THIRD DIVISION On July 21, 1980, Dr. Ortañez died.
He left behind a wife (Juliana
[ G.R. No. 146006, February 23, 2004 ]
JOSE C. LEE AND ALMA AGGABAO, IN THEIR CAPACITIES AS
PRESIDENT AND CORPORATE SECRETARY, RESPECTIVELY, OF
PHILIPPINES INTERNATIONL LIFE INSURANCE COMPANY,
AND FILIPINO LOAN ASSISTANCE GROUP, PETITIONERS,
VS.
REGIONAL TRIAL COURT OF QUEZON CITY BRANCH 85
PRESIDED BY JUDGE PEDRO M. AREOLA, BRANCH CLERK OF
COURT JANICE Y. ANTERO, DEPUTY SHERIFFS ADENAUER G.
RIVERA AND PEDRO L. BORJA, ALL OF THE REGIONAL TRIAL
COURT OF QUEZON CITY BRANCH 85, MA. DIVINA ENDERES
CLAIMING TO BE SPECIAL ADMINISTRATRIX, AND OTHER
PERSONS/ PUBLIC OFFICERS ACTING FOR AND IN THEIR
BEHALF, RESPONDENTS.
DECISION
CARPIO, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking
to reverse and set aside the decision[1] of the Court of Appeals, First
Division, dated July 26, 2000, in CA G.R. 59736, which dismissed the
petition for certiorari filed by petitioners Jose C. Lee and Alma
Aggabao (in their capacities as president and secretary, respectively,
of Philippine International Life Insurance Company) and Filipino Loan
Assistance Group.
The antecedent facts follow.
Dr. Juvencio P. Ortañez incorporated the Philippine International Life
Insurance Company, Inc. on July 6, 1956. At the time of the
company’s incorporation, Dr. Ortañez owned ninety percent (90%) of
the subscribed capital stock.
Salgado Ortañez), three legitimate children (Rafael, Jose and Antonio
Ortañez) and five illegitimate children by Ligaya Novicio (herein
private respondent Ma. Divina Ortañez-Enderes and her siblings Jose,
Romeo, Enrico Manuel and Cesar, all surnamed Ortañez).[2]
On September 24, 1980, Rafael Ortañez filed before the Court of First
Instance of Rizal, Quezon City Branch (now Regional Trial Court of
Quezon City) a petition for letters of administration of the intestate
estate of Dr. Ortañez, docketed as SP Proc. Q-30884 (which petition
to date remains pending at Branch 85 thereof).
Private respondent Ma. Divina Ortañez-Enderes and her siblings filed
an opposition to the petition for letters of administration and, in a
subsequent urgent motion, prayed that the intestate court appoint a
special administrator.
On March 10, 1982, Judge Ernani Cruz Paño, then presiding judge of
Branch 85, appointed Rafael and Jose Ortañez joint special
administrators of their father’s estate. Hearings continued for the
appointment of a regular administrator (up to now no regular
administrator has been appointed).
As ordered by the intestate court, special administrators Rafael and
Jose Ortañez submitted an inventory of the estate of their father
which included, among other properties, 2,029[3] shares of stock in
Philippine International Life Insurance Company (hereafter
Philinterlife), representing 50.725% of the company’s outstanding
capital stock.
On April 15, 1989, the decedent’s wife, Juliana S. Ortañez, claiming
that she owned 1,014[4] Philinterlife shares of stock as her conjugal
share in the estate, sold said shares with right to repurchase in favor
of herein petitioner Filipino Loan Assistance Group (FLAG),
represented by its president, herein petitioner Jose C. Lee. Juliana
Ortañez failed to repurchase the shares of stock within the stipulated
period, thus ownership thereof was consolidated by petitioner FLAG
in its name.
On October 30, 1991, Special Administrator Jose Ortañez, acting in
his personal capacity and claiming that he owned the remaining
1,011[5] Philinterlife shares of stocks as his inheritance share in the
estate, sold said shares with right to repurchase also in favor of herein
petitioner FLAG, represented by its president, herein petitioner Jose
C. Lee. After one year, petitioner FLAG consolidated in its name the
ownership of the Philinterlife shares of stock when Jose Ortañez failed
to repurchase the same.
It appears that several years before (but already during the pendency
of the intestate proceedings at the Regional Trial Court of Quezon
City, Branch 85), Juliana Ortañez and her two children, Special
Administrators Rafael and Jose Ortañez, entered into a memorandum
of agreement dated March 4, 1982 for the extrajudicial settlement of
the estate of Dr. Juvencio Ortañez, partitioning the estate (including
the Philinterlife shares of stock) among themselves. This was the basis
of the number of shares separately sold by Juliana Ortañez on April
15, 1989 (1,014 shares) and by Jose Ortañez on October 30, 1991
(1,011 shares) in favor of herein petitioner FLAG.
On July 12, 1995, herein private respondent Ma. Divina Ortañez–
Enderes and her siblings (hereafter referred to as private respondents
Enderes et al.) filed a motion for appointment of special administrator
of Philinterlife shares of stock. This move was opposed by Special
Administrator Jose Ortañez.
On November 8, 1995, the intestate court granted the motion of
private respondents Enderes et al. and appointed private respondent
Enderes special administratrix of the Philinterlife shares of stock.
On December 20, 1995, Special Administratrix Enderes filed an urgent
motion to declare void ab initio the memorandum of agreement dated
March 4, 1982. On January 9, 1996, she filed a motion to declare the
partial nullity of the extrajudicial settlement of the decedent’s estate.
These motions were opposed by Special Administrator Jose Ortañez.
On March 22, 1996, Special Administratrix Enderes filed an urgent
motion to declare void ab initio the deeds of sale of Philinterlife shares
of stock, which move was again opposed by Special Administrator
Jose Ortañez.
On February 4, 1997, Jose Ortañez filed an omnibus motion for (1)
the approval of the deeds of sale of the Philinterlife shares of stock
and (2) the release of Ma. Divina Ortañez-Enderes as special
administratrix of the Philinterlife shares of stock on the ground that
there were no longer any shares of stock for her to administer.
On August 11, 1997, the intestate court denied the omnibus motion
of Special Administrator Jose Ortañez for the approval of the deeds of
sale for the reason that:
Under the Godoy case, supra, it was held in substance that a sale of
a property of the estate without an Order of the probate court is void
and passes no title to the purchaser. Since the sales in question were
entered into by Juliana S. Ortañez and Jose S. Ortañez in their
personal capacity without prior approval of the Court, the same is not
binding upon the Estate.
WHEREFORE, the OMNIBUS MOTION for the approval of the sale of
Philinterlife shares of stock and release of Ma. Divina Ortañez-Enderes
as Special Administratrix is hereby denied.[6]
On August 29, 1997, the intestate court issued another order granting
the motion of Special Administratrix Enderes for the annulment of the
March 4, 1982 memorandum of agreement or extrajudicial partition
of estate. The court reasoned that:
In consonance with the Order of this Court dated August 11, 1997
DENYING the approval of the sale of Philinterlife shares of stocks and
release of Ma. Divina Ortañez-Enderes as Special Administratrix, the
“Urgent Motion to Declare Void Ab Initio Memorandum of Agreement”
dated December 19, 1995. . . is hereby impliedly partially resolved
insofar as the transfer/waiver/renunciation of the Philinterlife shares
of stock are concerned, in particular, No. 5, 9(c), 10(b) and 11(d)(ii)
of the Memorandum of Agreement.
WHEREFORE, this Court hereby declares the Memorandum of
Agreement dated March 4, 1982 executed by Juliana S. Ortañez,
Rafael S. Ortañez and Jose S. Ortañez as partially void ab
initio insofar as the transfer/waiver/renunciation of the Philinterlife
shares of stocks are concerned.[7]
Aggrieved by the above-stated orders of the intestate court, Jose
Ortañez filed, on December 22, 1997, a petition for certiorari in the
Court of Appeals. The appellate court denied his petition, however,
ruling that there was no legal justification whatsoever for the
extrajudicial partition of the estate by Jose Ortañez, his brother Rafael
Ortañez and mother Juliana Ortañez during the pendency of the
settlement of the estate of Dr. Ortañez, without the requisite approval
of the intestate court, when it was clear that there were other heirs
to the estate who stood to be prejudiced thereby. Consequently, the
sale made by Jose Ortañez and his mother Juliana Ortañez to FLAG of
the shares of stock they invalidly appropriated for themselves, without
approval of the intestate court, was void.[8]
Special Administrator Jose Ortañez filed a motion for reconsideration
of the Court of Appeals decision but it was denied. He elevated the
case to the Supreme Court via petition for review under Rule 45 which
the Supreme Court dismissed on October 5, 1998, on a technicality.
His motion for reconsideration was denied with finality on January 13,
1999. On February 23, 1999, the resolution of the Supreme Court
dismissing the petition of Special Administrator Jose Ortañez became
final and was subsequently recorded in the book of entries of
judgments.
Meanwhile, herein petitioners Jose Lee and Alma Aggabao, with the
rest of the FLAG-controlled board of directors, increased the
authorized capital stock of Philinterlife, diluting in the process the
50.725% controlling interest of the decedent, Dr. Juvencio Ortañez,
in the insurance company.[9] This became the subject of a separate
action at the Securities and Exchange Commission filed by private
respondent-Special Administratrix Enderes against petitioner Jose Lee
and other members of the FLAG-controlled board of Philinterlife on
November 7, 1994. Thereafter, various cases were filed by Jose Lee
as president of Philinterlife and Juliana Ortañez and her sons against
private respondent-Special Administratrix Enderes in the SEC and civil
courts.[10] Somehow, all these cases were connected to the core
dispute on the legality of the sale of decedent Dr. Ortañez’s
Philinterlife shares of stock to petitioner FLAG, represented by its
president, herein petitioner Jose Lee who later became the president
of Philinterlife after the controversial sale.
On May 2, 2000, private respondent-Special Administratrix Enderes
and her siblings filed a motion for execution of the Orders of the
intestate court dated August 11 and August 29, 1997 because the
orders of the intestate court nullifying the sale (upheld by the Court
of Appeals and the Supreme Court) had long became final.
Respondent-Special Administratrix Enderes served a copy of the
motion to petitioners Jose Lee and Alma Aggabao as president and
secretary, respectively, of Philinterlife,[11] but petitioners ignored the
same.
On July 6, 2000, the intestate court granted the motion for execution,
the dispositive portion of which read:
WHEREFORE, premises considered, let a writ of execution issue as
follows:
1. Confirming the nullity of the sale of the 2,029 Philinterlife
shares in the name of the Estate of Dr. Juvencio Ortañez to Filipino
Loan Assistance Group (FLAG);
2. Commanding the President and the Corporate Secretary
of Philinterlife to reinstate in the stock and transfer book of
Philinterlife the 2,029 Philinterlife shares of stock in the name of
the Estate of Dr. Juvencio P. Ortañez as the owner thereof without
prejudice to other claims for violation of pre-emptive rights
pertaining to the said 2,029 Philinterlife shares;
3. Directing the President and the Corporate Secretary of
Philinterlife to issue stock certificates of Philinterlife for 2,029
shares in the name of the Estate of Dr. Juvencio P. Ortañez as the
owner thereof without prejudice to other claims for violations of
pre-emptive rights pertaining to the said 2,029 Philinterlife shares
and,
4. Confirming that only the Special Administratrix, Ma. Divina
Ortañez-Enderes, has the power to exercise all the rights
appurtenant to the said shares, including the right to vote and to
receive dividends.
5. Directing Philinterlife and/or any other person or persons
claiming to represent it or otherwise, to acknowledge and allow the
said Special Administratrix to exercise all the aforesaid rights on
the said shares and to refrain from resorting to any action which
may tend directly or indirectly to impede, obstruct or bar the free
exercise thereof under pain of contempt.
6. The President, Corporate Secretary, any responsible
officer/s of Philinterlife, or any other person or persons claiming to
represent it or otherwise, are hereby directed to comply with this
order within three (3) days from receipt hereof under pain of
contempt.
7. The Deputy Sheriffs Adenauer Rivera and Pedro Borja are
hereby directed to implement the writ of execution with dispatch
to forestall any and/or further damage to the Estate.
SO ORDERED.[12]
In the several occasions that the sheriff went to the office of
petitioners to execute the writ of execution, he was barred by the
security guard upon petitioners’ instructions. Thus, private
respondent-Special Administratrix Enderes filed a motion to cite
herein petitioners Jose Lee and Alma Aggabao (president and
secretary, respectively, of Philinterlife) in contempt.[13]
Petitioners Lee and Aggabao subsequently filed before the Court of
Appeals a petition for certiorari, docketed as CA G.R. SP No. 59736.
Petitioners alleged that the intestate court gravely abused its
discretion in (1) declaring that the ownership of FLAG over the
Philinterlife shares of stock was null and void; (2) ordering the
execution of its order declaring such nullity and (3) depriving the
petitioners of their right to due process.
On July 26, 2000, the Court of Appeals dismissed the petition outright:
We are constrained to DISMISS OUTRIGHT the present petition for
certiorari and prohibition with prayer for a temporary restraining order
and/or writ of preliminary injunction in the light of the following
considerations:
 1. The assailed Order dated August 11, 1997 of the
respondent judge had long become final and executory;
2. The certification on non-forum shopping is signed by only
one (1) of the three (3) petitioners in violation of the Rules; and
3. Except for the assailed orders and writ of execution, deed
of sale with right to repurchase, deed of sale of shares of stocks
and omnibus motion, the petition is not accompanied by such
pleadings, documents and other material portions of the record as
would support the allegations therein in violation of the second
paragraph, Rule 65 of the 1997 Rules of Civil Procedure, as
amended.
Petition is DISMISSED. SO ORDERED.[14]
The motion for reconsideration filed by petitioners Lee and Aggabao
of the above decision was denied by the Court of Appeals on October
30, 2000:
This resolves the “urgent motion for reconsideration” filed by the
petitioners of our resolution of July 26, 2000 dismissing outrightly the
above-entitled petition for the reason, among others, that the assailed
Order dated August 11, 1997 of the respondent Judge had long
become final and executory.
Dura lex, sed lex.
WHEREFORE, the urgent motion for reconsideration is hereby
DENIED, for lack of merit. SO ORDERED.[15]
On December 4, 2000, petitioners elevated the case to the Supreme
Court through a petition for review under Rule 45 but on December
13, 2000, we denied the petition because there was no showing that
the Court of Appeals in CA G.R. SP No. 59736 committed any
reversible error to warrant the exercise by the Supreme Court of its
discretionary appellate jurisdiction.[16]
However, upon motion for reconsideration filed by petitioners Lee and
Aggabao, the Supreme Court granted the motion and reinstated their
petition on September 5, 2001. The parties were then required to
submit their respective memoranda.
Meanwhile, private respondent-Special Administratrix Enderes, on
July 19, 2000, filed a motion to direct the branch clerk of court in lieu
of herein petitioners Lee and Aggabao to reinstate the name of Dr.
Ortañez in the stock and transfer book of Philinterlife and issue the
corresponding stock certificate pursuant to Section 10, Rule 39 of the
Rules of Court which provides that “the court may direct the act to be
done at the cost of the disobedient party by some other person
appointed by the court and the act when so done shall have the effect
as if done by the party.” Petitioners Lee and Aggabao opposed the
motion on the ground that the intestate court should refrain from
acting on the motion because the issues raised therein were directly
related to the issues raised by them in their petition for certiorari at
the Court of Appeals docketed as CA-G.R. SP No. 59736. On October
30, 2000, the intestate court granted the motion, ruling that there
was no prohibition for the intestate court to execute its orders
inasmuch as the appellate court did not issue any TRO or writ of
preliminary injunction.
On December 3, 2000, petitioners Lee and Aggabao filed a petition
for certiorari in the Court of Appeals, docketed as CA-G.R. SP No.
62461, questioning this time the October 30, 2000 order of the
intestate court directing the branch clerk of court to issue the stock
certificates. They also questioned in the Court of Appeals the order of
the intestate court nullifying the sale made in their favor by Juliana
Ortañez and Jose Ortañez. On November 20, 2002, the Court of
Appeals denied their petition and upheld the power of the intestate
court to execute its order. Petitioners Lee and Aggabao then filed
motion for reconsideration which at present is still pending resolution
by the Court of Appeals.
Petitioners Jose Lee and Alma Aggabao (president and secretary,
respectively, of Philinterlife) and FLAG now raise the following errors
for our consideration:
The Court of Appeals committed grave reversible ERROR:
A. In failing to reconsider its previous resolution denying the petition
despite the fact that the appellate court’s mistake in apprehending
the facts had become patent and evident from the motion for
reconsideration and the comment of respondent Enderes which had
admitted the factual allegations of petitioners in the petition as well
as in the motion for reconsideration. Moreover, the resolution of the
appellate court denying the motion for reconsideration was contained
in only one page without even touching on the substantive merits of
the exhaustive discussion of facts and supporting law in the motion
for reconsideration in violation of the Rule on administrative due
process;
B. in failing to set aside the void orders of the intestate court on the
erroneous ground that the orders were final and executory with
regard to petitioners even as the latter were never notified of the
proceedings or order canceling its ownership;
C. in not finding that the intestate court committed grave abuse of
discretion amounting to excess of jurisdiction (1) when it issued the
Omnibus Order nullifying the ownership of petitioner FLAG over
shares of stock which were alleged to be part of the estate and (2)
when it issued a void writ of execution against petitioner FLAG as
present owner to implement merely provisional orders, thereby
violating FLAG’s constitutional right against deprivation of property
without due process;
D. In failing to declare null and void the orders of the intestate court
which nullified the sale of shares of stock between the legitimate heir
Jose S. Ortañez and petitioner FLAG because of settled law and
jurisprudence, i.e., that an heir has the right to dispose of the
decedent’s property even if the same is under administration pursuant
to Civil Code provision that possession of hereditary property is
transmitted to the heir the moment of death of the decedent (Acedebo
vs. Abesamis, 217 SCRA 194);
E. In disregarding the final decision of the Supreme Court in G.R. No.
128525 dated December 17, 1999 involving substantially the same
parties, to wit, petitioners Jose C. Lee and Alma Aggabao were
respondents in that case while respondent Ma. Divina Enderes was
the petitioner therein. That decision, which can be considered law of
the case, ruled that petitioners cannot be enjoined by respondent
Enderes from exercising their power as directors and officers of
Philinterlife and that the intestate court in charge of the intestate
proceedings cannot adjudicate title to properties claimed to be part of
the estate and which are equally CLAIMED BY petitioner FLAG.[17]
The petition has no merit.
Petitioners Jose Lee and Alma Aggabao, representing Philinterlife and
FLAG, assail before us not only the validity of the writ of execution
issued by the intestate court dated July 7, 2000 but also the validity
of the August 11, 1997 order of the intestate court nullifying the sale
of the 2,029 Philinterlife shares of stock made by Juliana Ortañez and
Jose Ortañez, in their personal capacities and without court approval,
in favor of petitioner FLAG.
We cannot allow petitioners to reopen the issue of nullity of the sale
of the Philinterlife shares of stock in their favor because this was
already settled a long time ago by the Court of Appeals in its decision
dated June 23, 1998 in CA-G.R. SP No. 46342. This decision was
effectively upheld by us in our resolution dated October 9, 1998 in
G.R. No. 135177 dismissing the petition for review on a technicality
and thereafter denying the motion for reconsideration on January 13,
1999 on the ground that there was no compelling reason to reconsider
said denial.[18] Our decision became final on February 23, 1999 and
was accordingly entered in the book of entry of judgments. For all
intents and purposes therefore, the nullity of the sale of the
Philinterlife shares of stock made by Juliana Ortañez and Jose Ortañez
in favor of petitioner FLAG is already a closed case. To reopen said
issue would set a bad precedent, opening the door wide open for
dissatisfied parties to relitigate unfavorable decisions no end. This is
completely inimical to the orderly and efficient administration of
justice.
The said decision of the Court of Appeals in CA-G.R. SP No. 46342
affirming the nullity of the sale made by Jose Ortañez and his mother
Juliana Ortañez of the Philinterlife shares of stock read:
Petitioner’s asseverations relative to said [memorandum] agreement
were scuttled during the hearing before this Court thus:
JUSTICE AQUINO:
Counsel for petitioner, when the Memorandum of Agreement
was executed, did the children of Juliana Salgado know
already that there was a claim for share in the inheritance of
the children of Novicio?
ATTY. CALIMAG:
Your Honor please, at that time, Your Honor, it is already
known to them.
JUSTICE AQUINO:
What can be your legal justification for extrajudicial
settlement of a property subject of intestate proceedings
when there is an adverse claim of another set of heirs, alleged
heirs? What would be the legal justification for extra-judicially
settling a property under administration without the approval
of the intestate court?
ATTY. CALIMAG:
Well, Your Honor please, in that extra-judicial settlement
there is an approval of the honorable court as to the
property’s partition x x x. There were as mentioned by the
respondents’ counsel, Your Honor.
ATTY. BUYCO:
No…
JUSTICE AQUINO:
The point is, there can be no adjudication of a property under
intestate proceedings without the approval of the court. That
is basic unless you can present justification on that. In fact,
there are two steps: first, you ask leave and then execute the
document and then ask for approval of the document
executed. Now, is there any legal justification to exclude this
particular transaction from those steps?
ATTY. CALIMAG:
None, Your Honor.
ATTY BUYCO:
With that admission that there is no legal justification, Your
Honor, we rest the case for the private respondent. How can
 the lower court be accused of abusing its discretion? (pages
33-35, TSN of January 29, 1998).
Thus, We find merit in the following postulation by private
respondent:
What we have here is a situation where some of the heirs of the
decedent without securing court approval have appropriated as their
own personal property the properties of [the] Estate, to the exclusion
and the extreme prejudice of the other claimant/heirs. In other words,
these heirs, without court approval, have distributed the asset of the
estate among themselves and proceeded to dispose the same to third
parties even in the absence of an order of distribution by the Estate
Court. As admitted by petitioner’s counsel, there was absolutely no
legal justification for this action by the heirs. There being no legal
justification, petitioner has no basis for demanding that public
respondent [the intestate court] approve the sale of the Philinterlife
shares of the Estate by Juliana and Jose Ortañez in favor of the Filipino
Loan Assistance Group.
It is an undisputed fact that the parties to the Memorandum of
Agreement dated March 4, 1982 (see Annex 7 of the Comment). . .
are not the only heirs claiming an interest in the estate left by Dr.
Juvencio P. Ortañez. The records of this case. . . clearly show that as
early as March 3, 1981 an Opposition to the Application for Issuance
of Letters of Administration was filed by the acknowledged natural
children of Dr. Juvencio P. Ortañez with Ligaya Novicio. . . This claim
by the acknowledged natural children of Dr. Juvencio P. Ortañez is
admittedly known to the parties to the Memorandum of Agreement
before they executed the same. This much was admitted by
petitioner’s counsel during the oral argument. Xxx
Given the foregoing facts, and the applicable jurisprudence, public
respondent can never be faulted for not approving. . . the subsequent
sale by the petitioner [Jose Ortañez] and his mother [Juliana Ortañez]
of the Philinterlife shares belonging to the Estate of Dr. Juvencio P.
Ortañez.” (pages 3-4 of Private Respondent’s Memorandum; pages
243-244 of the Rollo)
A
midst the foregoing, We found no grave abuse of discretion amounting
to excess or want of jurisdiction committed by respondent judge.[19]
From the above decision, it is clear that Juliana Ortañez, and her three
sons, Jose, Rafael and Antonio, all surnamed Ortañez, invalidly
entered into a memorandum of agreement extrajudicially partitioning
the intestate estate among themselves, despite their knowledge that
there were other heirs or claimants to the estate and before final
settlement of the estate by the intestate court. Since the
appropriation of the estate properties by Juliana Ortañez and her
children (Jose, Rafael and Antonio Ortañez) was invalid, the
subsequent sale thereof by Juliana and Jose to a third party (FLAG),
without court approval, was likewise void.
An heir can sell his right, interest, or participation in the property
under administration under Art. 533 of the Civil Code which provides
that possession of hereditary property is deemed transmitted to the
heir without interruption from the moment of death of the
decedent.[20] However, an heir can only alienate such portion of the
estate that may be allotted to him in the division of the estate by the
probate or intestate court after final adjudication, that is, after all
debtors shall have been paid or the devisees or legatees shall have
been given their shares.[21] This means that an heir may only sell
his ideal or undivided share in the estate, not any specific property
therein. In the present case, Juliana Ortañez and Jose Ortañez sold
specific properties of the estate (1,014 and 1,011 shares of stock in
Philinterlife) in favor of petitioner FLAG. This they could not lawfully
do pending the final adjudication of the estate by the intestate court
because of the undue prejudice it would cause the other claimants to
the estate, as what happened in the present case.
Juliana Ortañez and Jose Ortañez sold specific properties of the
estate, without court approval. It is well-settled that court approval is
necessary for the validity of any disposition of the decedent’s estate.
In the early case of Godoy vs. Orellano,[22] we laid down the rule that
the sale of the property of the estate by an administrator without the
order of the probate court is void and passes no title to the purchaser.
And in the case of Dillena vs. Court of Appeals,[23] we ruled that:
[I]t must be emphasized that the questioned properties (fishpond)
were included in the inventory of properties of the estate submitted
by then Administratrix Fausta Carreon Herrera on November 14,
1974. Private respondent was appointed as administratrix of the
estate on March 3, 1976 in lieu of Fausta Carreon Herrera. On
November 1, 1978, the questioned deed of sale of the fishponds was
executed between petitioner and private respondent without notice
and approval of the probate court. Even after the sale, administratrix
Aurora Carreon still included the three fishponds as among the real
properties of the estate in her inventory submitted on August 13,
1981. In fact, as stated by the Court of Appeals, petitioner, at the
time of the sale of the fishponds in question, knew that the same were
part of the estate under administration.
x x x x x x x x x
The subject properties therefore are under the jurisdiction of the
probate court which according to our settled jurisprudence has the
authority to approve any disposition regarding properties under
administration. . . More emphatic is the declaration We made in Estate
of Olave vs. Reyes (123 SCRA 767) where We stated that when the
estate of the deceased person is already the subject of a testate or
intestate proceeding, the administrator cannot enter into any
transaction involving it without prior approval of the probate court.
Only recently, in Manotok Realty, Inc. vs. Court of Appeals (149 SCRA
174), We held that the sale of an immovable property belonging to
the estate of a decedent, in a special proceedings, needs court
approval. . . This pronouncement finds support in the previous case
of Dolores Vda. De Gil vs. Agustin Cancio (14 SCRA 797) wherein We
emphasized that it is within the jurisdiction of a probate court to
approve the sale of properties of a deceased person by his prospective
heirs before final adjudication. x x x
It being settled that property under administration needs the approval
of the probate court before it can be disposed of, any unauthorized
disposition does not bind the estate and is null and void. As early as
1921 in the case of Godoy vs. Orellano (42 Phil 347), We laid down
the rule that a sale by an administrator of property of the deceased,
which is not authorized by the probate court is null and void and title
does not pass to the purchaser.
There is hardly any doubt that the probate court can declare null and
void the disposition of the property under administration, made by
private respondent, the same having been effected without authority
from said court. It is the probate court that has the power to authorize
and/or approve the sale (Section 4 and 7, Rule 89), hence, a fortiori,
it is said court that can declare it null and void for as long as the
proceedings had not been closed or terminated. To uphold petitioner’s
contention that the probate court cannot annul the unauthorized sale,
would render meaningless the power pertaining to the said court.
(Bonga vs. Soler, 2 SCRA 755). (emphasis ours)
Our jurisprudence is therefore clear that (1) any disposition of estate
property by an administrator or prospective heir pending final
adjudication requires court approval and (2) any unauthorized
disposition of estate property can be annulled by the probate court,
there being no need for a separate action to annul the unauthorized
disposition.
The question now is: can the intestate or probate court execute its
order nullifying the invalid sale?
We see no reason why it cannot. The intestate court has the power to
execute its order with regard to the nullity of an unauthorized sale of
estate property, otherwise its power to annul the unauthorized or
fraudulent disposition of estate property would be meaningless. In
other words, enforcement is a necessary adjunct of the intestate or
probate court’s power to annul unauthorized or fraudulent
transactions to prevent the dissipation of estate property before final
adjudication.
Moreover, in this case, the order of the intestate court nullifying the
sale was affirmed by the appellate courts (the Court of Appeals in CA-
G.R. SP No. 46342 dated June 23, 1998 and subsequently by the
Supreme Court in G.R. No. 135177 dated October 9, 1998). The
finality of the decision of the Supreme Court was entered in the book
of entry of judgments on February 23, 1999. Considering the finality
of the order of the intestate court nullifying the sale, as affirmed by
the appellate courts, it was correct for private respondent-Special
Administratrix Enderes to thereafter move for a writ of execution and
for the intestate court to grant it.
Petitioners Jose Lee, Alma Aggabao and FLAG, however, contend that
the probate court could not issue a writ of execution with regard to its
order nullifying the sale because said order was merely provisional:
The only authority given by law is for respondent judge to determine
provisionally whether said shares are included or excluded in the
inventory… In ordering the execution of the orders, respondent judge
acted in excess of his jurisdiction and grossly violated settled law and
jurisprudence, i.e., that the determination by a probate or intestate
court of whether a property is included or excluded in the inventory
of the estate being provisional in nature, cannot be the subject of
execution.[24] (emphasis ours)
Petitioners’ argument is misplaced. There is no question, based on the
facts of this case, that the Philinterlife shares of stock were part of the
estate of Dr. Juvencio Ortañez from the very start as in fact these
shares were included in the inventory of the properties of the estate
submitted by Rafael Ortañez after he and his brother, Jose Ortañez,
were appointed special administrators by the intestate court.[25]
The controversy here actually started when, during the pendency of
the settlement of the estate of Dr. Ortañez, his wife Juliana Ortañez
sold the 1,014 Philinterlife shares of stock in favor petitioner FLAG
without the approval of the intestate court. Her son Jose Ortañez later
sold the remaining 1,011 Philinterlife shares also in favor of FLAG
without the approval of the intestate court.
We are not dealing here with the issue of inclusion or exclusion of
properties in the inventory of the estate because there is no question
that, from the very start, the Philinterlife shares of stock were owned
by the decedent, Dr. Juvencio Ortañez. Rather, we are concerned
here with the effect of the sale made by the decedent’s heirs,
Juliana Ortañez and Jose Ortañez, without the required
approval of the intestate court. This being so, the contention of
petitioners that the determination of the intestate court was merely
provisional and should have been threshed out in a separate
proceeding is incorrect.
The petitioners Jose Lee and Alma Aggabao next contend that the writ
of execution should not be executed against them because they were
not notified, nor they were aware, of the proceedings nullifying the
sale of the shares of stock.
We are not persuaded. The title of the purchaser like herein petitioner
FLAG can be struck down by the intestate court after a clear showing
of the nullity of the alienation. This is the logical consequence of our
ruling in Godoy and in several subsequent cases.[26] The sale of any
property of the estate by an administrator or prospective heir
without order of the probate or intestate court is void and
passes no title to the purchaser. Thus, in Juan Lao et al. vs. Hon.
Melencio Geneto, G.R. No. 56451, June 19, 1985, we ordered the
probate court to cancel the transfer certificate of title issued to the
vendees at the instance of the administrator after finding that the sale
of real property under probate proceedings was made without the
prior approval of the court. The dispositive portion of our decision
read:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the assailed Order
dated February 18, 1981 of the respondent Judge approving the
questioned Amicable Settlement is declared NULL and VOID and
hereby SET ASIDE. Consequently, the sale in favor of Sotero Dioniosio
III and by the latter to William Go is likewise declared NULL and VOID.
The Transfer Certificate of Title issued to the latter is hereby ordered
cancelled.
It goes without saying that the increase in Philinterlife’s authorized
capital stock, approved on the vote of petitioners’ non-existent
shareholdings and obviously calculated to make it difficult for Dr.
Ortañez’s estate to reassume its controlling interest in Philinterlife,
was likewise void ab initio.
Petitioners next argue that they were denied due process.
We do not think so.
The facts show that petitioners, for reasons known only to them, did
not appeal the decision of the intestate court nullifying the sale of
shares of stock in their favor. Only the vendor, Jose Ortañez, appealed
the case. A careful review of the records shows that petitioners had
actual knowledge of the estate settlement proceedings and that they
knew private respondent Enderes was questioning therein the sale to
them of the Philinterlife shares of stock.
It must be noted that private respondent-Special Administratrix
Enderes filed before the intestate court (RTC of Quezon City, Branch
85) a “Motion to Declare Void Ab Initio Deeds of Sale of Philinterlife
Shares of Stock” on March 22, 1996. But as early as 1994, petitioners
already knew of the pending settlement proceedings and that the
shares they bought were under the administration by the intestate
court because private respondent Ma. Divina Ortañez-Enderes and her
mother Ligaya Novicio had filed a case against them at the Securities
and Exchange Commission on November 7, 1994, docketed as SEC
No. 11-94-4909, for annulment of transfer of shares of stock,
annulment of sale of corporate properties, annulment of subscriptions
on increased capital stocks, accounting, inspection of corporate books
and records and damages with prayer for a writ of preliminary
injunction and/or temporary restraining order.[27] In said case,
Enderes and her mother questioned the sale of the aforesaid shares
of stock to petitioners. The SEC hearing officer in fact, in his resolution
dated March 24, 1995, deferred to the jurisdiction of the intestate
court to rule on the validity of the sale of shares of stock sold to
petitioners by Jose Ortañez and Juliana Ortañez:
Petitioners also averred that. . . the Philinterlife shares of Dr. Juvencio
Ortañez who died, in 1980, are part of his estate which is presently
the subject matter of an intestate proceeding of the RTC of Quezon
City, Branch 85. Although, private respondents [Jose Lee et al.]
presented the documents of partition whereby the foregoing share of
stocks were allegedly partitioned and conveyed to Jose S. Ortañez
who allegedly assigned the same to the other private respondents,
approval of the Court was not presented. Thus, the assignments to
the private respondents [Jose Lee et al.] of the subject shares of
stocks are void.
x x x x x x x x x
With respect to the alleged extrajudicial partition of the shares of
stock owned by the late Dr. Juvencio Ortañez, we rule that the matter
properly belongs to the jurisdiction of the regular court where the
intestate proceedings are currently pending.[28]
With this resolution of the SEC hearing officer dated as early as March
24, 1995 recognizing the jurisdiction of the intestate court to
determine the validity of the extrajudicial partition of the estate of Dr.
Ortañez and the subsequent sale by the heirs of the decedent of the
Philinterlife shares of stock to petitioners, how can petitioners claim
that they were not aware of the intestate proceedings?
Furthermore, when the resolution of the SEC hearing officer reached
the Supreme Court in 1996 (docketed as G.R. 128525), herein
petitioners who were respondents therein filed their answer which
contained statements showing that they knew of the pending intestate
proceedings:
[T]he subject matter of the complaint is not within the jurisdiction of
the SEC but with the Regional Trial Court; Ligaya Novicio and children
represented themselves to be the common law wife and illegitimate
children of the late Ortañez; that on March 4, 1982, the surviving
spouse Juliana Ortañez, on her behalf and for her minor son Antonio,
executed a Memorandum of Agreement with her other sons Rafael
and Jose, both surnamed Ortañez, dividing the estate of the deceased
composed of his one-half (1/2) share in the conjugal properties; that
in the said Memorandum of Agreement, Jose S. Ortañez acquired as
his share of the estate the 1,329 shares of stock in Philinterlife; that
on March 4, 1982, Juliana and Rafael assigned their respective shares
of stock in Philinterlife to Jose; that contrary to the contentions of
petitioners, private respondents Jose Lee, Carlos Lee, Benjamin Lee
and Alma Aggabao became stockholders of Philinterlife on March 23,
1983 when Jose S. Ortañez, the principal stockholder at that time,
executed a deed of sale of his shares of stock to private respondents;
and that the right of petitioners to question the Memorandum of
Agreement and the acquisition of shares of stock of private
respondent is barred by prescription.[29]
Also, private respondent-Special Administratrix Enderes offered
additional proof of actual knowledge of the settlement proceedings by
petitioners which petitioners never denied: (1) that petitioners were
represented by Atty. Ricardo Calimag previously hired by the mother
of private respondent Enderes to initiate cases against petitioners
Jose Lee and Alma Aggaboa for the nullification of the sale of the
shares of stock but said counsel made a conflicting turn-around and
appeared instead as counsel of petitioners, and (2) that the deeds of
sale executed between petitioners and the heirs of the decedent
(vendors Juliana Ortañez and Jose Ortañez) were acknowledged
before Atty. Ramon Carpio who, during the pendency of the
settlement proceedings, filed a motion for the approval of the sale of
Philinterlife shares of stock to the Knights of Columbus Fraternal
Association, Inc. (which motion was, however, later
abandoned).[30] All this sufficiently proves that petitioners, through
their counsels, knew of the pending settlement proceedings.
Finally, petitioners filed several criminal cases such as libel (Criminal
Case No. 97-7179-81), grave coercion (Criminal Case No. 84624) and
robbery (Criminal Case No. Q-96-67919) against private respondent’s
mother Ligaya Novicio who was a director of Philinterlife,[31] all of
which criminal cases were related to the questionable sale to
petitioners of the Philinterlife shares of stock.
Considering these circumstances, we cannot accept petitioners’ claim Petitioners and all parties claiming rights under them are hereby
of denial of due process. The essence of due process is the reasonable warned not to further delay the execution of the Orders of the
opportunity to be heard. Where the opportunity to be heard has been intestate court dated August 11 and August 29, 1997.
accorded, there is no denial of due process.[32] In this case, petitioners
knew of the pending instestate proceedings for the settlement of Dr. WHEREFORE, the petition is hereby DENIED. The decision of the
Juvencio Ortañez’s estate but for reasons they alone knew, they never Court of Appeals in CA-G.R. S.P. No. 59736 dated July 26, 2000,
intervened. When the court declared the nullity of the sale, they did dismissing petitioners’ petition for certiorari and affirming the July 6,
not bother to appeal. And when they were notified of the motion for 2000 order of the trial court which ordered the execution of its (trial
execution of the Orders of the intestate court, they ignored the same. court’s) August 11 and 29, 1997 orders, is hereby AFFIRMED.
Clearly, petitioners alone should bear the blame.
SO ORDERED.
Petitioners next contend that we are bound by our ruling in G.R. No.
128525 entitled Ma. Divina Ortañez-Enderes vs. Court of Appeals,
dated December 17, 1999, where we allegedly ruled that the intestate
court “may not pass upon the title to a certain property for the
purpose of determining whether the same should or should not be
included in the inventory but such determination is not conclusive and
is subject to final decision in a separate action regarding ownership
which may be constituted by the parties.”

