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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13414 February 4, 1919
JUAN GARCIA Y PALICIO, plaintiff-appelle,
vs.
JOSEFA DE MANZANO, as administratrix of the estate of her husband Narciso Lopez Manzano, defendant-appellant.
Godofredo Reyes for appellants.
Eduardo Gutierrez Repide and Felix Socias for appellee.
MOIR, J .:
In order to understand this case, a brief explanation of the facts is considered necessary.
Narciso Lopez Manzano was a merchant in Atimonan, Tayabas, who went to Spain in May, 1910, and died there the 8th of September, 1913. He gave a
general power-of-attorney to his son, Angel L. Manzano on the 9th of February, 1910, and on the 25th of March a second general power-of-attorney to
his wife, Josefa Samson.
Narciso L. Manzano had various commercial dealings before leaving for Spain.
Manzano was the owner of a half interest in a small steamer, the San Nicolas, the other half being owned by Ocejo, Perez & Co., with whom there was a
partnership agreement to run the steamer for a few years. When this period expired Ocejo, Perez & Co., refused to continue the contact and demanded
that Manzano buy or sell. As he did not want to sell at the price offered and could not buy, Juan Garcia bought the half interest held by Ocejo, Perez &
Co., on the 15th of October, 1910. Angel L. Manzano, acting under his power-of-attorney, sold in July, 1911, the other half of the boat to the plaintiff, but
as Garcia is a Spaniard and could not register the boat in his name at the Custom House, the boat was registered in the name of Agustin Garcia, a son
of the plaintiff, who at that time, July 2d, 1913, was a minor about twenty years old. Agustin Garcia shortly thereafter died, leaving his parents as his
heirs at law, and as such heirs plaintiff's wife was made a party.
On the 23rd of July, 1912, Angel L. Manzano, by virtue of the power-of-attorney from his father, Narciso L. Manzano, executed a contract, Exhibit A,
made a part of the complaint, by which Juan Garcia agreed to extend a credit to Narciso L. Manzano in the sum of P12,000, and this credit was used by
the house of Manzano. To secure it a mortgage was given in the same document on three parcels of land in Atimonan, with their improvements. The
registration of this mortgage was refused by the registrar.
The court of First Instance of Tayabas, on the 18th of April, 1914, named Josefa Samson y San Pedro, administratrix of the property of Narciso L.
Manzano, and commissioners were duly appointed, and notice was published, and no claims having been presented against the estate to the
commissioners, they so reported to the court on the 7th of December, 1914.
On the 29th of July, 1915, the Court of First Instance ordered the partition of the property amongst the heirs of Narciso L. Manzano.
On the 15th day of May, 1915, the plaintiff filed his action in the Court of First Instance of Tayabas to foreclose the so-called mortgage in Exhibit a.
Josefa de Manzano filed a pleading stating that the estate had already been divided; that the property mentioned in Exhibit A of the plaintiff had been
assigned, A and B, to her and her children and C entirely to her; that her son Angel had ceded his share to her; that all the other children were minors
and suggesting that she be made guardian ad litem for the minors. In a second motion filed the 25th of August, 1915, the defendant's attorney states the
amended complaint had not been presented as stipulated in open court and prays the court that instead of the administratrix the heirs of Narciso L.
Manzano be considered defendants and the names of the heirs including Josefa de Manzano are given.
Plaintiff filed his amended complaint on the 24th of August, making them individually defendants, the minors to be represented by their guardian ad
litem, and asking for a judgment against each and all of them for P14,087.59, being the amount then due on the open account and for P2,700 as
attorney's fees, all secured by the so-called mortgage; and that in case the judgment was not paid, that the mortgaged property be sold to pay the debt.
The defendants, "Josefa de Manzano y otros," filed an answer on September 4, 1915, stating they knew such a mortgage document set up in the
complaint existed, but as they were not certain that Exhibit A was an exact copy, they denied the document; they denied its efficacy and legal effect; they
denied the jurisdiction of the court to hear and decide the case, and alleged that the action had prescribed.
They alleged no facts in their answer.
The defendants also filed a counter-claim against Juan Garcia and his wife, Conception Castro, in which they allege that Narciso L. Manzano was the
owner of one-half of the small steamer San Nicolas and Juan Garcia the owner of the half; that Garcia taking advantage of the youth and inexperience of
Angel L. Manzano falsely and maliciously made him believe that he had authority under the power-of-attorney from his father to sell the half interest in
the San Nicolas, and that he did so. That Angel L. Manzano had no authority to sell the interest in the steamer, but that since the date of said sale, July,
1912, (1911?) the plaintiff had illegally appropriated all rents and profits of the boat to his own use, which amount to P30,000 per year, after paying for all
repairs, etc., and they ask the court to absolve them from the complaint, to declare them the owners of one-half of the steamer San Nicolas, and to order
the plaintiffs to render a detailed account of all the profits received from the San Nicolas, and to order one-half of the profits paid to the defendants.
There are other immaterial questions presented by the counterclaim.
The trial court held there was not legal mortgage and gave judgment for the plaintiff against Josefa Samson only, for the amount admitted by her letter to
be due, i.e., P12,752.85, and dismissed the claim against the other defendants and also dismissed the counterclaim of defendants. The plaintiffs did not
appeal. All of the defendants presented a motion for a new trial, but only the defendant Josefa de Manzano excepted to the order of the court denying
the motion for new trial, and she sets up the following assignments of error in the decision giving judgment against her individually. (The alleged errors of
the trial court regarding the counterclaim are set out later.)
1. The court exceeded its jurisdiction in deciding a question and granting a relief not comprised within the pleadings and contentions
of the parties.
2. The trial court acted without jurisdiction on judging and holding that there was a novation of the debt.
3. The trial court erred in an essential mater in holding that there was a novation of the debt.
The argument presented in support of the first error assigned is that the action was against the administratrix of the estate and not against the heirs
individually. What are the facts? The original action was presented against Josefa de Manzano as administratrix of her deceased husband, Narciso L.
Manzano, on May 15, 1915. The defendant's attorneys on the 6th of August filed a pleading stating that the estate had been distributed by the court on
the 27th of July, and giving the names of the heirs and stating that some are minors for whom the mother "is the guardian" and agreeing that she be
named guardian ad litem for the minors which was done by the court's order dated the 4th of September, and she took the oath prescribed by law for
such guardian.
On the 25th of August the same attorneys filed another pleading saying the time stipulated by the parties in open court for filing an amended complaint
had passed, that the complaint had not been presented and "Wherefore they respectfully request the Honorable Court that, in place of the defendant-
administratrix, the heirs of the late Narciso L. Manzano, whose names are Josefa Samson de Manzano, widow, Paz Manzano, Matilde Manzano,
Soledad Manzano, Carmelo Manzano, Narciso Manzano, and Jose Manzano, be considered defendants in this case," The first two of legal age and
the others minors, and they pray that Josefa Samson be named guardian ad litem for the minors, which the court did. The plaintiff's amended complaint
making all the above heirs and Angel L. Manzano defendants by name had been filed in the clerk's office the day before but it is assumed the
defendants were not then aware of the fact.
The defendants filed their answer on September 4th 1915, which is headed "Josefa de Manzano y Otros, demandados." The court's judgment is against
them individually.
It is difficult to conceive what more defendants could want in order to make them individually defendants, or what effect they intended their pleadings to
have if they were not to be considered as defendants. The only thing that might be considered as lacking is an order of the court admitting the amended
complaint, but his admission was supplied by the facts of defendants themselves. All the parties were before the court individually and the court could
only give judgment against them individually if they were obligated individually.
When the whole record shows that the trial proceeded on the theory set up in an amended complaint this court will not inquire as to whether the court
actually entered an order admitting the amended complaint. There is no error in this part of the decision.
The other two errors assigned will be considered together.
The nature of the action having been changed from one against the administratrix to one against the heirs individually, the action against the other heirs
was dismissed and judgment was given by the Court against Josefa Samson de Manzano individually, basing its decision on the following letter:
September 10, 1913.
Mr. Juan Garcia.
Manila, Philippine Islands.
Dear Sir: In reply to your favor which I have received together with a copy of my current account kept in your city, showing a balance
of P12,752.852, I have to state that I find the same entirely satisfactory.
I hope to be able to remit a part of the sum during the month of October.
I remain,
Yours respectfully.
(Sgd.) JOSEFA DE MANZANO.
This letter was written two days after the death of Narciso L. Manzano. Is it a novation of the obligation of her husband?
Article 1205 of the Civil Code reads as follows:
Novation which consists in the substitution of a new debtor in the place of the original one may be made without the knowledge of
the later, but not without the consent of the creditor.
If the creditor Garcia had consented to the substitution of debtors in this case, he would not have presented his original action against the administratrix
of Narciso L. Manzano and later against all the heirs, but against Josefa de Manzano only.
As much as justice may plead for it, we can see nothing in the letter which would made appellant personally liable.
There is no denial that the debt is a justice one against the estate. The judgment is based on the letter which was not intended by the writer to make her
personally liable, and was not considered by the plaintiff to make her personally responsible. There was not novation of the obligation and the part of the
judgment holding her liable must be reversed.
The defendants set up the following assignment of errors as to their counterclaim against plaintiffs:
1. The trial court erred in holding that the power of attorney executed in favor of Angel L. Manzano was not revoked, at least in so
far as it might concern the plaintiff Juan Garcia Palicio.
2. The court below erred in holding that the power of attorney executed by Narciso L. Manzano in favor of Angel L. Manzano
authorized the latter to alienate the vessel San Nicolas.
3. The trial court erred in holding that the sale of the vessel San Nicolas was approved by Narciso L. Manzano.
4. The trial court erred in holding that Angel L. Manzano, in executing the sale, did not do so under the pressure of undue
influences.
As to the first two alleged errors the defendants argue that the power-of-attorney to the wife revoked the one to the son, in accordance with article 1735
of the Civil code, and that even if not revoked the power-of-attorney did not authorize the sale of the boat by Angel L. Manzano. Article 1735 of the Civil
code is as follows:
The appointment of a new agent for the same business produces a revocation of the previous agency from the day on which notice
was given to the former agent, excepting the provisions of the next preceding article.
There is no proof in the record that the first agent, the son, knew of the power-of-attorney to his mother.
It was necessary under the law for the defendants, in order to establish their counterclaim, to prove that the son had notice of the second power-of-
attorney. They have not done so, and it must be considered that Angel L. Manzano was acting under a valid power-of-attorney from his father which had
not been legally revoked on the date of the sale of the half interest in the steamer to the plaintiff's son, which half interest was legally inherited by the
plaintiffs.
The defendant's next argument is that the power-of-attorney, if valid, does not authorize the sale of the half interest in the boat to the plaintiff.
There is no pretense that the boat was not sold for a fair price, there is no denial that the value was received in full, but he defendants allege that the
power-of-attorney under which Angel L. Manzano acted, even if a valid power, did not authorize the sale of the boat, and they want it back it with one-
half of the profits derived from its use by the plaintiff.
The document under which Angel L. Manzano sold the boat reads in part as follows:
To enable him to buy or sell, absolutely or under pacto de retro, any of the rural or urban estates that now own and may acquire in
the future, at such price as he may deem most advantageous, which he shall collect in cash or by installments and under such
conditions as he may consider proper, and he shall set forth the encumbrances on the properties and their origin. I bind myself to
warrant and defend, in accordance with law, the titles to such properties; and if the properties alienated by this agreement should be
redeemed, he is empowered to redeem them by paying the price that may have been fixed, and, for this purpose, shall execute the
proper instrument.
The power-of-attorney authorizes the sale of real property, the buying of real property and mortgaging the same the borrowing of money and in fact is
general and complete.
The power does not expressly state that the agent may sell the boat, but a power so full and complete authoring the sale of real property, must
necessarily carry with it the right to sell a half interest in a small boat. The record further shows the sale was necessary in order to get money or a credit
without which it would be impossible to continue the business which was being conducted in the name of Narciso L. Manzano and for his benefit.
We consider that the authorization is so complete that it carries with it full authority to sell the one-half interest in the boat which was then owned by
Narciso L. Manzano.
The last assignment of error is not supported by any reasonable evidence in the record.
That part of the judgement ordering the defendant Josefa Samson de Manzano to pay the plaintiff P12,752.85 is revoked, and the judgment in so far as
it dismisses the counterclaim of the defendants is affirmed, without any declaration of costs. So ordered.
Arellano, C.J., Carson, Street and Avancea, JJ., concur.
Johnson, J., took no part.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19565 January 30, 1968
ESTRELLA DE LA CRUZ, plaintiff-appellee,
vs.
SEVERINO DE LA CRUZ, defendant-appellant.
Estacion and Paltriguera for plaintiff-appellee.
Manuel O. Soriano and Pio G. Villoso for defendant-appellant.
CASTRO, J .:
The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of Negros Occidental, alleging in essence that her
husband, the defendant Severino de la Cruz, had not only abandoned her but as well was mismanaging their conjugal partnership properties, and
praying for (1) separation of property, (2) monthly support of P2,500 during the pendency of the action, and (3) payment of P20,000 as attorney's fees,
and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as alimony pendente lite, which however, upon defendant's motion,
was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal assets, and directing the defendant to pay to the
plaintiff the sum of P20,000 as attorney's fees, with legal interest from the date of the original complaint, that is, from July 22, 1958, until fully paid, plus
costs. From this judgment the defendant appealed to the Court of Appeals, which certified the case to us, "it appearing that the total value of the
conjugal assets is over P500,000".
The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on February 1, 1938. Six children were born to them,
namely, Zenia (1939), Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven parcels
of land of the Bacolod Cadastre, all assessed at P45,429, and three parcels of the Silay Cadastre, all assessed at P43,580. All these parcels are
registered in their names. The hacienda in Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of December 31, 1956 at P496,006.92, from which they obtained for that
year a net profit of P75,655.78. The net gain of the Philippine Texboard Factory, the principal business of the spouses, was P90,454.48 for the year
1957. As of December 31, 1959, the total assets of the various enterprises of the conjugal partnership were valued at P1,021,407.68, not including those
of the Top Service Inc., of which firm the defendant has been the president since its organization in 1959 in Manila with a paid-up capital of P50,000,
P10,000 of which was contributed by him. This corporation was the Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the
Green Valley Subdivision in Las Pias, Rizal, and a lot and building located at M. H. del Pilar, Manila purchased for P285,000, an amount borrowed from
the Manufacturer's Bank and Trust Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of the Philippines for loans obtained, to secure which they
mortgaged the Philippine Texboard Factory, the Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes to the court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by the defendant to the conjugal abode to see his wife
was on June 15, 1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the defendant were far from cordial, and that it was from 1948 that the
former has been receiving an allowance from the latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife the business activities of the partnership, and that this silence
constituted "abuse of administration of the conjugal partnerships";
6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of the plaintiff and thru false pretences to which the
latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and, on the other hand, in not allowing the defendant
to establish his special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of P20,000, with interest at the legal rate.1wph1.t
Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the defendant from the plaintiff constitute abandonment in law
that would justify a separation of the conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff of the state of
their business enterprises such an abuse of his powers of administration of the conjugal partnership as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955, although he occasionally returned to Bacolod City,
sleeping in his office at the Philippine Texboard Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the
defendant had not slept in the conjugal dwelling, although in the said year he paid short visits during which they engaged in brief conversations. After
1955 up to the time of the trial, the defendant had never visited the conjugal abode, and when he was in Bacolod, she was denied communication with
him. He has abandoned her and their children, to live in Manila with his concubine, Nenita Hernandez. In 1949 she began to suspect the existence of
illicit relations between her husband and Nenita. This suspicion was confirmed in 1951 when she found an unsigned note in a pocket of one of her
husband's polo shirt which was written by Nenita and in which she asked "Bering" to meet her near the church. She confronted her husband who
forthwith tore the note even as he admitted his amorous liaison with Nenita. He then allayed her fears by vowing to forsake his mistress. Subsequently,
in November 1951, she found in the iron safe of her husband a letter, exh. C, also written by Nenita. In this letter the sender (who signed as "D")
apologized for her conduct, and expressed the hope that the addressee ("Darling") could join her in Baguio as she was alone in the Patria Inn and lonely
in "a place for honeymooners". Immediately after her husband departed for Manila the following morning, the plaintiff enplaned for Baguio, where she
learned that Nenita had actually stayed at the Patria Inn, but had already left for Manila before her arrival. Later she met her husband in the house of a
relative in Manila from whence they proceeded to the Avenue Hotel where she again confronted him about Nenita. He denied having further relations
with this woman.
Celia Baez, testifying for the plaintiff, declared that she was employed as a cook in the home of the spouses from May 15, 1955 to August 15, 1958,
and that during the entire period of her employment she saw the defendant in the place only once. This declaration is contradicted, however, by the
plaintiff herself who testified that in 1955 the defendant "used to have a short visit there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted that in 1957, or a year before the filing of the action, he started
to live separately from his wife. When he transferred his living quarters to his office in Mandalagan, Bacolod City, his intention was not, as it never has
been, to abandon his wife and children, but only to teach her a lesson as she was quarrelsome and extremely jealous of every woman. He decided to
live apart from his wife temporarily because at home he could not concentrate on his work as she always quarreled with him, while in Mandalagan he
could pass the nights in peace. Since 1953 he stayed in Manila for some duration of time to manage their expanding business and look for market
outlets for their texboard products. Even the plaintiff admitted in both her original and amended complaints that "sometime in 1953, because of the
expanding business of the herein parties, the defendant established an office in the City of Manila, wherein some of the goods, effects and merchandise
manufactured or produced in the business enterprises of the parties were sold or disposed of". From the time he started living separately in Mandalagan
up to the filing of the complaint, the plaintiff herself furnished him food and took care of his laundry. This latter declaration was not rebutted by the
plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family, averring that he has never failed, even for a single month, to give
them financial support, as witnessed by the plaintiff's admission in her original and amended complaints as well as in open court that during the entire
period of their estrangement, he was giving her around P500 a month for support. In point of fact, his wife and children continued to draw allowances
from his office of a total ranging from P1,200 to P1,500 a month. He financed the education of their children, two of whom were studying in Manila at the
time of the trial and were not living with the plaintiff. While in Bacolod City, he never failed to visit his family, particularly the children. His wife was always
in bad need of money because she played mahjong, an accusation which she did not traverse, explaining that she played mahjong to entertain herself
and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of the defendant on the matter of the support the latter
gave to his family, by declaring in court that since the start of his employment in 1950 as assistant general manager, the plaintiff has been drawing an
allowance of P1,000 to P1,500 monthly, which amount was given personally by the defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita Hernandez when she was barely 12 years old, but had lost
track of her thereafter. His constant presence in Manila was required by the pressing demands of an expanding business. He denied having destroyed
the alleged note which the plaintiff claimed to have come from Nenita, nor having seen, previous to the trial, the letter exh. C. The allegation of his wife
that he had a concubine is based on mere suspicion. He had always been faithful to his wife, and not for a single instance had he been caught or
surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal partnership, the plaintiff declared that the defendant
refused and failed to inform her of the progress of their various business concerns. Although she did not allege, much less prove, that her husband had
dissipated the conjugal properties, she averred nevertheless that her husband might squander and dispose of the conjugal assets in favor of his
concubine. Hence, the urgency of separation of property.
The defendant's answer to the charge of mismanagement is that he has applied his industry, channeled his ingenuity, and devoted his time, to the
management, maintenance and expansion of their business concerns, even as his wife threw money away at the mahjong tables. Tangible proof of his
endeavors is that from a single cargo truck which he himself drove at the time of their marriage, he had built up one business after another, the
Speedway Trucking Service, the Negros Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and miscellaneous other business
enterprises worth over a million pesos; that all that the spouses now own have been acquired through his diligence, intelligence and industry; that he has
steadily expanded the income and assets of said business enterprises from year to year, contrary to the allegations of the complainant, as proved by his
balance sheet and profit and loss statements for the year 1958 and 1959 (exhibits 1 and 2); and that out of the income of their enterprises he had
purchased additional equipment and machineries and has partially paid their indebtedness to the Philippine National Bank and the Development Bank of
the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to prove concubinage on the part of the defendant,
while pertinent and material in the determination of the merits of a petition for legal separation, must in this case be regarded merely as an attempt to
bolster her claim that the defendant had abandoned her, which abandonment, if it constitutes abandonment in law, would justify separation of the
conjugal assets under the applicable provisions of article 178 of the new Civil Code which read: "The separation in fact between husband and wife
without judicial approval, shall not affect the conjugal partnership, except that . . . if the husband has abandoned the wife without just cause for at least
one year, she may petition the court for a receivership, or administration by her of the conjugal partnership property, or separation of property". In
addition to abandonment as a ground, the plaintiff also invokes article 167 of the new Civil Code in support of her prayer for division of the matrimonial
assets. This article provides that "In case of abuse of powers of administration of the conjugal partnership property by the husband, the courts, on the
petition of the wife, may provide for a receivership, or administration by the wife, or separation of property". It behooves us, therefore, to inquire, in the
case at bar, whether there has been abandonment, in the legal sense, by the defendant of the plaintiff, and/or whether the defendant has abused his
powers of administration of the conjugal partnership property, so as to justify the plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the defendant is not guilty of abandonment of his wife, nor of such
abuse of his powers of administration of the conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the husband for at least one year are the same as
those granted to her by article 167 in case of abuse of the powers of administration by the husband. To entitle her to any of these remedies, under article
178, there must be real abandonment, and not mere separation.
1
The abandonment must not only be physical estrangement but also amount to
financial and moral desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit words, we nevertheless can determine its meaning
from the context of the Law as well as from its ordinary usage. The concept of abandonment in article 178 may be established in relation to the
alternative remedies granted to the wife when she has been abandoned by the husband, namely, receivership, administration by her, or separation of
property, all of which are designed to protect the conjugal assets from waste and dissipation rendered imminent by the husband's continued absence
from the conjugal abode, and to assure the wife of a ready and steady source of support. Therefore, physical separation alone is not the full meaning of
the term "abandonment", if the husband, despite his voluntary departure from the society of his spouse, neither neglects the management of the
conjugal partnership nor ceases to give support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce utterly.
2
The dictionaries trace this word to the root idea of
"putting under a bar". The emphasis is on the finality and the publicity with which some thing or body is thus put in the control of another, and hence the
meaning of giving up absolutely, with intent never again to resume or claim one's rights or interests.
3
When referring to desertion of a wife by a husband,
the word has been defined as "the act of a husband in voluntarily leaving his wife with intention to forsake her entirely, never to return to her, and never
to resume his marital duties towards her, or to claim his marital rights; such neglect as either leaves the wife destitute of the common necessaries of life,
or would leave her destitute but for the charity of others."
4
The word "abandonment", when referring to the act of one consort of leaving the other, is "the
act of the husband or the wife who leaves his or her consort wilfully, and with an intention of causing per perpetual separation."
5
Giving to the word
"abandoned", as used in article 178, the meaning drawn from the definitions above reproduced, it seems rather clear that to constitute abandonment of
the wife by the husband, there must be absolute cessation of marital relations and duties and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and children permanently. The record conclusively shows
that he continued to give support to his family despite his absence from the conjugal home. This fact is admitted by the complainant, although she
minimized the amount of support given, saying that it was only P500 monthly. There is good reason to believe, however, that she and the children
received more than this amount, as the defendant's claim that his wife and children continued to draw from his office more than P500 monthly was
substantially corroborated by Marcos Ganaban, whose declarations were not rebutted by the plaintiff. And then there is at all no showing that the plaintiff
and the children were living in want. On the contrary, the plaintiff admitted, albeit reluctantly, that she frequently played mahjong, from which we can infer
that she had money; to spare.
The fact that the defendant never ceased to give support to his wife and children negatives any intent on his part not to return to the conjugal abode and
resume his marital duties and rights. In People v. Schelske,
6
it was held that where a husband, after leaving his wife, continued to make small
contributions at intervals to her support and that of their minor child, he was not guilty of their "abandonment", which is an act of separation with intent
that it shall be perpetual, since contributing to their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not abandon his
family where the evidence disclosed that he almost always did give his wife part of his earnings during the period of their separation and that he
gradually paid some old rental and grocery bills.
With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the findings of the court a quo, that the evidence on
record fails to preponderate in favor of the plaintiff's thesis. The proof that Nenita Hernandez was the concubine of the defendant and that they were
living as husband and wife in Manila, is altogether too indefinite. Aside from the uncorroborated statement of the plaintiff that she knew that Nenita
Hernandez was her husband's concubine, without demonstrating by credible evidence the existence of illicit relations between Nenita and the defendant,
the only evidence on record offered to link the defendant to his alleged mistress is exh. C. The plaintiff however failed to connect authorship of the said
letter with Nenita, on the face whereof the sender merely signed as "D" and the addressee was one unidentified "Darling". The plaintiff's testimony on
cross-examination, hereunder quoted, underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that right?
A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but, my question is this: In view of the fact that you have never received a letter
from Nenita, you have ot sent any letter to her, you are not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership property, the record presents a different picture. There is absolutely
no evidence to show that he has squandered the conjugal assets. Upon the contrary, he proved that through his industry and zeal, the conjugal assets at
the time of the trial had increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as administrator of the conjugal partnership to inform the wife of the
progress of the family businesses constitutes abuse of administration. For "abuse" to exist, it is not enough that the husband perform an act or acts
prejudicial to the wife. Nor is it sufficient that he commits acts injurious to the partnership, for these may be the result of mere inefficient or negligent
administration. Abuse connotes willful and utter disregard of the interests of the partnership, evidenced by a repetition of deliberate acts and/or
omissions prejudicial to the latter.
7

