CIVIL LAW REVIEW | Family Code Assignment No.
4|1
1. G.R. No. L-15853 July 27, 1960
FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.
GUTIERREZ DAVID, J.:
This is a petition for certiorari to review a decision of the Court of Appeals
affirming that of the Court of First Instance of Rizal which dismissed
petitioner's complaint for annulment of his marriage with respondent On March 17, 1959, plaintiff filed a motion praying that the decision be
Conchita Delizo. reconsidered, or, if such reconsideration be denied, that the case be
remanded to the lower court for new trial. In support of the motion,
The dismissed complaint, which was filed on September 6, 1955, was plaintiff attached as annexes thereof the following documents:
based on the ground of fraud, it being alleged, among other things, that
defendant Conchita Delizo, herein respondent, at the date of her marriage
to plaintiff, herein petitioner Fernando Aquino, on December 27, 1954,
concealed from the latter that fact that she was pregnant by another man,
and sometime in April, 1955, or about four months after their marriage,
gave birth to a child. In her answer, defendant claimed that the child was
conceived out of lawful wedlock between her and the plaintiff.
At the trial, the attorney's for both parties appeared and the court a
quo ordered Assistant Provincial Fiscal Jose Goco to represent the State in
the proceedings to prevent collusion. Only the plaintiff however, testified
and the only documentary evidence presented was the marriage contract
between the parties. Defendant neither appeared nor presented any
evidence despite the reservation made by her counsel that he would
present evidence on a later date.
On June 16, 1956, the trial court noting that no birth certificate was
presented to show that the child was born within 180 days after the
marriage between the parties, and holding that concealment of pregnancy
as alleged by the plaintiff does not constitute such fraud sa would annul a
marriage dismissed the complaint. Through a verified "petition to reopen
for reception of additional evidence", plaintiff tried to present the
certificates of birth and delivery of the child born of the defendant on April
26, 1955, which documents, according to him, he had failed to secure
earlier and produce before the trial court thru excusable negligence. The
petition, however, was denied.
On appeal to the Court of Appeals, that court held that there has been
excusable neglect in plaintiff's inability to present the proof of the child's
birth, through her birth certificate, and for that reason the court a
quo erred in denying the motion for reception of additional evidence. On
the theory, however, that it was not impossible for plaintiff and defendant
to have had sexual intercourse during their engagement so that the child
could be their own, and finding unbelievable plaintiff's claim that he did not
notice or even suspect that defendant was pregnant when he married her,
the appellate court, nevertheless, affirmed the dismissal of the complaint.
1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law
and plaintiff's brother, with whom defendant was living at the time
plaintiff met, courted and married her, and with whom defendant
has begotten two more children, aside from her first born, in
common-law relationship) admitting that he is the father of
defendant's first born, Catherine Bess Aquino, and that he and
defendant hid her pregnancy from plaintiff at the time of plaintiff's
marriage to defendant;
2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her
pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own
brother, at the time of her marriage to plaintiff and her having
hidden this fact from plaintiff before and up to the time of their
marriage;
3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar
Aquino and defendant lived together as husband and wife before
December 27, 1954, the date of plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first born, Catherine Bess Aquino
showing her date of birth to be April 26, 1955;
5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second
child of defendant with Cesar Aquino, her brother-in-law;
6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third
child of Cesar Aquino and defendant; and
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7. Pictures of defendant showing her natural plumpness as early as marriage more so because she must have attempted to conceal the true
1952 to as late as November, 1954, the November, 1954 photo state of affairs. Even physicians and surgeons, with the aid of the woman
itself does not show defendant's pregnancy which must have been herself who shows and gives her subjective and objective symptoms, can
almost four months old at the time the picture was taken. only claim positive diagnosis of pregnancy in 33% at five months. and 50%
at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).
Acting upon the motion, the Court of Appeals ordered the defendant
Conchita Delizo and Assistant Provincial Fiscal of Rizal, who was The appellate court also said that it was not impossible for plaintiff and
representing the Government, to answer the motion for reconsideration, defendant to have had sexual intercourse before they got married and
and deferred action on the prayer for new trial until after the case is therefore the child could be their own. This statement, however, is purely
disposed of. As both the defendant and the fiscal failed to file an answer, conjectural and finds no support or justification in the record.
and stating that it "does not believe the veracity of the contents of the
motion and its annexes", the Court of Appeals, on August 6, 1959, denied Upon the other hand, the evidence sought to be introduced at the new
the motion. From that order, the plaintiff brought the case to this Court trial, taken together with what has already been adduced would, in our
thru the present petition for certiorari. opinion, be sufficient to sustain the fraud alleged by plaintiff. The Court of
Appeals should, therefore, not have denied the motion praying for new trial
After going over the record of the case, we find that the dismissal of simply because defendant failed to file her answer thereto. Such failure of
plaintiff's complaint cannot be sustained. the defendant cannot be taken as evidence of collusion, especially since a
provincial fiscal has been ordered of represent the Government precisely to
Under the new Civil Code, concealment by the wife of the fact that at the prevent such collusion. As to the veracity of the contents of the motion and
time of the marriage, she was pregnant by a man other than her husband its annexes, the same can best be determined only after hearing evidence.
constitutes fraud and is ground for annulment of marriage. (Art. 85, par. In the circumstance, we think that justice would be better served if a new
(4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 trial were ordered.
Phil., 19) cited in the decision sought to be reviewed, which was also an
action for the annulment of marriage on the ground of fraud, plaintiff's Wherefore, the decision complained of is set aside and the case remanded
claim that he did not even suspect the pregnancy of the defendant was to the court a quo for new trial. Without costs.
held to be unbelievable, it having been proven that the latter was already
in an advanced stage of pregnancy (7th month) at the time of their
marriage. That pronouncement, however, cannot apply to the case at bar.
Here the defendant wife was alleged to be only more than four months
pregnant at the time of her marriage to plaintiff. At that stage, we are not
prepared to say that her pregnancy was readily apparent, especially since
she was "naturally plump" or fat as alleged by plaintiff. According to
medical authorities, even on the 5th month of pregnancy, the enlargement
of a woman's abdomen is still below the umbilicus, that is to say, the
enlargement is limited to the lower part of the abdomen so that it is hardly
noticeable and may, if noticed, be attributed only to fat formation on the
lower part of the abdomen. It is only on the 6th month of pregnancy that
the enlargement of the woman's abdomen reaches a height above the
umbilicus, making the roundness of the abdomen more general and
apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by plaintiff,
defendant is "naturally plump", he could hardly be expected to know,
merely by looking, whether or not she was pregnant at the time of their
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2. G.R. No. L-1967 May 28, 1951 to procreate, and was impotent and congenitally sterile, the same as his
brothers Anastasio, Filomeno, Pedro, and his sister Conchita, who had no
Probate of the will of the late Faustino Neri San Jose. PAZ NERI children. The defendants also filed a counterclaim for the sum of P286,000
SAN JOSE, petitioner. in cash, and for jewels and certain properties, which, as alleged, were
MATILDE MENCIANO, in her behalf and in behalf of the minors retained and illegally disposed of by Matilde Menciano.
CARLO MAGNO NERI and FAUSTINO NERI, Jr., plaintiffs-appellees,
vs. The above allegations of the parties give rise to the following issues:
PAZ NERI SAN JOSE and RODOLFO PELAEZ, defendants-appellants.
(1) Was the marriage between the deceased Faustino Neri San Jose
JUGO, J.: and Matilde Menciano valid?;

