Republic of the Philippines
SUPREME COURT
Manila
EN BANC G.R. No. L-6706             March 29, 1953
ALFREDO JAVIER, petitioner, vs.
HON. ANTONIO G. LUCERO, Judge of the Court of First
Instance of Cavite; SALUD R. ARCA and ALFREDO
JAVIER, JR., respondents.
David F. Barrera for petitioner.
Jacinto, Santillan and Roxas for respondents.
BENGZON, J.:
In an action for alimony (Civil Case No. 5150, Cavite), the
respondent judge, after hearing the parties and their
evidence, ordered Alfredo Javier to give a monthly allowance
of P60 to his wife Salud R. Arca and their son Alfredo Javier,
Jr.
On April 14, 1953 the husband filed a notice of appeal, and on
May 6, 1953, he submitted the appeal bond and the record on
appeal. Meanwhile the wife and the son presented on April
30, 1953 a motion for "support pendente lite" even pending
the final determination of the case on appeal". Whereupon on
May 8, 1953, the judge directed Alfredo Javier to pay the
monthly pensions notwithstanding the pendency of his
appeal.
Here comes Alfredo Javier with a petition
for certiorari challenging such directive and arguing, in his
own words:
"1. The status of Salud R. Arca as wife of the petitioner is
being contested;
"2. Alfredo Javier Jr. is over 21 years old on March 31, 1953
and no longer entitled to be supported; and
"3. Even granting that Alfredo Javier, Jr. is entitled to support
even if over 21 years of age to complete his education or
training for some profession, trade or vocation, the support
could not be paid because the decision is vague or silent on
that point.
The facts, as found in the action for support, are these:
On November 19, 1937, plaintiff Salud R. Arca and
defendant Alfredo Javier had their marriage
solemnized by Judge Mariano Nable of the Municipal
Court of Manila. At the time of their marriage, they
had already begotten a son named Alfredo Javier
Junior who was born on December 2, 1931.
Sometime in 1938, defendant Alfredo Javier left for
the United States on board a ship of the United
States navy, for it appears that he had joined the
United States Navy since 1927, such at the time of
his marriage with plaintiff Salud R. Arca, defendant
Alfredo Javier was already a enlisted man in the
United States Navy. Because of defendant Alfredo
Javier's departure for the United States in 1938, his
wife Salud R. Arca, who is from Tanza, Cavite,
chose to live with defendant's parents at Naic,
Cavite. But for certain incompatibility of character
(frictions having occurred between plaintiff Salud R.
Arca and defendant's folks) plaintiff Salud R. Arca
had found it necessary to leave defendant's parents'
abode and transfer her residence to Tanza, Cavite
— her native place. Since then the relation between
plaintiff Salud R. Arca and defendant Alfredo Javier
become strained such that on August 13, 1940
defendant Alfredo Javier brought an action for
divorce against plaintiff Salud R. Arca before the
Circuit Court of Mobile County, State of Alabama,
USA, docketed as Civil Case No. 14313 of that Court
and marked as Exhibit 2 (c) in this case. Having
received a copy of the complaint for divorce on
September 23, 1940, plaintiff Salud R. Arca —
answering the complaint — alleged in her answer
that she received a copy of the complaint on
September 23, 1940 although she was directed to
file her answer thereto on or before September 13,
1940. In that answer she filed, plaintiff Salud R. Arca
averred among other things that defendant Alfredo
Javier was not a resident of Mobile County, State of
Alabama, for the period of twelve months preceding
the institution of the complaint, but that he was a
resident of Naic, Cavite, Philippines. Another
avernment of interest, which is essential to relate
here, is that under paragraph 5 of her answer to the
complaint for divorce, Salud R. Arca alleged that it
was not true that the cause of their separation was
desertion on her part but that if the defendant Alfredo
Javier was in the United States at that time and she
was not with him then it was because he was in
active duty as an enlisted man of the United States
Navy, as a consequence of which he had to leave for
the United States without her. She further alleged
that since his departure from the Philippines for the
United States, he had always supported her and her
co-plaintiff Alfredo Javier Junior through allotments
made by the Navy Department of the United States
Government. She denied, furthermore, the allegation
that she had abandoned defendant's home at Naic,
Cavite, and their separation was due to physical
impossibility for they were separated by about
10,000 miles from each other. At this juncture, under
the Old civil Code, the wife is not bound to live with
her husband if the latter has gone to ultra-marine
colonies. Plaintiff Salud R. Arca, in her answer to the
complaint for divorce by defendant Alfredo Javier,
prayed that the complaint for divorce be dismissed.
However, notwithstanding Salud R. Arca's
averments in her answer, contesting the jurisdiction
of the Circuit Court of Mobile County, State of
Alabama, to take cognizance of the divorce
proceeding filed by defendant Alfredo Javier, as
shown by her answer marked Exhibit 2 (d),
nevertheless the Circuit Court of Mobile County
rendered judgment decreeing dissolution of the
marriage of Salud R. Arca and Alfredo Javier, and
granting the latter a decree of divorce dated April 9,
1941, a certified copy of which is marked Exhibit 2(f).
Thereupon, the evidence discloses that some time in
1946 defendant Alfredo Javier returned to the
Philippines but went back to the United States.
In July, 1941, — that is after securing a divorce from
plaintiff Salud R. Arca on April 9, 1941 — defendant
Alfredo Javier married Thelma Francis, an American
citizen and bought a house and lot at 248 Brooklyn,
New York City. In 1949, Thelma Francis, defendant's
American wife, obtained a divorce from him for
reasons not disclosed by the evidence, and later on,
having retired from the United States Navy,
defendant Alfredo Javier returned to the Philippines,
armed with two decrees of divorce — one against his
first wife Salud R. Arca and the other against him by
his second wife Thelma Francis — issued by the
Circuit Court of Mobile County, State of Alabama,
USA, defendant Alfredo Javier married Maria Odvina
before Judge Natividad Almeda-Lopez of the
Municipal Court of Manila on April 19, 1950, marked
Exhibit 2 (b).
1
 At the instance of plaintiff Salud R. Arca an
information for bigamy was filed by the City fiscal of
manila on July 25, 1950 against defendant Alfredo
Javier with the Court of First Instance of Manila,
docketed as Criminal Case No. 13310 and marked
Exhibit 2 (a). However, defendant Alfredo Javier with
the Court of First Instance of Manila was acquitted of
the charge of bigamy in a decision rendered by the
Court of First Instance of Manila through Judge
Alejandro J. Panlilio, dated August 10, 1951,
predicated on the proposition that the marriage of
defendant Alfredo Javier with Maria Odvina was
made in all good faith and in the honest belief that
his marriage with plaintiff Salud R. Arca had been
legally dissolved by the decree of divorce obtained
by him from the Circuit Court of Mobile County, State
of Alabama, USA, which had the legal effect of
dissolving the marital ties between defendant Alfredo
Javier and plaintiff Salud R. Arca. At this juncture,
again, it is this Court's opinion that defendant Alfredo
Javier's acquittal in that Criminal Case No. 13310 of
the Court of First Instance of Manila by Judge
Panlilio was due to the fact that the accused had no
criminal intent in contracting a second or subsequent
marriage while his first marriage was still subsisting.
Turning now to the petition for certiorari, we perceive that, as
to its first ground the respondent judge declared in his
decision that Alfredo Javier and Salud Arca were married on
November 19, 1937 when they had already a natural son
named Alfredo Javier Junior, born December 2, 1931, and
that, notwithstanding a decree of divorce which the husband
Alfredo obtained in the United States in 1941, their marriage
still subsists. Such being the situation, the principle
in Francisco vs. Zandueta, 61 Phil., 752 on which petitioner
entirely relies is not controlling, inasmuch as the existence of
the married relation and the paternity had been established at
least  prima facie (cf. Sanchez vs. Zulueta, 68 Phil., 112.)
Besides, as respondents point out, this is strictly not
alimony pendente lite, under Rule 63, but execution of
judgment pending appeal, under Rule 39.1
tries to avoid is to support a woman who has desperately tried
to put him in jail, when she accused him of bigamy." Such
disgust is easily understandable. But compliance with legal
and contractual duties is not always pleasant.
Under the New Civil Code articles 303 and 921 the wife
forfeits her husband's support after "she has accused (him) of
a crime for which the law prescribes imprisonment for six
years or more, and the accusation has been found to be
false." Admittedly, he married a third time without the first
marriage having been dissolved; but he was cleared of the
bigamy charge for lack of criminal intent, inasmuch as he
believed his divorce obtained in the U.S., had already ended
his first marriage to Salud r. Arca. Such acquittal is no
different from an acquittal on reasonable doubt, which in our
opinion, and in the opinion of a member of the code
Commission that framed the New Civil code, would not be
ground to forfeit her right to support.2
Of course, the question whether Alfredo Javier's prosecution
for bigamy and subsequent acquittal extinguished his
obligation to maintain his complaining spouse will definitely be
decided when the main case (No. 5150) is reviewed on
appeal. Other aspects of the issue could then undoubtedly be
the subject of research and elucidation. Nevertheless, we
briefly explain our first impressions or provisional conclusion
in the task of examining the alleged misuse by respondent
judge of his prerogatives. It is markworthy that the son has
not forfeited his right to support.
As the issues are presently framed, petitioner has failed to
sustain the burden of demonstrating the judge's clear error or
grievous mistake in ordering execution of his judgment
pending appeal. Costs against petitioner.

In connection with the second ground of the petition,

respondents observe that under the new Civil Code, article
290 support also includes the education of the person to be
supported "until he complete his education or training for
some profession, trade or vocation even beyond the age of
majority" and on the basis of this article support was granted
to Alfredo Javier Junior. Said the Court, "while it is true that
plaintiff Alfredo Javier Junior, who was born on December 2,
1931, has reached the age of majority on December 2, 1952,
yet, under the last part of article 290 of the new Civil Code,
support may be given him even beyond the age of majority in
order to enable him to complete his education, for some trade
or profession."

Now then, was the order issued in excess of jurisdiction or

with grave abuse of discretion? The court undoubtedly has
jurisdiction, inasmuch as it was issued before the record on
appeal was submitted. (Sumulong vs. Imperial, 51 Phil., 251;
Syquia vs. Concepcion, 60 Phil., 186). Did the judge abuse
his discretion?

Unquestionably, Alfredo Javier, Jr. is the son of petitioner

Alfredo Javier, and if financial assistance is to be rendered
only at the termination of the appeal his education, or the
completion thereof, would be unduly delayed. That is good
reason for immediate execution. Petitioner claims that
according to the records Alfredo Javier Jr. "is no longer
studying". Yet probably he stopped going to school due to
lack of means, since the petitioner himself admits that his son
is just a pre-law graduate.

But the real grievance of petitioner is contained in the last

portion of his pleading, which says, "What Alfredo Javier now

2

FIRST DIVISION G.R. No. 170829       November 20, 2006
PERLA G. PATRICIO, Petitioner, vs.
MARCELINO G. DARIO III and THE HONORABLE COURT
OF APPEALS, Second Division, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the
Rules of Court seeks to annul and set aside the Resolution of
the Court of Appeals dated December 9, 20051 in CA-G.R.
CV No. 80680, which dismissed the complaint for partition
filed by petitioner for being contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was
survived by his wife, petitioner Perla G. Patricio and their two
sons, Marcelino Marc Dario and private respondent Marcelino
G. Dario III. Among the properties he left was a parcel of land
with a residential house and a pre-school building built
thereon situated at 91 Oxford corner Ermin Garcia Streets in
Cubao, Quezon City, as evidenced by Transfer Certificate of
Title (TCT) No. RT-30731 (175992) of the Quezon City
Registry of Deeds, covering an area of seven hundred fifty
five (755) square meters, more or less.2
On August 10, 1987, petitioner, Marcelino Marc and private
respondent, extrajudicially settled the estate of Marcelino V.
Dario. Accordingly, TCT No. RT-30731 (175992) was
cancelled and TCT No. R-213963 was issued in the names of
petitioner, private respondent and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised
private respondent of their intention to partition the subject
property and terminate the co-ownership. Private respondent
refused to partition the property hence petitioner and
Marcelino Marc instituted an action for partition before the
Regional Trial Court of Quezon City which was docketed as
Civil Case No. Q-01-44038 and raffled to Branch 78.
On October 3, 2002,3 the trial court ordered the partition of the
subject property in the following manner: Perla G. Patricio,
4/6; Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III,
1/6. The trial court also ordered the sale of the property by
public auction wherein all parties concerned may put up their
bids. In case of failure, the subject property should be
distributed accordingly in the aforestated manner.4
Private respondent filed a motion for reconsideration which
was denied by the trial court on August 11, 2003, 5 hence he
appealed before the Court of Appeals, which denied the same
on October 19, 2005. However, upon a motion for
reconsideration filed by private respondent on December 9,
2005, the appellate court partially reconsidered the October
19, 2005 Decision. In the now assailed Resolution, the Court
of Appeals dismissed the complaint for partition filed by
petitioner and Marcelino Marc for lack of merit. It held that the
family home should continue despite the death of one or both
spouses as long as there is a minor beneficiary thereof. The
heirs could not partition the property unless the court found
compelling reasons to rule otherwise. The appellate court also
held that the minor son of private respondent, who is a
grandson of spouses Marcelino V. Dario and Perla G.
Patricio, was a minor beneficiary of the family home.6
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS
PATENTLY ERRED IN REVERSING ITS EARLIER
DECISION OF OCTOBER 19, 2005 WHICH
AFFIRMED IN TOTO THE DECISION OF THE
TRIAL COURT DATED 03 OCTOBER 2002
GRANTING THE PARTITION AND SALE BY
PUBLIC AUCTION OF THE SUBJECT PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF
APPEALS PATENTLY ERRED IN APPLYING
ARTICLE 159 IN RELATION TO ARTICLE 154 OF
THE FAMILY CODE ON FAMILY HOME INSTEAD
OF ARTICLE 494 IN RELATION TO ARTICLES 495
AND 498 OF THE NEW CIVIL CODE ON CO-
OWNERSHIP.7
The sole issue is whether partition of the family home is
proper where one of the co-owners refuse to accede to such
partition on the ground that a minor beneficiary still resides in
the said home.
Private respondent claims that the subject property which is
the family home duly constituted by spouses Marcelino and
Perla Dario cannot be partitioned while a minor beneficiary is
still living therein namely, his 12-year-old son, who is the
grandson of the decedent. He argues that as long as the
minor is living in the family home, the same continues as such
until the beneficiary becomes of age. Private respondent
insists that even after the expiration of ten years from the date
of death of Marcelino on July 5, 1987, i.e., even after July
1997, the subject property continues to be considered as the
family home considering that his minor son, Marcelino
Lorenzo R. Dario IV, who is a beneficiary of the said family
home, still resides in the premises.
On the other hand, petitioner alleges that the subject property
remained as a family home of the surviving heirs of the late
Marcelino V. Dario only up to July 5, 1997, which was the
10th year from the date of death of the decedent. Petitioner
argues that the brothers Marcelino Marc and private
respondent Marcelino III were already of age at the time of
the death of their father,8 hence there is no more minor
beneficiary to speak of.
The family home is a sacred symbol of family love and is the
repository of cherished memories that last during one’s
lifetime.9 It is the dwelling house where husband and wife, or
by an unmarried head of a family, reside, including the land
on which it is situated.10 It is constituted jointly by the husband
and the wife or by an unmarried head of a family. 11 The family
home is deemed constituted from the time it is occupied as a
family residence. From the time of its constitution and so long
as any of its beneficiaries actually resides therein, the family
home continues to be such and is exempt from execution,
forced sale or attachment except as hereinafter provided and
to the extent of the value allowed by law.12
The law explicitly provides that occupancy of the family home
either by the owner thereof or by "any of its beneficiaries"
must be actual. That which is "actual" is something real, or
actually existing, as opposed to something merely possible, or
to something which is presumptive or constructive. Actual
occupancy, however, need not be by the owner of the house
specifically. Rather, the property may be occupied by the
"beneficiaries" enumerated in Article 154 of the Family Code,
which may include the in-laws where the family home is
constituted jointly by the husband and wife. But the law
definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code.13
Article 154 of the Family Code enumerates who are the
beneficiaries of a family home: (1) The husband and wife, or
3
an unmarried person who is the head of a family; and (2)
Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who are
living in the family home and who depend upon the head of
the family for legal support.
To be a beneficiary of the family home, three requisites must
concur: (1) they must be among the relationships enumerated
in Art. 154 of the Family Code; (2) they live in the family
home; and (3) they are dependent for legal support upon the
head of the family.
Moreover, Article 159 of the Family Code provides that the
family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of
10 years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply regardless
of whoever owns the property or constituted the family home.
Article 159 of the Family Code applies in situations where
death occurs to persons who constituted the family
home.1âwphi1 Dr. Arturo M. Tolentino comments on the
effect of death of one or both spouses or the unmarried head
of a family on the continuing existence of the family home:
Upon the death of the spouses or the unmarried family head
who constituted the family home, or of the spouse who
consented to the constitution of his or her separate property
as family home, the property will remain as family home for
ten years or for as long as there is a minor beneficiary living in
it. If there is no more beneficiary left at the time of death,
we believe the family home will be dissolved or cease,
because there is no more reason for its existence. If
there are beneficiaries who survive living in the family
home, it will continue for ten years, unless at the
expiration of the ten years, there is still a minor
beneficiary, in which case the family home continues
until that beneficiary becomes of age.
After these periods lapse, the property may be partitioned by
the heirs. May the heirs who are beneficiaries of the family
home keep it intact by not partitioning the property after the
period provided by this article? We believe that although
the heirs will continue in ownership by not partitioning
the property, it will cease to be a family home.14 (Emphasis
supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159
in this manner:
The family home shall continue to exist despite the death of
one or both spouses or of the unmarried head of the family.
Thereafter, the length of its continued existence
is dependent upon whether there is still a minor-
beneficiary residing therein. For as long as there is one
beneficiary even if the head of the family or both spouses
are already dead, the family home will continue to
exist (Arts. 153, 159).  If there is no minor-beneficiary, it
will subsist until 10 years and within this period, the heirs
cannot partition the same except when there are
compelling reasons which will justify the partition. This
rule applies regardless of whoever owns the property or who
constituted the family home.15 (Emphasis supplied)
The rule in Article 159 of the Family Code may thus be
expressed in this wise: If there are beneficiaries who survive
and are living in the family home, it will continue for 10 years,
unless at the expiration of 10 years, there is still a minor
beneficiary, in which case the family home continues until that
beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a
general rule, the family home may be preserved for a
minimum of 10 years following the death of the spouses or
the unmarried family head who constituted the family home,
or of the spouse who consented to the constitution of his or
her separate property as family home. After 10 years and
a minor beneficiary still lives therein, the family home shall be
preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect
the interests of the minor beneficiary until he reaches legal
age and would now be capable of supporting
himself. However, three requisites must concur before a
minor beneficiary is entitled to the benefits of Art. 159: (1) the
relationship enumerated in Art. 154 of the Family Code; (2)
they live in the family home, and (3) they are dependent for
legal support upon the head of the family.
Thus, the issue for resolution now is whether Marcelino
Lorenzo R. Dario IV, the minor son of private respondent, can
be considered as a beneficiary under Article 154 of the Family
Code.
As to the first requisite, the beneficiaries of the family home
are: (1) The husband and wife, or an unmarried person who is
the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship
be legitimate or illegitimate. The term "descendants"
contemplates all descendants of the person or persons who
constituted the family home without distinction; hence, it must
necessarily include the grandchildren and great grandchildren
of the spouses who constitute a family home. Ubi lex non
distinguit nec nos distinguire debemos. Where the law does
not distinguish, we should not distinguish. Thus, private
respondent’s minor son, who is also the grandchild of
deceased Marcelino V. Dario satisfies the first requisite.
As to the second requisite, minor beneficiaries must be
actually living in the family home to avail of the benefits
derived from Art. 159. Marcelino Lorenzo R. Dario IV, also
known as Ino, the son of private respondent and grandson of
the decedent Marcelino V. Dario, has been living in the family
home since 1994, or within 10 years from the death of the
decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario
IV cannot demand support from his paternal grandmother if
he has parents who are capable of supporting him. The
liability for legal support falls primarily on Marcelino Lorenzo
R. Dario IV’s parents, especially his father, herein private
respondent who is the head of his immediate family. The law
first imposes the obligation of legal support upon the
shoulders of the parents, especially the father, and only in
their default is the obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support
not from his grandmother, but from his father. Thus, despite
residing in the family home and his being a descendant of
Marcelino V. Dario, Marcelino Lorenzo R. Dario IV cannot be
considered as beneficiary contemplated under Article 154
because he did not fulfill the third requisite of being
dependent on his grandmother for legal support. It is his
father whom he is dependent on legal support, and who must
now establish his own family home separate and distinct from
that of his parents, being of legal age.
Legal support, also known as family support, is that which is
provided by law, comprising everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of
the family.16 Legal support has the following characteristics:
(1) It is personal, based on family ties which bind the obligor
and the obligee; (2) It is intransmissible; (3) It cannot be
renounced; (4) It cannot be compromised; (5) It is free from
attachment or execution; (6) It is reciprocal; (7) It is variable in
amount.17
4
Professor Pineda is of the view that grandchildren cannot
demand support directly from their grandparents if they have
parents (ascendants of nearest degree) who are capable of
supporting them. This is so because we have to follow the
order of support under Art. 199.18 We agree with this view.
The reasons behind Art. 199 as explained by Pineda and
Tolentino: the closer the relationship of the relatives, the
stronger the tie that binds them. Thus, the obligation to
support under Art. 199 which outlines the order of liability for
support is imposed first upon the shoulders of the closer
relatives and only in their default is the obligation moved to
the next nearer relatives and so on.
There is no showing that private respondent is without means
to support his son; neither is there any evidence to prove that
petitioner, as the paternal grandmother, was willing to
voluntarily provide for her grandson’s legal support. On the
contrary, herein petitioner filed for the partition of the property
which shows an intention to dissolve the family home, since
there is no more reason for its existence after the 10-year
period ended in 1997.
With this finding, there is no legal impediment to partition the
subject property.
The law does not encourage co-ownerships among
individuals as oftentimes it results in inequitable situations
such as in the instant case. Co-owners should be afforded
every available opportunity to divide their co-owned property
to prevent these situations from arising.
As we ruled in Santos v. Santos,19 no co-owner ought to be
compelled to stay in a co-ownership indefinitely, and may
insist on partition on the common property at any time. An
action to demand partition is imprescriptible or cannot be
barred by laches. Each co-owner may demand at any time
the partition of the common property.20
In Vda. de Daffon v. Court of Appeals,23 we held that an action
for partition is at once an action for declaration of co-
ownership and for segregation and conveyance of a
determinate portion of the properties involved. If the court
after trial should find the existence of co-ownership among
the parties, the court may and should order the partition of the
properties in the same action.24
WHEREFORE, the petition is GRANTED. The Resolution of
the Court of Appeals in CA-G.R. CV No. 80680 dated
December 9, 2005, is REVERSED and SET ASIDE. The case
is REMANDED to the Regional Trial Court of Quezon City,
Branch 78, who is directed to conduct a PARTITION BY
COMMISSIONERS and effect the actual physical partition of
the subject property, as well as the improvements that lie
therein, in the following manner: Perla G. Dario, 4/6;
Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6.
The trial court is DIRECTED to appoint not more than three
(3) competent and disinterested persons, who should
determine the technical metes and bounds of the property
and the proper share appertaining to each heir, including the
improvements, in accordance with Rule 69 of the Rules of
Court. When it is made to the commissioners that the real
estate, or a portion thereof, cannot be divided without great
prejudice to the interest of the parties, the court a quo may
order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such sum or sums of
money as the commissioners deem equitable, unless one of
the parties interested ask that the property be sold instead of
being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the
commissioners shall sell the same accordingly, and thereafter
distribute the proceeds of the sale appertaining to the just
share of each heir. No pronouncement as to costs.

Since the parties were unable to agree on a partition, the

court a quo should have ordered a partition by commissioners
pursuant to Section 3, Rule 69 of the Rules of Court. Not
more than three competent and disinterested persons should
be appointed as commissioners to make the partition,
commanding them to set off to the plaintiff and to each party
in interest such part and proportion of the property as the
court shall direct.