If there is only physical separation between the spouses (and nothing more), engendered by the husband's leaving the conjugal abode, but the husband
continues to manage the conjugal properties with the same zeal, industry, and efficiency as he did prior to the separation, and religiously gives support
to his wife and children, as in the case at bar, we are not disposed to grant the wife's petition for separation of property. This decision may appear to
condone the husband's separation from his wife; however, the remedies granted to the wife by articles 167 and 178 are not to be construed as
condonation of the husband's act but are designed to protect the conjugal partnership from waste and shield the wife from want. Therefore, a denial of
the wife's prayer does not imply a condonation of the husband's act but merely points up the insufficiency or absence of a cause of action.1wph1.t
Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of conjugal properties because the basic policy of the law is
homiletic, to promote healthy family life and to preserve the union of the spouses, in person, in spirit and in property.
Consistent with its policy of discouraging a regime of separation as not in harmony with the unity of the family and the mutual affection and
help expected of the spouses, the Civil Code (both old and new) requires that separation of property shall not prevail unless expressly
stipulated in marriage settlements before the union is solemnized or by formal judicial decree during the existence of the marriage (Article 190,
new Civil Code, Article 1432, old Civil Code): and in the latter case, it may only be ordered by the court for causes specified in Article 191 of
the new Civil Code.
8