In the course of the proceedings for the settlement of the estate of the (2) Are, the children Faustino Neri, Jr. and Carlo Magno Neri the
deceased Faustino Neri San Jose, Special Proceedings No. 6-A of the Court legitimate children of the deceased Faustino Neri San Jose and
First Instance of Misamis Oriental, Matilde Menciano, in her behalf and in Matilde Menciano?; and
behalf of the minors Carlo Magno Neri and Faustino Neri, Jr., filed a motion
for declaration of heirs, alleging that she is the widow of the deceased (3) Did Matilde Menciano have in her possession and illegally
Faustino Neri San Jose, to whom she was married according to the rites of disposed of the cash, jewels, and certain properties above
the Roman Catholic Church on September 28, 1944, before Rev. Father mentioned?
Isaias Edralin, S. J.; that before the marriage the deceased and she lived
together as husband and wife, there having been no impediment to their The marriage between the deceased and Matilde Menciano is evidenced by
marriage; that as a result of their cohabitation before the marriage the Exhibit I-C, which is an application for a marriage license, dated September
child Carlo Magno Neri was born on March 9, 1940 and was later baptized, 28, 1944, signed by Faustino Neri San Jose, to marry Matilde Menciano;
said child having enjoyed the status of a recognized natural child; that Exhibit 1-B, also an application for a marriage license dated September 28,
their second child Faustino Neri, Jr., was born on April 24, 1945; and that 1944, signed by Matilde Menciano, to marry Faustino Neri San Jose; Exhibit
Carlo Magno Neri was legitimized by the subsequent matrimony of his 1-D, certificate for immediate issuance of the marriage license applied for,
parents and Faustino Neri, Jr., is a legitimate child born in lawful wedlock.signed by the Acting Local Civil Registrar and Faustino Neri San Jose and
Matilde Menciano; and Exhibit 1-A, the marriage contract signed by
Paz Neri San Jose, then executrix of the estate of the deceased Faustino Faustino Neri San Jose and Matilde Menciano as contracting parties, Rev.
Neri San Jose, and Rodolfo Pelaez, designated universal heir in the will of Isaias Edralin, as solemnizing officer, and the witnesses L. B. Castaos and
the deceased dated December 19, 1940, filed an amended answer with the Samson Pagan.
permission of the court, in which they denied the substantial allegations of
the abovementioned motion for declaration of heirs and further alleged in As all the above four exhibits are official and public documents, their
substance that the deceased Faustino Neri San Jose, from the year 1943, validity can be successfully assailed only by strong, clear, and convincing
was suffering from senile dementia caused by anemia which became worse oral testimony. In the case of Arroyo vs. Granada (18 Phil, 484), it was
from September 9, 1944, when the Province of Misamis Oriental where the held:
deceased lived was bombarded by American planes; that the marriage
between said deceased and Matilde Menciano, if it was solemnized, was in 1. CANCELLATION OF INSTRUMENTS; SUFFICIENCY OF PROOF.
violation of the legal provisions and requisites, for he (the deceased) was To justify the setting aside of an instrument solemnly executed and
deprived of his free will due to his age, sickness, and bombardment, and voluntarily delivered, upon the ground that its execution was
Matilde Menciano, taking advantage of the deceased's condition, by obtained by false and fraudulent representations, the proof must
intrigue and threat of abandoning him, forced Neri by means of deceit be clear and convincing. (Syllabus)
(dolo) and threat to marry her; and that the deceased was sterile, unable

