Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-49084 October 10, 1985 MATILDE ALAVADO in her own right and as natural guardian of IDA VILMA, IMELDA AN D ROLANDO, all surnamed ALAVADO petitioner, vs. CITY GOVERNMENT OF TACLOBAN (ENGINEER'S OFFICE AND WORKMEN'S COMPENSATION COMMIS SION, now the LABOR APPEALS AND REVIEW STAFF), respondents. Bonifacio L. Ramo for petitioner. Francisco C. Pedrosa for respondent City Government. Ernesto H. Cruz and Emilia Andres for respondent labor. CUEVAS, J.: Assailed in the instant petition is the decision 1 dated November 29, 1975 of th e defunct Workmen's Compensation Commission which dismissed petitioner's death b enefits claim for the death of her husband, Ricardo Alavado, a former employee o f the City Engineer's Office in Tacloban City. The evidence on record discloses that the late Ricardo A. Alavado was employed a s a carpenter-foreman by the City Engineer's Office, Tacloban City with a daily wage of P13.12. His last day of service was on April 19, 1974 since he was on le ave from April 23, 1974 to May 23, 1974. On August 6, 1974 when he reported for work, he was no longer under the supervision of respondent city. He suffered sev ere headache when he was supervising laborers on a construction project in Tolos a, Leyte. He died the following day of CVA-Cerebral Hemorrhage. Petitioner, the surviving spouse, filed a claim for death benefits in her own be half and in behalf of her minor children. Respondent city filed a notice of cont roversion of the claimant's right to compensation on December 10, 1974. On March 31, 1975, the hearing officer of Regional Office No. 9 in 'Tacloban City issued an award granting petitioner the sum of P5,200.00 as death benefits and P200.00 as reimbursement of burial expenses. Respondent city appealed. On November 29, 1975, a decision was rendered by the C ommission dismissing petitioner's death benefits claim, holding that xxx xxx xxx While it is true that the deceased has suffered from the ailment which resulted in his death while he wall the performance of his work as a Carpenter Foreman th is case must be denied on tile ground of lack of filiation between the herein cl aimant and the deceased. It is a settled rule that the status of dependency of a spouse arises from the fact that a marriage exists. A showing of marital status is essential. In this case the herein claimant Matilde Alvarado presented a mar riage certificate issued by the Sto. Nino Parish of Tacloban City as proof of he r marriage to t he deceased. This certification is not an authentic proof of mar ital status. To prove filiation as a spouse and, therefore claim as a dependent 'within the meaning of the Act, the suviving spouse-claimant must show either th e original of the marriage contract or the marriage certificate duly issued by t he local Civil Registrar of the place where the marriage was solemnized. In the absence thereof, as when the records are destroyed or not available due to fire or other causes, secondary evidence may be presented consisting of an affidavit of the claimant and at least three witnesses to the marriage cohabitation. As to the filiation of the children the same is establish by the presentation of the birth certificate. In this case only the baptismal certificates of all the child ren were presented in evidence by the claimant. A baptismal certificate is not s ufficient because it merely proves the fact that originated its execution, and t he date of the same, namely the administration of the sacrament of baptism on th e date specified. It is not an authentic proof as to the statements made therein respecting the kinsfolk of the person baptized and the presentation of such bap tismal certificate does not prove filiation for the purpose of establishing the status of dependency. Dissatisfied with respondent Commission's decision, claimant spouse filed the in

stant petition raising the following issues: I May a marriage certificate attesting to the fact that claimant and deceased were in fact married be considered satisfactory proof of marital status in the absen ce of any evidence to the contrary? and II Whether or not the respondent commission committed a grave abuse of discretion a mounting to lack of jurisdiction on the matter. The petition is impressed with merit. Its grant is therefore in order. While adm itting the compensability of the claim, respondent Commission nevertheless dismi ssed the same due to the alleged failure of petitioner claimant to prove that sh e was legally married to the deceased. In making the said pronouncement, respond ent Commission relied solely on the absence of a copy, or a certified copy of pe titioner's marriage contract with the deceased Alavado. What was submitted by he r is a mere copy issued by the church authorities where the questioned marriage was solemnized. 2 The said document shows that petitioner claimant and the decea sed were married on August 9, 1939. Since then, they lived together as man and w ife continuously for a period of 35 years in their conjugal abode up to the time of Alavado's death. Section 5(bb) of Rule 31 of the Rules of Court provides: Sec. 5. Disputable Presumptions.The following presumptions are satisfactory if un contradicted, but may be contradicted and overcome by other evidence. xxx xxx xxx That a man and a woman deporting themselves as husband and wife have entered int o a lawful contract of marriage. xxx xxx xxx Courts look upon this presumption with great favor and it could not be lightly r epelled. It may be rebutted only by cogent proof to the contrary or by evidence of a higher than ordinary quality. The rationale behind this presumption could b e found in the case of Adong vs. Cheong Seng Gee, 3 which runs this wise The basis of human society throughout the civilized world is that of marriage. M arriage in this jurisdiction is not only a civil contract but it is a new relati on, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Per sons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties qwere no t what they thus hold themselves out as being, they would be living in the const ant violation of decency and of law. A presumption established by our Code of Ci vil Procedure is 'that a man and a woman deporting themselves as husband and wif e have entered into a lawful contract of marriage. (Sec. 334, No. 28) Semper pra esumitur pro matrimonio Always presume marriage. So much so that once a man and a woman have lived as husband and wife and such r elationship is not denied nor contradicted the presumption of their being marrie d must be admitted as a fact. 4 Likewise, the declaration of the husband is competent evidence to show the fact of marriage. Similarly a witness who was present at the time the marriage was so lemnized, is a competent witness to establish the existence of said marriage. 5 Indeed, public and open cohabitation as husband and wife, birth and baptismal ce rtificates of children born unto them after the celebration of the questioned ma rriage, and a statement of such marriage in subsequent document were held to be competent evidence as proof of said marriage . 6 A review of the records of this case failed to disclose any evidence whatsoever which will overthrow the aforementioned presumption in favor of claimant's marri age to the deceased Alavado. But what wrote finish to this issue-legality of the claimant's marriage to the deceased is the marriage certificate submitted later by the claimant. 7 In the said document. the contracting parties appeared to be Ricardo Alavado and Matilde Valdesco The marriage was solemnized on August 19, 1939 by Fr. Ignacio Mora, priest of Tacloban, Leyte. It is certified to be a tru e copy of the original issued by the local Civil Registrar of the City of Taclob

an. The said document indubitably establishes claimant marriage to the deceased Alavado, In the answer filed by City Fiscal Pedroza for respondent City, he averred that Alavado was on longer an employee of respondent city government at the time of h is death, hence the city is not liable to pay compensation benefits. We find respondent city's contention untenable. Such a defense should have been raised before the Commission within the period prescribed by the Workmen's Compe nsation Act 8 within fourteen (14) days from death or within ten (10) days from knowledge thereof. Having failed to controvert the said claim within the prescri bed reglementary period, its compensability is now beyond challenge. Respondent city's failure to controvert the claim within the aforesaid period is a waiver o f its right to do so. 9 The Workmen's Compensation Act, being a social legislation, aimed at protecting the rights of the workingmen in consonance with the social justice guarantee of the Constitution, its provision must be interpreted liberally in favor of labore rs or workers. This basic mandate should guide all tribunals and agencies in the resolution of cases of this nature more specially those involving poor claimant s who have come to court as pauper litigants. WHEREFORE, the decision dated November 29, 1979 of the defunct Workmen's Compens ation Commission is hereby SET ASIDE. The award of the Hearing Officer of Region al Office No. 9 of Tacloban City is REINSTATED. SO ORDERED. Makasiar, C.J., Concep G.R. No. L-28394 November 26, 1970 PEDRO GAYON vs. SILVESTRE GAYON, ET., AL SECOND DIVISION [G.R. No. L-28394. November 26, 1970.] PEDRO GAYON, plaintiff-appellant, vs. SILVESTRE GAYON and GENOVEVA DE GAYON, def endants-appellees. German M. Lopez for plaintiff-appellant. Pedro R. Davila for defendants-appellees. D E C I S I O N CONCEPCION, C.J p: Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Inst ance of Iloilo dismissing his complaint in Civil Case. No. 7334 thereof. The records show that on July 31, 1967, Pedro Gayon filed said complaint against the spouses Silvestre Gayon and Genoveva de Gayon, alleging substantially that, on October 1, 1952, said spouses executed a deed copy of which was attached to the complaint, as Annex "A" whereby they sold to Pedro Gelera, for the sum of P5 00.00, a parcel of unregistered land therein described, and located in the barri o of Cabubugan, municipality of Guimbal, province of Iloilo, including the impro vements thereon, subject to redemption within five (5) years or not later than O ctober 1, 1957; that said right of redemption had not been exercised by Silvestr e Gayon, Genoveva de Gayon, or any of their heirs or successors, despite the exp iration of the period therefor; that said Pedro Gelera and his wife Estelita Dam aso had, by virtue of a deed of sale copy of which was attached to the complaint , as Annex "B" dated March 21, 1961, sold the aforementioned land to plaintiff P edro Gayon for the sum of P614.00; that plaintiff had, since 1961, introduced th ereon improvements worth P1,000; that he had, moreover, fully paid the taxes on said property up to 1967; and that Articles 1606 and 1616 of our Civil Code requ ire a judicial decree for the consolidation of the title in and to a land acquir ed through a conditional sale, and, accordingly, praying that an order be issued in plaintiff's favor for the consolidation of ownership in and to the aforement ioned property. In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre G ayon, died on January 6, 1954, long before the institution of this case; that An nex "A" to the complaint is fictitious, for the signature thereon purporting to be her signature is not hers; that neither she nor her deceased husband had ever executed "any document of whatever nature in plaintiff's favor"; that the compl aint is malicious and had embarrassed her and her children; that the heirs of Si