When it is made to appear to the commissioners that the real

estate, or a portion thereof, cannot be divided without great
prejudice to the interest of the parties, the court may order it
assigned to one of the parties willing to take the same,
provided he pays to the other parties such sum or sums of
money as the commissioners deem equitable, unless one of
the parties interested ask that the property be sold instead of
being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the
commissioners shall sell the same accordingly.21

The partition of the subject property should be made in

accordance with the rule embodied in Art. 996 of the Civil
Code.22 Under the law of intestate succession, if the widow
and legitimate children survive, the widow has the same
share as that of each of the children. However, since only
one-half of the conjugal property which is owned by the
decedent is to be allocated to the legal and compulsory heirs
(the other half to be given exclusively to the surviving spouse
as her conjugal share of the property), the widow will have the
same share as each of her two surviving children. Hence, the
respective shares of the subject property, based on the law
on intestate succession are: (1) Perla Generosa Dario, 4/6;
(2) Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario
III, 1/6.

5
 One of the principal issues in the case
involves the nature of the aforementioned
SECOND DIVISION G.R. No. L-60174 February 16, 1983 conveyance or transaction, with appellants
claiming the same to be an oral contract of
mortgage or antichresis, the redemption of
EDUARDO FELIPE, HERMOGENA V. FELIPE AND which could be done anytime upon
VICENTE V. FELIPE, petitioners, vs. repayment of the P1,800.00 involved
HEIRS OF MAXIMO ALDON, NAMELY: GIMENA (incidentally the only thing written about the
ALMOSARA, SOFIA ALDON, SALVADOR ALDON, AND transaction is the aforementioned receipt re
THE HONORABLE COURT OF APPEALS, respondents. the P1,800). Upon the other hand,
appellees claim that the transaction was
Romulo D. San Juan for petitioner. one of sale, accordingly, redemption was
improper. The appellees claim that plaintiffs
Gerundino Castillejo for private respondent. never conveyed the property because of a
loan or mortgage or antichresis and that
what really transpired was the execution of
ABAD SANTOS, J.: a contract of sale thru a private document
designated as a 'Deed of Purchase and
Maximo Aldon married Gimena Almosara in 1936. The Sale' (Exhibit 1), the execution having been
spouses bought several pieces of land sometime between made by Gimena Almosara in favor of
1948 and 1950. In 1960-62, the lands were divided into three appellee Hermogena V. Felipe.
lots, 1370, 1371 and 1415 of the San Jacinto Public Land
Subdivision, San Jacinto, Masbate. After a study of this case, we have come to
the conclusion that the appellants are
In 1951, Gimena Almosara sold the lots to the spouses entitled to recover the ownership of the lots
Eduardo Felipe and Hermogena V. Felipe. The sale was in question. We so hold because although
made without the consent of her husband, Maximo. Exh. 1 concerning the sale made in 1951 of
the disputed lots is, in Our opinion, not a
forgery the fact is that the sale made by
On April 26, 1976, the heirs of Maximo Aldon, namely his
Gimena Almosara is invalid, having been
widow Gimena and their children Sofia and Salvador Aldon,
executed without the needed consent of her
filed a complaint in the Court of First Instance of Masbate
husband, the lots being conjugal. Appellees'
against the Felipes. The complaint which was docketed as
argument that this was an issue not raised
Civil Case No. 2372 alleged that the plaintiffs were the
in the pleadings is baseless, considering
owners of Lots 1370, 1371 and 1415; that they had orally
the fact that the complaint alleges that the
mortgaged the same to the defendants; and an offer to
parcels 'were purchased by plaintiff Gimena
redeem the mortgage had been refused so they filed the
Almosara and her late husband Maximo
complaint in order to recover the three parcels of land.
Aldon' (the lots having been purchased
during the existence of the marriage, the
The defendants asserted that they had acquired the lots from same are presumed conjugal) and
the plaintiffs by purchase and subsequent delivery to them. inferentially, by force of law, could not, be
The trial court sustained the claim of the defendants and disposed of by a wife without her husband's
rendered the following judgment: consent.

a. declaring the defendants to be the lawful owners of the The defendants are now the appellants in this petition for
property subject of the present litigation; review. They invoke several grounds in seeking the reversal
of the decision of the Court of Appeals. One of the grounds is
b. declaring the complaint in the present action to be without factual in nature; petitioners claim that "respondent Court of
merit and is therefore hereby ordered dismissed; Appeals has found as a fact that the 'Deed of Purchase and
Sale' executed by respondent Gimena Almosara is not a
forgery and therefore its authenticity and due execution is
c. ordering the plaintiffs to pay to the defendants the amount
already beyond question." We cannot consider this ground
of P2,000.00 as reasonable attorney's fees and to pay the
because as a rule only questions of law are reviewed in
costs of the suit.
proceedings under Rule 45 of the Rules of Court subject to
well-defined exceptions not present in the instant case.
The plaintiffs appealed the decision to the Court of Appeals
which rendered the following judgment:
The legal ground which deserves attention is the legal effect
of a sale of lands belonging to the conjugal partnership made
PREMISES CONSIDERED, the decision appealed by the wife without the consent of the husband.
from is hereby REVERSED and SET ASIDE, and a
new one is hereby RENDERED, ordering the
It is useful at this point to re-state some elementary rules: The
defendants-appellees to surrender the lots in
husband is the administrator of the conjugal partnership. (Art.
question as well as the plaintiffs'-appellants'
165, Civil Code.) Subject to certain exceptions, the husband
muniments of title thereof to said plaintiffs-
cannot alienate or encumber any real property of the conjugal
appellants, to make an accounting of the produce
partnership without the wife's consent. (Art. 166, Idem.) And
derived from the lands including expenses incurred
the wife cannot bind the conjugal partnership without the
since 1951, and to solidarity turn over to the
husband's consent, except in cases provided by law. (Art.
plaintiffs-appellants the NET monetary value of the
172, Idem.)
profits, after deducting the sum of P1,800.00. No
attorney's fees nor moral damages are awarded for
lack of any legal justification therefor. No. costs. In the instant case, Gimena, the wife, sold lands belonging to
the conjugal partnership without the consent of the husband
and the sale is not covered by the phrase "except in cases
The ratio of the judgment is stated in the following paragraphs
provided by law." The Court of Appeals described the sale as
of the decision penned by Justice Edgardo L. Paras with the
"invalid" - a term which is imprecise when used in relation to
concurrence of Justices Venicio Escolin and Mariano A. Zosa:
contracts because the Civil Code uses specific names in

6
designating defective contracts, namely: rescissible  (Arts.
1380 et seq.), voidable  (Arts. 1390 et
seq.), unenforceable  (Arts. 1403, et seq.), and void or
inexistent (Arts. 1409 et seq.)
The sale made by Gimena is certainly a defective contract but
of what category? The answer: it is a voidable contract.
According to Art. 1390 of the Civil Code, among the voidable
contracts are "[T]hose where one of the parties is incapable of
giving consent to the contract." (Par. 1.) In the instant case-
Gimena had no capacity to give consent to the contract of
sale. The capacity to give consent belonged not even to the
husband alone but to both spouses.
The view that the contract made by Gimena is a voidable
contract is supported by the legal provision that contracts
entered by the husband without the consent of the wife when
such consent is required, are annullable at her instance
during the marriage and within ten years from the transaction
questioned. (Art. 173, Civil Code.)
Gimena's contract is not rescissible for in such contract all the
essential elements are untainted but Gimena's consent was
tainted. Neither can the contract be classified as
unenforceable because it does not fit any of those described
in Art. 1403 of the Civil Code. And finally, the contract cannot
be void or inexistent because it is not one of those mentioned
in Art. 1409 of the Civil Code. By process of elimination, it
must perforce be a voidable contract.
The voidable contract of Gimena was subject to annulment by
her husband only during the marriage because he was the
victim who had an interest in the contract. Gimena, who was
the party responsible for the defect, could not ask for its
annulment. Their children could not likewise seek the
annulment of the contract while the marriage subsisted
because they merely had an inchoate right to the lands sold.
The termination of the marriage and the dissolution of the
conjugal partnership by the death of Maximo Aldon did not
improve the situation of Gimena. What she could not do
during the marriage, she could not do thereafter.
The case of Sofia and Salvador Aldon is different. After the
death of Maximo they acquired the right to question the
defective contract insofar as it deprived them of their
hereditary rights in their father's share in the lands. The
father's share is one-half (1/2) of the lands and their share is
two-thirds (2/3) thereof, one-third (1/3) pertaining to the
widow.
The petitioners have been in possession of the lands since
1951. It was only in 1976 when the respondents filed action to
recover the lands. In the meantime, Maximo Aldon died.
Two questions come to mind, namely: (1) Have the petitioners
acquired the lands by acquisitive prescription? (2) Is the right
of action of Sofia and Salvador Aldon barred by the statute of
limitations? Anent the first question, We quote with approval
the following statement of the Court of Appeals:
We would like to state further that appellees [petitioners
herein] could not have acquired ownership of the lots by
prescription in view of what we regard as their bad faith. This
bad faith is revealed by testimony to the effect that defendant-
appellee Vicente V. Felipe (son of appellees Eduardo Felipe
and Hermogena V. Felipe) attempted in December 1970 to
have Gimena Almosara sign a ready-made document
purporting to self the disputed lots to the appellees. This
actuation clearly indicated that the appellees knew the lots
did not still belong to them,  otherwise, why were they
interested in a document of sale in their favor? Again why did
Vicente V. Felipe tell Gimena that the purpose of the
document was to obtain Gimena's consent to the construction
of an irrigation pump on the lots in question? The only
possible reason for purporting to obtain such consent is that
the appellees knew the lots were not theirs. Why was there an
attempted improvement (the irrigation tank) only in 1970?
Why was the declaration of property made only in 1974? Why
were no attempts made to obtain the husband's signature,
despite the fact that Gimena and Hermogena were close
relatives? An these indicate the bad faith of the appellees.
Now then, even if we were to consider appellees' possession
in bad faith as a possession in the concept of owners, this
possession at the earliest started in 1951, hence the period
for extraordinary prescription (30 years) had not yet lapsed
when the present action was instituted on April 26, 1976.
As to the second question, the children's cause of action
accrued from the death of their father in 1959 and they had
thirty (30) years to institute it (Art. 1141, Civil Code.) They
filed action in 1976 which is well within the period.
WHEREFORE, the decision of the Court of Appeals is hereby
modified. Judgment is entered awarding to Sofia and
Salvador Aldon their shares of the lands as stated in the body
of this decision; and the petitioners as possessors in bad faith
shall make an accounting of the fruits corresponding to the
share aforementioned from 1959 and solidarity pay their value
to Sofia and Salvador Aldon; costs against the petitioners.
Concepcion Jr., Guerrero and De Castro, JJ., concur.
Makasiar, (Chairman), J., In the result.
Escolin J., took no part.
 Separate Opinions
 AQUINO, J.,  concurring:
I concur in the result. The issue is whether the wife's sale in
1651 of an unregistered sixteen-hectare conjugal land,
without the consent of her husband (he died in 1959), can be
annulled in 1976 by the wife and her two children.
As a rule, the husband cannot dispose of the conjugal realty
without the wife's consent (Art. 166, Civil Code). Thus, a sale
by the husband of the conjugal realty without the wife's
consent was declared void (Tolentino vs. Cardenas, 123 Phil.
517; Villocino vs. Doyon, L-19797, December 17, 1966, 18
SCRA 1094 and L-28871, April 25, 1975, 63 SCRA 460;
Reyes vs. De Leon, L-22331, June 6,1967, 20 SCRA 369;
Bucoy vs. Paulino, L-25775, April 26, 1968, 23 SCRA 248;
Tinitigan vs. Tinitigan, L-45418, October 30,1980, 100 SCRA
619).
With more reason, the wife cannot make such a disposition
without the husband's consent since the husband is the
administrator of the conjugal assets.
In the instant case, the Court of Appeals did not err in voiding
the wife's sale of the conjugal land without the husband's
consent. As that sale is contrary to law, the action to have it
declared void or inexistent does not prescribe. Moreover,
there are indications that the contract between the parties
was an antichresis, a transaction which is very common in
rural areas.
THIRD DIVISION G.R. No. 118784 September 2, 1999
7
HEIRS OF CHRISTINA AYUSTE, petitioner,vs. (1) Declaring null and
COURT OF APPEALS and VIENA void the Deed of Absolute
MALABONGA, respondents. Sale of House and Lot
(Exhibit "C') executed by
 GONZAGA-REYES, J.: defendant and plaintiffs
husband, the deceased
Rafael Ayuste, on
Before us is a petition for certiorari under Rule 45, asking this February 27, 1987;
Court to review the decision of the Court of Appeals dated
January 23, 1995 in CA-G.R. CV No. 38232, 1 which
overturned the decision of the Regional Trial Court of Lucena (2) Ordering defendant
City in Civil Case No. 90-33. Viena Malabonga to
return to plaintiff Christina
Ayuste the possession of
At the outset, we note that Christina Ayuste, the plaintiff in the the house and lot
lower court and the original petitioner herein, died on covered by Transfer
November 21, 1995. 2 In his Comment dated January 14, Certificate of Title No. T-
1998 to private respondent's Manifestation informing the 50045, now in the name
Court of Christina Ayuste's death, petitioner's counsel re- of defendant Viena
affirmed such fact of death and informed the Court of the Malabonga, together with
names of Christina Ayuste's legal representatives. 3 The claim the improvements
not having been extinguished by the death of Christina thereon;
Ayuste, we ordered the substitution of her heirs Marlon
Ayuste and Arlaine Ayuste-Yu for Christina Ayuste in our
Resolution dated August 11, 1999.1âwphi1.nêt (3) Directing the Register
of Deeds of Lucena City
to cancel Transfer
Christina Ayuste married Rafael Ayuste on September 24, Certificate of Title No. T-
1961. Although the couple resided in Manila, they operated a 50046 and to issue in the
machine shop in Barangay Iyam, Lucena City, which was name of plaintiff and her
managed by Rafael Ayuste. In order to serve as a temporary children by the late
residence for Rafael Ayuste while in Lucena, the couple Rafael Ayuste new
purchased on August 26, 1982 a parcel of land with an area Transfer Certificate of
of 180 square meters on which a residential house was built Title in lieu thereof,
situated at Yale Street, University Village, Barrio Ibabang subject to all/any liens
Dupay, Lucena City from spouses Pedro and Aida David. A and encumbrances
deed of sale 4 was executed and signed by the parties and annotated on the
filed with the Register of Deeds of Lucena City. On October memorandum of the title
23, 1983, the Register of Deeds of Lucena City issued to be cancelled;
Transfer Certificate of Title No. T-42972 in the name of
"RAFAEL T. AYUSTE, married to Christina Ayuste. 5
(4) Ordering plaintiff
6
Christina Ayuste to pay
On February 27, 1987, a deed of absolute sale   was the defendant Vienna
executed by Rafael Ayuste in favor of private respondent Malabonga the sum of
whereby the former sold the abovementioned parcel of land to P258,200.00 for the
the latter for P40,000, which amount Rafael Ayuste improvements introduced
acknowledged having received in the deed. On page 2 of this on the lot and house as
deed appears the signature of Christina Ayuste below the well as for maintenance
phrase "With my conformity." The deed of sale was registered of the premises; and
with the Register of Deeds of Lucena City on March 5, 1987
and Transfer Certificate of Title No. T-50046 was issued in
the name of private respondent. 7 (5) Ordering defendant to
pay plaintiff the amount of
rents received from the
After Rafael Ayuste's death on October 13, 1989, Christina premises starting March,
Ayuste discovered, in the course of an inventory of their 1990 until such time that
properties, that the title to the land in Lucena was missing. she finally turns-over (sic)
She searched for it in the office of her husband in Lucena City the possession of the
and it was then that she learned from her employees about house and lot to plaintiff,
the sale of the house and lot by her husband to private at the rate of P2,700.00
respondent. per month.

On March 2, 1990, Christina Ayuste filed a complaint with the
Regional Trial Court of Lucena City for the annulment of the
sale, cancellation of the title issued in the name of private
respondent and for the payment of moral, exemplary and
actual damages. In her complaint Christina Ayuste alleges
that her signature on the deed of sale was forged and that her
husband Rafael Ayuste sold the property without her
knowledge and consent.
The Regional Trial Court rendered its Decision on June 20,
1991, the dispositive portion of which provides as follows —
With costs against defendant. 8
Both parties appealed the trial court's decision. On January
23, 1995, the Court of Appeals reversed the trial court's ruling
by holding that Christina Ayuste's right to bring an action for
the annulment of the sale is barred by laches because of her
failure to file it during the existence of the marriage in
accordance with article 173 of the Civil Code. Also, it found
private respondent to be entitled to the protection of a buyer
in good faith and for value. The pertinent portion of the public
respondent's decision provides —

WHEREFORE, judgment is hereby Record shows that plaintiff-appellant wife

rendered as follows: (sic) instituted on March 2, 1990 her action
for annulment of the sale executed by her

8
husband on February 27, 1987 — long after
said vendor-husband died in 1989. It is thus
clear that the action for annulment of the
sale was not instituted "during the
marriage" as required by Article 173, the
very provision of law which grants the wife
the privilege/right to have the sale executed
by her husband annulled, in derogation of
the suppose (sic) vested right of the buyer.
The two periods provided for in said Article
173 — "during the marriage" and "within 10
years" should concur.
We find no merit in plaintiff-appellant's claim
that she discovered the sale, only after her
husband's death, when she made an
inventory and found out that the pertinent
titles to the land subject of the sale were
missing. It is settled in this jurisdiction that
registration with the Register of Deeds is
notice to the whole world. The questioned
deed of sale has long been registered with
the Register of Deeds of Lucena City — on
March 5, 1987 — and in fact the said
property was registered in the name of
defendant-appellant under Transfer
Certificate of Title No. T-50046. Said TCT in
the name of defendant-appellant is now
indefeasible.
The peculiar circumstances that militates in
favor of defendant-appellant buyer are as
follows: The questioned deed of sale was
not actually without the wife's signature
signifying marital consent, so to speak.
Evidently, defendant-appellant was led to
believe by the husband-vendor that plaintiff-
appellant gave her marital consent to the
sale, as said husband presented a deed of
sale supposedly pre-signed by his wife,
plaintiff-appellant. Defendant-appellant is
therefore undoubtedly a buyer in good faith
and for value, with vested rights equally
entitled to the protection of the law. The
questioned deed of sale was duly
registered in the name of defendant-
appellant who was issued a Transfer
Certificate of Title.
xxx xxx xxx
Unlike the statute of limitations, laches is
not a mere question of time but is
principally a question of the inequity on
unfairness of permitting a stale right to be
enforced or asserted. (Marcelino vs. CA,
210 SCRA 444). For failure of the plaintiff-
appellant wife to institute her action for
annulment of sale, while her husband-
vendor was still alive as required by Article
173 of the New Civil Code, plaintiff-
appellant wife's right under Article 166 of
the same Code has become stale and is
now barred by laches.
In view of the foregoing findings, We rule
that the trial court erred in giving due
course to the action for annulment of sale.
With the foregoing findings and resolution
the other issues raised in this appeal are
now moot and academic.
WHEREFORE, in view of all the foregoing,
judgment is hereby rendered giving due
course to the appeal of defendant-
appellant, —and— dismissing the appeal of
plaintiff-appellant.
The decision dated June 20, 1991 rendered
by the Regional Trial Court is REVERSED
and SET ASIDE.
The Deed of Absolute Sale executed on
February 27, 1987 by and between
defendant-appellant and plaintiff-appellant's
husband is declared VALID and BINDING
upon the plaintiff-appellant. 9
Both the trial and appellate court decisions have established
that Rafael Ayuste sold conjugal property without the consent
of Christina Ayuste, his wife. This factual finding shall not be
disturbed because only questions of law are reviewed in an
appeal under Rule 45 of the Rules of Court subject to certain
well-defined exceptions none of which are present in the
instant case. The only issue which remains to be resolved is
whether petitioners are entitled to the annulment of the
contract of sale entered into by Rafael Ayuste without the
consent of Christina Ayuste.
Petitioners claim that since the law expressly prohibits the
husband from alienating real property belonging to the
conjugal partnership without his wife's consent, the contract of
sale in question is a nullity pursuant to article 1409 of the Civil
Code which provides that contracts expressly prohibited by
law are inexistent and void from the beginning. It is further
averred by petitioners that the present action is not barred
because the action to declare the nullity of a contract does not
prescribe. Furthermore, Christina Ayuste cannot be faulted for
having brought the action only after the death of her husband,
despite the periods stated in article 173 of the Civil Code,
since she had no knowledge of the sale during his lifetime as
he concealed the same from her. Finally, it is contended that
article 166 is the relevant provision, not article 173. 10
Under the Civil Code, although the husband is the
administrator of the conjugal partnership, 11 he cannot
alienate or encumber any real property of the conjugal
partnership without his wife's consent, 12 subject only to
certain exceptions specified in the law. 13 The remedy
available to the wife in case her husband should dispose of
their conjugal property without her consent is laid down in
Article 173 of the Civil Code which states that —
The wife may, during the
marriage, and within ten
years from the
transaction questioned,
ask the courts for the
annulment of any
contract of the husband
entered into without her
consent, when such
consent is required, or
any act or contract of the
husband which tends to
defraud her or impair her
interest in the conjugal
partnership property.
Should the wife fail to
exercise this right, she or
her heirs, after the
dissolution of the
marriage, may demand
the value of property
fraudulently alienated by
the husband. (emphasis
supplied)
9
There is no ambiguity in the wording of the law. A sale of real
property of the conjugal partnership made by the husband
without the consent of his wife is voidable. 14 The action for
annulment must be brought during the marriage and within
ten years from the questioned transaction by the
wife. 15 Where the law speaks in clear and categorical
language, there is no room for interpretation — there is room
only for application. 16
In the present case, the deed of sale was executed on
February 27, 1987. Rafael Ayuste died on October 13, 1989.
However, it was only on March 2, 1990 that Christina Ayuste
filed her complaint with the lower court asking for the
annulment of the sale. Although the action was filed within ten
years from the questioned transaction, it was not brought
during the existence of the marriage which was dissolved
upon the death of Rafael Ayuste in 1989. 17 Clearly, the action
for annulment filed by Christina Ayuste was barred for having
been filed out of time.
The fact that Christina Ayuste only learned of the sale after
the death of her husband is not material. We affirm public
respondent's ruling that registration of the sale with the
Register of Deeds constitutes a notice to the whole
world. 18 Precisely, the purpose of the legislature in providing
a system of registration is to afford a means of publicity so
that persons dealing with real property may search the
records and thereby, acquire security against instruments the
execution of which have not been revealed to them. 19 Since
the deed of sale was registered on March 5, 1987, Christina
Ayuste is presumed to have constructive notice of the sale
from such date.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED. No pronouncement as to costs.
A sale or encumbrance of conjugal (or community) property
concluded after the effectivity of the Family Code is governed
by an entirely different rule that now treats such a disposition
to be void if done without the conjoint consent of the spouses
or, in case of a spouse's inability, the authority of the court
(see Art. 124, 4 Family Code). The declaration that the
disposition by just one of the spouses is void settles the
apparent conflict in some of the rulings during the regime of
the 1950 Civil Code, in construing the provisions of said code
found in Articles 161, 162, 166, 171 and 173, in relation to
Articles 1390, 7403 and 1874, thereof.
The Family Code has also abandoned the 1950 Civil Code
concept of having the husband, absent a contrary statement
in a marriage settlement or in a public instrument executed by
the husband or an order of a court (Arts. 168, 190 and 196,
Civil Code), as the statutory administrator of the conjugal
partnership of gains (Art. 165, Civil Code) that permitted suits
to bind the conjugal partnership even where the wife was not
named as a party defendant along with the husband (Stosa,
Inc., vs. Court of Appeals, 182 SCRA 862). Article 124 of the
Family Code, like the rule established in the system of
absolute community of property (see Arts. 96-98, Family
Code), instead confers the administration and enjoyment 5 of
the conjugal property on the spouses jointly. The marriage
settlement, however, may provide for the administration of the
property by one of the spouses, the provisions of the Family
Code on conjugal partnership of gain being merely suppletory
thereto. In case of disagreement in the joint administration
and enjoyment of the partnership property, the husband's
decision shall prevail but the wife may avail herself of the
"proper remedy" in court "within five years from the date of the
contract implementing the decision."