In the case of Sy Tiangco vs. Pablo and Apao (59 Phil., 119), this Court
declared:
1. PUBLIC DOCUMENT; EXECUTION; DENIAL OF ALLEGED SIGNER;
BURDEN OF PROOF. Plaintiff's attorneys vigorously contend that
when the plaintiff denied having signed the deed it was incumbent
upon the defendants to can the witnesses thereto. The execution of
a document that has been ratified before a notary public cannot be
disproved by the mere denial of the alleged signer. No inference
unfavorable to the defendant arises from their failure to call the
subscribing witnesses. (Syllabus)
Is the oral evidence presented by the defendants of sufficient force and
weight to overcome the above official documents?
The witnesses for the defendants testified in substance that the deceased
Faustino Neri was so weak and sick that he could not even talk coherently
and intelligibly. Their testimony is too sweeping, because they refer to a
general period of time. There must have been times when the deceased
may have been unable to attend to business or even to converse on
account of his sickness, and even Father Edralin did not solemnize the
marriage on a certain date on account of the weak condition of Faustino
Neri and waited for about two days to perform the ceremony when the old
man, although somewhat weak, had a clear mind. Father Edralin's
testimony is strongly corroborated by the form of the signatures of
Faustino Neri in the above mentioned Exhibits 1-A, 1-C, and 1-D. A mere
glance at those signatures will convince anyone that they could not have
been written by a man who is almost unconscious and physically and
intellectually incapacitated, as the defendants' witnesses represent him to
have been. It should be noted that his signature is complicated, containing
many flourishes, such that it can not be signed by one who is not of sound
mind and of fair physical condition. He may have been sick at that time,
but not to such a degree as to render him unconscious of what he was
doing. If the signatures of the deceased in Exhibits 1-A, 1-C, and 1-D are
compared with each other it will be readily seen that they are practically
uniform, which could not have been accomplished by a man who is a
nervous wreck. There is no sign of trembling of the hands or fingers of the
person who affixed those signatures, which usually happens to a very sick
man. In the case of Torres et al. vs. Lopez (48 Phil., 772), this court made
the following pronouncement:
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3. ID.; ID TESTS OF CAPACITY. Neither old age, physical
infirmities, feebleness of mind, weakness of the memory, the
appointment of a guardian, nor eccentricities are sufficient singly or
jointly to show testamentary incapacity. The nature and rationally
of the will is of some practical utility in determining capacity. Each
case rests on its own facts and must be decided by its own facts.
(Syllabus, p. 773.)
xxx xxx xxx
11. ID.; ID.; ID.; ID.; CASE AT BAR. On January 3, 1924, when
the testator, Tomas Rodriguez, made his will, he was 76 years old,
physically decrepit, weak of intellect, suffering from a loss of
memory, had a guardian of his person and his person and his
property, and was eccentric, but he still possessed that spark of
reason and of life, that strength of mind to form a fixed intention
and to summon his enfeebled thoughts to enforce that intention,
which the law terms "testamentary capacity." Two of the
subscribing witnesses testified clearly to the regular manner in
which the will was executed, and one did not. The attending
physicians and three other doctors who were present at the
execution of the will expressed opinions entirely favorable to the
capacity of the testator. Three other members of the medical
profession expressed opinions entirely unfavorable to the capacity
of the testator and certified that he was of unsound
mind. Held, That Tomas Rodriguez on January 3, 1924, possessed
sufficient mentality to make a will which would meet the legal test
regarding testamentary capacity; that the proponents of the will
have carried successfully the burden of proof and have shown him
of sound mind on that date; and that it was reversible error on the
part of the trial court not to admit his will to probate. (Syllabus, p.
774)
In Sancho vs. Abella (58 Phil., 728), this court said:
1. WILLS; PROBATE; CAPACITY TO MAKE A WILL. Neither senile
debility, nor deafness, nor blindness, nor poor memory, is by itself
sufficient to establish the presumption that the person suffering
therefrom is not in the full enjoyment of his mental faculties, when
there is sufficient evidence of his mental sanity at the time of the
execution of the will.

2. ID.; ID.; ID.; Neither the facts of her being given
accommodations in a convent, nor the presence of the parish
priest, nor a priest acting as a witness, constitutes undue influence
sufficient to justify the annulment of a legacy in favor of a bishop
of a diocese, made in her will by a testatrix 88 years of age,
suffering from defective eyesight and hearing, while she is stopping
in a convent within the aforesaid diocese. (Syllabi)
Although the above doctrine relates to testamentary capacity, there is no
reason why it should not be applied to the capacity to contract marriage,
which requires the same mental condition. Consequently, the court below
did not err in declaring valid the marriage of Faustino Neri San Jose and
Matilde Menciano.
The next issue is whether Faustino Neri, Jr., and Carlo Magno Neri are
legitimate children of the deceased Faustino Neri and Matilde Menciano. As
above stated, the deceased Faustino Neri and Matilde Menciano were
married on September 28, 1944. Faustino Neri, Jr., was born on April 24,
1945; that is, two hundred eight days, or more than one hundred eighty
days, after the marriage, but less than three hundred days after the death
of Faustino Neri San Jose which occurred on October 11, 1944. There is no
question that before and after the marriage, the deceased and Matilde
Menciano co-habitated.
Rule 123, section 68 (c), reads as follows:
SEC. 68. Conclusive presumptions. The following are instances
of conclusive presumptions:
xxx xxx xxx
(c) The issue of a wife cohabiting with her husband, who is not
impotent, is indisputably presumed to be legitimate, if not born
within the one hundred and eighty days immediately succeeding
the marriage, or after the expiration of three hundred days
following its dissolution;
xxx xxx xxx
The above-quoted provision is so clear that it does not require
interpretation or construction, but only application.
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The requirements for the conclusive presumption that Faustino Neri, Jr. is
the legitimate son of the legitimate marriage of the deceased Faustino Neri
and Matilde Menciano exist as above stated, with the possible exception of
the requisite as to potency.
Was the deceased Faustino Neri impotent during his cohabitation with
Matilde Menciano?
Impotency being an abnormal condition should not be presumed. The
presumption is in favor of potency. The best evidence that the deceased
was potent is the statement of Dr. Antonio Garcia that in order to get a
specimen of the semen of the deceased Faustino Neri for examination as to
its contents of spermatozoa, Faustino, following the doctor's advice, used a
rubber sac, commonly called "condom", and a woman. The fact that the
deceased was able to produce the specimen by said means shows
conclusively that he was potent. Impotency is not synonymous with
sterility. Impotency is the physical inability to have sexual intercourse; it is
different from sterility.
(1) Impotence, in Medical Jurisprudence. Inability on the part of
the male organ of copulation to perform its proper function.
Impotence applies only to disorders affecting the functions of the
organ of copulation, while sterility applies only to lack of fertility in
the reproductive elements of either sex. (Dennis, System of
Surgery; Bouvier's Law Dictionary, Rawle's Third Revision, Vol. 11,
p. 1514)
(2) Impotencia (L.) Impotence.
Impotencia Coeundi, inability of the male to perform the sexual
act.
Impotentia Erigendi, inability to have an erection of the penis.(The
American Illustrated Medical Dictionary, by Dorland 20th Edition, p.
721)
i. Coeundi. Inability of the male to perform the sexual act. i.
erigendi, impotence due to the absence of the power of erection.
(Stedman's Practical Medical Dictionary, p. 551)
(4) Impotence.