lvestre Gayon had to "employ the services of counsel for a fee of P500.00 and in curred expenses of at least P200.00"; and that being a brother of the deceased S ilvestre Gayon, plaintiff "did not exert efforts for the amicable settlement of the case" before filing his complaint. She prayed, therefore, that the same be d ismissed and that plaintiff be sentenced to pay damages. Soon later, she filed a motion to dismiss, reproducing substantially the avermen ts made in her answer and stressing that, in view of the death of Silvestre Gayo n, there is a "necessity of amending the complaint to suit the genuine facts on record." Presently, or on September 16, 1967, the lower court issued the order a ppealed from, reading: "Considering the motion to dismiss and it appearing from Exhibit 'A' annexed to the complaint that Silvestre Gayon is the absolute owner of the land in question , and considering the fact that Silvestre Gayon is now dead and his wife Genovev a de Gayon has nothing to do with the land subject of plaintiff's complaint, as prayed for, this case is hereby dismissed, without pronouncement as to costs." 1 A reconsideration of this order having been denied, plaintiff interposed the pre sent appeal, which is well taken. Said order is manifestly erroneous and must be set aside. To begin with, it is n ot true that Mrs. Gayon "has nothing to do with the land subject of plaintiff's complaint." As the widow of Silvestre Gayon, she is one of his compulsory heirs 2 and has, accordingly, an interest in the property in question. Moreover, her o wn motion to dismiss indicated merely "a necessity of amending the complaint," t o the end that the other successors in interest of Silvestre Gayon, instead of t he latter, be made parties in this case. In her opposition to the aforesaid moti on for reconsideration of the plaintiff, Mrs. Gayon alleged, inter alia, that th e "heirs cannot represent the dead defendant, unless there is a declaration of h eirship." Inasmuch, however, as succession takes place, by operation of law, "fr om the moment of the death of the decedent" 3 and "(t)he inheritance includes al l the property, rights and obligations of a person which are not extinguished by his death," 4 it follows that if his heirs were included as defendants in this case, they would be sued, not as "representatives" of the decedent, but as owner s of an aliquot interest in the property in question, even if the precise extent of their interest may still be undetermined and they have derived it from the d ecent. Hence, they may be sued without a previous declaration of heirship, provi ded there is no pending special proceeding for the settlement of the estate of t he decedent. 5 As regards plaintiff's failure to seek a compromise, as an alleged obstacle to t he present case, Art. 222 of our Civil Code provides: "No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but th at the same have failed, subject to the limitations in article 2035." It is noteworthy that the impediment arising from this provision applies to suit s "filed or maintained between members of the same family." This phrase, "member s of the same family," should, however, be construed in the light of Art. 217 of the same Code, pursuant to which: "Family relations shall include those: (1) Between husband and wife; (2) Between parent and child; (3) Among other ascendants and their descendants; (4) Among brothers and sisters." Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews an d/or nieces. Inasmuch as none of them is included in the enumeration contained i n said Art. 217 which should be construed strictly, it being an exception to the general rule and Silvestre Gayon must necessarily be excluded as party in the c ase at bar, it follows that the same does not come within the purview of Art. 22 2, and plaintiff's failure to seek a compromise before filing the complaint does not bar the same. WHEREFORE, the order appealed from is hereby set aside and the case remanded to the lower court for the inclusion, as defendant or defendants therein, of the ad

ministrator or executor of the estate of Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for further proceedings, not inconsistent wit h this decision, with the costs of this instance against defendant-appellee, Gen oveva de Gayon. It is so ordered. Reyes, J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Vi llamor, JJ., concur. Dizon and Makasiar, JJ., are on leave. Footnotes 1. Record on Appeal, p. 14. 2. Art. 87 (3) of our Civil Code. 3. Arts. 774 and 777 of our Civil Code; Fule v. Fule, 46 Phil. 317; Cuevas v. Abesarnis, 71 Phil. 147; Villaluz v. Neme, L-14676, Jan. 31, 1963; Aznar v. D uncan, L-24365, June 30, 1966; Phil. Banking Corp. v. Lui She, L-17587, Sept. 12 , 1967; Hrs. of Pedro Reganon v. Imperial, L-24434, Jan. 17, 1968. 4. Art. 776 of our Civil Code. 5. See Hernandez v. Padua, 14 Phil. 194; Uy Coque v. Sioca, 45 Phil. 430; B onnevie v. Pardo, 59 Phil. 486; Government v. Serafica, 61 Phil. 93; De Vera v. Galauran, 67 Phil. 213, 214; Atun v. Nuez, 97 Phil. 762, 765; Velarde v. Paez, 10 1 Phil. 376, 382; Magdalera v. Benedicto, L-9105, Feb. 28, 1958. C o p y r i g h t I n c. 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a,

G.R. No. L-25609 November 27, 1968 MARGARET ANN WAINRIGHT VERSOZA, ET., AL. vs. JOSE MA. VERSOZA EN BANC [G.R. No. L-25609. November 27, 1968.] MARGARET ANN WAINRIGHT VERSOZA, JOSE MA. VERSOZA, JR., CHARLES JOHN VERSOZA and VIRGINIA FELICE VERSOZA, plaintiffs-appellants, vs. JOSE MA. VERSOZA, defendantappellee. William H. Quasha & Associates for plaintiffs-appellants. Deogracias T. Reyes & Associates and Jose M. Luison for defendant-appellee. SYLLABUS 1. CIVIL LAW; FAMILY RELATIONS; SUIT BETWEEN MEMBERS OF THE SAME FAMILY; AR TICLE 222, CIVIL CODE, CONSTRUED IN RELATION TO SECTION 1(j), RULE 16, RULES OF COURT; MEANING OF "NO SUIT SHALL BE FILED OR MAINTAINED"; THE ATTEMPT TO COMPROM ISE AND INABILITY TO ARRIVE THEREAT IS A CONDITION PRECEDENT TO THE FILING OF TH E SUIT; EXCEPTION. The text of Article 222 of the Civil Code is this: "No suit s hall be filed or maintained between members of the same family unless it should appear that earnest towards a compromise have been made, but that the same have failed, subject to the limitations in Article 2035" (See Art. 217, Civil Code, r egarding the scope of "family relations"). The requirement in Article 222 has be en given more teeth by Section 1(j), Rule 16 of the Rules of Court, which states as ground for a motion to dismiss that "(t)he suit is between members of the sa me family and no earnest efforts towards a compromise has been made." The cumula tive impact of the statute and the rule just adverted to is that earnest efforts to reach a compromise and failure thereof must ordinarily be alleged in the com plaint. The Civil Code provision that "(n)o suit shall be filed or maintained" s imply means that the attempt to compromise and inability to arrive thereat is a condition precedent to the filing of the suit. As such it is a part of plaintiff s' cause of action. Justice J.B.L. Reyes and Judge Puno bolstered this view with their statement that "(t)he terms of Article 222 require express allegation of an attempt to compromise and its failure; otherwise there is no cause of action stated" (Outline of Philippine Civil Law, 1956 ed., Vol. I, p. 222). The foregoi ng, however, is but a statement of the general rule. Future support operates out side the ambit thereof. 2. ID.; ID.; ID.; ACTION FOR SUPPORT; RIGHT TO SUPPORT IS NOT SUSCEPTIBLE O

F FUTURE TRANSACTION BUT SUPPORT IN ARREARS IS A DIFFERENT THING ALTOGETHER. Sup port is, amongst others, everything that is indispensable for sustenance (Art. 2 90, Civil Code). The right to support cannot be: (1) renounced; (2) transmitted to third persons; nor (3) compensated with what the recipient owes the obligor ( Art. 301, Civil Code). Compensation may not even be set up against a creditor wh o has a claim for support due by gratuitous title (Par. 2, Art. 1287, Civil Code ). Of course, support in arrears is a different thing altogether. It may be comp ensated, renounced and transmitted by onerous or gratuitous title (Par 2, Art. 3 01, Civil Code). In Coral v. Gallego, the Court of Appeals has had occasion to d eclare that the right to support is not susceptible of future transactions under Article 1814 of the old Civil Code (38 O.G. 3158). Because compromise on future support is proscribed (Advincula v. Advincula, L-19065, Jan. 31, 1964; Velayo v . Velayo, L-23528, July 21, 1967; Velayo v. Velayo, L-14541, March 30, 1960), th e conclusion is irresistible that an attempt at compromise of future support and failure thereof is not a condition precedent to the filing of a suit therefor a nd it need not be alleged in the complaint. In other words, since no valid compr omise is possible on the issue of future support, a showing of previous efforts to compromise future support would be superfluous (Mendoza v. Court of Appeals, 1967B Phil. 82). 3. ID.; ID.; ID.; QUESTIONS OR ISSUES NOT SUSCEPTIBLE OF COMPROMISE; ARTICL E 222 AND ARTICLE 2035, CIVIL CODE, COMPARED AND DIFFERENTIATED. Article 2035 of the Civil Code provides that no compromise upon the following questions shall b e valid: "(1) The civil status of persons; (2) The validity of a marriage or a l egal separation; (3) Any ground for legal separation; (4) Future support; (5) Th e jurisdiction of courts; and (6) Future legitime." It thus appears that Article 2035 has roots deeper than Article 222. For, whereas Article 222 is inserted as a new concept in the present Code in a laudable effort to obviate a sad and tra gic spectacle occasioned by a litigation between members of the same family, Art icle 2035 firmly maintains the ancient injunction against compromise on matters involving future support. And this is as it should be. For, even as Article 222 requires earnest efforts at a compromise and inability to reach one as a conditi on precedent to the finding and maintenance of a suit "between the members of th e same family," that same Article took good care to add: "subject to the limitat ions in Article 2035." 4. REMEDIAL LAW; ACTIONS; COMPLAINT; AMENDMENT OF; WHEN IT MAY BE REFUSED. After a responsive pleading has been served, amendments may be made only upon le ave of court (Secs. 2 and 3, Rule 10, Rules of Court). A proposed amendment may be refused when it confers jurisdiction on the court in which it is filed, if th e cause of action originally set forth was not within that court's jurisdiction (Rosario v. Carandang, 96 Phil. 845; Campos Rueda Corp. v. Bautista, L-18453, Se pt. 29, 1962, cited in Tamayo v. San Miguel Brewery, Inc., L-17749, Jan. 31, 196 4). An amendment may also be refused when the cause of action is substantially a ltered (Sec. 3, Rule 10, Rules of Court; Arches v. Villaruz, 102 Phil. 661. See also Guirao v. Ver, 16 SCRA 638; and Shaffer v. Palma, 1968A Phild. 767). 5. ID.; ID.; ID.; ID.; AMENDMENT OF COMPLAINT IN CASE AT BAR SHOULD HAVE BE EN ALLOWED. The alleged defect (in the case at bar) is that the complaint does n ot state a cause of action. The proposed amendment seeks to complete it. An amen dment to the effect that the requirements of Article 222 have been complied with does not confer jurisdiction upon the lower court. With or without this amendme nt, the subject-matter of the action remains as one for support, custody of chil dren, and damages, cognizable by the court below. It follows, therefore, that th e lower court, in the interest of justice, should have allowed the plaintiffs to amend their complaint instead of granting the motion to dismiss. This it could have done under Section 3 of Rule 16 of the Rules of Court. For, the defect in t he complaint is curable. D E C I S I O N SANCHEZ, J p: The question before us, framed in legal setting, is the correctness of the lower court's order dismissing, without prejudice, the complaint seeking, inter alia, future support upon the ground that there is no allegation therein that earnest

