that the petition for correction had prescribed under the Civil
Code; and that the petition for correction should be treated as a petition for change of
name which can only be filed by the person whose name is sought to be changed. These
arguments can be decided jointly. They both are not well taken as they cannot allude to a
lack of jurisdiction that would render the RTC Order subject to annulment.
Assuming arguendo that Nadinas petition for correction had prescribed and/or that
the action seeking the change of name can only be filed by the party whose name is
sought to be changed, this does not alter the reality that under the law the Makati RTC had
jurisdiction over the subject matter of the petition for correction. The Judiciary
Reorganization Act of 1980, the applicable law at the time, clearly conferred on the Makati
RTC exclusive original jurisdiction in all civil actions in which the subject of the litigation is
incapable of pecuniary estimation.[62] In complementation of grant of jurisdiction, Section 1
of Rule 108 provides that the verified petition to the cancellation or correction of any entry
relating thereto should be filed with the Court of First Instance (now Regional Trial Court) of
the province where the corresponding civil registry is located.
Prescription and lack of capacity to bring action cannot be ignored by a court of law in
properly resolving an action, to the extent that a finding that any of these grounds exist will
be sufficient to cause the dismissal of the action. [63] Yet, the existence of these grounds
does not oust the court from its power to decide the case. Jurisdiction cannot be acquired
through, waived, enlarged or diminished by any act or omission of the parties.
[64]
Contrariwise, lack of capacity to sue and prescriptions as grounds for dismissal of an
action may generally be rendered unavailing, if not raised within the proper period. [65]
It thus follows that assuming that the petition for correction had prescribed, or that
Nadina lacked the capacity to file the action which led to the change of her daughters
name, the fact that the RTC granted the Order despite the existence of these two grounds
only characterizes the decision as erroneous. An erroneous judgment is one though

rendered according to the course and practice of the court is contrary to law. [66] It is not a
void judgment.[67]

Consequently, the Court of Appeals committed no reversible error in issuing the assailed
decision.

As for Barcos remaining arguments, they similarly fail, as the worst they could
establish is that the RTC Order is an erroneous judgment.

This Court has been constrained in the past to leave erroneous decisions as they
were.[75] Our fealty to justice in its pristine form the upholding of right over wrong is
equipoised with our adherence to due process, and the rules that emanate from that
principle. The Court takes great care in drafting rules of procedure so that the axioms that
govern the legal battleground may live up to Justice Frankfurters approximation of due
process as the embodiment of the sporting idea of fair play.[76] Due process dictates that
litigants be afforded a reasonable opportunity to attack erroneous judgments and be
shielded from the adverse effects of void judgments. Due process likewise demands that a
party, after trekking the long road of litigation should be permitted to enjoy the fruits of an
auspicious final judgment. Absent any convincing demonstration that the RTC Order is
patently null and void, there is no reason under law and jurisprudence to upset it, given the
reality that it has long become final.

Barco correctly notes, however, that the RTC erred in directing that the name of
Nadinas daughter be changed from June Salvacion Maravilla to June Salvacion Gustilo.
Following the trial courts determination that Gustilo was the father of June, but prescinding
from the conclusive presumption of legitimacy for the nonce assuming it could be done, the
child would obviously be illegitimate. The applicable laws mandate that June, as an
illegitimate child, should bear the surname of her mother, and not the father. [68] From
another perspective, the RTCs error in ordering the change of name is merely an error in
the exercise of jurisdiction which neither affects the courts jurisdiction over Nadinas
petition nor constitutes a ground for the annulment of a final judgment. As the seminal
case ofHerrera v. Barretto[69] explains:
xxx Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The
authority to decide a cause at all, and not the decision rendered therein, is what makes up
jurisdiction. Where there is jurisdiction of the person and subject matter xxx the decision of
all other questions arising in the case is but an exercise of that jurisdiction. [70]
In the same vein, it is of no moment that the RTC Order contravenes the legal
presumption accorded June of being the legitimate child of Francisco and Nadina. [71] A
review of the records does indicate the insufficiency of the evidence offered to defeat the
presumption, against which the only evidence admissible is the physical impossibility of the
husbands having access to his wife within the first one hundred and twenty days of the
three hundred which preceded the birth of the child. [72] It seems that the RTC relied
primarily on the testimony of Nadina in adjudging that Gustilo, and not Francisco, was the
father of June. Yet, Article 256 of the Civil Code renders ineffectual any pronouncement
against legitimacy made by the mother. [73] The testimony proffered by the mother has no
probative
value
as
regards
Junes
paternity. The
RTCs
cognizance
of
Gustilos Constancia might likewise be subject to critical scrutiny. [74] But the Court is now
precluded from reviewing the RTCs appreciation of the evidence, however erroneous it may
be, because theOrder is already final. The RTCs possible misappreciation of evidence is
again at most, an error in the exercise of jurisdiction, which is different from lack of
jurisdiction. These purported errors do not extend to the competence of the RTC to decide
the matter and as such does not constitute a valid ground to annul the final order.
The law sanctions the annulment of certain judgments which, though final, are
ultimately void. Annulment of judgment is an equitable principle not because it allows a
party-litigant another opportunity to reopen a judgment that has long lapsed into finality
but because it enables him to be discharged from the burden of being bound to a judgment
that is an absolute nullity to begin with. The inevitable conclusion is that the
RTC Order, despite its apparent flaws, is not null and void, and thus cannot be annulled.

WHEREFORE, the above premises considered, the Petition is hereby dismissed for
lack of merit. Costs against petitioner.
SO ORDERED.

interdiction; (m) judicial determination of filiation; (n) voluntary

emancipation of a minor; and (o) changes of name. [Underscoring
supplied]
REPUBLIC V. MERCADERA
MENDOZA, J.:
This petition for review on certiorari assails the December 9, 2008 Decision[1] of the Court
of Appeals (CA), in CA G.R. CV No. 00568-MIN, which affirmed the September 28, 2005
Order of the Regional Trial Court of Dipolog City, Branch 8(RTC), in a petition for correction
of entries, docketed as Special Proceedings No. R-3427 (SP No. R-3427), filed by respondent
Merlyn Mercadera (Mercadera) under Rule 108 of the Rules of Court.
The Factual and Procedural Antecedents
On June 6, 2005, Merlyn Mercadera (Mercadera), represented by her sister and
duly constituted Attorney-in-Fact, Evelyn M. Oga (Oga), sought the correction of her given
name as it appeared in her Certificate of Live Birth - from Marilyn L. Mercadera to Merlyn L.
Mercadera before the Office of the Local Civil Registrar of Dipolog City pursuant to Republic
Act No. 9048 (R.A. No. 9048).[2]
Under R.A. No. 9048, the city or municipal civil registrar or consul general, as the
case may be, is now authorized to effect the change of first name or nickname and the
correction of clerical or typographical errors in civil registry entries. Under said law,
jurisdiction over applications for change of first name is now primarily lodged with
administrative officers. The law now excludes the change of first name from the coverage
of Rules 103 until and unless an administrative petition for change of name is first filed and
subsequently denied[3] and removes correction or changing of clerical errors in entries of
the civil register from the ambit of Rule 108. Hence, what is left for the scope of operation
of the rules are substantial changes and corrections in entries of the civil register. [4]
The Office of the Local Civil Registrar of Dipolog City, however, refused to effect
the correction unless a court order was obtained because the Civil Registrar therein is not
yet equipped with a permanent appointment before he can validly act on petitions for
corrections filed before their office as mandated by Republic Act 9048. [5]
Mercadera was then constrained to file a Petition For Correction of Some Entries
as
Appearing
in
the
Certificate
of
Live
Birth under
Rule
108
before
the Regional Trial Court of Dipolog City (RTC). The petition was docketed as Special
Proceedings No. R-3427 (SP No. R-3427). Section 2 of Rule 108 reads:
SEC.
2. Entries
subject
to
cancellation
or
correction. Upon good and valid grounds, the following entries in the
civil register may be cancelled or corrected: (a) births; (b) marriages; (c)
deaths; (d) legal separations; (e) judgments of annulments of marriage;
(f) judgments declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship; (l) civil

Upon receipt of the petition for correction of entry, the RTC issued an order,
dated June 10, 2005, which reads:
Finding the petition sufficient in form and substance, notice is
hereby given that the hearing of said petition is set on JULY 26, 2005 at
8:30 oclock in the morning, at the Session Hall of Branch 8, this Court,
Bulwagan ng Katarungan, Dipolog City, on which date, time and place,
anyone appearing to contest the petition shall state in writing his
grounds there[for], serving a copy thereof to the petitioner and likewise
file copies with this Court on or before the said date of hearing.
Let this order be published at the expense of petitioner once a
week for three (3) consecutive weeks in a newspaper edited and
published in Dipolog City and of general circulation therein, the City of
Dapitan and the province of Zamboanga del Norte, and copies hereof be
furnished to the Office of the Solicitor General of (sic) 134 Amorsolo St.,
Legaspi Village, Makati, Metro Manila, the City Civil Registrar of Dipolog,
and posted on the bulletin boards of the City Hall of Dipolog, the
Provincial Capitol Building, and of this Court.
IT IS SO ORDERED.

The Office of the Solicitor General (OSG) entered its appearance for the Republic
of the Philippines and deputized the Office of the City Prosecutor to assist in the case only
on the very day of the hearing. This prompted the court to reset the hearing on September
5, 2005. On said day, there being no opposition, counsel for Mercadera moved for leave of
court to present evidence ex parte. Without any objection from the City Prosecutor, the trial
court designated the branch clerk of court to receive evidence for Mercadera.
On September 15, 2005, the testimony of Oga and several photocopies of
documents were formally offered and marked as evidence to prove that Mercadera never
used the name Marilyn in any of her public or private transactions. On September 26,
2005, the RTC issued an order [6] admitting Exhibits A to I[7] and their submarkings, as
relevant to the resolution of the case.
The following facts were gathered from documentary evidence and the oral
testimony of Oga, as reported by the lower court:
Petitioner Merlyn M. Mercadera was born on August 19,
1970 at Dipolog City. She is the daughter of spouses Tirso U. Mercadera
and Norma C. Lacquiao. The fact of her birth was reported to the Office of
the City Civil Registrar of Dipolog City onSeptember 8, 1970. It was
recorded on page 68, book no. 9, in the Registry of Births of said civil
registry. In the certification of birth dated May 9, 2005 issued by the
same registry, her given name appears as Marilyn and not Merlyn
(Exhibit C).

On September 29, 1979, petitioner was baptized according to

the rites and ceremonies of the United Church of Christ in
the Philippines. As reflected in her certificate of baptism issued by said
church, she was baptized by the name Merlyn L. Mercadera (Exhibit D).
In her elementary diploma issued by the Paaralang Sentral ng
Estaka, Dipolog City; her high school diploma issued by the Zamboanga
del Norte School of Arts and Trades, Dipolog City; and college diploma
issued by the Silliman University, Dumaguete City, where she earned the
degree of Bachelor of Secondary Education, uniformly show her name as
Merlyn L. Mercadera (Exhibits E, F, and G).
Presently,
she
is
working
in
U.P.
Mindanao,
Buhangin, Davao City. Her certificate of membership issued by the
Government Service Insurance System also bears his [sic] complete
name as Merlyn Lacquiao Mercadera (Exhibit H).
When she secured an authenticated copy of her certificate of
live birth from the National Statistics Office, she discovered that her
given name as registered is Marilyn and not Merlyn; hence, this petition.
In its September 28, 2005 Decision,[8] the RTC granted Mercaderas petition and
directed the Office of the City Civil Registrar of Dipolog City to correct her name appearing
in her certificate of live birth, Marilyn Lacquiao Mercadera, to MERLYN Lacquiao Mercadera.
Specifically, the dispositive portion of the RTC Decision reads:
WHEREFORE, the petition is GRANTED. Accordingly, the Office of
the City Civil Registrar of Dipolog City is hereby directed to correct the
given name of petitioner appearing in her certificate of live birth, from
Marilyn Lacquiao Mercadera to MERLYN Lacquiao Mercadera.
In a four-page decision, the RTC ruled that the documentary evidence presented by
Mercadera sufficiently supported the circumstances alleged in her petition. Considering
that she had used Merlyn as her given name since childhood until she discovered the
discrepancy in her Certificate of Live Birth, the RTC was convinced that the correction was
justified.
The OSG timely interposed an appeal praying for the reversal and setting aside of
the RTC decision. It mainly anchored its appeal on the availment of Mercadera of the
remedy and procedure under Rule 108. In its Brief[9] filed with the CA, the OSG argued that
the lower court erred (1) in granting the prayer for change of name in a petition for
correction of entries; and (2) in admitting the photocopies of documentary evidence and
hearsay testimony of Oga.
For the OSG, the correction in the spelling of Mercaderas given name might seem
innocuous enough to grant but it is in truth a material correction as it would modify or
increase substantive rights.[10] What the lower court actually allowed was a change of
Mercaderas given name, which would have been proper had she filed a petition under Rule
103 and proved any of the grounds therefor. The lower court, may not substitute one for
the other for purposes of expediency. [11] Further, because Mercadera failed to invoke a

specific ground recognized by the Rules, the lower courts order in effect allowed the change
of ones name in the civil registry without basis.
The CA was not persuaded. In its December 9, 2008 Decision, [12] the appellate
court affirmed the questioned RTC Order in CA-G.R. CV No. 00568-MIN. The CA assessed
the controversy in this wise:
Appellants insistence that the petition should have been filed
under Rule 103 and not Rule 108 of the Rules of Court is off the mark.
This Court does not entertain any doubt that the petition before the trial
court was one for the correction on an entry in petitioners Certificate of
Live Birth and not one in which she sought to change her name. In Co v.
Civil Register of Manila, G.R. No. 138496, February 23, 2004, the High
Court reiterated the distinction between the phrases to correct and to
change. Said the High Court:
To correct simply means "to make or set aright; to remove the
faults or error from." To change means "to replace something with
something else of the same kind or with something that serves as a
substitute. Article 412 of the New Civil Code does not qualify as to the
kind of entry to be changed or corrected or distinguished on the basis of
the effect that the correction or change may be. Such entries include not
only those clerical in nature but also substantial errors. After all, the role
of the Court under Rule 108 of the Rules of Court is to ascertain the
truths about the facts recorded therein.
That appellee sought to correct an entry and not to change her name is
patent to the Court from the allegations in her petition, specifically,
paragraphs 7 and 8 thereof
xxxx

Anent the RTCs error in admitting the photocopies of Mercaderas documentary

evidence and in vesting probative value to Ogas testimony, the CA cited the wellestablished rule that evidence not objected to may be admitted and may be validly
considered by the court in arriving at its judgment. [13]
On March 6, 2009, the OSG filed the present petition. On behalf of Mercadera, the
Public Attorneys Office (PAO) filed its Comment [14] on July 3, 2009. The OSG declined to file
a reply claiming that its petition already contained an exhaustive discussion on the
following assigned errors:[15]
I
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
GRANTING THE CHANGE IN RESPONDENTS NAME UNDER RULE
103.