SO ORDERED.

Melo, Panganiban and Purisima, JJ., concur.

Vitug, J., please see concurring opinion.

Separate Opinions

VITUG., J,  concurring opinion;

The questioned sale was concluded on 27 February 1987,

before the Family Code took effect; accordingly, the
transaction could still be aptly governed by the then governing
provisions of the Civil Code. Under this Code, the husband
could not alienate or encumber any conjugal real property
(acquired by the partnership after the effective date of the
Civil Code) without the consent, express or implied, of the
wife 1 (Art. 166, Civil Code; Bautista vs. Lovina, 98 Phil. 1006,
1956), otherwise, said the Supreme Court in Garcia vs. Court
of Appeals (130 SCRA 433, 1984), reiterating Tolentino
vs.  Cardenas (123 Phil. 517, 1966), the disposition would be
void. I share the view of my colleagues that such a contract,
absent the wife's consent should be considered merely
voidable consistently with article 173 2 of the Civil Code under
which provision, the wife could, during the marriage and
within 10 years from the questioned transaction, seek its
annulment (Felipe vs. Heirs of Maximo Aldon, 120 SCRA 628
[1983]; Reyes vs. De Leon, 20 SCRA 369 [1967]; see Roxas
vs. CA, 198 SCRA 541, 1991 which applied Art. 173 to a
lease contract). Failing to do so, she or her heirs, after the
dissolution of the marriage, could demand the value of the
property alienated (Art. 173, Civil Code). It might not be amiss
to say that an unauthorized sale by the husband of conjugal
real property, not being the administrator thereof, or of the
exclusive parapherna of the wife, not having obtained her
prior consent thereto, could be void under the provisions of
Article 1874 3 of the Civil Code.

10
THIRD DIVISION G.R. No. 123450. August 31, 2005
GERARDO B. CONCEPCION, Petitioners, vs.
COURT OF APPEALS and MA. THERESA
ALMONTE, Respondent.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity,
needs special safeguard and care, including appropriate legal
protection before as well as after birth. 1 In case of assault on
his rights by those who take advantage of his innocence and
vulnerability, the law will rise in his defense with the single-
minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and
private respondent Ma. Theresa Almonte, and a child named
Jose Gerardo. Gerardo and Ma. Theresa were married on
December 29, 1989.2 After their marriage, they lived with Ma.
Theresa’s parents in Fairview, Quezon City.3 Almost a year
later, on December 8, 1990, Ma. Theresa gave birth to Jose
Gerardo.4
Gerardo and Ma. Theresa’s relationship turned out to be
short-lived, however. On December 19, 1991, Gerardo filed a
petition to have his marriage to Ma. Theresa annulled on the
ground of bigamy.5 He alleged that nine years before he
married Ma. Theresa on December 10, 1980, she had
married one Mario Gopiao, which marriage was never
annulled.6 Gerardo also found out that Mario was still alive
and was residing in Loyola Heights, Quezon City.7
Ma. Theresa did not deny marrying Mario when she was
twenty years old. She, however, averred that the marriage
was a sham and that she never lived with Mario at all.8
The trial court ruled that Ma. Theresa’s marriage to Mario was
valid and subsisting when she married Gerardo and annulled
her marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of
the child was awarded to Ma. Theresa while Gerardo was
granted visitation rights.9
Ma. Theresa felt betrayed and humiliated when Gerardo had
their marriage annulled. She held him responsible for the
‘bastardization’ of Gerardo. She moved for the
reconsideration of the above decision "INSOFAR ONLY as
that portion of the … decision which grant(ed) to the petitioner
so-called ‘visitation rights’… between the hours of 8 in the
morning to 12:00 p.m. of any Sunday."10 She argued that
there was nothing in the law granting "visitation rights in favor
of the putative father of an illegitimate child."11 She further
maintained that Jose Gerardo’s surname should be changed
from Concepcion to Almonte, her maiden name, following the
rule that an illegitimate child shall use the mother’s surname.
Gerardo opposed the motion. He insisted on his visitation
rights and the retention of ‘Concepcion’ as Jose Gerardo’s
surname. Applying the "best interest of the child" principle, the
trial court denied Ma. Theresa’s motion and made the
following observations:
It is a pity that the parties herein seem to be using their son to
get at or to hurt the other, something they should never do if
they want to assure the normal development and well-being
of the boy.
The Court allowed visitorial rights to the father knowing that
the minor needs a father, especially as he is a boy, who must
have a father figure to recognize – something that the mother
alone cannot give. Moreover, the Court believes that the
emotional and psychological well-being of the boy would be
better served if he were allowed to maintain relationships with
his father.
There being no law which compels the Court to act one way
or the other on this matter, the Court invokes the provision of
Art. 8, PD 603 as amended, otherwise known as the Child
and Youth Welfare Code, to wit:
"In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount
consideration." WHEREFORE, the respondent’s Motion for
Reconsideration has to be, as it is hereby DENIED.12
Ma. Theresa elevated the case to the Court of Appeals,
assigning as error the ruling of the trial court granting
visitation rights to Gerardo. She likewise opposed the
continued use of Gerardo’s surname (Concepcion) despite
the fact that Jose Gerardo had already been declared
illegitimate and should therefore use her surname (Almonte).
The appellate court denied the petition and
affirmed in toto the decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in
the law that granted a putative father visitation rights over his
illegitimate child, the appellate court affirmed the "best interest
of the child" policy invoked by the court a quo. It ruled that
"[a]t bottom, it (was) the child’s welfare and not the
convenience of the parents which (was) the primary
consideration in granting visitation rights a few hours once a
week."14
The appellate court likewise held that an illegitimate child
cannot use the mother’s surname motu proprio. The child,
represented by the mother, should file a separate proceeding
for a change of name under Rule 103 of the Rules of Court to
effect the correction in the civil registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the
adverse decision of the appellate court. She also filed a
motion to set the case for oral arguments so that she could
better ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of
the parties, the appellate court resolved the motion for
reconsideration. It reversed its earlier ruling and held that
Jose Gerardo was not the son of Ma. Theresa by Gerardo but
by Mario during her first marriage:
It is, therefore, undeniable – established by the evidence in
this case – that the appellant [Ma. Theresa] was married to
Mario Gopiao, and that she had never entered into a lawful
marriage with the appellee [Gerardo] since the so-called
"marriage" with the latter was void ab initio. It was [Gerardo]
himself who had established these facts. In other words, [Ma.
Theresa] was legitimately married to Mario Gopiao when the
child Jose Gerardo was born on December 8, 1990.
Therefore, the child Jose Gerardo – under the law – is the
legitimate child of the legal and subsisting marriage between
[Ma. Theresa] and Mario Gopiao; he cannot be deemed to be
the illegitimate child of the void and non-existent ‘marriage’
between [Ma. Theresa] and [Gerardo], but is said by the law
to be the child of the legitimate and existing marriage between
[Ma. Theresa] and Mario Gopiao (Art. 164, Family Code).
Consequently, [she] is right in firmly saying that [Gerardo] can
claim neither custody nor visitorial rights over the child Jose
Gerardo. Further, [Gerardo] cannot impose his name upon
the child. Not only is it without legal basis (even supposing the
child to be his illegitimate child [Art. 146, The Family Code]); it
would tend to destroy the existing marriage between [Ma.
Theresa] and Gopiao, would prevent any possible
rapproachment between the married couple, and would mean
a judicial seal upon an illegitimate relationship.16
11
The appellate court brushed aside the common admission of
Gerardo and Ma. Theresa that Jose Gerardo was their son. It
gave little weight to Jose Gerardo’s birth certificate showing
that he was born a little less than a year after Gerardo and
Ma. Theresa were married:
We are not unaware of the movant’s argument that various
evidence exist that appellee and the appellant have judicially
admitted that the minor is their natural child. But, in the same
vein, We cannot overlook the fact that Article 167 of the
Family Code mandates:
"The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been
sentenced as an adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor
cannot be deprived of his/her legitimate status on the bare
declaration of the mother and/or even much less, the
supposed father. In fine, the law and only the law
determines who are the legitimate or illegitimate children
for one’s legitimacy or illegitimacy cannot ever be
compromised. Not even the birth certificate of the minor can
change his status for the information contained therein are
merely supplied by the mother and/or the supposed father. It
should be what the law says and not what a parent says it
is.17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration
of the above decision but the same was denied.18 Hence, this
appeal. The status and filiation of a child cannot be
compromised.19 Article 164 of the Family Code is clear. A child
who is conceived or born during the marriage of his parents is
legitimate.20
As a guaranty in favor of the child21 and to protect his status of
legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although
the mother may have declared against its legitimacy or may
have been sentenced as an adulteress.
The law requires that every reasonable presumption be made
in favor of legitimacy.22 We explained the rationale of this rule
in the recent case of Cabatania v. Court of Appeals23 :
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles
of natural justice and the supposed virtue of the mother. It is
grounded on the policy to protect the innocent offspring from
the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He
cannot. He has no standing in law to dispute the status of
Jose Gerardo. Only Ma. Theresa’s husband Mario or, in a
proper case,25 his heirs, who can contest the legitimacy of the
child Jose Gerardo born to his wife.26 Impugning the
legitimacy of a child is a strictly personal right of the husband
or, in exceptional cases, his heirs. 27 Since the marriage of
Gerardo and Ma. Theresa was void from the very beginning,
he never became her husband and thus never acquired any
right to impugn the legitimacy of her child.
The presumption of legitimacy proceeds from the sexual
union in marriage, particularly during the period of
conception.28 To overthrow this presumption on the basis of
Article 166 (1)(b) of the Family Code, it must be shown
beyond reasonable doubt that there was no access that could
have enabled the husband to father the child.29 Sexual
intercourse is to be presumed where personal access is not
disproved, unless such presumption is rebutted by evidence
to the contrary.30
The presumption is quasi-conclusive and may be refuted only
by the evidence of physical impossibility of coitus between
husband and wife within the first 120 days of the 300 days
which immediately preceded the birth of the child.31
To rebut the presumption, the separation between the
spouses must be such as to make marital intimacy
impossible.32 This may take place, for instance, when they
reside in different countries or provinces and they were never
together during the period of conception.33 Or, the husband
was in prison during the period of conception, unless it
appears that sexual union took place through the violation of
prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were
living together in Fairview, Quezon City, Mario was living in
Loyola Heights which is also in Quezon City. Fairview and
Loyola Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same
city but also that no evidence at all was presented to disprove
personal access between them. Considering these
circumstances, the separation between Ma. Theresa and her
lawful husband, Mario, was certainly not such as to make it
physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence
sufficient to defeat the assumption should be presented by
him who asserts the contrary. There is no such evidence
here. Thus, the presumption of legitimacy in favor of Jose
Gerardo, as the issue of the marriage between Ma. Theresa
and Mario, stands.
Gerardo relies on Ma. Theresa’s statement in her answer 35 to
the petition for annulment of marriage36 that she never lived
with Mario. He claims this was an admission that there was
never any sexual relation between her and Mario, an
admission that was binding on her.
Gerardo’s argument is without merit.
First, the import of Ma. Theresa’s statement is that Jose
Gerardo is not her legitimate son with Mario but her
illegitimate son with Gerardo. This declaration ― an avowal
by the mother that her child is illegitimate ― is the very
declaration that is proscribed by Article 167 of the Family
Code.
The language of the law is unmistakable. An assertion by the
mother against the legitimacy of her child cannot affect the
legitimacy of a child born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not
mean that there was never an instance where Ma. Theresa
could have been together with Mario or that there occurred
absolutely no intercourse between them. All she said was that
she never lived with Mario. She never claimed that nothing
ever happened between them.
Telling is the fact that both of them were living in Quezon City
during the time material to Jose Gerardo’s conception and
birth. Far from foreclosing the possibility of marital intimacy,
their proximity to each other only serves to reinforce such
possibility. Thus, the impossibility of physical access was
never established beyond reasonable doubt.
Third, to give credence to Ma. Theresa’s statement is to allow
her to arrogate unto herself a right exclusively lodged in the
husband, or in a proper case, his heirs.37 A mother has no
right to disavow a child because maternity is never
uncertain.38 Hence, Ma. Theresa is not permitted by law to
question Jose Gerardo’s legitimacy.
12
Finally, for reasons of public decency and morality, a married
woman cannot say that she had no intercourse with her
husband and that her offspring is illegitimate. 39 The
proscription is in consonance with the presumption in favor of
family solidarity. It also promotes the intention of the law to
lean toward the legitimacy of children.40
Gerardo’s insistence that the filiation of Jose Gerardo was
never an issue both in the trial court and in the appellate court
does not hold water. The fact that both Ma. Theresa and
Gerardo admitted and agreed that Jose Gerardo was born to
them was immaterial. That was, in effect, an agreement that
the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the mother
to make a declaration against the legitimacy of her child and
consenting to the denial of filiation of the child by persons
other than her husband. These are the very acts from which
the law seeks to shield the child.
Public policy demands that there be no compromise on the
status and filiation of a child.41 Otherwise, the child will be at
the mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardo’s birth certificate is
misplaced. It has no evidentiary value in this case because it
was not offered in evidence before the trial court. The rule is
that the court shall not consider any evidence which has not
been formally offered.42
Moreover, the law itself establishes the status of a child from
the moment of his birth.43 Although a record of birth or birth
certificate may be used as primary evidence of the filiation of
a child,44 as the status of a child is determined by the law
itself, proof of filiation is necessary only when the legitimacy
of the child is being questioned, or when the status of a child
born after 300 days following the termination of marriage is
sought to be established.45
Here, the status of Jose Gerardo as a legitimate child was not
under attack as it could not be contested collaterally and,
even then, only by the husband or, in extraordinary cases, his
heirs. Hence, the presentation of proof of legitimacy in this
case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of
the facts contained therein.46 As prima facie evidence, the
statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with
respect to the truthfulness of the statements made therein by
the interested parties.47 Between the certificate of birth which
is prima facie evidence of Jose Gerardo’s illegitimacy and the
quasi-conclusive presumption of law (rebuttable only by proof
beyond reasonable doubt) of his legitimacy, the latter shall
prevail. Not only does it bear more weight, it is also more
conducive to the best interests of the child and in consonance
with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would
doggedly press for Jose Gerardo’s illegitimacy while claiming
that they both had the child’s interests at heart. The law,
reason and common sense dictate that a legitimate status is
more favorable to the child. In the eyes of the law, the
legitimate child enjoys a preferred and superior status. He is
entitled to bear the surnames of both his father and mother,
full support and full inheritance.48 On the other hand, an
illegitimate child is bound to use the surname and be under
the parental authority only of his mother. He can claim
support only from a more limited group and his legitime is only
half of that of his legitimate counterpart.49 Moreover (without
unwittingly exacerbating the discrimination against him), in the
eyes of society, a ‘bastard’ is usually regarded as bearing a
stigma or mark of dishonor. Needless to state, the legitimacy
presumptively vested by law upon Jose Gerardo favors his
interest.
It is unfortunate that Jose Gerardo was used as a pawn in the
bitter squabble between the very persons who were
passionately declaring their concern for him. The paradox
was that he was made to suffer supposedly for his own sake.
This madness should end.
This case has been pending for a very long time already.
What is specially tragic is that an innocent child is involved.
Jose Gerardo was barely a year old when these proceedings
began. He is now almost fifteen and all this time he has been
a victim of incessant bickering. The law now comes to his aid
to write finis to the controversy which has unfairly hounded
him since his infancy.
Having only his best interests in mind, we uphold the
presumption of his legitimacy. As a legitimate child, Jose
Gerardo shall have the right to bear the surnames of his
father Mario and mother Ma. Theresa, in conformity with the
provisions of the Civil Code on surnames.50 A person’s
surname or family name identifies the family to which he
belongs and is passed on from parent to child. 51 Hence,
Gerardo cannot impose his surname on Jose Gerardo who is,
in the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardo’s name and effecting
the corrections of the entries in the civil register regarding his
paternity and filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of absolute nullity of
marriage, Article 49 of the Family Code grants visitation rights
to a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and
child to each other’s company. There being no such parent-
child relationship between them, Gerardo has no legally
demandable right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of
PD 603, otherwise known as the Child and Youth Welfare
Code, is clear and unequivocal:
Article 8. Child’s Welfare Paramount. – In all questions
regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of
a Child of which the Philippines is a signatory is similarly
emphatic:
Article 3
1. 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.
The State as parens patriae affords special protection to
children from abuse, exploitation and other conditions
prejudicial to their development. It is mandated to provide
protection to those of tender years.52 Through its laws, the
State safeguards them from every one, even their own
parents, to the end that their eventual development as
responsible citizens and members of society shall not be
impeded, distracted or impaired by family acrimony. This is
especially significant where, as in this case, the issue
concerns their filiation as it strikes at their very identity and
lineage. WHEREFORE, the petition is hereby DENIED. The
September 14, 1995 and January 10, 1996 resolutions of the
Court of Appeals in CA-G.R. CV No. 40651 are hereby
AFFIRMED. Costs against petitioner.
13
SECOND DIVISION G.R. No. 138961           March 7, 2002
WILLIAM LIYAO, JR., represented by his mother Corazon
Garcia, petitioner, vs.
JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN,
TITA ROSE L. TAN AND LINDA CHRISTINA
LIYAO, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the
decision dated June 4, 1999 of the Court of Appeals in CA-
G.R. C.V. No. 453941 which reversed the decision of the
Regional Trial Court (RTC) of Pasig, Metro Manila, Branch
167 in declaring William Liyao, Jr. as the illegitimate
(spurious) son of the deceased William Liyao and ordering
Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L.
Tan and Linda Christina Liyao to recognize and acknowledge
William Liyao, Jr. as a compulsory heir of the deceased
William Liyao and entitled to all successional rights as such
and to pay the costs of the suit.
On November 29,1976, William Liyao, Jr., represented by his
mother Corazon G. Garcia, filed Civil Case No. 24943 before
the RTC of Pasig, Branch 167 which is an action for
compulsory recognition as "the illegitimate (spurious) child of
the late William Liyao" against herein respondents, Juanita
Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and
Linda Christina Liyao.2 The complaint was later amended to
include the allegation that petitioner "was in continuous
possession and enjoyment of the status of the child of said
William Liyao," petitioner having been "recognized and
acknowledged as such child by the decedent during his
lifetime."3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately
from Ramon M. Yulo for more than ten (10) years at the time
of the institution of the said civil case. Corazon cohabited with
the late William Liyao from 1965 up to the time of William’s
untimely demise on December 2, 1975. They lived together in
the company of Corazon’s two (2) children from her subsisting
marriage, namely:
Enrique and Bernadette, both surnamed Yulo, in a succession
of rented houses in Quezon City and Manila. This was with
the knowledge of William Liyao’s legitimate children, Tita
Rose L. Tan and Linda Christina Liyao-Ortiga, from his
subsisting marriage with Juanita Tanhoti Liyao. Tita Rose and
Christina were both employed at the Far East Realty
Investment, Inc. of which Corazon and William were then vice
president and president, respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co.
which required the signature of her husband, Ramon Yulo, to
show his consent to the aforesaid sale. She failed to secure
his signature and, had never been in touch with him despite
the necessity to meet him. Upon the advice of William Liyao,
the sale of the parcel of land located at the Valle Verde
Subdivision was registered under the name of Far East Realty
Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at
the Cardinal Santos Memorial Hospital. During her three (3)
day stay at the hospital, William Liyao visited and stayed with
her and the new born baby, William, Jr. (Billy). All the medical
and hospital expenses, food and clothing were paid under the
account of William Liyao. William Liyao even asked his
confidential secretary, Mrs. Virginia Rodriguez, to secure a
copy of Billy’s birth certificate. He likewise instructed Corazon
to open a bank account for Billy with the Consolidated Bank
and Trust Company4 and gave weekly amounts to be
deposited therein.5 William Liyao would bring Billy to the
office, introduce him as his good looking son and had their
pictures taken together.6
During the lifetime of William Liyao, several pictures were
taken showing, among others, William Liyao and Corazon
together with Billy’s godfather, Fr. Julian Ruiz, William Liyao’s
legal staff and their wives while on vacation in
Baguio.7 Corazon also presented pictures in court to prove
that that she usually accompanied William Liyao while
attending various social gatherings and other important
meetings.8 During the occasion of William Liyao’s last birthday
on November 22, 1975 held at the Republic Supermarket,
William Liyao expressly acknowledged Billy as his son in the
presence of Fr. Ruiz, Maurita Pasion and other friends and
said, "Hey, look I am still young, I can still make a good
looking son."9 Since birth, Billy had been in continuous
possession and enjoyment of the status of a recognized
and/or acknowledged child of William Liyao by the latter’s
direct and overt acts. William Liyao supported Billy and paid
for his food, clothing and other material needs. However, after
William Liyao’s death, it was Corazon who provided sole
support to Billy and took care of his tuition fees at La Salle,
Greenhills. William Liyao left his personal belongings,
collections, clothing, old newspaper clippings and laminations
at the house in White Plains where he shared his last
moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she
knew both Corazon G. Garcia and William Liyao who were
godparents to her children. She used to visit Corazon and
William Liyao from 1965-1975. The two children of Corazon
from her marriage to Ramon Yulo, namely, Bernadette and
Enrique (Ike), together with some housemaids lived with
Corazon and William Liyao as one family. On some occasions
like birthdays or some other celebrations, Maurita would sleep
in the couple’s residence and cook for the family. During
these occasions, she would usually see William Liyao in
sleeping clothes. When Corazon, during the latter part of
1974, was pregnant with her child Billy, Maurita often visited
her three (3) to four (4) times a week in Greenhills and later
on in White Plains where she would often see William Liyao.
Being a close friend of Corazon, she was at the Cardinal
Santos Memorial Hospital during the birth of Billy. She
continuously visited them at White Plains and knew that
William Liyao, while living with her friend Corazon, gave
support by way of grocery supplies, money for household
expenses and matriculation fees for the two (2) older children,
Bernadette and Enrique.
During William Liyao’s birthday on November 22, 1975 held at
the Republic Supermarket Office, he was carrying Billy and
told everybody present, including his two (2) daughters from
his legal marriage, "Look, this is my son, very guapo and
healthy."10 He then talked about his plan for the baptism of
Billy before Christmas. He intended to make it "engrande" and
"make the bells of San Sebastian Church
ring."11 Unfortunately, this did not happen since William Liyao
passed away on December 2, 1975. Maurita attended Mr.
Liyao’s funeral and helped Corazon pack his clothes. She
even recognized a short sleeved shirt of blue and gray12 which
Mr. Liyao wore in a photograph13 as well as another shirt of
lime green14 as belonging to the deceased. A note was also
presented with the following inscriptions: "To Cora, Love
From William."15 Maurita remembered having invited the
couple during her mother’s birthday where the couple had
their pictures taken while exhibiting affectionate poses with
one another. Maurita knew that Corazon is still married to
Ramon Yulo since her marriage has not been annulled nor is
Corazon legally separated from her said husband. However,
during the entire cohabitation of William Liyao with Corazon
Garcia, Maurita had not seen Ramon Yulo or any other man
in the house when she usually visited Corazon.
14
Gloria Panopio testified that she is the owner of a beauty
parlor and that she knew that Billy is the son of her neighbors,
William Liyao and Corazon Garcia, the latter being one of her
customers. Gloria met Mr. Liyao at Corazon’s house in Scout
Delgado, Quezon City in the Christmas of 1965. Gloria had
numerous occasions to see Mr. Liyao from 1966 to 1974 and
even more so when the couple transferred to White Plains,
Quezon City from 1974-1975. At the time Corazon was
conceiving, Mr. Liyao was worried that Corazon might have
another miscarriage so he insisted that she just stay in the
house, play mahjong and not be bored. Gloria taught Corazon
how to play mahjong and together with Atty. Brillantes’ wife
and sister-in-law, had mahjong sessions among themselves.
Gloria knew that Mr. Liyao provided Corazon with a rented
house, paid the salary of the maids and food for Billy. He also
gave Corazon financial support. Gloria knew that Corazon is
married but is separated from Ramon Yulo although Gloria
never had any occasion to see Mr. Yulo with Corazon in the
house where Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his
father, Ramon Yulo, from the time that the latter abandoned
and separated from his family. Enrique was about six (6)
years old when William Liyao started to live with them up to
the time of the latter’s death on December 2, 1975. Mr. Liyao
was very supportive and fond of Enrique’s half brother, Billy.
He identified several pictures showing Mr. Liyao carrying Billy
at the house as well as in the office. Enrique’s testimony was
corroborated by his sister, Bernadette Yulo, who testified that
the various pictures showing Mr. Liyao carrying Billy could not
have been superimposed and that the negatives were in the
possession of her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of
the story.
Linda Christina Liyao-Ortiga stated that her parents, William
Liyao and Juanita Tanhoti-Liyao, were legally married. 16 Linda
grew up and lived with her parents at San Lorenzo Village,
Makati, Metro Manila until she got married; that her parents
were not separated legally or in fact and that there was no
reason why any of her parents would institute legal separation
proceedings in court. Her father lived at their house in San
Lorenzo Village and came home regularly. Even during out of
town business trips or for conferences with the lawyers at the
office, her father would change his clothes at home because
of his personal hygiene and habits. Her father reportedly had
trouble sleeping in other people’s homes. Linda described him
as very conservative and a strict disciplinarian. He believed
that no amount of success would compensate for failure of a
home. As a businessman, he was very tough, strong, fought
for what he believed in and did not give up easily. He suffered
two strokes before the fatal attack which led to his death on
December 2, 1975.
He suffered a stroke at the office sometime in April-May 1974
and was attended by Dr. Santiago Co. He then stayed in the
house for two (2) to three (3) months for his therapy and
acupuncture treatment. He could not talk, move, walk, write or
sign his name. In the meantime, Linda and her sister, Tita
Rose Liyao-Tan, ran the office. She handled the collection of
rents while her sister referred legal matters to their lawyers.
William Liyao was bedridden and had personally changed. He
was not active in business and had dietary restrictions. Mr.
Liyao also suffered a milder stroke during the latter part of
September to October 1974. He stayed home for two (2) to
three (3) days and went back to work. He felt depressed,
however, and was easily bored. He did not put in long hours
in the office unlike before and tried to spend more time with
his family.
Linda testified that she knew Corazon Garcia is still married to
Ramon Yulo. Corazon was not legally separated from her
husband and the records from the Local Civil Registrar do not
indicate that the couple obtained any annulment 17 of their
marriage. Once in 1973, Linda chanced upon Ramon Yulo
picking up Corazon Garcia at the company garage.
Immediately after the death of Linda’s father, Corazon went to
Linda’s office for the return of the former’s alleged
investments with the Far East Realty Investment, Inc.
including a parcel of land sold by Ortigas and Company.
Linda added that Corazon, while still a Vice-President of the
company, was able to take out documents, clothes and
several laminated pictures of William Liyao from the office.
There was one instance when she was told by the guards,
"Mrs. Yulo is leaving and taking out things again."18 Linda then
instructed the guards to bring Mrs. Yulo to the office upstairs
but her sister, Tita Rose, decided to let Corazon Garcia go.
Linda did not recognize any article of clothing which belonged
to her father after having been shown three (3) large suit
cases full of men’s clothes, underwear, sweaters, shorts and
pajamas.
Tita Rose Liyao-Tan testified that her parents were legally
married and had never been separated. They resided at No.
21 Hernandez Street, San Lorenzo Village, Makati up to the
time of her father’s death on December 2, 1975.19 Her father
suffered two (2) minor cardio-vascular arrests (CVA) prior to
his death. During the first heart attack sometime between
April and May 1974, his speech and hands were affected and
he had to stay home for two (2) to three (3) months under
strict medication, taking aldomet, serpadil and cifromet which
were prescribed by Dr. Bonifacio Yap, for high blood pressure
and cholesterol level control.20 Tita Rose testified that after the
death of Mr. Liyao, Corazon Garcia was paid the amount of
One Hundred Thousand Pesos (₱100,000.00) representing
her investment in the Far East Realty Investment Inc. Tita
Rose also stated that her family never received any formal
demand that they recognize a certain William Liyao, Jr. as an
illegitimate son of her father, William Liyao. After assuming
the position of President of the company, Tita Rose did not
come across any check signed by her late father representing
payment to lessors as rentals for the house occupied by
Corazon Garcia. Tita Rose added that the laminated
photographs presented by Corazon Garcia are the personal
collection of the deceased which were displayed at the latter’s
office.
The last witness who testified for the respondents was Ramon
Pineda, driver and bodyguard of William Liyao from 1962 to
1974, who said that he usually reported for work at San
Lorenzo Village, Makati to pick up his boss at 8:00 o’clock in
the morning. At past 7:00 o’clock in the evening, either Carlos
Palamigan or Serafin Villacillo took over as night shift driver.
Sometime between April and May 1974, Mr. Liyao got sick. It
was only after a month that he was able to report to the office.
Thereafter, Mr. Liyao was not able to report to the office
regularly. Sometime in September 1974, Mr. Liyao suffered
from another heart attack. Mr. Pineda added that as a driver
and bodyguard of Mr. Liyao, he ran errands for the latter
among which was buying medicine for him
like capasid and aldomet. On December 2, 1975, Mr. Pineda
was called inside the office of Mr. Liyao. Mr. Pineda saw his
employer leaning on the table. He tried to massage Mr.
Liyao’s breast and decided later to carry and bring him to the
hospital but Mr. Liyao died upon arrival thereat. Mrs. Liyao
and her daughter, Linda Liyao-Ortiga were the first to arrive at
the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be
one of the employees of the Republic Supermarket. People in
the office knew that she was married. Her husband, Ramon
Yulo, would sometimes go to the office. One time, in 1974,
Mr. Pineda saw Ramon Yulo at the office garage as if to fetch
Corazon Garcia. Mr. Yulo who was also asking about cars for
sale, represented himself as car dealer.
Witness Pineda declared that he did not know anything about
the claim of Corazon. He freely relayed the information that
he saw Mr. Yulo in the garage of Republic Supermarket once
15
in 1973 and then in 1974 to Atty. Quisumbing when he went
to the latter’s law office. Being the driver of Mr. Liyao for a
number of years, Pineda said that he remembered having
driven the group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes,
Atty. Magno and Atty. Laguio to Baguio for a vacation
together with the lawyers’ wives. During his employment, as
driver of Mr. Liyao, he does not remember driving for Corazon
Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants as follows:
(a) Confirming the appointment of Corazon G.
Garcia as the guardian ad litem of the minor William
Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the
illegitimate (spurious) son of the deceased William
Liyao;
(c) Ordering the defendants Juanita Tanhoti Liyao,
Pearl Margaret L. Tan, Tita Rose L. Tan and
Christian Liyao, to recognize, and acknowledge the
minor William Liyao, Jr. as a compulsory heir of the
deceased William Liyao, entitled to all succesional
rights as such; and
(d) Costs of suit. 21
In ruling for herein petitioner, the trial court said it was
convinced by preponderance of evidence that the deceased
William Liyao sired William Liyao, Jr. since the latter was
conceived at the time when Corazon Garcia cohabited with
the deceased. The trial court observed that herein petitioner
had been in continuous possession and enjoyment of the
status of a child of the deceased by direct and overt acts of
the latter such as securing the birth certificate of petitioner
through his confidential secretary, Mrs. Virginia Rodriguez;
openly and publicly acknowledging petitioner as his son;
providing sustenance and even introducing herein petitioner
to his legitimate children.
The Court of Appeals, however, reversed the ruling of the trial
court saying that the law favors the legitimacy rather than the
illegitimacy of the child and "the presumption of legitimacy is
thwarted only on ethnic ground and by proof that marital
intimacy between husband and wife was physically
impossible at the period cited in Article 257 in relation to
Article 255 of the Civil Code." The appellate court gave weight
to the testimonies of some witnesses for the respondents that
Corazon Garcia and Ramon Yulo who were still legally
married and have not secured legal separation, were seen in
each other’s company during the supposed time that Corazon
cohabited with the deceased William Liyao. The appellate
court further noted that the birth certificate and the baptismal
certificate of William Liyao, Jr. which were presented by
petitioner are not sufficient to establish proof of paternity in
the absence of any evidence that the deceased, William
Liyao, had a hand in the preparation of said certificates and
considering that his signature does not appear thereon. The
Court of Appeals stated that neither do family pictures
constitute competent proof of filiation. With regard to the
passbook which was presented as evidence for petitioner, the
appellate court observed that there was nothing in it to prove
that the same was opened by William Liyao for either
petitioner or Corazon Garcia since William Liyao’s signature
and name do not appear thereon.
His motion for reconsideration having been denied, petitioner
filed the present petition.
It must be stated at the outset that both petitioner and
respondents have raised a number of issues which relate
solely to the sufficiency of evidence presented by petitioner to
establish his claim of filiation with the late William Liyao.
Unfortunately, both parties have consistently overlooked the
real crux of this litigation: May petitioner impugn his own
legitimacy to be able to claim from the estate of his supposed
father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during
a valid marriage is presumed to be legitimate.22 The
presumption of legitimacy of children does not only flow out
from a declaration contained in the statute but is based on the
broad principles of natural justice and the supposed virtue of
the mother. The presumption is grounded in a policy to
protect innocent offspring from the odium of illegitimacy.23
The presumption of legitimacy of the child, however, is not
conclusive and consequently, may be overthrown by evidence
to the contrary. Hence, Article 255 of the New Civil
Code24 provides:
Article 255. Children born after one hundred and eighty days
following the celebration of the marriage, and before three
hundred days following its dissolution or the separation of the
spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other
than that of the physical impossibility of the husband having
access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the
child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living
separately in such a way that access was not
possible;
3) By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been
living separately for ten (10) years from her husband, Ramon
Yulo, at the time that she cohabited with the late William Liyao
and it was physically impossible for her to have sexual
relations with Ramon Yulo when petitioner was conceived and
born. To bolster his claim, petitioner presented a document
entitled, "Contract of Separation,"25 executed and signed by
Ramon Yulo indicating a waiver of rights to any and all claims
on any property that Corazon Garcia might acquire in the
future.26
The fact that Corazon Garcia had been living separately from
her husband, Ramon Yulo, at the time petitioner was
conceived and born is of no moment. While physical
impossibility for the husband to have sexual intercourse with
his wife is one of the grounds for impugning the legitimacy of
the child, it bears emphasis that the grounds for impugning
the legitimacy of the child mentioned in Article 255 of the Civil
Code may only be invoked by the husband, or in proper
cases, his heirs under the conditions set forth under Article
262 of the Civil Code.27 Impugning the legitimacy of the child
is a strictly personal right of the husband, or in exceptional
cases, his heirs for the simple reason that he is the one
directly confronted with the scandal and ridicule which the
infidelity of his wife produces and he should be the one to
decide whether to conceal that infidelity or expose it in view of
the moral and economic interest involved.28 It is only in
exceptional cases that his heirs are allowed to contest such
16
legitimacy. Outside of these cases, none - even his heirs -
can impugn legitimacy; that would amount o an insult to his
memory.29