We are not unaware of our decision in G.R. No. 128525. The issue
therein was whether the Court of Appeals erred in affirming the
resolution of the SEC that Enderes et al. were not entitled to the
issuance of the writ of preliminary injunction. We ruled that the Court
of Appeals was correct in affirming the resolution of the SEC denying
the issuance of the writ of preliminary injunction because injunction
is not designed to protect contingent rights. Said case did not rule on
the issue of the validity of the sale of shares of stock belonging to the
decedent’s estate without court approval nor of the validity of the writ
of execution issued by the intestate court. G.R. No. 128525 clearly
involved a different issue and it does not therefore apply to the
present case.
 SECOND DIVISION
G.R. No. 149926 February 23, 2005
UNION BANK OF THE PHILIPPINES, petitioner,
vs.
EDMUND SANTIBAÑEZ and FLORENCE SANTIBAÑEZ
ARIOLA, respondents.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court which seeks the reversal of the Decision1 of the
Court of Appeals dated May 30, 2001 in CA-G.R. CV No. 48831
affirming the dismissal2 of the petitioner’s complaint in Civil Case No.
18909 by the Regional Trial Court (RTC) of Makati City, Branch 63.
The antecedent facts are as follows:
On May 31, 1980, the First Countryside Credit Corporation (FCCC)
and Efraim M. Santibañez entered into a loan agreement3 in the
amount of ₱128,000.00. The amount was intended for the payment
of the purchase price of one (1) unit Ford 6600 Agricultural All-
Purpose Diesel Tractor. In view thereof, Efraim and his son, Edmund,
executed a promissory note in favor of the FCCC, the principal sum
payable in five equal annual amortizations of ₱43,745.96 due on May
31, 1981 and every May 31st thereafter up to May 31, 1985.
On December 13, 1980, the FCCC and Efraim entered into another
loan agreement,4 this time in the amount of ₱123,156.00. It was
intended to pay the balance of the purchase price of another unit of
Ford 6600 Agricultural All-Purpose Diesel Tractor, with accessories,
and one (1) unit Howard Rotamotor Model AR 60K. Again, Efraim and
his son, Edmund, executed a promissory note for the said amount in
favor of the FCCC. Aside from such promissory note, they also signed
a Continuing Guaranty Agreement5 for the loan dated December 13,
1980.
Sometime in February 1981, Efraim died, leaving a holographic
will.6 Subsequently in March 1981, testate proceedings commenced
before the RTC of Iloilo City, Branch 7, docketed as Special
Proceedings No. 2706. On April 9, 1981, Edmund, as one of the heirs,
was appointed as the special administrator of the estate of the
decedent.7 During the pendency of the testate proceedings, the
surviving heirs, Edmund and his sister Florence Santibañez Ariola,
executed a Joint Agreement8 dated July 22, 1981, wherein they
agreed to divide between themselves and take possession of the three
(3) tractors; that is, two (2) tractors for Edmund and one (1) tractor
for Florence. Each of them was to assume the indebtedness of their
late father to FCCC, corresponding to the tractor respectively taken
by them.
On August 20, 1981, a Deed of Assignment with Assumption of
Liabilities9 was executed by and between FCCC and Union Savings and
Mortgage Bank, wherein the FCCC as the assignor, among others,
assigned all its assets and liabilities to Union Savings and Mortgage
Bank.
Demand letters10 for the settlement of his account were sent by
petitioner Union Bank of the Philippines (UBP) to Edmund, but the
latter failed to heed the same and refused to pay. Thus, on February
5, 1988, the petitioner filed a Complaint11 for sum of money against
the heirs of Efraim Santibañez, Edmund and Florence, before the RTC
of Makati City, Branch 150, docketed as Civil Case No. 18909.
Summonses were issued against both, but the one intended for
Edmund was not served since he was in the United States and there
was no information on his address or the date of his return to the
Philippines.12 Accordingly, the complaint was narrowed down to
respondent Florence S. Ariola.
On December 7, 1988, respondent Florence S. Ariola filed her
Answer13 and alleged that the loan documents did not bind her since
she was not a party thereto. Considering that the joint agreement
signed by her and her brother Edmund was not approved by the
probate court, it was null and void; hence, she was not liable to the
petitioner under the joint agreement.
On January 29, 1990, the case was unloaded and re-raffled to the RTC
of Makati City, Branch 63.14 Consequently, trial on the merits ensued
and a decision was subsequently rendered by the court dismissing the
complaint for lack of merit. The decretal portion of the RTC decision
reads:
WHEREFORE, judgment is hereby rendered DISMISSING the
complaint for lack of merit.15
The trial court found that the claim of the petitioner should have been
filed with the probate court before which the testate estate of the late
Efraim Santibañez was pending, as the sum of money being claimed
was an obligation incurred by the said decedent. The trial court also
found that the Joint Agreement apparently executed by his heirs,
Edmund and Florence, on July 22, 1981, was, in effect, a partition of
the estate of the decedent. However, the said agreement was void,
considering that it had not been approved by the probate court, and
that there can be no valid partition until after the will has been
probated. The trial court further declared that petitioner failed to
prove that it was the now defunct Union Savings and Mortgage Bank
to which the FCCC had assigned its assets and liabilities. The court
also agreed to the contention of respondent Florence S. Ariola that
the list of assets and liabilities of the FCCC assigned to Union Savings
and Mortgage Bank did not clearly refer to the decedent’s account.
Ruling that the joint agreement executed by the heirs was null and
void, the trial court held that the petitioner’s cause of action against
respondent Florence S. Ariola must necessarily fail.
The petitioner appealed from the RTC decision and elevated its case
to the Court of Appeals (CA), assigning the following as errors of the
trial court:
1. THE COURT A QUO ERRED IN FINDING THAT THE JOINT
AGREEMENT (EXHIBIT A) SHOULD BE APPROVED BY THE
PROBATE COURT.
2. THE COURT A QUO ERRED IN FINDING THAT THERE CAN BE
NO VALID PARTITION AMONG THE HEIRS UNTIL AFTER THE WILL
HAS BEEN PROBATED.
3. THE COURT A QUO ERRED IN NOT FINDING THAT THE
DEFENDANT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RE-
LITIGATED IN THE ESTATE PROCEEDING.16
The petitioner asserted before the CA that the obligation of the
deceased had passed to his legitimate children and heirs, in this case,
Edmund and Florence; the unconditional signing of the joint
agreement marked as Exhibit "A" estopped respondent Florence S.
Ariola, and that she cannot deny her liability under the said document;
as the agreement had been signed by both heirs in their personal
capacity, it was no longer necessary to present the same before the
probate court for approval; the property partitioned in the agreement
was not one of those enumerated in the holographic will made by the
deceased; and the active participation of the heirs, particularly
respondent Florence S. Ariola, in the present ordinary civil action was
tantamount to a waiver to re-litigate the claim in the estate
proceedings.
On the other hand, respondent Florence S. Ariola maintained that the
money claim of the petitioner should have been presented before the
probate court.17
The appellate court found that the appeal was not meritorious and
held that the petitioner should have filed its claim with the probate
court as provided under Sections 1 and 5, Rule 86 of the Rules of
Court. It further held that the partition made in the agreement was
null and void, since no valid partition may be had until after the will
has been probated. According to the CA, page 2, paragraph (e) of the
holographic will covered the subject properties (tractors) in generic
terms when the deceased referred to them as "all other properties."
Moreover, the active participation of respondent Florence S. Ariola in
the case did not amount to a waiver. Thus, the CA affirmed the RTC
decision, viz.:
WHEREFORE, premises considered, the appealed Decision of the
Regional Trial Court of Makati City, Branch 63, is hereby AFFIRMED in
toto. SO ORDERED.18
In the present recourse, the petitioner ascribes the following errors to
the CA:
I.
THE HONORABLE COURT OF APPEALS ERRED IN FINDING THAT THE
JOINT AGREEMENT SHOULD BE APPROVED BY THE PROBATE COURT.
II.
THE COURT OF APPEALS ERRED IN FINDING THAT THERE CAN BE NO
VALID PARTITION AMONG THE HEIRS OF THE LATE EFRAIM
SANTIBAÑEZ UNTIL AFTER THE WILL HAS BEEN PROBATED.
III.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
RESPONDENT HAD WAIVED HER RIGHT TO HAVE THE CLAIM RE-
LITIGATED IN THE ESTATE PROCEEDING.
IV.
RESPONDENTS CAN, IN FACT, BE HELD JOINTLY AND SEVERALLY
LIABLE WITH THE PRINCIPAL DEBTOR THE LATE EFRAIM
SANTIBAÑEZ ON THE STRENGTH OF THE CONTINUING GUARANTY
AGREEMENT EXECUTED IN FAVOR OF PETITIONER-APPELLANT
UNION BANK.
V.
THE PROMISSORY NOTES DATED MAY 31, 1980 IN THE SUM OF
₱128,000.00 AND DECEMBER 13, 1980 IN THE AMOUNT OF
₱123,000.00 CATEGORICALLY ESTABLISHED THE FACT THAT THE
RESPONDENTS BOUND THEMSELVES JOINTLY AND SEVERALLY
LIABLE WITH THE LATE DEBTOR EFRAIM SANTIBAÑEZ IN FAVOR OF
PETITIONER UNION BANK.19
The petitioner claims that the obligations of the deceased were
transmitted to the heirs as provided in Article 774 of the Civil Code;
there was thus no need for the probate court to approve the joint
agreement where the heirs partitioned the tractors owned by the
deceased and assumed the obligations related thereto. Since
respondent Florence S. Ariola signed the joint agreement without any
condition, she is now estopped from asserting any position contrary
thereto. The petitioner also points out that the holographic will of the
deceased did not include nor mention any of the tractors subject of
the complaint, and, as such was beyond the ambit of the said will.
The active participation and resistance of respondent Florence S.
Ariola in the ordinary civil action against the petitioner’s claim
amounts to a waiver of the right to have the claim presented in the
probate proceedings, and to allow any one of the heirs who executed
the joint agreement to escape liability to pay the value of the tractors
under consideration would be equivalent to allowing the said heirs to
enrich themselves to the damage and prejudice of the petitioner.
The petitioner, likewise, avers that the decisions of both the trial and
appellate courts failed to consider the fact that respondent Florence
S. Ariola and her brother Edmund executed loan documents, all
establishing the vinculum jurisor the legal bond between the late
Efraim Santibañez and his heirs to be in the nature of a solidary
obligation. Furthermore, the Promissory Notes dated May 31, 1980
and December 13, 1980 executed by the late Efraim Santibañez,
together with his heirs, Edmund and respondent Florence, made the
obligation solidary as far as the said heirs are concerned. The
petitioner also proffers that, considering the express provisions of the
continuing guaranty agreement and the promissory notes executed
by the named respondents, the latter must be held liable jointly and
severally liable thereon. Thus, there was no need for the petitioner to
file its money claim before the probate court. Finally, the petitioner
stresses that both surviving heirs are being sued in their respective
personal capacities, not as heirs of the deceased.
In her comment to the petition, respondent Florence S. Ariola
maintains that the petitioner is trying to recover a sum of money from
the deceased Efraim Santibañez; thus the claim should have been
filed with the probate court. She points out that at the time of the
execution of the joint agreement there was already an existing
probate proceedings of which the petitioner knew about. However, to
avoid a claim in the probate court which might delay payment of the
obligation, the petitioner opted to require them to execute the said
agreement.
According to the respondent, the trial court and the CA did not err in
declaring that the agreement was null and void. She asserts that even
if the agreement was voluntarily executed by her and her brother
Edmund, it should still have been subjected to the approval of the
court as it may prejudice the estate, the heirs or third parties.
Furthermore, she had not waived any rights, as she even stated in
her answer in the court a quo that the claim should be filed with the
probate court. Thus, the petitioner could not invoke or claim that she
is in estoppel.
Respondent Florence S. Ariola further asserts that she had not signed
any continuing guaranty agreement, nor was there any document
presented as evidence to show that she had caused herself to be
bound by the obligation of her late father.
The petition is bereft of merit.
The Court is posed to resolve the following issues: a) whether or not
the partition in the Agreement executed by the heirs is valid; b)
whether or not the heirs’ assumption of the indebtedness of the
deceased is valid; and c) whether the petitioner can hold the heirs
liable on the obligation of the deceased.
At the outset, well-settled is the rule that a probate court has the
jurisdiction to determine all the properties of the deceased, to
determine whether they should or should not be included in the
inventory or list of properties to be administered. 20 The said court is
primarily concerned with the administration, liquidation and
distribution of the estate.21
In our jurisdiction, the rule is that there can be no valid partition
among the heirs until after the will has been probated:
In testate succession, there can be no valid partition among the heirs
until after the will has been probated. The law enjoins the probate of
a will and the public requires it, because unless a will is probated and
notice thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory. The
authentication of a will decides no other question than such as touch
upon the capacity of the testator and the compliance with those
requirements or solemnities which the law prescribes for the validity
of a will.22
This, of course, presupposes that the properties to be partitioned are
the same properties embraced in the will.23 In the present case, the
deceased, Efraim Santibañez, left a holographic will24 which
contained, inter alia, the provision which reads as follows:
(e) All other properties, real or personal, which I own and may be
discovered later after my demise, shall be distributed in the proportion
indicated in the immediately preceding paragraph in favor of Edmund
and Florence, my children.
We agree with the appellate court that the above-quoted is an all-
encompassing provision embracing all the properties left by the
decedent which might have escaped his mind at that time he was
making his will, and other properties he may acquire thereafter.
Included therein are the three (3) subject tractors. This being so, any
partition involving the said tractors among the heirs is not valid. The
joint agreement25 executed by Edmund and Florence, partitioning the
tractors among themselves, is invalid, specially so since at the time
of its execution, there was already a pending proceeding for the
probate of their late father’s holographic will covering the said
tractors.
It must be stressed that the probate proceeding had already acquired
jurisdiction over all the properties of the deceased, including the three
(3) tractors. To dispose of them in any way without the probate court’s
approval is tantamount to divesting it with jurisdiction which the Court
cannot allow.26 Every act intended to put an end to indivision among
co-heirs and legatees or devisees is deemed to be a partition,
although it should purport to be a sale, an exchange, a compromise,
or any other transaction.27 Thus, in executing any joint agreement
which appears to be in the nature of an extra-judicial partition, as in
the case at bar, court approval is imperative, and the heirs cannot
just divest the court of its jurisdiction over that part of the estate.
Moreover, it is within the jurisdiction of the probate court to determine
the identity of the heirs of the decedent.28 In the instant case, there
is no showing that the signatories in the joint agreement were the
only heirs of the decedent. When it was executed, the probate of the
will was still pending before the court and the latter had yet to
determine who the heirs of the decedent were. Thus, for Edmund and
respondent Florence S. Ariola to adjudicate unto themselves the three
(3) tractors was a premature act, and prejudicial to the other possible
heirs and creditors who may have a valid claim against the estate of
the deceased.
The question that now comes to fore is whether the heirs’ assumption
of the indebtedness of the decedent is binding. We rule in the
negative. Perusing the joint agreement, it provides that the heirs as
parties thereto "have agreed to divide between themselves and take
possession and use the above-described chattel and each of them to
assume the indebtedness corresponding to the chattel taken as herein
after stated which is in favor of First Countryside Credit Corp."29 The
assumption of liability was conditioned upon the happening of an
event, that is, that each heir shall take possession and use of their
respective share under the agreement. It was made dependent on the
validity of the partition, and that they were to assume the
indebtedness corresponding to the chattel that they were each to
receive. The partition being invalid as earlier discussed, the heirs in
effect did not receive any such tractor. It follows then that the
assumption of liability cannot be given any force and effect.
The Court notes that the loan was contracted by the
decedent.l^vvphi1.net The petitioner, purportedly a creditor of the
late Efraim Santibañez, should have thus filed its money claim with
the probate court in accordance with Section 5, Rule 86 of the Revised
Rules of Court, which provides:
Section 5. Claims which must be filed under the notice. If not filed
barred; exceptions. — All claims for money against the decedent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses for the last
sickness of the decedent, and judgment for money against the
decedent, must be filed within the time limited in the notice;
otherwise they are barred forever, except that they may be set forth
as counterclaims in any action that the executor or administrator may
bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commenced
by the deceased in his lifetime, the debtor may set forth by answer
the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims may
be set off against each other in such action; and if final judgment is
rendered in favor of the defendant, the amount so determined shall
be considered the true balance against the estate, as though the claim
had been presented directly before the court in the administration
proceedings. Claims not yet due, or contingent, may be approved at
their present value.
The filing of a money claim against the decedent’s estate in the
probate court is mandatory.30 As we held in the vintage case of Py Eng
Chong v. Herrera:31
… This requirement is for the purpose of protecting the estate of the
deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine
whether it is a proper one which should be allowed. The plain and
obvious design of the rule is the speedy settlement of the affairs of
the deceased and the early delivery of the property to the
distributees, legatees, or heirs. `The law strictly requires the prompt
presentation and disposition of the claims against the decedent's
estate in order to settle the affairs of the estate as soon as possible,
pay off its debts and distribute the residue.32
Perusing the records of the case, nothing therein could hold private
respondent Florence S. Ariola accountable for any liability incurred by
her late father. The documentary evidence presented, particularly the
promissory notes and the continuing guaranty agreement, were
executed and signed only by the late Efraim Santibañez and his son
Edmund. As the petitioner failed to file its money claim with the
probate court, at most, it may only go after Edmund as co-maker of
the decedent under the said promissory notes and continuing
guaranty, of course, subject to any defenses Edmund may have as
against the petitioner. As the court had not acquired jurisdiction over
the person of Edmund, we find it unnecessary to delve into the matter
further.
We agree with the finding of the trial court that the petitioner had not
sufficiently shown that it is the successor-in-interest of the Union
Savings and Mortgage Bank to which the FCCC assigned its assets and
liabilities.33 The petitioner in its complaint alleged that "by virtue of
the Deed of Assignment dated August 20, 1981 executed by and
between First Countryside Credit Corporation and Union Bank of the
Philippines…"34 However, the documentary evidence35 clearly reflects
that the parties in the deed of assignment with assumption of
liabilities were the FCCC, and the Union Savings and Mortgage Bank,
with the conformity of Bancom Philippine Holdings, Inc. Nowhere can
the petitioner’s participation therein as a party be found. Furthermore,
no documentary or testimonial evidence was presented during trial to
show that Union Savings and Mortgage Bank is now, in fact, petitioner
Union Bank of the Philippines. As the trial court declared in its
decision:

… [T]he court also finds merit to the contention of defendant that

plaintiff failed to prove or did not present evidence to prove that Union
Savings and Mortgage Bank is now the Union Bank of the Philippines.
Judicial notice does not apply here. "The power to take judicial notice
is to [be] exercised by the courts with caution; care must be taken
that the requisite notoriety exists; and every reasonable doubt upon
the subject should be promptly resolved in the negative." (Republic
vs. Court of Appeals, 107 SCRA 504).36

This being the case, the petitioner’s personality to file the complaint
is wanting. Consequently, it failed to establish its cause of action.
Thus, the trial court did not err in dismissing the complaint, and the
CA in affirming the same.

IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED.

The assailed Court of Appeals Decision is AFFIRMED. No costs. SO
ORDERED.
 SECOND DIVISION
G.R. No. 174680 March 24, 2008
VICTORIA C. TAYAG, Petitioner,
vs.
FELICIDAD A. TAYAG-GALLOR, Respondent.
TINGA, J.:
This is a petition for review on certiorari seeking the reversal of the
Decision1 of the Court of Appeals dated 29 May 2006, and its
Resolution2 dated 28 August 2006 in CA-G.R. SP No. 79205.
The antecedents are as follows:
On 15 January 2001, respondent herein, Felicidad A. Tayag-Gallor,
filed a petition for the issuance of letters of administration over the
estate of Ismael Tayag.3 Respondent alleged in the petition, docketed
as Special Proceeding No. 5994 (SP 5994), that she is one of the three
(3) illegitimate children of the late Ismael Tayag and Ester C. Angeles.
The decedent was married to petitioner herein, Victoria C. Tayag, but
the two allegedly did not have any children of their own.
On 7 September 2000, Ismael Tayag died intestate, leaving behind
two (2) real properties both of which are in the possession of
petitioner, and a motor vehicle which the latter sold on 10 October
2000 preparatory to the settlement of the decedent’s estate.
Petitioner allegedly promised to give respondent and her brothers
₱100,000.00 each as their share in the proceeds of the sale. However,
petitioner only gave each of them half the amount she promised.
Respondent further averred that on 20 November 2000, petitioner has
caused the annotation of 5 September 1984 affidavit executed by
Ismael Tayag declaring the properties to be the paraphernal
properties of petitioner. The latter allegedly intends to dispose of
these properties to the respondent’s and her brothers’ prejudice.
Petitioner opposed the petition, asserting that she purchased the
properties subject of the petition using her own money. She claimed
that she and Ismael Tayag got married in Las Vegas, Nevada, USA on
25 October 1973, and that they have an adopted daughter, Carmela
Tayag, who is presently residing in the USA. It is allegedly not true
that she is planning to sell the properties. Petitioner prayed for the
dismissal of the suit because respondent failed to state a cause of
action.4
In a Motion5 dated 31 August 2001, petitioner reiterated her sole
ownership of the properties and presented the transfer certificates of
title thereof in her name. She also averred that it is necessary to
allege that respondent was acknowledged and recognized by Ismael
Tayag as his illegitimate child. There being no such allegation, the
action becomes one to compel recognition which cannot be brought
after the death of the putative father. To prevent further
encroachment upon the court’s time, petitioner moved for a hearing
on her affirmative defenses.
The Motion was denied in an Order6 dated 3 April 2003. Petitioner’s
motion for reconsideration was likewise denied in an Order7 dated 16
July 2003.
The appellate court, in a Decision8 dated 29 May 2006, upheld the
denial of petitioner’s motion and directed the trial court to proceed
with the case with dispatch. The Court of Appeals ruled, in essence,
that the allegation that respondent is an illegitimate child suffices for
a cause of action, without need to state that she had been recognized
and acknowledged as such. However, respondent still has to prove
her allegation and, correspondingly, petitioner has the right to refute
the allegation in the course of the settlement proceedings.
The Court of Appeals denied reconsideration in a Resolution9 dated 28
August 2006.
In her Petition10 17 dated September 2006, petitioner asserts that
respondent should not be allowed to prove her filiation in the
settlement of Ismael Tayag’s estate. If, following the case
of Uyguanco v. Court of Appeals,11 the claim of filiation may no longer
be proved in an action for recognition, with more reason that it should
not be allowed to be proved in an action for the settlement of the
decedent’s estate. Thus, petitioner claims, respondent may no longer
maintain an action to prove that she is the illegitimate child of the
decedent after the latter’s death.
Unfortunately, the two-page Comment,12 dated 17 April 2007, fails to
shed any more light on the present controversy.
The Reply13 dated 3 September 2007 reiterates the arguments in the
petition.
The main issue in this case is deceptively simple. As crafted by the
Court of Appeals, it is whether respondent’s petition for the issuance
of letters of administration sufficiently states a cause of action
considering that respondent merely alleged therein that she is an
illegitimate child of the decedent, without stating that she had been
acknowledged or recognized as such by the latter. The appellate court
held that the mere allegation that respondent is an illegitimate child
suffices.
Rule 79 of the Rules of Court provides that a petition for the issuance
of letters of administration must be filed by an interested
person. In Saguinsin v. Lindayag,14 the Court defined an interested
party as one who would be benefited by the estate, such as an heir,
or one who has a claim against the estate, such as a creditor. This
interest, furthermore, must be material and direct, not merely indirect
or contingent.
Hence, where the right of the person filing a petition for the issuance
of letters of administration is dependent on a fact which has not been
established or worse, can no longer be established, such contingent
interest does not make her an interested party. Here lies the
complication in the case which the appellate court had not discussed,
although its disposition of the case is correct.
Essentially, the petition for the issuance of letters of administration is
a suit for the settlement of the intestate estate of Ismael Tayag. The
right of respondent to maintain such a suit is dependent on whether
she is entitled to successional rights as an illegitimate child of the
decedent which, in turn, may be established through voluntary or
compulsory recognition.
Voluntary recognition must be express such as that in a record of birth
appearing in the civil register, a final judgment, a public instrument
or private handwritten instrument signed by the parent
concerned.15 The voluntary recognition of an illegitimate child by his
or her parent needs no further court action and is, therefore, not
subject to the limitation that the action for recognition be brought
during the lifetime of the putative parent.16 Judicial or compulsory
recognition, on the other hand, may be demanded by the illegitimate
child of his parents and must be brought during the lifetime of the
presumed parents.17
Petitioner’s thesis is essentially based on her contention that by
Ismael Tayag’s death, respondent’s illegitimate filiation and
necessarily, her interest in the decedent’s estate which the Rules decedent’s voluntary acknowledgment or recognition of her
require to be material and direct, may no longer be established. illegitimate filiation.
Petitioner, however, overlooks the fact that respondent’s successional
rights may be established not just by a judicial action to compel We find, therefore, that the allegation that respondent is an
recognition but also by proof that she had been voluntarily illegitimate child of the decedent suffices even without further stating
acknowledged and recognized as an illegitimate child. that she has been so recognized or acknowledged. A motion to dismiss
on the ground of failure to state a cause of action in the complaint
In Uyguangco v. Court of Appeals, supra, Graciano Uyguangco, hypothetically admits the truth of the facts alleged
claiming to be an illegitimate child of the decedent, filed a complaint therein. Assuming the fact alleged to be true, i.e., that respondent
19

for partition against the latter’s wife and legitimate children. However,
an admission was elicited from him in the course of his presentation
of evidence at the trial that he had none of the documents mentioned
in Article 27818 of the 1950 Civil Code to show that he was the
illegitimate son of the decedent. The wife and legitimate children of
the decedent thereupon moved for the dismissal of the case on the
ground that he could no longer prove his alleged filiation under the
applicable provision of the Civil Code.
is the
decedent’s illegitimate child, her interest in the estate as such would
definitely be material and direct. The appellate court was, therefore,
correct in allowing the proceedings to continue, ruling that,
"respondent still has the duty to prove the allegation (that she is an
illegitimate child of the decedent), just as the petitioner has the right
to disprove it, in the course of the settlement proceedings."

The Court, applying the provisions of the Family Code which had then WHEREFORE, the instant petition is DENIED. The Decision of the Court
already taken effect, ruled that since Graciano was claiming of Appeals dated 29 May 2006 and its Resolution dated 28 August
illegitimate filiation under the second paragraph of Article 172 of the 2006 are AFFIRMED. No pronouncement as to costs. SO ORDERED.
Family Code, i.e., open and continuous possession of the status of an
illegitimate child, the action was already barred by the death of the
alleged father.

In contrast, respondent in this case had not been given the

opportunity to present evidence to show whether she had been
voluntarily recognized and acknowledged by her deceased father
because of petitioner’s opposition to her petition and motion for
hearing on affirmative defenses. There is, as yet, no way to determine
if her petition is actually one to compel recognition which had already
been foreclosed by the death of her father, or whether indeed she has
a material and direct interest to maintain the suit by reason of the
 SECOND DIVISION
G.R. No. 156536 October 31, 2006
JOSEPH CUA, petitioner,
vs.
GLORIA A. VARGAS, AURORA VARGAS, RAMON VARGAS,
MARITES VARGAS, EDELINA VARGAS AND GEMMA
VARGAS, respondents.
AZCUNA, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking
the reversal of the decision1 dated March 26, 2002, and the
resolution2 dated December 17, 2002, of the Court of Appeals in CA-
G.R. SP No. 59869 entitled "Gloria A. Vargas, Aurora Vargas, Ramon
Vargas, Marites Vargas, Edelina Vargas and Gemma Vargas v. Joseph
Cua."
The facts are as follows:
A parcel of residential land with an area of 99 square meters located
in San Juan, Virac, Catanduanes was left behind by the late Paulina
Vargas. On February 4, 1994, a notarized Extra Judicial Settlement
Among Heirs was executed by and among Paulina Vargas' heirs,
namely Ester Vargas, Visitacion Vargas, Juan Vargas, Zenaida V.
Matienzo, Rosario V. Forteza, Andres Vargas, Gloria Vargas, Antonina
Vargas and Florentino Vargas, partitioning and adjudicating unto
themselves the lot in question, each one of them getting a share of
11 square meters. Florentino, Andres, Antonina and Gloria, however,
did not sign the document. Only Ester, Visitacion, Juan, Zenaida and
Rosario signed it. The Extra Judicial Settlement Among Heirs was
published in the Catanduanes Tribune for three consecutive weeks.3
On November 15, 1994, an Extra Judicial Settlement Among Heirs
with Sale4 was again executed by and among the same heirs over the
same property and also with the same sharings. Once more, only
Ester, Visitacion, Juan, Zenaida and Rosario signed the document and
their respective shares totaling 55 square meters were sold to Joseph
Cua, petitioner herein.
According to Gloria Vargas, the widow of Santiago Vargas and one of
respondents herein, she came to know of the Extra Judicial Settlement
Among Heirs with Sale dated November 16, 1994 only when the
original house built on the lot was being demolished sometime in May
1995.5 She likewise claimed she was unaware that an earlier Extra
Judicial Settlement Among Heirs dated February 4, 1994 involving the
same property had been published in the Catanduanes Tribune.6
After knowing of the sale of the 55 square meters to petitioner, Gloria
Vargas tried to redeem the property, with the following letter7 sent to
petitioner on her behalf:
29th June 1995
Mr. Joseph Cua
Capilihan, Virac, Catanduanes
Sir:
This is in behalf of my client, Ms. Aurora Vargas,8 (c/o Atty.
Prospero V. Tablizo) one of the lawful heirs of the late Paulina
Vargas, original owner of Lot No. 214 of Virac, Poblacion covered
by ARP No. 031-0031 in her name.
I understand that a document "Extra Judicial Settlement Among
Heirs with Sale" was executed by some of my client's co-heirs and
 alleged representatives of other co-heirs, by virtue of which
document you acquired by purchase from the signatories to the
said document, five (5) shares with a total area of fifty-five square
meters of the above-described land.
This is to serve you notice that my client shall exercise her right
of legal redemption of said five (5) shares as well as other shares
which you may likewise have acquired by purchase. And you are
hereby given an option to agree to legal redemption within a
period of fifteen (15) days from your receipt hereof.
Should you fail to convey to me your agreement within said 15-
day-period, proper legal action shall be taken by my client to
redeem said shares.
Thank you.
Very truly yours,
(Sgd.)
JUAN G. ATENCIA
When the offer to redeem was refused and after having failed to reach
an amicable settlement at the barangay level,9 Gloria Vargas filed a
case for annulment of Extra Judicial Settlement and Legal Redemption
of the lot with the Municipal Trial Court (MTC) of Virac, Catanduanes
against petitioner and consigned the amount of P100,000 which is the
amount of the purchase with the Clerk of Court on May 20,
1996.10 Joining her in the action were her children with Santiago,
namely, Aurora, Ramon, Marites, Edelina and Gemma, all surnamed
Vargas.
Subsequently, Carlos Gianan, Jr. and Gloria Arcilla, heirs of the
alleged primitive owner of the lot in question, Pedro Lakandula,
intervened in the case.11
Respondents claimed that as co-owners of the property, they may be
subrogated to the rights of the purchaser by reimbursing him the price
of the sale. They likewise alleged that the 30-day period following a
written notice by the vendors to their co-owners for them to exercise
the right of redemption of the property had not yet set in as no written
notice was sent to them. In effect, they claimed that the Extra Judicial
Settlement Among Heirs and the Extra Judicial Settlement Among
Heirs with Sale were null and void and had no legal and binding effect
on them.12
After trial on the merits, the MTC rendered a decision13 in favor of
petitioner, dismissing the complaint as well as the complaint-in-
intervention for lack of merit, and declaring the Deed of Extra Judicial
Settlement Among Heirs with Sale valid and binding. The MTC upheld
the sale to petitioner because the transaction purportedly occurred
after the partition of the property among the co-owner heirs. The MTC
opined that the other heirs could validly dispose of their respective
shares. Moreover, the MTC found that although there was a failure to
strictly comply with the requirements under Article 1088 of the Civil
Code14 for a written notice of sale to be served upon respondents by
the vendors prior to the exercise of the former's right of redemption,
this deficiency was cured by respondents' actual knowledge of the
sale, which was more than 30 days before the filing of their complaint,
and their consignation of the purchase price with the Clerk of Court,
so that the latter action came too late. Finally, the MTC ruled that
respondents failed to establish by competent proof petitioner's bad
faith in purchasing the portion of the property owned by respondents'
co-heirs.15
On appeal, the Regional Trial Court (RTC), Branch 42, of Virac,
Catanduanes affirmed the MTC decision in a judgment dated
November 25, 1999. The matter was thereafter raised to the Court of
Appeals (CA).
The CA reversed the ruling of both lower courts in the assailed
decision dated March 26, 2002, declaring that the Extra Judicial
Settlement Among Heirs and the Extra Judicial Settlement Among
Heirs with Sale, dated February 4, 1994 and November 15, 1994,
respectively, were void and without any legal effect. The CA held that,
pursuant to Section 1, Rule 74 of the Rules of Court, 16 the
extrajudicial settlement made by the other co-heirs is not binding
upon respondents considering the latter never participated in it nor
did they ever signify their consent to the same.
His motion for reconsideration having been denied, petitioner filed the
present petition for review.
The issues are:
Whether heirs are deemed constructively notified and bound,
regardless of their failure to participate therein, by an extrajudicial
settlement and partition of estate when the extrajudicial
settlement and partition has been duly published; and,
Assuming a published extrajudicial settlement and partition does
not bind persons who did not participate therein, whether the
written notice required to be served by an heir to his co-heirs in
connection with the sale of hereditary rights to a stranger before
partition under Article 1088 of the Civil Code17 can be dispensed
with when such co-heirs have actual knowledge of the sale such
that the 30-day period within which a co-heir can exercise the
right to be subrogated to the rights of a purchaser shall commence
from the date of actual knowledge of the sale.
Petitioner argues, as follows:
Firstly, the acquisition by petitioner of the subject property
subsequent to the extrajudicial partition was valid because the
partition was duly published. The publication of the same constitutes
due notice to respondents and signifies their implied acquiescence
thereon. Respondents are therefore estopped from denying the
validity of the partition and sale at this late stage. Considering that
the partition was valid, respondents no longer have the right to
redeem the property.
Secondly, petitioner is a possessor and builder in good faith.
Thirdly, the MTC had no jurisdiction over the complaint because its
subject matter was incapable of pecuniary estimation. The complaint
should have been filed with the RTC.
Fourthly, there was a non-joinder of indispensable parties, the co-
heirs who sold their interest in the subject property not having been
impleaded by respondents.
Fifthly, the appeal to the CA should have been dismissed as it was not
properly verified by respondents. Gloria Vargas failed to indicate that
she was authorized to represent the other respondents (petitioners
therein) to initiate the petition. Moreover, the verification was
inadequate because it did not state the basis of the alleged truth
and/or correctness of the material allegations in the petition.
The petition lacks merit.
The procedure outlined in Section 1 of Rule 74 is an ex
parte proceeding. The rule plainly states, however, that persons who
do not participate or had no notice of an extrajudicial settlement will
not be bound thereby.18 It contemplates a notice that has been sent
out or issued before any deed of settlement and/or partition is agreed
upon (i.e., a notice calling all interested parties to participate in the
said deed of extrajudicial settlement and partition), and not after such
an agreement has already been executed19 as what happened in the
instant case with the publication of the first deed of extrajudicial
settlement among heirs.
The publication of the settlement does not constitute constructive
notice to the heirs who had no knowledge or did not take part in it
because the same was notice after the fact of execution. The
requirement of publication is geared for the protection of creditors and
was never intended to deprive heirs of their lawful participation in the
decedent's estate. In this connection, the records of the present case
confirm that respondents never signed either of the settlement
documents, having discovered their existence only shortly before the
filing of the present complaint. Following Rule 74, these extrajudicial
settlements do not bind respondents, and the partition made without
their knowledge and consent is invalid insofar as they are concerned.
This is not to say, though, that respondents' co-heirs cannot validly
sell their hereditary rights to third persons even before the partition
of the estate. The heirs who actually participated in the execution of
the extrajudicial settlements, which included the sale to petitioner of
their pro indiviso shares in the subject property, are bound by the
same. Nevertheless, respondents are given the right to redeem these
shares pursuant to Article 1088 of the Civil Code. The right to redeem
was never lost because respondents were never notified in writing of
the actual sale by their co-heirs. Based on the provision, there is a
need for written notice to start the period of redemption, thus:
Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him
for the price of the sale, provided they do so within the
period of one month from the time they were notified in
writing of the sale by the vendor. (Emphasis supplied.)
It bears emphasis that the period of one month shall be reckoned
from the time that a co-heir is notified in writing by the vendor of the
actual sale. Written notice is indispensable and mandatory,20 actual
knowledge of the sale acquired in some other manner by the
redemptioner notwithstanding. It cannot be counted from the time
advance notice is given of an impending or contemplated sale. The
law gives the co-heir thirty days from the time written notice of the
actual sale within which to make up his or her mind and decide to
repurchase or effect the redemption.21
Though the Code does not prescribe any particular form of written
notice nor any distinctive method for written notification of
redemption, the method of notification remains exclusive, there being
no alternative provided by law.22This proceeds from the very purpose
of Article 1088, which is to keep strangers to the family out of a joint
ownership, if, as is often the case, the presence of outsiders be
undesirable and the other heir or heirs be willing and in a position to
repurchase the share sold.23
It should be kept in mind that the obligation to serve written notice
devolves upon the vendor co-heirs because the latter are in the best
position to know the other co-owners who, under the law, must be
notified of the sale.24 This will remove all uncertainty as to the fact of
the sale, its terms and its perfection and validity, and quiet any doubt
that the alienation is not definitive.25 As a result, the party notified
need not entertain doubt that the seller may still contest the
alienation. 26
Considering, therefore, that respondents' co-heirs failed to comply
with this requirement, there is no legal impediment to allowing
respondents to redeem the shares sold to petitioner given the
former's obvious willingness and capacity to do so.
Likewise untenable is petitioner's contention that he is a builder in
good faith. Good faith consists in the belief of the builder that the land
the latter is building on is one's own without knowledge of any defect
or flaw in one's title.27Petitioner derived his title from the Extra Judicial
Settlement Among Heirs With Sale dated November 15, 1994. He was
very much aware that not all of the heirs participated therein as it was
evident on the face of the document itself. Because the property had
not yet been partitioned in accordance with the Rules of Court, no
particular portion of the property could have been identified as yet
and delineated as the object of the sale. This is because the alienation
made by respondents' co-heirs was limited to the portion which may
be allotted to them in the division upon the termination of the co-
ownership. Despite this glaring fact, and over the protests of
respondents, petitioner still constructed improvements on the
property. For this reason, his claim of good faith lacks credence.
As to the issue of lack of jurisdiction, petitioner is estopped from
raising the same for the first time on appeal. Petitioner actively
participated in the proceedings below and sought affirmative ruling
from the lower courts to uphold the validity of the sale to him of a
portion of the subject property embodied in the extrajudicial
settlement among heirs. Having failed to seasonably raise this
defense, he cannot, under the peculiar circumstances of this case, be
permitted to challenge the jurisdiction of the lower court at this late
stage. While it is a rule that a jurisdictional question may be raised at
any time, an exception arises where estoppel has already supervened.
Estoppel sets in when a party participates in all stages of a case before
challenging the jurisdiction of the lower court. One cannot belatedly
reject or repudiate its decision after voluntarily submitting to its
jurisdiction, just to secure affirmative relief against one's opponent or
after failing to obtain such relief. The Court has, time and again,
frowned upon the undesirable practice of a party submitting a case
for decision and then accepting the judgment, only if favorable, and
attacking it for lack of jurisdiction when adverse.28
Petitioner's fourth argument, that there is a non-joinder of
indispensable parties, similarly lacks merit. An indispensable party is
a party-in-interest without whom there can be no final determination
of an action and who is required to be joined as either plaintiff or
defendant.29 The party's interest in the subject matter of the suit and
in the relief sought is so inextricably intertwined with the other parties
that the former's legal presence as a party to the proceeding is an
absolute necessity. Hence, an indispensable party is one whose
interest will be directly affected by the court's action in the litigation.
In the absence of such indispensable party, there cannot be a
resolution of the controversy before the court which is effective,
complete, or equitable.30
In relation to this, it must be kept in mind that the complaint filed by
respondents ultimately prayed that they be allowed to redeem the
shares in the property sold by their co-heirs. Significantly, the right
of the other heirs to sell their undivided share in the property to
petitioner is not in dispute. Respondents concede that the other heirs
acted within their hereditary rights in doing so to the effect that the
latter completely and effectively relinquished their interests in the
property in favor of petitioner. Petitioner thus stepped into the shoes
of the other heirs to become a co-owner of the property with WHEREFORE, the petition is DENIED for lack of merit. Costs against
respondents. As a result, only petitioner's presence is absolutely petitioner. SO ORDERED.
required for a complete and final determination of the controversy
because what respondents seek is to be subrogated to his rights as a
purchaser.

Finally, petitioner contends that the petition filed by respondents with

the CA should have been dismissed because the verification and
certificate of non-forum shopping appended to it were defective, citing
specifically the failure of respondent Gloria Vargas to: (1) indicate that
she was authorized to represent her co-respondents in the petition,
and (2) state the basis of the alleged truth of the allegations.

The general rule is that the certificate of non-forum shopping must be

signed by all the plaintiffs or petitioners in a case and the signature
of only one of them is insufficient.31 Nevertheless, the rules on forum
shopping, which were designed to promote and facilitate the orderly
administration of justice, should not be interpreted with such absolute
literalness as to subvert their own ultimate and legitimate objective.
Strict compliance with the provisions regarding the certificate of non-
forum shopping merely underscores its mandatory nature in that the
certification cannot be altogether dispensed with or its requirements
completely disregarded.32 Under justifiable circumstances, the Court
has relaxed the rule requiring the submission of such certification
considering that although it is obligatory, it is not jurisdictional.33

