Republic of the Philippines SUPREME COURTManila 

   

THIRD DIVISION  

RESTITUTO M. ALCANTARA,Petitioner,

-versus-ROSITA A. ALCANTARA and HON. COURT OF APPEALS,cralawRespondents.

  G.R. No. 167746 Present: YNARES-SANTIAGO, J.,Chairperson,AUSTRIA-MARTINEZ,CHICO-NAZARIO,NACHURA, andREYES, JJ.Promulgated:August 28, 2007

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D E C I S I O NCHICO-NAZARIO, J.:Before this Court is a Petition for Review on Certiorari filed by petitioner Restituto Alcantaraassailing the Decision[1] of the Court of Appeals dated 30 September 2004 in CA-G.R. CV No. 66724 denying petitioners appeal and affirming the decision[2] of the Regional Trial Court (RTC) ofMakati City, Branch 143, in Civil Case No. 97-1325 dated 14 February 2000, dismissing his petition for annulment of marriage. The antecedent facts are: A petition for annulment of marriage [3]  was filed by petitioner against respondent Rosita A.Alcantara alleging that on 8 December 1982 he and respondent, without securing the requiredmarriage license, went to the ManilaCity Hall for the purpose of looking for a person who could arrange a marriage for them.They met a person who, for a fee, arranged their wedding before a certain Rev. Aquilino Navarro, a Minister of

the Gospel of the CDCC BR Chapel.[4]They got marriedon the same day, 8 December 1982.Petitioner and respondent went through another marriage ceremony at the San Jose de Manuguit Church in Tondo, Manila, on 26 March 1983.The marriagewas likewise celebrated without the parties securing a marriage license.The alleged marriage license, procured in Carmona, Cavite, appearing on the marriage contract, is a sham, as neither party was a resident of Carmona, and they never went to Carmona to apply for a license with the local civil registrar of the said place.On 14 October 1985, respondent gave birth to their child Rose Ann Alcantara.In 1988, they parted ways and lived separate lives.Petitioner prayed that after due hearing, judgment be issued declaring their marriage void and ordering the Civil Registrar to cancel the corresponding marriage contract [5]  and its entry on file.[6] 

Answering petitioners petition for annulment of marriage, respondent asserts the validity of their marriage and maintains that there was a marriage license issued as evidenced by a certificationfrom the Office of the Civil Registry of Carmona, Cavite. Contrary to petitioners representation, respondent gave birth to their first child named Rose Ann Alcantara on 14 October 1985 and to another daughter named Rachel Ann Alcantara on 27 October 1992.[7] Petitioner has a mistress with whom he has three children.[8]Petitioner only filed the annulment of their marriage to evade prosecution for concubinage.[9]Respondent, in fact, has filed a case for concubinage against petitioner before the MetropolitanTrialCourtofMandaluyongCity, Branch 60.[10]Respondent prays that the petition for annulment of marriage be denied for lack of merit. 

On 14 February 2000, the RTC of Makati City, Branch 143, rendered its Decision disposing as follows:

 The foregoing considered, judgment is rendered as follows: The Petition is dismissed for lack of merit; Petitioner is ordered to pay respondent the sum of twenty thousand pesos (P20,000.00) per month as support for their two (2) children on the first five (5) days of each month; and 

To pay the costs.[11]  

As earlier stated, the Court of Appeals rendered its Decision dismissing the petitioners appeal.His Motion for Reconsideration was likewise denied in a resolution of the Court of Appeals dated 6 April 2005.[12]chanroblesvirtuallawlibrary The Court of Appeals held that the marriage license of the parties is presumed to be regularly issued and petitioner had not presented any evidence to overcome the presumption.Moreover, the parties marriage contract being a public document is a prima facie proof of the questioned marriage under Section 44, Rule 130 of the Rules of Court.[13] In his Petition before this Court, petitioner raises the following issues for resolution: 

a. The Honorable Court of Appeals committed a reversible error when it ruled that the Petition for Annulment has no legal and factual basis despite the evidence on record that there was no marriage license at the precise moment of the solemnization of the marriage.

 b. The Honorable Court of Appeals committed a

reversible error when it gave weightto the Marriage License No. 7054133 despite the fact that the same was not identified and offered as evidence during the trial, and was not the Marriage license number appearing on the face of the marriage contract.

 c. The Honorable Court of Appeals committed a

reversible error when it failed to apply the ruling laid down by this Honorable Court in the case of Sy vs. Court of Appeals.(G.R. No. 127263, 12 April 2000 [330 SCRA 550]).

 d. The Honorable Court of Appeals committed a

reversible error when it failed to relax the observance of procedural rules to protect and

promote the substantial rights of the party litigants.[14]

  

cralawWe deny the petition. cralawPetitioner submits that at the precise time that his marriage with the respondent was celebrated, there was no marriage license because he and respondent just went to the ManilaCity Hall and dealt with a fixer who arranged everything for them.[15]The wedding took place at the stairs inManilaCity Hall and not in CDCC BR Chapel where Rev. Aquilino Navarro who solemnized the marriage belongs.[16] He and respondent did not go to Carmona, Cavite, to apply for a marriage license.Assuming a marriage license from Carmona, Cavite, was issued to them, neither he nor the respondent was a resident of the place. The certification of the Municipal Civil Registrar ofCarmona, Cavite, cannot be given weight because the certification states that Marriage License number 7054133 was issued in favor of Mr. Restituto Alcantara and Miss Rosita Almario[17] but their marriage contract bears the number 7054033 for their marriage license number. cralawThe marriage involved herein having been solemnized on 8 December 1982, or prior to theeffectivity of the Family Code, the applicable law to determine its validity is the Civil Code which was the law in effect at the time of its celebration. cralawA valid marriage license is a requisite of marriage under Article 53 of the Civil Code, the absence of which renders the marriage void ab initio pursuant to Article 80(3)[18] in relation to Article 58 of the same Code.[19]chanroblesvirtuallawlibrary cralawArticle 53 of the Civil Code[20] which was the law applicable at the time of the marriage of the parties states: 

cralawArt. 53.No marriage shall be solemnized unless all these requisites are complied with: cralaw(1)cralawLegal capacity of the contracting parties; cralaw(2)cralawTheir consent, freely given; 

cralaw(3)cralawAuthority of the person performing the marriage; and cralaw(4)cralawA marriage license, except in a marriage of exceptional character.  

cralawThe requirement and issuance of a marriage license is the States demonstration of its involvement and participation in every marriage, in the maintenance of which the general public is interested.[21]chanroblesvirtuallawlibrary cralawPetitioner cannot insist on the absence of a marriage license to impugn the validity of his marriage.The cases where the court considered the absence of a marriage license as a ground for considering the marriage void are clear-cut. cralawIn Republic of the Philippines v. Court of Appeals,[22] the Local Civil Registrar issued a certification of due search and inability to find a record or entry to the effect that Marriage License No. 3196182 was issued to the parties.The Court held that the certification of due search and inability to find a record or entry as to the purported marriage license, issued by the Civil Registrar of Pasig, enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license.Based on said certification, the Court held that there is absence of a marriage license that would render the marriage void ab initio. cralawIn Cario v. Cario,[23] the Court considered the marriage of therein petitioner Susan Nicdao and the deceased Santiago S. Carino as void ab initio.The records reveal that the marriage contract of petitioner and the deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license. The court held that the certification issued by the local civil registrar is adequate to prove the non-issuance of the marriage license. Their marriage having been solemnized without the necessary marriage license and not being one of the marriages exempt from the marriage license requirement, the marriage of the petitioner and the deceased is undoubtedly void ab initio. cralawIn Sy v. Court of Appeals,[24] the marriage license was issued on 17 September 1974, almost one year after the ceremony took place

on 15 November 1973.The Court held that the ineluctable conclusion is that the marriage was indeed contracted without a marriage license. cralawIn all these cases, there was clearly an absence of a marriage license which rendered the marriage void. cralawClearly, from these cases, it can be deduced that to be considered void on the ground of absence of a marriage license, the law requires that the absence of such marriage license must be apparent on the marriage contract, or at the very least, supported by a certification from the local civil registrar that no such marriage license was issued to the parties.In this case, the marriage contract between the petitioner and respondent reflects a marriage license number.A certification to this effect was also issued by the local civil registrar of Carmona, Cavite.[25] The certification moreover is precise in that it specifically identified the parties to whom the marriage license was issued, namely Restituto Alcantara and Rosita Almario, further validating the fact that a license was in fact issued to the parties herein. cralawThe certification of Municipal Civil Registrar Macrino L. Diaz of Carmona, Cavite, reads:

 cralawThis is to certify that as per the registry Records of Marriage filed in this office, Marriage License No. 7054133 was issued in favor of Mr. Restituto Alcantara and Miss Rosita Almario on December 8, 1982. cralawThis Certification is being issued upon the request of Mrs. Rosita A. Alcantara for whatever legal purpose or intents it may serve.[26]  

cralawThis certification enjoys the presumption that official duty has been regularly performed and the issuance of the marriage license was done in the regular conduct of official business.[27]The presumption of regularity of official acts may be rebutted by affirmative evidence of irregularity or failure to perform a duty.However, the presumption prevails until it is overcome by no less than clear and convincing evidence to the contrary.Thus, unless the presumption is rebutted, it becomes conclusive.Every reasonable intendment will be made in support of the presumption and, in case of doubt as to an officers act being lawful or unlawful, construction should be in favor of its

lawfulness.[28]Significantly, apart from these, petitioner, by counsel, admitted that a marriage license was, indeed, issued in Carmona, Cavite.[29] cralawPetitioner, in a faint attempt to demolish the probative value of the marriage license, claims that neither he nor respondent is a resident of Carmona, Cavite.Even then, we still hold that there is no sufficient basis to annul petitioner and respondents marriage.Issuance of a marriage license in a city or municipality, not the residence of either of the contracting parties, and issuance of a marriage license despite the absence of publication or prior to the completion of the 10-day period for publication are considered mere irregularities that do not affect the validity of the marriage.[30]An irregularity in any of the formal requisites of marriage does not affect its validity but the party or parties responsible for the irregularity are civilly, criminally and administratively liable.[31]chanroblesvirtuallawlibrary cralawAgain, petitioner harps on the discrepancy between the marriage license number in the certification of the Municipal Civil Registrar, which states that the marriage license issued to the parties is No. 7054133, while the marriage contract states that the marriage license number of the parties is number 7054033.Once more, this argument fails to sway us.It is not impossible to assume that the same is a mere a typographical error, as a closer scrutiny of the marriage contract reveals the overlapping of the numbers 0 and 1, such that the marriage license may read either as 7054133 or 7054033. It therefore does not detract from our conclusion regarding the existence and issuance of said marriage license to the parties.cralawUnder the principle that he who comes to court must come with clean hands,[32] petitioner cannot pretend that he was not responsible or a party to the marriage celebration which he now insists took place without the requisite marriage license.Petitioner admitted that the civil marriage took place because he initiated it.[33] Petitioner is an educated person.He is a mechanical engineer by profession.He knowingly and voluntarily went to the ManilaCity Hall and likewise, knowingly and voluntarily, went through a marriage ceremony.He cannot benefit from his action and be allowed to extricate himself from the marriage bond at his mere say-so when the situation is no longer palatable to his taste or suited to his lifestyle.We cannot countenance such effrontery. His attempt to make a mockery of the institution of marriage betrays his bad faith.[34]chanroblesvirtuallawlibrary 

cralawPetitioner and respondent went through a marriage ceremony twice in a span of less than one year utilizing the same marriage license.There is no claim that he went through the second wedding ceremony in church under duress or with a gun to his head.Everything was executed without nary a whimper on the part of the petitioner. cralawIn fact, for the second wedding of petitioner and respondent, they presented to the San Jose deManuguit Church the marriage contract executed during the previous wedding ceremony before the ManilaCity Hall.This is confirmed in petitioners testimony as follows 

WITNESS cralawAs I remember your honor, they asked us to get

the necessary document prior to the wedding. COURT cralawWhat particular document did the church asked

you to produce?I am referring to the San Jose de Manuguit church.

 WITNESS cralawI dont remember your honor. COURT cralawWere you asked by the church to present a

Marriage License? WITNESS cralawI think they asked us for documents and I said we

have already a Marriage Contract and I dont know if it is good enough for the marriage and they accepted it your honor.

 COURT cralawIn other words, you represented to the San Jose

de Manuguit church that you have with you already a Marriage Contract?

 WITNESS cralawYes your honor. COURT cralawThat is why the San Jose de Manuguit church

copied the same marriage License in the Marriage Contract issued which Marriage License is Number 7054033.

 WITNESS cralawYes your honor.[35]  

cralawThe logical conclusion is that petitioner was amenable and a willing participant to all that took place at that time.Obviously, the church ceremony was confirmatory of their civil marriage, thereby cleansing whatever irregularity or defect attended the civil wedding.[36]chanroblesvirtuallawlibrary cralawLikewise, the issue raised by petitioner -- that they appeared before a fixer who arranged everything for them and who facilitated the ceremony before a certain Rev. Aquilino Navarro, a Minister of the Gospel of the CDCC Br Chapel -- will not strengthen his posture.The authority of the officer or clergyman shown to have performed a marriage ceremony will be presumed in the absence of any showing to the contrary.[37]Moreover, the solemnizing officer is not duty-bound to investigate whether or not a marriage license has been duly and regularly issued by the local civil registrar.All the solemnizing officer needs to know is that the license has been issued by the competent official, and it may be presumed from the issuance of the license that said official has fulfilled the duty to ascertain whether the contracting parties had fulfilled the requirements of law.[38]chanroblesvirtuallawlibrary cralawSemper praesumitur pro matrimonio.The presumption is always in favor of the validity of the marriage.[39]Every intendment of the law or fact leans toward the validity of the marriage bonds.The Courts look upon this presumption with great favor.It is not to be lightly repelled; on the contrary, the presumption is of great weight.

 CRALAWWHEREFORE, premises considered, the instant Petition is DENIED for lack of merit.The decision of the Court of Appeals dated 30 September 2004 affirming the decision of the Regional Trial Court, Branch 143 of Makati City, dated 14 February 2000, are AFFIRMED.Costs against petitioner.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 133743             February 6, 2007

EDGAR SAN LUIS, Petitioner, vs.FELICIDAD SAN LUIS, Respondent.

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G.R. No. 134029             February 6, 2007

RODOLFO SAN LUIS, Petitioner, vs.FELICIDAD SAGALONGOS alias FELICIDAD SAN LUIS, Respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

Before us are consolidated petitions for review assailing the February 4, 1998 Decision 1 of the Court of Appeals in CA-G.R. CV No. 52647, which reversed and set aside the September 12, 1995 2 and January 31, 1996 3 Resolutions of the Regional Trial Court of Makati City, Branch 134 in SP. Proc. No. M-3708; and its May 15, 1998 Resolution 4 denying petitioners’ motion for reconsideration.

The instant case involves the settlement of the estate of Felicisimo T. San Luis (Felicisimo), who was the former governor of the Province of Laguna. During his lifetime, Felicisimo contracted three marriages. His first marriage was with Virginia Sulit on March 17, 1942 out of which were born six children, namely: Rodolfo, Mila, Edgar, Linda, Emilita and Manuel. On August 11, 1963, Virginia predeceased Felicisimo.

Five years later, on May 1, 1968, Felicisimo married Merry Lee Corwin, with whom he had a son, Tobias. However, on October 15, 1971, Merry Lee, an American citizen, filed a Complaint for Divorce 5 before the Family Court of the First Circuit, State of Hawaii, United States of America (U.S.A.), which issued a Decree Granting Absolute Divorce and Awarding Child Custody on December 14, 1973. 6

On June 20, 1974, Felicisimo married respondent Felicidad San Luis, then surnamed Sagalongos, before Rev. Fr. William Meyer, Minister of the United Presbyterian at Wilshire Boulevard, Los Angeles, California, U.S.A. 7 He had no children with respondent but lived with her for 18 years from the time of their marriage up to his death on December 18, 1992.

Thereafter, respondent sought the dissolution of their conjugal partnership assets and the settlement of Felicisimo’s estate. On December 17, 1993, she filed a petition for letters of administration 8 before the Regional Trial Court of Makati City, docketed as SP. Proc. No. M-3708 which was raffled to Branch 146 thereof.

Respondent alleged that she is the widow of Felicisimo; that, at the time of his death, the decedent was residing at 100 San Juanico Street, New Alabang Village, Alabang, Metro Manila; that the decedent’s surviving heirs are respondent as legal spouse, his six children by his first marriage, and son by his second marriage; that the decedent left real properties, both conjugal and exclusive, valued at P30,304,178.00 more or less; that the decedent does not have any unpaid debts. Respondent prayed that the conjugal partnership assets be liquidated and that letters of administration be issued to her.

On February 4, 1994, petitioner Rodolfo San Luis, one of the children of Felicisimo by his first marriage, filed a motion to dismiss 9 on the grounds of improper venue and failure to state a cause of action. Rodolfo claimed that the petition for letters of administration should have been filed in the Province of Laguna because this was Felicisimo’s place of residence prior to his death. He further claimed that respondent has no legal personality to file the petition because she was only a mistress of Felicisimo since the latter, at the time of his death, was still legally married to Merry Lee.

On February 15, 1994, Linda invoked the same grounds and joined her brother Rodolfo in seeking the dismissal 10 of the petition. On February

28, 1994, the trial court issued an Order 11 denying the two motions to dismiss.

Unaware of the denial of the motions to dismiss, respondent filed on March 5, 1994 her opposition 12 thereto. She submitted documentary evidence showing that while Felicisimo exercised the powers of his public office in Laguna, he regularly went home to their house in New Alabang Village, Alabang, Metro Manila which they bought sometime in 1982. Further, she presented the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii to prove that the marriage of Felicisimo to Merry Lee had already been dissolved. Thus, she claimed that Felicisimo had the legal capacity to marry her by virtue of paragraph 2, 13 Article 26 of the Family Code and the doctrine laid down in Van Dorn v. Romillo, Jr. 14

Thereafter, Linda, Rodolfo and herein petitioner Edgar San Luis, separately filed motions for reconsideration from the Order denying their motions to dismiss. 15 They asserted that paragraph 2, Article 26 of the Family Code cannot be given retroactive effect to validate respondent’s bigamous marriage with Felicisimo because this would impair vested rights in derogation of Article 256 16 of the Family Code.

On April 21, 1994, Mila, another daughter of Felicisimo from his first marriage, filed a motion to disqualify Acting Presiding Judge Anthony E. Santos from hearing the case.