It is therefor clear that the present petition initiated by

Corazon G. Garcia as guardian ad litem of the then minor,
herein petitioner, to compel recognition by respondents of
petitioner William Liyao, Jr, as the illegitimate son of the late
William Liyao cannot prosper. It is settled that a child born
within a valid marriage is presumed legitimate even though
the mother may have declared against its legitimacy or may
have been sentenced as an adulteress.30 We cannot allow
petitioner to maintain his present petition and subvert the
clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the
legitimacy of a child born in a valid and subsisting marriage.
The child himself cannot choose his own filiation. If the
husband, presumed to be the father does not impugn the
legitimacy of the child, then the status of the child is fixed, and
the latter cannot choose to be the child of his mother’s alleged
paramour. On the other hand, if the presumption of legitimacy
is overthrown, the child cannot elect the paternity of the
husband who successfully defeated the presumption.31

Do the acts of Enrique and Bernadette Yulo, the undisputed

children of Corazon Garcia with Ramon Yulo, in testifying for
herein petitioner amount to impugnation of the legitimacy of
the latter?

We think not. As earlier stated, it is only in exceptional cases

that the heirs of the husband are allowed to contest the
legitimacy of the child. There is nothing on the records to
indicate that Ramon Yulo has already passed away at the
time of the birth of the petitioner nor at the time of the initiation
of this proceedings. Notably, the case at bar was initiated by
petitioner himself through his mother, Corazon Garcia, and
not through Enrique and Bernadette Yulo. It is settled that the
legitimacy of the child can be impugned only in a direct action
brought for that purpose, by the proper parties and within the
period limited by law.1âwphi1

Considering the foregoing, we find no reason to discuss the

sufficiency of the evidence presented by both parties on the
petitioner’s claim of alleged filiation with the late William
Liyao. In any event, there is no clear, competent and positive
evidence presented by the petitioner that his alleged father
had admitted or recognized his paternity.

WHEREFORE, the instant petition is DENIED. The assailed

decision of the Court of Appeals in CA-G.R. CV No. 45394 is
hereby AFFIRMED. No costs.

17
13 Phil. 249
ARELLANO, C.J.:
From the hearing of the appeal interposed by Roman Abaya
in the special proceedings brought in the Court of First
Instance of La Laguna for the settlement of the intestate
estate and the distribution of the property  of Casiano Abaya it
appears:
I.  As antecedents:  that Casiano Abaya, unmarried, the son
of Romualdo Abaya and Sabina Labadia, died on the 6th of
April, 1899; that Paula  Conde, as the mother of the natural
children Jose and Teopista Conde, whom she states she  had
by Casiano Abaya, on the 6th of November, 1905, moved the
settlement of the said intestate succession; that an
administrator having been appointed for the said estate on the
25th of November, 1905, Roman Abaya, a son of the said
Romualdo Abaya and Sabina Labadia, the parents of the late
Casiano Abaya, came forward and opposed said appointment
and claimed it for himself as being the nearest relative of the
deceased; that this was granted by the court below on the 9th
of January, 1906; that on the 17th of November, 1906,
Roman Abaya moved that, after due process of law, the court
declare him to be the sole heir of Casiano Abaya, to the
exclusion of all other persons, especially of Paula Conde, and
to be therefore entitled to take possession of all the property
of said estate, and that it be adjudicated to him; and that on
November 22, 1906, the court ordered the publication of
notices for the declaration of heirs and distribution of the  entitled under the law, the testimony as to such controversy
property of the estate.
II.  That on the 28th of November, 1906, Paula Conde, in
reply to the foregoing motion of Roman Abaya, filed a petition
wherein she stated that she acknowledged the relationship
alleged by Roman Abaya, but that she considered that her
right,was superior to his and moved for a hearing of the
matter, and, in consequence of the evidence that she
intended to present she prayed that she be declared to have
preferential rights to the property left by  Casiano Abaya, and
that the same be adjudicated to her together with the
corresponding products thereof.
III.  That the trial was held, both parties presenting
documentary and oral evidence and the court below entered
the following judgment:
"That the administrator of the estate of Casiano Abaya should
recognize Teopista and Jose Conde as being natural children
of Casiano Abaya; that the petitioner Paula Conde should
succeed to the hereditary rights of her children with respect to
the inheritance of their deceased natural father Casiano
Abaya; and therefore, it is hereby declared that she is the only
heir to the property of the said intestate estate, to the
exclusion of the administrator, Roman Abaya."
IV.  That Roman Abaya excepted to the foregoing judgment,
appealed to this court, and presented the following statement
of errors:
1. The fact that the court below found that an ordinary
action for the acknowledgment of natural children
under articles 135 and 137 of the Civil Code, might
be brought in special probate proceedings.
2. The finding that after the death of a person claimed
to be an unacknowledged natural child, the mother
of such presumed natural child, as heir to the latter,
may bring an action to enforce the acknowledgment
of her deceased child in accordance with articles 135
and 137 of the Civil Code.
3. The finding in the judgment that the alleged
continuous possession of the deceased children of
Paula Conde of the status of natural children of the
late Casiano Abaya, has been fully proven in these
proceedings; and
4. On the hypothesis that it was proper to adjudicate
the property of this intestate estate to Paula Conde,
as improperly found by the court below, the court
erred in not having declared that said property
should be reserved in favor of relatives of Casiano
Abaya to the third degree, and in not having
previously demanded securities from Paula Ponde to
guarantee the transmission of the property to those
who might fall within the reservation.
As to the first error assigned, the question is set up as to
whether in special proceedings for the administration and
distribution of an intestate estate, an action might be brought
to enforce the acknowledgment of the natural child of the
person from whom the inheritance is derived, that is to say,
whether one might appear as heir on the ground that he is a
recognized natural child of the deceased, not having been so
recognized by the deceased either voluntarily or compulsorily
by reason of a preexisting judicial decision, but asking at the
same time that, in the special proceeding itself, he be
recognized by the presumed legitimate heirs of the deceased
who claim to be entitled to the succession opened in the
special proceeding.
According to section 782 of the Code of Civil Procedure-
"If there shall be a controversy before the Court of First
Instance as to who the lawful heirs of the deceased person
are, or as to the distributive share to which each person is
shall be taken in writing,by the judge, under oath, and signed
by the witness.  Any party in interest whose distributive share
is affected by the determination of such controversy, may
appeal from the judgment of the Court of First Instance
determining such controversy to the Supreme Court, within
the time and in the manner provided in the last preceding
section."
This court has decided the present question in the manner
shown in  the case of Juana Pimentel vs. Engracio Palanca (5
Phil. Rep., 436.)
The main question with regard to the second error assigned,
is whether or not the mother of a natural child now deceased,
but who survived the person who, it is claimed, was his
natural father, also deceased, may bring an action for the
acknowledgment of the natural filiation in favor of such child in
order to appear in his behalf to receive the inheritance from
the person who is supposed to be his natural father.
In order to decide in the affirmative the court below has
assigned the following as the only foundation:
"In resolving a similar question Manresa says:  'An
acknowledgment  can only be demanded by the natural child
and his descendants whom it shall benefit, and should they
be minors or otherwise incapacitated, such person as legally
represents them; the mother may ask it in behalf of her child
so long as he is under her authority.'  On this point no positive
declaration has been made, undoubtedly because it was not
considered necessary.  A private action is in question and the
general rule must be followed.  Elsewhere the same author
adds:  'It may so happen that the child dies before four years
have expired after attaining majority, or that the document
supporting his petition for acknowledgment is discovered after
his death, such death perhaps occurring after his parents had
died, as is supposed by article 137, or during their lifetime.  In
any case such right of action shall pertain to the descendants
of the child whom the acknowledgment may interest.'  (See
Commentaries to arts. 135 and 137, Civil Code, Vol. I.)"
The above doctrine, advanced by one of the most eminent
commentators of the Civil Code, lacks legal and doctrinal
foundation.  The power to transmit the right of such action by
the natural child to his descendants can not be sustained
under the law, and still less to his mother.
It is without any support in law  because the rule laid down in
the code is most positive, limiting in form, when establishing
the exception for the exercise of such right of action after the
18
death of the presumed parents, as is shown hereafter.  It is
not supported by any doctrine, because up to the present time
no argument has been presented, upon which even an
approximate conclusion could be based.
Although the Civil Code considerably improved the condition
of recognized natural children, granting them rights and
actions that they did not possess under the former laws, they
were not, however, placed upon the same plane as legitimate
ones.  The difference that separates these two classes of
children is still great, as proven by so many articles dealing
with the rights of the family and with succession in relation to
the members thereof.  It may be laid down as a legal maxim,
that whatever the code does not grant to the legitimate
children, or in connection with their rights must still less be
understood as granted to recognized natural children or in
connection with their rights.  There is not a single exception in
its provisions.
If legitimacy is the attribute that constitutes the basis of the
absolute family rights of the child, the acknowledgment of the
natural child is, among illegitimate ones, that which unites him
to the family of the father or the mother who recognizes him,
and affords him a participation in the rights of the family,
relatively advantageous according to whether they are alone
or whether they concur with other individuals of the family of
his purely natural father or mother.
Thus, in order to consider the spirit of the  Civil Code, nothing
is more logical than to establish a comparison between an
action to claim the legitimacy, and one to enforce
acknowledgment.
"ART. 118.  The action to claim its legitimacy may be brought
by the child at any time of its lifetime and shall be transmitted
to its heirs, should it die during minority or in a state of
insanity.   In such cases the heirs shall be allowed a period of
five years in which to institute the action.
"The action already instituted by the child is transmitted by its
death to the heirs, if it has not lapsed before then.
"ART. 137.  The actions for the acknowledgment of natural
children can be instituted only during the life of the presumed
parents, except in the following cases:
"1.  If the father or mother died during the minority of the child,
in which, case the latter may institute the action before the
expiration of the first four years of its majority.
"2.  If, after the death of the father or mother, some
instrument, before unknown, should be discovered in which
the child is expressly acknowledged.
 "In this case the action must be instituted within the six
months following the discovery of such instrument"
On this supposition  the first difference that results between
one action and the other consists in that the right of action for
legitimacy lasts during the whole lifetime of the child, that is, it
can always be brought against the presumed parents or their
heirs by the child itself, while the right of action for the
acknowledgment of a natural child does not last his whole
lifetime, and, as a general rule, it can not be instituted against
the heirs of the presumed parents, inasmuch as it can be
exercised only during the life  of the presumed parents.
With regard to the question at issue, that is, the transmission
to the heirs of the presumed parents of the obligation to admit
the legitimate filiation, or to recognize the natural filiation,
there exists the most radical difference in that the former
continues during the life of the child who claims to be
legitimate, and he may demand it either directly and primarily
from the said presumed parents, or indirectly and secondarily
from the heirs of the latter; while the second does not endure
for life; as a general rule, it only lasts during the life of the
presumed parents.  Hence the other difference, derived as a
consequence, that an action for legitimacy is always brought
against the heirs of the presumed parents in case of the death
of the latter, while the action for acknowledgment is not
brought against the heirs of such parents, with the exception
of the two cases prescribed by article 137 transcribed above.
So much for the passive transmission of the obligation to
admit the legitimate filiation, or to acknowledge the natural
filiation.
As to the transmission to the heirs of the child of
the latter's action to claim his legitimacy, or to obtain the
acknowledgment of his natural filiation, it is seen that the code
grants it in the first case, but not in the second.  It contains
provisions for the transmission of the right of action which, for
the purpose of claiming his legitimacy inheres in the Child, but
it does not say a word with regard to the transmission of the
right to obtain the acknowledgment of the natural filiation.
Therefore, the respective corollary of each of the two above-
cited articles is:  (1) That the right of action which devolves
upon the  child to claim his legitimacy under article 118, may
be  transmitted to his heirs in certain cases designated in the
said article; (2) That the right of action for the
acknowledgment of natural children to which article 137
refers, can never be transmitted, for the reason that the code
makes no mention of it in any case, not even as an exception.
It is most illogical arid contrary to every rule of correct
interpretation, that the right of action to secure
acknowledgment by the natural child should be presumed to
be transmitted, independently, as a rule, to his heirs, while the
right of action to claim legitimacy from his predecessor is not
expressly, independently, or, as a general rule, conceded to
the heirs of the legitimate child, but only relatively and as an
exception.  Consequently, the pretension that the right of
action on the part of the child to obtain the acknowledgment
of his natural filiation is transmitted to his descendants is
altogether unfounded.  No legal provision exists to sustain
such pretension, nor can an argument of presumption be
based on the lesser claim when there is no basis for the
greater one, and when it is only given as an exception in well-
defined cases.  It is placing the heirs of the natural child on a
better footing than the heirs of the legitimate one, when, as a
matter of fact, the position of a natural child is no better than,
nor even equal to, that of a legitimate child.
From the express and precise precepts of the code the
following conclusions are derived:
The right of action that devolves upon the child to claim his
legitimacy lasts during his whole life, while the right to claim
the acknowledgment of a natural child lasts only during the
life of his presumed parents.
Inasmuch as the right of action accruing to the child to claim
his legitimacy lasts during his whole life, he may exercise it
either against the presumed parents, or their heirs; while the
right of action to secure the acknowledgment of a natural
child, since it does not last during his whole life, but depends
on that of the presumed parents, as a general rule can only
be exercised against the latter.
Usually the right of action for legitimacy devolving upon the
child is of a personal character and pertains exclusively to
him, only the child may exercise it at any time during his
lifetime.  As an exception, and in three cases only, it may be
transmitted to the heirs of the child, to wit, if he died during his
minority, or  while insane, or after action had been already
instituted.
An action for the acknowledgment of a natural child may, as
an exception, be exercised against the heirs of the presumed
parents in two cases:  first, in the event of the death of the
latter during the minority of the child, and second, upon the
discovery of some instrument, of express acknowledgment of
the child, executed by the father or mother, the existence of
which was unknown during the life of the latter.
19