Thus, when all the petitioners share a common interest and invoke a
common cause of action or defense, the signature of only one of them
in the certification against forum shopping substantially complies with
the rules.34 The co-respondents of respondent Gloria Vargas in this
case were her children. In order not to defeat the ends of justice, the
Court deems it sufficient that she signed the petition on their behalf
and as their representative.
 EN BANC
G.R. No. L-11156 February 23, 1961
PURA CARREON, ET AL., plaintiffs-appellants,
vs.
RUFO AGCAOILI and LOURDES SANTIAGO, defendants-
appellees.
BAUTISTA ANGELO, J.:
During the marriage of Bonifacio Carreon and Celerina Dauag the
registered land subject of this case was acquired. After the death of
Carreon, his widow Celerina executed on September 24, 1946, an
affidavit adjudicating to herself alone the said land. She declared in
said document that she was the only heiress of her husband. The
original certificate of title covering the land was cancelled and a
transfer certificate was issued in her name. There was however
annotated on her certificate a lien to the effect that her title was
subject to Section 4 of Rule 74 of the Rules of Court.
On September 25, 1946, she borrowed P1,200.00 from the Philippine
National Bank guaranteed by a mortgage on one-half of the land. A
memorandum of the mortgage was annotated on her transfer
certificate. After the maturity of the loan, she requested a certain Mr.
Pintang to look for a buyer of the land for P3,000.00. One by the name
of Rufo Agcaoili was found. The latter made an advance payment of
Pl,500.00 and the balance was paid in full on October 13, 1947. The
loan from the bank was paid, the mortgage was released and the deed
of absolute sale executed in his favor was registered.1 A new transfer
certificate of title was issued in the name of Agcaoili.
On February 19, 1955, the children of Celerina with the deceased
husband filed a complaint against the spouses Agcaoili seeking to
have the deed of sale executed by their mother declared as one of
mortgage and to recover one half pro-indiviso of the land described
in the complaint. Simultaneous with the filing of said complaint,
Celerina filed an action for intervention which was dismissed by the
trial court.
Defendants filed a motion for summary judgment upon the plea that
the main averments of the complaint even if admitted do not
constitute a cause of action and supported their plea with certain
documentary evidence. Plaintiffs filed an opposition on the ground
that there was a genuine issue which could not be determined unless
a trial is had. The trial court, however, allowed the parties to submit
evidence in support of their contentions and after a careful analysis
thereof found for defendants holding that plaintiffs, claim has no legal
basis.
As may be gleaned from the appellants' assignments of error, the
present appeal is predicated on the arguments that appellees were
buyers in bad faith; that there existed a trust relationship between
them and appellants, and that such being the case, the action against
appellees is imprescriptible.
There is no clear proof that when Rufo Agcaoili bought the land he
knew of any flaw in the title of Celerina Dauag. The mere fact that he
was a townmate of Celerina is not sufficient basis to conclude that he
knew that she had children by her first husband. It has been shown
that since 1920 Rufo Agcaoili has been an enlisted man in the
Philippine constabulary and seldom come home to visit his relatives.
A man of such a situation cannot be expected to know the relatives
and children of his vendor even if they are townmates,. Fraud cannot
be presumed. It must be established by clear and sufficient evidence.
Here every indication is that Agcaoili bought the land in all good faith
oblivious of the source of its acquisition.
If fraud had been committed such was perpetrated by Celerina, creditors, heirs, or other persons for the full period of two
appellants' mother. By her action she induced Agcaoili to believe that years after such distribution, notwithstanding any transfers of
she was the absolute owner of the land which bore a torrens title. In the real estate that may have been made.
dealing with it he merely relied on such title. He was not required to
do more. He is only charged with notice of the burdens which are The above lien is effective only for a period of two years. From
noted on the face of said title. So, after he bought the land and a new September 28, 1946, when a transfer certificate of title was issued to
title was issued in his name, he became a purchaser thereof for value Celerina, to September 8, 1949 when the deed of sale in favor of
and a holder of a good and valid title.2 Agcaoili was issued and registered, more than two years had elapsed
We sustain the lower court's opinion that thenceforth the right to have
On the transfer certificate of title issued to Agcaoili there was such lien cancelled became vested on appellee Agcaoili and that the
annotated a statement that it was subject to Section 4, Rule 74 of the same had become functus oficio.3 And there being no fraud in the
Rules of Court. This was an annotation carried over from Celerina's transaction on the part of appellee, nor proof that he knew of any
transfer certificate. Section 4, Rule 74, provides the following: legal infirmity in the title of his vendor, we find no reason to apply the
proposition that he is deemed to be holding the land in trust for the
SEC. 4. Liability of distributees and estate. — If it shall appear children of Celerina Dauag.
at any time within two years after the settlement and
distribution of an estate in accordance with the provisions of WHEREFORE, the decision appealed from is affirmed, without
either of the first two sections of this rule, that an heir or other pronouncement as to costs.
person has been unduly deprived of his lawful participation in
the estate, such heir or such other person may compel the
settlement of the estate in the courts in the manner
hereinafter provided for the purpose of satisfying such lawful
participation. And if within the same time of two years, it shall
appear that there are debts outstanding against the estate
which have not been paid, or that an heir or other person has
been unduly deprived of his lawful participation payable in
money, the court having jurisdiction of the estate may, by
order for that purpose, after hearing, settle the amount of
such debts or lawful participation and order how much and in
what manner each distributee shall contribute in the payment
thereof, and may issue execution, if circumstances require,
against the bond provided in the preceding section or against
the real estate belonging to the deceased, or both. Such bond
and such real estate shall remain charged with a liability to
 SECOND DIVISION
G.R. No. 118680 March 5, 2001
MARIA ELENA RODRIGUEZ PEDROSA, petitioner,
vs.
THE HON. COURT OF APPEALS, JOSE, CARMEN, MERCEDES &
RAMON, all surnamed RODRIGUEZ, ROSALINA RODRIGUEZ,
CHAN LUNG FAI, MATEO TAN TE, TE ENG SUY, LORETA TE,
VICTORIO S. DETALIA, JEROME DEIPARINE, PETRONILO S.
DETALIA, HUBERT CHIU YULO, PATERIO N. LAO, LORENSITA
M. PADILLA, IMMACULATE CONCEPCION COLLEGE AND LILIAN
EXPRESS, INC. and TIO TUAN, respondents.
QUISUMBING, J.:
This petition assails the decision of the Court of Appeals dated May
23, 1994 which affirmed the judgment of the Regional Trial Court,
Branch 15, of Ozamiz City in Civil Case No. OZ-1397.
The facts of this case are as follows:
On April 8, 1946, the spouses Miguel Rodriguez and Rosalina J. de
Rodriguez initiated proceedings before the CFI of Ozamiz City for the
legal adoption of herein petitioner, Maria Elena Rodriguez Pedrosa. On
August 1, 1946, the CFI granted the petition and declared petitioner
Pedrosa the adopted child of Miguel and Rosalina.
On April 29, 1972, Miguel died intestate. Thereafter, petitioner and
Rosalina entered into an extrajudicial settlement of Miguel's estate,
adjudicating between themselves in equal proportion the estate of
Miguel.
On November 21, 1972, private respondents filed an action to annul
the adoption of petitioner before the CFI of Ozamiz City, with
petitioner and herein respondent Rosalina as defendants docketed as
OZ 349.
On August 28, 1974, the CFI denied the petition and upheld the
validity of the adoption. Thereafter, the private respondents appealed
said decision to the Court of Appeals.
On March 11, 1983, while said appeal was pending, the Rodriguezes
entered into an extrajudicial settlement with respondent Rosalina for
the partition of the estate of Miguel and of another sister, Pilar.
Rosalina acted as the representative of the heirs of Miguel Rodriguez.
Pilar had no heirs except his brothers and sisters.
The Deed of Extrajudicial Settlement and Partition covered fourteen
parcels of land covering a total area of 224,883 square meters. These
properties were divided among Jose, Carmen, Mercedes, Ramon and
the heirs of Miguel, represented solely by Rosalina. The heirs of Miguel
were given 226 square meters of parcel 2, and 9,567 square meters
and 24,457 square meters of parcels 7 and 9, respectively.1 The total
land area allocated to the heirs of Miguel was 34,250 square meters.
Armed with the Deed of Extrajudicial Settlement and Partition,
respondents Rodriguezes were able to secure new Transfer
Certificates of Title (TCTs) and were able to transfer some parcels to
the other respondents herein.2
Lots 504-A-6, 504-B-3 and 504-C-4, portions of Parcel 3, designated
as Lot 504, were transferred to respondents Chuan Lung Fai,3 but not
included in the Deed of Settlement and Partition, were transferred to
respondent Lilian Express, Inc. and are now registered under TCT No.
T-11337. Parcel 6, Lot 560, was subdivided among Ramon, Jose,
Carmen and Mercedes and was designated as Lots 560-A, 560-B, 560-
C, 560-D and 560-E. Lot 560-A covering 500 square meters was
transferred to respondent Victorino Detall4 and was subsequently
transferred to Jerome Deiparine who registered it under his name
under TCT No. T-10706. Lot 560-B with 500 square meters was
transferred to respondent Petronilo Detalla5 and was later transferred
to respondent Hubert Chiu Yulo who registered it under his name
under TCT No. T-11305. Lot 560-C was transferred and registered
under the name of respondent Paterio Lao with TCT No. T-10206. Lot
560-D was sold to and subsequently registered in the name of
Lorensita M. Padilla under TCT No. T-10207. The remaining portion,
Lot 560-E consisting of 43,608 square meters was bought by
respondent Immaculate Concepcion College and was registered in its
name under TCT No. T-10208.6
On June 19, 1986, the parties in the appeal which sought to annul the
adoption of petitioner Pedrosa filed a joint Motion to Dismiss. On June
25, 1986, the Court of Appeals dismissed the appeal but upheld the
validity of the adoption of petitioner.
Thereafter, petitioner sent her daughter, Loreto Jocelyn, to claim their
share of the properties from the Rodriguezes. The latter refused
saying that Maria Elena and Loreto were not heirs since they were not
their blood relatives.
Petitioner, then, filed a complaint to annul the 1983 partition. The said
complaint was filed on January 28, 1987. Said complaint was later
amended on March 25, 1987 to include the allegation "that earnest
efforts toward a compromise were made between the plaintiffs and
the defendants, but the same failed."7
The Regional Trial Court dismissed the complaint.
Petitioner appealed to the Court of Appeals. The appellate court
affirmed the decision of the trial court. Its ruling was premised on the
following grounds:8
1) that the participation of Rosalina has already estopped her from
questioning the validity of the partition, and since she is already
estopped, it naturally follows that Maria Elena, her successor-in-
interest, is likewise estopped, applying Article 1439 of the Civil
Code;
2) that the appeal of Maria Elena and her claim that the partition
is null and void is weakened by her inconsistent claim that the
partition would have been alright had she been given a more
equitable share;
3) the action is essentially an action for rescission and had been
filed late considering that it was filed beyond the 4 year period
provided for in Article 1100 of the Civil Code;9
4) that fraud and/or bad faith was never established.
Petitioner filed a Motion for Reconsideration, which was denied by the
Court of Appeals in a Resolution dated December 20, 1994.10
Hence, this petition wherein the petitioner asserts that the following
errors were allegedly committed by the Court of Appeals in -
I. ……FINDING THAT THE EXTRAJUDICIAL SETTLEMENT AND
PARTITION ENTERED INTO BY DEFENDANT JUREDINI AND
DEFENDANTS-APPELLANTS RODRIGUEZES WAS VALID AND BINDING
UPON THE PLAINTIFF-APPELLANT WHO DID NOT PARTICIPATE IN
SAID TRANSACTION
II. ……CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT
HAVE ALREADY PRESCRIBED TWO (2) YEARS AFTER PUBLICATION OF
THE EXTRAJUDICIAL SETTLEMENT AND PARTITION IN THE
NEWSPAPER OF GENERAL CIRCULATION
III. ...…CONCLUDING THAT THE CLAIM OF PLAINTIFF-APPELLANT IS
BARRED OR ESTOPPED IN FILING THIS CASE (sic) IN VIEW OF THE
DISMISSAL OF THE APPEAL IN CIVIL CASE NO. OZ 349 INTERPOSED
BY HEREIN DEFENDANTS-APPELLEES WHO WERE THEN PLAINTIFFS-
APPELLANTS IN AC [C]-G.R. NO. SP-00208
IV. ……SUSTAINING THE DEFENDANT-APPELLEES' CLAIM THAT AS
THEY HAVE NOT AS YET RECOGNIZED PLAINTIFF-APPELLANT AS AN
ADOPTED DAUGHTER OF MIGUEL RODRIGUEZ IT WAS NOT
NECESSARY FOR THEM TO HAVE HER PARTICIPATE IN THE
EXTRAJUDICIAL SETTLEMENT, EXHIBITS "S" AND "I"
V. ……CONCLUDING THAT THE PLAINTIFF-APPELLANT HAD NOT
CONCLUSIVELY SHOWN THAT MIGUEL RODRIGUEZ WAS A CO-
OWNER OF THE LANDS SOLD AND HENCE IT FOLLOWS THAT SHE
HAS NO RIGHT OF REDEMPTION OF THOSE LANDS
VI. ……FINDING THAT PORTION OF LOTS NOS. 504 AND 560 SOLD
TO THE OTHER DEFENDANTS–APPELLEES WERE CLEAN AND FREE
FROM ENCUMBRANCES OR ANY FLAWS HENCE WERE VALID
VII. ……FINDING THAT THE PLANTIFF–APPELLANT NEVER APPEARED
IN COURT TO TESTIFY OR REBUT THE ASSERTIONS OF THE
DEFENDANTS–APPELLANTS THAT THERE WAS A VALID PARTITION
VIII. ……AWARDING PLAINTIFF–APPELLANT DAMAGES FOR THE
INCOME OF HER SHARE IN THE PROPERTIES IN QUESTION11
In sum, the issues to be resolved in our view are (1) whether or not
the complaint for annulment of the "Deed of Extrajudicial Settlement
and Partition" had already prescribed; (2) whether or not said deed is
valid; and (3) whether or not the petitioner is entitled to recover the
lots which had already been transferred to the respondent buyers.
Petitioner argues that the complaint for annulment of the extrajudicial
partition has not yet prescribed since the prescriptive period which
should be applied is four years following the case of Beltran vs. Ayson,
4 SCRA 69 (1962). She also avers that Sec. 4, Rule 74 which provides
for a two-year prescriptive period needs two requirements. One, the
party assailing the partition must have been given notice, and two,
the party assailing the partition must have participated therein.
Petitioner insists these requirements are not present in her
case,12 since she did not participate in the "Deed of Extrajudicial
Settlement and Partition." She cites Villaluz vs. Neme, 7 SCRA 27, 30
(1963), where we held that a deed of extrajudicial partition executed
without including some of the heirs, who had no knowledge and
consent to the same, is fraudulent. She asserts that she is an adoptive
daughter and thus an heir of Miguel.13
Petitioner also contends that the respondent buyers were buyers in
bad faith since they failed to exercise the necessary due diligence
required before purchasing the lots in question.14 In the alternative,
petitioner wants to redeem the said lots as a co-owner of respondent
Rodriguezes under the provisions of Article 1620 of the New Civil
Code.15
Lastly, petitioner asserts that she will suffer lesion if the partition
would be allowed. She asks for the rescission of the said partitioning
under Articles 165-175 of the Civil Code.16
Respondents, in response, claim that the action of petitioner had
already prescribed. In addition, they argue that petitioner, Maria
Elena, and Rosalina already have their shares in the estate of Miguel
Rodriguez reflected in the compromise agreement they entered into
with the respondent Rodriguezes in AC- G.R. SP 00208. Finally,
respondents aver that the non-participation of Maria Elena in the
extrajudicial partition was understandable since her status as an
adopted child was then under litigation. In any case, they assert that
the shares of Miguel's heirs were adequately protected in the said
partition.17
Section 4, Rule 7418 provides for a two year prescriptive period (1) to
persons who have participated or taken part or had notice of the
extrajudicial partition, and in addition (2) when the provisions of
Section 119 of Rule 74 have been strictly complied with, i.e., that all
the persons or heirs of the decedent have taken part in the
extrajudicial settlement or are represented by themselves or through
guardians.20
Petitioner, as the records confirm, did not participate in the
extrajudicial partition. Patently then, the two-year prescriptive period
is not applicable in her case.
The applicable prescriptive period here is four (4) years as provided
in Gerona vs. De Guzman, 11 SCRA 153 (1964), which held that:
[The action to annul] a deed of "extrajudicial settlement" upon the
ground of fraud...may be filed within four years from the
discovery of the fraud. Such discovery is deemed to have taken
place when said instrument was filed with the Register of Deeds
and new certificates of title were issued in the name of
respondents exclusively.21
Considering that the complaint of the petitioner was filed on January
28, 1987, or three years and ten months after the questioned
extrajudicial settlement dated March 11, 1983, was executed, we hold
that her action against the respondents on the basis of fraud has not
yet prescribed.
Section 1 of Rule 74 of the Rules of Court is the applicable rule on
publication of extrajudicial settlement. It states:
The fact of the extrajudicial settlement or administration shall be
published in a newspaper of general circulation in the manner
provided in the next succeeding section; but no extrajudicial
settlement shall be binding upon any person who has not
participated therein or had no notice thereof.22
Under said provision, without the participation of all persons involved
in the proceedings, the extrajudicial settlement cannot be binding on
said persons. The rule contemplates a notice which must be sent out
or issued before the Deed of Settlement and/or Partition is agreed
upon, i.e., a notice calling all interested parties to participate in the
said deed of extrajudicial settlement and partition, not after, which
was when publication was done in the instant case. Following Rule 74
and the ruling in Beltran vs. Ayson, since Maria Elena did not
participate in the said partition, the settlement is not binding on her.
The provision of Section 4, Rule 74 will also not apply when the deed
of extrajudicial partition is sought to be annulled on the ground of
fraud. A deed of extrajudicial partition executed without including
some of the heirs, who had no knowledge of and consent to the same,
is fraudulent and vicious.23 Maria Elena is an heir of Miguel together
with her adopting mother, Rosalina. Being the lone descendant of
Miguel, she excludes the collateral relatives of Miguel from
participating in his estate, following the provisions of Article 1003 of
the Civil Code.24 The private respondent Rodriguezes cannot claim
that they were not aware of Maria Elena's adoption since they even
filed an action to annul the decree of adoption. Neither can they claim
that their actions were valid since the adoption of Maria Elena was still
being questioned at the time they executed the deed of partition. The
complaint seeking to annul the adoption was filed only twenty six (26)
years after the decree of adoption, patently a much delayed response
to prevent Maria Elena from inheriting from her adoptive parents. The
decree of adoption was valid and existing. With this factual setting, it
is patent that private respondents executed the deed of partition in
bad faith with intent to defraud Maria Elena.
In the case of Segura vs. Segura, the Court held:
This section [referring to section 4, Rule 74] provides in gist that
a person who has been deprived of his lawful participation in the
estate of the decedent, whether as heir or as creditor, must assert
his claim within two years after the extrajudicial or summary
settlement of such estate under Sections 1 and 2 respectively of
the same Rule 74. Thereafter, he will be precluded from doing so
as the right will have prescribed.
It is clear that Section 1 of Rule 74 does not apply to the partition
in question which was null and void as far as the plaintiffs were
concerned. The rule covers only valid partitions. The partition in
the present case was invalid because it excluded six of the nine
heirs who were entitled to equal shares in the partitioned
property. Under the rule, "no extrajudicial settlement shall be
binding upon any person who has not participated therein or had
no notice thereof." As the partition was a total nullity and did not
affect the excluded heirs, it was not correct for the trial court to
hold that their right to challenge the partition had prescribed after
two years from its execution in 1941.25
To say that Maria Elena was represented by Rosalina in the
partitioning is imprecise. Maria Elena, the adopted child, was no
longer a minor at the time Miguel died. Rosalina, only represented her
own interests and not those of Maria Elena. Since Miguel predeceased
Pilar, a sister, his estate automatically vested to his child and widow,
in equal shares. Respondent Rodriguezes' interests did not include
Miguel's estate but only Pilar's estate.
Could petitioner still redeem the properties from buyers? Given the
circumstances in this case, we are constrained to hold that this is not
the proper forum to decide this issue. The properties sought to be
recovered by the petitioner are now all registered under the name of
third parties. Well settled is the doctrine that a Torrens Title cannot
be collaterally attacked. The validity of the title can only be raised in
an action expressly instituted for such purpose.26
Petitioner asks for the award of damages. No receipts, agreements or
any other documentary evidence was presented to justify such claim
for damages. Actual damages, to be recoverable, must be proved with
a reasonable degree of certainty. Courts cannot simply rely on
speculation, conjecture or guesswork in determining the fact and
amount of damages.27 The same is true for moral damages. These
cannot be awarded in the absence of any factual basis.28 The
unsubstantiated testimony of Loreto Jocelyn Pedrosa is hearsay and
has no probative value. It is settled in jurisprudence that damages
may not be awarded on the basis of hearsay evidence.29 Nonetheless,
the failure of the petitioner to substantiate her claims for damages
does not mean that she will be totally deprived of any damages. Under
the law, nominal damages are awarded, so that a plaintiff's right,
which has been invaded or violated by defendants may be vindicated
and recognized.30
Considering that (1) technically, petitioner sustained injury but which,
unfortunately, was not adequately and properly proved, (2) petitioner
was unlawfully deprived of her legal participation in the partition of
the estate of Miguel, her adoptive father, (3) respondents had
transferred portions of the properties involved to third parties, and
(4) this case has dragged on for more than a decade, we find it
reasonable to grant in petitioner's favor nominal damages in
recognition of the existence of a technical injury.31 The amount to be
awarded as such damages should at least commensurate to the injury
sustained by the petitioner considering the concept and purpose of
said damages.32Such award is given in view of the peculiar
circumstances cited and the special reasons extant in this
case.33 Thus, the grant of ONE HUNDRED THOUSAND (P100,000.00)
PESOS to petitioner as damages is proper in view of the technical
injury she has suffered.

WHEREFORE, the petition is GRANTED. The assailed decision of the

Court of Appeals is hereby REVERSED and SET ASIDE. The "Deed of
Extrajudicial Settlement and Partition" executed by private
respondents on March 11, 1983 is declared invalid. The amount of
P100,000.00 is hereby awarded to petitioner as damages to be paid
by private respondents, who are also ordered to pay the costs. SO
ORDERED.
 SECOND DIVISION
G.R. No. 118870 March 29, 1996
NERISSA Z. PEREZ, petitioner,
vs.
THE COURT OF APPEALS (Ninth Division) and RAY
PEREZ, respondents.
ROMERO, J.:
Parties herein would have this Court duplicate the feat of King
Solomon who was hailed in Biblical times for his sagacious, if, at times
unorthodox, manner of resolving conflicts, the most celebrated case
being that when his authority was invoked to determine the identity
of the real mother as between two women claiming the same infant.
Since there could only be one mother, the daunting task that
confronted the king/judge was to choose the true one.
In the instant case, we are faced with the challenge of deciding, as
between father and mother, who should have rightful custody of a
child who bears in his person both their genes.
While there is a provision of law squarely in point, the two courts
whose authority have been invoked to render a decision have arrived
at diametrically opposite conclusions.
Ray Perez, private respondent, is a doctor of medicine practicing in
Cebu while Nerissa, his wife who is petitioner herein, is a registered
nurse. They were married in Cebu on December 6, 1986. After six
miscarriages, two operations and a high-risk pregnancy, petitioner
finally gave birth to Ray Perez II in New York on July 20, 1992.
C.
Petitioner who began working in the United States in October 1988,
used part of her earnings to build a modest house in Mandaue City,
Cebu. She also sought medical attention for her successive
miscarriages in New York. She became a resident alien in February
1992.
Private respondent stayed with her in the U.S. twice and took care of
her when she became pregnant. Unlike his wife, however, he had only
a tourist visa and was not employed.
On January 17, 1993, the couple and their baby arrived in Cebu. After
a few weeks, only Nerissa returned to the U.S. She alleged that they
came home only for a five-week vacation and that they all had round-
trip tickets. However, her husband stayed behind to take care of his
sick mother and promised to follow her with the baby. According to
Ray, they had agreed to reside permanently in the Philippines but
once Nerissa was in New York, she changed her mind and continued
working. She was supposed to come back immediately after winding
up her affairs there.

It has fallen upon us now to likewise act as judge between the trial
court, on the one hand, and the appellate, on the other.
On the issue of custody over the minor Ray Perez II, respondent Court
of Appeals ruled in favor of the boy's father Ray C. Perez, reversing
the trial court's decision to grant custody to Nerissa Z. Perez, the
child's mother.
When Nerissa came home a few days, before Ray II's first birthday,
the couple was no longer on good terms. That their love for each other
was fading became apparent from their serious quarrels. Petitioner
did not want to live near her in-laws and rely solely on her husband's
meager income of P5,000.00.1 She longed to be with her only child
but he was being kept away from her by her husband. Thus, she did
not want to leave RJ (Ray Junior) with her husband and in-laws. She
wished for her son to grow up with his mother.
On the other hand, Ray wanted to stay here, where he could raise his
son even as he practiced his profession. He maintained that it would
not be difficult to live here since they have their own home and a car.
They could live comfortably on his P15,000.00 monthly income2 as
they were not burdened with having to pay any debts.
Petitioner was forced to move to her parents' home on Guizo Street
in Mandaue. Despite mediation by the priest who solemnized their
marriage, the couple failed to reconcile.
On July 26, 1993, Nerissa Z. Perez filed a petition for habeas
corpus3 asking respondent Ray C. Perez to surrender the custody of
their son, Ray Z. Perez II, to her.
On August 27, 1993, the court a quo issued an Order awarding
custody of the one-year old child to his mother, Nerissa Perez, citing
the second paragraph of Article 213 of the Family Code which provides
that no child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order otherwise.
The dispositive portion of the Order reads:
WHEREFORE, foregoing premises considered, Order is hereby
issued ordering the respondent to turn over the custody of their
child Ray Cortes Perez II, his passport and round trip ticket to
herein petitioner with a warning that if he will escape together
with the child for the purpose of hiding the minor child instead of
complying with this Order, that warrant for his arrest will be
issued. SO ORDERED.4
Upon appeal by Ray Perez, the Court of Appeals, on September 27,
1994, reversed the trial court's order and awarded custody of the boy
to his father.5
Petitioner's motion for reconsideration having been denied,6 she filed
the instant petition for review where the sole issue is the custody of
Ray Perez II, now three years old.
Respondent court differed in opinion from the trial court and ruled
that there were enough reasons to deny Nerissa Perez custody over
Ray II even if the child is under seven years old. It held that granting
custody to the boy's father would be for the child's best interest and
welfare.7
Before us is the unedifying situation of a husband and wife in marital
discord, struggling for custody of their only child. It is sad that
petitioner and private respondent have not found it in their hearts to
understand each other and live together once again as a family.
Separated in fact, they now seek the Court's assistance in the matter
of custody or parental authority over the child.
The wisdom and necessity for the exercise of joint parental authority
need not be belabored. The father and the mother complement each
other in giving nurture and providing that holistic care which takes
into account the physical, emotional, psychological, mental, social and
spiritual needs of the child. By precept and example, they mold his
character during his crucial formative years.
However, the Court's intervention is sought in order that a decision
may be made as to which parent shall be given custody over the
young boy. The Court's duty is to determine whether Ray Perez II will
be better off with petitioner or with private respondent. We are not
called upon to declare which party committed the greater fault in their
domestic quarrel.
When the parents of the child are separated, Article 213 of the Family
Code is the applicable law. It provides:
Art. 213. In case of separation of the parents, parental authority
shall be exercised by the parent designated by the Court. The
Court shall take into account all relevant considerations, especially
the choice of the child over seven years of age, unless the parent
chosen is unfit.
No child under seven years of age shall be separated from the
mother. unless the court finds compelling reasons to order
otherwise. (Emphasis supplied).
Since the Code does not qualify the word "separation" to mean legal
separation decreed by a court, couples who are separated in fact, such
as petitioner and private respondent, are covered within its terms.8
The Revised Rules of Court also contains a similar provision. Rule 99,
section 6 (Adoption and Custody of Minors) provides:
Sec. 6. Proceedings as to child whose parents are separated.
Appeal. When husband and wife are divorced or living separately,
and apart from each other, and the questions 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 the
testimony as may be pertinent, shall award the care, custody, and
control of each such child as will be for its best interest, permitting
the child to choose which parent it prefers to live with if it be over
ten years of age, unless the parent chosen be unfit to take charge
of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty. . . . No child under seven years of age shall
be separated from its mother, unless the court finds there are
compelling reasons therefor. (Emphasis supplied)
The provisions of law quoted above clearly mandate that a child under
seven years of age shall not be separated from his mother unless the
court finds compelling reasons to order otherwise. The use of the word
"shall" in Article 213 of the Family Code and Rule 99, section 6 of the
Revised Rules of Court connotes a mandatory character. In the case
of Lacson v. San Jose-Lacson,9 the Court declared:
The use of the word shall in article 363 10 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.11
The rationale for awarding the custody of children younger than seven
years of age to their mother was explained by the Code Commission:
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 divorce decree (relative divorce) will
ordinarily be sufficient punishment for her. Moreover, moral
dereliction will not have any effect upon the baby who is as yet
 unable to understand her situation. (Report of the Code
Commission, p. 12)12
The Family Code, in reverting to the provision of the Civil Code that a
child below seven years old should not be separated from the mother
(Article 363), has expressly repealed the earlier Article 17, paragraph
three of the Child and Youth Welfare Code (Presidential Decree No.
603) which reduced the child's age to five years.13
The general rule that a child under seven years of age shall not be
separated from his mother finds its raison d'êtrein the basic need of
a child for his mother's loving care.14 Only the most compelling of
reasons shall justify the court's awarding the custody of such a child
to someone other than his mother, such as her unfitness to exercise
sole parental authority. In the past the following grounds have been
considered ample justification to deprive a mother of custody and
parental authority: neglect, abandonment,15 unemployment and
immorality,16 habitual drunkenness,17 drug addiction, maltreatment
of the child, insanity and being sick with a communicable disease.18
It has long been settled that in custody cases, 19 the foremost
consideration is always the welfare and best interest of the child. In
fact, no less than an international instrument, the Convention on the
Rights of the Child provides: "In all actions concerning children,
whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration."20
Courts invariably look into all relevant factors presented by the
contending parents, such as their material resources, social and moral
situations.21
In the case at bench, financial capacity is not a determinative factor
inasmuch as both parties have demonstrated that they have ample
means.
Respondent court stated that petitioner has no permanent place of
work in the U.S.A. and has taken this point against her. The records,
however, show that she is employed in a New York hospital22 and was,
at the time the petition was filed, still abroad.23 She testified that she
intends to apply for a job elsewhere, presumably to improve her work
environment and augment her income, as well as for
convenience. 24 The Court takes judicial notice of the fact that a
registered nurse, such as petitioner, is still very much in demand in
the United States. Unlike private respondent, a doctor who by his own
admission could not find employment there, petitioner immediately
got a job in New York. Considering her skill and experience petitioner
should find no difficulty in obtaining work elsewhere, should she desire
to do so.
The decision under review casts doubt on petitioner's capability to
take care of the child, particularly since she works on twelve-hour
shifts thrice weekly, at times, even at night. There being no one to
help her look after the child, it is alleged that she cannot properly
attend to him. This conclusion is as unwarranted as it is unreasonable.
First, her present work schedule is not so unmanageable as to deprive
her of quality time for Ray II. Quite a number of working mothers who
are away from home for longer periods of time are still able to raise
a family well, applying time management principles judiciously.
Second, many a mother, finding herself in such a position, has invited
her own mother or relative to join her abroad, providing the latter
with plane tickets and liberal allowances, to look after the child until
he is able to take care of himself. Others go on leave from work until
such time as the child can be entrusted to day-care centers.
Delegating child care temporarily to qualified persons who run day-
care centers does not detract from being a good mother, as long as
the latter exercises supervision, for even in our culture, children are WHEREFORE, the petition for review is GRANTED. The decision of the
often brought up by housemaids or "yayas" under the eagle eyes of Court of Appeals dated September 27, 1994 as well as its Resolution
the mother. Third, private respondent's work schedule was not dated January 24, 1995 are hereby REVERSED and SET ASIDE. The
presented in evidence at the trial. Although he is a general Order of the trial court dated August 27, 1993 is hereby REINSTATED.
practitioner, the records merely show that he maintains a clinic, works Custody over the minor Ray Z. Perez II is awarded to his mother,
for several companies on retainer basis and teaches part- herein petitioner Nerissa Z. Perez. This decision is immediately
time.25 Hence, respondent court's conclusion that "his work schedule executory. SO ORDERED.
is flexible (and h)e can always find time for his son"26 is not well-
founded. Fourth, the fact that private respondent lives near his
parents and sister is not crucial in this case. Fifth, petitioner's work
schedule cited in the respondent court's decision is not necessarily
permanent. Hospitals work in shifts and, given a mother's instinctive
desire to lavish upon her child the utmost care, petitioner may be
expected to arrange her schedule in such a way as to allocate time
for him. Finally, it does not follow that petitioner values her career
more than her family simply because she wants to work in the United
States. There are any number of reasons for a person's seeking a job
outside the country, e.g. to augment her income for the family's
benefit and welfare, and for psychological fulfillment, to name a few.
In the instant case, it has been shown that petitioner earned enough
from her job to be able to construct a house for the family in Mandaue
City. The record describes sketchily the relations between Ray and
Nerissa Perez. The transcripts of the three hearings are inadequate to
show that petitioner did not exert earnest efforts and make sacrifices
to save her marriage.

It is not difficult to imagine how heart-rending it is for a mother whose

attempts at having a baby were frustrated several times over a period
of six years to finally bear one, only for the infant to be snatched from
her before he has even reached his first year. The mother's role in the
life of her child, such as Ray II, is well-nigh irreplaceable. In prose
and poetry, the depth of a mother's love has been immortalized times
without number, finding as it does, its justification, not in fantasy but
in reality.
 SECOND DIVISION
G.R. No. 169144 January 26, 2011
IN RE: IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RUPERTA PALAGANAS WITH PRAYER FOR THE
APPOINTMENT OF SPECIAL ADMINISTRATOR, MANUEL
MIGUEL PALAGANAS and BENJAMIN GREGORIO
PALAGANAS, Petitioners,
vs.
ERNESTO PALAGANAS, Respondent.
ABAD, J.:
This case is about the probate before Philippine court of a will
executed abroad by a foreigner although it has not been probated in
its place of execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who
became a naturalized United States (U.S.) citizen, died single and
childless. In the last will and testament she executed in California, she
designated her brother, Sergio C. Palaganas (Sergio), as the executor
of her will for she had left properties in the Philippines and in the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another
brother of Ruperta, filed with the Regional Trial Court (RTC) of
Malolos, Bulacan, a petition for the probate of Ruperta’s will and for
his appointment as special administrator of her estate.1 On October
15, 2003, however, petitioners Manuel Miguel Palaganas (Manuel) and
Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta,
opposed the petition on the ground that Ruperta’s will should not be
probated in the Philippines but in the U.S. where she executed it.
Manuel and Benjamin added that, assuming Ruperta’s will could be
probated in the Philippines, it is invalid nonetheless for having been
executed under duress and without the testator’s full understanding
of the consequences of such act. Ernesto, they claimed, is also not
qualified to act as administrator of the estate.
Meantime, since Ruperta’s foreign-based siblings, Gloria Villaluz and
Sergio, were on separate occasions in the Philippines for a short visit,
respondent Ernesto filed a motion with the RTC for leave to take their
deposition, which it granted. On April, 13, 2004 the RTC directed the
parties to submit their memorandum on the issue of whether or not
Ruperta’s U.S. will may be probated in and allowed by a court in the
Philippines.
On June 17, 2004 the RTC issued an order:2 (a) admitting to probate
Ruperta’s last will; (b) appointing respondent Ernesto as special
administrator at the request of Sergio, the U.S.-based executor
designated in the will; and (c) issuing the Letters of Special
Administration to Ernesto.
Aggrieved by the RTC’s order, petitioner nephews Manuel and
Benjamin appealed to the Court of Appeals (CA),3arguing that an
unprobated will executed by an American citizen in the U.S. cannot
be probated for the first time in the Philippines.
On July 29, 2005 the CA rendered a decision,4 affirming the assailed
order of the RTC,5 holding that the RTC properly allowed the probate
of the will, subject to respondent Ernesto’s submission of the
authenticated copies of the documents specified in the order and his
posting of required bond. The CA pointed out that Section 2, Rule 76
of the Rules of Court does not require prior probate and allowance of
the will in the country of its execution, before it can be probated in
the Philippines. The present case, said the CA, is different from
reprobate, which refers to a will already probated and allowed abroad.
Reprobate is governed by different rules or procedures. Unsatisfied
with the decision, Manuel and Benjamin came to this Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed
by a foreigner abroad may be probated in the Philippines although it
has not been previously probated and allowed in the country where it
was executed.
The Court’s Ruling
Petitioners Manuel and Benjamin maintain that wills executed by
foreigners abroad must first be probated and allowed in the country
of its execution before it can be probated here. This, they claim,
ensures prior compliance with the legal formalities of the country of
its execution. They insist that local courts can only allow probate of
such wills if the proponent proves that: (a) the testator has been
admitted for probate in such foreign country, (b) the will has been
admitted to probate there under its laws, (c) the probate court has
jurisdiction over the proceedings, (d) the law on probate procedure in
that foreign country and proof of compliance with the same, and (e)
the legal requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by
foreigners abroad although the same have not as yet been probated
and allowed in the countries of their execution. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the Civil Code
states that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by
the law of the place where he resides, or according to the formalities
observed in his country.6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil
Procedure provides that if the decedent is an inhabitant of a foreign
country, the RTC of the province where he has an estate may take
cognizance of the settlement of such estate. Sections 1 and 2 of Rule
76 further state that the executor, devisee, or legatee named in the
will, or any other person interested in the estate, may, at any time
after the death of the testator, petition the court having jurisdiction
to have the will allowed, whether the same be in his possession or
not, or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will
must show, so far as known to the petitioner: (a) the jurisdictional
facts; (b) the names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent; (c) the probable value and
character of the property of the estate; (d) the name of the person
for whom letters are prayed; and (e) if the will has not been delivered
to the court, the name of the person having custody of it.
Jurisdictional facts refer to the fact of death of the decedent, his
residence at the time of his death in the province where the probate
court is sitting, or if he is an inhabitant of a foreign country, the estate
he left in such province.7The rules do not require proof that the foreign
will has already been allowed and probated in the country of its
execution.
In insisting that Ruperta’s will should have been first probated and
allowed by the court of California, petitioners Manuel and Benjamin
obviously have in mind the procedure for the reprobate of will before
admitting it here. But, reprobate or re-authentication of a will already
probated and allowed in a foreign country is different from that
probate where the will is presented for the first time before a
competent court. Reprobate is specifically governed by Rule 77 of the
Rules of Court. Contrary to petitioners’ stance, since this latter rule
applies only to reprobate of a will, it cannot be made to apply to the
present case. In reprobate, the local court acknowledges as binding
the findings of the foreign probate court provided its jurisdiction over
the matter can be established.

Besides, petitioners’ stand is fraught with impractically.1âwphi1 If the

instituted heirs do not have the means to go abroad for the probate
of the will, it is as good as depriving them outright of their inheritance,
since our law requires that no will shall pass either real or personal
property unless the will has been proved and allowed by the proper
court.8

Notably, the assailed RTC order of June 17, 2004 is nothing more than
an initial ruling that the court can take cognizance of the petition for
probate of Ruperta’s will and that, in the meantime, it was designating
Ernesto as special administrator of the estate. The parties have yet to
present evidence of the due execution of the will, i.e. the testator’s
state of mind at the time of the execution and compliance with the
formalities required of wills by the laws of California. This explains the
trial court’s directive for Ernesto to submit the duly authenticated copy
of Ruperta’s will and the certified copies of the Laws of Succession
and Probate of Will of California.

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court
of Appeals decision in CA-G.R. CV 83564 dated July 29, 2005.

SO ORDERED.
 THIRD DIVISION
G.R. Nos. 130371 &130855 August 4, 2009
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
FERDINAND R. MARCOS II and IMELDA R.
MARCOS, Respondents.
DEL CASTILLO, J.:
Before this Court is a Petition for Review on Certiorari1 under Rule 45
of the Rules of Court, seeking to set aside the March 13, 1997
Decision2 and August 27, 1997 Resolution3 of the Court of Appeals
(CA) in CA-G.R. SP No. 43450.
The facts of the case are as follows:
On January 11, 1996, the Regional Trial Court (RTC) of Pasig City
Branch 156, acting as a probate court, in Special Proceeding No.
10279, issued an Order4 granting letters testamentary in solidum to
respondents Ferdinand R. Marcos II and Imelda Trinidad Romualdez-
Marcos as executors of the last will and testament of the late
Ferdinand E. Marcos.
The dispositive portion of the January 11, 1996 Order reads:
WHEREFORE, finding the Last Will and Testament of Ferdinand Edralin
Marcos to have been duly executed in accordance with law, the same
is hereby ALLOWED AND ADMITTED TO PROBATE.
Upon the filing of a bond in the amount of ₱50,000.00, let
letters testamentary be issued in solidum to Imelda Trinidad
Romualdez-Marcos AND Ferdinand Romualdez Marcos II,
named executors therein.
Pending the filing of said bond and their oath, Commissioner
Liwayway Vinzons-Chato of the Bureau of Internal Revenue is hereby
authorized to continue her functions as Special Administrator of the
Estate of Ferdinand Edralin Marcos.
Let NOTICE be given to all known heirs and creditors of the decedent,
and to any other persons having an interest in the estate for them to
lay their claim against the Estate or forever hold their peace. SO
ORDERED.5
On January 15, 1996, the petitioner Republic of the Philippines filed a
Motion for Partial Reconsideration6 in so far as the January 11, 1996
RTC Order granted letters testamentary to respondents. On the other
hand, respondent Imelda Marcos filed her own motion for
reconsideration on the ground that the will is lost and that petitioner
has not proven its existence and validity.
On February 5, 1996, respondent Ferdinand Marcos II filed a
Compliance stating that he already filed a bond in the amount of
₱50,000.00 as directed by the January 11, 1996 RTC Order and that
he took his oath as named executor of the will on January 30, 1996.
On March 13, 1996, the RTC issued Letters of Administration7 to BIR
Commissioner Liwayway Vinzons-Chato in accordance with an earlier
Order dated September 9, 1994, appointing her as Special
Administratrix of the Marcos Estate.
On April 1, 1996, respondent Ferdinand Marcos II filed a Motion to
Revoke the Letters of Administration issued by the RTC to BIR
Commissioner Vinzons-Chato.
On April 26, 1996, the RTC issued an Order8 denying the motion for
partial reconsideration filed by petitioner as well as the motion for
reconsideration filed by respondent Imelda Marcos, the penultimate
portion of which reads:
Under the Rules, a decedent’s testamentary privilege must be
accorded utmost respect. Guided by this legal precept, therefore, in
resolving the two (2) motions at hand, the Court is constrained to
DENY both.
Examining the arguments poised by the movants, the Court observed
that these are but a mere rehash of issues already raised and passed
upon by the Court.
One has to review the previous orders issued by the Court in this case,
e.g., the orders dated September 9, 1994, November 25, 1994, as
well as October 3, 1995, to see that even as far back then, the Court
has considered the matter of competency of the oppositors and of
Commissioner Liwayway Vinzons-Chato as having been settled.
It cannot be overstressed that the assailed January 11, 1996 Orders
of the Court was arrived at only after extensive consideration of every
legal facet available on the question of validity of the Will.
WHEREFORE, for lack of merit, the motion for reconsideration filed
separately by petitioner Republic and oppositor Imelda R. Marcos are
both DENIED. SO ORDERED.9
On June 6, 1996, petitioner filed with this Court a Petition for Review
on Certiorari, under Ruled 45 of the Rules of Court, questioning the
aforementioned RTC Orders granting letters testamentary to
respondents.
On February 5, 1997, the First Division of this Court issued a
Resolution referring the petition to the CA, to wit:
xxxx
The special civil action for certiorari as well as all the other pleadings
filed herein are REFERRED to the Court of Appeals for
consideration and adjudication on the merits or any other
action as it may deem appropriate, the latter having jurisdiction
concurrent with this Court over the Case, and this Court having been
cited to no special and important reason for it to take cognizance of
said case in the first instance.10 (Emphasis and Underscoring
Supplied)
On March 13, 1997, the CA issued a Decision,11 dismissing the
referred petition for having taken the wrong mode of appeal, the
pertinent portions of which reads:
Consequently, for having taken the wrong mode of appeal, the
present petition should be dismissed in accordance with the
same Supreme Court Circular 2-90 which expressly provides
that:
4. Erroneous Appeals – An appeal taken to either the Supreme
Court or the Court of Appeals by the wrong or inappropriate
mode shall be dismissed.
IN VIEW OF THE FOREGOING, the instant petition for review is hereby
DISMISSED. SO ORDERED.12
Petitioner filed a Motion for Reconsideration,13 which was, however
denied by the CA in a Resolution14 dated August 27, 1997.
Hence, herein petition, with petitioner raising the
assignment of errors, to wit:
I.
THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING THE
PETITION ON TECHNICAL GROUNDS DESPITE THE SUPREME
COURT RESOLUTION SPECIFICALLY REFERRING SAID PETITION
FOR A DECISION ON THE MERITS.
II.
THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER
THAT RESPONDENTS IMELDA R. MARCOS AND FERDINAND R.
MARCOS II SHOULD BE DISQUALIFIED TO ACT AND SERVE AS
EXECUTORS.
III.
THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER
THAT SAID PRIVATE RESPONDENTS HAVE DENIED AND
DISCLAIMED THE VERY EXISTENCE AND VALIDITY OF THE
MARCOS WILL.
IV.
THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER
THAT ITS ORDER OF JANUARY 11, 1996, WHICH ADMITTED THE
MARCOS WILL TO PROBATE AND WHICH DIRECTED THE
ISSUANCE OF LETTERS TESTAMENTARY IN SOLIDUM TO PRIVATE
RESPONDENTS AS EXECUTORS OF SAID MARCOS WILL, WAS
BASED ON THE EVIDENCE OF THE REPUBLIC ALONE.
following V.
THE PROBATE COURT GRAVELY ERRED IN FAILING TO CONSIDER
THAT BOTH PRIVATE RESPONDENTS HAVE OBSTRUCTED THE
TRANSFER TO THE PHILIPPINES OF THE MARCOS ASSETS
DEPOSITED IN THE SWISS BANKS.15
In the meantime, on October 9, 2002, the RTC, acting on the pending
unresolved motions before it, issued an Order16 which reads:
WHEREFORE, the Court hereby appoints as joint special
administrators of the estate of the late Ferdinand E. Marcos, the
nominee of the Republic of the Philippines (the Undersecretary of the
Department of Justice whom the Secretary of Justice will designate
for this purpose) and Mrs. Imelda Romualdez Marcos and Mr.
Ferdinand R. Marcos II, to serve as such until an executor is finally
appointed. SO ORDERED.
The petition is without merit.
When the assailed Orders granting letters testamentary in solidum to
respondents were issued by the RTC, petitioner sought to question
them by filing a petition for review on certiorari under Rule 45 of the
Rules of Court.
Supreme Court Circular No. 2-90,17 which was then in effect, reads:
2. Appeals from Regional Trial Courts to the Supreme Court. – Except
in criminal cases where the penalty imposed is life imprisonment to
reclusion perpetua, judgments of regional trial courts may be
appealed to the Supreme Court only by petition for review on
certiorari in accordance with Rule 45 of the Rules of Court in
relation to Section 17 of the Judiciary Act of 1948, as amended,
this being the clear intendment of the provision of the Interim Rules
that "(a)ppeals to the Supreme Court shall be taken by petition for
certiorari which shall be governed by Rule 45 of the Rules of Court.
(Emphasis and Underscoring Supplied)
The pertinent portions of Section 1718 of the Judiciary Act of 1948
read:
The Supreme Court shall further have exclusive jurisdiction to review,
revise, reverse, modify or affirm on certiorarias the law or rules of
court may provide, final judgments and decrees of inferior courts as
herein provided, in –
(1) All cases in which the constitutionality or validity of any treaty,
law, ordinance, or executive order or regulation is in question;
(2) All cases involving the legality of any tax, impost, assessment
or toll, or any penalty imposed in relation thereto;
(3) All cases in which the jurisdiction of any inferior court is in
issue;
(4) All other cases in which only errors or questions of law are
involved: Provided, however, That if, in addition to constitutional,
tax or jurisdictional questions, the cases mentioned in the three
next preceding paragraphs also involve questions of fact or mixed
questions of fact and law, the aggrieved party shall appeal to the
Court of Appeals; and the final judgment or decision of the latter
may be reviewed, revised, reversed, modified or affirmed by the
Supreme Court on writ of certiorari; and
(5) Final awards, judgments, decision or orders of the Commission
on Elections, Court of Tax Appeals, Court of Industrial Relations,
the Public Service Commission, and the Workmen’s Compensation
Commission.
A reading of Supreme Court Circular 2-90, in relation to Section 17 of
the Judiciary Act of 1948, clearly shows that the subject matter of
therein petition, that is, the propriety of granting letters testamentary
to respondents, do not fall within any ground which can be the subject
of a direct appeal to this Court. The CA was thus correct in declaring
that the "issues raised by petitioner do not fall within the purview of
Section 17 of the Judiciary Act of 1948 such that the Supreme Court
should take cognizance of the instant case."19
Moreover, the Court’s pronouncement in Suarez v. Judge
Villarama20 is instructive:
Section 4 of Circular No. 2-90, in effect at the time of the
antecedents, provides that an appeal taken to either the
Supreme Court or the Court of Appeals by the wrong mode or
inappropriate mode shall be dismissed. This rule is now
incorporated in Section 5, Rule 56 of the 1997 Rules of Civil
Procedure.
Moreover, the filing of the case directly with this Court runs
afoul of the doctrine of hierarchy of courts. Pursuant to this
doctrine, direct resort from the lower courts to the Supreme
Court will not be entertained unless the appropriate remedy
cannot be obtained in the lower tribunals. This Court is a court
of last resort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the Constitution and immemorial
tradition. Thus, a petition for review on certiorari assailing the
decision involving both questions of fact and law must first be
brought before the Court of Appeals.21
Also, in Southern Negros Development Bank v. Court of
Appeals,22 this Court ruled:
It is incumbent upon private respondent qua appellants to utilize the
correct mode of appeal of the decisions of trial courts to the appellate
courts. In the mistaken choice of their remedy, they can blame no
one but themselves (Jocson v. Baguio, 179 SCRA 550 [1989];
Yucuanseh Drug Co. v. National Labor Union, 101 Phil. 409 [1957]).
xxxx
Pursuant to Section 4 of Circular No. 2-90, which provides that
"[a]n appeal taken to either the Supreme Court or the Court of
Appeals by the wrong mode or inappropriate mode shall be
dismissed," the only course of action of the Court to which an
erroneous appeal is made is to dismiss the same. There is no
longer any justification for allowing transfers of erroneous
appeals from one court to another (Quesada v. Court of Appeals,
G.R. No. 93869, November 12, 1990, First Division, Minute
Resolution).23
Based on the foregoing, petitioner cannot deny that the determination
of whether or not respondents should be disqualified to act as
executors is a question of fact. Hence, the proper remedy was to
appeal to the CA, not to this Court.
Petitioner is adamant, however, that notwithstanding the improper
remedy, the CA should not have dismissed therein petition. Petitioner
argues in the wise:
However, as can be seen in the Resolution of February 5, 1997,
(Annex "H") this Honorable Court deemed it more proper to transmit
the first Petition for Review to respondent appellate court for the
reason that:
This Court having been cited to no special and important reason for it
to take cognizance of said case in the first instance. x x x
It would appear then that even though this Honorable Court
apparently considers the Republic’s petition as deserving to be given
due course, it deemed it in the best interest of the parties concerned
if the Court of Appeals would first take cognizance of said case,
thereby preserving its stance as a court of last resort.
Additionally, this Honorable Court itself plainly stated that the case
under review is:
….REFERRED to the Court of Appeals for consideration and
adjudication on the merits…. The latter having jurisdiction concurrent
with this Court over the case……24
Petitioner’s arguments are misplaced. To stress, the February 5, 1997
Resolution reads:
The special civil action for certiorari as well as all the other pleadings
filed herein are REFERRED to the Court of Appeals for consideration
and adjudication on the merits or any other action as it may deem
appropriate, the latter having jurisdiction concurrent with this Court
over the Case, and this Court having been cited to no special and
important reason for it to take cognizance of said case in the first
instance.25
Based thereon, this Court agrees with the ruling of the CA that said
resolution gave the CA discretion and latitude to decide the petition
as it may deem proper. The resolution is clear that the petition was
referred to the CA for consideration and adjudication on the
merits or any other action as it may deem appropriate. Thus, no error
can be attributed to the CA when the action it deemed appropriate
was to dismiss the petition for having availed of an improper remedy.
More importantly, the action of the CA was sanctioned under Section
4 of Supreme Court Circular 2-90 which provides that "an appeal
taken to either the Supreme Court or the Court of Appeals by the
wrong mode or inappropriate mode shall be dismissed."
Moreover, petitioner mistakenly relies in Oriental Media, Inc. v. Court
of Appeals,26 in which this Court made the following pronouncements:
In the case at bar, there was no urgency or need for Oriental
to resort to the extraordinary remedy of certiorari for when it
learned of the case and the judgment against it on July 25, 1986, due
to its receipt of a copy of the decision by default; no execution had as
yet been ordered by the trial court. As aforementioned, Oriental had
still the time and the opportunity to file a motion for reconsideration,
as was actually done. Upon the denial of its motion for
reconsideration in the first case, or at the latest upon the
denial of its petition for relief from judgment, Oriental should
have appealed. Oriental should have followed the procedure set
forth in the Rules of Court for —
Rules of procedure are intended to ensure the orderly administration
of justice and the protection of substantive rights in judicial and
extrajudicial proceedings. It is a mistake to purpose that substantive
law and adjective law are contradictory to each other or, as has often
been suggested, that enforcement of procedural rules should never
be permitted if it will result in prejudice to the substantive rights of
the litigants. This is not exactly true; the concept is much
misunderstood. As a matter of fact, the policy of the courts is to give
effect to both kinds of law, as complementing each other, in the just
and speedy resolution of the dispute between the parties. Observance
of both substantive rights is equally guaranteed by due process
whatever the source of such rights, be it the Constitution itself or only
a statute or a rule of court.27
In the case at bar, as found by this Court in its February 5, 1997
Resolution, therein petition offered no important or special reason for
the Court to take cognizance of it at the first instance. Petitioner
offered no plausible reason why it went straight to this Court when an
adequate and proper remedy was still available. The CA was thus
correct that the remedy that petitioner should have availed of was to
file an appeal under Rule 109 of the Rules of Court which states:
Section 1. Orders of judgments from which appeals taken. – An
interested person may appeal in special proceedings from an
order or judgment rendered by a Court of First Instance or a Juvenile
and Domestic Relations Court, where such order or judgment:
(a) allows or disallows a will;
Because of the preceding discussion, herein petition must necessarily
fail. However, even if this Court were to set aside petitioners’
procedural lapses, a careful review of the records of the case reveal
that herein petition is without merit.
At the crux of the controversy is a determination of whether or not
respondents are incompetent to serve as executors of the will of
Ferdinand Marcos.
Ozeata v. Pecson28 is instructive:
The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the
manner he wishes. It is natural that the testator should desire to
appoint one of his confidence, one who can be trusted to carry out his
wishes in the disposal of the estate. The curtailment of this right may
be considered as a curtailment of the right to dispose. And as the
rights granted by will take effect from the time of death (Article 777,
Civil Code of the Philippines), the management of his estate by the
administrator of his choice should be made as soon as practicable,
when no reasonable objection to his assumption of the trust can be
interposed any longer. It has been held that when a will has been
admitted to probate, it is the duty of the court to issue letters
testamentary to the person named as executor upon his
application (23 C.J. 1023).
xxxx
The case of In re Erlanger's Estate, 242 N.Y.S. 249, also reiterates
the same principle.
The courts have always respected the right to which a testator enjoys
to determine who is most suitable to settle his testamentary affairs,
and his solemn selection should not lightly be disregarded. After the
admission of a will to probate, the courts will not name a better
executor for the testator nor disqualify, by a judicial veto, the
widow or friend or other person selected in the will, except
upon strict proof of the statutory grounds of incompetency.
Matter of Leland's Will, 219 N.Y. 387, 393, 114 N.E. 854. x x x 29
Section 1(c), Rule 78 of the Rules of Court defines who are
incompetent to serve as executors, to wit:
Section 1. Who are incompetent to serve as executors or
administrators. – No person is competent to serve as executor or
administrator who:
xxxx
(c) Is in the opinion of the court unfit to execute the duties of trust
by reason of drunkenness, improvidence, or want of understanding
or integrity, or by reason of conviction of an offense involving
moral turpitude. (Emphasis Supplied)
In the case at bar, petitioner anchored its opposition to the grant of
letters testamentary to respondents, specifically on the following
grounds: (1) want of integrity, and (2) conviction of an offense
involving moral turpitude. Petitioner contends that respondents have
been convicted of a number of cases30 and, hence, should be
characterized as one without integrity, or at the least, with
questionable integrity.31
The RTC, however, in its January 11, 1996 Order, made the following
findings:
However, except for petitioner Republic’s allegation of want of
integrity on the part of Imelda Trinidad Romualdez-Marcos and
Ferdinand Romualdez Marco II, named executors in the last will and
testament, so as to render them "incompetent" to serve as
executors, the Court sees at this time, no evidence on record,
oral or documentary, to substantiate and support the said
allegation. (Emphasis Supplied)
Based on the foregoing, this Court stresses that an appellate court is
disinclined to interfere with the action taken by the probate court in
the matter of removal of an executor or administrator unless positive
error or gross abuse of discretion is shown.32 The Rules of Court gives
the lower court the duty and discretion to determine whether in its
opinion an individual is unfit to serve as an executor. The sufficiency
of any ground for removal should thus be determined by the said
court, whose sensibilities are, in the first place, affected by any act or
omission on the part of the administrator not conformable to or in
disregard of the rules of orders of the court.33
Hence, in order to reverse the findings of the RTC, this Court must
evaluate the evidence presented or alleged by petitioner in support of
its petition for disqualification. However, after a painstaking review of
the records and evidence on hand, this Court finds that the RTC
committed no error or gross abuse of discretion when it ruled that
petitioner failed to substantiate its allegation.
Petitioner conveniently omits to state that the two cases against
respondent Imelda Marcos have already been reversed by this Court.
Her conviction in Criminal Case No. 17453 was reversed by this Court
in Dans, Jr. v. People.34 Likewise, her conviction in Criminal Case No.
17450 was reversed by this Court in Marcos v.
Sandiganbayan.35 Hence, the so-called "convictions" against
respondent Imelda Marcos cannot serve as a ground for her
disqualification to serve as an executor.
On the other hand, the eight cases filed against respondent Ferdinand
Marcos II involve four charges for violation of Section 45 (failure to
file income tax returns) and four charges for violation of Section 50
(non-payment of deficiency taxes) of the National Internal Revenue
Code of 1977 (NIRC).
It is a matter of record, that in CA-G.R. CR No. 18569,36 the CA
acquitted respondent Ferdinand Marcos II of all the four charges for
violation of Section 50 and sustained his conviction for all the four
charges for violation of Section 45. It, however, bears to stress, that
the CA only ordered respondent Marcos II to pay a fine for his failure
to file his income tax return. Moreover, and as admitted by
petitioner,37 said decision is still pending appeal.
Therefore, since respondent Ferdinand Marcos II has appealed his
conviction relating to four violations of Section 45 of the NIRC, the
same should not serve as a basis to disqualify him to be appointed as
an executor of the will of his father. More importantly, even
assuming arguendo that his conviction is later on affirmed, the same
is still insufficient to disqualify him as the "failure to file an income tax
return" is not a crime involving moral turpitude.
In Villaber v. Commision on Elections,38 this Court held:
As to the meaning of "moral turpitude," we have consistently adopted
the definition in Black's Law Dictionary as "an act of baseness,
vileness, or depravity in the private duties which a man owes
his fellow men, or to society in general, contrary to the
accepted and customary rule of right and duty between man
and woman, or conduct contrary to justice, honesty, modesty,
or good morals."
In In re Vinzon, the term "moral turpitude" is considered as
encompassing "everything which is done contrary to justice, honesty,
or good morals."
xxxx
We, however, clarified in Dela Torre vs. Commission on
Elections that "not every criminal act involves moral
turpitude," and that ''as to what crime involves moral turpitude
is for the Supreme Court to determine."39
Moreover, In De Jesus-Paras v. Vailoces:40
Indeed, it is well-settled that "embezzlement, forgery, robbery, and
swindling are crimes which denote moral turpitude and, as a general
rule, all crimes of which fraud is an element are looked on as
involving moral turpitude" (58 C.J.S., 1206).
The "failure to file an income tax return" is not a crime involving moral
turpitude as the mere omission is already a violation regardless of the
fraudulent intent or willfulness of the individual. This conclusion is
supported by the provisions of the NIRC as well as previous Court
decisions which show that with regard to the filing of an income tax
return, the NIRC considers three distinct violations: (1) a false return,
(2) a fraudulent return with intent to evade tax, and (3) failure to file
a return.
The same is illustrated in Section 51(b) of the NIRC which reads:
(b) Assessment and payment of deficiency tax – xxx
In case a person fails to make and file a return or list at the time
prescribed by law, or makes willfully or otherwise, false or
fraudulent return or list x x x. (Emphasis Supplied)
Likewise, in Aznar v. Court of Tax Appeals,41 this Court observed:
To our minds we can dispense with these controversial arguments on
facts, although we do not deny that the findings of facts by the Court
of Tax Appeals, supported as they are by very substantial evidence,
carry great weight, by resorting to a proper interpretation of Section
332 of the NIRC. We believe that the proper and reasonable
interpretation of said provision should be that in the three different
cases of (1) false return, (2) fraudulent return with intent to
evade tax, (3) failure to file a return, the tax may be assessed,
or a proceeding in court for the collection of such tax may be begun
without assessment, at any time within ten years after the discovery
of the (1) falsity, (2) fraud, and (3) omission. Our stand that
the law should be interpreted to mean a separation of the
three different situations of false return, fraudulent return
with intent to evade tax, and failure to file a return is
strengthened immeasurably by the last portion of the
provision which segregates the situations into three different
classes, namely, "falsity," "fraud" and "omission."42 (Emphasis
Supplied)
Applying the foregoing considerations to the case at bar, the filing of
a "fraudulent return with intent to evade tax" is a crime involving
moral turpitude as it entails willfulness and fraudulent intent on the
part of the individual. The same, however, cannot be said for "failure
to file a return" where the mere omission already constitutes a
violation. Thus, this Court holds that even if the conviction of
respondent Marcos II is affirmed, the same not being a crime involving
moral turpitude cannot serve as a ground for his disqualification.
Anent the third error raised by petitioner, the same has no merit.
Petitioner contends that respondents denied the existence of the will,
and are, therefore, estopped from claiming to be the rightful
executors thereof. Petitioner further claims that said actions clearly
show that respondents lack the competence and integrity to serve as
officers of the court.
This Court does not agree with the posture taken by petitioner, and
instead, accepts the explanation given by respondents, to wit:
Respondents opposed the petition for probate not because they are
disclaiming the existence of the will, but because of certain legal
grounds, to wit: (a) petitioner does not have the requisite interest to
institute it; (b) the original copy of the will was not attached to the
petition for probate as required by the rules; and (c) the
Commissioner of the Bureau of Internal Revenue is not qualified to be
appointed as administrator of the estate.43
Based on the foregoing, considering the nature of their opposition,
respondents cannot be held guilty of estoppel as they merely acted
within their rights when they put in issue legal grounds in opposing
the probate proceedings. More importantly, even if said grounds were
later on overruled by the RTC, said court was still of opinion that
respondents were fit to serve as executors notwithstanding their
earlier opposition. Again, in the absence of palpable error or gross
abuse of discretion, this Court will not interfere with the RTC’s
discretion.
As for the remaining errors assigned by petitioner, the same are bereft
of merit.
that one who alleges a fact has the burden of proving it and a mere
allegation is not evidence.46 Consequently, it was the burden of
petitioner (not respondents) to substantiate the grounds upon which
it claims that respondents should be disqualified to serve as
executors, and having failed in doing so, its petition must necessarily
fail.
WHEREFORE, premises considered, the March 13, 1997 Decision and
August 27, 1997 Resolution of the Court of Appeals in CA-G.R. SP No.
43450 are hereby AFFIRMED.
The Regional Trial Court of Pasig City, Branch 156, acting as a probate
court in Special Proceeding No. 10279, is hereby ORDERED to issue
letters testamentary, in solidum, to Imelda Romualdez-Marcos and
Ferdinand Marcos II.