II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN

CONSIDERING SECONDARY EVIDENCE.

Rule 103 procedurally governs judicial petitions for change of given name or
surname, or both, pursuant to Article 376 of the Civil Code. [16] This rule provides the
procedure for an independent special proceeding in court to establish the status of a
person involving his relations with others, that is, his legal position in, or with regard to, the
rest of the community. [17] In petitions for change of name, a person avails of a remedy to
alter the designation by which he is known and called in the community in which he lives
and is best known.[18] When granted, a persons identity and interactions are affected as he
bears a new label or appellation for the convenience of the world at large in addressing
him, or in speaking of, or dealing with him. [19] Judicial permission for a change of name aims
to prevent fraud and to ensure a record of the change by virtue of a court decree.
The proceeding under Rule 103 is also an action in rem which requires publication
of the order issued by the court to afford the State and all other interested parties to
oppose the petition. When complied with, the decision binds not only the parties impleaded
but the whole world. As notice to all, publication serves to indefinitely bar all who might
make an objection. It is the publication of such notice that brings in the whole world as a
party in the case and vests the court with jurisdiction to hear and decide it. [20]
Essentially, a change of name does not define or effect a change of ones existing
family relations or in the rights and duties flowing therefrom. It does not alter ones legal
capacity or civil status.[21] However, there could be instances where the change applied for
may be open to objection by parties who already bear the surname desired by the
applicant, not because he would thereby acquire certain family ties with them but because
the existence of such ties might be erroneously impressed on the public mind. [22] Hence, in
requests for a change of name, what is involved is not a mere matter of allowance or
disallowance of the request, but a judicious evaluation of the sufficiency and propriety of
the justifications advanced x x x mindful of the consequent results in the event of its grant
x x x.[23]
Rule 108, on the other hand, implements judicial proceedings for the correction or
cancellation of entries in the civil registry pursuant to Article 412 of the Civil Code.
[24]
Entries in the civil register refer to acts, events and judicial decrees concerning the civil
status of persons,[25] also as enumerated in Article 408 of the same law. [26] Before, only
mistakes or errors of a harmless and innocuous nature in the entries in the civil registry
may be corrected under Rule 108 and substantial errors affecting the civil status,
citizenship or nationality of a party are beyond the ambit of the rule. In the abandoned
case of Chua Wee v. Republic,[27] this Court declared that,
x x x if Rule 108 were to be extended beyond innocuous or
harmless changes or corrections of errors which are visible to the eye or
obvious to the understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy of paternity or
filiation, or legitimacy of marriage, said Rule 108 would thereby become
unconstitutional for it would be increasing or modifying substantive
rights, which changes are not authorized under Article 412 of the new
Civil Code."

In the latter case of Wong v. Republic,[28] however, Justice Vicente Abad Santos, in
a separate concurrence, opined that Article 412, which Rule 108 implements,
contemplates all kinds of issues and all types of procedures because the provision does not
say that it applies only to non-controversial issues and that the procedure to be used is
summary in nature. In Republic v. Judge De la Cruz,[29] the dissenting opinion penned by
Justice Pacifico De Castro echoed the same view:
It is not accurate to say that Rule 108 would be rendered
unconstitutional if it would allow the correction of more than mere
harmless clerical error, as it would thereby increase or modify
substantive rights which the Constitution expressly forbids because
Article 412 of the Civil Code, the substantive law sought to be
implemented by Rule 108, allows only the correction of innocuous clerical
errors not those affecting the status of persons. As was stressed in the
dissent on the aforesaid Wong Case, Article 412 does not limit in its
express terms nor by mere implication, the correction authorized by it to
that of mere clerical errors. x x x it would be reasonable and justified to
rule that Article 412 contemplates of correction of erroneous entry of
whatever nature, procedural safeguards having only to be provided for,
as was the manifest purpose of Rule 108.
x x x proceedings for the correction of erroneous entry should
not be considered as establishing one's status in a legal manner
conclusively beyond dispute or controversion, x x x the books making up
the civil register and all documents relating thereto x x x shall be prima
facie evidence of the facts therein contained. Hence, the status as
corrected would not have a superior quality for evidentiary purpose.
Moreover, the correction should not imply a change of status but a mere
rectification of error to make the matter corrected speak for the truth. x x
x
Finally in Republic v. Valencia,[30] the above stated views were adopted by this
Court insofar as even substantial errors or matters in a civil registry may be corrected and
the true facts established, provided the parties aggrieved avail themselves of the
appropriate adversary proceeding. If the purpose of the petition is merely to correct the
clerical errors which are visible to the eye or obvious to the understanding, the court may,
under a summary procedure, issue an order for the correction of a mistake. However, as
repeatedly construed, changes which may affect the civil status from legitimate to
illegitimate, as well as sex, are substantial and controversial alterations which can only be
allowed after appropriate adversary proceedingsdepending upon the nature of the issues
involved. Changes which affect the civil status or citizenship of a party are substantial in
character and should be threshed out in a proper action depending upon the nature of the
issues in controversy, and wherein all the parties who may be affected by the entries are
notified or represented and evidence is submitted to prove the allegations of the
complaint, and proof to the contrary admitted x x x. [31] Where such a change is ordered, the
Court will not be establishing a substantive right but only correcting or rectifying an
erroneous entry in the civil registry as authorized by law. In short, Rule 108 of the Rules of
Court provides only the procedure or mechanism for the proper enforcement of the
substantive law embodied in Article 412 of the Civil Code and so does not violate the
Constitution.[32]

In the case at bench, the OSG posits that the conversion from MARILYN to MERLYN
is not a correction of an innocuous error but a material correction tantamount to a change
of name which entails a modification or increase in substantive rights. For the OSG, this is a
substantial error that requires compliance with the procedure under Rule 103, and not Rule
108.
It appears from these arguments that there is, to some extent, confusion over the
scope and application of Rules 103 and Rule 108. Where a change of name will necessarily
be reflected by the corresponding correction in an entry, as in this case, the functions of
both rules are often muddled. While there is no clear-cut rule to categorize petitions under
either rule, this Court is of the opinion that a resort to the basic distinctions between the
two rules with respect to alterations in a persons registered name can effectively clear the
seeming perplexity of the issue. Further, a careful evaluation of circumstances alleged in
the petition itself will serve as a constructive guide to determine the propriety of the relief
prayed for.
The change of name contemplated under Article 376 and Rule 103 must not be
confused with Article 412 and Rule 108. A change of ones name under Rule 103 can be
granted, only on grounds provided by law. In order to justify a request for change of name,
there must be a proper and compelling reason for the change and proof that the person
requesting will be prejudiced by the use of his official name. To assess the sufficiency of the
grounds invoked therefor, there must be adversarial proceedings. [33]
In petitions for correction, only clerical, spelling, typographical and other
innocuous errors in the civil registry may be raised. Considering that the enumeration
in Section 2, Rule 108[34] also includes changes of name, the correction of a
patentlymisspelled name is covered by Rule 108. Suffice it to say, not all alterations
allowed in ones name are confined under Rule 103. Corrections for clerical errors may be
set right under Rule 108.
This rule in names, however, does not operate to entirely limit Rule 108 to the
correction of clerical errors in civil registry entries by way of a summary proceeding. As
explained above, Republic v. Valencia is the authority for allowing substantial errors in
other entries like citizenship, civil status, and paternity, to be corrected using Rule 108
provided there is an adversary proceeding. After all, the role of the Court under Rule 108 is
to ascertain the truths about the facts recorded therein.[35]
A serious scrutiny of this petition reveals a glaring lack of support to the OSGs
assumption that Mercadera intended to change her name under Rule 103. All that the
petition propounded are swift arguments on the alleged procedural flaws of Mercaderas
petition before the RTC. In the same vein, no concrete contention was brought up to
convince this Court that the dangers sought to be prevented by the adversarial
proceedings prescribed in Rule 103 are attendant in this case. Instead, the RTC found the
documents presented by Mercadera to have satisfactorily shown that she had been known
as MERLYN ever since, discounting the possibility that confusion, or a modification of
substantive rights might arise. Truth be told, not a single oppositor appeared to contest the
petition despite full compliance with the publication requirement.

Thus, the petition filed by Mercadera before the RTC correctly falls under Rule 108
as it simply sought a correction of a misspelled given name. To correct simply means to
make or set aright; to remove the faults or error from. To change means to replace
something with something else of the same kind or with something that serves as a
substitute.[36] From the allegations in her petition, Mercadera clearly prayed for the lower
court to remove the faults or error from her registered given name MARILYN, and to make
or set aright the same to conform to the one she grew up to, MERLYN. It does not take a
complex assessment of said petition to learn of its intention to simply correct the clerical
error in spelling. Mercadera even attempted to avail of the remedy allowed by R.A. No.
9048 but she unfortunately failed to enjoy the expediency which the law provides and was
constrained to take court action to obtain relief. Thus, the petition was clear in stating:
7. That as such, there is a need to correct her given
name as appearing in her Certificate of Live Birth from MARILYN to
MERLYN to conform to her true and correct given name that she
had been using and had been known within the community x x x.
8. That herein petitioner went to the Office of the Local Civil
Registrar of Dipolog City and requested them to effect such
correction in her Certificate of Live Birth, however, the Local Civil
Registrar of Dipolog City will not effect such correction unless an order
is obtained by herein petitioner from this Honorable Court because the
Local Civil Registrar therein is not yet equipped with permanent
appointment before he can validly act on petitions for
corrections filed before their office as mandated by Republic Act
9048, hence the filing of this petition. [Emphases supplied]

Indeed, there are decided cases involving mistakes similar to Mercaderas case
which recognize the same a harmless error. In Yu v. Republic[37] it was held that to change
Sincio to Sencio which merely involves the substitution of the first vowel i in the first name
into the vowel e amounts merely to the righting of a clerical error. In Labayo-Rowe
v. Republic,[38] it was held that the change of petitioners name from Beatriz Labayo/Beatriz
Labayu to Emperatriz Labayo was a mere innocuous alteration wherein a summary
proceeding was appropriate. In Republic v. Court of Appeals, Jaime B. Caranto and Zenaida
P. Caranto, the correction involved the substitution of the letters ch for the letter d, so that
what appears as Midael as given name would read Michael. In the latter case, this Court,
with the agreement of the Solicitor General, ruled that the error was plainly clerical, such
that, changing the name of the child from Midael C. Mazon to Michael C. Mazon cannot
possibly cause any confusion, because both names can be read and pronounced with the
same rhyme (tugma) and tone (tono, tunog, himig).[39]
In this case, the use of the letter a for the letter e, and the deletion of the letter i,
so that what appears as Marilyn would read as Merlyn is patently a rectification of a name
that is clearly misspelled. The similarity between Marilyn and Merlyn may well be the
object of a mix- up that blemished Mercaderas Certificate of Live Birth until her adulthood,
thus, her interest to correct the same.

The CA did not allow Mercadera the change of her name. What it did allow was the
correction of her misspelled given name which she had been using ever since she could
remember.
It is worthy to note that the OSGs reliance on Republic vs. Hernandez[40] is
flawed. In that case, this Court said that a change in a given name is a substantial matter
and that it cannot be granted by means of any other proceeding that would in effect render
it a mere incident or an offshoot of another special proceeding. While this Court stands true
to the ruling in Hernandez, the said pronouncement therein was stated in a different tenor
and, thus, inapplicable to this case. Hernandez was decided against an entirely different
factual milieu. There was a petition for adoption that must not have led to a corresponding
change in the adoptees given name because it would be procedurally erroneous to employ
a petition for adoption to effect a change of name in the absence of a corresponding
petition for the latter relief at law. In the present case, the issue is the applicability of either
Rule 103 or Rule 108 and the relief sought by Mercadera can in fact be granted under the
latter. This Court finds no attempt on the part of Mercadera to render the requirements
under Rule 103 illusory as in Hernandez.

REPUBLIC V. KHO
DECISION
CARPIO MORALES, J.:

Besides, granting that Rule 103 applies to this case and that compliance with the
procedural requirements under Rule 108 falls short of what is mandated, it still cannot be
denied that Mercadera complied with the requirement for an adversarial proceeding before
the lower court. The publication and posting of the notice of hearing in a newspaper of
general circulation and the notices sent to the OSG and the Local Civil Registry are
sufficient indicia of an adverse proceeding. The fact that no one opposed the petition,
including the OSG, did not deprive the court of its jurisdiction to hear the same and did not
make the proceeding less adversarial in nature. Considering that the OSG did not oppose
the petition and the motion to present its evidence ex parte when it had the opportunity to
do so, it cannot now complain that the proceedings in the lower court were procedurally
defective. Indeed, it has become unnecessary to further discuss the reasons why the CA
correctly affirmed the findings of the lower court especially in admitting and according
probative value to the evidence presented by Mercadera.
WHEREFORE, the December 9, 2008 Decision of the Court of Appeals in CA-G.R.
CV No. 00568-MIN is AFFIRMED.
SO ORDERED.

Challenged via petition for review on certiorari is the October 27, 2005 Decision[1] of the
Court of Appeals (CA) in CA-G.R. CV No. 78124 which affirmed the September 4, 2002
Decision[2] of the Regional Trial Court (RTC) of Butuan City, Branch 5 granting the prayer of
respondents Carlito I. Kho (Carlito), Michael Kho, Mercy Nona Kho-Fortun, and Heddy Moira
Kho-Serrano for the correction of entries in their birth certificates as well as those of
Carlitos minor children Kevin and Kelly Dogmoc Kho.
The undisputed facts are as follows:
On February 12, 2001, Carlito and his siblings Michael, Mercy Nona and Heddy Moira filed
before the RTC of Butuan City a verified petition for correction of entries in the civil registry
of Butuan City to effect changes in their respective birth certificates. Carlito also asked the
court in behalf of his minor children, Kevin and Kelly, to order the correction of some
entries in their birth certificates.
In the case of Carlito, he requested the correction in his birth certificate of the citizenship of
his mother to Filipino instead of Chinese, as well as the deletion of the word married
opposite the phrase Date of marriage of parents because his parents, Juan Kho and
Epifania Inchoco (Epifania), were allegedly not legally married.
The same request to delete the married status of their parents from their
respective birth certificates was made by Carlitos siblings Michael, Mercy Nona, and Heddy
Moira.
With respect to the birth certificates of Carlitos children, he prayed that the date of his and
his wifes marriage be corrected from April 27, 1989 to January 21, 2000, the date
appearing in their marriage certificate.

