ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V.

PALANG and HERMINIA P. DELA CRUZ, respondents.

A house and lot in Binalonan, Pangasinan was likewise purchased on

September 23, 1975, allegedly by Erlinda as the sole vendee. TCT No.
143120 covering said property was later issued in her name.

DECISION
ROMERO, J.:
Before us is a petition for review of the decision of the Court of Appeals
in CA-G.R. CV No. 24199 entitled Erlinda Agapay v. Carlina (Cornelia)
Palang and Herminia P. Dela Cruz dated June 22, 1994 involving the
ownership of two parcels of land acquired during the cohabitation of
petitioner and private respondents legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he
took private respondent Carlina (or Cornelia) Vallesterol as a wife at the
Pozorrubio Roman Catholic Church in Pangasinan. A few months after the
wedding, in October 1949, he left to work in Hawaii. Miguel and Carlinas
only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was
in 1964 and during the entire duration of his year-long sojourn he stayed in
Zambales with his brother, not in Pangasinan with his wife and child. The
trial court found evidence that as early as 1957, Miguel had attempted to
divorce Carlina in Hawaii.[1] When he returned for good in 1972, he refused
to live with private respondents, but stayed alone in a house in Pozorrubio,
Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his
second marriage with nineteen-year-old Erlinda Agapay, herein petitioner.
[2]
Two months earlier, on May 17, 1973, Miguel and Erlinda, as evidenced
by the Deed of Sale, jointly purchased a parcel of agricultural land located at
San Felipe, Binalonan, Pangasinan with an area of 10,080 square meters.
Consequently, Transfer Certificate of Title No. 101736 covering said rice
land was issued in their names.

On October 30, 1975, Miguel and Cornelia Palang executed a Deed of

Donation as a form of compromise agreement to settle and end a case filed
by the latter.[3] The parties therein agreed to donate their conjugal property
consisting of six parcels of land to their only child, Herminia Palang. [4]
Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang,
born on December 6, 1977. In 1979, Miguel and Erlinda were convicted of
Concubinage upon Carlinas complaint.[5]Two years later, on February 15,
1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de
la Cruz, herein private respondents, instituted the case at bar, an action for
recovery of ownership and possession with damages against petitioner before
the Regional Trial Court in Urdaneta, Pangasinan (Civil Case No. U4265). Private respondents sought to get back the riceland and the house and
lot both located at Binalonan, Pangasinan allegedly purchased by Miguel
during his cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland
covered by TCT No. 101736 is registered in their names (Miguel and
Erlinda), she had already given her half of the property to their son
Kristopher Palang. She added that the house and lot covered by TCT No.
143120 is her sole property, having bought the same with her own
money. Erlinda added that Carlina is precluded from claiming aforesaid
properties since the latter had already donated their conjugal estate to
Herminia.
After trial on the merits, the lower court rendered its decision on June
30, 1989 dismissing the complaint after declaring that there was little
evidence to prove that the subject properties pertained to the conjugal
1

property of Carlina and Miguel Palang. The lower court went on to provide
for the intestate shares of the parties, particularly of Kristopher Palang,
Miguels illegitimate son. The dispositive portion of the decision reads:

WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby

REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in question;

WHEREFORE, premises considered, judgment is hereby rendered1) Dismissing the complaint, with costs against plaintiffs;

2. Ordering defendant-appellee to vacate and deliver the properties in

question to herein plaintiffs-appellants;

2) Confirming the ownership of defendant Erlinda Agapay of the residential

lot located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No.
143120, Lot 290-B including the old house standing therein;

3. Ordering the Register of Deeds of Pangasinan to cancel Transfer

Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof
another certificate of title in the name of plaintiffs-appellants.

3) Confirming the ownership of one-half (1/2) portion of that piece of

agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan,
consisting of 10,080 square meters and as evidenced by TCT No. 101736,
Lot 1123-A to Erlinda Agapay;

No pronouncement as to costs.[7]

4) Adjudicating to Kristopher Palang as his inheritance from his deceased

father, Miguel Palang, the one-half (1/2) of the agricultural land situated at
Balisa, San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the
name of Miguel Palang, provided that the former (Kristopher) executes,
within 15 days after this decision becomes final and executory, a quit-claim
forever renouncing any claims to annul/reduce the donation to Herminia
Palang de la Cruz of all conjugal properties of her parents, Miguel Palang
and Carlina Vallesterol Palang, dated October 30, 1975, otherwise, the estate
of deceased Miguel Palang will have to be settled in another separate action;

Hence, this petition.

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

SO ORDERED.[6]

After studying the merits of the instant case, as well as the pertinent
provisions of law and jurisprudence, the Court denies the petition and affirms
the questioned decision of the Court of Appeals.

On appeal, respondent court reversed the trial courts decision. The Court
of Appeals rendered its decision on July 22, 1994 with the following
dispositive portion:

The first and principal issue is the ownership of the two pieces of
property subject of this action. Petitioner assails the validity of the deeds of
conveyance over the same parcels of land. There is no dispute that the

5) No pronouncement as to damages and attorneys fees.

transfers of ownership from the original owners of the riceland and the house
and lot, Corazon Ilomin and the spouses Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel
and Erlinda. The provision of law applicable here is Article 148 of the
Family Code providing for cases of cohabitation when a man and a woman
who are not capacitated to marry each other live exclusively with each other
as husband and wife without the benefit of marriage or under a void
marriage. While Miguel and Erlinda contracted marriage on July 15, 1973,
said union was patently void because the earlier marriage of Miguel and
Carlina was still susbsisting and unaffected by the latters de factoseparation.
Under Article 148, only the properties acquired by both of the parties
through their actual joint contribution of money, property or
industry shall be owned by them in common in proportion to their respective
contributions. It must be stressed that actual contribution is required by this
provision, in contrast to Article 147 which states that efforts in the care and
maintenance of the family and household, are regarded as contributions to
the acquisition of common property by one who has no salary or income or
work or industry. If the actual contribution of the party is not proved, there
will be no co-ownership and no presumption of equal shares. [9]
In the case at bar, Erlinda tried to establish by her testimony that she is
engaged in the business of buy and sell and had a sari-sari store[10] but failed
to persuade us that she actually contributed money to buy the subject
riceland. Worth noting is the fact that on the date of conveyance, May 17,
1973, petitioner was only around twenty years of age and Miguel Palang was
already sixty-four and a pensioner of the U.S. Government. Considering her
youthfulness, it is unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the purchase price of subject property,
[11]
there being no proof of the same.
Petitioner now claims that the riceland was bought two months before
Miguel and Erlinda actually cohabited. In the nature of an afterthought, said
added assertion was intended to exclude their case from the operation of

