.R. No.

193707

December 10, 2014

NORMA A. DEL SOCORRO, for and in behalf of her minor

child RODERIGO NORJO VAN WILSEM,Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.

Not long thereafter, respondent cameto the Philippines and

remarried in Pinamungahan, Cebu, and since then, have been
residing thereat.9 Respondent and his new wife established a
business known as Paree Catering, located at Barangay Tajao,
Municipality of Pinamungahan, Cebu City.10 To date, all the parties,
including their son, Roderigo, are presently living in Cebu City.11

PERALTA, J.:

On August 28, 2009, petitioner, through her counsel, sent a letter

demanding for support from respondent. However, respondent
refused to receive the letter.12

Before the Court is a petition for review on certiorari under Rule 45

of the Rules of Court seeking to reverse and set aside the
Orders1 dated February 19, 2010 and September 1, 2010,
respectively, of the Regional Trial Court of Cebu City (RTC-Cebu),
which dismissed the criminal case entitled People of the Philippines
v. Ernst Johan Brinkman Van Wilsem, docketed as Criminal Case
No. CBU-85503, for violation of Republic Act (R.A.) No. 9262,
otherwise known as the Anti-Violence Against Women and Their
Children Act of 2004.

Because of the foregoing circumstances, petitioner filed a

complaint affidavit with the Provincial Prosecutor of Cebu City
against respondent for violation of Section 5, paragraph E(2) of
R.A. No. 9262 for the latters unjust refusal to support his minor
child with petitioner.13 Respondent submitted his counter-affidavit
thereto, to which petitioner also submitted her replyaffidavit.14 Thereafter, the Provincial Prosecutor of Cebu City issued
a Resolution recommending the filing of an information for the
crime charged against herein respondent.

The following facts are culled from the records:

The information, which was filed with the RTC-Cebu and raffled to
Branch 20 thereof, states that:

DECISION

Petitioner Norma A. Del Socorro and respondent Ernst Johan

Brinkman Van Wilsem contracted marriage in Holland on
September 25, 1990.2 On January 19, 1994, they were blessed
with a son named Roderigo Norjo Van Wilsem, who at the time of
the filing of the instant petition was sixteen (16) years of age.3
Unfortunately, their marriage bond ended on July 19, 1995 by
virtue of a Divorce Decree issued by the appropriate Court of
Holland.4 At that time, their son was only eighteen (18) months
old.5 Thereafter, petitioner and her son came home to the
Philippines.6
According to petitioner, respondentmade a promise to provide
monthly support to their son in the amount of Two Hundred Fifty
(250) Guildene (which is equivalent to Php17,500.00 more or
less).7 However, since the arrival of petitioner and her son in the
Philippines, respondent never gave support to the son, Roderigo.8

That sometime in the year 1995 and up to the present, more or

less, in the Municipality of Minglanilla, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there wilfully, unlawfully and
deliberately deprive, refuse and still continue to deprive his son
RODERIGO NORJO VAN WILSEM, a fourteen (14) year old minor, of
financial support legally due him, resulting in economic abuse to
the victim. CONTRARY TO LAW.15
Upon motion and after notice and hearing, the RTC-Cebu issued a
Hold Departure Order against respondent.16Consequently,
respondent was arrested and, subsequently, posted
bail.17 Petitioner also filed a Motion/Application of Permanent
Protection Order to which respondent filed his Opposition.18 Pending
the resolution thereof, respondent was arraigned.19 Subsequently,
without the RTC-Cebu having resolved the application of the

protection order, respondent filed a Motion to Dismiss on the

ground of: (1) lack of jurisdiction over the offense charged; and (2)
prescription of the crime charged.20
On February 19, 2010, the RTC-Cebu issued the herein assailed
Order,21 dismissing the instant criminal case against respondent on
the ground that the facts charged in the information do not
constitute an offense with respect to the respondent who is
analien, the dispositive part of which states:
WHEREFORE, the Court finds that the facts charged in the
information do not constitute an offense with respect to the
accused, he being an alien, and accordingly, orders this case
DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem
for his provisional liberty ishereby cancelled (sic) and ordered
released.
SO ORDERED.
Cebu City, Philippines, February 19, 2010.22
Thereafter, petitioner filed her Motion for Reconsideration thereto
reiterating respondents obligation to support their child under
Article 19523 of the Family Code, thus, failure todo so makes him
liable under R.A. No. 9262 which "equally applies to all persons in
the Philippines who are obliged to support their minor children
regardless of the obligors nationality."24
On September 1, 2010, the lower court issued an Order25 denying
petitioners Motion for Reconsideration and reiterating its previous
ruling. Thus:
x x x The arguments therein presented are basically a rehash of
those advanced earlier in the memorandum of the prosecution.
Thus, the court hereby reiterates its ruling that since the accused is
a foreign national he is not subject to our national law (The Family
Code) in regard to a parents duty and obligation to givesupport to
his child. Consequently, he cannot be charged of violating R.A.

9262 for his alleged failure to support his child. Unless it is

conclusively established that R.A. 9262 applies to a foreigner who
fails to give support tohis child, notwithstanding that he is not
bound by our domestic law which mandates a parent to give such
support, it is the considered opinion of the court that no prima
faciecase exists against the accused herein, hence, the case should
be dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for
lack of merit.
SO ORDERED.
Cebu City, Philippines, September 1, 2010.26
Hence, the present Petition for Review on Certiorari raising the
following issues:
1. Whether or not a foreign national has an obligation to
support his minor child under Philippine law; and
2. Whether or not a foreign national can be held criminally
liable under R.A. No. 9262 for his unjustified failure to
support his minor child.27
At the outset, let it be emphasized that We are taking cognizance
of the instant petition despite the fact that the same was directly
lodged with the Supreme Court, consistent with the ruling in
Republic v. Sunvar Realty Development Corporation,28 which lays
down the instances when a ruling of the trial court may be brought
on appeal directly to the Supreme Court without violating the
doctrine of hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties
from filing a Rule 45 Petition with this Court, in case only questions
of law are raised or involved. This latter situation was one that
petitioners found themselves in when they filed the instant Petition
to raise only questions of law. In Republic v. Malabanan, the Court
clarified the three modes of appeal from decisions of the RTC, to
wit: (1) by ordinary appeal or appeal by writ of error under Rule

41, whereby judgment was rendered in a civil or criminal action by

the RTC in the exercise of its original jurisdiction; (2) by a petition
for review under Rule 42, whereby judgment was rendered by the
RTC in the exercise of its appellate jurisdiction; and (3) by a
petition for review on certiorari before the Supreme Court under
Rule 45. "The first mode of appeal is taken to the [Court of
Appeals] on questions of fact or mixed questions of fact and law.
The second mode of appeal is brought to the CA on questions of
fact, of law, or mixed questions of fact and law. The third mode of
appealis elevated to the Supreme Court only on questions of law."
(Emphasis supplied)
There is a question of law when the issue does not call for an
examination of the probative value of the evidence presented or of
the truth or falsehood of the facts being admitted, and the doubt
concerns the correct application of law and jurisprudence on the
matter. The resolution of the issue must rest solely on what the law
provides on the given set of circumstances.29
Indeed, the issues submitted to us for resolution involve questions
of law the response thereto concerns the correct application of
law and jurisprudence on a given set of facts, i.e.,whether or not a
foreign national has an obligation to support his minor child under
Philippine law; and whether or not he can be held criminally liable
under R.A. No. 9262 for his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights
a novel question of law concerning the liability of a foreign national
who allegedly commits acts and omissions punishable under special
criminal laws, specifically in relation to family rights and duties.
The inimitability of the factual milieu of the present case, therefore,
deserves a definitive ruling by this Court, which will eventually
serve as a guidepost for future cases. Furthermore, dismissing the
instant petition and remanding the same to the CA would only
waste the time, effort and resources of the courts. Thus, in the
present case, considerations of efficiency and economy in the
administration of justice should prevail over the observance of the
hierarchy of courts.

Now, on the matter of the substantive issues, We find the petition

meritorious. Nonetheless, we do not fully agree with petitioners
contentions.
To determine whether or not a person is criminally liable under R.A.
No. 9262, it is imperative that the legal obligation to support
exists.
Petitioner invokes Article 19530 of the Family Code, which provides
the parents obligation to support his child. Petitioner contends that
notwithstanding the existence of a divorce decree issued in relation
to Article 26 of the Family Code,31 respondent is not excused from
complying with his obligation to support his minor child with
petitioner.
On the other hand, respondent contends that there is no sufficient
and clear basis presented by petitioner that she, as well as her
minor son, are entitled to financial support.32 Respondent also
added that by reason of the Divorce Decree, he is not obligated
topetitioner for any financial support.33
^^^^On this point, we agree with respondent that petitioner
cannot rely on Article 19534 of the New Civil Code in demanding
support from respondent, who is a foreign citizen, since Article
1535 of the New Civil Code stresses the principle of nationality. In
other words, insofar as Philippine laws are concerned, specifically
the provisions of the Family Code on support, the same only
applies to Filipino citizens. By analogy, the same principle applies to
foreigners such that they are governe^^^d by their national law
with respect to family rights and duties.36
The obligation to give support to a child is a matter that falls under
family rights and duties. Since the respondent is a citizen of
Holland or the Netherlands, we agree with the RTC-Cebu that he is
subject to the laws of his country, not to Philippinelaw, as to
whether he is obliged to give support to his child, as well as the
consequences of his failure to do so.37
In the case of Vivo v. Cloribel,38 the Court held that

Furthermore, being still aliens, they are not in position to invoke

the provisions of the Civil Code of the Philippines, for that Code
cleaves to the principle that family rights and duties are governed
by their personal law, i.e.,the laws of the nation to which they
belong even when staying in a foreign country (cf. Civil Code,
Article 15).39
It cannot be gainsaid, therefore, that the respondent is not obliged
to support petitioners son under Article195 of the Family Code as a
consequence of the Divorce Covenant obtained in Holland. This
does not, however, mean that respondent is not obliged to support
petitioners son altogether.
In international law, the party who wants to have a foreign law
applied to a dispute or case has the burden of proving the foreign
law.40 In the present case, respondent hastily concludes that being
a national of the Netherlands, he is governed by such laws on the
matter of provision of and capacity to support.41 While respondent
pleaded the laws of the Netherlands in advancing his position that
he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the
national law of the Netherlands does not impose upon the parents
the obligation to support their child (either before, during or after
the issuance of a divorce decree), because Llorente v. Court of
Appeals,42 has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and
our courts are not authorized to takejudicial notice of them. Like
any other fact, they must be alleged and proved.43
In view of respondents failure to prove the national law of the
Netherlands in his favor, the doctrine of processual
presumption shall govern. Under this doctrine, if the foreign law
involved is not properly pleaded and proved, our courts will
presume that the foreign law is the same as our local or domestic
or internal law.44 Thus, since the law of the Netherlands as regards
the obligation to support has not been properly pleaded and proved
in the instant case, it is presumed to be the same with Philippine

law, which enforces the obligation of parents to support their

children and penalizing the non-compliance therewith.
Moreover, while in Pilapil v. Ibay-Somera,45 the Court held that a
divorce obtained in a foreign land as well as its legal effects may be
recognized in the Philippines in view of the nationality principle on
the matter of status of persons, the Divorce Covenant presented by
respondent does not completely show that he is notliable to give
support to his son after the divorce decree was issued. Emphasis is
placed on petitioners allegation that under the second page of the
aforesaid covenant, respondents obligation to support his child is
specifically stated,46which was not disputed by respondent.
We likewise agree with petitioner that notwithstanding that the
national law of respondent states that parents have no obligation
to support their children or that such obligation is not punishable
by law, said law would still not find applicability,in light of the ruling
in Bank of America, NT and SA v. American Realty Corporation,47 to
wit:
In the instant case, assuming arguendo that the English Law on the
matter were properly pleaded and proved in accordance with
Section 24, Rule 132 of the Rules of Court and the jurisprudence
laid down in Yao Kee, et al. vs. Sy-Gonzales, said foreign law would
still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a
sound and established public policy of the forum, the said foreign
law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or
property, and those which have for their object public order, public
policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the
principle imbedded in our jurisdiction proscribing the splitting up of
a single cause of action.

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

If two or more suits are instituted on the basis of the same cause
of action, the filing of one or a judgment upon the merits in any
one is available as a ground for the dismissal of the others.
Moreover, foreign law should not be applied when its application
would work undeniable injustice to the citizens or residents of the
forum. To give justice is the most important function of law; hence,
a law, or judgment or contract that is obviously unjust negates the
fundamental principles of Conflict of Laws.48
Applying the foregoing, even if the laws of the Netherlands neither
enforce a parents obligation to support his child nor penalize the
noncompliance therewith, such obligation is still duly enforceable in
the Philippines because it would be of great injustice to the child to
be denied of financial support when the latter is entitled thereto.
We emphasize, however, that as to petitioner herself, respondent is
no longer liable to support his former wife, in consonance with the
ruling in San Luis v. San Luis,49 to wit:

Based on the foregoing legal precepts, we find that respondent

may be made liable under Section 5(e) and (i) of R.A. No. 9262 for
unjustly refusing or failing to give support topetitioners son, to wit:
SECTION 5. Acts of Violence Against Women and Their Children.The crime of violence against women and their children is
committed through any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to
engage in conduct which the woman or her child has the right to
desist from or desist from conduct which the woman or her child
has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by
force or threat of force, physical or other harm or threat of physical
or other harm, or intimidation directed against the woman or child.
This shall include, butnot limited to, the following acts committed
with the purpose or effect of controlling or restricting the woman's
or her child's movement or conduct:
xxxx

As to the effect of the divorce on the Filipino wife, the Court ruled
that she should no longerbe considered marriedto the alien spouse.
Further, she should not be required to perform her marital duties
and obligations. It held:

(2) Depriving or threatening to deprive the woman or her children

of financial support legally due her or her family, or deliberately
providing the woman's children insufficient financial support; x x x
x

To maintain, as private respondent does, that, under our laws,

petitioner has to be considered still married to private respondent
and still subject to a wife's obligations under Article 109, et. seq. of
the Civil Code cannot be just. Petitioner should not be obliged to
live together with, observe respect and fidelity, and render support
to private respondent. The latter should not continue to be one of
her heirs with possible rights to conjugal property. She should not
be discriminated against in her own country if the ends of justice
are to be served. (Emphasis added)50

(i) Causing mental or emotional anguish, public ridicule or

humiliation to the woman or her child, including, but not limited to,
repeated verbal and emotional abuse, and denial of financial
support or custody of minor childrenof access to the woman's
child/children.51
Under the aforesaid special law, the deprivation or denial of
financial support to the child is considered anact of violence against
women and children.
In addition, considering that respondent is currently living in the
Philippines, we find strength in petitioners claim that the

Territoriality Principle in criminal law, in relation to Article 14 of the

New Civil Code, applies to the instant case, which provides that:
"[p]enal laws and those of public security and safety shall be
obligatory upon all who live and sojourn in Philippine territory,
subject to the principle of public international law and to treaty
stipulations." On this score, it is indisputable that the alleged
continuing acts of respondent in refusing to support his child with
petitioner is committed here in the Philippines as all of the parties
herein are residents of the Province of Cebu City. As such, our
courts have territorial jurisdiction over the offense charged against
respondent. It is likewise irrefutable that jurisdiction over the
respondent was acquired upon his arrest.

SO ORDERED.

Finally, we do not agree with respondents argument that granting,

but not admitting, that there is a legal basis for charging violation
of R.A. No. 9262 in the instant case, the criminal liability has been
extinguished on the ground of prescription of crime52 under Section
24 of R.A. No. 9262, which provides that:

Divorce between Filipinos is void and ineffectual under the

nationality rule adopted by Philippine law. Hence, any settlement of
property between the parties of the first marriage involving
Filipinos submitted as an incident of a divorce obtained in a foreign
country lacks competent judicial approval, and cannot be
enforceable against the assets of the husband who contracts a
subsequent marriage.

SECTION 24. Prescriptive Period. Acts falling under Sections 5(a)

to 5(f) shall prescribe in twenty (20) years. Acts falling under
Sections 5(g) to 5(I) shall prescribe in ten (10) years.
The act of denying support to a child under Section 5(e)(2) and (i)
of R.A. No. 9262 is a continuing offense,53which started in 1995 but
is still ongoing at present. Accordingly, the crime charged in the
instant case has clearly not prescribed.
Given, however, that the issue on whether respondent has provided
support to petitioners child calls for an examination of the
probative value of the evidence presented, and the truth and
falsehood of facts being admitted, we hereby remand the
determination of this issue to the RTC-Cebu which has jurisdiction
over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February
19, 2010 and September 1, 2010, respectively, of the Regional Trial
Court of the City of Cebu are hereby REVERSED and SET ASIDE.
The case is REMANDED to the same court to conduct further
proceedings based on the merits of the case.

G.R. No. 171914

July 23, 2014

SOLEDAD L. LAVADIA, Petitioner,

vs.
HEIRS OF JUAN LUCES LUNA, represented by GREGORIO Z.
LUNA and EUGENIA ZABALLERO-LUNA,Respondents.
DECISION
BERSAMIN, J.:

The Case
The petitioner, the second wife of the late Atty. Juan Luces Luna,
appeals the adverse decision promulgated on November 11,
2005,1 whereby the Court of Appeals (CA) affirmed with
modification the decision rendered on August 27, 2001 by the
Regional Trial Court (RTC), Branch 138, in Makati City.2 The CA
thereby denied her right in the 25/100 pro indiviso share of the
husband in a condominium unit, and in the law books of the
husband acquired during the second marriage.
Antecedents
The antecedent facts were summarized by the CA as follows:
ATTY. LUNA, a practicing lawyer, was at first a name partner in the
prestigious law firm Sycip, Salazar, Luna, Manalo, Hernandez &
Feliciano Law Offices at that time when he was living with his first
wife, herein intervenor-appellant Eugenia Zaballero-Luna

(EUGENIA), whom he initially married ina civil ceremony conducted

by the Justice of the Peace of Paraaque, Rizal on September 10,
1947 and later solemnized in a church ceremony at the ProCathedral in San Miguel, Bulacan on September 12, 1948. In ATTY.
LUNAs marriage to EUGENIA, they begot seven (7) children,
namely: Regina Maria L. Nadal, Juan Luis Luna, Araceli Victoria L.
Arellano, Ana Maria L. Tabunda, Gregorio Macario Luna, Carolina
Linda L. Tapia, and Cesar Antonio Luna. After almost two (2)
decades of marriage, ATTY. LUNA and EUGENIA eventually agreed
to live apart from each other in February 1966 and agreed to
separation of property, to which end, they entered into a written
agreement entitled "AGREEMENT FOR SEPARATION AND PROPERTY
SETTLEMENT" dated November 12, 1975, whereby they agreed to
live separately and to dissolve and liquidate their conjugal
partnership of property.
On January 12, 1976, ATTY. LUNA obtained a divorce decree of his
marriage with EUGENIA from the Civil and Commercial Chamber of
the First Circumscription of the Court of First Instance of Sto.
Domingo, Dominican Republic. Also in Sto.Domingo, Dominican
Republic, on the same date, ATTY. LUNA contracted another
marriage, this time with SOLEDAD. Thereafter, ATTY. LUNA and
SOLEDAD returned to the Philippines and lived together as husband
and wife until 1987.
Sometime in 1977, ATTY. LUNA organized a new law firm named:
Luna, Puruganan, Sison and Ongkiko (LUPSICON) where ATTY.
LUNA was the managing partner.
On February 14, 1978, LUPSICON through ATTY. LUNA purchased
from Tandang Sora Development Corporation the 6th Floor of
Kalaw-Ledesma Condominium Project(condominium unit) at
Gamboa St., Makati City, consisting of 517.52 square meters,
for P1,449,056.00, to be paid on installment basis for 36months
starting on April 15, 1978. Said condominium unit was to be
usedas law office of LUPSICON. After full payment, the Deed of
Absolute Sale over the condominium unit was executed on July 15,
1983, and CCT No. 4779 was issued on August 10, 1983, which
was registered bearing the following names:

"JUAN LUCES LUNA, married to Soledad L. Luna (46/100); MARIO

E. ONGKIKO, married to Sonia P.G. Ongkiko (25/100); GREGORIO
R. PURUGANAN, married to Paz A. Puruganan (17/100); and
TERESITA CRUZ SISON, married to Antonio J.M. Sison (12/100) x x
x" Subsequently, 8/100 share of ATTY. LUNA and 17/100 share of
Atty. Gregorio R. Puruganan in the condominium unit was sold to
Atty. Mario E. Ongkiko, for which a new CCT No. 21761 was issued
on February 7, 1992 in the following names:
"JUAN LUCES LUNA, married to Soledad L. Luna (38/100); MARIO
E. ONGKIKO, married to Sonia P.G. Ongkiko (50/100); TERESITA
CRUZ SISON, married to Antonio J.M. Sison (12/100) x x x"
Sometime in 1992, LUPSICON was dissolved and the condominium
unit was partitioned by the partners but the same was still
registered in common under CCT No. 21716. The parties stipulated
that the interest of ATTY. LUNA over the condominium unit would
be 25/100 share. ATTY. LUNA thereafter established and headed
another law firm with Atty. Renato G. Dela Cruzand used a portion
of the office condominium unit as their office. The said law firm
lasted until the death of ATTY. JUAN on July 12, 1997.
After the death of ATTY. JUAN, his share in the condominium unit
including the lawbooks, office furniture and equipment found
therein were taken over by Gregorio Z. Luna, ATTY. LUNAs son of
the first marriage. Gregorio Z. Luna thenleased out the 25/100
portion of the condominium unit belonging to his father to Atty.
Renato G. De la Cruz who established his own law firm named
Renato G. De la Cruz & Associates.
The 25/100 pro-indiviso share of ATTY. Luna in the condominium
unit as well as the law books, office furniture and equipment
became the subject of the complaint filed by SOLEDAD against the
heirs of ATTY. JUAN with the RTC of Makati City, Branch 138, on
September 10, 1999, docketed as Civil Case No. 99-1644. The
complaint alleged that the subject properties were acquired during
the existence of the marriage between ATTY. LUNA and SOLEDAD
through their joint efforts that since they had no children,
SOLEDAD became co-owner of the said properties upon the death
of ATTY. LUNA to the extent of pro-indiviso share consisting of
her share in the said properties plus her share in the net

estate of ATTY. LUNA which was bequeathed to her in the latters

last will and testament; and thatthe heirs of ATTY. LUNA through
Gregorio Z. Luna excluded SOLEDAD from her share in the subject
properties. The complaint prayed that SOLEDAD be declared the
owner of the portion of the subject properties;that the same be
partitioned; that an accounting of the rentals on the condominium
unit pertaining to the share of SOLEDAD be conducted; that a
receiver be appointed to preserve ad administer the subject
properties;and that the heirs of ATTY. LUNA be ordered to pay
attorneys feesand costs of the suit to SOLEDAD.3
Ruling of the RTC
On August 27, 2001, the RTC rendered its decision after trial upon
the aforementioned facts,4 disposing thusly:
WHEREFORE, judgment is rendered as follows:
(a) The 24/100 pro-indiviso share in the condominium unit
located at the SIXTH FLOOR of the KALAW LEDESMA
CONDOMINIUM PROJECT covered by Condominium
Certificate of Title No. 21761 consisting of FIVE HUNDRED
SEVENTEEN (517/100) SQUARE METERS is adjudged to
have been acquired by Juan Lucas Luna through his sole
industry;
(b) Plaintiff has no right as owner or under any other
concept over the condominium unit, hence the entry in
Condominium Certificate of Title No. 21761 of the Registry
of Deeds of Makati with respect to the civil status of Juan
Luces Luna should be changed from "JUAN LUCES LUNA
married to Soledad L. Luna" to "JUAN LUCES LUNA married
to Eugenia Zaballero Luna";
(c) Plaintiff is declared to be the owner of the books Corpus
Juris, Fletcher on Corporation, American Jurisprudence and
Federal Supreme Court Reports found in the condominium
unit and defendants are ordered to deliver them to the
plaintiff as soon as appropriate arrangements have been
madefor transport and storage.

No pronouncement as to costs.
SO ORDERED.5
Decision of the CA
Both parties appealed to the CA.6
On her part, the petitioner assigned the following errors to the
RTC, namely:
I. THE LOWER COURT ERRED IN RULING THAT THE
CONDOMINIUM UNIT WAS ACQUIRED THRU THE SOLE
INDUSTRY OF ATTY. JUAN LUCES LUNA;
II. THE LOWER COURT ERRED IN RULING THAT
PLAINTIFFAPPELLANT DID NOT CONTRIBUTE MONEY FOR
THE ACQUISITION OF THE CONDOMINIUM UNIT;
III. THE LOWER COURT ERRED IN GIVING CREDENCE TO
PORTIONS OF THE TESTIMONY OF GREGORIO LUNA, WHO
HAS NO ACTUAL KNOWLEDGE OF THE ACQUISITION OF
THE UNIT, BUT IGNORED OTHER PORTIONS OF HIS
TESTIMONY FAVORABLE TO THE PLAINTIFF-APPELLANT;
IV. THE LOWER COURT ERRED IN NOT GIVING
SIGNIFICANCE TO THE FACT THAT THE CONJUGAL
PARTNERSHIP BETWEEN LUNA AND INTERVENORAPPELLANT WAS ALREADY DISSOLVED AND LIQUIDATED
PRIOR TO THE UNION OF PLAINTIFF-APPELLANT AND LUNA;
V. THE LOWER COURT ERRED IN GIVING UNDUE
SIGNIFICANCE TO THE ABSENCE OF THE DISPOSITION OF
THE CONDOMINIUM UNIT IN THE HOLOGRAPHIC WILL OF
THE PLAINTIFF-APPELLANT;
VI. THE LOWER COURT ERRED IN GIVING UNDUE
SIGNIFICANCE TO THE FACTTHAT THE NAME OF PLAINTIFFAPPELLANT DID NOT APPEAR IN THE DEED OF ABSOLUTE

SALE EXECUTED BY TANDANG SORA DEVELOPMENT

CORPORATION OVER THE CONDOMINIUM UNIT;
VII. THE LOWER COURT ERRED IN RULING THAT NEITHER
ARTICLE 148 OF THE FAMILYCODE NOR ARTICLE 144 OF
THE CIVIL CODE OF THE PHILIPPINES ARE APPLICABLE;
VIII. THE LOWER COURT ERRED IN NOT RULING THAT THE
CAUSE OF ACTION OF THE INTERVENOR-APPELLANT HAS
BEEN BARRED BY PESCRIPTION AND LACHES; and
IX. THE LOWER COURT ERRED IN NOT
EXPUNGING/DISMISSING THE INTERVENTION FOR FAILURE
OF INTERVENOR-APPELLANT TO PAY FILING FEE.7
In contrast, the respondents attributedthe following errors to the
trial court, to wit:
I. THE LOWER COURT ERRED IN HOLDING THAT CERTAIN
FOREIGN LAW BOOKS IN THE LAW OFFICE OF ATTY. LUNA
WERE BOUGHT WITH THE USE OF PLAINTIFFS MONEY;
II. THE LOWER COURT ERRED IN HOLDING THAT PLAINTIFF
PROVED BY PREPONDERANCE OF EVIDENCE (HER CLAIM
OVER) THE SPECIFIED FOREIGN LAW BOOKS FOUND IN
ATTY. LUNAS LAW OFFICE; and
III. THE LOWER COURT ERRED IN NOT HOLDING THAT,
ASSUMING PLAINTIFF PAID FOR THE SAID FOREIGN LAW
BOOKS, THE RIGHT TO RECOVER THEM HAD PRESCRIBED
AND BARRED BY LACHES AND ESTOPPEL.8
On November 11, 2005, the CA promulgated its assailed modified
decision,9 holding and ruling:
EUGENIA, the first wife, was the legitimate wife of ATTY. LUNA until
the latters death on July 12, 1997. The absolute divorce decree
obtained by ATTY. LUNA inthe Dominican Republic did not terminate
his prior marriage with EUGENIA because foreign divorce between
Filipino citizens is not recognized in our jurisdiction. x x x10

xxxx
WHEREFORE, premises considered, the assailed August 27, 2001
Decision of the RTC of MakatiCity, Branch 138, is hereby
MODIFIEDas follows:
(a) The 25/100 pro-indiviso share in the condominium unit
at the SIXTH FLOOR of the KALAW LEDESMA
CONDOMINIUM PROJECT covered by Condominium
Certificate of Title No. 21761 consisting of FIVE HUNDRED
SEVENTEEN (517/100) (sic) SQUARE METERS is hereby
adjudged to defendants-appellants, the heirs of Juan Luces
Luna and Eugenia Zaballero-Luna (first marriage), having
been acquired from the sole funds and sole industry of Juan
Luces Luna while marriage of Juan Luces Luna and Eugenia
Zaballero-Luna (first marriage) was still subsisting and
valid;
(b) Plaintiff-appellant Soledad Lavadia has no right as owner
or under any other concept over the condominium unit,
hence the entry in Condominium Certificate of Title No.
21761 of the Registry of Deeds ofMakati with respect to the
civil status of Juan Luces Luna should be changed from
"JUAN LUCES LUNA married to Soledad L. Luna" to "JUAN
LUCES LUNA married to Eugenia Zaballero Luna";
(c) Defendants-appellants, the heirs of Juan Luces Luna and
Eugenia Zaballero-Luna(first marriage) are hereby declared
to be the owner of the books Corpus Juris, Fletcher on
Corporation, American Jurisprudence and Federal Supreme
Court Reports found in the condominium unit.
No pronouncement as to costs.
SO ORDERED.11
On March 13, 2006,12 the CA denied the petitioners motion for
reconsideration.13
Issues

In this appeal, the petitioner avers in her petition for review on

certiorarithat:
A. The Honorable Court of Appeals erred in ruling that the
Agreement for Separation and Property Settlement
executed by Luna and Respondent Eugenia was
unenforceable; hence, their conjugal partnership was not
dissolved and liquidated;
B. The Honorable Court of Appeals erred in not recognizing
the Dominican Republic courts approval of the Agreement;
C. The Honorable Court of Appeals erred in ruling that
Petitioner failed to adduce sufficient proof of actual
contribution to the acquisition of purchase of the
subjectcondominium unit; and
D. The Honorable Court of Appeals erred in ruling that
Petitioner was not entitled to the subject law books.14
The decisive question to be resolved is who among the contending
parties should be entitled to the 25/100 pro indivisoshare in the
condominium unit; and to the law books (i.e., Corpus Juris,
Fletcher on Corporation, American Jurisprudence and Federal
Supreme Court Reports).
The resolution of the decisive question requires the Court to
ascertain the law that should determine, firstly, whether the
divorce between Atty. Luna and Eugenia Zaballero-Luna (Eugenia)
had validly dissolved the first marriage; and, secondly, whether the
second marriage entered into by the late Atty. Luna and the
petitioner entitled the latter to any rights in property. Ruling of the
Court
We affirm the modified decision of the CA.
1. Atty. Lunas first marriage with Eugenia
subsisted up to the time of his death

The first marriage between Atty. Luna and Eugenia, both Filipinos,
was solemnized in the Philippines on September 10, 1947. The law
in force at the time of the solemnization was the Spanish Civil
Code, which adopted the nationality rule. The Civil Codecontinued
to follow the nationality rule, to the effect that Philippine laws
relating to family rights and duties, or to the status, condition and
legal capacity of persons were binding upon citizens of the
Philippines, although living abroad.15 Pursuant to the nationality
rule, Philippine laws governed thiscase by virtue of bothAtty. Luna
and Eugenio having remained Filipinos until the death of Atty. Luna
on July 12, 1997 terminated their marriage.
From the time of the celebration ofthe first marriage on September
10, 1947 until the present, absolute divorce between Filipino
spouses has not been recognized in the Philippines. The nonrecognition of absolute divorce between Filipinos has remained
even under the Family Code,16 even if either or both of the spouses
are residing abroad.17 Indeed, the only two types of defective
marital unions under our laws have beenthe void and the voidable
marriages. As such, the remedies against such defective marriages
have been limited to the declaration of nullity ofthe marriage and
the annulment of the marriage.
It is true that on January 12, 1976, the Court of First Instance
(CFI) of Sto. Domingo in the Dominican Republic issued the Divorce
Decree dissolving the first marriage of Atty. Luna and
Eugenia.18 Conformably with the nationality rule, however, the
divorce, even if voluntarily obtained abroad, did not dissolve the
marriage between Atty. Luna and Eugenia, which subsisted up to
the time of his death on July 12, 1997. This finding conforms to the
Constitution, which characterizes marriage as an inviolable social
institution,19 and regards it as a special contract of permanent
union between a man and a woman for the establishment of a
conjugal and family life.20 The non-recognition of absolute divorce
in the Philippines is a manifestation of the respect for the sanctity
of the marital union especially among Filipino citizens. It affirms
that the extinguishment of a valid marriage must be grounded only
upon the death of either spouse, or upon a ground expressly
provided bylaw. For as long as this public policy on marriage
between Filipinos exists, no divorce decree dissolving the marriage

between them can ever be given legal or judicial recognition and

enforcement in this jurisdiction.
2. The Agreement for Separation and Property Settlement
was void for lack of court approval
The petitioner insists that the Agreement for Separation and
Property Settlement (Agreement) that the late Atty. Luna and
Eugenia had entered into and executed in connection with the
divorce proceedings before the CFI of Sto. Domingo in the
Dominican Republic to dissolve and liquidate their conjugal
partnership was enforceable against Eugenia. Hence, the CA
committed reversible error in decreeing otherwise.

divide equally, upon the dissolution of the marriage or of the

partnership, the net gains or benefits obtained indiscriminately by
either spouse during the marriage.
The conjugal partnership of gains subsists until terminated for any
of various causes of termination enumerated in Article 175 of the
Civil Code, viz:
Article 175. The conjugal partnership of gains terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;

The insistence of the petitioner was unwarranted.

(3) When the marriage is annulled;

Considering that Atty. Luna and Eugenia had not entered into any
marriage settlement prior to their marriage on September 10,
1947, the system of relative community or conjugal partnership of
gains governed their property relations. This is because the
Spanish Civil Code, the law then in force at the time of their
marriage, did not specify the property regime of the spouses in the
event that they had not entered into any marriage settlement
before or at the time of the marriage. Article 119 of the Civil
Codeclearly so provides, to wit:

(4) In case of judicial separation of property under Article

191.

Article 119. The future spouses may in the marriage settlements

agree upon absolute or relative community of property, or upon
complete separation of property, or upon any other regime. In the
absence of marriage settlements, or when the same are void, the
system of relative community or conjugal partnership of gains as
established in this Code, shall govern the property relations
between husband and wife.
Article 142 of the Civil Codehas defined a conjugal partnership of
gains thusly:
Article 142. By means of the conjugal partnership of gains the
husband and wife place in a common fund the fruits of their
separate property and the income from their work or industry, and

The mere execution of the Agreement by Atty. Luna and Eugenia

did not per sedissolve and liquidate their conjugal partnership of
gains. The approval of the Agreement by a competent court was
still required under Article 190 and Article 191 of the Civil Code, as
follows:
Article 190. In the absence of an express declaration in the
marriage settlements, the separation of property between spouses
during the marriage shall not take place save in virtue of a judicial
order. (1432a)
Article 191. The husband or the wife may ask for the separation of
property, and it shall be decreed when the spouse of the petitioner
has been sentenced to a penalty which carries with it civil
interdiction, or has been declared absent, or when legal separation
has been granted.
xxxx
The husband and the wife may agree upon the dissolution of the
conjugal partnership during the marriage, subject to judicial

approval. All the creditors of the husband and of the wife, as well
as of the conjugal partnership shall be notified of any petition for
judicialapproval or the voluntary dissolution of the conjugal
partnership, so that any such creditors may appear atthe hearing
to safeguard his interests. Upon approval of the petition for
dissolution of the conjugal partnership, the court shall take such
measures as may protect the creditors and other third persons.

Domingo in the Dominican Republic but had subsisted until the

death of Atty. Luna on July 12, 1997.

After dissolution of the conjugal partnership, the provisions of

articles 214 and 215 shall apply. The provisions of this Code
concerning the effect of partition stated in articles 498 to 501 shall
be applicable. (1433a)

Article 71. All marriages performed outside the Philippines in

accordance with the laws in force in the country where they were
performed, and valid there as such, shall also be valid in this
country, except bigamous, polygamous, or incestuous marriages as
determined by Philippine law.

But was not the approval of the Agreement by the CFI of Sto.
Domingo in the Dominican Republic sufficient in dissolving and
liquidating the conjugal partnership of gains between the late Atty.
Luna and Eugenia?
The query is answered in the negative. There is no question that
the approval took place only as an incident ofthe action for divorce
instituted by Atty. Luna and Eugenia, for, indeed, the justifications
for their execution of the Agreement were identical to the grounds
raised in the action for divorce.21 With the divorce not being itself
valid and enforceable under Philippine law for being contrary to
Philippine public policy and public law, the approval of the
Agreement was not also legally valid and enforceable under
Philippine law. Consequently, the conjugal partnership of gains of
Atty. Luna and Eugenia subsisted in the lifetime of their marriage.
3. Atty. Lunas marriage with Soledad, being bigamous,
was void; properties acquired during their marriage
were governed by the rules on co-ownership
What law governed the property relations of the second marriage
between Atty. Luna and Soledad?
The CA expressly declared that Atty. Lunas subsequent marriage to
Soledad on January 12, 1976 was void for being bigamous,22 on the
ground that the marriage between Atty. Luna and Eugenia had not
been dissolved by the Divorce Decree rendered by the CFI of Sto.

The Court concurs with the CA.

In the Philippines, marriages that are bigamous, polygamous, or
incestuous are void. Article 71 of the Civil Codeclearly states:

Bigamy is an illegal marriage committed by contracting a second or

subsequent marriage before the first marriage has been legally
dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the
proper proceedings.23 A bigamous marriage is considered void ab
initio.24
Due to the second marriage between Atty. Luna and the petitioner
being void ab initioby virtue of its being bigamous, the properties
acquired during the bigamous marriage were governed by the rules
on co-ownership, conformably with Article 144 of the Civil Code,
viz:
Article 144. When a man and a woman live together as husband
and wife, but they are not married, ortheir marriage is void from
the beginning, the property acquired by eitheror both of them
through their work or industry or their wages and salaries shall be
governed by the rules on co-ownership.(n)
In such a situation, whoever alleges co-ownership carried the
burden of proof to confirm such fact.1wphi1 To establish coownership, therefore, it became imperative for the petitioner to
offer proof of her actual contributions in the acquisition of property.
Her mere allegation of co-ownership, without sufficient and
competent evidence, would warrant no relief in her favor. As the
Court explained in Saguid v. Court of Appeals:25

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which

involved the issue of co-ownership ofproperties acquired by the
parties to a bigamous marriage and an adulterous relationship,
respectively, we ruled that proof of actual contribution in the
acquisition of the property is essential. The claim of co-ownership
of the petitioners therein who were parties to the bigamous and
adulterousunion is without basis because they failed to substantiate
their allegation that they contributed money in the purchase of the
disputed properties. Also in Adriano v. Court of Appeals, we ruled
that the fact that the controverted property was titled in the name
of the parties to an adulterous relationship is not sufficient proof of
coownership absent evidence of actual contribution in the
acquisition of the property.
As in other civil cases, the burden of proof rests upon the party
who, as determined by the pleadings or the nature of the case,
asserts an affirmative issue. Contentions must be proved by
competent evidence and reliance must be had on the strength of
the partys own evidence and not upon the weakness of the
opponents defense. This applies with more vigor where, as in the
instant case, the plaintiff was allowed to present evidence ex
parte.1wphi1 The plaintiff is not automatically entitled to the relief
prayed for. The law gives the defendantsome measure of protection
as the plaintiff must still prove the allegations in the complaint.
Favorable relief can be granted only after the court isconvinced that
the facts proven by the plaintiff warrant such relief. Indeed, the
party alleging a fact has the burden of proving it and a
mereallegation is not evidence.26
The petitioner asserts herein that she sufficiently proved her actual
contributions in the purchase of the condominium unit in the
aggregate amount of at least P306,572.00, consisting in direct
contributions ofP159,072.00, and in repaying the loans Atty. Luna
had obtained from Premex Financing and Banco Filipino
totaling P146,825.30;27 and that such aggregate contributions
of P306,572.00 corresponded to almost the entire share of Atty.
Luna in the purchase of the condominium unit amounting
to P362,264.00 of the units purchase price of P1,449,056.00.28 The
petitioner further asserts that the lawbooks were paid for solely out
of her personal funds, proof of which Atty. Luna had even sent her
a "thank you" note;29 that she had the financial capacity to make

the contributions and purchases; and that Atty. Luna could not
acquire the properties on his own due to the meagerness of the
income derived from his law practice.
Did the petitioner discharge her burden of proof on the coownership?
In resolving the question, the CA entirely debunked the petitioners
assertions on her actual contributions through the following
findings and conclusions, namely:
SOLEDAD was not able to prove by preponderance of evidence that
her own independent funds were used to buy the law office
condominium and the law books subject matter in contentionin this
case proof that was required for Article 144 of the New Civil Code
and Article 148 of the Family Code to apply as to cases where
properties were acquired by a man and a woman living together as
husband and wife but not married, or under a marriage which was
void ab initio. Under Article 144 of the New Civil Code, the rules on
co-ownership would govern. But this was not readily applicable to
many situations and thus it created a void at first because it
applied only if the parties were not in any way incapacitated or
were without impediment to marry each other (for it would be
absurd to create a co-ownership where there still exists a prior
conjugal partnership or absolute community between the man and
his lawful wife). This void was filled upon adoption of the Family
Code. Article 148 provided that: only the property acquired by both
of the parties through their actual joint contribution of money,
property or industry shall be owned in common and in proportion
to their respective contributions. Such contributions and
corresponding shares were prima faciepresumed to be equal.
However, for this presumption to arise, proof of actual contribution
was required. The same rule and presumption was to apply to joint
deposits of money and evidence of credit. If one of the parties was
validly married to another, his or her share in the co-ownership
accrued to the absolute community or conjugal partnership existing
in such valid marriage. If the party who acted in bad faith was not
validly married to another, his or her share shall be forfeited in the
manner provided in the last paragraph of the Article 147. The rules
on forfeiture applied even if both parties were in bad faith. Coownership was the exception while conjugal partnership of gains

was the strict rule whereby marriage was an inviolable social

institution and divorce decrees are not recognized in the
Philippines, as was held by the Supreme Court in the case of
Tenchavez vs. Escao, G.R. No. L-19671, November 29, 1965, 15
SCRA 355, thus:
xxxx
As to the 25/100pro-indivisoshare of ATTY. LUNA in the
condominium unit, SOLEDAD failed to prove that she made an
actual contribution to purchase the said property. She failed to
establish that the four (4) checks that she presented were indeed
used for the acquisition of the share of ATTY. LUNA in the
condominium unit. This was aptly explained in the Decision of the
trial court, viz.:
"x x x The first check, Exhibit "M" for P55,000.00 payable to Atty.
Teresita Cruz Sison was issued on January 27, 1977, which was
thirteen (13) months before the Memorandum of Agreement,
Exhibit "7" was signed. Another check issued on April 29, 1978 in
the amount of P97,588.89, Exhibit "P" was payable to Banco
Filipino. According to the plaintiff, thiswas in payment of the loan of
Atty. Luna. The third check which was for P49,236.00 payable to
PREMEX was dated May 19, 1979, also for payment of the loan of
Atty. Luna. The fourth check, Exhibit "M", forP4,072.00 was dated
December 17, 1980. None of the foregoing prove that the amounts
delivered by plaintiff to the payees were for the acquisition of the
subject condominium unit. The connection was simply not
established. x x x"
SOLEDADs claim that she made a cash contribution
of P100,000.00 is unsubstantiated. Clearly, there is no basis for
SOLEDADs claim of co-ownership over the 25/100 portion of the
condominium unit and the trial court correctly found that the same
was acquired through the sole industry of ATTY. LUNA, thus:
"The Deed of Absolute Sale, Exhibit "9", covering the condominium
unit was in the name of Atty. Luna, together with his partners in
the law firm. The name of the plaintiff does not appear as vendee
or as the spouse of Atty. Luna. The same was acquired for the use

of the Law firm of Atty. Luna. The loans from Allied Banking
Corporation and Far East Bank and Trust Company were loans of
Atty. Luna and his partners and plaintiff does not have evidence to
show that she paid for them fully or partially. x x x"
The fact that CCT No. 4779 and subsequently, CCT No. 21761 were
in the name of "JUAN LUCES LUNA, married to Soledad L. Luna"
was no proof that SOLEDAD was a co-owner of the condominium
unit. Acquisition of title and registration thereof are two different
acts. It is well settled that registration does not confer title but
merely confirms one already existing. The phrase "married to"
preceding "Soledad L. Luna" is merely descriptive of the civil status
of ATTY. LUNA.
SOLEDAD, the second wife, was not even a lawyer. So it is but
logical that SOLEDAD had no participation in the law firm or in the
purchase of books for the law firm. SOLEDAD failed to prove that
she had anything to contribute and that she actually purchased or
paid for the law office amortization and for the law books. It is
more logical to presume that it was ATTY. LUNA who bought the
law office space and the law books from his earnings from his
practice of law rather than embarrassingly beg or ask from
SOLEDAD money for use of the law firm that he headed.30
The Court upholds the foregoing findings and conclusions by the CA
both because they were substantiated by the records and because
we have not been shown any reason to revisit and undo them.
Indeed, the petitioner, as the party claiming the co-ownership, did
not discharge her burden of proof. Her mere allegations on her
contributions, not being evidence,31 did not serve the purpose. In
contrast, given the subsistence of the first marriage between Atty.
Luna and Eugenia, the presumption that Atty. Luna acquired the
properties out of his own personal funds and effort remained. It
should then be justly concluded that the properties in litislegally
pertained to their conjugal partnership of gains as of the time of
his death. Consequently, the sole ownership of the 25/100 pro
indivisoshare of Atty. Luna in the condominium unit, and of the
lawbooks pertained to the respondents as the lawful heirs of Atty.
Luna.