The Local Civil Registrar of Butuan City was impleaded as respondent.

On April 23, 2001, Carlito et al. filed an Amended Petition [3] in which it was additionally
prayed that Carlitos second name of John be deleted from his record of birth; and that the
name and citizenship of Carlitos father in his (Carlitos) marriage certificate be corrected
from John Kho to Juan Kho and Filipino to Chinese, respectively.
As required, the petition was published for three consecutive weeks [4] in Mindanao
Daily Patrol-CARAGA, a newspaper of general circulation, after which it was set for hearing
on August 9, 2001.
In a letter of June 18, 2001 addressed to the trial court, the city civil
registrar[5] stated her observations and suggestions to the proposed corrections in the birth
records of Carlito and his siblings but interposed no objections to the other amendments.
On the scheduled hearing of the petition on August 9, 2001, only the counsel for
respondents appeared as the Office of the Solicitor General (OSG) had yet to enter its
appearance for the city civil registrar. The trial court thus reset the hearing toOctober 9,
2001.[6] On September 14, 2001,[7] the OSG entered its appearance with an authorization to
the city prosecutor of Butuan City to appear in the case and render assistance to it (the
OSG).
On January 31, 2002, respondents presented documentary evidence showing
compliance with the jurisdictional requirements of the petition. They also presented
testimonial evidence consisting of the testimonies of Carlito and his mother, Epifania.
During the same hearing, an additional correction in the birth certificates of Carlitos
children was requested to the effect that the first name of their mother be rectified from
Maribel to Marivel.
By Decision[8] of September 4, 2002, the trial court directed the local civil registrar
of Butuan City to correct the entries in the record of birth of Carlito, as follows: (1) change
the citizenship of his mother from Chinese to Filipino; (2) delete John from his name; and
(3) delete the word married opposite the date of marriage of his parents. The last
correction was ordered to be effected likewise in the birth certificates of respondents
Michael, Mercy Nona, and Heddy Moira.
Additionally, the trial court ordered the correction of the birth certificates of the
minor children of Carlito to reflect the date of marriage of Carlito and Marivel Dogmoc
(Marivel) as January 21, 2000, instead of April 27, 1989, and the name Maribel as Marivel.
With respect to the marriage certificate of Carlito and Marivel, the corrections
ordered pertained to the alteration of the name of Carlitos father from John Kho to Juan Kho
and the latters citizenship from Filipino to Chinese.
Petitioner, Republic of the Philippines, appealed the RTC Decision to the CA,
faulting the trial court in granting the petition for correction of entries in the subject
documents despite the failure of respondents to implead the minors mother, Marivel, as an
indispensable party and to offer sufficient evidence to warrant the corrections with regard

to the questioned married status of Carlito and his siblings parents, and the latters
citizenship.
Petitioner also faulted the trial court for ordering the change of the name Carlito
John Kho to Carlito Kho for non-compliance with jurisdictional requirements for a change of
name under Rule 103 of the Rules of Court.
By the assailed Decision of October 27, 2005, the CA denied petitioners appeal
and affirmed the decision of the trial court.
The CA found that Rule 108 of the Revised Rules of Court, which outlines the
proper procedure for cancellation or correction of entries in the civil registry, was observed
in the case.
Regarding Carlitos minor children Kevin and Kelly, the appellate court held that
the correction of their mothers first name from Maribel to Marivel was made to rectify an
innocuous error.
As for the change in the date of the marriage of Carlito and Marivel, albeit the CA
conceded that it is a substantial alteration, it held that the date would not affect the minors
filiation from legitimate to illegitimate considering that at the time of their respective births
in 1991 and 1993, their father Carlitos first marriage was still subsisting as it had been
annulled only in 1999.
In light of Carlitos legal impediment to marry Marivel at the time they were born,
their children Kevin and Kelly were illegitimate. It followed, the CA went on to state, that
Marivel was not an indispensable party to the case, the minors having been represented by
their father as required under Section 5 of Rule 3[9] of the Revised Rules of Court.
Further, the CA ruled that although Carlito failed to observe the requirements of
Rule 103 of the Rules of Court, he had complied nonetheless with the jurisdictional
requirements for correction of entries in the civil registry under Rule 108 of the Rules of
Court. The petition for correction of entry in Carlitos birth record, it noted, falls under letter
o of the enumeration under Section 2 of Rule 108.
In the present petition, petitioner contends that since the changes sought by
respondents were substantial in nature, they could only be granted through an adversarial
proceeding in which indispensable parties, such as Marivel and respondents parents,
should have been notified or impleaded.
Petitioner further contends that the jurisdictional requirements to change Carlitos
name under Section 2 of Rule 103 of the Rules of Court were not satisfied because the
Amended Petition failed to allege Carlitos prior three-year bona fide residence
in Butuan City, and that the title of the petition did not state Carlitos aliases and his true
name as Carlito John I. Kho. Petitioner concludes that the same jurisdictional defects
attached to the change of name of Carlitos father.
The petition fails.

It can not be gainsaid that the petition, insofar as it sought to change the
citizenship of Carlitos mother as it appeared in his birth certificate and delete the married
status of Carlitos parents in his and his siblings respective birth certificates, as well as
change the date of marriage of Carlito and Marivel involves the correction of not just
clerical errors of a harmless and innocuous nature. [10] Rather, the changes entail substantial
and controversial amendments.
For the change involving the nationality of Carlitos mother as reflected in his birth
certificate is a grave and important matter that has a bearing and effect on the citizenship
and nationality not only of the parents, but also of the offspring.[11]
Further, the deletion of the entry that Carlitos and his siblings parents were
married alters their filiation from legitimate to illegitimate, with significant implications on
their successional and other rights.
Clearly, the changes sought can only be granted
proceeding. Labayo-Rowe v. Republic[12] explains the raison d etre:

in

an

adversary

x x x. The philosophy behind this requirement lies in the fact that the
books making up the civil register and all documents relating thereto
shall be prima facie evidence of the facts therein contained. If the
entries in the civil register could be corrected or changed
through mere summary proceedings and not through appropriate
action wherein all parties who may be affected by the entries are
notified or represented, the door to fraud or other mischief
would be set open, the consequence of which might be
detrimental and far reaching. x x x (Emphasis supplied)

In Republic v. Valencia,[13] however, this Court ruled, and has since repeatedly
ruled, that even substantial errors in a civil registry may be corrected through a petition
filed under Rule 108.[14]
It is undoubtedly true that if the subject matter of a petition is
not for the correction of clerical errors of a harmless and innocuous
nature, but one involving nationality or citizenship, which is indisputably
substantial as well as controverted, affirmative relief cannot be granted
in a proceeding summary in nature. However, it is also true that a
right in law may be enforced and a wrong may be remedied as
long as the appropriate remedy is used. This Court adheres to
the principle that even substantial errors in a civil registry may
be corrected and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate
adversary proceeding.
xxxx
What is meant by appropriate adversary proceeding? Blacks Law
Dictionary defines adversary proceeding[] as follows:

One having opposing parties; contested, as distinguished from

an ex parte application, one of which the party seeking relief has given
legal warning to the other party, and afforded the latter an opportunity to
contest it. x x x [15] (Emphasis, italics and underscoring supplied)

The enactment in March 2001 of Republic Act No. 9048, otherwise known as AN ACT
AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO
CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST
NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF JUDICIAL ORDER, has been
considered to lend legislative affirmation to the judicial precedence that substantial
corrections to the civil status of persons recorded in the civil registry may be effected
through the filing of a petition under Rule 108.[16]
Thus, this Court in Republic v. Benemerito[17] observed that the obvious effect of
Republic Act No. 9048 is to make possible the administrative correction of clerical or
typographical errors or change of first name or nickname in entries in the civil register,
leaving to Rule 108 the correction of substantial changes in the civil registry in appropriate
adversarial proceedings.
When all the procedural requirements under Rule 108 are thus followed, the
appropriate adversary proceeding necessary to effect substantial corrections to the entries
of the civil register is satisfied.[18] The pertinent provisions of Rule 108 of the Rules of Court
read:
SEC. 3. Parties. When cancellation or correction of an entry in
the civil registrar is sought, the civil registrar and all persons who have
or claim any interest which would be affected thereby shall be
made parties to the proceeding.
SEC. 4. Notice and publication. Upon the filing of the petition,
the court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be
published once in a week for three (3) consecutive weeks in a newspaper
of general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person
having or claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of the
petition, or from the last date of publication of such notice, file his
opposition thereto. (Emphasis and underscoring supplied)

There is no dispute that the trial courts Order [19] setting the petition for hearing
and directing any person or entity having interest in the petition to oppose it was
posted[20] as well as published for the required period; that notices of hearings were duly
served on the Solicitor General, the city prosecutor of Butuan and the local civil
registrar; and that trial was conducted on January 31, 2002 during which the public
prosecutor, acting in behalf of the OSG, actively participated by cross-examining Carlito
and Epifania.

notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort
against the right sought to be established. It is the publication of such
notice that brings in the whole world as a party in the case and vests the
court with jurisdiction to hear and decide it.[22]

What surfaces as an issue is whether the failure to implead Marivel and Carlitos
parents rendered the trial short of the required adversary proceeding and the trial courts
judgment void.
A similar issue was earlier raised in Barco v. Court of Appeals. [21] That case
stemmed from a petition for correction of entries in the birth certificate of a minor, June
Salvacion Maravilla, to reflect the name of her real father (Armando Gustilo) and to
correspondingly change her surname. The petition was granted by the trial court.
Barco, whose minor daughter was allegedly fathered also by Gustilo, however,
sought to annul the trial courts decision, claiming that she should have been made a party
to the petition for correction. Failure to implead her deprived the RTC of jurisdiction, she
contended.
In dismissing Barcos petition, this Court held that the publication of the order of
hearing under Section 4 of Rule 108 cured the failure to implead an indispensable party.
The essential requisite for allowing substantial corrections of
entries in the civil registry is that the true facts be established in an
appropriate adversarial proceeding. This is embodied in Section 3, Rule
108 of the Rules of Court, which states:
Section 3. Parties. When cancellation or correction of an entry in
the civil register is sought, the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made parties
to the proceeding.
xxxx
Undoubtedly, Barco is among the parties referred to in Section 3
of Rule 108. Her interest was affected by the petition for correction, as
any judicial determination that June was the daughter of Armando would
affect her wards share in the estate of her father. x x x.
Yet, even though Barco was not impleaded in the petition, the
Court of Appeals correctly pointed out that the defect was cured by
compliance with Section 4, Rule 108, which requires notice by publication
x x x.
xxxx
The purpose precisely of Section 4, Rule 108 is to bind the whole
world to the subsequent judgment on the petition. The sweep of the
decision would cover even parties who should have been impleaded
under Section 3, Rule 108, but were inadvertently left out. x x x
xxxx
Verily, a petition for correction is an action in rem, an action
against a thing and not against a person. The decision on the petition
binds not only the parties thereto but the whole world. An in
rem proceeding is validated essentially through publication. Publication is

Given the above ruling, it becomes unnecessary to rule on whether Marivel or respondents
parents should have been impleaded as parties to the proceeding. It may not be amiss to
mention, however, that during the hearing on January 31, 2002, the city prosecutor who
was acting as representative of the OSG did not raise any objection to the non-inclusion of
Marivel and Carlitos parents as parties to the proceeding.
Parenthetically, it seems highly improbable that Marivel was unaware of the
proceedings to correct the entries in her childrens birth certificates, especially since the
notices, orders and decision of the trial court were all sent to the residence [23]she shared
with Carlito and the children.
It is also well to remember that the role of the court in hearing a petition to correct
certain entries in the civil registry is to ascertain the truth about the facts recorded therein.
[24]

With respect to the date of marriage of Carlito and Marivel, their certificate of
marriage[25] shows that indeed they were married on January 21, 2000, not on April 27,
1989. Explaining the error, Carlito declared that the date April 27, 1989 was supplied by his
helper, adding that he was not married to Marivel at the time his sons were born because
his previous marriage was annulled only in 1999. [26] Given the evidence presented by
respondents, the CA observed that the minors were illegitimate at birth, hence, the
correction would bring about no change at all in the nature of their filiation.
With respect to Carlitos mother, it bears noting that she declared at the witness
stand that she was not married to Juan Kho who died in 1959. [27] Again, that testimony was
not challenged by the city prosecutor.
The documentary evidence supporting the deletion from Carlitos and his siblings
birth certificates of the entry Married opposite the date of marriage of their parents,
moreover, consisted of a certification issued on November 24, 1973 by St. Joseph (Butuan
City) Parish priest Eugene van Vught stating that Juan Kho and Epifania had been living
together as common law couple since 1935 but have never contracted marriage legally. [28]
A certification from the office of the city registrar, which was appended to
respondents Amended Petition, likewise stated that it has no record of marriage between
Juan Kho and Epifania.[29] Under the circumstances, the deletion of the word Married
opposite the date of marriage of parents is warranted.
With respect to the correction in Carlitos birth certificate of his name from Carlito
John to Carlito, the same was properly granted under Rule 108 of the Rules of Court. As
correctly pointed out by the CA, the cancellation or correction of entries involving changes
of name falls under letter o of the following provision of Section 2 of Rule 108: [30]

SO ORDERED.
Section 2. Entries subject to cancellation or correction. Upon
good and valid grounds, the following entries in the civil register may be
cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal
separation; (e) judgments of annulment of marriage; (f) judgments
declaring marriages void from the beginning; (g) legitimations; (h)
adoptions; (i) acknowledgments of natural children; (j) naturalization; (k)
election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of a minor; and
(o) changes of name. (Emphasis and underscoring supplied)

Hence, while the jurisdictional requirements of Rule 103 (which governs petitions
for change of name) were not complied with, observance of the provisions of Rule 108
suffices to effect the correction sought for.
More
importantly,
Carlitos
official
transcript
of
record
from
the Urious College in Butuan City,[31] certificate of eligibility from the Civil Service
Commission,[32] and voter registration record[33] satisfactorily show that he has been known
by his first name only. No prejudice is thus likely to arise from the dropping of the second
name.
The correction of the mothers citizenship from Chinese to Filipino as appearing in
Carlitos birth record was also proper. Of note is the fact that during the cross examination
by the city prosecutor of Epifania, he did not deem fit to question her citizenship. Such
failure to oppose the correction prayed for, which certainly was not respondents fault, does
not in any way change the adversarial nature of the proceedings.
Also significant to note is that the birth certificates of Carlitos siblings uniformly
stated the citizenship of Epifania as Filipino. To disallow the correction in Carlitos birth
record of his mothers citizenship would perpetuate an inconsistency in the natal
circumstances of the siblings who are unquestionably born of the same mother and father.
Outside the ambit of substantial corrections, of course, is the correction of the
name of Carlitos wife from Maribel to Marivel. The mistake is clearly clerical or
typographical, which is not only visible to the eyes, but is also obvious to the
understanding[34] considering that the name reflected in the marriage certificate of Carlito
and his wife is Marivel.
Apropos is Yu v. Republic[35] which held that changing the appellants Christian
name of Sincio to Sencio amounts merely to the righting of a clerical error. The change of
name from Beatriz Labayo/Beatriz Labayu to Emperatriz Labayo was also held to be a mere
innocuous alteration, which can be granted through a summary proceeding. [36] The same
ruling holds true with respect to the correction in Carlitos marriage certificate of his fathers
name from John Kho to Juan Kho. Except in said marriage certificate, the name Juan Kho
was uniformly entered in the birth certificates of Carlito and of his siblings.[37]
WHEREFORE, the Petition is DENIED. The Decision of the Court of Appeals is
AFFIRMED.