Article 148 of the Family Code. Proof of the precise date when they
commenced their adulterous cohabitation not having been adduced, we
cannot state definitively that the riceland was purchased even before they
started living together. In any case, even assuming that the subject property
was bought before cohabitation, the rules of co-ownership would still apply
and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the
purchase price of the riceland in Binalonan, Pangasinan, we find no basis to
justify her co-ownership with Miguel over the same. Consequently, the
riceland should, as correctly held by the Court of Appeals, revert to the
conjugal partnership property of the deceased Miguel and private respondent
Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed
to donate their conjugal property in favor of their daughter Herminia in
1975. The trial court erred in holding that the decision adopting their
compromise agreement in effect partakes the nature of judicial confirmation
of the separation of property between spouses and the termination of the
conjugal partnership.[12] Separation of property between spouses during the
marriage shall not take place except by judicial order or without judicial
conferment when there is an express stipulation in the marriage settlements.
[13]
The judgment which resulted from the parties compromise was not
specifically and expressly for separation of property and should not be so
inferred.
With respect to the house and lot, Erlinda allegedly bought the same
for P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the
property reveals the falsehood of this claim. Atty. Constantino Sagun
testified that Miguel Palang provided the money for the purchase price and
directed that Erlindas name alone be placed as the vendee. [14]
The transaction was properly a donation made by Miguel to Erlinda, but
one which was clearly void and inexistent by express provision of law
3

because it was made between persons guilty of adultery or concubinage at

the time of the donation, under Article 739 of the Civil Code. Moreover,
Article 87 of the Family Code expressly provides that the prohibition against
donations between spouses now applies to donations between persons living
together as husband and wife without a valid marriage, [15] for otherwise, the
condition of those who incurred guilt would turn out to be better than those
in legal union.[16]

SO ORDERED.

EDWIN
N.
TRIBIANA, petitioner, vs.
TRIBIANA, respondent.

LOURDES

M.

DECISION
The second issue concerning Kristopher Palangs status and claim as an
illegitimate son and heir to Miguels estate is here resolved in favor of
respondent courts correct assessment that the trial court erred in making
pronouncements regarding Kristophers heirship and filiation inasmuch as
questions as to who are the heirs of the decedent, proof of filiation of
illegitimate children and the determination of the estate of the latter and
claims thereto should be ventilated in the proper probate court or in a special
proceeding instituted for the purpose and cannot be adjudicated in the instant
ordinary civil action which is for recovery of ownership and possession. [17]
As regards the third issue, petitioner contends that Kristopher Palang
should be considered as party-defendant in the case at bar following the trial
courts decision which expressly found that Kristopher had not been
impleaded as party defendant but theorized that he had submitted to the
courts jurisdiction through his mother/guardian ad litem.[18] The trial court
erred gravely.Kristopher, not having been impleaded, was, therefore, not a
party to the case at bar. His mother, Erlinda, cannot be called his guardian ad
litem for he was not involved in the case at bar.Petitioner adds that there is no
need for Kristopher to file another action to prove that he is the illegitimate
son of Miguel, in order to avoid multiplicity of suits. [19] Petitioners grave
error has been discussed in the preceeding paragraph where the need for
probate proceedings to resolve the settlement of Miguels estate and
Kristophers successional rights has been pointed out.
WHEREFORE, the instant petition is hereby DENIED. The questioned
decision of the Court of Appeals is AFFIRMED. Costs against petitioner.

CARPIO, J.:
The Case
This petition for review on certiorari[1] seeks to reverse the Court of
Appeals Resolutions[2] dated 2 July 1998 and 18 January 1999 in CA-G.R. SP
No. 48049. The Court of Appeals affirmed the Order [3] of the Regional Trial
Court, Branch 19, Bacoor, Cavite (RTC), denying petitioner Edwin N.
Tribianas (Edwin) motion to dismiss the petition for habeas corpus filed
against him by respondent Lourdes Tribiana (Lourdes).
Antecedent Facts
Edwin and Lourdes are husband and wife who have lived together since
1996 but formalized their union only on 28 October 1997. On 30 April 1998,
Lourdes filed a petition for habeas corpus before the RTC claiming that
Edwin left their conjugal home with their daughter, Khriza Mae Tribiana
(Khriza). Edwin has since deprived Lourdes of lawful custody of Khriza who
was then only one (1) year and four (4) months of age. Later, it turned out
that Khriza was being held by Edwins mother, Rosalina Tribiana (Rosalina).
Edwin moved to dismiss Lourdes petition on the ground that the petition
failed to allege that earnest efforts at a compromise were made before its
filing as required by Article 151 of the Family Code.
On 20 May 1998, Lourdes filed her opposition to Edwins motion to
dismiss claiming that there were prior efforts at a compromise, which failed.
4

Lourdes attached to her opposition a copy of the Certification to File Action

from their Barangay dated 1 May 1998.
On 18 May 1998, the RTC denied Edwins motion to dismiss and
reiterated a previous order requiring Edwin and his mother, Rosalina to bring
Khriza before the RTC. Upon denial of his motion for reconsideration, Edwin
filed with the Court of Appeals a petition for prohibition and certiorari under
Rule 65 of the Rules of Civil Procedure. The appellate court denied Edwins
petition on 2 July 1998. The appellate court also denied Edwins motion for
reconsideration.
Hence, this petition.

The petition lacks merit.

Edwin argues that Lourdes failure to indicate in her petition for habeas
corpus that the parties exerted prior efforts to reach a compromise and that
such efforts failed is a ground for the petitions dismissal under Section 1(j),
Rule 16 of the 1997 Rules of Civil Procedure. [4] Edwin maintains that under
Article 151 of the Family Code, an earnest effort to reach a compromise is an
indispensable condition precedent. Article 151 provides:
No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. If it is shown
that no such efforts were in fact made, the case must be dismissed.

The Rulings of the RTC and the Court of Appeals

The RTC denied Edwins motion to dismiss on the ground that the
Certification to File Action attached by Lourdes to her opposition clearly
indicates that the parties attempted to reach a compromise but failed.
The Court of Appeals upheld the ruling of the RTC and added that under
Section 412 (b) (2) of the Local Government Code, conciliation proceedings
before the barangay are not required in petitions for habeas corpus.
The Issue
Edwin seeks a reversal and raises the following issue for resolution:
WHETHER THE TRIAL AND APPELLATE COURTS SHOULD
HAVE DISMISSED THE PETITION FOR HABEAS CORPUS
ON THE GROUND OF FAILURE TO COMPLY WITH THE
CONDITION PRECEDENT UNDER ARTICLE 151 OF THE
FAMILY CODE.
The Ruling of the Court

This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.
Edwins arguments do not persuade us.
It is true that the petition for habeas corpus filed by Lourdes failed to
allege that she resorted to compromise proceedings before filing the petition.
However, in her opposition to Edwins motion to dismiss, Lourdes attached a
Barangay Certification to File Action dated 1 May 1998. Edwin does not
dispute the authenticity of the Barangay Certification and its contents. This
effectively established that the parties tried to compromise but were
unsuccessful in their efforts. However, Edwin would have the petition
dismissed despite the existence of the Barangay Certification, which he does
not even dispute.
Evidently, Lourdes has complied with the condition precedent under
Article 151 of the Family Code. A dismissal under Section 1(j) of Rule 16 is
warranted only if there is a failure to complywith a condition precedent.
Given that the alleged defect is a mere failure to allege compliance with a
condition precedent, the proper solution is not an outright dismissal of the
action, but an amendment under Section 1 of Rule 10 of the 1997 Rules of
5