But such action for the acknowledgment of a natural child can
only be exercised by him.  It can not be transmitted to his
descendants, or to his ascendants.
In support of the foregoing the following authorities may be
cited:
Sanchez Roman, in his Treatise on Civil Law, propounds the
question as to whether said action should be considered
transmissive to the heirs or descendants of the natural child,
whether he had or had not exercised it up to the time of his
death, and decides it as follows:
"There is an entire absence of legal provisions, and at most, it
might be deemed admissible as a solution, that the right of
action to claim the acknowledgment of a natural child is
transmitted by analogy to his heirs on the same conditions
and terms that it is transmitted to the descendants of a
legitimate child, to claim his legitimacy, under article 118, but
nothing more; because on this point nothing warrants placing
the heirs of a natural child on a better footing than those of
the legitimate child, and even to compare them would not fail
to be a strained and questionable matter, and one of
great difficulty for decision by the courts, for the simple reason
that for the heirs of the legitimate child, the said article 118
exists, while for those of the natural child, as we have said,
there is no provision in the code authorizing the same,
although on the other hand there is none that prohibits it."  the right to accept the inheritance, tot the existing reason that
(Vol. V.)
Diaz Guijarro and Martinez Ruiz in their work on "The Civil
Code as construed by the supreme court of Spain,"
commenting upon article 137, say:
"Article 118, taking into account the privileges due to the
legitimacy of children, grants them the right to claim said
legitimacy during their lifetime, and even authorizes the
transmission of said right for the space of five years to the
heirs thereof, if the child die during his minority or in a state of
insanity.  But as article 137 is based on the consideration that
in the case of a natural child, ties are less strong and sacred
in the eyes of the law, it does not fix such a long and indefinite
period for the exercise of the action; it limits it to the life of the
parents, excepting in the two cases mentioned in said article;
and it does not allow, as does article 118, the action to pass
on to the heirs, inasmuch as, although it does not prohibit it,
and for that reason it might be deemed on general principles
of law to consent to it, such a supposition is inadmissible for
the reason that a comparison of both articles shows that the
silence of the law in the latter case is not, nor can it be, an
omission, but a deliberate intent to establish a wide difference
between the advantages granted to a legitimate child and to a
natural one."
(Ibid., Vol. II, 171.)
Navarro Amandi (Cuestionario del Codigo Civil) raises the
question:  "Can the heirs of a natural child claim the
acknowledgment in those cases wherein the father or mother
are under obligation to acknowledge"?  And says:
"Opinions are widely divergent.  The court of Rennes held (on
April 13, 1844) that the right of investigation forms a part of
the estate of the child, and along with his patrimony is
transmitted to his heirs.  The affirmation is altogether too
categorical to be admissible.  If it were correct the same thing
would happen as when the legitimacy of a child is claimed,
and as already seen, the right of action to demand the
legitimacy is not transmitted to the heirs in every case and as
an absolute right, but under certain limitations and
circumstances.  Now, were we to admit the doctrine of the
court of Rennes, the result would be that the claim for natural
filiation would be more favored than one for legitimate
filiation.  This would be absurd, because it can not be
conceived that the legislator should have granted a right of
action to the heirs of the natural child, which is only granted
under great limitations and in very few cases to those of a
legitimate one.  Some persons insist that the same rules that
govern legitimate filiation apply by analogy to natural filiation,
and that in this conception the heirs of the natural child are
entitled to claim it in the cases prescribed by article 118.  The
majority, however, are inclined to consider the right to claim
acknowledgment as a personal right, and consequently, not
transmissive to the heirs.  Really there are no legal grounds to
warrant the transmission."  (Vol. 2, 229.)
In a decision like the present one it is impossible to bring
forward the argument of analogy for the purpose of
considering that the heirs of the natural child are entitled to
the right of action which article 118 concedes to the heirs of
the legitimate child.  The existence of a provision for the one
case and the absence thereof for the other is a conclusive
argument that inclusio unius est exclusio alterius, and it can
not be understood that the provision of law should be the
same when the same reason does not hold in the one case
as in the other.
The theory of the law of transmission is also entirely
inapplicable in this case.  This theory, which in the Roman
Law expressed the general rule that an heir who did not
accept an inheritance during his lifetime was incapacitated
from transmitting it to his own heirs, included at the same time
the idea that if the inheritance was not transmitted because
the heir did not possess it, there were, however, certain things
which the heir held arid could transmit.  Such was the law and
all rights, both real and personal, shall pass to the heir; quia
haeres representat defunctum in omnibus et per omnia. 
According to article 659 of the Civil Code, "the inheritance
includes all the property, rights, and obligations of a person,
which are not extinguished by his death."  If the mother is the
heir of her natural child, and the latter, among other rights
during his lifetime was entitled to exercise an action for his
acknowledgment against his father, during the life of the
latter, or after his death in some of the excepting cases of
article 137, such right, which is a portion of his inheritance, is
transmitted to his mother as being his heir, and it was so
understood by the court of Rennes when it considered the
right in question, not as a personal and exclusive right of the
child which is extinguished by his death, but as any other right
which might be transmitted after his death.  This  right of
supposed transmission is even less tenable than that Sought
to be sustained by the argument of analogy.
The right of action pertaining to the child to claim his
legitimacy is in all respects superior to that of the child who
claims acknowledgment as a natural child.  And it is evident
that the right of action to claim his legitimacy is not one of
those rights which the legitimate child may transmit by
inheritance to his heirs; it forms no part of the component
rights of his inheritance.  If it were so, there would have been
no necessity to establish its transmissibility to heirs as an
exception in the terms and conditions of article 118 of the
code.  So that, in order that it may constitute a portion of the
child's inheritance, it is necessary that the conditions and the
terms contained in article 118 shall be present, since without
them, the right that the child held during his lifetime, being
personal and exclusive in principle, and therefore, as a
general rule not susceptible of transmission, would and
should have been extinguished by his death.  Therefore,
where no express provision like that of article 118 exists, the
right of action for the acknowledgment of a natural child is, in
principle and without exception, extinguished by his death,
and can not be transmitted, as a portion of the inheritance of
the deceased child.
On the  other hand, if said right of action formed a part of the
child's inheritance, it would be necessary to establish the
doctrine that the right to claim such an acknowledgment from
the presumed natural father and from  his heirs is an absolute
right of the heirs of the child, not limited by certain
circumstances as in the case of the heirs of a legitimate child;
and if it is unreasonable to compare a natural child with a
legitimate one to place the heirs of a natural child and his
20
inheritance on a better  footing than those of a legitimate child
would not only be unreasonable, but, as stated in one of the
above citations, most absurd and illegal in the present state of
the law and in accordance with the general principles thereof.
For all of the foregoing reasons we hereby reverse the
judgment appealed from in all its parts, without any special
ruling as to the costs of this instance.
Mapa, Johnson, Carson, and Willard, JJ., concur.
DISSENTING
TORRES, J.,
The questions arising from the facts and points of law
discussed in this litigation between the parties thereto,
decided in the judgment appealed from, and set up and
discussed in this instance by the said parties in their
respective briefs, are subordinate in the first place to the main
point, submitted among others to the decision of this court,
that is, whether the right of action brought to demand from the
natural father, or from his heirs, the acknowledgment of the
natural child which the former left at his death was, by
operation of the law, transmitted to the natural mother by
reason of the death of the said child acknowledged by her.
The second error assigned by the appellant in his brief refers
exclusively to this important point of law.
Article 846 of the Civil Code prescribes:
"The right of succession which the law grants natural children
extends reciprocally in similar cases to the natural father or
mother."
Article 944 reads:
"If the acknowledged natural or legitimized child should die
without issue, either legitimate or acknowledged by it, the
father or mother who acknowledged it shall succeed to its
entire estate, and if both acknowledged it and are alive, they
shall inherit from it share and share alike."
It can not be inferred from the above legal provisions that
from the right of succession which the law grants the natural
father or mother upon the,death of their natural child, the right
of the heirs of any of the said parents to claim the
acknowledgment of the natural child is excluded.  No article is
to be found in the Civil Code that expressly provides for such
exclusion or elimination of the right of the heirs of the
deceased child to claim his acknowledgment.
If under article 659 of said code, the inheritance includes all
the property, rights, and obligations of a person, which are not
extinguished by his death, it is unquestionable that among
such rights stands that which the natural child had, while
alive, to claim his acknowledgment as such from his natural
father, or from the heirs of the latter.  There is no reason or
legal provision whatever to prevent the consideration that the
right to claim acknowledgment of the filiation of a deceased
child from his natural father, or from the heirs of the latter, is
included in the hereditary succession of the deceased child in
favor of his natural mother.
It is to  be regretted that such an eminent writer as Manresa is
silent on this special point, or that he is not very explicit in his
comments on article 137 of the Civil Code.  Among the
various noted writers on law, Professor Sanchez Roman is
the only one who has given his opinion in a categorical
manner as to whether or not the right of action for the
acknowledgment of a deceased natural child shall be
considered transmissive to his heirs, as may be seen from the
following:
"In order to complete the explanation of this article 137 of the
Civil Code, three points must be decided:  (1) Against whom
shall an action for acknowledgment be brought under the
cases and terms to which the two exceptions indicated in
paragraphs 1 and 2 of article 137 refer?  (2) Who is to
represent the  minor in bringing this action when neither the
father nor the mother has acknowledged him?  (3) Should this
right of action be considered as transmitted to the heirs or
descendants of the natural child whether or not it was
exercised at the time of his death?
"With respect to the third, there is an entire absence of legal
provisions, and at most, it might be deemed admissible as a
solution, that the right of action to claim the acknowledgment
of a natural child is transmitted by analogy to his heirs on the
same conditions and terms that it is transmitted to the
descendants of the legitimate child, to claim his legitimacy,
under article 118, but no more; because on this point nothing
warrants placing the heirs of a natural child oh a better footing
than those of the legitimate child, and even to compare them
would not fail to be a strained and questionable matter, and
one of great difficulty for decision by the courts, for the simple
reason that for the heirs of the legitimate child the said article
118 exists, while for those of the natural child, as we have
said, there is no provision in the code authorizing the same,
although on the other hand there is none that prohibits it."
Certainly there is no article in the Civil Code, or any special
law  that bars the transmission to the heirs of a natural child,
particularly to his natural mother, of the right of action to claim
the acknowledgment of said natural child from the heirs of his
deceased natural father.
According to the above-cited article 944 of the Civil Code, the
only persons designated to succeed to the intestate estate of
a natural child who died during minority or without issue are is
natural father or mother who acknowledged it; consequently if
by operation of the law his parents are his legal successors or
heirs, it is unquestionable that by reason of the child's death
the property, rights, and obligations of the deceased minor
were, as a matter of fact, transmitted to them, among which
was the right to demand the acknowledgment of the said
deceased natural child from the heirs of the deceased natural
father or mother, respectively, on account of having enjoyed
uninterruptedly the status of natural child of the said
deceased parents.  (Arts. 135 and 136, Civil Code.)
At the death of the children, Teopista in 1902, and Jose in
1908, during their minority, and after the death of their natural
father which took place in 1899, the natural mother of the said
minors, Paula Conde, succeeded them in all of their property
and rights, among which must necessarily appear and be
included the right of action to claim the acknowledgment of
said two children from the heirs of Icasiano Abaya, their
deceased natural father.  There is no legal provision or
precept whatever excluding such right from those which, by
operation of the law, were transmitted to the mother, Paula
Conde, or expressly declaring that the said right to claim such
acknowledgment is extinguished by the death of the natural
children.
It is true that, as a general rule, an action for acknowledgment
can not be brought by a surviving natural child after the death
of his parents, except in the event that he was a minor at the
time of the death of either of his parents, as was the case with
the minors Teopista and Jose Conde, who, if living, would
unquestionably be entitled to institute an action for
acknowledgment against the presumed heirs of their natural
father; and as there is no law that provides that said right is,
extinguished by the death of the same, and that the mother
did not inherit; it from the said minors, it is also
21
unquestionable that Paula Conde, the natural mother and
successor to the rights of said minors, is entitled to exercise
the corresponding action for acknowledgment.

If the natural mother had no right of action against the heirs

of  the natural father, for the acknowledgment of her natural
child, the unlimited and unconditional reciprocity established
by article 846 of the code would neither be true nor correct.  It
should be noticed that the relation of paternity and that of
filiation between the above-mentioned father and children are
both natural in character; therefore, the intestate succession
of the said children of Paula Conde is governed exclusively by
articles 944 and 945 of the said code.

It is true that nothing is provided by article 137 with reference

to the transmission to the natural mother of the right to claim
the acknowledgment of her natural children, but, as Sanchez
Roman says, it does not expressly prohibit it; and as opposed
to the silence of the said article, we find the provisions of
articles 846 and 944 of the Civil Code, which expressly
recognize the right of the natural mother to succeed her
natural child, a right which is transmitted to her by operation
of law from the moment that the child ceases to exist.

The question herein does not bear upon the right of a child to
claim his legitimacy, as provided in article 118 of the code,
nor is it claimed that the rights of natural children and of their
mother are  equal to those of legitimate ones, even by
analogy.

The foundations of this opinion are based solely on the

provisions of the above-mentioned articles of the code, and I
consider that they are sustainable so long as it is not
positively proven that the so often-mentioned right of action
for acknowledgment is extinguished by the death of the minor
natural child, and is not transmitted to the natural mother by
express declaration or prohibition of the law, together with the
property and other rights in the intestate succession.

In view of the considerations above set forth it is my opinion

that it should be held:  That Paula Conde, as the natural
mother and sole heir of her children Teopista and Jose, was
and is entitled to the right to institute proceedings to obtain
the acknowledgment of the latter as natural children of the
late Icasiano Abaya, from Roman Abaya, as heir and
administrator of the estate of the said Icasiano Abaya; and
that the said Teopista and Jose who died during their
minority, three years after the death of their father, should be
considered and acknowledged as such natural children of the
latter, for the reason that while living they uninterruptedly
enjoyed the status of his natural children.

The judgment appealed from should be affirmed without any

special ruling as to costs.

With regard to the declaration that the property of the late

Icasiano, which Paula Conde might take, are of a reservable
character, together with the other matter contained in the third
error assigned by the appellant to the said judgment, the
writer withholds his opinion until such time as the question
may be raised between the parties in proper form.

22

FIRST DIVISION G.R. Nos. 168992-93           May 21, 2009
IN RE: PETITION FOR ADOPTION OF MICHELLE P. LIM,
MONINA P. LIM, Petitioner.
x - - - - - - - - - - - - - - - - - - - - - - -x
IN RE: PETITION FOR ADOPTION OF MICHAEL JUDE P.
LIM,
MONINA P. LIM, Petitioner.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari filed by Monina P.
Lim (petitioner) seeking to set aside the Decision1 dated 15
September 2004 of the Regional Trial Court, General Santos
City, Branch 22 (trial court), in SPL. PROC. Case Nos. 1258
and 1259, which dismissed without prejudice the consolidated
petitions for adoption of Michelle P. Lim and Michael Jude P.
Lim.
The Facts
The following facts are undisputed. Petitioner is an
optometrist by profession. On 23 June 1974, she married
Primo Lim (Lim). They were childless. Minor children, whose
parents were unknown, were entrusted to them by a certain
Lucia Ayuban (Ayuban). Being so eager to have a child of
their own, petitioner and Lim registered the children to make it
appear that they were the children’s parents. The
children2 were named Michelle P. Lim (Michelle) and Michael
Jude P. Lim (Michael). Michelle was barely eleven days old
when brought to the clinic of petitioner. She was born on 15
March 1977.3 Michael was 11 days old when Ayuban brought
him to petitioner’s clinic. His date of birth is 1 August 1983.4
The spouses reared and cared for the children as if they were
their own. They sent the children to exclusive schools. They
used the surname "Lim" in all their school records and
documents. Unfortunately, on 28 November 1998, Lim died.
On 27 December 2000, petitioner married Angel Olario
(Olario), an American citizen.
Thereafter, petitioner decided to adopt the children by availing
of the amnesty5 given under Republic Act No. 85526 (RA
8552) to those individuals who simulated the birth of a child.
Thus, on 24 April 2002, petitioner filed separate petitions for
the adoption of Michelle and Michael before the trial court
docketed as SPL PROC. Case Nos. 1258 and 1259,
respectively. At the time of the filing of the petitions for
adoption, Michelle was 25 years old and already married,
while Michael was 18 years and seven months old.
Michelle and her husband gave their consent to the adoption
as evidenced by their Affidavits of Consent. 7 Michael also
gave his consent to his adoption as shown in his Affidavit of
Consent.8 Petitioner’s husband Olario likewise executed an
Affidavit of Consent9 for the adoption of Michelle and Michael.
In the Certification issued by the Department of Social
Welfare and Development (DSWD), Michelle was considered
as an abandoned child and the whereabouts of her natural
parents were unknown.10 The DSWD issued a similar
Certification for Michael.11
The Ruling of the Trial Court
On 15 September 2004, the trial court rendered judgment
dismissing the petitions. The trial court ruled that since
petitioner had remarried, petitioner should have filed the
petition jointly with her new husband. The trial court ruled that
joint adoption by the husband and the wife is mandatory citing
Section 7(c), Article III of RA 8552 and Article 185 of the
Family Code.
Petitioner filed a Motion for Reconsideration of the decision
but the motion was denied in the Order dated 16 June 2005.
In denying the motion, the trial court ruled that petitioner did
not fall under any of the exceptions under Section 7(c), Article
III of RA 8552. Petitioner’s argument that mere consent of her
husband would suffice was untenable because, under the
law, there are additional requirements, such as residency and
certification of his qualification, which the husband, who was
not even made a party in this case, must comply.
As to the argument that the adoptees are already
emancipated and joint adoption is merely for the joint exercise
of parental authority, the trial court ruled that joint adoption is
not only for the purpose of exercising parental authority
because an emancipated child acquires certain rights from his
parents and assumes certain obligations and responsibilities.
Hence, the present petition.
Issue
Petitioner appealed directly to this Court raising the sole issue
of whether or not petitioner, who has remarried, can singly
adopt.
The Court’s Ruling
Petitioner contends that the rule on joint adoption must be
relaxed because it is the duty of the court and the State to
protect the paramount interest and welfare of the child to be
adopted. Petitioner argues that the legal maxim "dura lex sed
lex" is not applicable to adoption cases. She argues that joint
parental authority is not necessary in this case since, at the
time the petitions were filed, Michelle was 25 years old and
already married, while Michael was already 18 years of age.
Parental authority is not anymore necessary since they have
been emancipated having attained the age of majority.
We deny the petition.
Joint Adoption by Husband and Wife
It is undisputed that, at the time the petitions for adoption
were filed, petitioner had already remarried. She filed the
petitions by herself, without being joined by her husband
Olario. We have no other recourse but to affirm the trial
court’s decision denying the petitions for adoption. Dura lex
sed lex. The law is explicit. Section 7, Article III of RA 8552
reads:
SEC. 7. Who May Adopt. - The following may adopt:
(a) Any Filipino citizen of legal age, in possession of
full civil capacity and legal rights, of good moral
character, has not been convicted of any crime
involving moral turpitude, emotionally and
psychologically capable of caring for children, at
least sixteen (16) years older than the adoptee, and
who is in a position to support and care for his/her
23
 children in keeping with the means of the family. The
requirement of sixteen (16) year difference between
the age of the adopter and adoptee may be waived
when the adopter is the biological parent of the
adoptee, or is the spouse of the adoptee’s parent;
(b) Any alien possessing the same qualifications as
above stated for Filipino nationals: Provided, That
his/her country has diplomatic relations with the
Republic of the Philippines, that he/she has been
living in the Philippines for at least three (3)
continuous years prior to the filing of the application
for adoption and maintains such residence until the
adoption decree is entered, that he/she has been
certified by his/her diplomatic or consular office or
any appropriate government agency that he/she has
the legal capacity to adopt in his/her country, and
that his/her government allows the adoptee to enter
his/her country as his/her adopted
son/daughter: Provided, further, That the
requirements on residency and certification of the
alien’s qualification to adopt in his/her country may
be waived for the following:
(i) a former Filipino citizen who seeks to
adopt a relative within the fourth (4th)
degree of consanguinity or affinity; or
(ii) one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen
and seeks to adopt jointly with his/her
spouse a relative within the fourth (4th)
degree of consanguinity or affinity of the
Filipino spouses; or
(c) The guardian with respect to the ward after the
termination of the guardianship and clearance of
his/her financial accountabilities.
Husband and wife shall jointly adopt, except in
the following cases:
(i) if one spouse seeks to adopt the
legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her
own illegitimate son/daughter: Provided,
however, That the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated
from each other.
In case husband and wife jointly adopt, or one spouse adopts
the illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses. (Emphasis
supplied)
The use of the word "shall" in the above-quoted provision
means that joint adoption by the husband and the wife is
mandatory. This is in consonance with the concept of joint
parental authority over the child which is the ideal situation.
As the child to be adopted is elevated to the level of a
legitimate child, it is but natural to require the spouses to
adopt jointly. The rule also insures harmony between the
spouses.12
The law is clear. There is no room for ambiguity. Petitioner,
having remarried at the time the petitions for adoption were
filed, must jointly adopt. Since the petitions for adoption were
filed only by petitioner herself, without joining her husband,
Olario, the trial court was correct in denying the petitions for
adoption on this ground.
Neither does petitioner fall under any of the three exceptions
enumerated in Section 7. First, the children to be adopted are
not the legitimate children of petitioner or of her husband
Olario. Second, the children are not the illegitimate children of
petitioner. And third, petitioner and Olario are not legally
separated from each other.
The fact that Olario gave his consent to the adoption as
shown in his Affidavit of Consent does not suffice. There are
certain requirements that Olario must comply being an
American citizen. He must meet the qualifications set forth in
Section 7 of RA 8552 such as: (1) he must prove that his
country has diplomatic relations with the Republic of the
Philippines; (2) he must have been living in the Philippines for
at least three continuous years prior to the filing of the
application for adoption; (3) he must maintain such residency
until the adoption decree is entered; (4) he has legal capacity
to adopt in his own country; and (5) the adoptee is allowed to
enter the adopter’s country as the latter’s adopted child. None
of these qualifications were shown and proved during the trial.
These requirements on residency and certification of the
alien’s qualification to adopt cannot likewise be waived
pursuant to Section 7. The children or adoptees are not
relatives within the fourth degree of consanguinity or affinity of
petitioner or of Olario. Neither are the adoptees the legitimate
children of petitioner.
Effects of Adoption
Petitioner contends that joint parental authority is not anymore
necessary since the children have been emancipated having
reached the age of majority. This is untenable.
Parental authority includes caring for and rearing the children
for civic consciousness and efficiency and the development of
their moral, mental and physical character and well-
being.13 The father and the mother shall jointly exercise
parental authority over the persons of their common
children.14 Even the remarriage of the surviving parent shall
not affect the parental authority over the children, unless the
court appoints another person to be the guardian of the
person or property of the children.15
It is true that when the child reaches the age of emancipation
— that is, when he attains the age of majority or 18 years of
age16 — emancipation terminates parental authority over the
person and property of the child, who shall then be qualified
and responsible for all acts of civil life. 17 However, parental
authority is merely just one of the effects of legal adoption.
Article V of RA 8552 enumerates the effects of adoption, thus:
ARTICLE V
EFFECTS OF ADOPTION
SEC. 16. Parental Authority. - Except in cases where the
biological parent is the spouse of the adopter, all legal ties
between the biological parent(s) and the adoptee shall be
severed and the same shall then be vested on the adopter(s).
SEC. 17. Legitimacy. - The adoptee shall be considered the
legitimate son/daughter of the adopter(s) for all intents and
purposes and as such is entitled to all the rights and
obligations provided by law to legitimate sons/daughters born
to them without discrimination of any kind. To this end, the
adoptee is entitled to love, guidance, and support in keeping
with the means of the family.
SEC. 18. Succession. - In legal and intestate succession, the
adopter(s) and the adoptee shall have reciprocal rights of
24
succession without distinction from legitimate filiation. Court, General Santos City, Branch 22 in SPL. PROC. Case
However, if the adoptee and his/her biological parent(s) had Nos. 1258 and 1259. Costs against petitioner.
left a will, the law on testamentary succession shall govern.