"3. Law & Med. Incapacity for sexual intercourse." (Webster's New
International Dictionary, Second Edition, Unabridged, p. 1251)
(5) Impotency or Impotence. Want of power for copulation, not
mere sterility. The absence of complete power of copulation is an
essential element to constitute impotency. (31 C. J., P. 259)
(6) Impotence. Inability to perform the sexual act may be due to
defective organs from abnormal or incomplete development, or to
deficient internal secretions, or to disorders of the nervous system
diminishing the libido. Impotence may or may not be accompanied
by sterility. (The Columbia Encyclopedia, 877)
Consequently, the requisite of potency also existed. The necessary
conclusion is that the child Faustino Neri, Jr., is conclusively presumed to
be the legitimate son of the deceased Faustino Neri with Matilde Menciano
in lawful wedlock.
The attorney for the plaintiffs correctly objected to the evidence regarding result is inconclusive, for the reasons above set forth, and cannot in any
sterility and any other evidence as to paternity. The objection should not way overthrow the conclusive presumption established by Rule 123,
have been overruled.
However, even considering the evidence as to sterility, it results that the
examinations of the semen by Drs. Garcia and Marfori in 1940, to
determine the existence of spermatozoa, do not establish that the
deceased was sterile. According to medical jurisprudence, a man may not
have spermatozoa at a certain time, but may have had it previously or may
have it subsequently to the examination. The examinations by Drs. Garcia
and Marfori were made in 1940. From that time Faustino Neri San Jose
cohabited with Matilde Menciano until his death on October 11, 1944.
Doctor Jose F. Marfori. testified as follows:
Q. How many times did you examine his seminal fluid? A. Only
once.
Q. In other words, from the latter part of 1940 up to his death, you
examined only once his seminal fluid? A. Yes, sir.
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Q. Is it not a fact that you cannot determine sterility or his inability
to procreate with one examination? A. It would have been better
if there was an examination of his seminal fluid every year.
Q. But the truth is that today a man may lack spermatozoa in his
seminal fluid, but much later it may appear? A. That is possible.
(P. 28, t. s. n., Gaane)
It should be noted that Doctor Marfori is a nephew-in-law of the deceased
Faustino Neri.
With regard to the supposed examination made by Doctor Garcia in Cebu
on December 9, 1940, Cristobal Lopez, nephew of Faustino, testified that
during said period, December, 1940, the deceased Neri never went out of
Cagayan, Oriental Misamis. We cannot accord much weight to the
testimony of Doctor Garcia that he made the examination.
But even supposing that said doctors made such examinations, still the
section 68 (c).
Carlo Magno Neri was born on March 9, 1940, that is, before the marriage.
Both the deceased Faustino and Matilde Menciano free to marry without
any legal impediment. However, the court below declared that Carlo Magno
Neri has not been acknowledged as a natural child and, consequently,
cannot be legitimized by the subsequent marriage of his parents. We
cannot review this finding because the plaintiffs did not appeal.
The defendants allege that Matilde Menciano is retaining or has illegally
disposed of P286,000, genuine Philippine currency, certain jewels, and
documents. The trial court, after a careful and exhaustive review of the
evidence, correctly reached the conclusion that such allegation has not
been substantiated. Let us make a short analysis of the defendants'
evidence on this point.
The principal witness for this claim was Rodolfo Pelaez, who testified that
the deceased Faustino in 1939 delivered to him the sum of P250,000 in
small denominations to be exchanged in a bank in Manila for bills of larger
denominations as P500, etc. After having exchanged it with the help of
Representative Ozamis (dead on the date of the trial), he returned to the
province and delivered the sum to the deceased Neri. On cross-
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examination he was not able to say whether the bills he took to Manila in
October, 1939, were treasury certificates or bank bills; that in July, 1944,
he visited Cagayan and he saw his uncle Faustino living with Matilde
Menciano and Carlo Magno Neri in the house of a Chinaman on Calle Del
Mar; that he saw the sum of P250,000 in a wooden aparador. But when he
was asked whether he actually saw the money in the aparador, he said he
was so informed by his uncle. His testimony is hearsay. Furthermore, there
is no reason why his uncle should have accounted to him for the money.
His testimony is contradicted by that of Paz Neri San Jose, his mother, who
stated that the deceased Faustino went to the house of the Chinaman on
Calle Del Mar only to fetch certain document which he had left there; that
the deceased was not living in said house; that he went there now and play
monte; that the deceased and herself were living in the house of one
Tamparong; that the deceased used to carry with him his money, jewels,
and documents, in a sack, wherever he went to play; that at the time of
the air raid by the Americans, the deceased went to the house on Calle Del
Mar carrying the said sack, but he returned to the house of Tamparong,
leaving the sack in the house on Calle Del Mar, but after the air raid he
returned on the latter house to fetch the sack. This testimony of Paz Neri,
who was a witness for the defendants and a co-defendant herself,
contradicts in essential and important features that of Rodolfo Pelaez.
As to the revocation of the appointment of Paz Neri San Jose as executrix,
the trial court made a reasonable exercise of its discretion in setting it
aside and appointing Matilde Menciano administratrix, in view of the
hostility between them which would cause many incidental questions and
delay in the termination of the proceedings if Paz Neri had continued as
executrix. We see no reason for interfering in the case with the discretion
of the court.
The appellees contended that the court erred in not completely annulling
the institution of universal heir, without considering Rodolfo Pelaez as a
legatee. Inasmuch as the plaintiffs did not appeal, they are bound by the
decision of the trial court.
In view of the foregoing, the judgment appealed from is affirmed in all its
parts, with costs against the appellants. It is so ordered.