Civil Procedure.[5] It would have been a different matter if Edwin had

asserted that no efforts to arrive at a compromise have been made at all.
In addition, the failure of a party to comply with a condition precedent is
not a jurisdictional defect. [6] Such defect does not place the controversy
beyond the courts power to resolve. If a party fails to raise such defect in a
motion to dismiss, such defect is deemed waived. [7] Such defect is curable by
amendment as a matter of right without leave of court, if made before the
filing of a responsive pleading.[8] A motion to dismiss is not a responsive
pleading.[9] More importantly, an amendment alleging compliance with a
condition precedent is not a jurisdictional matter. Neither does it alter the
cause of action of a petition for habeas corpus. We have held that in cases
where the defect consists of the failure to state compliance with a condition
precedent, the trial court should order the amendment of the complaint.
[10]
Courts should be liberal in allowing amendments to pleadings to avoid
multiplicity of suits and to present the real controversies between the parties.
[11]

Moreover, in a habeas corpus proceeding involving the welfare and

custody of a child of tender age, the paramount concern is to resolve
immediately the issue of who has legal custody of the child. Technicalities
should not stand in the way of giving such child of tender age full protection.
[12]
This rule has sound statutory basis in Article 213 of the Family Code,
which states, No child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order otherwise. In this
case, the child (Khriza) was only one year and four months when taken away
from the mother.
The Court of Appeals dismissed Edwins contentions by citing as an
additional ground the exception in Section 412 (b) (2) of the Local
Government Code (LGC) on barangay conciliation, which states:
(b) Where the parties may go directly to court. the parties may go directly to
court in the following instances:

xxx
2) Where a person has otherwise been deprived of personal
liberty calling for habeas corpus proceedings;
xxx.
Under Rule 102 of the 1997 Rules of Civil Procedure, a party may resort to
a habeas corpus proceeding in two instances. The first is when any person is
deprived of liberty either through illegal confinement or through detention.
The second instance is when custody of any person is withheld from the
person entitled to such custody. The most common case falling under the
second instance involves children who are taken away from a parent by
another parent or by a relative. The case filed by Lourdes falls under this
category.
The barangay conciliation requirement in Section 412 of the LGC does
not apply to habeas corpus proceedings where a person is deprived of
personal liberty. In such a case, Section 412 expressly authorizes the parties
to go directly to court without need of any conciliation proceedings. There is
deprivation of personal liberty warranting a petition for habeas corpus where
the rightful custody of any person is withheld from the person entitled
thereto.[13] Thus, the Court of Appeals did not err when it dismissed Edwins
contentions on the additional ground that Section 412 exempts petitions
for habeas corpus from the barangay conciliation requirement.
The petition for certiorari filed by Edwin questioning the RTCs denial
of his motion to dismiss merely states a blanket allegation of grave abuse of
discretion. An order denying a motion to dismiss is interlocutory and is not a
proper subject of a petition for certiorari. [14] Even in the face of an error of
judgment on the part of a judge denying the motion to dismiss, certiorari will
not lie. Certiorari is not a remedy to correct errors of procedure. [15] The
proper remedy against an order denying a motion to dismiss is to file an
answer and interpose as affirmative defenses the objections raised in the
motion to dismiss. It is only in the presence of extraordinary circumstances
6

evincing a patent disregard of justice and fair play where resort to a petition
for certiorari is proper.[16]
The litigation of substantive issues must not rest on a prolonged contest
on technicalities. This is precisely what has happened in this case. The
circumstances are devoid of any hint of the slightest abuse of discretion by
the RTC or the Court of Appeals. A party must not be allowed to delay
litigation by the sheer expediency of filing a petition for certiorari under Rule
65 based on scant allegations of grave abuse. More importantly, any matter
involving the custody of a child of tender age deserves immediate resolution
to protect the childs welfare.
WHEREFORE, we DISMISS the instant petition for lack of merit. We
AFFIRM the Resolutions of the Court of Appeals dated 2 July 1998 and 18
January 1999 in CA-G.R. SP No. 48049. The Regional Trial Court, Branch
19, Bacoor, Cavite is ordered to act with dispatch in resolving the petition
for habeas corpus pending before it. This decision is IMMEDIATELY
EXECUTORY.
SO ORDERED.

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S.

MANALO, and ISABELITA MANALO, petitioners, vs. HON.
COURT OF APPEALS, HON. REGIONAL TRIAL COURT OF
MANILA (BRANCH 35), PURITA S. JAYME, MILAGROS M.
TERRE, BELEN M. ORILLANO, ROSALINA M. ACUIN,
ROMEO S. MANALO, ROBERTO S. MANALO, AMALIA
MANALO and IMELDA MANALO, respondents.
DECISION
DE LEON, JR., J.:
This is a petition for review on certiorari filed by petitioners Pilar S.
Vda. De Manalo, et. al., seeking to annul the Resolution [1] of the Court of
Appeals[2] affirming the Orders[3] of the Regional Trial Court and the
Resolution[4]which denied petitioners motion for reconsideration.

On November 26, 1992, herein respondents, who are eight (8) of the
surviving children of the late Troadio Manalo, namely: Purita, Milagros,
Belen, Rosalina, Romeo, Roberto, Amalia, and Imelda filed a petition [6]with
the respondent Regional Trial Court of Manila[7] for the judicial settlement of
the estate of their late father, Troadio Manalo, and for the appointment of
their brother, Romeo Manalo, as administrator thereof.
On December 15, 1992, the trial court issued an order setting the said
petition for hearing on February 11, 1993 and directing the publication of the
order for three (3) consecutive weeks in a newspaper of general circulation in
Metro Manila, and further directing service by registered mail of the said
order upon the heirs named in the petition at their respective addresses
mentioned therein.
On February 11, 1993, the date set for hearing of the petition, the trial
court issued an order declaring the whole world in default, except the
government, and set the reception of evidence of the petitioners therein on
March 16, 1993. However, this order of general default was set aside by the
trial court upon motion of herein petitioners (oppositors therein) namely:
Pilar S. Vda. De Manalo, Antonio, Isabelita and Orlando who were granted
ten (10) days within which to file their opposition to the petition.

The antecedent facts[5] are as follows:

Troadio Manalo, a resident of 1966 Maria Clara Street, Sampaloc,
Manila died intestate on February 14, 1992. He was survived by his wife,
Pilar S. Manalo, and his eleven (11) children, namely: Purita M. Jayme,
Antonio Manalo, Milagros M. Terre, Belen M. Orillano, Isabelita Manalo,
Rosalina M. Acuin, Romeo Manalo, Roberto Manalo, Amalia Manalo,
Orlando Manalo, and Imelda Manalo, who are all of legal age.
At the time of his death on February 14, 1992, Troadio Manalo left
several real properties located in Manila and in the province of Tarlac
including a business under the name and style Manalos Machine Shop with
offices at No. 19 Calavite Street, La Loma, Quezon City and at No. 45 Gen.
Tinio Street, Arty Subdivision, Valenzuela, Metro Manila.