Furthermore, a judgment ordering the division of conjugal assets where there has been no real abandonment, the separation not being wanton and
absolute, may altogether slam shut the door for possible reconciliation. The estranged spouses may drift irreversibly further apart; the already broken
family solidarity may be irretrievably shattered; and any flickering hope for a new life together may be completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the devaluation of the Philippine peso in 1962, should be
increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal abode, has given cause for the plaintiff to seek
redress in the courts, and ask for adequate support, an award of attorney's fees to the plaintiff must be made. Ample authority for such award is found in
paragraphs 6 and 11 of article 2208 of the new Civil Code which empower courts to grant counsel's fees "in actions for legal support" and in cases
"where the court deems it just and equitable that attorney's fees . . . should be recovered." However, an award of P10,000, in our opinion, is, under the
environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law enjoins husband and wife to live together, and,
secondly, exhort them to avail of mutually, earnestly and steadfastly all opportunities for reconciliation to the end that their marital differences may
be happily resolved, and conjugal harmony may return and, on the basis of mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is reversed and set aside. Conformably to our
observations, however, the defendant is ordered to pay to the plaintiff, in the concept of support, the amount of P3,000 per month, until he shall have
rejoined her in the conjugal home, which amount may, in the meantime, be reduced or increased in the discretion of the court a quo as circumstances
warrant. The award of attorney's fees to the plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-20379 June 22, 1965
IN THE MATTER OF THE VOLUNTARY DISSOLUTION OF THE CONJUGAL PARTNERSHIP OF JOSE BERMAS, SR. and PILAR MANUEL
BERMAS and SEPARATION OF PROPERTY, JOSE BERMAS, SR. and PILAR MANUEL BERMAS, petitioners-appellants.
Virginia. M. Ramos for petitioners-appellants.
CONCEPCION, J .:
This is an appeal from a decision of the Court of First Instance of Zamboanga City denying the petition of appellants Jose Bermas, Sr. and Pilar Manuel
Bermas for the voluntary dissolution of their conjugal partnership and the establishment between them of the regime of separation of property as set
forth in the deed, Exhibit Q.
The same is entitled "Agreement for Dissolution of Conjugal Partnership and Separation of Property." It was executed by the petitioners on May 31,
1962. It states that they are and have been legally married since December 24, 1932; that they have two children, namely, Manuel T. and Ruben J.
Bermas, both of age and married; that, during their marriage, petitioners have acquired twelve (12) parcels of land and two (2) buildings, described in
Exhibit Q; that believing that it will redound to their mutual advantage, benefit and gain, and preserve peace and harmony in the family, as well as
prevent friction, dissension and confusion among their respective heirs in the future, particularly because petitioner Jose Bermas, Sr. has two (2) sets of
children, one by a former marriage, and another by his present wife, the other petitioner, said petitioners have mutually agreed to dissolve their conjugal
partnership, and to the establishment of a separation of properties in the manner specified in the contract. Thereupon, the same proceeds to enumerate
the properties that shall belong exclusively to Pilar Manuel Bermas and those that shall belong in fee simple to Jose Bermas. Sr. The contract, likewise,
contains a stipulation concerning the income derived from rentals, as well as a quitclaim by each party in favor of the other, and provides that, thereafter,
any property acquired by any or both of the patties shall pertain to him or her exclusively, or to both as co-owners, as the case may be.
Soon after the execution of this contract, or on June 11, 1962, the petitioners filed with said court the aforementioned petition, alleging therein that they
are married as above stated; that they have the two (2) children abovementioned; that petitioners have executed the aforementioned agreement; that a
voluntary dissolution of the conjugal partnership during the marriage is allowed, under Article 191 of the Civil Code, subject to judicial approval; that
petitioners and their conjugal partnership have no outstanding debts or obligations; and that the dissolution of said conjugal partnership and the
separation of property agreed upon between the petitioners would not prejudice any creditor or third person. Premised upon these allegations,
petitioners prayed for the dissolution of said conjugal partnership and the approval of said agreement for separation of properties between them.
Upon the filing of the petition, the court issued an order setting it for hearing on July 7, 1962, and caused a notice to that effect to be published in a
newspaper of general circulation in Zamboanga City, once a week, for three (3) consecutive weeks. After said hearing, the court rendered the appealed
decision, denying the petition upon the ground that, under Article 192 of the Civil Code of the Philippines, a conjugal partnership shall only be dissolved
once legal separation has been ordered, and this cannot take place, pursuant to Article 191 of the same Code, except upon civil interdiction declaration
of absence or abandonment. Hence, this appeal by the petitioners who maintain that, with judicial approval, a conjugal partnership may also be
dissolved, upon agreement of the spouses. Indeed, the fourth paragraph of said Article 191 reads:
The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the creditors
of the husband and of the wife as well as of the conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of
the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of
the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons.
It should be noted this connection, that, although petitioner Jose Bermas, Sr. admittedly has children by a previous marriage, their names have not been
given in either Exhibit Q or the petition for the approval thereof, despite the fact that his children with his co-petitioner have been named in both.
Consequently, said children by first marriage of petitioner Jose Bermas, Sr. do not appear to have been notified personally of the filing of the petition and
of the date of the hearing thereof. In fact, no similar notice appears to have been given to the children of the petitioners herein, although the danger of
substantial injury to rights would seem to be remote.
The situation as regards the children by first marriage is, however, materially different. Indeed, the contract, Exhibit Q, purports to dissolve and, hence,
liquidate the conjugal partnership between the petitioners. But, this liquidation should not and cannot be effected without a liquidation of the conjugal
partnership between Jose Bermas, Sr. and his first wife, in which the children by first marriage certainly have an interest (Onas v. Javillo, 59 Phil. 733,
737). At any rate, said Exhibit Q could adversely affect the rights of said children by first marriage, for, "in case of doubt, the partnership property shall
be divided between the different (conjugal) partnerships in proportion to the duration of each and to the property belonging to the respective spouses,"
as provided in Article 189 of the aforementioned Code (Article 1431 of the Spanish Civil Code). Hence it is essential that said children by previous
marriage be personally notified of the instant proceedings, and that, for this purpose, their names and addresses, as well as the addresses of the
children of herein petitioners, be furnished by them.
WHEREFORE, the decision from is hereby set aside, and the case remanded to the lower court for further proceedings in conformity with this decision.
It is so ordered.
Bengzon, C.J., Reyes, J.B.L., Paredes, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Bautista Angelo, J., took no part.
Barrera, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23482 August 30, 1968
ALFONSO LACSON, petitioner,
vs.
CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents.
-----------------------------
G.R. No. L-23767 August 30, 1968
CARMEN SAN JOSE-LACSON, plaintiff-appellant,
vs.
ALFONSO LACSON, defendant-appellee.
-----------------------------
G.R. No. L-24259 August 30, 1968
ALFONSO LACSON, petitioner-appellee,
vs.
CARMEN SAN JOSE-LACSON, petitioner-appellant.
Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San Jose-Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
CASTRO, J .:
These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common fundamental issue the resolution of which will
necessarily and inescapably resolve all the other issues. Thus their joinder in this decision.
The antecedent facts are not disputed.
Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter referred to as the respondent spouse) were
married on February 14, 1953. To them were born four children, all alive.
On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, and commenced to reside in Manila. She
filed on March 12, 1963 a complaint docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of Manila (hereinafter referred to as
the JDRC) for custody of all their children as well as support for them and herself.
However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an amicable settlement respecting custody of the
children, support, and separation of property. On April 27, 1963 they filed a joint petition dated April 21, 1963, docketed as special proceeding 6978 of
the Court of First Instance of Negros Occidental (hereinafter referred to as the CFI).
The important and pertinent portions of the petition, embodying their amicable settlement, read as follows:
3. Petitioners have separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left their conjugal home at the Santa Clara
Subdivision, Bacolod City, did not return, and decided to reside in Manila.
4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial approval as required by Article 191 of
the Civil Code of the Philippines the particular terms and conditions of their mutual agreement being as follows:
(a) There will be separation of property petitioner Carmen San Jose-Lacson hereby waiving any and all claims for a share in
property that may be held by petitioner Alfonso Lacson since they have acquired no property of any consequence.
(b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate estate as they may acquire without
the consent of the other and all earnings from any profession, business or industry as may be derived by each petitioner shall
belong to that petitioner exclusively.
(c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to petitioner Alfonso Lacson and the
custody of the younger children named Gerrard and Ramon shall be awarded to petitioner Carmen San Jose-Lacson.
(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance of P300.00 for the support of the
children in her custody.
(e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the other at their respective residences
and, during the summer months, the two children in the custody of each petitioner shall be given to the other except that, for this
year's summer months, all four children shall be delivered to and remain with petitioner Carmen San Jose-Lacson until June 15,
1963 on which date, she shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso Lacson this
judgment of course being subject to enforcement by execution writ and contempt.
5. Petitioners have no creditors.
WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties pursuant to Article 191 of the Civil Code
of the Philippines and thereafter that the Court enter its judicial approval of the foregoing agreement for the dissolution of their conjugal
partnership and for separation of property, except that the Court shall immediately approve the terms set out in paragraph 4 above and
embody the same in a judgment immediately binding on the parties hereto to the end that any non-compliance or violation of its terms by one
party shall entitle the other to enforcement by execution writ and contempt even though the proceedings as to creditors have not been
terminated.".
Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez, presiding) issued an order on April 27, 1963, rendering
judgment (hereinafter referred to as the compromise judgment) approving and incorporating in toto their compromise agreement. In compliance with
paragraph 4 (e) of their mutual agreement (par. 3[e] of the compromise judgment), the petitioner spouse delivered all the four children to the respondent
spouse and remitted money for their support.
On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she "entered into and signed the ... Joint Petition as the only
means by which she could have immediate custody of the ... minor children who are all below the age of 7," and thereafter prayed that she "be
considered relieved of the ... agreement pertaining to the custody and visitation of her minor children ... and that since all the children are now in her
custody, the said custody in her favor be confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said motion and moved to
dismiss the complaint based, among other things, on the grounds of res judicata and lis pendens. The JDRC on May 28, 1963, issued an order which
sustained the petitioner spouse's plea of bar by prior judgment and lis pendens, and dismissed the case. After the denial of her motion for
reconsideration, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32608-R) wherein she raised, among others, the
issue of validity or legality of the compromise agreement in connection only with the custody of their minor children. On October 14, 1964 the Court of
Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767), since "no hearing on the facts was ever held in the court below no
evidence, testimonial or documentary, presented only a question of law pends resolution in the appeal." .
The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the compromise judgment dated April 27, 1963 rendered in
special proceeding 6978 of the CFI, wherein she also alleged, among others, that she entered into the joint petition as the only means by which she
could have immediate custody of her minor children, and thereafter prayed the CFI to reconsider its judgment pertaining to the custody and visitation of
her minor children and to relieve her from the said agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion for
execution of the compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin, presiding), in its order dated June 22, 1963,
denied the respondent spouse's motion for reconsideration, granted the petitioner spouse's motion for execution, and ordered that upon "failure on the
part of Carmen San Jose-Lacson to deliver the said children [i.e., to return the two older children Enrique and Maria Teresa in accordance with her
agreement with Alfonso Lacson] to the special sheriff on or before June 29, 1963, she may be held for contempt pursuant to the provisions of Rule 39
sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From the aforesaid compromise judgment dated April 27, 1963 and execution
order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32798-R) wherein she likewise
questioned the validity or legality of her agreement with the petitioner spouse respecting custody of their children. On February 11, 1965 the Court of
Appeals also certified the said appeal to the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the trial court and
... appellant did not specifically ask to be allowed to present evidence on her behalf." .
The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R. No. 32384R), now the subject of an appeal by
certiorari to this Court (G.R. No. L-23482). In her petition for certiorari dated June 27, 1963, she averred that the CFI (thru Judge Querubin) committed
grave abuse of discretion and acted in excess of jurisdiction in ordering the immediate execution of the compromise judgment in its order of June 22,
1963, thus in effect depriving her of the right to appeal. She prayed for (1) the issuance of a writ of preliminary injunction enjoining the respondents
therein and any person acting under them from enforcing, by contempt proceedings and other means, the writ of execution issued pursuant to the order
of the respondent Judge Querubin dated June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside, after hearing, of the compromise
judgment dated April 27, 1963 and the order dated June 22, 1963, and (3) the awarding of the custody of Enrique and Maria Teresa to her, their mother.
As prayed for, the Court of Appeals issued ex parte a writ of preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for
execution of the compromise judgment rendered in special proceeding 6978. The petitioner spouse filed an urgent motion dated July 5, 1963 for the
dissolution of the writ of preliminary injunction ex parte which urgent motion was denied by the Court of Appeals in its resolution dated July 9, 1963. The
petitioner spouse likewise filed his answer. After hearing, the Court of Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-
R) its decision granting the petition for certiorari and declaring null and void both (a) the compromise judgment dated April 27, 1963 in so far as it relates
to the custody and right of visitation over the two children, Enrique and Teresa, and (b) the order dated June 22, 1963 for execution of said judgment.
The petitioner spouse moved to reconsider, but his motion for reconsideration was denied by the Court of Appeals in its resolution dated July 31, 1964.
From the decision dated May 11, 1964 and the resolution dated July 31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated,
and assigned the following errors:
(1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution of the compromise judgment.
(2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of the compromise judgment which is involved in two
appeals, instead of the issue of grave abuse of discretion in ordering its execution.
(3) The Court of Appeals erred in ruling that the compromise agreement upon which the judgment is based violates article 363 of the Civil
Code. 1wph1.t
As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the compromise agreement entered into by the parties and
the judgment of the CFI grounded on the said agreement, are conformable to law.
We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid with respect to the separation of
property of the spouses and the dissolution of the conjugal partnership.
The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided judicial sanction is secured beforehand.
Thus the new Civil Code provides:
In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall
not take place save in virtue of a judicial order. (Art. 190, emphasis supplied)
The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the
creditors of the husband and of the wife, as well as of the conjugal partnership, shall be notified of any petition for judicial approval of the
voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon
approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other
third persons. (Art. 191, par. 4, emphasis supplied).
In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of their conjugal partnership. It does not
appeal that they have creditors who will be prejudiced by the said arrangements.
It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's residence being in Manila, and the husband's in
the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy separation has supervened between them, the propriety of severing their financial
and proprietary interests is manifest.
Besides, this Court cannot constrain the spouses to live together, as
[I]t is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to,
the other. .. At best such an order can be effective for no other purpose than to compel the spouse to live under the same roof; and the
experience of those countries where the courts of justice have assumed to compel the cohabitation of married couple shows that the policy of
the practice is extremely questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60).
However, in so approving the regime of separation of property of the spouses and the dissolution of their conjugal partnership, this Court does not
thereby accord recognition to nor legalize the de facto separation of the spouses, which again in the language of Arroyo v. Vasquez de Arroyo, supra
is a "state which is abnormal and fraught with grave danger to all concerned." We would like to douse the momentary seething emotions of couples who,
at the slightest ruffling of domestic tranquility brought about by "mere austerity of temper, petulance of manners, rudeness of language, a want of civil
attention and accommodation, even occasional sallies of passion" without more would be minded to separate from each other. In this jurisdiction, the
husband and the wife are obliged to live together, observe mutual respect and fidelity, and render mutual help and support (art. 109, new Civil Code).
There is, therefore, virtue in making it as difficult as possible for married couples impelled by no better cause than their whims and caprices to
abandon each other's company.
'... For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great
severity upon individuals, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility.
When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual
accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of
remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con.,
35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59).
We now come to the question of the custody and support of the children.
It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and support of the children. The complaint docketed as
civil case E-00030 in the JDRC was filed by the respondent spouse on March 12, 1963, whereas the joint petition of the parties docketed as special
proceeding 6978 in the CFI was filed on April 27, 1963. However, when the respondent spouse signed the joint petition on the same matter of custody
and support of the children and filed the same with the CFI of Negros Occidental, she in effect abandoned her action in the JDRC. The petitioner spouse
who could have raised the issue of lis pendens in abatement of the case filed in the CFI, but did not do so - had the right, therefore, to cite the
decision of the CFI and to ask for the dismissal of the action filed by the respondent spouse in the JDRC, on the grounds of res judicata and lis pendens.
And the JDRC acted correctly and justifiably in dismissing the case for custody and support of the children based on those grounds. For it is no defense
against the dismissal of the action that the case before the CFI was filed later than the action before the JDRC, considering:.
... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action. They provide only that there is a
pending action, not a pending prior action.
1