The testimony of Paz Neri would show that the deceased Neri was
distrustful of relatives and friends when his funds were concerned.
P250,000 in 1939 was quite a fortune in itself and, consisting of cash,
could have been easily disposed of. In 1939 nobody believed for certain
that there would be war. Why then should the deceased have wanted to
change the money for bigger denominations when he could have deposited
it in a nearby branch of the Philippine National Bank where the deceased
could have gone, for, as alleged by the defendants, he even went to Cebu
in 1940 for examination of his seminal fluid?

It was testified to by Clotilde Galarrita de Labitad that Matilde Menciano

showed to her the sum of P284,000 in genuine Philippine currency and
counted the money in her presence. This is unbelievable. Could she not
have counted it without the presence of anybody and thus avoided the
danger of theft or robbery?

With regard to the jewels no satisfactory evidence was presented to prove

that Matilde Menciano misappropriated them. She received and had in her
possession a few jewels given to her by the deceased Faustino for the
benefit of the children.

3. G.R. No. 145370 March 4, 2004
MARIETTA B. ANCHETA, petitioner,
vs.
RODOLFO S. ANCHETA, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Resolution 1 of the Court of
Appeals in CA-G.R. SP No. 59550 which dismissed the petitioners petition
under Rule 47 of the 1997 Rules of Civil Procedure to annul the Order 2 of
the Regional Trial Court of Naic, Cavite, Branch 15 in Special Proceedings
No. NC-662 nullifying the marriage of the petitioner and the respondent
Rodolfo S. Ancheta, and of the resolution of the appellate court denying the
motion for reconsideration of the said resolution.
This case arose from the following facts:
After their marriage on March 5, 1959, the petitioner and the respondent
resided in Muntinlupa, Metro Manila. They had eight children during their
coverture, whose names and dates of births are as follows:
a. ANA MARIE B . ANCHETA born October 6, 1959
b. RODOLFO B. ANCHETA, JR. born March 7, 1961
c. VENANCIO MARIANO B. ANCHETA born May 18, 1962
d. GERARDO B. ANCHETA born April 8, 1963
e. KATHRINA B. ANCHETA born October 29, 1965
f. ANTONIO B. ANCHETA born March 6, 1967
g. NATASHA MARTINA B. ANCHETA - born August 2, 1968
h. FRITZIE YOLANDA B. ANCHETA born November 19, 19703
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On December 6, 1992, the respondent left the conjugal home and
abandoned the petitioner and their children. On January 25, 1994,
petitioner Marietta Ancheta filed a petition with the Regional Trial Court of
Makati, Branch 40, against the respondent for the dissolution of their
conjugal partnership and judicial separation of property with a plea for
support and support pendente lite. The case was docketed as Sp. Proc. No.
M-3735. At that time, the petitioner was renting a house at No. 72 CRM
Avenue cor. CRM Corazon, BF Homes, Almanza, Las Pias, Metro Manila.4
On April 20, 1994, the parties executed a Compromise Agreement 5 where
some of the conjugal properties were adjudicated to the petitioner and her
eight children, including the following:
b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and
TCT No. 120083-Cavite) located at Bancal, Carmona, Cavite, registered in
the name of the family Ancheta. Biofood Corporation under TCT No.
310882, together with the resort Munting Paraiso, Training Center, four-
storey building, pavilion, swimming pool and all improvements. All of the
shares of stocks of Ancheta Biofoods Corporation were distributed one-third
(1/3) to the petitioner and the eight children one-twelfth (1/12) each.6
The court rendered judgment based on the said compromise agreement.
Conformably thereto, the respondent vacated, on June 1, 1994, the resort
Munting Paraiso and all the buildings and improvements thereon. The
petitioner, with the knowledge of the respondent, thenceforth resided in
the said property.
In the meantime, the respondent intended to marry again. On June 5,
1995, he filed a petition with the Regional Trial Court of Naic, Cavite,
Branch 15, for the declaration of nullity of his marriage with the petitioner
on the ground of psychological incapacity. The case was docketed as Sp.
Proc. No. NC-662. Although the respondent knew that the petitioner was
already residing at the resort Munting Paraiso in Bancal, Carmona, Cavite,
he, nevertheless, alleged in his petition that the petitioner was residing at
No. 72 CRM Avenue corner CRM Corazon, BF Homes, Almanza, Las Pias,
Metro Manila, "where she may be served with summons."7 The clerk of
court issued summons to the petitioner at the address stated in the
petition.8 The sheriff served the summons and a copy of the petition by
substituted service on June 6, 1995 on the petitioners son, Venancio
Mariano B. Ancheta III, at his residence in Bancal, Carmona, Cavite.9
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On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of respondent knew very well that she was residing at Munting Paraiso,
Service to the court stating that the summons and a copy of the petition Bancal, Carmona, Cavite. According to the petitioner, the respondent did
were served on the petitioner through her son Venancio Mariano B. so to deprive her of her right to be heard in the said case, and ultimately
Ancheta III on June 6, 1995: secure a favorable judgment without any opposition thereto. The petitioner
also alleged that the respondent caused the service of the petition and
RETURN OF SERVICE summons on her by substituted service through her married son, Venancio
Mariano B. Ancheta III, a resident of Bancal, Carmona, Cavite, where the
This is to certify that the summons together with the copy of the complaint respondent was a resident. Furthermore, Venancio M.B. Ancheta III failed
and its annexes was received by the herein defendant thru his son to deliver to her the copy of the petition and summons. Thus, according to
Venancio M.B. Ancheta [III] as evidenced by the signature appearing on the petitioner, the order of the trial court in favor of the respondent was
the summons. Service was made on June 6, 1995. null and void (1) for lack of jurisdiction over her person; and (2) due to the
extrinsic fraud perpetrated by the respondent. She further contended that
June 21, 1995, Naic, Cavite. there was no factual basis for the trial courts finding that she was suffering
from psychological incapacity. Finally, the petitioner averred that she
learned of the Order of the RTC only on January 11, 2000. Appended to the
(Sgd.) JOSE R. SALVADORA, JR.
petition, inter alia, were the affidavits of the petitioner and of Venancio
Sheriff10
M.B. Ancheta III.