WHEREFORE, the Court AFFIRMS the decision promulgated on

November 11, 2005; and ORDERS the petitioner to pay the costs of
suit.
SO ORDERED.
G.R. No. 101749 July 10, 1992
CONRADO BUNAG, JR., petitioner,
vs.
HON. COURT OF APPEALS, First Division, and ZENAIDA B.
CIRILO, respondents.

REGALADO, J.:
Petitioner appeals for the reversal of the decision 1 of respondent
Court of Appeals promulgated on May 17, 1991 in CA-G.R. CV No.
07054, entitled "Zenaida B. Cirilo vs. Conrado Bunag, Sr. and
Conrado Bunag, Jr.," which affirmedin toto the decision of the
Regional Trial Court, Branch XI at Bacoor, Cavite, and, implicitly,
respondent court's resolution of September 3, 1991 2 denying
petitioner's motion for reconsideration.
Respondent court having assiduously discussed the salient
antecedents of this case, vis-a-vis the factual findings of the court
below, the evidence of record and the contentions of the parties, it
is appropriate that its findings, which we approve and adopt, be
extensively reproduced hereunder:
Based on the evidence on record, the following facts
are considered indisputable: On the afternoon of
September 8, 1973, defendant-appellant Bunag, Jr.
brought plaintiff-appellant to a motel or hotel where
they had sexual intercourse. Later that evening, said
defendant-appellant brought plaintiff-appellant to the
house of his grandmother Juana de Leon in
Pamplona, Las Pias, Metro Manila, where they lived
together as husband and wife for 21 days, or until

September 29, 1973. On September 10, 1973,

defendant-appellant Bunag, Jr. and plaintiff-appellant
filed their respective applications for a marriage
license with the Office of the Local Civil Registrar of
Bacoor, Cavite. On October 1, 1973, after leaving
plaintiff-appellant, defendant-appellant Bunag, Jr.
filed an affidavit withdrawing his application for a
marriage license.
Plaintiff-appellant contends that on the afternoon of
September 8, 1973, defendant-appellant Bunag, Jr.,
together with an unidentified male companion,
abducted her in the vicinity of the San Juan de Dios
Hospital in Pasay City and brought her to a motel
where she was raped. The court a quo, which
adopted her evidence, summarized the same which
we paraphrased as follows:
Plaintiff was 26 years old on November
5, 1974 when she testified, single and
had finished a college course in
Commerce (t.s.n., p. 4, Nov. 5, 1974).
It appears that on September 8, 1973,
at about 4:00 o'clock in the afternoon,
while she was walking along Figueras
Street, Pasay City on her way to the
San Juan de Dios Canteen to take her
snack, defendant, Conrado Bunag, Jr.,
came riding in a car driven by a male
companion. Plaintiff and defendant
Bunag, Jr. were sweethearts, but two
weeks before September 8, 1973, they
had a quarrel, and Bunag, Jr. wanted
to talk matters over with plaintiff, so
that he invited her to take their
merienda at the Aristocrat Restaurant
in Manila instead of at the San Juan de
Dios Canteen, to which plaintiff
obliged, as she believed in his sincerity
(t.s.n., pp. 8-10, Nov. 5, 1974).

Plaintiff rode in the car and took the

front seat beside the driver while
Bunag, Jr. seated himself by her right
side. The car travelled north on its way
to the Aristocrat Restaurant but upon
reaching San Juan Street in Pasay City,
it turned abruptly to the right, to
which plaintiff protested, but which the
duo ignored and instead threatened
her not to make any noise as they
were ready to die and would bump the
car against the post if she persisted.
Frightened and silenced, the car
travelled its course thru F.B. Harrison
Boulevard until they reached a motel.
Plaintiff was then pulled and dragged
from the car against her will, and
amidst her cries and pleas. In spite of
her struggle she was no match to the
joint strength of the two male
combatants because of her natural
weakness being a woman and her
small stature. Eventually, she was
brought inside the hotel where the
defendant Bunag, Jr. deflowered her
against her will and consent. She could
not fight back and repel the attack
because after Bunag, Jr. had forced
her to lie down and embraced her, his
companion held her two feet, removed
her panty, after which he left. Bunag,
Jr. threatened her that he would ask
his companion to come back and hold
her feet if she did not surrender her
womanhood to him, thus he succeeded
in feasting on her virginity. Plaintiff
described the pains she felt and how
blood came out of her private parts
after her vagina was penetrated by the
penis of the defendant Bunag, Jr.
(t.s.n. pp. 17-24, Nov. 5, 1974).

After that outrage on her virginity,

plaintiff asked Bunag, Jr. once more to
allow her to go home but the latter
would not consent and stated that he
would only let her go after they were
married as he intended to marry her,
so much so that she promised not to
make any scandal and to marry him.
Thereafter, they took a taxi together
after the car that they used had
already gone, and proceeded to the
house of Juana de Leon, Bunag, Jr.'s
grandmother in Pamplona, Las Pias,
Metro Manila where they arrived at
9:30 o'clock in the evening (t.s.n., p.
26, Nov. 5, 1974). At about ten (10)
o'clock that same evening, defendant
Conrado Bunag, Sr., father of Bunag,
Jr. arrived and assured plaintiff that
the following day which was a Monday,
she and Bunag, Jr. would go to Bacoor,
to apply for a marriage license, which
they did. They filed their applications
for marriage license (Exhibits "A" and
"C") and after that plaintiff and
defendant Bunag, Jr. returned to the
house of Juana de Leon and lived there
as husband and wife from September
8, 1973 to September 29, 1973.
On September 29, 1973 defendant
Bunag, Jr. left and never returned,
humiliating plaintiff and compelled her
to go back to her parents on October
3, 1973. Plaintiff was ashamed when
she went home and could not sleep
and eat because of the deception done
against her by defendants-appellants
(t.s.n., p. 35, Nov. 5, 1974).

The testimony of plaintiff was

corroborated in toto by her uncle,
Vivencio Bansagan who declared that
on September 8, 1973 when plaintiff
failed to arrive home at 9:00 o'clock in
the evening, his sister who is the
mother of plaintiff asked him to look
for her but his efforts proved futile,
and he told his sister that plaintiff
might have married (baka nag-asawa,
t.s.n., pp. 5-6, March 18, 1976).
However, in the afternoon of the next
day (Sunday), his sister told him that
Francisco Cabrera, accompanied by
barrio captain Jacinto Manalili of Ligas,
Bacoor, Cavite, informed her that
plaintiff and Bunag, Jr. were in
Cabrera's house, so that her sister
requested him to go and see the
plaintiff, which he did, and at the
house of Mrs. Juana de Leon in
Pamplona, Las Pias, Metro Manila he
met defendant Conrado Bunag, Sr.,
who told him, "Pare, the children are
here already. Let us settle the matter
and have them married."
He conferred with plaintiff who told him that as she
had already lost her honor, she would bear her
sufferings as Boy Bunag, Jr. and his father promised
they would be married.
Defendants-appellants, on the other hand, deny that
defendant-appellant Conrado Bunag, Jr. abducted
and raped plaintiff-appellant on September 8, 1973.
On the contrary, plaintiff-appellant and defendantappellant Bunag, Jr. eloped on that date because of
the opposition of the latter's father to their
relationship.

Defendant-appellants claim that defendant-appellant

Bunag, Jr. and plaintiff-appellant had earlier made
plans to elope and get married, and this fact was
known to their friends, among them, Architect Chito
Rodriguez. The couple made good their plans to
elope on the afternoon of September 8, 1973, when
defendant-appellant Bunag, Jr., accompanied by his
friend Guillermo Ramos, Jr., met plaintiff-appellant
and her officemate named Lydia in the vicinity of the
San Juan de Dios Hospital. The foursome then
proceeded to (the) aforesaid hospital's canteen
where they had some snacks. Later, Guillermo
Ramos, Jr. took Lydia to Quirino Avenue where she
could get a ride home, thereby leaving the
defendant-appellant Bunag, Jr. and plaintiff-appellant
alone. According to defendant-appellant Bunag, Jr.,
after Guillermo Ramos, Jr. and Lydia left, he and
plaintiff-appellant took a taxi to the Golden Gate and
Flamingo Hotels where they tried to get a room, but
these were full. They finally got a room at the
Holiday Hotel, where defendant-appellant registered
using his real name and residence certificate number.
Three hours later, the couple check out of the hotel
and proceeded to the house of Juana de Leon at
Pamplona, Las Pias, where they stayed until
September 19, 1873. Defendant-appellant claims
that bitter disagreements with the plaintiff-appellant
over money and the threats made to his life
prompted him to break off their plan to get married.
During this period, defendant-appellant Bunag, Sr.
denied having gone to the house of Juan de Leon
and telling plaintiff-appellant that she would be wed
to defendant-appellant Bunag, Jr. In fact, he phoned
Atty. Conrado Adreneda, member of the board of
directors of Mandala Corporation, defendantappellant Bunag, Jr.'s employer, three times between
the evening of September 8, 1973 and September 9,
1973 inquiring as to the whereabouts of his son. He
came to know about his son's whereabouts when he
was told of the couple's elopement late in the

afternoon of September 9, 1973 by his mother

Candida Gawaran. He likewise denied having met
relatives and emissaries of plaintiff-appellant and
agreeing to her marriage to his son. 3
A complaint for damages for alleged breach of promise to marry
was filed by herein private respondent Zenaida B. Cirilo against
petitioner Conrado Bunag, Jr. and his father, Conrado Bunag, Sr., as
Civil Case No. N-2028 of the Regional Trial Court, Branch XIX at
Bacoor, Cavite. On August 20, 1983, on a finding, inter alia, that
petitioner had forcibly abducted and raped private respondent, the
trial court rendered a decision 4 ordering petitioner Bunag, Jr. to
pay private respondent P80,000.00 as moral damages, P20,000.00
as exemplary damages, P20,000.00 by way of temperate damages,
and P10,000.00 for and as attorney's fees, as well as the costs of
suit. Defendant Conrado Bunag, Sr. was absolved from any and all
liability.
Private respondent appealed that portion of the lower court's
decision disculpating Conrado Bunag, Sr. from civil liability in this
case. On the other hand, the Bunags, as defendants-appellants,
assigned in their appeal several errors allegedly committed by trial
court, which were summarized by respondent court as follows: (1)
in finding that defendant-appellant Conrado Bunag, Jr. forcibly
abducted and raped plaintiff-appellant; (2) in finding that
defendants-appellants promised plaintiff-appellant that she would
be wed to defendant-appellant Conrado Bunag, Jr.; and (3) in
awarding plaintiff-appellant damages for the breach of defendantsappellants' promise of marriage. 5
As stated at the outset, on May 17, 1991 respondent Court of
Appeals rendered judgment dismissing both appeals and
affirming in toto the decision of the trial court. His motion for
reconsideration having been denied, petitioner Bunag, Jr. is before
us on a petition for review, contending that (1) respondent court
failed to consider vital exhibits, testimonies and incidents for
petitioner's defense, resulting in the misapprehensions of facts and
violative of the law on preparation of judgment; and (2) it erred in
the application of the proper law and jurisprudence by holding that
there was forcible abduction with rape, not just a simple elopement

and an agreement to marry, and in the award of excessive

damages. 6
Petitioner Bunag, Jr. first contends that both the trial and appellate
courts failed to take into consideration the alleged fact that he and
private respondent had agreed to marry, and that there was no
case of forcible abduction with rape, but one of simple elopement
and agreement to marry. It is averred that the agreement to marry
has been sufficiently proven by the testimonies of the witnesses for
both parties and the exhibits presented in court.
This submission, therefore, clearly hinges on the credibility of the
witnesses and evidence presented by the parties and the weight
accorded thereto in the factual findings of the trial court and the
Court of Appeals. In effect, what petitioner would want this Court
to do is to evaluate and analyze anew the evidence, both
testimonial and documentary, presented before and calibrated by
the trial court, and as further meticulously reviewed and discussed
by respondent court.
The issue raised primarily and ineluctably involves questions of
fact. We are, therefore, once again constrained to stress the wellentrenched statutory and jurisprudential mandate that findings of
fact of the Court of Appeals are, as a rule, conclusive upon this
Court. Only questions of law, distinctly set forth, may be raised in a
petition for review on certiorari under Rule 45 of the Rules of
Court, subject to clearly settled exceptions in case law.
Our jurisdiction in cases brought to us from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to the
latter, its findings of fact being conclusive. This Court has
emphatically declared that it is not its function to analyze or weigh
such evidence all over again, its jurisdiction being limited to
reviewing errors of law that might have been committed by the
lower court. Barring, therefore, a showing that the findings
complained of are totally devoid of support in the record, or that
they are so glaringly erroneous as to constitute serious abuse of
discretion, such findings must stand, for this Court is not expected
or required to examine or contrast the oral and documentary
evidence submitted by the parties. 7Neither does the instant case
reveal any feature falling within, any of the exceptions which under

our decisional rules may warrant a review of the factual findings of

the Court of Appeals. On the foregoing considerations and our
review of the records, we sustain the holding of respondent court
in favor of private respondent.
Petitioner likewise asserts that since action involves a breach of
promise to marry, the trial court erred in awarding damages.
It is true that in this jurisdiction, we adhere to the time-honored
rule that an action for breach of promise to marry has no standing
in the civil law, apart from the right to recover money or property
advanced by the plaintiff upon the faith of such
promise. 8 Generally, therefore, a breach of promise to marry per
se is not actionable, except where the plaintiff has actually incurred
expenses for the wedding and the necessary incidents thereof.
However, the award of moral damages is allowed in cases specified
in or analogous to those provided in Article 2219 of the Civil Code.
Correlatively, under Article 21 of said Code, in relation to paragraph
10 of said Article 2219, any person who wilfully causes loss or
injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for moral
damages. 9 Article 21 was adopted to remedy the countless gaps in
the statutes which leave so many victims of moral wrongs helpless
even though they have actually suffered material and moral injury,
and is intended to vouchsafe adequate legal remedy for that untold
number of moral wrongs which is impossible for human foresight to
specifically provide for in the statutes. 10
Under the circumstances obtaining in the case at bar, the acts of
petitioner in forcibly abducting private respondent and having
carnal knowledge with her against her will, and thereafter
promising to marry her in order to escape criminal liability, only to
thereafter renege on such promise after cohabiting with her for
twenty-one days, irremissibly constitute acts contrary to morals
and good customs. These are grossly insensate and reprehensible
transgressions which indisputably warrant and abundantly justify
the award of moral and exemplary damages, pursuant to Article 21
in relation to paragraphs 3 and 10, Article 2219, and Article 2229
and 2234 of Civil Code.

Petitioner would, however, belabor the fact that said damages were
awarded by the trial court on the basis of a finding that he is guilty
of forcible abduction with rape, despite the prior dismissal of the
complaint therefor filed by private respondent with the Pasay City
Fiscal's Office.
Generally, the basis of civil liability from crime is the fundamental
postulate of our law that every person criminally liable for a felony
is also civilly liable. In other words, criminal liability will give rise to
civil liability ex delicto only if the same felonious act or omission
results in damage or injury to another and is the direct and
proximate cause thereof. 11 Hence, extinction of the penal action
does not carry with it the extinction of civil liability unless the
extinction proceeds from a declaration in a final judgment that the
fact from which the civil might arise did not exist. 12
In the instant case, the dismissal of the complaint for forcible
abduction with rape was by mere resolution of the fiscal at the
preliminary investigation stage. There is no declaration in a final
judgment that the fact from which the civil case might arise did not
exist. Consequently, the dismissal did not in any way affect the
right of herein private respondent to institute a civil action arising
from the offense because such preliminary dismissal of the penal
action did not carry with it the extinction of the civil action.
The reason most often given for this holding is that the two
proceedings involved are not between the same parties.
Furthermore, it has long been emphasized, with continuing validity
up to now, that there are different rules as to the competency of
witnesses and the quantum of evidence in criminal and civil
proceedings. In a criminal action, the State must prove its case by
evidence which shows the guilt of the accused beyond reasonable
doubt, while in a civil action it is sufficient for the plaintiff to
sustain his cause by preponderance of evidence only. 13 Thus,
in Rillon, et al. vs. Rillon, 14 we stressed that it is not now
necessary that a criminal prosecution for rape be first instituted
and prosecuted to final judgment before a civil action based on said
offense in favor of the offended woman can likewise be instituted
and prosecuted to final judgment.

WHEREFORE, the petition is hereby DENIED for lack of merit, and

the assailed judgment and resolution are hereby AFFIRMED.
SO ORDERED.
G.R. No. 198780

Provincial Prosecutor to conduct an investigation and determine the

existence of a collusion. On October 2, 2007, the Assistant
Prosecutor complied and reported that she could not make a
determination for failure of both parties to appear at the scheduled
investigation.

October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
LIBERTY D. ALBIOS, Respondent.
DECISION

At the pre-trial, only Albios, her counsel and the prosecutor

appeared. Fringer did not attend the hearing despite being duly
notified of the schedule. After the pre-trial, hearing on the merits
ensued.
Ruling of the RTC
In its April 25, 2008 Decision,5 the RTC declared the marriage void
ab initio, the dispositive portion of which reads:

MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules
t of Court assailing the September 29, 2011 Decision1 of the Court
of Appeals (CA), in CA-G.R. CV No. 95414, which affirmed the April
25, 2008Decision2 of the Regional Trial Court, Imus, Cavite (RTC).
declaring the marriage of Daniel Lee Fringer (Fringer) and
respondent Liberty Albios (A/bios) as void from the beginning.

WHEREFORE, premises considered, judgment is hereby rendered

declaring the marriage of Liberty Albios and Daniel Lee Fringer as
void from the very beginning. As a necessary consequence of this
pronouncement, petitioner shall cease using the surname of
respondent as she never acquired any right over it and so as to
avoid a misimpression that she remains the wife of respondent.

The facts
On October 22, 2004, Fringer, an American citizen, and Albios were
married before Judge Ofelia I. Calo of the Metropolitan Trial Court,
Branch59, Mandaluyong City (MeTC), as evidenced by a Certificate
of Marriage with Register No. 2004-1588.3
On December 6, 2006, Albios filed with the RTC a petition for
declaration of nullity 4 of her marriage with Fringer. She alleged
that immediately after their marriage, they separated and never
lived as husband and wife because they never really had any
intention of entering into a married state or complying with any of
their essential marital obligations. She described their marriage as
one made in jest and, therefore, null and void ab initio .
Summons was served on Fringer but he did not file his answer. On
September 13, 2007, Albios filed a motion to set case for pre-trial
and to admit her pre-trial brief. The RTC ordered the Assistant

xxxx
SO ORDERED.6
The RTC was of the view that the parties married each other for
convenience only. Giving credence to the testimony of Albios, it
stated that she contracted Fringer to enter into a marriage to
enable her to acquire American citizenship; that in consideration
thereof, she agreed to pay him the sum of $2,000.00; that after
the ceremony, the parties went their separate ways; that Fringer
returned to the United States and never again communicated with
her; and that, in turn, she did not pay him the $2,000.00 because
he never processed her petition for citizenship. The RTC, thus,
ruled that when marriage was entered into for a purpose other
than the establishment of a conjugal and family life, such was a
farce and should not be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of

the Solicitor General (OSG), filed a motion for reconsideration. The
RTC issued the Order, 7 dated February 5, 2009, denying the
motion for want of merit. It explained that the marriage was
declared void because the parties failed to freely give their consent
to the marriage as they had no intention to be legally bound by it
and used it only as a means to acquire American citizenship in
consideration of $2,000.00.

The OSG also argues that the present case does not fall within the
concept of a marriage in jest. The parties here intentionally
consented to enter into a real and valid marriage, for if it were
otherwise, the purpose of Albios to acquire American citizenship
would be rendered futile.
On October 29, 2012, Albios filed her Comment9 to the petition,
reiterating her stand that her marriage was similar to a marriage
by way of jest and, therefore, void from the beginning.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA
In its assailed decision, dated September 29, 2011, the CA
affirmed the RTC ruling which found that the essential requisite of
consent was lacking. The CA stated that the parties clearly did not
understand the nature and consequence of getting married and
that their case was similar to a marriage in jest. It further
explained that the parties never intended to enter into the
marriage contract and never intended to live as husband and wife
or build a family. It concluded that their purpose was primarily for
personal gain, that is, for Albios to obtain foreign citizenship, and
for Fringer, the consideration of $2,000.00.
Hence, this petition.
Assignment of Error
THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT
HELD THAT A MARRIAGE CONTRACTED FOR THEPURPOSE OF
OBTAINING FOREIGN CITIZENSHIP WAS DONEIN JEST, HENCE,
LACKING IN THE ESSENTIAL ELEMENT OFCONSENT.8
The OSG argues that albeit the intention was for Albios to acquire
American citizenship and for Fringer to be paid $2,000.00, both
parties freely gave their consent to the marriage, as they
knowingly and willingly entered into that marriage and knew the
benefits and consequences of being bound by it. According to the
OSG, consent should be distinguished from motive, the latter being
inconsequential to the validity of marriage.

On March 22, 2013, the OSG filed its Reply10 reiterating its
arguments in its petition for review on certiorari.
Ruling of the Court
The resolution of this case hinges on this sole question of law: Is a
marriage, contracted for the sole purpose of acquiring American
citizenship in consideration of $2,000.00, void ab initio on the
ground of lack of consent?
The Court resolves in the negative.
Before the Court delves into its ruling, It shall first examine the
phenomenon of marriage fraud for the purposes of immigration.
Marriage Fraud in Immigration
The institution of marriage carries with it concomitant benefits. This
has led to the development of marriage fraud for the sole purpose
of availing of particular benefits. In the United States, marriages
where a couple marries only to achieve a particular purpose or
acquire specific benefits, have been referred to as "limited
purpose" marriages.11 A common limited purpose marriage is one
entered into solely for the legitimization of a child.12Another, which
is the subject of the present case, is for immigration purposes.
Immigration law is usually concerned with the intention of the
couple at the time of their marriage,13 and it attempts to filter out
those who use marriage solely to achieve immigration status.14

In 1975, the seminal case of Bark v. Immigration and

Naturalization Service,15 established the principal test for
determining the presence of marriage fraud in immigration cases.
It ruled that a "marriage is a sham if the bride and groom did not
intend to establish a life together at the time they were married.
"This standard was modified with the passage of the Immigration
Marriage Fraud Amendment of 1986 (IMFA), which now requires
the couple to instead demonstrate that the marriage was not
"entered into for the purpose of evading the immigration laws of
the United States." The focus, thus, shifted from determining the
intention to establish a life together, to determining the intention of
evading immigration laws.16 It must be noted, however, that this
standard is used purely for immigration purposes and, therefore,
does not purport to rule on the legal validity or existence of a
marriage.
The question that then arises is whether a marriage declared as a
sham or fraudulent for the limited purpose of immigration is also
legally void and in existent. The early cases on limited purpose
marriages in the United States made no definitive ruling. In 1946,
the notable case of
United States v. Rubenstein17 was promulgated, wherein in order to
allow an alien to stay in the country, the parties had agreed to
marry but not to live together and to obtain a divorce within six
months. The Court, through Judge Learned Hand, ruled that a
marriage to convert temporary into permanent permission to stay
in the country was not a marriage, there being no consent, to wit:
x x x But, that aside, Spitz and Sandler were never married at all.
Mutual consent is necessary to every contract; and no matter what
forms or ceremonies the parties may go through indicating the
contrary, they do not contract if they do not in fact assent, which
may always be proved. x x x Marriage is no exception to this rule:
a marriage in jest is not a marriage at all. x x x It is quite true that
a marriage without subsequent consummation will be valid; but if
the spouses agree to a marriage only for the sake of representing it
as such to the outside world and with the understanding that they
will put an end to it as soon as it has served its purpose to deceive,
they have never really agreed to be married at all. They must
assent to enter into the relation as it is ordinarily understood, and

it is not ordinarily understood as merely a pretence, or cover, to

deceive others.18
(Italics supplied)
On the other end of the spectrum is the 1969 case of Mpiliris v.
Hellenic Lines,19 which declared as valid a marriage entered into
solely for the husband to gain entry to the United States, stating
that a valid marriage could not be avoided "merely because the
marriage was entered into for a limited purpose."20 The 1980
immigration case of Matter of McKee,21 further recognized that a
fraudulent or sham marriage was intrinsically different from a non
subsisting one.
Nullifying these limited purpose marriages for lack of consent has,
therefore, been recognized as problematic. The problem being that
in order to obtain an immigration benefit, a legal marriage is first
necessary.22 At present, United States courts have generally denied
annulments involving" limited purpose" marriages where a couple
married only to achieve a particular purpose, and have upheld such
marriages as valid.23
The Court now turns to the case at hand.
Respondents marriage not void
In declaring the respondents marriage void, the RTC ruled that
when a marriage was entered into for a purpose other than the
establishment of a conjugal and family life, such was a farce and
should not be recognized from its inception. In its resolution
denying the OSGs motion for reconsideration, the RTC went on to
explain that the marriage was declared void because the parties
failed to freely give their consent to the marriage as they had no
intention to be legally bound by it and used it only as a means for
the respondent to acquire American citizenship. Agreeing with the
RTC, the CA ruled that the essential requisite of consent was
lacking. It held that the parties clearly did not understand the
nature and consequence of getting married. As in the Rubenstein
case, the CA found the marriage to be similar to a marriage in jest
considering that the parties only entered into the marriage for the

acquisition of American citizenship in exchange of $2,000.00. They

never intended to enter into a marriage contract and never
intended to live as husband and wife or build a family.
The CAs assailed decision was, therefore, grounded on the parties
supposed lack of consent. Under Article 2 of the Family Code,
consent is an essential requisite of marriage. Article 4 of the same
Code provides that the absence of any essential requisite shall
render a marriage void ab initio.
Under said Article 2, for consent to be valid, it must be (1) freely
given and (2) made in the presence of a solemnizing officer. A
"freely given" consent requires that the contracting parties willingly
and deliberately enter into the marriage. Consent must be real in
the sense that it is not vitiated nor rendered defective by any of
the vices of consent under Articles45 and 46 of the Family Code,
such as fraud, force, intimidation, and undue influence.24 Consent
must also be conscious or intelligent, in that the parties must be
capable of intelligently understanding the nature of, and both the
beneficial or unfavorable consequences of their act.25 Their
understanding should not be affected by insanity, intoxication,
drugs, or hypnotism.26

in jest is a pretended marriage, legal in form but entered into as a

joke, with no real intention of entering into the actual marriage
status, and with a clear understanding that the parties would not
be bound. The ceremony is not followed by any conduct indicating
a purpose to enter into such a relation.27 It is a pretended marriage
not intended to be real and with no intention to create any legal
ties whatsoever, hence, the absence of any genuine consent.
Marriages in jest are void ab initio, not for vitiated, defective, or
unintelligent consent, but for a complete absence of consent. There
is no genuine consent because the parties have absolutely no
intention of being bound in any way or for any purpose.
The respondents marriage is not at all analogous to a marriage in
jest.1wphi1 Albios and Fringer had an undeniable intention to be
bound in order to create the very bond necessary to allow the
respondent to acquire American citizenship. Only a genuine
consent to be married would allow them to further their objective,
considering that only a valid marriage can properly support an
application for citizenship. There was, thus, an apparent intention
to enter into the actual marriage status and to create a legal tie,
albeit for a limited purpose. Genuine consent was, therefore,
clearly present.

Based on the above, consent was not lacking between Albios and
Fringer. In fact, there was real consent because it was not vitiated
nor rendered defective by any vice of consent. Their consent was
also conscious and intelligent as they understood the nature and
the beneficial and inconvenient consequences of their marriage, as
nothing impaired their ability to do so. That their consent was
freely given is best evidenced by their conscious purpose of
acquiring American citizenship through marriage. Such plainly
demonstrates that they willingly and deliberately contracted the
marriage. There was a clear intention to enter into a real and valid
marriage so as to fully comply with the requirements of an
application for citizenship. There was a full and complete
understanding of the legal tie that would be created between them,
since it was that precise legal tie which was necessary to
accomplish their goal.

The avowed purpose of marriage under Article 1 of the Family Code

is for the couple to establish a conjugal and family life. The
possibility that the parties in a marriage might have no real
intention to establish a life together is, however, insufficient to
nullify a marriage freely entered into in accordance with law. The
same Article 1 provides that the nature, consequences, and
incidents of marriage are governed by law and not subject to
stipulation. A marriage may, thus, only be declared void or voidable
under the grounds provided by law. There is no law that declares a
marriage void if it is entered into for purposes other than what the
Constitution or law declares, such as the acquisition of foreign
citizenship. Therefore, so long as all the essential and formal
requisites prescribed by law are present, and it is not void or
voidable under the grounds provided by law, it shall be declared
valid.28

In ruling that Albios marriage was void for lack of consent, the CA
characterized such as akin to a marriage by way of jest. A marriage

Motives for entering into a marriage are varied and complex. The
State does not and cannot dictate on the kind of life that a couple

chooses to lead. Any attempt to regulate their lifestyle would go

into the realm of their right to privacy and would raise serious
constitutional questions.29 The right to marital privacy allows
married couples to structure their marriages in almost any way
they see fit, to live together or live apart, to have children or no
children, to love one another or not, and so on.30 Thus, marriages
entered into for other purposes, limited or otherwise, such as
convenience, companionship, money, status, and title, provided
that they comply with all the legal requisites,31 are equally valid.
Love, though the ideal consideration in a marriage contract, is not
the only valid cause for marriage. Other considerations, not
precluded by law, may validly support a marriage.
Although the Court views with disdain the respondents attempt to
utilize marriage for dishonest purposes, It cannot declare the
marriage void. Hence, though the respondents marriage may be
considered a sham or fraudulent for the purposes of immigration, it
is not void ab initio and continues to be valid and subsisting.
Neither can their marriage be considered voidable on the ground of
fraud under Article 45 (3) of the Family Code. Only the
circumstances listed under Article 46 of the same Code may
constitute fraud, namely, (1) non- disclosure of a previous
conv1ctwn involving moral turpitude; (2) concealment by the wife
of a pregnancy by another man; (3) concealment of a sexually
transmitted disease; and (4) concealment of drug addiction,
alcoholism, or homosexuality. No other misrepresentation or deceit
shall constitute fraud as a ground for an action to annul a
marriage. Entering into a marriage for the sole purpose of evading
immigration laws does not qualify under any of the listed
circumstances. Furthermore, under Article 47 (3), the ground of
fraud may only be brought by the injured or innocent party. In the
present case, there is no injured party because Albios and Fringer
both conspired to enter into the sham marriage.
Albios has indeed made a mockery of the sacred institution of
marriage. Allowing her marriage with Fringer to be declared void
would only further trivialize this inviolable institution. The Court
cannot declare such a marriage void in the event the parties fail to
qualify for immigration benefits, after they have availed of its
benefits, or simply have no further use for it. These unscrupulous

individuals cannot be allowed to use the courts as instruments in

their fraudulent schemes. Albios already misused a judicial
institution to enter into a marriage of convenience; she should not
be allowed to again abuse it to get herself out of an inconvenient
situation.
No less than our Constitution declares that marriage, as an in
violable social institution, is the foundation of the family and shall
be protected by the State.32 It must, therefore, be safeguarded
from the whims and caprices of the contracting parties. This Court
cannot leave the impression that marriage may easily be entered
into when it suits the needs of the parties, and just as easily
nullified when no longer needed.
WHEREFORE, the petition is GRANTED. The September 29, 2011
Decision of the Court of Appeals in CA-G.R. CV No. 95414 is
ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack
of merit.
SO ORDERED.
SPECIAL FIRST DIVISION
G.R. No. 166357

January 14, 2015

VALERIO E. KALAW, Petitioner,

vs.
MA. ELENA FERNANDEZ, Respondent.
RESOLUTION
BERSAMIN, J.:
In our decision promulgated on September 19, 2011,1 the Court
dismissed the complaint for declaration of nullity of the marriage of
the parties upon the following ratiocination, to wit:
The petition has no merit. The CA committed no reversible error in
setting aside the trial court's Decision for lack of legal and factual
basis.

xxxx
In the case at bar, petitioner failed to prove that his wife
(respondent) suffers from psychological incapacity. He presented
the testimonies of two supposed expert witnesses who concluded
that respondent is psychologically incapacitated, but the
conclusions of these witnesses were premised on the alleged acts
or behavior of respondent which had not been sufficiently proven.
Petitioners experts heavily relied on petitioners allegations of
respondents constant mahjong sessions, visits to the beauty
parlor, going out with friends, adultery, and neglect of their
children. Petitioners experts opined that respondents alleged
habits, when performed constantly to the detriment of quality and
quantity of time devoted to her duties as mother and wife,
constitute a psychological incapacity in the form of NPD.
But petitioners allegations, which served as the bases or
underlying premises of the conclusions of his experts, were not
actually proven. In fact, respondent presented contrary evidence
refuting these allegations of the petitioner.
For instance, petitioner alleged that respondent constantly played
mahjong and neglected their children as a result. Respondent
admittedly played mahjong, but it was not proven that she
engaged in mahjong so frequently that she neglected her duties as
a mother and a wife. Respondent refuted petitioners allegations
that she played four to five times a week. She maintained it was
only two to three times a week and always with the permission of
her husband and without abandoning her children at home. The
children corroborated this, saying that they were with their mother
when she played mahjong in their relatives home. Petitioner did
not present any proof, other than his own testimony, that the
mahjong sessions were so frequent that respondent neglected her
family. While he intimated that two of his sons repeated the second
grade, he was not able to link this episode to respondents
mahjong-playing. The least that could have been done was to
prove the frequency of respondents mahjong-playing during the
years when these two children were in second grade. This was not
done. Thus, while there is no dispute that respondent played
mahjong, its alleged debilitating frequency and adverse effect on
the children were not proven.

Also unproven was petitioners claim about respondents alleged

constant visits to the beauty parlor, going out with friends, and
obsessive need for attention from other men. No proof whatsoever
was presented to prove her visits to beauty salons orher frequent
partying with friends. Petitioner presented Mario (an alleged
companion of respondent during these nights-out) in order to
prove that respondent had affairs with other men, but Mario only
testified that respondent appeared to be dating other men. Even
assuming arguendothat petitioner was able to prove that
respondent had an extramarital affair with another man, that one
instance of sexual infidelity cannot, by itself, be equated with
obsessive need for attention from other men. Sexual infidelity per
seis a ground for legal separation, but it does not necessarily
constitute psychological incapacity.
Given the insufficiency of evidence that respondent actually
engaged in the behaviors described as constitutive of NPD, there is
no basis for concluding that she was indeed psychologically
incapacitated. Indeed, the totality of the evidence points to the
opposite conclusion. A fair assessment of the facts would show that
respondent was not totally remiss and incapable of appreciating
and performing her marital and parental duties. Not once did the
children state that they were neglected by their mother. On the
contrary, they narrated that she took care of them, was around
when they were sick, and cooked the food they like. It appears that
respondent made real efforts tosee and take care of her children
despite her estrangement from their father. There was no
testimony whatsoever that shows abandonment and neglect of
familial duties. While petitioner cites the fact that his two sons, Rio
and Miggy, both failed the second elementary level despite having
tutors, there is nothing to link their academic short comings to
Malyns actions.
After poring over the records of the case, the Court finds no factual
basis for the conclusion of psychological incapacity. There is no
error in the CAs reversal of the trial courts ruling that there was
psychological incapacity. The trial courts Decision merely
summarized the allegations, testimonies, and evidence of the
respective parties, but it did not actually assess the veracity of
these allegations, the credibility of the witnesses, and the weight of
the evidence. The trial court did not make factual findings which

can serve as bases for its legal conclusionof psychological

incapacity.
What transpired between the parties is acrimony and, perhaps,
infidelity, which may have constrained them from dedicating the
best of themselves to each other and to their children. There may
be grounds for legal separation, but certainly not psychological
incapacity that voids a marriage.
WHEREFORE, premises considered, the petition is DENIED. The
Court of Appeals May 27, 2004 Decision and its December 15,
2004 Resolution in CA-G.R. CV No. 64240 are AFFIRMED. SO
ORDERED.2
In his Motion for Reconsideration,3 the petitioner implores the Court
to take a thorough second look into what constitutes psychological
incapacity; to uphold the findings of the trial court as supported by
the testimonies of three expert witnesses; and consequently to find
that the respondent, if not both parties, were psychologically
incapacitated to perform their respective essential marital
obligation.
Upon an assiduous review of the records, we resolve to grant the
petitioners Motion for Reconsideration.
I
Psychological incapacity as a ground for the nullity of marriage
under Article 36 of the Family Code refers to a serious
psychological illness afflicting a party even prior to the celebration
of the marriage that is permanent as to deprive the party of the
awareness of the duties and responsibilities of the matrimonial
bond he or she was about to assume. Although the Family Code
has not defined the term psychological incapacity, the Court has
usually looked up its meaning by reviewing the deliberations of the
sessions of the Family Code Revision Committee that had drafted
the Family Code in order to gain an insight on the provision. It
appeared that the members of the Family Code Revision
Committee were not unanimous on the meaning, and in the end
they decided to adopt the provision "with less specificity than

expected" in order to have the law "allow some resiliency in its

application."4Illustrative of the "less specificity than expected" has
been the omission by the Family Code Revision Committee to give
any examples of psychological incapacity that would have limited
the applicability of the provision conformably with the principle of
ejusdem generis, because the Committee desired that the courts
should interpret the provision on a case-to-case basis, guided by
experience, the findings of experts and researchers in psychological
disciplines, and the decisions of church tribunals that had
persuasive effect by virtue of the provision itself having been taken
from the Canon Law.5
On the other hand, as the Court has observed in Santos v. Court of
Appeals,6 the deliberations of the Family Code Revision Committee
and the relevant materials on psychological incapacity as a ground
for the nullity of marriage have rendered it obvious that the term
psychological incapacity as used in Article 36 of the Family
Code"has not been meant to comprehend all such possible cases of
psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like
circumstances," and could not be taken and construed
independently of "but must stand in conjunction with, existing
precepts in our law on marriage." Thus correlated:x x x "psychological incapacity" should refer to no less than a
mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must
be assumed and discharged by the parties to the marriage which,
as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and
fidelity and render help and support. There is hardly any doubt that
the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability
to give meaning and significance to the marriage. This psychologic
condition must exist at the time the marriage is celebrated. The
law does not evidently envision, upon the other hand, an inability
of the spouse to have sexual relations with the other. This
conclusion is implicit under Article 54 of the Family Code which
considers children conceived prior to the judicial declaration of
nullity of the void marriage to be "legitimate."7

In time, in Republic v. Court of Appeals,8 the Court set some

guidelines for the interpretation and application of Article 36 of the
Family Code, as follows:
(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in
favor of the existence and continuation of the marriage and
against its dissolution and nullity. This is rooted in the fact
that both our Constitution and our laws cherish the validity
of marriage and unity of the family. Thus, our Constitution
devotes an entire Article on the Family, recognizing it "as
the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the
whim of the parties. Both the family and marriage are to be
"protected" by the state.
The Family Code echoes this constitutional edict on
marriage and the family and emphasizes their permanence,
inviolability and solidarity.
(2) The root cause of the psychological incapacity must be
(a) medically or clinically identified, (b) alleged in the
complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological not
physical, althoughits manifestations and/or symptoms may
be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically ill to
such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not
have given valid assumption thereof. Although no example
of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as
a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
(3) The incapacity must be proven tobe existing at "the time
of the celebration" of the marriage. The evidence must show
that the illness was existing when the parties exchanged

their "I dos." The manifestation of the illness need not be

perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same
sex. Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those
not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective
in diagnosing illnesses of children and prescribing medicine
to cure them but may not be psychologically capacitated to
procreate, bear and raise his/her own children as an
essential obligation of marriage.
(5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, "mild characteriological peculiarities, mood
changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as
downright incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal
or supervening disabling factor in the person, an adverse
integral element in the personality structure that effectively
incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.
(6) The essential marital obligations must be those
embraced by Articles 68 up to 71 of the Family Code as
regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their
children. Such non-complied marital obligation(s) must also
be stated in the petition, proven by evidence and included in
the text of the decision.
(7) Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given
great respect by our courts. It is clear that Article 36 was

taken by the Family Code Revision Committee from Canon

1095 of the New Code of Canon Law, which became
effective in 1983 and which provides:
"The following are incapable of contracting marriage: Those
who are unable to assume the essential obligations of
marriage due to causes of psychological nature."
Since the purpose of including suchprovision in our Family
Code is to harmonize our civil laws with the religious faith of
our people, it stands to reason that to achieve such
harmonization, great persuasive weight should be given to
decisions of such appellate tribunal. Ideally subject to our
law on evidence whatis decreed as canonically invalid
should also be decreed civilly void.
This is one instance where, inview of the evident source and
purpose of the Family Code provision, contemporaneous
religious interpretation is to be given persuasive effect.
Here, the State and the Church while remaining
independent, separate and apart from each other shall
walk together in synodal cadence towards the same goal of
protecting and cherishing marriage and the family as the
inviolable base of the nation.
(8) The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the
state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the
petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within
fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor General
shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.9
The foregoing guidelines have turned out to be rigid, such that
their application to every instance practically condemned the

petitions for declaration of nullity to the fate of certain rejection.

But Article 36 of the Family Code must not be so strictly and too
literally read and applied given the clear intendment of the drafters
to adopt its enacted version of "less specificity" obviously to enable
"some resiliency in its application." Instead, every court should
approach the issue of nullity "not on the basis of a priori
assumptions, predilections or generalizations, but according to its
own facts" in recognition of the verity that no case would be on "all
fours" with the next one in the field of psychological incapacity as a
ground for the nullity of marriage; hence, every "trial judge must
take pains in examining the factual milieu and the appellate court
must, asmuch as possible, avoid substituting its own judgment for
that of the trial court."10
In the task of ascertaining the presence of psychological incapacity
as a ground for the nullity of marriage, the courts, which are
concededly not endowed with expertise in the field of psychology,
must of necessity rely on the opinions of experts in order to inform
themselves on the matter, and thus enable themselves to arrive at
an intelligent and judicious judgment. Indeed, the conditions for
the malady of being grave, antecedent and incurable demand the
in-depth diagnosis by experts.11
II
The findings of the Regional Trial Court (RTC) on the existence or
non-existence of a partys psychological incapacity should be final
and binding for as long as such findings and evaluation of the
testimonies of witnesses and other evidence are not shown to be
clearly and manifestly erroneous.12 In every situation where the
findings of the trial court are sufficiently supported by the facts and
evidence presented during trial, the appellate court should restrain
itself from substituting its own judgment.13 It is not enough reason
to ignore the findings and evaluation by the trial court and
substitute our own as an appellate tribunal only because the
Constitution and the Family Code regard marriage as an inviolable
social institution. We have to stress that the fulfilment of the
constitutional mandate for the State to protect marriage as an
inviolable social institution14 only relates to a valid marriage. No
protection can be accordedto a marriage that is null and void ab
initio, because such a marriage has no legal existence.15

In declaring a marriage null and void ab initio, therefore, the

Courts really assiduously defend and promote the sanctity of
marriage as an inviolable social institution. The foundation of our
society is thereby made all the more strong and solid.

nature of Article 36 of the Family Code the courts, "despite having

the primary task and burden of decision-making, must not discount
but, instead, must consider as decisive evidence the expert opinion
on the psychological and mental temperaments of the parties."18

Here, the findings and evaluation by the RTC as the trial court
deserved credence because it was in the better position to view
and examine the demeanor of the witnesses while they were
testifying.16 The position and role of the trial judge in the
appreciation of the evidence showing the psychological incapacity
were not to be downplayed but should be accorded due importance
and respect.