On October 24, 1994, the trial court issued an Order 17 denying the motions for reconsideration. It ruled that respondent, as widow of the decedent, possessed the legal standing to file the petition and that venue was properly laid. Meanwhile, the motion for disqualification was deemed moot and academic 18 because then Acting Presiding Judge Santos was substituted by Judge Salvador S. Tensuan pending the resolution of said motion.

Mila filed a motion for inhibition 19 against Judge Tensuan on November 16, 1994. On even date, Edgar also filed a motion for reconsideration 20 from the Order denying their motion for reconsideration arguing that it does not state the facts and law on which it was based.

On November 25, 1994, Judge Tensuan issued an Order 21 granting the motion for inhibition. The case was re-raffled to Branch 134 presided by Judge Paul T. Arcangel.

On April 24, 1995, 22 the trial court required the parties to submit their respective position papers on the twin issues of venue and legal capacity of respondent to file the petition. On May 5, 1995, Edgar manifested 23 that he is adopting the arguments and evidence set forth in his previous motion for reconsideration as his position paper. Respondent and Rodolfo filed their position papers on June 14, 24 and June 20, 25 1995, respectively.

On September 12, 1995, the trial court dismissed the petition for letters of administration. It held that, at the time of his death, Felicisimo was the duly elected governor and a resident of the Province of Laguna. Hence, the petition should have been filed in Sta. Cruz, Laguna and not in Makati City. It also ruled that respondent was without legal capacity to file the petition for letters of administration because her marriage with Felicisimo was bigamous, thus, void ab initio. It found that the decree of absolute divorce dissolving Felicisimo’s marriage to Merry Lee was not valid in the Philippines and did not bind Felicisimo who was a Filipino citizen. It also ruled that paragraph 2, Article 26 of the Family Code cannot be retroactively applied because it would impair the vested rights of Felicisimo’s legitimate children.

Respondent moved for reconsideration 26 and for the disqualification 27 of Judge Arcangel but said motions were denied. 28

Respondent appealed to the Court of Appeals which reversed and set aside the orders of the trial court in its assailed Decision dated February 4, 1998, the dispositive portion of which states:

WHEREFORE, the Orders dated September 12, 1995 and January 31, 1996 are hereby REVERSED and SET ASIDE; the Orders dated February 28 and October 24, 1994 are REINSTATED; and the records of the case is REMANDED to the trial court for further proceedings.29

The appellante court ruled that under Section 1, Rule 73 of the Rules of Court, the term "place of residence" of the decedent, for purposes of fixing the venue of the settlement of his estate, refers to the personal, actual or physical habitation, or actual residence or place of abode of a

person as distinguished from legal residence or domicile. It noted that although Felicisimo discharged his functions as governor in Laguna, he actually resided in Alabang, Muntinlupa. Thus, the petition for letters of administration was properly filed in Makati City.

The Court of Appeals also held that Felicisimo had legal capacity to marry respondent by virtue of paragraph 2, Article 26 of the Family Code and the rulings in Van Dorn v. Romillo, Jr. 30 and Pilapil v. Ibay-Somera. 31 It found that the marriage between Felicisimo and Merry Lee was validly dissolved by virtue of the decree of absolute divorce issued by the Family Court of the First Circuit, State of Hawaii. As a result, under paragraph 2, Article 26, Felicisimo was capacitated to contract a subsequent marriage with respondent. Thus –

With the well-known rule – express mandate of paragraph 2, Article 26, of the Family Code of the Philippines, the doctrines in Van Dorn, Pilapil, and the reason and philosophy behind the enactment of E.O. No. 227, — there is no justiciable reason to sustain the individual view — sweeping statement — of Judge Arc[h]angel, that "Article 26, par. 2 of the Family Code, contravenes the basic policy of our state against divorce in any form whatsoever." Indeed, courts cannot deny what the law grants. All that the courts should do is to give force and effect to the express mandate of the law. The foreign divorce having been obtained by the Foreigner on December 14, 1992, 32 the Filipino divorcee, "shall x x x have capacity to remarry under Philippine laws". For this reason, the marriage between the deceased and petitioner should not be denominated as "a bigamous marriage.

Therefore, under Article 130 of the Family Code, the petitioner as the surviving spouse can institute the judicial proceeding for the settlement of the estate of the deceased. x x x 33

Edgar, Linda, and Rodolfo filed separate motions for reconsideration 34 which were denied by the Court of Appeals.

On July 2, 1998, Edgar appealed to this Court via the instant petition for review on certiorari. 35 Rodolfo later filed a manifestation and motion to adopt the said petition which was granted. 36

In the instant consolidated petitions, Edgar and Rodolfo insist that the venue of the subject petition for letters of administration was improperly

laid because at the time of his death, Felicisimo was a resident of Sta. Cruz, Laguna. They contend that pursuant to our rulings in Nuval v. Guray 37 and Romualdez v. RTC, Br. 7, Tacloban City, 38 "residence" is synonymous with "domicile" which denotes a fixed permanent residence to which when absent, one intends to return. They claim that a person can only have one domicile at any given time. Since Felicisimo never changed his domicile, the petition for letters of administration should have been filed in Sta. Cruz, Laguna.

Petitioners also contend that respondent’s marriage to Felicisimo was void and bigamous because it was performed during the subsistence of the latter’s marriage to Merry Lee. They argue that paragraph 2, Article 26 cannot be retroactively applied because it would impair vested rights and ratify the void bigamous marriage. As such, respondent cannot be considered the surviving wife of Felicisimo; hence, she has no legal capacity to file the petition for letters of administration.

The issues for resolution: (1) whether venue was properly laid, and (2) whether respondent has legal capacity to file the subject petition for letters of administration.

The petition lacks merit.

Under Section 1, 39 Rule 73 of the Rules of Court, the petition for letters of administration of the estate of Felicisimo should be filed in the Regional Trial Court of the province "in which he resides at the time of his death." In the case of Garcia Fule v. Court of Appeals, 40 we laid down the doctrinal rule for determining the residence – as contradistinguished from domicile – of the decedent for purposes of fixing the venue of the settlement of his estate:

[T]he term "resides" connotes ex vi termini "actual residence" as distinguished from "legal residence or domicile." This term "resides," like the terms "residing" and "residence," is elastic and should be interpreted in the light of the object or purpose of the statute or rule in which it is employed. In the application of venue statutes and rules – Section 1, Rule 73 of the Revised Rules of Court is of such nature – residence rather than domicile is the significant factor. Even where the statute uses the word "domicile" still it is construed as meaning residence and not domicile in the technical sense. Some cases make a distinction between the terms "residence" and "domicile" but as generally used in statutes fixing venue, the terms are synonymous, and convey the same

meaning as the term "inhabitant." In other words, "resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. In this popular sense, the term means merely residence, that is, personal residence, not legal residence or domicile. Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile. No particular length of time of residence is required though; however, the residence must be more than temporary. 41 (Emphasis supplied)

It is incorrect for petitioners to argue that "residence," for purposes of fixing the venue of the settlement of the estate of Felicisimo, is synonymous with "domicile." The rulings in Nuval and Romualdez are inapplicable to the instant case because they involve election cases. Needless to say, there is a distinction between "residence" for purposes of election laws and "residence" for purposes of fixing the venue of actions. In election cases, "residence" and "domicile" are treated as synonymous terms, that is, the fixed permanent residence to which when absent, one has the intention of returning. 42 However, for purposes of fixing venue under the Rules of Court, the "residence" of a person is his personal, actual or physical habitation, or actual residence or place of abode, which may not necessarily be his legal residence or domicile provided he resides therein with continuity and consistency. 43 Hence, it is possible that a person may have his residence in one place and domicile in another.

In the instant case, while petitioners established that Felicisimo was domiciled in Sta. Cruz, Laguna, respondent proved that he also maintained a residence in Alabang, Muntinlupa from 1982 up to the time of his death. Respondent submitted in evidence the Deed of Absolute Sale 44 dated January 5, 1983 showing that the deceased purchased the aforesaid property. She also presented billing statements45 from the Philippine Heart Center and Chinese General Hospital for the period August to December 1992 indicating the address of Felicisimo at "100 San Juanico, Ayala Alabang, Muntinlupa." Respondent also presented proof of membership of the deceased in the Ayala Alabang Village Association 46 and Ayala Country Club, Inc., 47 letter-envelopes 48 from 1988 to 1990 sent by the deceased’s children to him at his Alabang address, and the deceased’s calling cards 49 stating that his home/city address is at "100 San Juanico, Ayala Alabang Village, Muntinlupa"

while his office/provincial address is in "Provincial Capitol, Sta. Cruz, Laguna."

From the foregoing, we find that Felicisimo was a resident of Alabang, Muntinlupa for purposes of fixing the venue of the settlement of his estate. Consequently, the subject petition for letters of administration was validly filed in the Regional Trial Court 50 which has territorial jurisdiction over Alabang, Muntinlupa. The subject petition was filed on December 17, 1993. At that time, Muntinlupa was still a municipality and the branches of the Regional Trial Court of the National Capital Judicial Region which had territorial jurisdiction over Muntinlupa were then seated in Makati City as per Supreme Court Administrative Order No. 3. 51 Thus, the subject petition was validly filed before the Regional Trial Court of Makati City.

Anent the issue of respondent Felicidad’s legal personality to file the petition for letters of administration, we must first resolve the issue of whether a Filipino who is divorced by his alien spouse abroad may validly remarry under the Civil Code, considering that Felicidad’s marriage to Felicisimo was solemnized on June 20, 1974, or before the Family Code took effect on August 3, 1988. In resolving this issue, we need not retroactively apply the provisions of the Family Code, particularly Art. 26, par. (2) considering that there is sufficient jurisprudential basis allowing us to rule in the affirmative.

The case of Van Dorn v. Romillo, Jr. 52 involved a marriage between a foreigner and his Filipino wife, which marriage was subsequently dissolved through a divorce obtained abroad by the latter. Claiming that the divorce was not valid under Philippine law, the alien spouse alleged that his interest in the properties from their conjugal partnership should be protected. The Court, however, recognized the validity of the divorce and held that the alien spouse had no interest in the properties acquired by the Filipino wife after the divorce. Thus:

In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:

"The purpose and effect of a decree of divorce from the bond of matrimony by a competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the

bond. The marriage tie, when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a penalty, that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage."

Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner’s husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country’s Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. 53

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

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. 54 (Emphasis added)

This principle was thereafter applied in Pilapil v. Ibay-Somera 55 where the Court recognized the validity of a divorce obtained abroad. In the said case, it was held that the alien spouse is not a proper party in filing the adultery suit against his Filipino wife. The Court stated that "the severance of the marital bond had the effect of dissociating the former spouses from each other, hence the actuations of one would not affect or cast obloquy on the other." 56

Likewise, in Quita v. Court of Appeals, 57 the Court stated that where a Filipino is divorced by his naturalized foreign spouse, the ruling inVan Dorn applies. 58 Although decided on December 22, 1998, the divorce in the said case was obtained in 1954 when the Civil Code provisions were still in effect.

The significance of the Van Dorn case to the development of limited recognition of divorce in the Philippines cannot be denied. The ruling has long been interpreted as severing marital ties between parties in a mixed marriage and capacitating the Filipino spouse to remarry as a necessary consequence of upholding the validity of a divorce obtained abroad by the alien spouse. In his treatise, Dr. Arturo M. Tolentino cited Van Dorn stating that "if the foreigner obtains a valid foreign divorce, the Filipino spouse shall have capacity to remarry under Philippine law." 59 In Garcia v. Recio, 60 the Court likewise cited the aforementioned case in relation to Article 26. 61

In the recent case of Republic v. Orbecido III, 62 the historical background and legislative intent behind paragraph 2, Article 26 of the Family Code were discussed, to wit:

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:

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:

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.

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)

x x x xLegislative 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. 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.63 (Emphasis added)

As such, the Van Dorn case is sufficient basis in resolving a situation where a divorce is validly obtained abroad by the alien spouse. With the enactment of the Family Code and paragraph 2, Article 26 thereof, our lawmakers codified the law already established through judicial precedent.1awphi1.net

Indeed, when the object of a marriage is defeated by rendering its continuance intolerable to one of the parties and productive of no possible good to the community, relief in some way should be obtainable. 64 Marriage, being a mutual and shared commitment between two parties, cannot possibly be productive of any good to the society where one is considered released from the marital bond while the other remains bound to it. Such is the state of affairs where the alien spouse obtains a valid divorce abroad against the Filipino spouse, as in this case.

Petitioners cite Articles 15 65 and 17 66 of the Civil Code in stating that the divorce is void under Philippine law insofar as Filipinos are concerned. However, in light of this Court’s rulings in the cases discussed above, the Filipino spouse should not be discriminated

against in his own country if the ends of justice are to be served. 67 In Alonzo v. Intermediate Appellate Court, 68 the Court stated:

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never be interpreted in such a way as to cause injustice as this is never within the legislative intent. An indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render justice.

Thus, we interpret and apply the law not independently of but in consonance with justice. Law and justice are inseparable, and we must keep them so. To be sure, there are some laws that, while generally valid, may seem arbitrary when applied in a particular case because of its peculiar circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply them just the same, in slavish obedience to their language. What we do instead is find a balance between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded, yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where these words import a policy that goes beyond them."

x x x x

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render every one his due." That wish continues to motivate this Court when it assesses the facts and the law in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the intention of the lawmaker, to begin with, that the law be dispensed with justice. 69

Applying the above doctrine in the instant case, the divorce decree allegedly obtained by Merry Lee which absolutely allowed Felicisimo to remarry, would have vested Felicidad with the legal personality to file the present petition as Felicisimo’s surviving spouse. However, the records show that there is insufficient evidence to prove the validity of the divorce obtained by Merry Lee as well as the marriage of respondent and Felicisimo under the laws of the U.S.A. In Garcia v. Recio, 70 the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of the divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. 71

With regard to respondent’s marriage to Felicisimo allegedly solemnized in California, U.S.A., she submitted photocopies of the Marriage Certificate and the annotated text 72 of the Family Law Act of California which purportedly show that their marriage was done in accordance with the said law. As stated in Garcia, however, the Court cannot take judicial notice of foreign laws as they must be alleged and proved. 73

Therefore, this case should be remanded to the trial court for further reception of evidence on the divorce decree obtained by Merry Lee and the marriage of respondent and Felicisimo.

Even assuming that Felicisimo was not capacitated to marry respondent in 1974, nevertheless, we find that the latter has the legal personality to file the subject petition for letters of administration, as she may be considered the co-owner of Felicisimo as regards the properties that were acquired through their joint efforts during their cohabitation.

Section 6, 74 Rule 78 of the Rules of Court states that letters of administration may be granted to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof also provides in part:

SEC. 2. Contents of petition for letters of administration. – A petition for letters of administration must be filed by an interested person and must show, as far as known to the petitioner: x x x.

An "interested person" has been defined as one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor. The interest must be material and direct, and not merely indirect or contingent. 75

In the instant case, respondent would qualify as an interested person who has a direct interest in the estate of Felicisimo by virtue of their cohabitation, the existence of which was not denied by petitioners. If she proves the validity of the divorce and Felicisimo’s capacity to remarry, but fails to prove that her marriage with him was validly performed under the laws of the U.S.A., then she may be considered as a co-owner under Article 144 76 of the Civil Code. This provision governs the property relations between parties who live together as husband and wife without the benefit of marriage, or their marriage is void from the beginning. It provides that the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership. In a co-ownership, it is not necessary that the property be acquired through their joint labor, efforts and industry. Any property acquired during the union is prima faciepresumed to have been obtained through their joint efforts. Hence, the portions belonging to the co-owners shall be presumed equal, unless the contrary is proven. 77

Meanwhile, if respondent fails to prove the validity of both the divorce and the marriage, the applicable provision would be Article 148 of the Family Code which has filled the hiatus in Article 144 of the Civil Code by expressly regulating the property relations of couples living together as husband and wife but are incapacitated to marry. 78 In Saguid v. Court of Appeals, 79 we held that even if the cohabitation or the acquisition of property occurred before the Family Code took effect, Article 148 governs. 80 The Court described the property regime under this provision as follows:

The regime of limited co-ownership of property governing the union of parties who are not legally capacitated to marry each other, but who nonetheless live together as husband and wife, applies to properties acquired during said cohabitation in proportion to their respective contributions. Co-ownership will only be up to the extent of the proven

actual contribution of money, property or industry. Absent proof of the extent thereof, their contributions and corresponding shares shall be presumed to be equal.

x x x x

In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which involved the issue of co-ownership of properties 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. x x x

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 party’s own evidence and not upon the weakness of the opponent’s defense. x x x 81

In view of the foregoing, we find that respondent’s legal capacity to file the subject petition for letters of administration may arise from her status as the surviving wife of Felicisimo or as his co-owner under Article 144 of the Civil Code or Article 148 of the Family Code.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals reinstating and affirming the February 28, 1994 Order of the Regional Trial Court which denied petitioners’ motion to dismiss and its October 24, 1994 Order which dismissed petitioners’ motion for reconsideration is AFFIRMED. Let this case be REMANDED to the trial court for further proceedings.

SO ORDERED.

Republic of the Philippines SUPREME COURTManila 

 FIRST DIVISION

 

ROMMEL JACINTO DANTES cralawcralawG.R. No. 174689SILVERIO,

Petitioner,Present: PUNO, C.J., Chairperson,

cralawcralawcralawSANDOVAL-GUTIERREZ,-v e r s u s-cralawcralawCORONA,cralawAZCUNA andGARCIA, JJ.

 REPUBLIC OF THEPHILIPPINES,

Respondent. cralawPromulgated:October 22, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 

D E C I S I O NCORONA, J.:

 When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. Oh North Wind! North Wind! Please let us out!, the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man Malakas (Strong) and the woman Maganda (Beautiful).