efforts toward a compromise were made but that the same have failed, in infring ement of Article 222 of the Civil Code. With this problem in mind, we turn to the pivotal facts. On March 4, 1964, a verified complaint, later amended, for P1,500.00 monthly sup port, support in arrears, and damages, and custody of children, with a petition for support pendente lite 1 was lodged against Jose Ma. Versoza by his wife, Mar garet Ann Wainright Versoza, and their three minor children, Jose Ma. Versoza, J r., Charles John Versoza and Virginia Felice Versoza. Reasons given are that def endant has abandoned plaintiffs without providing for their support and maintain s illicit relations with another woman. Defendant's answer attacked the complaint on the claim that it is premature and/ or that it states no cause of action. Because, the complaint which involves memb ers of the same family 2 does not allege earnest efforts toward a compromise bef ore the complaint was filed as set forth in the statute mentioned at the start o f this opinion. Then followed defendant's motion for preliminary hearing on juri sdiction. Defendant there argued that compliance with Article 222 of the Civil C ode aforesaid was a condition precedent and should have been alleged in the comp laint. On February 22, 1965, following appropriate proceedings, the lower court came ou t with its first appealed order. It there resolved to dismiss the complaint with out prejudice, upon the ground that there was no showing that efforts have been exerted to settle the case amicably before suit was started. Plaintiffs moved to reconsider. Annexed to its motion was an affidavit of their counsel to the effect that before court action was taken efforts were made to se ttle the case amicably, but which were fruitless. On March 30,1965, the lower court brushed aside this motion. In an effort to conform to the position taken by the lower court, plaintiffs fil ed a second motion for the reconsideration of the orders of February 22, and Mar ch 30, 1965. Plaintiffs at the same time sought admission of their second amende d complaint in which the required averment was made to obviate the objection to their complaint. They there alleged that before starting the present suit, they sought amicable settlement but were unsuccessful. On June 22, 1965, the second motion for reconsideration was likewise denied by t he lower court "(f)or lack of merit." The dismissal orders are now the subject of appeal. 1. Plaintiffs argue that the Civil Code requirement of attempt to reach a c ompromise and of its failure need not be alleged in the complaint. They claim th at some such fact may be proved either at the main hearing or at the preliminary hearing on the motion to dismiss. The text of Article 222 of the Civil Code is this: "No suit shall be filed or ma intained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subj ect to the limitations in article 2035. 3 The requirement in Article 222 has bee n given more teeth by Section 1(j), Rule 16 of the Rules of Court, which states as ground for a motion to dismiss that "(t)he suit is between members of the sam e family and no earnest efforts towards a compromise have been made." The cumulative impact of the statute and the rule just adverted to is that earne st efforts to reach a compromise and failure thereof must ordinarily be alleged in the complaint. The Civil Code provision that "(n)o suit shall be filed or mai ntained" simply means that the attempt to compromise and inability to arrive the reat is a condition precedent to the filing of the suit. As such it is a part of plaintiffs' cause of action. Justice J.B.L. Reyes and Judge Puno 4 bolstered th is view with their statement that "(t)he terms of article 222 require express al legation of an attempt to compromise and its failure; otherwise there is no caus e of action stated." 2. The foregoing, however, is but a statement of the general rule. Future s upport operates outside the ambit thereof. Mucius Scaevola 5 expresses the view that no objection can be made to a compromise "cuando el derecho es renunciable, eminentemente privado." Scaevola, however, emphasizes: "(P)ero el derecho a la vida no lo es." This brings us to the legal provision Scaevola commented upon, n

amely, Article 1814 of the Spanish Civil Code of 1889, which reads: "Art. 1814. No puede transigir sobre el estado civil de las personas, ni sob re las cuestiones matrimoniales, ni sobre alimentos futuros." 6 So it is, that C olin y Capitant 7 observed: "Una cosa es que la transaccion sea en principio un acto licito, con exclusion de aquellas materias a que se refiere el art. 1814 de l Codigo civil." The philosophy behind the rule is best expressed by Manresa 8 in the following t erms: "Aunque el Cdigo no lo diga expresamente, desde luego se comprende que, por regla general, puedan ser objeto de transaccion todas las cosas que estan en el comer cio de los hombres, siempre que no se halle prohibido por la ley. Esta es la reg la general; pero hay casos en que. por razones de moralidad o por otras consider aciones no menos atendibles, no puede admitirse la transaccin, como sucede, por e jemplo, en materia de estado civil de las personas, de cuestiones matrimoniales y de allmentos, y otros que tampoco son susceptibles de transaccion por afectar al inters publico o social y no estar en el dominio o en la potestad de los parti culares el sustraerlos, a los efectos rigurosos de la ley, segn ocurre con los de litos y dems transgresiones pnnibles del derecho. xxx xxx xxx Rstanos ocuparnos de otra prohibicin impuesta tambin por el Art. 1814 ensu ltima par te. Nos referimos a la establecida por el mismo respecto de la ransaccion sobre los alimentos futuros; prohibicion que se funda en poderosas razones de moralida d que no pueden ocultarse, ni pasar desapercibidas para nadie que detenidamente medite sobre ello. En efecto, en rigor de principios, la ley concede los alimentos en razn a la nece sidad que de ellos tiene el alimentista para vivir, y es evidente que transigir sobre ellos, equivaldria a renunciar en parte a la vida, como ha dicho un autor ('Coleccion de las Instituciones juridicas politicas de los pueblas modernos,' t omo 13, pag. 792); y si no lefueran necesarios pudiendo por tal motivo renunciar los, no cabria tampoco transaccion, porque no tendria derecho a percibirlos." The foregoing but emphasizes the concept of support. For, support is, amongst ot hers, everything that is indispensable for sustenance. 9 The right to support ca nnot be: (1) renounced; (2) transmitted to third persons; nor (3) compensated wi th what the recipient owes the obligor. 10 Compensation may not even be set up against a creditor who has a claim for support due by gratuitous title. 11 Of co urse, support in arrears is a different thing altogether. It may be compensated, renounced and transmitted by onerous or gratuitous title. 12 In Coral vs. Gall ego, 13 the Court of Appeals has had occasion to declare that the right to supp ort is not susceptible of future transactions under Article 1814 of the old Civi l Code. Article 1814 of the Spanish Civil Code was reproduced in Article 2035 of the new Civil Code in an expanded form as follows: "ART. 2035. No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime." It thus appears that Article 2035 has roots deeper than Article 222. For, wherea s Article 222 is inserted as a new concept in the present Code in a laudable eff ort to obviate a sad and tragic spectacle occasioned by a litigation between mem bers of the same family, Article 2035 firmly maintains the ancient injunction ag ainst compromise on matters involving future support. And this is as it should b e. For, even as Article 222 requires earnest efforts at a compromise and inabili ty to reach one as a condition precedent to the filing and maintenance of a suit "between the members of the same family," that same article took good care to a dd. "subject to the limitations in Article 2035." Plaintiffs ask for support past, present and future. There is also the prayer fo r alimony pendente lite. Since the present action also revolves on the right to

future support and because compromise on future support is proscribed, 14 then t he conclusion is irresistible that an attempt at compromise of future support an d failure thereof is not a condition precedent to the filing of the present suit . It need not be alleged in the complaint. The very opening statement in Article 2035 unmistakably confirms our view. It says that "(n)o compromise upon the fol lowing questions shall be valid: . . . (4) Future support." 15 We cannot afford to give a loose view to this controlling statute. We may not disregard it. To d o so is to misread the law, to write off an explicit congressional will, to cros s the line which circumscribes courts of justice and step into legislative area. Mendoza vs. Court of Appeals, 1967B Phild. 82, is to be read as controlling here . In that case, the wife filed in the Court of First Instance of Nueva Ecija an action for support against her husband who was then employed in a hospital in th e United States. Defendant, by counsel, moved to dismiss, for the reason that th e complaint failed to state a cause of action "because it contained no allegatio n that earnest efforts toward a compromise have been made before the filing of t he suit, and invoking the provisions of Article 222 of the Civil Code of the Phi lippines." The Court of First Instance refused to entertain the motion to dismis s. Defendant petitioned the Court of Appeals for a writ of prohibition. The appe llate court denied the writ prayed for. Defendant petitioned this Court for revi ew. We affirmed. In that first judicial test, this Court, speaking thru Mr. Just ice J.B.L. Reyes, held: "While we agree that petitioner's position represents a correct statement of the general rule on the matter, we are nevertheless constrained to hold that the Co urt of Appeals and the Court of First Instance committed no error in refusing to dismiss the complaint, for on its face, the same involved a claim for future su pport that under Article 2035 of the Civil Code of the Philippines can not be su bject of a valid compromise, and is, therefore, outside the sphere of applicatio n of Article 222 of the Code upon which petitioner relies. This appears from the last proviso of said Article 222, already quoted. xxx xxx xxx Since no valid compromise is possible on these issues, a showing of previous eff orts to compromise them would be superfluous. It may be that the complaint asks for both future support and support in arrears , as petitioner contends. But, the possibility of compromise on the latter does not negate the existence of a valid cause of action for future support, to which Article 222 can not apply." 16 Although the complaint herein seeks custody of minor children and damages as wel l, the prime object is support. And, of importance, of course, is future support . The reliefs sought are intimately related to each other. They all spring from the fact that husband and wife are separated from each other. So it is, that exp ediency dictates that they be, as they are now, placed together in one complaint . For, multiplicity of suits is not favored in law. Since one of the causes of a ction, that for future support, may be lodged in court without the compromise re quisite in Article 222 of the Civil Code, the complaint herein, as we have ruled in Mendoza, may not be dismissed. We, accordingly, hold that the lower court erred in dismissing the complaint. 3. But even on the assumption that it was error on the part of plaintiffs t o have failed to so allege, plaintiffs should not be barred from making an amend ment to correct it. Parenthetically, after a responsive pleading has been served, amendments may be made only upon leave of court. 17 But, in the furtherance of justice, the court "should be liberal in allowing amendments to pleadings to avoid multiplicity of suits and in order that the real controversies between the parties are presented , their rights determined and the case decided on the merits without unnecessary delay." 18 Thus, the instances wherein this Court considered allowance of an amendment not justified are limited. As defendant correctly points out, a proposed amendment m ay be refused when it confers jurisdiction on the court in which it is filed, if the cause of action originally set forth was not within that Court's jurisdicti on. 19 An amendment may also be refused when the cause of action is substantiall