Several pleadings were subsequently filed by herein petitioners, through

counsel, culminating in the filing of an Omnibus Motion [8] on July 23, 1993
seeking: (1) to set aside and reconsider the Order of the trial court dated July
9, 1993 which denied the motion for additional extension of time to file
opposition; (2) to set for preliminary hearing their affirmative defenses as
grounds for dismissal of the case; (3) to declare that the trial court did not
acquire jurisdiction over the persons of the oppositors; and (4) for the
immediate inhibition of the presiding judge.
On July 30, 1993, the trial court issued an order[9] which resolved, thus:

A. To admit the so-called Opposition filed by counsel for the

oppositors on July 20, 1993, only for the purpose of considering
the merits thereof;
B. To deny the prayer of the oppositors for a preliminary hearing of
their affirmative defenses as ground for the dismissal of this
proceeding, said affirmative defenses being irrelevant and
immaterial to the purpose and issue of the present proceeding;
C. To declare that this court has acquired jurisdiction over the
persons of the oppositors;

The only issue raised by herein petitioners in the instant petition for
review is whether or not the respondent Court of Appeals erred in upholding
the questioned orders of the respondent trial court which denied their motion
for the outright dismissal of the petition for judicial settlement of estate
despite the failure of the petitioners therein to aver that earnest efforts toward
a compromise involving members of the same family have been made prior
to the filing of the petition but that the same have failed.
Herein petitioners claim that the petition in SP. PROC No. 92-63626 is
actually an ordinary civil action involving members of the same family. They
point out that it contains certain averments which, according to them, are
indicative of its adversarial nature, to wit:

D. To deny the motion of the oppositors for the inhibition of this

Presiding Judge;

xxx

E. To set the application of Romeo Manalo for appointment as

regular administrator in the intestate estate of the deceased
Troadio Manalo for hearing on September 9, 1993 at 2:00
oclock in the afternoon.

Par. 7. One of the surviving sons, ANTONIO MANALO, since the

death of his father, TROADIO MANALO, had not made any
settlement, judicial or extra-judicial of the properties of the
deceased father, TROADIO MANALO.

Herein petitioners filed a petition for certiorari under Rule 65 of the

Rules of Court with the Court of Appeals, docketed as CA-G.R. SP. No.
39851, after their motion for reconsideration of the Order dated July 30, 1993
was denied by the trial court in its Order [10] dated September 15, 1993. In
their petition for certiorari with the appellate court, they contend that: (1) the
venue was improperly laid in SP. PROC. No. 92-63626; (2) the trial court did
not acquire jurisdiction over their persons; (3) the share of the surviving
spouse was included in the intestate proceedings; (4) there was absence of
earnest efforts toward compromise among members of the same family; and
(5) no certification of non-forum shopping was attached to the petition.

Par. 8. xxx the said surviving son continued to manage and control
the properties aforementioned, without proper accounting, to his
own benefit and advantage xxx.

Finding the contentions untenable, the Court of Appeals dismissed the

petition for certiorari in its Resolution [11] promulgated on September 30,
1996. On May 6, 1997 the motion for reconsideration of the said resolution
was likewise dismissed.[12]

xxx

xxx
Par. 12. That said ANTONIO MANALO is managing and
controlling the estate of the deceased TROADIO MANALO to
his own advantage and to the damage and prejudice of the
herein petitioners and their co-heirs xxx.

Par. 14. For the protection of their rights and interests, petitioners
were compelled to bring this suit and were forced to litigate and
9

incur expenses and will continue to incur expenses of not less

than, P250,000.00 and engaged the services of herein counsel
committing to pay P200,000.00 as and for attorneys fees plus
honorarium of P2,500.00 per appearance in court xxx.[13]
Consequently, according to herein petitioners, the same should be
dismissed under Rule 16, Section 1(j) of the Revised Rules of Court which
provides that a motion to dismiss a complaint may be filed on the ground that
a condition precedent for filing the claim has not been complied with, that is,
that the petitioners therein failed to aver in the petition in SP. PROC. No. 9263626, that earnest efforts toward a compromise have been made involving
members of the same family prior to the filing of the petition pursuant to
Article 222[14] of the Civil Code of the Philippines.
The instant petition is not impressed with merit.
It is a fundamental rule that, in the determination of the nature of an
action or proceeding, the averments [15] and the character of the relief
sought[16] in the complaint, or petition, as in the case at bar, shall be
controlling.A careful scrutiny of the Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estate in SP. PROC. No. 9263626 belies herein petitioners claim that the same is in the nature of an
ordinary civil action. The said petition contains sufficient jurisdictional facts
required in a petition for the settlement of estate of a deceased person such as
the fact of death of the late Troadio Manalo on February 14, 1992, as well as
his residence in the City of Manila at the time of his said death. The fact of
death of the decedent and of his residence within the country are foundation
facts upon which all the subsequent proceedings in the administration of the
estate rest.[17] The petition in SP. PROC. No. 92-63626 also contains an
enumeration of the names of his legal heirs including a tentative list of the
properties left by the deceased which are sought to be settled in the probate
proceedings. In addition, the reliefs prayed for in the said petition leave no
room for doubt as regard the intention of the petitioners therein (private
respondents herein) to seek judicial settlement of the estate of their deceased
father, Troadio Manalo, to wit:

PRAYER
WHEREFORE, premises considered, it is respectfully prayed for of this
Honorable Court:
(a) That after due hearing, letters of administration be issued to
petitioner ROMEO MANALO for the administration of the
estate of the deceased TORADIO MANALO upon the giving of
a bond in such reasonable sum that this Honorable Court may
fix.
(b) That after all the properties of the deceased TROADIO
MANALO have been inventoried and expenses and just debts,
if any, have been paid and the legal heirs of the deceased fully
determined, that the said estate of TROADIO MANALO be
settled and distributed among the legal heirs all in accordance
with law.
c) That the litigation expenses o these proceedings in the amount of
P250,000.00 and attorneys fees in the amount of P300,000.00
plus honorarium of P2,500.00 per appearance in court in the
hearing and trial of this case and costs of suit be taxed solely
against ANTONIO MANALO.[18]
Concededly, the petition in SP. PROC. No. 92-63626 contains certain
averments which may be typical of an ordinary civil action. Herein
petitioners, as oppositors therein, took advantage of the said defect in the
petition and filed their so-called Opposition thereto which, as observed by
the trial court, is actually an Answer containing admissions and denials,
special and affirmative defenses and compulsory counterclaims for actual,
moral and exemplary damages, plus attorney's fees and costs [19] in an
apparent effort to make out a case of an ordinary civil action an ultimately
seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis--vis,
Article 222 of the Civil Code.
10

It is our view that herein petitioners may not be allowed to defeat the
purpose of the essentially valid petition for the settlement of the estate of the
late Troadio Manalo by raising matters that are irrelevant and immaterial to
the said petition. It must be emphasized that the trial court, sitting, as a
probate court, has limited and special jurisdiction [20] and cannot hear and
dispose of collateral matters and issues which may be properly threshed out
only in an ordinary civil action. In addition, the rule has always been to the
effect that the jurisdiction of a court, as well as the concomitant nature of an
action, is determined by the averments in the complaint and not by the
defenses contained in the answer. If it were otherwise, it would not be too
difficult to have a case either thrown out of court or its proceedings unduly
delayed by simple strategem. [21] So it should be in the instant petition for
settlement of estate.
Herein petitioners argue that even if the petition in SP. PROC. No. 9263626 were to be considered as a special proceeding for the settlement of
estate of a deceased person, Rule 16, Section 1(j) of the Rules of Court vis-avis Article 222 of the Civil Code of the Philippines would nevertheless apply
as a ground for the dismissal of the same by virtue of Rule 1, Section 2 of the
Rules of Court which provides that the rules shall be liberally construed in
order to promote their object and to assist the parties in obtaining just, speedy
and inexpensive determination of every action and proceeding. Petitioners
contend that the term proceeding is so broad that it must necessarily include
special proceedings.
The argument is misplaced. Herein petitioners may not validly take
refuge under the provisions of Rule 1, Section 2, of the Rules of Court to
justify the invocation of Article 222 of the Civil Code of the Philippines for
the dismissal of the petition for settlement of the estate of the deceased
Troadio Manalo inasmuch as the latter provision is clear enough, to wit:
Art. 222. No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise have
been made, but that the same have failed, subject to the limitations in Article
2035 (underscoring supplied).[22]