(The Legend of Malakas and Maganda)

 

cralawWhen is a man a man and when is a woman a woman? In

particular, does the law recognize thechanges made by a physician

using scalpel, drugs and counseling with regard to a persons sex?May a

person successfully petition for a change of name and sex appearing in

the birth certificate to reflect the result of a sex reassignment surgery? 

cralawOn November 26, 2002, petitioner Rommel Jacinto Dantes

Silverio filed a petition for the change of his first name and sex in his

birth certificate in the Regional Trial Court of Manila, Branch 8. The

petition, docketed as SP Case No. 02-105207, impleaded the civil

registrar of Manila as respondent. 

cralawPetitioner alleged in his petition that he was born in the City of

Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes

on April 4, 1962. His name was registered as Rommel Jacinto Dantes

Silverio in his certificate of live birth (birth certificate). His sex was

registered as male. 

cralawHe further alleged that he is a male transsexual, that is,

anatomically male but feels, thinks and acts as a female and that he had

always identified himself with girls since childhood.[1] Feeling trapped in

a mans body, he consulted several doctors in the United States. He

underwent psychological examination, hormone treatment and breast

augmentation. His attempts to transform himself to a woman culminated

on January 27, 2001 when he underwent sex reassignment surgery[2] in

Bangkok, Thailand. He was thereafter examined by Dr. Marcelino

Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines,

who issued a medical certificate attesting that he (petitioner) had in fact

undergone the procedure. 

cralawFrom then on, petitioner lived as a female and was in fact

engaged to be married. He then sought to have his name in his birth

certificate changed from Rommel Jacinto to Mely, and his sex from male

to female. 

cralawAn order setting the case for initial hearing was published in the

Peoples Journal Tonight, a newspaper of general circulation in Metro

Manila, for three consecutive weeks.[3] Copies of the order were sent to

the Office of the Solicitor General (OSG) and the civil registrar of Manila. 

cralawOn the scheduled initial hearing, jurisdictional requirements were

established. No opposition to the petition was made. 

cralawDuring trial, petitioner testified for himself. He also presented Dr.

Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses. 

cralawOn June 4, 2003, the trial court rendered a decision[4] in favor of

petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. The sole issue here is whether or not petitioner is entitled to the relief asked for. The [c]ourt rules in the affirmative. Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any way taken against him. Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams. Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition. WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioners first name from Rommel Jacinto to MELY and petitioners gender from Male to FEMALE. [5]

 cralaw

On August 18, 2003, the Republic of the Philippines (Republic), thru the

OSG, filed a petition for certiorari in the Court of Appeals.[6] It alleged

that there is no law allowing the change of entries in the birth certificate

by reason of sex alteration. 

On February 23, 2006, the Court of Appeals[7] rendered a decision[8] in

favor of the Republic. It ruled that the trial courts decision lacked legal

basis. There is no law allowing the change of either name or sex in the

certificate of birth on the ground of sex reassignment through surgery.

Thus, the Court of Appeals granted the Republics petition, set aside the

decision of the trial court and ordered the dismissal of SP Case No. 02-

105207. Petitioner moved for reconsideration but it was denied.

[9] Hence, this petition. 

Petitioner essentially claims that the change of his name and sex in his

birth certificate is allowed under Articles 407 to 413 of the Civil Code,

Rules 103 and 108 of the Rules of Court and RA 9048.

[10]chanroblesvirtuallawlibrary 

The petition lacks merit.   

A PERSONS FIRST NAME CANNOT BE CHANGED ON THE GROUND OF SEX REASSIGNMENT

 

cralawPetitioner invoked his sex reassignment as the ground for his

petition for change of name and sex. As found by the trial court:Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied)cralaw

 

Petitioner believes that after having acquired the physical features of a

female, he became entitled to the civil registry changes sought. We

disagree. 

The State has an interest in the names borne by individuals and entities

for purposes of identification.[11] A change of name is a privilege, not a

right.[12] Petitions for change of name are controlled by statutes.[13] In

this connection, Article 376 of the Civil Code provides: ART. 376. No person can change his name or surname without judicial authority. 

 

This Civil Code provision was amended by RA 9048 (Clerical Error

Law). In particular, Section 1 of RA 9048 provides: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations.

 

RA 9048 now governs the change of first name.[14] It vests the power

and authority to entertain petitions for change of first name to the city or

municipal civil registrar or consul generalconcerned. Under the law,

therefore, jurisdiction over applications for change of first name is now

primarily lodged with the aforementioned administrative officers. The

intent and effect of the law is to exclude the change of first name from

the coverage of Rules 103 (Change of Name) and 108 (Cancellation or

Correction of Entries in the Civil Registry) of the Rules of Court, until

and unless an administrative petition for change of name is first filed and

subsequently denied.[15] It likewise lays down the corresponding venue,

[16] form[17] and procedure. In sum, the remedy and the proceedings

regulating change of first name are primarily administrative in nature,

not judicial.

RA 9048 likewise provides the grounds for which change of first name

may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases:

 (1)         The petitioner finds the first name or

nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce;

 (2)         The new first name or nickname has

been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or

 (3)         The change will avoid confusion.

 

Petitioners basis in praying for the change of his first name was his sex

reassignment. He intended to make his first name compatible with the

sex he thought he transformed himself into through surgery. However, a

change of name does not alter ones legal capacity or civil status.[18] RA

9048 does not sanction a change of first name on the ground of sex

reassignment. Rather than avoiding confusion, changing petitioners first

name for his declared purpose may only create grave complications in

the civil registry and the public interest. 

Before a person can legally change his given name, he must present

proper or reasonable cause or any compelling reason justifying such

change.[19] In addition, he must show that he will be prejudiced by the

use of his true and official name.[20] In this case, he failed to show, or

even allege, any prejudice that he might suffer as a result of using his

true and official name. 

In sum, the petition in the trial court in so far as it prayed for the change

of petitioners first name was not within that courts primary jurisdiction as

the petition should have been filed with the local civil registrar

concerned, assuming it could be legally done. It was an improper

remedy because the proper remedy was administrative, that is, that

provided under RA 9048. It was also filed in the wrong venue as the

proper venue was in the Office of the Civil Registrar of Manila where his

birth certificate is kept. More importantly, it had no merit since the use of

his true and official name does not prejudice him at all. For all these

reasons, the Court of Appeals correctly dismissed petitioners petition in

so far as the change of his first name was concerned.  NO LAW ALLOWS THE CHANGE OF ENTRY IN

THE BIRTH CERTIFICATE AS TO SEX ON THE GROUND OF SEX REASSIGNMENT  

The determination of a persons sex appearing in his birth certificate is a

legal issue and the court must look to the statutes.[21] In this

connection, Article 412 of the Civil Code provides: ART. 412. No entry in the civil register shall be changed or corrected without a judicial order. 

 

Together with Article 376 of the Civil Code, this provision was amended

by RA 9048 in so far asclerical or typographical errors are involved. The

correction or change of such matters can now be made through

administrative proceedings and without the need for a judicial order. In

effect, RA 9048 removed from the ambit of Rule 108 of the Rules of

Court the correction of such errors.[22]Rule 108 now applies only to

substantial changes and corrections in entries in the civil register.

[23]chanroblesvirtuallawlibrary 

Section 2(c) of RA 9048 defines what a clerical or typographical error is: 

SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean: 

xxxxxxxxx

(3) Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied)

 

Under RA 9048, a correction in the civil registry involving the change of

sex is not a mere clerical or typographical error. It is a substantial

change for which the applicable procedure is Rule 108 of the Rules of

Court. 

The entries envisaged in Article 412 of the Civil Code and correctable

under Rule 108 of the Rules of Court are those provided in Articles 407

and 408 of the Civil Code:[24] ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. 

ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and(16) changes of name.  

The acts, events or factual errors contemplated under Article 407 of the

Civil Code include even those that occur after birth.[25] However, no

reasonable interpretation of the provision can justify the conclusion that

it covers the correction on the ground of sex reassignment.

To correct simply means to make or set aright; to remove the faults or

error from while to change means to replace something with something

else of the same kind or with something that serves as a substitute.

[26] The birth certificate of petitioner contained no error. All entries

therein, including those corresponding to his first name and sex, were all

correct. No correction is necessary. 

Article 407 of the Civil Code authorizes the entry in the civil registry of

certain acts (such as legitimations, acknowledgments of illegitimate

children and naturalization), events (such as births, marriages,

naturalization and deaths) and judicial decrees (such as legal

separations, annulments of marriage, declarations of nullity of

marriages, adoptions, naturalization, loss or recovery of citizenship, civil

interdiction, judicial determination of filiation and changes of name).

These acts, events and judicial decrees produce legal consequences

that touch upon the legal capacity, status and nationality of a person.

Their effects are expressly sanctioned by the laws. In contrast, sex

reassignment is not among those acts or events mentioned in Article

407. Neither is it recognized nor even mentioned by any law, expressly

or impliedly. 

Status refers to the circumstances affecting the legal situation (that is,

the sum total of capacities and incapacities) of a person in view of his

age, nationality and his family membership.[27] The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being married or not. The comprehensive termstatus include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.[28] (emphasis supplied) 

  

A persons sex is an essential factor in marriage and family relations. It is

a part of a persons legal capacity and civil status. In this

connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

 

But there is no such special law in the Philippines governing sex

reassignment and its effects. This is fatal to petitioners cause. 

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child. cralawIn such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. 

xxx xxxxxx (emphasis supplied)

 

Under the Civil Register Law, a birth certificate is a historical record of

the facts as they existed at the time of birth.[29] Thus, the sex of a

person is determined at birth, visually done by the birth attendant (the

physician or midwife) by examining the genitals of the infant.

Considering that there is no law legally recognizing sex reassignment,

the determination of a persons sex made at the time of his or her birth, if

not attended by error,[30] is immutable.[31] 

When words are not defined in a statute they are to be given their

common and ordinary meaning in the absence of a contrary legislative

intent. The words sex, male and female as used in the Civil Register

Law and laws concerning the civil registry (and even all other laws)

should therefore be understood in their common and ordinary usage,

there being no legislative intent to the contrary. In this connection, sex is

defined as the sum of peculiarities of structure and function that

distinguish a male from a female[32] or the distinction between male

and female.[33] Female is the sex that produces ova or bears

young[34] and male is the sex that has organs to produce spermatozoa

for fertilizing ova.[35] Thus, the words male and female in everyday

understanding do not include persons who have undergone sex

reassignment. Furthermore, words that are employed in a statute which

had at the time a well-known meaning are presumed to have been used

in that sense unless the context compels to the contrary.[36] Since the

statutory language of the Civil Register Law was enacted in the early

1900s and remains unchanged, it cannot be argued that the term sex as

used then is something alterable through surgery or something that

allows a post-operative male-to-female transsexual to be included in the

category female. 

For these reasons, while petitioner may have succeeded in altering his

body and appearance through the intervention of modern surgery, no

law authorizes the change of entry as to sex in the civil registry for that

reason. Thus, there is no legal basis for his petition for the correction or

change of the entries in his birth certificate.   NEITHER MAY ENTRIES IN THE BIRTH CERTIFICATE AS TO FIRST NAME OR SEX BE CHANGED ON THE GROUND OF EQUITY  

cralawThe trial court opined that its grant of the petition was in

consonance with the principles of justice and equity. It believed that

allowing the petition would cause no harm, injury or prejudice to anyone.

This is wrong.

 

cralawThe changes sought by petitioner will have serious and wide-

ranging legal and public policy consequences. First, even the trial court

itself found that the petition was but petitioners first step towards his

eventual marriage to his male fianc. However, marriage, one of the most

sacred socialinstitutions, is a special contract of permanent

union between a man and a woman.[37] One of its essential requisites

is the legal capacity of the contracting parties who must be a male and a

female.[38] To grant the changes sought by petitioner will substantially

reconfigure and greatly alter the laws on marriage and family relations. It

will allow the union of a man with another man who has undergone sex

reassignment (a male-to-female post-operative transsexual). Second,

there are various laws which apply particularly to women such as the

provisions of the Labor Code on employment of women,[39] certain

felonies under the Revised Penal Code[40] and the presumption of

survivorship in case of calamities under Rule 131 of the Rules of Court,

[41] among others. These laws underscore the public policy in relation

to women which could be substantially affected if petitioners petition

were to be granted.

It is true that Article 9 of the Civil Code mandates that [n]o judge or court

shall decline to render judgment by reason of the silence, obscurity or

insufficiency of the law. However, it is not a license for courts to engage

in judicial legislation. The duty of the courts is to apply or interpret the

law, not to make or amend it.cralaw

In our system of government, it is for the legislature, should it choose to

do so, to determine what guidelines should govern the recognition of the

effects of sex reassignment. The need for legislative guidelines

becomes particularly important in this case where the claims asserted

are statute-based. 

To reiterate, the statutes define who may file petitions for change of first

name and for correction or change of entries in the civil registry, where

they may be filed, what grounds may be invoked, what proof must be

presented and what procedures shall be observed. If the legislature

intends to confer on a person who has undergone sex reassignment the

privilege to change his name and sex to conform with his reassigned

sex, it has to enact legislation laying down the guidelines in turn

governing the conferment of that privilege. 

It might be theoretically possible for this Court to write a protocol on

when a person may be recognized as having successfully changed his

sex. However, this Court has no authority to fashion a law on that

matter, or on anything else. The Court cannot enact a law where no law

exists. It can only apply or interpret the written word of its co-equal

branch of government, Congress. 

Petitioner pleads that [t]he unfortunates are also entitled to a life of

happiness, contentment and [the] realization of their dreams. No

argument about that. The Court recognizes that there are people whose

preferences and orientation do not fit neatly into the commonly

recognized parameters of social convention and that, at least for them,

life is indeed an ordeal. However, the remedies petitioner seeks involve

questions of public policy to be addressed solely by the legislature, not

by the courts.cralaw

WHEREFORE, the petition is hereby DENIED. 

cralawCosts against petitioner. 

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. 118230 October 16, 1997

ABUNDIA BINGCOY, ISIDRO S. BINGCOY, MAMERTO S. BINGCOY, CORAZON S. DAGOY, DOMINGO DAGOMAS, SEGUNDINO LUMHOD, QUIRICO LUMHOD, OTELIA LUMHOD, VICTOR LUMHOD, JOSE BINGCOY, PELAGIA BINGCOY, FELISA BINGCOY, CESAR BINGCOY, DELFIN SAYRE, JESUS SAYRE, MARIA SAYRE, ANASTACIO SAYRE, FLORENTINO BEATE, and ISABELO LUMHOD, petitioners, vs.THE HONORABLE COURT OF APPEALS, VICTORIANO BINGCOY, and AGUSTIN BINGCOY, respondents.

 

HERMOSISIMA, JR., J.:

On May 31, 1952, private respondents Victoriano and Agustin Bingcoy filed a Complaint for Recovery of Property in the Court of First Instance (now Regional Trial Court) of Negros Oriental. Docketed as Civil Case No. 2728 and raffled to Branch 37, the complaint alleged that petitioners, some time in July, 1948, attacked private respondents at their residence in Barrio Bongbong, Municipality of Valencia, Province of Negros Oriental, shot at their hogs and chickens and seriously threatened to shoot private respondents if they did not leave their house and their lands. Fearing for their lives, private respondents instinctively jumped out of their house and ran away. Thereupon, petitioners usurped private respondents' house and lands, occupied the same to the deprivation of private respondents and refused, after repeated requests and demands, to vacate the same and restore private respondents in the possession of their properties.

In their complaint before the court a quo, private respondents detailed their claims in this manner:

FIRST CAUSE OF ACTION

xxx xxx xxx

II. That Juan Cumayao died intestate many years ago, without any payable obligation, leaving three legitimate children, namely, Victoriano, Agustin, and Prudencio, all surnamed Bingcoy, as his heirs. He also left three parcels of land in the municipality of Valencia, province of Negros Oriental, more particularly described as follows:

1. Bounded on the North by Potenciana Tavandera — 32.00 m; on the East by Narciso Lumhod — 30.00 m; on the South by Pangas — 28.00 m; and on the West by Valentin Igsi — 40.00 m; declared in the name of Juan Cumayao under Tax Declaration No. 2621, assessed at P20.00 for taxation.

2. Bounded on the North by Juan Cumayao (now Victoriano Bingcoy) — 59.00; on the East by Agapito Morano — 33.00 m; on the South by Gaspar Lumhod — 59.00 m; on the West by Bartolome Dagooc — 33.00 m; declared in the name of Agustin Bingcoy under Tax 3840, assessed at P60.00 for taxation.

3. Bounded on the North by Vicente N. Antes Damiano Linguis — 48.00 m; on the East by Lucio Dagoy, Vicente N. and Aniceta Lingcong — 72.00 m; on the South by Marcelina Cumayao antes Magdalino Sayre — 48 m; and on the West by Joaquin Cumayao, Victoriano y Eustaquio Jaro y Gabriel Abequibil — 110.00 m. Declared in the name of Juan Cumayao under Tax Decl. No. 8635, assessed at P30.00 for taxation.

III. That Prudencio Bingcoy, brother of the [private respondents], also died single, without issue, nor adopted child, intestate and without any payable obligation, leaving the [private respondents] as his only heirs and a parcel of land located at Bongbong, Valencia, Negros Oriental, more particularly described as follows:

Bounded on the North by Agapito Morano Antes Valentino Lumhod — 106.00 m.; on the East by Donato Lumhod — 32.00 m; on the South by Maria Asuncion antes Paulino Lumhod — 106.00 m; and on the West by

Moises Cumayao 0 32.00 m; Declared under Tax Decl. No. 10043, assessed at P30.00 for taxation.

IV. That upon the death of Juan Cumayao and Prudencio Bingcoy, by right of inheritance the [private respondents] automatically became the absolute owners of the property they left described in paragraphs II and III hereof, respectively and have since then been in the actual, open, public, peaceful and continuous possession thereof under claim of title, exclusive of any other rights, adverse to the whole world.

V. That on or about the middle of July 1948, the [petitioners], taking advantage of the weakness and ignorance of the plaintiffs who are illiterates, confederating together and helping one another, armed with a ride and bolos, went to the house of the [private respondents] at Bongbong, Valencia, and demanded from them the surrender of the above-described parcels of land, claiming that the plaintiffs are without any right to inherit from Juan Cumayao and Prudencio Bingcoy and that they, the [petitioners] are the true heirs of said deceased; and in order to scare the [private respondents] the [petitioners] shot the hogs and chickens under the house of the former and threatened to shoot them if they refused to vacate the said land.

VI. That being ignorant, harmless and incapable of protecting themselves, the [private respondents] ran away and thus the [petitioners] got into the possession and control of the above-described land, and since then have retained possession thereof to the exclusion of the [private respondents], and refused to surrender the same despite repeated amicable request made upon them by the [private respondents] in order to avoid judicial litigation.

xxx xxx xxx

SECOND CAUSE OF ACTION

xxx xxx xxx

II. That [private respondent] Victoriano Bingcoy is the absolute owner of three parcels of land located at barrio Bongbong Valencia, Negros Oriental, more particularly described as follows:

1. Bounded on the North by Magdalina Sayre — 52.00m; on the East by Pedro Sayre — 91.00 m; on the South by Placida Dagooc 27.00 m; and on the West by Francisco Morales and Sotero Dagooc — 87.00 m; Declared under Tax No. 10623, assessed at P120.00 for taxation.