Petitioner contends that respondents have strongly objected to the SO ORDERED.

transfer to the Philippines of the Marcos assets deposited in the Swiss
Banks44 and thus the same should serve as a ground for their
disqualification to act as executors. This Court does not agree. In the
first place, the same are mere allegations which, without proof,
deserve scant consideration. Time and again, this Court has stressed
that this Court is a court of law and not a court of public opinion.
Moreover, petitioner had already raised the same argument in its
motion for partial reconsideration before the RTC.1avvphi1 Said
court, however, still did not find the same as a sufficient ground to
disqualify respondents. Again, in the absence of palpable error or
gross abuse of discretion, this Court will not interfere with the RTC’s
discretion.

Lastly, petitioner argues that the assailed RTC Orders were based
solely on their own evidence and that respondents offered no evidence
to show that they were qualified to serve as executors.45 It is basic
EN BANC
G.R. No. L-21917 November 29, 1966
TESTATE ESTATE OF THE DECEASED CARLOS GURREA Y
MONASTERIO. MARCELO PIJUAN, special administrator-appellee,
vs.
MANUELA RUIZ VDA. DE GURREA, movant-appellant.
CONCEPCION, C.J.:
This is an appeal, taken by Manuela Ruiz Vda. de Gurrea, from two
(2) orders of the Court of First Instance of Negros Occidental.
In 1932, appellant Manuela Ruiz — hereinafter referred to as Mrs.
Gurrea — and Carlos Gurrea were married in Spain, where they lived
together until 1945, when he abandoned her and came, with their son
Teodoro, to the Philippines. Here he lived maritally with Rizalina Perez
by whom he had two (2) children. Having been informed by her son
Teodoro, years later, that his father was residing in Pontevedra,
Negros Occidental, Manuela came to the Philippines, in June, 1960;
but, Carlos Gurrea refused to admit her to his residence in said
municipality. Hence, she stayed with their son, Teodoro, in Bacolod
City.
Presently, or on July 29, 1960, she instituted, against Carlos Gurrea,
Civil Case No. 5820 of the Court of First Instance of Negros Occidental,
for support and the annulment of some alleged donations of conjugal
property, in favor of his common-law wife, Rizalina. In due course,
said court issued an order granting Mrs. Gurrea a monthly
alimony, pendente lite, of P2,000.00 which, on May 17, 1961, was
reduced by the Court of Appeals to P1,000.00.
Carlos Gurrea died on March 7, 1962, leaving a document purporting
to be his last will and testament, in which he named Marcelo Pijuan
as executor thereof and disinherited Mrs. Gurrea and their son,
Teodoro. Soon thereafter, or on April 24, 1962, Pijuan instituted
Special Proceedings No. 6582 of the Court of First Instance of Negros
Occidental, for the probate of said will. Thereafter Pijuan was, upon
his ex parte motion, appointed special administrator of the estate,
without bond. Oppositions to the probate of the will were filed by Mrs.
Gurrea, her son, Teodoro, and one Pilar Gurrea, as an alleged
illegitimate daughter of the deceased.
On July 16, 1962, Mrs. Gurrea filed in said Special Proceedings No.
6582, a motion alleging that the aforementioned alimony, pendente
lite, of P1,000 a month, had been suspended upon the death of Carlos
Gurrea, and praying that the Special Administrator be ordered to
continue paying it pending the final determination of the case. This
motion having been denied in an order dated February 2, 1963, Mrs.
Gurrea moved for a reconsideration thereof. Moreover, on February
27, 1963, she moved for her appointment as administratrix of the
estate of the deceased. In an order dated April 20, 1963, said motion
for reconsideration was denied. The lower court, likewise, denied, for
the time being, the motion of Mrs. Gurrea for her appointment as
administratrix, in view of the provision of the will of the deceased
designating another person as executor thereof. Hence this appeal
from said orders of February 2 and April 20, 1963.
Mrs. Gurrea assails as erroneous the order of the lower court denying
her petition for support, as well as that denying its reconsideration.
Both were predicated upon the theory that, pursuant to Article 188 of
our Civil Code (Article 1430 of the Spanish Civil Code) the support of
a surviving spouse constitutes, not an encumbrance upon the estate
of the decedent, but merely an advance from her share of said estate,
and that Mrs. Gurrea is not entitled to such advance, there being
neither allegation nor proof that she had contributed any paraphernal
property to said estate or that the same includes properties forming
part of the conjugal partnership between her and the deceased. In
support of this view, His Honor, the trial Judge cited the opinion of
Manresa to the effect that
. . . Probado que ni en concepto de capital propio, ni como
gananciales corresponde haber alguno al conjuge
sobreviviente o a los herederos del premuerto, no cabe la
concesion de alimentos, pues estos, en efecto, con arreglo el
articulo 1430, son solo un anticipo del respectivo haber de
cada participe.
This has, however, been misconstrued by the lower court. The
foregoing view of Manresa is predicated upon the premise that it has
been proven that none of the properties under administration belongs
to the surviving spouse either as paraphernal property or as part of
the conjugal partnership. Upon the other hand, the lower court denied
support to Mrs. Gurrea because of absence of proof as regards the
status, nature or character of the property now under the custody of
the Special Administrator. Precisely, however, on account of such lack
of proof thereon, we are bound by law1 to assume that the estate of
the deceased consists of property belonging to the conjugal
partnership,2 one-half of which belongs presumptively to Mrs.
Gurrea,3 aside from such part of the share of the deceased in said
partnership as may belong to her as one of the compulsory heirs, 4 if
his alleged will were not allowed to probate, or, even if probated, if
the provision therein disinheriting her were nullified. Inasmuch as the
aforementioned estate is worth P205,397.64, according to the
inventory submitted by the special administrator, it is clear to us that
the continuation of the monthly alimony, pendente lite, of P1,000,
authorized in said Civil Case No. 5820, is fairly justified.
It is next urged by Mrs. Gurrea that the lower court erred in denying
her petition for appointment as administratrix, for, as widow of the
deceased, she claims a right of preference under Section 6 of Rule 78
of the Revised Rules of Court. In the language of this provision, said
preference exists "if no executor is named in the will or the executor
or executors are incompetent, refuse the trust, or fail to give bond, or
a person dies intestate." None of these conditions obtains, however,
in the case at bar. The deceased Carlos Gurrea has left a document
purporting to be his will, seemingly, is still pending probate. So, it
cannot be said, as yet, that he has died intestate. Again, said
document names Marcelo Pijuan as executor thereof, and it is not
claimed that he is incompetent therefor. What is more, he has not
only not refused the trust, but, has, also, expressly accepted it, by
applying for his appointment as executor, and, upon his appointment
as special administrator, has assumed the duties thereof. It may not
be amiss to note that the preference accorded by the aforementioned
provision of the Rules of Court to the surviving spouse refers to the
appoint of a regular administrator or administratrix, not to that of a
special administrator, and that the order appointing the latter lies
within the discretion of the probate court,5 and is not appealable.6
WHEREFORE, the orders appealed from are hereby modified, in the
sense that Manuela Ruiz Vda. de Gurrea shall receive from the estate
of the deceased a monthly allowance of P1,000.00, by way of support,
from March 7, 1962, and that, in all other respects, said orders are
hereby affirmed, without pronouncement as to costs. It is so ordered.
 SECOND DIVISION
G.R. No. 170498 January 9, 2013
METROPOLITAN BANK & TRUST COMPANY, Petitioner,
vs.
ABSOLUTE MANAGEMENT CORPORATION, Respondent.
BRION, J.:
We resolve petitioner Metropolitan Bank & Trust Company's (Metro
bank's) petition for review on certiorari1 seeking the reversal of the
decision2 dated August 25, 2005 and the resolution3 dated November
17, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 86336. The
assailed decision affirmed the order4 dated May 7, 2004 of the
Regional Trial Court (RTC) of Quezon City, Branch 80. The RTC had
denied the admission of Metrobank's Fourth-Party Complaint5 against
the Estate of Jose L. Chua for being a money claim that falls under
Section 5, Rule 86 of the Rules of Court; the claim should have been
filed in the pending judicial settlement of Chua’s estate before the RTC
of Pasay City. The CA affirmed the RTC’s order based on the same
ground.
Factual Antecedents
On October 5, 2000, Sherwood Holdings Corporation, Inc. (SHCI) filed
a complaint for sum of money against Absolute Management
Corporation (AMC). The complaint was docketed as Civil Case No. Q-
00-42105 and was assigned to the RTC of Quezon City, Branch 80.6
SHCI alleged in its complaint that it made advance payments to AMC
for the purchase of 27,000 pieces of plywood and 16,500 plyboards
in the sum of ₱12,277,500.00, covered by Metrobank Check Nos.
1407668502, 140768507, 140768530, 140768531, 140768532,
140768533 and 140768534. These checks were all crossed, and were
all made payable to AMC. They were given to Chua, AMC’s General
Manager, in 1998.7
Chua died in 1999, 8 and a special proceeding for the settlement of
his estate was commenced before the RTC of Pasay City. This
proceeding was pending at the time AMC filed its answer with
counterclaims and third-party complaint.9
SHCI made demands on AMC, after Chua’s death, for allegedly
undelivered items worth ₱8,331,700.00. According to AMC, these
transactions could not be found in its records. Upon investigation,
AMC discovered that in 1998, Chua received from SHCI 18 Metrobank
checks worth ₱31,807,500.00. These were all payable to AMC and
were crossed or "for payee’s account only."10
In its answer with counterclaims and third-party complaint,11 AMC
averred that it had no knowledge of Chua’s transactions with SHCI
and it did not receive any money from the latter. AMC also asked the
RTC to hold Metrobank liable for the subject checks in case it is
adjudged liable to SHCI.
Metrobank filed a motion for bill of particulars,12 seeking to clarify
certain ambiguous statements in AMC’s answer. The RTC granted the
motion but AMC failed to submit the required bill of particulars. Hence,
Metrobank filed a motion to strike out the third-party complaint.13
In the meantime, Metrobank filed a motion to dismiss14 against AMC
on the ground that the latter engaged in prohibited forum shopping.
According to Metrobank, AMC’s claim against it is the same claim that
it raised against Chua’s estate in Special Proceedings No. 99-0023
before the RTC of Pasay City, Branch 112. The RTC subsequently
denied this motion.15
The RTC of Quezon City opted to defer consideration16 of Metrobank’s
motion to strike out third-party complaint17and it instead granted
AMC’s motion for leave to serve written interrogatories on the third-
party defendant.18 While Metrobank filed its answer to the written
interrogatories, AMC was again directed by the RTC, in an
order19 dated August 13, 2003, to submit its bill of particulars.
Instead, AMC filed a motion for reconsideration20 which was denied in
an order21 dated October 28, 2003. AMC still did not file its bill of
particulars. The RTC, on the other hand, did not act on Metrobank’s
motion to strike out AMC’s third-party complaint.22
In its answer23 dated December 1, 2003, Metrobank admitted that it
deposited the checks in question to the account of Ayala Lumber and
Hardware, a sole proprietorship Chua owned and managed. The
deposit was allegedly done with the knowledge and consent of AMC.
According to
Metrobank, Chua then gave the assurance that the arrangement for
the handling of the checks carried AMC’s consent. Chua also submitted
documents showing his position and interest in AMC. These
documents, as well as AMC’s admission in its answer that it allowed
Chua to manage AMC with a relative free hand, show that it knew of
Chua’s arrangement with Metrobank. Further, Chua’s records show
that the proceeds of the checks were remitted to AMC which cannot
therefore now claim that it did not receive these proceeds.
Metrobank also raised the defense of estoppel. According to
Metrobank, AMC had knowledge of its arrangements with Chua for
several years. Despite this arrangement, AMC did not object to nor
did it call the attention of Metrobank about Chua’s alleged lack of
authority to deposit the checks in Ayala Lumber and Hardware’s
account. At this point, AMC is already estopped from questioning
Chua’s authority to deposit these checks in Ayala Lumber and
Hardware’s account.
Lastly, Metrobank asserted that AMC gave Chua unbridled control in
managing AMC’s affairs. This measure of control amounted to gross
negligence that was the proximate cause of the loss that AMC must
now bear.
Subsequently, Metrobank filed a motion for leave to admit fourth-
party complaint24 against Chua’s estate. It alleged that Chua’s estate
should reimburse Metrobank in case it would be held liable in the
third-party complaint filed against it by AMC.
The RTC’s Ruling
In an order25 dated May 7, 2004, the RTC denied Metrobank’s motion.
It likewise denied Metrobank’s motion for reconsideration in an
order26 dated July 7, 2004.
The RTC categorized Metrobank’s allegation in the fourth-party
complaint as a "cobro de lo indebido"27 – a kind of quasi-contract that
mandates recovery of what has been improperly paid. Quasi-contracts
fall within the concept of implied contracts that must be included in
the claims required to be filed with the judicial settlement of the
deceased’s estate under Section 5, Rule 86 of the Rules of Court. As
such claim, it should have been filed in Special Proceedings No. 99-
0023, not before the RTC as a fourth-party complaint. The RTC, acting
in the exercise of its general jurisdiction, does not have the authority
to adjudicate the fourth-party complaint. As a trial court hearing an
ordinary action, it cannot resolve matters pertaining to special
proceedings because the latter is subject to specific rules.
Metrobank responded to the RTC ruling by filing a petition for
certiorari28 under Rule 65 before the CA.
The CA’s Ruling
The CA affirmed the RTC’s ruling that Metrobank’s fourth-party
complaint should have been filed in Special Proceedings No. 99-
0023.29 According to the CA, the relief that Metrobank prayed for was
based on a quasi-contract and was a money claim categorized as an
implied contract that should be filed under Section 5, Rule 86 of the
Rules of Court.
Based on the statutory construction principle of lex specialis derogat
generali, the CA held that Section 5, Rule 86 of the Rules of Court is
a special provision that should prevail over the general provisions of
Section 11, Rule 6 of the Rules of Court. The latter applies to money
claims in ordinary actions while a money claim against a person
already deceased falls under the settlement of his estate that is
governed by the rules on special proceedings. If at all, rules for
ordinary actions only apply suppletorily to special proceedings.
The Present Petition
In its present petition for review on certiorari,30 Metrobank asserts
that it should be allowed to file a fourth-party complaint against
Chua’s estate in the proceedings before the RTC; its fourth-party
complaint was filed merely to enforce its right to be reimbursed by
Chua’s estate in case Metrobank is held liable to AMC. Hence, Section
11, Rule 6 of the Rules of Court should apply.
AMC, in its comment,31 maintains the line that the CA and the RTC
rulings should be followed, i.e., that Metrobank’s claim is a quasi-
contract that should be filed as a claim under Section 5, Rule 86 of
the Rules of Court.
AMC also challenges the form of Metrobank’s petition for failure to
comply with Section 4, Rule 45 of the Rules of Court. This provision
requires petitions filed before the Supreme Court to be accompanied
by "such material portions of the record as would support the
petition."
According to AMC, the petition’s annexes are mostly Metrobank’s
pleadings and court issuances. It did not append all relevant AMC
pleadings before the RTC and the CA. For this reason, the petition
should have been dismissed outright.
Issues
The parties’ arguments, properly joined, present to us the following
issues:
1) Whether the petition for review on certiorari filed by Metrobank
before the Supreme Court complies with Section 4, Rule 45 of the
Rules of Court; and
2) Whether Metrobank’s fourth-party complaint against Chua’s
estate should be allowed.
The Court’s Ruling
The Present Petition Complies with Section 4, Rule 45 of the Rules of
Court
AMC posits that Metrobank’s failure to append relevant AMC pleadings
submitted to the RTC and to the CA violated Section 4, Rule 45 of the
Rules of Court,32 and is a sufficient ground to dismiss the petition
under Section 5, Rule 45 of the Rules of Court.33
We disagree with AMC’s position.
In F.A.T. Kee Computer Systems, Inc. v. Online Networks
International, Inc.,34 Online Networks International, Inc. similarly
assailed F.A.T. Kee Computer Systems, Inc.’s failure to attach the
transcript of stenographic notes (TSN) of the RTC proceedings, and
claimed this omission to be a violation of Section 4, Rule 45 of the
Rules of Court that warranted the petition’s dismissal. The Court held
that the defect was not fatal, as the TSN of the proceedings before
the RTC forms part of the records of the case. Thus, there was no
incurable omission that warranted the outright dismissal of the
petition.
The Court significantly pointed out in F.A.T. Kee that the requirement
in Section 4, Rule 45 of the Rules of Court is not meant to be an
absolute rule whose violation would automatically lead to the
petition’s dismissal.35 The Rules of Court has not been intended to be
totally rigid. In fact, the Rules of Court provides that the Supreme
Court "may require or allow the filing of such pleadings, briefs,
memoranda or documents as it may deem necessary within such
periods and under such conditions as it may consider
appropriate";36 and "[i]f the petition is given due course, the Supreme
Court may require the elevation of the complete record of the case or
specified parts thereof within fifteen (15) days from notice."37 These
provisions are in keeping with the overriding standard that procedural
rules should be liberally construed to promote their objective and to
assist the parties in obtaining a just, speedy and inexpensive
determination of every action or proceeding.38
Under this guiding principle, we do not see Metrobank’s omission to
be a fatal one that should warrant the petition’s outright dismissal. To
be sure, the omission to submit the adverse party’s pleadings in a
petition before the Court is not a commendable practice as it may lead
to an unduly biased narration of facts and arguments that masks the
real issues before the Court. Such skewed presentation could lead to
the waste of the Court’s time in sifting through the maze of the
parties’ narrations of facts and arguments and is a danger the Rules
of Court seeks to avoid.
Our examination of Metrobank’s petition shows that it contains AMC’s
opposition to its motion to admit fourth-party complaint among its
annexes. The rest of the pleadings have been subsequently submitted
as attachments in Metrobank’s Reply. A reading of these pleadings
shows that their arguments are the same as those stated in the orders
of the trial court and the Court of Appeals. Thus, even if Metrobank’s
petition did not contain some of AMC’s pleadings, the Court still had
the benefit of a clear narration of facts and arguments according to
both parties’ perspectives. In this broader view, the mischief that the
Rules of Court seeks to avoid has not really been present. If at all, the
omission is not a grievous one that the spirit of liberality cannot
address.
The Merits of the Main Issue
The main issue poses to us two essential points that must be
addressed. First, are quasi-contracts included in claims that should be
filed pursuant to Rule 86, Section 5 of the Rules of Court? Second, if
so, is Metrobank’s claim against the Estate of Jose Chua based on a
quasi-contract?
Quasi-contracts are included in
claims that should be filed under Rule
86, Section 5 of the Rules of Court
In Maclan v. Garcia,39 Gabriel Maclan filed a civil case to recover from
Ruben Garcia the necessary expenses he spent as possessor of a piece
of land. Garcia acquired the land as an heir of its previous owner. He
set up the defense that this claim should have been filed in the special
proceedings to settle the estate of his predecessor. Maclan, on the
other hand, contended that his claim arises from law and not from
contract, express or implied. Thus, it need not be filed in the
settlement of the estate of Garcia’s predecessor, as mandated by
Section 5, Rule 87 of the Rules of Court (now Section 5, Rule 86).
The Court held under these facts that a claim for necessary expenses
spent as previous possessor of the land is a kind of quasi-contract.
Citing Leung Ben v. O’Brien,40 it explained that the term "implied
contracts," as used in our remedial law, originated from the common
law where obligations derived from quasi-contracts and from law are
both considered as implied contracts. Thus, the term quasi-contract
is included in the concept "implied contracts" as used in the Rules of
Court. Accordingly, liabilities of the deceased arising from quasi-
contracts should be filed as claims in the settlement of his estate, as
provided in Section 5, Rule 86 of the Rules of Court.41
Metrobank’s fourth-party complaint is
based on quasi-contract
Both the RTC and the CA described Metrobank’s claim against Chua’s
estate as one based on quasi-contract. A quasi-contract involves a
juridical relation that the law creates on the basis of certain voluntary,
unilateral and lawful acts of a person, to avoid unjust
enrichment.42 The Civil Code provides an enumeration of quasi-
contracts,43 but the list is not exhaustive and merely provides
examples.44
According to the CA, Metrobank’s fourth-party complaint falls under
the quasi-contracts enunciated in Article 2154 of the Civil
Code.45 Article 2154 embodies the concept "solutio indebiti" which
arises when something is delivered through mistake to a person who
has no right to demand it. It obligates the latter to return what has
been received through mistake.46
Solutio indebiti, as defined in Article 2154 of the Civil Code, has two
indispensable requisites: first, that something has been unduly
delivered through mistake; and second, that something was received
when there was no right to demand it.47
In its fourth-party complaint, Metrobank claims that Chua’s estate
should reimburse it if it becomes liable on the checks that it deposited
to Ayala Lumber and Hardware’s account upon Chua’s instructions.
This fulfills the requisites of solutio indebiti. First, Metrobank acted in
a manner akin to a mistake when it deposited the AMC checks to Ayala
Lumber and Hardware’s account; because of Chua’s control over
AMC’s operations, Metrobank assumed that the checks payable to
AMC could be deposited to Ayala Lumber and Hardware’s account.
Second, Ayala Lumber and Hardware had no right to demand and
receive the checks that were deposited to its account; despite Chua’s
control over AMC and Ayala Lumber and Hardware, the two entities
are distinct, and checks exclusively and expressly payable to one
cannot be deposited in the account of the other. This disjunct created
an obligation on the part of Ayala Lumber and Hardware, through its
sole proprietor, Chua, to return the amount of these checks to
Metrobank.
The Court notes, however, that its description of Metrobank’s fourth-
party complaint as a claimclosely analogous to solutio indebiti is only
to determine the validity of the lower courts’ orders denying it. It is
not an adjudication determining the liability of Chua’s estate against
Metrobank. The appropriate trial court should still determine whether
Metrobank has a lawful claim against Chua’s estate based on quasi-
contract.
Metrobank’s fourth-party complaint,
as a contingent claim, falls within the
claims that should be filed under
Section 5, Rule 86 of the Rules of
Court
A distinctive character of Metrobank’s fourth-party complaint is its
contingent nature – the claim depends on the possibility that
Metrobank would be adjudged liable to AMC, a future event that may
or may not happen. This characteristic unmistakably marks the
complaint as a contingent one that must be included in the claims
falling under the terms of Section 5, Rule 86 of the Rules of Court:
Sec. 5. Claims which must be filed under the notice. If not filed,
barred; exceptions. – All claims for money against the decedent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses and expenses
for the last sickness of the decedent, and judgment for money against
the decedent, must be filed within the time limited in the notice.
[italics ours]
Specific provisions of Section 5, Rule
86 of the Rules of Court prevail over
general provisions of Section 11, Rule
6 of the Rules of Court
Metrobank argues that Section 11, Rule 6 of the Rules of Court should
apply because it impleaded Chua’s estate for reimbursement in the
same transaction upon which it has been sued by AMC. On this point,
the Court supports the conclusion of the CA, to wit:
Notably, a comparison of the respective provisions of Section 11, Rule
6 and Section 5, Rule 86 of the Rules of Court readily shows that
Section 11, Rule 6 applies to ordinary civil actions while Section 5,
Rule 86 specifically applies to money claims against the estate. The
specific provisions of Section 5, Rule 86 x x x must therefore prevail
over the general provisions of Section 11, Rule 6.48
We read with approval the CA’s use of the statutory construction
principle of lex specialis derogat generali, leading to the conclusion
that the specific provisions of Section 5, Rule 86 of the Rules of Court
should prevail over the general provisions of Section 11, Rule 6 of the
Rules of Court; the settlement of the estate of deceased persons
(where claims against the deceased should be filed) is primarily
governed by the rules on special proceedings, while the rules provided
for ordinary claims, including Section 11, Rule 6 ofthe Rules of Court,
merely apply suppletorily.49
In sum, on all counts in the considerations material to the issues
posed, the resolution points to the affirmation of the assailed CA
decision and resolution. Metrobank's claim in its fourth-party
complaint against Chua's estate is based on quasi-contract. It is also
a contingent claim that depends on another event. Both belong to the
category of claims against a deceased person that should be filed
under Section 5, Rule 86 of the Rules of Comi and, as such, should
have been so filed in Special Proceedings No. 99-0023.
WHEREFORE, premises considered, we hereby DENY the petition for
lack of merit. The decision of the Court of Appeals dated August 25,
2005, holding that the Regional Trial Court of Quezon City, Branch 80,
did not commit grave abuse of discretion in denying Metropolitan Bank
& Trust Company's motion for leave to admit fourth-party complaint
Is

