XI. THE FAMILY A.

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What governs family relations, FC 149?

Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect

Alvarado, City of Tacloban, 139 SCRA 230

Arroyo v. CA, 203 SCRA 753

B.

Family Relations FC 150 151 Art. 150. Family relations include those: (1) Between husband and wife; (2) Between parents and children; (3) Among brothers and sisters, whether of the full or half-blood. (217a) Art. 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed. This rules shall not apply to cases which may not be the subject of compromise under the Civil Code.

Cf. NCC 2035: ROC Rule 6 Sec. 1 (j)

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. (1814a) RULE 6, Section 1. Pleadings defined. Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment.

Gayon v. Gayon, SRCA 104

GAYON VS. GAYON FACTS: 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 P500.00, a parcel of unregistered land therein described, and located in the barrio of Cabubugan, municipality of Guimbal, province of Iloilo, including the improvements thereon, subject to redemption within five (5) years or not later than October 1, 1957; that said right of redemption had not been exercised by Silvestre Gayon, Genoveva de Gayon, or any of their heirs or successors, despite the expiration of the period therefor; that said Pedro Gelera and his wife Estelita Damaso had, by virtue of a deed of sale copy of which was attached to the complaint, as Annex "B" dated March 21, 1961, sold the aforementioned land to plaintiff Pedro Gayon for the sum of P614.00; that plaintiff had, since 1961, introduced thereon improvements worth P1,000; that he had, moreover, fully paid the taxes on said property up to 1967; and that Articles 1606 and 1616 of our Civil Code require a judicial decree for the consolidation of the title in and to a land acquired through a conditional sale, and, accordingly, praying that an order be issued in plaintiff's favor for the consolidation of ownership in and to the aforementioned property.

In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre Gayon, died on January 6, 1954, long before the institution of this case; that Annex "A" to the complaint is fictitious, for the signature thereon purporting to be her signature is not hers; that neither she nor her deceased husband had ever executed "any document of whatever nature in plaintiff's favor"; that the complaint is malicious and had embarrassed her and her children; that the heirs of Silvestre Gayon had to "employ the services of counsel for a fee of P500.00 and incurred expenses of at least P200.00"; and that being a brother of the deceased Silvestre Gayon, plaintiff "did not exert efforts for the amicable settlement of the case" before filing his complaint. She prayed, therefore, that the same be dismissed and that plaintiff be sentenced to pay damages.

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ISSUE : Whether or not the contention of the Mr.Gayon that an earnest effort toward a compromise before the filing of the suit is tenable.

HELD: As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the 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 that the same have failed, subject to the limitations in article 2035.

It is noteworthy that the impediment arising from this provision applies to suits "filed or maintained between members of the same family." This phrase, "members of the same family," should, however, be construed in the light of Art. 217 of the same Code, pursuant to which:

Family relations shall include those:

(1) Between husband and wife;

(2) Between parent and child;

(3) Among other ascendants and their descendants;

(4) Among brothers and sisters.

Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or nieces. Inasmuch as none of them is included in the enumeration contained in said Art. 217 which should be construed strictly, it being an exception to the general rule and Silvestre Gayon must necessarily be excluded as party in the case at bar, it follows that the same does not come within the purview of Art. 222, and plaintiff's failure to seek a compromise before filing the complaint does not bar the same.

WHEREFORE, the order appealed from is hereby set aside and the case remanded to the lower court for the inclusion, as defendant or defendants therein, of the administrator or executor of the estate of Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of such administrator or executor, of the heirs of the deceased Silvestre Gayon, and for further proceedings, not inconsistent with this decision, with the costs of this instance against defendant-appellee, Genoveva de Gayon. It is so ordered.

Wainwright v. Versoza, 26 SCRA 78 Facts:

Margaret Ann Wainright Versoza, and three minor children, Jose Ma. Versoza, Jr., Charles John Versoza and Virginia Felice Versoza loadged a complaint for P1,500.00 monthly support, support in arrears, and damages, and custody of children, with a petition for support pendente liteagainst JoseMa. Versoza.

Grounds for complaint: Abandoned the plaintiffs without providing for their support and maintains illicit relations with another woman.

Defendant answer: The claim is premature for it states no cause of action.

o o

Article 222 of the Civil Code: "No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subject to the limitations in article 2035." Ground for dismissal of the instant case: the suit is between members of the same family and no earnest efforts towards a compromise have been made."

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amicably before suit was started. [There were to motion for reconsideration but likewise denied by the lower court] Hence, this petition.

Lower Courts decision: Dismissal of the complaint upon the ground that there was no showing that efforts have been exerted to settle the case

Issue: WON Article 222 of the Civil Code will apply in the instant case. Held: Decision of the lower court, reversed. Ratio: Article 222 is subject to the limitations in Article 2035 of the Civil Code: o 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.

Since the present action also revolves on the right to future support and because compromise on future support is prescribed, then the conclusion is irresistible that an attempt at compromise of future support and failure thereof is not a condition precedent to the filing of the present suit. It need not be alleged in the complaint.

XII. THE FAMILY HOME A. What continues the family home (FH)

Art. 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter's consent. It may also be constituted by an unmarried head of a family on his or her own property. Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a)

Art. 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of the three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law. In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation. For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)

Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a)

B.

Who may constitute the family home, FC 152, FC 161?

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 family reside, and the land on which it is situated. (223a)

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Art. 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n)

C.

When deemed constituted, FC 153 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 continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a)

D.

When terminated, FC 153 compare with FC 159

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 continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a)

Art. 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home.

E.

Beneficiaries, FC 154 Art. 154. The beneficiaries of a family home are: (1) The husband and wife, or an unmarried person who is the head of a family; and (2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support.

F.

Exemptions, FC 155, FC 160

Art. 155. The family home shall be exempt from execution, forced sale or attachment except: (1) For nonpayment of taxes; (2) For debts incurred prior to the constitution of the family home; (3) For debts secured by mortgages on the premises before or after such constitution; and (4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a)

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

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Modequilo v. Breva, 185 SCRA 766 Modequillo vs. Breva 185 SCRA 766

Facts: On January 29, 1988, a judgment was rendered by the Court of Appeals entitled "Francisco Salinas, et al. vs. Jose Modequillo, et al.

The said judgment having become final and executory, a writ of execution was issued by the RTC of Davao City to satisfy the said judgment on the goods and chattels of the defendants Jose Modequillo and Benito Malubay at Davao del Sur. The sheriff levied on a parcel of residential land located at Davao del Sur registered in the name of defendant and a parcel of agricultural land located at Malalag, Davao del Sur.

A motion to quash and/or to set aside levy of execution was filed by defendant Jose Modequillo alleging therein that the residential land located at Poblacion Malalag 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 Article 155 thereof, and that the judgment debt sought to be enforced against the family home of defendant is not one of those enumerated under Article 155 of the Family Code. An opposition thereto was filed by the plaintiffs.

Issue: Whether or not a final judgment in an action for damages may be satisfied by way of execution of a family home constituted under the Family Code.

Ruling: Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extrajudicially as required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or head of the family who owns the home.

In the present case, the residential house and lot of petitioner was not constituted as a family home whether judicially or extrajudicially under the Civil Code. It became a family home by operation of law only under Article 153 of the Family Code.

Siari Valley v. Lucasan, 109 Phil 294 Siari Valley Estates, Inc. petitioner vs Filemon Lucasan, et al., respondents August 31, 1960 CFI of Zamboanga del Norte ordered Filemon Lucasan to deliver to Siari ValleyEstates, Inc. the cattle inside his pasture or pay its value amounting to 40,000.00and damages in another sum of 40, 000. This was affirmed by SC and became finaland executory inasmuch as a writ of execution was even issued. In carrying out thewrit though, the sheriff proceeded to levy on certain parcels of land belonging to defendant Filemon. Such lands were sold by the sheriff at a public auction to the corporation as the highest bidder on Jan 1956. On the same month, the sheriff issued in favor of the SVE the final certificate of sale since Lucasan wasnt able to redeem the land within the one-year period. The final certificate of sale was registered duly. SVE failed to take possession of the land despite the writ of possession. SVE filed a motion to have the land placed under its possession. Debtor and respondent Filemon filed an opposition alleging he was in possession of one of the parcels of land sold at the auction, on which he had a house erected and which he has extra judicially constituted as family home as registered on register of deeds on June 21, 1955. Filemon contends that since H&L constituted his family home, it was beyond reach of judicial execution. Upon a second motion for reconsideration, the court rendered an order allowing SVE to take possession of all lands sold, with the exception of parcel 1 on which Filemons family home was because the levy and sale made by the sheriff with regard to parcel 1 are null and void for not being effected in accordance with Section 14, Rule 39 in relation to Sec7 Rule 59, ROC WON notice of levy upon land of Filemon was valid No. Parcel 1 is a registered land and is real property. As such, it shall be levied on in like manner and with life effect as under an order of attachment (Sec14Rule39).Hence, in order for a notice of levy upon it to be valid, reference to the number of its certificate of title, volume and page in the registry book where the title is registered (which was nonexistent, in this case) must be attached to the description of the property itself. Such are to be filed with register of deeds together with order of levying. (Sec7Rule59). This is to ensure that the debtor as well as a 3 rd person may be informed of the particular land or property under the custody of the court.

WON the family home extra judicially established by File on lot and house in question exempts from execution

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Yes. The reason why a family home constituted after a debt has been incurred is not exempt from execution is to protect the creditor against a debtor who may act in bad faith by resorting to such declaration to defeat claims against him. Money judgment in question comes within the purview of the word debt in Article 243 (2)of NCC (Family home extra judicially executed shall be exempt from execution except for debts incurred before the declaration was recorded in registry of property)

XIII. PATERNITY AND FILIATION A. Paternity and filiations in general, FC 163 Art. 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)

B.

Legitimate children, FC 164 Art. 164. Children conceived or born during the marriage of the parents are legitimate. Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child

Perido v. Perido, 63 SCRA 97

De la Puerta v. CA, 161 SCRA 661

Tan v. Trocio, 191 SCRA 764 Facts: School owner and directress, Felicidad Barian Tan filed a complaint seeking disbarment of Atty. Galileo Trocio for immorality and conduct unbecoming of a lawyer. She alleged that Trocio, who is the legal counsel of the school, overpowered her inside the office and against her will, succeeded in having carnal knowledge of her. And as a result, she begot a son whom she named Jewel Tan. She further alleged that he used to support Jewel but subsequently lost interest and stopped. She claimed she filed the complaint only after 8 years from the incident because of Trocio threatened her with the deportation of her alien husband and due to the fact that she was married with eight children. Trocio files his answer stating that he was indeed counsel of the school as well as of Tan and her family but denies he sexually assaulted her. The lower Court and the Solicitor General completed the required pleadings and thus forwarded the case to the SC

Issue: WON he had, in fact, sexually assaulted the Complainant, as a consequence of which the latter begot a child by him (and is thus a ground for Trocios disbarment for immoral conduct) Held: Complaint for disbarment dismissed The court found insufficient basis for the allegations The alleged threat to deport her husband could not hold because she admitted having lost contact with her husband when he learned of the respondents transgression that very same evening. The fear had thus become inexistent Even after the alleged incident, she continued having dealings with the respondentwith Trocio acting as her personal and familys legal counselas though nothing happened. Complainants contention that Respondent continued supporting the child for several years for which reason she desisted from charging him criminally, has not been substantiate. In fact, the fact that she kept her peace for so many years can even be construed as condonation. It is likewise strange that an unwanted son, as the child would normally have been, should, of all names, be called Jewel. Witness, Elueterias (domestic help) testimony did not hold as how near she was to the crime scene, considering it allegedly happened in school premises, has not been shown. Testimonies of Felicidad and witness Marilou (another domestic help) to show unusual closeness between Trocio and Jewel, like playing with him and giving him toys, are not convincing enough to prove paternity. Pictures of Jewel and Trocio showing allegedly their physical likeness to each other is inconclusive evidence to prove paternity, and much less would it prove violation of Complainants person More importantly, Jewel Tan was born during the wedlock of Complainant and her husband and the presumption should b in favor of legitimacy unless physical access between the couple was impossible. From the evidence on hand, the presumption has not been overcome by adequate and convincing proof. In fact, Jewel was registered in his birth certificate as the legitimate child of the Felicidad and her husband, Tan Le Pok.

1.

Concieved during marriage cf. ROC rule 131 Sec. 5 (11)

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Section 5. No presumption of legitimacy or illegitimacy . There is no presumption of legitimacy of a child born after three hundred days following the dissolution of the marriage or the separation of the spouses. Whoever alleges the legitimacy or illegitimacy of such child must prove his allegation. (6) Born during Marriage

2.

3.

By artificial insemination

4.

Terminated marriage under FC 42 in rel. to FC 43 (1) Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

5.

Void marriage under FC 54 in rel. to FC 36 and FC 53

Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void

6.

Voidable marriages

7.

Adopted children

8.

Legitimated children

9.

Rights of Legitimate children, FC 173- 174 cf. NCC 364, 374, 376

Art. 364. Legitimate and legitimated children shall principally use the surname of the father.

Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion.

Art. 376. No person can change his name or surname without judicial authority.

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Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action. Art. 174. Legitimate children shall have the right: (1) To bear the surnames of the father and the mother, in conformity with the provisions of the Civil Code on Surnames; (2) To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters, in conformity with the provisions of this Code on Support; and (3) To be entitled to the legitimate and other successional rights granted to them by the Civil Code

Moore v. Republic, 8 SCRA 282

Naldoza, Republic 112, SCRA 658

Legitimes of NCC 888. NCC 979

Art. 888. The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (808a)

Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without distinction as to sex or age, and even if they should come from different marriages. An adopted child succeeds to the property of the adopting parents in the same manner as a legitimate child. (931a)

C.