2. Bounded on the North by Mauro Tinagan — 20.00 m; on the East by Felipe Nuay — 23.00 m; on the South by Narciso Lumhod — 21.00 m; and on the West by Gaspar Lumhod — 21.00 m; declared under Tax Decl. No. 4024, assessed at P50.00 for taxation.

3. Bounded on the North by Rufino Buling — 5.00 m; on the East by Agapito Morano 20.00 m; on the South by Gaspar Lunhod — 5.00 m; and on the West by the provincial Road 20.00 m; declared under Tax 3762, assessed at P10.00 for taxation.

III. That Victoriano Bingcoy acquired the first parcel of land by donation from Francisca Morilis, the second and third by purchase from Nicolas Abong and Pascuala Bingcoy, respectively, many years ago as evidenced by documents . . . and [Victoriano Bingcoy's] predecessors-in-interest have been in the actual, open, public, peaceful and continuous possession of said land which [private respondent] Victoriano Bingcoy continued up to recent years under claim of title, exclusive of any other right, adverse to the whole world.

IV. That on or about the middle of July 1948, the [petitioners], taking advantage of the weakness and ignorance of the [private respondents] at Bongbong, Valencia, and first demanded the surrender of the properties left by the deceased Juan Cumayao and Prudencio Bingcoy described in paragraphs II and III of the First Cause of Action, and having succeeded in dispossessing

the [private respondents] thereof in the manner specified in paragraphs V and VI of the First Cause of Action and encouraged by the inability of [Victoriano Bingcoy] to protect himself, the [petitioners] usurped and occupied the private property of the [private respondent] Victoriano Bingcoy described in Paragraph II, subparagraphs 1, 2 and 3 of the Second Cause of Action, retained possession thereof up to the present time and refused to surrender the same despite the repeated amicable requests made upon them by the [private respondent] Victoriano Bingcoy in order to avoid judicial litigation.

xxx xxx xxx

THIRD CAUSE OF ACTION

xxx xxx xxx

II. That the [private respondent] Agustin Bingcoy is the absolute owner of a parcel of land located in Barrio Bongbong municipality of Valencia, province of Negros Oriental described as follows:

Bounded on the North by Agustin Bingcoy — 48.00 m; on the East by Agapito Morano — 74.00 m; on the South by Leon Sayre — 62.00 m; and on the West by Victoriano Bingcoy — 44.00 m; declared under Tax Decl. No. 6350, assessed at P90.00 for taxation.

III. That the [private respondent] Agustin Bingcoy acquired the said parcel of land by purchase from Simplicia Lumhod many years ago and since then the said [private respondent] has been in the actual, open, public, peaceful and continuous possession thereof under claim of title, exclusive of any other right adverse to the whole world.

IV. That on or about the middle of July, 1948, the [petitioners], taking advantage of the weakness and ignorance of the plaintiffs who are illeterates [sic], confederating together and helping one another, armed with a rifle and bolos, went to the

house of the plaintiffs at Bongbong, Valencia, and first demanded the surrender of the properties left by the deceased Juan Cumayao and Prudencio Bingcoy described in Paragraphs II and III of the First Cause of Action, and having succeeding in despossessing [sic] the [private respondents] thereof in the manner specififed [sic] in paragraphs V and VI of the First Cause of Action and encouraged by the inability of the [private respondent] to protect himself, the [petitioners] usurped and occupied the private property of the [private respondent] Agustin Bingcoy described in paragraph II of the Third Cause of Action, retained possession thereof up to the present time and refused to surrender the same despite repeated amicable requests made upon them by the [private respondent] Agustin Bingcoy in order to avoid judicial litigation.

xxx xxx xxx 1

Petitioners countered private respondents' allegations by presenting a true copy of the Death Certificate of Juan Cumayao which indicated that the latter had died single on July 17, 1926 at the age of fifty (50) years. They thus established the defense that, since Juan Cumayao died single and without any known children, he could not have passed on, by inheritance, the subject properties to private respondents. To establish their claim of ownership on the subject properties, petitioners claim that the same originally belonged to spouses Marcos Cumayao and Francisca Morales, parents of Juan Cumayao and grandparents of petitioners. They aver, thus, in their Answer dated August 30, 1952 that:

. . . upon the death of their grandparents and their aforesaid uncle, the [petitioners], together with their other cousins, nephews and nieces, succeeded to all the properties in question as the only heirs of the deceased and to the exclusion of [private respondents] herein, since Juan Cumayao died single, and have, since 1927, been in the actual, open, public, peaceful and continuous possession and enjoyment of same properties, under a claim of ownership exclusive of any other right and adverse to the whole world. 2

On September 1, 1964, trial commenced. Private respondent Victoriano Bingcoy took the stand. He testified on the contents of the following documents:

1. A certificate issued by the Local Civil Registrar of Zamboanguita marked by the court a quo as Exhibit "A". 3

The first paragraph thereof which reads that "this is to certify that Juan Cumayao and Claudia Bingcoy, both residents of the municipality of Valencia, Negros Oriental, which [sic] was [sic] married in this municipality according to the informant", was marked as Exhibit "1-a" for the defendants. 4

The second paragraph thereof which states that, "this Office could not issue the necessary certificate in view of the fact that all records of Births, Deaths and marriages were burned during the Japanese Occupation or have been eaten by the white ants", was marked by the trial court as Exhibit "A-1". 5

2. The marriage certificate of Agustin Bingcoy and Luisa Dacoyan secured from the priest of the town of Luzuriaga marked as Exhibit B. 6

The paragraph thereof which reads that ". . . Que en el libro de Casamientos de esta Parroquia pagina cientocuarenta y tres . . . en el dia vientieseis del mes de Noveiembre de mil novencientos cuarenta; Yo, el Presbitero Fr. Amado Lope Cora Parroco de esta Parrocquia de Luzuriaga, Provincia de Negros Oriental, precedidas las amonestaciones y demas diligencias que proviene el Sta. Concilio de Trento y las leyes civiles y no habiendo resultado imedimento alguno que a mi noticia haya ilegado, case por palabra de presente y vele en esta Iglesia de mi cargo, segun rito de Ntra. Santa Madre la Iglesia Catolica a Agustin Bingcoy de vienteseis anos de edad soltero natural de Luzuriaga y residente en este pueblo hijo de Juan Cumayao y de Claudia Vincoy, con Luisa Dacoyan y de diesinueve anos de edad soltera, natural de Luzuriaga y residente en este pueblo, hija de Marcelo Daoyan y de Hilaria Abong" was marked as Exhibit "B-1". 7

3. A Deed of Sale executed on December, 1915 in favor of Juan Cumayao marked as Exhibit "C". 8 Said deed of sale was in a private instrument and covered the parcel of land described in subparagraph no. 1, paragraph II, under the First Cause of Action. It was signed by Calixto Tavandera, Dionisio Tavandera, Teodora Tavandera, Filomena Tavandera and witnesses Herillas Civil and Antonio Enoy in favor of Juan Cumayao who purchased the said parcel of land from the Tavandera siblings for P20.00. The said deed of sale was about 49 years old at the time Victoriano Bingcoy testified thereon. 9

4. Tax Declaration No. 2621 in the name of Juan Cumayao marked as Exhibit "C-2". 10

On July 25, 1966, the direct examination of private respondent Victoriano Bingcoy was resumed. He continued testifying on several other documents that established private respondents' claim of ownership over the subject properties. The documents presented to the court and duly testified on by Victoriano Bingcoy, on this particular trial day were the following:

1. A document of sale in favor of Juan Cumayao marked as Exhibit "D". 11 Said document was signed by Felicia Longhod and Bonifacio Quitoy and covered the parcel of land subject of subparagraph 2, paragraph II, under the First Cause of Action. Indicating the purchase price to be P25.00, said document of sale was signed before and prepared and ratified by, Justice of the Peace-Notary Public Pablo Teves who had once been the Municipal Judge of Valencia; it was dated January 10, 1920 and bore a worn out documentary stamp. 12

2. Tax Declaration No. 14141 in the name of Juan Cumayao marked as Exhibit "D-1". 13

3. Tax Declaration No. 3840 in the name of Juan Cumayao marked as Exhibit "D-2". 14

The statement, "Transferido segun documento retificado por Notario Publico Pablo Teves el dia 19 de Enero, 1920", appearing thereon, was marked as Exhibit "D-3". 15

4. An official tax receipt with no. 892811 covering taxes paid for the period from 1946 to 1951 marked as Exhibit "D-4". 16

5. An official tax receipt with no. 1847878 covering taxes paid for the period from 1952 to 1957 marked as Exhibit "D-5". 17

6. Tax Declaration No. 8635 in the name of Juan Cumayao marked as Exhibit "E". 18 Said Tax Declaration covers the parcel of land subject of subparagraph 3, paragraph II, First Cause of Action. Juan Cumayo acquired this parcel of land by clearing the same. 19

7. A document of sale in favor of Prudencio Bingcoy marked as Exhibit "F". 20 The document was executed by Gaspar Lumhod and covered the parcel of land subject of paragraph III, First Cause of Action. It was ratified by Judge Pablo Teves and visibly affixed thereon was a partly destroyed documentary stamp. 21 Said document was executed on October 16, 1932. 22

The last part thereof from the words in Spanish, "por la presenta" down to the end of the description ending in the spanish words "32 metros", was marked as Exhibit "F-2". 23

8. Tax Declaration No. 10043 in the name of Gaspar Lumhod marked as Exhibit "F-1". 24

9. A deed of donation in favor of Victoriano Bingcoy Bingcoy marked as Exhibit "G" 25. The document was executed by Francisca Meriles and covered the parcel of land subject of subparagraph 1, paragraph II, Second Cause of Action. It was executed and signed before Judge Pablo Teves.

The thumbmarks of Francisca Meriles and Victoriano Bingcoy were marked as Exhibit "G-1". 26

The second paragraph in the said deed of donation which states that the property was given in consideration of the past services of Victoriano Bingcoy, was bracketed and marked as Exhibit "G-2". 27

The third paragraph which contained the acceptance by Victoriano Bingcoy of the property subject of the deed of donation, was bracketed and marked as Exhibit "G-3". 28

10. The official receipt for payment of ratification fees marked as Exhibit "G-4". 29 The same was issued by Judge Pablo Teves in favor of Francisca Meriles in the amount of P3.00 which she paid for the ratification fees.

11. Tax Declaration No. 10623 in the name of Victoriano Bingcoy marked as Exhibit "G-5". 30 This tax declaration covers the aforementioned land donated by Francisca Meriles to Victoriano Bingcoy.

12. Official Tax Receipt No. 474402 marked as Exhibit "G-6". 31 The same showed that Victoriano Bingcoy paid real property taxes on the property donated to him by Francisca Meriles.

13. Official Tax Receipt No. 1847883 marked as Exhibit"G-7". 32 The same showed that Victoriano Bingcoy paid real property taxes on the property donated to him by Francisca Meriles.

14. Document of sale in favor of Victoriano Bingcoy marked as Exhibit "H". 33 Said document was executed by Nicolas Abong as vendor and in favor of Victoriano Bingcoy as vendee, covering the parcel of land subject of subparagraph 2, paragraph II, Second Cause of Action. The document bearsthe thumbmarks of witnesses Segundo Ubag, Roberto Tinoy and Filomeno Noway. 34

15. Tax Declaration No. 4024 in the name of Victoriano Bingcoy marked as Exhibit "H-2". 35 This tax declaration covered the parcel of land purchased by Victoriano Bingcoy from Nicolas Abong.

16. Official Tax Receipt No. 872707 marked as Exhibit"H-3". 36 The same showed that Victoriano Bingcoy paid real property taxes on the property that he purchased from Nicolas Abong. The said receipt covered the years from 1946 to 1951.

17. Official Tax Receipt No. 892810 marked as Exhibit"H-4". 37 The same showed that Victoriano Bingcoy paid real property taxes on the property that he purchased from Nicolas Abong. The said receipt also covered the years from 1946 to 1951.

18. Official Tax Receipt No. 1847884 marked as Exhibit "H-5". 38 The same showed that Victoriano Bingcoy paid real property taxes on the property that he purchased from Nicolas Abong. The said receipt covered the years from 1952 to 1961.

19. Tax Declaration No. 3762 in the name of Victoriano Bingcoy marked as Exhibit "I". 39 Said tax declaration covered the parcel of land subject of subparagraph 3, paragraph II, Second Cause of Action. Said parcel of land was purchased by Victoriano Bingcoy from Pascuala Bingcoy, and the transaction was covered by a document of sale which had, however, been destroyed during the war.

The statement appearing on said tax declaration to the effect that Victoriano Bingcoy paid real property tax in the amount of P10.00, was marked as Exhibit "I-1". 40

On May 11, 1967, counsel for petitioners cross-examined Victoriano Bingcoy who was expectedly queried on the various documents that he had testified to during the direct examination.

On December 6, 1983, private respondents' counsel submitted a Memorandum of Exhibits and Formal Offer of Evidence for the Plaintiffs 41. The same included all the aforementioned documents testified to by Victoriano Bingcoy during his direct and cross examinations.

On May 16, 1987, the entire records of this case, including all the above-enumerated documents marked and testified to by Victoriano Bingcoy during his direct and cross examination, were lost when a fire destroyed the Perdices Coliseum which then housed the court a quo. 42 Accordingly, the trial court ordered the reconstruction of the records based on the pleadings to be furnished by the contending parties or their respective lawyers.

On April 19, 1989, trial resumed. Subsequent hearings were also held on June 5, and 19, 1989 and on July 14, 1989.

On July 25, 1991, the trial court rendered judgment 43 in favor of private respondents. Finding sufficient evidence on record proving that ownership over the subject parcels of land was vested in private respondents as prior possessors in good faith in the concept of owner and as illegitimate heirs of Juan Cumayao, the trial court ordered the following in the dispositive portion of its decision:

WHEREFORE, all the foregoing considered, judgment is hereby rendered in favor of the plaintiffs and against the defendants:

(a) Declaring plaintiffs Victoriano Bingcoy and Agustin Bingcoy the real and absolute owners of the parcels of

land described under the First Cause of Action in the complaint as follows:

1. Bounded on the North by Potenciana Tavandera — 32.00 m; on the East by Narciso Lumhod — 30.00 m; on the South by Pangas — 28.00 m; and on the West by Valentin Igsi — 40.00 m; declared in the name of Juan Cumayao under Tax Declaration No. 2621, assessed at P20.00 for taxation.

2. Bounded on the North by Juan Cumayao (now Victoriano Bingcoy) — 59.00; on the East by Agapito Morano — 33.00 m; on the South by Gaspar Lumhod — 59.00 m; on the West by Bartolome Dagooc — 33.00 m; declared in the name of Agustin Bingcoy under Tax 3840, assessed at P60.00 for taxation.

3. Bounded on the North by Vicente N. Antes Damiano Linguis — 48.00 m; on the East by Lucio Dagoy, Vicente N. and Aniceta Lingcong — 72.00 m;

on the South by Marcelina Cumayao antes Magdalino Sayre — 48 m; and on the West by Joaquin Cumayao, Victoriano y Eustaquio Jaro y Gabriel Abequibil — 110.00 m. Declared in the name of Juan Cumayao under Tax Decl. No. 8635, assessed at P30.00 for taxation.

4. Bounded on the North by Agapito Morano Antes Valentino Lumhod — 106.00 m.; on the East by Donato Lumhod — 32.00 m; on the South by Maria Asuncion antes Paulino Lumhod — 106.00 m; and on the West by Moises Cumayao 0 32.00 m; Declared under Tax Decl. No. 10043, assessed at P30.00 for taxation.

(b) Declaring Victoriano Bingcoy the true and absolute owner of the following three parcels of land as described in the Complaint under the Second Cause of Action; as

1. Bounded on the North by Magdalina Sayre — 52.00m; on the East by Pedro

Sayre — 91.00 m; on the South by Placida Dagooc 27.00 m; and on the West by Francisco Morales and Sotero Dagooc — 87.00 m; Declared under Tax No. 10623, assessed at P120.00 for taxation.

2. Bounded on the North by Mauro Tinagan — 20.00 m; on the East by Felipe Nuay — 23.00 m; on the South by Narciso Lumhod — 21.00 m; and on the West by Gaspar Lumhod — 21.00 m; declared under Tax Decl. No. 4024, assessed at P50.00 for taxation.

3. Bounded on the North by Rufino Buling — 5.00 m; on the East by Agapito Morano 20.00 m; on the South by Gaspar Lumhod — 5.00 m; and on the West by the Provincial Road 20.00 m; declared under Tax 3762, assessed at P10.00 for taxation.

(c) Declaring Agustin Bingcoy the true and absolute owner of the parcel of land described in the Third Cause of Action of the Complaint as follows:

Bounded on the North by Agustin Bingcoy — 48.00 m; on the East by Agapito Morano — 74.00 m; on the South by Leon Sayre — 62.00 m; and on the West by Victoriano Bingcoy — 44.00 m; declared under Tax Decl. No. 6350, assessed at P90.00 for taxation.

(d) Ordering the defendants to deliver and restore possession of all the parcels of land described in paragraphs (a), (b) and (c) of the dispositive part of this Decision to the plaintiffs;

(e) Condemning the defendants to pay the plaintiffs jointly and severally the amount P410.00 (under the First Cause of Action), the amount of P44.00 (Second Cause of Action) and the amount of P180.00 (under the Third Cause of Action) a year starting from 1952 under possession of all the aforesaid parcels of land have been delivered and restored to the plaintiffs.

Costs against the defendants. 44

Unable to agree with the decision of the trial court, petitioners appealed therefrom to the Court of Appeals. They raised the following issues:

1. What is the status of plaintiffs-appellees? Are they legitimate, or illegitimate, children of Juan Cumayao and Claudia Bingcoy?

2. If illegitimate, to what class do they belong? Are they natural children proper, or spurious children of Juan Cumayao and Claudia Bingcoy?

3. If plaintiffs-appellees are the natural children of Juan Cumayao, are they as such acknowledged natural children?

4. Are unrecognized natural children entitled to successional rights both under the Old, and in the New, Civil Code?

5. Is it correct for the trial court to consider documentary exhibits which are not formally offered in evidence? 45

and insisted that the trial court erred:

1. In declaring that plaintiffs-appellees are the illegitimate children of Juan Cumayao and Claudia Bingcoy;

2. Assuming arguendo that plaintiffs-appellees are illegitimate children of Juan Cumayao and Claudia Bingcoy, in granting successional rights to plaintiffs-appellees;

3. In considering documentary exhibits which are not formally offered in evidence as evidence;

4. In concluding that appellants failed to rebut appellees' allegation of use of force and intimidation in July, 1948 to oust appellees from the lands in question; and,

5. In not dismissing the complaint and adjudicating the properties in question to appellants. 46

On June 10, 1994, the respondent Court of Appeals rendered its Decision affirming the ownership of private respondents over the parcels of land subject of the first and second causes of action in their Complaint before the trial court, while basing such

affirmance not on private respondents' right as heirs of Juan Cumayao but on their right as prior possessors in good faith under the law on acquisitive prescription.