The expert opinion of Dr. Gates was ultimately necessary herein to

enable the trial court to properly determine the issue of
psychological incapacity of the respondent (if not alsoof the
petitioner). Consequently, the lack of personal examination and
interview of the person diagnosed with personality disorder, like the
respondent, did not per se invalidate the findings of the experts.
The Court has stressed in Marcos v. Marcos19 that there is no
requirement for one to bedeclared psychologically incapacitated to
be personally examined by a physician, because what is important
is the presence of evidence that adequately establishes the partys
psychological incapacity. Hence, "if the totality of evidence
presented is enough to sustain a finding of psychological incapacity,
then actual medical examination of the person concerned need not
be resorted to."20

Yet, in the September 19, 2011 decision, the Court brushed aside
the opinions tendered by Dr. Cristina Gates,a psychologist, and Fr.
Gerard Healy on the ground that their conclusions were solely
based on the petitioners version of the events.
After a long and hard second look, we consider it improper and
unwarranted to give to such expert opinions a merely generalized
consideration and treatment, least of all to dismiss their value as
inadequate basis for the declaration of the nullity of the marriage.
Instead, we hold that said experts sufficiently and competently
described the psychological incapacity of the respondent within the
standards of Article 36 of the Family Code. We uphold the
conclusions reached by the two expert witnesses because they
were largely drawn from the case records and affidavits, and
should not anymore be disputed after the RTC itself had accepted
the veracity of the petitioners factual premises.17
Admittedly, Dr. Gates based her findings on the transcript of the
petitioners testimony, as well as on her interviews of the petitioner,
his sister Trinidad, and his son Miguel. Although her findings would
seem to be unilateral under such circumstances, it was not right to
disregard the findings on that basis alone. After all, her expert
opinion took into consideration other factors extant in the records,
including the own opinions of another expert who had analyzed the
issue from the side of the respondent herself. Moreover, it is
already settled that the courts must accord weight to expert
testimony on the psychological and mental state of the parties in
cases for the declaration of the nullityof marriages, for by the very

Verily, the totality of the evidence must show a link, medical or the
like, between the acts that manifest psychological incapacity and
the psychological disorder itself. If other evidence showing that a
certain condition could possibly result from an assumed state of
facts existed in the record, the expert opinion should be admissible
and be weighed as an aid for the court in interpreting such other
evidence on the causation.21 Indeed, an expert opinion on
psychological incapacity should be considered as conjectural or
speculative and without any probative value only in the absence of
other evidence to establish causation. The experts findings under
such circumstances would not constitute hearsay that would justify
their exclusion as evidence.22 This is so, considering that any ruling
that brands the scientific and technical procedure adopted by Dr.
Gates as weakened by bias should be eschewed if it was clear that
her psychiatric evaluation had been based on the parties
upbringing and psychodynamics.23 In that context, Dr. Gates
expertopinion should be considered not in isolation but along with
the other evidence presented here.
Moreover, in its determination of the issue of psychological
incapacity, the trial court was expectedto compare the expert

findings and opinion of Dr. Natividad Dayan, the respondents own

witness, and those of Dr. Gates.

obtained very high score and these are on the score of

dependency, narcissism and compulsion.

In her Psychological Evaluation Report,24 Dr. Dayan impressed that

the respondent had "compulsive and dependent tendencies" to the
extent of being "relationship dependent." Based from the
respondents psychological data, Dr. Dayan indicated that:

Q : Would you please tell us again, Madam Witness, what is the

acceptable score?

In her relationship with people, Malyne is likely to be reserved and

seemingly detached in her ways. Although she likes to be around
people, she may keep her emotional distance. She, too, values her
relationship but she may not be that demonstrative of her
affections. Intimacy may be quite difficult for her since she tries to
maintain a certain distance to minimize opportunities for rejection.
To others, Malyne may appear, critical and demanding in her ways.
She can be assertive when opinions contrary to those of her own
are expressed. And yet, she is apt to be a dependent person. At a
less conscious level, Malyne fears that others will abandon her.
Malyne, who always felt a bit lonely, placed an enormous value on
having significant others would depend on most times.
xxxx
But the minute she started to care, she became a different person
clingy and immature, doubting his love, constantly demanding
reassurance that she was the most important person in his life. She
became relationship-dependent.25
Dr. Dayan was able to clearly interpret the results of the Millon
Clinical Multiaxial Inventory test26 conducted on the respondent,
observing that the respondent obtained high scores on
dependency, narcissism and compulsiveness, to wit:
Atty. Bretania
Q : How about this Millon Clinical Multiaxial Inventory?
A : Sir, the cut of the score which is supposed to be normal is 73
percental round and there are several scores wherein Mrs. Kalaw

A : When your score is 73 and above, that means that it is very

significant. So, if 72 and below, it will be considered as acceptable.
Q : In what area did Mrs. Kalaw obtain high score?
A : Under dependency, her score is 78; under narcissism, is 79;
under compulsiveness, it is 84.27
It is notable that Dr. Dayans findings did not contradict but
corroborated the findings of Dr. Gates to the effect that the
respondent had been afflicted with Narcissistic Personality Disorder
as well as with AntiSocial Disorder. Dr. Gates relevantly testified:
ATTY. GONONG
Q : Could you please repeat for clarity. I myself is [sic] not quite
familiar with psychology terms. So, more or less, could you please
tell me in more laymans terms how you arrived at your findings
that the respondent is self-centered or narcissistic?
A : I moved into this particular conclusion. Basically, if you ask
about her childhood background, her fatherdied in a vehicular
accident when she was in her teens and thereafter she was
prompted to look for a job to partly assume the breadwinners role
in her family. I gathered that paternal grandmother partly took
care of her and her siblings against the fact that her own mother
was unable to carry out her respective duties and responsibilities
towards Elena Fernandez and her siblings considering that the
husband died prematurely. And there was an indication that Elena
Fernandez on several occasions ever told petitioner that he cannot
blame her for being negligent as a mother because she herself
never experienced the care and affection of her own mother
herself. So, there is a precedent in her background, in her
childhood, and indeed this seems to indicate a particular script, we

call it in psychology a script, the tendency to repeat somekind of

experience or the lack of care, lets say some kind of deprivation,
there is a tendency to sustain it even on to your own life when you
have your own family. I did interview the son because I was not
satisfied with what I gathered from both Trinidad and Valerio and
even though as a young son at the age of fourteen already
expressed the he could not see, according to the child, the sincerity
of maternal care on the part of Elena and that he preferred to live
with the father actually.

so because the concept of psychological incapacity adopted under

Article 36 of the Family Code was derived from Canon Law.

Q : Taking these all out, you came to the conclusion that

respondent is self-centered and narcissistic?

Q : Now, respondent Ma. Elena Fernandez claims that she is not

psychologically incapacitated. On the facts as you read it based on
the records of this case before this Honorable Court, what can you
say to that claim of respondent?

A : Actually respondent has some needs which tempts [sic] from a

deprived childhood and she is still insearch of this. In her several
boyfriends, it seems that she would jump from one boyfriend to
another. There is this need for attention, this need for love on other
people.
Q : And that led you to conclude?
A : And therefore I concluded that she is self-centered to the point
of neglecting her duty as a wife and as a mother.28
The probative force of the testimony of an expert does not lie in a
mere statement of her theory or opinion, but rather in the
assistance that she can render to the courts in showing the facts
that serve as a basis for her criterion and the reasons upon which
the logic of her conclusion is founded.29 Hence, we should weigh
and consider the probative value of the findings of the expert
witnesses vis--vis the other evidence available.
The other expert of the petitioner was Fr. Healy, a canon law
expert, an advocate before the Manila Archdiocese and Matrimonial
Tribunal, and a consultant of the Family Code Revision Committee.
Regarding Father Healys expert testimony, we have once declared
that judicial understanding of psychological incapacity could be
informed by evolving standards, taking into account the particulars
of each case, by current trends in psychological and even by
canonical thought, and by experience.30 It is prudent for us to do

Father Healy tendered his opinion onwhether or not the

respondents level of immaturity and irresponsibility with regard to
her own children and to her husband constituted psychological
incapacity, testifying thusly:
ATTY. MADRID

A : I would say it is a clear case of psychological incapacity

because of her immaturity and traumatic irresponsibility with
regards to her own children.
Q : So what you are saying is that, the claim of respondent that
she is not psychologically incapacitated is not true?
A : Yes. It should be rejected.
Q : Why do you say so?
A : Because of what she has manifested in her whole lifestyle,
inconsistent pattern has been manifested running through their life
made a doubt that this is immaturity and irresponsibility because
her family was dysfunctional and then her being a model in her
early life and being the bread winner of the family put her in an
unusual position of prominence and then begun to inflate her own
ego and she begun to concentrate her own beauty and that
became an obsession and that led to her few responsibility of
subordinating to her children to this lifestyle that she had
embraced.
Q : You only mentioned her relationship with the children, the
impact. How about the impact on the relationship of the
respondent with her husband?

A : Also the same thing. It just did notfit in to her lifestyle to fulfill
her obligation to her husband and toher children. She had her own
priorities, her beauty and her going out and her mahjong and
associating with friends. They were the priorities of her life.

A : I would say its grave from the actual cases of neglect of her
family and that causes serious obligations which she has ignored
and not properly esteemed because she is so concern[ed] with
herself in her own lifestyle. Very serious.

Q : And what you are saying is that, her family was merely
secondary?

Q : And do you have an opinion whether or not this narcissism

afflicting respondent was already existing at the time or marriage
or even thereafter?

A : Secondary.
xxxx
Q : And how does that relate to psychological incapacity?
A : That she could not appreciate or absorb or fulfill the obligations
of marriage which everybody takes for granted. The concentration
on the husband and the children before everything else would be
subordinated to the marriage withher. Its the other way around.
Her beauty, her going out, her beauty parlor and her mahjong,
they were their priorities in her life.
Q : And in medical or clinical parlance, what specifically do you call
this?
A : That is narcissism where the person falls in love with himself is
from a myt[h]ical case in Roman history.
Q : Could you please define tous what narcissism is?
A : Its a self-love, falling in love with oneself to make up for the
loss of a dear friend as in the case of Narcissus, the myth, and
then that became known in clinical terminology as narcissism.
When a person is so concern[ed] with her own beauty and
prolonging and protecting it, then it becomes the top priority in her
life.

A : When you get married you dont develop narcissism or

psychological incapacity. You bring with you into the marriage and
then it becomes manifested because in marriage you accept these
responsibilities. And now you show that you dont accept them and
you are not capable of fulfilling them and you dont care about
them.
Q : Is this narcissism, Fr. Healy, acquired by accident or congenital
or what?
A : No. The lifestyle generates it. Once you become a model and
still the family was depended [sic] upon her and she was a model
at Hyatt and then Rustans, it began to inflate her ego so much
that this became the top priority in her life. Its her lifestyle.
Q : What you are saying is that, the narcissism of respondent even
expanded after the marriage?
A : That could have expanded because it became very obvious
after the marriage because she was neglecting such fundamental
obligations.
Q : And how about the matter of curability, is this medically or
clinically curable, this narcissism that you mentioned?

xxxx
Q : And you stated that circumstances that prove this narcissism.
How do you consider this narcissism afflicting respondent, it is
grave, slight or .?

A : Lets say, it was manifested for so many years in her life. It was
found in her family background situation. Say, almost for sure
would be incurable now.

Q : What specific background are you referring to?

A : Well, the fact when the father died and she was the
breadwinner and her beauty was so important to give in her job
and money and influence and so on. But this is a very unusual
situation for a young girl and her position in the family was exalted
in a very very unusual manner and therefore she had that pressure
on her and in her accepting the pressure, in going along with it and
putting it in top priority.31
Given his credentials and conceded expertise in Canon Law, Father
Healys opinions and findings commanded respect. The contribution
that his opinions and findings could add to the judicial
determination of the parties psychological incapacity was
substantive and instructive. He could thereby inform the trial court
on the degrees of the malady that would warrant the nullity of
marriage, and he could as well thereby provideto the trial court an
analytical insight upon a subject as esoteric to the courts as
psychological incapacity has been. We could not justly disregard his
opinions and findings. Appreciating them together with those of Dr.
Gates and Dr. Dayan would advance more the cause of justice. The
Court observed in Ngo Te v. Yu-Te:32
By the very nature of Article 36, courts, despite having the primary
task and burden of decision-making, must not discount but,
instead, must consider as decisive evidence the expert opinion on
the psychological and mental temperaments of the parties.
Justice Romero explained this in Molina, as follows:
Furthermore, and equally significant, the professional opinion of a
psychological expert became increasingly important in such cases.
Data about the person's entire life, both before and after the
ceremony, were presented to these experts and they were asked
togive professional opinions about a party's mental capacity at the
time of the wedding. These opinions were rarely challenged and
tended to be accepted as decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this
area did not amount to the addition of new grounds for annulment,

but rather was an accommodation by the Church to the advances

made in psychology during the past decades. There was now the
expertise to provide the all-important connecting link between a
marriage breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage
from that of a legal contract to that of a covenant. The result of
this was that it could no longer be assumed in annulment cases
that a person who could intellectually understand the concept of
marriage could necessarily give valid consent to marry. The ability
to both grasp and assume the real obligations of a mature, lifelong
commitmentare now considered a necessary prerequisite to valid
matrimonial consent.
Rotal decisions continued applying the concept of incipient
psychological incapacity, "not only to sexual anomalies but to all
kinds ofpersonality disorders that incapacitate a spouse or both
spouses from assuming or carrying out the essential obligations of
marriage. For marriage . . . is not merely cohabitation or the right
of the spouses to each other's body for hetero sexual acts, but is,
in its totality the right to the community of the whole of life; i.e.,
the right to a developing lifelong relationship. Rotal decisions since
1973 have refined the meaning of psychological or psychic capacity
for marriage as presupposing the development of an adult
personality; as meaning the capacity of the spouses to give
themselves to each other and to accept the other as a distinct
person; that the spouses must be `other oriented' since the
obligations of marriage are rooted in a self-giving love; and that
the spouses must have the capacity for interpersonal relationship
because marriage is more than just a physical reality but involves a
true intertwining of personalities. The fulfillment of the obligations
ofmarriage depends, according to Church decisions, on the
strength of this interpersonal relationship. A serious incapacity for
interpersonal sharing and support is held to impair the relationship
and consequently, the ability to fulfill the essential marital
obligations. The marital capacity of one spouse is not considered in
isolation but in reference to the fundamental relationship to the
other spouse.
Fr. Green, in an article in Catholic Mind, lists six elements
necessary to the mature marital relationship:

"The courts consider the following elements crucial to the marital

commitment: (1) a permanent and faithful commitment to the
marriage partner; (2) openness to children and partner; (3)
stability; (4) emotional maturity; (5) financial responsibility; (6) an
ability to cope with the ordinary stresses and strains of marriage,
etc."
Fr. Green goes on to speak about some of the psychological
conditions that might lead to the failure of a marriage:
"At stake is a type of constitutional impairment precluding conjugal
communion even with the best intentions of the parties. Among the
psychic factors possibly giving rise to his orher inability to fulfill
marital obligations are the following: (1) antisocial personality with
its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of
sexual choice; (3) the inadequate personality where personal
responses consistently fall short of reasonable expectations.
xxxx
The psychological grounds are the best approach for anyone who
doubts whether he or she has a case for an annulment on any
other terms. A situation that does not fit into any of the more
traditional categories often fits very easily into the psychological
category.
As new as the psychological grounds are, experts are already
detecting a shift in their use. Whereas originally the emphasis was
on the parties' inability to exercise proper judgment at the time of
the marriage (lack of due discretion), recent cases seem to be
concentrating on the parties' incapacity to assume or carry out
their responsibilities and obligations as promised(lack of due
competence). An advantage to using the ground of lack of due
competence is that at the time the marriage was entered into civil
divorce and breakup of the family almost always is proof of
someone's failure to carry out marital responsibilities as promisedat
the time the marriage was entered into."

Hernandez v. Court of Appeals emphasizes the importance of

presenting expert testimony to establish the precise cause of a
party's psychological incapacity, and to show that it existed at the
inception of the marriage. And as Marcos v. Marcosasserts, there is
no requirement that the person to be declared psychologically
incapacitated be personally examined by a physician, if the
totalityof evidence presented is enough to sustain a finding of
psychological incapacity. Verily, the evidence must show a link,
medical or the like, between the acts that manifest psychological
incapacity and the psychological disorder itself.
This is not to mention, but we mention nevertheless for emphasis,
that the presentation of expert proof presupposes a thorough and
in-depth assessment of the parties by the psychologist or expert,
for a conclusive diagnosis of a grave, severe and incurable
presence of psychological incapacity.33
Ngo Tealso emphasized that in light of the unintended
consequences of strictly applying the standards set in Molina,34 the
courts should consider the totality of evidence in adjudicating
petitions for declaration of nullity of marriage under Article 36 of
the Family Code, viz:
The resiliency with which the concept should be applied and the
case-to-case basis by which the provision should be interpreted, as
so intended by its framers, had, somehow, been rendered
ineffectual by the imposition of a set of strict standards in Molina,
thus:
xxxx
Noteworthy is that in Molina, while the majority of the Courts
membership concurred in the ponencia of then Associate Justice
(later Chief Justice) Artemio V. Panganiban, three justices
concurred "in the result" and another three--including, as
aforesaid, Justice Romero--took pains to compose their individual
separate opinions. Then Justice Teodoro R. Padilla even emphasized
that "each case must be judged, not on the basis of a priori
assumptions, predilections or generalizations, but according to its
own facts. In the field of psychological incapacity as a ground for

annulment of marriage, it is trite to say that no case is on all fours

with another case. The trial judge must take pains in examining the
factual milieu and the appellate court must, as much as possible,
avoid substituting its own judgment for that of the trial court."
Predictably, however, in resolving subsequent cases, the Court has
applied the aforesaid standards, without too much regard for the
law's clear intention that each case is to be treated differently, as
"courts should interpret the provision on a case-to-case basis;
guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals."
In hindsight, it may have been inappropriate for the Court to
impose a rigid set of rules, as the one in Molina, in resolving all
cases of psychological incapacity. Understandably, the Court was
then alarmed by the deluge of petitions for the dissolution of
marital bonds, and was sensitive to the OSG's exaggeration of
Article 36 as the "most liberal divorce procedure in the world." The
unintended consequences of Molina, however, has taken its toll on
people who have to live with deviant behavior, moral insanity and
sociopathic personality anomaly, which, like termites, consume
little by little the very foundation of their families, our basic social
institutions. Far fromwhat was intended by the Court, Molina has
become a strait-jacket, forcing all sizes to fit into and be bound by
it. Wittingly or unwittingly, the Court, in conveniently applying
Molina, has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, tocontinuously debase
and pervert the sanctity of marriage. Ironically, the Roman Rota
has annulled marriages on account of the personality disorders of
the said individuals.
The Court need not worry about the possible abuse of the remedy
provided by Article 36, for there are ample safeguards against this
contingency, among which is the intervention by the State, through
the public prosecutor, to guard against collusion between the
parties and/or fabrication of evidence. The Court should rather be
alarmed by the rising number of cases involving marital abuse,
child abuse, domestic violence and incestuous rape.
In dissolving marital bonds on account of either party's
psychological incapacity, the Court isnot demolishing the

foundation of families, but it is actually protecting the sanctity of

marriage, because it refuses to allow a person afflicted with a
psychological disorder, who cannot comply with or assume the
essential marital obligations, from remaining in that sacred bond. It
may be stressed that the infliction of physical violence,
constitutional indolence or laziness, drug dependence or addiction,
and psycho sexual anomaly are manifestations of a sociopathic
personality anomaly. Let itbe noted that in Article 36, there is no
marriage to speak of in the first place, as the same is void from the
very beginning. To indulge in imagery, the declaration of nullity
under Article 36 will simply provide a decent burial to a stillborn
marriage.
xxxx
Lest it be misunderstood, we are not suggesting the abandonment
of Molina in this case. We simply declare that, as aptly stated by
Justice Dante O. Tinga in Antonio v. Reyes, there is need to
emphasize other perspectives as well which should govern the
disposition of petitions for declaration of nullity under Article 36. At
the risk of being redundant, we reiterate once more the principle
that each case must be judged, not on the basis of a priori
assumptions, predilections or generalizations but according to its
own facts. And, to repeat for emphasis, courts should interpret the
provision on a case-to-case basis; guided by experience, the
findings of experts and researchers in psychological disciplines, and
by decisions of church tribunals.35
III
In the decision of September 19, 2011,the Court declared as
follows:
Respondent admittedly played mahjong, but it was not proven that
she engaged in mahjong so frequently that she neglected her
duties as a mother and a wife. Respondent refuted petitioners
allegations that she played four to five times a week. She
maintained it was only two to three times a week and always
withthe permission of her husband and without abandoning her
children at home. The children corroborated this, saying that

theywere with their mother when she played mahjong in their

relatives home.Petitioner did not present any proof, other than his
own testimony, that the mahjong sessions were so frequent that
respondent neglected her family. While he intimated that two of his
sons repeated the second grade, he was not able to link this
episode to respondents mahjong-playing. The least that could
have been done was to prove the frequency of respondents
mahjong-playing during the years when these two children were in
second grade. This was not done. Thus, while there is no dispute
that respondent played mahjong, its alleged debilitating frequency
and adverse effect on the children were not proven.36 (Emphasis
supplied)
The frequency of the respondents mahjong playing should not
have delimited our determination of the presence or absence of
psychological incapacity. Instead, the determinant should be her
obvious failure to fully appreciate the duties and responsibilities of
parenthood at the time she made her marital vows. Had she fully
appreciated such duties and responsibilities, she would have known
that bringing along her children of very tender ages to her mahjong
sessions would expose them to a culture of gambling and other
vices that would erode their moral fiber.
Nonetheless, the long-term effects of the respondents obsessive
mahjong playing surely impacted on her family life, particularly on
her very young children. We do find to be revealing the disclosures
made by Valerio Teodoro Kalaw37 the parties eldest son in his
deposition, whereby the son confirmed the claim of his father that
his mother had been hooked on playing mahjong, viz:
ATTY. PISON: From the time before your parents separation, do
you remember any habit or activity or practice which your mother
engaged in, before the separation?
WITNESS: Yeah, habit? She was a heavy smoker and she likes to
play mahjong a lot, and I cant remember.
xxxx

ATTY. PISON: You said that your mother played mahjong

frequently. How frequent, do you remember?
WITNESS : Not really, but it was a lot. Not actually, I cant, I
cant
ATTY. PISON: How long would she stay playing mahjong say one
session?
WITNESS : Really long cuzwe would go to my aunts house in
White Plains and I think we would get there by lunch then leave,
we fall asleep. I think it was like one in the morning. ATTY. PISON:
You, you went there? She brought you?
WITNESS : Yeah, to play withmy cousins, yeah and my brothers &
sisters.
ATTY. PISON: Were you brought all the time?
WITNESS: Yeah, almost all the time but sometimes, I guess shed
go out by herself.38
The fact that the respondent brought her children with her to her
mahjong sessions did not only point to her neglect of parental
duties, but also manifested her tendency to expose them to a
culture of gambling. Her willfully exposing her children to the
culture of gambling on every occasion of her mahjong sessions was
a very grave and serious act of subordinating their needs for
parenting to the gratification of her own personal and escapist
desires. This was the observation of Father Healy himself. In that
regard, Dr. Gates and Dr. Dayan both explained that the current
psychological state of the respondent had been rooted on her own
childhood experience.
The respondent revealed her wanton disregard for her childrens
moral and mental development. This disregard violated her duty as
a parent to safeguard and protect her children, as expressly
defined under Article 209 and Article 220 of the Family Code, to
wit:

Article 209. Pursuant to the natural right and duty of parents over
the person and property of their unemancipated children, parental
authority and responsibility shall includethe caring for and rearing
of such children for civic consciousness and efficiency and the
development of their moral, mental and physical character and
well-being.
Article 220. The parents and those exercising parental authority
shall have with respect to their unemancipated children or wards
the following rights and duties:
(1) To keep them in their company, to support, educate and
instruct them by right precept and good example, and to
provide for their upbringing in keeping with their means;
(2) x x x x

The September 19, 2011 decision did not properly take into
consideration the findings of the RTC to the effect that both the
petitioner and the respondent had been psychologically
incapacitated, and thus could not assume the essential obligations
of marriage. The RTC would not have found so without the
allegation to that effect by the respondent in her answer,39 whereby
she averred that it was not she but the petitioner who had suffered
from psychological incapacity.
The allegation of the petitionerspsychological incapacity was
substantiated by Dr. Dayan, as follows:
ATTY. BRETAA:
Q : You stated earlier that both parties were behaviorally
immature?

(3) To provide them with moral and spiritual guidance,

inculcate in them honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their interest in civic
affairs, and inspire in them compliance with the duties of
citizenship;

A : Yes, sir.

(4) To enhance, protect, preserve and maintain their

physical and mental health at all times;

Q : What is your basis for your statement that respondent was

behaviorally immature?

(5) To furnish them with good and wholesome educational

materials, supervise their activities, recreation and
association with others, protect them from bad company,
and prevent them from acquiring habits detrimental to their
health, studies and morals;

A : Sir, for the reason that even before the marriage Malyn had
noticed already some of those short temper of the petitioner but
she was very much in love and so she lived-in with him and even
the time that they were together, that they were living in, she also
had noticed some of his psychological deficits if we may say so. But
as I said, because she is also dependent and she was one who
determined to make the relationship work, she was denying even
those kinds of problems that she had seen.

(6) x x x x

Q : And that the marriage was a mistake?

A : Yes, sir.

(7) x x x x
(8) x x x x
(9) x x x x (emphasis supplied)

Q : To make it clear, Madam witness, Im talking here of the

petitioner, Mr. Kalaw. What led you to conclude that Mr. Kalaw was
behaviorally immature?

A : I think he also mentioned that his concept of marriage was not

duly stable then. He was not really thinking of marriage except that
his wife got pregnant and so he thought that he had to marry her.
And even that time he was not also a monogamous person.
Q : Are you saying, Madam Witness, that ultimately the decision to
marry lied on the petitioner? A : I think so, Sir.
Q : Now, in your report, Madam Witness, you mentioned here that
the petitioner admitted to you that in his younger years he was
often out seeking other women. Im referring specifically to page
18. He also admitted to you that the thought of commitment
scared him, the petitioner. Now, given these admissions by
petitioner to you, my questions is, is it possible for such a person
to enter into marriage despite this fear of commitment and given
his admission that he was a womanizer? Is it possible for this
person to stop his womanizing ways during the marriage?
A : Sir, its difficult.
Q : It would be difficult for that person?
A : Yes, Sir.
Q : What is the probability of this person giving up his womanizing
after marriage?
A : Sir, I would say the probability of his giving up is almost only
20%.
Q : So, it is entirely possible that the respondent womanized during
his marriage with the respondent?
A : Yes, Sir.
Q : What is the bearing of this fearof commitment on the part of
the petitioner insofar as his psychological capacity to perform his
duties as a husband is concerned?

A : Sir, it would impair his ability to have sexual integrity and also
to be fully committed to the role of husband to Malyn.
Q : Madam Witness, you never directly answered my question on
whether the petitioner was psychologically incapacitated to perform
his duty as a husband. You only said that the petitioner was
behaviorally immature and that the marriage was a mistake. Now,
may I asked [sic] you that question again and request you to
answer that directly?
A : Sir, he is psychologically incapacitated.40
Although the petitioner, as the plaintiff, carried the burden to prove
the nullity of the marriage, the respondent, as the defendant
spouse, could establish the psychological incapacity of her husband
because she raised the matter in her answer. The courts are
justified in declaring a marriage null and void under Article 36 of
the Family Code regardless of whether it is the petitioner or the
respondent who imputes the psychological incapacity to the other
as long as the imputation is fully substantiated with proof. Indeed,
psychological incapacity may exist in one party alone or in both of
them, and if psychological incapacity of either or both is
established, the marriage has to be deemed null and void.
More than twenty (20) years had passed since the parties parted
ways. By now, they must have already accepted and come to terms
with the awful truth that their marriage, assuming it existed in the
eyes of the law, was already beyond repair. Both parties had
inflicted so much damage not only to themselves, but also to the
lives and psyche of their own children. It would be a greater
injustice should we insist on still recognizing their void marriage,
and then force them and their children to endure some more
damage. This was the very same injustice that Justice Romero
decried in her erudite dissenting opinion in Santos v. Court of
Appeals:41
It would be great injustice, I believe, to petitioner for this Court to
give a much too restrictive interpretation of the law and compel the
petitioner to continue to be married to a wife who for purposes of

fulfilling her marital duties has, for all practical purposes, ceased to
exist.
Besides, there are public policy considerations involved in the ruling
the Court makes today.1wphi1 It is not, in effect, directly or
indirectly, facilitating the transformation of petitioner into a
"habitual tryster" or one forced to maintain illicit relations with
another woman or women with emerging problems of illegitimate
children, simply because he is denied by private respondent, his
wife, the companionship and conjugal love which he has sought
from her and towhich he is legally entitled?
I do not go as far as to suggest that Art. 36 of the Family Code is a
sanction for absolute divorce but I submit that we should not
constrict it to non-recognition of its evident purpose and thus deny
to one like petitioner, an opportunity to turn a new leaf in his life by
declaring his marriage a nullity by reason of his wifes psychological
incapacity to perform an essential marital obligation. In this case,
the marriage never existed from the beginning because the
respondent was afflicted with psychological incapacity at and prior
to the time of the marriage. Hence, the Court should not hesitate
to declare the nullity of the marriage between the parties.
To stress, our mandate to protect the inviolability of marriage as
the basic foundation of our society does not preclude striking down
a marital union that is "ill-equipped to promote family life," thus:
Now is also the opportune time to comment on another common
legal guide utilized in the adjudication of petitions for declaration of
nullity in the adjudication of petitions for declaration of nullity
under Article 36. All too frequently, this Court and lower courts, in
denying petitions of the kind, have favorably cited Sections 1 and
2, Article XV of the Constitution, which respectively state that
"[t]he State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development[t]," and that [m]arriage, as an
inviolable social institution, is the foundation of the family and shall
be protected by the State." These provisions highlight the
importance of the family and the constitutional protection accorded
to the institution of marriage.

But the Constitution itself does not establish the parameters of

state protection to marriage as a social institution and the
foundation of the family. It remains the province of the legislature
to define all legal aspects of marriage and prescribe the strategy
and the modalities to protect it, based on whatever socio-political
influences it deems proper, and subject of course to the
qualification that such legislative enactment itself adheres to the
Constitution and the Bill of Rights. This being the case, it also falls
on the legislature to put into operation the constitutional provisions
that protect marriage and the family. This has been accomplished
at present through the enactment of the Family Code, which
defines marriage and the family, spells out the corresponding legal
effects, imposes the limitations that affect married and family life,
as well as prescribes the grounds for declaration of nullity and
those for legal separation. While it may appear that the judicial
denial of a petition for declaration of nullity is reflective of the
constitutional mandate to protect marriage, such action in fact
merely enforces a statutory definition of marriage, not a
constitutionally ordained decree of what marriage is. Indeed, if
circumstances warrant, Sections 1 and 2 of Article XV need not be
the only constitutional considerations to be taken into account in
resolving a petition for declaration of nullity. Indeed, Article 36 of
the Family Code, in classifying marriages contracted by a
psychologically incapacitated person as a nullity, should be deemed
as an implement of this constitutional protection of marriage. Given
the avowed State interest in promoting marriage as the foundation
of the family, which in turn serves as the foundation of the nation,
there is a corresponding interest for the State to defend against
marriages ill-equipped to promote family life. Void ab initio
marriages under Article 36 do not further the initiatives of the
State concerning marriage and family, as they promote wedlock
among persons who, for reasons independent of their will, are not
capacitated to understand or comply with the essential obligations
of marriage.42(Emphasis supplied)
WHEREFORE, the Court GRANTS the Motion for Reconsideration;
REVERSES and SETS ASIDE the decision promulgated on
September 19, 2011; and REINSTATES the decision rendered by
the Regional Trial Court declaring the marriage between the
petitioner and the respondent on November 4, 1976 as NULL AND

VOID AB INITIO due to the psychological incapacity of the parties

pursuant to Article 36 of the Family Code.

The factual antecedents, as narrated by the trial court, are as

follows.

No pronouncement on costs of suit.

G.R. No. 154380 October 5, 2005

On May 24, 1981, Cipriano Orbecido III married Lady Myros M.

Villanueva at the United Church of Christ in the Philippines in Laman, Ozamis City. Their marriage was blessed with a son and a
daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly V.
Orbecido.

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
CIPRIANO ORBECIDO III, Respondent.

In 1986, Ciprianos wife left for the United States bringing along
their son Kristoffer. A few years later, Cipriano discovered that his
wife had been naturalized as an American citizen.

SO ORDERED.

DECISION
QUISUMBING, J.:
Given a valid marriage between two Filipino citizens, where one
party is later naturalized as a foreign citizen and obtains a valid
divorce decree capacitating him or her to remarry, can the Filipino
spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to
make a definite ruling on this apparently novel question, presented
as a pure question of law.
In this petition for review, the Solicitor General assails
the Decision1 dated May 15, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23 and its Resolution2 dated
July 4, 2002 denying the motion for reconsideration. The court a
quo had declared that herein respondent Cipriano Orbecido III is
capacitated to remarry. The fallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph of
Art. 26 of the Family Code and by reason of the divorce decree
obtained against him by his American wife, the petitioner is given
the capacity to remarry under the Philippine Law.
IT IS SO ORDERED.3

Sometime in 2000, Cipriano learned from his son that his wife had
obtained a divorce decree and then married a certain Innocent
Stanley. She, Stanley and her child by him currently live at 5566 A.
Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority
to remarry invoking Paragraph 2 of Article 26 of the Family Code.
No opposition was filed. Finding merit in the petition, the court
granted the same. The Republic, herein petitioner, through the
Office of the Solicitor General (OSG), sought reconsideration but it
was denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE
26 OF THE FAMILY CODE4
The OSG contends that Paragraph 2 of Article 26 of the Family
Code is not applicable to the instant case because it only applies to
a valid mixed marriage; that is, a marriage celebrated between a
Filipino citizen and an alien. The proper remedy, according to the
OSG, is to file a petition for annulment or for legal
separation.5 Furthermore, the OSG argues there is no law that
governs respondents situation. The OSG posits that this is a
matter of legislation and not of judicial determination.6

For his part, respondent admits that Article 26 is not directly

applicable to his case but insists that when his naturalized alien
wife obtained a divorce decree which capacitated her to remarry,
he is likewise capacitated by operation of law pursuant to Section
12, Article II of the Constitution.7
At the outset, we note that the petition for authority to remarry
filed before the trial court actually constituted a petition for
declaratory relief. In this connection, Section 1, Rule 63 of the
Rules of Court provides:
RULE 63

remarries, litigation ensues and puts into question the validity of

his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article
26 of the Family Code apply to the case of respondent? Necessarily,
we must dwell on how this provision had come about in the first
place, and what was the intent of the legislators in its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law
Executive Order No. 209, otherwise known as the "Family Code,"
which took effect on August 3, 1988. Article 26 thereof states:

DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a
deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order or regulation, ordinance, or
other governmental regulation may, before breach or violation
thereof, bring an action in the appropriate Regional Trial Court to
determine any question of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
...

All marriages solemnized outside the Philippines in accordance with

the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family
Code, Executive Order No. 227 was likewise signed into law,
amending Articles 26, 36, and 39 of the Family Code. A second
paragraph was added to Article 26. As so amended, it now
provides:

The requisites of a petition for declaratory relief are: (1) there

must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) that the party
seeking the relief has a legal interest in the controversy; and (4)
that the issue is ripe for judicial determination.8

ART. 26. All marriages solemnized outside the Philippines in

accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37 and 38.

This case concerns the applicability of Paragraph 2 of Article 26 to a

marriage between two Filipino citizens where one later acquired
alien citizenship, obtained a divorce decree, and remarried while in
the U.S.A. The interests of the parties are also adverse, as
petitioner representing the State asserts its duty to protect the
institution of marriage while respondent, a private citizen, insists
on a declaration of his capacity to remarry. Respondent, praying for
relief, has legal interest in the controversy. The issue raised is also
ripe for judicial determination inasmuch as when respondent

Where a marriage between a Filipino citizen and a foreigner is

validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law.
(Emphasis supplied)
On its face, the foregoing provision does not appear to govern the
situation presented by the case at hand. It seems to apply only to
cases where at the time of the celebration of the marriage, the

parties are a Filipino citizen and a foreigner. The instant case is one
where at the time the marriage was solemnized, the parties were
two Filipino citizens, but later on, the wife was naturalized as an
American citizen and subsequently obtained a divorce granting her
capacity to remarry, and indeed she remarried an American citizen
while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings9 on the Family
Code, the Catholic Bishops Conference of the Philippines (CBCP)
registered the following objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those whose
spouses are Filipinos who divorce them abroad. These spouses who
are divorced will not be able to re-marry, while the spouses of
foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of divorce
even for Filipino citizens. For those whose foreign spouses validly
divorce them abroad will also be considered to be validly divorced
here and can re-marry. We propose that this be deleted and made
into law only after more widespread consultation. (Emphasis
supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations
showed that the intent of Paragraph 2 of Article 26, according to
Judge Alicia Sempio-Diy, a member of the Civil Code Revision
Committee, is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985
case of Van Dorn v. Romillo, Jr.10 The Van Dorn case involved a
marriage between a Filipino citizen and a foreigner. The Court held
therein that a divorce decree validly obtained by the alien spouse is
valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.

Does the same principle apply to a case where at the time of the
celebration of the marriage, the parties were Filipino citizens, but
later on, one of them obtains a foreign citizenship by
naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v.
Court of Appeals.11 In Quita, the parties were, as in this case,
Filipino citizens when they got married. The wife became a
naturalized American citizen in 1954 and obtained a divorce in the
same year. The Court therein hinted, by way of obiter dictum, that
a Filipino divorced by his naturalized foreign spouse is no longer
married under Philippine law and can thus remarry.
Thus, taking into consideration the legislative intent and applying
the rule of reason, we hold that Paragraph 2 of Article 26 should be
interpreted to include cases involving parties who, at the time of
the celebration of the marriage were Filipino citizens, but later on,
one of them becomes naturalized as a foreign citizen and obtains a
divorce decree. The Filipino spouse should likewise be allowed to
remarry as if the other party were a foreigner at the time of the
solemnization of the marriage. To rule otherwise would be to
sanction absurdity and injustice. Where the interpretation of a
statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the
legislature, it should be construed according to its spirit and
reason, disregarding as far as necessary the letter of the law. A
statute may therefore be extended to cases not within the literal
meaning of its terms, so long as they come within its spirit or
intent.12
If we are to give meaning to the legislative intent to avoid the
absurd situation where the Filipino spouse remains married to the
alien spouse who, after obtaining a divorce is no longer married to
the Filipino spouse, then the instant case must be deemed as
coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the
application of Paragraph 2 of Article 26 as follows:

1. There is a valid marriage that has been celebrated between a

Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time
of the celebration of the marriage, but their citizenship at the time
a valid divorce is obtained abroad by the alien spouse capacitating
the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American
citizen, there was still a valid marriage that has been celebrated
between her and Cipriano. As fate would have it, the naturalized
alien wife subsequently obtained a valid divorce capacitating her to
remarry. Clearly, the twin requisites for the application of
Paragraph 2 of Article 26 are both present in this case. Thus
Cipriano, the "divorced" Filipino spouse, should be allowed to
remarry.
We are also unable to sustain the OSGs theory that the proper
remedy of the Filipino spouse is to file either a petition for
annulment or a petition for legal separation. Annulment would be a
long and tedious process, and in this particular case, not even
feasible, considering that the marriage of the parties appears to
have all the badges of validity. On the other hand, legal separation
would not be a sufficient remedy for it would not sever the
marriage tie; hence, the legally separated Filipino spouse would
still remain married to the naturalized alien spouse.

and demonstrate its conformity to the foreign law allowing

it.14 Such foreign law must also be proved as our courts cannot
take judicial notice of foreign laws. Like any other fact, such laws
must be alleged and proved.15 Furthermore, respondent must also
show that the divorce decree allows his former wife to remarry as
specifically required in Article 26. Otherwise, there would be no
evidence sufficient to declare that he is capacitated to enter into
another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of
Article 26 of the Family Code (E.O. No. 209, as amended by E.O.
No. 227), should be interpreted to allow a Filipino citizen, who has
been divorced by a spouse who had acquired foreign citizenship
and remarried, also to remarry. However, considering that in the
present petition there is no sufficient evidence submitted and on
record, we are unable to declare, based on respondents bare
allegations that his wife, who was naturalized as an American
citizen, had obtained a divorce decree and had remarried an
American, that respondent is now capacitated to remarry. Such
declaration could only be made properly upon respondents
submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines
is GRANTED. The assailed Decision dated May 15, 2002, and
Resolution dated July 4, 2002, of the Regional Trial Court of
Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.

However, we note that the records are bereft of competent

evidence duly submitted by respondent concerning the divorce
decree and the naturalization of respondents wife. It is settled rule
that one who alleges a fact has the burden of proving it and mere
allegation is not evidence.13
Accordingly, for his plea to prosper, respondent herein must prove
his allegation that his wife was naturalized as an American citizen.
Likewise, before a foreign divorce decree can be recognized by our
own courts, the party pleading it must prove the divorce as a fact

G.R. No. 184621

December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MARIA FE ESPINOSA CANTOR, Respondent.
DECISION
BRION, J.:

The petition for review on certiorari1 before us assails the

decision2 dated August 27, 2008 of the Court of Appeals (CA) in
CA-G.R. SP No. 01558-MIN which affirmed be order3 dated
December 15, 2006 of the Regional Trial Court (RTC), Branch 25,
Koronadal City, South Cotabato, in SP Proc. Case No. 313-25,
declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantors
husband, presumptively dead under Article 41 of the Family Code.
The Factual Antecedents

his whereabouts. The dispositive portion of the order dated

December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby declared that
respondent Jerry F. Cantor is presumptively dead pursuant to
Article 41 of the Family Code of the Philippines without prejudice to
the effect of the reappearance of the absent spouse Jerry F.
Cantor.5
The Ruling of the CA

The respondent and Jerry were married on September 20, 1997.

They lived together as husband and wife in their conjugal dwelling
in Agan Homes, Koronadal City, South Cotabato. Sometime in
January 1998, the couple had a violent quarrel brought about by:
(1) the respondents inability to reach "sexual climax" whenever
she and Jerry would have intimate moments; and (2) Jerrys
expression of animosity toward the respondents father.

The case reached the CA through a petition for certiorari6filed by

the petitioner, Republic of the Philippines, through the Office of the
Solicitor General (OSG). In its August 27, 2008 decision, the CA
dismissed the petitioners petition, finding no grave abuse of
discretion on the RTCs part, and, accordingly, fully affirmed the
latters order, thus:

After their quarrel, Jerry left their conjugal dwelling and this was
the last time that the respondent ever saw him. Since then, she
had not seen, communicated nor heard anything from Jerry or
about his whereabouts.

WHEREFORE, premises foregoing (sic), the instant petition is

hereby DISMISSED and the assailed Order dated December 15,
2006 declaring Jerry F. Cantor presumptively dead is hereby
AFFIRMED in toto.7

On May 21, 2002, or more than four (4) years from the time of
Jerrys disappearance, the respondent filed before the RTC a
petition4for her husbands declaration of presumptive death,
docketed as SP Proc. Case No. 313-25. She claimed that she had a
well-founded belief that Jerry was already dead. She alleged that
she had inquired from her mother-in-law, her brothers-in-law, her
sisters-in-law, as well as her neighbors and friends, but to no avail.
In the hopes of finding Jerry, she also allegedly made it a point to
check the patients directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile,
prompting her to file the petition in court.