Illegitimate Children

1.

Under NCC

2.

FC 165 Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code

3.

Rights of illegitimate children, FC 175- 176 Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent. (289a) Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child. Except for this modification, all other provisions in the Civil Code governing successional rights shall remain in force. (287a

Mangulabnan v. IAC, 185 SCRA 760 185 SCRA 760; May 31, 1990J. Gancayco: FACTS:

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Elena Mangulabnan, as guardian ad litem of minor Alfie Angeno Acero, filed in the RTC an action for support,actual and moral damages for her child Alfie. Pending litigation an application support pendente lite against AmbrosioTan Chew Acero-opposed.RTC: ordered Ambrosio Tan to pay monthly support of P1,500. MOR deniedCA:RTCs decision was annulled.While the childs paternity appears to have beenestablished by the affidavits of Elena Mangulabnan as well as affidavit of twowitnesses, this fact alone is not sufficient to order Ambrosio to pay support. It isnecessary that Ambrosio has recognized the child.Refused to accept the birth certificate constituted voluntary recognition since itsprobative value was impaired by the verified opposition of Ambrosio. He claimsthat the same was spurious as it was sworn before a notary public in Manila.When the child was born in Cavite Maternity clinic in Las Pinas Rizal.illegitimate child to be entitled to support must be recognized whether natural or spurious.Petitioner claims that the child is entitled to support upon proof of filiation without the need of acknowledgment, HELD: Reversed. There must be a declaration of the status of the child from which the right to support is derived andbefore support can be ordered. Such a declaration may be provisional, that is by affidavit.The requirement for recognition by the father or mother jointly or by one of them as provision of law refers in particular to anatural child- such a child is presumed to be natural child of the parents recognizing it who had the legal capacity tocontract marriage at the time of conception. Thus, an illegitimate child like Alfie whose father is married and had no legalcapacity to contract marriage at the time of conception is not a natural child but an illegitimate child or spurious child inwhich case recognition is not required before support can be granted.However, under Art. 887, in all cases of illegitimate children, their filiation must be proved either Voluntary or Compulsoryrecognition. VOLUNTARY RECOGNITIONCOMPULSORY RECOGNITIONWhen made in:1) record of birth;2) will;3) statement before a court;4) any authentic writing.When by court action, the child brings out hisrecognition. The affidavits, as well as the birth certificate had provisionally established the status of the child

Osmena de Valencia v. Rodriguez, 84 Phil. 222

D.

Action to impugn Legitimacy 1. Grounds, FC 166 Art. 166. Legitimacy of a child may be impugned only on the following grounds: (1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: (a) the physical incapacity of the husband to have sexual intercourse with his wife; (b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or (c) serious illness of the husband, which absolutely prevented sexual intercourse; (2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or (3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence.

a.

Physical impossibility of access

Andal v. Macaraig 69 Phil 165

Facts: Mariano Andal, assisted by his mother Maria Dueas, as guardian ad litem, brought an action in the CIF of Camarines Sur for the recovery of the ownership and possession of a parcel of land situated in Camarines Sur. The complaint alleges that Mariano Andal is the surviving son of Emiliano Andal and Maria Dueas and that Emiliano was the owner of the parcel of land in question having acquired it from his mother Eduvigis Macaraig by virtue of a donation propter nuptias executed by the latter in favor of the former.

The lower court rendered judgment in favor of the plaintiffs (a) declaring Mariano Andal the legitimate son of Emiliano Andal and such entitled to inherit the land in question; (b) declaring Mariano Andal owner of said land; and (c) ordering the defendant to pay the costs of suit. Defendant took the case to this Court upon the plea that only question of law are involved.

Emiliano Andal became sick of tuberculosis. Sometime thereafter, his brother, Felix, went to live in his house to help him work his house to help him work his farm. His sickness became worse, he became so weak that he could hardly move and get up from his bed. Maria

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Dueas, his wife, eloped with Felix, and both went to live in the house of Maria's father. Felix and Maria had sexual intercourse and treated each other as husband and wife. Emiliano died without the presence of his wife, who did not even attend his funeral. Maria Dueas gave birth to a boy, who was given the name of Mariano Andal.

10

Issue: Whether or not the child is considered as the legitimate son of Emiliano.

Ruling: Mariano is the legitimate son of Emiliano. It is already seen that Emiliano and his wife were living together, or at least had access one to the other, and Emiliano was not impotent, and the child was born within 300 days following the dissolution of the marriage. Under these facts no other presumption can be drawn than that the issue is legitimate. It is also seen that this presumption can only be rebutted by clear proof that it was physically or naturally impossible for them to indulge in carnal intercourse. And here there is no such proof.

Macadangdang vs. CA108 SCRA 314 Facts:Respondent Elizabeth Mejias is a married woman, her husbandbeing Crispin Anahaw. She allegedly had intercourse with petitionerAntonio Macadangdang sometime in March, 1967. She also alleges thatdue to the affair, she and her husband separated in 1967. She gave birthto a baby boy who was named Rolando Macadangdang in baptismal rites.Respondent, then plaintiff, filed a complaint for recognition and supportagainst petitioner, then defendant, with the CIF of Davao. Defendant, nowpetitioner, Macadangdang filed his answer, opposing plaintiff's claim andpraying for its dismissal. The lower court in a pre-trial conference, issued a Pre-trial Orderformalizing certain stipulations, admissions and factual issues on whichboth parties agreed. Correspondingly, upon agreement of the parties, anamended complaint was filed by plaintiff. In its decision rendered, thelower court dismissed the complaint. The decision invoked positiveprovisions of the Civil Code and Rules of Court and authorities.

Issue:Whether or not the wife may institute an action that wouldbastardize her child without giving her husband, the legally presumedfather, an opportunity to be heard.

Ruling:SC find no merit in petitioners submission that the questioneddecision had not become final and executory since the law explicitly andclearly provides for the dissolution and liquidation of the conjugalpartnership as among the effects of the final decree of legal separation.It also appears that her claim against petitioner is a disguisedattempt to evade the responsibility and consequence of her recklessbehavior at the expense of her husband, her illicit lover and above all herown son. For this Court to allow, much less consent to, the bastardizationof respondent's son would give rise to serious and far-reachingconsequences on society. This Court will not tolerate scheming marriedwomen who would indulge in illicit affairs with married men and thenexploit the children born during such immoral relations by using them tocollect from such moneyed paramours. This would be the form of wreckingthe stability of two families. This would be a severe assault on morality

Tan v. Trocio, 191 SCRA 764 Facts: School owner and directress, Felicidad Barian Tan filed a complaint seeking disbarment of Atty. Galileo Trocio for immorality andconduct unbecoming of a lawyer. She alleged that Trocio, who is the legal counsel of the school, overpowered her inside the office and against her will, succeeded inhaving carnal knowledge of her. And as a result, she begot a son whom she named Jewel Tan. She further alleged that he used to support Jewel but subsequently lost interest and stopped. She claimed she filed the complaint only after 8 years from the incident because of Trocio threatened her with the deportation of heralien husband and due to the fact that she was married with eight children. Trocio files his answer stating that he was indeed counsel of the school as well as of Tan and her family but denies he sexually assaulted her. The lower Court and the Solicitor General completed the required pleadings and thus forwarded the case to the SC

Issue: WON he had, in fact, sexually assaulted the Complainant, as a consequence of which the latter begot a child by him (and is thus a ground for Trociosdisbarment for immoral conduct)

Held: Complaint for disbarment dismissed The court found insufficient basis for the allegations

The alleged threat to deport her husband could not hold because she admitted having lost contact with her husband when he learned

EL BOBBY

of the respondents transgression that very same evening. The fear had thus become inexistent

11

Even after the alleged incident, she continued having dealings with the respondent with Trocio acting as her personal and familys legal counsel as though nothing happened.

Complainants contention that Respondent continued supporting the child for several years for which reason she desisted fromcharging him criminally, has not been substantiate. In fact, the fact that she kept her peace for so many years can even be construedas condonation. It is likewise strange that an unwanted son, as the child would normally have been, should, of all names, be calledJewel. Witness, Elueterias (domestic help) testimony did not hold as how near she was to the crime scene, considering it allegedly happenedin school premises, has not been shown. Testimonies of Felicidad and witness Marilou (another domestic help) to show unusual closeness between Trocio and Jewel, likeplaying with him and giving him toys, are not convincing enough to prove paternity Pictures of Jewel and Trocio showing allegedlytheir physical likeness to each other is inconclusive evidence to prove paternity, and much less would it prove violation of Complainants person. More importantly, Jewel Tan was born during the wedlock of Complainant and her husband and thepresumption should b in favor of legitimacy unless physical access between the couple was impossible. From the evidence on hand,the presumption has not been overcome by adequate and convincing proof. In fact, Jewel was registered in his birth certificate as thelegitimate child of the Felicidad and her husband, Tan Le Pok.

b.

Biologocal or other scientific grounds

Jao v. Ca, 152 SCRA 359

Facts: 1968: Petitioner Janice Jao, then a minor, represented by her mother andguardian-ad-litem Arlene Salgado filed a case for recognition and support with theJuvenile and Domestic Relations Court (JDRC) against Perico Jao.

Perico denied paternity so they agreed to a blood grouping test duly conducted bythe NBI upon the trial courts order.

Result: Janice could not have been that possible offspring of Perico andArlene

The trial court found the test result legally conclusive

Janice filed MFR, and court ordered trial on merits where Janice was declaredPericos kid and thus entitled to monthly support.

Perico appealed to CA, contesting trial courts error to appreciate result of bloodtest and CA reversed trial court decision, hence this appeal by Janice (for the lovestory of Arlene and Perico and for the more detailed facts, refer to CA decision)

Issue: WON the result of blood grouping test is admissible and conclusive to provepaternity

Held: YES. In this jurisdiction, the result of blood tests, among other evidence, to Affirm paternity was dealt with in Co Tao v. CA where the court held that the NBI experts report stating that from their blood groups and types, the defendant Co Tao is a possible father of the child could not give any assurance that Co Tao was the father ,only the possibility.

EL BOBBY

There is now an almost universal agreement that blood grouping tests are conclusive as to non-paternity, although inconclusive as to paternity (As shown in Co Tao).

12

The fact that the blood type of the child is a possible product o the mother and thealleged father does not conclusively prove that the child is born by such parents,but, if the blood type of the child is not the possible blood type when the bloods of the mother and the alleged father are cross matched, then the child cannot possibly be that of the alleged father.

In jurisdictions like the U.S., the admissibility of blood tests results to prove non-paternity has already been passed upon in several cases (Gilpin v. Gilpin, Cuneo v.Cuneo and Clark v. Rysedorph). The important doctrine from such cases is that to reject competent medical testimony would be tantamount to rejecting scientific fact and to deny progress.

Legislation expressly recognizing the use of blood tests is also in force in several states.

Tolentino affirms this rule on blood tests as a proof of non-paternity.

Petitioner attempts to discredit the result of the blood grouping tests by impugningthat qualification of the NBI personnel who conducted the tests and the conduct of the tests themselves.

However, the NBI forensic chemisy who conducted the tests is also a serologist,and has extensive practice in this area for several years. The tests were conducted6 times using 2 scientifically recognized blood grouping systems: MN test and ABOsystem, under witness and supervision.

Even the allegation that Janice was too young at five months to have been a propersubject for accurate blood tests must fall, since nearly two years after the first bloodtest, she, represented by her mom, declined to undergo the test to prove ordisprove their allegations, even as Perico was willing to undergo the test again

Amurao v. CA 168, 734

2.

Contrary declaration by mother, FC 167 Art. 167. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

Chua Keng Giap v. PAC, 18 SCRA 18

3.

In subsequent marriages, FC 168, 169 Art. 168. If the marriage is terminated and the mother contracted another marriage within three hundred days after such termination of the former marriage, these rules shall govern in the absence of proof to the contrary: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is considered to have been conceived during the former marriage, provided it be born within three hundred days after the termination of the former marriage; (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is considered to have been conceived during such marriage, even though it be born within the three hundred days after the termination of the former marriage. (259a)

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Art. 169. The legitimacy or illegitimacy of a child born after three hundred days following the termination of the marriage shall be proved by whoever alleges such legitimacy or illegitimacy.

13

4.