The respondent appellate court, however, reversed the court a quo respecting the parcel of land subject of the third cause of action. The same was adjudged the property of petitioners as surviving heirs of Juan Cumayao.

The disquisition of respondent Court of Appeals on its own findings in answer to the issues raised on appeal by the petitioners and in refutation of the assigned errors in petitioners' Brief on appeal, is as follows:

. . . [A]fter a painstaking examination of the evidence presented by the parties, We find:

As to the 1st and 2nd assigned errors — The first question is: Did the trial court commit a reversible error in ruling that appellees are illegitimate children of Juan Cumayao?

The presumption that a child was born is legitimate as provided for in Article 220 of the New Civil Code is overcome by the death certificate issued by the OIC Local Civil Registrar of the Municipality of Valencia, Province of Negros Oriental where it appears that Juan Cumayao died single on July 17, 1926 . . . . It is a well-settled rule that a death certificate, if duly registered with the Civil Registrar, is considered a public document and the entries found therein are presumed correct (Stronghold Insurance Co., Inc. vs. Court of Appeals, May 29, 1989; 173 SCRA 620); Said presumption is merely disputable and will have to yield to more positive evidence establishing their inaccuracy . . . .

Appellee's evidence on this matter is neither positive nor convincing. Aside from the testimony of appellee Victoriano Bingcoy, they presented a witness by the name of Pedro Milan who was 76 years old at the time he testified. He averred on the witness stand that he

knew Juan Cumayao and Claudia Bingcoy to be the parents of herein appellees . . .; that he knew appellees since they were born as he was their neighbor at Bongkong, Valencia . . . While it has been established that Juan Cumayao beget herein appellees, the fact that he died single proves that he had children without having been married. In the absence of clear evidence to show that appellees' parents were married the conclusion is inevitable that appellees were born out of wedlock.

Appellees' explanation . . . that it was their grandmother who opted for them to use the surname Bingcoy . . . is totally incongruent with public customs and morals and human experience. No natural mother and for matter, a grandmother, under Filipino tradition, would allow a child not to use the surname of his father if he were really legitimate, considering the stigma that would necessarily attach to a child who is not allowed to use the surname of his own father. . . .

There are no other evidence to sustain appellants' claim that their parents were in fact married to controvert the statement in the death certificate that Juan Cumayao died single. Appellees have not established by sufficient evidence the fact of marriage between their parents. Neither is there any evidence showing that both parents of appellees have no legal impediment to marry.

Thus . . . [w]e agree with the ruling of the trial court that appellees are illegitimate children of Juan Cumayao.

Such being the case, the next question to be resolved is: Not being legitimate, are appellees entitled to inherit from their father, Juan Cumayao?

The Supreme Court sheds light on this matter in Castro vs. Court of Appeals (173 SCRA 656, 662 to 663):

Under the Civil Code, whether new or old, illegitimate children . . . were

generally classified into two groups: (1) Natural, whether actual or by fiction, were those born outside of lawful wedlock of parents who, at the time of conception of the child, were not disqualified by any impediment to marry each other . . . and (2) Spurious, whether incestuous, adulterous or illicit, were those born of parents who, at the time of conception, were disqualified to marry each other on account of certain legal impediments.

xxx xxx xxx

Under the Civil Code, for an illegitimate child other than natural to inherit, she must first be recognized voluntarily or by court action. . . . This arises from the legal principle that an unrecognized spurious child like a natural child has no rights from her parents or to their estate because her rights spring not from the filiation or blood relationship but from the child's acknowledgment by the parent . . . . In other words, the rights of an illegitimate child arose not because she was the true and real child of her parents but because under the law, she has been recognized or acknowledged as such a child.

xxx xxx xxx

Under the Civil Code, there are two kinds of acknowledgment — voluntary or compulsory.The provisions on acknowledgment are applied to natural as well as spurious children . . . . Article 131 of the old Civil Code provides for voluntary acknowledgment by the father or mother, while Article 135 and

Article 136 of the same Code provide for the compulsory acknowledgment by the father and mother respectively.

Article 131 of the old Civil Code states that the acknowledgment of a natural child must be made in the record of birth, in a will or in some other public document.

Naturally, and understandably so, plaintiffs-appellees did not present any evidence that they have been acknowledged by Juan Cumayao by reason of their original stand that they are legitimate children of Juan Cumayao. There being no proof that appellees were acknowledged by Juan Cumayao as his illegitimate children, appellees could not therefore legally inherit from the estate of the deceased Juan Cumayao.

If appellees are not entitled to inherit from Juan Cumayao, have they acquired ownership over the parcels of land in question? As to the four (4) parcels of land under the First Cause of Action, Pedro Milan (TSN, September 1, 1964) and Victoriano Bingcoy (TSN, Hearings of September 1, 1964 and July 25, 1966) testified that appellees took possession of the parcels of land left by Juan Cumayao after his death on July 26, 1926, peacefully, continuously, adversely, openly and in the concept of owners up to 1948, or for a period of twenty two years, by introducing improvements thereon like abaca plants and coconut trees, harvesting fruits thereof, declaring the same for taxation purposes . . . and paying the corresponding realty taxes therefor. We find no evidence on the part of defendants-appellants controverting the same.

Under Section 41 of the Code of Civil Procedure, Act No. 190, to wit:

Sec. 41. Title to land by prescription. — Ten years actual adverse possession by any person claiming to be the owner

for that time of any land or interest in land, uninterruptedly continued for ten years by occupancy, descent, grants, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title . . . .

It is not disputed that appellants have been in possession, as stated above, for 22 years in the concept of owners. Consequently, appellants' claim over the parcels of land in question have already prescribed. The trial court did not commit any error in awarding said parcels of land (under the First Cause of Action) to herein appellees.

As to the third assigned error . . . [c]onsidering that appellants' counsel had cross-examined appellees' witnesses despite the failure of counsel for appellees to offer their testimonies when they were called to testify, appellants are deemed to have waived their right to object to the admissibility of the testimonies. . . .

There is merit to appellants' claim that only Exhibits "E", "F-1", "G-4", and "I" should be considered by the court in rendering the decision, as the rest of the exhibits for appellees were withdrawn by their counsel (Order dated April 9, 1989).

However, in the interest of substantial justice and for equitable reasons considering that it is not disputed that the Perdicas Coliseum housing the court was burned last May 14, 1987 and the entire records of the case were lost including the documents marked as Exhibits "G", "G-1" to "G-7", "H", "H-1" to "H-5" and "I", described in the reconstituted "Memorandum of Exhibits and Formal Offer of Evidence for the Plaintiffs" . . . said descriptions of the burned documents may be considered and taken together as part of the positive and convincing testimony of appellee Victoriano Bingcoy (TSN, Hearing of July 25, 1977) which

testimony sustains the findings of the trial court in favor of appellees. It cannot be over-emphasized that appellants did not present any evidence to controvert the testimony of appellee Victoriano on this matter.

The possession of the three (3) parcels of land by appellee Victoriano under the Second Cause of Action was acquired not through inheritance from Juan Cumayao but by donation in case of the first parcel of land covered by a document duly executed and thumbmarked by both donor Francisca Meriles and donee Victoriano . . . that had been lost in the fire; by purchase from Nicolas Abong in the case of the second parcel of land and covered by a document . . . and by purchase from Pascuala Bingcoy in case of the third parcel of land, the document evidencing the same having been destroyed during the war but with tax declaration in the name of appellee Victoriano . . . and payment of taxes therefor . . . together with the tax declaration . . . and payments of realty taxes . . . which were gutted by fire except Exh. "G-4" which is an official receipt for ratification fee. As already stated, there is no evidence presented by appellants controverting the above testimony of appellee Victoriano Bingcoy. Appellants failed to establish that they have better rights to the parcels of land subject matter of the Second Cause of Action.

With respect to the parcel of land under the Third Cause ofAction . . . We find no evidence to sustain the finding of the trial court that said land was given to appellee Juan Cumayao. No document was ever presented in court to prove the donation; and the realty taxes paid by appellee Agustin on said land started only in 1951, three years after appellees were ousted from the land in 1948. Considering that said parcel of land undisputedly belonged to Juan Cumayao, its ownership passed by inheritance to his heirs upon his death. And appellees not being entitled to inheritance as earlier discussed, the parcel of land properly pertains to herein appellants who are the surviving heirs of said decedent. We find no

evidence that entitles appellee Agustin to acquisitive prescription under the Old Civil Code or Code of Civil Procedure.

As to the fourth assigned error: The testimonies of Milan and Victoriano Bingcoy establish the fact that appellees forcibly entered the parcels of land in question and ousted appellees therefrom by threatening Victoriano's life with a gun . . . . They were not controverted by the evidence of appellants. Neither Ricardo Genel nor Felisa Lumhod, witnesses for appellants, denied the aforesaid testimonies . . . . The trial court did not commit any error in finding that appellees were forcibly dispossessed by appellants in 1948. We have meticulously read the testimonies of appellants' witnesses . . . and not one of them disclaimed the acts of dispossession committed by appellant against appellees ousting the latter from the parcels of land in question.

xxx xxx xxx

As to the fifth assigned error, the Fourth Amended Complaint of appellees should be dismissed with respect only to the Third Cause of Action, for reasons already discussed above. 47

Pursuant to the above postulations, the respondent appellate court modified the decretal portion of the court a quo's decision insofar as the parcel of land subject of the Third Cause of Action is concerned. The modification runs in this wise:

WHEREFORE, the appealed judgment is hereby MODIFIED to the effect that the dispositive portion should read as follows:

xxx xxx xxx

(c) Declaring Pedro Bingcoy, et al. the true and absolute owners of the parcel

of land described in the Third Cause of Action of the Complaint as follows:

Bounded on the North by Agustin Bingcoy — 48.00 m; on the East by Agapito Morano — 74.00 m; on the South by Leon Sayre — 62.00 m; and on the west by Victoriano Bingcoy — 44.00 m; declared under Tax Decl. No. 6350, assessed at P90.00 for taxation.

(d) Ordering, plaintiff Agustin Bingcoy to deliver and restore possession of the parcel of land described in paragraph (c) of herein dispositive part of the Decision to defendants;

(e) Ordering defendants to deliver and restore possession of all the parcels of land described in paragraphs (a) and (b) of the dispositive part of this Decision to the plaintiffs;

(f) Condemning the defendants to pay the plaintiffs, jointly and severally the amount of P410.00 (under the First Cause of Action); and the amount of P44.00 (under the Second Cause of Action) a year starting from 1952 until possession of all the aforesaid parcels of land have been delivered and restored to the plaintiffs.

SO ORDERED. 48

Still not contented with the ruling of the respondent Court of Appeals which partly found their claims of ownership as heirs of Juan Cumayao, to be meritorious, although only insofar as the parcel of land under the Third Cause of Action is concerned, petitioners submit that the respondent appellate court committed grave abuse of discretion when it affirmed the trial court's award to private respondents of the parcels of land covered under the First and Second Causes of Action. They have assigned the following errors:

(1) On its own, the Honorable Court of Appeals shifted, or changed, the theory of the case and the issues litigated by the parties in Civil Case No. 2728;

(2) Assuming arguendo that only the emphasis in the aspect of the case is changed, or altered, private respondents' claim over the parcels of land (described in their First Cause of Action) is based on "TITULO PUTATIVO" and, as such, said claim ought to have been rejected;

(3) The Honorable Court of Appeals considered documentary evidence which were not formally re-offered in evidence below, or were withdraw, by private respondents; and,

(4) There is no harmony in the findings of fact in the Decisionof the Court of Appeals such that it committed grave misapprehension of facts. 49

There is no merit to the instant petition.

There are two primary issues that need to be definitively resolved in this case:

(1) May private respondents obtain ownership by acquisitive prescription over the parcels of land described under the first and second causes of action although they, as unrecognized illegitimate children, have no inheritance rights thereto?

(2) May the trial court and the respondent Court of Appeals consider as basis for their decisions, documents that had been formally offered but were lost by fire and are thus no longer available for physical scrutiny but are adequately described in the direct testimony of the premiere witness in the case who was also cross-examined by the opposing party as regards the same documents?

Petitioners furiously take the negative side of both these issues, but they utterly fail to persuade us, as we instead believe that the trial court and the respondent Court of Appeals were correct in their findings and conclusions.

First. Petitioners insist that in order for private respondents to be qualified to become owners of the parcels of land under the first and second causes of action in accordance with our laws on acquisitive prescription, they should first have been entitled to the same parcels of land through succession because absent "successional rights from their deceased parents, private respondents have NO MODE of acquiring ownership over said properties and their possession, if any, over said properties . . . could not ripen into ownership by prescription" 50 (emphasis theirs).

Petitioners' theory is absolutely erroneous. It only takes a cursory glance at Book III of the Civil Code of the Philippines to expose the ridiculousness of this contention. Book III is entitled, "Different Modes of Acquiring Ownership" and notably, Title V thereunder is denominated, "Prescription". Needless to say, acquisitive prescription is in itself a mode of acquiring ownership over a parcel of land and does not require, as petitioners asseverate, successional or inheritance rights, in order to "ripen" into ownership.

Significantly, there is nothing on the record that discloses even an attempt by petitioners to rebut the evidence of private respondents as to their peaceful, continuous, adverse, and open possession in the concept of owner over the parcels of land in question from July 26, 1926 until 1948 or for twenty two (22) years. Under the applicable law at that time, which was Section 41 of the Code of Civil Procedure, Act No. 190, "ten years of actual adverse possession by any person claiming to

be the owner for that time of any land or interest in land, uninterruptedly continued for ten years by . . . whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title". Clearly, therefore, private respondents have become owners, by acquisitive prescription, of the parcels of land described in the first and second causes of action.

Petitioners' resort to a baseless legal argument, however, is understandable. They had never been armed with the evidence needed to prove their ownership of the subject parcels of land, and they even enhanced and confirmed private respondents' prior possession of the subject properties when their witnesses, namely, Ricardo Genel, Feliciano Cumayao, and Corazon Dagoy, failed to deny the acts of dispossession committed by petitioners against private respondents in that fateful year of 1948.

Second. It must have been stakingly obvious that the narration of the documents testified upon by private respondent Victoriano Bingcoy during the trial in September, 1964 and its continuation in July, 1966, in the first part of this ponencia, but which documents were lost to a courthouse fire in 1987, was not without a pre-determined purpose. That earlier narration deliberately enumerated and meticulously described each document in order to show that although said documents have no physical existence now, they were exhaustively testified upon, in the course of both direct and cross-examinations, and were properly offered in evidence by private respondents in open court, such that the trial court and the respondent appellate court could not, without committing procedural error and grave injustice, ignore their contents and their over-all import in rendering judgment.

Petitioners especially attack the inclusion of said documents by the trial court and the respondent Court of Appeals in their appreciation of the evidence in the instant controversy, because said documents have allegedly been withdrawn by private respondents at the behest of the petitioners. We can only surmise, however, that petitioners, by so contending with apparent desperation, are simply running out of tenable arguments.

We have carefully reviewed the records of the case and are convinced that the technical withdrawal of the documents in question, upon the insistent clamor of petitioners, does not operate to render nugatory the testimonial evidence attesting to the tenor and contents of the said documents. Neither does such a technicality work to justify the erosion, denial or annihilation of the truths undisputedly established by the questioned documents. The trial court and respondent Court of Appeals are courts of law and justice. It would be a gross subversion of their nature as such were they, in full awareness of the questioned documentary evidence proffered and marked during the hearings, affirmatively identified and unhamperedly testified to by the main witness in the case and undoubtedly formally offered by private respondents before the trial court, to consciously choose to sacrifice legalism for substantial justice.

WHEREFORE, the instant petition is HEREBY DISMISSED for lack of merit.

Costs against petitioners.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 155733             January 27, 2006

IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA DELGADO AND GUILLERMO RUSTIA CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA DELGADO VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO

CAMPO-REIZA, YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and MELINDA DELGADO CAMPO-MADARANG, Petitioners, vs.HEIRS OF MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZ-ENRIQUEZ and FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR., namely, JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA, JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; and GUILLERMINA RUSTIA, as Oppositors; 1 and GUILLERMA RUSTIA, as Intervenor, 2 Respondents.3

D E C I S I O N

CORONA, J.:

In this petition for review on certiorari, petitioners seek to reinstate the May 11, 1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55,4 in SP Case No. 97668, which was reversed and set aside by the Court of Appeals in its decision5 dated October 24, 2002.

FACTS OF THE CASE

This case concerns the settlement of the intestate estates of Guillermo Rustia and Josefa Delgado.6 The main issue in this case is relatively simple: who, between petitioners and respondents, are the lawful heirs of the decedents. However, it is attended by several collateral issues that complicate its resolution.

The claimants to the estates of Guillermo Rustia and Josefa Delgado may be divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters,7 his nephews and nieces,8 his illegitimate child,9 and the de facto adopted child10 (ampun-ampunan) of the decedents.

The alleged heirs of Josefa Delgado

The deceased Josefa Delgado was the daughter of Felisa11 Delgado by one Lucio Campo. Aside from Josefa, five other children were born to the couple, namely, Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa Delgado was never married to Lucio Campo, hence, Josefa and her full-blood siblings were all natural children of Felisa Delgado.

However, Lucio Campo was not the first and only man in Felisa Delgado’s life. Before him was Ramon Osorio12 with whom Felisa had a son, Luis Delgado. But, unlike her relationship with Lucio Campo which was admittedly one without the benefit of marriage, the legal status of Ramon Osorio’s and Felisa Delgado’s union is in dispute.

The question of whether Felisa Delgado and Ramon Osorio ever got married is crucial to the claimants because the answer will determine whether their successional rights fall within the ambit of the rule against reciprocal intestate succession between legitimate and illegitimate relatives.13 If Ramon Osorio and Felisa Delgado had been validly married, then their only child Luis Delgado was a legitimate half-blood brother of Josefa Delgado and therefore excluded from the latter’s intestate estate. He and his heirs would be barred by the principle of absolute separation between the legitimate and illegitimate families. Conversely, if the couple were never married, Luis Delgado and his heirs would be entitled to inherit from Josefa Delgado’s intestate estate, as they would all be within the illegitimate line.

Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In support thereof, they assert that no evidence was ever presented to establish it, not even so much as an allegation of the date or place of the alleged marriage. What is clear, however, is that Felisa retained the surname Delgado. So did Luis, her son with Ramon Osorio. Later on, when Luis got married, his Partida de Casamiento14 stated that he was "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado),15 significantly omitting any mention of the name and other circumstances of his father.16 Nevertheless, oppositors (now respondents) insist that the absence of a record of the alleged marriage did not necessarily mean that no marriage ever took place.

Josefa Delgado died on September 8, 1972 without a will. She was survived by Guillermo Rustia and some collateral relatives, the petitioners herein. Several months later, on June 15, 1973, Guillermo Rustia executed an affidavit of self-

adjudication of the remaining properties comprising her estate.

The marriage of Guillermo Rustia and Josefa Delgado

Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado17 but whether a marriage in fact took place is disputed. According to petitioners, the two eventually lived together as husband and wife but were never married. To prove their assertion, petitioners point out that no record of the contested marriage existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado as one of the sponsors referred to her as "Señorita" or unmarried woman.

The oppositors (respondents here), on the other hand, insist that the absence of a marriage certificate did not of necessity mean that no marriage transpired. They maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919 and from then on lived together as husband and wife until the death of Josefa on September 8, 1972. During this period spanning more than half a century, they were known among their relatives and friends to have in fact been married. To support their proposition, oppositors presented the following pieces of evidence:

1. Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of the Commonwealth of the Philippines;

2. Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947;

3. Veterans Application for Pension or Compensation for Disability Resulting from Service in the Active Military or Naval Forces of the United States- Claim No. C-4, 004, 503 (VA Form 526) filed with the Veterans Administration of the United States of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself [swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;18

4. Titles to real properties in the name of Guillermo Rustia indicated that he was married to Josefa Delgado.

The alleged heirs of Guillermo Rustia

Guillermo Rustia and Josefa Delgado never had any children. With no children of their own, they took into their home the youngsters Guillermina Rustia Rustia and Nanie Rustia. These children, never legally adopted by the couple, were what was known in the local dialect asampun-ampunan.

During his life with Josefa, however, Guillermo Rustia did manage to father an illegitimate child,19 the intervenor-respondent Guillerma Rustia, with one Amparo Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter, his own flesh and blood, and she enjoyed open and continuous possession of that status from her birth in 1920 until her father’s demise. In fact, Josefa Delgado’s obituary which was prepared by Guillermo Rustia, named the intervenor-respondent as one of their children. Also, her report card from the University of Santo Tomas identified Guillermo Rustia as her parent/guardian.20

Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no interest in the intestate estate of Guillermo Rustia as she was never duly acknowledged as an illegitimate child. They contend that her right to compulsory acknowledgement prescribed when Guillermo died in 1974 and that she cannot claim voluntary acknowledgement since the documents she presented were not the authentic writings prescribed by the new Civil Code.21

On January 7, 1974, more than a year after the death of Josefa Delgado, Guillermo Rustia filed a petition for the adoption22 of their ampun-ampunan Guillermina Rustia. He stated under oath "[t]hat he ha[d] no legitimate, legitimated, acknowledged natural children or natural children by legal fiction."23 The petition was overtaken by his death on February 28, 1974.

Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by his sisters Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz, and by the children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia and Leticia Rustia Miranda.24

ANTECEDENT PROCEEDINGS

On May 8, 1975, Luisa Delgado vda. de Danao, the daughter of Luis Delgado, filed the original petition for letters of administration of the intestate estates of the "spouses Josefa Delgado and Guillermo Rustia" with the RTC of Manila, Branch 55.25 This petition was opposed by the following: (1) the sisters of Guillermo Rustia, namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz;26 (2) the heirs of Guillermo Rustia’s late brother, Roman Rustia, Sr., and (3) the ampun-ampunan Guillermina Rustia Rustia. The opposition was grounded on the theory that Luisa Delgado vda. de Danao and the other claimants were barred under the law from inheriting from their illegitimate half-blood relative Josefa Delgado.

In November of 1975, Guillerma Rustia filed a motion to intervene in the proceedings, claiming she was the only surviving descendant in the direct line of Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the motion was granted.

On April 3, 1978, the original petition for letters of administration was amended to state that Josefa Delgado and Guillermo Rustia were nevermarried but had merely lived together as husband and wife.

On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss the petition in the RTC insofar as the estate of Guillermo Rustia was concerned. The motion was denied on the ground that the interests of the petitioners and the other claimants remained in issue and should be properly threshed out upon submission of evidence.

On March 14, 1988, Carlota Delgado vda. de de la Rosa substituted for her sister, Luisa Delgado vda. de Danao, who had died on May 18, 1987.

On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as administratrix of both estates.27 The dispositive portion of the decision read:

WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision, are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in the City of Manila on September 8, 1972, and entitled to partition the same

among themselves in accordance with the proportions referred to in this Decision.

Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the said decedent, to the exclusion of the oppositors and the other parties hereto.

The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and effect.

As the estates of both dece[d]ents have not as yet been settled, and their settlement [is] considered consolidated in this proceeding in accordance with law, a single administrator therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela Rosa has established her right to the appointment as administratrix of the estates, the Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA.

Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).

Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist from her acts of administration of the subject estates, and is likewise ordered to turn over to the appointed administratix all her collections of the rentals and income due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the petitioner and appointed administratix CARLOTA DELGADO VDA. DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby required to render an accounting of her actual administration of the estates in controversy within a period of sixty (60) days from receipt hereof.

SO ORDERED.28

On May 20, 1990, oppositors filed an appeal which was denied on the ground that the record on appeal was not filed on time.29 They then filed

a petition for certiorari and mandamus30 which was dismissed by the Court of Appeals.31 However, on motion for reconsideration and after hearing the parties’ oral arguments, the Court of Appeals reversed itself and gave due course to oppositors’ appeal in the interest of substantial justice.32

In a petition for review to this Court, petitioners assailed the resolution of the Court of Appeals, on the ground that oppositors’ failure to file the record on appeal within the reglementary period was a jurisdictional defect which nullified the appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The pertinent portion of our decision33 read:

As a rule, periods prescribed to do certain acts must be followed. However, under exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of substantial justice.

xxx xxx xxx

The respondent court likewise pointed out the trial court’s pronouncements as to certain matters of substance, relating to the determination of the heirs of the decedents and the party entitled to the administration of their estate, which were to be raised in the appeal, but were barred absolutely by the denial of the record on appeal upon too technical ground of late filing.

xxx xxx xxx

In this instance, private respondents’ intention to raise valid issues in the appeal is apparent and should not have been construed as an attempt to delay or prolong the administration proceedings.

xxx xxx xxx

A review of the trial court’s decision is needed.

xxx xxx xxx

WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for the APPROVAL of the private

respondents’ Record on Appeal and the CONTINUANCE of the appeal from the Manila, Branch LV Regional Trial Court’s May 11, 1990 decision.

SO ORDERED.

Acting on the appeal, the Court of Appeals34 partially set aside the trial court’s decision. Upon motion for reconsideration,35 the Court of Appeals amended its earlier decision.36 The dispositive portion of the amended decision read:

With the further modification, our assailed decision is RECONSIDERED and VACATED. Consequently, the decision of the trial court isREVERSED and SET ASIDE. A new one is hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) entitled to partition among themselves the intestate estate of Josefa D. Rustia in accordance with the proportion referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr. Guillermo Rustia and thereby entitled to partition his estate in accordance with the proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as administratrix of his estate.

The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to the intestate estate of Josefa Delgado shall issue to the nominee of the oppositors-appellants upon his or her qualification and filing of the requisite bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).

Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist from her acts of administration of the subject estates and to turn over to the appointed administrator all her collections of the rentals and incomes due on the assets of the estates in question, including all documents, papers, records and titles pertaining to such estates to the appointed administrator, immediately upon notice of his qualification and posting of the requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual administration of the estates in controversy within a period of sixty (60) days from notice of the administrator’s qualification and posting of the bond.

The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo Rustia on June 15, 1973 is REMANDED to the trial court for further proceedings to determine the extent of the shares of Jacoba Delgado-Encinas and the children of Gorgonio Delgado (Campo) affected by the said adjudication.

Hence, this recourse.

The issues for our resolution are:

1. whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;

2. who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are;

3. who should be issued letters of administration.

The marriage of Guillermo Rustia and Josefa Delgado

A presumption is an inference of the existence or non-existence of a fact which courts are permitted to draw from proof of other facts. Presumptions are classified into presumptions of law and presumptions of fact. Presumptions of law are, in turn, either conclusive or disputable.37

Rule 131, Section 3 of the Rules of Court provides:

Sec. 3. Disputable presumptions. — The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:

xxx xxx xxx

(aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage;

xxx xxx xxx

In this case, several circumstances give rise to the presumption that a valid marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation of more than 50 years cannot be doubted. Their family and friends knew them to be married. Their reputed status as husband and wife was such that even the original petition for letters of administration filed by Luisa Delgado vda. de Danao in 1975 referred to them as "spouses."

Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply lived together as husband and wife without the benefit of marriage. They make much of the absence of a record of the contested marriage, the testimony of a witness38 attesting that they were not married, and a baptismal certificate which referred to Josefa Delgado as "Señorita" or unmarried woman.39

We are not persuaded.

First, although a marriage contract is considered a primary evidence of marriage, its absence is not always proof that no marriage in fact took place.40 Once the presumption of marriage arises, other evidence may be presented in support thereof. The evidence need not necessarily or directly establish the marriage but must at least be enough to strengthen the presumption of marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo Rustia,41 the passport issued to her as Josefa D. Rustia,42 the declaration under oath of no less than Guillermo Rustia that he was married to Josefa Delgado43 and the titles to the properties in the name of "Guillermo Rustia married to Josefa Delgado," more than adequately support the presumption of marriage. These are public documents which are prima facieevidence of the facts stated therein.44 No clear and convincing evidence sufficient to overcome the presumption of the truth of the recitals therein was presented by petitioners.

Second, Elisa vda. de Anson, petitioners’ own witness whose testimony they primarily relied upon to support their position, confirmed that Guillermo Rustia had proposed marriage to Josefa Delgado and that eventually, the two had "lived together as husband and wife." This again could not but strengthen the presumption of marriage.

Third, the baptismal certificate45 was conclusive proof only of the baptism administered by the priest who baptized the child. It was no proof of the veracity of the declarations and statements contained

therein,46 such as the alleged single or unmarried ("Señorita") civil status of Josefa Delgado who had no hand in its preparation.

Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to be in fact married. This is the usual order of things in society and, if the parties are not what they hold themselves out to be, they would be living in constant violation of the common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume marriage.47

The Lawful Heirs Of Josefa Delgado

To determine who the lawful heirs of Josefa Delgado are, the questioned status of the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be addressed.

As mentioned earlier, presumptions of law are either conclusive or disputable. Conclusive presumptions are inferences which the law makes so peremptory that no contrary proof, no matter how strong, may overturn them.48 On the other hand, disputable presumptions, one of which is the presumption of marriage, can be relied on only in the absence of sufficient evidence to the contrary.

Little was said of the cohabitation or alleged marriage of Felisa Delgado and Ramon Osorio. The oppositors (now respondents) chose merely to rely on the disputable presumption of marriage even in the face of such countervailing evidence as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the surname Delgado and (2) Luis Delgado’s and Caridad Concepcion’s Partida de Casamiento49identifying Luis as "hijo natural de Felisa Delgado" (the natural child of Felisa Delgado).50

All things considered, we rule that these factors sufficiently overcame the rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never married. Hence, all the children born to Felisa Delgado out of her relations with Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings Nazario, Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed Delgado,51 were her natural children.52

Pertinent to this matter is the following observation:

Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y would be natural brothers and sisters, but of half-blood relationship. Can they succeed each other reciprocally?

The law prohibits reciprocal succession between illegitimate children and legitimate children of the same parent, even though there is unquestionably a tie of blood between them. It seems that to allow an illegitimate child to succeed ab intestato (from) another illegitimate child begotten with a parent different from that of the former, would be allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this, however, we submit that

succession should be allowed, even when the illegitimate brothers and sisters are only of the half-blood. The reason impelling the prohibition on reciprocal successions between legitimate and illegitimate families does not apply to the case under consideration. That prohibition has for its basis the difference in category between illegitimate and legitimate relatives. There is no such difference when all the children are illegitimate children of the same parent, even if begotten with different persons. They all stand on the same footing before the law, just like legitimate children of half-blood relation. We submit, therefore, that the rules regarding succession of legitimate brothers and sisters should be applicable to them. Full blood illegitimate brothers and sisters should receive double the portion of half-blood brothers and sisters; and if all are either of the full blood or of the half-blood, they shall share equally.53

Here, the above-named siblings of Josefa Delgado were related to her by full-blood, except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate, they may inherit from each other. Accordingly, all of them are entitled to inherit from Josefa Delgado.

We note, however, that the petitioners before us are already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new Civil Code, the right of representation in the collateral line takes place only in favor of the children of brothers and sisters (nephews and nieces). Consequently, it cannot be exercised by grandnephews and grandnieces.54 Therefore, the only collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are her brothers and sisters, or their children who were still alive at the time of her death on September 8, 1972. They have a vested right

to participate in the inheritance.55 The records not being clear on this matter, it is now for the trial court to determine who were the surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death. Together with Guillermo Rustia,56 they are entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new Civil Code:57

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other one-half.

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefa’s estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an heir of the decedent’s entire estate to himself by means of an affidavit is allowed only if he is the sole heir to the estate:

SECTION 1. Extrajudicial settlement by agreement between heirs. – If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the estate by means of an affidavit filed in the office of the register of deeds. x x x (emphasis supplied)

The Lawful Heirs Of Guillermo Rustia

Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child58 of Guillermo Rustia. As such, she may be entitled to successional rights only upon proof of an admission or recognition of paternity.59 She, however, claimed the status of an acknowledged illegitimate child of Guillermo Rustia only after the death of the latter on February 28, 1974 at which time it was already the new Civil Code that was in effect.

Under the old Civil Code (which was in force till August 29, 1950), illegitimate children absolutely had no hereditary rights. This draconian edict was, however, later relaxed in the new Civil Code which granted

certain successional rights to illegitimate children but only on condition that they were first recognized or acknowledged by the parent.

Under the new law, recognition may be compulsory or voluntary.60 Recognition is compulsory in any of the following cases:

(1) in cases of rape, abduction or seduction, when the period of the offense coincides more or less with that of the conception;

(2) when the child is in continuous possession of status of a child of the alleged father (or mother)61 by the direct acts of the latter or of his family;

(3) when the child was conceived during the time when the mother cohabited with the supposed father;

(4) when the child has in his favor any evidence or proof that the defendant is his father. 62

On the other hand, voluntary recognition may be made in the record of birth, a will, a statement before a court of record or in any authentic writing.63

Intervenor Guillerma sought recognition on two grounds: first, compulsory recognition through the open and continuous possession of the status of an illegitimate child and second, voluntary recognition through authentic writing.

There was apparently no doubt that she possessed the status of an illegitimate child from her birth until the death of her putative father Guillermo Rustia. However, this did not constitute acknowledgment but a mere ground by which she could have compelled acknowledgment through the courts.64 Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation: the lifetime of the child and the lifetime of the putative parent.65 On the death of either, the action for compulsory recognition can no longer be filed.66 In this case, intervenor Guillerma’s right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia on February 28, 1974.

The claim of voluntary recognition (Guillerma’s second ground) must likewise fail. An authentic writing, for purposes of voluntary recognition,

is understood as a genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This includes a public instrument or a private writing admitted by the father to be his.67 Did intervenor’s report card from the University of Santo Tomas and Josefa Delgado’s obituary prepared by Guillermo Rustia qualify as authentic writings under the new Civil Code? Unfortunately not. The report card of intervenor Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears there as intervenor’s parent/guardian holds no weight since he had no participation in its preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which was published in the Sunday Times on September 10, 1972, that published obituary was not the authentic writing contemplated by the law. What could have been admitted as an authentic writing was the original manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by him, not the newspaper clipping of the obituary. The failure to present the original signed manuscript was fatal to intervenor’s claim.

The same misfortune befalls the ampun-ampunan, Guillermina Rustia Rustia, who was never adopted in accordance with law. Although a petition for her adoption was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the latter’s death. We affirm the ruling of both the trial court and the Court of Appeals holding her a legal stranger to the deceased spouses and therefore not entitled to inherit from them ab intestato. We quote:

Adoption is a juridical act, a proceeding in rem, which [created] between two persons a relationship similar to that which results from legitimate paternity and filiation. Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is wholly and entirely artificial. To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is never presumed, but must be affirmatively [proven] by the person claiming its existence.68

Premises considered, we rule that two of the claimants to the estate of Guillermo Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunan Guillermina Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new Civil Code, if there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased.

Therefore, the lawful heirs of Guillermo Rustia are the remaining claimants, consisting of his sisters,69 nieces and nephews.70

Entitlement To Letters Of Administration

An administrator is a person appointed by the court to administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order of preference in the appointment of an administrator:

Sec. 6. When and to whom letters of administration granted. – If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or a person dies intestate, administration shall be granted:

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve;

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that the administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select.

In the appointment of an administrator, the principal consideration is the interest in the estate of the one to be appointed.71 The order of preference does not rule out the appointment of co-administrators, specially in cases where

justice and equity demand that opposing parties or factions be represented in the management of the estates,72 a situation which obtains here.

It is in this light that we see fit to appoint joint administrators, in the persons of Carlota Delgado vda. de de la Rosa and a nominee of the nephews and nieces of Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado and Guillermo Rustia, respectively.

WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002 decision of the Court of Appeals is AFFIRMED with the following modifications:

1. Guillermo Rustia’s June 15, 1973 affidavit of self-adjudication is hereby ANNULLED.

2. the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of Josefa Delgado who survived her and (b) the children of any of Josefa Delgado’s full- or half-siblings who may have predeceased her, also surviving at the time of her death. Josefa Delgado’s grandnephews and grandnieces are excluded from her estate. In this connection, the trial court is hereby ordered to determine the identities of the relatives of Josefa Delgado who are entitled to share in her estate.

3. Guillermo Rustia’s estate (including its one-half share of Josefa Delgado’s estate) shall be inherited by Marciana Rustia vda. deDamian and Hortencia Rustia Cruz (whose respective shares shall be per capita) and the children of the late Roman Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall be per stirpes). Considering that Marciana Rustia vda. de Damian and Hortencia Rustia Cruz are now deceased, their respective shares shall pertain to their estates.

4. Letters of administration over the still unsettled intestate estates of Guillermo Rustia and Josefa Delgado shall issue to Carlota Delgado vda. de de la Rosa and to a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon their qualification and filing of the requisite bond in such amount as may be determined by the trial court.