Adoption has, thus, the following effects: (1) sever all legal
ties between the biological parent(s) and the adoptee, except
when the biological parent is the spouse of the adopter; (2)
deem the adoptee as a legitimate child of the adopter; and (3)
give adopter and adoptee reciprocal rights and obligations
arising from the relationship of parent and child, including but
not limited to: (i) the right of the adopter to choose the name
the child is to be known; and (ii) the right of the adopter and
adoptee to be legal and compulsory heirs of each
other.18 Therefore, even if emancipation terminates parental
authority, the adoptee is still considered a legitimate child of
the adopter with all the rights19 of a legitimate child such as:
(1) to bear the surname of the father and the mother; (2) to
receive support from their parents; and (3) to be entitled to the
legitime and other successional rights. Conversely, the
adoptive parents shall, with respect to the adopted child,
enjoy all the benefits to which biological parents are
entitled20 such as support21 and successional rights.22

We are mindful of the fact that 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, as well as to allow childless couples or
persons to experience the joys of parenthood and give them
legally a child in the person of the adopted for the
manifestation of their natural parental instincts. Every
reasonable intendment should be sustained to promote and
fulfill these noble and compassionate objectives of the
law.23 But, as we have ruled in Republic v. Vergara:24

We are not unmindful of the main purpose of adoption

statutes, which is the promotion of the welfare of the children.
Accordingly, the law should be construed liberally, in a
manner that will sustain rather than defeat said purpose. The
law must also be applied with compassion, understanding and
less severity in view of the fact that it is intended to provide
homes, love, care and education for less fortunate children.
Regrettably, the Court is not in a position to affirm the trial
court’s decision favoring adoption in the case at bar, for the
law is clear and it cannot be modified without violating
the proscription against judicial legislation. Until such time
however, that the law on the matter is amended, we cannot
sustain the respondent-spouses’ petition for adoption.
(Emphasis supplied)1avvphi1.zw+

Petitioner, being married at the time the petitions for adoption

were filed, should have jointly filed the petitions with her
husband. We cannot make our own legislation to suit
petitioner.

Petitioner, in her Memorandum, insists that subsequent

events would show that joint adoption could no longer be
possible because Olario has filed a case for dissolution of his
marriage to petitioner in the Los Angeles Superior Court.

We disagree. The filing of a case for dissolution of the

marriage between petitioner and Olario is of no moment. It is
not equivalent to a decree of dissolution of marriage. Until and
unless there is a judicial decree for the dissolution of the
marriage between petitioner and Olario, the marriage still
subsists. That being the case, joint adoption by the husband
and the wife is required. We reiterate our ruling above that
since, at the time the petitions for adoption were filed,
petitioner was married to Olario, joint adoption is mandatory.

WHEREFORE, we DENY the petition. We AFFIRM the

Decision dated 15 September 2004 of the Regional Trial

25
 Henceforth, he shall be known as
SOLOMON ALCALA CLOUSE.

The Court dissolves parental authority

SECOND DIVISION  G.R. No. 94147 June 8, 1994
REPUBLIC OF THE PHILIPPINES, petitioner, vs.
HONORABLE RODOLFO TOLEDANO, in his capacity as
Presiding Judge of the Regional Trial Court, Third
Judicial Region, Branch 69, Iba, Zambales and SPOUSES
ALVIN A. CLOUSE and EVELYN A. CLOUSE, respondents.
The Solicitor General for petitioner.
R.M. Blanco for private respondents.
PUNO, J.:
Before us is a petition for review on certiorari  of the
decision1 of the Regional Trial Court of Iba, Zambales, Branch
69, in Special Proceeding No. RTC-140-I, entitled, "In the
Matter of the Adoption of the Minor named Solomon Joseph
Alcala", raising a pure question of law.
The sole issue for determination concerns the right of private
respondents spouses Alvin A. Clouse and Evelyn A. Clouse
who are aliens to adopt under Philippine Law.
There is no controversy as to the facts.
bestowed upon his natural parents and
vests parental authority to the herein
petitioners and makes him their legal heir.
Pursuant to Article 36 of P.D. 603 as
amended, the decree of adoption shall be
effective as of the date when the petition
was filed. In accordance with Article 53 of
the same decree, let this decree of adoption
be recorded in the corresponding
government agency, particularly the Office
of the Local Civil Registrar of Merida, Leyte
where the minor was born. The said office
of the Local Civil Registrar is hereby
directed to issue an amended certificate of
live birth to the minor adopted by the
petitioners.
Let copies of this decision be furnished (sic)
the petitioners, DSWD, Zambales Branch,
Office of the Solicitor General and the
Office of the Local Civil Registrar of Merida,
Leyte.
SO ORDERED.2
Petitioner, through the Office of the Solicitor General
appealed to us for relief, contending:

On February 21, 1990, in a verified petition filed before the THE LOWER COURT ERRED IN GRANTING THE
Regional Trial Court of Iba, Zambales, private respondents PETITION FOR ADOPTION OF ALVIN AND EVELYN
spouses Clouse sought to adopt the minor, Solomon Joseph CLOUSE, BECAUSE THEY ARE NOT QUALIFIED TO
Alcala, the younger brother of private respondent Evelyn A. ADOPT UNDER PHILIPPINE LAW.
Clouse. In an Order issued on March 12, 1990, the petition
was set for hearing on April 18, 1990. The said Order was
published in a newspaper of general circulation in the We rule for petitioner.
province of Zambales and City of Olongapo for three (3)
consecutive weeks. Under Articles 184 and 185 of Executive Order (E.O.) No.
209, otherwise known as "The Family Code of the
The principal evidence disclose that private respondent Alvin Philippines", private respondents spouses Clouse are clearly
A. Clouse is a natural born citizen of the United States of barred from adopting Solomon Joseph Alcala.
America. He married Evelyn, a Filipino on June 4, 1981 at
Olongapo City. On August 19, 1988, Evelyn became a Article 184, paragraph (3) of Executive Order No. 209
naturalized citizen of the United States of America in Guam. expressly enumerates the persons who are not qualified to
They are physically, mentally, morally, and financially capable adopt, viz.:
of adopting Solomon, a twelve (12) year old minor.
(3) An alien, except:
Since 1981 to 1984, then from November 2, 1989 up to the
present, Solomon Joseph Alcala was and has been under the (a) A former Filipino
care and custody of private respondents. Solomon gave his citizen who seeks to
consent to the adoption. His mother, Nery Alcala, a widow, adopt a relative by
likewise consented to the adoption due to poverty and inability consanguinity;
to support and educate her son.
(b) One who seeks to
Mrs. Nila Corazon Pronda, the social worker assigned to adopt the legitimate child
conduct the Home and Child Study, favorably recommended of his or her Filipino
the granting of the petition for adoption. spouse; or

Finding that private respondents have all the qualifications (c) One who is married to
and none of the disqualifications provided by law and that the a Filipino citizen and
adoption will redound to the best interest and welfare of the seeks to adopt jointly with
minor, respondent judge rendered a decision on June 20, his or her spouse a
1990, disposing as follows: relative by consanguinity
of the latter.
WHEREFORE, the Court grants the petition
for adoption filed by Spouses Alvin A. Aliens not included in the
Clouse and Evelyn A. Clouse and decrees foregoing exceptions may
that the said minor be considered as their adopt Filipino children in
child by adoption. To this effect, the Court accordance with the rules
gives the minor the rights and duties as the on inter-country adoption
legitimate child of the petitioners.
26
 as may be provided by
law.
There can be no question that private respondent Alvin A.
Clouse is not qualified to adopt Solomon Joseph Alcala under
any of the exceptional cases in the aforequoted provision. In
the first place, he is not a former Filipino citizen but a natural
born citizen of the United States of America. In the second
place, Solomon Joseph Alcala is neither his relative by
consanguinity nor the legitimate child of his spouse. In the
third place, when private respondents spouses Clouse jointly
filed the petition to adopt Solomon Joseph Alcala on February
21, 1990, private respondent Evelyn A. Clouse was no longer
a Filipino citizen. She lost her Filipino citizenship when she
was naturalized as a citizen of the United States in 1988.
Private respondent Evelyn A. Clouse, on the other hand, may
appear to qualify pursuant to paragraph 3(a) of Article 184 of
E.O. 209. She was a former Filipino citizen. She sought to
adopt her younger brother. Unfortunately, the petition for
adoption cannot be granted in her favor alone without
violating Article 185 which mandates a joint adoption by the
husband and wife. It reads:
Article 185. Husband and wife must jointly
adopt, except in the following cases:
(1) When one spouse seeks to adopt his
own illegitimate child; or
(2) When one spouse seeks to adopt the
legitimate child of the other.
It is in the foregoing cases when Article 186
of the Code, on the parental authority, can
aptly find governance.
Article 186. In case husband and wife jointly
adopt or one spouse adopts the legitimate
child of the other, jointly parental authority
shall be exercised by the spouses in
accordance with this Code.9
Article 185 is all too clear and categorical and there is no
room for its interpretation. There is only room for application.10
We are not unaware that the modern trend is to encourage
adoption and every reasonable intendment should be
sustained to promote that objective.11 Adoption is geared
more towards the promotion of the welfare of the child and
enhancement of his opportunities for a useful and happy
life.12 It is not the bureaucratic technicalities but the interest of
the child that should be the principal criterion in adoption
cases.13 Executive Order 209 likewise upholds that the
interest and welfare of the child to be adopted should be the
paramount consideration. These considerations
notwithstanding, the records of the case do not evince any
fact as would justify us in allowing the adoption of the minor,
Solomon Joseph Alcala, by private respondents who are
aliens.
WHEREFORE, the petition is GRANTED. The decision of the
lower court is REVERSED and SET ASIDE. No costs.

Article 185 requires a joint adoption by the husband and wife,

a condition that must be read along together with Article 184.3

The historical evolution of this provision is clear. Presidential

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

In a distinctly similar case, we held:

As amended by Executive Order 91,

Presidential Decree No. 603, had thus
made it mandatory for both the spouses to
jointly adopt when one of them was an
alien. The law was silent when both
spouses were of the same nationality.

The Family Code has resolved any possible

uncertainty. Article 185 thereof expresses
the necessity for a joint adoption by the
spouses except in only two instances —

(1) When one spouse seeks to

adopt his own illegitimate child; or

(2) When one spouse seeks to

adopt the legitimate child of the
other.
27
THIRD DIVISION G.R. No. 100835 October 26, 1993
REPUBLIC OF THE PHILIPPINES, petitioner, vs.
THE HONORABLE COURT OF APPEALS and the
SPOUSES JAMES ANTHONY HUGHES and LENITA
MABUNAY HUGHES, respondents.
The Solicitor General for petitioner.
Westremundo y. De Guzman for private respondents.
VITUG, J.:
James Anthony Hughes, a natural born citizen of the United
States of America, married Lenita Mabunay Hughes, a
Filipino Citizen, who herself was later naturalized as a citizen
of that country. On 29 June 1990, the spouses jointly filed a
petition with the Regional Trial Court of Angeles City, Branch
60, to adopt Ma. Cecilia, Neil and Maria, all surnamed
Mabunay, minor niece and nephews of Lenita, who had been
living with the couple even prior to the filing of the petition.
The minors, as well as their parents, gave consent to the
adoption.
On 29 November 1990, the Regional Trial Court rendered a
decision granting the petition. a petition for Review
on Certiorari was filed with this Court, assailing the trial court's
decision. This Court referred the case to the Court of Appeals
which, on 09 July 1991, affirmed the trial court's decision.
Hence, the present petition. The petitioner assigned a lone
error on the part of the respondent court, thus —
THE LOWER COURT ERRED IN
GRANTING THE PETITION FOR
ADOPTION OF SPOUSES JAMES
ANTHONY HUGHES AND LENITA
MABUNAY HUGHES BECAUSE THEY
ARE NOT QUALIFIED TO ADOPT UNDER
PHILIPPINE LAW.
It is clear that James Anthony Hughes is not qualified to
adopt. Executive Order No. 209, otherwise known as "The
Family Code of the Philippines," is explicit.
Art. 184. The following persons may not
adopt :
(1) The guardian with respect to the ward
prior to the approval of the final accounts
rendered upon the termination of their
guardianship relation;
(2) Any person who has been convicted of
a crime involving moral turpitude;
(3) An alien, except:
(a) A former Filipino
citizen who seeks to
adopt a relative by
consanguinity;
(b) One who seeks to
adopt the legitimate child
of his or her Filipino
spouse; or
(c) One who is married to
a Filipino citizen and
seeks to adopt jointly with
his or her Filipino spouse
a relative by
consanguinity of the
latter.
Aliens not included in the foregoing
exceptions may adopt Filipino children in
accordance with the rules in inter-country
adoption as may be provided by law.
While James Anthony unquestionably is not permitted to
adopt under any of the exceptional cases enumerated in
paragraph (3) of the aforequoted article, Lenita, however, can
qualify pursuant to paragraph (3)(a). The problem in her case
lies, instead, with Article 185 of Executive Order No. 209,
expressing as follows:
Art. 185. Husband and wife must jointly
adopt, except in the following cases:
(1) When one spouse seeks to adopt his
own illegitimate child; or
(2) When one spouse seeks to adopt the
legitimate child of the other.
Lenita may not thus adopt alone since Article 185 requires a
joint adoption by the husband and the wife, a condition that
must be read along together with Article 184.
The old law on adoption, Presidential Decree No. 603 (The
Child and Youth Welfare Code), exactly adopted that found in
then Article 336 of the Civil Code. Article 29, Section B,
Chapter I, Title II, of the said decree provided :
Art. 29. Husband and wife may jointly
adopt. In such case, parental authority shall
be exercised as if the child were their own
by nature.
Observe that the law then in force used the word "may" under
which regime, a joint adoption by the spouses was apparently
not made obligatory. The provision was later amended,
however by Executive Order No. 91, dated 17 December
1986, of President Corazon C. Aquino. The new Article 29
expressed, thus —
Art. 29. Husband and wife may jointly
adopt. In such case, parental authority shall
be exercised as if the child were their own
by nature.
If one of the spouses is an alien, both
husband and wife shall jointly adopt.
Otherwise, the adoption shall not be
allowed.
As amended by Executive Order 91, Presidential Decree No.
603, had thus made it mandatory for both the spouses to
jointly adopt when one of them was an alien. The law was
silent when both spouses were of the same nationality.
The Family Code has resolved any possible uncertainty.
Article 185 thereof now expresses the necessity for joint
adoption by the spouses except in only two instances —
(1) When one spouse seeks to adopt his
own legitimate child; or
(2) When one spouse seeks to adopt the
legitimate child of the other.
28
It is in the foregoing cases when Article 186 of the Code, on
the subject of parental authority, can aptly find governance.

Article 186. In case husband and wife jointly

adopt or one spouse adopts the legitimate
child of the other, joint parental authority
shall be exercised by the spouses in
accordance with this Code.

The respondent court, in affirming the grant of adoption by the

lower court, has theorized that James Anthony should merely
be considered a "nominal or formal party" in the proceedings.
This view of the appellate court cannot be sustained.
Adoption creates a status that is closely assimilated to
legitimate paternity and filiation with corresponding rights and
duties that necessarily flow from adoption, such as, but not
necessarily confined to, the exercise of parental authority, use
of surname of the adopter by the adopted, as well as support
and successional rights. These are matters that obviously
cannot be considered inconsequential to the parties.

We are not unmindful of the possible benefits, particularly in

this instance, that an adoption can bring not so much for the
prospective adopting parents as for the adopted children
themselves. We also realize that in proceedings of this
nature, paramount consideration is given to the physical,
moral, social and intellectual welfare of the adopted for whom
the law on adoption has in the first place been designed.
When, however, the law is clear and no other choice is
given,1 we must obey its full mandate.

Even then, we find it difficult to conclude this opinion without

having to call the attention of the appropriate agencies
concerned to the urgency of addressing the issue on inter-
country adoption, a matter that evidently is likewise espoused
by the Family Code (Article 184, last paragraph, Family
Code).

WHEREFORE, the petition is GRANTED and the decision of

the respondent court is REVERSED and SET ASIDE. No
costs.