The above-quoted provision of the law is applicable only to ordinary

civil actions. This is clear from the term suit that it refers to an action by one
person or persons against another or others in a court of justice in which the
plaintiff pursues the remedy which the law affords him for the redress of an
injury or the enforcement of a right, whether at law or in equity. [23] A civil
action is thus an action filed in a court of justice, whereby a party sues
another for the enforcement of a right, or the prevention or redress of a
wrong.[24] Besides, an excerpt from the Report of the Code Commission
unmistakably reveals the intention of the Code Commission to make that
legal provision applicable only to civil actions which are essentially
adversarial and involve members of the same family, thus:
It is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort should
be made toward a compromise before a litigation is allowed to breed hate and
passion in the family. It is known that lawsuit between close relatives
generates deeper bitterness than strangers. [25]
It must be emphasized that the oppositors (herein petitioners) are not
being sued in SP. PROC. No. 92-63626 for any cause of action as in fact no
defendant was impleaded therein. The Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estate in SP. PROC. No. 9263626 is a special proceeding and, as such, it is a remedy whereby the
petitioners therein seek to establish a status, a right, or a particular fact.
[26]
The petitioners therein (private respondents herein) merely seek to
establish the fact of death of their father and subsequently to be duly
recognized as among the heirs of the said deceased so that they can validly
exercise their right to participate in the settlement and liquidation of the
estate of the decedent consistent with the limited and special jurisdiction of
the probate court.
WHEREFORE, the petition in the above-entitled case, is DENIED for
lack of merit. Costs against petitioners.
SO ORDERED.
11

PEDRO GAYON, plaintiff-appellant,

vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendantsappellees.
German M. Lopez for plaintiff-appellant.
Pedro R. Davila for defendants-appellees.

CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First
Instance of Iloilo dismissing his complaint in Civil Case No. 7334 thereof.
The records show that on July 31, 1967, Pedro Gayon filed said complaint
against the spouses Silvestre Gayon and Genoveva de Gayon, alleging
12

substantially that, on October 1, 1952, said spouses executed a deed copy

of which was attached to the complaint, as Annex "A" whereby they sold
to Pedro Gelera, for the sum of P500.00, a parcel of unregistered land therein
described, and located in the barrio of Cabubugan, municipality of Guimbal,
province of Iloilo, including the improvements thereon, subject to
redemption within five (5) years or not later than October 1, 1957; that said
right of redemption had not been exercised by Silvestre Gayon, Genoveva de
Gayon, or any of their heirs or successors, despite the expiration of the period
therefor; that said Pedro Gelera and his wife Estelita Damaso had, by virtue
of a deed of sale copy of which was attached to the complaint, as Annex
"B" dated March 21, 1961, sold the aforementioned land to plaintiff Pedro
Gayon for the sum of P614.00; that plaintiff had, since 1961, introduced
thereon improvements worth P1,000; that he had, moreover, fully paid the
taxes on said property up to 1967; and that Articles 1606 and 1616 of our
Civil Code require a judicial decree for the consolidation of the title in and to
a land acquired through a conditional sale, and, accordingly, praying that an
order be issued in plaintiff's favor for the consolidation of ownership in and
to the aforementioned property.
In her answer to the complaint, Mrs. Gayon alleged that her husband,
Silvestre Gayon, died on January 6, 1954, long before the institution of this
case; that Annex "A" to the complaint is fictitious, for the signature thereon
purporting to be her signature is not hers; that neither she nor her deceased
husband had ever executed "any document of whatever nature in plaintiff's
favor"; that the complaint is malicious and had embarrassed her and her
children; that the heirs of Silvestre Gayon had to "employ the services of
counsel for a fee of P500.00 and incurred expenses of at least P200.00"; and
that being a brother of the deceased Silvestre Gayon, plaintiff "did not exert
efforts for the amicable settlement of the case" before filing his complaint.
She prayed, therefore, that the same be dismissed and that plaintiff be
sentenced to pay damages.
Soon later, she filed a motion to dismiss, reproducing substantially the
averments made in her answer and stressing that, in view of the death of
Silvestre Gayon, there is a "necessity of amending the complaint to suit the

genuine facts on record." Presently, or on September 16, 1967, the lower

court issued the order appealed from, reading:
Considering the motion to dismiss and it appearing from
Exhibit "A" annexed to the complaint that Silvestre Gayon is
the absolute owner of the land in question, and considering
the fact that Silvestre Gayon is now dead and his wife
Genoveva de Gayon has nothing to do with the land subject
of plaintiff's complaint, as prayed for, this case is hereby
dismissed, without pronouncement as to costs.1
A reconsideration of this order having been denied, plaintiff interposed the
present appeal, which is well taken.
Said order is manifestly erroneous and must be set aside. To begin with, it is
not true that Mrs. Gayon "has nothing to do with the land subject of
plaintiff's complaint." As the widow of Silvestre Gayon, she is one of his
compulsory heirs 2and has, accordingly, an interest in the property in
question. Moreover, her own motion to dismiss indicated merely "a necessity
of amending the complaint," to the end that the other successors in interest of
Silvestre Gayon, instead of the latter, be made parties in this case. In her
opposition to the aforesaid motion for reconsideration of the plaintiff, Mrs.
Gayon alleged, inter alia, that the "heirs cannot represent the dead defendant,
unless there is a declaration of heirship." Inasmuch, however, as succession
takes place, by operation of law, "from the moment of the death of the
decedent" 3and "(t)he inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death," 4it follows
that if his heirs were included as defendants in this case, they would be sued,
not as "representatives" of the decedent, but as owners of an aliquot interest
in the property in question, even if the precise extent of their interest may
still be undetermined and they have derived it from the decent. Hence, they
may be sued without a previous declaration of heirship, provided there is no
pending special proceeding for the settlement of the estate of the decedent. 5

13

As regards plaintiff's failure to seek a compromise, as an alleged obstacle to

the present case, Art. 222 of our Civil Code provides:

executor, of the heirs of the deceased Silvestre Gayon, and for further
proceedings, not inconsistent with this decision, with the costs of this
instance against defendant-appellee, Genoveva de Gayon. It is so ordered.