The petitioner failed to file an answer to the petition. On June 22, 1995,
The petitioner prayed that, after due proceedings, judgment be rendered in
the respondent filed an "Ex-Parte Motion to Declare Defendant as in
her favor, thus:
Default" setting it for hearing on June 27, 1995 at 8:30 a.m. During the
hearing on the said date, there was no appearance for the petitioner. The
public prosecutor appeared for the State and offered no objection to the WHEREFORE, petitioner respectfully prays this Honorable Court to render
motion of the respondent who appeared with counsel. The trial court Judgment granting the Petition.
granted the motion and declared the petitioner in default, and allowed the
respondent to adduce evidence ex-parte. The respondent testified in his 1. Declaring null and void the Order dated June 7, 1995 (of the
behalf and adduced documentary evidence. On July 7, 1995, the trial court Regional Trial Court, Branch 14, Naic, Cavite).
issued an Order granting the petition and declaring the marriage of the
parties void ab initio.11 The clerk of court issued a Certificate of Finality of 2. Ordering respondent to pay petitioner
the Order of the court on July 16, 1996.12
a. 1,000,000.00 as moral damages;
On February 14, 1998, Valentines Day, the respondent and Teresita H.
Rodil were married in civil rights before the municipal mayor of Indang, b. 500,000.00 as exemplary damages;
Cavite.13
c. 200,000.00 as attorneys fees plus P7,500.00 per diem
On July 7, 2000, the petitioner filed a verified petition against the for every hearing;
respondent with the Court of Appeals under Rule 47 of the Rules of Court,
as amended, for the annulment of the order of the RTC of Cavite in Special d. 100,000.00 as litigation expenses;
Proceedings No. NC-662. The case was docketed as CA-G.R. SP No. 59550.
The petitioner alleged, inter alia, that the respondent committed gross e. Costs of suit.14
misrepresentations by making it appear in his petition in Sp. Proc. No. NC-
662 that she was a resident of No. 72 CRM Avenue cor. CRM Corazon, BF
Homes, Almanza, Las Pias, Metro Manila, when in truth and in fact, the

On July 13, 2000, the CA issued a Resolution dismissing the petition on the
following ground:
We cannot give due course to the present petition in default or in the
absence of any clear and specific averment by petitioner that the ordinary
remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of petitioner. Neither is
there any averment or allegation that the present petition is based only on
the grounds of extrinsic fraud and lack of jurisdiction. Nor yet that, on the
assumption that extrinsic fraud can be a valid ground therefor, that it was
not availed of, or could not have been availed of, in a motion for new trial,
or petition for relief.15
The petitioner filed a motion for the reconsideration of the said resolution,
appending thereto an amended petition in which she alleged, inter alia,
that:
4. This petition is based purely on the grounds of extrinsic fraud
and lack of jurisdiction.
5. This petition has not prescribed; it was filed within the four-year
period after discovery of the extrinsic fraud.
6. The ground of extrinsic fraud has not been availed of, or could
not have been availed of in a motion for new trial or petition for
relief.
7. The ground of lack of jurisdiction is not barred by laches and/or
estoppel.
8. The ordinary remedies of new trial, appeal, petition for relief or
other appropriate remedies were no longer available through no
fault of petitioner; neither has she ever availed of the said
remedies. This petition is the only available remedy to her.16
The petitioner also alleged therein that the order of the trial court nullifying
her and the respondents marriage was null and void for the court a quos
failure to order the public prosecutor to conduct an investigation on
whether there was collusion between the parties, and to order the Solicitor
General to appear for the State.
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On September 27, 2000, the CA issued a Resolution denying the said
motion.
The petitioner filed a petition for review on certiorari with this Court
alleging that the CA erred as follows:
1. In failing to take into consideration the kind of Order which was
sought to be annulled.
2. In finding that the Petition was procedurally flawed.
3. In not finding that the Petition substantially complied with the
requirements of the Rules of Court.
4. In failing to comply with Section 5, Rule 47, Rules of Court.
5. In not even considering/resolving Petitioners Motion to Admit
the Amended Petition; and in not admitting the Amended Petition.
6. In failing to apply the Rules of Procedure with liberality.17
The petition is meritorious.
An original action in the Court of Appeals under Rule 47 of the Rules of
Court, as amended, to annul a judgment or final order or resolution in civil
actions of the RTC may be based on two grounds: (a) extrinsic fraud; or
(b) lack of jurisdiction. If based on extrinsic fraud, the remedy is subject to
a condition precedent, namely, the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner.18 The petitioner must allege in the
petition that the ordinary remedies of new trial, appeal, petition for relief
from judgment, under Rule 38 of the Rules of Court are no longer available
through no fault of hers; otherwise, the petition will be dismissed. If the
petitioner fails to avail of the remedies of new trial, appeal or relief from
judgment through her own fault or negligence before filing her petition with
the Court of Appeals, she cannot resort to the remedy under Rule 47 of the
Rules; otherwise, she would benefit from her inaction or negligence.19
It is not enough to allege in the petition that the said remedies were no
longer available through no fault of her own. The petitioner must also
explain and justify her failure to avail of such remedies. The safeguard was