Presumptions FC 170, 171 Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier. (263a) Art. 171. The heirs of the husband may impugn the filiation of the child within the period prescribed in the preceding article only in the following cases: (1) If the husband should died before the expiration of the period fixed for bringing his action; (2) If he should die after the filing of the complaint without having desisted therefrom; or (3) If the child was born after the death of the husband

Lim v. IAC, 166 SCRA 451 Cabatbat-Lim v Intermediate Appellate Court (1988)Petition for certiorari to review the decision of the then IAC. FACTS :This is a contest over the estate of the late Dra Esperanza Cabatbat. The petitioner is Violeta Cabatbat Lim who claims to be her only child and respondents are thesisters of the doctor and the children of her deceased brothers .Petitioner Violeta, her husband Lim Biak Chiao and the Calasiao Bijon Factory assailIACs and TCs decision finding her not to be the offspring of the Doctor and hence,not a legal heir of the late Dra Cabatbat.Respondents allege that Violeta is merely a ward (ampon) of the sps Esperanza andProceso who sheltered and supported her from childhood, w/o the benefit of formal adoption proceedings. They present as evidence on the non-filiation of Violeta theff:1.Absence of any record that Esperanza was admitted to the hospital where Violeta was born on the day of her birth2.Absence of birth cert of Violeta in the files of certs of live births in the hospfrom 1947-483.Cert of the Civil Registrar Gen saying that his office has no birth record of Violeta4.Cert from Violeta school that in her files, the sps were listed only as guardian sand not as parents5.Testimony of one Amparo Reside who was at the hosp at the time of Violetasbirth and that she met a patient named Benita Lastimosa who gave birth to ababy girl who grew up to be known as Violeta Cabatbat.Petitioner denied the allegations and presented her birth record stating that she isthe legitimate child of the sps. and her marriage contract wherein Esperanzaappeared as her mother and a Deed of Abs Sale wherein she was assisted and represented by her father Proceso.ISSUES:1.WON TCs and CAs finding that Violeta is not born of Esperanza Cabatbat is conclusive on the Supreme Court2.WON complaint is an action to impugn legitimacy and Art 263 CC can beapplied

HELD:1.Yes, the factual findings of the courts are entitled to great respect. Moreover ,the absence of a record of birth of petitioner Violeta in the Office of the Civil Registrar General puts a cloud on the genuineness of her birth record. Therecords of the hospital show that only one woman by the name of Benita Lastimosa gave birth to an illegitimate child on the date of Violetas birth.2.No, because this is an action to claim inheritance of the respondents as legalheirs of their childless deceased aunt. They do not claim that Violeta is illegitimate child of the deceased, but that she is not the decedents child at all. Being neither a legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of Dra Esperanza Cabatbat, Violeta is not a legal heir of the deceased.

5.

Prescription

6.

Who may impugn

Liyao, Jr. vs. Tanhoti-Liyao 378 SCRA 563 March 7, 2002 Fact of the Case:

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Corazon G. Garcia is legally married but has been living separately from Ramon Yulo for more than 10 years. She cohabited with William Liyao from 1965 upto his death. Some witnesses, however, testified that Corazon and her husband were seen in each others company during the supposed time Corazon cohabited with William Liyao.

14

On June 9, 1975, Corazon gave birth to William Liyao Jr. Since birth, William Jr, also known as Billy, had been in continuous possession and enjoyment of the status of a recognized and/ or acknowledge child of William Liyao by the latters direct and overt act. During William Liyao birthday he was carrying Billy and told everybody present, including his daughters, Look, this is my son, very guapo and healty. He talked about engrande plans for the baptism of Billy. Unfortunately, it did not happen due to his untimely death on December 2, 1975.

On November 29, 1976, William Liyao, Jr, represented by his mother Corazon G. Garcia filed a civil action for compulsory recognition as the illegitimate son the late William Liyao. The Regional Trial Court granted his petition, however the Court of Appeals reversed the decision saying that the law favors the legitimacy rather than the illegitimacy of the child. The petition was filed for review on certiorari.

Issue: Whether or not the petitioner may impugn his own legitimacy to be able to claim from the estate of his supposed father William Liyao.

Held: No. Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate. Impugning the legitimacy of the child, is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the one directly confronted with the scandal. Only in exceptional cases may his heirs allowed to contest such legitimacy. There is nothing on the records to indicate that Ramon Yulo has already passed away at the time of the birth of the petitioner nor at the time of the initiation of proceedings. The Court held that it is settle that a child born within a valid marriage is presumed legitimate even though the mother may have declared against its legitimacy or may have been sentenced as an adulteress; the child himself cannot choose his own affiliation if the husband, presumed to be the father does not impugn the legitimacy of the child, then the status of the child if fixed, and the latter cannot choose to be the child of his mothers paramour.

E.

PROOF OF FILLATION

1.

Of legitimate children, FC 172- 173 Art. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. (265a, 266a, 267a)

Art. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

a.

Record of birth

Reyes v. CA, 135 SCRA 439 Vda. de Reyes v. CA

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Facts:As per project of partition, a 83,781 sq. m. lot owned by the estate of Zuzuarregui, Sr. was divided by the heir samong themselves. Administratrix files motion to re open special proceedings to correct allegedly typographical error in description of the parcel from 83,781 to 803,781 sq. m. The heir who relinquished her share over the lot opposed,saying that she would not have relinquished her share had she known that the parcel was of such greater area. RTC allowed correction.

15

Issue: WON clerical error and thus correctible YES

Ruling: A special proceeding for settlement of estate is filed and intended to settle the entire estate of deceased. It is absurd to exclude or leave a parcel of land undivided because proceeding is designed to end community interests in properties held by co-partners pro indiviso without designation or segregation of shares. If intention was to partially adjudicate the land, why leave 720,000undivided? Here petitioner offered no plausible contrary explanation.

Castro v. CA 173 SCRA 658 Facts:On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas weremarried in a civil ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The marriage was celebrated without the knowledge of Castros parents. Defendant Cardenas personally attended to theprocessing of the documents required for the celebration of the marriage,including the procurement of the marriage license. In fact, the marriagecontract itself states that marriage license no. 3196182 was issued in thename of the contracting parties on June 24, 1970 in Pasig, Metro Manila. The couple did not immediately live together as husband and wifesince the marriage was unknown to Castros parents. Thus, it was only inMarch 1971, when Castro discovered she was pregnant, that the coupledecided to live together. However, their cohabitation lasted only for four(4) months. Thereafter, the couple parted ways. On October 19, 1971,Castro gave birth. The baby was adopted by Castros brother, with theconsent of Cardenas.Issue:Whether or not the documentary and testimonial evidencespresented by private respondent are sufficient to establish that nomarriage license was issued by the Civil Registrar of Pasig prior to thecelebration of the marriage of private respondent to Edwin F. Cardenas.Ruling: The law provides that no marriage shall be solemnized without amarriage license first issued by a local registrar. Being one of the essentialrequisites of a valid marriage, absence to the parties is not adequate toprove its non-issuance. The above rule authorized the custodian of documents to certify that despite diligent search, a particular documentdoes not exist in his office or that a particular entry of a specified tenorwas not being found in a registrar. As custodians of public documents, civilregistrars are public officers charged with the duty, inter alia, of maintaining a register book where they are required to enter allapplications for marriage license, including the names of the applicants,the date the marriage license was issued and such other relevant data. The certification of due search and inability to find issued by thecivil registrar of Pasig enjoys probative value, he being the officer chargedunder the law to keep a record of all data relative to the issuance of amarriage license. Unaccompanied by any circumstance of suspicion andpursuant to Section 29, Rule 132 of the Rules of Court, a certificate of duesearch and inability to find sufficiently proved that his office did not issuemarriage license no. 1396182 to the contracting parties. There being nomarriage license, the marriage of Angelina and Edwin is void ab initio

Mendoza

v.

IAC,

152

SCRA

445

b.

Final judgment declaring filiations

Ramos v. Ramos, 61 SCRA 284

FACTS: Spouses Martin Ramos and Candida Tanate died on October 4, 1906 and October 26, 1880, respectively. They were survived by their 3 children. Moreover, Martin was survived by his 7 natural children. In December 1906, a special proceeding for the settlement of the intestate estate of said spouses was conducted. Rafael Ramos, a brother of Martin, administered the estate for more than 6 years. Eventually, a partition project was submitted which was signed by the 3 legitimate children and 2 of the 7 natural children. A certain Timoteo Zayco signed in representation of the other 5 natural children who were minors. The partition was sworn to before a justice of peace.

The conjugal hereditary estate was appraised at P74,984.93, consisting of 18 parcels of land, some head of cattle and the advances to the legitimate children. thereof represented the estate of Martin. 1/3 thereof was the free portion or P12,497.98. The shares of the 7 natural children were to be taken from that 1/3 free portion. Indeed, the partition was made in accordance with the Old Civil code. Thereafter, Judge Richard Campbell approved the partition project. The court declared that the proceeding will be considered closed and the record should be archived as soon as proof was submitted that each he3ir had received the portion adjudicated to him.

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On February 3, 1914, Judge Nepumoceno asked the administrator to submit a report showing that the shares of the heirs had been delivered to them as required by the previous decision. Nevertheless, the manifestation was not in strict conformity with the terms of the judges order and with the partition project itself. 8 lots of the Himamaylan Cadastre were registered in equal shares in the names of Gregoria (widow of Jose Ramos) and her daughter, when in fact the administrator was supposed to pay the cash adjudications to each of them as enshrined in the partition project. Plaintiffs were then constrained to bring the suit before the court seeking for the reconveyance in their favor their corresponding participations in said parcels of land in accordance with Article 840 of the old Civil Code. Note that 1/6 of the subject lots represents the 1/3 free portion of martins shares which will eventually redound to the shares of his 7 legally acknowledged natural children. The petitioners action was predicated on the theory that their shares were merely held in trust by defendants. Nonetheless, no Deed of Trust was alleged and proven. Ultimately, the lower court dismissed the complaint on the grounds of res judicata, prescription and laches.

16

ISSUE: Whether or not the plaintiffs action was barred by prescription, laches and res judicata to the effect that they were denied of their right to share in their fathers estate.

RULING: YES, there was inexcusable delay thereby making the plaintiffs action unquestionably barred by prescription and laches and also by res judicata. Inextricably interwoven with the questions of prescription and res judicata is the question on the existence of a trust. It is noteworthy that the main thrust of plaintiffs action is the alleged holding of their shares in trust by defendants. Emanating from such, the Supreme Court elucidated on the nature of trusts and the availability of prescription and laches to bar the action for reconveyance of property allegedly held in trust. It is said that trust is the right, enforceable solely in equity to the beneficial enjoyment of property, the legal title to which is vested in another. It may either be express or implied. The latter ids further subdivided into resulting and constructive trusts. Applying it now to the case at bar, the plaintiffs did not prove any express trust. Neither did they specify the kind of implied trust contemplated in their action. Therefore, its enforcement maybe barred by laches and prescription whether they contemplate a resulting or a constructive trust.

c.

Admission in a signed public document

Lim v. CA, 65 SCRA 160 Facts: 1962 Felisa Lim brought suit against Francisco Miguel Romualdez Uy Chen Hong for the declaration of nullity of the affidavit Uy executed in which he adjudicated to himself, as the only son and heir of Susana Lim. (Property 120 square meters located in Tayabas) Uy and Lim claims that they inherited , to the exclusion of each other, the property in question from Susana Lim. Lim claims that she is the natural daughter of Susana and she presented her baptismal certificate which stated the her mother was Susana. She also presented her marriage contract wherein Susana gave consent to the marriage of Felisa. Uy claims that he is the only son and heir of Susana. He presented his application form for alien registration which stated that his mother was Susana, order of the BOI cancelling his alien registration because his mother was a Filipina and his identification certificate which describes him as the son of Susana. November 22, 1967 court ruled that Felisa Lim as the daughter and only heir of Susana Lim Uy filed a motion for reconsideration and new trial but the court denied it. Uy appealed to the court of appeals and it ruled that neither Felisa Lim nor Uy is entitled to the inheritance because neither had either of them been recognized by Susana Lim as her child by any means provided for by law; and neither had either of them been declared in a judicial proceeding to be the child of Susana Lim. They both assailed the decision of the court of appeals. Lim alleges that Susana Lims consent to her marriage, given pursuant to Act 3613 and recognition on the part of Susana Lim that she is her natural daughter. She also contended that the records in the office of the Local Civil Registrar pertaining to her marriage license, together with the supporting papers which included the consent given by Susana Lim, were destroyed during the liberation. She asserts that the marriage contract is a public document. Guadalupe Uy contended that her husband purchased the property in question with his own money prior to his mothers death and took conveyance and title thereof. His mother gave him a little money to complete the purchase price.

Issues: 1. WON Felisa Lim is entitled to the inheritance. NO Felisa Lim alleges that she was recognized by Susana Lim during 1943 which means that it was during the effectivity of the Civil Code of 1889. Sec. 131 of CC of 1889 requires that the recognition of a natural child be made in the record of birth, in a will, or in some other public document. Public documents are those authenticated by a notary or by a competent public official, with formalities required by law. The two classes of public documents are: o Executed by private individuals which must be authenticated by notaries (MARRIAGE CONTRACTS WOULD FALL UNDER THIS CATEGORY) o Those issued by competent public officials by reason of their office Marriage contract presented by Felisa does not satisfy the requirements of solemnity prescribed by article 131 of the CC of 1889. There was no intervention of a notary. The marriage contract is a mere declaration by the contracting parties, in the presence of the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife, signed by signature or mark by the said contracting parties and the said witnesses, and attested by the person solemnizing the marriage. WON Uy is entitled to the inheritance. NO The title is in the name of Susana Lim, and oral testimony cannot overcome the fact that the sale was made to Susana Lim and title issued in her favour

2.

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17

Implied trust arises where a person purchases land with his own money and takes conveyance thereof in the name of another. The property is held on a resulting trust in favour of the one furnishing the consideration for the transfer unless a different intention or understanding appears. Uy raised the theory of implied trust in favour of her husband for the first time in her motion for reconsideration filed with the appellate court and evidence regarding the purchase by her husband is altogether unconvincing.

d.

Signed and handwritten private instrument

Ranas

v.

Ranas,

64

SCRA

260

e.