y altered. 20 A typical case which merited refusal of an amendment is Rosario vs. Carandang, s upra. There, the original complaint was one for forcible entry and detainer over which the Court of First Instance, where the complaint was filed, had no jurisd iction. The amendment sought by plaintiff was the inclusion of an allegation tha t the defendants were claiming ownership over the land in dispute. The proposed amendment would thus convert the case from one of forcible entry and detainer in to one of recovery of possession, which is within the jurisdiction of the Court of First Instance. The court properly denied the amendment. The alleged defect is that the present complaint does not state a cause of actio n. The proposed amendment seeks to complete it. An amendment to the effect that the requirements of Article 222 have been complied with does not confer jurisdic tion upon the lower court. With or without this amendment, the subject-matter of the action remains as one for support, custody of children, and damages, cogniz able by the court below. To illustrate, Tamayo vs. San Miguel Brewery, Inc., 21 allowed an amendment whi ch "merely corrected a defect in the allegation of plaintiff-appellant's cause o f action, because as it then stood, the original complaint stated no cause of ac tion." We there ruled out as inapplicable the holding in Campos Rueda Corporatio n vs. Bautista, supra, that an amendment cannot be made so as to confer jurisdic tion on the court. The lower court, in the interest of justice, should have allowed plaintiffs to a mend their complaint instead of granting the motion to dismiss. This it could ha ve done under Section 3 of Rule 16 of the Rules of Court. For, the defect in the complaint is curable. For the reasons given (1) the orders of the lower court of February 22, 1965, March 30, 1965, and June 22, 1965 are hereby set aside; and (2) the record of this case is hereby remanded to the Court of First Instanc e of Rizal, Quezon City, Branch IX, with instructions to admit the second amende d complaint and to conduct further proceedings not inconsistent with the opinion herein. Cost against defendant. SO ORDERED. Concepcion, C.J., .Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Ruiz Castro, Fern ando and Capistrano, JJ., concur. Footnotes 1. Civil Case No. Q-7870, Court of First Instance of Rizal, Quezon City, Br anch IX, entitled "Margaret Ann Wainright Versoza, et al., Plaintiffs, versus Jo se Ma. Versoza, Defendant," for support and damages. 2. Article 217 of the Civil Code provides that family relations shall inclu de those (1) between husband and wife; (2) between parent and child; (3) among o ther ascendants and their descendants; and (4) among brothers and sisters. Franc isco, Comments on the Revised Rules of Court, Vol. I, 1965 ed., pp. 694-695. 3. Italics supplied. 4. Outline of Philippine Civil Law, 1956 ed., Vol. I, p. 222. 5. Codigo Civil, 1953, Tomo XXVIII, pag. 347. 6. Italics supplied. 7. Curso Elemental de Derecho Civil, 1955, Tomo IV, pag. 1001; italics supp lied. 8. Comentarios al Codigo Civil Espaol, 1931, Tomo XII, pags. 103, 107; itali cs supplied. 9. Article 290, Civil Code. 10. Article 301, Civil Code. 11. Par. 2, Article 1287, Civil Code. 12. Par. 2, Article 301, Civil Code. 13. 38 O.G. 3158, cited in Padilla, Civil Code Anno., 1956 ed., Vol. IV, pp. 648-649. 14. Advincula vs. Advincula, L-19065, January 31, 1964, citing Coral vs. Gal lego, supra. See also: Velayo vs. Velayo, L-23528, July 21, 1967, and Velayo vs.

Velayo, L-14541, March 30, 1960. 15. Italics supplied. 16. At pp. 84, 85; italics supplied. 17. Sections 2 and 3, Rule 10, Rules of Court. 18. Shaffer vs. Palma, 1968A Phild. 767, 777. 19. Rosario vs. Carandang, 96 Phil. 845, 850, 851; Campos Rueda Corporation vs. Bautista, L-18453, September 29, 1962, cited in Tamayo vs. San Miguel Brewer y, Inc., L-17749, January 31, 1964. 20. Section 3, Rule 10, Rules of Court; Arches vs. Villaruz, 102 Phil. 661, 668. See: Guirao vs. Ver, 16 Supreme Court Reports Anno. 638, 640-641; and Shaff er vs. Palma, supra. 21. Supra; italics supplied. C o p y r i g h t I n c. 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a,

G.R. No. 86355 May 31, 1990 JOSE MODEQUILLO, petitioner, vs. HON. AUGUSTO V. BREVA FRANCISCO SALINAS, FLORIPER ABELLAN-SALINAS, JUANITO CULAN -CULAN and DEPUTY SHERIFF FERNANDO PLATA respondents. Josefina Brandares-Almazan for petitioner. ABC Law Offices for private respondents. GANCAYCO, J.: The issue in this petition is whether or not a final judgment of the Court of Ap peals in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code. The facts are undisputed. On January 29, 1988, a judgment was rendered by the Court of Appeals in CA-G.R. CV No. 09218 entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al.," t he dispositive part of which read as follows: WHEREFORE, the decision under appeal should be, as it is hereby, reversed and se t aside. Judgment is hereby rendered finding the defendants-appellees Jose Modeq uillo and Benito Malubay jointly and severally liable to plaintiffs-appellants a s hereinbelow set forth. Accordingly, defendants-appellees are ordered to pay jo intly and severally to: 1. Plaintiffs-appellants, the Salinas spouses: a. the amount of P30,000.00 by way of compensation for the death of their son Au die Salinas; b. P10,000.00 for the loss of earnings by reason of the death of said Audie Sali nas; c. the sum of P5,000.00 as burial expenses of Audie Salinas; and d. the sum of P5,000.00 by way of moral damages. 2. Plaintiffs-appellants Culan-Culan: a. the sum of P5,000.00 for hospitalization expenses of Renato Culan- Culan; and b. P5,000.00 for moral damages. 3. Both plaintiff-appellants Salinas and Culan-Culan, P7,000.00 for attorney's f ees and litigation expenses. All counterclaims and other claims are hereby dismissed. 1 The said judgment having become final and executory, a writ of execution was iss ued by the Regional Trial Court of Davao City to satisfy the said judgment on th e goods and chattels of the defendants Jose Modequillo and Benito Malubay at Mal alag, Davao del Sur. On July 7, 1988, the sheriff levied on a parcel of residential land located at P oblacion Malalag, Davao del Sur containing an area of 600 square meters with a m arket value of P34,550.00 and assessed value of P7,570.00 per Tax Declaration No . 87008-01359, registered in the name of Jose Modequillo in the office of the Pr

ovincial Assessor of Davao del Sur; and a parcel of agricultural land located at Dalagbong Bulacan, Malalag, Davao del Sur containing an area of 3 hectares with a market value of P24,130.00 and assessed value of P9,650.00 per Tax Declaratio n No. 87-08-01848 registered in the name of Jose Modequillo in the office of the Provincial Assessor of Davao del Sur. 2 A motion to quash and/or to set aside levy of execution was filed by defendant J ose Modequillo alleging therein that the residential land located at Poblacion M alalag is where the family home is built since 1969 prior to the commencement of this case and as such is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code except for liabilities mentioned in Art icle 155 thereof, and that the judgment debt sought to be enforced against the f amily home of defendant is not one of those enumerated under Article 155 of the Family Code. As to the agricultural land although it is declared in the name of defendant it is alleged to be still part of the public land and the transfer in his favor by the original possessor and applicant who was a member of a cultural minority was not approved by the proper government agency. An opposition theret o was filed by the plaintiffs. In an order dated August 26, 1988, the trial court denied the motion. A motion f or reconsideration thereof was filed by defendant and this was denied for lack o f merit on September 2, 1988. Hence, the herein petition for review on certiorari wherein it is alleged that t he trial court erred and acted in excess of its jurisdiction in denying petition er's motion to quash and/or to set aside levy on the properties and in denying p etitioner' motion for reconsideration of the order dated August 26, 1988. Petiti oner contends that only a question of law is involved in this petition. He asser ts that the residential house and lot was first occupied as his family residence in 1969 and was duly constituted as a family home under the Family Code which t ook effect on August 4, 1988. Thus, petitioner argues that the said residential house and lot is exempt from payment of the obligation enumerated in Article 155 of the Family Code; and that the decision in this case pertaining to damages ar ising from a vehicular accident took place on March 16, 1976 and which became fi nal in 1988 is not one of those instances enumerated under Article 155 of the Fa mily Code when the family home may be levied upon and sold on execution. It is f urther alleged that the trial court erred in holding that the said house and lot became a family home only on August 4, 1988 when the Family Code became effecti ve, and that the Family Code cannot be interpreted in such a way that all family residences are deemed to have been constituted as family homes at the time of t heir occupancy prior to the effectivity of the said Code and that they are exemp t from execution for the payment of obligations incurred before the effectivity of said Code; and that it also erred when it declared that Article 162 of the Fa mily Code does not state that the provisions of Chapter 2, Title V have a retroa ctive effect. Articles 152 and 153 of the Family Code provide as follows: Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their famil y reside, and the land on which it is situated. Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home conti nues to be such and is exempt from execution, forced sale or attachment except a s hereinafter provided and to the extent of the value allowed by law. Under the Family Code, a family home is deemed constituted on a house and lot fr om the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the fa mily actually resides in the premises, it is, therefore, a family home as contem plated by law. Thus, the creditors should take the necessary precautions to prot ect their interest before extending credit to the spouses or head of the family who owns the home. Article 155 of the Family Code also provides as follows: Art. 155. The family home shall be exempt from execution, forced sale or attachm

ent except: (1) For non-payment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitu tion; and (4) For debts due to laborers, mechanics, architects, builders, material men and others who have rendered service or furnished material for the construction of the building. The exemption provided as aforestated is effective from the time of the constitu tion of the family home as such, and lasts so long as any of its beneficiaries a ctually resides therein. In the present case, the residential house and lot of petitioner was not constit uted as a family home whether judicially or extrajudicially under the Civil Code . It became a family home by operation of law only under Article 153 of the Fami ly Code. It is deemed constituted as a family home upon the effectivity of the F amily Code on August 3, 1988 not August 4, one year after its publication in the Manila Chronicle on August 4, 1987 (1988 being a leap year). The contention of petitioner that it should be considered a family home from the time it was occupied by petitioner and his family in 1969 is not well- taken. U nder Article 162 of the Family Code, it is provided that "the provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable." It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family homes at the time of their occupation prior to the ef fectivity of the Family Code and are exempt from execution for the payment of ob ligations incurred before the effectivity of the Family Code. Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code, are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not s tate that the provisions of Chapter 2, Title V have a retroactive effect. Is the family home of petitioner exempt from execution of the money judgment afo recited No. The debt or liability which was the basis of the judgment arose or w as incurred at the time of the vehicular accident on March 16, 1976 and the mone y judgment arising therefrom was rendered by the appellate court on January 29, 1988. Both preceded the effectivity of the Family Code on August 3, 1988. This c ase does not fall under the exemptions from execution provided in the Family Cod e. As to the agricultural land subject of the execution, the trial court correctly ruled that the levy to be made by the sheriff shall be on whatever rights the pe titioner may have on the land. WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to c osts. SO ORDERED. Narvasa (Chairman), Cruz and Medialdea, JJ., concur. Grio-Aquino, J., is on leave . 13281C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c. G.R. No. L-13281 August 31, 1960 SIARI VALLEY ESTATES, INC., petitioner, vs. FILEMON LUCASAN, ET AL., respondents. Orendain and Sarmiento for petitioner. Barrios, Lucasan and Lucasan for respondents. BAUTISTA ANGELO, J.: 1. LEVY AND EXECUTION; NOTICES; REQUIREMENT IF LAND IS REGISTERED; PURPOSE. The requirement that the notice of levy should contain a reference to the numbe r of the certificate of title and the volume and page in the registration book w here the certificate is registered is made in order that the debtor as well as a third person may be properly informed of the particular land or property that i s under the custody of the court. This can only be accompanied by making a refer