We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the respondent spouse, of the custody of the two older children
(both then below the age of 7).
The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall be separated from her child under seven years of
age, unless the court finds compelling reasons for such measure." The rationale of this new provision was explained by the Code Commission thus:
The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound
the deep sorrows of a mother who is deprived of her child of tender age. The exception allowed by the rule has to be for "compelling reasons"
for the good of the child: those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of
adultery, the penalty of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her moral
dereliction will not have any effect upon the baby who is as yet unable to understand the situation." (Report of the Code Commission, p. 12).
The use of the word shall
2
in article 363 of the Civil Code, coupled with the observations made by the Code Commission in respect to the said legal
provision, underscores its mandatory character. It prohibits in no uncertain: terms the separation of a mother and her child below seven years, unless
such separation is grounded upon compelling reasons as determined by a court.
The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children who were 6 and 5 years old, respectively, to the
father, in effect sought to separate them from their mother. To that extent therefore, it was null and void because clearly violative of article 363 of the
Civil Code.
Neither does the said award of custody fall within the exception because the record is bereft of any compelling reason to support the lower court's order
depriving the wife of her minor children's company. True, the CFI stated in its order dated June 22, 1963, denying the respondent spouse's motion for
reconsideration of its order dated April 27, 1963, that .
... If the parties have agreed to file a joint petition, it was because they wanted to avoid the exposure of the bitter truths which serve as
succulent morsel for scandal mongers and idle gossipers and to save their children from embarrassment and inferiority complex which may
inevitably stain their lives. ..
If the parties agreed to submit the matter of custody of the minor children to the Court for incorporation in the final judgment, they purposely suppressed
the "compelling reasons for such measure" from appearing in the public records. This is for the sake and for the welfare of the minor children.".
But the foregoing statement is at best a mere hint that there were compelling reasons. The lower court's order is eloquently silent on what these
compelling reasons are. Needless to state, courts cannot proceed on mere insinuations; they must be confronted with facts before they can properly
adjudicate.
It might be argued and correctly that since five years have elapsed since the filing of these cases in 1963, the ages of the four children should now
be as follows: Enrique 11, Maria Teresa 10, Gerrard 9, and Ramon 5. Therefore, the issue regarding the award of the custody of Enrique and
Maria Teresa to the petitioner spouse has become moot and academic. The passage of time has removed the prop which supports the respondent
spouse's position.
Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the children. 1wph1.t
Article 356 of the new Civil Code provides:
Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual development.
It is clear that the abovequoted legal provision grants to every child rights which are not and should not be dependent solely on the wishes, much less
the whims and caprices, of his parents. His welfare should not be subject to the parents' say-so or mutual agreement alone. Where, as in this case, the
parents are already separated in fact, the courts must step in to determine in whose custody the child can better be assured the right granted to him by
law. The need, therefore, to present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals that no such evidence
was introduced in the CFI. This latter court relied merely on the mutual agreement of the spouses-parents. To be sure, this was not a sufficient basis to
determine the fitness of each parent to be the custodian of the children.
Besides, at least one of the children Enrique, the eldest is now eleven years of age and should be given the choice of the parent he wishes to live
with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court which, states, inter alia:
... When husband and wife are divorced or living separately and apart from each other, and the question as to the care, custody, and control of
a child or children of their marriage is brought before a Court of First Instance by petition or as an incident to any other proceeding, the court,
upon hearing testimony as may be pertinent, shall award the care, custody and control of each such child as will be for its best interest
permitting the child to choose which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty... (Emphasis supplied).
One last point regarding the matter of support for the children assuming that the custody of any or more of the children will be finally awarded to the
mother. Although the spouses have agreed upon the monthly support of P150 to be given by the petitioner spouse for each child, still this Court must
speak out its mind on the insufficiency of this amount. We, take judicial notice of the devaluation of the peso in 1962 and the steady skyrocketing of
prices of all commodities, goods, and services, not to mention the fact that all the children are already of school age. We believe, therefore, that the CFI
may increase this amount of P150 according to the needs of each child.
With the view that we take of this case, we find it unnecessary to pass upon the other errors assigned in the three appeals.
ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of Appeals in CA-G.R. 32384-R (subject matter of
G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and Domestic Relations Court (subject matter of G.R. L-23767)
are affirmed. G.R. L-24259 is hereby remanded to the Court of First Instance of Negros Occidental for further proceedings, in accordance with this
decision. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Angeles, JJ., concur.
Sanchez and Fernando, JJ., took no part.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
SECOND DIVISION