No suit shall be filed or maintained between members of the

same family unless it should appear that earnest efforts
toward a compromise have been made, but that the same
have failed, subject to the limitations in article 2035.
It is noteworthy that the impediment arising from this provision applies to
suits "filed or maintained between members of the same family." This phrase,
"members of the same family," should, however, be construed in the light of
Art. 217 of the same Code, pursuant to which:
Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.
Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews
and/or nieces. Inasmuch as none of them is included in the enumeration
contained in said Art. 217 which should be construed strictly, it being an
exception to the general rule and Silvestre Gayon must necessarily be
excluded as party in the case at bar, it follows that the same does not come
within the purview of Art. 222, and plaintiff's failure to seek a compromise
before filing the complaint does not bar the same.
WHEREFORE, the order appealed from is hereby set aside and the case
remanded to the lower court for the inclusion, as defendant or defendants
therein, of the administrator or executor of the estate of Silvestre Gayon, if
any, in lieu of the decedent, or, in the absence of such administrator or
14

Village, Commonwealth Avenue, Quezon City, is covered by Transfer

Certificate of Title No. 174180.
On March 17, 1986, Private Respondent E & L Mercantile, Inc. filed a
complaint against petitioner and F.F. Manacop Construction Co., Inc. before
the Regional Trial Court of Pasig, Metro Manila to collect an indebtedness
of P3,359,218.45. Instead of filing an answer, petitioner and his company
entered into a compromise agreement with private respondent, the salient
portion of which provides:
FLORANTE F. MANACOP, petitioner, vs. COURT OF APPEALS and E
& L MERCANTILE, INC., respondents.

c. That defendants will undertake to pay the amount of P2,000,000.00 as and

when their means permit, but expeditiously as possible as their collectibles
will be collected. (sic)

DECISION
PANGANIBAN, J.:
May a writ of execution of a final and executory judgment
issued before the effectivity of the Family Code be executed on a house and
lot constituted as a family home under the provision of said Code?
Statement of the Case
This is the principal question posed by petitioner in assailing the
Decision of Respondent Court of Appeals[1] in CA-G.R. SP No. 18906
promulgated on February 21, 1990 and its Resolution promulgated on March
21, 1991, affirming the orders issued by the trial court commanding the
issuance of various writs of execution to enforce the latters decision in Civil
Case No. 53271.

On April 20, 1986, the trial court rendered judgment approving the
aforementioned compromise agreement. It enjoined the parties to comply
with the agreement in good faith. On July 15, 1986, private respondent filed
a motion for execution which the lower court granted on September 23,
1986. However, execution of the judgment was delayed. Eventually, the
sheriff levied on several vehicles and other personal properties of
petitioner. In partial satisfaction of the judgment debt, these chattels were
sold at public auction for which certificates of sale were correspondingly
issued by the sheriff.

The Facts

On August 1, 1989, petitioner and his company filed a motion to quash

the alias writs of execution and to stop the sheriff from continuing to enforce
them on the ground that the judgment was not yet executory. They alleged
that the compromise agreement had not yet matured as there was no showing
that they had the means to pay the indebtedness or that their receivables had
in fact been collected. They buttressed their motion with supplements and
other pleadings.

Petitioner Florante F. Manacop[2] and his wife Eulaceli purchased on

March 10, 1972 a 446-square-meter residential lot with a bungalow, in
consideration of P75,000.00.[3] The property, located in Commonwealth

On August 11, 1989, private respondent opposed the motion on the

following grounds: (a) it was too late to question the September 23, 1986
Order considering that more than two years had elapsed; (b) the second alias
15

writ of execution had been partially implemented; and (c) petitioner and his
company were in bad faith in refusing to pay their indebtedness
notwithstanding that from February 1984 to January 5, 1989, they had
collected the total amount of P41,664,895.56. On September 21, 1989,
private respondent filed an opposition to petitioner and his companys
addendum to the motion to quash the writ of execution. It alleged that the
property covered by TCT No. 174180 could not be considered a family home
on the grounds that petitioner was already living abroad and that the property,
having been acquired in 1972, should have been judicially constituted as a
family home to exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the
writ of execution and the prayers in the subsequent pleadings filed by
petitioner and his company. Finding that petitioner and his company had not
paid their indebtedness even though they collected receivables amounting
to P57,224,319.75, the lower court held that the case had become final and
executory. It also ruled that petitioners residence was not exempt from
execution as it was not duly constituted as a family home, pursuant to the
Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a
petition for certiorari assailing the lower courts Orders of September 23,
1986 and September 26, 1989. On February 21, 1990, Respondent Court of
Appeals rendered its now questioned Decision dismissing the petition
for certiorari. The appellate court quoted with approval the findings of the
lower court that: (a) the judgment based on the compromise agreement had
become final and executory, stressing that petitioner and his company had
collected the total amount of P57,224,319.75 but still failed to pay their
indebtedness and (b) there was no showing that petitioners residence had
been duly constituted as a family home to exempt it from execution. On the
second finding, the Court of Appeals added that:
x x x. We agree with the respondent judge that there is no showing in
evidence that petitioner Maacops residence under TCT 174180 has been duly
constituted as a family home in accordance with law. For one thing, it is the

clear implication of Article 153 that the family home continues to be so

deemed constituted so long as any of its beneficiaries enumerated in Article
154 actually resides therein. Conversely, it ceases to continue as such family
home if none of its beneficiaries actually occupies it. There is no showing in
evidence that any of its beneficiaries is actually residing therein. On the other
hand, the unrefuted assertion of private respondent is that petitioner Florante
Maacop had already left the country and is now, together with all the
members of his family, living in West Covina, Los Angeles, California,
U.S.A.
Petitioner and his company filed a motion for reconsideration of this
Decision on the ground that the property covered by TCT No. 174180 was
exempt from execution. On March 21, 1991, the Court of Appeals rendered
the challenged Resolution denying the motion. It anchored its ruling on
Modequillo v. Breva,[4] which held that all existing family residences at the
time of the effectivity of the Family Code are considered family homes and
are prospectively entitled to the benefits accorded to a family home under the
Family Code.
Applying the foregoing pronouncements to this case, the Court of
Appeals explained:
The record of the present case shows that petitioners incurred the debt
of P3,468,000.00 from private respondent corporation on February 18, 1982
(Annex `A, Petition). The judgment based upon the compromise agreement
was rendered by the court on April 18, 1986 (Annex `C, Ibid). Paraphrasing
the aforecited Modequillo case, both the debt and the judgment preceded the
effectivity of the Family Code on August 3, 1988. Verily, the case at bar does
not fall under the exemptions from execution provided under Article 155 of
the Family Code.
Undeterred, petitioner filed the instant petition for review
on certiorari arguing that the Court of Appeals misapplied Modequillo. He
contends that there was no need for him to constitute his house and lot as a
16

family home for it to be treated as such since he was and still is a resident of
the same property from the time it was levied upon and up to this moment.
The Issue
As stated in the opening sentence of this Decision, the issue in this case
boils down to whether a final and executory decision promulgated and a writ
of execution issued before the effectivity of the Family Code can be executed
on a family home constituted under the provisions of the said Code.
The Courts Ruling
We answer the question in the affirmative. The Court of Appeals
committed no reversible error. On the contrary, its Decision and Resolution
are supported by law and applicable jurisprudence.