4.

The minor was left under the care of [respondent] since he was yet
nine (9) years old up to the present;

5.

Minor GIOVANNI N. GALLAMASO is the illegitimate natural child of

Corazon P. Nadores and Diosdado Gallamaso. [He] was born on July 9,
1982 [,] prior to the effectivity of the New Family Code and as such, his
mother used the surname of the natural father despite the absence of
marriage between them; and [Giovanni] has been known by that name
since birth [as per his birth certificate registered at the Local Civil
Register of San Juan, Southern Leyte];

6.

The father, Diosdado

and up to the present,
matters of financial,
[Giovannis pleas] for
xxx xxxxxx;

7.

[Giovanni] is now fully aware of how he stands with his father and he
desires to have his surname changed to that of his mothers surname;
[Giovannis] mother might eventually petition [him] to join her in the
United States and [his] continued use of the surname Gallamaso, the
surname of his natural father, may complicate [his] status as natural
child; and

8.
REPUBLIC V. CAPOTE
CORONA, J.:

Gallamaso, from the time [Giovanni] was born

failed to take up his responsibilities [to him] on
physical, emotional and spiritual concerns.
attention along that line [fell] on deaf ears

This petition for review on certiorari[1] seeks to set aside the Court of Appeals (CA)
decision[2] dated January 13, 2003 in CA-G.R. CV No. 66128, which affirmed the decision of

9.

the Regional Trial Court (RTC), Branch 23 of San Juan, Southern Leytedated September 14,

The change of name [from] GIOVANNI N. GALLAMASO to GIOVANNI

NADORES will be for the benefit of the minor.
xxx xxx xxx[4]

1999 granting a petition for change of name.

Respondent Trinidad R. A. Capote filed a petition for change of name of her ward
from Giovanni

N. Gallamaso to Giovanni Nadores on

September

9,

1998. In

Proceeding No. R-481,[3] Capote as Giovannis guardian ad litem averred:

xxx xxx xxx
1.

2.

3.

[Respondent] is a Filipino citizen, of legal age, married, while minor

GIOVANNI N. GALLAMASO, is also a Filipino citizen, sixteen (16) years old
and both are residents of San Juan, Southern Leyte where they can be
served with summons and other court processes;
[Respondent] was appointed guardian [ad litem] of minor Giovanni
N. Gallamaso by virtue of a court order in Special [Proc.] No. R-459, dated
[August 18, 1998] xxx xxx authorizing her to file in court a petition for
change of name of said minor in accordance with the desire of his mother
[who is residing and working abroad];
Both [respondent] and minor have permanently resided in San Juan,
Southern Leyte, Philippines for more than fifteen (15) years prior to the
filing of this instant petition, the former since 1970 while the latter since
his birth [in 1982];

Special

Respondent prayed for an order directing the local civil registrar to effect the change of
name on Giovannis birth certificate. Having found respondents petition sufficient in form
and substance, the trial court gave due course to the petition. [5]Publication of the petition in
a newspaper of general circulation in the province of Southern Leyte once a week for three
consecutive weeks was likewise ordered. [6] The trial court also directed that the local civil
registrar be notified and that the Office of the Solicitor General (OSG) be sent a copy of the
petition and order.[7]
Since there was no opposition to the petition, respondent moved for leave of court to
present her evidence ex parte before a court-appointed commissioner. The OSG, acting
through the Provincial Prosecutor, did not object; hence, the lower court granted the
motion.
After the reception of evidence, the trial court rendered a decision ordering the change of
name from Giovanni N. Gallamaso to Giovanni Nadores.[8]

From this decision, petitioner Republic of the Philippines, through the OSG, filed an appeal
with a lone assignment of error: the court a quo erred in granting the petition in a summary
proceeding.

When Giovanni was born in 1982 (prior to the enactment and effectivity of the Family Code
of the Philippines),[19] the pertinent provision of the Civil Code then as regards his use of a
surname, read:

affirmed the RTC decision ordering the change of name. [9]

Art. 366. A natural child acknowledged by both parents shall principally

use the surname of the father. If recognized by only one of the parents, a
natural child shall employ the surname of the recognizing parent.
(emphasis ours)

In this petition, the Republic contends that the CA erred in affirming the trial courts

Based on this provision, Giovanni should have carried his mothers surname from

decision which granted the petition for change of name despite the non-joinder of

birth. The records do not reveal any act or intention on the part of Giovannis putative

indispensable parties.[10] Petitioner cites Republic of the Philippines v. Labrador[11]and claims

father to actually recognize him. Meanwhile, according to the Family Code which repealed,

that the purported parents and all other persons who may be adversely affected by the

among others, Article 366 of the Civil Code:

Ruling that the proceedings were sufficiently adversarial in nature as required, the CA

childs change of name should have been made respondents to make the proceeding
adversarial.[12]
We deny the petition.

Our ruling in the recent case of In Re: Petition for Change of Name and/or

The subject of rights must have a fixed symbol for individualization which serves to
distinguish him from all others; this symbol is his name.

Art. 176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled to
support in conformity with this Code. xxx xxx xxx (emphasis ours)

[13]

Understandably, therefore, no

person can change his name or surname without judicial authority.

[14]

This is a reasonable

requirement for those seeking such change because a persons name necessarily affects his
identity, interests and interactions. The State must be involved in the process and decision
to change the name of any of its citizens.
The Rules of Court provides the requirements and procedure for change of name. Here, the
appropriate remedy is covered by Rule 103, [15] a separate and distinct proceeding from Rule
108 on mere cancellation and correction of entries in the civil registry (usually dealing only
with innocuous or clerical errors thereon).[16]
The issue of non-joinder of alleged indispensable parties in the action before the court a
quo is intertwined with the nature of the proceedings there. The point is whether the
proceedings were sufficiently adversarial.

Correction/Cancellation of Entry in Civil Registry of Julian Lin Carulasan Wang[20] is

enlightening:
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father. The Family Code
gives legitimate children the right to bear the surnames of the father and
the mother, while illegitimate children shall use the surname of their
mother, unless their father recognizes their filiation, in which case they
may bear the fathers surname.
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mother
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as
such. It is only when the illegitimate child is legitimated by the
subsequent marriage of his parents or acknowledged by the father in a
public document or private handwritten instrument that he bears both his
mothers surname as his middle name and his fathers surname as his
surname, reflecting his status as a legitimated child or an acknowledged
child.[21]

Summary proceedings do not extensively address the issues of a case since the

The foregoing discussion establishes the significant connection of a persons name

reason for their conduct is expediency. This, according to petitioner, is not sufficient to deal

to his identity, his status in relation to his parents and his successional rights as a

with substantial or contentious issues allegedly resulting from a change of name, meaning,

legitimate or illegitimate child. For sure, these matters should not be taken lightly as to

legitimacy as well as successional rights.[17] Such issues are ventilated only in adversarial

deprive those who may, in any way, be affected by the right to present evidence in favor of

proceedings wherein all interested parties are impleaded and due process is observed.

[18]

or against such change.

The law and facts obtaining here favor Giovannis petition. Giovanni availed of the proper
remedy, a petition for change of name under Rule 103 of the Rules of Court, and complied
with all the procedural requirements. After hearing, the trial court found (and the appellate
court affirmed) that the evidence presented during the hearing of Giovannis petition
sufficiently established that, under Art. 176 of the Civil Code, Giovanni is entitled to change
his name as he was never recognized by his father while his mother has always recognized
him as her child. A change of name will erase the impression that he was ever recognized
by his father. It is also to his best interest as it will facilitate his mothers intended petition
to have him join her in the United States. This Court will not stand in the way of the
reunification of mother and son.
Moreover, it is noteworthy that the cases cited by petitioner

A proceeding is adversarial where the party seeking relief has given legal warning
to the other party and afforded the latter an opportunity to contest it. [24] Respondent gave
notice of the petition through publication as required by the rules. [25]With this, all interested
parties were deemed notified and the whole world considered bound by the judgment
therein. In addition, the trial court gave due notice to the OSG by serving a copy of the
petition on it. Thus, all the requirements to make a proceeding adversarial were satisfied
when all interested parties, including petitioner as represented by the OSG, were afforded
the opportunity to contest the petition.
WHEREFORE, the petition is hereby DENIED and the January 13, 2003 decision

[22]

in support of its position

deal with cancellation or correction of entries in the civil registry, a proceeding separate
and distinct from the special proceedings for change of name. Those cases deal with the
application and interpretation of Rule 108 of the Rules of Court while this case was
correctly filed under Rule 103. Thus, the cases cited by petitioner are irrelevant and have
no bearing on respondents case. While the OSG is correct in its stance that the proceedings
for change of name should be adversarial, the OSG cannot void the proceedings in the trial
court on account of its own failure to participate therein. As the CA correctly ruled:
The OSG is correct in stating that a petition for change of name
must be heard in an adversarial proceeding. Unlike petitions for the
cancellation or correction of clerical errors in entries in the civil registry
under Rule 108 of the Rules of Court, a petition for change of name under
Rule 103 cannot be decided through a summary proceeding. There is no
doubt that this petition does not fall under Rule 108 for it is not alleged
that the entry in the civil registry suffers from clerical or typographical
errors. The relief sought clearly goes beyond correcting erroneous entries
in the civil registry, although by granting the petition, the result is the
same in that a corresponding change in the entry is also required to
reflect the change in name. In this regard, [appellee] Capote
complied with the requirement for an adversarial proceeding by
posting in a newspaper of general circulation notice of the filing
of the petition. The lower court also furnished the OSG a copy
thereof. Despite the notice, no one came forward to oppose the
petition including the OSG. The fact that no one opposed the
petition did not deprive the court of its jurisdiction to hear the
same nor does it make the proceeding less adversarial in
nature. The lower court is still expected to exercise its judgment to
determine whether the petition is meritorious or not and not merely
accept as true the arguments propounded. Considering that the OSG
neither opposed the petition nor the motion to present its
evidence ex parte when it had the opportunity to do so, it cannot now
complain that the proceedings in the lower court were not adversarial
enough.[23] (emphasis supplied)

of the Court of Appeals in CA-G.R. CV No. 66128 AFFIRMED.

G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created them
male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard voices
coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!,"
the voices said. She pecked the reed once, then twice. All of a sudden, the
bamboo cracked and slit open. Out came two human beings; one was a male and
the other was a female. Amihan named the man "Malakas" (Strong) and the
woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does the law
recognize the changes made by a physician using scalpel, drugs and counseling with
regard to a persons sex? May a person successfully petition for a change of name and sex
appearing in the birth certificate to reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the
change of his first name and sex in his birth certificate in the Regional Trial Court of Manila,
Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of
Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to the spouses
Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered
as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex
was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically male but feels,
thinks and acts as a female" and that he had always identified himself with girls since
childhood.1 Feeling trapped in a mans body, he consulted several doctors in the United
States. He underwent psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman" culminated on January 27,

2001 when he underwent sex reassignment surgery 2 in Bangkok, Thailand. He was

thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon
in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact
undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be married. He then
sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely,"
and his sex from "male" to "female."
An order setting the case for initial hearing was published in the Peoples Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks. 3 Copies of
the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of
Manila.
On the scheduled initial hearing, jurisdictional requirements were established. No
opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his
American fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner. Its relevant
portions read:
Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of making
his birth records compatible with his present sex.

Finally, no evidence was presented to show any cause or ground to deny the
present petition despite due notice and publication thereof. Even the State,
through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering
the Civil Registrar of Manila to change the entries appearing in the Certificate of
Birth of [p]etitioner, specifically for petitioners first name from "Rommel Jacinto"
to MELY and petitioners gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a
petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the
change of entries in the birth certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It
ruled that the trial courts decision lacked legal basis. There is no law allowing the change
of either name or sex in the certificate of birth on the ground of sex reassignment through
surgery. Thus, the Court of Appeals granted the Republics petition, set aside the decision
of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his birth certificate is
allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court
and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment

The sole issue here is whether or not petitioner is entitled to the relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more in
consonance with the principles of justice and equity. With his sexual [reassignment], petitioner, who has always felt, thought and acted like a woman,
now possesses the physique of a female. Petitioners misfortune to be trapped in a
mans body is not his own doing and should not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to
anybody or the community in granting the petition. On the contrary, granting the
petition would bring the much-awaited happiness on the part of the petitioner and
her [fianc] and the realization of their dreams.