The petitioner brought the matter via a Rule 45 petition before this
Court. The Petition The petitioner contends that certiorari lies to
challenge the decisions, judgments or final orders of trial courts in
petitions for declaration of presumptive death of an absent spouse
under Rule 41 of the Family Code. It maintains that although
judgments of trial courts in summary judicial proceedings,
including presumptive death cases, are deemed immediately final
and executory (hence, not appeal able under Article 247 of the
Family Code), this rule does not mean that they are not subject to
review on certiorari.

The Ruling of the RTC

After due proceedings, the RTC issued an order granting the
respondents petition and declaring Jerry presumptively dead. It
concluded that the respondent had a well-founded belief that her
husband was already dead since more than four (4) years had
passed without the former receiving any news about the latter or

The petitioner also posits that the respondent did not have a wellfounded belief to justify the declaration of her husbands
presumptive death. It claims that the respondent failed to conduct
the requisite diligent search for her missing husband. Likewise, the
petitioner invites this Courts attention to the attendant
circumstances surrounding the case, particularly, the degree of
search conducted and the respondents resultant failure to meet
the strict standard under Article 41 of the Family Code.

The Issues

presumptive death of the absentee, without prejudice to the effect

of reappearance of the absent spouse.

The petition poses to us the following issues:

(1) Whether certiorarilies to challenge the decisions, judgments or
final orders of trial courts in petitions for declaration of presumptive
death of an absent spouse under Article 41 of the Family Code; and
(2) Whether the respondent had a well-founded belief that Jerry is
already dead.
The Courts Ruling
We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy
Courts Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the courts judgment in summary
proceedings, such as the declaration of presumptive death of an
absent spouse under Article 41 of the Family Code, shall be
immediately final and executory.
Article 41,in relation to Article 247, of the Family Code provides:
Art. 41. A marriage contracted by any person during subsistence of
a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of

Art. 247. The judgment of the court shall be immediately final and
executory. [underscores ours]
With the judgment being final, it necessarily follows that it is no
longer subject to an appeal, the dispositions and conclusions
therein having become immutable and unalterable not only as
against the parties but even as against the courts.8 Modification of
the courts ruling, no matter how erroneous is no longer
permissible. The final and executory nature of this summary
proceeding thus prohibits the resort to appeal. As explained
in Republic of the Phils. v. Bermudez-Lorino,9 the right to appeal is
not granted to parties because of the express mandate of Article
247 of the Family Code, to wit:
In Summary Judicial Proceedings under the Family Code, there is
no reglementary period within which to perfect an appeal, precisely
because judgments rendered thereunder, by express provision of
[Article] 247, Family Code, supra, are "immediately final and
executory." It was erroneous, therefore, on the part of the RTCto
give due course to the Republics appeal and order the transmittal
of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment
which, by express provision of law, is immediately final and
executory. As we have said in Veloria vs. Comelec, "the right to
appeal is not a natural right nor is it a part of due process, for it is
merely a statutory privilege." Since, by express mandate of Article
247 of the Family Code, all judgments rendered in summary
judicial proceedings in Family Law are "immediately final and
executory," the right to appeal was not granted to any of the
parties therein. The Republic of the Philippines, as oppositor in the
petition for declaration of presumptive death, should not be treated
differently. It had no right to appeal the RTC decision of November
7, 2001. [emphases ours; italics supplied]
Certiorari Lies to Challenge the
Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code

A losing party in this proceeding, however, is not entirely left

without a remedy. While jurisprudence tells us that no appeal can
be made from the trial court's judgment, an aggrieved party may,
nevertheless, file a petition for certiorari under Rule 65 of the Rules
of Court to question any abuse of discretion amounting to lack or
excess of jurisdiction that transpired.
As held in Delos Santos v. Rodriguez, et al.,10 the fact that a
decision has become final does not automatically negate the
original action of the CA to issue certiorari, prohibition and
mandamus in connection with orders or processes issued by the
trial court. Certiorari may be availed of where a court has acted
without or in excess of jurisdiction or with grave abuse of
discretion, and where the ordinary remedy of appeal is not
available. Such a procedure finds support in the case of Republic v.
Tango,11 wherein we held that:
This case presents an opportunity for us to settle the rule on
appeal of judgments rendered in summary proceedings under the
Family Code and accordingly, refine our previous decisions thereon.

By express provision of law, the judgment of the court in a

summary proceeding shall be immediately final and executory. As a
matter of course, it follows that no appeal can be had of the trial
court's judgment ina summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of the
Family Code. It goes without saying, however, that an aggrieved
party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should be
filed in the Court of Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent with the RTCs
and the Court of Appeals in certain cases, such concurrence does
not sanction an unrestricted freedom of choice of court forum.
[emphasis ours]
Viewed in this light, we find that the petitioners resort
to certiorari under Rule 65 of the Rules of Court to question the
RTCs order declaring Jerry presumptively dead was proper.
b. On the Issue of the Existence of Well-Founded Belief

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, establishes the rules that
govern summary court proceedings in the Family Code:

The Essential Requisites for the

Declaration of Presumptive Death
Under Article 41 of the Family Code

"ART. 238. Until modified by the Supreme Court, the procedural

rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided
in an expeditious manner without regard to technical rules."

Before a judicial declaration of presumptive death can be obtained,

it must be shown that the prior spouse had been absent for four
consecutive years and the present spouse had a well-founded belief
that the prior spouse was already dead. Under Article 41 of the
Family Code, there are four (4) essential requisites for the
declaration of presumptive death:

In turn, Article 253 of the Family Code specifies the cases covered
by the rules in chapters two and three of the same title. It states:
"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable."(Emphasis
supplied.)

1. That the absent spouse has been missing for four consecutive
years, or two consecutive years if the disappearance occurred
where there is danger of death under the circumstances laid down
in Article 391, Civil Code;
2. That the present spouse wishes to remarry;

In plain text, Article 247 in Chapter 2 of the same title reads:

"ART.247. The judgment of the court shall be immediately final and
executory."

3. That the present spouse has a well-founded belief that the

absentee is dead; and

4. That the present spouse files a summary proceeding for the

declaration of presumptive death of the absentee.12
The Present Spouse Has the Burden
of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present
The burden of proof rests on the present spouse to show that all
the requisites under Article 41 of the Family Code are present.
Since it is the present spouse who, for purposes of declaration of
presumptive death, substantially asserts the affirmative of the
issue, it stands to reason that the burden of proof lies with
him/her. He who alleges a fact has the burden of proving it and
mere allegation is not evidence.13
Declaration of Presumptive Death
Under Article 41 of the Family Code
Imposes a Stricter Standard
Notably, Article 41 of the Family Code, compared to the old
provision of the Civil Code which it superseded, imposes a stricter
standard. It requires a "well-founded belief " that the absentee is
already dead before a petition for declaration of presumptive death
can be granted. We have had occasion to make the same
observation in Republic v. Nolasco,14 where we noted the crucial
differences between Article 41 of the Family Code and Article 83 of
the Civil Code, to wit:

Thus, mere absence of the spouse (even for such period required
by the law), lack of any news that such absentee is still alive,
failure to communicate or general presumption of absence under
the Civil Code would not suffice. This conclusion proceeds from the
premise that Article 41 of the Family Code places upon the present
spouse the burden of proving the additional and more stringent
requirement of "well-founded belief" which can only be discharged
upon a showing of proper and honest-to-goodness inquiries and
efforts to ascertain not only the absent spouses whereabouts but,
more importantly, that the absent spouse is still alive or is already
dead.15
The Requirement of Well-Founded Belief
The law did not define what is meant by "well-founded belief." It
depends upon the circumstances of each particular case. Its
determination, so to speak, remains on a case-to-case basis. To be
able to comply with this requirement, the present spouse must
prove that his/her belief was the result of diligent and reasonable
efforts and inquiries to locate the absent spouse and that based on
these efforts and inquiries, he/she believes that under the
circumstances, the absent spouseis already dead. It requires
exertion of active effort (not a mere passive one).
To illustrate this degree of "diligent and reasonable search"
required by the law, an analysis of the following relevant cases is
warranted:
i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16

Under Article 41, the time required for the presumption to arise
has been shortened to four (4) years; however, there is need for a
judicial declaration of presumptive death to enable the spouse
present to remarry. Also, Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article 83 of the Civil Code
merely requires either that there be no news that such absentee is
still alive; or the absentee is generally considered to be dead and
believed to be so by the spouse present, or is presumed dead
under Articles 390 and 391 of the Civil Code. The Family Code,
upon the other hand, prescribes as "well founded belief" that the
absentee is already dead before a petition for declaration of
presumptive death can be granted.

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the

Court ruled that the present spouse failed to prove that he had a
well-founded belief that his absent spouse was already dead before
he filed his petition. His efforts to locate his absent wife allegedly
consisted of the following:
(1) He went to his in-laws house to look for her;
(2) He sought the barangay captains aid to locate her;
(3) He went to her friends houses to find her and inquired about
her whereabouts among his friends;

(4) He went to Manila and worked as a part-time taxi driver to look

for her in malls during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to
the NBI.
Despite these alleged "earnest efforts," the Court still ruled against
the present spouse. The Court found that he failed to present the
persons from whom he allegedly made inquiries and only reported
his wifes absence after the OSG filed its notice to dismiss his
petition in the RTC.
The Court also provided the following criteria for determining the
existence of a "well-founded belief" under Article 41 of the Family
Code:
The belief of the present spouse must be the result of proper and
honest to goodness inquiries and efforts to ascertain the
whereabouts of the absent spouse and whether the absent spouse
is still alive or is already dead. Whether or not the spouse present
acted on a well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by
[the] present spouse.18

testified to having inquiredabout the whereabouts of Cyrus from

the latters relatives, these relatives were not presented to
corroborate Diosdados testimony. In short, respondent was
allegedly not diligent in her search for her husband. Petitioner
argues that if she were, she would have sought information from
the Taiwanese Consular Office or assistance from other government
agencies in Taiwan or the Philippines. She could have also utilized
mass media for this end, but she did not. Worse, she failed to
explain these omissions.
iii.Republic v. Nolasco21
In Nolasco, the present spouse filed a petition for declaration of
presumptive death of his wife, who had been missing for more than
four years. He testified that his efforts to find her consisted of:
(1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and
(3) Inquiring from their friends regarding her whereabouts, which
all proved fruitless. The Court ruled that the present spouses
investigations were too sketchy to form a basis that his wife was
already dead and ruled that the pieces of evidence only proved that
his wife had chosen not to communicate with their common
acquaintances, and not that she was dead.
iv.The present case

ii. Republic v. Granada19

Similarly in Granada, the Court ruled that the absent spouse failed
to prove her "well-founded belief" that her absent spouse was
already dead prior to her filing of the petition. In this case, the
present spouse alleged that her brother had made inquiries from
their relatives regarding the absent spouses whereabouts. The
present spouse did not report to the police nor seek the aid of the
mass media. Applying the standards in Republic of the Philippines
v. Court of Appeals (Tenth Div.),20 the Court ruled against the
present spouse, as follows:
Applying the foregoing standards to the present case, petitioner
points out that respondent Yolanda did not initiate a diligent search
to locate her absent husband. While her brother Diosdado Cadacio

In the case at bar, the respondents "well-founded belief" was

anchored on her alleged "earnest efforts" to locate Jerry, which
consisted of the following:
(1) She made inquiries about Jerrys whereabouts from her in-laws,
neighbors and friends; and
(2) Whenever she went to a hospital, she saw to it that she looked
through the patients directory, hoping to find Jerry.
These efforts, however, fell short of the "stringent standard" and
degree of diligence required by jurisprudence for the following
reasons:

First, the respondent did not actively look for her missing husband.
It can be inferred from the records that her hospital visits and her
consequent checking of the patients directory therein were
unintentional. She did not purposely undertake a diligent search for
her husband as her hospital visits were not planned nor primarily
directed to look for him. This Court thus considers these attempts
insufficient to engender a belief that her husband is dead.
Second, she did not report Jerrys absence to the police nor did she
seek the aid of the authorities to look for him. While a finding of
well-founded belief varies with the nature of the situation in which
the present spouse is placed, under present conditions, we find it
proper and prudent for a present spouse, whose spouse had been
missing, to seek the aid of the authorities or, at the very least,
report his/her absence to the police.
Third, she did not present as witnesses Jerrys relatives or their
neighbors and friends, who can corroborate her efforts to locate
Jerry. Worse, these persons, from whom she allegedly made
inquiries, were not even named. As held in Nolasco, the present
spouses bare assertion that he inquired from his friends about his
absent spouses whereabouts is insufficient as the names of the
friends from whom he made inquiries were not identified in the
testimony nor presented as witnesses.
Lastly, there was no other corroborative evidence to support the
respondents claim that she conducted a diligent search. Neither
was there supporting evidence proving that she had a well-founded
belief other than her bare claims that she inquired from her friends
and in-laws about her husbands whereabouts. In sum, the Court is
of the view that the respondent merely engaged in a "passive
search" where she relied on uncorroborated inquiries from her inlaws, neighbors and friends. She failed to conduct a diligent search
because her alleged efforts are insufficient to form a well-founded
belief that her husband was already dead. As held in Republic of
the Philippines v. Court of Appeals (Tenth Div.),22 "[w]hether or not
the spouse present acted on a well-founded belief of death of the
absent spouse depends upon the inquiries to be drawn from a
great many circumstances occurring before and after the
disappearance of the absent spouse and the natureand extent of
the inquiries made by [the] present spouse."

Strict Standard Approach Is

Consistent with the States Policy
to Protect and Strengthen Marriage
In the above-cited cases, the Court, fully aware of the possible
collusion of spouses in nullifying their marriage, has consistently
applied the "strictstandard" approach. This is to ensure that a
petition for declaration of presumptive death under Article 41 of the
Family Code is not used as a tool to conveniently circumvent the
laws. Courts should never allow procedural shortcuts and should
ensure that the stricter standard required by the Family Code is
met. In Republic of the Philippines v. Court of Appeals (Tenth
Div.),23 we emphasized that:
In view of the summary nature of proceedings under Article 41 of
the Family Code for the declaration of presumptive death of ones
spouse, the degree of due diligence set by this Honorable Court in
the above-mentioned cases in locating the whereabouts of a
missing spouse must be strictly complied with. There have been
times when Article 41 of the Family Code had been resorted to by
parties wishing to remarry knowing fully well that their alleged
missing spouses are alive and well. It is even possible that those
who cannot have their marriages xxx declared null and void under
Article 36 of the Family Code resort to Article 41 of the Family Code
for relief because of the xxx summary nature of its proceedings.
The application of this stricter standard becomes even more
imperative if we consider the States policy to protect and
strengthen the institution of marriage.24 Since marriage serves as
the familys foundation25 and since it is the states policy to protect
and strengthen the family as a basic social institution,26 marriage
should not be permitted to be dissolved at the whim of the parties.
In interpreting and applying Article 41, this is the underlying
rationale to uphold the sanctity of marriage. Arroyo, Jr.v. Court of
Appeals27 reflected this sentiment when we stressed:
[The]protection of the basic social institutions of marriage and the
family in the preservation of which the State has the strongest
interest; the public policy here involved is of the most fundamental
kind. In Article II, Section 12 of the Constitution there is set forth
the following basic state policy:

The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution.
Strict Standard Prescribed Under
Article 41 of the Family Code
Is for the Present Spouses Benefit
The requisite judicial declaration of presumptive death of the
absent spouse (and consequently, the application of a stringent
standard for its issuance) is also for the present spouse's benefit. It
is intended to protect him/her from a criminal prosecution of
bigamy under Article 349 of the Revised Penal Code which might
come into play if he/she would prematurely remarry sans the
court's declaration.
Upon the issuance of the decision declaring his/her absent spouse
presumptively dead, the present spouse's good faith in contracting
a second marriage is effectively established. The decision of the
competent court constitutes sufficient proof of his/her good faith
and his/her criminal intent in case of remarriage is effectively
negated.28 Thus, for purposes of remarriage, it is necessary to
strictly comply with the stringent standard and have the absent
spouse judicially declared presumptively dead.
Final Word
As a final word, it has not escaped this Court's attention that the
strict standard required in petitions for declaration of presumptive
death has not been fully observed by the lower courts. We need
only to cite the instances when this Court, on review, has
consistently ruled on the sanctity of marriage and reiterated that
anything less than the use of the strict standard necessitates a
denial. To rectify this situation, lower courts are now expressly put
on notice of the strict standard this Court requires in cases under
Article 41 of the Family Code.
WHEREFORE, in view of the foregoing, the assailed decision dated
August 27, 2008 of the Court of Appeals, which affirmed the order
dated December 15, 2006 of the Regional Trial Court, Branch 25,
Koronadal City, South Cotabato, declaring Jerry F. Cantor
presumptively dead is hereby REVERSED and SET ASIDE.
SO ORDERED.

G.R. No. 118305 February 12, 1998

AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO
MAGSAJO, petitioners,
vs.
COURT OF APPEALS and SPOUSES ALFREDO &
ENCARNACION CHING, respondents.

MARTINEZ, J.:
Under Article 161 of the Civil Code, what debts and obligations
contracted by the husband alone are considered "for the benefit of
the conjugal partnership" which are chargeable against the
conjugal partnership? Is a surety agreement or an accommodation
contract entered into by the husband in favor of his employer
within the contemplation of the said provision?
These are the issues which we will resolve in this petition for
review.
The petitioner assails the decision dated April 14, 1994 of the
respondent Court of Appeals in "Spouses Alfredo and
Encarnacion Ching vs. Ayala Investment and Development
Corporation, et. al.," docketed as CA-G.R. CV No.
29632, 1 upholding the decision of the Regional Trial Court of Pasig,
Branch 168, which ruled that the conjugal partnership of gains of
respondents-spouses Alfredo and Encarnacion Ching is not liable
for the payment of the debts secured by respondent-husband
Alfredo Ching.
A chronology of the essential antecedent facts is necessary for a
clear understanding of the case at bar.
Philippine Blooming Mills (hereinafter referred to as PBM) obtained
a P50,300,000.00 loan from petitioner Ayala Investment and
Development Corporation (hereinafter referred to as AIDC). As
added security for the credit line extended to PBM, respondent
Alfredo Ching, Executive Vice President of PBM, executed security

agreements on December 10, 1980 and on March 20, 1981 making

himself jointly and severally answerable with PBM's indebtedness to
AIDC.
PBM failed to pay the loan. Thus, on July 30, 1981, AIDC filed a
case for sum of money against PBM and respondent-husband
Alfredo Ching with the then Court of First Instance of Rizal (Pasig),
Branch VIII, entitled "Ayala Investment and Development
Corporation vs. Philippine Blooming Mills and Alfredo Ching,"
docketed as Civil Case No. 42228.
After trial, the court rendered judgment ordering PBM and
respondent-husband Alfredo Ching to jointly and severally pay
AIDC the principal amount of P50,300,000.00 with interests.
Pending appeal of the judgment in Civil Case No. 42228, upon
motion of AIDC, the lower court issued a writ of execution pending
appeal. Upon AIDC's putting up of an P8,000,000.00 bond, a writ
of execution dated May 12, 1982 was issued. Thereafter, petitioner
Abelardo Magsajo, Sr., Deputy Sheriff of Rizal and appointed sheriff
in Civil Case No. 42228, caused the issuance and service upon
respondents-spouses of a notice of sheriff sale dated May 20, 1982
on three (3) of their conjugal properties. Petitioner Magsajo then
scheduled the auction sale of the properties levied.
On June 9, 1982, private respondents filed a case of injunction
against petitioners with the then Court of First Instance of Rizal
(Pasig), Branch XIII, to enjoin the auction sale alleging that
petitioners cannot enforce the judgment against the conjugal
partnership levied on the ground that, among others, the subject
loan did not redound to the benefit of the said conjugal
partnership. 2 Upon application of private respondents, the lower
court issued a temporary restraining order to prevent petitioner
Magsajo from proceeding with the enforcement of the writ of
execution and with the sale of the said properties at public auction.

AIDC filed a petition for certiorari before the Court of

Appeals, 3 questioning the order of the lower court enjoining the
sale. Respondent Court of Appeals issued a Temporary Restraining
Order on June 25, 1982, enjoining the lower court 4 from enforcing
its Order of June 14, 1982, thus paving the way for the scheduled
auction sale of respondents-spouses conjugal properties.
On June 25, 1982, the auction sale took place. AIDC being the only
bidder, was issued a Certificate of Sale by petitioner Magsajo,
which was registered on July 2, 1982. Upon expiration of the
redemption period, petitioner sheriff issued the final deed of sale
on August 4, 1982 which was registered on August 9, 1983.
In the meantime, the respondent court, on August 4, 1982,
decided CA-G.R. SP No. 14404, in this manner:
WHEREFORE, the petition for certiorari in this case is
granted and the challenged order of the respondent
Judge dated June 14, 1982 in Civil Case No. 46309 is
hereby set aside and nullified. The same petition
insofar as it seeks to enjoin the respondent Judge
from proceeding with Civil Case No. 46309 is,
however, denied. No pronouncement is here made as
to costs. . . . 5
On September 3, 1983, AIDC filed a motion to dismiss the petition
for injunction filed before Branch XIII of the CFI of Rizal (Pasig) on
the ground that the same had become moot and academic with the
consummation of the sale. Respondents filed their opposition to the
motion arguing, among others, that where a third party who claim
is ownership of the property attached or levied upon, a different
legal situation is presented; and that in this case, two (2) of the
real properties are actually in the name of Encarnacion Ching, a
non-party to Civil Case No. 42228.
The lower court denied the motion to dismiss. Hence, trial on the
merits proceeded. Private respondents presented several
witnesses. On the other hand, petitioners did not present any
evidence.

On September 18, 1991, the trial court promulgated its decision

declaring the sale on execution null and void. Petitioners appealed
to the respondent court, which was docketed as CA-G.R. CV No.
29632.
On April 14, 1994, the respondent court promulgated the assailed
decision, affirming the decision of the regional trial court. It held
that:
The loan procured from respondent-appellant AIDC
was for the advancement and benefit of Philippine
Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees.
xxx xxx xxx
As to the applicable law, whether it is Article 161 of
the New Civil Code or Article 1211 of the Family
Code-suffice it to say that the two provisions are
substantially the same. Nevertheless, We agree with
the trial court that the Family Code is the applicable
law on the matter . . . . . . .
Article 121 of the Family Code provides that "The
conjugal partnership shall be liable for: . . . (2) All
debts and obligations contracted during the marriage
by the designated Administrator-Spouse for the
benefit of the conjugal partnership of gains . . . ."
The burden of proof that the debt was contracted for
the benefit of the conjugal partnership of gains, lies
with the creditor-party litigant claiming as such. In
the case at bar, respondent-appellant AIDC failed to
prove that the debt was contracted by appelleehusband, for the benefit of the conjugal partnership
of gains.
The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment
is hereby rendered DISMISSING the appeal. The

decision of the Regional Trial Court is AFFIRMED in

toto. 6
Petitioner filed a Motion for Reconsideration which was denied by
the respondent court in a Resolution dated November 28, 1994. 7
Hence, this petition for review. Petitioner contends that the
"respondent court erred in ruling that the conjugal partnership of
private respondents is not liable for the obligation by the
respondent-husband."
Specifically, the errors allegedly committed by the respondent court
are as follows:
I. RESPONDENT COURT ERRED IN
RULING THAT THE OBLIGATION
INCURRED RESPONDENT HUSBAND
DID NOT REDOUND TO THE BENEFIT
OF THE CONJUGAL PARTNERSHIP OF
THE PRIVATE RESPONDENT.
II. RESPONDENT COURT ERRED IN
RULING THAT THE ACT OF
RESPONDENT HUSBAND IN SECURING
THE SUBJECT LOAN IS NOT PART OF
HIS INDUSTRY, BUSINESS OR CAREER
FROM WHICH HE SUPPORTS HIS
FAMILY.
Petitioners in their appeal point out that there is no need to prove
that actual benefit redounded to the benefit of the partnership; all
that is necessary, they say, is that the transaction was entered into
for the benefit of the conjugal partnership. Thus, petitioners aver
that:
The wordings of Article 161 of the Civil Code is very
clear: for the partnership to be held liable, the
husband must have contracted the debt "for the
benefit of the partnership, thus:

Art. 161. The conjugal partnership shall be liable for:

1) all debts and
obligations contracted
by the husband for the
benefit of the conjugal
partnership . . . .
There is a difference between the phrases:
"redounded to the benefit of" or "benefited from" (on
the one hand) and "for the benefit of (on the other).
The former require that actual benefit must have
been realized; the latter requires only that the
transaction should be one which normally would
produce benefit to the partnership, regardless of
whether or not actual benefit accrued. 8
We do not agree with petitioners that there is a difference between
the terms "redounded to the benefit of" or "benefited from" on the
one hand; and "for the benefit of" on the other. They mean one
and the same thing. Article 161 (1) of the Civil Code and Article
121 (2) of the Family Code are similarly worded, i.e., both use the
term "for the benefit of." On the other hand, Article 122 of the
Family Code provides that "The payment of personal debts by the
husband or the wife before or during the marriage shall not be
charged to the conjugal partnership except insofar as they
redounded to the benefit of the family." As can be seen, the terms
are used interchangeably.
Petitioners further contend that the ruling of the respondent court
runs counter to the pronouncement of this Court in the case
of Cobb-Perez vs. Lantin, 9 that the husband as head of the family
and as administrator of the conjugal partnership is presumed to
have contracted obligations for the benefit of the family or the
conjugal partnership.
Contrary to the contention of the petitioners, the case of CobbPerez is not applicable in the case at bar. This Court has, on several
instances, interpreted the term "for the benefit of the conjugal
partnership."

In the cases of Javier vs. Osmea, 10 Abella de Diaz vs. Erlanger &
Galinger, Inc., 11 Cobb-Perez vs. Lantin 12 and G-Tractors,
Inc. vs. Court of Appeals, 13 cited by the petitioners, we held that:
The debts contracted by the husband during the
marriage relation, for and in the exercise of the
industry or profession by which he contributes
toward the support of his family, are not his personal
and private debts, and the products or income from
the wife's own property, which, like those of her
husband's, are liable for the payment of the marriage
expenses, cannot be excepted from the payment of
such debts. (Javier)
The husband, as the manager of the partnership
(Article 1412, Civil Code), has a right to embark the
partnership in an ordinary commercial enterprise for
gain, and the fact that the wife may not approve of a
venture does not make it a private and personal one
of the husband. (Abella de Diaz)
Debts contracted by the husband for and in the
exercise of the industry or profession by which he
contributes to the support of the family, cannot be
deemed to be his exclusive and private debts. (CobbPerez).
. . . if he incurs an indebtedness in the legitimate
pursuit of his career or profession or suffers losses in
a legitimate business, the conjugal partnership must
equally bear the indebtedness and the losses, unless
he deliberately acted to the prejudice of his family.
(G-Tractors)
However, in the cases of Ansaldo vs. Sheriff of Manila, Fidelity
Insurance & Luzon Insurance Co., 14 Liberty Insurance Corporation
vs. Banuelos, 15 and Luzon Surety Inc. vs. De Garcia, 16 cited by
the respondents, we ruled that:

The fruits of the paraphernal property which form

part of the assets of the conjugal partnership, are
subject to the payment of the debts and expenses of
the spouses, but not to the payment of the personal
obligations (guaranty agreements) of the husband,
unless it be proved that such obligations were
productive of some benefit to the family." (Ansaldo;
parenthetical phrase ours.)

of the contract. From the very nature of the contract of loan or

services, the family stands to benefit from the loan facility or
services to be rendered to the business or profession of the
husband. It is immaterial, if in the end, his business or profession
fails or does not succeed. Simply stated, where the husband
contracts obligations on behalf of the family business, the law
presumes, and rightly so, that such obligation will redound to the
benefit of the conjugal partnership.

When there is no showing that the execution of an

indemnity agreement by the husband redounded to
the benefit of his family, the undertaking is not a
conjugal debt but an obligation personal to him.
(Liberty Insurance)

(B) On the other hand, if the money or services are given to

another person or entity, and the husband acted only as
a surety or guarantor, that contract cannot, by itself, alone be
categorized as falling within the context of "obligations for the
benefit of the conjugal partnership." The contract of loan or
services is clearly for the benefit of the principal debtor and not for
the surety or his family. No presumption can be inferred that, when
a husband enters into a contract of surety or accommodation
agreement, it is "for the benefit of the conjugal partnership." Proof
must be presented to establish benefit redounding to the conjugal
partnership.

In the most categorical language, a conjugal

partnership under Article 161 of the new Civil Code is
liable only for such "debts and obligations contracted
by the husband for the benefit of the conjugal
partnership." There must be the requisite showing
then of some advantage which clearly accrued to the
welfare of the spouses. Certainly, to make a conjugal
partnership respond for a liability that should
appertain to the husband alone is to defeat and
frustrate the avowed objective of the new Civil Code
to show the utmost concern for the solidarity and
well-being of the family as a unit. The husband,
therefore, is denied the power to assume
unnecessary and unwarranted risks to the financial
stability of the conjugal partnership. (Luzon Surety,
Inc.)
From the foregoing jurisprudential rulings of this Court, we can
derive the following conclusions:
(A) If the husband himself is the principal obligor in the
contract, i.e., he directly received the money and services to be
used in or for his own business or his own profession, that contract
falls within the term . . . . obligations for the benefit of the conjugal
partnership." Here, no actual benefit may be proved. It is enough
that the benefit to the family is apparent at the time of the signing

Thus, the distinction between the Cobb-Perez case, and we add,

that of the three other companion cases, on the one hand, and that
of Ansaldo, Liberty Insurance and Luzon Surety, is that in the
former, the husband contracted the obligation for his own business;
while in the latter, the husband merely acted as a surety for the
loan contracted by another for the latter's business.
The evidence of petitioner indubitably show that co-respondent
Alfredo Ching signed as surety for the P50M loan contracted on
behalf of PBM. petitioner should have adduced evidence to prove
that Alfredo Ching's acting as surety redounded to the benefit of
the conjugal partnership. The reason for this is as lucidly explained
by the respondent court:
The loan procured from respondent-appellant AIDC
was for the advancement and benefit of Philippine
Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees. Philippine
Blooming Mills has a personality distinct and
separate from the family of petitioners-appellees

this despite the fact that the members of the said

family happened to be stockholders of said corporate
entity.
xxx xxx xxx
. . . . The burden of proof that the debt was
contracted for the benefit of the conjugal partnership
of gains, lies with the creditor-party litigant claiming
as such. In the case at bar, respondent-appellant
AIDC failed to prove that the debt was contracted by
appellee-husband, for the benefit of the conjugal
partnership of gains. What is apparent from the facts
of the case is that the judgment debt was contracted
by or in the name of the Corporation Philippine
Blooming Mills and appellee-husband only signed as
surety thereof. The debt is clearly a corporate debt
and respondent-appellant's right of recourse against
appellee-husband as surety is only to the extent of
his corporate stockholdings. It does not extend to
the conjugal partnership of gains of the family of
petitioners-appellees. . . . . . . 17
Petitioners contend that no actual benefit need accrue to the
conjugal partnership. To support this contention, they cite Justice
J.B.L. Reyes' authoritative opinion in the Luzon Surety Company
case:
I concur in the result, but would like to make of
record that, in my opinion, the words "all debts and
obligations contracted by the husband for the benefit
of the conjugal partnership" used in Article 161 of
the Civil Code of the Philippines in describing the
charges and obligations for which the conjugal
partnership is liable do not require that actual profit
or benefit must accrue to the conjugal partnership
from the husband's transaction; but it suffices that
the transaction should be one that normally would
produce such benefit for the partnership. This is the
ratio behind our ruling in Javier vs. Osmea, 34 Phil.
336, that obligations incurred by the husband in the

practice of his profession are collectible from the

conjugal partnership.
The aforequoted concurring opinion agreed with the majority
decision that the conjugal partnership should not be made liable for
the surety agreement which was clearly for the benefit of a third
party. Such opinion merely registered an exception to what may be
construed as a sweeping statement that in all cases actual profit or
benefit must accrue to the conjugal partnership. The opinion
merely made it clear that no actual benefits to the family need be
proved in some cases such as in the Javier case. There, the
husband was the principal obligor himself. Thus, said transaction
was found to be "one that would normally produce . . . benefit for
the partnership." In the later case of G-Tractors, Inc., the husband
was also the principal obligor not merely the surety. This latter
case, therefore, did not create any precedent. It did not also
supersede the Luzon Surety Company case, nor any of the previous
accommodation contract cases, where this Court ruled that they
were for the benefit of third parties.
But it could be argued, as the petitioner suggests, that even in
such kind of contract of accommodation, a benefit for the family
may also result, when the guarantee is in favor of the husband's
employer.
In the case at bar, petitioner claims that the benefits the
respondent family would reasonably anticipate were the following:
(a) The employment of co-respondent
Alfredo Ching would be prolonged and
he would be entitled to his monthly
salary of P20,000.00 for an extended
length of time because of the loan he
guaranteed;
(b) The shares of stock of the
members of his family would
appreciate if the PBM could be
rehabilitated through the loan
obtained;

(c) His prestige in the corporation

would be enhanced and his career
would be boosted should PBM survive
because of the loan.
However, these are not the benefits contemplated by Article 161 of
the Civil Code. The benefits must be one directly resulting from the
loan. It cannot merely be a by-product or a spin-off of the loan
itself.
In all our decisions involving accommodation contracts of the
husband, 18 we underscored the requirement that: "there must be
the requisite showing . . . of some advantage which clearly accrued
to the welfare of the spouses" or "benefits to his family" or "that
such obligations are productive of some benefit to the family."
Unfortunately, the petition did not present any proof to show: (a)
Whether or not the corporate existence of PBM was prolonged and
for how many months or years; and/or (b) Whether or not the PBM
was saved by the loan and its shares of stock appreciated, if so,
how much and how substantial was the holdings of the Ching
family.
Such benefits (prospects of longer employment and probable
increase in the value of stocks) might have been already apparent
or could be anticipated at the time the accommodation agreement
was entered into. But would those "benefits" qualify the transaction
as one of the "obligations . . . for the benefit of the conjugal
partnership"? Are indirect and remote probable benefits, the ones
referred to in Article 161 of the Civil Code? The Court of Appeals in
denying the motion for reconsideration, disposed of these
questions in the following manner:
No matter how one looks at it, the debt/credit
respondents-appellants is purely a corporate debt
granted to PBM, with petitioner-appellee-husband
merely signing as surety. While such petitionerappellee-husband, as such surety, is solidarily liable
with the principal debtor AIDC, such liability under
the Civil Code provisions is specifically restricted by
Article 122 (par. 1) of the Family Code, so that debts
for which the husband is liable may not be charged

against conjugal partnership properties. Article 122

of the Family Code is explicit "The payment of
personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to
the conjugal partnership except insofar as they
redounded to the benefit of the family.
Respondents-appellants insist that the corporate
debt in question falls under the exception laid down
in said Article 122 (par. one). We do not agree. The
loan procured from respondent-appellant AIDC was
for the sole advancement and benefit of Philippine
Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees.
. . . appellee-husband derives salaries, dividends
benefits from Philippine Blooming Mills (the debtor
corporation), only because said husband is an
employee of said PBM. These salaries and benefits,
are not the "benefits" contemplated by Articles 121
and 122 of the Family Code. The "benefits"
contemplated by the exception in Article 122 (Family
Code) is that benefit derived directly from the use of
the loan. In the case at bar, the loan is a corporate
loan extended to PBM and used by PBM itself, not by
petitioner-appellee-husband or his family. The
alleged benefit, if any, continuously harped by
respondents-appellants, are not only incidental but
also speculative. 19
We agree with the respondent court. Indeed, considering the odds
involved in guaranteeing a large amount (P50,000,000.00) of loan,
the probable prolongation of employment in PBM and increase in
value of its stocks, would be too small to qualify the transaction as
one "for the benefit" of the surety's family. Verily, no one could say,
with a degree of certainty, that the said contract is even
"productive of some benefits" to the conjugal partnership.
We likewise agree with the respondent court (and this view is not
contested by the petitioners) that the provisions of the Family Code
is applicable in this case. These provisions highlight the underlying

concern of the law for the conservation of the conjugal partnership;

for the husband's duty to protect and safeguard, if not augment,
not to dissipate it.
This is the underlying reason why the Family Code clarifies that the
obligations entered into by one of the spouses must be those that
redounded to the benefit of the family and that the measure of the
partnership's liability is to "the extent that the family is
benefited." 20
These are all in keeping with the spirit and intent of the other
provisions of the Civil Code which prohibits any of the spouses to
donate or convey gratuitously any part of the conjugal
property. 21 Thus, when co-respondent Alfredo Ching entered into a
surety agreement he, from then on, definitely put in peril the
conjugal property (in this case, including the family home) and
placed it in danger of being taken gratuitously as in cases of
donation.
In the second assignment of error, the petitioner advances the view
that acting as surety is part of the business or profession of the
respondent-husband.
This theory is new as it is novel.
The respondent court correctly observed that:
Signing as a surety is certainly not an exercise of an
industry or profession, hence the cited cases ofCobbPerez vs. Lantin; Abella de Diaz vs. Erlanger &
Galinger; G-Tractors, Inc. vs. CA do not apply in the
instant case. Signing as a surety is not embarking in
a business. 22

This is not to say, however, that we are unaware that executives

are often asked to stand as surety for their company's loan
obligations. This is especially true if the corporate officials have
sufficient property of their own; otherwise, their spouses'
signatures are required in order to bind the conjugal partnerships.
The fact that on several occasions the lending institutions did not
require the signature of the wife and the husband signed alone
does not mean that being a surety became part of his profession.
Neither could he be presumed to have acted for the conjugal
partnership.
Article 121, paragraph 3, of the Family Code is emphatic that the
payment of personal debts contracted by the husband or the wife
before or during the marriage shall not be charged to the conjugal
partnership except to the extent that they redounded to the benefit
of the family.
Here, the property in dispute also involves the family home. The
loan is a corporate loan not a personal one. Signing as a surety is
certainly not an exercise of an industry or profession nor an act of
administration for the benefit of the family.
On the basis of the facts, the rules, the law and equity, the assailed
decision should be upheld as we now uphold it. This is, of course,
without prejudice to petitioner's right to enforce the obligation in its
favor against the PBM receiver in accordance with the rehabilitation
program and payment schedule approved or to be approved by the
Securities & Exchange Commission.
WHEREFORE, the petition for review should be, as it is hereby,
DENIED for lack of merit.
SO ORDERED.

We are likewise of the view that no matter how often an executive

acted or was persuaded to act, as a surety for his own employer,
this should not be taken to mean that he had thereby embarked in
the business of suretyship or guaranty.

Regalado, Melo, Puno and Mendoza, JJ., co

G.R. No. 198908, August 03, 2015

VIRGINIA OCAMPO, Petitioner, v. DEOGRACIO

OCAMPO, Respondent.
DECISION
PERALTA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court seeking the reversal of the Decision1 dated August
11, 2010 and Resolution2 dated October 5, 2011, respectively, of
the Court of Appeals (CA) in CA-G.R. CV No. 82318, which denied
the petitioner's appeal and motion for reconsideration.
The facts of the case, as culled from the records, are as
follows:LawlibraryofCRAlaw
On September 10, 1990, petitioner Virginia Sy Ocampo (Virginia)
filed a Petition for Declaration of Nullity of her Marriage with
Deogracio Ocampo (Deogracio) before Regional Trial Court of
Quezon City, Branch 87, on the ground of psychological incapacity,
docketed as Civil Case No. Q-90-6616.3redarclaw
On January 22, 1993, the trial court rendered a Decision4 declaring
the marriage between Virginia and Deogracio as null and void, the
dispositive portion of which reads:LawlibraryofCRAlaw
WHEREFORE, the petition is hereby GRANTED. The marriage
between the petitioner and the respondent is hereby declared null
and void from the beginning under Article 36 of the Family Code.
The status of their children, however, shall remain legitimate and
their custody is hereby awarded to the petitioner.
As to the couple's property relations, their conjugal partnership of
gains shall necessarily be dissolved and liquidated but since the
petitioner has not submitted any detailed and formal listing or
inventory of such property, the court cannot act now on the
liquidation aspect. The parties are given thirty (30) days to submit
an inventory of their conjugal partnership for the purpose of
liquidation.
IT IS SO ORDERED.5
The decision became final, since no party appealed the judgment

annulling the marriage.

On March 31, 1999, the trial court directed the parties to submit a
project of partition of their inventoried properties, and if they failed
to do so, a hearing will be held on the factual issues with regard to
said properties. Having failed to agree on a project of partition of
their conjugal properties, hearing ensued where the parties
adduced evidence in support of their respective stand.
On January 13, 2004, the trial court rendered the assailed
Order6 stating that the properties declared by the parties belong to
each one of them on a 50-50 sharing.
On February 2, 2004, Virginia filed a Notice of Appeal before the
trial court.
On February 13, 2004, Deogracio filed a Motion to Deny and/or
Dismiss the Notice of Appeal and for immediate execution pursuant
to Section 20 of A.M. No. 02-1-10.
On February 20, 2004, the trial court denied the aforesaid motion
to deny and/or dismiss the notice of appeal for lack of merit.
On March 4, 2004, Deogracio filed a Motion for Reconsideration. On
March 22, 2004, the trial court denied anew the motion for
reconsideration.
In the disputed Decision dated August 11, 2010, the Court of
Appeals denied Virginia's appeal. Virginia moved for
reconsideration, but was denied in a Resolution dated October 5,
2011.
Thus, the instant petition for review substantially questioning
whether respondent should be deprived of his share in the conjugal
partnership of gains by reason of bad faith and psychological
perversity.
The petition lacks merit.
While Virginia and Deogracio tied the marital knot on January 16,
1978, it is still the Family Code provisions on conjugal partnerships,
however, which will govern the property relations between
Deogracio and Virginia even if they were married before the
effectivity of the Family Code.