[G.R. No. 116668. July 28, 1997]

ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA CRUZ, respondents.
D E C I S I O N
ROMERO, J .:
Before us is a petition for review of the decision of the Court of Appeals in CA-G.R. CV No. 24199 entitled Erlinda Agapay v. Carlina (Cornelia)
Palang and Herminia P. Dela Cruz dated June 22, 1994 involving the ownership of two parcels of land acquired during the cohabitation of petitioner and
private respondents legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private respondent Carlina (or Cornelia) Vallesterol as a wife at the
Pozorrubio Roman Catholic Church in Pangasinan. A few months after the wedding, in October 1949, he left to work in Hawaii. Miguel and Carlinas
only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and during the entire duration of his year-long sojourn he stayed in
Zambales with his brother, not in Pangasinan with his wife and child. The trial court found evidence that as early as 1957, Miguel had attempted to
divorce Carlina in Hawaii.
i[1]
When he returned for good in 1972, he refused to live with private respondents, but stayed alone in a house in Pozorrubio,
Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second marriage with nineteen-year-old Erlinda Agapay, herein petitioner.
ii[2]

Two months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale, jointly purchased a parcel of agricultural land located at
San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters. Consequently, Transfer Certificate of Title No. 101736 covering said rice land
was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No.
143120 covering said property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a form of compromise agreement to settle and end a case filed
by the latter.
iii[3]
The parties therein agreed to donate their conjugal property consisting of six parcels of land to their only child, Herminia Palang.
iv[4]

Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang, born on December 6, 1977. In 1979, Miguel and Erlinda were convicted
of Concubinage upon Carlinas complaint.
v[5]
Two years later, on February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz, herein private respondents, instituted the case at bar, an action
for recovery of ownership and possession with damages against petitioner before the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U-
4265). Private respondents sought to get back the riceland and the house and lot both located at Binalonan, Pangasinan allegedly purchased by Miguel
during his cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland covered by TCT No. 101736 is registered in their names (Miguel and Erlinda),
she had already given her half of the property to their son Kristopher Palang. She added that the house and lot covered by TCT No. 143120 is her sole
property, having bought the same with her own money. Erlinda added that Carlina is precluded from claiming aforesaid properties since the latter had
already donated their conjugal estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989 dismissing the complaint after declaring that there was little
evidence to prove that the subject properties pertained to the conjugal property of Carlina and Miguel Palang. The lower court went on to provide for the
intestate shares of the parties, particularly of Kristopher Palang, Miguels illegitimate son. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered-
1) Dismissing the complaint, with costs against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay of the residential lot located at Poblacion, Binalonan,
Pangasinan, as evidenced by TCT No. 143120, Lot 290-B including the old house standing therein;
3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural land situated at Balisa, San Felipe,
Binalonan, Pangasinan, consisting of 10,080 square meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda
Agapay;
4) Adjudicating to Kristopher Palang as his inheritance from his deceased father, Miguel Palang, the one-half (1/2) of the
agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel Palang,
provided that the former (Kristopher) executes, within 15 days after this decision becomes final and executory, a quit-claim
forever renouncing any claims to annul/reduce the donation to Herminia Palang de la Cruz of all conjugal properties of her
parents, Miguel Palang and Carlina Vallesterol Palang, dated October 30, 1975, otherwise, the estate of deceased Miguel
Palang will have to be settled in another separate action;
5) No pronouncement as to damages and attorneys fees.
SO ORDERED.
vi[6]

On appeal, respondent court reversed the trial courts decision. The Court of Appeals rendered its decision on July 22, 1994 with the following
dispositive portion:
WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of Title Nos. 143120 and 101736 and to
issue in lieu thereof another certificate of title in the name of plaintiffs-appellants.
No pronouncement as to costs.
vii[7]

Hence, this petition.
Petitioner claims that the Court of Appeals erred in not sustaining the validity of two deeds of absolute sale covering the riceland and the house
and lot, the first in favor of Miguel Palang and Erlinda Agapay and the second, in favor of Erlinda Agapay alone. Second, petitioner contends that
respondent appellate court erred in not declaring Kristopher A. Palang as Miguel Palangs illegitimate son and thus entitled to inherit from Miguels
estate. Third, respondent court erred, according to petitioner, in not finding that there is sufficient pleading and evidence that Kristoffer A. Palang or
Christopher A. Palang should be considered as party-defendant in Civil Case No. U-4625 before the trial court and in CA-G.R. No. 24199.
viii[8]

After studying the merits of the instant case, as well as the pertinent provisions of law and jurisprudence, the Court denies the petition and affirms
the questioned decision of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of property subject of this action. Petitioner assails the validity of the deeds of
conveyance over the same parcels of land. There is no dispute that the transfers of ownership from the original owners of the riceland and the house
and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda. The provision of law applicable here is Article 148 of the
Family Code providing for cases of cohabitation when a man and a woman who are not capacitated to marry each other live exclusively with each other
as husband and wife without the benefit of marriage or under a void marriage. While Miguel and Erlinda contracted marriage on July 15, 1973, said
union was patently void because the earlier marriage of Miguel and Carlina was still susbsisting and unaffected by the latters de facto separation.
Under Article 148, only the properties acquired by both of the parties through their actual joint contribution of money, property or industry
shall be owned by them in common in proportion to their respective contributions. It must be stressed that actual contribution is required by this
provision, in contrast to Article 147 which states that efforts in the care and maintenance of the family and household, are regarded as contributions to
the acquisition of common property by one who has no salary or income or work or industry. If the actual contribution of the party is not proved, there
will be no co-ownership and no presumption of equal shares.
ix[9]

In the case at bar, Erlinda tried to establish by her testimony that she is engaged in the business of buy and sell and had a sari-sari store
x[10]
but
failed to persuade us that she actually contributed money to buy the subject riceland. Worth noting is the fact that on the date of conveyance, May 17,
1973, petitioner was only around twenty years of age and Miguel Palang was already sixty-four and a pensioner of the U.S. Government. Considering
her youthfulness, it is unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the purchase price of subject property,
xi[11]
there
being no proof of the same.
Petitioner now claims that the riceland was bought two months before Miguel and Erlinda actually cohabited. In the nature of an afterthought, said
added assertion was intended to exclude their case from the operation of Article 148 of the Family Code. Proof of the precise date when they
commenced their adulterous cohabitation not having been adduced, we cannot state definitively that the riceland was purchased even before they
started living together. In any case, even assuming that the subject property was bought before cohabitation, the rules of co-ownership would still apply
and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price of the riceland in Binalonan, Pangasinan, we find no basis to
justify her co-ownership with Miguel over the same. Consequently, the riceland should, as correctly held by the Court of Appeals, revert to the conjugal
partnership property of the deceased Miguel and private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate their conjugal property in favor of their daughter Herminia in
1975. The trial court erred in holding that the decision adopting their compromise agreement in effect partakes the nature of judicial confirmation of the
separation of property between spouses and the termination of the conjugal partnership.
xii[12]
Separation of property between spouses during the
marriage shall not take place except by judicial order or without judicial conferment when there is an express stipulation in the marriage settlements.
xiii[13]

The judgment which resulted from the parties compromise was not specifically and expressly for separation of property and should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00 on September 23, 1975 when she was only 22 years old.
The testimony of the notary public who prepared the deed of conveyance for the property reveals the falsehood of this claim. Atty. Constantino Sagun
testified that Miguel Palang provided the money for the purchase price and directed that Erlindas name alone be placed as the vendee.
xiv[14]