Open and continuous possession of status

Mendoza v. CA, September 24, 1991 MENDOZA vs. COURT OF APPEALS G.R. No. 116710. June 25, 2001

FACTS: Petitioner Danilo D. Mendoza is engaged in the domestic and international trading of raw materials and chemicals. He operates under the business name Atlantic Exchange Philippines (Atlantic), a single proprietorship registered with the Department of Trade and Industry (DTI). Sometime in 1978 he was granted by respondent Philippine National Bank (PNB) a Five Hundred Thousand Pesos (P500,000.00) credit line and a One Million Pesos (P1,000,000.00) Letter of Credit/Trust Receipt (LC/TR) line.

As security for the credit accommodations and for those which may thereinafter be granted, petitioner mortgaged to respondent PNB the following: 1) three (3) parcels of land with improvements in F. Pasco Avenue, Santolan, Pasig; 2) his house and lot in Quezon City; and 3) several pieces of machinery and equipment in his Pasig coco-chemical plant.

Petitioner executed in favor of respondent PNB three (3) promissory notes covering the Five Hundred Thousand Pesos (P500,000.00) credit line, one dated March 8, 1979 for Three Hundred Ten Thousand Pesos (P310,000.00); another dated March 30, 1979 for Forty Thousand Pesos (P40,000.00); and the last dated September 27, 1979 for One Hundred Fifty Thousand Pesos (P150,000.00).

Petitioner made use of his LC/TR line to purchase raw materials from foreign importers. He signed a total of eleven (11) documents denominated as "Application and Agreement for Commercial Letter of Credit," on various dates

In a letter dated January 3, 1980 and signed by Branch Manager Fil S. Carreon Jr., respondent PNB advised petitioner Mendoza that effective December 1, 1979, the bank raised its interest rates to 14% per annum, in line with Central Bank's Monetary Board Resolution No. 2126 dated November 29, 1979.

On March 9, 1981, he wrote a letter to respondent PNB requesting for the restructuring of his past due accounts into a five-year term loan and for an additional LC/TR line of Two Million Pesos (P2,000,000.00). According to the letter, because of the shut-down of his enduser companies and the huge amount spent for the expansion of his business, petitioner failed to pay to respondent bank his LC/TR accounts as they became due and demandable.

Ceferino D. Cura, Branch Manager of PNB Mandaluyong replied on behalf of the respondent bank and required petitioner to submit the following documents before the bank would act on his request: 1) Audited Financial Statements for 1979 and 1980; 2) Projected cash flow (cash in - cash out) for five (5) years detailed yearly; and 3) List of additional machinery and equipment and proof of ownership thereof. Cura also suggested that petitioner reduce his total loan obligations to Three Million Pesos (P3,000,000.00).

On September 25, 1981, petitioner sent another letter addressed to PNB Vice-President Jose Salvador, regarding his request for restructuring of his loans. He offered respondent PNB the following proposals: 1) the disposal of some of the mortgaged properties, more particularly, his house and lot and a vacant lot in order to pay the overdue trust receipts; 2) capitalization and conversion of the balance into a 5-year term loan payable semi-annually or on annual installments; 3) a new Two Million Pesos (P2,000,000.00) LC/TR line in order

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to enable Atlantic Exchange Philippines to operate at full capacity; 4) assignment of all his receivables to PNB from all domestic and export sales generated by the LC/TR line; and 5) maintenance of the existing Five Hundred Thousand Pesos (P500,000.00) credit line.

18

The petitioner testified that respondent PNB Mandaluyong Branch found his proposal favorable and recommended the implementation of the agreement. However, Fernando Maramag, PNB Executive Vice-President, disapproved the proposed release of the mortgaged properties and reduced the proposed new LC/TR line to One Million Pesos (P1,000,000.00). Petitioner claimed he was forced to agree to these changes and that he was required to submit a new formal proposal and to sign two (2) blank promissory notes.

In a letter dated July 2, 1982, petitioner offered the following revised proposals to respondent bank: 1) the restructuring of past due accounts including interests and penalties into a 5-year term loan, payable semi-annually with one year grace period on the principal; 2) payment of Four Hundred Thousand Pesos (P400,000.00) upon the approval of the proposal; 3) reduction of penalty from 3% to 1%; 4) capitalization of the interest component with interest rate at 16% per annum; 5) establishment of a One Million Pesos (P1,000,000.00) LC/TR line against the mortgaged properties; 6) assignment of all his export proceeds to respondent bank to guarantee payment of his

Petitioner failed to pay the subject two (2) Promissory Notes Nos. 127/82 and 128/82 as they fell due. Respondent PNB extra-judicially foreclosed the real and chattel mortgages, and the mortgaged properties were sold at public auction to respondent PNB, as highest bidder, for a total of Three Million Seven Hundred Ninety Eight Thousand Seven Hundred Nineteen Pesos and Fifty Centavos (P3,798,719.50).

The petitioner filed a complaint for specific performance, nullification of the extra-judicial foreclosure and damages against respondents PNB. He alleged that the Extrajudicial Foreclosure Sale of the mortgaged properties was null and void since his loans were restructured to a five-year term loan; hence, it was not yet due and demandable. On March 16, 1992, the trial court rendered judgment in favor of the petitioner and ordered the nullification of the extrajudicial foreclosure of the real estate mortgage, the Sheriffs sale of the mortgaged real properties by virtue of consolidation thereof and the cancellation of the new titles issued to PNB; that PNB vacate the subject premises in Pasig and turn the same over to the petitioner; and also the nullification of the extrajudicial foreclosure and sheriff's sale of the mortgaged chattels, and that the chattels be returned to petitioner Mendoza if they were removed from his Pasig premises or be paid for if they were lost or rendered unserviceable.

The trial court decided for the petitioner. Upon appeal, the Court of Appeals reversed the decision of the trial court and dismissed the complaint.

ISSUE: Whether or not respondent promised to be bound by the proposal of the petitioner for a five-year restructuring of his overdue loan.

RULING: No. Respondent Court of Appeals held that there is no evidence of a promise from respondent PNB, admittedly a banking corporation, that it had accepted the proposals of the petitioner to have a five-year restructuring of his overdue loan obligations. It found and held, on the basis of the evidence adduced, that "appellee's (Mendoza) communications were mere proposals while the bank's responses were not categorical that the appellee's request had been favorably accepted by the bank."

Nowhere in those letters presented by the petitioner is there a categorical statement that respondent PNB had approved the petitioners proposed five-year restructuring plan. It is stretching the imagination to construe them as evidence that his proposed five-year restructuring plan has been approved by the respondent PNB which is admittedly a banking corporation. Only an absolute and unqualified acceptance of a definite offer manifests the consent necessary to perfect a contract. If anything, those correspondences only prove that the parties had not gone beyond the preparation stage, which is the period from the start of the negotiations until the moment just before the agreement of the parties.

The doctrine of promissory estoppel is an exception to the general rule that a promise of future conduct does not constitute an estoppel. In some jurisdictions, in order to make out a claim of promissory estoppel, a party bears the burden of establishing the following elements: (1) a promise reasonably expected to induce action or forebearance; (2) such promise did in fact induce such action or forebearance, and (3) the party suffered detriment as a result.

It is clear from the forgoing that the doctrine of promissory estoppel presupposes the existence of a promise on the part of one against whom estoppel is claimed. The promise must be plain and unambiguous and sufficiently specific so that the Judiciary can understand the obligation assumed and enforce the promise according to its terms. For petitioner to claim that respondent PNB is estopped to deny the five-year restructuring plan, he must first prove that respondent PNB had promised to approve the plan in exchange for the

EL BOBBY

submission of the proposal. As discussed earlier, no such promise was proven, therefore, the doctrine does not apply to the case at bar. A cause of action for promissory estoppel does not lie where an alleged oral promise was conditional, so that reliance upon it was not reasonable. It does not operate to create liability where it does not otherwise exist.

19

2.

Of Illegitimate Children, FC 175 Art. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. The action must be brought within the same period specified in Article 173, except when the action is based on the second paragraph of Article 172, in which case the action may be brought during the lifetime of the alleged parent.

Vda de Alberto v. CA, 173 SCRA 436

VDA. de DELGADO vs. COURT OF APPEALS 363 SCRA 58 416 Phil. 263, 274 (2001)

FACTS: Carlos Delgado was the absolute owner of a parcel of land with an area of 692,549 square meter situated in the Municipality of Catarman Samar. Carlos Delgado granted and conveyed by way of donation with quitclaim all rights, title, interest claim and demand over a portion of land with an area of 165,000 square meter in favor of the Commonwealth of the Philippines. The acceptance was then made to President Quezon in his capacity as Commander-in-Chief. The Deed of Donation was executed with a condition that the said land will be used for the formation of the National Defense of the Philippines. The said parcel of land then covered by the Torrens System of the Philippines and was registered in the name of Commonwealth of the Philippines for a period of 40 years. The land was registered under TCT 0-2539-160 in favor of the Commonwealth however without any annotation.

Upon declaration of independence, the Commonwealth was replaced by Republic of the Philippines which took over the subject land and turned over to Civil Aeronautics Administration, later named Bureau of Air Transportation Office. The said agency utilizes the said land a domestic airport.

Jose Delgado filed a petition for reconveyance for a violation of the condition. The RTC ruled in favor of the plaintiff Delgado. But the CA reversed the said decision because of prescription. The petitioner filed only before 24 years o discovery which the law only requires 10 years of filing.

ISSUE: Whether or not the petitioners action for reconveyance is already barred by prescription.

RULING: The Supreme Court denied the petition and affirmed the decision of the Court of Appeals because the time of filing has been prescribed. Under Article 1144 of the Civil Code on Prescription based on written contracts, the filing of action for reconveyance is within 10 years from the time the condition in the Deed of Donation was violated. The petitioner herein filed only 24 years in the first action and 43 years in the second filing of the 2nd action.

The action for reconveyance on the alleged excess of 33, 607 square meter mistakenly included in the title was also prescribed Article 1456 of the Civil Code states, if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefits of the person from whom the property comes, if within 10 years such action for reconveyance has not been executed.

Baluyot v. Baluyot, 166 SCRA 606

Paterno v. Paterno, 186 SCRA 630

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Compulsory recognition

CF. RPC 345

Art. 345. Civil liability of persons guilty of crimes against chastity. Person guilty of rape, seduction or abduction, shall also be sentenced:

1. To indemnify the offended woman.chanrobles virtual law library

2. To acknowledge the offspring, unless the law should prevent him from so doing.chanrobles virtual law library

RPC 46. 59

Art. 46. Penalty to be imposed upon principals in general. The penalty prescribed by law for the commission of a felony shall be imposed upon the principals in the commission of such felony.chanrobles virtual law library

Whenever the law prescribes a penalty for a felony is general terms, it shall be understood as applicable to the consummated felony.chanr

Art. 59. Penalty to be imposed in case of failure to commit the crime because the means employed or the aims sought are impossible. When the person intending to commit an offense has already performed the acts for the execution of the same but nevertheless the crime was not produced by reason of the fact that the act intended was by its nature one of impossible accomplishment or because the means employed by such person are essentially inadequate to produce the result desired by him, the court, having in mind the social danger and the degree of criminality shown by the offender, shall impose upon him the penalty of arresto mayor or a fine from 200 to 500 pesos.chanr

Gapusan v. CA 185 SCRA 160

People v. Rafanan, 182 SCRA 811 FACTS: On February 27, 1976, complainant Estelita Ronaya who was then only fourteen years old was hired as a househelper by themother of the accused. The accused Policarpio Rafanan and his family lived with his mother in the same. Policarpio was then marriedand had two children.On March 16, 1976, in the evening, after dinner, Estelita Ronaya was sent by the mother of the accused to help in theirstore which was located in front of their house. Attending to the store at the time was the accused. At 11:00 o'clock in the evening,the accused called the complainant to help him close the door of the store and as the latter complied and went near him, hesuddenly pulled the complainant inside the store and said that they should have intercourse, Ronaya refused. The accused held abolo and pointed it to the throat of the complainant threatening her with said bolo should she resist. He then raped Ronaya in spiteof her resistance and struggle. After the sexual intercourse, the accused cautioned the complainant not to report the matter to hermother or anybody in the house, otherwise he would kill her. In the evening of March 17, 1976, the family of the accused learnedwhat happened that night.The principal submission of appellant is that he was suffering from a metal aberration characterized as schizophrenia whenhe inflicted his violent intentions upon Estelita. The trial court suspended the trial and ordered appellant confined at the NationalMental Hospital in Mandaluyong for observation and treatment. In the meantime, the case was archived. Appellant was admittedinto the hospital on 29 December 1976 and stayed there until 26 June 1978.On the last report dated 26 June 1978, appellant was described as behaved, helpful in household chores and no longertalking while alone. He was said to be "fairly groomed" and "oriented" and as denying having hallucinations. The report concludedthat he was in a "much improved condition" and "in a mental condition to stand court trial."Trial of the case thus resumed. The defense first presented Dr. Arturo Nerit who suggested that appellant was sick one ortwo years before his admission into the hospital, in effect implying that appellant was already suffering from schizophrenia when heraped complainant.

ISSUE: Whether or not the reason of insanity in this case is sufficient to relieve himself of criminal liability through exempting circumstance.