Article 105 of the Family Code explicitly mandates that the Family
Code shall apply to conjugal partnerships established before the
Family Code without prejudice to vested rights already acquired
under the Civil Code or other laws. Thus, under the Family Code, if
the properties are acquired during the marriage, the presumption
is that they are conjugal. Hence, the burden of proof is on the
party claiming that they are not conjugal. This is counter-balanced
by the requirement that the properties must first be proven to have
been acquired during the marriage before they are presumed
conjugal.7redarclaw
The applicable law, however, in so far as the liquidation of the
conjugal partnership assets and liability is concerned, is Article
1298 of the Family Code in relation to Article 147 of the Family
Code.9redarclaw
The Court held that in a void marriage, as in those declared void
under Article 3610 of the Family Code, the property relations of the
parties during the period of cohabitation is governed either by
Article 147 or Article 148 of the Family Code.11 Article 147 of the
Family Code applies to union of parties who are legally capacitated
and not barred by any impediment to contract marriage, but whose
marriage is nonetheless void, as in this case. Article 147 of the
Family Code provides:LawlibraryofCRAlaw
Article 147. When a man and a woman who are capacitated to
marry each other, live exclusively with each other as husband and
wife without the benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry
shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired
while they lived together shall be presumed to have been
obtained by their joint efforts, work or industry, and shall
be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by
the other party of any property shall be deemed to have
contributed jointly in the acquisition thereof if the formers
efforts consisted in the care and maintenance of the family
and of the household.
Neither party can encumber or dispose by acts inter vivos of his or

her share in the property acquired during cohabitation and owned

in common, without the consent of the other, until after the
termination of their cohabitation.
When only one of the parties to a void marriage is in good faith,
the share of the party in bad faith in the co-ownership shall be
forfeited in favor of their common children. In case of default of or
waiver by any or all of the common children or their descendants,
each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall
belong to the innocent party. In all cases, the forfeiture shall take
place upon termination of the cohabitation.12
This particular kind of co-ownership applies when a man and a
woman, suffering no illegal impediment to marry each other,
exclusively live together as husband and wife under a void
marriage or without the benefit of marriage. It is clear, therefore,
that for Article 147 to operate, the man and the woman: (1) must
be capacitated to marry each other; (2) live exclusively with each
other as husband and wife; and (3) their union is without the
benefit of marriage or their marriage is void, as in the instant case.
The term "capacitated" in the first paragraph of the provision
pertains to the legal capacity of a party to contract marriage. Any
impediment to marry has not been shown to have existed on the
part of either Virginia or Deogracio. They lived exclusively with
each other as husband and wife. However, their marriage was
found to be void under Article 36 of the Family Code on the ground
of psychological incapacity.13redarclaw
From the foregoing, property acquired by both spouses through
their work and industry should, therefore, be governed by the rules
on equal co-ownership. Any property acquired during the union
is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the
property shall be considered as having contributed to the same
jointly if said party's efforts consisted in the care and maintenance
of the family household. 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.14redarclaw
Citing Valdes v. RTC,15 the Court held that the court a quo did not
commit a reversible error in utilizing Article 147 of the Family Code
and in ruling that the former spouses own the family home and all

their common property in equal shares, as well as in concluding

that, in the liquidation and partition of the property that they
owned in common, the provisions on co-ownership under the Civil
Code should aptly prevail. The rules which are set up to govern the
liquidation of either the absolute community or the conjugal
partnership of gains, the property regimes recognized for valid and
voidable marriages, are irrelevant to the liquidation of the coownership that exists between common-law spouses or spouses of
void marriages.
Thus, the trial court and the appellate court correctly held that the
parties will share on equal shares considering that Virginia failed to
prove that the properties were acquired solely on her own efforts,
to wit:LawlibraryofCRAlaw
This Court keenly observes that only testimonial evidence was
presented by the parties respectively, to prove and dispute the
claim of the other with regard to the properties and assets acquired
during the marriage. In the absence, therefore, of any
documentary evidence to prove the contrary, all the properties
acquired by the spouses during the marriage are presumed
conjugal. Further, the testimonial evidence adduced by the
petitioner aimed at establishing that respondent took no part in
acquiring said properties failed to convince this Court that the
latter be given only a meager share thereof.
While it may be true that management of the businesses referred
to herein may have been actively undertaken by the petitioner, it
cannot be gainsaid that petitioner was able to do so without the
invaluable help of respondent. Even a plain housewife who stays all
the time in the house and take[s] care of the household while the
husband indulges in lucrative and gainful activities is entitled to a
share in the same proportion the husband is, to the property or
properties acquired by the marriage. In the same breadth,
respondent must be considered to be entitled to the same extent.
Petitioner's claim that the seed money in that business was
provided by her mother and that, had it not been for that reason,
the properties now subject of controversy could not have been
acquired. That may be true but the Court is not prone to believe so
because of insufficient evidence to prove such contention but
petitioner's self-serving allegations. Of course, attempts to
establish respondent as an irresponsible and unfaithful husband, as
well as family man were made but the testimonies adduced
towards that end, failed to fully convince the Court that respondent

should be punished by depriving him of his share of the conjugal

property because of his indiscretion.16
In the instant case, both the trial and appellate courts agreed that
the subject properties were in fact acquired during the marriage of
Virginia and Deogracio. We give due deference to factual findings of
trial courts, especially when affirmed by the appellate court, as in
this case. A reversal of this finding can only occur if petitioners
show sufficient reason for us to doubt its correctness. There is
none, in this case.
Likewise, we note that the former spouses both substantially agree
that they acquired the subject properties during the subsistence of
their marriage.17 The certificates of titles and tax declarations are
not sufficient proof to overcome the presumption under Article 116
of the Family Code. All properties acquired by the spouses during
the marriage, regardless in whose name the properties are
registered, are presumed conjugal unless proved otherwise. The
presumption is not rebutted by the mere fact that the certificate of
title of the property or the tax declaration is in the name of one of
the spouses only. Article 116 expressly provides that the
presumption remains even if the property is "registered in the
name of one or both of the spouses."18 Thus, the failure of Virginia
to rebut this presumption, said properties were obtained by the
spouses' joint efforts, work or industry, and shall be jointly owned
by them in equal shares. Accordingly, the partition of the former
spouses' properties on the basis of co-ownership, as ordered by the
RTC and the appellate court, should be affirmed, and not on the
regime of conjugal partnership of gains.
WHEREFORE, the petition is DENIED. The Decision dated August
11, 2010 and the Resolution dated October 5, 2011 of the Court of
Appeals in CA-G.R. CV No. 82318 are AFFIRMED. The case
isREMANDED to the trial court for proper disposition.
SO ORDERED.cralawlawlibrary

G.R. No. 171303

ELIZABETH L. DIAZ, Petitioner,
vs.

GEORGINA R. EN CANTO, ERNESTO G. TABUJARA, GEMINO

H. ABAD and UNIVERSITY OF THE
PHILIPPINES, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
This is a Petition for Review on Certiorari under Rule 45 of the 1997
Rules of Court, as amended, which seeks to reverse and set aside
the April 28, 2005 Decision1 and January 20, 2006 Resolution2 of
the Court of Appeals in CA-G.R. CV No. 55165,3 which reversed the
April 17, 1996 Decision4 and September 1 7, 1996 Order5 of the
Regional Trial Court (RTC), Branch 71, Pasig City, in Civil Case No.
58397.
The undisputed facts as narrated by the Court of Appeals are as
follows:
Plaintiff-appellant [Elizabeth L. Diaz] has been in the service of [the
University of the Philippines] U.P. since 1963. In 1987, she was an
associate professor in the College of Mass Communication (CMC).
During the second semester for Academic Year (A Y) 1987-1988,
she was a full time member of the faculty and taught 12 units on
full load. After 2 to 3 weeks of teaching, she applied for sick leave
effective November 23, 1987 until March 1, 1988. She returned on
March 2, 1988 and submitted a Report for Duty Form.

On May 3, 1988, Diaz filed a letter-application directly with U.P.'s

"Office of the President (Abueva) for sabbatical leave with pay for
one (1) year effective June 1988 to May 1989, for "rest, renewal
and study." Cecilia Lazaro, Chair of the Broadcast Department,
initially recommended to CMC Dean Encanto that Diaz's sabbatical
application be granted. After they discussed the options available
to the CMC, Lazaro, on May 10, 1988, recommended instead that
Diaz be granted any leave of absence she may be qualified for. In
her May 2, 1988 letter, Diaz indicated her unwillingness to teach.
Considering the CMC's experience with Diaz who dropped her
courses in the previous semester, Lazaro deleted Diaz's name in
the final schedule of classes for the 1st semester of A Y 1988-89
beginning June 6, 1988. Incidentally, Diaz received her salary for
June 1988, indicating that her sabbatical might be approved.
Thereafter, Encanto referred Diaz's sabbatical application to the
Secretary of U.P., recommending its denial. When requested by
(Chancellor) Tabujara, Encanto transmitted to the former a
Reference Slip together with her comments thereon. Meanwhile,
Encanto requested Ermelina Kalagayan to hold Diaz's salary
effective July 1, 1988 until further notice considering that her
sabbatical application has not yet been approved and that she did
not teach that semester. Consequently, Diaz's name was deleted in
the payroll from September 1988 to January 1989.
On July 4, 1988, Tabujara recommended instead that Diaz be
granted a leave without pay in order to enable the CMC to hire a
substitute. The next day, the U.P.'s Secretary referred to Abad,
VicePresident (VP) for Academic Affairs, the fact of denial of such
sabbatical request, for his own comment/recommendation to the
U.P. President. Meantime, Diaz confessed her problems to Abad. On
July 8, 1988, Abad returned the Reference Slip indicating therein
that Diaz had promised him earlier "to put down in writing, from
her point of view, the historical backdrop as it were to the latest
denial of her sabbatical leave." With comments, Abad then referred
the matter to the U .P. President.
Pursuant to Administrative Order No. 42 issued by the U.P.
President, the Academic Policy Coordinating Committee (APCC), on
July 21, 1988, reviewed the case of Diaz. When reminded by Abad,
Diaz again promised to give the background information.

On Diaz's request to teach for that semester, AY 1988-89, the Vice

Chancellor for Academic Affairs, Edgardo Pacheco, and the HRDO
Director, Atty. Pio Frago, instructed Encanto that "Until Prof. Diaz
officially reports for duty, accomplishes the Certificate of Report for
Duty, and the Dean of CMC confirms her date of actual report for
duty, she is considered absent without official leave (AWOL) for the
University."
On November 8, 1988, Abad, then as OIC, issued a Memorandum
to Diaz to confirm as valid Encanto' s reason of shortage of
teaching staff in denying her sabbatical. Later, he also informed
Diaz of her lack of service during the first semester of A Y 1988-89,
hence, she is not entitled to be paid and asked her to clarify her
status of being on leave without pay.
[While Diaz was able to teach during the second semester of AY
1988-89, she was not able to claim her salaries for her refusal to
submit the Report for Duty Form.6 She received her salaries for
June to July 15, 1989, but could no longer claim her salary after
July 15, 1989, when Encanto reminded the University Cashier, in a
letter dated July 26, 1989,7 that Diaz had to "accomplish the
Report for Duty Form to entitle her to salaries and make official her
return to the service of the University."8 Diaz's name was
subsequently included in the payroll starting July 1990, when she
submitted a Report for Duty after her return from compulsory
summer leave.9]
xxxx
In the meantime, on January 3, 1989, Diaz filed a complaint with
the Office of the Ombudsman (OMB-00-89-0049), against Gemino
H. Abad, Ernesto G. Tabujara and Georgina R. Encanto, all officials
of the University of the Philippines, for the alleged violation of
Section 3(e) of R.A. 3019, involving the legality of a Report for
Duty Form as a prerequisite to the payment of her salary.
On May 4, 1989, the Ombudsman dismissed the said complaint and
ruled, inter alia:

Considering that Prof. Diaz was rightfully considered on leave

without pay during the first semester of A Y 1988-1989, to make
official her return to the service of the University, it is advised that
she accomplish the Report for Duty Form which will then be the
basis to establish the date of her actual return to the service.
However, if possible, the University authorities can perhaps
dispense with the requirement and pay her salaries for actual
services rendered from November 3, 1988.
Diaz's initial Petition for Certiorari in the Supreme Court (G.R. No.
88834) assailing the above-quoted Ombudsman's ruling was
subsequently dismissed. She filed another Petition (G.R. No.
89207) raising exactly the same issued found in G.R. No. 88834.
Meanwhile, on July 18, 1989, Diaz instituted a complaint against
the U.P., Abueva, Encanto, Tabujara and Abad with the Regional
Trial Court, Pasig, Metro Manila praying that the latter be adjudged,
jointly and severally to pay her damages. She claimed, among
others, that [respondents] conspired together as joint tortfeasors,
in not paying her salaries from July 1, 1988 in the first semester of
academic year 1988-89, for the entire period when her sabbatical
application was left unresolved, as well as the salaries she earned
from teaching in the second semester from November 1988 to May
1989. She likewise claimed moral and exemplary damages and
attorney's fees.
On August 31, 1989, the Supreme Court En Banc dismissed Diaz's
Petition in G.R. No. 89207, viz.:
It is noted that the Ombudsman found no manifest partiality,
evident bad faith, or gross inexcusable negligence on the part of
the private respondents in denying the application for sabbatical
leave of petitioner (Diaz) and in requiring her to fill up a Report for
Duty Form as a requisite for her entitlement to salary.
To the petitioner's contentions, the Ombudsman observed, among
others, the following: that, the denial of her sabbatical leave
application was due to the exigencies of the service; that petitioner
was not given a teaching assignment for the first semester of A Y
1988-1989, because she did not want to teach then; that the delay

in action on her leave application was due to petitioner's own fault

for not following the usual procedures in the processing of her
application; and that there is no malice on the part of the private
respondents in requiring petitioner to accomplish the Report for
Duty Form which is the basis of the date of her actual return to the
service.10 (Citations omitted.)

The RTC, ruling that a sabbatical leave is not a right but a privilege,
held that petitioner Diaz was entitled to such privilege and found
that the delay in the_resolution of her application was
unreasonable and unconscionable.

In a Decision dated April 1 7, 1996, the R TC ruled in favor of

petitioner Diaz, the dispositive portion of which reads:

However, on September 17, 1996, the RTC, in denying the Motions

for Reconsideration of the respondents in said case, also amended
its earlier decision by absolving respondent Encanto from any
liability, to wit:

WHEREFORE, judgment is hereby rendered in favor of plaintiff and

against defendants:

WHEREFORE, judgment is hereby rendered in favor of plaintiff and

against defendants:

1. Ordering defendants, except Abueva, to pay plaintiff,

jointly and severally, the amount of P133,665.50
representing the total unpaid salaries from July 1, 1988 to
May 31, 1989 and from July 16, 1989 to May 31, 1990 to be
covered by corresponding certificate of service, with legal
rate of interest from the date of this Decision until its full
payment.

1. Ordering defendants, except Abueva and Encanto, to pay

plaintiff, jointly and severally, the amount of P133,665.50
representing the total unpaid salaries from July 1, 1988 to
May 31, 1989 and from July 16, 1989 to May 31, 1990 to be
covered by corresponding certificate of service, with legal
rate of interest from the date of this Decision until its full
payment.

2. Ordering defendants, except the University and Abueva,

to pay plaintiff, jointly and severally, the amount of
P300,000.00 as moral damages.

2. Ordering defendants, except the University, Abueva and

Encanto, to pay plaintiff, jointly and severally, the amount of
P300,000.00 as moral damages.

3. Ordering defendants, except the University and Abueva,

to pay plaintiff, jointly and severally, the amount of
P60,000.00 as exemplary damages.

3. Ordering defendants, except the University, Abueva and

Encanto, to pay plaintiff, jointly and severally, the amount of
P60,000.00 as exemplary damages.

4. Ordering defendants, except the University and Abueva,

to pay plaintiff, jointly and severally, the reduced amount of
PS0,000.00 as and by way of attorney's fees.

4. Ordering defendants, except University, Abueva and

Encanto, to pay plaintiff, jointly and severally, the reduced
amount of P50,000.00 as and by way of attorney's fees.

5. Costs of suit.

5. Costs of suit.

The counterclaims filed by defendant Tabujara are DISMISSED.11

The counterclaims filed by defendant Tabujara are DISMISSED.12

The RTC dismissed the claim of petitioner Diaz against respondent
Encanto on the ground that her function was purely
recommendatory in nature. It held that she was not instrumental in

the unreasonable and unconscionable delay in the resolution of

petitioner Diaz's sabbatical application as she transmitted her
recommendation to Abueva within eighteen days from her receipt
of such application.13
Petitioner Diaz14 and respondents Tabujara,15 U.P., Abad16 and even
Encanto17 appealed the RTC's ruling to the Court of Appeals.

The Court of Appeals trimmed down the issue to whether or not

respondents U.P., Tabujara and Abad were negligent or acted in bad
faith in denying petitioner Diaz's application for sabbatical leave
and in withholding her salaries. In its Decision promulgated on
April 28, 2005, it effectively reversed the decision of the R TC, viz.:

The respondents mainly argued that the R TC erred in holding them

liable for damages despite the absence of bad faith on their part,
as held by both the Ombudsman in OMB-00-89-0049 and the
Supreme Court in G.R. No. 89207.

WHEREFORE, the appealed Decision is REVERSED and SET

ASIDE and a NEW JUDGMENT is RENDERED, as follows: (1)
defendant-appellant University of the Philippines, through its
appropriate officials, is DIRECTED to pay plaintiff-appellant
Elizabeth Diaz the sum of Twenty-One Thousand, Eight Hundred
Seventy-Nine and 64/100 (P21,879.64) as unpaid salaries and
allowances, and (2) the sums awarded as moral and exemplary
damages and attorney's fees are hereby DELETED. This is without
prejudice to the enforcement of valid rules and regulations of the
University of the Philippines pertaining to Diaz's employment
status.22

Petitioner Diaz, on the other hand, questioned the reversal of the R

TC ruling only with respect to the liability of respondent Encanto, in
a lone assignment of error, viz.:

The Court of Appeals found neither negligence nor bad faith on the
part of the respondents in their denial of petitioner Diaz's
sabbatical leave application and in withholding her salaries.

THE LOWER COURT GRAVELY ERRED IN REVERSING ITS

ORIGINAL DECISION WITH REGARD TO PRINCIPAL
DEFENDANT GEORGINA R. ENCANTO BY ABSOLVING HER OF
LIABILITY FOR DAMAGES TO PLAINTIFF-APPELLANT
ELIZABETH L. DIAZ WITHOUT ALTERING IN ANY MATERIAL
RESPECT WHATSOEVER THE FINDINGS OF FACT IN THE
ORIGINAL DECISION SHOWING CLEARLY THE
RESPONSIBILITY OF DEFENDANT ENCANTO FOR (I) THE
WRONGFUL DISAPPROVAL OF PLAINTIFF'S SABBATICAL
APPLICATION; (II) THE UNJUST DEPRIVATION OF
SALARIES DUE THE PLAINTIFF FOR ALMOST ONE WHOLE
SEMESTER DURING WHICH HER SABBATICAL APPLICATION
REMAINED UNRESOLVED; AND (III) THE WRONGFUL
WITHHOLDING OF PLAINTIFF'S EARNED SALARIES IN THE
THREE SUCCEEDING SEMESTERS DURING WHICH THE
PLAINTIFF TAUGHT WITHOUT BEING PAID.21

The Court of Appeals emphasized that a sabbatical leave is not a

right which could be demanded at will, even by petitioner Diaz who
has been a veteran professor of 24 years at U.P. Moreover, the
Court of Appeals said that the eventual denial of her sabbatical
leave application was not actionable in view of the fact that (i) it
would be unfair to impute negligence to respondents in the regular
discharge of their functions; and (ii) assuming that there was delay
in the resolution of her application, she herself caused such delay.23

As respondent Encanto was absolved of liability by the R TC in its

September 1 7, 1996 Order, the Court of Appeals admitted her
Brief,18 as an incorporation to the other respondents' Brief,19 and as
a comment on petitioner Diaz's appeal.20

Ruling of the Court of Appeals

The Court of Appeals also held that petitioner Diaz's own

recalcitrance and defiance to comply with certain documentary
requirements was the reason her salaries were withheld.24
Petitioner Diaz filed a Motion for Reconsideration to the
aforementioned decision, which was subsequently denied for lack
of merit in a Resolution dated January 20, 2006.
Issues

Undaunted, petitioner Diaz is again before this Court, with the

following Assignments of Error:
FIRST ASSIGNMENT OF ERROR
WITHOUT DISTURBING THE FINDINGS OF FACT OF. THE TRIAL
COURT BASED ON OVERWHELMING EVIDENCE REVEALING THE
COMMISSION BY RESPONDENTS OF THE TORTIOUS ACTS
COMPLAINED OF BY PETITIONER IN DENYING HER SABBATICAL
LEA VE, THE COURT OF APPEALS GRIEVOUSLY ERRED IN
IGNORING THOSE FINDINGS AND ADOPTING AND TREATING AS
VALID THE FLIMSY EXCUSES OF RESPONDENTS TO A VOID THE
LEGAL CONSEQUENCES OF THEIR ACTS.
SECOND ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN HOLDING CONTRARY TO THE
EVIDENCE ON RECORD, THAT "THERE WAS JUDICIOUS EXERCISE"
BY RESPONDENTS "OF THEIR DISCRETIONARY POWER WITH
RESPECT TO THE DENIAL OF THE SUBJECT SABBATICAL LEAVE."
THIRD ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN TREATING AS LAWFUL THE
WITHHOLDING OF PETITIONER'S SALARIES, CONTRARY TO THE
EVIDENCE ON RECORD.
FOURTH ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN CONCLUDING, CONTRARY TO
THE EVIDENCE ON RECORD, THAT PETITIONER "FAILED TO SHOW
BY A PREPONDERANCE OF EVIDENCE THE NEGLIGENCE OF
RESPONDENTS SO AS TO BE ENTITLED TO THE DAMAGES
SOUGHT."

SIXTH ASSIGNMENT OF ERROR

THE COURT OF APPEALS ERRED IN NOT FINDING, CONTRARY TO
THE EVIDENCE ON RECORD, THAT RESPONDENTS EN CANTO,
TABUJARA AND ABAD ARE JOINTLY AND SEVERALLY LIABLE TO
PETITIONER FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES AS
JOINT TORTFEASORS UNDER THE LAW.25
The issue in this case boils down to whether or not the respondents
acted in bad faith when they resolved petitioner Diaz's application
for sabbatical leave and withheld her salaries.
Ruling of the Court
The resolution of this case hinges on the question of bad faith on
the part of the respondents in denying petitioner Diaz's sabbatical
leave application and withholding of her salaries. Bad faith,
however, is a question of fact and is evidentiary.26 Thus, contrary to
petitioner Diaz's belief that " [ w ]hat is involved in this stage of
the case is the legal interpretation or the legal consequence of the
material facts of this case," the resolution of the issue at hand
involves a question of fact, which the respondents rightly assert, is
not within the province of a Rule 45 petition.27Nonetheless, the
Court makes an exception in this case especially so that both the
RTC and the Court of Appeals have the same findings of fact, but
they arrived at different conclusions.28
Application for Sabbatical Leave
Petitioner Diaz's complaint29 for recovery of damages before the
RTC was based on the alleged bad faith of the respondents in
denying her application for sabbatical leave vis-a-vis Articles 19
and 20 of the Civil Code.30
Articles 19 and 20 read as follows:

FIFTH ASSIGNMENT OF ERROR

THE COURT OF APPEALS ERRED IN NOT CORRECTLY COMPUTING
THE SUM OF PETITIONER'S UNPAID AND EARNED SALARIES, IN
UTTER DISREGARD OF THE EVIDENCE ON RECORD.

Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.

Art. 20. Every person who, contrary to law, willfully or negligently

causes damage to another, shall indemnify the latter for the same.
Article 19 of the Civil Code "prescribes a 'primordial limitation on all
rights' by setting certain standards that must be observed in the
exercise thereof."31 Abuse of right under Article 19 exists when the
following elements are present: (1) there is a legal right or duty;
(2) which is exercised in bad faith; (3) for the sole intent of
prejudicing or injuring another.32
This Court, expounding on the concept of bad faith under Article
19, held:
Malice or bad faith is at the core of Article 19 of the Civil Code.
Good faith refers to the state of mind which is manifested by the
acts of the individual concerned. It consists of the intention to
abstain from taking an unconscionable and unscrupulous
advantage of another. It is presumed. Thus, he who alleges bad
faith has the duty to prove the same. Bad faith does not simply
connote bad judgment or simple negligence; it involves a dishonest
purpose or some moral obloquy and conscious doing of a wrong, a
breach of known duty due to some motives or interest or ill will
that partakes of the nature of fraud. Malice connotes ill will or spite
and speaks not in response to duty. It implies an intention to do
ulterior and unjustifiable harm. Malice is bad faith or bad
motive.33(Citations omitted.)
Undoubtedly, the respondents had a duty to resolve petitioner
Diaz's sabbatical leave application. The crucial question is if they
did so with the intention of prejudicing or injuring petitioner Diaz.
We hold in the negative.
There is no dispute, and both the RTC and the Court of Appeals
agree, that the grant of a sabbatical leave is not a matter of right,
but a privilege. Moreover, the issue of whether or not the
respondents acted in bad faith when they denied petitioner Diaz's
application for sabbatical leave has been answered several times,
in separate jurisdictions.

On May 4, 1989, the Ombudsman issued a Resolution34 in Case No.

OMB-0-89-0049 on the complaint filed by petitioner Diaz against
respondents Encanto, Tabujara, and Abad for violation of Section
3(e) of Republic Act No. 3019, recommending the dismissal of the
complaint for lack of merit. It found no manifest partiality, evident
bad faith, or gross inexcusable negligence on the part of the
respondents in their denial of petitioner Diaz's application for
sabbatical leave and in requiring her to accomplish a Report for
Duty form as a prerequisite for her entitlement to salary.
Petitioner Diaz protested the outcome of this resolution by filing a
special civil action for certiorari with this Court, on two occasions.
When G.R. No. 88834 was dismissed for non-compliance with
Circular No. 1-88,35 petitioner Diaz re-filed her petition, raising
exactly the same issues, and this was docketed as G.R. No.
89207.36
On August 31, 1989, this Court issued a Resolution,37 dismissing
petitioner Diaz's petition in G.R. No. 89207. This Court noted the
Ombudsman's findings and observations and found them to be
supported by substantial evidence.
On April 28, 2005, the Court of Appeals had the same findings and
held that the denial of petitioner Diaz's application for sabbatical
leave was "a collegial decision based on UP. 's established rules,
the grant of which is subject to the exigencies of the service, like
acute shortage in teaching staff" It added that "the UP. officials'
eventual denial of [Diaz's} application is not actionable xx x it is
unfair to impute negligence to [respondents] in the regular
discharge of their official functions. "38
The Ombudsman and all three courts, starting from the R TC to this
Court, have already established that a sabbatical leave is not a
right and therefore petitioner Diaz cannot demand its grant. It does
not matter that there was only one reason for the denial of her
application, as the approving authorities found that such reason
was enough. Moreover, not only the Court of Appeals but also the
Ombudsman, and this Court, have ruled that the respondents did
not act in bad faith when petitioner Diaz's sabbatical leave
application was denied. Those three separate rulings verily must be
given great weight in the case at bar.

The Court does not find any reason to disregard those findings,
especially when our own perusal of the evidence showed no traces
of bad faith or malice in the respondents' denial of petitioner Diaz's
application for sabbatical leave. They processed her application in
accordance with their usual procedure - with more leeway, in fact,
since petitioner Diaz was given the chance to support her
application when she was asked to submit a historical background;
and the denial was based on the recommendation of respondent
Encanto, who was in the best position to know whether petitioner
Diaz's application should be granted or not.
While the RTC declared that petitioner Diaz should have been
granted a sabbatical leave, it is important to note that the RTC
awarded damages to petitioner Diaz merely for the
unreasonable and unconscionable delay in the resolution of
her sabbatical leave application,39 and not its denial per
se. Thus, petitioner Diaz's entitlement to a sabbatical leave should
no longer be an issue in this case. This is supported by petitioner
Diaz's own action when she did not move for the reconsideration of
the April 17, 1996 Decision of the RTC for awarding her damages
due only to the delay in the resolution of her sabbatical leave
application and not for its denial; and more so by the prayer in her
petition to this Court wherein she asked that the April 17, 1996
Decision of the RTC be "reinstated and affirmed in toto."40
Nevertheless, on the question of whether or not there was bad
faith in the delay of the resolution of petitioner Diaz's sabbatical
leave application, the Court still rules in the negative. "It is an
elementary rule in this jurisdiction that good faith is presumed and
that the burden of proving bad faith rests upon the party alleging
the same."41Petitioner Diaz has failed to prove bad faith on the part
of the respondents. There is nothing in the records to show that
the respondents purposely delayed the resolution of her application
to prejudice and injure her. She has not even shown that the delay
of six months in resolving a sabbatical leave application has never
happened prior to her case. On the contrary, any delay that
occurred was due to the fact that petitioner Diaz's application for
sabbatical leave did not follow the usual procedure; hence, the
processing of said application took time.42

In petitioner Diaz's petition, she criticized the Court of Appeals for

imputing the cause of delay to her, arguing that as the requirement
that a sabbatical leave application be filed at least one semester
before its intended date of effectivity was only imposed in 1990,
long after she had filed hers in 1988.43 But, precisely, this rule may
have been imposed by U.P. to address any untoward delays and to
likewise provide a time frame for the approving authorities in
resolving sabbatical leave applications.
This Court understands petitioner Diaz's frustration, but she cannot
keep on arguing that the facts, as established, and which she
herself does not dispute, had been misappreciated.in different
occasions.
Petitioner Diaz's Withheld Salaries
Petitioner Diaz is entitled to her withheld salaries from July 1, 1988
to October 31, 1988, and from November 1, 1988 to May 31, 1989,
and July 16, 1989 to May 31, 1990, upon submission of the
required documents.
The denial of petitioner Diaz's salaries during the first semester of
Academic Year (AY) 1988-1989 was due to the fact that she did not
teach that semester. But when respondent Lazaro removed
petitioner Diaz's name from the final schedule of teaching
assignments in CMC for the first semester of AY 1988-89, it was
without petitioner Diaz's prior knowledge, as admitted by
respondent Lazaro herself, to wit:
ATTY. DIAZ: Now, did Prof. Diaz ask you to remove her from [the]
schedule of classes?
LAZARO: I did it.
Q: Because you said you did it on your own?
A: Yes.
xxxx

Q: She did not [ask] you?

A: No.44
The Court, however, observes that respondent Lazaro, in so doing,
did not act in bad faith as she expected petitioner Diaz's application
for leave, of whatever nature, to be granted. As such, she did not
want Diaz to have to drop the classes she was already handling
once her sabbatical leave was approved, as was the case the
semester before, when petitioner Diaz dropped her classes, three
weeks into the start of the semester, when her application for sick
leave was approved, viz.:
ATTY. GUNO: You mentioned a while ago that you deleted the name
of Professor Diaz from this final schedule of classes.1wphi1 Why
did you delete it?
LAZARO: I presumed in good faith that based on the letter she
sent which was routed to me where she stated she could no longer
be efficient and effective as a teacher and she was suffering from
fatigue and that she could no longer work under those
circumstances, I felt, as a gesture of sympathy to her that this
should be granted suggesting that she be given a leave of absence
of whatever kind she was qualified for and based on my previous
experience on the second semester where two to three weeks into
the course she dropped her courses, I did not want that to happen
again.45
ATTY. GUNO: You also testified that because of the application for
sabbatical leave and the reasons she gave in that letter, you
deleted her name in the final list of class schedule for school year
1988-89 first semester?
LAZARO: Yes.
Q: Why did you delete her name, will you tell the Court?
A: She had applied for sabbatical leave for the whole year of 198889 and based on the experience of her sick leave during the
previous semester which was the second semester of the previous

school year where three (3) weeks into classes she filed for a sick
leave and did not teach, based on that experience, I did not include
her name in the class list because the same thing could happen
again.46
While petitioner Diaz was not consulted about the removal of her
name from the class schedule, she did not contest such upon the
belief that her application for sabbatical leave would be approved,
as in fact, she was given her salary in June 1988. As such, this
Court believes, in the interest of equity and fairness, that petitioner
Diaz should be entitled to her salary during the semester when her
name was dropped from the final list of schedule of classes,
without her knowledge and consent, and while action on her
application for sabbatical leave was still pending.47
On the matter of her salaries from the second semester of A Y
1988-89 up until A Y 1989-1990, the respondents legally withheld
such, as found by the Ombudsman and the Court of Appeals for
petitioner Diaz's own refusal to comply with the documentary
requirements of U.P. Even the RTC, in its Omnibus Order of January
12, 1990, denied petitioner Diaz's petition for mandatory injunction
upon the finding that the Report for Duty Form required of her is a
basic and standard requirement that is asked from all employees of
U.P. The RTC held:
It is therefore clear that the acts sought to be enjoined [by Diaz]
are in fact pursuant to the proper observance of administrative or
internal rules of the University. This Court sympathizes with [Diaz]
for not being able to receive her salaries after July 15, 1989.
However, such predicament cannot be outrightly attributable to the
defendants, as their withholding of her salaries appears to be in
accordance with existing University regulations.
Apart from such reasons, this Court believes that petitioner Diaz
failed to show why she should be spared from the Report for Duty
requirement, which remains a standard practice even in other
offices or institutions. To be entitled to an injunctive writ, one must
show an unquestionable right and/or blatant violation of said right
to be entitled to its issuance.48

But it cannot be denied that during the periods of November

1, 1988 to May 31, 1988 and July 16, 1989 to May 31, 1990,
petitioner Diaz rendered service to U.P. for which she should be
compensated.

periods when she was refused payment of her salaries for not
accomplishing a Report for Duty Form - will be from the time
petitioner Diaz submits the required Report for Duty Form up to the
full satisfaction thereof, is 6% per annum.

Given the foregoing, petitioner Diaz should be paid, as the RTC had
computed, her salaries from July l, 1988 to October 1988, the
semester when petitioner Diaz's name was dropped from the final
list of schedule of classes, without her prior knowledge and
consent; and for the periods of November 1, 1988 to May 31, 1989
and July 16, 1989 to May 31, 1990, for the work she rendered
during said periods, but upon petitioner Diaz's submission
of the documents required by U.P.

WHEREFORE, the instant petition is DENIED. The assailed

Decision of the Court of Appeals in CA-G.R. CV No. 55165 is
hereby AFFIRMED with MODIFICATION in that the University of
the Philippines, through its appropriate officials, is directed to pay
petitioner Elizabeth L. Diaz her withheld salaries 1) from July 1,
1988 to October 31, 1988, with legal interest at the rate of six
percent (6%) per annum, computed from the date of the Decision
of the R TC on April 17, 1996 until fully paid; and 2) from
November 1, 1988 to May 31, 1989 and July 16, 1989 to May 31,
1990, with legal interest at the rate of six percent (6%) per annum
computed from the date petitioner Elizabeth L. Diaz submits the
documents required by the University of the Philippines until fully
paid.

No Payment of Other Damages

Given that the respondents have not abused their rights, they
should not be held liable for any damages sustained by petitioner
Diaz. "The law affords no remedy for damages resulting from an
act which does not amount to a legal wrong. Situations like this
have been appropriately denominated damnum absque
injuria."49Similarly, the Court cannot grant petitioner Diaz's claim
for attorney's fees as no premium should be placed on the right to
litigate. "Even when a claimant is compelled to litigate or to incur
expenses to protect his rights, still attorney's fees may not be
awarded where there is no sufficient showing of bad faith in a
party's persistence in a case other than an erroneous conviction of
the righteousness of his cause."50

SO ORDERED.
G.R. No. 198994, February 03, 2016
IRIS MORALES, Petitioners, v. ANA MARIA OLONDRIZ,
ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO MORENO
OLONDRIZ, ISABEL ROSA OLONDRIZ AND FRANCISCO
JAVIER MARIA OLONDRIZ, Respondent.
DECISION

Legal Interest Due on the Salaries Withheld

Pursuant to Nacar v. Gallery Frames,51 the applicable rate of legal
interest due on petitioner Diaz's withheld salaries - (i) from July
1, 1988 to October 31, 1988, the period corresponding to the first
semester of A Y 1988-89, when her name was removed from the
final list of class schedule without her prior knowledge and consent,
less the amount she had received in June 1988 - will be from April
17, 1996, the date of the Decision of the RTC, up to the full
satisfaction thereof, is 6% per annum; and (ii) from November 1,
1988 to May 31, 1989, and July 16, 1989 to May 31, 1990, the

BRION, J.:
This is a petition for review on certiorari filed by Iris Morales from
the May 27, 2011 decision and October 12, 2011 resolution of the
Court of Appeals (CA) in CA-G.R. SP No. 102358.1 The CA denied
Morales' petition for certiorari from the Regional Trial Court's (RTC)
July 12, 2007 and October 30, 2007 orders in SP. Proc. No. 030060 and SP. Proc. No. 03-0069.2chanroblesvirtuallawlibrary
Antecedents

Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003.

He was survived by his widow, Ana Maria Ortigas de Olondriz, and
his children: Alfonso Juan O. Olondriz, Jr., Alejandro Marino O.
Olondriz, Isabel Rosa O. Olondriz, Angelo Jose O. Olondriz, and
Francisco Javier Maria Bautista Olondriz. His widow and children
are collectively referred to as the respondent heirs.
Believing that the decedent died intestate, the respondent heirs
filed a petition with the Las Pias RTC for the partition of the
decedent's estate and the appointment of a special administrator
on July 4, 2003. The case was raffled to Branch 254 and docketed
as Sp. Proc. Case No. SP-03-0060.
On July 11, 2003, the RTC appointed Alfonso Juan O. Olondriz, Jr.
as special administrator.
However, on July 28, 2003, Iris Morales filed a separate petition
with the RTC alleging that the decedent left a will dated July 23,
1991. Morales prayed for the probate of the will and for hex
appointment as special administratrix. Her petition was also raffled
to Branch 254 and docketed asSp. Proc. Case No. SP-03-0069.
The pertinent portions of the decedent's will
reads:chanRoblesvirtualLawlibrary
1. Upon my death, IRIS MORALES OLONDRIZ shall be
the executor hereof and administrator of my estate
until its distribution in accordance herewith, x x x
2. My entire estate shall be divided into six (6) parts to
be distributed equally among and between (1) IRIS
MORALES OLONDRIZ, my children (2) ALFONSO
JUAN OLONDRIZ, JR., (3) ALEJANDRO OLONDRIZ,
(4) ISABEL OLONDRIZ, (5) ANGELO OLONDRIZ, and
their mother (6) MARIA ORTEGAS OLONDRIZ, SR.3
Notably, the will omitted Francisco Javier Maria Bautista Olondriz,
an illegitimate son of the decedent.
On September 1, 2003, Morales filed a manifestation in Sp. Proc.
Case No. SP-03-0060 and moved to suspend the intestate
proceedings in order to give way to the probate proceedings in Sp.

Proc. Case No. SP-03-0069. The respondent heirs opposed

Morales' motion for suspension and her petition for allowance of
the will.
On November 27, 2003, the RTC consolidated Sp. Proc. Case No.
SP-03-0060 with Sp. Proc. Case No. SP-03-0069.
On January 6, 2004, the respondent heirs moved to dismiss the
probate proceedings because Francisco was preterited from the
will.
On January 10, 2006, Morales agreed to the holding of an
evidentiary hearing to resolve the issue of preterition. Thus, the
RTC ordered the parties to submit their factual allegations to
support or negate the existence of preterition. Only the respondent
heirs complied with this order.
After several postponements at the instance of Morales, the
reception of evidence for the evidentiary hearing was scheduled on
May 29, 2006. However, Morales failed to appear, effectively
waiving her right to present evidence on the issue of preterition.
On June 23, 2006, the RTC, through Judge Gloria Butay Aglugub,
suspended the intestate proceedings in Sp. Proc. Case No. SP03-0060 and set the case for probate. The RTC reasoned that
probate proceedings take precedence over intestate proceedings.
The respondent heirs moved for reconsideration of the suspension
order but the RTC denied the motion on September 1, 2006. The
RTC also summarily revoked the Letters of Administration
previously issued to Alfonso Jr.
The respondent heirs moved for reconsideration of the summary
revocation of the Letters of Administration. They also moved for
the inhibition of Judge Aglugub of Branch 254.
On November 16, 2006, the RTC granted the motion for inhibition.
The case was transferred toBranch 253 presided by Judge
Salvador V. Timbang, Jr.
On July 12, 2007, the RTC resolved (1) the respondent heirs'
motion for reconsideration of the revocation of the Letters of
Administration and (2) Morales' motion to be appointed Special
Administratrix of the estate. The RTC noted that while testacy is

preferred over intestacy, courts will not hesitate to set aside

probate proceedings if it appears that the probate of the will might
become an idle ceremony because the will is intrinsically void.
The RTC observed: (1) that Morales expressly admitted that
Francisco Javier Maria Bautista Olondriz is an heir of the decedent;
(2) that Francisco was clearly omitted from the will; and (3) that
based on the evidentiary hearings, Francisco was clearly preterited.
Thus, the RTC reinstated Alfonso Jr. as administrator of the estate
and ordered the case to proceed in intestacy.
Morales moved for reconsideration which the RTC denied on
October 30, 2007, for lack of merit.
On February 7, 2008, Morales filed a petition for certiorari against
the orders of the RTC. Morales alleged that the RTC acted with
grave abuse of discretion in proceeding intestate despite the
existence of the will. The petition was docketed as CA-G.R. SP No.
102358.
On May 27, 2011, the CA dismissed Morales' petition for certiorari.
The CA reasoned that while probate proceedings take precedence
over intestate proceedings, the preterition of a compulsory heir in
the direct line annuls the institution of heirs in the will and opens
the entire inheritance into intestate succession.4 Thus, the
continuation of the probate proceedings would be superfluous and
impractical because the inheritance will be adjudicated intestate.
The CA concluded that the RTC did not act with grave abuse of
discretion.
Morales moved for reconsideration which the CA denied on October
12, 2011. Hence, she filed the present petition for review
on certiorari on December 5, 2011.
The Petition
Morales maintains that the RTC committed grave abuse of
discretion when it ordered the case to proceed intestate because:
(1) the probate of a decedent's will is mandatory; (2) the RTC
Branch 254 already ordered the case to proceed into probate; (3)
the order setting the case for probate already attained finality; (3)
the probate court cannot touch on the intrinsic validity of the will;
and (4) there was no preterition because Francisco received a
house and lot inter vivos as an advance on his legitime.

The respondent heirs counter: (1) that it is within the RTC's

jurisdiction to reverse or modify an interlocutory order setting the
case for probate; (2) that the petitioner failed to mention that she
did not appear in any of the evidentiary hearings to disprove their
allegation of preterition; (3) that the RTC and the CA both found
that Francisco was preterited from the will; and (4) that Francisco's
preterition annulled the institution of heirs and opened the case
into intestacy. They conclude that the RTC did not exceed its
jurisdiction or act with grave abuse of discretion when it reinstated
Alfonso Jr. as the administrator of the estate and ordered the case
to proceed intestate.
Our Ruling
We join the ruling of the CA.
Preterition consists in the omission of a compulsory heir from the
will, either because he is not named or, although he is named as a
father, son, etc., he is neither instituted as an heir nor assigned any
part of the estate without expressly being disinherited - tacitly
depriving the heir of his legitime.5Preterition requires that the
omission is total, meaning the heir did not also receive any
legacies, devises, or advances on his legitime.6
In other words, preterition is the complete and total omission of a
compulsory heir from the testator's inheritance without the heir's
express disinheritance.
Article 854 of the Civil Code states the legal effects of
preterition:chanRoblesvirtualLawlibrary
Art. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and
legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
representation, (emphasis supplied)cralawlawlibrary
Under the Civil Code, the preterition of a compulsory heir in the
direct line shall annul the institution of heirs, but the devises and
legacies shall remain valid insofar as the legitimes are not
impaired. Consequently, if a will does not institute any devisees or

legatees, the preterition of a compulsory heir in the direct line will

result in total intestacy.7
In the present case, the decedent's will evidently omitted Francisco
Olondriz as an heir, legatee, or devisee. As the decedent's
illegitimate son, Francisco is a compulsory heir in the direct line.
Unless Morales could show otherwise, Francisco's omission from
the will leads to the conclusion of his preterition.
During the proceedings in the RTC, Morales had the opportunity to
present evidence that Francisco received donations inter vivos and
advances on his legitime from the decedent. However, Morales did
not appear during the hearing dates, effectively waiving her right
to present evidence on the issue. We cannot fault the RTC for
reaching the reasonable conclusion that there was preterition.
We will not entertain the petitioner's factual allegation that
Francisco was not preterited because this Court is not a trier of
facts. Furthermore, the CA concurred with the RTC's conclusion. We
see no cogent reason to deviate from the factual findings of the
lower courts.
The remaining question is whether it was proper for the RTC to (1)
pass upon the intrinsic validity of the will during probate
proceedings and (2) order the case to proceed intestate because of
preterition.
The general rule is that in probate proceedings, the scope of the
court's inquiry is limited to questions on the extrinsic validity of
the will; the probate court will only determine the will's formal
validity and due execution.8 However, this rule is not inflexible and
absolute.9 It is not beyond the probate court's jurisdiction to pass
upon the intrinsic validity of the will when so warranted by
exceptional circumstances.10 When practical considerations demand
that the intrinsic validity of the will be passed upon even before it
is probated, the probate court should meet the issue.11
The decedent's will does not contain specific legacies or devices
and Francisco's preterition annulled the institution of heirs. The
annulment effectively caused the total abrogation of the will,
resulting in total intestacy of the inheritance.12 The decedent's will,
no matter how valid it may appear extrinsically, is null and void.
The conduct of separate proceedings to determine the intrinsic

validity of its testamentary provisions would be superfluous. Thus,

we cannot attribute error - much less grave abuse of discretion on the RTC for ordering the case to proceed intestate.
Finally, there is no merit in the petitioner's argument that the
previous order setting the case for probate barred the RTC from
ordering the case to proceed intestate. The disputed order is
merely interlocutory and can never become final and executory in
the same manner that a final judgment does.13 An interlocutory
order does not result in res judicata.14 It remains under the control
of the court and can be modified or rescinded at any time before
final judgment.15
Certiorari is a limited form of review confined to errors of
jurisdiction. An error of jurisdiction is one where the officer or
tribunal acted without or in excess of its jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.16 As
discussed, it is well within the jurisdiction of the probate court to
pass upon the intrinsic validity of the will if probate proceedings
might become an idle ceremony due to the nullity of the will.
On the other hand, grave abuse of discretion is the capricious and
whimsical exercise of judgment equivalent to an evasion of positive
duty, or a virtual refusal to act at all in contemplation of the
law.17 It is present when power is exercised in a despotic manner
by reason, for instance, of passion and hostility. Morales failed to
show that the RTC acted in such a capricious and despotic manner
that would have warranted the CA's grant of her petition
for certiorari. On the contrary, the RTC acted appropriately in
accordance with the law and jurisprudence.cralaw-red
WHEREFORE, the petition is DISMISSED. Costs against the
petitioner.
SO ORDERED.

G.R. No. L-24365

June 30, 1966

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E.

CHRISTENSEN, deceased.
ADOLFO C. AZNAR, executor and appellee,
vs.

MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant.