If the family actually resides in the premises, it is, therefore, a family home
as contemplated by law. Thus, the creditors should take the necessary
precautions to protect their interest before extending credit to the spouses or
head of the family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced sale or
attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after such
constitution; and

No Novel Issue
At the outset, the Court notes that the issue submitted for resolution in
the instant case is not entirely new. In Manacop v. Court of Appeals,
[5]
petitioner himself as a party therein raised a similar question of whether
this very same property was exempt from preliminary attachment for the
same excuse that it was his family home. In said case, F.F. Cruz & Co., Inc.
filed a complaint for a sum of money. As an incident in the proceedings
before it, the trial court issued a writ of attachment on the said house and
lot. In upholding the trial court (and the Court of Appeals) in that case, we
ruled that petitioner incurred the indebtedness in 1987 or prior to the
effectivity of the Family Code on August 3, 1988. Hence, petitioners family
home was not exempt from attachment by sheer force of exclusion embodied
in paragraph 2, Article 155 of the Family Code cited in Modequillo, where
the Court categorically ruled:
Under the Family Code, a family home is deemed constituted on a house and
lot from the time it is occupied as a family residence. There is no need to
constitute the same judicially or extrajudicially as required in the Civil Code.

(4) For debts due to laborers, mechanics, architects, builders,

materialmen and others who have rendered service or furnished
material for the construction of the building.
The exemption provided as aforestated is effective from the time of the
constitution of the family home as such, and lasts so long as any of its
beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was not
constituted as a family home whether judicially or extrajudicially under the
Civil Code. It became a family home by operation of law only under Article
153 of the Family Code. It is deemed constituted as a family home upon the
effectivity of the Family Code on August 3, 1988 not August 4, one year after
its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap
year).
The contention of petitioner that it should be considered a family home from
the time it was occupied by petitioner and his family in 1960 is not well17

taken. Under Article 162 of the Family Code, it is provided that `the
provisions of this Chapter shall also govern existing family residences
insofar as said provisions are applicable. It does not mean that Articles 152
and 153 of said Code have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at the time
of their occupation prior to the effectivity of the Family Code and are exempt
from execution for the payment of obligations incurred before the effectivity
of the Family Code. Article 162 simply means that all existing family
residences at the time of the effectivity of the Family Code, are considered
family homes and are prospectively entitled to the benefits accorded to a
family home under the Family Code. Article 162 does not state that the
provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the money
judgment aforecited? No. The debt or liability which was the basis of the
judgment arose or was incurred at the time of the vehicular accident on
March 16, 1976 and the money judgment arising therefrom was rendered by
the appellate court on January 29, 1988. Both preceded the effectivity of the
Family Code on August 3, 1988. This case does not fall under the exemptions
from execution provided in the Family Code.[6]6 (Underscoring supplied.)
Article 153 of the Family Code Has No Retroactive Effect
Petitioner contends that the trial court erred in holding that his residence
was not exempt from execution in view of his failure to show that the
property involved has been duly constituted as a family home in accordance
with law. He asserts that the Family Code and Modequillo require simply the
occupancy of the property by the petitioner, without need for its judicial or
extrajudicial constitution as a family home.[7]
Petitioner is only partly correct. True, under the Family Code which
took effect on August 3, 1988,[8] the subject property became his family home
under the simplified process embodied in Article 153 of said
Code. However, Modequillo explicitly ruled that said provision of the Family
Code does not have retroactive effect. In other words, prior to August 3,

1988, the procedure mandated by the Civil Code[9] had to be followed for a
family home to be constituted as such. There being absolutely no proof that
the subject property was judicially or extrajudicially constituted as a family
home, it follows that the laws protective mantle cannot be availed of by
petitioner. Since the debt involved herein was incurred and the assailed
orders of the trial court issued prior to August 3, 1988, the petitioner cannot
be shielded by the benevolent provisions of the Family Code.
List of Beneficiary-Occupants Restricted to Those Enumerated in the Code
In view of the foregoing discussion, there is no reason to address the
other arguments of petitioner other than to correct his misconception of the
law. Petitioner contends that he should be deemed residing in the family
home because his stay in the United States is merely temporary. He asserts
that the person staying in the house is his overseer and that whenever his
wife visited this country, she stayed in the family home. This contention
lacks merit.
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. [10] Actual
occupancy, however, need not be by the owner of the house
specifically.Rather, the property may be occupied by the beneficiaries
enumerated by Article 154 of the Family Code.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head of
the 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 lead
support.
18

This enumeration may include the in-laws where the family home is
constituted jointly by the husband and wife. [11] But the law definitely
excludes maids and overseers. They are not the beneficiaries contemplated
by the Code. Consequently, occupancy of a family home by an overseer like
Carmencita V. Abat in this case [12] is insufficient compliance with the law.
WHEREFORE, the petition is hereby DENIED for utter lack of
merit. This Decision is immediately executory. Double costs against
petitioner.
SO ORDERED.

Panganiban, C.J.
(Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
MARCELINO G. DARIO III and
THE HONORABLE COURT OF Promulgated:
APPEALS, Second Division,
Respondents. November 20, 2006
x ---------------------------------------------------------------------------------------- x
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, 2005[1] 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
PERLA G. PATRICIO, G.R. No. 170829
Petitioner,
Present:

hundred fifty five (755) square meters, more or less. [2]

19

On August 10, 1987, petitioner, Marcelino Marc and private respondent,

could not partition the property unless the court found compelling reasons to

extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT

rule otherwise. The appellate court also held that the minor son of private

No. RT-30731 (175992) was cancelled and TCT No. R-213963 was issued in

respondent, who is a grandson of spouses Marcelino V. Dario and Perla G.

the names of petitioner, private respondent and Marcelino Marc.

Patricio, was a minor beneficiary of the family home. [6]

Thereafter, petitioner and Marcelino Marc formally advised private

Hence, the instant petition on the following issues:

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]

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]

Private respondent filed a motion for reconsideration which was

The sole issue is whether partition of the family home is proper

denied by the trial court on August 11, 2003,[5] hence he appealed before the

where one of the co-owners refuse to accede to such partition on the ground

Court of Appeals, which denied the same on October 19, 2005. However,

that a minor beneficiary still resides in the said home.

upon a motion for reconsideration filed by private respondent on December

9, 2005, the appellate court partially reconsidered the October 19, 2005

Private respondent claims that the subject property which is the

Decision. In the now assailed Resolution, the Court of Appeals dismissed the

family home duly constituted by spouses Marcelino and Perla Dario cannot

complaint for partition filed by petitioner and Marcelino Marc for lack of

be partitioned while a minor beneficiary is still living therein namely, his 12-

merit. It held that the family home should continue despite the death of one

year-old son, who is the grandson of the decedent. He argues that as long as

or both spouses as long as there is a minor beneficiary thereof. The heirs

the minor is living in the family home, the same continues as such until the
20

beneficiary becomes of age. Private respondent insists that even after the

occupancy, however, need not be by the owner of the house specifically.

expiration of ten years from the date of death of Marcelino on July 5, 1987,

Rather, the property may be occupied by the beneficiaries enumerated in

i.e., even after July 1997, the subject property continues to be considered as

Article 154 of the Family Code, which may include the in-laws where the

the family home considering that his minor son, Marcelino Lorenzo R. Dario

family home is constituted jointly by the husband and wife. But the law

IV, who is a beneficiary of the said family home, still resides in the premises.

definitely excludes maids and overseers. They are not the beneficiaries
contemplated by the Code.[13]

On the other hand, petitioner alleges that the subject property

remained as a family home of the surviving heirs of the late Marcelino V.
th

Article 154 of the Family Code enumerates who are the beneficiaries of a

Dario only up to July 5, 1997, which was the 10 year from the date of death

family home: (1) The husband and wife, or an unmarried person who is the

of the decedent. Petitioner argues that the brothers Marcelino Marc and

head of a family; and (2) Their parents, ascendants, descendants, brothers and

private respondent Marcelino III were already of age at the time of the death

sisters, whether the relationship be legitimate or illegitimate, who are living

of their father,[8] hence there is no more minor beneficiary to speak of.

in the family home and who depend upon the head of the family for legal
support.