AFFIRMED. Costs against Metropolitan Bank & Trust Company. SO

ORDERED.
 EN BANC
G.R. No. L-16749 January 31, 1963
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E.
CHRISTENSEN,DECEASED.
ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of
the deceased, Executor and Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of
Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No.
622 of said court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the executor to
reimburse Maria Lucy Christensen the amount of P3,600 paid by her
to Helen Christensen Garcia as her legacy, and declaring Maria Lucy
Christensen entitled to the residue of the property to be enjoyed
during her lifetime, and in case of death without issue, one-half of
said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E.
Christensen. The will was executed in Manila on March 5, 1951 and
contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY
CHRISTENSEN (now Mrs. Bernard Daney), who was born in the
Philippines about twenty-eight years ago, and who is now residing
at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
It is in accordance with the above-quoted provisions that the executor
in his final account and project of partition ratified the payment of
4. I further declare that I now have no living ascendants, and no
descendants except my above named daughter, MARIA LUCY
CHRISTENSEN DANEY.
xxx xxx xxx
7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN,
now married to Eduardo Garcia, about eighteen years of age and
who, notwithstanding the fact that she was baptized Christensen,
is not in any way related to me, nor has she been at any time
adopted by me, and who, from all information I have now resides
in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND
SIX HUNDRED PESOS (P3,600.00), Philippine Currency the same
to be deposited in trust for the said Maria Helen Christensen with
the Davao Branch of the Philippine National Bank, and paid to her
at the rate of One Hundred Pesos (P100.00), Philippine Currency
per month until the principal thereof as well as any interest which
may have accrued thereon, is exhausted..
xxx xxx xxx
12. I hereby give, devise and bequeath, unto my well-beloved
daughter, the said MARIA LUCY CHRISTENSEN DANEY (Mrs.
Bernard Daney), now residing as aforesaid at No. 665 Rodger
Young Village, Los Angeles, California, U.S.A., all the income from
the rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be possessed at my death
and which may have come to me from any source whatsoever,
during her lifetime: ....
only P3,600 to Helen Christensen Garcia and proposed that the Christensen, through counsel, filed various motions for
residue of the estate be transferred to his daughter, Maria Lucy reconsideration, but these were denied. Hence, this appeal.
Christensen.
The most important assignments of error are as follows:
Opposition to the approval of the project of partition was filed by
Helen Christensen Garcia, insofar as it deprives her (Helen) of her I
legitime as an acknowledged natural child, she having been declared
by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE
deceased Edward E. Christensen. The legal grounds of opposition are HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED
(a) that the distribution should be governed by the laws of the NATURAL CHILD OF EDWARD E. CHRISTENSEN AND,
Philippines, and (b) that said order of distribution is contrary thereto CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE
insofar as it denies to Helen Christensen, one of two acknowledged INHERITANCE.
natural children, one-half of the estate in full ownership. In
amplification of the above grounds it was alleged that the law that II
should govern the estate of the deceased Christensen should not be
the internal law of California alone, but the entire law thereof because THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING
several foreign elements are involved, that the forum is the TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS
Philippines and even if the case were decided in California, Section AND CIRCUMSTANCES CALLING FOR THE APPLICATION OF INTERNAL
946 of the California Civil Code, which requires that the domicile of LAW.
the decedent should apply, should be applicable. It was also alleged
that Maria Helen Christensen having been declared an acknowledged III
natural child of the decedent, she is deemed for all purposes
legitimate from the time of her birth. THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER
INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI
The court below ruled that as Edward E. Christensen was a citizen of DOCTRINE, THE INTRINSIC VALIDITY OF THE TESTAMENTARY
the United States and of the State of California at the time of his DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE
death, the successional rights and intrinsic validity of the provisions DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY
in his will are to be governed by the law of California, in accordance THE LAWS OF THE PHILIPPINES.
with which a testator has the right to dispose of his property in the
way he desires, because the right of absolute dominion over his IV
property is sacred and inviolable (In re McDaniel's Estate, 77 Cal.
Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49
Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE
OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO
THE PHILIPPINE LAWS.
V stipulation of facts be admitted and approved by this Honorable
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE
PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO
ONE-HALF (1/2) OF THE ESTATE IN FULL OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the
United States and of the State of California at the time of his death.
But there is also no question that at the time of his death he was
domiciled in the Philippines, as witness the following facts admitted
by the executor himself in appellee's brief:
In the proceedings for admission of the will to probate, the facts
of record show that the deceased Edward E. Christensen was born
on November 29, 1875 in New York City, N.Y., U.S.A.; his first
arrival in the Philippines, as an appointed school teacher, was on
July 1, 1901, on board the U.S. Army Transport "Sheridan" with
Port of Embarkation as the City of San Francisco, in the State of
California, U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States
and stayed there for the following nine years until 1913, during
which time he resided in, and was teaching school in Sacramento,
California.
Mr. Christensen's next arrival in the Philippines was in July of the
year 1913. However, in 1928, he again departed the Philippines
for the United States and came back here the following year,
1929. Some nine years later, in 1938, he again returned to his
own country, and came back to the Philippines the following year,
1939.
Wherefore, the parties respectfully pray that the foregoing
Court, without prejudice to the parties adducing other evidence to
prove their case not covered by this stipulation of
facts. 1äwphï1.ñët
Being an American citizen, Mr. Christensen was interned by the
Japanese Military Forces in the Philippines during World War II.
Upon liberation, in April 1945, he left for the United States but
returned to the Philippines in December, 1945. Appellees
Collective Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits "AA",
"BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-2-Daney" and p.
473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to
California shortly after the making of his last will and testament
(now in question herein) which he executed at his lawyers' offices
in Manila on March 5, 1951. He died at the St. Luke's Hospital in
the City of Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the
Philippines, we are persuaded by the fact that he was born in New
York, migrated to California and resided there for nine years, and
since he came to the Philippines in 1913 he returned to California very
rarely and only for short visits (perhaps to relatives), and considering
that he appears never to have owned or acquired a home or properties
in that state, which would indicate that he would ultimately abandon
the Philippines and make home in the State of California.
 Sec. 16. Residence is a term used with many shades of meaning
from mere temporary presence to the most permanent abode.
Generally, however, it is used to denote something more than
mere physical presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he
acquired in California when he resided in Sacramento, California from
1904 to 1913, was never lost by his stay in the Philippines, for the
latter was a territory of the United States (not a state) until 1946 and
the deceased appears to have considered himself as a citizen of
California by the fact that when he executed his will in 1951 he
declared that he was a citizen of that State; so that he appears never
to have intended to abandon his California citizenship by acquiring
another. This conclusion is in accordance with the following principle
expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to
mean the same thing, a place of permanent abode. But domicile,
as has been shown, has acquired a technical meaning. Thus one
may be domiciled in a place where he has never been. And he
may reside in a place where he has no domicile. The man with two
homes, between which he divides his time, certainly resides in
each one, while living in it. But if he went on business which would
require his presence for several weeks or months, he might
properly be said to have sufficient connection with the place to be
called a resident. It is clear, however, that, if he treated his
settlement as continuing only for the particular business in hand,
not giving up his former "home," he could not be a domiciled New
Yorker. Acquisition of a domicile of choice requires the exercise of
intention as well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while domicile
requires bodily presence in that place and also an intention to
make it one's domicile." Residence, however, is a term used with
many shades of meaning, from the merest temporary presence to
the most permanent abode, and it is not safe to insist that any
one use et the only proper one. (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is
defined in Article 16 of the Civil Code of the Philippines, which is as
follows:
ART. 16. Real property as well as personal property is subject to
the law of the country where it is situated.
However, intestate and testamentary successions, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country where said
property may be found.
The application of this article in the case at bar requires the
determination of the meaning of the term "national law"is used
therein.
There is no single American law governing the validity of testamentary
provisions in the United States, each state of the Union having its own
private law applicable to its citizens only and in force only within the
state. The "national law" indicated in Article 16 of the Civil Code above
quoted cannot, therefore, possibly mean or apply to any general
American law. So it can refer to no other than the private law of the
State of California.
The next question is: What is the law in California governing the
disposition of personal property? The decision of the court below,
sustains the contention of the executor-appellee that under the
California Probate Code, a testator may dispose of his property by will
in the form and manner he desires, citing the case of Estate of
McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes
the provisions of Article 946 of the Civil Code of California, which is as
follows:
If there is no law to the contrary, in the place where personal
property is situated, it is deemed to follow the person of its owner,
and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and
is not denied. We have checked it in the California Civil Code and it is
there. Appellee, on the other hand, relies on the case cited in the
decision and testified to by a witness. (Only the case of Kaufman is
correctly cited.) It is argued on executor's behalf that as the deceased
Christensen was a citizen of the State of California, the internal law
thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of
Christensen's will, such law being in force in the State of California of
which Christensen was a citizen. Appellant, on the other hand, insists
that Article 946 should be applicable, and in accordance therewith and
following the doctrine of the renvoi, the question of the validity of the
testamentary provision in question should be referred back to the law
of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors,
thus:
The problem has been stated in this way: "When the Conflict of
Laws rule of the forum refers a jural matter to a foreign law for
decision, is the reference to the purely internal rules of law of the
foreign system; i.e., to the totality of the foreign law minus its
Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose
to accept the renvoi, that is, applied the Conflict of Laws rule of
Illinois which referred the matter back to Michigan law. But once
having determined the the Conflict of Laws principle is the rule
looked to, it is difficult to see why the reference back should not
have been to Michigan Conflict of Laws. This would have resulted
in the "endless chain of references" which has so often been
criticized be legal writers. The opponents of the renvoi would have
looked merely to the internal law of Illinois, thus rejecting the
renvoi or the reference back. Yet there seems no compelling
logical reason why the original reference should be the internal
law rather than to the Conflict of Laws rule. It is true that such a
solution avoids going on a merry-go-round, but those who have
accepted the renvoi theory avoid this inextricabilis circulas by
getting off at the second reference and at that point applying
internal law. Perhaps the opponents of the renvoi are a bit more
consistent for they look always to internal law as the rule of
reference.
Strangely enough, both the advocates for and the objectors to
the renvoi plead that greater uniformity will result from adoption
of their respective views. And still more strange is the fact that
the only way to achieve uniformity in this choice-of-law problem
is if in the dispute the two states whose laws form the legal basis
of the litigation disagree as to whether the renvoi should be
accepted. If both reject, or both accept the doctrine, the result of
the litigation will vary with the choice of the forum. In the case
stated above, had the Michigan court rejected the renvoi,
judgment would have been against the woman; if the suit had
been brought in the Illinois courts, and they too rejected
the renvoi, judgment would be for the woman. The same result
would happen, though the courts would switch with respect to
which would hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances:
where the title to land is in question, and where the validity of a
decree of divorce is challenged. In these cases the Conflict of Laws
rule of the situs of the land, or the domicile of the parties in the
divorce case, is applied by the forum, but any further reference
goes only to the internal law. Thus, a person's title to land,
recognized by the situs, will be recognized by every court; and
every divorce, valid by the domicile of the parties, will be valid
everywhere. (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France,
leaving movable property in Massachusetts, England, and France.
The question arises as to how this property is to be distributed
among X's next of kin.
Assume (1) that this question arises in a Massachusetts court.
There the rule of the conflict of laws as to intestate succession to
movables calls for an application of the law of the deceased's last
domicile. Since by hypothesis X's last domicile was France, the
natural thing for the Massachusetts court to do would be to turn
to French statute of distributions, or whatever corresponds
thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French
court were called upon to determine how this property should be
distributed, it would refer the distribution to the national law of
the deceased, thus applying the Massachusetts statute of
distributions. So on the surface of things the Massachusetts court
has open to it alternative course of action: (a) either to apply the
French law is to intestate succession, or (b) to resolve itself into a
French court and apply the Massachusetts statute of distributions,
on the assumption that this is what a French court would do. If it
accepts the so-called renvoi doctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the
conflict-of-laws rule of the forum refers to a foreign law, the
conflict-of-laws rule of which, in turn, refers the matter back again
to the law of the forum. This is renvoi in the narrower sense. The
German term for this judicial process is 'Ruckverweisung.'"
(Harvard Law Review, Vol. 31, pp. 523-571.)
After a decision has been arrived at that a foreign law is to be
resorted to as governing a particular case, the further question
may arise: Are the rules as to the conflict of laws contained in
such foreign law also to be resorted to? This is a question which,
while it has been considered by the courts in but a few instances,
has been the subject of frequent discussion by textwriters and
essayists; and the doctrine involved has been descriptively
designated by them as the "Renvoyer" to send back, or the
"Ruchversweisung", or the "Weiterverweisung", since an
affirmative answer to the question postulated and the operation
of the adoption of the foreign law in toto would in many cases
result in returning the main controversy to be decided according
to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been
advanced. The theory of the doctrine of renvoi is that the court of
the forum, in determining the question before it, must take into
account the whole law of the other jurisdiction, but also its rules
as to conflict of laws, and then apply the law to the actual question
which the rules of the other jurisdiction prescribe. This may be the
law of the forum. The doctrine of the renvoi has generally been
repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the
reasons for its application in a country explained by Prof. Lorenzen in
an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 529-531.
The pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the
conflict of laws are to be understood as incorporating not only the
ordinary or internal law of the foreign state or country, but its
rules of the conflict of laws as well. According to this theory 'the
law of a country' means the whole of its law.
xxx xxx xxx
Von Bar presented his views at the meeting of the Institute of
International Law, at Neuchatel, in 1900, in the form of the
following theses:
(1) Every court shall observe the law of its country as regards the
application of foreign laws.
(2) Provided that no express provision to the contrary exists, the
court shall respect:
(a) The provisions of a foreign law which disclaims the right to
bind its nationals abroad as regards their personal statute, and
desires that said personal statute shall be determined by the law
of the domicile, or even by the law of the place where the act in
question occurred.
(b) The decision of two or more foreign systems of law, provided
it be certain that one of them is necessarily competent, which
agree in attributing the determination of a question to the same
system of law.
xxx xxx xxx
If, for example, the English law directs its judge to distribute the
personal estate of an Englishman who has died domiciled in
Belgium in accordance with the law of his domicile, he must first
inquire whether the law of Belgium would distribute personal
property upon death in accordance with the law of domicile, and
if he finds that the Belgian law would make the distribution in
accordance with the law of nationality — that is the English law —
he must accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of
laws rule, while the rule applied in In re Kaufman, Supra, its internal
law. If the law on succession and the conflict of laws rules of California
are to be enforced jointly, each in its own intended and appropriate
sphere, the principle cited In re Kaufman should apply to citizens
living in the State, but Article 946 should apply to such of its citizens
as are not domiciled in California but in other jurisdictions. The rule
laid down of resorting to the law of the domicile in the determination
of matters with foreign element involved is in accord with the general
principle of American law that the domiciliary law should govern in
most matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states,
and leaves a will directing the manner of distribution of the
property, the law of the state where he was domiciled at the time
of his death will be looked to in deciding legal questions about the
will, almost as completely as the law of situs is consulted in
questions about the devise of land. It is logical that, since the
domiciliary rules control devolution of the personal estate in case
of intestate succession, the same rules should determine the
validity of an attempted testamentary dispostion of the property.
Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are
recognized as controlling by the Conflict of Laws rules at the situs
property, and the reason for the recognition as in the case of
intestate succession, is the general convenience of the doctrine.
The New York court has said on the point: 'The general principle
that a dispostiton of a personal property, valid at the domicile of
the owner, is valid anywhere, is one of the universal application.
It had its origin in that international comity which was one of the
first fruits of civilization, and it this age, when business intercourse
 and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is
more apparent than ever. (Goodrich, Conflict of Laws, Sec. 164,
pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines
pointed out as the national law is the internal law of California. But as
above explained the laws of California have prescribed two sets of
laws for its citizens, one for residents therein and another for those
domiciled in other jurisdictions. Reason demands that We should
enforce the California internal law prescribed for its citizens residing
therein, and enforce the conflict of laws rules for the citizens domiciled
abroad. If we must enforce the law of California as in comity we are
bound to go, as so declared in Article 16 of our Civil Code, then we
must enforce the law of California in accordance with the express
mandate thereof and as above explained, i.e., apply the internal law
for residents therein, and its conflict-of-laws rule for those domiciled
abroad.
It is argued on appellees' behalf that the clause "if there is no law to
the contrary in the place where the property is situated" in Sec. 946
of the California Civil Code refers to Article 16 of the Civil Code of the
Philippines and that the law to the contrary in the Philippines is the
provision in said Article 16 that the national law of the deceased
should govern. This contention can not be sustained. As explained in
the various authorities cited above the national law mentioned in
Article 16 of our Civil Code is the law on conflict of laws in the
California Civil Code, i.e., Article 946, which authorizes the reference
or return of the question to the law of the testator's domicile. The
conflict of laws rule in California, Article 946, Civil Code, precisely
refers back the case, when a decedent is not domiciled in California,
to the law of his domicile, the Philippines in the case at bar. The court
of the domicile can not and should not refer the case back to
California; such action would leave the issue incapable of
determination because the case will then be like a football, tossed
back and forth between the two states, between the country of which
the decedent was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in the conflict of
laws rule of the state of the decedent, if the question has to be
decided, especially as the application of the internal law of California
provides no legitime for children while the Philippine law, Arts. 887(4)
and 894, Civil Code of the Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs.
Palmaroli, 40 Phil. 105; Miciano vs. Brimo, 50 Phil. 867; Babcock
Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision
can not possibly apply in the case at bar, for two important reasons,
i.e., the subject in each case does not appear to be a citizen of a state
in the United States but with domicile in the Philippines, and it does
not appear in each case that there exists in the state of which the
subject is a citizen, a law similar to or identical with Art. 946 of the
California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a
citizen of California, is the Philippines, the validity of the provisions of
his will depriving his acknowledged natural child, the appellant, should
be governed by the Philippine Law, the domicile, pursuant to Art. 946
of the Civil Code of California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the
case returned to the lower court with instructions that the partition be
made as the Philippine law on succession provides. Judgment
reversed, with costs against appellees.
 SECOND DIVISION
G.R. Nos. L-69757-58 January 29, 1988
CIRCA NILA DEVELOPMENT CORPORATION, TEODORO K.
KATIGBAK and JENNIFER EVIDENTE BAERTGES petitioners,
vs.
HON. SALVADOR J. BAYLEN Judge, Regional Trial Court,
Branch CXXI, Caloocan City, INTESTATE ESTATE OF SOLEDAD
BALATBAT and TESTATE ESTATE OF RICARDO
BALATBAT, respondents.
SARMIENTO, J.:
The lone issue in these cases is whether or not the Regional Trial
Court, sitting as a probate court, may compel performance under a
contract it had approved incidental to its office as such a special court.
There is no dispute as to the facts.
On February 21, 1984, the Estates of Soledad and Ricardo Balatbat,
subject of a settlement proceeding pending with respondent Judge,
entered into a "Property Management and Exchange Contract" with
the petitioners Circa Nila Development Corporation, represented by
petitioner Teodoro Katigbak, and Jennifer Baertges both real estate
developers. The contract charged the petitioners with the
development of two parcels of real property, located in Valenzuela,
Bulacan, owned by the Balatbat Estates, and called upon them to pay
a total consideration of TWO MILLION SIX HUNDRED THOUSAND
(P2,600,000.00) PESOS.
On May 9, 1984, the respondent Judge approved the contract.
Subsequently, the Estates presented an "Omnibus Motion" praying
that the petitioners be compelled to pay the sum of P456,100.00
representing the alleged balance of the contract price they had
allegedly refused to pay. The petitioners opposed the motion on the
ground, in essence, that the respondent Court, as a probate court,
had no jurisdiction to grant the relief sought.
On October 18, 1984, the respondent Judge issued an order directing
the petitioners to pay the sum demanded. The petitioners sought a
reconsideration. On January 23, 1985 the respondent Judge issued an
order denying reconsideration. He likewise ordered the petitioner to
pay the additional sum of P500,000.00 on motion of the Estates. The
petitioners then came to this Court.
We rule for the petitioners.
A probate court is a tribunal of limited jurisdiction. It acts on matters
pertaining to the estate but never on rights to property arising from
contract. 1 It approves contracts entered into for and on behalf of the
estate or the heirs to it but this is by fiat of the Rules of Court. 2 In
that case, judicial approval is necessary for the validity of such
contracts. It cannot, however, adjudicate the rights and obligations of
the parties thereto. Compliance with the terms and conditions thereof
may be compelled by specific performance, jurisdiction over which is
vested in the Regional Trial Court, acting as a court of general
jurisdiction. 3
The fact that the petitioners "participated in the formulation and in
the eventual execution 4 of the "Property Management and Exchange
Contract" does not bar them from raising this jurisdictional challenge.
The petitioners never contended that the contract cannot be enforced
against them nor denied its validity. What they dispute is the
jurisdiction of the respondent court to hear the incident in its capacity
as a probate court.
Neither does estoppel preclude the petitioners from questioning the
respondent Court's assumption of jurisdiction. Estoppel occurs where
a party invokes the jurisdiction of a court, say, by seeking affirmative
relief, and denies it later following an adverse judgment. Here,
however, the petitioners never invoked the jurisdiction of the
respondent Court. They took part in the preparation of the "Property
Management and Exchange Contract" they being parties thereto, but
that did not make them parties to the case, or give the respondent
Court the jurisdiction to adjudicate on the rights of the parties under
that contract. The jurisdiction of a probate court is "merely the
settlement of the estate and may not be extended beyond. 5
The respondent Judge's reliance on our ruling in Pio Barretto Realty
Development, Inc. vs. Court of Appeals 6 is not well-taken. Pio
Barretto did not broaden the jurisdiction of a probate court. On the
contrary, it underscored the limited character of its jurisdiction ("the
limited jurisdiction of a probate court prohibits it from determining
rights to property left by a decedent which depends on the contract")
thus:
xxx xxx xxx
Since the probate court has no jurisdiction over the question of
title and ownership of the properties, the respondents may bring
a separate acto, if they wish to question the petitioner's titles and
ownership (Vda. de Rodriguez v. Court of Appeals, 91 SCRA 540).
Though an order of the probate court approving the sale of the
decedent's property is final, the respondent may file a complaint
in the proper court for the rescission of the sale. (Pizarro v. Court
of Appeals, 99 SCRA 72). Likewise, the initial question of
respondent regarding the propriety of including the properties in
question in the inventory of the probate court as he claims
ownership thereof may therein be finally and conclusively settled
(Vda. de Rodriguez v. Court of Appeals, supra; Lachenal v. Salas,
71 SCRA 202). The respondent has ample protection of his rights
for the province of the probate court remains merely the
settlement of the estate and may not be extended beyond (Pizarro
v. Court of Appeals, supra.)
xxx xxx xxx
In that case, however, we noted that the respondent had 'bound
himself under an agreement with the court separate and distinct from
that which he had with the decedent. In other words, what the court
had sought to enforce was not the contract executed on behalf of the
estate but the respondent's agreement, with the court itself to obtain
the best terms of the estate, and consequently, his authority to enter
into such a contract. But far from repealing the long-standing rule that
a probate court is one of limited jurisdiction, Pio Barretto, in fact,
reinforced it. In fine, we hold that the respondent-judge acted without
jurisdiction in issuing the assailed orders of October 18, 1984 (Annex
"H") and of January 23, 1985 (Annex "P") that warrants the corrective
hand of certiorari.
WHEREFORE, the petition is GRANTED. The Orders dated October 18,
1984 and January 23, 1985 are declared NULL and VOID The
Temporary Restraining Order given in these cases on February 6,
1985 is hereby made permanent. Costs against the private
respondents.
 EN BANC
G.R. No. L-32181 March 5, 1986
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
LEONOR VALENCIA, as Natural mother and guardian of her
minor children, BERNARDO GO and JESSICA GO; and THE HON.
AGAPITO HONTANOSAS, Judge of the COURT OF FIRST
INSTANCE OF CEBU, Branch XI.
GUTIERREZ, JR., J.:
This is a petition to review the decision of respondent Judge Agapito
Hontanosas of the Court of First Instance of Cebu, Branch XI who
ordered the Local Civil Registrar of Cebu to make the necessary
cancellation and/or correction in the entries of birth of Bernardo Go
and Jessica Go in the Civil Registry of the City of Cebu.
Respondent Leonor Valencia, for and in behalf of her minor children,
Bernardo Go and Jessica Go filed with the Court of First Instance of
Cebu a petition for the cancellation and/or correction of entries of birth
of Bernardo Go and Jessica Go in the Civil Registry of the City of Cebu.
The case was docketed as Special Proceedings No. 3043-R.
The Solicitor General filed an opposition to the petition alleging that
the petition for correction of entry in the Civil Registry pursuant to
Article 412 of the New Civil Code of the Philippines in relation to Rule
108 of the Revised Rules of Court, contemplates a summary
proceeding and correction of mere clerical errors, those harmless and
innocuous changes such as the correction of a name that is merely
mispelled, occupation of parents, etc., and not changes or corrections
involving civil status, nationality, or citizenship which are substantial
and controversial.
Finding the petition to be sufficient in form and substance, the trial
court issued an order directing the publication of the petition and the
date of hearing thereof in the Cebu Advocate, a newspaper of general
circulation in the city and province of Cebu, once a week for three (3)
consecutive weeks, and notice thereof, duly served on the Solicitor
General, the Local Civil Registrar of Cebu City and Go Eng.
Respondent Leonor Valencia, filed her reply to the opposition wherein
she admitted that the present petition seeks substantial changes
involving the civil status and nationality or citizenship of respondents,
but alleged that substantial changes in the civil registry records
involving the civil status of parents, their nationality or citizenship
may be allowed if- (1) the proper suit is filed, and (2) evidence is
submitted, either to support the allegations of the petition or to
disprove the same; that respondents have complied with these
requirements by filing the present special proceeding for cancellation
or correction of entries in the civil registry pursuant to Rule 108 of the
Revised Rules of Court and that they have caused reasonable notice
to be given to the persons named in the petition and have also caused
the order for the hearings of their petition to be published for three
(3) consecutive weeks in a newspaper of general circulation in the
province.
Subsequently, the Local Civil Registrar of Cebu City filed a motion to
dismiss on the ground that since the petition seeks to change the
nationality or citizenship of Bernardo Go and Jessica Go from
"Chinese" to "Filipino" and their status from "Legitimate" to
Illegitimate", and changing also the status of the mother from
"married" to "single" the corrections sought are not merely clerical
but substantial, involving as they do the citizenship and status of the
petitioning minors and the status of their mother.
The lower court denied the motion to dismiss.
After trial on the merits during which the parties were given all the
opportunity to present their evidence and refute the evidence and
arguments of the other side, the lower court rendered a decision the
dispositive portion of which reads:
WHEREFORE, Judgment is hereby rendered granting the instant
petition and ordering the Local Civil Registrar of the City of Cebu
to make the necessary cancellation and/or correction on the
following entries:
A. In the Record of Birth of BERNARDO GO, to register said
Bernardo Go as 'FILIPINO' instead of 'CHINESE'; as
'ILLEGITIMATE instead of LEGITIMATE', and his father's (GO ENG)
and mother's (LEONOR VALENCIA) civil status as 'SINGLE instead
of MARRIED';
B. In the Record of Birth of JESSICA GO to register said Jessica
Go as 'FILIPINO' instead of 'CHINESE'; as 'ILLEGITIMATE' instead
of 'LEGITIMATE' and father's (GO ENG) and mother's (LEONOR
VALENCIA) civil status as 'SINGLE instead of MARRIED': and
C. In both Records of Birth of Bernardo Go and Jessica Go to
change the entry on Petitioner's Citizenship from 'CHINESE to
FILIPINO'.
Pursuant to Section 6, Rule 103 of the Rules of Court, the Clerk of
Court is hereby directed to furnish a copy of this decision to the
Office of the Local Civil Registrar of Cebu City, who shall forthwith
enter the cancellation and/'or correction of entries of birth of
Bernardo Go and Jessica Go in the Civil Registry as adverted to
above.
From the foregoing decision, oppositor-appellant Republic of the
Philippines appealed to us by way of this petition for review on
certiorari.
The petitioner Republic of the Philippines raises a lone error for the
grant of this petition, stating that:
THE LOWER COURT ERRED IN ORDERING THE CORRECTION OF
THE PETITIONER'S CITIZENSHIP AND CIVIL STATUS AND THE
CITIZENSHIP AND CIVIL STATUS OF HER MINOR CHILDREN
BERNARDO GO AND JESSICA GO.
The petitioner premises its case on precedents from the 1954 case
of Ty Kong Tin v. Republic (94 Phil. 321) to the 1981 case of Republic
v. Caparosso (107 SCRA 67), that entries which can be corrected
under Article 412 of the New Civil Code as implemented by Rule 108
of the Revised Rules of Court refer to those mistakes that are clerical
in nature or changes that are harmless and innocuous (Wong v.
Republic, 115 SCRA 496). In Republic v. Medina(119 SCRA 270) citing
the case of Chua Wee, et al, v. Republic (38 SCRA 409), there was
this dicta:
From the time the New Civil Code took effect on August 30,
1950 until the promulgation of the Revised Rules of Court on
January 1, 1964, there was no law nor rule of court prescribing
the procedure to secure judicial authorization to effect the
desired innocuous rectifications or alterations in the civil
register pursuant to Article 412 of the New Civil Code. Rule 108
of the Revise Rules of Court now provides for such a procedure
which should be limited solely to the implementation of Article
412, the substantive law on the matter of correcting entries in
the civil register. Rule 108, lie all the other provisions of the
Rules of Court, was promulgated by the Supreme Court
 pursuant to its rule- making authority under Sec. 13 of Art. VIII
of the Constitution, which directs that such rules of court 'shall
not diminish or increase or modify substantive rights.' If Rule
108 were to be extended beyond innocuous or harmless
changes or corrections of errors which are visible to the eye or
obvious to the understanding, so as to comprehend substantial
and controversial alterations concerning citizenship, legitimacy
or paternity or filiation, or legitimacy of marriage, said Rule 108
would thereby become unconstitutional for it would be
increasing or modifying substantive rights, which changes are
not authorized under Article 412 of the New Civil Code.
xxx xxx xxx
It is undoubtedly true that if the subject matter of a petition is not for
the correction of clerical errors of a harmless and innocuous nature,
but one involving nationality or citizenship, which is indisputably
substantial as well as controverted, affirmative relief cannot be
granted in a proceeding summary in nature. However, it is also true
that a right in law may be enforced and a wrong may be remedied as
long as the appropriate remedy is used. This Court adheres to the
principle that even substantial errors in a civil registry may be
corrected and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate adversary
proceeding. As a matter of fact, the opposition of the Solicitor General
dated February 20, 1970 while questioning the use of Article 412 of
the Civil Code in relation to Rule 108 of the Revised Rules of Court
admits that "the entries sought to be corrected should be threshed
out in an appropriate proceeding.
What is meant by "appropriate adversary proceeding?" Black's Law
Dictionary defines "adversary proceeding as follows:
One having opposing parties; contested, as distinguished from
an ex parte application, one of which the party seeking relief
has given legal warning to the other party, and afforded the
latter an opportunity to contest it. Excludes an adoption
proceeding." (Platt v. Magagnini, 187 p. 716, 718, 110 Was.
39).
The private respondent distinguishes between summary proceedings
contemplated under Article 412 of the Civil Code and fullblown
adversary proceedings which are conducted under Rule 108 of the
Rules of Court.
She states:
It will please be considered that the nature of the matters that
may be changed or corrected are of two kinds. It may either be
mistakes that are clerical in nature or substantial ones. Under
the first category are those 'harmless and innocuous changes,
such as correction of a name that is clearly misspelled,
occupation of the parents, etc.,' (Ansaldo v. Republic, No. L-
10276, Feb. 14, 1958, 54 O.G. 5886) or 'one' that is visible to
the eyes or obvious to the understanding'. (Black v. Republic,
No. L-10869, Nov. 28, 1958, 104 Phil. 848).
To the second category falls those which affect the civil status
or citizenship or nationality of a party (Ty Kong Tin v. Republic,
No. L-5609, Feb. 5, 1954, 94 Phil. 321: Tan Su v. Republic, No.
L-12140, April 29, 1959, 105 Phil. 578: Black v. Republic, No.
L-10869, Nov. 28, 1958, 104 Phil. 848; Bantoco Coo v.
Republic, No. L-14978, May 23,1961, 2 SCRA 42: Barillo v.
Republic, No. L-14823, Dec. 28, 1961, 3 SCRA 725).
Changes or corrections in the entries in the civil registry were
governed, at first, by Act No. 3753 (Civil Registry Law) which
placed these matters exclusively upon the sound judgment and
discretion of the civil registrars. With the effectivity of the New
Civil Code on August 30, 1950, these matters were governed by
Article 412 thereof which prescribes judicial order before an
entry in a civil register shall be changed or corrected. This
requirement was deemed necessary to forestall the commission
of fraud or other mischief in these matters.
But even then, it is not any correction that can be considered
under Article 412 of he Civil Code. The nature of the corrections
sought has to be considered and if found to refer only to clerical
errors the same may be allowed under said article which was
construed to contemplate only a summary proceeding.
And so in the Ty Kong Tin case, this Honorable Court took
occasion to draw a distinction between what entries in the civil
register could be corrected under Article 412 of the New Civil
Code and what could not. In the process, to our mind, this
Honorable Court set down propositions which hold true not only
in that case but also in the subsequent cases for the latter
merely reiterated the Ty Kong Tin decision. These are:
First, that proceedings under Article 412 of the New Civil Code
are summary:
Second, that corrections in the entires in the civil register may
refer to either mere mistakes that are clerical in nature or
substantial ones which affects the civil status or -the nationality
or citizenship of the persons involved; and
Third, that if the change or correction sought refers to mere
correction of mistakes that are clerical in nature the same may
be done, under Article 412 of the Civil Code; otherwise, if it
refers to a substantial change which affects the civil status or
citizenship of a party. the matter should be threshed out in a
proper action.
To our humble estimation, these propositions do not altogether
bar or preclude substantial changes or corrections involving
such details as the civil status or nationality of a party. As a
matter of fact, just three years after the Ty Kong Tin decision,
this Honorable Court allowed a party to correct mistakes
involving such substantial matters as his birthplace and
citizenship in the birth certificates of his two sons. (Lim v.
Republic, No. L-8932, May 31, 1957, 101 Phil. 1235)
Only that where the correction pertains to matters which are
important and controversial certain conditions sine que non
have to be complied with. Thus it was held:
If it refers to a substantial change which affects the status or
citizenship of a party, the matter should be threshed out in a
proper action ... .' (Ty Kong Tin v. Republic, supra)
. . . . for changes involving the civil status of the parents, their
nationality or citizenship, those are grave and important
matters which may have a bearing and effect on the citizenship
and nationality not only of said parents, but of the offsprings,
and to seek said changes, it is not only the State, but also all
parties concerned and affected should be made parties
defendants or respondents, and evidence should be submitted,
either to support the allegations of the petition or complaint, or
also to disprove the same so that any order or decision in the
 case may be made in the entry in a civil register that will affect
or even determine conclusively the citizenship or nationality of
a person therein involved. (Ansaldo v. Republic, 54 O.G. 5886;
Emphasis supplied; Reiterated in the cases of: Tan Su v.
Republic, supra; Bantoto Coo v. Republic, supra; Barillo v.
Republic, supra; San Luis de Castro v. Republic, L-17431, April
30, 1963; Ilu Lin v. Republic, L- 18213, Dec. 24, 1963; Reyes
v. Republic, No.
L-17642, Nov. 27, 1964; Calicdan Baybayan v. Republic, L-
20707, March 18, 1966; Tan v. Republic, L-19847, April 29,
1966).
If at all what is forbidden is, in the words of Mr. Justice J.B.L.
Reyes, 'only the entering of material corrections or amendments
in the record of birth by virtue of a judgment in a summary
action against the Civil Registrar. (Matias v. Republic, No.
L-26982, May 8, 1969.
It will thus be gleaned from the foregoing that corrections
involving such matters as the civil status of the parents, their
nationality or citizenship may be allowed provided the proper
suit is filed.
The court's role in hearing the petition to correct certain entries in the
civil registry is to ascertain the truth about the facts recorded therein.
Under our system of administering justice, truth is best ascertained
or approximated by trial conducted under the adversary system,
Excerpts from the Report on Professional Responsibility issued jointly
by the Association of American Law Schools and the American Bar
Association explain why:
An adversary presentation seems the only effective means for
combatting this natural human tendency to judge too swiftly in
terms of the familiar that which is not yet fully known. The
arguments of counsel hold the case, as it were, in suspension
between two opposing interpretations of it. While the proper
classification of the case is thus kept unresolved, there is time
to explore all of its peculiarities and nuances.
These are the contributions made by partisan advocacy during
the public hearing of the cause. When we take into account the
preparation that must precede the hearing, the essential quality
of the advocate's contribution becomes even more apparent.
Preceding the hearing inquiries must be instituted to determine
what facts can be proved or seem sufficiently established to
warrant a formal test of their truth during the hearing. There
must also be a preliminary analysis of the issues, so that the
hearing may have form and direction. These preparatory
measures are indispensable whether or not the parties involved
in the controversy are represented by advocates.
Where that representation is present there is an obvious
advantage in the fact that the area of dispute may be greatly
reduced by an exchange of written pleadings or by stipulations
of counsel. Without the participation of someone who can act
responsibly for each of the parties, this essential narrowing of
the issues becomes impossible. But here again the true
significance of partisan advocacy lies deeper, touching once
more the integrity of the adjudicative process itself. It is only
through the advocate's participation that the hearing may
remain in fact what it purports to be in theory; a public trial of
the facts and issues. Each advocate comes to the hearing
prepared to present his proofs and arguments, knowing at the
same time that his arguments may fail to persuade and that his
proofs may be rejected as inadequate. It is a part of his role to
 absorb these possible disappointments. The deciding tribunal,
on the other hand, comes to the hearing uncommitted. It has
not represented to the public that any fact can be proved, that
any argument is sound, or that any particular way of stating a
litigant's case is the most effective expression of its merits.
xxx xxx xxx
These, then, are the reasons for believing that partisan
advocacy plays a vital and essential role in one of the most
fundamental procedures of a democratic society. But if we were
to put all of these detailed considerations to one side, we should
still be confronted by the fact that, in whatever form
adjudication may appear, the experienced judge or arbitrator
desires and actively seeks to obtain an adversary presentation
of the issues. Only when he has had the benefit of intelligent
and vigorous advocacy on both sides can he feel fully confident
of his decision.
Viewed in this light, the role of the lawyer as a partisan advocate
appears, not as a regrettable necessity, but as an indispensable
part of a larger ordering of affairs. The institution of advocacy
is not a concession to the frailties of human nature, but an
expression of human insight in the design of a social framework
within which man's capacity for impartial judgment can attain
its fullest realization. (44 American Bar Association Journal
(1160-1161, 1958)
Provided the trial court has conducted proceedings where all relevant
facts have been fully and properly developed, where opposing counsel
have been given opportunity to demolish the opposite party's case,
and where the evidence has been thoroughly weighed and considered,
the suit or proceeding is appropriate.
The pertinent sections of Rule 108 provide:
SEC. 3. Parties — When cancellation or correction of an entry in
the civil register is sought, the civil registrar and all persons who
have or claim any interest which would be affected thereby shall
be made parties to the proceeding.
SEC. 4. Notice and publication.— Upon the filing of the petition,
the court shall, by an orde, fix the time and place for the hearing
of the same, and cause reasonable notice thereof to be given to
the persons named in the petition. The court shall also cause the
order to be published once in a week for three (3) consecutive
weeks in a newspaper of general circulation in the province.
SEC, 5. Opposition. — The civil registrar and any person having
or claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of
the petition, or from the last date of publication of such notice, file
his opposition thereto.
Thus, the persons who must be made parties to a proceeding
concerning the cancellation or correction of an entry in the civil
register are-(1) the civil registrar, and (2) all persons who have or
claim any interest which would be affected thereby. Upon the filing of
the petition, it becomes the duty of the court to-(l) issue an order
fixing the time and place for the hearing of the petition, and (2) cause
the order for hearing to be published once a week for three (3)
consecutive weeks in a newspaper of general circulation in the
province. The following are likewise entitled to oppose the petition:
(I) the civil registrar, and (2) any person having or claiming any
interest under the entry whose cancellation or correction is sought.
If all these procedural requirements have been followed, a petition for
correction and/or cancellation of entries in the record of birth even if
filed and conducted under Rule 108 of the Revised Rules of Court can
no longer be described as "summary". There can be no doubt that
when an opposition to the petition is filed either by the Civil Registrar
or any person having or claiming any interest in the entries sought to
be cancelled and/or corrected and the opposition is actively
prosecuted, the proceedings thereon become adversary proceedings.
In the instant case, a petition for cancellation and/or correction of
entries of birth of Bernardo Go and Jessica Go in the Civil Registry of
the City of Cebu was filed by respondent Leonor Valencia on January
27, 1970, and pursuant to the order of the trial court dated February
4, 1970, the said petition was published once a week for three (3)
consecutive weeks in the, Cebu Advocate, a newspaper of general
circulation in the City of Cebu. Notice thereof was duly served on the
Solicitor General. the Local Civil Registrar and Go Eng. The order
likewise set the case for hearing and directed the local civil registrar
and the other respondents or any person claiming any interest under
the entries whose corrections were sought, to file their opposition to
the said petition. An opposition to the petition was consequently filed
by the Republic on February 26, 1970. Thereafter a full blown trial
followed with respondent Leonor Valencia testifying and presenting
her documentary evidence in support of her petition. The Republic on
the other hand cross-examined respondent Leonor Valencia.
We are of the opinion that the petition filed by the respondent in the
lower court by way of a special proceeding for cancellation and/or
correction of entries in the civil register with the requisite notice and
publication and the recorded proceedings that actually took place
thereafter could very well be regarded as that proper suit or
appropriate action.
In Matias v. Republic (28 SCRA 31), we held that:
xxx xxx xxx
. . . In the case of petitioner herein, however, the proceedings
were not summary, considering the publication of the petition
made by order of the court in order to give notice to any person
that might be interested, including direct service on the Solicitor
General himself. Considering the peculiar circumstances of this
particular case, the fact that no doubt is cast on the truth of
petitioner's allegations, or upon her evidence in support thereof,
the absence of any showing that prejudice would be caused to any
party interested (since petitioner's own father testified in her
favor), and the publicity given to the petition, we are of the
opinion that the Ty Kong Tin doctrine is not controlling this case."
Only last year, we had occasion to clarify the Ty Kong Tin doctrine,
further. In Republic v. Macli-ing (135 SCRA 367, 370-371), this Court
ruled:
The principal ground relied upon in this appeal is that Rule 108 of
the Rules of Court upon which private respondents anchor their
Petition is applicable only to changes contemplated in Article 412
of the Civil Code, which are clerical or innocuous errors, or to
corrections that are not controversial and are supported by
indubitable evidence. (Tiong v. Republic, 15 SCRA 262 [1965]).
It is true that the change from Esteban Sy to Sy Piao would
necessarily affect the Identity of the father. (Barillo v. Republic, 3
SCRA 725 [1961]) In that sense, it can be said to be substantial.
However, we find indubitable evidence to support the correction
prayed for. . . .
 xxx xxx xxx
In the case of Ty Kong Tin v. Republic, 94 Phil. 321 (1954), as
well as subsequent cases predicated thereon, we forbade only the
entering of material corrections in the record of birth by virtue of
a judgment in a summary action. the proceedings below, although
filed under Rule 108 of the Rules of Court, were not summary. The
Petition was published by order of the lower Court once a week
for three consecutive weeks in a newspaper of general circulation
in accordance with law. The Solicitor General was served with copy
of the Petition as well as with notices of hearings. He filed his
Opposition to the Petition. The Local Civil Registrar of the City of
Baguio was likewise duly served with copy of the Petition. A Fiscal
was always in attendance at the hearings in representation of the
Solicitor General. He participated actively in the proceedings,
particularly, in the cross-examination of witnesses. And,
notwithstanding that all interested persons were cited to appear
to show cause why the petition should not be granted, no one
appeared to oppose except the State through the Solicitor
General. But neither did the State present evidence in support of
its Opposition.
To follow the petitioner's argument that Rule 108 is not an appropriate
proceeding without in any way intimating what is the correct
proceeding or if such a proceeding exists at all, would result in
manifest injustice.
Apart from Bernardo Go and Jessica Go, there are four (4) other
sisters and one (1) other brother born of the same father and mother.
Not only are all five registered as Filipino citizens but they have
pursued careers which require Philippine citizenship as a mandatory
pre-requisite. To emphasize the strict policy of the government
regarding professional examinations, it was the law until recently that
to take the board exams for pharmacist, the applicant should possess
natural born citizenship. (See. 18, Republic Act 5921 and Sec. 1, P.D.
1350)
The sisters and brother are:
1. Sally Go, born on April 29, 1934 was licensed as a Pharmacist after
passing the government board examinations in 1956.
2. Fanny Go, born on July 12, 1936 is a Registered Nurse who passed
the government board examinations in 1960.
3. Corazon Go, born on June 20, 1939, during the trial of this case in
1970 was a fourth year medical student, qualified to take the
government board examinations after successfully completing the
requirements for a career in medicine, and presumably is a licensed
physician now.
4. Antonio Go, born February 14, 1942 was an engineering student
during the 1970 trial of the case and qualified by citizenship to take
government board examinations.
5. Remedios Go, born October 4, 1945 was a licensed Optometrist
after passing the government board examinations in 1967.
The above facts were developed and proved during trial. The
petitioner failed to refute the citizenship of the minors Bernardo and
Jessica Go.
In this petition, it limits itself to a procedural reason to overcome
substantive findings by arguing that the proper procedure was not
followed.
There are other facts on the record. Leonor Valencia is a registered
voter and had always exercised her right of suffrage from the time
she reached voting age until the national elections immediately
preceding the filing of her petition. The five other sisters and brother
are also registered voters and likewise exercised the right of suffrage.

An uncle of the mother's side had held positions in the government

having been elected twice as councilor and twice as vice-mayor of
Victorias, Negros Occidental. Respondent Leonor Valencia has
purchased and registered two (2) parcels of land as per Transfer
Certificate of Title No. T-46104 and Transfer Certificate of Title No. T-
37275. These allegations are well documented and were never
contradicted by the Republic. As correctly observed by the lower
court.

The right of suffrage is one of the important rights of a citizen.

This is also true with respect to the acquisition of a real
property. The evidence further shows that her children had been
allowed to take the Board Examinations given by the
Government for Filipino citizens only.

It would be a denial of substantive justice if two children proved by

the facts to be Philippine citizens, and whose five sisters and brother
born of the same mother and father enjoy all the rights of citizens,
are denied the same rights on the simple argument that the "correct
procedure" not specified or even intimated has not been followed.

We are, therefore, constrained to deny the petition.

WHEREFORE, the petition is DENIED for lack of merit.

The decision of the lower court is AFFIRMED. SO ORDERED.

 EN BANC
G.R. No. L-40252 December 29, 1986
ANTONIO CHIAO BEN LIM, petitioner,
vs.
HON. MARIANO A. ZOSA, Judge of the Court of First Instance
of Cebu, Branch V and the local civil registrar of the City of
Cebu, respondents.
CRUZ, J.:
This is an appeal by certiorari from two Orders of the respondent
1
judge dismissing a petition for the correction of an allegedly wrong
entry in the birth records of Kim Joseph describing him as a Chinese
national instead of a Filipino citizen.
The petitioner had offered to prove the error through several pieces
of evidence, among them an earlier birth certificate of Kim Joseph
describing him as a Filipino citizen, the birth certificates of his seven
brothers and sisters all describing them as Filipinos, and a decision of
the Court of Appeals recognizing their grandfather as a Filipino
citizen. 2
On opposition by the local civil registrar of Cebu, however, the
3
respondent judge dismissed the petition and sustained the contention
that only clerical errors were allowed to be corrected in the summary
proceedings authorized under Article 412 of the Civil Code and Rule
108 of the Rules of Court. Substantial issues like citizenship were not
covered. In effect, it was held the petition was for a judicial
declaration of citizenship, which was not allowed under existing
rules. 4
Article 412 of the Civil Code simply provides: "No entry in the civil
registry shall be changed or corrected without a judicial order."
In fairness to the respondent judge, there was abundant
jurisprudence to lend support to his Orders at the time they were
issued. Since then, however, the strict doctrine announced in those
cases has been relaxed, most recently in the case of Republic v.
Valencia, 5 supported by twelve members of this Court with only one
other member not taking part.
In that case (arising, incidentally, also in Cebu City), there was a
petition for the correction in the birth entries of two persons in the
local civil registry, specifically to change their citizenship from
"Chinese" to "Filipino," their status as children from "legitimate" to
"illegitimate," and their mother's status from "married" to "single."
The motion to dismiss filed by the local civil registrar having been
denied, a full-blown trial was held and the changes sought were
thereafter ordered by the trial court. The Republic of the Philippines
then came to this Court to question the decision, invoking
substantially the same grounds on which the Orders now being
challenged were based.
In a well-reasoned and exhaustive decision, Justice Hugo E. Gutierrez
declared inter alia:
It is undoubtedly true that if the subject matter of a petition is not
for the correction of clerical errors of a harmless and innocuous
nature, but one involving nationality or citizenship, which is
indisputably substantial as well as controverted, affirmative relief
cannot be granted in a proceeding summary in nature. However,
it is also true that a right in law may be enforced and a wrong may
be remedied as long as the appropriate remedy is used. This Court
adheres to the principle that even substantial errors in a civil
registry may be corrected and the true facts established provided
the parties aggrieved by the error avail themselves of the
appropriate adversary proceeding. As a matter of fact, the
opposition of the Solicitor General dated February 20, 1970 while
questioning the use of Article 412 of the Civil Code in relation to
Rule 108 of the Revised Rules of Court admits that 'the entries
sought to be corrected should be threshed out in an appropriate
proceeding.
What is meant by 'appropriate adversary proceedings 'Black's Law
Dictionary defines adversary proceeding' as follows:
One having opposing parties; contested, as distinguished from an
ex parte application, one of which the party seeking relief has
given legal warning to the other party, and afforded the latter an
opportunity to contest it. Excludes an adoption proceeding. (Platt
v. Magagnini, 187, p. 716, 718, 110 Was. 39).
xxx xxx xxx
The court's role in hearing the petition to correct certain entries in
the civil registry is to ascertain the truth about the facts recorded
therein. Under our system of administering justice, truth is best
ascertained or approximated by trial conducted under the
adversary system. 7
xxx xxx xxx
Provided the trial court has conducted proceedings where all
relevant facts have been fully and properly developed, where
opposing counsel have been given opportunity to demolish the
opposite party's case, and where the evidence has been
thoroughly weighed and considered, the suit or proceeding is
'appropriate.'
The pertinent sections of Rule 108 provide:
SEC. 3. Parties. — When cancellation or correction of an entry in
the civil register is sought, the civil registrar and all persons who
have or claim any interest which would be affected thereby shall
be made parties to the proceeding.
SEC. 4. Notice and publication. — Upon the filing of the petition,
the court shall, by an order, fix the time and place for the hearing
of the same, and cause reasonable notice thereof to be given to
the persons named in the petition. The court shall also cause the
order to be published once in a week for three (3) consecutive
weeks in a newspaper of general circulation in the province.
SEC. 5. Opposition. — The civil registrar and any person having
or claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of
the petition, or from the last date of publication of such notice, file
his opposition thereto.
Thus, the persons who must be made parties to a proceeding
concerning the cancellation or correction of an entry in the civil
registrar are-(1) the civil registrar, and (2) all persons who have
or claim any interest which would be affected thereby. Upon the
filing of the petition, it becomes the duty of the court to (1) issue
an order fixing the time and place for the hearing of the petition,
and (2) cause the order for hearing to be published once a week
for three (3) consecutive weeks in a newspaper of general
circulation in the province. The following are likewise entitled to
oppose the petition: (1) the civil registrar, and (2) any persons
 having or claiming any interest under the entry whose cancellation
or correction is sought.
If all these procedural requirements have been followed, a petition
for correction and/or cancellation of entries in the record of birth
even if filed and conducted under Rule 108 of the Revised Rules
of Court can no longer be described as "summary".There can be
no doubt that when an opposition to the petition is filed either by
the Civil Registrar or any person having or claiming any interest
in the entries sought to be cancelled and/or corrected and the
opposition is actively prosecuted, the proceedings thereon
become adversary proceedings.
xxx xxx xxx
We are of the opinion that the petition filed by the respondent in
the lower court by way of a special proceeding for cancellation
and/or correction of entries in the civil register with the requisite
notice and publication and the recorded proceedings that actually
took place thereafter could very well be regarded as that proper
suit or appropriate action. 8
In a number of earlier cases, the Court has ruled that the birth entry
regarding a person's citizenship could not be changed under Rule 108
as this would involve substantive rights that the rules of court could
not "diminish, increase or modify" under the Constitution. 9
Thus, in Chua Wee v. Republic, 10 a unanimous Court declared that,
"if Rule 108 were to be extended beyond innocuous or harmless
changes or corrections of errors which are visible to the eye or obvious
to the understanding, so as to comprehend substantial and
controversial alterations concerning citizenship, legitimacy of
paternity or filiation, or legitimacy of marriage, said Rule 108 would
thereby become unconstitutional for it would be increasing or
modifying substantive rights, which changes are not authorized under
Article 412 of the new Civil Code."
In Wong v. Republic, 11 however, Justice Vicente Abad Santos, in a
separate concurrence, expressed the view that Article 412, which Rule
108 was supposed to implement, "does not say that it applies only to
noncontroversial issues and that the procedure to be used is summary
in nature," adding that "Article 412 contemplates all kinds of issues
and all kinds of procedures." Justice Pacifico de Castro, in a dissenting
opinion, agreed with him and said (speaking also of Article 412) that
"no prohibition may be seen from its express provision, nor by mere
implication, against correction of a substantial error as one affecting
the status of a person." Amplifying on this view, he declared in
another dissenting opinion in Republic v. de la Cruz: 12
It is not accurate to say that Rule 108 would be rendered
unconstitutional if it would allow the correction of more than mere
harmless clerical error, as it would thereby increase or modify
substantive rights which the Constitution expressly forbids
because Article 412 of the Civil Code, the substantive law sought
to be implemented by Rule 108, allows only the correction of
innocuous clerical errors not those affecting the status of persons.
As was stressed in the dissent on the aforesaid Wong Case, Article
412 does not limit in its express terms nor by mere implication,
the correction authorized by it to that of mere clerical errors. Upon
a consideration of this fact, it would be reasonable and justified to
rule that Article 412 contemplates of correction of erroneous entry
of whatever nature, procedural safeguards having only to be
provided for, as was the manifest purpose of Rule 108.
It is worth emphasing that proceedings for the correction of
erroneous entry should not be considered as establishing one's
 status in a legal manner conclusively beyond dispute or is reinstated for trial on the merits without delay. No pronouncement
controversion, for as provided by Article 410 of the Civil Code, 'the as to costs. SO ORDERED.
books making up the civil register and all documents relating
thereto ... shall be prima facie evidence of the facts therein
contained.' Hence, the status as corrected would not have a
superior quality for evidentiary purpose. Moreover, the correction
should not imply a change of status but a mere rectification of
error to make the matter corrected speak for the truth. There is,
therefore, no increase or diminution of substantive right, as is the
basis for holding that Rule 108 would be unconstitutional if held
to allow correction of more than mere harmless and innocuous
clerical errors.