MARIA HELEN CHRISTENSEN, oppositor and appellee.
J. Salonga and L. M. Abellera for oppositor and appellee.
Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with domicile in the
Philippines, died leaving a will executed on March 5, 1951. The will
was admitted to probate by the Court of First Instance of Davao in
its decision of February 28, 1954. In that same decision the court
declared that Maria Helen Christensen Garcia (hereinafter referred
to as Helen Garcia) was a natural child of the deceased. The
declaration was appealed to this Court, and was affirmed in its
decision of February 14, 1958 (G.R. No. L-11484).
In another incident relative to the partition of the deceased's
estate, the trial court approved the project submitted by the
executor in accordance with the provisions of the will, which said
court found to be valid under the law of California. Helen Garcia
appealed from the order of approval, and this Court, on January
31, 1963, reversed the same on the ground that the validity of the
provisions of the will should be governed by Philippine law, and
returned the case to the lower court with instructions that the
partition be made as provided by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued
an order approving the project of partition submitted by the
executor, dated June 30, 1964, wherein the properties of the estate
were divided equally between Maria Lucy Christensen Duncan
(named in the will as Maria Lucy Christensen Daney, and
hereinafter referred to as merely Lucy Duncan), whom the testator
had expressly recognized in his will as his daughter (natural) and
Helen Garcia, who had been judicially declared as such after his
death. The said order was based on the proposition that since
Helen Garcia had been preterited in the will the institution of Lucy
Duncan as heir was annulled, and hence the properties passed to
both of them as if the deceased had died intestate, saving only the
legacies left in favor of certain other persons, which legacies have
been duly approved by the lower court and distributed to the
legatees.

The case is once more before us on appeal, this time by Lucy

Duncan, on the sole question of whether the estate, after
deducting the legacies, should pertain to her and to Helen Garcia in
equal shares, or whether the inheritance of Lucy Duncan as
instituted heir should be merely reduced to the extent necessary to
cover the legitime of Helen Garcia, equivalent to 1/4 of the entire
estate.
The will of Edward E. Christensen contains, among others, the
following clauses which are pertinent to the issue in this case:
3. I declare ... that I have but ONE (1) child, named MARIA
LUCY CHRISTENSEN (Now Mrs. Bernard Daney), who was
born in the Philippines about twenty-eight years ago, who is
now residing at No. 665 Rodger Young Village, Los Angeles,
California, U.S.A.
4. I further declare that I now have no living ascendants,
and no descendants except my above-named daughter,
MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

7. I give, devise, and bequeath unto MARIA HELEN

CHRISTENSEN, now married to Eduardo Garcia, about
eighteen years of age and who, notwithstanding the fact
that she was baptized Christensen, is not in any way related
to me, nor has she been at any time adopted by me, and
who, from all information I have now resides in Egpit,
Digos, Davao, Philippines, the sum of THREE THOUSAND
SIX HUNDRED PESOS (P3,600.00), Philippine Currency, the
same to be deposited in trust for the said Maria Helen
Christensen with the Davao Branch of the Philippine
National Bank, and paid to her at the rate of One Hundred
Pesos (P100.00), Philippine Currency per month until the
principal thereof as well as any interest which may have
accrued thereon, is exhausted.
xxx

xxx

xxx

12. I hereby give, devise and bequeath, unto my wellbeloved daughter, the said MARIA LUCY CHRISTENSEN
DANEY (Mrs. Bernard Daney) now residing, as aforesaid, at

No. 665 Rodger Young Village, Los Angeles, California,

U.S.A., all the income from the rest, remainder, and residue
of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of
which I may be possessed at my death and which may have
come to me from any source whatsoever, during her
lifetime; Provided, however, that should the said MARIA
LUCY CHRISTENSEN DANEY at anytime prior to her decease
having living issue, then and in that event, the life interest
herein given shall terminate, and if so terminated, then I
give, devise, and bequeath to my daughter, the said MARIA
LUCY CHRISTENSEN DANEY the rest, remainder and residue
of my property with the same force and effect as if I had
originally so given, devised and bequeathed it to her; and
provided, further, that should the said MARIA LUCY
CHRISTENSEN DANEY die without living issue, then, and in
that event, I give, devise and bequeath all the rest,
remainder and residue of my property one-half (1/2) to my
well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now
residing at No. 2124, Twentieth Street, Bakersfield,
California, U.S.A., and one-half (1/2) to the children of my
deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs.
Carol F. Ruggaver, of Los Angeles, California, U.S.A., and
Joseph Raymond Christensen, of Manhattan Beach,
California, U.S.A., share and share alike, the share of any of
the three above named who may predecease me, to go in
equal parts to the descendants of the deceased; and,
provided further, that should my sister Mrs. Carol Louise C.
Borton die before my own decease, then, and in that event,
the share of my estate devised to her herein I give, devise
and bequeath to her children, Elizabeth Borton de Trevio,
of Mexico City Mexico; Barbara Borton Philips, of
Bakersfield, California, U.S.A., and Richard Borton, of
Bakersfield, California, U.S.A., or to the heirs of any of them
who may die before my own decease, share and share alike.
The trial court ruled, and appellee now maintains, that there has
been preterition of Helen Garcia, a compulsory heir in the direct
line, resulting in the annulment of the institution of heir pursuant
to Article 854 of the Civil Code, which provides:
ART. 854. The preterition or omission of one, some, or all of
the compulsory heirs in the direct line, whether living at the
time of the execution of the will or born after the death of

the testator, shall annul the institution of heir; but the

devises and legacies shall be valid insofar as they are not
inofficious.
On the other hand, appellant contends that this is not a case of
preterition, but is governed by Article 906 of the Civil Code, which
says: "Any compulsory heir to whom the testator has left by any
title less than the legitime belonging to him may demand that the
same be fully satisfied." Appellant also suggests that considering
the provisions of the will whereby the testator expressly denied his
relationship with Helen Garcia, but left to her a legacy nevertheless
although less than the amount of her legitime, she was in effect
defectively disinherited within the meaning of Article 918, which
reads:
ART. 918. Disinheritance without a specification of the
cause, or for a cause the truth of which, if contradicted, is
not proved, or which is not one of those set forth in this
Code, shall annul the institution of heirs insofar as it may
prejudice the person disinherited; but the devices and
legacies and other testamentary dispositions shall be valid
to such extent as will not impair the legitimate.
Thus, according to appellant, under both Article 906 and 918,
Helen Garcia is entitled only to her legitime, and not to a share of
the estate equal that of Lucy Duncan as if the succession were
intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil
Code; and Article 906 of Article 815. Commenting on Article 815,
Manresa explains:
Como dice Goyena, en el caso de pretericion puede
presumirse ignorancia o falta de memoria en el testador; en
el de dejar algo al heredero forzoso no. Este no se
encuentra plivado totalmente de su legitima: ha recibido
por cualquir titulo una porcion de los bienes hereditarios,
porcion que no alcanza a completar la legitima, pero que
influeye poderosamente en el animo del legislador para
decidirle a adoptar una solucion bien diferente de la
sealada para el caso de pretericion.

El testador no ha olvidado por completo al heredero

forzoso; le ha dejado bienes; pero haciendo un calculo
equivocado, ha repartido en favor de extraos o en favor de
otros legitimarios por via de legado donacion o mejora
mayor cantidad de la que la ley de consentia disponer. El
heredero forzoso no puede perder su legitima, pero
tampoco puede pedir mas que la misma. De aqui su
derecho a reclamar solamente lo que le falta; al
complemento de la porcion que forzosamente la
corresponde.
... Dejar el testador por cualquier titulo, equivale a disponer
en testamento por titulo de herencia legado o mejora, y en
favor de legitimarios, de alguna cantidad o porcion de
bienes menos que la legitima o igual a la misma. Tal
sentido, que es el mas proprio en al articulo 815, no pugna
tampoco con la doctrina de la ley.Cuando en el testamento
se deja algo al heredero forzoso, la pretericion es
incompleta: es mas formularia que real. Cuando en el
testamento nada se deja el legitimario, hay verdadera
pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)
On the difference between preterition of a compulsory heir and the
right to ask for completion of his legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la
pretericion puede serlo pero se presume involuntaria la
omision en que consiste en cuanto olvida o no atiende el
testador en su testamento a la satisfaccion del derecho a la
legitima del heredero forzoso preterido, prescindiendo
absoluta y totalmente de el y no mencionandole en ninguna
de sus disposiciones testamentarias, o no instituyendole en
parte alguna de la herencia, ni por titulo de heredero ni por
el de legatar o aunque le mencionara o nombrara sin dejarle
mas o menos bienes. Si le dejara algunos, por pocos que
sean e insuficientes para cubrir su legitima, ya no seria caso
de pretericion, sino de complemento de aquella. El primer
supuesto o de pretericion se regula por el articulo 814, y
produce accion de nulidad de la institucion de heredero; y el
segundo, o de complemento de legitima por el 815 y solo
original la accion ad suplementum, para completar la
legitima. (Sanchez Roman, Tomo VI, Vol. 2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will,

either by not naming him at all or, while mentioning him as father,
son, etc., by not instituting him as heir without disinheriting him
expressly, nor assigning to him some part of the properties.
Manresa continues:
Se necesita pues (a) Que la omision se refiera a un
heredero forzoso; (b) Que la omision sea completa; que el
heredero forzoso nada reciba en el testamento.1wph1.t
xxx

xxx

xxx

B. Que la omision sea completa Esta condicion se deduce

del mismo Articulo 814 y resulta con evidencia al relacionar
este articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquier titulo en su testamento, no
se halla propiamente omitido pues se le nombra y se le
reconoce participacion en los bienes hereditarios. Podria
discutirse en el Articulo 814 si era o no necesario que se
reconociese el derecho del heredero como tal heredero,
pero el articulo 815 desvanece esta duda. Aquel se ocupa
de privacion completa o total, tacita este, de la privacion
parcial. Los efectos deben ser y son, como veremos
completamente distintos (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en absoluto al
legitimario, despojarle de ella por completo. A este caso se
refiere el articulo 814. Privar parcialmente de la legitima, es
menguarla o reducirla dejar al legitimario una porcion,
menor que la que le corresponde. A este caso se refiere el
articulo 815. El 813 sienta, pues, una regla general, y las
consecuencias del que brantamiento de esta regla se
determina en los articulos 814 y 815. (6 Manresa p. 418.)
Again Sanchez Roman:
QUE LA OMISSION SEA TOTAL. Aunque el articulo 814 no
consigna de modo expreso esta circunstancia de que la
pretericion o falta de mencion e institucion o disposicion
testamentaria a su favor, sea total, completa y absoluta, asi
se deduce de no hacer distincion o salvedad alguna

empleandola en terminos generales; pero sirve a

confirmarlo de un modo indudable el siguiente articulo 815,
al decir que el heredero forzoso a quien el testador haya
dejado por cualquier titulo, menos de la legitima que la
corresponda, podria pedir el complemento de la misma, lo
cual ya no son el caso ni los efectos de la pretericion, que
anula la institucion, sino simplemente los del suplemento
necesario para cubrir su legitima. (Sanchez Roman Tomo
VI, Vol. 2.0 p. 1133.)
The question may be posed: In order that the right of a forced heir
may be limited only to the completion of his legitime (instead of
the annulment of the institution of heirs) is it necessary that what
has been left to him in the will "by any title," as by legacy, be
granted to him in his capacity as heir, that is, a titulo de heredero?
In other words, should he be recognized or referred to in the will as
heir? This question is pertinent because in the will of the deceased
Edward E. Christensen Helen Garcia is not mentioned as an heir
indeed her status as such is denied but is given a legacy of
P3,600.00.
While the classical view, pursuant to the Roman law, gave an
affirmative answer to the question, according to both Manresa (6
Manresa 7th 3rd. 436) and Sanchez Roman (Tomo VI, Vol. 2.0 p.
937), that view was changed by Article 645 of the "Proyecto de
Codigo de 1851," later on copied in Article 906 of our own Code.
Sanchez Roman, in the citation given above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. Se
inspira el Codigo en esta materia en la doctrina clasica del
Derecho romano y patrio (2); pero con alguna racional
modificacion. Concedian aquellos precedentes legales al
heredero forzoso, a quien no se le dejaba por titulo de tal el
completo de su legitima, la accion para invalidar la
institucion hecha en el testamento y reclamar y obtener
aquella mediante el ejercicio de la querella de inoficioso, y
aun cuando resultara favorecido como donotario, por otro
titulo que no fuera el de heredero, sino al honor de que se
le privaba no dandole este caracter, y solo cuando era
instituido heredero en parte o cantidad inferior a lo que le
correspondiera por legitima, era cuando bastaba el ejercicio
de la accion ad suplementum para completarla, sin

necesidad de anular las otras instituciones de heredero o

demas disposiciones contenidas en el testamento.
El Articulo 851 se aparta de este criterio estricto y se ajusta
a la unica necesidad que le inspira cual es la de que
se complete la legitima del heredero forzoso, a quien por
cualquier titulo se haya dejado menos de lo que le
corresponda, y se le otorga tan solo el derecho de pedir
el complemento de la misma sin necesidad de que se anulen
las disposiciones testamentarias, que se reduciran en lo que
sean inoficiosas conforme al articulo 817, cuya
interpretacion y sentido tienen ya en su apoyo la sancion de
la jurisprudencia (3); siendo condicion precisa que lo que se
hubiere dejado de menos de la legitima al heredero forzoso,
lo haya sido en el testamento, o sea por disposicion del
testador, segun lo revela el texto del articulo, "el heredero
forzoso a quien el testador haya dejado, etc., esto es por
titulo de legado o donacion mortis causa en el testamento y,
no fuera de al. (Sanchez Roman, Tomo VI, Vol. 2.0 p.
937.)
Manresa cites particularly three decisions of the Supreme Court of
Spain dated January 16, 1895, May 25, 1917, and April 23, 1932,
respectively. In each one of those cases the testator left to one
who was a forced heir a legacy worth less than the legitime, but
without referring to the legatee as an heir or even as a relative,
and willed the rest of the estate to other persons. It was held that
Article 815 applied, and the heir could not ask that the institution
of heirs be annulled entirely, but only that the legitime be
completed. (6 Manresa, pp. 438, 441.)
The foregoing solution is indeed more in consonance with the
expressed wishes of the testator in the present case as may be
gathered very clearly from the provisions of his will. He refused to
acknowledge Helen Garcia as his natural daughter, and limited her
share to a legacy of P3,600.00. The fact that she was subsequently
declared judicially to possess such status is no reason to assume
that had the judicial declaration come during his lifetime his
subjective attitude towards her would have undergone any change
and that he would have willed his estate equally to her and to Lucy
Duncan, who alone was expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is

cited by appellees in support of their theory of preterition. That
decision is not here applicable, because it referred to a will where
"the testator left all his property by universal title to the children by
his second marriage, and (that) without expressly disinheriting the
children by his first marriage, he left nothing to them or, at least,
some of them." In the case at bar the testator did not entirely omit
oppositor-appellee Helen Garcia, but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of
399 shares of stocks in the Christensen Plantation Company and a
certain amount in cash. One-fourth (1/4) of said estate descended
to Helen Garcia as her legitime. Since she became the owner of her
share as of the moment of the death of the decedent (Arts. 774,
777, Civil Code), she is entitled to a corresponding portion of all
the fruits or increments thereof subsequently accruing. These
include the stock dividends on the corporate holdings. The
contention of Lucy Duncan that all such dividends pertain to her
according to the terms of the will cannot be sustained, for it would
in effect impair the right of ownership of Helen Garcia with respect
to her legitime.
One point deserves to be here mentioned, although no reference to
it has been made in the brief for oppositor-appellant. It is the
institution of substitute heirs to the estate bequeathed to Lucy
Duncan in the event she should die without living issue. This
substitution results in effect from the fact that under paragraph 12
of the will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue, in which
event she would inherit in full ownership; otherwise the property
will go to the other relatives of the testator named in the will.
Without deciding this, point, since it is not one of the issues raised
before us, we might call attention to the limitations imposed by law
upon this kind of substitution, particularly that which says that it
can never burden the legitime (Art. 864 Civil Code), which means
that the legitime must descend to the heir concerned in fee simple.
Wherefore, the order of the trial court dated October 29, 1964,
approving the project of partition as submitted by the executorappellee, is hereby set aside; and the case is remanded with
instructions to partition the hereditary estate anew as indicated in
this decision, that is, by giving to oppositor-appellee Maria Helen
Christensen Garcia no more than the portion corresponding to her

as legitime, equivalent to one-fourth (1/4) of the hereditary estate,

after deducting all debts and charges, which shall not include those
imposed in the will of the decedent, in accordance with Article 908
of the Civil Code. Costs against appellees in this instance.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, J.P.
Bengzon, Zaldivar and Sanchez, JJ., concur.
RESOLUTION
July 30, 1967
MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11,
1966, making reference to an alleged oversight and asking for the
corresponding correction, in the last paragraph before the
dispositive part of our decision, which reads as follows:
One point deserves to be here mentioned, although no reference to
it has been made in the brief for oppositor-appellant. It is the
institution of substituted heirs to the estate bequeathed to Lucy
Duncan in the event she should die without living issue. This
substitution results in effect from the fact that under paragraph 12
of the will she is entitled only to the income from said estate,
unless prior to her decease she should have living issue, in which
event she would inherit in full ownership; otherwise the property
will go to the other relatives of the testator named in the will.
Without deciding this point, since it is not one of the issues raised
before us, we might call attention to the limitations imposed by law
upon this kind of substitution, particularly that which says that it
can never burden the legitime (Art. 864, Civil Code), which means
that the legitime must descend to the heir concerned in fee simple.
(Decision, June 30, 1966, pages 14-15; emphasis ours).
Oppositor-appellant points out that the matter of substitution of
heirs was taken up and discussed in her brief particularly in pages
28 and 32 thereof. This is indeed quite true, but the reference to
and discussion of the rights of the substitute heirs (called American
heirs in the brief) appears to be merely for the purpose of refuting
the theory advanced by appellees and not for the purpose of
having the rights of said heirs defined in so far as, under the terms
of the will, they may affect the legitime of oppositor-appellant. This

point of course was not and could hardly have been squarely raised
as an issue inasmuch as the substitute heirs are not parties in this
case. We have nevertheless called attention "to the limitations
imposed by law upon this kind of substitution," because in the brief
for oppositor-appellant, at page 45, she makes the conclusion "that
the Last Will and Testament of Edward E. Christensen are valid
under Philippine Law and must be given full force and effect;" and
to give them full force and effect would precisely affect the legitime
of oppositor-appellant.
Wherefore, the last paragraph before the dispositive part of our
decision quoted above is amended by eliminating the following
phrase in the first sentence: "although no reference to it has been
made in the brief for oppositor-appellant."
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ,
OSCAR JUGO ANG, CARMELITA JUGO,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the
decision of the respondent Court of Appeals (now intermediate
Appellate Court) dated June 3, 1982, as amended by the resolution
dated August 10, 1982, declaring as null and void the devise in
favor of the petitioner and the resolution dated December 28, 1982
denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last
Will and Testament duly signed by him at the end of the Will on
page three and on the left margin of pages 1, 2 and 4 thereof in
the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro
Leano, who in turn, affixed their signatures below the attestation
clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public.
The Will was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner
Sofia J. Nepomuceno as his sole and only executor of his estate. It
is clearly stated in the Will that the testator was legally married to
a certain Rufina Gomez by whom he had two legitimate children,
Oscar and Carmelita, but since 1952, he had been estranged from
his lawfully wedded wife and had been living with petitioner as
husband and wife. In fact, on December 5, 1952, the testator
Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace. The
testator devised to his forced heirs, namely, his legal wife Rufina
Gomez and his children Oscar and Carmelita his entire estate and
the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs,
namely: my aforementioned legal wife, Rufina
Gomez, and our son, Oscar, and daughter Carmelita,
both surnamed Jugo, whom I declare and admit to
be legally and properly entitled to inherit from me;
that while I have been estranged from my abovenamed wife for so many years, I cannot deny that I
was legally married to her or that we have been
separated up to the present for reasons and
justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man
and wife with one Sofia J. Nepomuceno, whom I
declare and avow to be entitled to my love and
affection, for all the things which she has done for
me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her
own husband, in truth and in fact, as well as in the
eyes of the law, I could not bind her to me in the
holy bonds of matrimony because of my
aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate
of the last Will and Testament of the deceased Martin Jugo in the
Court of First Instance of Rizal, Branch XXXIV, Caloocan City and
asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and
her children filed an opposition alleging inter alia that the execution

of the Will was procured by undue and improper influence on the

part of the petitioner; that at the time of the execution of the Will,
the testator was already very sick and that petitioner having
admitted her living in concubinage with the testator, she is wanting
in integrity and thus, letters testamentary should not be issued to
her.
On January 6, 1976, the lower court denied the probate of the Will
on the ground that as the testator admitted in his Will to cohabiting
with the petitioner from December 1952 until his death on July 16,
1974, the Will's admission to probate will be an Idle exercise
because on the face of the Will, the invalidity of its intrinsic
provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the
Court of First Instance of Rizal denying the probate of the will. The
respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article
739 in relation with Article 1028 of the Civil Code of the Philippines.
The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside,
the will in question declared valid except the devise
in favor of the appellant which is declared null and
void. The properties so devised are instead passed
on in intestacy to the appellant in equal shares,
without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a
"Motion for Correction of Clerical Error" praying that the word
"appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties
so devised are instead passed on intestacy to the appellees in
equal shares, without pronouncement as to costs." The motion was
granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for
reconsideration. This was denied by the respondent court in a
resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the

respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary
provision in her favor cannot be passed upon and decided in the
probate proceedings but in some other proceedings because the
only purpose of the probate of a Will is to establish conclusively as
against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the
provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only
be made by the proper court in a separate action brought by the
legal wife for the specific purpose of obtaining a declaration of the
nullity of the testamentary provision in the Will in favor of the
person with whom the testator was allegedly guilty of adultery or
concubinage.
The respondents on the other hand contend that the fact that the
last Will and Testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of the true civil
status of the testator, which led private respondents to present
contrary evidence, merits the application of the doctrine enunciated
in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix
Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247,
June 27, 1975). Respondents also submit that the admission of the
testator of the illicit relationship between him and the petitioner
put in issue the legality of the devise. We agree with the
respondents.
The respondent court acted within its jurisdiction when after
declaring the Will to be validly drawn, it went on to pass upon the
intrinsic validity of the Will and declared the devise in favor of the
petitioner null and void.
The general rule is that in probate proceedings, the court's area of
inquiry is limited to an examination and resolution of the extrinsic
validity of the Will. The rule is expressed thus:

xxx xxx xxx

... It is elementary that a probate decree finally and
definitively settles all questions concerning capacity
of the testator and the proper execution and
witnessing of his last Will and testament, irrespective
of whether its provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will,
the court's area of inquiry is limited to the extrinsic
validity thereof. The testators testamentary capacity
and the compliance with the formal requisites or
solemnities prescribed by law are the only questions
presented for the resolution of the court. Any inquiry
into the intrinsic validity or efficacy of the provisions
of the will or the legality of any devise or legacy is
premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the
dismissal of the petition for probate. Probate is one
thing; the validity of the testamentary provisions is
another. The first decides the execution of the
document and the testamentary capacity of the
testator; the second relates to descent and
distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and
once for all, the facts that a will was executed with
the formalities required by law and that the testator
was in a condition to make a will, is the only purpose
of the proceedings under the new code for the
probate of a will. (Sec. 625). The judgment in such
proceedings determines and can determine nothing
more. In them the court has no power to pass upon
the validity of any provisions made in the will. It can
not decide, for example, that a certain legacy is void
and another one valid. ... (Castaneda v. Alemany, 3
Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional

circumstances, the probate court is not powerless to do what the
situation constrains it to do and pass upon certain provisions of the
Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no
matter how valid it may appear extrinsically, would be null and
void. Separate or latter proceedings to determine the intrinsic
validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court
in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity
of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in
passing upon the intrinsic validity of the will, before
ruling on its allowance or formal validity, and in
declaring it void.
We are of the opinion that in view of certain unusual
provisions of the will, which are of dubious legality,
and because of the motion to withdraw the petition
for probate (which the lower court assumed to have
been filed with the petitioner's authorization) the
trial court acted correctly in passing upon the will's
intrinsic validity even before its formal validity had
been established. The probate of a will might become
an Idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be
passed upon, even before it is probated, the court
should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs.
Ramagosa L-23135, December 26, 1967, 21 SCRA
1369; Cacho v. Udan L-19996, April 30, 1965, 13
SCRA 693).
There appears to be no more dispute at this time over the extrinsic
validity of the Will. Both parties are agreed that the Will of Martin

Jugo was executed with all the formalities required by law and that
the testator had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the respondent
court when in resolving the question of whether or not the probate
court correctly denied the probate of Martin Jugo's last Will and
Testament, it ruled:
This being so, the will is declared validly drawn.
(Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the
Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court
to declare the testamentary provision in favor of the petitioner as
null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid
v. Nuguid, (supra):

The following donations shall be void:

(1) Those made between persons who were guilty of
adultery or concubinage at the time of the donation;
(2) Those made between persons found guilty of the
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for
declaration of nullity may be brought by the spouse
of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence
in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning
donations inter vivos shall apply to testamentary
provisions.

We pause to reflect. If the case were to be remanded

for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for
aught that appears in the record, in the record, in
the event of probate or if the court rejects the will,
probability exists that the case will come up once
again before us on the same issue of the intrinsic
validity or nullity of the will. Result, waste of time,
effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief
that we might as well meet head-on the issue of the
validity of the provisions of the will in question.
(Section 2, Rule 1, Rules of Court. Case, et al. v.
Jugo, et al., 77 Phil. 517, 522). After all, there exists
a justiciable controversy crying for solution.

In Article III of the disputed Will, executed on August 15, 1968, or

almost six years before the testator's death on July 16, 1974,
Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He
also declared that respondents Carmelita Jugo and Oscar Jugo
were his legitimate children. In Article IV, he stated that he had
been living as man and wife with the petitioner since 1952.
Testator Jugo declared that the petitioner was entitled to his love
and affection. He stated that Nepomuceno represented Jugo as her
own husband but "in truth and in fact, as well as in the eyes of the
law, I could not bind her to me in the holy bonds of matrimony
because of my aforementioned previous marriage.

We see no useful purpose that would be served if we remand the

nullified provision to the proper court in a separate action for that
purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.

There is no question from the records about the fact of a prior

existing marriage when Martin Jugo executed his Will. There is also
no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.

Article 739 of the Civil Code provides:

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.

Nepomuceno contracted a marriage before the Justice of the Peace

of Victoria, Tarlac. The man was then 51 years old while the woman
was 48. Nepomuceno now contends that she acted in good faith for
22 years in the belief that she was legally married to the testator.

Clearly, the good faith of petitioner was by option of

the parties made a decisive issue right at the
inception of the case.

The records do not sustain a finding of innocence or good faith. As

argued by the private respondents:

Confronted by the situation, the trial court had to

make a ruling on the question.

First. The last will and testament itself expressly

admits indubitably on its face the meretricious
relationship between the testator and petitioner, the
devisee.

When the court a quo held that the testator Martin

Jugo and petitioner 'were deemed guilty of adultery
or concubinage', it was a finding that petitioner was
not the innocent woman she pretended to be.

Second. Petitioner herself initiated the presentation

of evidence on her alleged ignorance of the true civil
status of the testator, which led private respondents
to present contrary evidence.

xxx xxx xxx

In short, the parties themselves dueled on the

intrinsic validity of the legacy given in the will to
petitioner by the deceased testator at the start of the
proceedings.
Whether or not petitioner knew that testator Martin
Jugo, the man he had lived with as man and wife, as
already married, was an important and specific issue
brought by the parties before the trial court, and
passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic
validity of the will, it was petitioner who opted to
present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN
of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence
that would refute the testimony of petitioner on the
point.
Sebastian Jugo, younger brother of the deceased
testator, testified at length on the meretricious
relationship of his brother and petitioner. (TSN of
August 18,1975).

3. If a review of the evidence must be made

nonetheless, then private respondents respectfully
offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with
the deceased testator in a town in Tarlac where
neither she nor the testator ever resided. If there
was nothing to hide from, why the concealment' ? Of
course, it maybe argued that the marriage of the
deceased with private respondent Rufina Gomez was
likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in the
family way at that time and it would seem that the
parents of Martin Jugo were not in favor of the
marriage so much so that an action in court was
brought concerning the marriage. (Testimony of
Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the
deceased testator when they were still both single.
That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923
(Exh. 3). Petitioner married the testator only on
December 5, 1952. There was a space of about 30
years in between. During those 30 years, could it be
believed that she did not even wonder why Martin
Jugo did not marry her nor contact her anymore
after November, 1923 - facts that should impel her to
ask her groom before she married him in secrecy,

especially so when she was already about 50 years

old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin
Jugo in 1923 is by itself conclusive demonstration
that she new that the man she had openly lived for
22 years as man and wife was a married man with
already two children.
FOURTH: Having admitted that she knew the children
of respondent Rufina Gomez, is it possible that she
would not have asked Martin Jugo whether or not
they were his illegitimate or legitimate children and
by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence
of the parents of the deceased testator, is it possible
that she would not have known that the mother of
private respondent Oscar Jugo and Carmelita Jugo
was respondent Rufina Gomez, considering that the
houses of the parents of Martin Jugo (where he had
lived for many years) and that of respondent Rufina
Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are
unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in
common life and the ordinary instincts and
promptings of human nature that a woman would
not bother at all to ask the man she was going to
marry whether or not he was already married to
another, knowing that her groom had children. It
would be a story that would strain human credulity
to the limit if petitioner did not know that Martin
Jugo was already a married man in view of the
irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break
off with the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against
the making of a donation between persons who are living in
adultery or concubinage. It is the donation which becomes void.
The giver cannot give even assuming that the recipient may

receive. The very wordings of the Will invalidate the legacy because
the testator admitted he was disposing the properties to a person
with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The
decision of the Court of Appeals, now Intermediate Appellate Court,
is AFFIRMED. No costs.
SO ORDERED.
G.R. No. 176422

March 20, 2013

MARIA MENDOZA, in her own capacity and as Attorney-infact of DEOGRACIAS, MARCELA, DIONISIA, ADORA CION, all
surnamed MENDOZA, REMEDIOS MONTILLA, FELY
BAUTISTA, JULIANA GUILALAS and ELVIRA
MENDOZA, Petitioners,
vs.
JULIA POLl CARPIO DELOS SANTOS, substituted by her
heirs, CARMEN P. DELOS SANTOS, ROSA BUENA VENTURA,
ZENAIDA P. DELOS SANTOS VDA. DE MATEO, LEONILA P.
DELOS SANTOS, ELVIRA P. DELOS SANTOS VDA. DE JOSE,
TERESITA P. DELOS SANTOS-CABUHAT, MERCEDITA P.
DELOS SANTOS, LYDIA P. DELOS SANTOS VDA. DE HILARIO,
PERFECTO P. DELOS SANTOS, JR., and CECILIA M.
MENDOZA, Respondents.
DECISION
REYES, J.:
Reserva troncal is a special rule designed primarily to assure the
return of a reservable property to the third degree relatives
belonging to the line from which the property originally came, and
avoid its being dissipated into and by the relatives of the inheriting
ascendant.1
The Facts
The properties subject in the instant case are three parcels of land
located in Sta. Maria, Bulacan: (1) Lot 1681-B, with an area of
7,749 square meters;2 (2) Lot 1684, with an area of 5,667 sq
m;3 and (3) Lot No. 1646-B, with an area of 880 sq m.4 Lot Nos.

1681-B and 1684 are presently in the name of respondent Julia

Delos Santos5(respondent). Lot No. 1646-B, on the other hand, is
also in the name of respondent but co-owned by Victoria
Pantaleon, who bought one-half of the property from petitioner
Maria Mendoza and her siblings.
Petitioners are grandchildren of Placido Mendoza (Placido) and
Dominga Mendoza (Dominga). Placido and Dominga had four
children: Antonio, Exequiel, married to Leonor, Apolonio and
Valentin. Petitioners Maria, Deogracias, Dionisia, Adoracion,
Marcela and Ricardo are the children of Antonio. Petitioners Juliana,
Fely, Mercedes, Elvira and Fortunato, on the other hand, are
Valentins children. Petitioners alleged that the properties were part
of Placido and Domingas properties that were subject of an oral
partition and subsequently adjudicated to Exequiel. After Exequiels
death, it passed on to his spouse Leonor and only daughter,
Gregoria. After Leonors death, her share went to Gregoria. In
1992, Gregoria died intestate and without issue. They claimed that
after Gregorias death, respondent, who is Leonors sister,
adjudicated unto herself all these properties as the sole surviving
heir of Leonor and Gregoria. Hence, petitioners claim that the
properties should have been reserved by respondent in their behalf
and must now revert back to them, applying Article 891 of the Civil
Code on reserva troncal.
Respondent, however, denies any obligation to reserve the
properties as these did not originate from petitioners familial line
and were not originally owned by Placido and Dominga. According
to respondent, the properties were bought by Exequiel and Antonio
from a certain Alfonso Ramos in 1931. It appears, however, that it
was only Exequiel who was in possession of the properties.6

in the name of the plaintiffs enumerated in the complaint

including intervenor Maria Cecilia M. Mendoza except onehalf of the property described in the old title, TCT No. T124852(M) which belongs to Victorina Pantaleon;
2. Ordering the Register of Deeds of Bulacan to cancel the
titles in the name of Julia Policarpio, TCT No. T-149033(M),
T-183631(M) and T-149035(M) and reconvey the same to
the enumerated plaintiffs; and
3. No pronouncement as to claims for attorneys fees and
damages and costs.
SO ORDERED.7
On appeal, the Court of Appeals (CA) reversed and set aside the
RTC decision and dismissed the complaint filed by petitioners. The
dispositive portion of the CA Decision dated November 16, 2006
provides:
WHEREFORE, premises considered, the November 4, 2002 Decision
of the Regional Trial Court, Br. 6, Third Judicial Region, Malolos,
Bulacan, is REVERSED and SET ASIDE. The Third Amended
Complaint in Civil Case No. 609-M-92 is hereby DISMISSED. Costs
against the Plaintiffs-Appellants.
SO ORDERED.8
Petitioners filed a motion for reconsideration but the CA denied the
same per Resolution9 dated January 17, 2007.

The Regional Trial Court (RTC) of Malolos, Bulacan, Branch 6, found

merit in petitioners claim and granted their action for Recovery of
Possession by Reserva Troncal, Cancellation of TCT and
Reconveyance. In its Decision dated November 4, 2002, the RTC
disposed as follows:

In dismissing the complaint, the CA ruled that petitioners failed to

establish that Placido and Dominga owned the properties in
dispute.10 The CA also ruled that even assuming that Placido and
Dominga previously owned the properties, it still cannot be subject
to reserva troncal as neither Exequiel predeceased Placido and
Dominga nor did Gregoria predecease Exequiel.11

WHEREFORE, premised from the foregoing judgment is hereby

rendered:

Now before the Court, petitioners argue that:

1. Ordering respondents (heirs of Julia Policarpio) to

reconvey the three (3) parcels of land subject of this action

A.

THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING

THAT THE SUBJECT PROPERTIES ARE NOT RESERVABLE
PROPERTIES, COMING AS THEY DO FROM THE FAMILY LINE
OF THE PETITIONERS MENDOZAS.
B.
THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING
THAT THE PETITIONERS MENDOZAS DO NOT HAVE A RIGHT
TO THE SUBJECT PROPERTIES BY VIRTUE OF THE LAW ON
RESERVA TRONCAL.12
Petitioners take exception to the ruling of the CA, contending that it
is sufficient that the properties came from the paternal line of
Gregoria for it to be subject to reserva troncal. They also claim the
properties in representation of their own predecessors, Antonio and
Valentin, who were the brothers of Exequiel.13

There are three (3) lines of transmission in reserva troncal. The

first transmission is by gratuitous title, whether by inheritance or
donation, from an ascendant/brother/sister to a descendant called
the prepositus. The second transmission is by operation of law from
the prepositus to the other ascendant or reservor, also called the
reservista. The third and last transmission is from the reservista to
the reservees or reservatarios who must be relatives within the
third degree from which the property came.15
The lineal character of the
reservable property is reckoned
from the ascendant from whom the
prepositus received the property by
gratuitous title
Based on the circumstances of the present case, Article 891 on
reserva troncal is not applicable.

Ruling of the Court

This petition is one for review on certiorari under Rule 45 of the
Rules of Court. The general rule in this regard is that it should raise
only questions of law. There are, however, admitted exceptions to
this rule, one of which is when the CAs findings are contrary to
those of the trial court.14 This being the case in the petition at
hand, the Court must now look into the differing findings and
conclusion of the RTC and the CA on the two issues that arise
one, whether the properties in dispute are reservable properties
and two, whether petitioners are entitled to a reservation of these
properties.
Article 891 of the Civil Code on reserva troncal
The principle of reserva troncal is provided in Article 891 of the
Civil Code:
Art. 891. The ascendant who inherits from his descendant any
property which the latter may have acquired by gratuitous title
from another ascendant, or a brother or sister, is obliged to reserve
such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and belong to
the line from which said property came. (Emphasis ours)

The fallacy in the CAs resolution is that it proceeded from the

erroneous premise that Placido is the ascendant contemplated in
Article 891 of the Civil Code. From thence, it sought to trace the
origin of the subject properties back to Placido and Dominga,
determine whether Exequiel predeceased Placido and whether
Gregoria predeceased Exequiel.

The persons involved in reserva troncal are:

(1) The ascendant or brother or sister from whom the
property was received by the descendant by lucrative or
gratuitous title;
(2) The descendant or prepositus (propositus) who received
the property;
(3) The reservor (reservista), the other ascendant who
obtained the property from the prepositus by operation of
law; and
(4) The reservee (reservatario) who is within the third
degree from the prepositus and who belongs to the (linea o
tronco) from which the property came and for whom the
property should be reserved by the reservor.16
It should be pointed out that the ownership of the properties
should be reckoned only from Exequiels as he is the ascendant
from where the first transmission occurred, or from whom Gregoria
inherited the properties in dispute. The law does not go farther
than such ascendant/brother/sister in determining the lineal
character of the property.17 It was also immaterial for the CA to
determine whether Exequiel predeceased Placido and Dominga or
whether Gregoria predeceased Exequiel. What is pertinent is that
Exequiel owned the properties and he is the ascendant from whom
the properties in dispute originally came. Gregoria, on the other
hand, is the descendant who received the properties from Exequiel
by gratuitous title.
Moreover, Article 891 simply requires that the property should have
been acquired by the descendant or prepositus from an ascendant
by gratuitous or lucrative title. A transmission is gratuitous or by
gratuitous title when the recipient does not give anything in
return.18 At risk of being repetitious, what was clearly established
in this case is that the properties in dispute were owned by
Exequiel (ascendant). After his death, Gregoria
(descendant/prepositus) acquired the properties as inheritance.
Ascendants, descendants and
collateral relatives under Article
964 of the Civil Code

Article 891 provides that the person obliged to reserve the property
should be an ascendant (also known as the reservor/reservista) of
the descendant/prepositus. Julia, however, is not Gregorias
ascendant; rather, she is Gregorias collateral relative.
Article 964 of the Civil Code provides for the series of degrees
among ascendants and descendants, and those who are not
ascendants and descendants but come from a common ancestor,
viz:
Art. 964. A series of degrees forms a line, which may be either
direct or collateral.1wphi1 A direct line is that constituted by the
series of degrees among ascendants and descendants.
A collateral line is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come
from a common ancestor. (Emphasis and italics ours)
Gregorias ascendants are her parents, Exequiel and Leonor, her
grandparents, great-grandparents and so on. On the other hand,
Gregorias descendants, if she had one, would be her children,
grandchildren and great-grandchildren. Not being Gregorias
ascendants, both petitioners and Julia, therefore, are her collateral
relatives. In determining the collateral line of relationship, ascent is
made to the common ancestor and then descent to the relative
from whom the computation is made. In the case of Julias
collateral relationship with Gregoria, ascent is to be made from
Gregoria to her mother Leonor (one line/degree), then to the
common ancestor, that is, Julia and Leonors parents (second
line/degree), and then descent to Julia, her aunt (third
line/degree). Thus, Julia is Gregorias collateral relative within the
third degree and not her ascendant.
First cousins of the
descendant/prepositus are fourth
degree relatives and cannot be
considered reservees/reservatarios
Moreover, petitioners cannot be considered reservees/reservatarios
as they are not relatives within the third degree of Gregoria from
whom the properties came. The person from whom the degree
should be reckoned is the descendant/prepositusthe one at the
end of the line from which the property came and upon whom the

property last revolved by descent.19 It is Gregoria in this case.

Petitioners are Gregorias fourth degree relatives, being her first
cousins. First cousins of the prepositus are fourth degree relatives
and are not reservees or reservatarios.20

disposition that the complaint filed with the RTC should be

dismissed, only on this point, is correct. If at all, what should apply
in the distribution of Gregorias estate are Articles 1003 and 1009
of the Civil Code, which provide:

They cannot even claim representation of their predecessors

Antonio and Valentin as Article 891 grants a personal right of
reservation only to the relatives up to the third degree from whom
the reservable properties came. The only recognized exemption is
in the case of nephews and nieces of the prepositus, who have the
right to represent their ascendants (fathers and mothers) who are
the brothers/sisters of the prepositus and relatives within the third
degree.21 In Florentino v. Florentino,22 the Court stated:

Art. 1003. If there are no descendants, ascendants, illegitimate

children, or a surviving spouse, the collateral relatives shall
succeed to the entire estate of the deceased in accordance with the
following articles.

Following the order prescribed by law in legitimate succession,

when there are relatives of the descendant within the third degree,
the right of the nearest relative, called reservatario, over the
property which the reservista (person holding it subject to
reservation) should return to him, excludes that of the one more
remote. The right of representation cannot be alleged when the
one claiming same as a reservatario of the reservable property is
not among the relatives within the third degree belong to the line
from which such property came, inasmuch as the right granted by
the Civil Code in Article 811 now Article 891 is in the highest
degree personal and for the exclusive benefit of the designated
persons who are the relatives, within the third degree, of the
person from whom the reservable property came. Therefore,
relatives of the fourth and the succeeding degrees can never be
considered as reservatarios, since the law does not recognize them
as such.

The latter shall succeed without distinction of lines or preference

among them by reason of relationship by the whole blood.

x x x Nevertheless there is right of representation on the part of

reservatarios who are within the third degree mentioned by law, as
in the case of nephews of the deceased person from whom the
reservable property came. x x x.23 (Emphasis and underscoring
ours)
The conclusion, therefore, is that while it may appear that the
properties are reservable in character, petitioners cannot benefit
from reserva troncal. First, because Julia, who now holds the
properties in dispute, is not the other ascendant within the purview
of Article 891 of the Civil Code and second, because petitioners are
not Gregorias relatives within the third degree. Hence, the CAs

Art. 1009. Should there be neither brothers nor sisters, nor

children of brothers or sisters, the other collateral relatives shall
succeed to the estate.

Nevertheless, the Court is not in the proper position to determine

the proper distribution of Gregorias estate at this point as the
cause of action relied upon by petitioners in their complaint filed
with the RTC is based solely on reserva troncal. Further, any
determination would necessarily entail reception of evidence on
Gregorias entire estate and the heirs entitled thereto, which is best
accomplished in an action filed specifically for that purpose.
A reservista acquires ownership of
the reservable property until the
reservation takes place or is
extinguished
Before concluding, the Court takes note of a palpable error in the
RTCs disposition of the case. In upholding the right of petitioners
over the properties, the RTC ordered the reconveyance of the
properties to petitioners and the transfer of the titles in their
names. What the RTC should have done, assuming for arguments
sake that reserva troncal is applicable, is have the reservable
nature of the property registered on respondents titles. In fact,
respondent, as reservista, has the duty to reserve and to annotate
the reservable character of the property on the title.24 In reserva
troncal, the reservista who inherits from a prepositus, whether by
the latters wish or by operation of law, acquires the inheritance by
virtue of a title perfectly transferring absolute ownership. All the
attributes of ownership belong to him exclusively.25

The reservor has the legal title and dominion to the reservable
property but subject to the resolutory condition that such title is
extinguished if the reservor predeceased the reservee. The
reservor is a usufructuary of the reservable property. He may
alienate it subject to the reservation. The transferee gets the
revocable and conditional ownership of the reservor. The
transferees rights are revoked upon the survival of the reservees
at the time of the death of the reservor but become indefeasible
when the reservees predecease the reservor.26(Citations omitted)
It is when the reservation takes place or is extinguished,27 that a
reservatario becomes, by operation of law, the owner of the
reservable property.28 In any event, the foregoing discussion does
not detract from the fact that petitioners are not entitled to a
reservation of the properties in dispute.
WHEREFORE, the petition is DENIED. The Decision dated November
16, 2006 and Resolution dated January 17, 2007 of the Court of
Appeals in CA-G.R. CV No. 77694 insofar as it dismissed the Third
Amended Complaint in Civil Case No. 609-M-92 are AFFIRMED.
This Decision is without prejudice to any civil action that the heirs
of Gregoria
Mendoza may file for the settlement of her estate or for the
determination of ownership of the properties in question.
SO ORDERED.
G.R. No. L-14856

November 15, 1919

ENCARNACION FLORENTINO, ET AL., plaintiffs-appellants,

vs.
MERCEDES FLORENTINO, ET AL., defendants-appellees.
Ramon Querubin, Simeon Ramos and Orense and Vera for
appellants.
Vicente Foz, Jose Singsong Tongson and Angel Encarnacion for
appellees.