No pronouncement as to costs.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Baguio City

FIRST DIVISION

 

G.R. No. 118904 April 20, 1998

ARTURIO TRINIDAD, petitioner, vs.COURT OF APPEALS, FELIX TRINIDAD (deceased) and LOURDES TRINIDAD, respondents.

 

PANGANIBAN, J.:

In the absence of a marriage contract and a birth certificate, how may marriage and filiation be proven?

The Case

This is the main question raised in this petition for review on certiorari challenging the Court of Appeals 1 Decision promulgated December 1, 1994 2 and Resolution promulgated on February 8, 1995 3 in CA-GR CV No. 23275, which reversed the decision of the trial court and dismissed petitioner's action for partition and damages.

On August 10, 1975, Petitioner Arturio Trinidad filed a complaint 4 for partition and damages against Private Respondents Felix and Lourdes,

both surnamed Trinidad, before the Court of First Instance of Aklan, Branch I. 5 On October 25, 1982, Felix died without issue, so he was not substituted as a party. 6

On July 4, 1989, the trial court rendered a twenty-page decision 7 in favor of the petitioner, in which it ruled: 8

Considering therefore that this court is of the opinion that plaintiff is the legitimate son of Inocentes Trinidad, plaintiff is entitled to inherit the property left by his deceased father which is 1/3 of the 4 parcels of land subject matter of this case. Although the plaintiff had testified that he had been receiving [his] share from said land before and the same was stopped, there was no evidence introduced as to what year he stopped receiving his share and for how much. This court therefore cannot rule on that.

In its four-page Decision, Respondent Court reversed the trial court on the ground that petitioner failed to adduce sufficient evidence to prove that his parents were legally married to each other and that acquisitive prescription against him had set in. The assailed Decision disposed: 9

WHEREFORE, the Court REVERSES the appealed decision.

In lieu thereof, the Court hereby DISMISSES the [petitioner's] complaint and the counterclaim thereto.

Without costs.

Respondent Court denied reconsideration in its impugned Resolution which reads: 10

The Court DENIES defendants-appellants' motion for reconsideration, dated December 15, 1994, for lack of merit. There are no new or substantial matters raised in the motion that merit the modification of the decision.

Hence, this petition. 11

The Facts

The assailed Decision recites the factual background of this case, as follows: 12

On August 10, 1978, plaintiff [herein petitioner] filed with the Court of First Instance of Aklan, Kalibo, Aklan, an action for partition of four (4) parcels of land, described therein, claiming that he was the son of the late Inocentes Trinidad, one of three (3) children of Patricio Trinidad, who was the original owner of the parcels of land. Patricio Trinidad died in 1940, leaving the four (4) parcels of land to his three (3) children, Inocentes, Lourdes and Felix. In 1970, plaintiff demanded from the defendants to partition the land into three (3) equal shares and to give him the one-third (1/3) individual share of his late father, but the defendants refused.

In their answer, filed on September 07, 1978, defendants denied that plaintiff was the son of the late Inocentes Trinidad. Defendants contended that Inocentes was single when he died in 1941 , before plaintiff's birth. Defendants also denied that plaintiff had lived with them, and claimed that the parcels of land described in the complaint had been in their possession since the death of their father in 1940 and that they had not given plaintiff a share in the produce of the land.

Patricio Trinidad and Anastacia Briones were the parents of three (3) children, namely, Inocentes, Lourdes and Felix. When Patricio died in 1940, survived by the above named children, he left four (4) parcels of land, all situated at Barrio Tigayon, Kalibo Aklan.

Arturio Trinidad, born on July 21, 1943, claimed to be the legitimate son of the late Inocentes Trinidad.

Arturio got married in 1966 to Candelaria Gaspar, at the age of twenty three (23). Sometime after the marriage, Arturio demanded from the defendants that the above-mentioned parcels of land be partitioned into three (3)

equal shares and that he be given the one-third (1/3) individual shares of his late father, but defendants refused.

In order to appreciate more clearly the evidence adduced by both parties, this Court hereby reproduces pertinent portions of the trial court's decision: 13

EVIDENCE FOR THE PLAINTIFF:

Plaintiff presented as his first witness, Jovita Gerardo, 77 years old, (at the time she testified in 1981) who is the barangay captain of barrio Tigayon, Kalibo, Aklan, since 1972. She testified that before being elected as barrio captain she held the position of barrio council-woman for 4 years. Also she was [a member of the] board of director[s] of the Parent-Teachers Association of Tigayon, Kalibo, Aklan. That she knows the plaintiff because they are neighbors and she knows him from the time of his birth. She knows the father of the plaintiff as Inocentes Trinidad and his mother Felicidad Molato; both were already dead, Inocentes having died in 1944 and his wife died very much later. Witness recalls plaintiff was born in 1943 in Barrio Tigayon, Kalibo, Aklan, on July 21, 1943. At the time of the birth of the plaintiff, the house of the witness was about 30 meters away from plaintiff's parents['] house and she used to go there 2 or 3 times a week. That she knows both the defendants as they are also neighbors. That both Felix and Lourdes Trinidad are the uncle and aunt of Arturio because Inocentes Trinidad who is the father of the plaintiff is the brother of the defendants, Felix and Lourdes Trinidad. She testified she also knows that the father of Inocentes, Felix and Lourdes[,] all surnamed Trinidad[,] was Patricio Trinidad who is already dead but left several parcels of land which are the 4 parcels subject of this litigation. That she knows all these [parcels of] land because they are located in Barrio Tigayon.

When asked about the adjoining owners or boundaries of the 4 parcels of land, witness answered and

mentioned the respective adjoining owners. That she knew these 4 parcels belonged to Patricio Trinidad because said Patricio Trinidad was a native also of Barrio Tigayon. Said Patricio died before the [war] and after his death the land went to his 3 children, namely: Inocentes, Felix and Lourdes. Since then the land was never partitioned or divided among the 3 children of Patricio.

A picture, Exhibit A, was shown to the witness for identification and she identified a woman in the picture as the defendant, Lourdes Trinidad. A man with a hat holding a baby was identified by her as Felix Trinidad, the defendant. The other woman in the picture was pointed by the witness as the wife of the plaintiff, Arturio Trinidad. When asked if Arturio Trinidad and Lourdes Trinidad and Felix Trinidad pointed to by her in the picture are the same Arturio, Felix and Lourdes, who are the plaintiff and the defendants in this case, witness answered yes.

Another picture marked as Exhibit B was presented to the witness for identification. She testified the woman in this picture as Lourdes Trinidad. In said picture, Lourdes Trinidad was holding a child which witness identified as the child Arturio Trinidad. When asked by the court when . . . the picture [was] taken, counsel for the plaintiff answered, in 1966. When asked if Arturio Trinidad was baptized, witness answered yes, as she had gone to the house of his parents. Witness then identified the certificate of baptism marked as Exhibit C. The name Arturio Trinidad was marked as Exhibit C-1 and the name of Inocentes Trinidad and Felicidad Molato as father and mother respectively, were marked as Exhibit C-2. The date of birth being July 21, 1943 was also marked. The signature of Monsignor Iturralde was also identified.

On cross-examination, witness testified that she [knew] the land in question very well as she used to pass by it always. It was located just near her house but she cannot exactly tell the area as she merely passes by it.

When asked if she [knew] the photographer who took the pictures presented as Exhibit A and B, witness answered she does not know as she was not present during the picture taking. However, she can identify everybody in the picture as she knows all of them.

At this stage of the trial, Felix Trinidad [died] without issue and he was survived by his only sister, Lourdes Trinidad, who is his co-defendant in this case.

Next witness for the plaintiff was ISABEL MEREN who was 72 years old and a widow. She testified having known Inocentes Trinidad as the father of Arturio Trinidad and that Inocentes, Felix and Lourdes are brothers and sister and that their father was Patricio Trinidad who left them 4 parcels of land. That she knew Inocentes Trinidad and Felicidad Molato who are the parents of Arturio, the plaintiff, were married in New Washington, Aklan, by a protestant pastor by the name of Lauriano Lajaylajay. That she knows Felicidad Molato and Lourdes Trinidad very well because as a farmer she also owns a parcel of land [and] she used to invite Felicidad and Lourdes to help her during planting and harvesting season. That she knows that during the lifetime of Inocentes the three of them, Inocentes, Felix and Lourdes possessed and usufructed the 4 parcels they inherited from their father, Patricio. That upon the death of Inocentes, Lourdes Trinidad was in possession of the property without giving the widow of Inocentes any share of the produce. As Lourdes outlived her two brothers, namely: Felix and Inocentes, she was the one possessing and usufructing the 4 parcels of land up to the present. The witness testified that upon the death of Inocentes, Lourdes took Arturio and cared for him when he was still small, about 3 years old, until Arturio grew up and got married. That while Arturio was growing up, he had also enjoyed the produce of the land while he was being taken care of by Lourdes Trinidad. That a misunderstanding later on arose when Arturio Trinidad wanted to get his father's share but Lourdes Trinidad will not give it to him.

Plaintiff, ARTURIO TRINIDAD, himself, was presented as witness. He testified that defendants, Lourdes and Felix Trinidad, are his aunt and uncle, they being the brother and sister of his father. That the parents of his father and the defendants were Patricio Trinidad and Anastacia Briones. That both his father, Inocentes Trinidad, and mother, Felicidad Molato, were already dead having died in Tigayon, his father having died in 1944 and his mother about 25 years ago.

As proof that he is the son of Inocentes Trinidad and Felicidad Molato, he showed a certificate of baptism which had been previously marked as Exhibit C. That his birth certificate was burned during World War 2 hut he has a certificate of loss issued by the Civil Registrar of Kalibo, Aklan.

When he was 14 years old, the defendants invited him to live with them being their nephew as his mother was already dead. Plaintiff's mother died when he was 13 years old. They treated him well and provided for all his needs. He lived with defendants for 5 years. At the age of 19, he left the house of the defendants and lived on his own. He got married at 23 to Candelaria Gaspar and then they were invited by the defendants to live with them. So he and his wife and children lived with the defendants. As proof that he and his family lived with the defendants when the latter invited him to live with them, he presented a picture previously marked as Exhibit B where there appears his aunt, Lourdes Trinidad, carrying plaintiff's daughter, his uncle and his wife. In short, it is a family picture according to him. Another family picture previously marked Exhibit A shows his uncle, defendant Felix Trinidad, carrying plaintiff's son. According to him, these 2 pictures were taken when he and his wife and children were living with the defendants. That a few years after having lived with them, the defendants made them vacate the house for he requested for partition of the land to get his share. He moved out and looked for [a] lawyer to handle his case. He testified there are 4 parcels of land in controversy of which parcel 1 is an upland.

Parcel 1 is 1,000 square meters, [has] 10 coconut trees and fruit bearing. The harvest is 100 coconuts every 4 months and the cost of coconuts is P2.00 each. The boundaries are: East-Federico Inocencio; West-Teodulo Dionesio; North-Teodulo Dionesio; and South-Bulalio Briones; located at Tigayon.

Parcel 2 is an upland with an area of 500 square meters; it has only 1 coconut tree and 1 bamboo groove; also located in Tigayon, Kalibo, Aklan. Adjoining owners are: East-Ambrosio Trinidad; North-Federico Inocencio, West-Patricio Trinidad and South-Gregorio Briones.

Parcel 3 is about 12,000 square meters and 1/4 of that belongs to Patricio Trinidad, the deceased father of the defendants and Inocentes, the father of the plaintiff.

Parcel 4 is a riceland with an area of 5,000 square meters. The harvest is 40 cavans two times a years [sic]. Adjoining owners are: East-Gregorio Briones; West-Bulalio Briones; South-Federico Inocencio and North-Digna Carpio.

Parcel 1 is Lot No. 903.

Parcel 2 is Lot No. 864 of the cadastral survey of Kalibo and only Lot 864-A with an area of 540 square meters is the subject of litigation.

Parcel 3 is Lot No. 979 of the cadastral survey of Kalibo covered by Tax Decl. No. 703310 with reference to one of the owners of the land, Patricio Trinidad married to Anastacia Briones, one-half share.

Parcel 4 is covered by Original Certificate of Title No. 22502 RO-174 covering Lot No. 863 of the cadastral survey of Kalibo. The title is in the name of Patricio Trinidad married to Anastacia Briones.

Parcel 1 is covered by Tax Decl. No. 11609 in the name of Patricio Trinidad while parcel 2 is covered by Tax Decl. No. 10626 in the name of Anastacia Briones and another Tax Declaration No. 11637 for Parcel 3 in the name of Ambrosio Trinidad while Parcel 4 is covered by Tax Decl. No. 16378 in the name of Patricio Trinidad.

On cross-examination, plaintiff testified that during the lifetime of his mother they were getting the share in the produce of the land like coconuts, palay and corn. Plaintiff further testified that his father is Inocentes Trinidad and his mother was Felicidad Molato. They were married in New Washington, Aklan, by a certain Atty. Lajaylajay. When asked if this Atty. Lajaylajay is a municipal judge of New Washington, Aklan, plaintiff answered he does not know because he was not yet born at that time. That he does not have the death certificate of his father who died in 1944 because it was wartime. That after the death of his father, he lived with his mother and when his mother died[,] he lived with his aunt and uncle, the defendants in this case. That during the lifetime of his mother, it was his mother receiving the share of the produce of the land. That both defendants, namely Lourdes and Felix Trinidad, are single and they have no other nephews and nieces. That [petitioner's] highest educational attainment is Grade 3.

EVIDENCE FOR THE DEFENDANTS:

First witness for the defendants was PEDRO BRIONES, 68 years old, unemployed and a resident of Nalook, Kalibo, Aklan. He testified having known the defendants, Felix and Lourdes Trinidad. They being his first cousins because the mother of Lourdes and Felix by the name of Anastacia Briones and his father are sister and brother. That he also knew Inocentes Trinidad being the brother of Felix and Lourdes and he is already dead. According to the witness, Inocentes Trinidad [died] in 1940 and at the time of his death Inocentes Trinidad was not married. That he knew this fact because at the time of the death of Inocentes

Trinidad he was then residing with his aunt, "Nanay Taya", referring to Anastacia Briones who is mother of the defendants, Felix and Lourdes Trinidad, as well as Inocentes Trinidad. That at the time of the death of Inocentes Trinidad, according to this witness he stayed with his aunt, Anastacia Trinidad, and with his children before 1940 for only 3 months. When asked if he knew Inocentes Trinidad cohabited with anybody before his death, he answered, "That I do not know", neither does he kn[o]w a person by the name of Felicidad Molato. Furthermore, when asked if he can recall if during the lifetime of Inocentes Trinidad witness knew of anybody with whom said Inocentes Trinidad had lived as husband and wife, witness, Pedro Briones, answered that he could not recall because he was then in Manila working. That after the war, he had gone back to the house of his aunt, Anastacia, at Tigayon, Kalibo, as he always visit[s] her every Sunday, however, he does not know the plaintiff, Arturio Trinidad. When asked if after the death of Inocentes Trinidad, he knew anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad, witness, Pedro Briones, answered: "I do not know about that."

On cross examination, witness testified that although he was born in Tigayon, Kalibo, Aklan, he stated to reside in Nalook, Kalibo, as the hereditary property of their father was located there. When asked if he was aware of the 4 parcels of land which is the subject matter of this case before the court, witness answered that he does not know. What he knew is that among the 3 children of Patricio Trinidad, Inocentes is the eldest. And that at the time of the death of Inocentes in 1940, according to the witness when cross examined, Inocentes Trinidad was around 65 years old. That according to him, his aunt, Anastacia Briones, was already dead before the war. When asked on cross examination if he knew where Inocentes Trinidad was buried when he died in 1940, witness answered that he was buried in their own land because the Japanese forces were roaming around the place. When confronted with Exhibit A which is the alleged family

picture of the plaintiff and the defendants, witness was able to identify the lady in the picture, which had been marked as Exhibit A-1, as Lourdes Trinidad, and the man wearing a hat on the said picture marked as Exhibit 2-A is Felix Trinidad. However, when asked if he knew the plaintiff, Arturio Trinidad, he said he does not know him.

Next witness for the defendants was the defendant herself, LOURDES TRINIDAD. She stated that she is 75 years old, single and jobless. She testified that Inocentes Trinidad was her brother and he is already dead and he died in 1941 in Tigayon, Kalibo, Aklan. That before the death of her brother, Inocentes Trinidad, he had gone to Manila where he stayed for a long time and returned to Tigayon in 1941. According to her, upon arrival from Manila in 1941 his brother, Inocentes Trinidad, lived only for 15 days before he died. While his brother was in Manila, witness testified she was not aware that he had married anybody. Likewise, when he arrived in Tigayon in 1941, he also did [not] get married. When asked if she knew one by the name of Felicidad Molato, witness answered she knew her because Felicidad Molato was staying in Tigayon. However, according to her[,] she does not kn[o]w if her brother, Inocentes Trinidad, had lived with Felicidad Molato as husband and wife. When asked if she knew the plaintiff, Arturio Trinidad, she said, "Yes," but she denied that Arturio Trinidad had lived with them. According to the witness, Arturio Trinidad did not live with the defendants but he stayed with his grandmother by the name of Maria Concepcion, his mother, Felicidad Molato, having died already. When asked by the court if there had been an instance when the plaintiff had lived with her even for days, witness answered, he did not. When further asked if Arturio Trinidad went to visit her in her house, witness also said, "He did not."

Upon cross examination by counsel for the plaintiff, Lourdes Trinidad testified that her parents, Anastacia Briones and Patricio Trinidad, had 3 children, namely: Inocentes Trinidad, Felix Trinidad and herself. But

inasmuch as Felix and Inocentes are already dead, she is the only remaining daughter of the spouses Patricio Trinidad and Anastacia Briones. Defendant, Lourdes Trinidad, testified that her brother, Felix Trinidad, died without a wife and children, in the same manner that her brother, Inocentes Trinidad, died without a wife and children. She herself testified that she does not have any family of her own for she has [no] husband or children. According to her[,] when Inocentes Trinidad [died] in 1941, they buried him in their private lot in Tigayon because nobody will carry his coffin as it was wartime and the municipality of Kalibo was occupied by the Japanese forces. When further cross-examined that I[t] could not be true that Inocentes Trinidad died in March 1941 because the war broke out in December 1941 and March 1941 was still peace time, the witness could not answer the question. When she was presented with Exhibit A which is the alleged family picture wherein she was holding was [sic] the child of Arturio Trinidad, she answered; "Yes." and the child that she is holding is Clarita Trinidad, child of Arturio Trinidad. According to her, she was only requested to hold this child to be brought to the church because she will be baptized and that the baptism took place in the parish church of Kalibo. When asked if there was a party, she answered; "Maybe there was." When confronted with Exhibit A-1 which is herself in the picture carrying the child, witness identified herself and explained that she was requested to bring the child to the church and that the picture taken together with her brother and Arturio Trinidad and the latter's child was taken during the time when she and Arturio Trinidad did not have a case in court yet. She likewise identified the man with a hat holding a child marked as Exhibit A-2 as her brother, Felix. When asked if the child being carried by her brother, Felix Trinidad, is another child of the plaintiff, witness answered she does not know because her eyes are already blurred. Furthermore, when asked to identify the woman in the picture who was at the right of the child held by her brother, Felix, and who was previously identified by plaintiff, Arturio Trinidad, as his wife, witness answered that she cannot identify because she had a poor eyesight neither can she

identify plaintiff, Arturio Trinidad, holding another child in the picture for the same reason. When asked by counsel for the plaintiff if she knows that the one who took this picture was the son of Ambrosio Trinidad by the name of Julito Trinidad who was also their cousin, witness testified that she does not know.