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HELD: NO

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RATIO: The Supreme Court of Spain held that in order that this exempting circumstance may be taken into account, it is necessary that there be a complete deprivation of intelligence in committing the act, that is ,that the accused be deprived of reason; that therebe no responsibility for his own acts; that the acts without the least discernment; or that there be a total deprivation of freedom of the will. For this reason, it was held that the imbecility or insanity at the time of the commission of the act should absolutely deprivea person of intelligence or freedom of will, because mere abnormality of his mental faculties does not exclude imputability. The allegation of insanity or imbecility must be clearly proved. Without positive evidence that the defendant hadpreviously lost his reason or was demented, a few moments prior to or during the perpetration of the crime, it will be presumed that he was in a normal condition. Acts penalized by law are always reputed to be voluntary, and it is improper to conclude that a personacted unconsciously, in order to relieve him from liability, on the basis of his mental condition, unless his insanity and absence of willare proved.Schizophrenia pleaded by appellant has been described as a chronic mental disorder characterized by inability to distinguishbetween fantasy and reality, and often accompanied by hallucinations and delusionsIn the findings of the case, testimonies negates complete destruction of intelligence at the time of commission of the actcharged which, in the current state of our caselaw, is critical if the defense of insanity is to be sustained. The fact that appellant Rafanan threatened complainant Estelita with death should she reveal she had been sexually assaulted by him, indicates, to the mind of the Court, that Rafanan was aware of the reprehensible moral quality of that assault. In any case, as already pointed out, it is complete loss of intelligence which must be shown if the exempting circumstance of insanity is to be found.The law presumes every man to be sane. A person accused of a crime has the burden of proving his affirmative allegation of insanity. Here, appellant failed to present clear and convincing evidence regarding his state of mind immediately before and duringthe sexual assault on Estelita. It has been held that inquiry into the mental state of the accused should relate to the periodimmediately before or at the very moment the act is committed. Appellant rested his case on the testimonies of two (2) physicianswhich, however, did not purport to characterize his mental condition during that critical period of time. They did not specificallyrelate to circumstances occurring on or immediately before the day of the rape. Their testimonies consisted of broad statementsbased on general behavioral patterns of people afflicted with schizophrenia.

People v. Rizo, 189 SCRA 265 Facts: Df and three others planned to rob Rao or his payroll person of the $1200 either would be carrying from the bank. Two Df had guns. They drove a car looking for Rao or the other man having the payroll. They went to the bank, then to various buildings, to no avail. Then while Df Rizzon entered a building, two police officers apprehended all four df. Neither Rao or the other man were at the place of apprehension, neither had been seen.

Issue: Whether the steps taken by the Df prior to his arrest amounts to the commission of a crime?

Holding: No.

Procedure: S. Ct. found Df guilty of attempted Robbery. Reversed and remanded for new trial.

Rule: An act, done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime. Tending = to exert activity in a particular direction.

Ct Rationale: The money wasnt taken from Rao or the other man by force or other means. Rao was not found, Dfs were still looking for him; no attempt to rob him could be made, at least until he came in sight. Rao was not in the building nor the other man when Rizzo entered. No money had been drawn from the bank for payroll by anybody at the time of arrest.

PL A: Four armed assailants stalking the known paths of a man carrying payroll is a dangerous, and near completion of the crime.

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Def A: The preparation for the crime is too remote to constitute the crime of attempt.

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Demsey v. RTC, 164 SCRA 364

Mendoza v. CA Supra

People v. Barranco, 177 SCRA 103

F.

Legitimated Children

1.

Who may be legitimated, FC 177 Art. 177. Only children conceived and born outside of wedlock of parents who, at the time of the conception of the former, were not disqualified by any impediment to marry each other may be legitimated.

2.

How legitimating takes place, FC 178, FC 180

Art. 178. Legitimation shall take place by a subsequent valid marriage between parents. The annulment of a voidable marriage shall not affect the legitimation.

Art. 180. The effects of legitimation shall retroact to the time of the child's birth.

3.

Retroactivity and effect, FC 180- 181 Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a) Art. 181. The legitimation of children who died before the celebration of the marriage shall benefit their descendants.

4.

Action to impugn, FC 162 Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable.

5.

Rights of Legitimated, FC 170 Art. 170. The action to impugn the legitimacy of the child shall be brought within one year from the knowledge of the birth or its recording in the civil register, if the husband or, in a proper case, any of his heirs, should reside in the city or municipality where the birth took place or was recorded. If the husband or, in his default, all of his heirs do not reside at the place of birth as defined in the first paragraph or where it was recorded, the period shall be two years if they should reside in the Philippines; and three years if abroad. If the birth of the child has been concealed from or was unknown to the husband or his heirs, the period shall be counted from the discovery or knowledge of the birth of the child or of the fact of registration of said birth, whichever is earlier

XIV. ADOPTION Lazatin v. Campos, 92 SCRA 250

FACTS:

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- Jan 13, 1974, Dr. Mariano Lazatin died intestatein Pasay City, survived by his wife, Margarita deAsis, and his adopted twin daughters,respondents Nora and Irma. Margaritacommenced an intestate proceeding before CFI.Several persons intervened, claiming to beadmitted illegitimate (not natural) children of Mariano.- April 11, 1974, Margarita also died, leaving aholographic will. During her lifetime, Margaritakept a safety deposit box at the People's Bankand Trust Company, which either she or Noracould open. Five days after Margarita's death,Nora opened the box and removed its contents:(a) shares of stock; (b) her adoption papers andthose of her sister Irma; and (c) jewelry belongingto her and to her mother. Nora claims that sheopened the box in good faith, believing that itwas held jointly by her and her mother. Her solereason for opening it was to get her stockcertificates and other small items. When she wasto close it, the bank personnel informed her thatshe needed court authority, in view of hermother's death and so, she removed everything.- June 3, 1974, private respondents filed apetition to probate the will of Margarita. Ramon,son of petitioner Renato Lazatin alias Renato Sta.Clara, filed a motion claiming that Margarita hadexecuted a subsequent will and demanding itsproduction. He also prayed for the opening of thesafety deposit box. Nora admitted that sheopened the box but there was no will or anydocument resembling a will therein.- Upon order of the probate court, the deposit boxwas opened on Nov 6, 1974, at which time it wasfound to be empty, because Nora had alreadyremoved its contents.- Nov 22, 1974, seven months after Margaritasdeath, petitioner Renato intervened for the firsttime in the proceedings to settle the estate of Mariano as an admitted illegitimate (not natural)child. On the same date, petitioner's son, Ramon,filed a petition in the estate proceedings of Margarita to examine private respondents on thecontents of the safety deposit box. Probate courtordered Nora to deliver the properties taken fromthe box to the Clerk of Court.- The two cases were then transferred to the salaof Judge Campos, Jr., who issued an orderrequiring Nora to produce all those papers anditems removed from the safety deposit box withinone week. Nora deposited with the Clerk of Court,not the items themselves, but two keys to a newsafety deposit box which could only be openedupon order of the court. (She was later held incontempt.)- Aug 20, 1975, Renato filed a motion tointervene in the estate of Margarita as anadopted child, on the basis of an affidavitexecuted by Benjamin Lazatin, brother of Mariano, which stated that Renato was an"illegitimate son" of Mariano and was lateradopted by him. This affidavit was later modifiedto state that petitioner was adopted by bothMariano and his wife Margarita.- Lower court allowed Renato to intervene asadopted son in the estate of Margarita. ButRenato presented no decree of adoption in hisfavor. Instead he attempted to prove that he hadrecognized the deceased spouses as his parents;he had been supported by them until their death;formerly he was known as "Renato Lazatin" butwas compelled to change his surname to "Sta.Clara" when the deceased spouses refused togive consent to his marriage to his present wife;that at first, he and his wife stayed at theresidence of Engracio de Asis, father of Margarita,but a few months later, they transferred to theMercy Hospital at Taft Avenue, Manila, owned bythe deceased spouses, where they continuouslyresided up to the present. Photographs were alsointended to be presented, e.g., photo of Irmawhere she addressed herself as his sister; photoof him and Margarita when he was a boy;document showing that his real name is "RenatoLazatin."- Lower court barred the introduction of Renatosevidence as they do not prove or have notendency to prove the existence of any judicial proceeding where the adoption was taken upby any court. Neither do the evidence tend toestablish the presence of any record of aproceeding in court where the adoption washeld. The evidence, however, tends to prove astatus of a recognized natural child which,however, is not the legal basis for which Renatoand Ramon seek to intervene. - Renato then filed in both cases a motion todeclare as established the fact of adoption inview of Nora's refusal to comply with the ordersof the court to deposit the items she hadremoved from the safety deposit box of Margarita, invoking Rule 29.3 ROC. Court deniedmotion.- April 26, 1976, Nora deposited with the courtthe items she had removed from the safetydeposit box. An inventory was conducted, and theitems surrendered consisted only of pieces of jewelry and stock certificates.- The lower court, ruling on Renatos motion fordefinite resolution on his previous motion todeclare as established the fact of adoption,issued an order stating that he has failed toestablish such status. ISSUE: HELD:NO - Adoption is a juridical act, a proceeding in remwhich creates between two persons a relationshipsimilar to that which results from legitimate paternity and filiation. Only an adoption madethrough the court, or in pursuance with theprocedure laid down under Rule 99 is valid in this jurisdiction. It is not of natural law at all, but iswholly and entirely artificial. To establish therelation, the statutory requirements must bestrictly carried out, otherwise, the adoption is anabsolute nullity. The fact of adoption is neverpresumed, but must be affirmatively proved bythe person claiming its existence. The absence of a record of adoption has been said to evolve apresumption of its non-existence. Where, underthe provisions of the statute, an adoption iseffected by a court order, the records of suchcourt constitute the evidence by which suchadoption may be established.- Renato's proofs do not show or tend to showthat at one time or another a specific court of competent jurisdiction rendered in an adoptionproceeding initiated by the late spouses an orderapproving his adoption as a child of the latter. No judicial records of such adoption or copies thereof are presented or attempted to be presented. Hemerely claims that he was judicially adoptedbetween the years 1928 and 1932. He did notshow which court decreed such adoption, and hecited no witnesses to such proceeding. Thecertification of the Local Civil Registrar of Manilathat pre-war records were destroyed or burneddoes not furnish any legal basis for a presumptionof adoption in his favor. This is because there wasno proof that he was really adopted in Manila orthat an adoption petition was filed in CFI Manilaby the deceased spouses, where, after hearing, a judgment of approval was rendered by said court.Moreover, if there was really such adoption, hecould have conveniently secured a copy of thenewspaper publication of the adoption asrequired under Rule 99.4 or a certification of thepublishing house to that effect. The one who gavethe written consent to the adoption (Rule 99.3),whether the parents or orphanage, also does notappear.- The absence of proof of such order of adoptionby the court cannot be substituted by parolevidence that a child has lived with a person, nothis parent, and has been treated as a child toestablish such adoption. Even evidence of declaration of the deceased, made in his lifetime,that he intended to adopt a child as his heir, andthat he had adopted him, and of the fact that thechild resided with the deceased, as a member of his family, from infancy until he attained hismajority, is not sufficient to establish the fact of adoption. Nor does the fact that the deceasedspouses fed, clothed, educated, recognized andreferred to Renato as an adopted childnecessarily establish adoption. Withal, theattempts of Renato to prove his adoption by actsand declarations of the deceased do notdischarge the mandatory presentation of the judicial decree of adoption. The thrust of hisevidence is rather to establish his status as anadmitted illegitimate child.Secondary evidence is nonetheless admissiblewhere the records of adoption proceedings wereactually lost or destroyed. But, prior to theintroduction of such secondary evidence, theproponent must establish the former existence of the instrument. The correct order of proof is asfollows: Existence; execution; loss; contents;although this order may be changed if necessaryin the discretion of the court The sufficiency of the proof offered as a predicate for the admissionof an alleged lost deed lies within the judicialdiscretion of the trial court under all thecircumstances of the particular case. Here,Renato failed to establish the former existence of the adoption paper and its subsequent loss ordestruction.Renato is also mistaken in claiming Rule 29should be applied to consider as established thefact of his adoption due to the refusal of Nora toproduce the document of adoption, because first, the fact or real existence of his adoption had notbeen established; second, there is no proof thatsuch document of adoption is in the possession of Nora; third, the motu proprio order of the courtfor Nora to produce the items retrieved from thesafety deposit box cannot be treated as a modeof discovery of production and inspection of documents under Rule 27; and fourth, the itemsdeposited in the box have already WON Renato has established his status asadopted child of the deceased spouses.

beensurrendered by Nora and no document of adoption in his favor was listed as found in thebox.- As a necessary consequence, Renato cannotproperly intervene in the settlement of the estateof Margarita as an adopted child because of lackof proof thereof. For one to intervene in an estateproceeding, it is a requisite that he has aninterest in the estate, either as one who would bebenefited as an heir or one who has a claimagainst the estate like a creditor. A child byadoption cannot inherit from the parent byadoption unless the act of adoption has beendone in strict accord with the statue. Until this isdone, no rights are acquired by the child andneither the supposed adopting parent or adoptedchild could be bound thereby. The burden of proof in establishing adoption is upon the personclaiming such relationship. He must provecompliance with the statutes relating to adoptionin the jurisdiction where the adoption occurred. Afortiori if no hereditary interest in the estate canbe gained by a claimant who failed to submitproof thereof, whether the will is probated or not,intervention should be denied as it would merelyresult in unnecessary complication. To succeed, achild must be ligitimate, legitimated, adopted,acknowledged illegitimate natural child or naturalchild by legal fiction or recognized spurious child.