TORRES, J.:

On January 17, 1918, counsel for Encarnacion (together with her

husband Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel,
Victorino, and Antonino of the surname Florentino; for Miguel
Florentino, guardian ad litem of the minor Rosario Florentino; for
Eugenio Singson, the father and guardian ad litem of Emilia, Jesus,
Lourdes, Caridad, and Dolores of the surname Singson y
Florentino; and for Eugenio Singson, guardian of the minors Jose
and Asuncion Florentino, filed a complaint in the Court of First
Instance of Ilocos Sur, against Mercedes Florentino and her
husband, alleging as follows:
That Apolonio Isabelo Florentino II married the first time Antonia
Faz de Leon; that during the marriage he begot nine children
called, Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel,
Pedro, and Magdalena of the surname Florentino y de Leon; that on
becoming a widower he married the second time Severina Faz de
Leon with whom he had two children, Mercedes and Apolonio III of
the surname Florentino y de Leon; that Apolonio Isabelo Florentino
II died on February 13, 1890; that he was survived by his second
wife Severina Faz de Leon and the ten children first above
mentioned; that his eleventh son, Apolonio III, was born on the
following 4th of March 1890.
That of the deceased Apolonio Isabelo's aforementioned eleven
children, Juan, Maria and Isabel died single,without leaving any
ascendants or descendants; that Ramon, Miguel, Victorino,
Antonio, and Rosario are the legitimate children of the deceased
Jose Florentino who was one of the children of the deceased
Apolonio Isabelo; that Emilia, Jesus, Lourdes, Caridad, and Dolores
are the legitimate children of Espirita Florentino, now deceased,
and her husband Eugenio Singson; that Jose and Asuncion are the
children of Pedro Florentino, another son of the deceased Apolonio
Isabelo Florentino.
That on January 17 and February 13, 1890, Apolonio Isabelo
Florentino executed a will before the notary public of Ilocos Sur,
instituting as his universal heirs his aforementioned ten children,
the posthumos Apolonio III and his widow Severina Faz de Leon;
that he declared, in one of the paragraphs of said will, all his
property should be divided among all of his children of both
marriages.

That, in the partition of the said testator's estate, there was given
to Apolonio Florentino III, his posthumos son, the property marked
with the letters A, B, C, D, E, and F in the complaint, a gold rosary,
pieces of gold, of silver and of table service, livestock, palay, some
personal property and other objects mentioned in the complaint.
That Apolonio Florentino III, the posthumos son of the second
marriage, died in 1891; that his mother, Severina Faz de Leon,
succeeded to all his property described in the complaint; that the
widow, Severina Faz de Leon died on November 18, 1908, leaving
a will instituting as her universal heiress her only living daughter,
Mercedes Florentino; that, as such heir, said daughter took
possession of all the property left at the death of her mother,
Severina Faz de Leon; that among same is included the property,
described in the complaint, which the said Severina Faz de Leon
inherited from her deceased son, the posthumos Apolonio, as
reservable property; that, as a reservist, the heir of the said
Mercedes Florentino deceased had been gathering for herself alone
the fruits of lands described in the complaint; that each and every
one of the parties mentioned in said complaint is entitled to oneseventh of the fruits of the reservable property described therein,
either by direct participation or by representation, in the manner
mentioned in paragraph 9 of the complaint.
That several times the plaintiffs have, in an amicable manner,
asked the defendants to deliver their corresponding part of the
reservable property; that without any justifiable motive the
defendants have refused and do refuse to deliver said property or
to pay for its value; that for nine years Mercedes Florentino has
been receiving, as rent for the lands mentioned, 360 bundles of
palay at fifty pesos per bundle and 90 bundles of corn at four pesos
per bundle; that thereby the plaintiffs have suffered damages in
the sum of fifteen thousand four hundred and twenty-eight pesos
and fifty-eight centavos, in addition to three hundred and eight
pesos and fifty-eight centavos for the value of the fruits not
gathered, of one thousand pesos (P1,000) for the unjustifiable
retention of the aforementioned reservable property and for the
expenses of this suit. Wherefore they pray it be declared that all
the foregoing property is reservable property; that the plaintiffs
had and do have a right to the same, in the quantity and
proportion mentioned in the aforementioned paragraph 9 of the
complaint; that the defendants Mercedes Florentino and her
husband be ordered to deliver to the plaintiffs their share of the
property in question, of the palay and of the corn above

mentioned, or their value; and that they be condemned to pay the

plaintiffs the sum of one thousand pesos (P1,000) together with
the costs of this instance.
To the preceding complaint counsel for the defendants demurred,
alleging that the cause of action is based on the obligation of the
widow Severina Faz de Leon to reserve the property she inherited
from her deceased son Apolonio Florentino y de Leon who, in turn,
inherited same from his father Apolonio Isabelo Florentino; that,
there being no allegation to the contrary, it is to be presumed that
the widow Severina Faz de Leon did not remarry after the death of
this husband nor have any natural child; that the right claimed by
the plaintiffs is not that mentioned in article 968 and the following
articles, but that established in article 811 of the Civil Code; that
the object of the provisions of the aforementioned articles is to
avoid the transfer of said reservable property to those extraneous
to the family of the owner thereof; that if the property inherited by
the widow Severina Faz de Leon from her deceased son Apolonio
Florentino y Faz de Leon (property which originated from his father
and her husband) has all passed into the hands of the defendant,
Mercedes Florentino y Encarnacion, a daughter of the common
ancestor's second marriage (said Apolonio Isabelo Florentino with
the deceased Severina Faz de Leon) it is evident that the property
left at the death of the posthumos son Apolonio Florentino y Faz de
Leon did not pass after the death of his mother Severina, his
legitimate heirs as an ascendant, into the hands of strangers; that
said property having been inherited by Mercedes Florentino y
Encarnacion from her mother (Severina), article 811 of the Civil
Code is absolutely inapplicable to the present case because, when
the defendant Mercedes, by operation law, entered into and
succeeded to, the possession, of the property lawfully inherited
from her mother Severina Faz de Leon, said property had, while in
the possession of her mother, lost the character of reservable
property there being a legitimate daughter of Severina Faz de
Leon with the right to succeed her in all her rights, property and
actions; that the restraints of the law whereby said property may
not passed into the possession of strangers are void, inasmuch as
the said widow had no obligation to reserve same, as Mercedes
Florentino is a forced heiress of her mother Severina Faz de Leon;
that, in the present case, there is no property reserved for the
plaintiffs since there is a forced heiress, entitled to the property left
by the death of the widow Severina Faz de Leon who never
remarried; that the obligation to reserve is secondary to the duty
of respecting the legitime; that in the instant case, the widow

Severina Faz de Leon was in duty bound to respect the legitime of

her daughter Mercedes the defendant; that her obligation to
reserve the property could not be fulfilled to the prejudice of the
legitime which belongs to her forced heiress, citing in support of
these statements the decision of the supreme court of Spain of
January 4, 1911; that, finally, the application of article 811 of the
Civil Code in favor of the plaintiffs would presuppose the exclusion
of the defendant from here right to succeed exclusively to all the
property, rights and actions left by her legitimate mother, although
the said defendant has a better right than the plaintiffs; and that
there would be injustice if the property claimed be adjudicated to
the plaintiffs, as well as violation of section 5 of the Jones Law
which invalidates any law depriving any person of an equal
protection. Wherefore they prayed that the demurrer be sustained,
with costs against the plaintiffs.
After the hearing of the demurrer, on August 22, 1918, the judge
absolved the defendants from the complaint and condemned the
plaintiffs to pay the costs.
Counsel for the plaintiffs excepted to this order, moved to vacate it
and to grant them a new trial; said motion was overruled; the
plaintiffs expected thereto and filed the corresponding bill of
exceptions which was allowed, certified and forwarded to the clerk
of this court.
On appeal the trial judge sustained the demurrer of the defendants
to the complaint of the plaintiffs, but, instead of ordering the latter
to amend their complaint within the period prescribed by the rules
undoubtedly believing that the plaintiffs could not alter nor
change the facts constituting the cause of action, and that, as both
parties were agreed as to the facts alleged in the complaint as well
as in the demurrer, every question reduced itself to one of the law,
already submitted to the decision of the court the said judge,
disregarding the ordinary procedure established by law, decided
the case by absolving the defendants from the complaint and by
condemning the plaintiffs to pay the costs of the instance.
There certainly was no real trial, inasmuch as the defendants,
instead of answering the complaint of the plaintiffs, confined
themselves to filing a demurrer based on the ground that the facts
alleged in the complaint do not constitute a cause of action.
However, the judge preferred to absolve the defendants, thereby

making an end to the cause, instead of dismissing the same,

because undoubtedly he believed, in view of the controversy
between the parties, that the arguments adduced to support the
demurrer would be the same which the defendants would allege in
their answer those dealing with a mere question of law which
the courts would have to decide and that, the demurrer having
been sustained, if the plaintiffs should insist they could do no
less upon alleging the same facts as those set out in their
complaint and if another demurrer were afterwards set up, he
would be obliged to dismiss said complaint with costs against the
plaintiffs in spite of being undoubtedly convinced in the instant
case that the plaintiffs absolutely lack the right to bring the action
stated in their complaint.
Being of the opinion that the emendation of the indicated defects is
not necessary as in this case what has been done does not
prejudice the parties the appellate court will now proceed to
decide the suit according to its merits, as found in the record and
to the legal provisions applicable to the question of law in
controversy so that unnecessary delay and greater expense may
be avoided, inasmuch as, even if all the ordinary proceedings be
followed, the suit would be subsequently decided in the manner
and terms that it is now decided in the opinion thoughtfully and
conscientiously formed for its determination.
In order to decide whether the plaintiffs are or are not entitled to
invoke, in their favor, the provisions of article 811 of the Civil Code,
and whether the same article is applicable to the question of law
presented in this suit, it is necessary to determine whether the
property enumerated in paragraph 5 of the complaint is of the
nature of reservable property; and if so, whether in accordance
with the provision of the Civil Code in article 811, Severina Faz de
Leon (the widow of the deceased Apolonio Isabelo Florentino) who
inherited said property from her son Apolonio Florentino III (born
after the death of his father Apolonio Isabelo) had the obligation to
preserve and reserve same for the relatives, within the third
degree, of her aforementioned deceased son Apolonio III.
The above mentioned article reads:
Any ascendant who inherits from his descendant any
property acquired by the latter gratuitously from some other
ascendant, or from a brother or sister, is obliged to reserve

such of the property as he may have acquired by operation

of law for the benefit of relatives within the third degree
belonging to the line from which such property came.
During the marriage of Apolonio Isabelo Florentino II and Severina
Faz de Leon two children were born, namely the defendant
Mercedes Florentino and Apolonio Florentino III (born after the
death of his father). At the death of Apolonio Isabelo Florentino
under a will, his eleven children succeeded to the inheritance he
left, one of whom, the posthumos son Apolonio III, was given, as
his share, the aforementioned property enumerated in the
complaint. In 1891 the said posthumos son Apolonio Florentino III
died and was succeeded by his legitimate mother Severina Faz de
Leon, who inherited the property he left and who on dying,
November 18, 1908, instituted by will as her sole heiress her
surviving daughter, Mercedes Florentino, the defendant herein, who
took possession of all property left by her father, same constituting
the inheritance. Included in said inheritance is the property,
specified in by the posthumos son Apolonio Florentino III from his
father Apolonio Isabelo Florentino, and which, at the death of the
said posthumos son, had in turn been inherited by his mother,
Severina Faz de Leon. Even if Severina left in her will said property,
together with her own, to her only daughter and forced heiress,
Mercedes Florentino, nevertheless this property had not lost its
reservable nature inasmuch as it originated from the common
ancestor of the litigants, Apolonio Isabelo; was inherited by his son
Apolonio III; was transmitted by same (by operation of law) to his
legitimate mother and ascendant, Severina Faz de Leon.
The posthumos son, Apolonio Florentino III, acquired the property,
now claimed by his brothers, by a lucrative title or by inheritance
from his aforementioned legitimate father, Apolonio Isabelo
Florentino II. Although said property was inherited by his mother,
Severina Faz de Leon, nevertheless, she was in duty bound,
according to article 811 of the Civil Code, to reserve the property
thus acquired for the benefit of the relatives, within the third
degree, of the line from which such property came.
According to the provisions of law, ascendants do not inherit the
reservable property, but its enjoyment, use or trust, merely for the
reason that said law imposes the obligation to reserve and
preserve same for certain designated persons who, on the death of
the said ascendants reservists, (taking into consideration the

nature of the line from which such property came) acquire the
ownership of said property in fact and by operation of law in the
same manner as forced heirs (because they are also such) said
property reverts to said line as long as the aforementioned persons
who, from the death of the ascendant-reservists, acquire in fact the
right of reservatarios(person for whom property is reserved), and
are relatives, within the third degree, of the descendant from
whom the reservable property came.
Any ascendant who inherits from his descendant any property,
while there are living, within the third degree, relatives of the
latter, is nothing but a life usufructuary or a fiduciary of the
reservable property received. He is, however, the legitimate owner
of his own property which is not reservable property and which
constitutes his legitime, according to article 809 of the Civil Code.
But if, afterwards, all of the relatives, within the third degree, of
the descendant (from whom came the reservable property) die or
disappear, the said property becomes free property, by operation of
law, and is thereby converted into the legitime of the ascendant
heir who can transmit it at his death to his legitimate successors or
testamentary heirs. This property has now lost its nature of
reservable property, pertaining thereto at the death of the
relatives, called reservatarios, who belonged within the third
degree to the line from which such property came.lawphil.net
Following the order prescribed by law in legitimate succession,
when there are relatives of the descendant within the third degree,
the right of the nearest relative, called reservatario, over the
property which the reservista(person holding it subject to
reservation) should return to him, excludes that of the one more
remote. The right of representation cannot be alleged when the
one claiming same as a reservatario of the reservable property is
not among the relatives within the third degree belonging to the
line from which such property came, inasmuch as the right granted
by the Civil Code in article 811 is in the highest degree personal
and for the exclusive benefit of designated persons who are the
relatives, within the third degree, of the person from whom the
reservable property came. Therefore, relatives of the fourth and
the succeeding degrees can never be considered asreservatarios,
since the law does not recognize them as such.
In spite of what has been said relative to the right of
representation on the part of one alleging his right

asreservatario who is not within the third degree of relationship,

nevertheless there is right of representation on the part
of reservatarios who are within the third degree mentioned by law,
as in the case of nephews of the deceased person from whom the
reservable property came. These reservatarios have the right to
represent their ascendants (fathers and mothers) who are the
brothers of the said deceased person and relatives within the third
degree in accordance with article 811 of the Civil Code.
In this case it is conceded without denial by defendants, that the
plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate
children of the first marriage of the deceased Apolonio Isabelo
Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario
are both grandchildren of Apolonio Isabelo Florentino II, and
children of his deceased son, Jose Florentino; that the same have
the right to represent their aforementioned father, Jose Florentino;
that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate
children of the deceased Espirita Florentino, one of the daughters
of the deceased Apolonio Isabelo Florentino II, and represent the
right of their aforementioned mother; and that the other plaintiffs,
Jose and Asuncion, have also the right to represent their legitimate
father Pedro Florentino one of the sons of the aforementioned
Apolonio Isabelo Florentino II. It is a fact, admitted by both
parties, that the other children of the first marriage of the
deceased Apolonio Isabelo Florentino II died without issue so that
this decision does not deal with them.

There are then seven "reservatarios" who are entitled to the

reservable property left at the death of Apolonio III; the
posthumos son of the aforementioned Apolonio Isabelo II, to wit,
his three children of his first marriage Encarnacion, Gabriel,
Magdalena; his three children, Jose, Espirita and Pedro who are
represented by their own twelve children respectively; and
Mercedes Florentino, his daughter by a second marriage. All of the
plaintiffs are the relatives of the deceased posthumos son, Apolonio
Florentino III, within the third degree (four of whom being his halfbrothers and the remaining twelve being his nephews as they are
the children of his three half-brothers). As the first four are his
relatives within the third degree in their own right and the other
twelve are such by representation, all of them are indisputably
entitled as reservatarios to the property which came from the
common ancestor, Apolonio Isabelo, to Apolonio Florentino III by
inheritance during his life-time, and in turn by inheritance to his
legitimate mother, Severina Faz de Leon, widow of the
aforementioned Apolonio Isabelo Florentino II.
In spite of the provisions of article 811 of the Civil Code already
cited, the trial judge refused to accept the theory of the plaintiffs
and, accepting that of the defendants, absolved the latter from the
complaint on the ground that said article is absolutely inapplicable
to the instant case, inasmuch as the defendant Mercedes Florentino
survived her brother, Apolonio III, from whom the reservable
property came and her mother, Severina Faz de Leon, the widow of
her father, Apolonio Isabelo Florentino II; that the defendant
Mercedes, being the only daughter of Severina Faz de Leon, is
likewise her forced heiress; that when she inherited the property
left at the death of her mother, together with that which came from
her deceased brother Apolonio III, the fundamental object of article
811 of the Code was thereby complied with, inasmuch as the
danger that the property coming from the same line might fall into
the hands of strangers had been avoided; and that the hope or
expectation on the part of the plaintiffs of the right to acquire the
property of the deceased Apolonio III never did come into
existence because there is a forced heiress who is entitled to such
property.
The judgment appealed from is also founded on the theory that
article 811 of the Civil Code does not destroy the system of
legitimate succession and that the pretension of the plaintiffs to
apply said article in the instant case would be permitting the
reservable right to reduce and impair the forced legitimate which

exclusively belongs to the defendant Mercedes Florentino, in

violation of the precept of article 813 of the same Code which
provides that the testator cannot deprive his heirs of their legitime,
except in the cases expressly determined by law. Neither can he
impose upon it any burden, condition, or substitution of any kind
whatsoever, saving the provisions concerning the usufruct of the
surviving spouse, citing the decision of the Supreme Court of Spain
of January 4, 1911.
The principal question submitted to the court for decision consists
mainly in determining whether they property left at the death of
Apolonio III, the posthumos son of Apolonio Isabelo II, was or was
not invested with the character of reservable property when it was
received by his mother, Severina Faz de Leon.
The property enumerated by the plaintiffs in paragraph 5 of their
complaint came, without any doubt whatsoever, from the common
ancestor Apolonio Isabelo II, and when, on the death of Apolonio
III without issue the same passed by operation of law into the
hands of his legitimate mother, Severina Faz de Leon, it became
reservable property, in accordance with the provision of article 811
of the Code, with the object that the same should not fall into the
possession of persons other than those comprehended within the
order of person other than those comprehended within the order of
succession traced by the law from Apolonio Isabelo II, the source
of said property. If this property was in fact clothed with the
character and condition of reservable property when Severina Faz
de Leon inherited same from her son Apolonio III, she did not
thereby acquire the dominion or right of ownership but only the
right of usufruct or of fiduciary with the necessary obligation to
preserve and to deliver or return it as such reservable property to
her deceased son's relatives within the third degree, among whom
is her daughter, Mercedes Florentino.
Reservable property neither comes, nor falls under, the absolute
dominion of the ascendant who inherits and receives same from his
descendant, therefore it does not form part of his own property nor
become the legitimate of his forced heirs. It becomes his own
property only in case that all the relatives of his descendant shall
have died (reservista) in which case said reservable property losses
such character.

With full right Severina Faz de Leon could have disposed in her will
of all her own property in favor of her only living daughter,
Mercedes Florentino, as forced heiress. But whatever provision
there is in her will concerning the reservable property received
from her son Apolonio III, or rather, whatever provision will reduce
the rights of the other reservatarios, the half brothers and nephews
of her daughter Mercedes, is unlawful, null and void, inasmuch as
said property is not her own and she has only the right of usufruct
or of fiduciary, with the obligation to preserve and to deliver same
to the reservatarios, one of whom is her own daughter, Mercedes
Florentino.
It cannot reasonably be affirmed, founded upon an express
provision of law, that by operation of law all of the reservable
property, received during lifetime by Severina Faz de Leon from her
son, Apolonio III, constitutes or forms parts of the legitime
pertaining to Mercedes Florentino. If said property did not come to
be the legitimate and exclusive property of Severina Faz de Leon,
her only legitimate and forced heiress, the defendant Mercedes,
could not inherit all by operation of law and in accordance with the
order of legitimate succession, because the other relatives of the
deceased Apolonio III, within the third degree, as well as herself
are entitled to such reservable property.
For this reason, in no manner can it be claimed that the legitime of
Mercedes Florentino, coming from the inheritance of her mother
Severina Faz de Leon, has been reduced and impaired; and the
application of article 811 of the Code to the instant case in no way
prejudices the rights of the defendant Mercedes Florentino,
inasmuch as she is entitled to a part only of the reservable
property, there being no lawful or just reason which serves as real
foundation to disregard the right to Apolonio III's other relatives,
within the third degree, to participate in the reservable property in
question. As these relatives are at present living, claiming for it
with an indisputable right, we cannot find any reasonable and
lawful motive why their rights should not be upheld and why they
should not be granted equal participation with the defendant in the
litigated property.
The claim that because of Severina Faz de Leon's forced heiress,
her daughter Mercedes, the property received from the deceased
son Apolonio III lost the character, previously held, of reservable
property; and that the mother, the said Severina, therefore, had no

further obligation to reserve same for the relatives within the third
degree of the deceased Apolonio III, is evidently erroneous for the
reason that, as has been already stated, the reservable property,
left in a will by the aforementioned Severina to her only daughter
Mercedes, does not form part of the inheritance left by her death
nor of the legitimate of the heiress Mercedes. Just because she has
a forced heiress, with a right to her inheritance, does not relieve
Severina of her obligation to reserve the property which she
received from her deceased son, nor did same lose the character of
reservable property, held before the reservatarios received same.
It is true that when Mercedes Florentino, the heiress of the
reservista Severina, took possession of the property in question,
same did not pass into the hands of strangers. But it is likewise
true that the said Mercedes is not the only reservataria. And there
is no reason founded upon law and upon the principle of justice
why the otherreservatarios, the other brothers and nephews,
relatives within the third degree in accordance with the precept of
article 811 of the Civil Code, should be deprived of portions of the
property which, as reservable property, pertain to them.
From the foregoing it has been shown that the doctrine announced
by the Supreme Court of Spain on January 4, 1911, for the
violation of articles 811, 968 and consequently of the Civil Code is
not applicable in the instant case.
Following the provisions of article 813, the Supreme Court of Spain
held that the legitime of the forced heirs cannot be reduced or
impaired and said article is expressly respected in this decision.
However, in spite of the efforts of the appellee to defend their
supposed rights, it has not been shown, upon any legal foundation,
that the reservable property belonged to, and was under the
absolute dominion of, the reservista, there being relatives within
the third degree of the person from whom same came; that said
property, upon passing into the hands of the forced heiress of the
deceased reservista, formed part of the legitime of the former; and
that the said forced heiress, in addition to being a reservataria, had
an exclusive right to receive all of said property and to deprive the
other reservatarios, her relatives within the third degree of certain
portions thereof.

Concerning the prayer in the complaint relative to the indemnity for

damages and the delivery of the fruits collected, it is not proper to
grant the first for there is no evidence of any damage which can
give rise to the obligation of refunding same. As to the second, the
delivery of the fruits produced by the land forming the principal
part of the reservable property, the defendants are undoubtedly in
duty bound to deliver to the plaintiffs six-sevenths of the fruits or
rents of the portions of land claimed in the complaint, in the
quantity expressed in paragraph 11 of the same, from January 17,
1918, the date the complaint was filed; and the remaining seventh
part should go to the defendant Mercedes.
For the foregoing reasons it follows that with the reversal of the
order of decision appealed from we should declare, as we hereby
do, that the aforementioned property, inherited by the deceased
Severina Faz de Leon from her son Apolonio Florentino III, is
reservable property; that the plaintiffs, being relatives of the
deceased Apolonio III within the third degree, are entitled to sixsevenths of said reservable property; that the defendant Mercedes
is entitled to the remaining seventh part thereof; that the latter,
together with her husband Angel Encarnacion, shall deliver to the
plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from
said portion of the land and of the quantity claimed, from January
17, 1918, until fully delivered; and that the indemnity for one
thousand pesos (P1,000) prayed for in the complaint is denied,
without special findings as to the costs of both instances. So
ordered.
Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avancea, JJ.,
concur.
G.R. No. 6878

September 13, 1913

MARCELINA EDROSO, petitioner-appellant,

vs.
PABLO and BASILIO SABLAN, opponents-appellees.
Francisco Dominguez for appellant.
Crispin Oben for appellees.
ARELLANO, C.J.:

The subject matter of this appeal is the registration of certain

property classified as required by law to be reserved. Marcelina
Edroso applied for registration and issuance of title to two parcels
of land situated in the municipality of Pagsanjan, Province of
Laguna, one of 1 hectare 77 ares and 63 centares, and the other 1
hectare 6 ares and 26 centares. Two applications were filed, one
for each parcel, but both were heard and decided in a single
judgment.
Marcelina Edroso was married to Victoriano Sablan until his death
on September 22, 1882. In this marriage they had a son named
Pedro, who was born on August 1, 1881, and who at his father's
death inherited the two said parcels. Pedro also died on July 15,
1902, unmarried and without issue and by this decease the two
parcels of land passed through inheritance to his mother, Marcelina
Edroso. Hence the hereditary title whereupon is based the
application for registration of her ownership.
Two legitimate brothers of Victoriano Sablan that is, two uncles
german of Pedro Sablan appeared in the case to oppose the
registration, claiming one of two things: Either that the registration
be denied, "or that if granted to her the right reserved by law to
the opponents be recorded in the registration of each parcel." (B.
of E., 11, 12.)
The Court of Land Registration denied the registration and the
application appealed through a bill of exceptions.
Registration was denied because the trial court held that the
parcels of land in question partake of the nature of property
required by law to be reserved and that in such a case application
could only be presented jointly in the names of the mother and the
said two uncles of Pedro Sablan.
The appellant impugns as erroneous the first idea advanced
(second assignment of error), and denies that the land which are
the subject matter of the application are required by law to be
reserved a contention we regard as indefensible.
Facts: (1) The applicant acquired said lands from her descendant
Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them
from his ascendant Victoriano Sablan, likewise by inheritance; (3)
Victoriano Sablan had likewise acquired them by inheritance from

his ascendants, Mariano Sablan and Maria Rita Fernandez, they

having been adjudicated to him in the partition of hereditary
property had between him and his brothers. These are admitted
facts.
A very definite conclusions of law is that the hereditary title is one
without a valuable consideration [gratuitous title], and it is so
characterized in article 968 of the Civil Code, for he who acquires
by inheritance gives nothing in return for what he receives; and a
very definite conclusion of law also is that the uncles german are
within the third degree of blood relationship.
The ascendant who inherits from his descendant property
which the latter acquired without a valuable consideration
from another ascendant, or from a brother or sister, is
under obligation to reserve what he has acquired by
operation of law for the relatives who are within the third
degree and belong to the line whence the property
proceeded. (Civil Code, art. 811.)
Marcelina Edroso, ascendant of Pedro Sablan, inherited from him
these two parcels of land which he had acquired without a valuable
consideration that is, by inheritance from another ascendant, his
father Victoriano. Having acquired them by operation of law, she is
obligated to relatives within the third degree and belong to the line
of Mariano Sablan and Maria Rita Fernandez, whence the lands
proceeded. The trial court's ruling that they partake of the nature
property required by law to be reserved is therefore in accordance
with the law.
But the appellant contends that it is not proven that the two
parcels of land in question have been acquired by operation of law,
and that only property acquired without a valuable consideration,
which is by operation of law, is required by law to reserved.
The appellees justly argue that this defense was not alleged or
discussed in first instance, but only herein. Certainly, the allegation
in first instance was merely that "Pedro Sablan acquired the
property in question in 1882, before the enforcement of the Civil
Code, which establishes the alleged right required by law to be
reserved, of which the opponents speak; hence, prescription of the
right of action; and finally, opponents' renunciation of their right,
admitting that it existed and that they had it" (p. 49).

However that be, it is not superflous to say, although it may be

unnecessary, that the applicant inherited the two parcels of land
from her son Pedro, who died "unmarried and without issue." The
trial court so held as a conclusion of fact, without any objection on
the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died
without issue, his mother became his heir by virtue of her right to
her son's legal portion under article 935 of the Civil Code:
In the absence of legitimate children and descendants of the
deceased, his ascendants shall from him, to the exclusion of
collaterals.
The contrary could only have occurred if the heiress had
demonstrated that any of these lands had passed into her
possession by free disposal in her son's will; but the case presents
no testamentary provision that demonstrate any transfer of
property from the son to the mother, not by operation of law, but
by her son's wish. The legal presumption is that the transfer of the
two parcels of land was abintestate or by operation of law, and not
by will or the wish of the predecessor in interest. (Act No. 190, sec.
334, No. 26.) All the provision of article 811 of the Civil Code have
therefore been fully complied with.
If Pedro Sablan had instituted his mother in a will as the universal
heiress of his property, all he left at death would not be required by
law to be reserved, but only what he would have perforce left her
as the legal portion of a legitimate ascendant.
The legal portion of the parents or ascendants is constituted
by one-half of the hereditary estate of the children and
descendants. The latter may unrestrictedly dispose of the
other half, with the exception of what is established in
article 836. (Civil Code, art. 809.)
In such case only the half constituting the legal portion would be
required by law to be reserved, because it is what by operation of
law could full to the mother from her son's inheritance; the other
half at free disposal would not have to be reserved. This is all that
article 811 of the Civil Code says.
No error has been incurred in holding that the two parcels of land
which are the subject matter of the application are required by law
to be reserved, because the interested party has not proved that

either of them became her inheritance through the free disposal of

her son.
Proof testate succession devolves upon the heir or heiress who
alleges it. It must be admitted that a half of Pedro Sablan's
inheritance was acquired by his mother by operation of law. The
law provides that the other half is also presumed to be acquired by
operation of law that is, by intestate succession. Otherwise,
proof to offset this presumption must be presented by the
interested party, that is, that the other half was acquired by the
man's wish and not by operation of law.
Nor is the third assignments of error admissible that the trial
court failed to sustain the renunciation of the right required by law
to be reserved, which the applicant attributes to the opponents.
Such renunciation does not appear in the case. The appellant
deduces it from the fact that the appellees did not contradict the
following statement of hers at the trial:
The day after my brother-in-law Pablo Sablan dies and was buried,
his brother came to my house and said that those rice lands were
mine, because we had already talked about making delivery of
them. (p. 91).
The other brother alluded to is Basilio Sablan, as stated on page
92. From the fact that Basilio Sablan said that the lands belong to
the appellant and must be delivered to her it cannot be deduced
that he renounced the right required by law to be reserved in such
lands by virtue of the provisions of article 811 of the Civil Code, for
they really belong to her and must be delivered to her.
The fourth assignments of error set up the defense of prescription
of the right of action. The appellant alleges prescription of the
opponent's right of action for requiring fulfillment of the obligation
they attribute to her recording in the property registry the right
required by law to be reserved, in accordance with the provisions
of the Mortgage Law; and as such obligation is created by law, it
prescribed in the time fixed in No. 2 of section 43 of Act No. 190.
She adds: "Prescription of the right alleged to the reserved by force
of law has not been invoked." (Eight allegation.)
The appellant does not state in her brief what those provisions of
the Mortgage Law are. Nor did she do so in first instance, where

she says only the following, which is quoted from the record: "I do
not refer to the prescription of the right required by law to be
reserved in the property; I refer to the prescription of the right of
action of those who are entitled to the guaranty of that right for
seeking that guaranty, for those who are entitled to that right the
Mortgage Law grants a period of time for recording it in the
property registry, if I remember correctly, ninety days, for seeking
entry in the registry; but as they have not exercised that right of
action, such right of action for seeking here that it be recorded has
prescribed. The right of action for requiring that the property be
reserved has not prescribed, but the right of action for
guaranteeing in the property registry that this property is required
by law to be reserved" (p. 69 of the record).
The appellees reply: It is true that their right of action has
prescribed for requiring the applicant to constitute the mortgage
imposed by the Mortgage Law for guaranteeing the effectiveness of
the required by law to be reserved; but because that right of action
has prescribed, that property has not been divested of its character
of property required by law to be reserved; that it has such
character by virtue of article 8112 of the Civil Code, which went
into effect in the Philippine in December, 1889, and not by virtue of
the Mortgage Law, which only went into effect in the country by
law of July 14, 1893; that from December, 1889, to July, 1893,
property which under article 811 of the Civil Code acquired the
character of property reserved by operation of law was such
independently of the Mortgage Law, which did not yet form part of
the positive legislation of the country; that although the Mortgage
Law has been in effect in the country since July, 1893, still it has in
no way altered the force of article 811 of the Civil Code, but has
operated to reinforce the same merely by granting the right of
action to the persons in whose favor the right is reserved by
operation of law to require of the person holding the property a
guaranty in the form of a mortgage to answer for the enforcement,
in due time, of the right; that to lose the right of action to the
guaranty is not to lose the right itself; that the right reserved is the

principal obligation and the mortgage the accessory obligation, and

loss of the accessory does not mean loss of the principal. (Fifth and
sixth allegations.)
The existence of the right required by law to be reserved in the two
parcels of land in question being indisputable, even though it be
admitted that the right of action which the Mortgage Law grants as
a guaranty of final enforcement of such right has prescribed, the
only thing to be determined by this appeal is the question raised in
the first assignment of error, that is, how said two parcels of land
can and ought to be registered, not in the property registry newly
established by the Mortgage Law, but in the registry newly
organized by Act No. 496. But as the have slipped into the
allegations quoted some rather inexact ideas that further obscure
such an intricate subject as this of the rights required to be
reserved in Spanish-Philippine law, a brief disgression on the most
essential points may not be out of place here.
The Mortgage Law of July 14, 1893, to which the appellees allude,
is the amended one of the colonies, not the first enforced in the
colonies and consequently in the Philippines. The preamble of said
amended Mortgage Law states:
The Mortgage Law in force in Spain for thirty years went
into effect, with the modifications necessary for its
adaptation, in the Antilles on May 1, 1880, and in the
Philippines on December 1, 1889, thus commencing in those
regions the renovation of the law on real property, and
consequently of agrarian credit.
The Civil Code went into effect in the Philippines in the same year,
1889, but on the eight day.
Two kinds of property required by law to be reserved are
distinguished in the Civil Code, as

set forth in article 968 thereof, where it says:

Besides the reservation imposed by article 811, the widow or
widower contracting a seconds marriage shall be obliged to set
apart for the children and descendants of the first marriage the
ownership of all the property he or she may have required from the

deceased spouse by will, by intestate succession, by gift, or other

transfer without a valuable consideration."

The Mortgage Law of Spain and the first law that went into effect in
the Philippines on December 1, 189, do not contain any provision
that can be applied to the right reserved by article 811 of the Civil
Code, for such right is a creation of the Civil Code. In those laws
appear merely the provisions intended to guarantee the
effectiveness of the right in favor of the children of the first
marriage when their father or mother contracts a second marriage.
Nevertheless, the holding of the supreme court of Spain, for the
first time set forth in the decision on appeal of November 8, 1894,
has been reiterated:
That while the provisions of articles 977 and 978 of the Civil
Code that tend to secure the right required to be reserved
in the property refer especially to the spouses who contract
second or later marriages, they do not thereby cease to be
applicable to the right establishes in article 811, because,
aside from the legal reason, which is the same in both
cases, such must be the construction from the important
and conclusive circumstance that said provisions are set
forth in the chapter that deals with inheritances in common,
either testate or intestate, and because article 968, which
heads the section that deals in general with property
required by law to be reserved, makes reference to the
provisions in article 811; and it would consequently be
contradictory to the principle of the law and of the common
nature of said provisions not to hold them applicable to that
right.
Thus it was again stated in a decision on appeal, December 30,
1897, that: "As the supreme court has already declared, the
guaranties that the Code fixes in article 977 and 978 for the rights
required by law to the reserved to which said articles refer, are
applicable to the special right dealt with in article 811, because the
same principle exists and because of the general nature of the
provisions of the chapter in which they are found."
From this principle of jurisprudence it is inferred that if from
December, 1889, to July, 1893, a case had occurred of a right
required to be reserved by article 811, the persons entitled to such
right would have been able to institute, against the ascendant who
must make the reservation, proceedings for the assurance and
guaranty that article 977 and 978 grant to the children of a first
marriage against their father or mother who has married again.

The proceedings for assurance, under article 977; are: Inventory of

the property subject to the right reserved, annotation in the
property registry of such right reserved in the real property and
appraisal of the personal property; and the guaranty, under article
978, is the assurance by mortgage, in the case of realty, of the
value of what is validly alienated.
But since the amended Mortgage Law went into effect by law of
July 14, 1893, in the Philippines this is not only a principle of
jurisprudence which may be invoked for the applicability to the
right reserved in article 811 of the remedies of assurance and
guaranty provided for the right reserved in article 968, but there is
a positive provision of said law, which is an advantage over the law
of Spain, to wit, article 199, which read thus:
The special mortgage for guaranteeing the right reserved by
article 811 of the Civil Code can only be required by the
relatives in whose favor the property is to be reserved, if
they are of age; if minors, it will be require by the person
who should legally represent them. In either case the right
of the persons in whose favor the property must be
reserved will be secured by the same requisites as set forth
in the preceding article (relative to the right reserved by
article 968 of the Civil Code), applying to the
person obligated to reserve the right the provisions with
respect to the father.
In article 168 of the same law the new subsection 2 is added in
connection with article 199 quoted, so that said article 168 reads
as thus:
Legal mortgage is established:
1. . . .
2. In favor of the relatives to whom article 811 of the Civil
Code refers, for the property required to be reserved, upon
the property of the person obliged to reserve it.
This being admitted, and admitted also that both the litigating
parties agree that the period of ninety days fixed for the right of
action to the guaranty, that is, to require the mortgage that
guarantees the effectiveness of the right required by law to be

reserved, has prescribed, it is necessary to lay down a principle in

this matter. Now it should by noted that such action has not
prescribed, because the period of ninety days fixed by the
Mortgage Law is not for the exercise of the right of action of the
persons entitled to the right reserved, but for the fulfillment of the
obligation of the person who must make the reservation.
Article 191 of the reads thus: "If ninety days pass without the
father's instituting in court the proceeding to which the foregoing
article refers, the relatives themselves may demand fulfillment,
etc., . . . applying, according to said article 199, to the person
obligated to reserve the right the provisions with respect to the
father."
Article 203 of the regulation for the application of the Mortgage
Law says: "In the case of article 199 of the law the proceedings to
which article 190 thereof refers will be instituted within the ninety
days succeeding the date of the date of the acceptation of the
inheritance by the person obligated to reserve the property; after
this period has elapsed, the interested parties may require the
institution of such proceedings, if they are of age; and in any other
case, their legal representatives."
Thus it clearly appears that the lapse of the ninety days is not the
expiration by prescription of the period for the right must be
reserved, but really the commencement thereof, enables them to
exercise it at any time, since no limits is set in the law. So, if the
annotation of the right required by law to be reserved in the two
parcels of land in question must be made in the property registry of
the Mortgage Law, the persons entitled to it may now institute
proceedings to that end, and an allegation of prescription against
the exercise of such right of action cannot be sustained.
Since the applicant confesses that she does not allege prescription
of the right of action for requiring that the property be reserved,
for she explicitly so stated at the trial, and as the case presents no
necessity for the proceedings that should be instituted in
accordance with the provisions of the Mortgage Law, this
prescription of the right of action cannot take place, because such
right of action does not exist with reference to instituting
proceedings for annotation in the registry of Act No. 496 of the
right to the property required by law to be reserved. It is sufficient,
as was done in the present case, to intervene in the registration

proceedings with the claim set up by the two opponents for

recording therein the right reserved in either parcel of land.
Now comes the main point in the appeal. The trial court denied the
registration because of this finding set forth in its decision:
Absolute title to the two parcels of land undoubtedly
belongs to the applicant and the two uncles of the deceased
Pedro Sablan, and the application cannot be made except in
the name of all of them in common. (B. of E., p. 20.)
It must be remembered that absolute title consists of the rights to
use, enjoy, dispose of, and recover. The person who has in himself
all these rights has the absolute or complete ownership of the
thing; otherwise, the person who has the right to use and enjoy
will have the usufruct, and the person who has the rights of
disposal and recovery the direct title. The person who by law, act,
or contract is granted the right of usufruct has the first two rights
or using an enjoying, and then he is said not to have the fee simple
that is, the rights of disposal and recovery, which pertain to
another who, after the usufruct expires, will come into full
ownership.
The question set up in the first assignment of error of the
appellant's brief is this:
What are the rights in the property of the person who holds
it subject to the reservation of article 811 of the Civil Code?
There are not lacking writers who say, only those of a usufructuary,
the ultimate title belonging to the person in whose favor the
reservation is made. If that were so, the person holding the
property could not apply for registration of title, but the person in
whose favor it must be reserved, with the former's consent. This
opinion does not seem to be admissible, although it appears to be
supported by decisions of the supreme court of Spain of May 21,
1861, and June 18, 1880, prior to the Civil Code, and of June 22,
1895, somewhat subsequent to the enforcement thereof.
Another writer says: "This opinion only looks at two salient points
the usufruct and the fee simple; the remaining features of the
arrangement are not perceived, but become obscure in the
presence of that deceptive emphasis which only brings out two

things: that the person holding the property will enjoy it and that
he must keep what he enjoys for other persons." (Manresa, VII,
189.)
In another place he says: "We do not believe that the third opinion
can now be maintained that is, that the surviving spouse (the
person obliged by article 968 to make the reservation) can be
regarded as a mere usufructuary and the descendants immediately
as the owner; such theory has no serious foundation in the Code."
(Ibid., 238.)
The ascendants who inherits from a descendants, whether by the
latter's wish or by operation of law, requires the inheritance by
virtue of a title perfectly transferring absolute ownership. All the
attributes of the right of ownership belong to him exclusively
use, enjoyment, disposal and recovery. This absolute ownership,
which is inherent in the hereditary title, is not altered in the least,
if there be no relatives within the third degree in the line whence
the property proceeds or they die before the ascendant heir who is
the possessor and absolute owner of the property. If there should
be relatives within the third degree who belong to the line whence
the property proceeded, then a limitation to that absolute
ownership would arise. The nature and scope of this limitation
must be determined with exactness in order not to vitiate rights
that the law wishes to be effective. The opinion which makes this
limitation consist in reducing the ascendant heir to the condition in
of a mere usufructuary, depriving him of the right of disposal and
recovery, does not seem to have any support in the law, as it does
not have, according to the opinion that he has been expressed in
speaking of the rights of the father or mother who has married
again. There is a marked difference between the case where a
man's wish institutes two persons as his heirs, one as usufructuary
and the other as owner of his property, and the case of the
ascendant in article 811 or of the father or mother in article 968. In
the first case, there is not the slightest doubt that the title to the
hereditary property resides in the hereditary owner and he can
dispose of and recover it, while the usufructuary can in no way
perform any act of disposal of the hereditary property (except that
he may dispose of the right of usufruct in accordance with the
provisions of article 480 of the Civil Code), or any act of recovery
thereof except the limited one in the form prescribed in article 486
of the Code itself, because he totally lacks the fee simple. But the
ascendants who holds the property required by article 811 to be
reserved, and the father of mother required by article 986 to

reserve the right, can dispose of the property they might itself, the
former from his descendant and the latter from his of her child in
first marriage, and recover it from anyone who may unjustly detain
it, while the persons in whose favor the right is required to be
reserved in either case cannot perform any act whatsoever of
disposal or of recovery.
Article 975 states explicitly that the father or mother required by
article 9687 to reserve the right may dispose of the property itself:
Alienation of the property required by law to be reserved
which may be made by the surviving
spouse aftercontracting a second marriage shall be valid
only if at his or her death no legitimate children or
descendants of the first marriage survive, without prejudice
to the provisions of the Mortgage of Law.
It thus appears that the alienation is valid, although not altogether
effective, but under a condition subsequent, to wit: "If at his or her
death no legitimate children or descendants of the first marriage
survive."
If the title did not reside in the person holding the property to be
reserved, his alienation thereof would necessarily be null and void,
as executed without a right to do so and without a right which he
could transmit to the acquirer. The law says that the alienation
subsists (to subject is to continue to exist) "without prejudice to
the provisions of the Mortgage Law." Article 109 of this Law says:
The possessor of property subject to conditions
subsequent that are still pending may mortgage or alienate
it, provided always that he preserve the right of the parties
interested in said conditions by expressly reserving that
right in the registration.
In such case, the child or legitimate descendants of the first
marriage in whose favor the right is reserved cannot impugn the
validity of the alienation so long as the condition subsequent is
pending, that is, so long as the remarried spouse who must reserve
the right is alive, because it might easily happen that the person
who must reserve the right should outlive all the person in whose
favor the right is reserved and then there would be no reason for
the condition subsequent that they survive him, and, the object of

the law having disappeared, the right required to be reserved

would disappear, and the alienation would not only be valid but also
in very way absolutely effective. Consequently, the alienation is
valid when the right required by law to be reserved to the children
is respected; while the effects of the alienation depend upon a
condition, because it will or will not become definite, it will continue
to exist or cease to exist, according to circumstances. This is what
the law establishes with reference to the reservation of article 968,
wherein the legislator expressly directs that the surviving spouse
who contracts a second marriage shall reserve to the children or
descendants of the first marriage ownership. Article 811 says
nothing more than that the ascendants must make the reservation.
Manresa, with his recognized ability, summarizes the subject under
the heading, "Rights and obligations during the existence of the
right required by law to be reserved," in these words:
During the whole period between the constitution in legal form of
the right required by law to be reserved and the extinction thereof,
the relatives within the third degree, after the right that in their
turn may pertain to them has been assured, have only an
expectation, and therefore they do not even have the capacity to
transmit that expectation to their heirs.
The ascendant is in the first place a usufructuary who should use
and enjoy the things according to their nature, in the manner and
form already set forth in commenting upon the article of the Code
referring to use and usufruct.