ence to the certificate of title covering the property. The situation differs if the land is unregistered, in which case it is enough that the notice be registe red under Act 3344. 2. ID.; ID.; ID.; WHEN NOTICE IS LEGALLY INEFFECTIVE. A notice of levy as r egards a registered land which contains no reference to the number of its certif icate of title and the volume and page in the registry book where the title is r egistered is legally ineffective and as such does not have the effect of binding the property for purposes of execution. Consequently, a sale carried out by vir tue of said levy is invalid and of no legal effect. 3. ID.; ID.; WHEN FAMILY HOME NOT EXEMPT FROM EXECUTION. A family home cons tituted after a debt had been incurred. whether the debt is undisputed or inchoa te, is not exempt from execution. The reason behind this ruling is to protect th e creditor against a debtor who may act in bad faith by constituting such family home just to defeat the claim against him. On January 30, 1952, the Court of First Instance of Zamboanga del Norte rendered decision ordering Filemon Lucasan to deliver to the Siari Valley Estates, Inc. the cattle inside the former's pasture or pay its value amounting to P40,000.00 and damages in another sum of P40,000.00, This decision was affirmed in toto by the Supreme Court, and when the same became final and executory, a writ of execu tion was issued. In carrying out this writ, the sheriff proceeded to levy on cer tain parcels of lands belonging to defendant. These lands were sold by the sheri ff at public auction to the corporation as the highest bidder on January 14, 195 6. The judgment debtor having failed to redeem the land within the period of one year, on January 26, 1957, the sheriff issued in favor of the purchaser the fin al certificate of sale, copy of which was registered in the Office of the Regist er of Deeds of Zamboanga. On February 16, 1957, upon petition of the corporation , a writ of possession was issued directing the sheriff to place said corporatio n in possession thereof. Notwithstanding said writ, however, the corporation fai led to take possession of the lands, hence it filed a motion reiterating its pet ition that it be placed in their possession. This time judgment debtor Filemon Lucasan filed an opposition alleging that he w as in possession of one of the parcels of land sold at public auction on which h e has erected a house and which he has extra judicially constituted as a family home, the rest being in possession of third parties. On April 30, 1957, the cour t, overruling the opposition, issued an order directing the sheriff to place the corporation in possession of the lands sold to it. On August 7, 1957, debtor Lu casan filed a motion for reconsideration which was denied, the court reiterating its previous order with little amendment, but on August 23, 1957 issued another order allowing the corporation to take possession of all lands sold, with the e xception of parcel 1 on which the family home was constituted, holding that the levy and sale made by the sheriff with regard to said parcel were not made in ac cordance with law and so are null and void. Having failed to have this last orde r reconsidered, the corporation interposed the present petition for certiorari. It appears that parcel 1 is a registered land covered by Certificate of Title No . OCT-2492, Patent No. 50967, duly registered in the Office of the Register of D eeds of Zamboanga del Norte in the name of Filemon Lucasan. On this land stands a big house of mixed materials which is asserted in the amount of P23,270.00 as evidenced by Tax Declaration No. 7653. It also 37 3 appears that Filemon Lucasan and his wife constituted this house and the lot on which stands into a family h ome, the pertinent document having been registered in the office of the register of deeds on June 21, 1955. In opposing the petition of the corporation for a wr it of possession insofar as this property is concerned, Lucasan contended that s aid lot and house having been constituted as a family home are beyond the reach of judicial execution. He contended that the levy made by the sheriff on said pr operty is legally ineffective because it was not effected in accordance with wha t is prescribed in Section 14, Rule 39, in relation to Section 7, Rule 59, of th e Rules of Court. There is merit in this contention. The evidence shows that when this property wa s levied on execution by the sheriff to satisfy the judgment rendered against Fi

lemon Lucasan in favor of petitioner corporation the notice of levy merely descr ibed the property as unregistered land and the same was registered under Act 334 4 in the office of the register of deeds. It also appears that in the notice of sale the property was merely described according to the boundaries and area appe aring in the tax declaration and not according to what appears in the certificat e of title. On the other hand, the rule provides that real property shall "be le vied on in like manner and with like effect as under an order of attachment" (Se ction 14, Rule 39), and the provision regarding attachment of real property post ulates that the attachment shall be made "by filing with the register of deeds a copy of the order, together with the description of the property attached, and a notice that it is attached, and by leaving a copy of said order, description, and notice with the occupant of the property, if any there be," and that "Where the property has been brought under the operation of the Land Registration Act, the notice shall contain a reference to the number of the certificate of title a nd the volume and page in the registration book where the certificate is registe red" (Section 7 [a], Rule 59). These provisions should be strictly construed if their purpose has to be accompl ished. The requirement that the notice of levy should contain a reference to the number of the certificate of title and the volume and page in the registration book where the certificate is registered is made in order that the debtor as wel l as a third person may be properly informed of the particular land or property that is under the custody of the court. This can only be accomplished by making a reference to the certificate of title covering the property. The situation dif fers if the land is unregistered in which case it is enough that the notice be r egistered under Act 3344. This conclusion finds support in the following authori ties: An attachment levied on real estate not duly recorded in the registry of propert y is not an encumbrance on the attached property, nor can such attachment, unrec orded in the registry, serve as a ground for decreeing the annulment of the sale of the property, at the request of another creditor. (Gonzales Diez vs. Delgado and Imperial, 37 Phil., 389) ... In conformity with the provisions of section 71 of the Land Registration Act , the sheriff of the City of Manila filed a notice of the levy with the register of deeds, which notice was entered in the primary entry book of the register's office, but was afterwards, on May 20, 1920, returned to the sheriff with the in formation that the property was registered in the name of Buenaventura Dizon, ha ving been conveyed to the latter by the defendant in execution, Celerino Arellan o, and that, therefore, no memorandum of the notice had been entered upon the ou tstanding certificate of title. It may be noted that the notice contained no "re ference to the number of the certificate of title of the land to be effected and the volume and page in the registry book where the certificate is registered, a nd that t that extent, the notice did not meet the requirements of said section 71. (De Ocampo vs. Treasurer of the Philippine Islands, 50 Phil., 140, 141; Emph asis supplied). Since the notice of levy made by the sheriff as regards parcel number 1 which is a registered land contains no reference to the number of its certificate of tit le and the volume and page in the registry book where the title is registered, i t follows that said notice is legally ineffective and as such did not have the e ffect of binding the property for purposes of execution. Consequently, the sale carried out by virtue of said levy is also invalid and of no legal effect. The second issue raised is: Is the family home extra judicially established by r espondent on the lot and house in question exempt from execution? Respondent sustains the affirmative considering that the money judgment rendered against him was appealed to the Supreme Court in which event, he contends, the same could not be considered as a debt at the time the family home was constitut ed for it was still inchoate and as such cannot come under the provisions of Art icle 243 (2) of the new Civil Code. The article above referred to provides that "The family home extra judicially fo rmed shall be exempt from execution" except "for debts incurred before the decla ration was recorded in the Registry of Property." What if the meaning of the wor

d debt used in this article? Does it refer to a debt that is undisputed, or may it also refer to any pecuniary obligation even if the same has not yet been fina lly determined? In other words, can a judgment for a sum of money be considered a debt within the meaning of this provision even if said judgment is still pendi ng appeal? We are inclined to uphold the affirmative considering the real purpose of the la w. The reason why a family home constituted after a debt had been incurred is no t exempt from execution is to protect the creditor against a debtor who may act in bad faith by resorting to such declaration just to defeat the claim against h im. If the purpose is to protect the creditor from fraud it would be immaterial if the debt incurred be undisputed or inchoate, for a debtor acting in good fait h would prefer to wait until his case is definitely decided before constituting the family home. Indeed, it may result, as in this case, that the Supreme Court may affirm the judgment of the lower court. If the contention of respondent be s ustained a debtor may be allowed to circumvent this provision of the law to the prejudice of the creditor. This the Court cannot countenance. Hence, we are pers uaded to conclude that the money judgment in question comes within the purview o f the word debt used in Article 243 (2) of the new Civil Code. WHEREFORE, the order appealed from is hereby affirmed, without prejudice of the part of petitioner to file a new petition for execution following strictly the r equirements of the rule on the matter. No pronouncement as to costs. Paras, C.J., Bengzon, Padilla, Labrador, Reyes, J.B.L., Barrera, and Gutierrez D avid, JJ., concur. Concepcion, J., concurs in the result.

G.R. No. L-28248 March 12, 1975 LEONORA PERIDO, ET AL. vs. MARIA PERIDO, ET AL. EN BANC [G.R. No. L-28248. March 12, 1975.] LEONORA PERIDO, joined by husband MANUEL PIROTE, INOCENCIA PERIDO, ALBENIO PERID O, PAULINO PERIDO, LETIA PERIDO, joined by husband BIENVENIDO BALYAO, LETICIA PE RIDO, joined by husband FELIX VILLARUZ, EUFEMIA PERIDO, CONSOLACION PERIDO, ALFR EDO PERIDO, GEORGE PERIDO, AMPARO PERIDO, WILFREDO PERIDO, MARGARITA PERIDO, ROL ANDO SALDE and EDUARDO SALDE, petitioners, vs. MARIA PERIDO, SOFRONIO PERIDO, JU AN A. PERIDO, GONZALO PERIDO, PACITA PERIDO, MAGDALENA PERIDO, ALICIA PERIDO, JO SEFINA PERIDO, FE PERIDO, TERESA PERIDO and LUZ PERIDO, respondents. Januario L. Jison, Jr. for petitioners. Antonio T. de Jesus for respondents. SYNOPSIS Petitioners, heirs of Lucio Perido by the first of two marriages, questioned the conclusion of the Court of Appeals that Lucio's children by the second marriage were born during such marriage and therefore legitimate, based on the finding t hat Lucio's first wife had died previously. They further questioned the appellat e court's findings that all except one of the lots in question were inherited by Lucio from his grandmother and hence his exclusive properties and that 11/12 of the remaining lot was the conjugal partnership property of Lucio and his second wife. On review, the Supreme Court affirmed the appealed decision holding that the questioned findings were factual which are not reviewable by the Court. Decision of the Court of Appeals affirmed. SYLLABUS 1. MARRIAGE; PRESUMPTION OF MARRIAGE; PRESUMPTION MAY BE OVERCOME ONLY BY C OGENT PROOF. The statement in the certificates of title that the person to whom these were issued is a widower is not conclusive to show that such widower was n ot actually married to the woman he was then dwelling with in apparent matrimony . It is weak and insufficient to rebut the presumption that persons living toget her as husband and wife are married to each other. This presumption, especially where the legitimacy of the issue is involved, as in this case, may be overcome only by the cogent proof on the part of those who allege illegitimacy.