incorporated in the rule precisely to avoid abuse of the remedy. 20
Access to
the courts is guaranteed. But there must be limits thereto. Once a litigants
rights have been adjudicated in a valid final judgment of a competent
court, he should not be granted an unbridled license to sue anew. The
prevailing party should not be vexed by subsequent suits.21
In this case, the petitioner failed to allege in her petition in the CA that the
ordinary remedies of new trial, appeal, and petition for relief, were no
longer available through no fault of her own. She merely alleged therein
that she received the assailed order of the trial court on January 11, 2000.
The petitioners amended petition did not cure the fatal defect in her
original petition, because although she admitted therein that she did not
avail of the remedies of new trial, appeal or petition for relief from
judgment, she did not explain why she failed to do so.
We, however, rule that the Court of Appeals erred in dismissing the original
petition and denying admission of the amended petition. This is so because
apparently, the Court of Appeals failed to take note from the material
allegations of the petition, that the petition was based not only on extrinsic
fraud but also on lack of jurisdiction over the person of the petitioner, on
her claim that the summons and the copy of the complaint in Sp. Proc. No.
NC-662 were not served on her. While the original petition and amended
petition did not state a cause of action for the nullification of the assailed
order on the ground of extrinsic fraud, we rule, however, that it states a
sufficient cause of action for the nullification of the assailed order on the
ground of lack of jurisdiction of the RTC over the person of the petitioner,
notwithstanding the absence of any allegation therein that the ordinary
remedy of new trial or reconsideration, or appeal are no longer available
through no fault of the petitioner.
In a case where a petition for the annulment of a judgment or final order of
the RTC filed under Rule 47 of the Rules of Court is grounded on lack of
jurisdiction over the person of the defendant/respondent or over the nature
or subject of the action, the petitioner need not allege in the petition that
the ordinary remedy of new trial or reconsideration of the final order or
judgment or appeal therefrom are no longer available through no fault of
her own. This is so because a judgment rendered or final order issued by
the RTC without jurisdiction is null and void and may be assailed any time
either collaterally or in a direct action or by resisting such judgment or final
order in any action or proceeding whenever it is invoked, 22 unless barred
by laches.23
CIVIL LAW REVIEW | Family Code Assignment No. 4|11
In this case, the original petition and the amended petition in the Court of
Appeals, in light of the material averments therein, were based not only on
extrinsic fraud, but also on lack of jurisdiction of the trial court over the
person of the petitioner because of the failure of the sheriff to serve on her
the summons and a copy of the complaint. She claimed that the summons
and complaint were served on her son, Venancio Mariano B. Ancheta III,
who, however, failed to give her the said summons and complaint.
Even a cursory reading of the material averments of the original petition
and its annexes will show that it is, prima facie meritorious; hence, it
should have been given due course by the Court of Appeals.
In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction
is acquired by a trial court over the person of the defendant either by his
voluntary appearance in court and his submission to its authority or by
service of summons. The service of summons and the complaint on the
defendant is to inform him that a case has been filed against him and,
thus, enable him to defend himself. He is, thus, put on guard as to the
demands of the plaintiff or the petitioner. Without such service in the
absence of a valid waiver renders the judgment of the court null and
void.25 Jurisdiction cannot be acquired by the court on the person of the
defendant even if he knows of the case against him unless he is validly
served with summons.26
Summons and complaint may be served on the defendant either by
handing a copy thereof to him in person, or, if he refuses to receive and
sign for it, by tendering it to her.27 However, if there is impossibility of
prompt service of the summons personally on the defendant despite
diligent efforts to find him, service of the summons may be effected by
substituted service as provided in Section 7, Rule 14 of the said Rules:
SEC. 7. Substituted service. If, for justifiable causes, the defendant
cannot be served within a reasonable time as provided in the preceding
section, service may be effected (a) by leaving copies of the summons at
the defendants residence with some person of suitable age and discretion
then residing therein, or (b) by leaving the copies of defendants office or
regular place of business with some competent person in charge thereof.28
In Miranda v. Court of Appeals,29 we held that the modes of service should
be strictly followed in order that the court may acquire jurisdiction over the
person of the defendant. Thus, it is only when a defendant cannot be
served personally within a reasonable time that substituted service may be