29
THIRD DIVISION  G.R. No. 102316 June 30, 1997
VALENZUELA HARDWOOD AND INDUSTRIAL SUPPLY
INC., petitioner, vs.
COURT OF APPEALS AND SEVEN BROTHERS SHIPPING
CORPORATION, respondents.
PANGANIBAN, J.:
Is a stipulation in a charter party that the "(o)wners shall not
be responsible for loss, split, short-landing, breakages and
any kind of damages to the cargo" 1 valid? This is the main
question raised in this petition for review assailing the
Decision of Respondent Court of Appeals 2 in CA-G.R. No.
CV-20156 promulgated on October 15, 1991. The Court of
Appeals modified the judgment of the Regional Trial Court of
Valenzuela, Metro Manila, Branch 171, the dispositive portion
of which reads:
WHEREFORE, Judgment is hereby
rendered ordering South Sea Surety and
Insurance Co., Inc. to pay plaintiff the sum
of TWO MILLION PESOS (P2,000,000.00)
representing the value of the policy of the
lost logs with legal interest thereon from the
date of demand on February 2, 1984 until
the amount is fully paid or in the alternative,
defendant Seven Brothers Shipping
Corporation to pay plaintiff the amount of
TWO MILLION PESOS (2,000,000.00)
representing the value of lost logs plus legal
interest from the date of demand on April
24, 1984 until full payment thereof; the
reasonable attorney's fees in the amount
equivalent to five (5) percent of the amount
of the claim and the costs of the suit.
Plaintiff is hereby ordered to pay defendant
Seven Brothers Shipping Corporation the
sum of TWO HUNDRED THIRTY
THOUSAND PESOS (P230,000.00)
representing the balance of the stipulated
freight charges.
Defendant South Sea Surety and Insurance
Company's counterclaim is hereby
dismissed.
In its assailed Decision, Respondent Court of Appeals held:
WHEREFORE, the appealed judgment is
hereby AFFIRMED except in so far (sic) as
the liability of the Seven Brothers Shipping
Corporation to the plaintiff is concerned
which is hereby REVERSED and SET
ASIDE. 3
The Facts
The factual antecedents of this case as narrated in the Court
of Appeals Decision are as follows:
It appears that on 16 January 1984, plaintiff
(Valenzuela Hardwood and Industrial
Supply, Inc.) entered into an agreement
with the defendant Seven Brothers
(Shipping Corporation) whereby the latter
undertook to load on board its vessel M/V
Seven Ambassador the former's lauan
round logs numbering 940 at the port of
Maconacon, Isabela for shipment to Manila.
On 20 January 1984, plaintiff insured the
logs against loss and/or damage with
defendant South Sea Surety and Insurance
Co., Inc. for P2,000,000.00 and the latter
issued its Marine Cargo Insurance Policy
No. 84/24229 for P2,000,000.00 on said
date.
On 24 January 1984, the plaintiff gave the
check in payment of the premium on the
insurance policy to Mr. Victorio Chua.
In the meantime, the said vessel M/V
Seven Ambassador sank on 25 January
1984 resulting in the loss of the plaintiff's
insured logs.
On 30 January 1984, a check for P5,625.00
(Exh. "E") to cover payment of the premium
and documentary stamps due on the policy
was tendered due to the insurer but was not
accepted. Instead, the South Sea Surety
and Insurance Co., Inc. cancelled the
insurance policy it issued as of the date of
the inception for non-payment of the
premium due in accordance with Section 77
of the Insurance Code.
On 2 February 1984, plaintiff demanded
from defendant South Sea Surety and
Insurance Co., Inc. the payment of the
proceeds of the policy but the latter denied
liability under the policy. Plaintiff likewise
filed a formal claim with defendant Seven
Brothers Shipping Corporation for the value
of the lost logs but the latter denied the
claim.
After due hearing and trial, the court a
quo rendered judgment in favor of plaintiff
and against defendants. Both defendants
shipping corporation and the surety
company appealed.
Defendant-appellant Seven Brothers
Shipping Corporation impute (sic) to the
court a quo the following assignment of
errors, to wit:
A. The lower court erred in holding that the
proximate cause of the sinking of the vessel
Seven Ambassadors, was not due to
fortuitous event but to the negligence of the
captain in stowing and securing the logs on
board, causing the iron chains to snap and
the logs to roll to the portside.
B. The lower court erred in declaring that
the non-liability clause of the Seven
Brothers Shipping Corporation from logs
(sic) of the cargo stipulated in the charter
party is void for being contrary to public
policy invoking article 1745 of the New Civil
Code.
C. The lower court erred in holding
defendant-appellant Seven Brothers
Shipping Corporation liable in the
alternative and ordering/directing it to pay
plaintiff-appellee the amount of two million
(2,000,000.00) pesos representing the
value of the logs plus legal interest from
date of demand until fully paid.
30
 D. The lower court erred in ordering
defendant-appellant Seven Brothers
Shipping Corporation to pay appellee
reasonable attorney's fees in the amount
equivalent to 5% of the amount of the claim
and the costs of the suit.
E. The lower court erred in not awarding
defendant-appellant Seven Brothers
Corporation its counter-claim for attorney's
fees.
F. The lower court erred in not dismissing
the complaint against Seven Brothers
Shipping Corporation.
Defendant-appellant South Sea Surety and Insurance Co.,
Inc. assigns the following errors:
A. The trial court erred in holding that
Victorio Chua was an agent of defendant-
appellant South Sea Surety and Insurance
Company, Inc. and likewise erred in not
holding that he was the representative of
the insurance broker Columbia Insurance
Brokers, Ltd.
B. The trial court erred in holding that
Victorio Chua received
compensation/commission on the
premiums paid on the policies issued by the
defendant-appellant South Sea Surety and
Insurance Company, Inc.
C. The trial court erred in not applying
Section 77 of the Insurance Code.
D. The trial court erred in disregarding the
"receipt of payment clause" attached to and
forming part of the Marine Cargo Insurance
Policy No. 84/24229.
E. The trial court in disregarding the
statement of account or bill stating the
amount of premium and documentary
stamps to be paid on the policy by the
plaintiff-appellee.
F. The trial court erred in disregarding the
endorsement of cancellation of the policy
due to non-payment of premium and
documentary stamps.
G. The trial court erred in ordering
defendant-appellant South Sea Surety and
Insurance Company, Inc. to pay plaintiff-
appellee P2,000,000.00 representing value
of the policy with legal interest from 2
February 1984 until the amount is fully paid,
H. The trial court erred in not awarding to
the defendant-appellant the attorney's fees
alleged and proven in its counterclaim.
The primary issue to be resolved before us
is whether defendants shipping corporation
and the surety company are liable to the
plaintiff for the latter's lost logs. 4
The Court of Appeals affirmed in part the RTC judgment by
sustaining the liability of South Sea Surety and Insurance
Company ("South Sea"), but modified it by holding that Seven
Brothers Shipping Corporation ("Seven Brothers") was not
liable for the lost cargo. 5 In modifying the RTC judgment, the
respondent appellate court ratiocinated thus:
It appears that there is a stipulation in the
charter party that the ship owner would be
exempted from liability in case of loss.
The court a quo erred in applying the
provisions of the Civil Code on common
carriers to establish the liability of the
shipping corporation. The provisions on
common carriers should not be applied
where the carrier is not acting as such but
as a private carrier.
Under American jurisprudence, a common
carrier undertaking to carry a special cargo
or chartered to a special person only,
becomes a private carrier.
As a private carrier, a stipulation exempting
the owner from liability even for the
negligence of its agent is valid (Home
Insurance Company, Inc. vs. American
Steamship Agencies, Inc., 23 SCRA 24).
The shipping corporation should not
therefore be held liable for the loss of the
logs. 6
South Sea and herein Petitioner Valenzuela Hardwood and
Industrial Supply, Inc. ("Valenzuela") filed separate petitions
for review before this Court. In a Resolution dated June 2,
1995, this Court denied the petition of South
Sea. 7 There the Court found no reason to reverse the factual
findings of the trial court and the Court of Appeals that Chua
was indeed an authorized agent of South Sea when he
received Valenzuela's premium payment for the marine cargo
insurance policy which was thus binding on the insurer. 8
The Court is now called upon to resolve the petition for review
filed by Valenzuela assailing the CA Decision which
exempted Seven Brothers from any liability for the lost cargo.
The Issue
Petitioner Valenzuela's arguments resolve around a single
issue: "whether or not respondent Court (of Appeals)
committed a reversible error in upholding the validity of the
stipulation in the charter party executed between the
petitioner and the private respondent exempting the latter
from liability for the loss of petitioner's logs arising from the
negligence of its (Seven Brothers') captain." 9
The Court's Ruling
The petition is not meritorious.
Validity of Stipulation is Lis Mota
The charter party between the petitioner and private
respondent stipulated that the "(o)wners shall not be
responsible for loss, split, short-landing, breakages and any
kind of damages to the cargo." 10 The validity of this
stipulation is the lis mota of this case.
It should be noted at the outset that there is no dispute
between the parties that the proximate cause of the sinking
of M/V Seven Ambassadors resulting in the loss of its cargo
was the "snapping of the iron chains and the subsequent
rolling of the logs to the portside due to the negligence of the
31
captain in stowing and securing the logs on board the vessel
and not due to fortuitous event." 11 Likewise undisputed is the
status of Private Respondent Seven Brothers as a private
carrier when it contracted to transport the cargo of Petitioner
Valenzuela. Even the latter admits this in its petition. 12
The trial court deemed the charter party stipulation void for
being contrary to public policy, 13 citing Article 1745 of the Civil
Code which provides:
Art. 1745. Any of the following or similar
stipulations shall be considered
unreasonable, unjust and contrary to public
policy:
(1) That the goods are transported at the
risk of the owner or shipper;
(2) That the common carrier will not be
liable for any loss, destruction, or
deterioration of the goods;
(3) That the common carrier need not
observe any diligence in the custody of the
goods;
(4) That the common carrier shall exercise
a degree of diligence less than that of a
good father of a family, or of a man of
ordinary prudence in the vigilance over the
movables transported;
(5) That the common carrier shall not be
responsible for the acts or omissions of his
or its employees;
(6) That the common carrier's liability for
acts committed by thieves, or of robbers
who do not act with grave or irresistible
threat, violence or force, is dispensed with
or diminished;
(7) That the common carrier is not
responsible for the loss, destruction, or
deterioration of goods on account of the
defective condition of the car, vehicle, ship,
airplane or other equipment used in the
contract of carriage.
Petitioner Valenzuela adds that the stipulation is void for
being contrary to Articles 586 and 587 of the Code of
Commerce 14 and Articles 1170 and 1173 of the Civil Code.
Citing Article 1306 and paragraph 1, Article 1409 of the Civil
Code, 15 petitioner further contends that said stipulation "gives
no duty or obligation to the private respondent to observe the
diligence of a good father of a family in the custody and
transportation of the cargo."
The Court is not persuaded. As adverted to earlier, it is
undisputed that private respondent had acted as a private
carrier in transporting petitioner's lauan logs. Thus, Article
1745 and other Civil Code provisions on common carriers
which were cited by petitioner may not be applied unless
expressly stipulated by the parties in their charter party. 16
In a contract of private carriage, the parties may validly
stipulate that responsibility for the cargo rests solely on the
charterer, exempting the shipowner from liability for loss of or
damage to the cargo caused even by the negligence of the
ship captain. Pursuant to Article 1306 17 of the Civil Code,
such stipulation is valid because it is freely entered into by the
parties and the same is not contrary to law, morals, good
customs, public order, or public policy. Indeed, their contract
of private carriage is not even a contract of adhesion. We
stress that in a contract of private carriage, the parties may
freely stipulate their duties and obligations which perforce
would be binding on them. Unlike in a contract involving a
common carrier, private carriage does not involve the general
public. Hence, the stringent provisions of the Civil Code on
common carriers protecting the general public cannot
justifiably be applied to a ship transporting commercial goods
as a private carrier. Consequently, the public policy embodied
therein is not contravened by stipulations in a charter party
that lessen or remove the protection given by law in contracts
involving common carriers.
The issue posed in this case and the arguments raised by
petitioner are not novel; they were resolved long ago by this
Court in Home Insurance Co.  vs. American Steamship
Agencies, Inc. 18 In that case, the trial court similarly nullified a
stipulation identical to that involved in the present case for
being contrary to public policy based on Article 1744 of the
Civil Code and Article 587 of the Code of Commerce.
Consequently, the trial court held the shipowner liable for
damages resulting for the partial loss of the cargo. This Court
reversed the trial court and laid down, through Mr. Justice
Jose P. Bengzon, the following well-settled observation and
doctrine:
The provisions of our Civil Code on
common carriers were taken from Anglo-
American law. Under American
jurisprudence, a common carrier
undertaking to carry a special cargo or
chartered to a special person only,
becomes a private carrier. As a private
carrier, a stipulation exempting the owner
from liability for the negligence of its agent
is not against public policy, and is deemed
valid.
Such doctrine We find reasonable. The
Civil Code provisions on common carriers
should not be applied where the carrier is
not acting as such but as a private
carrier.  The stipulation in the charter party
absolving the owner from liability for loss
due to the negligence of its agent would be
void if the strict public policy governing
common carriers is applied.  Such policy
has no force where the public at large is not
involved, as in this case of a ship totally
chartered for the used of a single
party. 19  (Emphasis supplied.)
Indeed, where the reason for the rule ceases, the rule itself
does not apply. The general public enters into a contract of
transportation with common carriers without a hand or a voice
in the preparation thereof. The riding public merely adheres to
the contract; even if the public wants to, it cannot submit its
own stipulations for the approval of the common carrier. Thus,
the law on common carriers extends its protective mantle
against one-sided stipulations inserted in tickets, invoices or
other documents over which the riding public has no
understanding or, worse, no choice. Compared to the general
public, a charterer in a contract of private carriage is not
similarly situated. It can — and in fact it usually does — enter
into a free and voluntary agreement. In practice, the parties in
a contract of private carriage can stipulate the carrier's
obligations and liabilities over the shipment which, in turn,
determine the price or consideration of the charter. Thus, a
charterer, in exchange for convenience and economy, may
opt to set aside the protection of the law on common carriers.
When the charterer decides to exercise this option, he takes a
normal business risk.
Petitioner contends that the rule in Home Insurance is not
applicable to the present case because it "covers only a
32
stipulation exempting a private carrier from liability for the
negligence of his agent, but it does not apply to a stipulation
exempting a private carrier like private respondent from the
negligence of his employee or servant which is the situation in
this case." 20 This contention of petitioner is bereft of merit, for
it raises a distinction without any substantive difference. The
case Home Insurance specifically dealt with "the liability of the
shipowner for acts or negligence of its captain and
crew" 21 and a charter party stipulation which "exempts the
owner of the vessel from any loss or damage or delay arising
from any other source, even from the neglect or fault of the
captain or crew or some other person employed by the owner
on
board, for whose acts the owner would ordinarily be liable
except for said paragraph." 22 Undoubtedly, Home
Insurance is applicable to the case at bar.
The naked assertion of petitioner that the American rule
enunciated in Home Insurance is not the rule in the
Philippines 23 deserves scant consideration. The Court there
categorically held that said rule was "reasonable" and
proceeded to apply it in the resolution of that case. Petitioner
miserably failed to show such circumstances or arguments
which would necessitate a departure from a well-settled rule.
Consequently, our ruling in said case remains a binding
judicial precedent based on the doctrine of stare decisis and
Article 8 of the Civil Code which provides that "(j)udicial
decisions applying or interpreting the laws or the Constitution
shall form part of the legal system of the Philippines."
In fine, the respondent appellate court aptly stated that "[in the
case of] a private carrier, a stipulation exempting the owner
from liability even for the negligence of its agents is valid." 24
Other Arguments
On the basis of the foregoing alone, the present petition may
already be denied; the Court, however, will discuss the other
arguments of petitioner for the benefit and satisfaction of all
concerned.
Articles 586 and 587, Code of Commerce
Petitioner Valenzuela insists that the charter party stipulation
is contrary to Articles 586 and 587 of the Code of Commerce
which confer on petitioner the right to recover damages from
the shipowner and ship agent for the acts or conduct of the
captain. 25 We are not persuaded. Whatever rights petitioner
may have under the aforementioned statutory provisions were
waived when it entered into the charter party.
Article 6 of the Civil Code provides that "(r)ights may be
waived, unless the waiver is contrary to law, public order,
public policy, morals, or good customs, or prejudicial to a
person with a right recognized by law." As a general rule,
patrimonial rights may be waived as opposed to rights to
personality and family rights which may not be made the
subject of waiver. 26 Being patently and undoubtedly
patrimonial, petitioner's right conferred under said articles
may be waived. This, the petitioner did by acceding to the
contractual stipulation that it is solely responsible or any
damage to the cargo, thereby exempting the private carrier
from any responsibility for loss or damage thereto.
Furthermore, as discussed above, the contract of private
carriage binds petitioner and private respondent alone; it is
not imbued with public policy considerations for the general
public or third persons are not affected thereby.
Articles 1170 and 1173, Civil Code
Petitioner likewise argues that the stipulation subject of this
controversy is void for being contrary to Articles 1170 and
1173 of the Civil Code 27 which read:
Art. 1170. Those who in the performance of
their obligations are guilty of fraud,
negligence, or delay, and those who in any
manner contravene the tenor thereof, are
liable for damages
Art. 1173. The fault or negligence of the
obligor consists in the omission of that
diligence which is required by the nature of
the obligation and corresponds with the
circumstances of the persons, of the time
and of the place. When negligence shows
bad faith, the provisions of articles 1171
and 2201, shall apply.
If the law does not state the diligence which
is to be observed in the performance, that
which is expected of a good father of a
family shall be required.
The Court notes that the foregoing articles are applicable only
to the obligor or the one with an obligation to perform. In the
instant case, Private Respondent Seven Brothers is not an
obligor in respect of the cargo, for this obligation to bear the
loss was shifted to petitioner by virtue of the charter party.
This shifting of responsibility, as earlier observed, is not void.
The provisions cited by petitioner are, therefore, inapplicable
to the present case.
Moreover, the factual milieu of this case does not justify the
application of the second paragraph of Article 1173 of the
Civil Code which prescribes the standard of diligence to be
observed in the event the law or the contract is silent. In the
instant case, Article 362 of the Code of Commerce 28 provides
the standard of ordinary diligence for the carriage of goods by
a carrier. The standard of diligence under this statutory
provision may, however, be modified in a contract of private
carriage as the petitioner and private respondent had done in
their charter party.
Cases Cited by Petitioner Inapplicable
Petitioner cites Shewaram vs.  Philippine Airlines,
Inc. 29 which, in turn, quoted Juan Ysmael & Co. vs.  Gabino
Barreto & Co. 30 and argues that the public policy
considerations stated there vis-a-vis contractual stipulations
limiting the carrier's liability be applied "with equal force" to
this case. 31 It also cites Manila Railroad Co. vs.  Compañia
Transatlantica  32 and contends that stipulations exempting a
party from liability for damages due to negligence "should not
be countenanced" and should be "strictly construed" against
the party claiming its benefit. 33 We disagree.
The cases of Shewaram and Ysmael both involve a common
carrier; thus, they necessarily justify the application of such
policy considerations and concomitantly stricter rules. As
already discussed above, the public policy considerations
behind the rigorous treatment of common carriers are absent
in the case of private carriers. Hence, the stringent laws
applicable to common carriers are not applied to private
carries. The case of Manila Railroad is also inapplicable
because the action for damages there does not involve a
contract for transportation. Furthermore, the defendant therein
made a "promise to use due care in the lifting operations"
and, consequently, it was "bound by its undertaking"';
besides, the exemption was intended to cover accidents due
to hidden defects in the apparatus or other unforseeable
occurrences" not caused by its "personal negligence." This
promise was thus constructed to make sense together with
the stipulation against liability for damages. 34 In the present
case, we stress that the private respondent made no such
promise. The agreement of the parties to exempt the
shipowner from responsibility for any damage to the cargo
33
and place responsibility over the same to petitioner is the lone
stipulation considered now by this Court.

Finally, petitioner points to Standard Oil Co.  of New York

vs.  Lopez Costelo, 35 Walter A.  Smith & Co. vs.  Cadwallader
Gibson Lumber Co., 36 N. T  . Hashim and Co. vs.  Rocha and
Co., 37 Ohta Development Co. vs.  Steamship
"Pompey"  38 and Limpangco Sons vs. Yangco Steamship
Co. 39 in support of its contention that the shipowner be held
liable for damages. 40 These however are not on all fours with
the present case because they do not involve a similar factual
milieu or an identical stipulation in the charter party expressly
exempting the shipowner form responsibility for any damage
to the cargo.

Effect of the South Sea Resolution

In its memorandum, Seven Brothers argues that petitioner

has no cause of action against it because this Court has
earlier affirmed the liability of South Sea for the loss suffered
by petitioner. Private respondent submits that petitioner is not
legally entitled to collect twice for a single loss. 41 In view of
the above disquisition upholding the validity of the questioned
charter party stipulation and holding that petitioner may not
recover from private respondent, the present issue is moot
and academic. It suffices to state that the Resolution of this
Court dated June 2, 1995 42 affirming the liability of South Sea
does not, by itself, necessarily preclude the petitioner from
proceeding against private respondent. An aggrieved party
may still recover the deficiency for the person causing the
loss in the event the amount paid by the insurance company
does not fully cover the loss. Article 2207 of the Civil Code
provides:

Art. 2207. If the plaintiff's property has been

insured, and he has received indemnity for
the insurance company for the injury or loss
arising out of the wrong or breach of
contract complained of, the insurance
company shall be subrogated to the rights
of the insured against the wrongdoer or the
person who has violated the contract. If the
amount paid by the insurance company
does not fully cover the injury or loss, the
aggrieved party shall be entitled to recover
the deficiency form the person causing the
loss or injury.

WHEREFORE, premises considered, the petition is hereby

DENIED for its utter failure to show any reversible error on the
part of Respondent Court. The assailed Decision is
AFFIRMED.