Third witness for the defendants was BEATRIZ TRINIDAD SAYON who testified that she knew Arturio Trinidad because he was her neighbor in Tigayon. In the same manner that she also knew the defendants, Felix and Lourdes, and Inocentes all surnamed Trinidad because they were her cousins. She testified that a few months after the war broke out Inocentes Trinidad died in their lola's house whose names was Eugenia Rufo Trinidad. She further testified that Inocentes Trinidad had lived almost in his lifetime in Manila and he went home only when his father fetched him in Manila because he was already sick. That according to her, about 1 1/2 months after his arrival from Manila, Inocentes Trinidad died. She also testified that she knew Felicidad Molato and that Felicidad Molato had never been married to Inocentes Trinidad. According to her, it was in 1941 when Inocentes Trinidad died. According to her she was horn in 1928, therefore, she was 13 or 14 years old when the war broke out. When asked if she can remember that it was only in the early months of the year 1943 when the Japanese occupied Kalibo, she said she [was] not sure. She further testified that Inocentes Trinidad was buried in their private lot because Kalibo was then occupied by the Japanese forces and nobody would carry his body to be buried in the Poblacion.

For rebuttal evidence, [petitioner] presented ISABEL MEREN, who was 76 years old and a resident of Tigayon. Rebuttal witness testified that . . . she knew both the [petitioner] and the [private respondents] in this case very well as her house is only around 200 meters from them. When asked if it is true that according to Lourdes Trinidad, [Inocentes Trinidad] arrived from Manila in 1941 and he lived only for 15 days and died,

witness testified that he did not die in that year because he died in the year 1944, and that Inocentes Trinidad lived with his sister, Lourdes Trinidad, in a house which is only across the street from her house. According to the said rebuttal witness, it is not true that Inocentes Trinidad died single because he had a wife by the name of Felicidad Molato whom he married on May 5, 1942 in New Washington, Aklan. That she knew this fact because she was personally present when couple was married by Lauriano Lajaylajay, a protestant pastor.

On cross examination, rebuttal witness testified that when Inocentes Trinidad arrived from Manila he was in good physical condition. That she knew both Inocentes Trinidad and Felicidad Molato to be Catholics but that according to her, their marriage was solemnized by a Protestant minister and she was one of the sponsors. That during the marriage of Inocentes Trinidad and Felicidad Molato, Lourdes Trinidad and Felix Trinidad were also present.

When plaintiff, ARTURIO TRINIDAD, was presented as rebuttal witness, he was not able to present a marriage contract of his parents but instead a certification dated September 5, 1978 issued by one Remedios Eleserio of the Local Civil Registrar of the Municipality of New Washington, Aklan, attesting to the fact that records of births, deaths, and marriages in the municipality of New Washington were destroyed during the Japanese time.

Respondent Court's Ruling

In finding that petitioner was not a child, legitimate or otherwise, of the late Inocentes Trinidad, Respondent Court ruled: 14

We sustain the appeal on the ground that plaintiff has not adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad. But the action to claim legitimacy has not prescribed.

Plaintiff has not established that he was recognized, as a legitimate son of the late Inocentes Trinidad, in the record of birth or a final judgment, in a public document or a private handwritten instrument, or that he was in continuous possession of the status of a legitimate child.

Two witnesses, Pedro Briones and Beatriz Trinidad Sayon, testified for the defendants that Inocentes Trinidad never married. He died single in 1941. One witness, Isabel Maren, testified in rebuttal for the plaintiff, that Inocentes Trinidad married Felicidad Molato in New Washington, Aklan, on May 5, 1942, solemnized by a pastor of the protestant church and that she attended the wedding ceremony (t.s.n. Sept. 6, 1988, p. 4). Hence, there was no preponderant evidence of the marriage, nor of Inocentes' acknowledgment of plaintiff as his son, who was born on July 21, 1943.

The right to demand partition does not prescribe (de Castro vs. Echarri, 20 Phil. 23). Where one of the interested parties openly and adversely occupies the property without recognizing the co-ownership (Cordova vs. Cordova, L-9936, January 14, 1958) acquisitive prescription may set in (Florenz D. Regalado, Remedial Law Compendium, Vol. I, Fifth Revised Edition, 1988, p. 497). Admittedly, the defendants have been in possession of the parcels of land involved in the concept of owners since their father died in 1940. Even if possession be counted from 1964, when plaintiff attained the age of majority, still, defendants possessed the land for more than ten (10) years, thus acquiring ownership of the same by acquisitive prescription (Article 1134, Civil Code of the Philippines).

The Issues

Petitioner submits the following issues for resolution: 15

1. Whether or not petitioner (plaintiff-appellee) has proven by preponderant evidence the marriage of his parents.

2. Whether or not petitioner (plaintiff-appellee) has adduced sufficient evidence to prove that he is the son of the late Inocentes Trinidad, brother of private respondents (defendants-appellants) Felix and Lourdes Trinidad.

3. Whether or not the Family Code is applicable to the case at bar[,] the decision of the Regional Trial Court having been promulgated on July 4, 1989, after the Family Code became effective on August 3, 1988.

4. Whether or not petitioner's status as a legitimate child can be attached collaterally by the private respondents.

5. Whether or not of private respondent (defendants-appellants) have acquired ownership of the properties in question by acquisitive prescription.

Simply stated, the main issues raised in this petition are:

1. Did petitioner present sufficient evidence of his parents' marriage and of his filiation?

2. Was petitioner's status as a legitimate child subject to collateral attack in the action for partition?

3. Was his claim time-barred under the rules on acquisitive prescription?

The Court's Ruling

The merits of this petition are patent. The partition of the late Patricio's real properties requires preponderant proof that petitioner is a co-owner or co-heir of the decedent's estate. 16 His right as a co-owner would, in turn, depend on whether he was born during the existence of a valid and subsisting marriage between his mother (Felicidad) and his putative father (Inocentes). This Court holds that such burden was successfully

discharged by petitioner and, thus, the reversal of the assailed Decision and Resolution is inevitable.

First and Second Issues: Evidence of and Collateral Attack on Filiation

At the outset, we stress that an appellate court's assessment of the evidence presented by the parties will not, as a rule, be disturbed because the Supreme Court is not a trier of facts. But in the face of the contradictory conclusions of the appellate and the trial courts, such rule does not apply here. So, we had to meticulously pore over the records and the evidence adduced in this case. 17

Petitioner's first burden is to prove that Inocentes and his mother (Felicidad) were validly married, and that he was born during the subsistence of their marriage. This, according to Respondent Court, he failed to accomplish.

This Court disagrees. Pugeda vs. Trias 18 ruled that when the question of whether a marriage has been contracted arises in litigation, said marriage may be proven by relevant evidence. To prove the fact of marriage, the following would constitute competent evidence: the testimony of a witness to the matrimony, the couple's public and open cohabitation as husband and wife after the alleged wedlock, the birth and the baptismal certificates of children born during such union, and the mention of such nuptial in subsequent documents. 19

In the case at bar, petitioner secured a certification 20 from the Office of the Civil Registrar of Aklan that all records of births, deaths and marriages were either lost, burned or destroyed during the Japanese occupation of said municipality. This fact, however, is not fatal to petitioner's case. Although the marriage contract is considered the primary evidence of the marital union, petitioner's failure to present it is not proof that no marriage took place, as other forms of relevant evidence may take its place. 21

In place of a marriage contract, two witnesses were presented by petitioner: Isabel Meren, who testified that she was present during the nuptial of Felicidad and Inocentes on May 5, 1942 in New Washington, Aklan; and Jovita Gerardo, who testified that the couple deported themselves as husband and wife after the marriage. Gerardo, the 77-

year old barangay captain of Tigayon and former board member of the local parent-teachers' association, used to visit Inocentes and Felicidad's house twice or thrice a week, as she lived only thirty meters away. 22 On July 21, 1943, Gerardo dropped by Inocentes' house when Felicidad gave birth to petitioner. She also attended petitioner's baptismal party held at the same house. 23 Her testimony constitutes evidence of common reputation respecting marriage. 24 It further gives rise to the disputable presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. 25 Petitioner also presented his baptismal certificate (Exhibit C) in which Inocentes and Felicidad were named as the child's father and mother. 26

On the other hand, filiation may be proven by the following:

Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment.

Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child.

Art. 267. In the absence of a record of birth, authentic document, final judgment or possession of status, legitimate filiation may be proved by any other means allowed by the Rules of Court and special laws. 27

Petitioner submitted in evidence a certification 28 that records relative to his birth were either destroyed during the last world war or burned when the old town hall was razed to the ground on June 17, 1956. To prove his filiation, he presented in evidence two family pictures, his baptismal certificate and Gerardo's testimony.

The first family picture (Exhibit A) shows petitioner (Exhibit A-5) carrying his second daughter and his wife (Exhibit A-4) together with the late Felix Trinidad (Exhibit A-2) carrying petitioner's first daughter, and Lourdes Trinidad (Exhibit A-1). Exhibit B is another picture showing Lourdes Trinidad (Exhibit B-1) carrying petitioner's first child (Exhibit B-2). These pictures were taken before the case was instituted. Although they do not directly prove petitioner's filiation to Inocentes, they show

that petitioner was accepted by the private respondents as Inocentes' legitimate son ante litem motam.

Lourdes' denials of these pictures are hollow and evasive. While she admitted that Exhibit B shows her holding Clarita Trinidad, the petitioner's daughter, she demurred that she did so only because she was requested to carry the child before she was baptized. 29 When shown Exhibit A, she recognized her late brother — but not petitioner, his wife and the couple's children — slyly explaining that she could not clearly see because of an alleged eye defect. 30

Although a baptismal certificate is indeed not a conclusive proof of filiation, it is one of "the other means allowed under the Rules of Court and special laws" to show pedigree, as this Court ruled in Mendoza vs. Court of Appeals: 31

What both the trial court and the respondent court did not take into account is that an illegitimate child is allowed to establish his claimed filiation by "any other means allowed by the Rules of Court and special laws," according to the Civil Code, or "by evidence of proof in his favor that the defendant is her father," according to the Family Code. Such evidence may consist of his baptismal certificate, a judicial admission, a family Bible in which his name has been entered, common reputation respecting his pedigree, admission by silence, the testimony of witnesses, and other kinds of proof admissible under Rule 130 of the Rules of Court. [Justice Alicia Sempio-Diy, Handbook on the Family Code of the Phil. 1988 ed., p. 246]

Concededly, because Gerardo was not shown to be a member of the Trinidad family by either consanguinity or affinity, 32her testimony does not constitute family reputation regarding pedigree. Hence, it cannot, by itself, be used to establish petitioner's legitimacy.

Be that as it may, the totality of petitioner's positive evidence clearly preponderates over private respondents' self-serving negations. In sum, private respondents' thesis is that Inocentes died unwed and without issue in March 1941. Private respondents' witness, Pedro Briones, testified that Inocentes died in 1940 and was buried in the estate of the Trinidads, because nobody was willing to carry the coffin to the

cemetery in Kalibo, which was then occupied by the Japanese forces. His testimony, however, is far from credible because he stayed with the Trinidads for only three months, and his answers on direct examination were noncommittal and evasive: 33

Q: At the time of his death, can you tell the Court if this Inocentes Trinidad was married or not?

A: Not married.

Q: In 1940 at the time of death of Inocentes Trinidad, where were you residing?

A: I was staying with them.

Q: When you said "them", to whom are you referring to [sic]?

A: My aunt Nanay Taya, Anastacia.

xxx xxx xxx

Q: Will you please tell the Court for how long did you stay with your aunt Anastacia Trinidad and his children before 1940?

A: For only three months.

Q: Now, you said at the time of his death, Inocentes Trinidad was single. Do you know if he had cohabited with anybody before his death?

A: [T]hat I do not know.

Q: You know a person by the name of Felicidad Molato?

A: No, sir.

Q: Can you recall if during the lifetime of Inocentes Trinidad if you have known of anybody with whom he has lived as husband and wife?

A: I could not recall because I was then in Manila working.

Q: After the war, do you remember having gone back to the house of your aunt Anastacia at Tigayon, Kalibo, Aklan?

A: Yes, sir.

Q: How often did you go to the house of your aunt?

A: Every Sunday.

xxx xxx xxx

Q: You know the plaintiff Arturio Trinidad?

A: I do not know him.

Q: After the death of Inocentes Trinidad, do you know if there was anybody who has stayed with the defendants who claimed to be a son of Inocentes Trinidad?

A: I do not know about that.

Beatriz Sayon, the other witness of private respondent, testified, that when the Japanese occupied Kalibo in 1941, her father brought Inocentes from Manila to Tigayon because he was sick. Inocentes

stayed with their grandmother, Eugenia Roco Trinidad, and died single and without issue in March 1941, one and a half months after his return to Tigayon. She knew Felicidad Molato, who was also a resident of Tigayon, but denied that Felicidad was ever married to Inocentes. 34

Taking judicial notice that World War II did not start until December 7, 1941 with the bombing of Pearl Harbor in Hawaii, the trial court was not convinced that Inocentes dies in March 1941. 35 The Japanese forces occupied Manila only on January 2, 1942; 36 thus, it stands to reason that Aklan was not occupied until then. It was only then that local residents were unwilling to bury their dead in the cemetery In Kalibo, because of the Japanese soldiers who were roaming around the area. 37

Furthermore, petitioner consistently used Inocentes' surname (Trinidad) without objection from private respondents — a presumptive proof of his status as Inocentes' legitimate child. 38

Preponderant evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party. 39Compared to the detailed (even if awkwardly written) ruling of the trial court, Respondent Court's holding that petitioner failed to prove his legitimate filiation to Inocentes is unconvincing. In determining where the preponderance of evidence lies, a trial court may consider all the facts and circumstances of the case, including the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts, the probability or improbability of their testimony, their interest or want thereof, and their personal credibility. 40 Applying this rule, the trial court significantly and convincingly held that the weight of evidence was in petitioner's favor. It declared:

. . . [O]ne thing sure is the fact that plaintiff had lived with defendants enjoying the status of being their nephew . . . before plaintiff [had] gotten married and had a family of his own where later on he started demanding for the partition of the share of his father, Inocentes. The fact that plaintiff had so lived with the defendants . . . is shown by the alleged family pictures, Exhibits A & B. These family pictures were taken at a time when plaintiff had not broached the idea of getting his father's share. . . . His demand for the partition of the share of his father provoked the ire of the defendants, thus, they disowned

him as their nephew. . . . In this case, the plaintiff enjoyed the continuous possession of a status of the child of the alleged father by the direct acts of the defendants themselves, which status was only broken when plaintiff demanded for the partition . . . as he was already having a family of his own. . . . .

However, the disowning by the defendant [private respondent herein], Lourdes Trinidad, of the plaintiff [petitioner herein] being her nephew is offset by the preponderance of evidence, among them the testimony of witness, Jovita Gerardo, who is the barrio captain. This witness was already 77 years old at the time she testified. Said witness had no reason to favor the plaintiff. She had been a PTA officer and the court sized her up as a civic minded person. She has nothing to gain in this case as compared to the witness for the defendants who are either cousin or nephew of Lourdes Trinidad who stands to gain in the case for defendant, Lourdes Trinidad, being already 75 years old, has no husband nor children. 41

Doctrinally, a collateral attack on filiation is not permitted. 42 Rather than rely on this axiom, petitioner chose to present evidence of his filiation and of his parents' marriage. Hence, there is no more need to rule on the application of this doctrine to petitioner's cause.

Third Issue: No Acquisitive Prescription

Respondent Court ruled that, because acquisitive prescription sets in when one of the interested parties openly and adversely occupies the property without recognizing the co-ownership, and because private respondents had been in possession — in the concept of owners — of the parcels of land in issue since Patricio died in 1940, they acquired ownership of these parcels.

The Court disagrees. Private respondents have not acquired ownership of the property in question by acquisitive prescription. In a co-ownership, the act of one benefits all the other co-owners, unless the former repudiates the co-ownership. 43 Thus, no prescription runs in favor of a co-owner or co-heir against his or her co-owners or co-heirs, so long as he or she expressly or impliedly recognizes the co-ownership.

In this particular case, it is undisputed that, prior to the action for partition, petitioner, in the concept of a co-owner, was receiving from private respondents his share of the produce of the land in dispute. Until such time, recognition of the co-ownership by private respondents was beyond question. There is no evidence, either, of their repudiation, if any, of the co-ownership of petitioner's father Inocentes over the land. Further, the titles of these pieces of land were still in their father's name. Although private respondents had possessed these parcels openly since 1940 and had not shared with petitioner the produce of the land during the pendency of this case, still, they manifested no repudiation of the co-ownership. In Mariategui vs. Court of Appeals, the Court held: 44

. . . Corollarily, prescription does not run again private respondents with respect to the filing of the action for partition so long as the heirs for whose benefit prescription is invoked, have not expressly or impliedly repudiated the co-ownership. In the other words, prescription of an action for partition does not lie except when the co-ownership is properly repudiated by the co-owner (Del Banco vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).

Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-owners absent a clear repudiation of co-ownership duly communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to demand partition is imprescriptible and cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 (1987). On the other hand, an action for partition may be seen to be at once an action for declaration of co-ownership and for segregation and conveyance of a determinate portion of the property involved (Rogue vs. IAC, 165 SCRA 118 [1988]).

Considering the foregoing, Respondent Court committed reversible error in holding that petitioner's claim over the land in dispute was time-barred.

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET ASIDE. The trial court's decision dated July 4, 1989 is REINSTATED. No costs.

SO ORDERED.