2. ID.; ID.; RATIONALE BEHIND THE PRESUMPTION OF MARRIAGE. The Supreme Cour t explained the rationale behind the presumption of marriage thus: "The basis of human society throughout the civilized world is that of marriage. Marriage in t his jurisdiction is not only a civil contract, but it is a new relation, an inst itution in the maintenance of which the public is deeply interested. Consequentl y, every intendment of the law leans toward legalizing matrimony. Persons dwelli ng together in apparent matrimony are presumed, in the absence of any counter-pr esumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society, and if the parties were not what they thus hold themselves out as being, they would be living in the constant violatio n of decency and of law. A presumption established by our Code of Civil Procedur e is 'that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage" (Sec. 334, No. 28) Semper praesumitur pro m atrimonio Always presume marriage." 3. ID.; ID.; PRESUMPTION CANNOT BE REBUTTED BY UNCORROBORATED TESTIMONY. Th e presumption of marriage arising from previous cohabitation cannot be rebutted by an alleged marriage ceremony thereafter performed where the testimony on the matter. 4. PETITION FOR REVIEW ON CERTIORARI; ISSUE INVOLVING APPRECIATION OF EVIDE NCE; FINDINGS OF COURT OF APPEALS THEREON BINDING ON SUPREME COURT. The issue ra ised by petitioners regarding the correctness of the findings of the Court of Ap peals that all except one of the lots in question were inherited by Lucio Perido from his grandmother and that 11/12 of the remaining lot was the conjugal partn ership property of Lucio and his second wife, involves appreciation of the evide nce and, consequently, the findings of the appellate court on the matter is bind ing on the Supreme Court. 5. ID.; SUPREME COURT DOES NOT REVIEW FACTUAL FINDINGS IN PETITION FOR REVI EW ON CERTIORARI. A review of the appellate court's factual findings would requi re an examination of all evidence introduced before the trial court, a considera tion of the credibility of witnesses and of the circumstances surrounding the ca se, their relevancy or relation to one another and to the whole, as well as an a ppraisal of the probabilities of the entire situation. It would thus abolish the distinction between an ordinary appeal on the one hand and review on certiorari on the other, and thus defeat the purpose for which the latter procedure has be en established. D E C I S I O N MAKALINTAL, C.J p: This is an appeal by certiorari from the decision of the Court of Appeals in its CA-G.R. No. 37034-R, affirming the decision of the Court of First Instance of N egros Occidental in Civil Case No. 6529. Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime . His first wife was Benita Talorong, with whom he begot three (3) children: Fel ix, Ismael, and Margarita. After Benita died Lucio married Marcelina Baliguat, w ith whom he had five (5) children: Eusebio, Juan, Maria, Sofronia, and Gonzalo. Lucio himself died in 1942, while his second wife died in 1943. Of the three (3) children belonging to the first marriage only Margarita Perido is still living. Her deceased brother, Felix Perido, is survived by his children Inocencia, Leonora, Albinio, Paulino, Letia, Leticia, and Eufemia, all surnamed Perido. Nicanora Perido, another daughter of Felix, is also deceased, but is su rvived by two (2) sons, Rolando and Eduardo Salde. Margarita's other deceased brother, Ismael Perido, is survived by his children, namely: Consolacion, Alfredo, Wilfredo, and Amparo. Susano Perido, another son o f Ismael is dead, but survived by his own son George Perido. Of Lucio Perido's five (5) children by his second wife, two are already dead, na mely: Eusebio and Juan. Eusebio is survived by his children Magdalena Perido, Pa cita Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz P erido, while Juan is survived by his only child, Juan A. Perido. On August 15, 1960 the children and grandchildren of the first and second marria ges of Lucio Perido executed a document denominated as "Declaration of Heirship and Extra-Judicial Partition," whereby they partitioned among themselves Lots No

s. 458, 471, 506, 511, 509, 513-B, 807, and 808, all of the Cadastral Survey of Himamaylan, Occidental Negros. Evidently the children belonging to the first marriage of Lucio Perido had secon d thoughts about the partition. On March 8, 1962 they filed a complaint in the C ourt of First Instance of Negros Occidental, which complaint was later amended o n February 22, 1963, against the children of the second marriage, praying for th e annulment of the so-called "Declaration of Heirship and Extra-Judicial Partiti on" and for another partition of the lots mentioned therein among the plaintiffs alone. They alleged, among other things, that they had been induced by the defe ndants to execute the document in question through misrepresentation, false prom ises and fraudulent means; that the lots which were partitioned in said document belonged to the conjugal partnership of the spouses Lucio Perido and Benita Tal orong; and that the five children of Lucio Perido with Marcelina Baliguat were a ll illegitimate and therefore had no successional rights to the estate of Lucio Perido, who died in 1942. The defendants denied the foregoing allegations. After trial the lower court rendered its decision dated July 31, 1965, annulling the "Declaration of Heirship and Extra-Judicial Partition." However, it did not order the partition of the lots involved among the plaintiffs exclusively in vi ew of its findings that the five children of Lucio Perido with his second wife, Marcelina Baliguat, were legitimate; that all the lots, except Lot No. 458, were the exclusive properties of Lucio Perido; and that 11/12 of Lot No. 458 belonge d to the conjugal partnership of Lucio Perido and his second wife, Marcelina Bal iguat. The dispositive portion of the decision reads as follows: "IN VIEW OF ALL THE FOREGOING, the Court renders judgment as follows: declaring the following as the legitimate children and grandchildren and heirs of Lucio Pe rido and Benita Talorong: Felix Perido, deceased; grandchildren: Inocencia Perid o, Leonora Perido, Albinio Perido, Paulino Perido, Letia Perido, Leticia Perido, Eufemia Perido; Nicanora Perido, deceased; great grandchildren: Rolando Salde a nd Eduardo Salde; Ismael Perido, deceased; grandchildren: Consolacion Perido, Al fredo Perido, Susano Perido, deceased; great grandson: George Perido; Amparo Per ido and Wilfredo Perido; and, Margarita Perido; (2) declaring the following as t he legitimate children and grandchildren and heirs of Lucio Perido and Marcelina Baliguat: Eusebio Perido, deceased; grandchildren: Pacita Perido, Magdalena Per ido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz Perido; J uan B. Perido, deceased; grandson, Juan A. Perido; Maria Perido; Sofronia Perido ; and Gonzalo Perido; (3) declaring all lots (471, 506, 511, 509, 513-part, 807, and 808) except Lot No. 458 as exclusive properties of Lucio Perido so that eac h of them should be divided into eight (8) equal parts: 1/8 belongs to Felix Per ido, but because of his death leaving eight (8) children, the same should be div ided and alloted as follows: 1/64 to Inocencia Perido of age, widow; 1/64 to Leo nora Perido, of age, married to Manuel Pirote; 1/64 to Albinio Perido, of age, m arried to Honorata Villasana; 1/64 to Paulino Perido, of age, married to Norma V illalba; 1/64 to Letia Perido, of age, married to Bienvenido Balyac; 1/64 to Let icia Perido, of age, married to Felix Villaruz; 1/64 to Eufemia Perido, of age, single; 1/64 to Nicanora Perido, but because she is now dead the same should be divided and alloted as follows: 1/128 to Rolando Salde, of age, single; and 1/12 8 to Eduardo Salde, of age, single; 1/8 belongs to Ismael Perido, but because he is already dead leaving five children, the same should be divided and alloted a s follows: 1/40 to Consolacion Perido, of age, widow; 1/40 to Alfredo Perido, of age, married to Trinidad Tamargo; 1/40 to Susano Perido, but he is already dead with one son, the same goes to George Perido, of age, single; 1/40 to Wilfredo Perido, of age, single; 1/8 belongs to Margarita Perido, of age, widow; 1/8 belo ngs to Eusebio Perido, but because he is already dead with seven children, the s ame should be divided and alloted as follows: 1/56 goes to Pacita Perido, of age , single; 1/56 goes to Magdalena Perido, of age, single; 1/56 goes to Alicia Per ido, of age, married to Isaias Ruiz; 1/56 goes to Josefina Perido, of age, marri ed to Leopoldo Doloroso; 1/56 goes to Fe Perido, of age, single; 1/56 goes to Te resa Perido, of age, single; 1/56 goes to Luz Perido, of age, married to Fidel d e la Cruz; 1/8 belongs to Juan B. Perido, but because he is already dead with on e child, the same 1/8 goes to Juan A. Perido, of age, married to Salud Salgado;