34
THIRD DIVISION G.R. No. 115640 March 15, 1995
REYNALDO ESPIRITU and GUILLERMA AYUG, petitioners,
vs. COURT OF APPEALS and TERESITA
MASAUDING, respondents.
MELO, J.:
This case concerns a seemingly void marriage and a
relationship which went sour. The innocent victims are two
children horn out of the same union. Upon this Court now falls
the not too welcome task of deciding the issue of who,
between the father and mother, is more suitable and better
qualified in helping the children to grow into responsible, well-
adjusted, and happy young adulthood.
Petitioner Reynaldo Espiritu and respondent Teresita
Masauding first met sometime in 1976 in Iligan City where
Reynaldo was employed by the National Steel Corporation
and Teresita was employed as a nurse in a local hospital. In
1977, Teresita left for Los Angeles, California to work as a
nurse. She was able to acquire immigrant status sometime
later. In 1984, Reynaldo was sent by his employer, the
National Steel Corporation, to Pittsburgh, Pennsylvania as its
liaison officer and Reynaldo and Teresita then began to
maintain a common law relationship of husband and wife. On
August 16, 1986, their daughter, Rosalind Therese, was born.
On October 7, 1987, while they were on a brief vacation in the
Philippines, Reynaldo and Teresita got married, and upon
their return to the United States, their second child, a son, this
time, and given the name Reginald Vince, was born on
January 12, 1988.
The relationship of the couple deteriorated until they decided
to separate sometime in 1990. Teresita blamed Reynaldo for
the break-up, stating he was always nagging her about
money matters. Reynaldo, on the other hand, contended that
Teresita was a spendthrift, buying expensive jewelry and
antique furniture instead of attending to household expenses.
Instead of giving their marriage a second chance as allegedly
pleaded by Reynaldo, Teresita left Reynaldo and the children
and went back to California. She claims, however, that she
spent a lot of money on long distance telephone calls to keep
in constant touch with her children.
Reynaldo brought his children home to the Philippines, but
because his assignment in Pittsburgh was not yet completed,
he was sent back by his company to Pittsburgh. He had to
leave his children with his sister, co-petitioner Guillerma
Layug and her family.
Teresita claims that she did not immediately follow her
children because Reynaldo filed a criminal case for bigamy
against her and she was afraid of being arrested. The
judgment of conviction in the bigamy case was actually
rendered only on September 29, 1994. (Per Judge Harriet O.
Demetriou, Branch 70, RTC, Pasig, pp. 210-222, Rollo).
Teresita, meanwhile, decided to return to the Philippines and
on December 8, 1992 and filed the petition for a writ
of habeas corpus  against herein two petitioners to gain
custody over the children, thus starting the whole proceedings
now reaching this Court.
On June 30, 1993, the trial court dismissed the petition
for habeas corpus. It suspended Teresita's parental authority
over Rosalind and Reginald and declared Reynaldo to have
sole parental authority over them but with rights of visitation to
be agreed upon by the parties and to be approved by the
Court.
On February 16, 1994, the Court of Appeals per Justice
Isnani, with Justices de Pano and Ibay-Somera concurring,
reversed the trial court's decision. It gave custody to Teresita
and visitation rights on weekends to Reynaldo.
Petitioners now come to this Court on a petition for review, in
the main contending that the Court of Appeals disregarded
the factual findings of the trial court; that the Court of Appeals
further engaged in speculations and conjectures, resulting in
its erroneous conclusion that custody of the children should
be given to respondent Teresita.
We believe that respondent court resolved the question of
custody over the children through an automatic and blind
application of the age proviso of Article 363 of the Civil Code
which reads:
Art. 363. In all questions on the care,
custody, education and property of the
children, the latter's welfare shall be
paramount. No mother shall be separated
from her child under seven years of age,
unless the court finds compelling reasons
for such measure.
and of Article 213 of the Family Code which in turn
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.
The decision under review is based on the report of the Code
Commission which drafted Article 213 that a child below
seven years still needs the loving, tender care that only a
mother can give and which, presumably, a father cannot give
in equal measure. The commentaries of a member of the
Code Commission, former Court of Appeals Justice Alicia
Sempio-Diy, in a textbook on the Family Code, were also
taken into account. Justice Diy believes that a child below
seven years should still be awarded to her mother even if the
latter is a prostitute or is unfaithful to her husband. This is on
the theory that moral dereliction has no effect on a baby
unable to understand such action. (Handbook on the Family
Code of the Philippines, 1988 Ed., p. 297.)
The Court of Appeals was unduly swayed by an abstract
presumption of law rather than an appreciation of relevant
facts and the law which should apply to those facts. The task
of choosing the parent to whom custody shall be awarded is
not a ministerial function to be determined by a simple
determination of the age of a minor child. Whether a child is
under or over seven years of age, the paramount criterion
must always be the child's interests. Discretion is given to the
court to decide who can best assure the welfare of the child,
and award the custody on the basis of that consideration.
In Unson III vs.  Navarro (101 SCRA 183 [1980]), we laid
down the rule that "in all controversies regarding the custody
of minors, the sole and foremost consideration is the physical,
education, social and moral welfare of the child concerned,
taking into account the respective resources and social and
moral situations of the contending parents", and in Medina
vs.  Makabali (27 SCRA 502 [1969]), where custody of the
minor was given to a non-relative as against the mother, then
the country's leading civilist, Justice J.B.L. Reyes, explained
its basis in this manner:
. . . While our law recognizes the right of a
parent to the custody of her child, Courts
must not lose sight of the basic principle
that "in all questions on the care, custody,
education and property of children, the
35
 latter's welfare shall be paramount" (Civil
Code of the Philippines. Art. 363), and that
for compelling reasons, even a child under
seven may be ordered separated from the
mother (do). This is as it should be, for in
the continual evolution of legal institutions,
the  patria potestas  has been transformed
from the jus vitae ac necis (right of life and
death) of the Roman law, under which the
offspring was virtually a chattel of his
parents into a radically different institution,
due to the influence of Christian faith and
doctrines. The obligational aspect is now
supreme. As pointed out by Puig Pena, now
"there is no power, but a task; no complex
of rights (of parents) but a sum of duties; no
sovereignty, but a sacred trust for the
welfare of the minor."
As a result, the right of parents to the
company and custody of their children is
but ancillary to the proper discharge of
parental duties to provide the children with
adequate support, education, moral,
intellectual and civic training and
development (Civil Code, Art. 356).
(pp. 504-505.)
In ascertaining the welfare and best interests of the child,
courts are mandated by the Family Code to take into
account all relevant considerations. If a child is under seven
years of age, the law presumes that the mother is the best
custodian. The presumption is strong but it is not conclusive.
It can be overcome by "compelling reasons". If a child is over
seven, his choice is paramount but, again, the court is not
bound by that choice. In its discretion, the court may find the
chosen parent unfit and award custody to the other parent, or
even to a third party as it deems fit under the circumstances.
In the present case, both Rosalind and Reginald are now over
seven years of age. Rosalind celebrated her seventh birthday
on August 16, 1993 while Reginald reached the same age on
January 12, 1995. Both are studying in reputable schools and
appear to be fairly intelligent children, quite capable of
thoughtfully determining the parent with whom they would
want to live. Once the choice has been made, the burden
returns to the court to investigate if the parent thus chosen is
unfit to assume parental authority and custodial responsibility.
Herein lies the error of the Court of Appeals. Instead of
scrutinizing the records to discover the choice of the children
and rather than verifying whether that parent is fit or unfit,
respondent court simply followed statutory presumptions and
general propositions applicable to ordinary or common
situations. The seven-year age limit was mechanically treated
as an arbitrary cut off period and not a guide based on a
strong presumption.
A scrutiny of the pleadings in this case indicates that Teresita,
or at least, her counsel are more intent on emphasizing the
"torture and agony" of a mother separated from her children
and the humiliation she suffered as a result of her character
being made a key issue in court rather than the feelings and
future, the best interests and welfare of her children. While
the bonds between a mother and her small child are special in
nature, either parent, whether father or mother, is bound to
suffer agony and pain if deprived of custody. One cannot say
that his or her suffering is greater than that of the other
parent. It is not so much the suffering, pride, and other
feelings of either parent but the welfare of the child which is
the paramount consideration.
We are inclined to sustain the findings and conclusions of the
regional trial court because it gave greater attention to the
choice of Rosalind and considered in detail all the relevant
factors bearing on the issue of custody.
When she was a little over 5 years old, Rosalind was referred
to a child psychologist, Rita Flores Macabulos, to determine
the effects of uprooting her from the Assumption College
where she was studying. Four different tests were
administered. The results of the tests are quite revealing. The
responses of Rosalind about her mother were very negative
causing the psychologist to delve deeper into the child's
anxiety. Among the things revealed by Rosalind was an
incident where she saw her mother hugging and kissing a
"bad" man who lived in their house and worked for her father.
Rosalind refused to talk to her mother even on the telephone.
She tended to be emotionally emblazed because of constant
fears that she may have to leave school and her aunt's family
to go back to the United States to live with her mother. The 5-
1/2 page report deals at length with feelings of insecurity and
anxiety arising from strong conflict with the mother. The child
tried to compensate by having fantasy activities. All of the 8
recommendations of the child psychologist show that
Rosalind chooses petitioners over the private respondent and
that her welfare will be best served by staying with them (pp.
199-205, Rollo).
At about the same time, a social welfare case study was
conducted for the purpose of securing the travel clearance
required before minors may go abroad. Social Welfare Officer
Emma D. Estrada Lopez, stated that the child Rosalind
refused to go back to the United States and be reunited with
her mother. She felt unloved and uncared for. Rosalind was
more attached to her Yaya who did everything for her and
Reginald. The child was found suffering from emotional shock
caused by her mother's infidelity. The application for travel
clearance was recommended for denial (pp. 206-209, Rollo).
Respondent Teresita, for her part, argues that the 7-year age
reference in the law applies to the date when the petition for a
writ of habeas corpus is filed, not to the date when a decision
is rendered. This argument is flawed. Considerations
involving the choice made by a child must be ascertained at
the time that either parent is given custody over the child. The
matter of custody is not permanent and unalterable. If the
parent who was given custody suffers a future character
change and becomes unfit, the matter of custody can always
be re-examined and adjusted (Unson III v. Navarro, supra, at
p. 189). To be sure, the welfare, the best interests, the
benefit, and the good of the child must be determined as of
the time that either parent is chosen to be the custodian. At
the present time, both children are over 7 years of age and
are thus perfectly capable of making a fairly intelligent choice.
According to respondent Teresita, she and her children had
tearful reunion in the trial court, with the children crying,
grabbing, and embracing her to prevent the father from taking
them away from her. We are more inclined to believe the
father's contention that the children ignored Teresita in court
because such an emotional display as described by Teresita
in her pleadings could not have been missed by the trial court.
Unlike the Justices of the Court of Appeals Fourth Division,
Judge Lucas P. Bersamin personally observed the children
and their mother in the courtroom. What the Judge found is
diametrically opposed to the contentions of respondent
Teresita. The Judge had this to say on the matter.
And, lastly, the Court cannot look at
petitioner [Teresita] in similar light, or with
more understanding, especially as her
conduct and demeanor in the courtroom
(during most of the proceedings) or
elsewhere (but in the presence of the
undersigned presiding judge) demonstrated
her ebulent temper that tended to
36
 corroborate the alleged violence of her
physical punishment of the children (even if
only for ordinary disciplinary purposes) and
emotional instability, typified by her failure
(or refusal?) to show deference and respect
to the Court and the other parties (pp. 12-
13, RTC Decision)
Respondent Teresita also questions the competence and
impartiality of the expert witnesses. Respondent court, in turn,
states that the trial court should have considered the fact that
Reynaldo and his sister, herein petitioner Guillerma Layug,
hired the two expert witnesses. Actually, this was taken into
account by the trial court which stated that the allegations of
bias and unfairness made by Teresita against the
psychologist and social worker were not substantiated.
The trial court stated that the professional integrity and
competence of the expert witnesses and the objectivity of the
interviews were unshaken and unimpeached. We might add
that their testimony remain uncontroverted. We also note that
the examinations made by the experts were conducted in late
1991, well over a year before the filing by Teresita of
the habeas corpus petition in December, 1992. Thus, the
examinations were at that time not intended to support
petitioners' position in litigation, because there was then not
even an impending possibility of one. That they were
subsequently utilized in the case a quo when it did materialize
does not change the tenor in which they were first obtained.
Furthermore, such examinations, when presented to the court
must be construed to have been presented not to sway the
court in favor of any of the parties, but to assist the court in
the determination of the issue before it. The persons who
effected such examinations were presented in the capacity of
expert witnesses testifying on matters within their respective
knowledge and expertise. On this matter, this Court had
occasion to rule in the case of Sali vs. Abukakar, et al. (17
SCRA 988 [1966]).
The fact that, in a particular litigation, an
NBI expert examines certain contested
documents, at the request, not of a public
officer or agency of the Government, but of
a private litigant, does not necessarily
nullify the examination thus made. Its
purpose, presumably, to assist the court
having jurisdiction over said litigation, in the
performance of its duty to settle correctly
the issues relative to said documents. Even
a non-expert private individual may
examine the same, if there are facts within
his knowledge which may help, the court in
the determination of said issue. Such
examination, which may properly be
undertaken by a non-expert private
individual, does not, certainly become null
and void when the examiner is an expert
and/or an officer of the NBI.
(pp. 991-992.)
In regard to testimony of expert witnesses it was held
in Salomon, et al. vs.  Intermediate Appellate Court, et al. (185
SCRA 352 [1990]):
. . . Although courts are not ordinarily bound
by expert testimonies, they may place
whatever weight they choose upon such
testimonies in accordance with the facts of
the case. The relative weight and
sufficiency of expert testimony is peculiarly
within the province of the trial court to
decide, considering the ability and
character of the witness, his actions upon
the witness stand, the weight and process
of the reasoning by which he has supported
his opinion, his possible bias in favor of the
side for whom he testifies, the fact that he is
a paid witness, the relative opportunities for
study and observation of the matters about
which he testifies, and any other matters
which reserve to illuminate his statements.
The opinion of the expert may not be
arbitrarily rejected; it is to be considered by
the court in view of all the facts and
circumstances in the case and when
common knowledge utterly fails, the expert
opinion may be given controlling effect (20
Am. Jur., 1056-1058). The problem of the
credibility of the expert witness and the
evaluation of his testimony is left to the
discretion of the trial court whose ruling
thereupon is not reviewable in the absence
of an abuse of that discretion.
(p. 359)
It was in the exercise of this discretion, coupled with the
opportunity to assess the witnesses' character and to observe
their respective demeanor that the trial court opted to rely on
their testimony, and we believe that the trial court was correct
in its action.
Under direct examination an February 4, 1993, Social Worker
Lopez stated that Rosalind and her aunt were about to board
a plane when they were off-loaded because there was no
required clearance. They were referred to her office, at which
time Reginald was also brought along and interviewed. One
of the regular duties of Social Worker Lopez in her job
appears to be the interview of minors who leave for abroad
with their parents or other persons. The interview was for
purposes of foreign travel by a 5-year old child and had
nothing to do with any pending litigation. On cross-
examination, Social Worker Lopez stated that her assessment
of the minor's hatred for her mother was based on the
disclosures of the minor. It is inconceivable, much less
presumable that Ms. Lopez would compromise her position,
ethics, and the public trust reposed on a person of her
position in the course of doing her job by falsely testifying just
to support the position of any litigant.
The psychologist, Ms. Macabulos, is a B.S. magna cum laude
graduate in Psychology and an M.A. degree holder also in
Psychology with her thesis graded "Excellent". She was a
candidate for a doctoral degree at the time of the interview.
Petitioner Reynaldo may have shouldered the cost of the
interview but Ms. Macabulos services were secured because
Assumption College wanted an examination of the child for
school purposes and not because of any litigation. She may
have been paid to examine the child and to render a finding
based on her examination, but she was not paid to fabricate
such findings in favor of the party who retained her services.
In this instance it was not even petitioner Reynaldo but the
school authorities who initiated the same. It cannot be
presumed that a professional of her potential and stature
would compromise her professional standing.
Teresita questions the findings of the trial court that:
1. Her morality is questionable as shown by
her marrying Reynaldo at the time she had
a subsisting marriage with another man.
2. She is guilty of grave indiscretion in
carrying on a love affair with one of the
Reynaldo's fellow NSC employees.
37
 3. She is incapable of providing the children
with necessities and conveniences
commensurate to their social standing
because she does not even own any home
in the Philippines.
4. She is emotionally unstable with ebullient
temper.
It is contended that the above findings do not constitute the
compelling reasons under the law which would justify
depriving her of custody over the children; worse, she claims,
these findings are non-existent and have not been proved by
clear and convincing evidence.
Public and private respondents give undue weight to the
matter of a child under 7 years of age not to be separated
from the mother, without considering what the law itself
denominates as compelling reasons or relevant
considerations to otherwise decree. In the Unson III case,
earlier mentioned, this Court stated that it found no difficulty in
not awarding custody to the mother, it being in the best
interest of the child "to be freed from the obviously
unwholesome, not
to say immoral influence, that the situation where [the mother]
had placed herself . . . might create in the moral and social
outlook of [the child] who was in her formative and most
impressionable stage . . ."
Then too, it must be noted that both Rosalind and Reginald
are now over 7 years of age. They understand the difference
between right and wrong, ethical behavior and deviant
immorality. Their best interests would be better served in an
environment characterized by emotional stability and a certain
degree of material sufficiency. There is nothing in the records
to show that Reynaldo is an "unfit" person under Article 213 of
the Family Code. In fact, he has been trying his best to give
the children the kind of attention and care which the mother is
not in a position to extend.
The argument that the charges against the mother are false is
not supported by the records. The findings of the trial court
are based on evidence.
Teresita does not deny that she was legally married to
Roberto Lustado on December 17, 1984 in California (p. 13,
Respondent's Memorandum; p. 238, Rollo; pp. 11, RTC
Decision). Less than a year later, she had already driven
across the continental United States to commence living with
another man, petitioner Reynaldo, in Pittsburgh. The two were
married on October 7, 1987. Of course, to dilute this
disadvantage on her part, this matter of her having contracted
a bigamous marriage later with Reynaldo, Teresita tried to
picture Reynaldo as a rapist, alleging further that she told
Reynaldo about her marriage to Lustado on the occasion
when she was raped by Reynaldo. Expectedly, Judge Harriet
Demetriou of the Pasig RTC lent no weight to such tale. And
even if this story were given credence, it adds to and not
subtracts from the conviction of this Court about Teresita's
values. Rape is an insidious crime against privacy. Confiding
to one's potential rapist about a prior marriage is not a very
convincing indication that the potential victim is averse to the
act. The implication created is that the act would be
acceptable if not for the prior marriage.
More likely is Reynaldo's story that he learned of the prior
marriage only much later. In fact, the rape incident itself is
unlikely against a woman who had driven three days and
three nights from California, who went straight to the house of
Reynaldo in Pittsburgh and upon arriving went to bed and,
who immediately thereafter started to live with him in a
relationship which is marital in nature if not in fact.
Judge Bersamin of the court a quo believed the testimony of
the various witnesses that while married to Reynaldo,
Teresita entered into an illicit relationship with Perdencio
Gonzales right there in the house of petitioner Reynaldo and
respondent Teresita. Perdencio had been assigned by the
National Steel Corporation to assist in the project in
Pittsburgh and was staying with Reynaldo, his co-employee,
in the latter's house. The record shows that the daughter
Rosalind suffered emotional disturbance caused by the
traumatic effect of seeing her mother hugging and kissing a
boarder in their house. The record also shows that it was
Teresita who left the conjugal home and the children, bound
for California. When Perdencio Gonzales was reassigned to
the Philippines, Teresita followed him and was seen in his
company in a Cebu hotel, staying in one room and taking
breakfast together. More significant is that letters and written
messages from Teresita to Perdencio were submitted in
evidence (p.12, RTC Decision).
The argument that moral laxity or the habit of flirting from one
man to another does not fall under "compelling reasons" is
neither meritorious nor applicable in this case. Not only are
the children over seven years old and their clear choice is the
father, but the illicit or immoral activities of the mother had
already caused emotional disturbances, personality conflicts,
and exposure to conflicting moral values, at least in Rosalind.
This is not to mention her conviction for the crime of bigamy,
which from the records appears to have become final (pp.
210-222, Rollo).
Respondent court's finding that the father could not very well
perform the role of a sole parent and substitute mother
because his job is in the United States while the children will
be left behind with their aunt in the Philippines is misplaced.
The assignment of Reynaldo in Pittsburgh is or was a
temporary one. He was sent there to oversee the purchase of
a steel mill component and various equipment needed by the
National Steel Corporation in the Philippines. Once the
purchases are completed, there is nothing to keep him there
anymore. In fact, in a letter dated January 30, 1995, Reynaldo
informs this Court of the completion of his assignment abroad
and of his permanent return to the Philippines (ff.
p. 263, Rollo).
The law is more than satisfied by the judgment of the trial
court. The children are now both over seven years old. Their
choice of the parent with whom they prefer to stay is clear
from the record. From all indications, Reynaldo is a fit person,
thus meeting the two requirements found in the first
paragraph of Article 213 of the Family Code. The presumption
under the second paragraph of said article no longer applies
as the children are over seven years. Assuming that the
presumption should have persuasive value for children only
one or two years beyond the age of seven years mentioned in
the statute, there are compelling reasons and relevant
considerations not to grant custody to the mother. The
children understand the unfortunate shortcomings of their
mother and have been affected in their emotional growth by
her behavior.
WHEREFORE, the petition is hereby GRANTED. The
decision of the Court of Appeals is reversed and set aside,
and the decision of Branch 96 of the Regional Trial Court of
the National Capital Judicial Region stationed in Quezon City
and presided over by the Honorable Lucas P. Bersamin in its
Civil Case No. Q-92-14206 awarding custody of the minors
Rosalind and Reginald Espiritu to their father, Reynaldo
Espiritu, is reinstated. No special pronouncement is made as
to costs.
38
THIRD DIVISION G.R. No. 148311. March 31, 2005
IN THE MATTER OF THE ADOPTION OF STEPHANIE
NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
DECISION
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural
father, use the surname of her natural mother as her
middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein petitioner,
filed a petition1 to adopt his minor illegitimate child Stephanie
Nathy Astorga Garcia. He alleged therein, among others,
that Stephanie was born on June 26, 1994; 2 that her mother
is Gemma Astorga Garcia; that Stephanie has been using
her mother’s middle name and surname; and that he is now a
widower and qualified to be her adopting parent. He prayed
that Stephanie’s middle name Astorga be changed to
"Garcia," her mother’s surname, and that her surname
"Garcia" be changed to "Catindig," his surname.
On March 23, 2001,3 the trial court rendered the assailed
Decision granting the adoption, thus:
"After a careful consideration of the evidence presented by
the petitioner, and in the absence of any opposition to the
petition, this Court finds that the petitioner possesses all the
qualifications and none of the disqualification provided for by
law as an adoptive parent, and that as such he is qualified to
maintain, care for and educate the child to be adopted; that
the grant of this petition would redound to the best interest
and welfare of the minor Stephanie Nathy Astorga Garcia.
The Court further holds that the petitioner’s care and custody
of the child since her birth up to the present constitute more
than enough compliance with the requirement of Article 35 of
Presidential Decree No. 603.
WHEREFORE, finding the petition to be meritorious, the
same is GRANTED. Henceforth, Stephanie Nathy Astorga
Garcia is hereby freed from all obligations of obedience and
maintenance with respect to her natural mother, and for civil
purposes, shall henceforth be the petitioner’s legitimate child
and legal heir. Pursuant to Article 189 of the Family Code of
the Philippines, the minor shall be known as STEPHANIE
NATHY CATINDIG.
Upon finality of this Decision, let the same be entered in the
Local Civil Registrar concerned pursuant to Rule 99 of the
Rules of Court.
Let copy of this Decision be furnished the National Statistics
Office for record purposes.
SO ORDERED."4
On April 20, 2001, petitioner filed a motion for clarification
and/or reconsideration5 praying that Stephanie should be
allowed to use the surname of her natural mother (GARCIA)
as her middle name.
On May 28, 2001,6 the trial court denied petitioner’s motion for
reconsideration holding that there is no law or jurisprudence
allowing an adopted child to use the surname of his biological
mother as his middle name.
Hence, the present petition raising the issue of whether an
illegitimate child may use the surname of her mother as her
middle name when she is subsequently adopted by her
natural father.
Petitioner submits that the trial court erred in depriving
Stephanie of a middle name as a consequence of adoption
because: (1) there is no law prohibiting an adopted child from
having a middle name in case there is only one adopting
parent; (2) it is customary for every Filipino to have as middle
name the surname of the mother; (3) the middle name or
initial is a part of the name of a person; (4) adoption is for the
benefit and best interest of the adopted child, hence, her right
to bear a proper name should not be violated; (5) permitting
Stephanie to use the middle name "Garcia" (her mother’s
surname) avoids the stigma of her illegitimacy; and; (6) her
continued use of "Garcia" as her middle name is not opposed
by either the Catindig or Garcia families.
The Republic, through the Office of the Solicitor General
(OSG), agrees with petitioner that Stephanie should be
permitted to use, as her middle name, the surname of her
natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanie’s
filiation with her natural mother because under Article 189 of
the Family Code, she remains to be an intestate heir of the
latter. Thus, to prevent any confusion and needless hardship
in the future, her relationship or proof of that relationship with
her natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to
use the surname of her natural mother as her middle name.
What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle name,
which is ordinarily the surname of the mother. This custom
has been recognized by the Civil Code and Family Code. In
fact, the Family Law Committees agreed that "the initial or
surname of the mother should immediately precede the
surname of the father so that the second name, if any, will be
before the surname of the mother."7
We find merit in the petition.
Use Of Surname Is Fixed By Law –
For all practical and legal purposes, a man's name is the
designation by which he is known and called in the
community in which he lives and is best known. It is defined
as the word or combination of words by which a person is
distinguished from other individuals and, also, as the label or
appellation which he bears for the convenience of the world at
large addressing him, or in speaking of or dealing with him. 8 It
is both of personal as well as public interest that every person
must have a name.
The name of an individual has two parts: (1) the given or
proper name and (2) the surname or family name. The
given or proper name is that which is given to the individual at
birth or at baptism, to distinguish him from other individuals.
The surname or family name is that which identifies the family
to which he belongs and is continued from parent to child.
The given name may be freely selected by the parents for the
child, but the surname to which the child is entitled is fixed by
law.9
Thus, Articles 364 to 380 of the Civil Code provides the
substantive rules which regulate the use of surname 10 of an
individual whatever may be his status in life, i.e., whether he
may be legitimate or illegitimate, an adopted child, a married
woman or a previously married woman, or a widow, thus:
39
"Art. 364. Legitimate and legitimated children shall principally
use the surname of the father.
Art. 365. An adopted child shall bear the surname of the
adopter.
xxx
Art. 369. Children conceived before the decree annulling a
voidable marriage shall principally use the surname of the
father.
Art. 370. A married woman may use:
(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating
that she is his wife, such as ‘Mrs.’
Art. 371. In case of annulment of marriage, and the wife is the
guilty party, she shall resume her maiden name
and surname. If she is the innocent spouse, she may resume
her maiden name and surname. However, she may choose to
continue employing her former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another
person.
Art. 372. When legal separation has been granted, the wife
shall continue using her name and surname employed before
the legal separation.
Art. 373. A widow may use the deceased
husband's surname as though he were still living, in
accordance with Article 370.
Art. 374. In case of identity of names and surnames, the
younger person shall be obliged to use such additional name
or surname as will avoid confusion.
Art. 375. In case of identity of names and surnames between
ascendants and descendants, the word ‘Junior’ can be used
only by a son. Grandsons and other direct male descendants
shall either:
(1) Add a middle name or the mother's surname,
(2) Add the Roman numerals II, III, and so on.
x x x"
Law Is Silent As To The Use Of
Middle Name –
As correctly submitted by both parties, there is no law
regulating the use of a middle name. Even Article 17611 of the
Family Code, as amended by Republic Act No. 9255,
otherwise known as "An Act Allowing Illegitimate Children To
Use The Surname Of Their Father," is silent as to what middle
name a child may use.
The middle name or the mother’s surname is only considered
in Article 375(1), quoted above, in case there is identity of
names and surnames between ascendants and descendants,
in which case, the middle name or the mother’s surname shall
be added.
Notably, the law is likewise silent as to what middle name
an adoptee may use. Article 365 of the Civil Code merely
provides that "an adopted child shall bear the surname of the
adopter." Also, Article 189 of the Family Code, enumerating
the legal effects of adoption, is likewise silent on the matter,
thus:
"(1) For civil purposes, the adopted shall be deemed to be
a legitimate child of the adopters and both shall acquire the
reciprocal rights and obligations arising from the relationship
of parent and child, including the right of the adopted to use
the surname of the adopters;
x x x"
However, as correctly pointed out by the OSG, the members
of the Civil Code and Family Law Committees that drafted the
Family Code recognized the Filipino custom of adding the
surname of the child’s mother as his middle name. In the
Minutes of the Joint Meeting of the Civil Code and Family Law
Committees, the members approved the suggestion that the
initial or surname of the mother should immediately
precede the surname of the father, thus
"Justice Caguioa commented that there is a difference
between the use by the wife of the surname and that of the
child because the father’s surname indicates the family to
which he belongs, for which reason he would insist on
the use of the father’s surname by the child but that, if he
wants to, the child may also use the surname of the
mother.
Justice Puno posed the question: If the child chooses to use
the surname of the mother, how will his name be written?
Justice Caguioa replied that it is up to him but that his point is
that it should be mandatory that the child uses the
surname of the father and permissive in the case of the
surname of the mother.
Prof. Baviera remarked that Justice Caguioa’s point is
covered by the present Article 364, which reads:
Legitimate and legitimated children shall principally use the
surname of the father.
Justice Puno pointed out that many names change through
no choice of the person himself precisely because of this
misunderstanding. He then cited the following example:
Alfonso Ponce Enrile’s correct surname is Ponce since the
mother’s surname is Enrile but everybody calls him Atty.
Enrile. Justice Jose Gutierrez David’s family name is
Gutierrez and his mother’s surname is David but they all call
him Justice David.
Justice Caguioa suggested that the proposed Article (12)
be modified to the effect that it shall be mandatory on the
child to use the surname of the father but he may use the
surname of the mother by way of an initial or a middle
name. Prof. Balane stated that they take note of this for
inclusion in the Chapter on Use of Surnames since in the
proposed Article (10) they are just enumerating the rights of
legitimate children so that the details can be covered in the
appropriate chapter.
xxx
Justice Puno remarked that there is logic in the simplification
suggested by Justice Caguioa that the surname of the father
should always be last because there are so many traditions
40
like the American tradition where they like to use their second Stephanie to use her mother’s surname as her middle name
given name and the Latin tradition, which is also followed by will not only sustain her continued loving relationship with her
the Chinese wherein they even include the Clan name. mother but will also eliminate the stigma of her illegitimacy.

xxx Liberal Construction of Adoption Statutes In Favor Of

Justice Puno suggested that they agree in principle that
in the Chapter on the Use of Surnames, they should say
that initial or surname of the mother should immediately
precede the surname of the father so that the second
name, if any, will be before the surname of the mother.
Prof. Balane added that this is really the Filipino way. The
Committee approved the suggestion."12 (Emphasis
supplied)
Adoption –
It is a settled rule that adoption statutes, being humane and
salutary, should be liberally construed to carry out the
beneficent purposes of adoption.25 The interests and welfare
of the adopted child are of primary and paramount
consideration,26 hence, every reasonable intendment should
be sustained to promote and fulfill these noble and
compassionate objectives of the law.27

In the case of an adopted child, the law provides that "the
adopted shall bear the surname of the adopters."13 Again, it is
silent whether he can use a middle name. What it only
expressly allows, as a matter of right and obligation, is for the
adoptee to bear the surname of the adopter, upon issuance of
the decree of adoption.14
The Underlying Intent of Adoption Is In Favor of the
Adopted Child –
Adoption is defined as the process of making a child, whether
related or not to the adopter, possess in general, the rights
accorded to a legitimate child.15 It is a juridical act, a
proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate
paternity and filiation.16  The modern trend is to consider
adoption not merely as an act to establish a relationship of
paternity and filiation, but also as an act which endows the
child with a legitimate status.17 This was, indeed, confirmed in
1989, when the Philippines, as a State Party to the
Convention of the Rights of the Child initiated by the
United Nations, accepted the principle that adoption is
impressed with social and moral responsibility, and that
its underlying intent is geared to favor the adopted
child.18 Republic Act No. 8552, otherwise known as the
"Domestic Adoption Act of 1998,"19 secures these rights and
privileges for the adopted.20
Lastly, Art. 10 of the New Civil Code provides that:
"In case of doubt in the interpretation or application of laws, it
is presumed that the lawmaking body intended right and
justice to prevail."
This provision, according to the Code Commission, "is
necessary so that it may tip the scales in favor of right and
justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which
may apparently be authorized by some way of interpreting the
law."28
Hence, since there is no law prohibiting an illegitimate
child adopted by her natural father, like Stephanie, to use, as
middle name her mother’s surname, we find no reason why
she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed
Decision is partly MODIFIED in the sense that Stephanie
should be allowed to use her mother’s surname "GARCIA" as
her middle name.
Let the corresponding entry of her correct and complete name
be entered in the decree of adoption.

One of the effects of adoption is that the adopted is deemed

to be a legitimate child of the adopter for all intents and
purposes pursuant to Article 18921 of the Family Code and
Section 1722 Article V of RA 8552.23

Being a legitimate child by virtue of her adoption, it

follows that Stephanie is entitled to all the rights
provided by law to a legitimate child without
discrimination of any kind, including the right to bear the
surname of her father and her mother, as discussed
above. This is consistent with the intention of the members of
the Civil Code and Family Law Committees as earlier
discussed. In fact, it is a Filipino custom that the initial or
surname of the mother should immediately precede the
surname of the father.

Additionally, as aptly stated by both parties, Stephanie’s

continued use of her mother’s surname (Garcia) as her
middle name will maintain her maternal lineage. It is to be
noted that Article 189(3) of the Family Code and Section 1824,
Article V of RA 8552 (law on adoption) provide that the
adoptee remains an intestate heir of his/her biological parent.
Hence, Stephanie can well assert or claim her hereditary
rights from her natural mother in the future.

Moreover, records show that Stephanie and her mother are

living together in the house built by petitioner for them at 390
Tumana, San Jose, Baliuag, Bulacan. Petitioner provides for
all their needs. Stephanie is closely attached to both her
mother and father. She calls them "Mama" and "Papa".
Indeed, they are one normal happy family. Hence, to allow
41