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Cervantes v. Fajardo, 169 SCRA 575 Facts: This is a petition for a writ of Habeas Corpus over the person of the minorAngelie Anne Cervantes.Angelie Ann Cervantes was born on 14 February 1987 to Conrado Fajardo andGina Carreon, who are common-law husband and wife. They offered the child foradoption to Gina Carreon's sister and brother-in-law, Zenaida Carreon-Cervantesand Nelson Cervantes, spouses, who took care and custody of the child when shewas barely two weeks old. An Affidavit of Consent to the adoption of the child wasexecuted by respondent Gina Carreon. The petition for adoption was filed bypetitioners before the RTC of Rizal, which granted the petition.Sometime in 1987, the adoptive parents, Nelson and Zenaida Cervantes,received a letter from the respondents demanding to be paid the amount of P150,000.00, otherwise, they would get back their child. Petitioners refused. As aresult, while petitioners were out at work, the Gina Carreon took the child from her"yaya" at the petitioners' residence, on the pretext that she was instructed to do soby her mother. Gina Carreon brought the child to her house. Petitioners demandedthe return of the child, but Gina Carreon refused, saying that she had no desire togive up her child for adoption and that the affidavit of consent to the adoption shehad executed was not fully explained to her. Issue: Whether or not the natural parents or the adoptive parents have custodyover Angelie Ann Cervantes. Held: The custody and care of the minor Angelie Anne Cervantes are granted topetitioners, Zenaida and Nelson Cervantes, to whom they properly belong. Ratio: In all cases involving the custody, care, education and property of children,the latter's welfare is paramount. The provision that no mother shall be separatedfrom a child under five (5) years of age, will not apply where the Court findscompelling reasons to rule otherwise. In all controversies regarding the custody of minors, the foremost consideration is the moral, physical and social welfare of thechild concerned, taking into account the resources and moral as well as socialstanding of the contending parents.Conrado Fajardo's relationship with the Gina Carreon is a commonlawhusband and wife relationship. His open cohabitation with Gina will not accord theminor that desirable atmosphere where she can grow and develop into an uprightand moral-minded person. Gina Carreon had also previously given birth to anotherchild by another married man with whom she lived for almost three (3) years butwho eventually left her and vanished. For a minor to grow up with a sister whose"father" is not her true father, could also affect the moral outlook and values of saidminor. Upon the other hand, petitioners who are legally married appear to bemorally, physically, financially, and socially capable of supporting the minor andgiving her a future better than what the natural mother, who is not only jobless butalso maintains an illicit relation with a married man, can most likely give her.Minor has been legally adopted by petitioners with the full knowledge andconsent of respondents. A decree of adoption has the effect of dissolving theauthority vested in natural parents over the adopted child. The adopting parentshave the right to the care and custody of the adopted child and exercise parentalauthority and responsibility over him.

Republic v. Court of Appeals, 255 SCRA 99, March 15, 1996 A. Who may adopt

1.

Age and capacity required, FC 183 Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family. Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title. In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted.

2.

Husband and wife jointly, FC 185- 186 Art. 185. Husband and wife must jointly adopt, except in the following cases:

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(1) When one spouse seeks to adopt his own illegitimate child; or (2) When one spouse seeks to adopt the legitimate child of the other. (29a, E. O. 91 and PD 603)

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Art. 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code.

Republic v. CA and Bobiles, January 24, 1992

FACTS:

Zenaida Corteza Bobiles filed a petition to adopt Jason Condat who had been living with her family since 4 months old. Salvador Condat, father of the child, and the social worker assigned was served with copies of the order finding that the petition was sufficient in form and substance. The copy was also posted on the bulletin board of the court. Nobody appeared to oppose the petition. The judgment declared that surname of the child be changed to Bobiles.

ISSUE: WON the petition to adopt Jason should be granted considering only Zenaida filed the petition.

HELD:

The petition for adoption was filed when the law applicable was PD 603 (Child and Youth Welfare Code), where such petition may be filed either of the spouses or both of them. After the trial court rendered its favorable decision and while the case was pending on appeal in CA, Family Code took effect where joint adoption of both spouses is mandatory.

Non-joinder is not a ground for the dismissal of an action or a special proceeding. The Family Code will have retrospective application if it will not prejudice or impair vested rights. When Zenaida filed the petition, she was exercising her explicit and unconditional right under said law in force at the time and thus vested and must not be prejudiced. A petition must not be dismissed by reason of failure to comply with law not yet in force and effect at the time. Furthermore, the affidavit of consent attached by the husband showed that he actually joined his wife in adopting Jayson. His declarations and subsequent confirmatory testimony in open court was sufficient to make him a co-petitioner. Future of an innocent child must not be compromised by arbitrary insistence of rigid adherence to procedural rules on the form of the pleadings.

3.

Need for consent, FC 188

Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over, (2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; (3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted.

Santos v. Aransanzo, 16 SCRA 344

Daoang v. Municipal Judge of San Nicolas

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GR L-34568, 28 March 1988 (159 SCRA 369)

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Facts:

On 23 March 1971, spouses Antero and Amanda Agonoy filed a petition with the Municipal Court of San Nicolas, Ilocos Norte seeking the adoption of minors Quirino Bonilla and Wilson Marcos. However, minors Roderick and Rommel Daoang, assisted by their father and guardian ad litem, the petitioners herein filed an opposition to the said adoption. They contended that the spouses Antero and Amanda Agonoy had a legitimate daughter named Estrella Agonoy, oppositors mother, who died on 1 March 1971, and therefore said spouses were disqualified to adopt under Article 335 of the Civil Code, which provides that those who have legitimate, legitimated, acknowledged natural children or children by legal fiction cannot adopt.

Issue: Whether the spouses Antero Agonoy and Amanda Ramos are disqualified to adopt under paragraph 1 of Article 335 of the Civil Code.

Held:

The words used in paragraph (1) of Article 335 of the Civil Code, in enumerating the persons who cannot adopt, are clear and unambiguous. When the New Civil Code was adopted, it changed the word descendant, found in the Spanish Civil Code to which the New Civil Code was patterned, to children. The children thus mentioned have a clearly defined meaning in law and do not include grandchildren. Well known is the rule of statutory construction to the effect that a statute clear and unambiguous on its face need not be interpreted. The rule is that only statutes with an ambiguous or doubtful meaning may be the subjects of statutory construction. In the present case, Roderick and Rommel Daoang, the grandchildren of Antero Agonoy and Amanda Ramos-Agonoy, cannot assail the adoption of Quirino Bonilla and Wilson Marcos by the Agonoys. The Supreme Court denied the petition, and affirmed the judgment of the Municipal Court of San Nicolas, Ilocos Norte (Special Proceedings 37), wthout pronouncement as to costs.

Nieto v. Magat, 136 SCRA 533 Facts: Spouses Ernesto and Matilde Magat reared as their own child Roy Sumintac, who is their nephew, from his birth until the spouses went to Guam to work when the boy was already four years old. They petitioned the court to allow them to adopt Roy, but the trial court denied this, on the ground that they are non-residents of the Philippines and that the trial custody as required under P.D. No. 603 cannot be effected. They went to the Supreme Court to have the decision reviewed. Issues: Whether or not residency in another country disqualifies the couple from adopting, and whether or not the trial custody is a mandatory requirement. Ruling: Negative on both questions. The fact that the prospective adopters reside temporarily in a foreign country does not disqualify them from adopting a minor child. On the second issue, the law specifically authorizes the court, either upon its own or on petitioners motion, to dispense with the trial custody if it finds that it is to the best interest of the child. In this case, the Minister of Social Services and Development suggests that trial custody is unnecessary because the child was already comfortable with the couple and the couple was capable of disciplining the child.

Duncan v CFI, 69 SCRA 298 DUNCAN V CFI OF RIZAL 69 SCRA 298February 10, 1976; ESGUERRA, J.LORA FACTS - Petitioners Robin Francis Radley Duncan andMaria Lucy Christensen are husband and wife, theformer a British national residing in thePhilippines for the last 17 years and the latter anAmerican Citizen born in and a resident of thePhilippines.- A child, only 3 days old was given to petitionersfor them to adopt, by Atty. Corazon de LeonVelasquez. The child was later on baptized asColin Berry Christensen Duncan with theaforementioned spouses appearing in the recordsof said baptism as the parents of said child- Atty. Corazon de Leon Velasquez received theinfant from the child's unwed mother who told theformer never to reveal her (the mother's) identitybecause she wanted to get married and did notwant to destroy her future. The mother instructedAtty. Corazon de Leon Velasquez to look for asuitable couple who will adopt the child. Themother did not provide for the maintenance andsupport of her child- In the petition for adoption filed by petitionersAtty. Velasquez, as the de facto guardian or locoparentis of the child subject of the adoptionpetition, gave the written consent required by law-

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Learning from the testimony of witness Atty.Velasquez that the natural mother of the childsought to be adopted was still alive, the courtthen pressed upon the witness to reveal theidentity of said mother. The witness refused todivulge the same on the ground that thereexisted an attorney and client relationshipbetween them. She had been instructed by herclient not to reveal the latter's identity. She couldnot now violate such privileged communication.- The petition for adoption was dismissed. Theprincipal reason given for the dismissal of thepetition was that ". . . the consent given in thispetition Exhibit "J" is improper and falls short of the express requirement of the law."- CFI: The contention that for her (Atty. Corazonde Leon Velasquez, the witness for the petitionerswho gave the written consent to the adoption of the child in her capacity as loco parentis to saidchild) to reveal the identity of the mother wouldbe violative of the client-attorney relationshipexisting between her and the mother cannot holdwater, because in the first place, there was nosuch relationship existing between them in so faras this case is concerned and secondly, it is notonly a question of revealing the identity of themother but rather, of giving consent to theadoption by that alleged unwed mother. ISSUE WON the person who gave the consent foradoption, which in this case is Atty. Corazon deLeon Velasquez, is the proper person required bylaw to give such consent.

27

HELD YES.- Art. 340 of the Civil Code. The written consent of the following to adoption shall be necessary:(1) The person to be adopted, if fourteen years of age or over;(2) The parents, guardian or person in charge of the person to be adopted.- Rule 99, Sec. 3.Consent to adoption. There shallbe filed with the petition a written consent to theadoption signed by the child, if fourteen years of age or over and not incompetent, and by thechild's spouse, if any, and by each of its knownliving parents who is not an insane or hopelesslyintemperate or has not abandoned such child, orif there are no such parents by the generalguardian, or guardian ad litem of the child, or if the child is in the custody of an orphan asylum,children's home, or benevolent society or person,by the proper officer or officers of such asylum,home or society, or by such person; but if the child is illegitimate and has not been recognized,the consent of its father to the adoption shall notbe required.- Going by the set of facts in this case, only one of two persons particularly described by law may beconsidered here as legally capable of giving therequired written consent. They are:1. Under Art. 340 of the Civil Code: parent,guardian or person in charge of the person to beadopted2. Rule 99.3 of the Rules of Court: each of theknown living parents who has not abandonedsuch child.- The father's consent here is out of the questionas the child is illegitimate and unrecognized.- The natural and unwedded mother, from thatdate on to the time of the adoption proceedingsin court which started in mid-year of said 1967,and up to the present, has not bothered toinquire into the condition of the child, much lessto contribute to the livelihood, maintenance andcare of the same.- In short, this parent is the antithesis of thatdescribed in the law as "known living parent whois not insane or hopelessly intemperate or has notabandoned such child."- Said mother had completely and absolutelyabandoned her child. Abandonment

imports any conduct on the part of the parent which evinces asettled purpose to forego all parental claims tothe child . Applying this legal yardstick, theunidentified mother of the child in this case canbe declared, as she is hereby declared, as havingabandoned her child with all legal consequencesattached thereto.- Having declared that the child was anabandoned one by an unknown parent, thereappears to be no more legal need to require thewritten consent to such parent of the child to theadoption.-Santos vs. Aranzanso: the parental consentrequired by the law in adoption proceedingsrefers to parents who have not abandoned theirchild.- Since there had been no showing that theidentity of the natural mother was made knownto the trial court or to the herein petitioners, norhad said mother seen fit to present herself beforethe court despite the public notice given to theproceedings as required by law, there clearlyappears only one person who could be consideredas the guardian exercising patria potestas oversuch abandoned child. Since there was noguardian ad litem appointed by the court and thechild not being in the custody of an orphanasylum, children's home or any benevolentsociety, there could not have been anyone otherthan Atty. Corazon de Leon Velasquez who could,with reason, be called the guardian of said infant.- It was she who had actual physical custody of the infant and who, out of compassion andmotherly instinct, extended the mantle of protection over the hapless and helpless infantwhich otherwise could have suffered a tragic fate,like being thrown into some garbage heap as hadoften happened to some unwanted illegitimatebabies.- Court stated that the least that it could do is torecognize and acknowledge her good Samaritandeed is to extend, as it hereby extends, to herthe recognition that she was a de facto guardianexercising patria potestas over the abandonedchild.- The trial court in its decision had sought refugein the ancient Roman legal maxim "Dura lex sedlex" to cleanse its hands of the hard and harshdecision it rendered. While this old adagegenerally finds apt application in many otherlegal cases, in adoption of children, however, thisshould be softened so as to apply the law withless severity and with compassion and humaneunderstanding, for adoption is more for thebenefit of unfortunate children, particularly thoseborn out of wedlock, than for those born with asilver spoon in their mouths.The herein petitioners appear to be qualified toadopt the child. There is no showing that theysuffer from any of the disqualifications under thelaw. Above all, they have the means to providethe child with the proper support, care, educationand love that a growing child needs, even if theyhave previously adopted another child as theirs.- The fact that even before they have applied forlegal custody and adoption of the infant theyhave already showered it with love and care andhad it baptized, with them appearing in therecords of the baptism as the parents of the child,speaks well of the genuine desire of petitioners tohave the child as their very own. The child wasborn in May, 1967, and he will be at this time,1976, about 9 years of age. In all the years, fromthe time he was turned over to the hereinpetitioners when he was only about a week old,(there is no showing that the said child was everplaced at any time in the care and custody of some other persons) he had been cared for andloved by the spouses Robin Francis RadleyDuncan and Maria Lucy Christensen. He musthave known no other parents than these persons.- To sustain the decision of the court below,Court will be doing a graver injustice to allconcerned particularly to said spouses, andworse, it will be imposing a cruel sanction on thisinnocent child and on all other children whomight be similarly situated.- Court considered it to be justifiable and morehumane to formalize a factual relation, that of parents and son, existing between the petitioningspouses and the minor child baptized by them asColin Berry Christensen Duncan, than to sustainthe hard, harsh and cruel interpretation of the lawthat was done by the respondent court and Judge.