Petitioner invoked his sex reassignment as the ground for his petition for change of name
and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or any
infraction thereof or for any unlawful motive but solely for the purpose of
making his birth records compatible with his present sex. (emphasis
supplied)
Petitioner believes that after having acquired the physical features of a female, he became
entitled to the civil registry changes sought. We disagree.
The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name
are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular,
Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change of
First Name or Nickname. No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors and
change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with the
provisions of this Act and its implementing rules and regulations.
RA 9048 now governs the change of first name. 14 It vests the power and authority to
entertain petitions for change of first name to the city or municipal civil registrar or consul
general concerned. Under the law, therefore, jurisdiction over applications for change of
first name is now primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from the coverage of
Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil
Registry) of the Rules of Court, until and unless an administrative petition for change of
name is first filed and subsequently denied. 15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change
of first name are primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. The petition for
change of first name or nickname may be allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously used by
the petitioner and he has been publicly known by that first name or nickname in
the community; or
(3) The change will avoid confusion.
Petitioners basis in praying for the change of his first name was his sex reassignment. He
intended to make his first name compatible with the sex he thought he transformed
himself into through surgery. However, a change of name does not alter ones legal
capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground
of sex reassignment. Rather than avoiding confusion, changing petitioners first name for
his declared purpose may only create grave complications in the civil registry and the
public interest.
Before a person can legally change his given name, he must present proper or reasonable
cause or any compelling reason justifying such change. 19 In addition, he must show that he

will be prejudiced by the use of his true and official name.20 In this case, he failed to show,
or even allege, any prejudice that he might suffer as a result of using his true and official
name.
In sum, the petition in the trial court in so far as it prayed for the change of petitioners first
name was not within that courts primary jurisdiction as the petition should have been filed
with the local civil registrar concerned, assuming it could be legally done. It was an
improper remedy because the proper remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office
of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had
no merit since the use of his true and official name does not prejudice him at all. For all
these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the
change of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On the
Ground of Sex Reassignment
The determination of a persons sex appearing in his birth certificate is a legal issue and
the court must look to the statutes.21 In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in the civil register shall be changed or corrected without a
judicial order.
Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so
far as clerical or typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and without the need for a
judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. As used in this Act, the following terms shall
mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in the

performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible
to the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records:Provided,

however, That no correction must involve the change of nationality,

age, status or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex is not a mere
clerical or typographical error. It is a substantial change for which the applicable procedure
is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code: 24
ART. 407. Acts, events and judicial decrees concerning the civil status of persons
shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16)
changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include
even those that occur after birth.25 However, no reasonable interpretation of the provision
can justify the conclusion that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or error from" while to
change means "to replace something with something else of the same kind or with
something that serves as a substitute."26 The birth certificate of petitioner contained no
error. All entries therein, including those corresponding to his first name and sex, were all
correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as
births, marriages, naturalization and deaths) and judicial decrees (such as legal
separations, annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of
filiation and changes of name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and nationality of a person. Their
effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among
those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned
by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of
capacities and incapacities) of a person in view of his age, nationality and his family
membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at
his own will, such as his being legitimate or illegitimate, or his being married or
not. The comprehensive term status include such matters as the beginning and
end of legal personality, capacity to have rights in general, family relations, and
its various aspects, such as birth, legitimation, adoption, emancipation, marriage,
divorce, and sometimes even succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a part of a
persons legal capacity and civil status. In this connection, Article 413 of the Civil Code
provides:
ART. 413. All other matters pertaining to the registration of civil status shall be
governed by special laws.
But there is no such special law in the Philippines governing sex reassignment and its
effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. The declaration of the physician
or midwife in attendance at the birth or, in default thereof, the declaration of
either parent of the newborn child, shall be sufficient for the registration of a birth
in the civil register. Such declaration shall be exempt from documentary stamp tax
and shall be sent to the local civil registrar not later than thirty days after the
birth, by the physician or midwife in attendance at the birth or by either parent of
the newborn child.
In such declaration, the person above mentioned shall certify to the following
facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names,
citizenship and religion of parents or, in case the father is not known, of the
mother alone; (d) civil status of parents; (e) place where the infant was born; and
(f) such other data as may be required in the regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they
existed at the time of birth.29Thus, the sex of a person is determined at birth, visually done
by the birth attendant (the physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex reassignment, the determination of

a persons sex made at the time of his or her birth, if not attended by error, 30 is
immutable.31
When words are not defined in a statute they are to be given their common and ordinary
meaning in the absence of a contrary legislative intent. The words "sex," "male" and
"female" as used in the Civil Register Law and laws concerning the civil registry (and even
all other laws) should therefore be understood in their common and ordinary usage, there
being no legislative intent to the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a female" 32 or "the
distinction between male and female."33Female is "the sex that produces ova or bears
young"34 and male is "the sex that has organs to produce spermatozoa for fertilizing
ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in
a statute which had at the time a well-known meaning are presumed to have been used in
that sense unless the context compels to the contrary." 36 Since the statutory language of
the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be
argued that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be included in the
category "female."
For these reasons, while petitioner may have succeeded in altering his body and
appearance through the intervention of modern surgery, no law authorizes the change of
entry as to sex in the civil registry for that reason. Thus, there is no legal basis for his
petition for the correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed
on the Ground of Equity
The trial court opined that its grant of the petition was in consonance with the principles of
justice and equity. It believed that allowing the petition would cause no harm, injury or
prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioners
first step towards his eventual marriage to his male fianc. However, marriage, one of the
most sacred social institutions, is a special contract of permanent unionbetween a man and
a woman.37 One of its essential requisites is the legal capacity of the contracting parties
who must be a male and a female.38 To grant the changes sought by petitioner will
substantially reconfigure and greatly alter the laws on marriage and family relations. It will
allow the union of a man with another man who has undergone sex reassignment (a maleto-female post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on employment of
women,39 certain felonies under the Revised Penal Code40 and the presumption of
survivorship in case of calamities under Rule 131 of the Rules of Court, 41 among others.
These laws underscore the public policy in relation to women which could be substantially
affected if petitioners petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to
render judgment by reason of the silence, obscurity or insufficiency of the law." However, it
is not a license for courts to engage in judicial legislation. The duty of the courts is to apply
or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose to do so, to
determine what guidelines should govern the recognition of the effects of sex
reassignment. The need for legislative guidelines becomes particularly important in this
case where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change of first name and for
correction or change of entries in the civil registry, where they may be filed, what grounds
may be invoked, what proof must be presented and what procedures shall be observed. If
the legislature intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on when a person may
be recognized as having successfully changed his sex. However, this Court has no authority
to fashion a law on that matter, or on anything else. The Court cannot enact a law where
no law exists. It can only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness,
contentment and [the] realization of their dreams." No argument about that. The Court
recognizes that there are people whose preferences and orientation do not fit neatly into
the commonly recognized parameters of social convention and that, at least for them, life
is indeed an ordeal. However, the remedies petitioner seeks involve questions of public
policy to be addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.

This is a petition for review under Rule 45 of the Rules of Court raising purely
questions of law and seeking a reversal of the Decision [1] dated January 12, 2005 of the
Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for
Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahans birth certificate: (1) the name Jennifer
Cagandahan changed to Jeff Cagandahan and (2) gender from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for
Correction of Entries in Birth Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she developed
secondary male characteristics and was diagnosed to have Congenital Adrenal Hyperplasia
(CAH) which is a condition where persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in
her early years and at age six, underwent an ultrasound where it was discovered that she
has small ovaries. At age thirteen, tests revealed that her ovarian structures had
minimized, she has stopped growing and she has no breast or menstrual development. She
then alleged that for all interests and appearances as well as in mind and emotion, she has
become a male person. Thus, she prayed that her birth certificate be corrected such that
her gender be changed from female to male and her first name be changed from Jennifer
to Jeff.
The petition was published in a newspaper of general circulation for three (3)
consecutive weeks and was posted in conspicuous places by the sheriff of the court. The
Solicitor General entered his appearance and authorized the Assistant Provincial Prosecutor
to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of the Philippines-Philippine
General Hospital. Dr. Sionzon issued a medical certificate stating that respondents
condition is known as CAH. He explained that genetically respondent is female but because
her body secretes male hormones, her female organs did not develop normally and she has
two sex organs female and male. He testified that this condition is very rare, that
respondents uterus is not fully developed because of lack of female hormones, and that
she has no monthly period. He further testified that respondents condition is permanent
and recommended the change of gender because respondent has made up her mind,
adjusted to her chosen role as male, and the gender change would be advantageous to her.
The RTC granted respondents petition in a Decision dated January 12, 2005 which
reads:
REPUBLIC V. CAGANDAHAN
DECISION
QUISUMBING, J.:

The Court is convinced that petitioner has satisfactorily shown

that he is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the granting
of his petition. It was medically proven that petitioners body produces
male hormones, and first his body as well as his action and feelings are

that of a male. He has chosen to be male. He is a normal person and

wants to be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil,
Laguna is hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed fees:
a)
By changing the name from Jennifer Cagandahan
to JEFF CAGANDAHAN; and
b)

By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters

registry, baptismal certificate, and other pertinent records are hereby
amended to conform with the foregoing corrected data.
SO ORDERED.[3]

The OSG contends that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because while the local civil registrar is an
indispensable party in a petition for cancellation or correction of entries under Section 3,
Rule 108 of the Rules of Court, respondents petition before the court a quo did not implead
the local civil registrar. [5] The OSG further contends respondents petition is fatally defective
since it failed to state that respondent is a bona fide resident of the province where the
petition was filed for at least three (3) years prior to the date of such filing as mandated
under Section 2(b), Rule 103 of the Rules of Court. [6] The OSG argues that Rule 108 does
not allow change of sex or gender in the birth certificate and respondents claimed medical
condition known as CAH does not make her a male. [7]
On the other hand, respondent counters that although the Local Civil Registrar of
Pakil, Laguna was not formally named a party in the Petition for Correction of Birth
Certificate, nonetheless the Local Civil Registrar was furnished a copy of the Petition, the
Order to publish on December 16, 2003 and all pleadings, orders or processes in the course
of the proceedings,[8] respondent is actually a male person and hence his birth certificate
has to be corrected to reflect his true sex/gender, [9]change of sex or gender is allowed
under Rule 108,[10] and respondent substantially complied with the requirements of Rules
103 and 108 of the Rules of Court.[11]
Rules 103 and 108 of the Rules of Court provide:

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal
of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF
SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES NOT
MAKE HER A MALE.[4]
Simply stated, the issue is whether the trial court erred in ordering the correction
of entries in the birth certificate of respondent to change her sex or gender, from female to
male, on the ground of her medical condition known as CAH, and her name from Jennifer to
Jeff, under Rules 103 and 108 of the Rules of Court.

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present
the petition to the Regional Trial Court of the province in which he
resides, [or, in the City of Manila, to the Juvenile and Domestic Relations
Court].
SEC. 2. Contents of petition. A petition for change of name shall be
signed and verified by the person desiring his name changed, or some
other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for.

SEC. 3. Order for hearing. If the petition filed is sufficient in form and
substance, the court, by an order reciting the purpose of the petition,
shall fix a date and place for the hearing thereof, and shall direct that a
copy of the order be published before the hearing at least once a week
for three (3) successive weeks in some newspaper of general circulation
published in the province, as the court shall deem best. The date set for
the hearing shall not be within thirty (30) days prior to an election nor
within four (4) months after the last publication of the notice.

or recovery of citizenship; (l) civil interdiction; (m) judicial determination

of filiation; (n) voluntary emancipation of a minor; and (o) changes of
name.

SEC. 4. Hearing. Any interested person may appear at the hearing and
oppose the petition. The Solicitor General or the proper provincial or city
fiscal shall appear on behalf of the Government of the Republic.

SEC. 4. Notice and publication. Upon the filing of the petition, the court
shall, by an order, fix the time and place for the hearing of the same, and
cause reasonable notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general circulation in
the province.

SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed
in the order that such order has been published as directed and that the
allegations of the petition are true, the court shall, if proper and
reasonable cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with the prayer of the
petition.
SEC. 6. Service of judgment. Judgments or orders rendered in connection
with this rule shall be furnished the civil registrar of the municipality or
city where the court issuing the same is situated, who shall forthwith
enter the same in the civil register.

SEC. 3. Parties. When cancellation or correction of an entry in the civil

register is sought, the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the
proceeding.

SEC. 5. Opposition. The civil registrar and any person having or claiming
any interest under the entry whose cancellation or correction is sought
may, within fifteen (15) days from notice of the petition, or from the last
date of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the proceedings is
brought may make orders expediting the proceedings, and may also
grant preliminary injunction for the preservation of the rights of the
parties pending such proceedings.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act,
event, order or decree concerning the civil status of persons which has
been recorded in the civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto, with the Regional
Trial Court of the province where the corresponding civil registry is
located.
SEC. 2. Entries subject to cancellation or correction. Upon good and valid
grounds, the following entries in the civil register may be cancelled or
corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss

SEC. 7. Order. After hearing, the court may either dismiss the petition or
issue an order granting the cancellation or correction prayed for. In either
case, a certified copy of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because respondents petition did not implead
the local civil registrar. Section 3, Rule 108 provides that the civil registrar and all persons
who have or claim any interest which would be affected thereby shall be made parties to
the proceedings. Likewise, the local civil registrar is required to be made a party in a
proceeding for the correction of name in the civil registry. He is an indispensable party
without whom no final determination of the case can be had. [12] Unless all possible
indispensable parties were duly notified of the proceedings, the same shall be considered
as falling much too short of the requirements of the rules. [13] The corresponding petition
should also implead as respondents the civil registrar and all other persons who may have
or may claim to have any interest that would be affected thereby. [14] Respondent, however,
invokes Section 6,[15] Rule 1 of the Rules of Court which states that courts shall construe
the Rules liberally to promote their objectives of securing to the parties a just, speedy and
inexpensive disposition of the matters brought before it. We agree that there is substantial
compliance with Rule 108 when respondent furnished a copy of the petition to the local
civil registrar.

The determination of a persons sex appearing in his birth certificate is a legal

issue and the court must look to the statutes. In this connection, Article 412 of the Civil
Code provides:

at the base, an ambiguous genitalia often appearing more male than female; (2) normal
internal structures of the female reproductive tract such as the ovaries, uterus and
fallopian tubes; as the child grows older, some features start to appear male, such as
deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in 10,000
to 18,000 children are born with CAH.

ART. 412. No entry in a civil register shall be changed or corrected

without a judicial order.

CAH is one of many conditions [21] that involve intersex anatomy. During the
twentieth century, medicine adopted the term intersexuality to apply to human beings who
cannot be classified as either male or female. [22] The term is now of widespread
use. According
to Wikipedia, intersexuality is
the state
of a living
thing
of
a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex
characteristics are determined to be neither exclusively male nor female. An organism
with intersex may have biological characteristics of both male and female sexes.