The Valencia ruling has in effect adopted the above-stated views

insofar as it now allows changes in the birth entry regarding a person's
citizenship as long as adversary proceedings are held. Where such a
change is ordered, the Court will not be establishing a substantive
right but only correcting or rectifying an erroneous entry in the civil
registry as authorized by law. In short, Rule 108 of the Rules of Court
provides only the procedure or mechanism for the proper enforcement
of the substantive law embodied in Article 412 of the Civil Code and
so does not violate the Constitution. We note that in the case at bar
the petition was dismissed outright without a trial being held, on the
justification that it was not permitted. In the light of the Valencia
ruling, the Orders of the respondent judge must now be reversed, to
give way to the appropriate proceedings necessary to the resolution
of the substantial issue raised by the petitioner. The records show that
the publication requirement has already been complied with. 13 The
next step, therefore, is for the petitioner and all adverse and
interested parties to be given their day in court in a regular trial on
the merits.

WHEREFORE, the challenged Orders are hereby set aside, and Special
Proceeding No. 3596-R of the Regional Trial Court of Cebu, Branch V,
 FIRST DIVISION
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
CORONA, J.:
When God created man, He made him in the likeness of God; He
created them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she
heard voices coming from inside the bamboo. "Oh North Wind!
North Wind! Please let us out!," the voices said. She pecked the
reed once, then twice. All of a sudden, the bamboo cracked and
slit open. Out came two human beings; one was a male and the
other was a female. Amihan named the man "Malakas" (Strong)
and the woman "Maganda" (Beautiful). (The Legend of Malakas
and Maganda)
When is a man a man and when is a woman a woman? In particular,
does the law recognize the changes made by a physician using scalpel,
drugs and counseling with regard to a person’s sex? May a person
successfully petition for a change of name and sex appearing in the
birth certificate to reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio
filed a petition for the change of his first name and sex in his birth
certificate in the Regional Trial Court of Manila, Branch 8. The petition,
docketed as SP Case No. 02-105207, impleaded the civil registrar of
Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila
to the spouses Melecio Petines Silverio and Anita Aquino Dantes on
April 4, 1962. His name was registered as "Rommel Jacinto Dantes
Silverio" in his certificate of live birth (birth certificate). His sex was
registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically
male but feels, thinks and acts as a female" and that he had always
identified himself with girls since childhood.1 Feeling trapped in a
man’s body, he consulted several doctors in the United States. He
underwent psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman"
culminated on January 27, 2001 when he underwent sex
reassignment surgery2 in Bangkok, Thailand. He was thereafter
examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to
be married. He then sought to have his name in his birth certificate
changed from "Rommel Jacinto" to "Mely," and his sex from "male" to
"female."
An order setting the case for initial hearing was published in the
People’s Journal Tonight, a newspaper of general circulation in Metro
Manila, for three consecutive weeks.3 Copies of the order were sent
to the Office of the Solicitor General (OSG) and the civil registrar of
Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as
witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of
petitioner. Its relevant portions read:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive but
solely for the purpose of making his birth records compatible with
his present sex.
The sole issue here is whether or not petitioner is entitled to the
relief asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition
would be more in consonance with the principles of justice and
equity. With his sexual [re-assignment], petitioner, who has
always felt, thought and acted like a woman, now possesses the
physique of a female. Petitioner’s misfortune to be trapped in a
man’s body is not his own doing and should not be in any way
taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice
will be caused to anybody or the community in granting the
petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her
[fiancé] and the realization of their dreams.
Finally, no evidence was presented to show any cause or ground
to deny the present petition despite due notice and publication
thereof. Even the State, through the [OSG] has not seen fit to
interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the
petition and ordering the Civil Registrar of Manila to change the
entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto"
to MELY and petitioner’s gender from "Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru
the OSG, filed a petition for certiorari in the Court of Appeals. 6 It
alleged that there is no law allowing the change of entries in the birth
certificate by reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in
favor of the Republic. It ruled that the trial court’s decision lacked
legal basis. There is no law allowing the change of either name or sex
in the certificate of birth on the ground of sex reassignment through
surgery. Thus, the Court of Appeals granted the Republic’s petition,
set aside the decision of the trial court and ordered the dismissal of
SP Case No. 02-105207. Petitioner moved for reconsideration but it
was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in
his birth certificate is allowed under Articles 407 to 413 of the Civil
Code, Rules 103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of
Sex Reassignment
Petitioner invoked his sex reassignment as the ground for his petition
for change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or
judgment or any infraction thereof or for any unlawful motive
but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of
a female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and
entities for purposes of identification.11 A change of name is a
privilege, not a right.12 Petitions for change of name are controlled by
statutes.13 In this connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without
judicial authority.
This Civil Code provision was amended by RA 9048 (Clerical Error
Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical
Error and Change of First Name or Nickname. – No entry in a
civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change
of first name or nickname which can be corrected or changed
by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power
and authority to entertain petitions for change of first name to the city
or municipal civil registrar or consul general concerned. Under the
law, therefore, jurisdiction over applications for change of first name
is now primarily lodged with the aforementioned administrative
officers. The intent and effect of the law is to exclude the change of
first name from the coverage of Rules 103 (Change of Name) and 108
(Cancellation or Correction of Entries in the Civil Registry) of the Rules
of Court, until and unless an administrative petition for change of
name is first filed and subsequently denied.15 It likewise lays down
the corresponding venue,16 form17 and procedure. In sum, the
remedy and the proceedings regulating change of first name are
primarily administrative in nature, not judicial.
RA 9048 likewise provides the grounds for which change of first name
may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. –
The petition for change of first name or nickname may be
allowed in any of the following cases:
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce;
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his
sex reassignment. He intended to make his first name compatible with
the sex he thought he transformed himself into through surgery.
However, a change of name does not alter one’s legal capacity or civil
status.18 RA 9048 does not sanction a change of first name on the
ground of sex reassignment. Rather than avoiding confusion,
changing petitioner’s first name for his declared purpose may only
create grave complications in the civil registry and the public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the
use of his true and official name.20 In this case, he failed to show, or
even allege, any prejudice that he might suffer as a result of using his
true and official name.
In sum, the petition in the trial court in so far as it prayed for the
change of petitioner’s first name was not within that court’s primary
jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an
improper remedy because the proper remedy was administrative, that
is, that provided under RA 9048. It was also filed in the wrong venue
as the proper venue was in the Office of the Civil Registrar of Manila
where his birth certificate is kept. More importantly, it had no merit
since the use of his true and official name does not prejudice him at
all. For all these reasons, the Court of Appeals correctly dismissed
petitioner’s petition in so far as the change of his first name was
concerned.
No Law Allows The Change of Entry In The Birth Certificate As
To Sex On the Ground of Sex Reassignment
The determination of a person’s sex appearing in his birth certificate
is a legal issue and the court must look to the statutes.21 In this
connection, Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or
corrected without a judicial order.
Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made
through administrative proceedings and without the need for a judicial
order. In effect, RA 9048 removed from the ambit of Rule 108 of the
Rules of Court the correction of such errors.22 Rule 108 now applies
only to substantial changes and corrections in entries in the civil
register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical
error" is:
SECTION 2. Definition of Terms. – As used in this Act, the
following terms shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake
committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the
civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the
like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only
by reference to other existing record or
records: Provided, however, That no correction
must involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change
of sex is not a mere clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108 of the Rules of
Court.
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles
407 and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations;
(5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth.25 However,
no reasonable interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults
or error from" while to change means "to replace something with
something else of the same kind or with something that serves as a
substitute."26 The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and
sex, were all correct. No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry
of certain acts (such as legitimations, acknowledgments of
illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as
legal separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and
nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or events
mentioned in Article 407. Neither is it recognized nor even mentioned
by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that
is, the sum total of capacities and incapacities) of a person in view of
his age, nationality and his family membership.27
The status of a person in law includes all his personal qualities
and relations, more or less permanent in nature, not
ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The
comprehensive term status… include such matters as the
beginning and end of legal personality, capacity to have rights
in general, family relations, and its various aspects, such as
birth, legitimation, adoption, emancipation, marriage, divorce,
and sometimes even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations.
It is a part of a person’s legal capacity and civil status. In this
connection, Article 413 of the Civil Code provides:
 ART. 413. All other matters pertaining to the registration of
civil status shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The
declaration of the physician or midwife in attendance at the
birth or, in default thereof, the declaration of either parent of
the newborn child, shall be sufficient for the registration of a
birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the
physician or midwife in attendance at the birth or by either
parent of the newborn child.
In such declaration, the person above mentioned shall certify
to the following facts: (a) date and hour of birth; (b) sex and
nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother
alone; (d) civil status of parents; (e) place where the infant
was born; and (f) such other data as may be required in the
regulations to be issued.
xxx xxx xxx (emphasis supplied)
Under the Civil Register Law, a birth certificate is a historical record
of the facts as they existed at the time of birth.29Thus, the sex of a
person is determined at birth, visually done by the birth attendant
(the physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex reassignment,
the determination of a person’s sex made at the time of his or her
birth, if not attended by error,30 is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary legislative
intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other
laws) should therefore be understood in their common and ordinary
usage, there being no legislative intent to the contrary. In this
connection, sex is defined as "the sum of peculiarities of structure and
function that distinguish a male from a female"32 or "the distinction
between male and female."33Female is "the sex that produces ova or
bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and
"female" in everyday understanding do not include persons who have
undergone sex reassignment. Furthermore, "words that are employed
in a statute which had at the time a well-known meaning are
presumed to have been used in that sense unless the context compels
to the contrary."36 Since the statutory language of the Civil Register
Law was enacted in the early 1900s and remains unchanged, it cannot
be argued that the term "sex" as used then is something alterable
through surgery or something that allows a post-operative male-to-
female transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering
his body and appearance through the intervention of modern surgery,
no law authorizes the change of entry as to sex in the civil registry for
that reason. Thus, there is no legal basis for his petition for the
correction or change of the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or
Sex Be Changed on the Ground of Equity
The trial court opined that its grant of the petition was in consonance
with the principles of justice and equity. It believed that allowing the
petition would cause no harm, injury or prejudice to anyone. This is
wrong.
The changes sought by petitioner will have serious and wide-ranging
legal and public policy consequences. First, even the trial court itself
found that the petition was but petitioner’s first step towards his
eventual marriage to his male fiancé. However, marriage, one of the
most sacred social institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential requisites
is the legal capacity of the contracting parties who must be a male
and a female.38 To grant the changes sought by petitioner will
substantially reconfigure and greatly alter the laws on marriage and
family relations. It will allow the union of a man with another man
who has undergone sex reassignment (a male-to-female post-
operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of calamities
under Rule 131 of the Rules of Court,41 among others. These laws
underscore the public policy in relation to women which could be
substantially affected if petitioner’s petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or
court shall decline to render judgment by reason of the silence,
obscurity or insufficiency of the law." However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to
apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it choose
to do so, to determine what guidelines should govern the recognition
of the effects of sex reassignment. The need for legislative guidelines
becomes particularly important in this case where the claims asserted
are statute-based.
To reiterate, the statutes define who may file petitions for change of
first name and for correction or change of entries in the civil registry,
where they may be filed, what grounds may be invoked, what proof
must be presented and what procedures shall be observed. If the
legislature intends to confer on a person who has undergone sex
reassignment the privilege to change his name and sex to conform
with his reassigned sex, it has to enact legislation laying down the
guidelines in turn governing the conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on
when a person may be recognized as having successfully changed his
sex. However, this Court has no authority to fashion a law on that
matter, or on anything else. The Court cannot enact a law where no
law exists. It can only apply or interpret the written word of its co-
equal branch of government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for
them, life is indeed an ordeal. However, the remedies petitioner seeks
involve questions of public policy to be addressed solely by the
legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED. Costs against
petitioner. SO ORDERED.
 SECOND DIVISION female characteristics. She further alleged that she was diagnosed
REPUBLIC OF THE PHILIPPINES, G.R. No. 166676 to have clitoral hyperthropy in her early years and at age six,
Petitioner, Present: underwent an ultrasound where it was discovered that she has small
- versus - Quisumbing, J., Chairperson, ovaries. At age thirteen, tests revealed that her ovarian structures
JENNIFER B. CAGANDAHAN, Carpio Morales, had minimized, she has stopped growing and she has no breast or
Respondent. Tinga, menstrual development. She then alleged that for all interests and
VELASCO, JR., and appearances as well as in mind and emotion, she has become a male
BRION, JJ. person. Thus, she prayed that her birth certificate be corrected such
Promulgated: that her gender be changed from female to male and her first name
September 12, 2008 be changed from Jennifer to Jeff.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
QUISUMBING, J.: The petition was published in a newspaper of general circulation for
three (3) consecutive weeks and was posted in conspicuous places
This is a petition for review under Rule 45 of the Rules of Court raising by the sheriff of the court. The Solicitor General entered his
purely questions of law and seeking a reversal of the appearance and authorized the Assistant Provincial Prosecutor to
Decision[1] dated January 12, 2005 of the Regional Trial Court appear in his behalf.
(RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for
Correction of Entries in Birth Certificate filed by Jennifer B. To prove her claim, respondent testified and presented the testimony
Cagandahan and ordered the following changes of entries in of Dr. Michael Sionzon of the Department of Psychiatry, University of
Cagandahan’s birth certificate: (1) the name "Jennifer Cagandahan" the Philippines-Philippine General Hospital. Dr. Sionzon issued a
changed to "Jeff Cagandahan" and (2) gender from "female" to medical certificate stating that respondent’s condition is known as
"male." CAH. He explained that genetically respondent is female but because
her body secretes male hormones, her female organs did not develop
The facts are as follows. normally and she has two sex organs – female and male. He testified
On December 11, 2003, respondent Jennifer Cagandahan filed a that this condition is very rare, that respondent’s uterus is not fully
Petition for Correction of Entries in Birth Certificate2before the RTC, developed because of lack of female hormones, and that she has no
Branch 33 of Siniloan, Laguna. monthly period. He further testified that respondent’s condition is
permanent and recommended the change of gender because
In her petition, she alleged that she was born on January 13, 1981 respondent has made up her mind, adjusted to her chosen role as
and was registered as a female in the Certificate of Live Birth but male, and the gender change would be advantageous to her.
while growing up, she developed secondary male characteristics and
was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which The RTC granted respondent’s petition in a Decision dated January
is a condition where persons thus afflicted possess both male and 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that
he is entitled to the reliefs prayed [for]. Petitioner has adequately
presented to the Court very clear and convincing proofs for the
granting of his petition. It was medically proven that petitioner’s
body produces male hormones, and first his body as well as his action
and feelings are that of a male. He has chosen to be male. He is a
normal person and wants to be acknowledged and identified as a
male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna
is hereby ordered to make the following corrections in the birth
[c]ertificate of Jennifer Cagandahan upon payment of the prescribed
fees:
a) By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b) By changing the gender from female to MALE.
It is likewise ordered that petitioner’s school records, voter’s registry,
baptismal certificate, and other pertinent records are hereby
amended to conform with the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG)
seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION
CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF
COURT HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW
CHANGE OF "SEX" OR "GENDER" IN THE BIRTH CERTIFICATE, WHILE
RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL ADRENAL
HYPERPLASIA DOES NOT MAKE HER A "MALE."4
Simply stated, the issue is whether the trial court erred in ordering
the correction of entries in the birth certificate of respondent to
change her sex or gender, from female to male, on the ground of her
medical condition known as CAH, and her name from "Jennifer" to
"Jeff," under Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because
while the local civil registrar is an indispensable party in a petition
for cancellation or correction of entries under Section 3, Rule 108 of
the Rules of Court, respondent’s petition before the court a quo did
not implead the local civil registrar.5 The OSG further contends
respondent’s petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province where the petition
was filed for at least three (3) years prior to the date of such filing
as mandated under Section 2(b), Rule 103 of the Rules of Court.6 The
OSG argues that Rule 108 does not allow change of sex or gender in
the birth certificate and respondent’s claimed medical condition
known as CAH does not make her a male.7
On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the
Petition for Correction of Birth Certificate, nonetheless the Local Civil
Registrar was furnished a copy of the Petition, the Order to publish
on December 16, 2003 and all pleadings, orders or processes in the
course of the proceedings,8respondent is actually a male person and
hence his birth certificate has to be corrected to reflect his true
sex/gender,9change of sex or gender is allowed under Rule
108,10 and respondent substantially complied with the requirements
of Rules 103 and 108 of the Rules of Court.11
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
Section 1. Venue. – A person desiring to change his name shall
present the petition to the Regional Trial Court of the province in
which he resides, [or, in the City of Manila, to the Juvenile and
Domestic Relations Court].
Sec. 2. Contents of petition. – A petition for change of name shall be
signed and verified by the person desiring his name changed, or
some other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the province
where the petition is filed for at least three (3) years prior to the date
of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for.
Sec. 3. Order for hearing. – If the petition filed is sufficient in form
and substance, the court, by an order reciting the purpose of the
petition, shall fix a date and place for the hearing thereof, and shall
direct that a copy of the order be published before the hearing at
least once a week for three (3) successive weeks in some newspaper
of general circulation published in the province, as the court shall
deem best. The date set for the hearing shall not be within thirty
(30) days prior to an election nor within four (4) months after the
last publication of the notice.
Sec. 4. Hearing. – Any interested person may appear at the hearing
and oppose the petition. The Solicitor General or the proper
provincial or city fiscal shall appear on behalf of the Government of
the Republic.
Sec. 5. Judgment. – Upon satisfactory proof in open court on the
date fixed in the order that such order has been published as directed
and that the allegations of the petition are true, the court shall, if
proper and reasonable cause appears for changing the name of the
petitioner, adjudge that such name be changed in accordance with
the prayer of the petition.
Sec. 6. Service of judgment. – Judgments or orders rendered in
connection with this rule shall be furnished the civil registrar of the
municipality or city where the court issuing the same is situated, who
shall forthwith enter the same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
Section 1. Who may file petition. – Any person interested in any act,
event, order or decree concerning the civil status of persons which
has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil
registry is located.
Sec. 2. Entries subject to cancellation or correction. – Upon good and
valid grounds, the following entries in the civil register may be
cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d)
legal separations; (e) judgments of annulments of marriage; (f)
judgments declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural
children; (j) naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial determination of
filiation; (n) voluntary emancipation of a minor; and (o) changes of
name.
Sec. 3. Parties. – When cancellation or correction of an entry in the
civil register is sought, the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made
parties to the proceeding.
Sec. 4. Notice and publication. – Upon the filing of the petition, the
court shall, by an order, fix the time and place for the hearing of the
same, and cause reasonable notice thereof to be given to the persons
named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province.
Sec. 5. Opposition. – The civil registrar and any person having or
claiming any interest under the entry whose cancellation or
correction is sought may, within fifteen (15) days from notice of the
petition, or from the last date of publication of such notice, file his
opposition thereto.
Sec. 6. Expediting proceedings. – The court in which the proceedings
is brought may make orders expediting the proceedings, and may
also grant preliminary injunction for the preservation of the rights of
the parties pending such proceedings.
Sec. 7. Order. – After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or correction
prayed for. In either case, a certified copy of the judgment shall be
served upon the civil registrar concerned who shall annotate the
same in his record.
The OSG argues that the petition below is fatally defective for non-
compliance with Rules 103 and 108 of the Rules of Court because
respondent’s petition did not implead the local civil registrar. Section
3, Rule 108 provides that the civil registrar and all persons who have
or claim any interest which would be affected thereby shall be made
parties to the proceedings. Likewise, the local civil registrar is
required to be made a party in a proceeding for the correction of
name in the civil registry. He is an indispensable party without whom
no final determination of the case can be had.[12] Unless all possible
indispensable parties were duly notified of the proceedings, the same
shall be considered as falling much too short of the requirements of
the rules.13 The corresponding petition should also implead as
respondents the civil registrar and all other persons who may have
or may claim to have any interest that would be affected
thereby.14 Respondent, however, invokes Section 6,[15] Rule 1 of
the Rules of Court which states that courts shall construe the Rules
liberally to promote their objectives of securing to the parties a just,
speedy and inexpensive disposition of the matters brought before it.
We agree that there is substantial compliance with Rule 108 when
respondent furnished a copy of the petition to the local civil registrar.
The determination of a person’s sex appearing in his birth certificate
is a legal issue and the court must look to the statutes. In this
connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or corrected
without a judicial order.
Together with Article 376[16] of the Civil Code, this provision was
amended by Republic Act No. 9048[17] in so far as clerical or
typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, Rep. Act No. 9048
removed from the ambit of Rule 108 of the Rules of Court the
correction of such errors. Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.18
Under Rep. Act No. 9048, a correction in the civil registry involving
the change of sex is not a mere clerical or typographical error. It is
a substantial change for which the applicable procedure is Rule 108
of the Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles
407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss,
or (12) recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of
the Civil Code include even those that occur after birth.20
Respondent undisputedly has CAH. This condition causes the early
or "inappropriate" appearance of male characteristics. A person, like
respondent, with this condition produces too much androgen, a male
hormone. A newborn who has XX chromosomes coupled with CAH
usually has a (1) swollen clitoris with the urethral opening at the
base, an ambiguous genitalia often appearing more male than
female; (2) normal internal structures of the female reproductive
tract such as the ovaries, uterus and fallopian tubes; as the child
grows older, some features start to appear male, such as deepening
of the voice, facial hair, and failure to menstruate at puberty. About
1 in 10,000 to 18,000 children are born with CAH.
CAH is one of many conditions[21] that involve intersex anatomy.
During the twentieth century, medicine adopted the term
"intersexuality" to apply to human beings who cannot be classified
as either male or female.[22] The term is now of widespread use.
According to Wikipedia, intersexuality "is the state of a living thing
of a gonochoristic species whose sex chromosomes, genitalia, and/or
secondary sex characteristics are determined to be neither
exclusively male nor female. An organism with intersex may have
biological characteristics of both male and female sexes."
Intersex individuals are treated in different ways by different
cultures. In most societies, intersex individuals have been expected
to conform to either a male or female gender role.[23] Since the rise
of modern medical science in Western societies, some intersex
people with ambiguous external genitalia have had their genitalia
surgically modified to resemble either male or female
genitals.[24] More commonly, an intersex individual is considered as
suffering from a "disorder" which is almost always recommended to
be treated, whether by surgery and/or by taking lifetime medication
in order to mold the individual as neatly as possible into the category
of either male or female.
In deciding this case, we consider the compassionate calls for
recognition of the various degrees of intersex as variations which
should not be subject to outright denial. "It has been suggested that
there is some middle ground between the sexes, a ‘no-man’s land’
for those individuals who are neither truly ‘male’ nor truly
‘female’."[25] The current state of Philippine statutes apparently
compels that a person be classified either as a male or as a female,
but this Court is not controlled by mere appearances when nature
itself fundamentally negates such rigid classification.
In the instant case, if we determine respondent to be a female, then
there is no basis for a change in the birth certificate entry for gender.
But if we determine, based on medical testimony and scientific
development showing the respondent to be other than female, then
a change in the subject’s birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither
consistently and categorically female nor consistently and
categorically male) composition. Respondent has female (XX)
chromosomes. However, respondent’s body system naturally
produces high levels of male hormones (androgen). As a result,
respondent has ambiguous genitalia and the phenotypic features of
a male.
Ultimately, we are of the view that where the person is biologically
or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her sex.
Respondent here thinks of himself as a male and considering that his
body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being male.
Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender
of such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he was born
with. And accordingly, he has already ordered his life to that of a
male. Respondent could have undergone treatment and taken steps,
like taking lifelong medication,[26] to force his body into the
categorical mold of a female but he did not. He chose not to do so.
Nature has instead taken its due course in respondent’s development
to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as one’s sexuality
and lifestyle preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due to CAH. The
Court will not consider respondent as having erred in not choosing to
undergo treatment in order to become or remain as a female. Neither
will the Court force respondent to undergo treatment and to take
medication in order to fit the mold of a female, as society commonly
currently knows this gender of the human species. Respondent is the
one who has to live with his intersex anatomy. To him belongs the
human right to the pursuit of happiness and of health. Thus, to him
should belong the primordial choice of what courses of action to take
along the path of his sexual development and maturation. In the
absence of evidence that respondent is an "incompetent"[27] and in
the absence of evidence to show that classifying respondent as a
male will harm other members of society who are equally entitled to
protection under the law, the Court affirms as valid and justified the
respondent’s position and his personal judgment of being a male.
In so ruling we do no more than give respect to (1) the diversity of
nature; and (2) how an individual deal with what nature has handed
out. In other words, we respect respondent’s congenital condition
and his mature decision to be a male. Life is already difficult for the
ordinary person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier, considering
the unique circumstances in this case.

As for respondent’s change of name under Rule 103, this Court has
held that a change of name is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons adduced and
the consequences that will follow.[28] The trial court’s grant of
respondent’s change of name from Jennifer to Jeff implies a change
of a feminine name to a masculine name. Considering the
consequence that respondent’s change of name merely recognizes
his preferred gender, we find merit in respondent’s change of name.
Such a change will conform with the change of the entry in his birth
certificate from female to male.

WHEREFORE, the Republic’s petition is DENIED. The Decision dated

January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan,
Laguna, is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
 FIRST DIVISION
G.R. No. 161219 October 6, 2008
MARINDUQUE MINING AND INDUSTRIAL CORPORATION and
INDUSTRIAL ENTERPRISES, INC., petitioners,
vs.
COURT OF APPEALS and NATIONAL POWER
CORPORATION, respondents.
CARPIO, J.:
The Case
This petition for review1 seeks the reversal of the 27 February 2003
Decision2 and 17 November 2003 Resolution3of the Court of Appeals
in CA-G.R. SP No. 72402. In its 27 February 2003 Decision, the Court
of Appeals set aside the 15 May 20024 and 24 June 20025 Orders of
Judge Mamindiara P. Mangotara, Presiding Judge of the Regional Trial
Court of Lanao del Norte, Branch 1, Iligan City (trial court), and
ordered the trial court to give due course to respondent National
Power Corporation's (NAPOCOR) appeal. In its 17 November 2003
Resolution, the Court of Appeals denied the motion for reconsideration
of petitioners Marinduque Mining and Industrial Corporation and
Industrial Enterprises, Inc. (petitioners).
The Facts
On 1 June 1999, NAPOCOR filed a complaint6 for expropriation against
petitioners for the construction of the AGUS VI Kauswagan 69 KV
Transmission Line Project. NAPOCOR sought to expropriate 7,875
square meters of petitioners' property covered by Transfer Certificate
of Title Nos. T-955 and T-956.7
Petitioners filed their answer8 with counterclaim and alleged that the
expropriation should cover not only 7,875 square meters but the
entire parcel of land. Petitioners claimed that the expropriation would
render the remaining portion of their property valueless and unfit for
whatever purpose.
In its 5 December 2001 Decision,9 the trial court fixed the fair market
value of the 7,875-square meter lot at P115 per square meter.10 The
trial court also directed the commissioners to submit a report and
determine the fair market value of the "dangling area," consisting of
58,484 square meters, affected by the installation of NAPOCOR's
transmission lines.
NAPOCOR filed a motion for reconsideration. In its Order dated 4
February 2002,11 the trial court denied NAPOCOR's motion.
In its 19 March 2002 Supplemental Decision,12 the trial court declared
that the "dangling area" consisted of 48,848.87 square meters and
fixed its fair market value at P65 per square meter. The trial court
ruled that petitioners are entitled to consequential damages because
NAPOCOR's expropriation impaired the value of the "dangling area"
and deprived petitioners of the ordinary use of their property.
NAPOCOR filed a motion for reconsideration. In its Order dated 24
June 2002,13 the trial court denied the motion for being moot and
academic because on 2 April 2002, NAPOCOR filed a Notice of
Appeal14 of the 19 March 2002 Supplemental Decision.
On the other hand, petitioners moved for the execution of the trial
court's 5 December 2001 Decision and 19 March 2002 Supplemental
Decision. In its 26 April 2002 Order, the trial court partially granted
petitioners' motion and, on 2 May 2002, issued the writ of execution
for the 5 December 2001 Decision.
On 29 April 2002, petitioners filed a "motion to strike out or declare
as not filed the notice of appeal dated April 2, 2002; to declare the
supplemental decision as final and executory; and to issue the
corresponding writ of execution thereon." Petitioners argued that
NAPOCOR violated Section 11, Rule 1315 of the Rules of Court because
NAPOCOR filed and served the notice of appeal by registered mail.
According to petitioners, NAPOCOR had all the vehicles and manpower
to personally serve and file the notice of appeal.
NAPOCOR opposed petitioners' motion and alleged that its legal office
is "severely undermanned" with only one vehicle and one employee,
acting as secretary, handling 300 active cases in Mindanao. NAPOCOR
also added that it was highly irregular for petitioners to question its
mode of service and filing only at this stage of the proceedings
because since the inception of the case, NAPOCOR had resorted to
registered mail instead of personal service.
In its 15 May 2002 Order, the trial court granted petitioners' motion
and denied NAPOCOR's notice of appeal. The trial court gave more
credence to petitioners' allegations and declared that NAPOCOR's
explanation was a "patent violation" of the Rules. The trial court
considered the notice of appeal as not filed at all and, since the period
of appeal had already expired, declared its 19 March 2002
Supplemental Decision final and executory.
NAPOCOR filed a motion for reconsideration.16 In its 24 June 2002
Order, the trial court denied NAPOCOR's motion.
On 23 August 2002, NAPOCOR filed a special civil action for certiorari
with a prayer for a temporary restraining order before the Court of
Appeals. NAPOCOR argued that the trial court acted without or in
excess of jurisdiction and gravely abused its discretion when it denied
NAPOCOR's notice of appeal of the 19 March 2002 Supplemental
Decision on the sole ground that it was not filed and served
personally.
The Ruling of the Court of Appeals
In its 27 February 2003 Decision, the Court of Appeals ruled in
NAPOCOR's favor and set aside the trial court's 15 May 2002 and 24
June 2002 Orders. The Court of Appeals also ordered the trial court
to give due course to NAPOCOR's appeal. The Court of Appeals
declared that the trial court acted whimsically and capriciously when
it denied the notice of appeal and declared the 19 March 2002
Supplemental Decision final and executory. The Court of Appeals
noted that service by registered mail was previously resorted to by
both parties and yet, this was the first time petitioners questioned
NAPOCOR's mode of service. The Court of Appeals added that the trial
court should have given due course to NAPOCOR's appeal because of
the large amount of public funds involved considering the significant
disparity between the area sought to be expropriated and the
"dangling area." The Court of Appeals also said that the Rules should
be liberally construed to effect substantial justice.
Petitioners filed a motion for reconsideration. In its 17 November 2003
Resolution, the Court of Appeals denied petitioners' motion.
Hence, this petition.
The Issues
Petitioners raise the following issues:
1. Whether the Court of Appeals erred in ruling that the trial
court's issuance of the 15 May 2002 and 24 June 2002 Orders was
 attended with grave abuse of discretion amounting to lack of
jurisdiction; and
2. Whether the Court of Appeals erred in ruling that the 19 March
2002 Supplemental Decision is not final and executory.
The Ruling of the Court
The petition has no merit.
On NAPOCOR's failure to comply with Section 11,
Rule 13 of the Rules of Court
Petitioners maintain that the trial court had the "wide latitude of
discretion" to consider the notice of appeal as not filed at all because
NAPOCOR failed to comply with the Rules.
On the other hand, NAPOCOR argues that the Rules allow resort to
other modes of service and filing as long as the pleading was
accompanied by a written explanation why service or filing was not
done personally. NAPOCOR maintains that it complied with the Rules
because the notice of appeal contained an explanation why NAPOCOR
resorted to service and filing by registered mail - due to lack of
manpower to effect personal service.17 NAPOCOR also insists that
petitioners are estopped from questioning its mode of service and
filing because since the inception of the case, NAPOCOR had resorted
to registered mail and yet, petitioners only raised this issue when the
notice of appeal was filed.
Under Section 11, Rule 13 of the Rules, personal service of pleadings
and other papers is the general rule while resort to the other modes
of service and filing is the exception. When recourse is made to the
other modes, a written explanation why service or filing was not done
personally becomes indispensable.18 If no explanation is offered to
justify resorting to the other modes, the discretionary power of the
court to expunge the pleading comes into play.19
In Solar Team Entertainment, Inc. v. Ricafort,20 we ruled:
We thus take this opportunity to clarify that under Section 11,
Rule 13 of the 1997 Rules of Civil Procedure, personal service
and filing is the general rule, and resort to other modes of
service and filing, the exception. Henceforth, whenever
personal service or filing is practicable, in light of the
circumstances of time, place and person, personal service or
filing is mandatory. Only when personal service or filing is not
practicable may resort to other modes be had, which must
then be accompanied by a written explanation as to why
personal service or filing was not practicable to begin with. In
adjudging the plausibility of an explanation, a court shall
likewise consider the importance of the subject matter of the
case or the issues involved therein, and the prima facie merit
of the pleading sought to be expunged for violation of Section
11.21
In this case, NAPOCOR complied with the Rules. NAPOCOR's notice of
appeal sufficiently explained why the notice of appeal was served and
filed by registered mail - due to lack of manpower to effect personal
service. This explanation is acceptable for it satisfactorily shows why
personal service was not practicable.22 Moreover, the Court of Appeals
correctly considered the importance of the issue involved in the case.
Therefore, the Court of Appeals did not err when it ruled that the trial
court acted with grave abuse of discretion in the issuance of the 15
May 2002 and 24 June 2002 Orders.
On NAPOCOR's failure to file a record on appeal
Petitioners maintain that NAPOCOR's appeal should be dismissed
because NAPOCOR failed to file a record on appeal and consequently,
it failed to comply with the material data rule.23
NAPOCOR argues that in this case the filing of a record on appeal is
"superfluous" because the trial court had nothing else to resolve as
the 19 March 2002 Supplemental Decision finally disposed of the case.
Moreover, NAPOCOR states that petitioners only raised this issue in
petitioners' comment before the Court of Appeals.
No record on appeal shall be required except in special proceedings
and other cases of multiple or separate appeals where the law or the
Rules of Court so require.24 The reason for multiple appeals in the
same case is to enable the rest of the case to proceed in the event
that a separate and distinct issue is resolved by the trial court and
held to be final.25 In such a case, the filing of a record on appeal
becomes indispensable since only a particular incident of the case is
brought to the appellate court for resolution with the rest of the
proceedings remaining within the jurisdiction of the trial court.
Jurisprudence recognizes the existence of multiple appeals in a
complaint for expropriation because there are two stages in every
action for expropriation.26 The first stage is concerned with the
determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in the context of the
facts involved in the suit.27 The order of expropriation may be
appealed by any party by filing a record on appeal.28 The second
stage is concerned with the determination by the court of the just
compensation for the property sought to be expropriated.29 A second
and separate appeal may be taken from this order fixing the just
compensation.30
In this case, since the trial court fully and finally resolved all
conceivable issues in the complaint for expropriation, there was no
need for NAPOCOR to file a record on appeal. In its 5 December 2001
Decision, the trial court already determined NAPOCOR's authority to
exercise the power of eminent domain and fixed the just
compensation for the property sought to be expropriated. NAPOCOR
filed a motion for reconsideration. But after the trial court denied the
motion, NAPOCOR did not appeal the decision anymore. Then, in its
19 March 2002 Supplemental Decision, the trial court fixed the just
compensation for the "dangling area." NAPOCOR filed a motion for
reconsideration and the trial court denied the motion. NAPOCOR then
filed a notice of appeal. At this stage, the trial court had no more
issues to resolve and there was no reason why the original records of
the case must remain with the trial court. Therefore, there was no
need for NAPOCOR to file a record on appeal because the original
records could already be sent to the appellate court.
Moreover, petitioners did not raise this issue in their "motion to strike
out or declare as not filed the notice of appeal dated April 2, 2002; to
declare the supplemental decision as final and executory; and to issue
the corresponding writ of execution thereon" before the trial court. It
is settled that an issue not raised during the trial could not be raised
for the first time on appeal as to do so would be offensive to the basic
rules of fair play, justice, and due process.31
WHEREFORE, we DENY the petition. We AFFIRM the 27 February
2003 Decision and 17 November 2003 Resolution of the Court of
Appeals in CA-G.R. SP No. 72402. SO ORDERED.
 THIRD DIVISION
G.R. No. 138322 October 2, 2001
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner,
vs.
REDERICK A. RECIO, respondents.
PANGANIBAN, J.:
A divorce obtained abroad by an alien may be recognized in our
jurisdiction, provided such decree is valid according to the national
law of the foreigner. However, the divorce decree and the governing
personal law of the alien spouse who obtained the divorce must be
proven. Our courts do not take judicial notice of foreign laws and
judgment; hence, like any other facts, both the divorce decree and
the national law of the alien must be alleged and proven according to
our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to nullify the January 7, 1999 Decision1 and the March 24,
1999 Order2 of the Regional Trial Court of Cabanatuan City, Branch
28, in Civil Case No. 3026-AF. The assailed Decision disposed as
follows:
"WHEREFORE, this Court declares the marriage between Grace J.
Garcia and Rederick A. Recio solemnized on January 12, 1994 at
Cabanatuan City as dissolved and both parties can now remarry
under existing and applicable laws to any and/or both parties."3
The assailed Order denied reconsideration of the above-quoted
Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an
Australian citizen, in Malabon, Rizal, on March 1, 1987.4 They lived
together as husband and wife in Australia. On May 18, 1989,5 a decree
of divorce, purportedly dissolving the marriage, was issued by an
Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown
by a "Certificate of Australian Citizenship" issued by the Australian
government.6 Petitioner – a Filipina – and respondent were married
on January 12, 1994 in Our Lady of Perpetual Help Church in
Cabanatuan City.7 In their application for a marriage license,
respondent was declared as "single" and "Filipino."8
Starting October 22, 1995, petitioner and respondent lived separately
without prior judicial dissolution of their marriage. While the two were
still in Australia, their conjugal assets were divided on May 16, 1996,
in accordance with their Statutory Declarations secured in Australia.9
On March 3, 1998, petitioner filed a Complaint for Declaration of
Nullity of Marriage10 in the court a quo, on the ground of bigamy –
respondent allegedly had a prior subsisting marriage at the time he
married her on January 12, 1994. She claimed that she learned of
respondent's marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had
revealed to petitioner his prior marriage and its subsequent
dissolution.11 He contended that his first marriage to an Australian
citizen had been validly dissolved by a divorce decree obtained in
Australian in 1989;12 thus, he was legally capacitated to marry
petitioner in 1994.
On July 7, 1998 – or about five years after the couple's wedding and
while the suit for the declaration of nullity was pending – respondent
was able to secure a divorce decree from a family court in Sydney,
Australia because the "marriage ha[d] irretrievably broken down."13
Respondent prayed in his Answer that the Complained be dismissed
on the ground that it stated no cause of action.14 The Office of the
Solicitor General agreed with respondent.15 The court marked and
admitted the documentary evidence of both parties.16 After they
submitted their respective memoranda, the case was submitted for
resolution.17
Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the
divorce issued in Australia was valid and recognized in the Philippines.
It deemed the marriage ended, but not on the basis of any defect in
an essential element of the marriage; that is, respondent's alleged
lack of legal capacity to remarry. Rather, it based its Decision on the
divorce decree obtained by respondent. The Australian divorce had
ended the marriage; thus, there was no more martial union to nullify
or annual.
Hence, this Petition.18
Issues
Petitioner submits the following issues for our consideration:
"I
The trial court gravely erred in finding that the divorce decree
obtained in Australia by the respondent ipso facto terminated his
first marriage to Editha Samson thereby capacitating him to
contract a second marriage with the petitioner.
"2
The failure of the respondent, who is now a naturalized Australian,
to present a certificate of legal capacity to marry constitutes
absence of a substantial requisite voiding the petitioner' marriage
to the respondent.
"3
The trial court seriously erred in the application of Art. 26 of the
Family Code in this case.
"4
The trial court patently and grievously erred in disregarding Arts.
11, 13, 21, 35, 40, 52 and 53 of the Family Code as the applicable
provisions in this case.
"5
The trial court gravely erred in pronouncing that the divorce
gravely erred in pronouncing that the divorce decree obtained by
the respondent in Australia ipso facto capacitated the parties to
remarry, without first securing a recognition of the judgment
granting the divorce decree before our courts."19
The Petition raises five issues, but for purposes of this Decision, we
shall concentrate on two pivotal ones: (1) whether the divorce
between respondent and Editha Samson was proven, and (2) whether
respondent was proven to be legally capacitated to marry petitioner.
Because of our ruling on these two, there is no more necessity to take
up the rest.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial court's recognition of the divorce between
respondent and Editha Samson. Citing Adong v. Cheong Seng
Gee,20 petitioner argues that the divorce decree, like any other foreign
judgment, may be given recognition in this jurisdiction only upon
proof of the existence of (1) the foreign law allowing absolute divorce
and (2) the alleged divorce decree itself. She adds that respondent
miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the
Family Code, marriages solemnized abroad are governed by the law
of the place where they were celebrated (the lex loci celebrationist).
In effect, the Code requires the presentation of the foreign law to
show the conformity of the marriage in question to the legal
requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-
off points for our discussion. Philippine law does not provide for
absolute divorce; hence, our courts cannot grant it.21 A marriage
between two Filipinos cannot be dissolved even by a divorce obtained
abroad, because of Articles 1522 and 1723 of the Civil Code.24 In mixed
marriages involving a Filipino and a foreigner, Article 2625 of the
Family Code allows the former to contract a subsequent marriage in
case the divorce is "validly obtained abroad by the alien spouse
capacitating him or her to remarry."26 A divorce obtained abroad by a
couple, who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws.27
A comparison between marriage and divorce, as far as pleading and
proof are concerned, can be made. Van Dorn v. Romillo Jr. decrees
that "aliens may obtain divorces abroad, which may be recognized in
the Philippines, provided they are valid according to their national
law."28 Therefore, before a foreign divorce decree can be recognized
by our courts, the party pleading it must prove the divorce as a fact
and demonstrate its conformity to the foreign law allowing
it.29 Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in
evidence, it must first comply with the registration requirements
under Articles 11, 13 and 52 of the Family Code. These articles read
as follows:
"ART. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall specify
the following:
xxx xxx xxx
"(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
 xxx xxx xxx
"ART. 13. In case either of the contracting parties has been
previously married, the applicant shall be required to furnish,
instead of the birth of baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse or
the judicial decree of annulment or declaration of nullity of his or
her previous marriage. x x x.
"ART. 52. The judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of the
spouses, and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect their persons."
Respondent, on the other hand, argues that the Australian divorce
decree is a public document – a written official act of an Australian
family court. Therefore, it requires no further proof of its authenticity
and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is
given presumptive evidentiary value, the document must first be
presented and admitted in evidence.30 A divorce obtained abroad is
proven by the divorce decree itself. Indeed the best evidence of a
judgment is the judgment itself.31 The decree purports to be a written
act or record of an act of an officially body or tribunal of a foreign
country.32
Under Sections 24 and 25 of Rule 132, on the other hand, a writing
or document may be proven as a public or official record of a foreign
country by either (1) an official publication or (2) a copy thereof
attested33 by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or
consular officer in the Philippine foreign service stationed in the
foreign country in which the record is kept and (b) authenticated by
the seal of his office.34
The divorce decree between respondent and Editha Samson appears
to be an authentic one issued by an Australian family
court.35 However, appearance is not sufficient; compliance with the
aforemetioned rules on evidence must be demonstrated.
Fortunately for respondent's cause, when the divorce decree of May
18, 1989 was submitted in evidence, counsel for petitioner objected,
not to its admissibility, but only to the fact that it had not been
registered in the Local Civil Registry of Cabanatuan City. 36 The trial
court ruled that it was admissible, subject to petitioner's
qualification.37Hence, it was admitted in evidence and accorded
weight by the judge. Indeed, petitioner's failure to object properly
rendered the divorce decree admissible as a written act of the Family
Court of Sydney, Australia.38
Compliance with the quoted articles (11, 13 and 52) of the Family
Code is not necessary; respondent was no longer bound by Philippine
personal laws after he acquired Australian citizenship in
1992.39 Naturalization is the legal act of adopting an alien and clothing
him with the political and civil rights belonging to a
citizen.40 Naturalized citizens, freed from the protective cloak of their
former states, don the attires of their adoptive countries. By becoming
an Australian, respondent severed his allegiance to the Philippines and
the vinculum juris that had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law
falls upon petitioner, because she is the party challenging the validity
of a foreign judgment. He contends that petitioner was satisfied with
the original of the divorce decree and was cognizant of the marital
laws of Australia, because she had lived and worked in that country
for quite a long time. Besides, the Australian divorce law is allegedly
known by Philippine courts: thus, judges may take judicial notice of
foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with "the party who
alleges the existence of a fact or thing necessary in the prosecution
or defense of an action."41 In civil cases, plaintiffs have the burden of
proving the material allegations of the complaint when those are
denied by the answer; and defendants have the burden of proving the
material allegations in their answer when they introduce new
matters.42 Since the divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law validating it falls
squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial
notice of foreign laws.43 Like any other facts, they must be alleged
and proved. Australian marital laws are not among those matters that
judges are supposed to know by reason of their judicial function.44 The
power of judicial notice must be exercised with caution, and every
reasonable doubt upon the subject should be resolved in the negative.
Second Issue:
Respondent's Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the
divorce, respondent was legally incapacitated to marry her in 1994.
Hence, she concludes that their marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was
validly admitted in evidence, adequately established his legal capacity
to marry under Australian law.
Respondent's contention is untenable. In its strict legal
sense, divorce means the legal dissolution of a lawful union for a
cause arising after marriage. But divorces are of different types. The
two basic ones are (1) absolute divorce or a vinculo matrimonii and
(2) limited divorce or a mensa et thoro. The first kind terminates the
marriage, while the second suspends it and leaves the bond in full
force.45 There is no showing in the case at bar which type of divorce
was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree – a
conditional or provisional judgment of divorce. It is in effect the same
as a separation from bed and board, although an absolute divorce
may follow after the lapse of the prescribed period during which no
reconciliation is effected.46
Even after the divorce becomes absolute, the court may under some
foreign statutes and practices, still restrict remarriage. Under some
other jurisdictions, remarriage may be limited by statute; thus, the
guilty party in a divorce which was granted on the ground of adultery
may be prohibited from remarrying again. The court may allow a
remarriage only after proof of good behavior.47
On its face, the herein Australian divorce decree contains a restriction
that reads:
 "1. A party to a marriage who marries again before this decree
becomes absolute (unless the other party has died) commits
the offence of bigamy."48
This quotation bolsters our contention that the divorce obtained by
respondent may have been restricted. It did not absolutely establish
his legal capacity to remarry according to his national law. Hence, we
find no basis for the ruling of the trial court, which erroneously
assumed that the Australian divorce ipso facto restored respondent's
capacity to remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises
a disputable presumption or presumptive evidence as to his civil
status based on Section 48, Rule 3949 of the Rules of Court, for the
simple reason that no proof has been presented on the legal effects
of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by
Article 21 of the Family Code was not submitted together with the
application for a marriage license. According to her, its absence is
proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is
determined by the national law of the party concerned. The certificate
mentioned in Article 21 of the Family Code would have been sufficient
to establish the legal capacity of respondent, had he duly presented
it in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant
for a marriage license.50
As it is, however, there is absolutely no evidence that proves
respondent's legal capacity to marry petitioner. A review of the
records before this Court shows that only the following exhibits were
presented before the lower court: (1) for petitioner: (a) Exhibit "A" –
Complaint;51 (b) Exhibit "B" – Certificate of Marriage Between
Rederick A. Recto (Filipino-Australian) and Grace J. Garcia (Filipino)
on January 12, 1994 in Cabanatuan City, Nueva Ecija;52 (c) Exhibit
"C" – Certificate of Marriage Between Rederick A. Recio (Filipino) and
Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;53 (d) Exhibit "D" – Office of the City Registrar of Cabanatuan
City Certification that no information of annulment between Rederick
A. Recto and Editha D. Samson was in its records;54 and (e) Exhibit
"E" – Certificate of Australian Citizenship of Rederick A. Recto;55 (2)
for respondent: (Exhibit "1" – Amended Answer;56 (b) Exhibit "S" –
Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the
Family Court of Australia;57 (c) Exhibit "3" – Certificate of Australian
Citizenship of Rederick A. Recto;58 (d) Exhibit "4" – Decree Nisi of
Dissolution of Marriage in the Family Court of Australia
Certificate;59 and Exhibit "5" – Statutory Declaration of the Legal
Separation Between Rederick A. Recto and Grace J. Garcia Recio since
October 22, 1995.60
Based on the above records, we cannot conclude that respondent,
who was then a naturalized Australian citizen, was legally capacitated
to marry petitioner on January 12, 1994. We agree with petitioner's
contention that the court a quo erred in finding that the divorce
decree ipso facto clothed respondent with the legal capacity to
remarry without requiring him to adduce sufficient evidence to show
the Australian personal law governing his status; or at the very least,
to prove his legal capacity to contract the second marriage.
Neither can we grant petitioner's prayer to declare her marriage to
respondent null and void on the ground of bigamy. After all, it may
turn out that under Australian law, he was really capacitated to marry
petitioner as a direct result of the divorce decree. Hence, we believe
that the most judicious course is to remand this case to the trial court
to receive evidence, if any, which show petitioner's legal capacity to
marry petitioner. Failing in that, then the court a quo may declare a
nullity of the parties' marriage on the ground of bigamy, there being
already in evidence two existing marriage certificates, which were
both obtained in the Philippines, one in Malabon, Metro Manila dated
March 1, 1987 and the other, in Cabanatuan City dated January 12,
1994.