Disposition

EL BOBBY

Decision annulled and the minorColin Berry Christensen Duncan declared theadopted child and the heir of petitioners RobinFrancis Radley Duncan and Maria LucyChristensen.

28

Cang v. Court of Appeals, CANG V. COURT OF APPEALS [&SPS. CLAVANO] 296 SCRA 128; ROMERO; Sept 25, 1998MARGE FACTS:

296

SCRA

128,

September

25,

1998

-Spouses Herbert Cang and Anna Marie Clavanobegot 3 children: Keith, Charmaine and JosephAnthony. During the early years of their marriage,the Cang couples relationship was undisturbed.Not long thereafter, however, Anna Marie learnedof her husbands alleged extramarital affair withWilma Soco, a family friend of the Clavanos.-Upon learning of her husbands alleged illicitliaison, Anna Marie filed a petition for legalseparation with alimony pendente lite with thethen JDRC of Cebu which rendered a decisionapproving the joint manifestation of the Cangspouses providing that they agreed to liveseparately and apart or from bed and board. They further agreed that their children shall beentitled to a monthly support of P1,000,constituting constitute a first lien on the netproceeds of the house and lot jointly owned bythe parties.-Herbert Cang then for Nevada, USA where hesought a divorce from Anna Marie. The divorcedecree was granted. Sole custody of the threeminor children was granted to Anna Marie,

SPECPRO DIGESTS RDS 5-6 A2010 PROF. BATTAD reserving rights of visitation at all reasonabletimes and places to Herbert.-Thereafter, Herbert took an American wife andthus became a naturalized American citizen. In1986, he divorced his American wife and neverremarried. While in US, a portion of his incomewas remitted to the Phils for his childrensexpenses and/or deposited in the bank in thename of his children.-Sept 25, 1987: Sps. Ronald and Maria ClaraClavano [brother and sister-in-law of Anna Marie]filed Spec Proc No. 1744-CEB for the adoption of the three minor Cang children before RTC Cebu. The petition bears the signature of then 14-yr-oldKeith signifying consent to his adoption. AnnaMarie likewise filed an affidavit of consentalleging that her husband had evaded his legalobligation to support his children; that herbrothers and sisters including Ronald V. Clavano,had been helping her in taking care of thechildren; that because she would be going to theUS to attend to a family business, leaving thechildren would be a problem and would naturallyhamper (her) job-seeking venture abroad; andthat her husband had long forfeited his parentalrights over the children.-Upon learning of the petition for adoption,Herbert immediately returned to the Phils andfiled an opposition thereto, alleging that,although the Sps Clavano were financiallycapable of supporting the children, he could notin conscience, allow anybody to strip him of hisparental authority over his beloved children.-Pending resolution of the petition for adoption,Herbert moved to reacquire custody over hischildren alleging that Anna Marie had transferredto the US thereby leaving custody of theirchildren to Sps Clavano.-Jan 11, 1988: RTC Cebu City Br. 19 issued anorder finding that Anna Marie had, in effect,relinquished custody over the children and,therefore, such custody should be transferred tothe father. The court then directed the Clavanosto deliver custody over the minors to Herbert.-March 27, 1990: RTC Cebu City Br. 14 issued thedecree of adoption, citing as impelling reasonsthe ff:(1) the Cang childrens close filial ties with theClavano family;(2) the childless Clavano spouses had substantialassets and income;(3) the natural mother Anna Marie approved of the adoption;(4) the Clavanos could provide the children moraland spiritual direction;(5) the children manifested their desire to beadopted by the Clavanos.-RTC further ruled that Herberts oppositionrested on a very shaky foundation because of its findings that:(1) Herbert is morally unfit to be the father of hischildren(2) Authenticity of joint deposit of around $10,000could not be verified(3) Possibility of reconciliation w/ Anna Marie wasdim if not nil(4) as US citizen, his attachment w/ Filipinochildren is an open question-RTC quoted with approval theevaluation/recommendation of the RTC SocialWorker in her Child Study Report, that theoppositor Herbert Cang has abandoned hischildren thereby dispensing with his consent tothe adoption.-CA affirmed the decree of adoption, ruling that:(1) Consent of the parent who has abandoned thechild is not necessary. In adoption cases,abandonment connotes any conduct on the partof the parent to forego parental duties andrelinquish parental claims to the child, or theneglect or refusal to perform the natural andlegal obligations which parents owe their childrenor the withholding of the parents presence, hiscare and the opportunity to display voluntaryaffection.(2) Oppositors argument that he has beensending dollar remittances to the children isbelied by the fact that he was woefully in arrearsunder the terms of the divorce decree. His claimthat he has maintained bank accounts in thechildrens name is negated when we considerthat such bank accounts were withdraw-able byhim alone.-Herbert filed MFR but CA denied the same. ISSUE: WON the minor children be legally adoptedwithout the written consent of their naturalparent HELD: NO. Both RTC and CA failed to appreciate facts andcircumstances that should have elicited adifferent conclusion on the issue of WONpetitioner has so abandoned his children, therebymaking his consent to the adoption unnecessary.But here, there was no abandonment. [guys, sorry ang haba ng digest. ang dami kasingdoctrines, eh.. ^_^] -Written consent of natural father is required byArt.31(2) of PD No. 603, the Child and YouthWelfare Code2, and Art.188(2) of the FamilyCode3. -Jurisdiction being a matter of substantive law,the established rule is that the statute in force atthe time of the commencement of the actiondetermines the jurisdiction of the court. As such,when Clavano spouses filed the petition foradoption on September 25, 1987, the applicablelaw was the PD 603, as amended by EO91.-During the pendency of the petition for adoptionor on Aug 3, 1988, the Family Code took effect.Article 256 of the Family Code provides for itsretroactivity insofar as it does not prejudice orimpair vested or acquired rights in accordancewith the Civil Code or other laws.-Notwithstanding the amendments to the law, thewritten consent of the natural parent to theadoption has remained a requisite for its validity

EL BOBBY

Bobanovic v. Moniks, 142 SCRA 485

29

Pardo

de

Tavera

v.

Cacdac,

167

SCRA

686

B.

Who may not adopt, FC 184 Art. 184. The following persons may not adopt: (1) The guardian with respect to the ward prior to the approval of the final accounts rendered upon the termination of their guardianship relation; (2) Any person who has been convicted of a crime involving moral turpitude; (3)An alien, (a) A former Filipino citizen who seeks to adopt a relative by consanguinity; (b) One who seeks to adopt the legitimate child of his or her Filipino spouse; or (c) One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative by consanguinity of the latter. Aliens not included in the foregoing exceptions may adopt Filipino children in accordance with the rules on inter-country adoptions as may be provided by law. except:

C.

Who may be adopted FC 183, FC 185

Art. 183. A person of age and in possession of full civil capacity and legal rights may adopt, provided he is in a position to support and care for his children, legitimate or illegitimate, in keeping with the means of the family.

Only minors may be adopted, except in the cases when the adoption of a person of majority age is allowed in this Title.

In addition, the adopter must be at least sixteen years older than the person to be adopted, unless the adopter is the parent by nature of the adopted, or is the spouse of the legitimate parent of the person to be adopted.

Art. 185. Husband and wife must jointly adopt, except in the following cases:

(1) When one spouse seeks to adopt his own illegitimate child; or

(2) When one spouse seeks to adopt the legitimate child of the other.

In

re

Adoption

of

Edwin

Villa,

21

SCRA

399

D.

Who may not be adopted, FC 187 Art. 187. The following may not be adopted: (1) A person of legal age, unless he or she is a child by nature of the adopter or his or her spouse, or, prior to the adoption, said person has been consistently considered and treated by the adopter as his or her own child during minority. (2) An alien with whose government the Republic of the Philippines has no diplomatic relations; and (3) A person who has already been adopted unless such adoption has been previously revoked or rescinded.

E.

EL BOBBY

Effect of Adoption

30

Cervantes v. Fajardo, Supra

1.

Status, FC 189 (1) Art. 189. Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters;

2.

Art. 189. Adoption shall have the following effects: (1) For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters; (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and (3) The adopted shall remain an intestate heir of his parents and other blood relatives.

3.

Parental Authority, FC 189 (2), FC 186

Art. 186. In case husband and wife jointly adopt or one spouse adopts the legitimate child of the other, joint parental authority shall be exercised by the spouses in accordance with this Code.

Art. 189. Adoption shall have the following effects: (2) The parental authority of the parents by nature over the adopted shall terminate and be vested in the adopters, except that if the adopter is the spouse of the parent by nature of the adopted, parental authority over the adopted shall be exercised jointly by both spouses; and

In Re: Habeas Corpus of Angelic Cervantes, 1169 SCRA 579

4.

Succession,

FC

189

(3)

F.

Effect on testate succession, FC 190 Art. 190. Legal or intestate succession to the estate of the adopted shall be governed by the following rules: (1) Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted, in accordance with the ordinary rules of legal or intestate succession; (2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the adopted concur with the adopter, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; (3) When the surviving spouse or the illegitimate children of the adopted concur with the adopters, they shall divide the entire estate in equal shares, one-half to be inherited by the spouse or the illegitimate children of the adopted and the other half, by the adopters. (4) When the adopters concur with the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; (5) When only the adopters survive, they shall inherit the entire estate; and (6) When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply.

G.

Rescission of Adoption

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1.

By the adopted, FC 191

31

Art. 191. If the adopted is a minor or otherwise incapacitated, the adoption may be judicially rescinded upon petition of any person authorized by the court or proper government instrumental acting on his behalf, on the same grounds prescribed for loss or suspension of parental authority. If the adopted is at least eighteen years of age, he may petition for judicial rescission of the adoption on the same grounds prescribed for disinheriting an ascendant.

2.

By the adopters, FC 192 Art. 192. The adopters may petition the court for the judicial rescission of the adoption in any of the following cases: (1) If the adopted has committed any act constituting ground for disinheriting a descendant; or (2) When the adopted has abandoned the home of the adopters during minority for at least one year, or, by some other acts, has definitely repudiated the adoption.

3.

Affect of rescission, FC 193 Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both. Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his surname prior to the adoption. The court shall accordingly order the amendment of the records in the proper registries.

XV. SUPPORT A. What comprises support, FC 194 Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

B.

Who are obliged to provide support?

Pelayo v. Lauron, 12 Phil 453 FACTS: On November 23, 1906, Arturo Pelayo, a physician, filed a complaint against Marcelo and Juana Abella. He alleged that on October 13, 1906 at night, Pelayo was called to the house of the defendants to assist their daughter-in-law who was about to give birth to a child. Unfortunately, the daughter-in-law died as a consequence of said childbirth. Thus, the defendant refuses to pay. The defendants argue that their daughter-in-law lived with her husband independently and in a separate house without any relation, that her stay there was accidental and due to fortuitous event.

ISSUE: Whether or not the defendants should be held liable for the fees demanded by the plaintiff upon rendering medical assistance to the defendants daughter-in-law.

RULING: No. The Court held that the rendering of medical assistance is one of the obligations to which spouses are bound by mutual support, expressly determined by law and readily demanded. Therefore, there was no obligation on the part of the in-laws but rather on the part of the husband who is not a party.

EL BOBBY

Thus, decision affirmed.

32

Sanchez v. Zulueta, 68 Phil. 110

Reyes

v.

Ines-

Luciano,

88

SCRA

803

C.

Source of support, FC 197- 195 cf. FC 40, 70, 94, 122 Art. 194. Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family. The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work. (290a) Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and (5) Legitimate brothers and sisters, whether of full or half-blood Art. 196. Brothers and sisters not legitimately related, whether of the full or half-blood, are likewise bound to support each other to the full extent set forth in Article 194, except only when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant's fault or negligence. Art. 197. In case of legitimate ascendants; descendants, whether legitimate or illegitimate; and brothers and sisters, whether legitimately or illegitimately related, only the separate property of the person obliged to give support shall be answerable provided that in case the obligor has no separate property, the absolute community or the conjugal partnership, if financially capable, shall advance the support, which shall be deducted from the share of the spouse obliged upon the liquidation of the absolute community or of the conjugal partnership. Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties.

Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; (4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; (7) Ante-nuptial debts of either spouse insofar as they have redounded to the benefit of the family;

EL BOBBY

(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; (9) Ante-nuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a, 162a, 163a, 202a-205a) Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of the family. Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.