Together with Article 376[16] of the Civil Code, this provision was amended by
Republic Act No. 9048[17] in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through administrative proceedings
and without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies
only to substantial changes and corrections in entries in the civil register. [18]
Under Rep. Act No. 9048, a correction in the civil registry involving the change of
sex is not a mere clerical or typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court.[19]
The entries envisaged in Article 412 of the Civil Code and correctable under Rule
108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from
the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation;
(15) voluntary emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code
include even those that occur after birth.[20]
Respondent undisputedly has CAH. This condition causes the early or
inappropriate appearance of male characteristics. A person, like respondent, with this
condition produces too much androgen, a male hormone. A newborn who has XX
chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening

Intersex individuals are treated in different ways by different cultures. In most

societies, intersex individuals have been expected to conform to either a male or female
gender role.[23] Since the rise of modern medical science in Western societies,
some intersex people with ambiguous external genitalia have had their genitalia surgically
modified
to
resemble
either
male
or
female
genitals. [24] More
commonly,
an intersex individual is considered as suffering from a disorder which is almost always
recommended to be treated, whether by surgery and/or by taking lifetime medication in
order to mold the individual as neatly as possible into the category of either male or
female.
In deciding this case, we consider the compassionate calls for recognition of the
various degrees of intersex as variations which should not be subject to outright denial. It
has been suggested that there is some middle ground between the sexes, a no-mans land
for those individuals who are neither truly male nor truly female. [25] The current state of
Philippine statutes apparently compels that a person be classified either as a male or as a
female, but this Court is not controlled by mere appearances when nature itself
fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there is no
basis for a change in the birth certificate entry for gender. But if we determine, based on
medical
testimony
and
scientific
development
showing the respondent to beother than female, then a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently and
categorically female nor consistently and categorically male) composition. Respondent has
female (XX) chromosomes. However, respondents body system naturally produces high
levels of male hormones (androgen). As a result, respondent has ambiguous genitalia and
the phenotypic features of a male.
Ultimately, we are of the view that where the person is biologically or
naturally intersex the determining factor in his gender classification would be what the
individual, like respondent, having reached the age of majority, with good reason thinks of
his/her sex. Respondent here thinks of himself as a male and considering that his body
produces high levels of male hormones (androgen) there is preponderant biological support
for considering him as being male. Sexual development in cases ofintersex persons makes

the gender classification at birth inconclusive. It is at maturity that the gender of such
persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken unnatural
steps to arrest or interfere with what he was born with. And accordingly, he has already
ordered his life to that of a male. Respondent could have undergone treatment and taken
steps, like taking lifelong medication, [26] to force his body into the categorical mold of a
female but he did not. He chose not to do so. Nature has instead taken its due course in
respondents development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as ones sexuality and lifestyle preferences, much
less on whether or not to undergo medical treatment to reverse the male tendency due to
CAH. The Court will not consider respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither will the Court force
respondent to undergo treatment and to take medication in order to fit the mold of a
female, as society commonly currently knows this gender of the human
species. Respondent is the one who has to live with his intersex anatomy. To him belongs
the human right to the pursuit of happiness and of health. Thus, to him should belong the
primordial choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent is an
incompetent[27] and in the absence of evidence to show that classifying respondent as a
male will harm other members of society who are equally entitled to protection under the
law, the Court affirms as valid and justified the respondents position and his personal
judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of nature; and (2)
how an individual deals with what nature has handed out. In other words, we respect
respondents congenital condition and his mature decision to be a male. Life is already
difficult for the ordinary person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier, considering the unique
circumstances in this case.
As for respondents change of name under Rule 103, this Court has held that a
change of name is not a matter of right but of judicial discretion, to be exercised in the light
of the reasons adduced and the consequences that will follow. [28] The trial courts grant of
respondents change of name from Jennifer to Jeff implies a change of a feminine name to a
masculine name. Considering the consequence that respondents change of name merely
recognizes his preferred gender, we find merit in respondents change of name. Such a
change will conform with the change of the entry in his birth certificate from female to
male.
WHEREFORE, the Republics petition is DENIED. The Decision dated January 12,
2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No
pronouncement as to costs.
SO ORDERED.

G.R. No. 186571

August 11, 2010

GERBERT R. CORPUZ, Petitioner,

vs.
DAISYLYN TIROL STO. TOMAS and The SOLICITOR GENERAL, Respondents.

In its October 30, 2008 decision,7 the RTC denied Gerberts petition. The RTC concluded
that Gerbert was not the proper party to institute the action for judicial recognition of the
foreign divorce decree as he is a naturalized Canadian citizen. It ruled that only the Filipino
spouse can avail of the remedy, under the second paragraph of Article 26 of the Family
Code,8 in order for him or her to be able to remarry under Philippine law.9 Article 26 of the
Family Code reads:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37
and 38.

DECISION
BRION, J.:
Before the Court is a direct appeal from the decision 1 of the Regional Trial Court (RTC) of
Laoag City, Branch 11, elevated via a petition for review on certiorari 2 under Rule 45 of the
Rules of Court (present petition).
Petitioner Gerbert R. Corpuz was a former Filipino citizen who acquired Canadian citizenship
through naturalization on November 29, 2000.3 On January 18, 2005, Gerbert married
respondent Daisylyn T. Sto. Tomas, a Filipina, in Pasig City. 4 Due to work and other
professional commitments, Gerbert left for Canada soon after the wedding. He returned to
the Philippines sometime in April 2005 to surprise Daisylyn, but was shocked to discover
that his wife was having an affair with another man. Hurt and disappointed, Gerbert
returned to Canada and filed a petition for divorce. The Superior Court of Justice, Windsor,
Ontario, Canada granted Gerberts petition for divorce on December 8, 2005. The divorce
decree took effect a month later, on January 8, 2006.5
Two years after the divorce, Gerbert has moved on and has found another Filipina to love.
Desirous of marrying his new Filipina fiance in the Philippines, Gerbert went to the Pasig
City Civil Registry Office and registered the Canadian divorce decree on his and Daisylyns
marriage certificate. Despite the registration of the divorce decree, an official of the
National Statistics Office (NSO) informed Gerbert that the marriage between him and
Daisylyn still subsists under Philippine law; to be enforceable, the foreign divorce decree
must first be judicially recognized by a competent Philippine court, pursuant to NSO
Circular No. 4, series of 1982.6
Accordingly, Gerbert filed a petition for judicial recognition of foreign divorce and/or
declaration of marriage as dissolved (petition) with the RTC. Although summoned, Daisylyn
did not file any responsive pleading but submitted instead a notarized letter/manifestation
to the trial court. She offered no opposition to Gerberts petition and, in fact, alleged her
desire to file a similar case herself but was prevented by financial and personal
circumstances. She, thus, requested that she be considered as a party-in-interest with a
similar prayer to Gerberts.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.
This conclusion, the RTC stated, is consistent with the legislative intent behind the
enactment of the second paragraph of Article 26 of the Family Code, as determined by the
Court in Republic v. Orbecido III;10 the provision was enacted to "avoid the absurd situation
where the Filipino spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse." 11
THE PETITION
From the RTCs ruling,12 Gerbert filed the present petition.13
Gerbert asserts that his petition before the RTC is essentially for declaratory relief, similar
to that filed in Orbecido; he, thus, similarly asks for a determination of his rights under the
second paragraph of Article 26 of the Family Code. Taking into account the rationale behind
the second paragraph of Article 26 of the Family Code, he contends that the provision
applies as well to the benefit of the alien spouse. He claims that the RTC ruling unduly
stretched the doctrine in Orbecido by limiting the standing to file the petition only to the
Filipino spouse an interpretation he claims to be contrary to the essence of the second
paragraph of Article 26 of the Family Code. He considers himself as a proper party, vested
with sufficient legal interest, to institute the case, as there is a possibility that he might be
prosecuted for bigamy if he marries his Filipina fiance in the Philippines since two
marriage certificates, involving him, would be on file with the Civil Registry Office. The
Office of the Solicitor General and Daisylyn, in their respective Comments, 14 both support
Gerberts position.
Essentially, the petition raises the issue of whether the second paragraph of Article 26 of
the Family Code extends to aliens the right to petition a court of this jurisdiction for the
recognition of a foreign divorce decree.
THE COURTS RULING

The alien spouse can claim no right under the second paragraph of Article 26 of the Family
Code as the substantive right it establishes is in favor of the Filipino spouse
The resolution of the issue requires a review of the legislative history and intent behind the
second paragraph of Article 26 of the Family Code.
The Family Code recognizes only two types of defective marriages void 15 and
voidable16 marriages. In both cases, the basis for the judicial declaration of absolute nullity
or annulment of the marriage exists before or at the time of the marriage. Divorce, on the
other hand, contemplates the dissolution of the lawful union for cause arising after the
marriage.17 Our family laws do not recognize absolute divorce between Filipino citizens. 18
Recognizing the reality that divorce is a possibility in marriages between a Filipino and an
alien, President Corazon C. Aquino, in the exercise of her legislative powers under the
Freedom Constitution,19 enacted Executive Order No. (EO) 227, amending Article 26 of the
Family Code to its present wording, as follows:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in
force in the country where they were solemnized, and valid there as such, shall also be
valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37
and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a
divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.
Through the second paragraph of Article 26 of the Family Code, EO 227 effectively
incorporated into the law this Courts holding in Van Dorn v. Romillo, Jr. 20 and Pilapil v. IbaySomera.21 In both cases, the Court refused to acknowledge the alien spouses assertion of
marital rights after a foreign courts divorce decree between the alien and the Filipino. The
Court, thus, recognized that the foreign divorce had already severed the marital bond
between the spouses. The Court reasoned in Van Dorn v. Romillo that:
To maintain x x x that, under our laws, [the Filipino spouse] has to be considered still
married to [the alien spouse] and still subject to a wife's obligations x x x cannot be just.
[The Filipino spouse] should not be obliged to live together with, observe respect and
fidelity, and render support to [the alien spouse]. The latter should not continue to be one
of her heirs with possible rights to conjugal property. She should not be discriminated
against in her own country if the ends of justice are to be served. 22
As the RTC correctly stated, the provision was included in the law "to avoid the absurd
situation where the Filipino spouse remains married to the alien spouse who, after
obtaining a divorce, is no longer married to the Filipino spouse." 23 The legislative intent is
for the benefit of the Filipino spouse, by clarifying his or her marital status, settling the
doubts created by the divorce decree. Essentially, the second paragraph of Article 26 of the

Family Code provided the Filipino spouse a substantive right to have his or her marriage to
the alien spouse considered as dissolved, capacitating him or her to remarry. 24 Without the
second paragraph of Article 26 of the Family Code, the judicial recognition of the foreign
decree of divorce, whether in a proceeding instituted precisely for that purpose or as a
related issue in another proceeding, would be of no significance to the Filipino spouse since
our laws do not recognize divorce as a mode of severing the marital bond; 25 Article 17 of
the Civil Code provides that the policy against absolute divorces cannot be subverted by
judgments promulgated in a foreign country. The inclusion of the second paragraph in
Article 26 of the Family Code provides the direct exception to this rule and serves as basis
for recognizing the dissolution of the marriage between the Filipino spouse and his or her
alien spouse.
Additionally, an action based on the second paragraph of Article 26 of the Family Code is
not limited to the recognition of the foreign divorce decree. If the court finds that the
decree capacitated the alien spouse to remarry, the courts can declare that the Filipino
spouse is likewise capacitated to contract another marriage. No court in this jurisdiction,
however, can make a similar declaration for the alien spouse (other than that already
established by the decree), whose status and legal capacity are generally governed by his
national law.26
Given the rationale and intent behind the enactment, and the purpose of the second
paragraph of Article 26 of the Family Code, the RTC was correct in limiting the applicability
of the provision for the benefit of the Filipino spouse. In other words, only the Filipino
spouse can invoke the second paragraph of Article 26 of the Family Code; the alien spouse
can claim no right under this provision.
The foreign divorce decree is presumptive evidence of a right that clothes the party with
legal interest to petition for its recognition in this jurisdiction
We qualify our above conclusion i.e., that the second paragraph of Article 26 of the Family
Code bestows no rights in favor of aliens with the complementary statement that this
conclusion is not sufficient basis to dismiss Gerberts petition before the RTC. In other
words, the unavailability of the second paragraph of Article 26 of the Family Code to aliens
does not necessarily strip Gerbert of legal interest to petition the RTC for the recognition of
his foreign divorce decree. The foreign divorce decree itself, after its authenticity and
conformity with the aliens national law have been duly proven according to our rules of
evidence, serves as a presumptive evidence of right in favor of Gerbert, pursuant to
Section 48, Rule 39 of the Rules of Court which provides for the effect of foreign judgments.
This Section states:
SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final order
of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is
as follows:
(a) In case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title of the thing; and

(b) In case of a judgment or final order against a person, the judgment or final
order is presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
To our mind, direct involvement or being the subject of the foreign judgment is sufficient to
clothe a party with the requisite interest to institute an action before our courts for the
recognition of the foreign judgment. In a divorce situation, we have declared, no less, that
the divorce obtained by an alien abroad may be recognized in the Philippines, provided the
divorce is valid according to his or her national law.27
The starting point in any recognition of a foreign divorce judgment is the acknowledgment
that our courts do not take judicial notice of foreign judgments and laws. Justice Herrera
explained that, as a rule, "no sovereign is bound to give effect within its dominion to a
judgment rendered by a tribunal of another country."28 This means that the foreign
judgment and its authenticity must be proven as facts under our rules on evidence,
together with the aliens applicable national law to show the effect of the judgment on the
alien himself or herself.29 The recognition may be made in an action instituted specifically
for the purpose or in another action where a party invokes the foreign decree as an integral
aspect of his claim or defense.
In Gerberts case, since both the foreign divorce decree and the national law of the alien,
recognizing his or her capacity to obtain a divorce, purport to be official acts of a sovereign
authority, Section 24, Rule 132 of the Rules of Court comes into play. This Section requires
proof, either by (1) official publications or (2) copies attested by the officer having legal
custody of the documents. If the copies of official records are not kept in the Philippines,
these must be (a) accompanied by a certificate issued by the proper diplomatic or consular
officer in the Philippine foreign service stationed in the foreign country in which the record
is kept and (b) authenticated by the seal of his office.
The records show that Gerbert attached to his petition a copy of the divorce decree, as well
as the required certificates proving its authenticity, 30 but failed to include a copy of the
Canadian law on divorce.31 Under this situation, we can, at this point, simply dismiss the
petition for insufficiency of supporting evidence, unless we deem it more appropriate to
remand the case to the RTC to determine whether the divorce decree is consistent with the
Canadian divorce law.
We deem it more appropriate to take this latter course of action, given the Article 26
interests that will be served and the Filipina wifes (Daisylyns) obvious conformity with the
petition. A remand, at the same time, will allow other interested parties to oppose the
foreign judgment and overcome a petitioners presumptive evidence of a right by proving
want of jurisdiction, want of notice to a party, collusion, fraud, or clear mistake of law or
fact. Needless to state, every precaution must be taken to ensure conformity with our laws
before a recognition is made, as the foreign judgment, once recognized, shall have the

effect of res judicata32 between the parties, as provided in Section 48, Rule 39 of the Rules
of Court.33
In fact, more than the principle of comity that is served by the practice of reciprocal
recognition of foreign judgments between nations, the res judicata effect of the foreign
judgments of divorce serves as the deeper basis for extending judicial recognition and for
considering the alien spouse bound by its terms. This same effect, as discussed above, will
not obtain for the Filipino spouse were it not for the substantive rule that the second
paragraph of Article 26 of the Family Code provides.
Considerations beyond the recognition of the foreign divorce decree
As a matter of "housekeeping" concern, we note that the Pasig City Civil Registry Office has
already recorded the divorce decree on Gerbert and Daisylyns marriage certificate based
on the mere presentation of the decree.34 We consider the recording to be legally improper;
hence, the need to draw attention of the bench and the bar to what had been done.
Article 407 of the Civil Code states that "[a]cts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register." The law requires the entry in
the civil registry of judicial decrees that produce legal consequences touching upon a
persons legal capacity and status, i.e., those affecting "all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at his own will, such
as his being legitimate or illegitimate, or his being married or not." 35
A judgment of divorce is a judicial decree, although a foreign one, affecting a persons legal
capacity and status that must be recorded. In fact, Act No. 3753 or the Law on Registry of
Civil Status specifically requires the registration of divorce decrees in the civil registry:
Sec. 1. Civil Register. A civil register is established for recording the civil status of
persons, in which shall be entered:
(a) births;
(b) deaths;
(c) marriages;
(d) annulments of marriages;
(e) divorces;
(f) legitimations;
(g) adoptions;