made by stating the efforts made to find him and personally serve on him
the summons and complaint and the fact that such effort failed.30 This
statement should be made in the proof of service to be accomplished and
filed in court by the sheriff. This is necessary because substituted service is
a derogation of the usual method of service. It has been held that
substituted service of summons is a method extraordinary in character;
hence, may be used only as prescribed and in the circumstances
categorized by statutes.31
As gleaned from the petition and the amended petition in the CA and the
annexes thereof, the summons in Sp. Proc. No. NC-662 was issued on June
6, 1995.32 On the same day, the summons was served on and received by
Venancio Mariano B. Ancheta III,33 the petitioners son. When the return of
summons was submitted to the court by the sheriff on June 21, 1995, no
statement was made on the impossibility of locating the defendant therein
within a reasonable time, or that any effort was made by the sheriff to
locate the defendant. There was no mention therein that Venancio Mariano
Ancheta III was residing at No. 72 CRM Avenue cor. CRM Corazon, BF
Homes, Almanza, Las Pias, where the petitioner (defendant therein) was
allegedly residing. It turned out that Venancio Mariano B. Ancheta III had
been residing at Bancal, Carmona, Cavite, and that his father merely
showed him the summons and the complaint and was made to affix his
signature on the face of the summons; he was not furnished with a copy of
the said summons and complaint.
4. From the time my father started staying at Munting Paraiso,
Bancal, Carmona, Cavite, I have been residing on the adjoining
land consisting of two (2) lots later apportioned to my father as his
share of the conjugal partnership. Since then, I have been residing
therein up to the present.
5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence
situated on my fathers lot), my father came to see me and then
asked me to sign and I did sign papers which he (my father) and
the Sheriff did not allow me to read. Apparently, these papers are
for the Summons to my mother in the case for annulment of
marriage filed by my father against her. I was not given any copy
of the Summons and/or copy of the complaint/petition.34
We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the
original petition of the petitioner and the amended petition for annulment
CIVIL LAW REVIEW | Family Code Assignment No. 4|12
of the assailed order grounded on lack of jurisdiction over the person of the
petitioner.
The action in Rule 47 of the Rules of Court does not involve the merits of
the final order of the trial court. However, we cannot but express alarm at
what transpired in the court a quo as shown by the records. The records
show that for the petitioners failure to file an answer to the complaint, the
trial court granted the motion of the respondent herein to declare her in
default. The public prosecutor condoned the acts of the trial court when he
interposed no objection to the motion of the respondent. The trial court
forthwith received the evidence of the respondent ex-parte and rendered
judgment against the petitioner without a whimper of protest from the
public prosecutor. The actuations of the trial court and the public
prosecutor are in defiance of Article 48 of the Family Code, which reads:
Article 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal assigned
to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be
based upon a stipulation of facts or confession of judgment.35
The trial court and the public prosecutor also ignored Rule 18, Section 6 of
the 1985 Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of
Civil Procedure) which provides:
Sec. 6. No defaults in actions for annulment of marriage or for legal
separation. If the defendant in an action for annulment of marriage or for
legal separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties
exits, and if there is no collusion, to intervene for the State in order to see
to it that the evidence submitted is not fabricated.36
In the case of Republic v. Court of Appeals,37 this Court laid down the
guidelines in the interpretation and application of Art. 48 of the Family
Code, one of which concerns the role of the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the State:
(8) The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No decision shall be
 CIVIL LAW REVIEW | Family Code Assignment No. 4|13

handed down unless the Solicitor General issues a certification, which will one party, who claims that the other suffers psychological imbalance,
be quoted in the decision, briefly stating therein his reasons for his incapacitating such party to fulfill his or her marital duties and obligations.
agreement or opposition, as the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney, shall submit to the court IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
such certification within fifteen (15) days from the date the case is deemed Resolutions of the Court of Appeals dated July 13, 2000 and September 27,
submitted for resolution of the court. The Solicitor General shall discharge 2000 in CA-G.R. SP No. 59550 are hereby SET ASIDE and REVERSED. Let
the equivalent function of the defensor vinculi contemplated under Canon the records of CA-G.R. SP No. 59550 be remanded to the Court of Appeals
1095.38 for further proceedings conformably with the Decision of this Court and
Rule 47 of the Rules of Court, as amended.
This Court in the case of Malcampo-Sin v. Sin39 reiterated its
pronouncement in Republic v. Court of Appeals,40regarding the role of the SO ORDERED.
prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the State.41 The trial court, abetted by the ineptitude, if not
sheer negligence of the public prosecutor, waylaid the Rules of Court and
the Family Code, as well as the rulings of this Court.

The task of protecting marriage as an inviolable social institution requires

vigilant and zealous participation and not mere pro-forma compliance. The
protection of marriage as a sacred institution requires not just the defense
of a true and genuine union but the exposure of an invalid one as well.42

A grant of annulment of marriage or legal separation by default is fraught

with the danger of collusion. Hence, in all cases for annulment, declaration
of nullity of marriage and legal separation, the prosecuting attorney or
fiscal is ordered to appear on behalf of the State for the purpose of
preventing any collusion between the parties and to take care that their
evidence is not fabricated or suppressed. If the defendant-spouse fails to
answer the complaint, the court cannot declare him or her in default but
instead, should order the prosecuting attorney to determine if collusion
exists between the parties. The prosecuting attorney or fiscal may oppose
the application for legal separation or annulment through the presentation
of his own evidence, if in his opinion, the proof adduced is dubious and
fabricated.

Our constitution is committed to the policy of strengthening the family as a

basic social institution. Our family law is based on the policy that marriage
is not a mere contract, but a social institution in which the State is vitally
interested. The State can find no stronger anchor than on good, solid and
happy families. The break-up of families weakens our social and moral
fabric; hence, their preservation is not the concern of the family members
alone.43Whether or not a marriage should continue to exist or a family
should stay together must not depend on the whims and caprices of only