The family home is a sacred symbol of family love and is the

repository of cherished memories that last during ones lifetime. [9] It is the

To be a beneficiary of the family home, three requisites must concur: (1) they

dwelling house where husband and wife, or by an unmarried head of a

must be among the relationships enumerated in Art. 154 of the Family Code;

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]

(2) they live in the family home; and (3) they are dependent for legal support
upon the head of the family.

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

Moreover, Article 159 of the Family Code provides that the family home

beneficiaries actually resides therein, the family home continues to be such

shall continue despite the death of one or both spouses or of the unmarried

and is exempt from execution, forced sale or attachment except as hereinafter

head of the family for a period of 10 years or for as long as there is a minor

[12]

provided and to the extent of the value allowed by law.

beneficiary, and the heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply regardless of whoever

The law explicitly provides that occupancy of the family home either by the

owns the property or constituted the family home.

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

Article 159 of the Family Code applies in situations where death occurs to

possible, or to something which is presumptive or constructive. Actual

persons who constituted the family home. Dr. Arturo M. Tolentino comments
21

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 aminor 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
22

the relationship be legitimate or illegitimate. The term descendants

Dario IV cannot be considered as beneficiary contemplated under Article 154

contemplates all descendants of the person or persons who constituted the

because he did not fulfill the third requisite of being dependent on his

family home without distinction; hence, it must necessarily include the

grandmother for legal support. It is his father whom he is dependent on legal

grandchildren and great grandchildren of the spouses who constitute a family

support, and who must now establish his own family home separate and

home. Ubi lex non distinguit nec nos distinguire debemos. Where the law

distinct from that of his parents, being of legal age.

does not distinguish, we should not distinguish. Thus, private respondents

minor son, who is also the grandchild of deceased Marcelino V. Dario
satisfies the first requisite.

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

As to the second requisite, minor beneficiaries must be actually living in the

keeping with the financial capacity of the family.[16] Legal support has the

family home to avail of the benefits derived from Art. 159. Marcelino

following characteristics: (1) It is personal, based on family ties which bind

Lorenzo R. Dario IV, also known as Ino, the son of private respondent and

the obligor and the obligee; (2) It is intransmissible; (3) It cannot be

grandson of the decedent Marcelino V. Dario, has been living in the family

renounced; (4) It cannot be compromised; (5) It is free from attachment or

home since 1994, or within 10 years from the death of the decedent, hence,

execution; (6) It is reciprocal; (7) It is variable in amount. [17]

he satisfies the second requisite.

Professor Pineda is of the view that grandchildren cannot demand support
However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot

directly from their grandparents if they have parents (ascendants of nearest

demand support from his paternal grandmother if he has parents who are

degree) who are capable of supporting them. This is so because we have to

capable of supporting him. The liability for legal support falls primarily on

follow the order of support under Art. 199.[18] We agree with this view.

Marcelino Lorenzo R. Dario IVs parents, especially his father, herein private
respondent who is the head of his immediate family. The law first imposes

The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer

the obligation of legal support upon the shoulders of the parents, especially

the relationship of the relatives, the stronger the tie that binds them. Thus, the

the father, and only in their default is the obligation imposed on the

obligation to support under Art. 199 which outlines the order of liability for

grandparents.

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.

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

There is no showing that private respondent is without means to

and his being a descendant of Marcelino V. Dario, Marcelino Lorenzo R.

support his son; neither is there any evidence to prove that petitioner, as the
23

paternal grandmother, was willing to voluntarily provide for her grandsons

money as the commissioners deem equitable, unless one of the parties

legal support. On the contrary, herein petitioner filed for the partition of the

interested ask that the property be sold instead of being so assigned, in which

property which shows an intention to dissolve the family home, since there is

case the court shall order the commissioners to sell the real estate at public

no more reason for its existence after the 10-year period ended in 1997.

sale, and the commissioners shall sell the same accordingly.[21]

With this finding, there is no legal impediment to partition the

subject property.

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

The law does not encourage co-ownerships among individuals as oftentimes

succession, if the widow and legitimate children survive, the widow has the

it results in inequitable situations such as in the instant case. Co-owners

same share as that of each of the children. However, since only one-half of

should be afforded every available opportunity to divide their co-owned

the conjugal property which is owned by the decedent is to be allocated to

property to prevent these situations from arising.

the legal and compulsory heirs (the other half to be given exclusively to the

As we ruled in Santos v. Santos,[19] no co-owner ought to be compelled to

surviving spouse as her conjugal share of the property), the widow will have

stay in a co-ownership indefinitely, and may insist on partition on the

the same share as each of her two surviving children. Hence, the respective

common property at any time.An action to demand partition is

shares of the subject property, based on the law on intestate succession are:

imprescriptible or cannot be barred by laches. Each co-owner may demand at

(1) Perla Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and (3)

any time the partition of the common property.[20]

Marcelino G. Dario III, 1/6.

In Vda. de Daffon v. Court of Appeals,[23] we held that an action for partition

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

is at once an action for declaration of co-ownership and for segregation and

quo should have ordered a partition by commissioners pursuant to Section 3,

conveyance of a determinate portion of the properties involved. If the court

Rule 69 of the Rules of Court.Not more than three competent and

after trial should find the existence of co-ownership among the parties, the

disinterested persons should be appointed as commissioners to make the

court may and should order the partition of the properties in the same action.

partition, commanding them to set off to the plaintiff and to each party in

[24]

interest such part and proportion of the property as the court shall direct.
WHEREFORE, the petition is GRANTED. The Resolution of the Court of
When it is made to appear to the commissioners that the real estate, or a

Appeals in CA-G.R. CV No. 80680 dated December 9, 2005,

portion thereof, cannot be divided without great prejudice to the interest of

is REVERSED and SET ASIDE.The case is REMANDED to the Regional

the parties, the court may order it assigned to one of the parties willing to

Trial Court of Quezon City, Branch 78, who is directed to conduct

take the same, provided he pays to the other parties such sum or sums of

a PARTITION BY COMMISSIONERS and effect the actual physical

24

partition of the subject property, as well as the improvements that lie therein,

to one of the parties willing to take the same, provided he pays to the other

in the following manner: Perla G. Dario, 4/6; Marcelino Marc G. Dario, 1/6

parties such sum or sums of money as the commissioners deem equitable,

and Marcelino G. Dario III, 1/6. The trial court is DIRECTED to appoint not

unless one of the parties interested ask that the property be sold instead of

more than three (3) competent and disinterested persons, who should

being so assigned, in which case the court shall order the commissioners to

determine the technical metes and bounds of the property and the proper

sell the real estate at public sale, and the commissioners shall sell the same

share appertaining to each heir, including the improvements, in accordance

accordingly, and thereafter distribute the proceeds of the sale appertaining to

with Rule 69 of the Rules of Court. When it is made to the commissioners

the just share of each heir. No pronouncement as to costs.

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

SO ORDERED.

25