(h) acknowledgment of natural children;

(i) naturalization; and
(j) changes of name.
xxxx
Sec. 4. Civil Register Books. The local registrars shall keep and preserve in their offices
the following books, in which they shall, respectively make the proper entries concerning
the civil status of persons:
(1) Birth and death register;
(2) Marriage register, in which shall be entered not only the marriages solemnized
but also divorces and dissolved marriages.
(3) Legitimation, acknowledgment, adoption, change of name and naturalization
register.
But while the law requires the entry of the divorce decree in the civil registry, the law and
the submission of the decree by themselves do not ipso facto authorize the decrees
registration. The law should be read in relation with the requirement of a judicial
recognition of the foreign judgment before it can be given res judicata effect. In the context
of the present case, no judicial order as yet exists recognizing the foreign divorce decree.
Thus, the Pasig City Civil Registry Office acted totally out of turn and without authority of
law when it annotated the Canadian divorce decree on Gerbert and Daisylyns marriage
certificate, on the strength alone of the foreign decree presented by Gerbert.
Evidently, the Pasig City Civil Registry Office was aware of the requirement of a court
recognition, as it cited NSO Circular No. 4, series of 1982, 36 and Department of Justice
Opinion No. 181, series of 198237 both of which required a final order from a competent
Philippine court before a foreign judgment, dissolving a marriage, can be registered in the
civil registry, but it, nonetheless, allowed the registration of the decree. For being contrary
to law, the registration of the foreign divorce decree without the requisite judicial
recognition is patently void and cannot produce any legal effect.1avvphi1
Another point we wish to draw attention to is that the recognition that the RTC may extend
to the Canadian divorce decree does not, by itself, authorize the cancellation of the entry in
the civil registry. A petition for recognition of a foreign judgment is not the proper
proceeding, contemplated under the Rules of Court, for the cancellation of entries in the
civil registry.

Article 412 of the Civil Code declares that "no entry in a civil register shall be changed or
corrected, without judicial order." The Rules of Court supplements Article 412 of the Civil
Code by specifically providing for a special remedial proceeding by which entries in the civil
registry may be judicially cancelled or corrected. Rule 108 of the Rules of Court sets in
detail the jurisdictional and procedural requirements that must be complied with before a
judgment, authorizing the cancellation or correction, may be annotated in the civil registry.
It also requires, among others, that the verified petition must be filed with the RTC of the
province where the corresponding civil registry is located; 38that the civil registrar and all
persons who have or claim any interest must be made parties to the proceedings; 39and that
the time and place for hearing must be published in a newspaper of general
circulation.40 As these basic jurisdictional requirements have not been met in the present
case, we cannot consider the petition Gerbert filed with the RTC as one filed under Rule 108
of the Rules of Court.
We hasten to point out, however, that this ruling should not be construed as requiring two
separate proceedings for the registration of a foreign divorce decree in the civil registry
one for recognition of the foreign decree and another specifically for cancellation of the
entry under Rule 108 of the Rules of Court. The recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object of special proceedings (such as
that in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party
or a particular fact. Moreover, Rule 108 of the Rules of Court can serve as the appropriate
adversarial proceeding41 by which the applicability of the foreign judgment can be
measured and tested in terms of jurisdictional infirmities, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
WHEREFORE, we GRANT the petition for review on certiorari, and REVERSE the October
30, 2008 decision of the Regional Trial Court of Laoag City, Branch 11, as well as its
February 17, 2009 order. We order the REMAND of the case to the trial court for further
proceedings in accordance with our ruling above. Let a copy of this Decision be furnished
the Civil Registrar General. No costs.
SO ORDERED.

1. Delete the entry March 26, 1972 in Item 24 for

DATE AND PLACE OF MARRIAGE OF PARTIES [in herein
respondents Certificate of live Birth];
2. Correct the entry MAGPAYO in the space for the Last
Name of the [respondent] to COSETENG;

REPUBLIC V. COSETENG-MAGPAYO

3. Delete the entry COSETENG in the space for Middle

Name of the [respondent]; and
DECISION

CARPIO MORALES, J.:

Born in Makati on September 9, 1972, Julian Edward Emerson Coseteng
Magpayo (respondent) is the son of Fulvio M. Magpayo Jr. and Anna Dominique MarquezLim Coseteng who, as respondents certificate of live birth [1] shows, contracted marriage on
March 26, 1972.
Claiming, however, that his parents were never legally married, respondent filed
on July 22, 2008 at the Regional Trial Court (RTC) of Quezon City a Petition to change his
name to Julian Edward Emerson Marquez Lim Coseteng. The petition, docketed as SPP No.
Q-0863058, was entitled IN RE PETITION FOR CHANGE OF NAME OF JULIAN EDWARD
EMERSON COSETENG MAGPAYO TO JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG.
In support of his petition, respondent submitted a certification from the National
Statistics Office stating that his mother Anna Dominique does not appear in [its] National
Indices of Marriage.[2] Respondent also submitted his academic records from elementary up
to college[3] showing that he carried the surname Coseteng, and the birth certificate of his
child where Coseteng appears as his surname. [4] In the 1998, 2001 and 2004 Elections,
respondent ran and was elected as Councilor of Quezon Citys 3 rd District using the name
JULIAN M.L. COSETENG.[5]
On order of Branch 77 of the Quezon City RTC, [6] respondent amended his petition
by alleging therein compliance with the 3-year residency requirement under Section 2, Rule
103 of the Rules of Court.[7]
The notice setting the petition for hearing on November 20, 2008 was published in
the newspaper Broadside in its issues of October 31-November 6, 2008, November 7-13,
2008, and November 14-20, 2008. [8] And a copy of the notice was furnished the Office of
the Solicitor General (OSG).
No opposition to the petition having been filed, an order of general default was
entered by the trial court which then allowed respondent to present evidence ex parte.[9]

By Decision of January 8, 2009, [10] the trial court granted respondents petition and
directed the Civil Registrar of Makati City to:

4. Delete the entry Fulvio Miranda Magpayo, Jr. in the

space for FATHER of the [respondent] (emphasis and
underscoring supplied; capitalization in the original)
The Republic of the Philippines (Republic) filed a motion for reconsideration but it
was denied by the trial court by Order of July 2, 2009, [11] hence, it, thru the OSG, lodged the
present petition for review to the Court on pure question of law.
The Republic assails the decision in this wise:
I.

. . . THE PETITION FOR CHANGE OF NAMEINVOLVES

THE CHANGE
OF [RESPONDENTS] CIVIL
STATUS
FROM
LEGITIMATE TO ILLEGITIMATE AND, THEREFORE, SHOULD BE
MADE THROUGH APPROPRIATE ADVERSARIAL PROCEEDINGS

II.

THE TRIAL COURT EXCEEDED ITS JURISDICTION WHEN IT

DIRECTED THE DELETION OF THE NAME OF RESPONDENTS
FATHER FROM HIS BIRTH CERTIFICATE.[12] (emphasis and
underscoring supplied)

The Republic contends that the deletion of the entry on the date and place of
marriage of respondents parents from his birth certificate has the effect of changing his
civil status from legitimate to illegitimate, hence, any change in civil status of a person
must be effected through an appropriate adversary proceeding.[13]
The Republic adds that by ordering the deletion of respondents parents date of
marriage and the name of respondents father from the entries in respondents birth
certificate,[14] the trial court exceeded its jurisdiction, such order not being in accord with
respondents prayer reading:
WHEREFORE, premises considered, it is most respectfully prayed
that the Honorable Court issue an order allowing the change of name of
petitioner from JULIAN EDWARD EMERSON COSETENG MAGPAYO to
JULIAN EDWARD EMERSON MARQUEZ-LIM COSETENG, and that the
Honorable Court order the Local Civil Registrar and all other relevant
government agencies to reflect the said change of name in their records.
Petitioner prays for other reliefs deemed proper under the
premises.[15] (underscoring supplied)

Respondent counters that the proceeding before the trial court was adversarial in
nature. He cites the serving of copies of the petition and its annexes upon the Civil
Registrar of Makati, the Civil Registrar General, and the OSG; the posting of copies of the
notice of hearing in at least four public places at least ten days before the hearing; the
delegation to the OSG by the City Prosecutor of Quezon City to appear on behalf of the
Republic; the publication of the notice of hearing in a newspaper of general circulation for
three consecutive weeks; and the fact that no oppositors appeared on the scheduled
hearing.[16]
The petition is impressed with merit.
A person can effect a change of name under Rule 103 (CHANGE OF NAME) using
valid and meritorious grounds including (a) when the name is ridiculous, dishonorable or
extremely difficult to write or pronounce; (b) when the change results as a legal
consequence such as legitimation; (c) when the change will avoid confusion; (d) when one
has continuously used and been known since childhood by a Filipino name, and was
unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of
former alienage, all in good faith and without prejudicing anybody; and (f) when the
surname causes embarrassment and there is no showing that the desired change of name
was for a fraudulent purpose or that the change of name would prejudice public interest.
[17]
Respondents reason for changing his name cannot be considered as one of, or
analogous to, recognized grounds, however.
The present petition must be differentiated from Alfon v. Republic of
the Philippines.[18] In Alfon, the Court allowed the therein petitioner, Estrella Alfon, to use
the name that she had been known since childhood in order to avoid confusion.Alfon did
not deny her legitimacy, however. She merely sought to use the surname of her mother
which she had been using since childhood. Ruling in her favor, the Court held that she was
lawfully entitled to use her mothers surname, adding that the avoidance of confusion was
justification enough to allow her to do so. In the present case, however, respondent denies
his legitimacy.
The change being sought in respondents petition goes so far as to affect his legal
status in relation to his parents. It seeks to change his legitimacy to that of
illegitimacy. Rule 103 then would not suffice to grant respondents supplication.
Labayo-Rowe v. Republic[19] categorically holds that changes which may affect the
civil status from legitimate to illegitimate . . . are substantial and controversial
alterations which can only be allowed after appropriate adversary proceedings . . .
Since respondents desired change affects his civil status from legitimate to
illegitimate, Rule 108 applies. It reads:
SECTION 1. Who may file petition.Any person interested in any
act, event, order or decree concerning the civil status of persons which
has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the

[RTC] of the province where the corresponding civil registry is

located.
xxxx
SEC. 3. Parties.When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons who have
or claim any interest which would be affected thereby shall be
made parties to the proceeding.
SEC. 4. Notice and publication. Upon the filing of the petition,
the court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order to
be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province. (emphasis, italics and
underscoring supplied)
Rule 108 clearly directs that a petition which concerns ones civil status should be
filed in the civil registry in which the entry is sought to be cancelled or corrected that
of Makati in the present case, and all persons who have or claim any interest which would
be affected thereby should be made parties to the proceeding.
As earlier stated, however, the petition of respondent was filed not
in Makati where his birth certificate was registered but in Quezon City. And as the abovementioned title of the petition filed by respondent before the RTC shows, neither the civil
registrar of Makati nor his father and mother were made parties thereto.

Respondent nevertheless cites Republic v. Capote[20] in support of his claim that

his change of name was effected through an appropriate adversary proceeding.
Republic v. Belmonte,[21] illuminates, however:
The procedure recited in Rule 103 regarding change of name
and in Rule 108 concerning the cancellation or correction of entries in the
civil registry are separate and distinct. They may not be substituted
one for the other for the sole purpose of expediency. To hold
otherwise would render nugatory the provisions of the Rules of Court
allowing the change of ones name or the correction of entries in the civil
registry only upon meritorious grounds. . . . (emphasis, capitalization and
underscoring supplied)
Even assuming arguendo that respondent had simultaneously availed of these two
statutory remedies, respondent cannot be said to have sufficiently complied with Rule
108. For, as reflected above, aside from improper venue, he failed to implead the
civil registrar of Makati and all affected parties as respondents in the case.