WHEREFORE, in the interest of orderly procedure and substantial

justice, we REMAND the case to the court a quofor the purpose of
receiving evidence which conclusively show respondent's legal
capacity to marry petitioner; and failing in that, of declaring the
parties' marriage void on the ground of bigamy, as above discussed.
No costs. SO ORDERED.
 SECOND DIVISION
G.R. No. 92326 January 24, 1992
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and ZENAIDA C. BOBILES, respondents.
REGALADO, J.:
Dissatisfied with the decision of respondent Court of Appeals
promulgated on February 20, 1990 1 which affirmed in toto the
decision of Branch 2 of the Regional Trial Court of Legaspi
City 2 granting the petition of herein private respondent to adopt the
minor Jason Condat, petitioner seeks the reversal thereof in the
present petition for review on certiorari.
On February 2, 1988, Zenaida Corteza Bobiles filed a petition to adopt
Jason Condat, then six (6) years old and who had been living with her
family since he was four (4) months old, before the Regional Trial
Court of Legaspi City, docketed therein as Special Proceeding No.
1386. 3
The court a quo, finding the petition to be sufficient in form and
substance, issued an order dated February 15, 1988 setting the
petition for hearing on March 28, 1988. 4 The order was duly
published, with copies thereof seasonably served on the Solicitor
General; Assistant Provincial Fiscal Mediavillo, Jr. of Albay; Salvador
Condat, father of the child; and the social worker assigned to the
court. A copy of said order was posted on the bulletin board of the
court and in the other places it had required for that purpose. Nobody
appeared to oppose the petition. 5
Compliance with the jurisdictional requirements having been proved
at the hearing, the testimonies of herein private respondent, together
with that of her husband, Dioscoro Bobiles, and one Ma. Luz Salameno
of the Department of Social Welfare and Development were taken and
admitted in the proceedings.
On March 20, 1988, the trial court rendered judgment disposing as
follows:
ACCORDINGLY, it is declared that henceforth, the minor child,
JASON CONDAT, be freed from all legal obligations of obedience
and maintenance with respect to his natural parents, and be, to
all intents and purposes, the child of the spouses Dioscoro and
Zenaida Bobiles, and the surname of the child be changed to
"Bobiles" which is the surname of the petitioner.
Furnish the Office of the Solicitor General, Manila, the Department
of Social Welfare and Development, Regional Office, Region V,
Legaspi City, and the Local Civil Registrar of Tiwi, Albay, with
copies of this decision. 6
Herein petitioner appealed to the Court of Appeals which, as earlier
stated, affirmed the aforesaid decision of the court below. Hence, this
present petition with the following assignment of errors:
1. The Honorable Court of Appeals erred in ruling that the Family
Code cannot be applied retroactively to the petition for adoption
filed by Zenaida C. Bobiles; and
2 The Honorable Court of Appeals erred in affirming the trial
court's decision which granted the petition to adopt Jason Condat
in favor of spouses Dioscoro Bobiles and Zenaida C. Bobiles. 7
The petition for adoption was filed by private respondent Zenaida C.
Bobiles on February 2, 1988, when the law applicable was Presidential
Decree No. 603, the Child and Youth Welfare Code.
Under said code, a petition for adoption may be filed by either of the
spouses or by both of them. However, after the trial court rendered
its decision and while the case was pending on appeal in the Court of
Appeals, Executive Order No. 209, the Family Code, took effect on
August 3, 1988. Under the said new law, joint adoption by husband
and wife is mandatory.
On the foregoing consideration, petitioner contends that the petition
for adoption should be dismissed outright for it was filed solely by
private respondent without joining her husband, in violation of Article
185 of the Family Code which requires joint adoption by the spouses.
It argues that the Family Code must be applied retroactively to the
petition filed by Mrs. Bobiles, as the latter did not acquire a vested
right to adopt Jason Condat by the mere filing of her petition for
adoption. We are not persuaded.
Preliminarily, we observe that petitioner's theory implies that the non-
inclusion of Dioscoro Bobiles as a co-petitioner is a jurisdictional
defect, hence its prayer for an outright dismissal on that score. It
could not be taking exception only on the ground of non-joinder since
petitioner must be aware that non-joinder is not a ground for the
dismissal of an action or a special proceeding. We further apprehend
that this objection has been raised for the first time on appeal in
respondent court. Nonetheless, we shall clarify petitioner's misgivings
as postulated in its aforestated assignment of errors.
Article 246 of the Family Code provides for retroactive effect of
appropriate relevant provisions thereof, subject to the qualification
that such retrospective application will not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws.
A vested right is one whose existence, effectivity and extent does not
depend upon events foreign to the will of the holder. 9 The term
expresses the concept of present fixed interest which in right reason
and natural justice should be protected against arbitrary State action,
or an innately just and imperative right which enlightened free
society, sensitive to inherent and irrefragable individual rights, cannot
deny. 10 Vested rights include not only legal or equitable title to the
enforcement of a demand, but also an exemption from new
obligations created after the right has vested. 11
Under the Child and Youth Welfare Code, private respondent had the
right to file a petition for adoption by herself, without joining her
husband therein. When Mrs. Bobiles filed her petition, she was
exercising her explicit and unconditional right under said law. Upon
her filing thereof, her right to file such petition alone and to have the
same proceed to final adjudication, in accordance with the law in force
at the time, was already vested and cannot be prejudiced or impaired
by the enactment of a new law.
When private respondent filed her petition in Special Proceeding No.
1386, the trial court acquired jurisdiction thereover in accordance with
the governing law. Jurisdiction being a matter of substantive law, the
established rule is that the jurisdiction of the court is determined by
the statute in force at the time of the commencement of the
action.12 We do not find in the present case such facts as would
constitute it as an exception to the rule.
The first error assigned by petitioner warrants a review of applicable
local and foreign jurisprudence. For that purpose, we start with the
premise that Article 185 of the Family Code is remedial in nature.
Procedural statutes are ordinarily accorded a retrospective
construction in the sense that they may be applied to pending actions
and proceedings, as well as to future actions. However, they will not
be so applied as to defeat procedural steps completed before their
enactment. 13
Procedural matters are governed by the law in force when they arise,
and procedural statutes are generally retroactive in that they apply to
pending proceedings and are not confined to those begun after their
enactment although, with respect to such pending proceedings, they
affect only procedural steps taken after their enactment. 14
The rule that a statutory change in matters of procedure will affect
pending actions and proceedings, unless the language of the act
excludes them from its operation, is not so extensive that it may be
used to validate or invalidate proceedings taken before it goes into
effect, since procedure must be governed by the law regulating it at
the time the question of procedure arises.15
The jurisdictional, as distinguished from the purely procedural, aspect
of a case is substantive in nature and is subject to a more stringent
rule. A petition cannot be dismissed by reason of failure to comply
with a law which was not yet in force and effect at the time. As long
as the petition for adoption was sufficient in form and substance in
accordance with the law in governance at the time it was filed, the
court acquires jurisdiction and retains it until it fully disposes of the
case. 16 To repeat, the jurisdiction of the court is determined by the
statute in force at the time of the commencement of the action. Such
jurisdiction of a court, whether in criminal or civil cases, once it
attaches cannot be ousted by subsequent happenings or events,
although of a character which would have prevented jurisdiction from
attaching in the first instance. 17
On the second issue, petitioner argues that, even assuming that the
Family Code should not apply retroactively, the Court of Appeals
should have modified the trial court's decision by granting the
adoption in favor of private respondent Zenaida C. Bobiles only, her
husband not being a petitioner. We do not consider this as a tenable
position and, accordingly, reject the same.
Although Dioscoro Bobiles was not named as one of the petitioners in
the petition for adoption filed by his wife, his affidavit of consent,
attached to the petition as Annex "B" and expressly made an integral
part thereof, shows that he himself actually joined his wife in adopting
the child. The pertinent parts of his written consent read as follows:
xxx xxx xxx
2. That my wife, ZENAIDA O. CORTEZA BOBILES and I mutually
desire to adopt as our child, a boy named JASON CONDAT, still a
minor being six (6) years old, likewise residing at 18 C. Imperial
Street, Legaspi City, Albay, also in the Philippines;
3. That we are filing the corresponding Petition for Adoption of
said minor child, JASON CONDAT, before the Juvenile and
Domestic Relations court, now the Regional Trial Court in Legaspi
City, Albay in the Philippines;
4. That I, Dioscoro C. Bobiles as the husband and father, am
giving my lawful consent to this adoption of said minor child,
JASON CONDAT;
5. That further, my wife ZENAIDA O. CORTEZA BOBILES, and I
have continuously reared and cared for this minor child, JASON
CONDAT since birth;
 6. That as a result thereof, my wife and I have developed a kind
of maternal and paternal love for the boy as our very own,
exercising therein the care, concern and diligence of a good father
toward him;
7. That I am executing this document, an AFFIDAVIT OF CONSENT
for whatever it is worth in the premises as to the matter of
adoption of this minor child, JASON CONDAT, by my wife ZENAIDA
O. CORTEZA BOBILES and by me, DIOSCORO C. BOBILES, in any
court of justice; (Emphasis supplied.) 18
xxx xxx xxx
The foregoing declarations, and his subsequent confirmatory
testimony in open court, are sufficient to make him a co-petitioner.
Under the circumstances then obtaining, and by reason of his foreign
residence, he must have yielded to the legal advice that an affidavit
of consent on his part sufficed to make him a party to the petition.
This is evident from the text of his affidavit. Punctiliousness in
language and pedantry in the formal requirements should yield to and
be eschewed in the higher considerations of substantial justice. The
future of an innocent child must not be compromised by arbitrary
insistence of rigid adherence to procedural rules on the form of
pleadings.
We see no reason why the following doctrines in American law should
not apply to this case and, for that matter, in our jurisdiction. It is a
settled rule therein that adoption statutes, as well as matters of
procedure leading up to adoption, should be liberally construed to
carry out the beneficent purposes of the adoption institution and to
protect the adopted child in the rights and privileges coming to it as
a result of the adoption. 19 The modern tendency of the courts is to
hold that there need not be more than a substantial compliance with
statutory requirements to sustain the validity of the proceeding; to
refuse would be to indulge in such a narrow and technical construction
of the statute as to defeat its intention and beneficial results or to
invalidate proceedings where every material requirement of the
statute was complied with.
In support of this rule it is said that it is not the duty of the courts to
bring the judicial microscope to bear upon the case in order that every
slight defect may be enlarged and magnified so that a reason may be
found for declaring invalid an act consummated years before, but
rather to approach the case with the inclination to uphold such acts if
it is found that there was a substantial compliance with the
statute. 20 The technical rules of pleading should not be stringently
applied to adoption proceedings, and it is deemed more important
that the petition should contain facts relating to the child and its
parents, which may give information to those interested, than that it
should be formally correct as a pleading. Accordingly, it is generally
held that a petition will confer jurisdiction if it substantially complies
with the adoption statute, alleging all facts necessary to give the court
jurisdiction. 21
In determining whether or not to set aside the decree of adoption the
interests and welfare of the child are of primary and paramount
consideration. 22 The welfare of a child is of paramount consideration
in proceedings involving its custody and the propriety of its adoption
by another, and the courts to which the application for adoption is
made is charged with the duty of protecting the child and its interests
and, to bring those interests fully before it, it has authority to make
rules to accomplish that end. 23 Ordinarily, the approval of the
adoption rests in the sound discretion of the court. This discretion
should be exercised in accordance with the best interests of the child,
as long as the natural rights of the parents over the child are not
disregarded. In the absence of a showing of grave abuse, the exercise
of this discretion by the approving official will not be disturbed. 24
In the case at bar, the rights concomitant to and conferred by the SO ORDERED.
decree of adoption will be for the best interests of the child. His
adoption is with the consent of his natural parents. 25 The
representative of the Department of Social Welfare and Development
unqualifiedly recommended the approval of the petition for
adoption 26 and the trial court dispensed with the trial custody for
several commendatory reasons, especially since the child had been
living with the adopting parents since infancy. 27 Further, the said
petition was with the sworn written consent of the children of the
adopters.

The trial court and respondent court acted correctly in granting the
petition for adoption and we find no reason to disturb the same. As
found and aptly stated by respondent court: "Given the facts and
circumstances of the case and considered in the light of the foregoing
doctrine, 28 We are of the opinion and so hold that the decree of
adoption issued by the court a quo would go a long way towards
promoting the welfare of the child and the enhancement of his
opportunities for a useful and happy life." 29

Adoption statutes, being humane and salutary, hold the interests and
welfare of the child to be of paramount consideration. They are
designed to provide homes, parental care and education for
unfortunate, needy or orphaned children and give them the protection
of society and family in the person of the adopted, as well as to allow
childless couples or persons to experience the joys of parenthood and
give them legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every reasonable
intendment should be sustained to promote and fulfill these noble and
compassionate objectives of the law. 30

WHEREFORE, the instant petition is hereby DENIED.

 THIRD DIVISION
G.R. No. L-48762 September 12, 1988
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. SEGUNDO M. ZOSA, Judge of the Court of Firt Instance of
Samar, Catbalogan, Samar, Branch I, and LEE KING
SING, respondents.
BIDIN, J.:
The Republic of the Philippines appealed from the order dated July 20,
1978 of the former Court of First Instance of Samar granting the
petition of respondent Lee King Sing for change of his name to Antonio
C. Lee and ordering the civil registrar of Samar to enter in the civil
registry record the said name.
The facts of the case are as follows:
On February 10, 1977, respondent Lee King Sing filed a petition with
the CFI of Samar for change of name. For clarity, the said petition
docketed as Special Proceeding No. 5634 is reproduced herein as
follows:
IN RE: PETITION FOR CHANGE OF NAME , SPEC PROC. NO. 5634
LEE KING SING,
Petitioners
PETITION
COMES, the Petitioner through the undersigned counsel and to
this Honorable Court, most respectfully states:
1. That the petitioner is a bona fide resident of Catbalogan, Samar
for at least three years prior to the filing of this petition since his
birth on January 3, 1934 to the present continuously;
2. That the petitioner is a naturalized Filipino citizen per Certificate
of Naturalization No. 007217 (Pet No. 001844-A) issued by the
Special Committee on Naturalization on December 20,1976
pursuant to Presidential Decree No. 1055, after taking his Oath of
Allegiance on December 15, 1976 and it is his desire to be known
with a Filipino name inasmuch as his associates, friends and all
other persons with which he is dealing are Filipinos and petitioner
is known to them and they call him Antonio or Tony;
3. That he desires that his present name be changed to ANTONIO
C. LEE. The Lee appearing in his present name is in fact his
surname but in the Chinese way of writing the name, the surname
is stated first; hence, his desire to have ANTONIO as his first
name, C. in the first letter of his mother' surname and LEE his
present surname which he desires to be written after his first
name as it is the Filipino way. The name he now asked for is
ANTONIO C. LEE.
WHEREFORE, it is most respectfully prayed that after due
publication and hearing, the Honorable Court issues an order
changing the name of the petitioner LEE KING SING to ANTONIO
C. LEE.
Catbalogan, Samar, February 10, 1977.
(SGD) LOPE C. QUIMBO
Counsel for the Petitioner (pp. 47-48, Rollo).
On February 15, 1917, the lower court issued an order setting the
petition for hearing. Said order was subsequently published in the
Leyte Forum on February 22, March 1, and March 3,1977.
On March 18, 1977, herein petitioner through the Solicitor General
filed a motion to dismiss the petition on the ground that the name
sought to be adopted by respondent and other names by which he is
known are not indicated or included in the title of the petition. On
December 10, 1977, respondent filed an opposition to the motion to
dismiss. On March 8, 1978, the lower court denied the aforesaid
motion.
After trial and hearing, the court a quo on July 20, 1978, as already
stated, granted the petition; hence, the instant appeal, petitioner
raising a lone assignment of error:
THAT RESPONDENT JUDGE OF THE COURT OF FIRST INSTANCE
OF SAMAR ERRED IN TAKING COGNIZANCE OF THE PETITION
FOR CHANGE OF NAME DESPITE SUBSTANTIAL DEFECT IN THE
PETITION AND PUBLICATION OF THE NOTICE OF HEARING. (p.
84, Rollo).
The proceeding for a change of name is a proceeding in rem.
Jurisdiction to hear and determine the petition for change of name is
acquired after due publication of the order containing certain data,
among which is the name sought to be adopted, a matter which
should be indicated in the title of the petition [Pabellar vs. Republic,
70 SCRA 16 (1976); Gil Go vs. Republic, 77 SCRA 65 (1977)]
In a petition for change of name the title of the petition should include
(1) the applicant's real name, (2) his aliases or other names, if any,
and (3) the name sought to be adopted even if these data are found
in the body of the petition. For the Publication to be valid and
effective, the published order should reproduce the title of the petition
containing the data already stated and should contain correct
information as to (1) the name or names of the applicant; (2) the
cause for the changed name, and (3) the new name asked for
(Republic vs. Lee Wai Lam, 28 SCRA 1043 (1969) Republic vs.
Tanada, 42 SCRA 419 (1971); Republic vs. Reyes, 45 SCRA 570
(1972); Secan Kok vs. Republic, 52 SCRA 322 (1973).
In the present case, the petition itself, as well as the order published,
carries the following title "In Re: Petition for Change of Name Lee King
Sing, Petitioner." It does not contain the name (Antonio C. Lee)
sought to be adopted and the names by which petitioner was known
to his friends and associates. The title should have read "In the Matter
of the Change of Name of Lee King Sing, otherwise known as Antonio
or Tony to Antonio C. Lee, Lee King Sing, Petitioner." The petition
does not indicate in its title or caption that herein respondent desires
to change his name to Antonio C. Lee. The published order setting his
petition for hearing reproduced that defective title. The failure to
include the name sought to be adopted in the title of the petition nor
in the title or caption of the notices published in the newspapers
renders the trial court without jurisdiction to hear and determine the
petition [Republic vs. Reyes, (supra)].
The reason for the rule requiring the inclusion of the name sought to
be adopted by and the other names or aliases of the applicant in the
title of the petition or in the caption of the published order is that the
ordinary reader only glances fleetingly at the caption of the published
order or the title of the petition in a special proceeding. Only if the
caption or the title strikes him does he proceed to read the contents
of the order. And the probability is great that he does not at all notice
the other names or aliases of the applicant if these are mentioned
only in the body of the order or petition. The non-inclusion of all the
names or aliases of the applicant in the caption of the order or in the
title of the petition defeats the very purpose of the required
publication (Go vs. Republic, (supra); Telmo vs. Republic, 73 SCRA
29 [1976]).

Considering that the title of the petition in this case and the order
setting it for hearing are defective as indicated above, the lower court
did not acquire jurisdiction over the proceeding (Jesus Ng Yao Siong
vs. Republic, 16 SCRA 483 [1966]); Go Chin Beng vs. Republic, 46
SCRA 617 [1972]). Its dismissal is in order.

WHEREFORE, the lower court's order under appeal is Reversed and

the petition for change of name is Denied. No costs. SO ORDERED.
 SECOND DIVISION
G.R. No. 159966. March 30, 2005
IN RE: PETITION FOR CHANGE OF NAME AND/OR
CORRECTION/CANCELLATION OF ENTRY IN CIVIL REGISTRY
OF JULIAN LIN CARULASAN WANG also known as JULIAN LIN
WANG, to be amended/corrected as JULIAN LIN WANG,
JULIAN LIN WANG, duly represented by his mother ANNA LISA
WANG, Petitioners,
vs.
CEBU CITY CIVIL REGISTRAR, duly represented by the
Registrar OSCAR B. MOLO, Respondents.
TINGA, J.:
“I will not blot out his name out of the book of life.” Revelation 3:5
On 22 September 2002, petitioner Julian Lin Carulasan Wang, a
minor, represented by his mother Anna Lisa Wang, filed a petition
dated 19 September 2002 for change of name and/or
correction/cancellation of entry in the Civil Registry of Julian Lin
Carulasan Wang. Petitioner sought to drop his middle name and have
his registered name changed from Julian Lin Carulasan Wang to Julian
Lin Wang.
The petition was docketed as Special Proceedings Case No. 11458 CEB
and raffled to the Regional Trial Court (RTC) of Cebu City, Branch 57.
The RTC established the following facts:
Julian Lin Carulasan Wang was born in Cebu City on February 20,
1998 to parents Anna Lisa Wang and Sing-Foe Wang who were then
not yet married to each other. When his parents subsequently got
married on September 22, 1998, ...they executed a deed of
legitimation of their son so that the child’s name was changed from
Julian Lin Carulasan to Julian Lin Carulasan Wang….
The parents of Julian Lin Carulasan Wang plan to stay in Singapore
for a long time because they will let him study there together with his
sister named Wang Mei Jasmine who was born in Singapore…. Since
in Singapore middle names or the maiden surname of the mother are
not carried in a person’s name, they anticipate that Julian Lin
Carulasan Wang will be discriminated against because of his current
registered name which carries a middle name. Julian and his sister
might also be asking whether they are brother and sister since they
have different surnames. Carulasan sounds funny in Singapore’s
Mandarin language since they do not have the letter "R" but if there
is, they pronounce it as "L." It is for these reasons that the name of
Julian Lin Carulasan Wang is requested to be changed to Julian Lin
Wang.1
On 30 April 2003, the RTC rendered a decision denying the
petition.2 The trial court found that the reason given for the change
of name sought in the petition—that is, that petitioner Julian may be
discriminated against when studies in Singapore because of his middle
name—did not fall within the grounds recognized by law. The trial
court ruled that the change sought is merely for the convenience of
the child. Since the State has an interest in the name of a person,
names cannot be changed to suit the convenience of the bearers.
Under Article 174 of the Family Code, legitimate children have the
right to bear the surnames of the father and the mother, and there is
no reason why this right should now be taken from petitioner Julian,
considering that he is still a minor. The trial court added that when
petitioner Julian reaches the age of majority, he could then decide
whether he will change his name by dropping his middle name.3
Petitioner filed a motion for reconsideration of the decision but this
was denied in a resolution dated 20 May 2004.4The trial court
maintained that the Singaporean practice of not carrying a middle
name does not justify the dropping of the middle name of a legitimate
Filipino child who intends to study there. The dropping of the middle
name would be tantamount to giving due recognition to or application
of the laws of Singapore instead of Philippine law which is controlling.
That the change of name would not prejudice public interest or would
not be for a fraudulent purpose would not suffice to grant the petition
if the reason for the change of name is itself not reasonable.5
Petitioner then filed this Petition for Review on Certiorari (Under Rule
45)6 arguing that the trial court has decided a question of substance
not theretofore determined by the Court, that is: whether or not
dropping the middle name of a minor child is contrary to Article
1747 of the Family Code. Petitioner contends that "[W]ith globalization
and mixed marriages, there is a need for the Supreme Court to rule
on the matter of dropping of family name for a child to adjust to his
new environment, for consistency and harmony among siblings,
taking into consideration the "best interest of the child."8 It is argued
that convenience of the child is a valid reason for changing the name
as long as it will not prejudice the State and others. Petitioner points
out that the middle name "Carulasan" will cause him undue
embarrassment and the difficulty in writing or pronouncing it will be
an obstacle to his social acceptance and integration in the
Singaporean community. Petitioner also alleges that it is error for the
trial court to have denied the petition for change of name until he had
reached the age of majority for him to decide the name to use,
contrary to previous cases9 decided by this Court that allowed a minor
to petition for change of name.10
The Court required the Office of the Solicitor General (OSG) to
comment on the petition. The OSG filed its Comment11 positing that
the trial court correctly denied the petition for change of name. The
OSG argues that under Article 174 of the Family Code, legitimate
children have the right to bear the surnames of their father and
mother, and such right cannot be denied by the mere expedient of
dropping the same. According to the OSG, there is also no showing
that the dropping of the middle name "Carulasan" is in the best
interest of petitioner, since mere convenience is not sufficient to
support a petition for change of name and/or cancellation of
entry.12 The OSG also adds that the petitioner has not shown any
compelling reason to justify the change of name or the dropping of
the middle name, for that matter. Petitioner’s allegation that the
continued use of the middle name may result in confusion and
difficulty is allegedly more imaginary than real. The OSG reiterates its
argument raised before the trial court that the dropping of the child’s
middle name could only trigger much deeper inquiries regarding the
true parentage of petitioner. Hence, while petitioner Julian has a sister
named Jasmine Wei Wang, there is no confusion since both use the
surname of their father, Wang. Even assuming that it is customary in
Singapore to drop the middle name, it has also not been shown that
the use of such middle name is actually proscribed by Singaporean
law.13
We affirm the decision of the trial court. The petition should be denied.
The Court has had occasion to express the view that the State has an
interest in the names borne by individuals and entities for purposes
of identification, and that a change of name is a privilege and not a
right, so that before a person can be authorized to change his name
given him either in his certificate of birth or civil registry, he must
show proper or reasonable cause, or any compelling reason which
may justify such change. Otherwise, the request should be denied.14
The touchstone for the grant of a change of name is that there be
‘proper and reasonable cause’ for which the change is sought.15 To
justify a request for change of name, petitioner must show not only
some proper or compelling reason therefore but also that he will be
prejudiced by the use of his true and official name. Among the
grounds for change of name which have been held valid are: (a) when
the name is ridiculous, dishonorable or extremely difficult to write or
pronounce; (b) when the change results as a legal consequence, as
in legitimation; (c) when the change will avoid confusion; (d) when
one has continuously used and been known since childhood by a
Filipino name, and was unaware of alien parentage; (e) a sincere
desire to adopt a Filipino name to erase signs of former alienage, all
in good faith and without prejudicing anybody; and (f) when the
surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose or that the
change of name would prejudice public interest.16
In granting or denying petitions for change of name, the question of
proper and reasonable cause is left to the sound discretion of the
court. The evidence presented need only be satisfactory to the court
and not all the best evidence available. What is involved is not a mere
matter of allowance or disallowance of the request, but a judicious
evaluation of the sufficiency and propriety of the justifications
advanced in support thereof, mindful of the consequent results in the
event of its grant and with the sole prerogative for making such
determination being lodged in the courts.17
The petition before us is unlike other petitions for change of name, as
it does not simply seek to change the name of the minor petitioner
and adopt another, but instead seeks to drop the middle name
altogether. Decided cases in this jurisdiction involving petitions for
change of name usually deal with requests for change of surname.
There are only a handful of cases involving requests for change of the
given name18 and none on requests for changing or dropping of the
middle name. Does the law allow one to drop the middle name from
his registered name? We have to answer in the negative.
A discussion on the legal significance of a person’s name is relevant
at this point. We quote, thus:
…For all practical and legal purposes, a man's name is the designation
by which he is known and called in the community in which he lives
and is best known. It is defined as the word or combination of words
by which a person is distinguished from other individuals and, also,
as the label or appellation which he bears for the convenience of the
world at large addressing him, or in speaking of or dealing with him.
Names are used merely as one method of indicating the identity of
persons; they are descriptive of persons for identification, since, the
identity is the essential thing and it has frequently been held that,
when identity is certain, a variance in, or misspelling of, the name is
immaterial.
The names of individuals usually have two parts: the given name or
proper name, and the surname or family name. The given or proper
name is that which is given to the individual at birth or baptism, to
distinguish him from other individuals. The name or family name is
that which identifies the family to which he belongs and is continued
from parent to child. The given name may be freely selected by the
parents for the child; but the surname to which the child is entitled is
fixed by law.
A name is said to have the following characteristics: (1) It is absolute,
intended to protect the individual from being confused with others.
(2) It is obligatory in certain respects, for nobody can be without a
name. (3) It is fixed, unchangeable, or immutable, at least at the
start, and may be changed only for good cause and by judicial
proceedings. (4) It is outside the commerce of man, and, therefore,
inalienable and intransmissible by act inter vivos or mortis causa. (5)
It is imprescriptible.19
This citation does not make any reference to middle names, but this
does not mean that middle names have no practical or legal
significance. Middle names serve to identify the maternal lineage or
filiation of a person as well as further distinguish him from others who
may have the same given name and surname as he has.
Our laws on the use of surnames state that legitimate and legitimated
children shall principally use the surname of the father.20 The Family
Code gives legitimate children the right to bear the surnames of the
father and the mother,21 while illegitimate children shall use the
surname of their mother, unless their father recognizes their filiation,
in which case they may bear the father’s surname.22
Applying these laws, an illegitimate child whose filiation is not
recognized by the father bears only a given name and his mother’s
surname, and does not have a middle name. The name of the
unrecognized illegitimate child therefore identifies him as such. It is
only when the illegitimate child is legitimated by the subsequent
marriage of his parents or acknowledged by the father in a public
document or private handwritten instrument that he bears both his
mother’s surname as his middle name and his father’s surname as his
surname, reflecting his status as a legitimated child or an
acknowledged illegitimate child.
Accordingly, the registration in the civil registry of the birth of such
individuals requires that the middle name be indicated in the
certificate. The registered name of a legitimate, legitimated and
recognized illegitimate child thus contains a given or proper name, a
middle name, and a surname.
Petitioner theorizes that it would be for his best interest to drop his
middle name as this would help him to adjust more easily to and
integrate himself into Singaporean society. In support, he cites Oshita
v. Republic23 and Calderon v. Republic,24 which, however, are not
apropos both.
In Oshita, the petitioner therein, a legitimate daughter of a Filipino
mother, Buena Bartolome, and a Japanese father, Kishimatsu Oshita,
sought to change her name from Antonina B. Oshita to Antonina
Bartolome. The Court granted her petition based on the following
considerations: she had elected Philippine citizenship upon reaching
the age of majority; her other siblings who had also elected Philippine
citizenship have been using their mother’s surname; she was
embarrassed to bear a Japanese surname there still being ill feeling
against the Japanese due to the last World War; and there was no
showing that the change of name was motivated by a fraudulent
purpose or that it will prejudice public interest.
In Calderon, the Court allowed petitioner Gertrudes Josefina del
Prado, an illegitimate minor child acting through her mother who filed
the petition in her behalf, to change her name to Gertudes Josefina
Calderon, taking the surname of her stepfather, Romeo C. Calderon,
her mother’s husband. The Court held that a petition for change of
name of an infant should be granted where to do is clearly for the best
interest of the child. The Court took into consideration the opportunity
provided for the minor petitioner to eliminate the stigma of
illegitimacy which she would carry if she continued to use the surname
of her illegitimate father. The Court pronounced that justice dictates
that every person be allowed to avail of any opportunity to improve
his social standing as long as doing so he does not cause prejudice or
injury to the interests of the State or of other people.
Petitioner cites Alfon v. Republic,25 in arguing that although Article
174 of the Family Code gives the legitimate child the right to use the
surnames of the father and the mother, it is not mandatory such that
the child could use only one family name, even the family name of
the mother. In Alfon, the petitioner therein, the legitimate daughter
of Filomeno Duterte and Estrella Alfon, sought to change her name
from Maria Estrella Veronica Primitiva Duterte (her name as registered
in the Local Civil Registry) to Estrella S. Alfon (the name she had been
using since childhood, in her school records and in her voter’s
registration). The trial court denied her petition but this Court
overturned the denial, ruling that while Article 364 of the Civil Code
states that she, as a legitimate child, should principally use the
surname of her father, there is no legal obstacle for her to choose to
use the surname of her mother to which she is entitled. In addition,
the Court found that there was ample justification to grant her
petition, i.e., to avoid confusion.
Weighing petitioner’s reason of convenience for the change of his
name against the standards set in the cases he cites to support his
contention would show that his justification is amorphous, to say the
least, and could not warrant favorable action on his petition.
The factual antecedents and unique circumstances of the cited cases
are not at all analogous to the case at bar. The instant case is clearly
distinguishable from the cases of Oshita and Alfon, where the
petitioners were already of age when they filed their petitions for
change of name. Being of age, they are considered to have exercised
their discretion and judgment, fully knowing the effects of their
decision to change their surnames. It can also be unmistakably
observed that the reason for the grant of the petitions for change of
name in these two cases was the presence of reasonable or
compelling grounds therefore. The Court, in Oshita, recognized the
tangible animosity most Filipinos had during that time against the
Japanese as a result of World War II, in addition to the fact of therein
petitioner’s election of Philippine citizenship. In Alfon, the Court
granted the petition since the petitioner had been known since
childhood by a name different from her registered name and she had
not used her registered name in her school records and voter’s
registration records; thus, denying the petition would only result to
confusion.
Calderon, on the other hand, granted the petition for change of name
filed by a mother in behalf of her illegitimate minor child. Petitioner
cites this case to buttress his argument that he does not have to reach
the age of majority to petition for change of name. However, it is
manifest in Calderon that the Court, in granting the petition for
change of name, gave paramount consideration to the best interests
of the minor petitioner therein.
In the case at bar, the only reason advanced by petitioner for the
dropping his middle name is convenience. However, how such change
of name would make his integration into Singaporean society easier
and convenient is not clearly established. That the continued use of
his middle name would cause confusion and difficulty does not
constitute proper and reasonable cause to drop it from his registered
complete name.
In addition, petitioner is only a minor. Considering the nebulous
foundation on which his petition for change of name is based, it is best
that the matter of change of his name be left to his judgment and
discretion when he reaches the age of majority.26 As he is of tender
age, he may not yet understand and appreciate the value of the
change of his name and granting of the same at this point may just
prejudice him in his rights under our laws.
WHEREFORE, in view of the foregoing, the Petition for Review on
Certiorari is DENIED. SO ORDERED.
 FIRST DIVISION
G.R. No. L-31065 February 15, 1990
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. PIO R. MARCOS, Judge of the Court of First Instance of
Baguio and Benguet and PANG CHA QUEN representing the
minor, MAY SIA alias MANMAN HUANG, respondents.
GRIÑO-AQUINO, J.:
This is a petition for review of the order dated February 12, 1969 of
respondent Judge Pio R. Marcos of the then Court of First Instance,
now Regional Trial Court of Baguio and Benguet, granting the petition
for change of name under Rule 103 of the Rules of Court and
authorizing "the name of the minor child May Sia alias Manman
Huang, also known as Mary Pang [to] be changed to Mary Pang De la
Cruz" (p. 12, Rollo).
On March 30, 1968, a verified petition was filed by private respondent
Pang Cha Quen alleging that she is a citizen of Nationalist China,
married to Alfredo De la Cruz, a Filipino citizen; that she had resided
in Baguio City since her birth on January 29, 1930; that by a previous
marriage to Sia Bian alias Huang Tzeh Lik, a citizen of Nationalist
China, she gave birth to a daughter, May Sia alias Manman Huang on
January 28, 1958 in the City of Manila; that on January 12, 1959, she
caused her daughter to be registered as an alien under the name of
Mary Pang, i.e., using the maternal surname, because the child's
father had abandoned them; that her daughter has always used the
name Mary Pang at home and in the Baguio Chinese Patriotic School
where she studies; that on August 16, 1966, petitioner Pang Cha
Quen married Alfredo De la Cruz; that as her daughter has grown to
love and recognize her stepfather, Alfredo De la Cruz, as her own
father, she desires to adopt and use his surname "De la Cruz" in
addition to her name "Mary Pang" so that her full name shall be Mary
Pang De la Cruz; that Alfredo De la Cruz gave his conformity to the
petition by signing at the bottom of the pleading; that the petition
was not made for the purpose of concealing a crime as her ten-year
old daughter has not committed any, nor to evade the execution of a
judgment as she has never been sued in court, and the petition is not
intended to cause damage or prejudice to any third person. She
prayed that her daughter be allowed to change her name from May
Sia, alias Manman Huang, to Mary Pang De la Cruz.
On April 4, 1968, respondent Judge issued an order setting the
hearing of the petition on September 16, 1968 at 9:00 o'clock in the
morning and inviting all interested persons to appear and show cause,
if any, why the petition should not be granted. The order also directed
that it be published at the expense of the petitioner in the Baguio and
Midland Courier, a newspaper of general circulation in Baguio City and
Mountain Province, once a week for three (3) consecutive weeks, the
first publication to be made as soon as possible. The order also
commanded that the Solicitor General and the City Attorney of Baguio
be furnished copies of the order and petition.
On September 16, 1968, when the petition was called for hearing,
nobody opposed it. Upon motion of petitioner's counsel, respondent
Judge authorized the Clerk of Court or his deputy to receive the
evidence of the petitioner, Pang Cha Quen.
Finding the petition meritorious, respondent Judge issued an order on
February 12, 1969 authorizing the name of the minor, May Sia alias
Manman Huang, also known as Mary Pang, to be changed to Mary
Pang De la Cruz.
The Government, through the Solicitor General, appealed to the
Supreme Court on the ground that the court's order is contrary to law.
In its petition f•r review, the Government raised two (2) issues
namely: (1) whether or not respondent Judge had acquired
jurisdiction over the case; and (2) whether respondent Judge erred in
granting the petition although private respondent Pang Cha Quen
failed to adduce proper and reasonable cause for changing the name
of the minor "May Sia" alias Manman Huang."
On the first issue, the Government pointed out that the captions of
the petition and of the published order of the court did not include the
name "Mary Pang" as one of the names that the minor has allegedly
been using, hence, the petition and the published order contain a fatal
jurisdictional defect.
The Government's contention is well-taken. Thus did we rule in the
case of Jesus Ng Yao Siong vs. Republic, 16 SCRA 483, 487-88:
Petitioner himself admits that he is known by all these names.
This gives rise to the necessity of including his aliases in the title
of the petition not only in the body thereof.
xxx xxx xxx
We accordingly hold that for a publication of a petition for a
change of name to be valid, the title thereof should include, first,
his real name, and second, his aliases, if any
In Republic vs. Zosa, G.R. No. 48762, September 12, 1988, this Court
explained the reason for the rule requiring the inclusion of the name
sought to be adopted and the other names or aliases of the applicant
in the title of the petition, or in the caption of the published order. It
is that the ordinary reader only glances fleetingly at the caption of the
published order or the title of the petition in a special proceeding for
a change of name. Only if the caption or the title strikes him because
one or all of the names mentioned are familiar to him, does he
proceed to read the contents of the order. The probability is great that
he will not notice the other names or aliases of the applicant if they
are mentioned only in the body of the order or petition.
In the case at bar, the caption of both the verified petition dated March
30,1968, and the published order of the trial court dated April 4, 1968
read, thus:
IN RE: PETITION FOR CHANGE OF NAME OF THE MINOR MAY
SIA ALIAS MANMAN HUANG TO MARY PANG DE LA CRUZ, PANG
CHA QUEN, Petitioner. (P. 15, Rollo.)
The omission of her other alias-- "Mary Pang"-- in the captions of the
court's order and of the petition defeats the purpose of the
publication. In view of that defect, the trial court did not acquire
jurisdiction over the subject of the proceedings, i.e., the various
names and aliases of the petitioner which she wished to change to
"Mary Pang De la Cruz."
In Go Chin Beng vs. Republic, L-29574, August 18, 1972, we held
that all aliases of the applicant must be set forth in the title of the
published petition, for the omission of any of such aliases, would be
fatal to the petition even if such other aliases are mentioned in the
body of the petition.
The second ground for the Government's appeal is the failure of the
petitioner below, Pang Cha Quen, to state a proper and reasonable
cause for changing the name/names of her daughter.
The following have been considered valid grounds for a change of
name:
(1) when the name is ridiculous, dishonorable, or extremely difficult
to write or pronounce;
(2) when the change results as a legal consequence, as in
legitimation;
(3) when the change will avoid confusion (Haw Liong vs. Republic, L-
21194, April 29,1966; Chill Hap Chin vs. Republic, L-20018, April 30,
1966; Republic vs. Tanada, et al., L-31563, November 29, 1971;
Alfon vs. Republic, I,51201, May 29, 1980);
(4) having continuously used and been known since childhood by a
Filipino name, unaware of his alien parentage (Josefina Ang Chay vs.
Republic, L-28507, July 31, 1980); or
(5) a sincere desire to adopt a Filipino name to erase signs of former
alienage all in good faith and not to prejudice anybody (Uy vs.
Republic, L-22712, November 29, 1965).
As may be gleaned from the petition filed in the lower court, the
reasons offered for changing the name of petitioner's daughter are:
(1) that "her daughter grew up with, and learned to love and
recognize Alfredo de la Cruz as her own father" (p. 23, Rollo); (2) to
afford her daughter a feeling of security (pp. 23-24, Rollo); and (3)
that "Alfredo de la Cruz agrees to this petition, and has signified his
conformity at the foot of this pleading" (p. 24, Rollo).
Clearly, these are not valid reasons for a change of name. The general
rule is that a change of name should not be permitted if it will give a
false impression of family relationship to another where none actually
exists (Laperal vs. Republic, L-18008, October 30, 1962; Johnson vs.
Republic, L-18284, April 30, 1963; Moore vs. Republic, L-18407, June
26, 1963). In Padilla vs. Republic, 113 SCRA 789, we specifically held
that our laws do not authorize legitimate children to adopt the
surname of a person not their father, for to allow them to adopt the
surname of their mother's husband, who is not their father, can result
in confusion of their paternity.
Another reason for disallowing the petition for change of name is that
it was not filed by the proper party. Sections 1 and 2, Rule 103 of the
Rules of Court, provide:
SECTION 1. Venue. — A person desiring to change his name shall
present the petition to the Court of First Instance of the province
in which he resides, or, in the City of Manila, to the Juvenile and
Domestic Relations Court.
SEC. 2. Contents of petition.- A petition for change of name shall
be signed and verified by the person desiring his name changed,
or some other person on his behalf, and shall set forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3) years
prior to the date of such filing;
(b) The cause for which the change of the petitioner's name is
sought;
(c) The name asked for
Clearly, the petition for change of name must be filed by the person
desiring to change his/her name, even if it may be signed and verified
by some other person in his behalf. In this case, however, the petition
was filed by Pang Cha Quen not by May Sia.