1/8 goes to Maria Perido, of age, married to Julio Pirote; 1/8 goes to Sofronia Perido, of age, widow; and, 1/8 goes to Gonzalo Perido, of age, married to Lacom emoracion Estiller; (4) declaring the 11/12 shares in Lot No. 458 as conjugal pa rtnership property of Lucio Perido and Marcelina Baliguat, which should be divid ed and alloted as follows: 11/24 goes to Lucio Perido to be divided into eight ( 8) equal shares and 11/24 goes to Marcelina Baliguat to be divided into five (5) equal shares or 11/120 for each of the children and again to be divided by the children of each child now deceased; (6) declaring Fidel Perido owner of 1/12 sh are in Lot 458 to be divided among his heirs to be determined accordingly later; and (6) declaring null and void Exhibit "J" of the plaintiffs which is Exhibit "10" for the defendants, without costs and without adjudication with respect to the counterclaim and damages, they being members of the same family, for equity and justice." The plaintiffs appealed to the Court of Appeals, alleging that the trial court e rred: (1) in declaring that Eusebio Perido, Juan Perido, Maria Perido, Sofronia Perido and Gonzalo Perido, were the legitimate children of Lucio Perido and his second wife, Marcelina Baliguat; (2) in declaring that Lucio Perido was the excl usive owner of Lots Nos. 471, 506, 511, 509, 513-Part, 807, and 808 of Cadastral Survey of Himamaylan, Negros Occidental, and in not declaring that said lots we re the conjugal partnership property of Lucio Perido and his first wife, Benita Talorong; and (3) in holding that 11/12 of Lot 458 was the conjugal partnership property of Lucio Perido and Marcelina Baliguat. Finding no reversible error in the decision of the lower court, the Court of App eals affirmed it in toto. The appellants moved to reconsider but were turned dow n. Thereupon they instituted the instant petition for review reiterating in effe ct the assignments of error and the arguments in the brief they submitted to the appellate court. The first issue pertains to the legitimacy of the five children of Lucio Perido with Marcelina Baliguat. The petitioners insist that said children were illegiti mate on the theory that the first three were born out of wedlock even before the death of Lucio Perido's first wife, while the last two were also born out of we dlock and were not recognized by their parents before or after their marriage. I n support of their contention they allege that Benita Talorong died in 1905, aft er the first three children were born, as testified to by petitioner Margarita P erido and corroborated by petitioner Leonora Perido; that as late as 1923 Lucio Perido was still a widower, as shown on the face of the certificates of title is sued to him in said year; and Lucio Perido married his second wife, Marcelina Ba liguat, only in 1925, as allegedly established through the testimony of petition er Leonora Perido. The petition cannot be sustained. The Court of Appeals found that there was evid ence to show that Lucio Perido's wife, Benita Talorong, died during the Spanish regime. This finding is conclusive upon us and beyond our power of review. Under the circumstance, Lucio Perido had no legal impediment to marry Marcelina Balig uat before the birth of their first child in 1900. With respect to the civil status of Lucio Perido as stated in the certificates o f title issued to him in 1923, the Court of Appeals correctly held that the stat ement was not conclusive to show that he was not actually married to Marcelina B aliguat. Furthermore, it is weak and insufficient to rebut the presumption that persons living together as husband and wife are married to each other. This pres umption, especially where the legitimacy of the issue is involved, as in this ca se, may be overcome only by cogent proof on the part of those who allege the ill egitimacy. In the case of Adong vs. Cheong Seng Gee, 1 this Court explained the rationale behind this presumption, thus: "The basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not on ly a civil contract, but it is a new relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent ma trimony are presumed, in the absence of any counter-presumption or evidence spec ial to the case, to be in fact married. The reason is that such is the common or der of society, and if the parties were not what they thus hold themselves out a

s being, they would be living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is 'that a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.' (Sec. 334, No. 28) Semper praesumitur pro matrimonio Always presume marriage." While the alleged marriage ceremony in 1925, if true, might tend to rebut the pr esumption of marriage arising from previous cohabitation, it is to be noted that both the trial court and the appellate court did not even pass upon the uncorro borated testimony of petitioner Leonora Perido on the matter. The reason is obvi ous. Said witness, when asked why she knew that Marcelina Baliguat was married t o Lucio Perido only in 1925, merely replied that she knew it because "during the celebration of the marriage by the Aglipayan priest (they) got flowers from (th eir) garden and placed in the altar." Evidently, she was not even an eyewitness to the ceremony. In view of the foregoing the Court of Appeals did not err in concluding that the five children of Lucio Perido and Marcelina Baliguat were born during their mar riage and, therefore, legitimate. The second assignment of error refers to the determination of whether or not Lot s Nos. 471, 506, 511, 509, 513-Part, 807 and 808 were the exclusive properties o f Lucio Perido. In disposing of the contention of the petitioners that said lots belonged to the conjugal partnership of spouses Lucio Perido and Benita Taloron g, the Court of Appeals said: ". . . We cannot agree again with them on this point. It is to be noted that the lands covered by the certificates of title (Exhs. B to G) were all declared in the name of Lucio Perido. Then there is evidence showing that the lands were inh erited by Lucio Perido from his grandmother (t.s.n., p. 21, Feb. 20, 1964). In o ther words, they were the exclusive properties of the late Lucio Perido which he brought into the first and second marriages. By fiat of law said properties sho uld be divided accordingly among his legal heirs." The petitioners take exception to the finding of the appellate court that the af orementioned lots were inherited by Lucio Perido from his grandmother and conten d that they were able to establish through the testimonies of their witnesses th at the spouses Lucio Perido and Benita Talorong acquired them during their lifet ime. Again, the petitioners cannot be sustained. The question involves appreciat ion of the evidence, which is within the domain of the Court of Appeals, the fac tual findings of which are not reviewable by this Court. The third assignment of error is with regard to the ruling of the Court of Appea ls sustaining the finding of the trial court that 11/12 of Lot 458 was the conju gal partnership property of Lucio Perido and his second wife, Marcelina Baliguat . Said the appellate court: "With respect to Lot No. 458 which is now covered by Original Certificate of Tit le No. 21769 issued in 1925 the same should be considered conjugally owned by Lu cio Perido and his second wife, Marcelina Baliguat. The finding of the lower cou rt on this point need not be disturbed. It is expressly stated in the certificat e of title (Exh. L) that Lucio Perido, the registered owner, was married to Marc elina Baliguat unlike in the previous land titles. If the law presumes a propert y registered in the name of only one of the spouses to be conjugal (Guinguing vs . Abutin, 48 Phil. 144; Flores vs. Flores, 48 Phil. 288, Escutin vs. Escutin, 60 Phil. 922), the presumption becomes stronger when the document recites that the spouse in whose name the land is registered is married to somebody else, like i n the case at bar. It appearing that the legal presumption that Lot No. 458 belo nged to the conjugal partnership had not been overcome by clear proofs to the co ntrary, we are constrained to rule, that the same is the conjugal property of th e deceased spouses Lucio Perido and Marcelina Baliguat." In impugning the foregoing ruling, the petitioners maintain that they were able to prove that 6/12 of said Lot 458 was the conjugal property of spouses Lucio Pe rido and his first wife, Benita Talorong, and that the purchase price of the add itional 5/12 of said lot came from the proceeds of sale of a lot allegedly belon ging to Lucio Perido and his three children of the first marriage. As in the sec ond assignment of error, the issue raised here also involves appreciation of the

evidence and, consequently, the finding of the appellate court on the matter is binding on this Court. Indeed, a review of that finding would require an examin ation of all the evidence introduced before the trial court, a consideration of the credibility of witnesses and of the circumstances surrounding the case, thei r relevancy or relation to one another and to the whole, as well as an appraisal of the probabilities of the entire situation. It would thus abolish the distinc tion between an ordinary appeal on the one hand and review on certiorari on the other, and thus defeat the purpose for which the latter procedure has been estab lished. 2 WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs a gainst the petitioners. Castro, Teehankee, Makasiar and Esguerra, JJ., concur. Muoz Palma, J., is on leave abroad. Footnotes 1. 43 Phil. 43, 56. 2. Tamayo vs. Callejo, No. L-25563, July 28, 1972, (46 SCRA 27). C o p y r i g h t 1 9 9 4 - 1 9 9 9 I n c. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION C D T e c h n o l o g i e s A s i a,

G.R. No. 77867 February 6, 1990 ISABEL DE LA PUERTA, petitioner, vs. THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, respondents. Isabel de la Puerta for and in her own behalf. Gilbert D. Camaligan for private respondent. CRUZ, J.: The basic issue involved in this case is the filiation of private respondent Car melita de la Puerta, who claims successional lights to the estate of her alleged grandmother. Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving children, namely, Alfredo, Vicente and Isabel , all surnamed de la Puerta. Isabel was given the free portion in addition to he r legitime and was appointed executrix of the will. 1 The petition for the probate of the will filed by Isabel was opposed by her brot hers, who averred that their mother was already senile at the time of the execut ion of the will and did not fully comprehend its meaning. Moreover, some of the properties listed in the inventory of her estate belonged to them exclusively. 2 Meantime, Isabel was appointed special administratrix by the probate court. 3 Al fredo subsequently died, leaving Vicente the lone oppositor. 4 On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance o f Quezon a petition to adopt Carmelita de la Puerta. After hearing, the petition was granted. 5 However, the decision was appealed by Isabel to the Court of App eals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case 6 On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the payment to her of a monthly allowance as th e acknowledged natural child of Vicente de la Puerta. 7 At the hearing on her mo tion, Carmelita presented evidence to prove her claimed status to which Isabel w as allowed to submit counter-evidence. On November 12,1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand that Carmelita was a natural child of Vicen te de la Puerta and was entitled to the amounts claimed for her support. The cou rt added that "the evidence presented by the petitioner against it (was) too wea k to discredit the same. 8

On appeal, the order of the lower court was affirmed by the respondent court, 9 which is now in turn being challenged in this petition before us. The petitioner's main argument is that Carmelita was not the natural child of Vi cente de la Puerta, who was married to Genoveva de la Puerta in 1938 and remaine d his wife until his death in 1978. Carmelita's real parents are Juanita Austria l and Gloria Jordan. Invoking the presumption of legitimacy, she argues that Carmelita was the legiti mate child of Juanita Austrial and Gloria Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of Vicente de la Puerta because he was already married at the time of her birth in 1962. To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan. According to him, the two were living as husb and and wife and had three children, including a girl named "Puti," presumably C armelita. He said though that he was not sure if the couple was legally married. 10 Another witness, Genoveva de la Puerta, Identified herself as Vicente de la Puer ta's wife but said they separated two years after their marriage in 1938 and wer e never reconciled. In 1962, Gloria Jordan started living with Vicente de la Pue rta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that the relationship between her husband and Gloria was well known in the community. 11 In finding for Carmelita, the lower court declared that: . . . By her evidence, it was shown to the satisfaction of the Court that she wa s born on December 18, 1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother is Gloria Jordan who were living as comm on law husband and wife until his death on June 14, 1978; that Vicente de la Pue rta was married to, but was separated from, his legal wife Genoveva de la Puerta ; that upon the death of Vicente de la Puerta on June 14, 1978 without leaving a last will and testament, she was the only child who survived him together with his spouse Genoveva de la Puerta with whom he did not beget any child; that she was treated by Vicente de la Puerta as a true child from the time of her birth u ntil his father died; that the fact that she was treated as a child of Vicente d e la Puerta is shown by the family pictures showing movant with Vicente de la Pu erta (Exhs. D, D-1 and D-2) and school records wherein he signed the report card s as her parent (Exh. E and E-1); that during the hearing of her adoption case i n Special Proceeding No. 0041 in Branch V of this Court at Mauban, Quezon, Vicen te de la Puerta categorically stated in court that Carmelita de la Puerta is his daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de la Puerta during his lifetime who spent for her subsistence, support and education; . . . 12 This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid down in a long line of decisions that will justify r eversal. 13 Among these circumstances are: (1) the conclusion is a finding groun ded entirely on speculation, surmise and conjecture; (2) the inference made is m anifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; ( 6) the Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petit ioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. The petitioner insists on the application of the following provisions of the Civ il Code to support her thesis that Carmelita is not the natural child of Vicente de la Puerta but the legitimate child of Juanito Austrial and Gloria Jordan: Art. 255. Children born after one hundred and eighty days following the celebrat ion of the marriage, and before three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.