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

The second issue concerning Kristopher Palangs status and claim as an illegitimate son and heir to Miguels estate is here resolved in favor of
respondent courts correct assessment that the trial court erred in making pronouncements regarding Kristophers heirship and filiation inasmuch as
questions as to who are the heirs of the decedent, proof of filiation of illegitimate children and the determination of the estate of the latter and claims
thereto should be ventilated in the proper probate court or in a special proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession.
xvii[17]

As regards the third issue, petitioner contends that Kristopher Palang should be considered as party-defendant in the case at bar following the trial
courts decision which expressly found that Kristopher had not been impleaded as party defendant but theorized that he had submitted to the courts
jurisdiction through his mother/guardian ad litem.
xviii[18]
The trial court erred gravely. Kristopher, not having been impleaded, was, therefore, not a party to
the case at bar. His mother, Erlinda, cannot be called his guardian ad litem for he was not involved in the case at bar. Petitioner adds that there is no
need for Kristopher to file another action to prove that he is the illegitimate son of Miguel, in order to avoid multiplicity of suits.
xix[19]
Petitioners grave error
has been discussed in the preceeding paragraph where the need for probate proceedings to resolve the settlement of Miguels estate and Kristophers
successional rights has been pointed out.
WHEREFORE, the instant petition is hereby DENIED. The questioned decision of the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
Regalado, (Chairman), Puno, and Mendoza, JJ., concur.
Torres, Jr., J., on leave.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-26462 June 9, 1969
TERESITA C. YAPTINCHAY, petitioner,
vs.
HON. GUILLERMO E. TORRES, Judge of the Court of First Instance of Rizal, Pasig Branch; VIRGINIA Y. YAPTINCHAY, in her own behalf and
in her capacity as Special Administratrix in the Intestate Estate of the deceased Isidro Y. Yaptinchay and JESUS MONZON, MARY
YAPTINCHAY ELIGIR, ERNESTO YAPTINCHAY, ANTONIO YAPTINCHAY, ASUNCION YAPTINCHAY, JOSEFINA Y. YAPTINCHAY, ROSA Y.
MONZON, ISABEL Y. VALERIANO, REMEDIOS Y. YAPTINCHAY, FELICIDAD Y. ARGUELLES, MARY DOE and JOHN DOE, respondents.
V. E. del Rosario and Associates for petitioner.
Sycip, Salazar, Luna, Manalo and Feliciano for respondents.
SANCHEZ, J .:
The problem posed in this, an original petition for certiorari, is whether or not this Court in the exercise of its supervisory powers should stake down as
having been issued in excess of jurisdiction or with grave abuse of discretion, the respondent judge's order of June 15, 1966 in Civil Case 8873 (Court of
First Instance of Rizal) directing petitioner to deliver to Special Administratrix Virginia Y. Yaptinchay of the estate of the deceased Isidro Y. Yaptinchay
the North Forbes Park property hereinafter described, and to refrain from disturbing or interfering in any manner whatsoever with the latter's possession
thereof, such order having been amended by said respondent judge's subsequent order of June, 28, 1966 in turn enjoining defendants in said case
(private respondents herein) and/or their duly authorized agents or representatives from selling, disposing, or otherwise encumbering said property in
any manner whatsoever pending the termination of said case. We granted the writ of preliminary mandatory injunction prayed for and directed
respondents to return the possession of the North Forbes Park property to petitioner upon a P50,000-bond.
The controlling facts are the following:
On July 13, 1965, herein petitioner Teresita C. Yaptinchay sought in the Court of First Instance of Rizal, Pasay City Branch, her appointment first as
Special Administratrix and then as regular administratrix of the estate of Isidro Y. Yaptinchay who died in Hongkong on July 7, 1965. This is known in the
record as Special Proceedings 1944-P. Petitioner there alleged that the deceased Isidro Y. Yaptinchay had lived with her continuously, openly and
publicly as husband and wife for nineteen (19) years: from 1946 to 1964 at 1951 Taft-Avenue, Pasay City, and from 1964 to July 1965 at 60 Russel
Avenue, Pasay City; that the deceased who died without a will left an estate consisting of personal and real properties situated in the Philippines,
Hongkong and other places with an estimated value of about P500,000; that to petitioner's knowledge and information, the deceased left three
daughters, Virginia Yaptinchay, Mary Yaptinchay Eligir and Asuncion Yaptinchay, all of age; that on July 7, 8 and 11, 1965, certain parties carted away
from the residences aforesaid personal properties belonging to the deceased together with others exclusively owned by petitioner. It was averred that in
these circumstances the appointment of a special administrator to take custody and care of the interests of the deceased pending appointment of a
regular administrator became an urgent necessity.
Upon the foregoing allegations, the court issued on July 17, 1965 an order appointing herein petitioner Teresita C. Yaptinchay special administratrix of
the state of the deceased Isidro Y. Yaptinchay upon a P25,000-bond.
To the petition of Teresita C. Yaptinchay, an opposition was registered by Josefina Y. Yaptinchay, the alleged legitimate wife, and Ernesto Y. Yaptinchay
and other children, of the deceased Isidro Y. Yaptinchay, upon the ground that said Teresita C. Yaptinchay, not being an heir of the decedent, had no
right to institute the proceeding for the settlement of the latter's estate, much less to procure appointment as administratrix thereof; and that having
admittedly cohabited with the deceased for a number of years said petitioner was not qualified to serve as administratrix for want of integrity. At the
same time, oppositors counter-petitioned for the appointment of Virginia Y. Yaptinchay, daughter of the deceased, as special administratrix and of
Josefina Y. Yaptinchay, the alleged surviving spouse, as regular administratrix.
To give oppositors an opportunity to be heard, the probate court, on July 19, 1965, set aside its order of July 17, 1965 appointing petitioner Teresita C.
Yaptinchay special administratrix.
On July 30, 1965, after the parties were heard, the probate court granted counter-petitioners' prayer and named Virginia Y. Yaptinchay special
administratrix upon a P50,000-bond.1awphil.nt
On August 18, 1965, the special administratrix submitted a preliminary inventory of the assets of the estate of the deceased Isidro Y. Yaptinchay.
Included amongst these was "[a] bungalow residential house with swimming pool, situated at Park corner Talisay Road, North Forbes Park, Makati,
Rizal" adverted to at the start of this opinion.
It was after respondent Virginia Y. Yaptinchay had been appointed special administratrix that herein petitioner Teresita C. Yaptinchay made her second
move. That was on August 14, 1965. This time, petitioner filed in another branch (Pasig Branch) of the Court of First Instance of Rizal an action for
replevin and for liquidation of the partnership supposedly formed during the period of her cohabitation with Isidro Y. Yaptinchay and for damages. This
case was docketed as Civil Case 8873. 1 Pending hearing on the question of the issuance of the writs of replevin and preliminary injunction prayed for,
respondent judge Guillermo E. Torres issued an order of August 17, 1965 temporarily restraining defendants therein (private respondents here) and their
agents from disposing any of the properties listed in the complaint and from interfering with plaintiff's (herein petitioner's) rights to, and possession over,
amongst others, "the house now standing at North Forbes Park, Makati, Rizal."
On August 25, 1965, defendants (private respondents herein) resisted the action, opposed the issuance of the writs of replevin and preliminary
injunction, mainly upon these propositions: (1) that exclusive jurisdiction over the settlement of the estate of the deceased Isidro Y. Yaptinchay was
already vested in the Court of First Instance of Rizal, Pasay City Branch in the special proceedings heretofore mentioned (Special Proceedings No.
1944-P); (2) that the present liquidation case was filed to oust said probate court of jurisdiction over the properties enumerated in this, the second case
(Civil Case 8873); and (3) that plaintiff was not entitled to the remedy of injunction prayed for, her alleged right sought to be protected thereby being
doubtful and still in dispute.
Said defendants (private respondents before this Court) in turn prayed the court for a writ of preliminary injunction to direct plaintiff (petitioner here) and
all others in her behalf to cease and desist from disturbing in any manner whatsoever defendant Virginia Y. Yaptinchay's possession amongst others of
the North Forbes Park house and to order the removal from the premises of said North Forbes Park house of the guards, agents and employees
installed therein by plaintiff; to enjoin plaintiff and her agents from entering the aforesaid house and any other real property registered in the name of
Isidro Y. Yaptinchay and from interfering with or from disturbing the exercise by Virginia Y. Yaptinchay of her rights and powers of administration over
the assets registered in the name of Isidro Y. Yaptinchay and/or in the latter's possession at the time of his death.
Came the herein disputed order of June 15, 1966 issued in said Civil Case 8873, the pertinent portion of which reads: "From the pleadings as
well as the evidence already submitted and representations made to the court during the arguments, it appears that one of the properties in
dispute is the property located at the corner of Park Road and Talisay Street, North Forbes Park, Makati, Rizal which at the time of the death
of the deceased Isidro Y. Yaptinchay was still under construction and it also appears that after his death said property was among the
properties of the deceased placed under the administration of the special administratrix, the defendant Virginia Y. Yaptinchay. Information has
been given that in the evening of August 14, 1965, the plaintiff was able to dispossess the special administratrix from the premises in question
and that since then she had been in custody of said house.
While the Court is still considering the merits of the application and counter-application for provisional relief, the Court believes that for the
protection of the properties and considering the Forbes Park property is really under the responsibility of defendant Virginia Y. Yaptinchay, by
virtue of her being appointed Special Administratrix of the estate of the deceased Isidro Yaptinchay, the Court denies the petition for the
issuance of a writ of preliminary injunction of the plaintiff with respect to the Forbes Park property and the restraining order issued by this
Court is lifted. The Court also orders the plaintiff to cease and desist from disturbing in any manner whatsoever the defendant Virginia Y.
Yaptinchay in the possession of said property.
WHEREFORE, upon defendant's filing a bond in the amount of P10,000.00, let a writ of preliminary injunction is requiring the plaintiff, her
representatives and agents or other persons acting in her behalf to deliver the possession of the property located at the corner of Park Road
and Talisay Street, North Forbes Park, Makati, Rizal to the Special Administratrix Virginia Y. Yaptinchay, and to refrain from disturbing
interfering in any manner whatsoever defendant's possession thereof.
Which, as aforestated, was amended by the court order of June 28, 1966, which in part recites:
Considering that the present case treats principally with the liquidation of an alleged partnership between the plaintiff and the deceased Isidro
Yaptinchay and considering further that said house in North Forbes Park is included among the properties in dispute, the Court hereby clarifies
its Order of June 15, 1966 by enjoining the defendants and/or their duly authorized agents or representatives from selling, disposing or
otherwise encumbering said property in any manner whatsoever pending the termination of this case.
Petitioner's motion to reconsider the June 15, 1966 order was overturned by respondent judge's order of August 8, 1966, which recites that:
Considering that defendants, principally Virginia Y. Yaptinchay, took actual or physical possession of the said properties which were formerly
held by the deceased Isidro Yaptinchay and the plaintiff, by virtue of her appointment and under her authority, as Special Administratrix of the
estate of the deceased Isidro Yaptinchay, the plaintiff's Motion for Reconsideration is hereby denied.
2

The orders of June 15 and August 8, 1966 triggered the present proceedings in this Court.
1. Petitioner's stance before us is this: As she was occupying the Forbes Park property at the time of the death of Isidro Yaptinchay, grave abuse of
discretion attended respondent judge's order issuing an injunctive writ transferring possession of said property to respondent Virginia Y. Yaptinchay.
A rule of long standing echoed and reechoed in jurisprudence is that injunction is not to be granted for the purpose of taking property out of possession
and/or control of a party and placing it in that of another whose title thereto has not been clearly established.
3
With this as guidepost, petitioner would
have been correct if she were lawfully in possession of the house in controversy when Civil Case 8873 (where the injunctive writ was issued) was
commenced in the Pasig court, and if respondent special administratrix, to whom the possession thereof was transferred, were without right thereto. But
the situation here is not as petitioner pictures it to be. It is beyond debate that with the institution on July 13, 1965 of Special Proceedings 1944-P,
properties belonging not only to the deceased Isidro Y. Yaptinchay but also to the conjugal partnership of said deceased and his legitimate wife, Josefina
Y. Yaptinchay,
4
were brought under the jurisdiction of the probate court, properly to be placed under administration.
5
One such property is the lot at
North Forbes Park.
6

With respect to the Forbes Park house, petitioner offers varying versions. In the verified petition before this Court, petitioner avers "that the construction
of said North Forbes Park property was undertaken jointly by petitioner and the deceased, petitioner even contributing her own exclusive funds therefor."