Hence, only May Sia herself, alias Manman Huang, alias Mary Pang,
when she shall have reached the age of majority, may file the petition
to change her name. The decision to change her name, the reason for
the change, and the choice of a new name and surname shall be hers
alone to make. It must be her personal decision. No one else may
make it for her. The reason is obvious. When she grows up to
adulthood, she may not want to use her stepfather's surname, nor
any of the aliases chosen for her by her mother. In Moore vs.
Republic, 8 SCRA 282, 284, we held:

Another factor to be reckoned with is the fact that the child

concerned is still a minor who for the present cannot fathom
what would be his feeling when he comes to a mature age. Any
way, if the time comes, he may decide the matter for himself
and take such action as our law may permit. For the present we
deem the action taken by petitioner premature.

As pointed out by the Solicitor General, the State has an interest in

the name borne by each individual for purposes of identification and
the same should not be changed for trivial reasons like the instant
case (Ty vs. Republic L-18669, November 29, 1965). A change of
name is a mere privilege and not a matter of right (Ong Peng Oan vs.
Republic, L-8035, November 29, 1957; Yu vs. Republic, L- 22040,
November 29, 1965) and because the petition to change the name of
the minor May Sia is not supported by weighty reasons, the trial court
erred in granting it.

WHEREFORE, the petition for certiorari is granted, and the order

appealed from is hereby reversed and set aside. No costs. SO
ORDERED.
U.S. Supreme Court
Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)
Syllabus
The clerks of the Department of State of the United States may be
called upon to give evidence of transactions in the Department which
are not of a confidential character.
The Secretary of State cannot be called upon as a witness to state
transactions of a confidential nature which may have occurred in his
Department. But he may be called upon to give testimony of
circumstances which were not of that character.
Clerks in the Department of State were directed to be sworn, subject
to objections to questions upon confidential matters.
Some point of time must be taken when the power of the Executive
over an officer, not removable at his will, must cease. That point of
time must be when the constitutional power of appointment has been
exercised. And the power has been exercised when the last act
required from the person possessing the power has been performed.
This last act is the signature of the commission.
If the act of livery be necessary to give validity to the commission of
an officer, it has been delivered when executed, and given to the
Secretary of State for the purpose of being sealed, recorded, and
transmitted to the party.
In cases of commissions to public officers, the law orders the
Secretary of State to record them. When, therefore, they are signed
and sealed, the order for their being recorded is given, and, whether
inserted inserted into the book or not, they are recorded.
When the heads of the departments of the Government are the
political or confidential officers of the Executive, merely to execute
the will of the President, or rather to act in cases in which the
Executive possesses a constitutional or legal discretion, nothing can
be more perfectly clear than that their acts are only politically
examinable. But where a specific duty is assigned by law, and
individual rights depend upon the performance of that duty, it seems
equally clear that the individual who considers himself injured has a
right to resort to the laws of his country for a remedy.
The President of the United States, by signing the commission,
appointed Mr. Marbury a justice of the peace for the County of
Washington, in the District of Columbia, and the seal of the United
States, affixed thereto by the Secretary of State, is conclusive
testimony of the verity of the signature, and of the completion of the
appointment; and the appointment conferred on him a legal right to
the office for the space of five years. Having this legal right to the
office, he has a consequent right to the commission, a refusal to
deliver which is a plain violation of that right for which the laws of the
country afford him a remedy.
To render a mandamus a proper remedy, the officer to whom it is
directed must be one to whom, on legal principles, such writ must be
directed, and the person applying for it must be without any other
specific remedy.
Where a commission to a public officer has been made out, signed,
and sealed, and is withheld from the person entitled to it, an action of
detinue for the commission against the Secretary of State who refuses
to deliver it is not the proper remedy, as the judgment in detinue is
for the thing itself, or its value. The value of a public office, not to be
sold, is incapable of being ascertained. It is a plain case for a
mandamus, either to deliver the commission or a copy of it from the
record.
To enable the Court to issue a mandamus to compel the delivery of
the commission of a public office by the Secretary of State, it must be
shown that it is an exercise of appellate jurisdiction, or that it be
necessary to enable them to exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and
corrects the proceedings in a cause already instituted, and does not
create the cause.
The authority given to the Supreme Court by the act establishing the
judicial system of the United States to issue writs of mandamus to
public officers appears not to be warranted by the Constitution.
It is emphatically the duty of the Judicial Department to say what the
law is. Those who apply the rule to particular cases must, of necessity,
expound and interpret the rule. If two laws conflict with each other,
the Court must decide on the operation of each.
If courts are to regard the Constitution, and the Constitution is
superior to any ordinary act of the legislature, the Constitution, and
not such ordinary act, must govern the case to which they both apply.
At the December Term, 1801, William Marbury, Dennis Ramsay,
Robert Townsend Hooe, and William Harper, by their counsel,
severally moved the court for a rule to James Madison, Secretary of
State of the United States, to show cause why a mandamus should
not issue commanding him to cause to be delivered to them
respectively their several commissions as justices of the peace in the
District of Columbia. This motion was supported by affidavits of the
following facts: that notice of this motion had been given to Mr.
Madison; that Mr. Adams, the late President of the United States,
nominated the applicants to the Senate for their advice and consent
to be appointed justices of the peace of the District of Columbia; that
the Senate advised and consented to the appointments; that
commissions in due form were signed by the said President appointing
them justices, &c., and that the seal of the United States was in due
form affixed to the said commissions by the Secretary of State; that
the applicants have requested Mr. Madison to deliver them their said
commissions, who has not complied with that request; and that their
said commissions are withheld from them; that the applicants have
made application to Mr. Madison as Secretary of State of the United
States at his office, for information whether the commissions were
signed and sealed as aforesaid; that explicit and satisfactory
information has not been given in answer to that inquiry, either by
the Secretary of State or any officer in the Department of State; that
application has been made to the secretary of the Senate for a
certificate of the nomination of the applicants, and of the advice and
consent of the Senate, who has declined giving such a certificate;
whereupon a rule was made to show cause on the fourth day of this
term. This rule having been duly served, Mr. Jacob Wagner and Mr.
Daniel Brent, who had been summoned to attend the court and were
required to give evidence, objected to be sworn, alleging that they
were clerks in the Department of State, and not bound to disclose any
facts relating to the business or transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken
in writing, but informed them that, when the questions were asked,
they might state their objections to answering each particular
question, if they had any.
Mr. Lincoln, who had been the acting Secretary of State, when the
circumstances stated in the affidavits occurred, was called upon to
give testimony. He objected to answering. The questions were put in
writing.
The court said there was nothing confidential required to be disclosed.
If there had been, he was not obliged to answer it, and if he thought
anything was communicated to him confidentially, he was not bound
to disclose, nor was he obliged to state anything which would
criminate himself.
The questions argued by the counsel for the relators were, 1. Whether
the Supreme Court can award the writ of mandamus in any case. 2.
Whether it will lie to a Secretary of State, in any case whatever. 3.
Whether, in the present case, the Court may award a mandamus to
James Madison, Secretary of State.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
At the last term, on the affidavits then read and filed with the clerk,
a rule was granted in this case requiring the Secretary of State to
show cause why a mandamus should not issue directing him to deliver
to William Marbury his commission as a justice of the peace for the
county of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus.
The peculiar delicacy of this case, the novelty of some of its
circumstances, and the real difficulty attending the points which occur
in it require a complete exposition of the principles on which the
opinion to be given by the Court is founded.
These principles have been, on the side of the applicant, very ably
argued at the bar. In rendering the opinion of the Court, there will be
some departure in form, though not in substance, from the points
stated in that argument.
In the order in which the Court has viewed this subject, the following
questions have been considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of
his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this
court?
The first object of inquiry is:
1. Has the applicant a right to the commission he demands?
His right originates in an act of Congress passed in February, 1801,
concerning the District of Columbia.
After dividing the district into two counties, the eleventh section of
this law enacts,
"that there shall be appointed in and for each of the said counties such
number of discreet persons to be justices of the peace as the President
of the United States shall, from time to time, think expedient, to
continue in office for five years. "
It appears from the affidavits that, in compliance with this law, a
commission for William Marbury as a justice of peace for the County
of Washington was signed by John Adams, then President of the
United States, after which the seal of the United States was affixed to
it, but the commission has never reached the person for whom it was
made out.
In order to determine whether he is entitled to this commission, it
becomes necessary to inquire whether he has been appointed to the
office. For if he has been appointed, the law continues him in office
for five years, and he is entitled to the possession of those evidences
of office, which, being completed, became his property.
The second section of the second article of the Constitution declares,
"The President shall nominate, and, by and with the advice and
consent of the Senate, shall appoint ambassadors, other public
ministers and consuls, and all other officers of the United States,
whose appointments are not otherwise provided for."
The third section declares, that "He shall commission all the officers
of the United States."
An act of Congress directs the Secretary of State to keep the seal of
the United States,
"to make out and record, and affix the said seal to all civil
commissions to officers of the United States to be appointed by the
President, by and with the consent of the Senate, or by the President
alone; provided that the said seal shall not be affixed to any
commission before the same shall have been signed by the President
of the United States."
These are the clauses of the Constitution and laws of the United States
which affect this part of the case. They seem to contemplate three
distinct operations:
1. The nomination. This is the sole act of the President, and is
completely voluntary.
2. The appointment. This is also the act of the President, and is also
a voluntary act, though it can only be performed by and with the
advice and consent of the Senate.
3. The commission. To grant a commission to a person appointed
might perhaps be deemed a duty enjoined by the Constitution. "He
shall," says that instrument, "commission all the officers of the United
States."
The acts of appointing to office and commissioning the person
appointed can scarcely be considered as one and the same, since the
power to perform them is given in two separate and distinct sections
of the Constitution. The distinction between the appointment and the
commission will be rendered more apparent by adverting to that
provision in the second section of the second article of the Constitution
which authorises Congress
"to vest by law the appointment of such inferior officers as
they think proper in the President alone, in the Courts of law,
or in the heads of departments;"
thus contemplating cases where the law may direct the President to
commission an officer appointed by the Courts or by the heads of
departments. In such a case, to issue a commission would be
apparently a duty distinct from the appointment, the performance of
which perhaps could not legally be refused.
Although that clause of the Constitution which requires the President
to commission all the officers of the United States may never have
been applied to officers appointed otherwise than by himself, yet it
would be difficult to deny the legislative power to apply it to such
cases. Of consequence, the constitutional distinction between the
appointment to an office and the commission of an officer who has
been appointed remains the same as if in practice the President had
commissioned officers appointed by an authority other than his own.
It follows too from the existence of this distinction that, if an
appointment was to be evidenced by any public act other than the
commission, the performance of such public act would create the
officer, and if he was not removable at the will of the President, would
either give him a right to his commission or enable him to perform
the duties without it.
These observations are premised solely for the purpose of rendering
more intelligible those which apply more directly to the particular case
under consideration.
This is an appointment made by the President, by and with the advice
and consent of the Senate, and is evidenced by no act but the
commission itself. In such a case, therefore, the commission and the
appointment seem inseparable, it being almost impossible to show an
appointment otherwise than by proving the existence of a
commission; still, the commission is not necessarily the appointment;
though conclusive evidence of it.
But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment,
being the sole act of the President, must be completely evidenced
when it is shown that he has done everything to be performed by him.
Should the commission, instead of being evidence of an appointment,
even be considered as constituting the appointment itself, still it would
be made when the last act to be done by the President was performed,
or, at furthest, when the commission was complete.
The last act to be done by the President is the signature of the
commission. He has then acted on the advice and consent of the
Senate to his own nomination. The time for deliberation has then
passed. He has decided. His judgment, on the advice and consent of
the Senate concurring with his nomination, has been made, and the
officer is appointed. This appointment is evidenced by an open,
unequivocal act, and, being the last act required from the person
making it, necessarily excludes the idea of its being, so far as it
respects the appointment, an inchoate and incomplete transaction.
Some point of time must be taken when the power of the Executive
over an officer, not removable at his will, must cease. That point of
time must be when the constitutional power of appointment has been
exercised. And this power has been exercised when the last act
required from the person possessing the power has been performed.
This last act is the signature of the commission. This idea seems to
have prevailed with the Legislature when the act passed converting
the Department of Foreign Affairs into the Department of State. By
that act, it is enacted that the Secretary of State shall keep the seal
of the United States,
"and shall make out and record, and shall affix the said seal to all civil
commissions to officers of the United States, to be appointed by the
President: . . . provided that the said seal shall not be affixed to any
commission before the same shall have been signed by the President
of the United States, nor to any other instrument or act without the
special warrant of the President therefor."
The signature is a warrant for affixing the great seal to the
commission, and the great seal is only to be affixed to an instrument
which is complete. It attests, by an act supposed to be of public
notoriety, the verity of the Presidential signature.
It is never to be affixed till the commission is signed, because the
signature, which gives force and effect to the commission, is
conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the Secretary
of State is prescribed by law, and not to be guided by the will of the
President. He is to affix the seal of the United States to the
commission, and is to record it.
This is not a proceeding which may be varied if the judgment of the
Executive shall suggest one more eligible, but is a precise course
accurately marked out by law, and is to be strictly pursued. It is the
duty of the Secretary of State to conform to the law, and in this he is
an officer of the United States, bound to obey the laws. He acts, in
this respect, as has been very properly stated at the bar, under the
authority of law, and not by the instructions of the President. It is a
ministerial act which the law enjoins on a particular officer for a
particular purpose.
If it should be supposed that the solemnity of affixing the seal is
necessary not only to the validity of the commission, but even to the
completion of an appointment, still, when the seal is affixed, the
appointment is made, and the commission is valid. No other solemnity
is required by law; no other act is to be performed on the part of
government. All that the Executive can do to invest the person with
his office is done, and unless the appointment be then made, the
Executive cannot make one without the cooperation of others.
After searching anxiously for the principles on which a contrary
opinion may be supported, none has been found which appear of
sufficient force to maintain the opposite doctrine.
Such as the imagination of the Court could suggest have been very
deliberately examined, and after allowing them all the weight which it
appears possible to give them, they do not shake the opinion which
has been formed.
In considering this question, it has been conjectured that the
commission may have been assimilated to a deed to the validity of
which delivery is essential.
This idea is founded on the supposition that the commission is not
merely evidence of an appointment, but is itself the actual
appointment -- a supposition by no means unquestionable. But, for
the purpose of examining this objection fairly, let it be conceded that
the principle claimed for its support is established.
The appointment being, under the Constitution, to be made by the
President personally, the delivery of the deed of appointment, if
necessary to its completion, must be made by the President also. It
is not necessary that the livery should be made personally to the
grantee of the office; it never is so made. The law would seem to
contemplate that it should be made to the Secretary of State, since it
directs the secretary to affix the seal to the commission after it shall
have been signed by the President. If then the act of livery be
necessary to give validity to the commission, it has been delivered
when executed and given to the Secretary for the purpose of being
sealed, recorded, and transmitted to the party.
But in all cases of letters patent, certain solemnities are required by
law, which solemnities are the evidences of the validity of the
instrument. A formal delivery to the person is not among them. In
cases of commissions, the sign manual of the President and the seal
of the United States are those solemnities. This objection therefore
does not touch the case.
It has also occurred as possible, and barely possible, that the
transmission of the commission and the acceptance thereof might be
deemed necessary to complete the right of the plaintiff.
The transmission of the commission is a practice directed by
convenience, but not by law. It cannot therefore be necessary to
constitute the appointment, which must precede it and which is the
mere act of the President. If the Executive required that every person
appointed to an office should himself take means to procure his
commission, the appointment would not be the less valid on that
account. The appointment is the sole act of the President; the
transmission of the commission is the sole act of the officer to whom
that duty is assigned, and may be accelerated or retarded by
circumstances which can have no influence on the appointment. A
commission is transmitted to a person already appointed, not to a
person to be appointed or not, as the letter enclosing the commission
should happen to get into the post office and reach him in safety, or
to miscarry.
It may have some tendency to elucidate this point to inquire whether
the possession of the original commission be indispensably necessary
to authorize a person appointed to any office to perform the duties of
that office. If it was necessary, then a loss of the commission would
lose the office. Not only negligence, but accident or fraud, fire or theft
might deprive an individual of his office. In such a case, I presume it
could not be doubted but that a copy from the record of the Office of
the Secretary of State would be, to every intent and purpose, equal
to the original. The act of Congress has expressly made it so. To give
that copy validity, it would not be necessary to prove that the original
had been transmitted and afterwards lost. The copy would be
complete evidence that the original had existed, and that the
appointment had been made, but not that the original had been
transmitted. If indeed it should appear that the original had been
mislaid in the Office of State, that circumstance would not affect the
operation of the copy. When all the requisites have been performed
which authorize a recording officer to record any instrument
whatever, and the order for that purpose has been given, the
instrument is in law considered as recorded, although the manual
labour of inserting it in a book kept for that purpose may not have
been performed.
In the case of commissions, the law orders the Secretary of State to
record them. When, therefore, they are signed and sealed, the order
for their being recorded is given, and, whether inserted in the book or
not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to
be paid by a person requiring a copy are ascertained by law. Can a
keeper of a public record erase therefrom a commission which has
been recorded? Or can he refuse a copy thereof to a person
demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of
peace to proceed in the performance of his duty, because it would,
equally with the original, attest his appointment.
If the transmission of a commission be not considered as necessary
to give validity to an appointment, still less is its acceptance. The
appointment is the sole act of the President; the acceptance is the
sole act of the officer, and is, in plain common sense, posterior to the
appointment. As he may resign, so may he refuse to accept; but
neither the one nor the other is capable of rendering the appointment
a nonentity.
That this is the understanding of the government is apparent from the
whole tenor of its conduct.
A commission bears date, and the salary of the officer commences
from his appointment, not from the transmission or acceptance of his
commission. When a person appointed to any office refuses to accept
that office, the successor is nominated in the place of the person who
has declined to accept, and not in the place of the person who had
been previously in office and had created the original vacancy.
It is therefore decidedly the opinion of the Court that, when a
commission has been signed by the President, the appointment is
made, and that the commission is complete when the seal of the
United States has been affixed to it by the Secretary of State.
Where an officer is removable at the will of the Executive, the
circumstance which completes his appointment is of no concern,
because the act is at any time revocable, and the commission may be
arrested if still in the office. But when the officer is not removable at
the will of the Executive, the appointment is not revocable, and cannot
be annulled. It has conferred legal rights which cannot be resumed.
The discretion of the Executive is to be exercised until the
appointment has been made. But having once made the appointment,
his power over the office is terminated in all cases, where by law the
officer is not removable by him. The right to the office is then in the
person appointed, and he has the absolute, unconditional power of
accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President
and sealed by the Secretary of State, was appointed, and as the law
creating the office gave the officer a right to hold for five years
independent of the Executive, the appointment was not revocable, but
vested in the officer legal rights which are protected by the laws of
his country.
To withhold the commission, therefore, is an act deemed by the Court
not warranted by law, but violative of a vested legal right.
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of
his country afford him a remedy?
The very essence of civil liberty certainly consists in the right of every
individual to claim the protection of the laws whenever he receives an
injury. One of the first duties of government is to afford that
protection. In Great Britain, the King himself is sued in the respectful
form of a petition, and he never fails to comply with the judgment of
his court.
In the third volume of his Commentaries, page 23, Blackstone states
two cases in which a remedy is afforded by mere operation of law.
"In all other cases," he says,
"it is a general and indisputable rule that where there is a legal right,
there is also a legal remedy by suit or action at law whenever that
right is invaded."
And afterwards, page 109 of the same volume, he says,
"I am next to consider such injuries as are cognizable by the Courts
of common law. And herein I shall for the present only remark that
all possible injuries whatsoever that did not fall within the exclusive
cognizance of either the ecclesiastical, military, or maritime tribunals
are, for that very reason, within the cognizance of the common law
courts of justice, for it is a settled and invariable principle in the laws
of England that every right, when withheld, must have a remedy, and
every injury its proper redress."
The Government of the United States has been emphatically termed
a government of laws, and not of men. It will certainly cease to
deserve this high appellation if the laws furnish no remedy for the
violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it
must arise from the peculiar character of the case.
It behooves us, then, to inquire whether there be in its composition
any ingredient which shall exempt from legal investigation or exclude
the injured party from legal redress. In pursuing this inquiry, the first
question which presents itself is whether this can be arranged with
that class of cases which come under the description of damnum
absque injuria -- a loss without an injury.
This description of cases never has been considered, and, it is
believed, never can be considered, as comprehending offices of trust,
of honour or of profit. The office of justice of peace in the District of
Columbia is such an office; it is therefore worthy of the attention and
guardianship of the laws. It has received that attention and
guardianship. It has been created by special act of Congress, and has
been secured, so far as the laws can give security to the person
appointed to fill it, for five years. It is not then on account of the
worthlessness of the thing pursued that the injured party can be
alleged to be without remedy.
Is it in the nature of the transaction? Is the act of delivering or
withholding a commission to be considered as a mere political act
belonging to the Executive department alone, for the performance of
which entire confidence is placed by our Constitution in the Supreme
Executive, and for any misconduct respecting which the injured
individual has no remedy?
That there may be such cases is not to be questioned. but that every
act of duty to be performed in any of the great departments of
government constitutes such a case is not to be admitted.
By the act concerning invalids, passed in June, 1794, the Secretary at
War is ordered to place on the pension list all persons whose names
are contained in a report previously made by him to Congress. If he
should refuse to do so, would the wounded veteran be without
remedy? Is it to be contended that where the law, in precise terms,
directs the performance of an act in which an individual is interested,
the law is incapable of securing obedience to its mandate? Is it on
account of the character of the person against whom the complaint is
made? Is it to be contended that the heads of departments are not
amenable to the laws of their country?
Whatever the practice on particular occasions may be, the theory of
this principle will certainly never be maintained.
No act of the Legislature confers so extraordinary a privilege, nor can
it derive countenance from the doctrines of the common law. After
stating that personal injury from the King to a subject is presumed to
be impossible, Blackstone, Vol. III. p. 255, says,
"but injuries to the rights of property can scarcely be committed by
the Crown without the intervention of its officers, for whom, the law,
in matters of right, entertains no respect or delicacy, but furnishes
various methods of detecting the errors and misconduct of those
agents by whom the King has been deceived and induced to do a
temporary injustice."
By the act passed in 1796, authorizing the sale of the lands above the
mouth of Kentucky river, the purchaser, on paying his purchase
money, becomes completely entitled to the property purchased, and,
on producing to the Secretary of State the receipt of the treasurer
upon a certificate required by the law, the President of the United
States is authorized to grant him a patent. It is further enacted that
all patents shall be countersigned by the Secretary of State, and
recorded in his office. If the Secretary of State should choose to
withhold this patent, or, the patent being lost, should refuse a copy
of it, can it be imagined that the law furnishes to the injured person
no remedy?
It is not believed that any person whatever would attempt to maintain
such a proposition.
It follows, then, that the question whether the legality of an act of the
head of a department be examinable in a court of justice or not must
always depend on the nature of that act.
If some acts be examinable and others not, there must be some rule
of law to guide the Court in the exercise of its jurisdiction.
In some instances, there may be difficulty in applying the rule to
particular cases; but there cannot, it is believed, be much difficulty in
laying down the rule.
By the Constitution of the United States, the President is invested with
certain important political powers, in the exercise of which he is to
use his own discretion, and is accountable only to his country in his
political character and to his own conscience. To aid him in the
performance of these duties, he is authorized to appoint certain
officers, who act by his authority and in conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be
entertained of the manner in which executive discretion may be used,
still there exists, and can exist, no power to control that discretion.
The subjects are political. They respect the nation, not individual
rights, and, being entrusted to the Executive, the decision of the
Executive is conclusive. The application of this remark will be
perceived by adverting to the act of Congress for establishing the
Department of Foreign Affairs. This officer, as his duties were
prescribed by that act, is to conform precisely to the will of the
President. He is the mere organ by whom that will is communicated.
The acts of such an officer, as an officer, can never be examinable by
the Courts.
But when the Legislature proceeds to impose on that officer other
duties; when he is directed peremptorily to perform certain acts;
when the rights of individuals are dependent on the performance of
those acts; he is so far the officer of the law, is amenable to the laws
for his conduct, and cannot at his discretion, sport away the vested
rights of others.
The conclusion from this reasoning is that, where the heads of
departments are the political or confidential agents of the Executive,
merely to execute the will of the President, or rather to act in cases
in which the Executive possesses a constitutional or legal discretion,
nothing can be more perfectly clear than that their acts are only
politically examinable. But where a specific duty is assigned by law,
and individual rights depend upon the performance of that duty, it
seems equally clear that the individual who considers himself injured
has a right to resort to the laws of his country for a remedy.
If this be the rule, let us inquire how it applies to the case under the
consideration of the Court.
The power of nominating to the Senate, and the power of appointing
the person nominated, are political powers, to be exercised by the
President according to his own discretion. When he has made an
appointment, he has exercised his whole power, and his discretion
has been completely applied to the case. If, by law, the officer be
removable at the will of the President, then a new appointment may
be immediately made, and the rights of the officer are terminated.
But as a fact which has existed cannot be made never to have existed,
the appointment cannot be annihilated, and consequently, if the
officer is by law not removable at the will of the President, the rights
he has acquired are protected by the law, and are not resumable by
the President. They cannot be extinguished by Executive authority,
and he has the privilege of asserting them in like manner as if they
had been derived from any other source.
The question whether a right has vested or not is, in its nature,
judicial, and must be tried by the judicial authority. If, for example,
Mr. Marbury had taken the oaths of a magistrate and proceeded to
act as one, in consequence of which a suit had been instituted against
him in which his defence had depended on his being a magistrate; the
validity of his appointment must have been determined by judicial
authority.
So, if he conceives that, by virtue of his appointment, he has a legal
right either to the commission which has been made out for him or to
a copy of that commission, it is equally a question examinable in a
court, and the decision of the Court upon it must depend on the
opinion entertained of his appointment.
That question has been discussed, and the opinion is that the latest
point of time which can be taken as that at which the appointment
was complete and evidenced was when, after the signature of the
President, the seal of the United States was affixed to the commission.
It is then the opinion of the Court:
1. That, by signing the commission of Mr. Marbury, the President of
the United States appointed him a justice of peace for the County of
Washington in the District of Columbia, and that the seal of the United
States, affixed thereto by the Secretary of State, is conclusive
testimony of the verity of the signature, and of the completion of the
appointment, and that the appointment conferred on him a legal right
to the office for the space of five years.
2. That, having this legal title to the office, he has a consequent right
to the commission, a refusal to deliver which is a plain violation of
that right, for which the laws of his country afford him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110,
defines a mandamus to be
"a command issuing in the King's name from the Court of King's
Bench, and directed to any person, corporation, or inferior court of
judicature within the King's dominions requiring them to do some
particular thing therein specified which appertains to their office and
duty, and which the Court of King's Bench has previously determined,
or at least supposes, to be consonant to right and justice."
Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker
et al., states with much precision and explicitness the cases in which
this writ may be used.
"Whenever," says that very able judge,
"there is a right to execute an office, perform a service, or exercise a
franchise (more especially if it be in a matter of public concern or
attended with profit), and a person is kept out of possession, or
dispossessed of such right, and has no other specific legal remedy,
this court ought to assist by mandamus, upon reasons of justice, as
the writ expresses, and upon reasons of public policy, to preserve
peace, order and good government."
In the same case, he says,
"this writ ought to be used upon all occasions where the law has
established no specific remedy, and where in justice and good
government there ought to be one."
In addition to the authorities now particularly cited, many others were
relied on at the bar which show how far the practice has conformed
to the general doctrines that have been just quoted.
This writ, if awarded, would be directed to an officer of government,
and its mandate to him would be, to use the words of Blackstone,
"to do a particular thing therein specified, which appertains to his
office and duty and which the Court has previously determined or at
least supposes to be consonant to right and justice."
Or, in the words of Lord Mansfield, the applicant, in this case, has a
right to execute an office of public concern, and is kept out of
possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom
it is to be directed must be one to whom, on legal principles, such writ
may be directed, and the person applying for it must be without any
other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The
intimate political relation, subsisting between the President of the
United States and the heads of departments, necessarily renders any
legal investigation of the acts of one of those high officers peculiarly
irksome, as well as delicate, and excites some hesitation with respect
to the propriety of entering into such investigation. Impressions are
often received without much reflection or examination, and it is not
wonderful that, in such a case as this, the assertion by an individual
of his legal claims in a court of justice, to which claims it is the duty
of that court to attend, should, at first view, be considered by some
as an attempt to intrude into the cabinet and to intermeddle with the
prerogatives of the Executive.
It is scarcely necessary for the Court to disclaim all pretensions to
such a jurisdiction. An extravagance so absurd and excessive could
not have been entertained for a moment. The province of the Court is
solely to decide on the rights of individuals, not to inquire how the
Executive or Executive officers perform duties in which they have a
discretion. Questions, in their nature political or which are, by the
Constitution and laws, submitted to the Executive, can never be made
in this court.
But, if this be not such a question; if so far from being an intrusion
into the secrets of the cabinet, it respects a paper which, according to
law, is upon record, and to a copy of which the law gives a right, on
the payment of ten cents; if it be no intermeddling with a subject over
which the Executive can be considered as having exercised any
control; what is there in the exalted station of the officer which shall
bar a citizen from asserting in a court of justice his legal rights, or
shall forbid a court to listen to the claim or to issue a mandamus
directing the performance of a duty not depending on Executive
discretion, but on particular acts of Congress and the general
principles of law?
If one of the heads of departments commits any illegal act under
colour of his office by which an individual sustains an injury, it cannot
be pretended that his office alone exempts him from being sued in
the ordinary mode of proceeding, and being compelled to obey the
judgment of the law. How then can his office exempt him from this
particular mode of deciding on the legality of his conduct if the case
be such a case as would, were any other individual the party
complained of, authorize the process?
It is not by the office of the person to whom the writ is directed, but
the nature of the thing to be done, that the propriety or impropriety
of issuing a mandamus is to be determined. Where the head of a
department acts in a case in which Executive discretion is to be
exercised, in which he is the mere organ of Executive will, it is again
repeated, that any application to a court to control, in any respect,
his conduct, would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the
absolute rights of individuals, in the performance of which he is not
placed under the particular direction of the President, and the
performance of which the President cannot lawfully forbid, and
therefore is never presumed to have forbidden -- as for example, to
record a commission, or a patent for land, which has received all the
legal solemnities; or to give a copy of such record -- in such cases, it
is not perceived on what ground the Courts of the country are further
excused from the duty of giving judgment that right to be done to an
injured individual than if the same services were to be performed by
a person not the head of a department.
This opinion seems not now for the first time to be taken up in this
country.
It must be well recollected that, in 1792, an act passed, directing the
secretary at war to place on the pension list such disabled officers and
soldiers as should be reported to him by the Circuit Courts, which act,
so far as the duty was imposed on the Courts, was deemed
unconstitutional; but some of the judges, thinking that the law might
be executed by them in the character of commissioners, proceeded to
act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed,
and a different system was established; but the question whether
those persons who had been reported by the judges, as
commissioners, were entitled, in consequence of that report, to be
placed on the pension list was a legal question, properly determinable
in the Courts, although the act of placing such persons on the list was
to be performed by the head of a department.
That this question might be properly settled, Congress passed an act
in February, 1793, making it the duty of the Secretary of War, in
conjunction with the Attorney General, to take such measures as
might be necessary to obtain an adjudication of the Supreme Court of
the United States on the validity of any such rights, claimed under the
act aforesaid.
After the passage of this act, a mandamus was moved for, to be
directed to the Secretary of War, commanding him to place on the
pension list a person stating himself to be on the report of the judges.
There is, therefore, much reason to believe that this mode of trying
the legal right of the complainant was deemed by the head of a
department, and by the highest law officer of the United States, the
most proper which could be selected for the purpose.
When the subject was brought before the Court, the decision was not
that a mandamus would not lie to the head of a department directing
him to perform an act enjoined by law, in the performance of which
an individual had a vested interest, but that a mandamus ought not
to issue in that case -- the decision necessarily to be made if the
report of the commissioners did not confer on the applicant a legal
right.
The judgment in that case is understood to have decided the merits
of all claims of that description, and the persons, on the report of the
commissioners, found it necessary to pursue the mode prescribed by
the law subsequent to that which had been deemed unconstitutional
in order to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus now moved for is not for the
performance of an act expressly enjoined by statute.
It is to deliver a commission, on which subjects the acts of Congress
are silent. This difference is not considered as affecting the case. It
has already been stated that the applicant has, to that commission, a
vested legal right of which the Executive cannot deprive him. He has
been appointed to an office from which he is not removable at the will
of the Executive, and, being so appointed, he has a right to the
commission which the Secretary has received from the President for
his use. The act of Congress does not, indeed, order the Secretary of
State to send it to him, but it is placed in his hands for the person
entitled to it, and cannot be more lawfully withheld by him than by
another person.
It was at first doubted whether the action of detinue was not a specific
legal remedy for the commission which has been withheld from Mr.
Marbury, in which case a mandamus would be improper. But this
doubt has yielded to the consideration that the judgment in detinue
is for the thing itself, or its value. The value of a public office not to
be sold is incapable of being ascertained, and the applicant has a right
to the office itself, or to nothing. He will obtain the office by obtaining
the commission or a copy of it from the record.
This, then, is a plain case of a mandamus, either to deliver the
commission or a copy of it from the record, and it only remains to be
inquired:
Whether it can issue from this Court.
The act to establish the judicial courts of the United States authorizes
the Supreme Court
"to issue writs of mandamus, in cases warranted by the principles and
usages of law, to any courts appointed, or persons holding office,
under the authority of the United States."
The Secretary of State, being a person, holding an office under the
authority of the United States, is precisely within the letter of the
description, and if this Court is not authorized to issue a writ of
mandamus to such an officer, it must be because the law is
unconstitutional, and therefore absolutely incapable of conferring the
authority and assigning the duties which its words purport to confer
and assign.
The Constitution vests the whole judicial power of the United States
in one Supreme Court, and such inferior courts as Congress shall,
from time to time, ordain and establish. This power is expressly
extended to all cases arising under the laws of the United States; and
consequently, in some form, may be exercised over the present case,
because the right claimed is given by a law of the United States.
In the distribution of this power. it is declared that
"The Supreme Court shall have original jurisdiction in all cases
affecting ambassadors, other public ministers and consuls, and those
in which a state shall be a party. In all other cases, the Supreme Court
shall have appellate jurisdiction."
It has been insisted at the bar, that, as the original grant of
jurisdiction to the Supreme and inferior courts is general, and the
clause assigning original jurisdiction to the Supreme Court contains
no negative or restrictive words, the power remains to the Legislature
to assign original jurisdiction to that Court in other cases than those
specified in the article which has been recited, provided those cases
belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the Legislature
to apportion the judicial power between the Supreme and inferior
courts according to the will of that body, it would certainly have been
useless to have proceeded further than to have defined the judicial
power and the tribunals in which it should be vested. The subsequent
part of the section is mere surplusage -- is entirely without meaning
-- if such is to be the construction. If Congress remains at liberty to
give this court appellate jurisdiction where the Constitution has
declared their jurisdiction shall be original, and original jurisdiction
where the Constitution has declared it shall be appellate, the
distribution of jurisdiction made in the Constitution, is form without
substance.
Affirmative words are often, in their operation, negative of other
objects than those affirmed, and, in this case, a negative or exclusive
sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the Constitution is intended
to be without effect, and therefore such construction is inadmissible
unless the words require it.
If the solicitude of the Convention respecting our peace with foreign
powers induced a provision that the Supreme Court should take
original jurisdiction in cases which might be supposed to affect them,
yet the clause would have proceeded no further than to provide for
such cases if no further restriction on the powers of Congress had
been intended. That they should have appellate jurisdiction in all other
cases, with such exceptions as Congress might make, is no restriction
unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system
divides it into one Supreme and so many inferior courts as the
Legislature may ordain and establish, then enumerates its powers,
and proceeds so far to distribute them as to define the jurisdiction of
the Supreme Court by declaring the cases in which it shall take
original jurisdiction, and that in others it shall take appellate
jurisdiction, the plain import of the words seems to be that, in one
class of cases, its jurisdiction is original, and not appellate; in the
other, it is appellate, and not original. If any other construction would
render the clause inoperative, that is an additional reason for rejecting
such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to
be an exercise of appellate jurisdiction, or to be necessary to enable
them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be
exercised in a variety of forms, and that, if it be the will of the
Legislature that a mandamus should be used for that purpose, that
will must be obeyed. This is true; yet the jurisdiction must be
appellate, not original.
It is the essential criterion of appellate jurisdiction that it revises and
corrects the proceedings in a cause already instituted, and does not
create that case. Although, therefore, a mandamus may be directed
to courts, yet to issue such a writ to an officer for the delivery of a
paper is, in effect, the same as to sustain an original action for that
paper, and therefore seems not to belong to appellate, but to original
jurisdiction. Neither is it necessary in such a case as this to enable the
Court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act
establishing the judicial courts of the United States to issue writs of
mandamus to public officers appears not to be warranted by the
Constitution, and it becomes necessary to inquire whether a
jurisdiction so conferred can be exercised.
The question whether an act repugnant to the Constitution can
become the law of the land is a question deeply interesting to the
United States, but, happily, not of an intricacy proportioned to its
interest. It seems only necessary to recognise certain principles,
supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future
government such principles as, in their opinion, shall most conduce to
their own happiness is the basis on which the whole American fabric
has been erected. The exercise of this original right is a very great
exertion; nor can it nor ought it to be frequently repeated. The
principles, therefore, so established are deemed fundamental. And as
the authority from which they proceed, is supreme, and can seldom
act, they are designed to be permanent.
This original and supreme will organizes the government and assigns
to different departments their respective powers. It may either stop
here or establish certain limits not to be transcended by those
departments.
The Government of the United States is of the latter description. The
powers of the Legislature are defined and limited; and that those
limits may not be mistaken or forgotten, the Constitution is written.
To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may at any time be
passed by those intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished if those
limits do not confine the persons on whom they are imposed, and if
acts prohibited and acts allowed are of equal obligation. It is a
proposition too plain to be contested that the Constitution controls
any legislative act repugnant to it, or that the Legislature may alter
the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The
Constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and,
like other acts, is alterable when the legislature shall please to alter
it.
If the former part of the alternative be true, then a legislative act
contrary to the Constitution is not law; if the latter part be true, then
written Constitutions are absurd attempts on the part of the people to
limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions
contemplate them as forming the fundamental and paramount law of
the nation, and consequently the theory of every such government
must be that an act of the Legislature repugnant to the Constitution
is void.
This theory is essentially attached to a written Constitution, and is
consequently to be considered by this Court as one of the fundamental
principles of our society. It is not, therefore, to be lost sight of in the
further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does
it, notwithstanding its invalidity, bind the Courts and oblige them to
give it effect? Or, in other words, though it be not law, does it
constitute a rule as operative as if it was a law? This would be to
overthrow in fact what was established in theory, and would seem, at
first view, an absurdity too gross to be insisted on. It shall, however,
receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to
say what the law is. Those who apply the rule to particular cases must,
of necessity, expound and interpret that rule. If two laws conflict with
each other, the Courts must decide on the operation of each.
So, if a law be in opposition to the Constitution, if both the law and
the Constitution apply to a particular case, so that the Court must
either decide that case conformably to the law, disregarding the
Constitution, or conformably to the Constitution, disregarding the law,
the Court must determine which of these conflicting rules governs the
case. This is of the very essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the
Constitution is superior to any ordinary act of the Legislature, the
Constitution, and not such ordinary act, must govern the case to
which they both apply.
Those, then, who controvert the principle that the Constitution is to
be considered in court as a paramount law are reduced to the
necessity of maintaining that courts must close their eyes on the
Constitution, and see only the law.
This doctrine would subvert the very foundation of all written
Constitutions. It would declare that an act which, according to the
principles and theory of our government, is entirely void, is yet, in
practice, completely obligatory. It would declare that, if the
Legislature shall do what is expressly forbidden, such act,
notwithstanding the express prohibition, is in reality effectual. It
would be giving to the Legislature a practical and real omnipotence
with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits, and declaring that those limits
may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest
improvement on political institutions -- a written Constitution, would
of itself be sufficient, in America where written Constitutions have
been viewed with so much reverence, for rejecting the construction.
But the peculiar expressions of the Constitution of the United States
furnish additional arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising
under the Constitution.
Could it be the intention of those who gave this power to say that, in
using it, the Constitution should not be looked into? That a case
arising under the Constitution should be decided without examining
the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the
judges. And if they can open it at all, what part of it are they forbidden
to read or to obey?
There are many other parts of the Constitution which serve to
illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported
from any State." Suppose a duty on the export of cotton, of tobacco,
or of flour, and a suit instituted to recover it. Ought judgment to be
rendered in such a case? ought the judges to close their eyes on the
Constitution, and only see the law?
The Constitution declares that "no bill of attainder or ex post facto law
shall be passed."
If, however, such a bill should be passed and a person should be
prosecuted under it, must the Court condemn to death those victims
whom the Constitution endeavours to preserve?
"No person,' says the Constitution, 'shall be convicted of treason
unless on the testimony of two witnesses to the same overt act, or on
confession in open court."
Here. the language of the Constitution is addressed especially to the
Courts. It prescribes, directly for them, a rule of evidence not to be
departed from. If the Legislature should change that rule, and declare
one witness, or a confession out of court, sufficient for conviction,
must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is
apparent that the framers of the Constitution contemplated that
instrument as a rule for the government of courts, as well as of the
Legislature.
Why otherwise does it direct the judges to take an oath to support it?
This oath certainly applies in an especial manner to their conduct in
their official character. How immoral to impose it on them if they were
to be used as the instruments, and the knowing instruments, for
violating what they swear to support!
The oath of office, too, imposed by the Legislature, is completely
demonstrative of the legislative opinion on this subject. It is in these
words:
"I do solemnly swear that I will administer justice without respect to
persons, and do equal right to the poor and to the rich; and that I will
faithfully and impartially discharge all the duties incumbent on me as
according to the best of my abilities and understanding, agreeably to
the Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the
Constitution of the United States if that Constitution forms no rule for
his government? if it is closed upon him and cannot be inspected by
him?
If such be the real state of things, this is worse than solemn mockery.
To prescribe or to take this oath becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what
shall be the supreme law of the land, the Constitution itself is first
mentioned, and not the laws of the United States generally, but those
only which shall be made in pursuance of the Constitution, have that
rank.

Thus, the particular phraseology of the Constitution of the United

States confirms and strengthens the principle, supposed to be
essential to all written Constitutions, that a law repugnant to the
Constitution is void, and that courts, as well as other departments,
are bound by that instrument.

The rule must be discharged.