But since in addition to being the usufructuary he is, even though

conditionally, the owner in fee simple of the property, he can
dispose of it in the manner provided in article 974 and 976 of the
same Code. Doubt arose also on this point, but the Direccion
General of the registries, in an opinion of June 25, 1892, declared
that articles 974 and 975, which are applicable by analogy, for they
refer to property reserved by law, reveal in the clearest manner the
attitude of the legislator on this subject, and the relatives with the
third degree ought not to be more privileged in the right reserved
in article 811 than the children in the right reserved by article 975,
chiefly for the reason that the right required to be reserved carries
with it a condition subsequent, and the property subject to those
conditions can validly be alienated in accordance with article 109 of
the Mortgage Law, such alienation to continue, pending fulfillment
of the condition." (Civil Code, VI, 270.)
Another commentator corroborates the foregoing in every way. He
says:
The ascendants acquires that property with a condition
subsequent, to wit, whether or not there exists at the time
of his death relatives within the third degree of the
descendants from whom they inherit in the line whence the
property proceeds. If such relatives exist, they acquire
ownership of the property at the death of the ascendants. If
they do not exist, the ascendants can freely dispose thereof.
If this is true, since the possessor of property subject to
conditions subsequent can alienate and encumber it, the
ascendants may alienate the property required by law to be
reserved, but he will alienate what he has and nothing more
because no one can give what does not belong to him, and
the acquirer will therefore receive a limited and revocable
title. The relatives within the third degree will in their turn
have an expectation to the property while the ascendant
lives, an expectation that cannot be transmitted to their
heirs, unless these are also within the third degree. After
the person who is required by law to reserve the right has
died, the relatives may rescind the alienation of the realty
required by law to be reserved and they will complete
ownership, in fee simple, because the condition and the
usufruct have been terminated by the death of the
usufructuary. (Morell, Estudios sobre bienes reservable,
304, 305.)

The conclusion is that the person required by article 811 to reserve

the right has, beyond any doubt at all, the rights of use and
usufruct. He has, moreover, for the reasons set forth, the legal title
and dominion, although under a condition subsequent. Clearly he
has, under an express provision of the law, the right to dispose of
the property reserved, and to dispose of is to alienate, although
under a condition. He has the right to recover it, because he is the
one who possesses or should possess it and have title to it,
although a limited and revocable one. In a word, the legal title and
dominion, even though under a condition, reside in him while he
lives. After the right required by law to be reserved has been
assured, he can do anything that a genuine owner can do.
On the other hand, the relatives within the third degree in whose
favor of the right is reserved cannot dispose of the property, first
because it is no way, either actually, constructively or formally, in
their possession; and, moreover, because they have no title of
ownership or of the fee simple which they can transmit to another,
on the hypothesis that only when the person who must reserve the
right should die before them will they acquire it, thus creating a fee
simple, and only then will they take their place in the succession of
the descendants of whom they are relatives within the third
degree, that it to say, a second contingent place in said legitimate
succession in the fashion of aspirants to a possible future legacy. If
any of the persons in whose favor the right is reserved should,
after their rights has been assured in the registry, dare to dispose
of even nothing more than the fee simple of the property to be
reserved his act would be null and void, for, as was definitely
decided in the decision on appeal of December 30, 1897, it is
impossible to determine the part "that might pertain therein to the
relative at the time he exercised the right, because in view of the
nature and scope of the right required by law to be reserved the
extent of his right cannot be foreseen, for it may disappear by his
dying before the person required to reserve it, just as may even
become absolute should that person die."
Careful consideration of the matter forces the conclusion that no
act of disposal inter vivos of the person required by law to reserve
the right can be impugned by him in whose favor it is reserved,
because such person has all, absolutely all, the rights inherent in
ownership, except that the legal title is burdened with a condition
that the third party acquirer may ascertain from the registry in
order to know that he is acquiring a title subject to a condition
subsequent. In conclusion, it seems to us that only an act of

disposal mortis causa in favor of persons other than relatives within

the third degree of the descendants from whom he got the
property to be reserved must be prohibited to him, because this
alone has been the object of the law: "To prevent persons outside a
family from securing, by some special accident of life, property that
would otherwise have remained therein." (Decision of December
30, 1897.)
Practically, even in the opinion of those who reduce the person
reserving the right to the condition of a mere usufructuary, the
person in whose favor it must be reserved cannot attack the
alienation that may be absolutely made of the property the law
requires to be reserved, in the present case, that which the
appellant has made of the two parcels of land in question to a third
party, because the conditional alienation that is permitted her is
equivalent to an alienation of the usufruct, which is authorized by
article 480 of the Civil Code, and, practically, use and enjoyment of
the property required by law to be reserved are all that the person
who must reserve it has during his lifetime, and in alienating the
usufruct all the usefulness of the thing would be transmitted in an
incontrovertible manner. The question as to whether or not she
transmits the fee simple is purely academic, sine re, for it is not
real, actual positive, as is the case of the institution of two heirs,
one a usufructuary and the other the owner, by the express wish of
the predecessor in interest.
If the person whom article 811 requires to reserve the right has all
the rights inherent in ownership, he can use, enjoy, dispose of and
recover it; and if, in addition to usufructuary, he is in fact and in
law the real owner and can alienate it, although under a condition,
the whole question is reduced to the following terms:
Cannot the heir of the property required by law to reserved, merely
because a condition subsequent is annexed to his right of disposal,
himself alone register the ownership of the property he has
inherited, when the persons in whose favor the reservation must be
made degree thereto, provided that the right reserved to them in
the two parcels of land be recorded, as the law provides?
It is well known that the vendee under pacto de retracto acquires
all the rights of the vendor:

The vendee substitutes the vendor in all his rights and

actions. (Civil Code, art. 1511.)
If the vendor can register his title, the vendee can also register this
same title after he has once acquired it. This title, however, in its
attribute of being disposable, has a condition subsequent annexed
that the alienation the purchaser may make will be terminated,
if the vendor should exercise the right granted him by article 1507,
which says:
Conventional redemption shall take place when the vendor reserves
to himself the right to recover the thing sold, with the obligation to
comply with article 1518, and whatever more may have been
agreed upon," that is, if he recovers the thing sold by repaying the
vendee the price of the sale and other expenses. Notwithstanding
this condition subsequent, it is a point not at all doubtful now that
the vendee may register his title in the same way as the owner of a
thing mortgaged that is to say, the latter with the consent of his
creditor and the former with the consent of the vendor. He may
alienate the thing bought when the acquirer knows by well from
the title entered in the registry that he acquires a title revocable
after a fixed period, a thing much more certain and to be expected
than the purely contingent expectation of the person in whose
favor is reserved a right to inherit some day what another has
inherited. The purpose of the law would be defeated in not applying
to the person who must make the reservation the provision therein
relative to the vendee under pacto de retracto, since the argument
in his favor is the more power and conclusive; ubi eadem ratio,
eadem legis dispositivo.
Therefore, we reverse the judgment appealed from, and in lieu
thereof decide and declare that the applicant is entitled to register
in her own name the two parcels of land which are the subject
matter of the applicants, recording in the registration the right
required by article 811 to be reserved to either or both of the
opponents, Pablo Sablan and Basilio Sablan, should they survive
her; without special findings as to costs.
Torres, Mapa, Johnson, Carson and Trent, JJ., concur.
Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January
14, 1926, 48 Phil. 601, 603, this Court ruled that the reservable
character of a property may be lost to innocent purchasers for

value. Additionally, it was ruled therein that the obligation imposed

on a widowed spouse to annotate the reservable character of a
property subject of reserva viudal is applicable to reserva troncal.
(See also Edrozo v. Sablan, G.R. No. 6878, September 13, 1913,
25 Phil. 295).
Since these parcels of land have been legally
transferred to third persons, Vicente Galang has lost
ownership thereof and cannot now register nor
record in the Registry of Deeds their reservable
character; neither can he effect the fee simple, which
does not belong to him, to the damage of Juan
Medina and Teodoro Jurado, who acquired the said
land in good faith, free of all incumbrances. An
attempt was made to prove that when Juan Medina
was advised not to buy the land he remarked, "Why
did he (Vicente Galang) not inherit it from his son?"
Aside from the fact that it is not clear whether this
conservation took place in 1913 or 1914, that is,
before or after the sale, it does not arise that he had
any knowledge of the reservation. This did not arise
from the fact alone that Vicente Galang had inherited
the land from his son, but also from the fact that, by
operation of law, the son had inherited it from his
mother Rufina Dizon, which circumstance, so far as
the record shows, Juan Medina had not been aware
of. We do not decide, however, whether or not Juan
Medina and Teodoro Jurado are obliged to
acknowledge the reservation and to note the same in
their deeds, for the reason that there was no prayer
to this effect in the complaint and no question raised
in regard thereto.
Consistent with the rule in reserva viudal where the person obliged
to reserve (the widowed spouse) had the obligation to annotate in
the Registry of Property the reservable character of the property,
in reserva troncal, the reservor (the ascendant who inherited from
a descendant property which the latter inherited from another
descendant) has the duty to reserve and therefore, the duty to
annotate also.
The jurisprudential rule requiring annotation in the Registry of
Property of the right reserved in real property subject of reserva

viudal insofar as it is applied to reserva troncal stays despite the

abolition of reserva viudal in the New Civil Code. This rule is
consistent with the rule provided in the second paragraph of
Section 51 of P.D. 1529, which provides that: "The act of
registration shall be the operative act to convey or affect the land
insofar as third persons are concerned . . ." (emphasis supplied)

respondent has other right-of-way alternatives, such as the

existing wooden bridge over Sipac Creek bounding the
respondent's lot on the northeast; that the bridge, if made
concrete, could provide ingress or egress to the Fajardo Subdivision
Road.
Due to the respondent's allegedly malicious and groundless suit,
the petitioners claimed entitlement to the following awards:
P100,000.00 as moral damages, P30,000.00 as exemplary
damages, P50,000.00 as attorney's fees, P1,000.00 as appearance
fee, and P15,000.00 as litigation expenses.

G.R. No. 198594, January 25, 2016

HELEN CALIMOSO, MARILYN P. CALIMOSO AND LIBY P.
CALIMOSO, Petitioners, v. AXEL D. ROULLO, Respondent.
DECISION
BRION, J.:
Before us is a petition for review on certiorari1 assailing the
December 15, 2010 decision2 and the August 23, 2011
resolution3 of the Court of Appeals (CA), Cebu City, in CA-G.R. CEB
CV No. 00834. The CA affirmed the decision of the Regional Trial
Court (RTC), Branch 29, Iloilo City, in Civil Case No. CEB23858 that ordered the establishment of an "easement of right of
way" in favor of respondent Axel D. Roullo.
Facts of the Case
In his Complaint4 for Easement of Right of Way, the respondent
mainly alleged: that he is the owner of Lot 1462-C-15 situated in
Brgy. Sambag, Jaro, Iloilo City; that his lot is isolated by several
surrounding estates, including Lot 1454-B-256 owned by petitioners
Helen, Marilyn, and Liby, all surnamed Calimoso; that he needs a
right-of-way in order to have access to a public road; and that the
shortest and most convenient access to the nearest public
road, i.e., Fajardo Subdivision Road, passes through the
petitioners' lot.
The petitioners objected to the establishment of the easement
because it would cause substantial damage to the two (2) houses
already standing on their property. They alleged that the

In a decision dated September 29, 2003, the RTC granted the

respondent's complaint and ordered the petitioners to provide the
respondent an easement of right-of-way "measuring 14 meters in
length and 3 meters in width (42 square meters, more or less)
over Lot1454-B-25, specifically at the portion adjoining the bank of
Sipac Creek." Accordingly, the RTC ordered the respondent to pay
the petitioners proper indemnity in the amount of "Php1,500.00
per square meter of the portion of the lot subject of the easement."
The petitioners appealed the RTC's decision to the CA.
The CA, in its assailed December 15, 2010 decision, affirmed in
toto the RTC's decision and held that all the requisites for the
establishment of a legal or compulsory easement of right-of-way
were present in the respondent's case: first, that the subject lot is
indeed surrounded by estates owned by different individuals and
the respondent has no access to any existing public road; second,
that the respondent has offered to compensate the petitioners for
the establishment of the right-of-way through the latter's
property; third, that the isolation of the subject lot was not caused
by the respondent as he purchased the lot without any adequate
ingress or egress to a public highway; and,fourth and last, given
the available options for the right-of-way, the route that passes
through the petitioners' lot requires the shortest distance to
a public road and can be established at a point least
prejudicial to the petitioners' property.
The petitioners moved to reconsider the CA's decision arguing that,
while the establishment of the easement through their lot provided
for the shortest route, the adjudged right-of-way would cause
severe damage not only to the nipa hut situated at the corner of
the petitioners' lot, but also to the bedroom portion of the other
concrete house that stood on the property. The CA, however, did

not consider the petitioners' arguments on the ground that the

matters alleged were not raised or proven before the trial court,
thus, it denied the petitioners' motion for reconsideration.
The petitioners filed the present petition for review
on certiorari raising the issues of: (a) whether the respondent has
met all the requisites for the establishment of a legal easement of
right-of-way on Lot 1454-B-25 owned by the petitioners, (b)
whether the establishment of the right-of-way on the petitioners'
lot is at the point least prejudicial to the servient estate, and (c)
whether a right-of-way can be established through other lots
surrounding the respondent's property other than through the
petitioners' property.
OUR RULING
We disagree with the CA finding that all the requisites for
the valid establishment of an easement of right-of-way are
present in this case.
To be entitled to an easement of right-of-way, the following
requisites should be met:
"1.

The dominant estate is surrounded by other immovables

and has no adequate outlet to a public highway;

2.

There is payment of proper indemnity;

3.

The isolation is not due to the acts of the proprietor of the

dominant estate; and

4.

The right-of-way claimed is at the point least prejudicial to

the servient estate; and insofar as consistent with this rule,
where the distance from the dominant estate to a public
highway may be the shortest."7

The immovable in whose favor the easement is established is called

the dominant estate, and the property subject to the easement is
called the servient estate.8 Here, the respondent's lot is the
dominant estate and the petitioners' lot is the servient estate.
That the respondent's lot is surrounded by several estates and has

no access to a public road are undisputed. The only question before

this Court is whether the right-of-way passing through the
petitioners' lot satisfies the fourth requirement of
being established at the point least prejudicial to the
servient estate.
Three options were then available to the respondent for the
demanded right-of-way: the first optionis to traverse directly
through the petitioners' property, which route has an approximate
distance of fourteen (14) meters from the respondent's lot to the
Fajardo Subdivision Road; the second option is to pass through
two vacant lots (Lots 1461-B-l and 1461-B-2) located on the
southwest of the respondent's lot, which route has an approximate
distance of forty-three (43) meters to another public highway, the
Diversion Road; and the third option is to construct a concrete
bridge over Sipac Creek and ask for a right-of-way on the property
of a certain Mr. Basa in order to reach the Fajardo Subdivision
Road.
Among the right-of-way alternatives, the CA adopted the first
option, i.e., passing through the petitioner's lot, because it offered
the shortest distance (from the respondent's lot) to the Fajardo
Subdivision Road and the right-of-way would only affect the
"nipa hut" standing on the petitioners' property. The CA held that
the establishment of the easement through the petitioners' lot was
more practical, economical, and less burdensome to the parties.
Article 650 of the Civil Code provides that the easement of right-ofway shall be established at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be
the shortest. Under this guideline, whenever there are several
tenements surrounding the dominant estate, the right-of-way must
be established on the tenement where the distance to the public
road or highway is shortest and where the least damage would be
caused. If these two criteria (shortest distance and least damage)
do not concur in a single tenement, we have held in the past
that the least prejudice criterion must prevail over the
shortest distance criterion.9
In this case, the establishment of a right-of-way through the
petitioners' lot would cause the destruction of the wire fence and a
house on the petitioners' property.10 Although this right-of-way has
the shortest distance to a public road, it is not the least prejudicial

considering the destruction pointed out, and that an option to

traverse two vacant lots without causing any damage, albeit longer,
is available.
We have held that "mere convenience for the dominant estate is
not what is required by law as the basis of setting up a compulsory
easement;"11 that "a longer way may be adopted to avoid injury to
the servient estate, such as when there are constructions or walls
which can be avoided by a roundabout way."12
WHEREFORE, we hereby GRANT the present petition for review
on certiorari and REVERSE and SET ASIDE the decision dated
December 15, 2010, and resolution dated August 23, 2011, of the
Court of Appeals in CA-G.R. CEB CV No. 00834. The complaint for
the easement of right-of-way is DISMISSEDwithout prejudice to
another complaint that the respondent may file against the proper
party or parties based on the terms of this Decision.
Costs against respondent Axel D. Roullo.
SO ORDERED.chanroblesvirtuallawlibrary

G.R. No. L-66574 June 17, 1987

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA
and MIGUEL, all surnamed SANTERO, petitioners, and
FELIXBERTA PACURSA guardian of FEDERICO SANTERO, et
al.,
vs.
INTERMEDIATE APPELLATE COURT and FELISA PAMUTI
JARDIN, respondents.
Ambrosia Padilla, Mempin & Reyes Law Offices for petitioners.

The Matter of the Intestate Estate of the late Simona Pamuti Vda.
de Santero," praying among other things, that the corresponding
letters of Administration be issued in her favor and that she be
appointed as special Administratrix of the properties of the
deceased Simona Pamuti Vda. de Santero.
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona
Pamuti Vda. de Santero who together with Felisa's mother Juliana
were the only legitimate children of the spouses Felipe Pamuti and
Petronila Asuncion; 2) that Juliana married Simon Jardin and out of
their union were born Felisa Pamuti and another child who died
during infancy; 3) that Simona Pamuti Vda. de Santero is the
widow of Pascual Santero and the mother of Pablo Santero; 4) that
Pablo Santero was the only legitimate son of his parents Pascual
Santero and Simona Pamuti Vda. de Santero; 5) that Pascual
Santero died in 1970; Pablo Santero in 1973 and Simona Santero
in 1976; 6) that Pablo Santero, at the time of his death was
survived by his mother Simona Santero and his six minor natural
children to wit: four minor children with Anselma Diaz and two
minor children with Felixberta Pacursa.
Judge Jose Raval in his Orders dated December 1, 1976 1 and
December 9, 1976 2 declared Felisa Pamuti Jardin as the sole
legitimate heir of Simona Pamuti Vda. de Santero.
Before the trial court, there were 4 interrelated cases filed to wit:
a) Sp. Proc. No. B-4 is the Petition for the Letters
of Administration of the intestate Estate of Pablo
Santero;
b) Sp. Proc. No. B-5 is the Petition for the Letters
of Administration of the Intestate Estate of Pascual
Santero;

Pedro S. Sarino for respondent F.P. Jardin.

c) Sp. Proc. No. B-7 is the Petition for

Guardianship over the properties of an Incompetent
Person, Simona Pamuti Vda. de Santero;

PARAS, J.:

d) Sp. Proc. No. B-21 is the Petition for Settlement

of the Intestate Estate of Simona Pamuti Vda. de
Santero.

Private respondent filed a Petition dated January 23, 1976 with the
Court of First Instance of Cavite in Sp. Proc. Case No. B-21, "In

Felisa Jardin upon her Motion to Intervene in Sp. Proceedings Nos.

B-4 and B-5, was allowed to intervene in the intestate estates of
Pablo Santero and Pascual Santero by Order of the Court dated
August 24, 1977.

The Motion for Reconsideration filed by oppositors-appellees

(petitioners herein) was denied by the same respondent court in its
order dated February 17, 1984 hence, the present petition for
Review with the following:

Petitioner Anselma Diaz, as guardian of her minor children, filed

her "Opposition and Motion to Exclude Felisa Pamuti Jardin dated
March 13, 1980, from further taking part or intervening in the
settlement of the intestate estate of Simona Pamuti Vda. de
Santero, as well as in the intestate estate of Pascual Santero and
Pablo Santero.

ASSIGNMENT OF ERRORS

Felixberta Pacursa guardian for her minor children, filed thru

counsel, her Manifestation of March 14, 1980 adopting the
Opposition and Motion to Exclude Felisa Pamuti, filed by Anselma
Diaz.
On May 20, 1980, Judge Ildefonso M. Bleza issued an order
excluding Felisa Jardin "from further taking part or intervening in
the settlement of the intestate estate of Simona Pamuti Vda. de
Santero, as well as in the intestate estates of Pascual Santero and
Pablo Santero and declared her to be, not an heir of the deceased
Simona Pamuti Vda. de Santero." 3
After her Motion for Reconsideration was denied by the trial court
in its order dated November 1, 1980, Felisa P. Jardin filed her
appeal to the Intermediate Appellate Court in CA-G.R. No. 69814R. A decision 4 was rendered by the Intermediate Appellate Court
on December 14, 1983 (reversing the decision of the trial court)
the dispositive portion of which reads
WHEREFORE, finding the Order appealed from not
consistent with the facts and law applicable, the
same is hereby set aside and another one entered
sustaining the Orders of December 1 and 9, 1976
declaring the petitioner as the sole heir of Simona
Pamuti Vda. de Santero and ordering oppositorsappellees not to interfere in the proceeding for the
declaration of heirship in the estate of Simona
Pamuti Vda. de Santero.
Costs against the oppositors-appellees.

I. The Decision erred in ignoring the right to

intestate succession of
petitioners grandchildren Santero as direct
descending line (Art. 978) and/or
natural/"illegitimate children" (Art. 988) and
prefering a niece, who is a collateral relative (Art.
1003);
II. The Decision erred in denying the right of
representation of the natural grandchildren Santero
to represent their father Pablo Santero in the
succession to the intestate estate of their
grandmotherSimona Pamuti Vda. de Santero (Art.
982);
III. The Decision erred in mistaking the intestate
estate of the grandmother Simona Pamuti Vda. de
Santero as the estate of "legitimate child or relative"
of Pablo Santero, her son and father of the
petitioners' grandchildren Santero;
IV. The Decision erred in ruling that petitionerappellant Felisa P. Jardin who is a niece and therefore
a collateral relative of Simona Pamuti Vda. de
Santero excludes the natural children of her son
Pablo Santero, who are her
direct descendants and/or grand children;
V. The Decision erred in applying Art. 992, when
Arts. 988, 989 and 990 are the applicable provisions
of law on intestate succession; and
VI. The Decision erred in considering the orders of
December 1 and December 9, 1976 which are
provisional and interlocutory as final and executory.

The real issue in this case may be briefly stated as follows who
are the legal heirs of Simona Pamuti Vda. de Santero her niece
Felisa Pamuti Jardin or her grandchildren (the natural children of
Pablo Santero)?
The dispute at bar refers only to the intestate estate of Simona
Pamuti Vda. de Santero and the issue here is whether oppositorsappellees (petitioners herein) as illegitimate children of Pablo
Santero could inherit from Simona Pamuti Vda. de Santero, by
right of representation of their father Pablo Santero who is a
legitimate child of Simona Pamuti Vda, de Santero.
Now then what is the appropriate law on the matter? Petitioners
contend in their pleadings that Art. 990 of the New Civil Code is the
applicable law on the case. They contend that said provision of the
New Civil Code modifies the rule in Article 941 (Old Civil Code) and
recognizes the right of representation (Art. 970) to descendants,
whether legitimate or illegitimate and that Art. 941, Spanish Civil
Code denied illegitimate children the right to represent their
deceased parents and inherit from their deceased grandparents,
but that Rule was expressly changed and/or amended by Art. 990
New Civil Code which expressly grants the illegitimate children the
right to represent their deceased father (Pablo Santero) in the
estate of their grandmother Simona Pamuti)." 5
Petitioners' contention holds no water. Since the heridatary conflict
refers solely to the intestate estate of Simona Pamuti Vda. de
Santero, who is the legitimate mother of Pablo Santero, the
applicable law is the provision of Art. 992 of the Civil Code which
reads as follows:
ART. 992. An illegitimate child has no right to inherit
ab intestato from the legitimate children and
relatives of his father or mother; nor shall such
children or relatives inherit in the same manner from
the illegitimate child. (943a)
Pablo Santero is a legitimate child, he is not an illegitimate child.
On the other hand, the oppositors (petitioners herein) are the
illegitimate children of Pablo Santero.
Article 992 of the New Civil Code provides a barrier or iron curtain
in that it prohibits absolutely a succession ab intestato between the

illegitimate child and the legitimate children and relatives of the

father or mother of said legitimate child. They may have a natural
tie of blood, but this is not recognized by law for the purposes of
Art. 992, Between the legitimate family and the illegitimate family
there is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked down
upon by the legitimate family; the family is in turn, hated by the
illegitimate child; the latter considers the privileged condition of the
former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the
product of sin, palpable evidence of a blemish broken in life; the
law does no more than recognize this truth, by avoiding further
grounds of resentment. 6
Thus, petitioners herein cannot represent their father Pablo
Santero in the succession of the letter to the intestate estate of his
legitimate mother Simona Pamuti Vda. de Santero, because of the
barrier provided for under Art. 992 of the New Civil Code.
In answer to the erroneous contention of petitioners that Article
941 of the Spanish Civil Code is changed by Article 990 of the New
Civil Code, We are reproducing herewith the Reflections of the
Illustrious Hon. Justice Jose B.L. Reyes which also finds full support
from other civilists, to wit:
In the Spanish Civil Code of 1889 the right of
representation was admitted only within the
legitimate family; so much so that Article 943 of that
Code prescribed that an illegitimate child can riot
inherit ab intestato from the legitimate children and
relatives of his father and mother. The Civil Code of
the Philippines apparently adhered to this principle
since it reproduced Article 943 of the Spanish Code
in its own Art. 992, but with fine inconsistency, in
subsequent articles (990, 995 and 998) our Code
allows the hereditary portion of the illegitimate child
to pass to his own descendants, whether legitimate
or illegitimate. So that while Art. 992 prevents the
illegitimate issue of a legitimate child from
representing him in the intestate succession of the
grandparent, the illegitimates of an illegitimate child
can now do so. This difference being indefensible and
unwarranted, in the future revision of the Civil Code

we shall have to make a choice and decide either

that the illegitimate issue enjoys in all cases the right
of representation, in which case Art. 992 must be
suppressed; or contrariwise maintain said article and
modify Articles 995 and 998. The first solution would
be more in accord with an enlightened attitude vis-avis illegitimate children. (Reflections on the Reform
of Hereditary Succession, JOURNAL of the Integrated
Bar of the Philippines, First Quater, 1976, Volume 4,
Number 1, pp. 40-41).
It is therefore clear from Article 992 of the New Civil Code that the
phrase "legitimate children and relatives of his father or mother"
includes Simona Pamuti Vda. de Santero as the word "relative"
includes all the kindred of the person spoken of. 7 The record shows
that from the commencement of this case the only parties who
claimed to be the legitimate heirs of the late Simona Pamuti Vda.
de Santero are Felisa Pamuti Jardin and the six minor natural or
illegitimate children of Pablo Santero. Since petitioners herein are
barred by the provisions of Article 992, the respondent
Intermediate Appellate Court did not commit any error in holding
Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate
estate of the late Simona Pamuti Vda. de Santero.
Lastly, petitioners claim that the respondent Intermediate Appellate
Court erred in ruling that the Orders of the Court a quo dated
December 1, 1976 and December 9, 1976 are final and executory.
Such contention is without merit. The Hon. Judge Jose Raval in his
order dated December 1, 1976 held that the oppositors (petitioners
herein) are not entitled to intervene and hence not allowed to
intervene in the proceedings for the declaration of the heirship in
the intestate estate of Simona Pamuti Vda. de Santero.
Subsequently, Judge Jose Raval issued an order, dated December
9, 1976, which declared Felisa Pamuti-Jardin to be the sole
legitimate heir of Simona Pamuti. The said Orders were never
made the subjects of either a motion for reconsideration or a
perfected appeal. Hence, said orders which long became final and
executory are already removed from the power of jurisdiction of
the lower court to decide anew. The only power retained by the
lower court, after a judgment has become final and executory is to
order its execution. The respondent Court did not err therefore in
ruling that the Order of the Court a quo dated May 30, 1980
excluding Felisa Pamuti Jardin as intestate heir of the deceased

Simona Pamuti Vda. de Santero "is clearly a total reversal of an

Order which has become final and executory, hence null and void. "
WHEREFORE, this petition is hereby DISMISSED, and the assailed
decision is hereby AFFIRMED.
SO ORDERED.
G.R. No. 80511

January 25, 1991

COSTABELLA CORPORATION, petitioner,

vs.
COURT OF APPEALS, KATIPUNAN LUMBER CO., INC.,
AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., JOSEFA
C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L.
CHUANGCO, and CESAR T. ESPINA,respondents.
Roco, Bunag, Kapunan & Migallos for petitioner.
Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.
Zosa & Quijano Law Offices for respondents.

SARMIENTO, J.:
The principal issue raised in this petition for review on certiorari of
the decision 1 dated May 30, 1986 of the Court of Appeals, 2 which
modified the decision 3 rendered by the Regional Trial Court of
Lapu-Lapu City in Cebu, is whether or not the private respondents
had acquired an easement of right of way, in the form of a
passageway, on the petitioner's property.
It is admitted that the petitioner owns the real estate properties
designated as Lots Nos. 5122 and 5124 of the Opon Cadastre,
situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had
constructed a resort and hotel. The private respondents, on the
other hand, are the owners of adjoining properties more
particularly known as Lots Nos. 5123-A and 5123-C of the Opon
Cadastre.

Before the petitioner began the construction of its beach hotel, the
private respondents, in going to and from their respective
properties and the provincial road, passed through a passageway
which traversed the petitioner's property. In 1981, the petitioner
closed the aforementioned passageway when it began the
construction of its hotel, but nonetheless opened another route
across its property through which the private respondents, as in
the past, were allowed to pass. (Later, or sometime in August,
1982, when it undertook the construction of the second phase of
its beach hotel, the petitioner fenced its property thus closing even
the alternative passageway and preventing the private respondents
from traversing any part of it.)
As a direct consequence of these closures, an action for injunction
with damages was filed against the petitioner by the private
respondents on September 2, 1982 before the then Court of First
Instance of Cebu. 4
In their complaint, the private respondents assailed the petitioner's
closure of the original passageway which they (private
respondents) claimed to be an "ancient road right of way" that had
been existing before World War II and since then had been used by
them, the community, and the general public, either as pedestrians
or by means of vehicles, in going to and coming from Lapu-Lapu
City and other parts of the country. The private respondents
averred that by closing the alleged road right of way in question,
the petitioner had deprived them access to their properties and
caused them damages.
In the same complainant, the private respondents likewise alleged
that the petitioner had constructed a dike on the beach fronting the
latter's property without the necessary permit, obstructing the
passage of the residents and local fishermen, and trapping debris
and flotsam on the beach. They also claimed that the debris and
flotsam that had accumulated prevented them from using their
properties for the purpose for which they had acquired them. The
complaint this prayed for the trial court to order the re-opening of
the original passageway across the petitioner's property as well as
the destruction of the dike. 5
In its answer, 6 the petitioner denied the existence of an ancient
road through its property and counter-averred, among others, that
it and its predecessors-in-interest had permitted the temporary,

intermittent, and gratuitous use of, or passage through, its

property by the private respondents and others by mere tolerance
and purely as an act of neighborliness. It justified the walling in of
its property in view of the need to insure the safety and security of
its hotel and beach resort, and for the protection of the privacy and
convenience of its hotel patrons and guests. At any rate, the
petitioner alleged, the private respondents were not entirely
dependent on the subject passageway as they (private
respondents) had another existing and adequate access to the
public road through other properties. With respect to the dike it
allegedly constructed, the petitioner stated that what it built was a
breakwater on the foreshore land fronting its property and not a
dike as claimed by the private respondents. Moreover, contrary to
the private respondents' accusation, the said construction had
benefitted the community especially the fishermen who used the
same as mooring for their boats during low tide. The quantity of
flotsam and debris which had formed on the private respondents'
beach front on the other hand were but the natural and
unavoidable accumulations on beaches by the action of the tides
and movement of the waves of the sea. The petitioner's answer
then assailed the private respondents' complaint for its failure to
implead as defendants the owners of the other properties
supposedly traversed by the alleged ancient road right way,
indispensable parties without whom no final adjudication of the
controversy could be rendered. 7
After trial, the court a quo rendered a decision on March 15, 1984
finding that the private respondents had acquired a vested right
over the passageway in controversy based on its long existence
and its continued use and enjoyment not only by the private
respondents, but also by the community at large. The petitioner in
so closing the said passageway, had accordingly violated the
private respondents' vested right. Thus, the trial court ordered the
petitioner:
1. To open and make available the road in question to the
plaintiffs and the general public at all times free of any
obstacle thereof, unless the defendant, shall provide
another road equally accessible and convenient as the road
or passage closed by the defendant;
2. To pay the plaintiff Katipunan Lumber Company, Inc. the
amount of FIVE THOUSAND PESOS (P5,000.00) a month

beginning January, 1983, and the plaintiff Perfecto Guangco

the sum of TWO HUNDRED PESOS (P200.00) a month
beginning September, 1982, representing their respective
expenditures they had incurred in other beach resorts after
the road was closed, until the passageway claimed by them
is opened and made available to them, or if the defendant
chooses to provide another road, until such road is made
available and conveniently passable to the plaintiffs and the
general public; and
3. To pay the sum of FIFTEEN THOUSAND PESOS
(P15,000.00) attorney's fees, and to pay the costs.

Both parties elevated the trial court's decision to the Court of

Appeals, with the petitioner questioning the alleged "vested right"
of the private respondents over the subject passageway, and the
private respondents assailing the dismissal of their complaint
insofar as their prayer for the demolition of the petitioner's "dike" is
concerned.
In its decision, the respondent Appellate Court held as without
basis the trial court's finding that the private respondents had
acquired a vested right over the passageway in question by virtue
of prescription. 9 The appellate court pointed out that an easement
of right of way is a discontinuous one which, under Article 622 of
the New Civil Code, may only be acquired by virtue of a title and
not by prescription. 10 That notwithstanding, the appellate court
went on to rule that ". . . in the interest of justice and in the
exercise by this Court of its equity jurisdiction, there is no reason
for Us in not treating the easement here sought by appellees
Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is
not dependent upon the claims of the parties but a compulsory one
that is legally demandable by the owner of the dominant estate
from the owner of the servient estate." 11 Thus the appellate court:
(1) granted the private respondents the right to an easement of
way on the petitioner's property using the passageway in question,
unless the petitioner should provide another passageway equally
accessible and convenient as the one it closed; (2) remanded the
case to the trial court for the determination of the just and proper
indemnity to be paid to the petitioner by the private respondents
for the said easement; and (3) set aside the trial court's award of
actual damages and attorney's fees. 12

On petitioner's motion for partial reconsideration, the respondent

court issued on October 27, 1987 a resolution 13denying the said
motion. The Appellate Court however in denying the petitioner's
motion for reconsideration stated that:
. . . While it is true that there is another outlet for the
plaintiff to the main road, yet such outlet is a new road
constructed in 1979, while the road closed by defendant
existed since over 30 years before. Legally, the old road
could be closed; but since the existing outlet is inconvenient
to the plaintiff, equitably the plaintiff should be given a
chance to pay for a more convenient outlet through the land
of the defendant at a point least prejudicial to the latter. In
any event, the plaintiff shall pay for all damages that
defendant corporation may sustain and the defendant
regulates the manner of use of the right of way to protect
defendant's property and its customers. This is the gist of
Our decision. 14
Now before us, the petitioner contends that the decision of the
respondent appellate court is grossly erroneous and not in accord
with the provisions of Articles 649 and 650 of the Civil Code on
easements and the prevailing jurisprudence on the matter.
The petition is meritorious.
It is already well-established that an easement of right of way, as
is involved here, is discontinuous 15 and as such can not be
acquired by prescription. 16 Insofar therefore as the appellate court
adhered to the foregoing precepts, it stood correct. Unfortunately,
after making the correct pronouncement, the respondent Appellate
Court did not order the reversal of the trial court's decision and the
dismissal of the complaint after holding that no easement had been
validly constituted over the petitioner's property. Instead, the
Appellate Court went on to commit a reversible error by
considering the passageway in issue as a compulsory easement
which the private respondents, as owners of the "dominant" estate,
may demand from the petitioner the latter being the owner of the
"servient" estate.
It is provided under Articles 649 and 650 of the New Civil Code
that:

Art. 649. The owner, or any person who by virtue of a real

right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is
entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity.
Should this easement be established in such a manner that
its use may be continuous for all the needs of the dominant
estate, establishing a permanent passage, the indemnity
shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage
for the cultivation of the estate surrounded by others and
for the gathering of its crops through the servient estate
without a permanent way, the indemnity shall consist in the
payment of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts.
Art. 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and,
insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the
shortest.
Based on the foregoing, the owner of the dominant estate may
validly claim a compulsory right of way only after he has
established the existence of four requisites, to wit: (1) the
(dominant) estate is surrounded by other immovables and is
without adequate outlet to a public highway; (2) after payment of
the proper indemnity; (3) the isolation was not due to the
proprietor's own acts; and (4) the right of way claimed is at a point
least prejudicial to the servient estate. Additionally, the burden of
proving the existence of the foregoing pre-requisites lies on the
owner of the dominant estate. 17
Here, there is absent any showing that the private respondents had
established the existence of the four requisites mandated by law.
For one, they failed to prove that there is no adequate outlet from
their respective properties to a public highway. On the contrary, as

alleged by the petitioner in its answer to the complaint, and

confirmed by the appellate court, "there is another outlet for the
plaintiffs (private respondents) to the main road."18 Thus, the
respondent Court of Appeals likewise admitted that "legally the old
road could be closed." 19 Yet, it ordered the re- opening of the old
passageway on the ground that "the existing outlet (the other
outlet) is inconvenient to the plaintiff." 20 On this score, it is
apparent that the Court of Appeals lost sight of the fact that the
convenience of the dominant estate has never been the gauge for
the grant of compulsory right of way. 21 To be sure, the true
standard for the grant of the legal right is "adequacy." Hence, when
there is already an existing adequate outlet from the dominant
estate to a public highway, even if the said outlet, for one reason
or another, be inconvenient, the need to open up another servitude
is entirely unjustified. For to justify the imposition of an easement
or right of way, "there must be a real, not a fictitious or artificial
necessity for it." 22
Further, the private respondents failed to indicate in their complaint
or even to manifest during the trial of the case that they were
willing to indemnify fully the petitioner for the right of way to be
established over its property. Neither have the private respondents
been able to show that the isolation of their property was not due
to their personal or their predecessors-in-interest's own acts.
Finally, the private respondents failed to allege, much more
introduce any evidence, that the passageway they seek to be reopened is at a point least prejudicial to the petitioner. Considering
that the petitioner operates a hotel and beach resort in its
property, it must undeniably maintain a strict standard of security
within its premises. Otherwise, the convenience, privacy, and
safety of its clients and patrons would be compromised. That
indubitably will doom the petitioner's business. It is therefore of
great importance that the claimed light of way over the petitioner's
property be located at a point least prejudicial to its business.
Hence, the Private respondents' properties can not be said to be
isolated, for which a compulsory easement is demandable. Insofar
therefore as the Appellate Court declared the case to be proper as
a controversy for a compulsory right of way, this Court is
constrained to hold that it was in error.
Servitudes of right of way are an ancient concept, which date back
to the iter, actus, and via of the Romans. 23They are demanded by

necessity, that is, to enable owners of isolated estates to make full

use of their properties, which lack of access to public roads has
denied them. 24 Under Article 649 of the Civil Code, they are
compulsory and hence, legally demandable, subject to indemnity
and the concurrence of the other conditions above-referred to.

passageway the property can not be truly said that the property is
isolated. So also, while an existing right of way may have proved
adequate at the start, the dominant owner's need may have
changed since then, for which Article 651 of the Code allows
adjustments as to width. 28

As also earlier indicated, there must be a real necessity therefor,

and not mere convenience for the dominant estate. Hence, if there
is an existing outlet, otherwise adequate, to the highway, the
"dominant" estate can not demand a right of way, although the
same may not be convenient. Of course, the question of when a
particular passage may be said to be "adequate" depends on the
circumstances of each case. Manresa, however, says: "In truth, not
only the estate which absolutely does not possess it should be
considered in this condition, but also that which does not have one
sufficiently safe or serviceable; an estate bordering a public road
through an inaccessible slope or precipice, is in fact isolated for all
the effects of the easement requested by its owner. On the other
hand, an estate which for any reason has necessarily lost its access
to a public road during certain periods of the year is in the same
condition. . . . There are some who propound the query as to
whether the fact that a river flows between the estate and the
public road should be considered as having the effect of isolating
the estate. . . . If the river may be crossed conveniently at all
times without the least danger, it cannot be said that the estate is
isolated; in any other case, the answer is in the affirmative." 25

But while a right of way is legally demandable, the owner of the

dominant estate is not at liberty to impose one based on arbitrary
choice. Under Article 650 of the Code, it shall be established upon
two criteria: (1) at the point least prejudicial to the servient state;
and (2) where the distance to a public highway may be the
shortest. According, however, to one commentator, "least
prejudice" prevails over "shortest distance." 29 Yet, each case must
be weighed according to its individual merits, and judged according
to the sound discretion of the court. "The court," says Tolentino, "is
not bound to establish what is the shortest; a longer way may be
established to avoid injury to the servient tenement, such as when
there are constuctions or walls which can be avoided by a
roundabout way, or to secure the interest of the dominant owner,
such as when the shortest distance would place the way on a
dangerous decline." 30

The isolation of the dominant estate is also dependent on the

particular need of the dominant owner, and the estate itself need
not be totally landlocked. What is important to consider is whether
or not a right of way is necessary to fill a reasonable need therefor
by the owner. 26 Thus, as Manresa had pointed out, if the
passageway consists of an "inaccessible slope or precipice," 27 it is
as if there is no passageway, that is, one that can sufficiently fulfill
the dominant owner's necessities, although by the existence of that

It is based on these settled principles that we have resolved this

case.
WHEREFORE, the decision dated May 30, 1986, and the resolution
dated October 27, 1987, of the respondent Court of Appeals are
SET ASIDE and the private respondents' complaint is hereby
DISMISSED. Costs against the private respondents.
SO ORDERED.