Against this presumption no evidence shall be admitted other than that of the ph ysical impossibility of the husband's having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of th e child. This physical impossibility may be caused: (1) By the impotence of the husband; (2) By the fact that the husband and wife were living separately in such a way t hat access was not possible; (3) By the serious illness of the husband. Art. 256. The child shall be presumed legitimate, although the mother may have d eclared against its legitimacy or may have been sentenced as an adulteress. These rules are in turn based on the presumption that Juanito and Gloria were ma rried at the time of Carmelita's birth in 1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court, providing that: Sec. 5. Disputable presumptions.The following presumptions are satisfactory if un contradicted, but may be contradicted and overcome by other evidence: xxx xxx xxx (bb) That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage; But this last-quoted presumption is merely disputable and may be refuted with ev idence to the contrary. As the Court sees it, such evidence has been sufficientl y established in the case at bar. The cases 14 cited by the petitioner are not exactly in point because they invol ve situations where the couples lived continuously as husband and wife and so co uld be reasonably presumed to be married. In the case before us, there was testi mony from Vicente's own wife that her husband and Gloria lived together as a mar ried couple, thereby rebutting the presumption that Gloria was herself the lawfu l wife of Juanita Austrial. Such testimony would for one thing show that Juanito and Gloria did not continuo usly live together as a married couple. Moreover, it is not explained why, if he was really married to her, Juanito did not object when Gloria left the conjugal home and started openly consorting with Vicente, and in the same neighborhood a t that. That was unnatural, to say the least. It was different with Genoveva for she herself swore that she had separated from Vicente two years after their mar riage and had long lost interest in her husband. In fact, she even renounced in open court any claim to Vicente's estate. 15 The presumption of marriage between Juanito and Gloria having been destroyed, it became necessary for the petitioner to submit additional proof to show that the two were legally married. She did not. Turning now to the evidence required to prove the private respondent's filiation , we reject the petitioner's contention that Article 278 of the Civil Code is no t available to Carmelita. It is error to contend that as she is not a natural ch ild but a spurious child (if at all) she cannot prove her status by the record o f birth, a will, a statement before a court of record, or any authentic writing. On the contrary, it has long been settled that: The so-called spurious children or illegitimate children other than natural chil dren, commonly known as bastards, include adulterous children or those born out of wedlock to a married woman cohabiting with a man other than her husband or to a married man cohabiting with a woman other than his wife. They are entitled to support and successional rights (Art. 287, CC). But their filiation must be dul y proven.(Ibid, Art. 887) How should their filiation be proven? Article 289 of the Civil Code allows the i nvestigation of the paternity or maternity of spurious children under the circum stances specified in Articles 283 and 284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children are applicable to s purious children. Spurious children should not be in a better position than natural children. The rules on proof of filiation of natural children or the rule on voluntary and com pulsory acknowledgment for natural children may be applied to spurious children. 16

This being so, we need not rule now on the admissibility of the private responde nt's certificate of birth as proof of her filiation. That status was sufficientl y established by the sworn testimony of Vicente de la Puerta at the hearing of t he petition for adoption on September 6, 1976, where he categorically declared a s follows: Q What relation if any do you have with Carmelita de la Puerta? A She is my daughter. 17 Finally, we move to the most crucial question, to wit: May Carmelita de la Puert a claim support and successional rights to the estate of Dominga Revuelta? According to Article 970 of the Civil Code: Art. 970. Representation is a right created by fiction of law, by virtue of whic h the representative is raised to the place and the degree of the person represe nted, and acquires the rights which the latter would have if he were living or i f he could have inherited. The answer to the question posed must be in the negative. The first reason is th at Vicente de la Puerta did not predecease his mother; and the second is that Ca rmelita is a spurious child. It is settled that In testamentary succession, the right of representation can take place only in t he following cases: first, when the person represented dies before the testator; second, when the person represented is incapable of succeeding the testator; an d third, when the person represented is disinherited by the testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the chil dren or descendants of the person represented to succeed by right of representat ion. 18 xxx xxx xxx The law is clear that there is representation only when relatives of a deceased person try to succeed him in his rights which he would have had if still living. In the present case, however, said deceased had already succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of the death of the testa trix, Reynaldo Cuison was still alive. He died two months after her (testatrix's ) death. And upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to succeed to the legacy. . . . In other words, the herein petitioners-appellants are not trying to succeed to the right to the property of the testatrix, but rather to the right of the legatee Reynaldo Cuison in said property. 19 Not having predeceased Dominga Revuelta, her son Vicente had the right to inheri t from her directly or in his own right. No right of representation was involved , nor could it be invoked by Carmelita upon her father's death, which came after his own mother's death. It would have been different if Vicente was already dea d when Dominga Revuelta died. Carmelita could then have inherited from her in re presentation of her father Vicente, assuming the private respondent was a lawful heir. But herein lies the crux, for she is not. As a spurious child of Vicente, Carmel ita is barred from inheriting from Dominga because of Article 992 of the Civil C ode, which lays down the barrier between the legitimate and illegitimate familie s. This article provides quite clearly: Art. 992. An illegitimate child has no right to inherit ab intestato from the le gitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. Applying this rule in Leonardo v. Court of Appeals, 20 this Court declared: . . . even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate left by the d eceased Francisca Reyes considering that, as found again by the Court of Appeals , he was born outside wedlock as shown by the fact that when he was born, his al leged putative father and mother were not yet married, and what is more, his all eged father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab intestato from the legitima te children and relatives of his father, like the deceased Francisca Reyes. The reason for this rule was explained in the recent case of Diaz v. Intermediat

e Appellate Court, 21 thus: Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child an d the legitimate children and relatives of the father or mother of said legitima te child. They may have a natural tie of blood, but this is not recognized by la w for the purpose of Article 992. Between the legitimate family and the illegiti mate family there is presumed to be an intervening antagonism and incompatibilit y. The illegitimate child is disgracefully looked down upon by the legitimate fa mily; the family is in turn, hated by the illegitimate child the latter consider s the privileged condition of the former, and the resources of which it is there by deprived; the former in turn sees in the illegitimate child nothing but the p roduct of sin, palpable evidence of a blemish broken in life; the law does no mo re than recognize this truth, by avoiding further ground of resentment. 22 Indeed, even as an adopted child, Carmelita would still be barred from inheritin g from Dominga Revuelta for there would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed out by Dr. Arturo M. Tolentino: If the adopting parent should die before the adopted child, the latter cannot re present the former in the inheritance from the parents or ascendants of the adop ter. The adopted child is not related to the deceased in that case, because the filiation created by fiction of law is exclusively between the adopter and the a dopted. "By adoption, the adopters can make for themselves an heir, but they can not thus make one for their kindred. 23 The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate estate of her father but not to the est ate of Dominga Revuelta. Her claims for support and inheritance should therefore be filed in the proceedings for the settlement of her own father's estate 24 and cannot be considered in the probate of Dominga Revuelta's Will. WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with costs against the private respondent. It is so ordered. Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur. G.R. No. L-18407 June 26, 1963 ELAINE A. MOORE, petitioner-appellant, vs. REPUBLIC OF THE PHILIPPINES, oppositor-appellee. Fidel A. Sandoval for petitioner-appellant. Office of the Solicitor General for oppositor-appellee. BAUTISTA ANGELO, J.: Elaine A. Moore filed a petition before the Court of First Instance of Rizal pra ying that her child by a former marriage, William Michael Velarde, be permitted to change his name so as to read William Michael Velarde Moore. After publishing the petition as required by law, trial was held during which th e parties submitted a stipulation of facts. Thereafter, the trial court issued a n order denying the petition whereupon petitioner interposed the present appeal. Petitioner is an American citizen formerly married to Joseph P. Velarde, also an American citizen, out of whose wedlock a child by the name of William Michael V elarde was born. This child, now 14 years old, was born on January 19, 1947 at L os Angeles, California, U.S.A. The marriage of petitioner to Velarde was subsequently dissolved by a decree of divorce issued by the Superior Court of the State of California on May 31, 1949. After said decree became final, petitioner contracted a second marriage with Do n C. Moore on September 29, 1956 at Los Angeles, California, U.S.A., and thereaf ter the minor lived continuously with the spouses up to the present time. He was supported by Moore who has always treated him with love and affection as if he were his true father. In view of this harmonious relation it is petitioner's des ire that the minor be able to use the name Moore after his family name Velarde. The government opposes the petition and now poses the following issues: (1) whet her under our laws a minor may be permitted to adopt and use the surname of the

second husband of his mother; (2) whether justifiable reasons exist to allow suc h change of name; and whether petitioner, as mother of the minor, has the author ity or personality to ask for such a change. Anent the first issue, the government sustains a negative stand for the reason t hat our laws do not authorize a legitimate child to use the surname of a person who is not his father, for, as a matter of fact, Article 364 of Civil Code speci fically provides that legitimate children shall principally use the surname of t heir father. Mention is also made of Article 369 of the same Code which provides that in case of annulment of avoidable marriage the children conceived before t he annulment she principally use the surname of the father, and considering by a nalogy the effect of a decree of divorce, it concluded that the children who are conceived before such a decree should also be understood as carrying the surnam e of the real father, which, in this case, is Velarde. We find tenable this observation of government's counsel. Indeed, if a child bor n out of a lawful wedlock be allowed to bear the surname of the second husband o f the mother, should the first husband die or be separated by a decree of divorc e, there may result a confusion to his real paternity. In the long run the chang e may redound to the prejudice of the child in the community. While the purpose which may have animated petitioner is plausible and may run al ong the feeling of cordiality and spiritual relationship that pervades among the members of the Moore family, our hand is deferred by a legal barrier which we c annot at present overlook or brush aside.1wph1.t Another factor to be reckoned with is the fact that the child concerned is still a minor who for the present cannot fathom what would be his feeling when he com es to mature age. Any way, if the time comes, he may decide the matter for himse lf and take such action as our law may permit. For the present we deem the actio n taken by petitioner premature. WHEREFORE, the order appealed from is affirmed. No costs. Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, D izon, Regala and Makalintal, JJ., concur.