7
This is a reproduction of an allegation in petitioner's June 27, 1966 alternative motion for reconsideration or for clarification/amendment of the herein
controverted order of June 15, 1966 in Civil Case 8873.
8
And again, in the affidavit of Teresita C. Yaptinchay dated August 3, 1965, she spoke of the
acquisition of properties, real and personal, in her own words, "through our joint efforts and capital, among which properties are those situated" in "North
Forbes Park."
9
All of which contradict her averment in the amended complaint dated October 25, 1965 also verified in said Case 8873 to the effect
that she "acquired through her own personal funds and efforts real properties such as ... the house now standing at North Forbes Park, Makati, Rizal."
10

But herein private respondents vehemently dispute petitioner's claim of complete or even partial ownership of the house. They maintain that the
construction of that house was undertaken by the deceased Isidro Y. Yaptinchay without her (petitioner's) intervention and the deceased paid with his
own personal funds all expenses incurred in connection with the construction thereof.
11

It was only after hearing and considering the evidence adduced and the fact that after the death of Isidro Y. Yaptinchay the Forbes Park house "was
among the properties of the deceased placed under the administration of" respondent Virginia Y. Yaptinchay, that respondent judge issued the injunction
order of June 15, 1966 herein complained of. Worth repeating at this point is that respondent judge, in his order of August 8, 1966, declared that
defendants (private respondents herein), "principally Virginia Y. Yaptinchay, took actual or physical possession", amongst others, of the North Forbes
Park house "by virtue of her appointment and under her authority, as Special Administratrix."
On this score, petitioner herein is not entitled to the injunction she prayed for below.
2. As well established is the rule that the grant or denial of an injunction rests upon the sound discretion of the court, in the exercise of which appellate
courts will not interfere except in a clear case of abuse.
12

A considerate and circumspect view of the facts and circumstances in this case obtaining will not permit us to tag the disputed order of June 15, 1966
with the vice of grave abuse of discretion. It is quite true that, in support of the allegation that the house in North Forbes Park was her exclusive property,
petitioner presented proof in the form of loans that she had contracted during the period when said house was under construction. But evidence is
wanting which would correlate such loans to the construction work. On the contrary, there is much to the documentary proof presented by petitioner
which would tend to indicate that the loans she obtained from the Republic Bank were for purposes other than the construction of the North Forbes Park
home. And this, we gather from pages 17 to 18 of petitioner's memorandum before this Court; and the affidavit of Teresita C. Yaptinchay, Annex A
thereof, which states in its paragraph 4 that she obtained various loans from the Republic Bank "for her own exclusive account" and that the proceeds
thereof "were also used by affiant both for her business and for the construction, completion and furnishing of the said house at North Forbes Park", and
which cites her seven promissory notes in favor of Republic Bank, Appendices 1 to 7 of said affidavit. Not one of the promissory notes mentioned
reveals use of the proceeds for the construction of the North Forbes Park house. On the contrary, there is Appendix 2, the promissory note for P54,000
which says that the purpose of the loan for "Fishpond development"; Appendix 3 for P100,000 for the same purpose; Appendix 5 for P50,000, "To
augment working capital in buying & selling of appliances & gift items"; and Appendix 7 for P1,090,000, "For Agricultural Development". In plain terms,
the fact alone of petitioner's indebtedness to the Republic Bank does not establish that said house was built with her own funds.
It is in the context just recited that the unsupported assertion that the North Forbes Park house is petitioner's exclusive property may not be permitted to
override the prima facie presumption that house, having been constructed on the lot of Isidro Y. Yaptinchay (or of the conjugal partnership) at his
instance, and during the existence of his marriage with respondent Josefina Y. Yaptinchay, is part of the estate that should be under the control of the
special administratrix.
3. Nor can petitioner's claim of ownership presumably based on the provisions of Article 144 of the Civil Code be decisive. Said Article 144 says that:
"When man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired
by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership." .
But stock must be taken of the fact that the creation of the civil relationship envisaged in Article 144 is circumscribed by conditions, the existence of
which must first be shown before rights provided thereunder may be deemed to accrue.
13
One such condition is that there must be a clear showing that
the petitioner had, during cohabitation, really contributed to the acquisition of the property involved. Until such right to co-ownership is duly established,
petitioner's interests in the property in controversy cannot be considered the "present right" or title that would make available the protection or aid
afforded by a writ of injunction.
14
For, the existence of a clear positive right especially calling for judicial protection is wanting. Injunction indeed, is not to
protect contingent or future rights;
15
nor is it a remedy to enforce an abstract right.
16

At any rate, it would seem to us that the interests of the parties would be better safeguarded if the controverted North Forbes Park property be in the
hands of the bonded administratrix in the estate proceedings. For then, her acts would be subject to the control of the probate court.
Finding no error in the disputed orders of respondent judge, the herein petition for certiorari is hereby dismissed, and the writ of preliminary mandatory
injunction
17
issued by this Court is hereby dissolved and set aside.
Costs against petitioner. So ordered.
Reyes, J.B.L., Dizon, Zaldivar, Fernando, Capistrano, JJ., concur.
Makalintal, Teehankee and Barredo, JJ., took no part.
Concepcion, C.J., and Castro, J., are on leave.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-28093 January 30, 1971
BASILIA BERDIN VDA. DE CONSUEGRA; JULIANA, PACITA, MARIA LOURDES, JOSE, JR., RODRIGO, LINEDA and LUIS, all surnamed
CONSUEGRA, petitioners-appellants,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, COMMISSIONER OF PUBLIC HIGHWAYS, HIGHWAY DISTRICT ENGINEER OF SURIGAO DEL
NORTE, COMMISSIONER OF CIVIL SERVICE, and ROSARIO DIAZ, respondents-appellees.
Bernardino O. Almeda for petitioners-appellants.
Binag and Arevalo, Jr. for respondent-appellee Government Service Insurance System.
Office of the Solicitor General for other respondents-appellees.
ZALDIVAR, J .:
Appeal on purely questions of law from the decision of the Court of First Instance of Surigao del Norte, dated March 7, 1967, in its Special Proceeding
No. 1720.
The pertinent facts, culled from the stipulation of facts submitted by the parties, are the following:
The late Jose Consuegra, at the time of his death, was employed as a shop foreman of the office of the District Engineer in the province of Surigao del
Norte. In his lifetime, Consuegra contracted two marriages, the first with herein respondent Rosario Diaz, solemnized in the parish church of San Nicolas
de Tolentino, Surigao, Surigao, on July 15, 1937, out of which marriage were born two children, namely, Jose Consuegra, Jr. and Pedro Consuegra, but
both predeceased their father; and the second, which was contracted in good faith while the first marriage was subsisting, with herein petitioner Basilia
Berdin, on May 1, 1957 in the same parish and municipality, out of which marriage were born seven children, namely, Juliana, Pacita, Maria Lourdes,
Jose, Rodrigo, Lenida and Luz, all surnamed Consuegra.
Being a member of the Government Service Insurance System (GSIS, for short) when Consuegra died on September 26, 1965, the proceeds of his life
insurance under policy No. 601801 were paid by the GSIS to petitioner Basilia Berdin and her children who were the beneficiaries named in the policy.
Having been in the service of the government for 22.5028 years, Consuegra was entitled to retirement insurance benefits in the sum of P6,304.47
pursuant to Section 12(c) of Commonwealth Act 186 as amended by Republic Acts 1616 and 3836. Consuegra did not designate any beneficiary who
would receive the retirement insurance benefits due to him. Respondent Rosario Diaz, the widow by the first marriage, filed a claim with the GSIS asking
that the retirement insurance benefits be paid to her as the only legal heir of Consuegra, considering that the deceased did not designate any beneficiary
with respect to his retirement insurance benefits. Petitioner Basilia Berdin and her children, likewise, filed a similar claim with the GSIS, asserting that
being the beneficiaries named in the life insurance policy of Consuegra, they are the only ones entitled to receive the retirement insurance benefits due
the deceased Consuegra. Resolving the conflicting claims, the GSIS ruled that the legal heirs of the late Jose Consuegra were Rosario Diaz, his widow
by his first marriage who is entitled to one-half, or 8/16, of the retirement insurance benefits, on the one hand; and Basilia Berdin, his widow by the
second marriage and their seven children, on the other hand, who are entitled to the remaining one-half, or 8/16, each of them to receive an equal share
of 1/16.
Dissatisfied with the foregoing ruling and apportionment made by the GSIS, Basilia Berdin and her children
1
filed on October 10, 1966 a petition for
mandamus with preliminary injunction in the Court of First Instance of Surigao, naming as respondents the GSIS, the Commissioner of Public Highways,
the Highway District Engineer of Surigao del Norte, the Commissioner of Civil Service, and Rosario Diaz, praying that they (petitioners therein) be
declared the legal heirs and exclusive beneficiaries of the retirement insurance of the late Jose Consuegra, and that a writ of preliminary injunction be
issued restraining the implementation of the adjudication made by the GSIS. On October 26, 1966, the trial court issued an order requiring therein
respondents to file their respective answers, but refrained from issuing the writ of preliminary injunction prayed for. On February 11, 1967, the parties
submitted a stipulation of facts, prayed that the same be admitted and approved and that judgment be rendered on the basis of the stipulation of facts.
On March 7, 1967, the court below rendered judgment, the pertinent portions of which are quoted hereunder:
This Court, in conformity with the foregoing stipulation of facts, likewise is in full accord with the parties with respect to the authority
cited by them in support of said stipulation and which is herein-below cited for purposes of this judgment, to wit:
"When two women innocently and in good faith are legally united in holy matrimony to the same man, they and their children, born of
said wedlock, will be regarded as legitimate children and each family be entitled to one half of the estate. Lao & Lao vs. Dee Tim, 45
Phil. 739; Estrella vs. Laong Masa, Inc., (CA) 39 OG 79; Pisalbon vs. Bejec, 74 Phil. 88.
WHEREFORE, in view of the above premises, this Court is of the opinion that the foregoing stipulation of facts is in order and in
accordance with law and the same is hereby approved. Judgment, therefore, is hereby rendered declaring the petitioner Basilia
Berdin Vda. de Consuegra and her co-petitioners Juliana, Pacita, Maria Lourdes, Jose, Jr., Rodrigo, Lenida and Luis, all surnamed
Consuegra, beneficiary and entitled to one-half (1/2) of the retirement benefit in the amount of Six Thousand Three Hundred Four
Pesos and Fourty-Seven Centavos (P6,304.47) due to the deceased Jose Consuegra from the Government Service Insurance
System or the amount of P3,152.235 to be divided equally among them in the proportional amount of 1/16 each. Likewise, the
respondent Rosario Diaz Vda. de Consuegra is hereby declared beneficiary and entitled to the other half of the retirement benefit of
the late Jose Consuegra or the amount of P3,152.235. The case with respect to the Highway District Engineer of Surigao del Norte
is hereby ordered dismissed.
Hence the present appeal by herein petitioners-appellants, Basilia Berdin and her children.
It is the contention of appellants that the lower court erred in not holding that the designated beneficiaries in the life insurance of the late Jose Consuegra
are also the exclusive beneficiaries in the retirement insurance of said deceased. In other words, it is the submission of appellants that because the
deceased Jose Consuegra failed to designate the beneficiaries in his retirement insurance, the appellants who were the beneficiaries named in the life
insurance should automatically be considered the beneficiaries to receive the retirement insurance benefits, to the exclusion of respondent Rosario Diaz.
From the arguments adduced by appellants in their brief We gather that it is their stand that the system of life insurance and the system of retirement
insurance, that are provided for in Commonwealth Act 186 as amended, are simply complementary to each other, or that one is a part or an extension of
the other, such that whoever is named the beneficiary in the life insurance is also the beneficiary in the retirement insurance when no such beneficiary is
named in the retirement insurance.
The contention of appellants is untenable.
It should be noted that the law creating the Government Service Insurance System is Commonwealth Act 186 which was enacted by the National
Assembly on November 14, 1936. As originally approved, Commonwealth Act 186 provided for the compulsory membership in the Government Service
Insurance System of all regularly and permanently appointed officials and employees of the government, considering as automatically insured on life all
such officials and employees, and issuing to them the corresponding membership policy under the terms and conditions as provided in the Act.
2