Republic v. Labrador[22] mandates that a petition for a substantial correction or

change of entries in the civil registry should have as respondents the civil registrar, as well
as all other persons who have or claim to have any interest that would be affected
thereby. It cannot be gainsaid that change of status of a child in relation to his
parents is a substantial correction or change of entry in the civil registry.
Labayo-Rowe[23] highlights the necessity of impleading indispensable parties in a
petition which involves substantial and controversial alterations. In that case, the therein
petitioner Emperatriz Labayo-Rowe (Emperatriz) filed a petition for the correction of entries
in the birth certificates of her children, Vicente Miclat, Jr. and Victoria Miclat, in the Civil
Registry of San Fernando, Pampanga. Emperatriz alleged that her name appearing in the
birth certificates is Beatriz, which is her nickname, but her full name is Emperatriz; and her
civil status appearing in the birth certificate of her daughter Victoria as married on 1953
Bulan are erroneous because she was not married to Vicente Miclat who was the one who
furnished the data in said birth certificate.
The trial court found merit in Emperatrizs petition and accordingly directed the
local civil registrar to change her name appearing in her childrens birth certificates from
Beatriz to Emperatriz; and to correct her civil status in Victorias birth certificate from
married to single and the date and place of marriage to no marriage.
On petition before this Court after the Court of Appeals found that the order of the
trial court involved a question of law, the Court nullified the trial courts order directing the
change of Emperatriz civil status and the filiation of her child Victoria in light of the
following observations:
x x x x Aside from the Office of the Solicitor General, all
other
indispensable
parties should
have
been
made respondents. They include not only the declared
father of the child but the child as well, together with the paternal
grandparents, if any, as their hereditary rights would be adversely
affected thereby. All other persons who may be affected by the
change should be notified or represented. The truth is best
ascertained under an adversary system of justice.
The right of the child Victoria to inherit from her parents
would be substantially impaired if her status would be changed from
legitimate to illegitimate. Moreover, she would be exposed to
humiliation and embarrassment resulting from the stigma of an
illegitimate filiation that she will bear thereafter. The fact that the
notice of hearing of the petition was published in a newspaper of
general circulation and notice thereof was served upon the State
will not change the nature of the proceedings taken. Rule 108, like all
the other provisions of the Rules of Court, was promulgated by the
Supreme Court pursuant to its rule-making authority under Section
13, Article VIII of the 1973 Constitution, which directs that such rules
shall not diminish, increase or modify substantive rights. If Rule 108
were to be extended beyond innocuous or harmless changes or
corrections of errors which are visible to the eye or obvious to the
understanding, so as to comprehend substantial and controversial
alterations
concerning citizenship,
legitimacy
of
paternity or filiation, or legitimacy
of
marriage,
without

observing the proper proceedings as earlier mentioned, said rule

would
thereby
become
an unconstitutional exercise
which
would tend to increase or modify substantive rights. This
situation is not contemplated under Article 412 of the Civil Code.
[24]
(emphasis, italics and underscoring supplied)

As for the requirement of notice and publication, Rule 108 provides:

SEC. 4. Notice and publication.Upon the filing of the
petition, the court shall, by an order, fix the time and place for
the hearing of the same, and cause reasonable notice thereof
to be given to the persons named in the petition. The court
shall also cause the order to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the
province.

SEC. 5. Opposition.The civil registrar and any person

having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15)
days from notice of the petition, or from the last date of
publication of such notice,file his opposition thereto. (emphasis
and underscoring supplied)

A reading of these related provisions readily shows that Rule 108 clearly
mandates two sets of notices to different potential oppositors. The first notice is that given
to the persons named in the petition and the second (which is through publication) is that
given to other persons who are not named in the petition but nonetheless may be
considered interested or affected parties, such as creditors. That two sets of notices are
mandated under the above-quoted Section 4 is validated by the subsequent Section 5, also
above-quoted, which provides for two periods (for the two types of potential oppositors)
within which to file an opposition (15 days from notice or from the last date of publication).
This is the overriding principle laid down in Barco v. Court of Appeals.[25] In that
case, Nadina Maravilla (Nadina) filed a petition for correction of entries in the birth
certificate of her daughter June from June Salvacion Maravilla to June Salvacion Gustilo,
Armando Gustilo being, according to Nadina, her daughters real father. Gustilo in fact filed
before the trial court a CONSTANCIA wherein he acknowledged June as his daughter. The
trial court granted the petition.
After Gustilo died, his son Jose Vicente Gustilo filed with the Court of Appeals a
petition for annulment of the Order of the trial court granting the change of Junes family
name to Gustilo.
Milagros Barco (Barco), natural guardian of her minor daughter Mary Joy Ann
Gustilo, filed before the appellate court a motion for intervention, alleging that Mary Joy

had a legal interest in the annulment of the trial courts Order as Mary Joy was, by Barcos
claim, also fathered by Gustilo.
The appellate court dismissed the petition for annulment and complaint-inintervention.
On appeal by Barco, this Court ruled that she should have been impleaded in
Nadinas petition for correction of entries of the birth certificate of Mary Joy. But since a
petitioner, like Nadina, is not expected to exhaustively identify all the affected parties, the
subsequent publication of the notice cured the omission of Barco as a party to the
case. Thus the Court explained:
Undoubtedly, Barco is among the parties referred to in
Section 3 of Rule 108. Her interest was affected by the petition for
correction, as any judicial determination that June was the daughter
of Armando would affect her wards share in the estate of her father. It
cannot be established whether Nadina knew of Mary Joys existence at
the time she filed the petition for correction. Indeed, doubt may
always be cast as to whether a petitioner under Rule 108
would know of all the parties whose interests may be affected
by the granting of a petition. For example, a petitioner cannot
be presumed to be aware of all the legitimate or illegitimate
offsprings of his/her spouse or paramour. x x x x.
xxxx
The purpose precisely of Section 4, Rule 108 is to bind the
whole world to the subsequent judgment on the petition. The sweep
of the decision would cover even parties who should have
been impleaded under Section 3, Rule 108 but were
inadvertently left out.x x x x.[26] (emphasis, italics and
underscoring supplied)

Meanwhile, in Republic v. Kho,[27] Carlito Kho (Carlito) and his siblings named the civil
registrar as the sole respondent in the petition they filed for the correction of entries in
their respective birth certificates in the civil registry of Butuan City, and correction of
entries in the birth certificates of Carlitos minor children. Carlito and his siblings requested
the correction in their birth certificates of the citizenship of their mother Epifania to Filipino,
instead of Chinese, and the deletion of the word married opposite the phrase Date of
marriage of parents because their parents Juan and Epifania were not married. And
Carlito requested the correction in the birth certificates of their children of his and his wifes
date of marriage to reflect the actual date of their marriage as appearing in their marriage
certificate. In the course of the hearing of the petition, Carlito also sought the correction of
the name of his wife from Maribel to Marivel.
The Khos mother Epifania took the witness stand where she declared that she was
not married to Juan who died before the filing of the Khos petition.
The trial court granted the petition.

On the issue of whether the failure to implead Marivel and the Khos parents
rendered the trial of the petition short of the required adversary proceedings and the trial
courts judgment void, this Court held that when all the procedural requirements under Rule
108 are followed, the publication of the notice of hearing cures the failure to implead an
indispensable party. In so ruling, the Court noted that the affected parties were already
notified of the proceedings in the case since the petitioner-siblings Khos were the ones who
initiated the petition respecting their prayer for correction of their citizenship, and Carlito
respecting the actual date of his marriage to his wife; and, with respect to the Khos petition
for change of their civil status from legitimate to illegitimate, their mother Epifania herself
took the witness stand declaring that she was not married to their father.
What is clear then in Barco and Kho is the mandatory directive under Section 3 of
Rule 108 to implead the civil registrar and the parties who would naturally and legally be
affected by the grant of a petition for correction or cancellation of entries.Non-impleading,
however, as party-respondent of one who is inadvertently left out or is not established to
be known by the petitioner to be affected by the grant of the petition or actually
participates in the proceeding is notified through publication.
IN FINE, when a petition for cancellation or correction of an entry in the civil register
involves substantial and controversial alterations including those on citizenship, legitimacy
of paternity or filiation, or legitimacy of marriage, a strict compliance with the requirements
of Rule 108 of the Rules of Court is mandated.
WHEREFORE, the petition is, in light of the foregoing discussions, GRANTED. The
January 8, 2009 Decision of Branch 77 of the Regional Trial Court of Quezon City in SP Proc.
No. Q-0863058 is NULLIFIED.
SO ORDERED.

BRAZA V. CITY CIVIL REGISTRAR OF HIMAMAYLAN CITY, NEGROS OCCIDENTAL

RPIO MORALES, J.:

Petitioner Ma. Cristina Torres (Ma. Cristina) and Pablo Sicad Braza, Jr. (Pablo), also
known as Pablito Sicad Braza, were married [1] on January 4, 1978. The union bore Ma.
Cristinas co-petitioners Paolo Josef [2] and Janelle Ann[3] on May 8, 1978 and June 7, 1983,
respectively, and Gian Carlo[4] on June 4, 1980.
Pablo died[5] on April 15, 2002 in a vehicular accident in Bandung, West Java,
Indonesia.
During the wake following the repatriation of his remains to the Philippines,
respondent Lucille Titular (Lucille) began introducing her co-respondent minor Patrick Alvin
Titular Braza (Patrick) as her and Pablo's son. Ma. Cristina thereupon made inquiries in the
course of which she obtained Patrick's birth certificate [6] from the Local Civil Registrar of
Himamaylan City, Negros Occidental with the following entries:
Name of Child: PATRICK ALVIN CELESTIAL
TITULAR
Date of Birth: 01 January 1996
Mother: Lucille Celestial Titular
Father: Pablito S. Braza
Date Received at the
Local Civil Registrar: January 13, 1997
Annotation: "Late Registration"
Annotation/Remarks: "Acknowledge (sic) by the father
Pablito Braza on January 13, 1997"
Remarks: Legitimated by virtue of subsequent marriage of
parents on April 22, 1998 at Manila. Henceforth, the child
shall be known as Patrick Alvin Titular Braza (Emphasis and
underscoring supplied)
Ma. Cristina likewise obtained a copy [7] of a marriage contract showing that Pablo and
Lucille were married on April 22, 1998, drawing her and her co-petitioners to file on
December 23, 2005 before the Regional Trial Court of Himamaylan City, Negros Occidental
a petition[8] to correct the entries in the birth record of Patrick in the Local Civil Register.
Contending that Patrick could not have been legitimated by the supposed
marriage between Lucille and Pablo, said marriage being bigamous on account of the valid
and subsisting marriage between Ma. Cristina and Pablo, petitioners prayed for (1)
the correction of the entries in Patrick's birth record with respect to his legitimation, the
name of the father and his acknowledgment, and the use of the last name "Braza"; 2) a
directive to Leon, Cecilia and Lucille, all surnamed Titular, as guardians of the minor
Patrick, to submit Parick to DNA testing to determine his paternity and filiation; and 3) the
declaration of nullity of the legitimation of Patrick as stated in his birth certificate and, for
this purpose, the declaration of the marriage of Lucille and Pablo as bigamous.

On Patricks Motion to Dismiss for Lack of Jurisdiction, the trial court, by Order [9] of
September 6, 2007, dismissed the petition without prejudice, it holding that in a special
proceeding for correction of entry, the court, which is not acting as a family court under the
Family Code, has no jurisdiction over an action to annul the marriage of Lucille and Pablo,
impugn the legitimacy of Patrick, and order Patrick to be subjected to a DNA test, hence,
the controversy should be ventilated in an ordinary adversarial action.
Petitioners motion for reconsideration having been denied by Order [10] of
November 29, 2007, they filed the present petition for review.
Petitioners maintain that the court a quo may pass upon the validity of marriage
and questions on legitimacy even in an action to correct entries in the civil
registrar. Citing Cario v. Cario,[11] Lee v. Court of Appeals[12] and Republic v. Kho,[13]they
contend that even substantial errors, such as those sought to be corrected in the present
case, can be the subject of a petition under Rule 108.[14]
The petition fails. In a special proceeding for correction of entry under Rule 108
(Cancellation or Correction of Entries in the Original Registry), the trial court has no
jurisdiction to nullify marriages and rule on legitimacy and filiation.
Rule 108 of the Rules of Court vis a vis Article 412 of the Civil Code[15] charts the
procedure by which an entry in the civil registry may be cancelled or corrected. The
proceeding contemplated therein may generally be used only to correct clerical, spelling,
typographical and other innocuous errors in the civil registry. A clerical error is one which is
visible to the eyes or obvious to the understanding; an error made by a clerk or a
transcriber; a mistake in copying or writing, or a harmless change such as a correction of
name that is clearly misspelled or of a misstatement of the occupation of the
parent. Substantial or contentious alterations may be allowed only in adversarial
proceedings, in which all interested parties are impleaded and due process is properly
observed.[16]
The allegations of the petition filed before the trial court clearly show that
petitioners seek to nullify the marriage between Pablo and Lucille on the ground that it is
bigamous and impugn Patricks filiation in connection with which they ask the court to order
Patrick to be subjected to a DNA test.
Petitioners insist, however, that the main cause of action is for the correction of
Patricks birth records[17] and that the rest of the prayers are merely incidental thereto.
Petitioners position does not lie. Their cause of action is actually to seek the
declaration of Pablo and Lucilles marriage as void for being bigamous and impugn Patricks
legitimacy, which causes of action are governed not by Rule 108 but by A.M. No. 02-11-10SC which took effect on March 15, 2003, and Art. 171 [18] of the Family Code, respectively,
hence, the petition should be filed in a Family Court as expressly provided in said Code.
It is well to emphasize that, doctrinally, validity of marriages as well as legitimacy
and filiation can be questioned only in a direct action seasonably filed by the proper party,
and not through collateral attack such as the petition filed before the court a quo.

Petitioners reliance on the cases they cited is misplaced.

Cario v. Cario was an action filed by a second wife against the first wife for the
return of one-half of the death benefits received by the first after the death of the
husband. Since the second wife contracted marriage with the husband while the latters
marriage to the first wife was still subsisting, the Court ruled on the validity of the two
marriages, it being essential to the determination of who is rightfully entitled to the death
benefits.
In Lee v. Court of Appeals, the Court held that contrary to the contention that the
petitions filed by the therein petitioners before the lower courts were actions to impugn
legitimacy, the prayer was not to declare that the petitioners are illegitimate children of
Keh Shiok Cheng as stated in their records of birth but to establish that they are not the
latters children, hence, there was nothing to impugn as there was no blood relation at all
between

the petitioners and Keh Shiok Cheng. That is why the Court ordered the cancellation of the
name of Keh Shiok Cheng as the petitioners mother and the substitution thereof with Tiu
Chuan who is their biological mother. Thus, the collateral attack was allowed and the
petition deemed as adversarial proceeding contemplated under Rule 108.
In Republic v. Kho, it was the petitioners themselves who sought the correction of
the entries in their respective birth records to reflect that they were illegitimate and that
their citizenship is Filipino, not Chinese, because their parents were never legally
married. Again, considering that the changes sought to be made were substantial and not

merely innocuous, the Court, finding the proceedings under Rule 108 to be adversarial in
nature, upheld the lower courts grant of the petition.
It is thus clear that the facts in the above-cited cases are vastly different from those
obtaining in the present case.
WHEREFORE, the petition is DENIED.
SO ORDERED.