Originally, Commonwealth Act 186 provided for life insurance only. Commonwealth Act 186 was amended by Republic Act 660 which was enacted by
the Congress of the Philippines on June 16, 1951, and, among others, the amendatory Act provided that aside from the system of life insurance under
the Government Service Insurance System there was also established the system of retirement insurance. Thus, We will note in Republic Act 660 that
there is a chapter on life insurance and another chapter on retirement insurance. 3 Under the chapter on life insurance are sections 8, 9 and 10 of
Commonwealth Act 186, as amended; and under the chapter on retirement insurance are sections 11, 12, 13 and 13-A. On May 31, 1957, Republic Act
1616 was enacted by Congress, amending section 12 of Commonwealth Act 186 as amended by Republic Act 660, by adding thereto two new
subsections, designated as subsections (b) and (c). This subsection (c) of section 12 of Commonwealth Act 186, as amended by Republic Acts 660,
1616 and 3096, was again amended by Republic Act 3836 which was enacted on June 22, 1963.lwph1.t The pertinent provisions of subsection (c)
of Section 12 of Commonwealth Act 186, as thus amended and reamended, read as follows:
(c) Retirement is likewise allowed to a member, regardless of age, who has rendered at least twenty years of service. The benefit
shall, in addition to the return of his personal contributions plus interest and the payment of the corresponding employer's premiums
described in subsection (a) of Section 5 hereof, without interest, be only a gratuity equivalent to one month's salary for every year of
service, based on the highest rate received, but not to exceed twenty-four months; Provided, That the retiring officer or employee
has been in the service of the said employer or office for at least four years, immediately preceding his retirement.
xxx xxx xxx
The gratuity is payable by the employer or office concerned which is hereby authorized to provide the necessary appropriation to
pay the same from any unexpended items of appropriations.
Elective or appointive officials and employees paid gratuity under this subsection shall be entitled to the commutation of the unused
vacation and sick leave, based on the highest rate received, which they may have to their credit at the time of retirement.
Jose Consuegra died on September 26, 1965, and so at the time of his death he had acquired rights under the above-quoted provisions of subsection
(c) of Section 12 of Com. Act 186, as finally amended by Rep. Act 3836 on June 22, 1963. When Consuegra died on September 26, 1965, he had to his
credit 22.5028 years of service in the government, and pursuant to the above-quoted provisions of subsection (c) of Section 12 of Com. Act 186, as
amended, on the basis of the highest rate of salary received by him which was P282.83 per month, he was entitled to receive retirement insurance
benefits in the amount of P6,304.47. This is the retirement benefits that are the subject of dispute between the appellants, on the one hand, and the
appellee Rosario Diaz, on the other, in the present case. The question posed is: to whom should this retirement insurance benefits of Jose Consuegra
be paid, because he did not, or failed to, designate the beneficiary of his retirement insurance?
If Consuegra had 22.5028 years of service in the government when he died on September 26, 1965, it follows that he started in the government service
sometime during the early part of 1943, or before 1943. In 1943 Com. Act 186 was not yet amended, and the only benefits then provided for in said
Com. Act 186 were those that proceed from a life insurance. Upon entering the government service Consuegra became a compulsory member of the
GSIS, being automatically insured on his life, pursuant to the provisions of Com. Act 186 which was in force at the time. During 1943 the operation of the
Government Service Insurance System was suspended because of the war, and the operation was resumed sometime in 1946. When Consuegra
designated his beneficiaries in his life insurance he could not have intended those beneficiaries of his life insurance as also the beneficiaries of his
retirement insurance because the provisions on retirement insurance under the GSIS came about only when Com. Act 186 was amended by Rep. Act
660 on June 16, 1951. Hence, it cannot be said that because herein appellants were designated beneficiaries in Consuegra's life insurance they
automatically became the beneficiaries also of his retirement insurance. Rep. Act 660 added to Com. Act 186 provisions regarding retirement insurance,
which are Sections 11, 12, and 13 of Com. Act 186, as amended. Subsection (b) of Section 11 of Com. Act 186, as amended by Rep. Act 660, provides
as follows:
(b) Survivors benefit. Upon death before he becomes eligible for retirement, his beneficiaries as recorded in the application for
retirement annuity filed with the System shall be paid his own premiums with interest of three per centum per annum, compounded
monthly. If on his death he is eligible for retirement, then the automatic retirement annuity or the annuity chosen by him previously
shall be paid accordingly.
The above-quoted provisions of subsection (b) of Section 11 of Commonwealth Act 186, as amended by Rep. Act 660, clearly indicate that there is need
for the employee to file an application for retirement insurance benefits when he becomes a member of the GSIS, and he should state in his application
the beneficiary of his retirement insurance. Hence, the beneficiary named in the life insurance does not automatically become the beneficiary in the
retirement insurance unless the same beneficiary in the life insurance is so designated in the application for retirement insurance.
Section 24 of Commonwealth Act 186, as amended by Rep. Act 660, provides for a life insurance fund and for a retirement insurance fund. There was
no such provision in Com. Act 186 before it was amended by Rep. Act 660. Thus, subsections (a) and (b) of Section 24 of Commonwealth Act 186, as
amended by Rep. Act 660, partly read as follows:
(a) Life insurance fund. This shall consist of all premiums for life insurance benefit and/or earnings and savings therefrom. It shall
meet death claims as they may arise or such equities as any member may be entitled to, under the conditions of his policy, and shall
maintain the required reserves to the end of guaranteeing the fulfillment of the life insurance contracts issued by the System ...
(b) Retirement insurance fund. This shall consist of all contributions for retirement insurance benefit and of earnings and savings
therefrom. It shall meet annuity payments and establish the required reserves to the end of guaranteeing the fulfillment of the
contracts issued by the System. ...
Thus, We see that the GSIS offers two separate and distinct systems of benefits to its members one is the life insurance and the other is the
retirement insurance. These two distinct systems of benefits are paid out from two distinct and separate funds that are maintained by the GSIS.
In the case of the proceeds of a life insurance, the same are paid to whoever is named the beneficiary in the life insurance policy. As in the case of a life
insurance provided for in the Insurance Act (Act 2427, as amended), the beneficiary in a life insurance under the GSIS may not necessarily be a heir of
the insured. The insured in a life insurance may designate any person as beneficiary unless disqualified to be so under the provisions of the Civil Code.
4

And in the absence of any beneficiary named in the life insurance policy, the proceeds of the insurance will go to the estate of the insured.
Retirement insurance is primarily intended for the benefit of the employee to provide for his old age, or incapacity, after rendering service in the
government for a required number of years. If the employee reaches the age of retirement, he gets the retirement benefits even to the exclusion of the
beneficiary or beneficiaries named in his application for retirement insurance. The beneficiary of the retirement insurance can only claim the proceeds of
the retirement insurance if the employee dies before retirement. If the employee failed or overlooked to state the beneficiary of his retirement insurance,
the retirement benefits will accrue to his estate and will be given to his legal heirs in accordance with law, as in the case of a life insurance if no
beneficiary is named in the insurance policy.
It is Our view, therefore, that the respondent GSIS had correctly acted when it ruled that the proceeds of the retirement insurance of the late Jose
Consuegra should be divided equally between his first living wife Rosario Diaz, on the one hand, and his second wife Basilia Berdin and his children by
her, on the other; and the lower court did not commit error when it confirmed the action of the GSIS, it being accepted as a fact that the second marriage
of Jose Consuegra to Basilia Berdin was contracted in good faith. The lower court has correctly applied the ruling of this Court in the case of Lao, et al.
vs. Dee Tim, et al., 45 Phil. 739 as cited in the stipulation of facts and in the decision appealed from.
5
In the recent case of Gomez vs. Lipana, L-23214,
June 30, 1970,
6
this Court, in construing the rights of two women who were married to the same man a situation more or less similar to the case of
appellant Basilia Berdin and appellee Rosario Diaz held "that since the defendant's first marriage has not been dissolved or declared void the
conjugal partnership established by that marriage has not ceased. Nor has the first wife lost or relinquished her status as putative heir of her husband
under the new Civil Code, entitled to share in his estate upon his death should she survive him. Consequently, whether as conjugal partner in a still
subsisting marriage or as such putative heir she has an interest in the husband's share in the property here in dispute.... " And with respect to the right of
the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage
was still subsisting, still there is need for judicial declaration of such nullity. And inasmuch as the conjugal partnership formed by the second marriage
was dissolved before judicial declaration of its nullity, "[t]he only lust and equitable solution in this case would be to recognize the right of the second wife
to her share of one-half in the property acquired by her and her husband and consider the other half as pertaining to the conjugal partnership of the first
marriage."
WHEREFORE, the decision appealed from is affirmed, with costs against petitioners-appellants. It is so ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.