33

Lerma v. CA, 61 SCRA 440 December 20, 1974 FACTS: Teodoro E. Lerma and Concepcion Diaz were married on May 19, 1951. On August 22,1969 the petitioner filed a complaint for adultery against the respondent and a certain TeodoroRamirez and on September 26, 1972 the court of First Instance of Rizal decided the adulterycase of the respondent and found her and her co-accused, Teodoro Ramirez, guilty of thecharge, sentencing them to a term of imprisonment. During the pendency of the adultery caseagainst the respondent, wife On November 18, 1969 the respondent filed with the lower court,a complaint against the petitioner for legal separation and/or separation of properties, custodyof their children and support, with an urgent petition for support pendente lite for her and theiryoungest son, Gregory, who was then and until now is in her custody. The respondent'scomplaint for legal separation is based on two grounds: concubinage and attempt against herlife. The application for support pendente lite was granted in an order dated December 24,1969, which was amended in an order dated February 15, 1970. The petitioner filed hisopposition to the respondent's application for support pendente lite , setting up as defense theadultery charge he had filed against the respondentOn March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorariand prohibition with preliminary injunction to annul the aforementioned orders on the groundthat they were issued with grave abuse of discretion. The next day the respondent court gavedue course to the petition and issued a writ of preliminary injunction to stop Judge Lucianofrom enforcing said orders. The respondent court, in its decision of October 8, 1970, set aside the assailed orders andgranted the petitioner an opportunity to present evidence before the lower court in support of his defense against the application for support pendente lite . The respondent moved to reconsider the decision on the ground that the petitioner had notasked that he be allowed to present evidence in the lower court. The respondent court, in itsresolution of January 20, 1971, set aside the decision of October 8 and rendered another,dismissing the petition. This is now the subject of the instant proceeding for review. ISSUE: W/N the lower court acted with grave abused of discretion in granting the respondentsapplication for support pendente lite without giving the petitioner an opportunity to presentevidence in support of his defense against the said application. HELD: Court of Appeals January 20, 1971 resolution and the orders of respondent Juvenile andDomestic Relations Court herein complained of, dated December 24, 1969 and February 15,1970, all are set aside and their enforcement enjoined, without prejudice to such judgment asmay be rendered in the pending action for legal separation between the parties. The right to separate support or maintenance, even from the conjugal partnership property,presupposes the existence of a justifiable cause for the spouse claiming such right to liveseparately. This is implicit in Article 104 of the Civil Code, which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately from eachother. A petition in bad faith, such as that filed by one who is himself or herself guilty of an actwhich constitutes a ground for legal separation at the instance of the other spouse, cannot beconsidered as within the intendment of the law granting separate support. In fact under Article303 of the same Code the obligation to give support shall cease "when the recipient, be he aforced heir or not, has committed some act which gives rise to disinheritance;" and underArticle 921 one of the causes for disinheriting a spouse is "when the spouse has given causefor legal separation." The loss of the substantive right to support in such a situation isincompatible with any claim for support pendente lite . D. Order of Support

EL BOBBY

34

Art. 199. Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided: (1) The spouse; (2) The descendants in the nearest degree; (3) The ascendants in the nearest degree; and (4) The brothers and sisters. (294a)

E.

Manner and time of payment, FC 200- 204 Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a) Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a) Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a) chan robles virtual law library Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a) Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto Canonizado v. 127 SCRA 610

F.

Amount of Support, FC 200 208 Art. 200. When the obligation to give support falls upon two or more persons, the payment of the same shall be divided between them in proportion to the resources of each. However, in case of urgent need and by special circumstances, the judge may order only one of them to furnish the support provisionally, without prejudice to his right to claim from the other obligors the share due from them. When two or more recipients at the same time claim support from one and the same person legally obliged to give it, should the latter not have sufficient means to satisfy all claims, the order established in the preceding article shall be followed, unless the concurrent obligees should be the spouse and a child subject to parental authority, in which case the child shall be preferred. (295a) Art. 201. The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient. (296a) Art. 202. Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same. (297a) chan robles virtual law library Art. 203. The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extra-judicial demand. Support pendente lite may be claimed in accordance with the Rules of Court.

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Payment shall be made within the first five days of each corresponding month or when the recipient dies, his heirs shall not be obliged to return what he has received in advance. (298a) Art. 204. The person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has a right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto. (299a) Art. 205. The right to receive support under this Title as well as any money or property obtained as such support shall not be levied upon on attachment or execution. (302a) Art. 206. When, without the knowledge of the person obliged to give support, it is given by a stranger, the latter shall have a right to claim the same from the former, unless it appears that he gave it without intention of being reimbursed. (2164a) Art. 207. When the person obliged to support another unjustly refuses or fails to give support when urgently needed by the latter, any third person may furnish support to the needy individual, with right of reimbursement from the person obliged to give support. This Article shall particularly apply when the father or mother of a child under the age of majority unjustly refuses to support or fails to give support to the child when urgently needed. (2166a) Art. 208. In case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution. Furthermore, contractual support shall be subject to adjustment whenever modification is necessary due to changes of circumstances manifestly beyond the contemplation of the parties.

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G.

Support pendent lite, FC 188 Art. 188. The written consent of the following to the adoption shall be necessary: (1) The person to be adopted, if ten years of age or over, (2) The parents by nature of the child, the legal guardian, or the proper government instrumentality; (3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate children, ten years of age or over, of the adopting parent, if living with said parent and the latter's spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted.

XVI. PARENTAL AUTHORITY

A.

Concept of Parental Authority, FC 209 Art. 209. Pursuant to the natural right and duty of parents over the person and property of their unemancipated children, parental authority and responsibility shall include the caring for and rearing them for civic consciousness and efficiency and the development of their moral, mental and physical character and well-being.

B.

Transfer of Parental Authority, FC 210 cf. FC 234

Art. 210. Parental authority and responsibility may not be renounced or transferred except in the cases authorized by law.

Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years. Emancipation also takes place: (1) By the marriage of the minor; or (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least eighteen years of age. Such emancipation shall be irrevocable.

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C. Who exercises Parental Authority, FC 211- 213?

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Art. 211. The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Children shall always observe respect and reverence towards their parents and are obliged to obey them as long as the children are under parental authority. (311a) chan robles virtual law library Art. 212. In case of absence or death of either parent, the parent present shall continue exercising parental authority. The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children. (n) Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

Hontiveros v. IAC 132 SCRA 745

Facts:

Petitioner Alejandro Hontiveros, Jr. and Private respondent Brenda M Hernandez are the parents of Margaux H. Hontiveros born on Nov. 27, 1981.

From Nov. 1981 to June 1982 the child is under the custody of the mother. On June 21, 1982 Alejandro Hontiveros, Jr. passed by the house of the respondent to take the child and promised to returned it but it never happen.

On August 24, 1982 the mother file a petition for habeas corpus against the father to produce their child Margaux. On the other hand the petition Alejandro filed a petition for custody of the minor Migaux under the special proceeding no. 9788. However, Alejandro abandoned the petition, for which reason Judge Rizalina Bonifacio Vera dismissed said petition.

On May 24, 1983 Alejandro file an urgent ex parte petition for the issuance of a writ of preliminary injunction to prevent Brenda to take Margaux outside the country (U.S.). On May 30, 1983 the petition was denied because the motion of Brenda for withdrawal of habeas corpus was granted because it becomes moot and academic when Margaux appeared before Judge Raada. The petition of Alejandro is just an ancillary action to Habeas corpus. Hence, Alejandro filed a motion for reconsideration but it was denied by the respondent Judge Cainglet for the reason of lack of factual and legal justification on August 17, 1983.

Issue: 1. Whether or not the order of respondent judge dated May 30, 1983 was issued with grave abuse of discretion in denying the petitions of the petitioners. 2. Whether or not Alejandro is entitled to the custody of his child Margaux.

Ruling:

The petition is hereby denied with cost against petitioner.

Held: The respondent judge merely exercised his sound discretion in allowing the withdrawal of the habeas corpus. The case of habeas corpus becomes moot and academic when the body of Margaux was already produced in court before Judge Raada. The petitioner also chose the wrong remedy, he should not abandoned his custody case No. 9788 where his petition for injunction can be raised properly. It is clear that the mother has a legal right to take the minor child under her custody and the petitioner failed to justify that the mother is unfit to take care of their child.

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If the petitioner believed that Brenda will bring their child to the U.S. he should raised that to the custody proceeding no. 9788 that he abandoned.

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Unson v. Navarro, 101 SCRA 183

D.

Substitute Parental Authority, FC 214- 216, FC 233 Art. 214. In case of death, absence or unsuitability of the parents, substitute parental authority shall be exercised by the surviving grandparent. In case several survive, the one designated by the court, taking into account the same consideration mentioned in the preceding article, shall exercise the authority. (355a) Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. Art. 216. In default of parents or a judicially appointed guardian, the following person shall exercise substitute parental authority over the child in the order indicated (1) The surviving grandparent, as provided in Art. 214; (2) The oldest brother or sister, over twenty-one years of age, unless unfit or disqualified Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child.

E.

Special Parental Authority, FC 218- 219, FC 233 Art. 218. The school, its administrators and teachers, or the individual, entity or institution engaged in child are shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody. Authority and responsibility shall apply to all authorized activities whether inside or outside the premises of the school, entity or institution. (349a) Art. 129. Those given the authority and responsibility under the preceding Article shall be principally and solidarily liable for damages caused by the acts or omissions of the unemancipated minor. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable. Art. 233. The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. In no case shall the school administrator, teacher of individual engaged in child care exercising special parental authority inflict corporal punishment upon the child.

CF FC 221 in Rel. To NCC, 2180

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

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The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

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Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a)

Exconde v. Capuno, 101 PHIL 843 101 Phil 843 Torts and Damages Liability of Parents

Dante Capuno was a 15 year old boy who was a pupil of Balintawak Elementary School. In March 1949, he attended a boy scout parade for Dr. Jose Rizal. While they were inside a jeep, he took control of the wheels which he later lost control of causing the jeep to go turtle thereby killing two other students, Isidoro Caperina and one other. Isidoros mother sued Dante Capuno for the death of her son. Pending the criminal action, the mother reserved her right to file a separate civil action which she subsequently filed against Dante and his dad, Delfin Capuno.

ISSUE: Whether or not Delfin Capuno, as the father of Dante is liable for damages.

HELD: Yes. The civil liability which the law imposes upon the father, and, in case of his death or incapacity, the mother, for any damages that may be caused by the minor children who live with them, is obvious. This is necessary consequence of the parental authority they exercise over them which imposes upon the parents the duty of supporting them, keeping them in their company, educating them and instructing them in proportion to their means, while, on the other hand, gives them the right to correct and punish them in moderation. The only way by which they can relieve themselves of this liability is if they prove that they exercised all the diligence of a good father of a family to prevent the damage which Delfin failed to prove.

On the other hand, the school is not liable. It is true that under the law, teachers or directors of arts and trades are liable for any damages caused by their pupils or apprentices while they are under their custody, but this provision only applies to an institution of arts and trades and not to any academic educational institution.

JUSTICE J.B.L. REYES Dissenting:

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Delfin Capuno should be relieved from liability. There is no sound reason for limiting the liability to teachers of arts and trades and not to academic ones. What substantial difference is there between them in so far as, concerns the proper supervision and vigilance over their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of watching do not commit a tort to the detriment of third persons, so long as they are in a position to exercise authority and supervision over the pupil.

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Palisoc v. Brillantes, 41 SCRA 548 41 SCRA 548

Torts and Damages Liability of teachers/heads of establishments of arts and trades

In March 1966, while Dominador Palisoc (16 years old) was watching Virgilio Daffon and Desiderio Cruz work on a machine in their laboratory class in the Manila Technical Institute (a school of arts and trades), Daffon scolded Palisoc for just standing around like a foreman. This caused Palisoc to slightly slap the face of Daffon and a fistfight ensued between the two. Daffon delivered blows that eventually killed Palisoc. The parents of Palisoc sued Daffon, the school president (Teodosio Valenton), the instructor (Santiago Quibulue), and the owner (Antonio Brillantes). The basis of the suit against Valenton, Quibulue, and Brillantes was Article 2180 of the Civil Code.

The lower court, as well as the CA, ruled that only Daffon is liable for damages and that Valenton, Quibulue, and Brillantes are not liable because under Article 2180, they are only liable so long as they [the students] remain in their custody. And that this means, as per Mercado vs Court of Appeals, that teachers or heads of establishments are only liable for the tortious acts of their students if the students are living and boarding with the teacher or other officials of the school which Daffon was not.

ISSUE: Whether or not the ruling in the Mercado Case still applies.

HELD: No. The SC abandoned the ruling in the Mercado Case as well as the ruling in the Exconde Case as they adopted Justice JBL Reyes dissenting opinion in the latter case. Valenton and Quibulue as president and teacher-in-charge of the school must be held jointly and severally liable for the quasi-delict of Daffon. The unfortunate death resulting from the fight between the students could have been avoided, had said defendants but complied with their duty of providing adequate supervision over the activities of the students in the school premises to protect their students from harm, whether at the hands of fellow students or other parties. At any rate, the law holds them liable unless they relieve themselves of such liability, in compliance with the last paragraph of Article 2180, Civil Code, by (proving) that they observed all the diligence of a good father of a family to prevent damage. In the light of the factual findings of the lower courts decision, said defendants failed to prove such exemption from liability. The SC reiterated that there is nothing in the law which prescribes that a student must be living and boarding with his teacher or in the school before heads and teachers of the school may be held liable for the tortious acts of their students.

Amadora v. CA 160 SCRA, 315 Facts: A few days before graduation, Alfredo Amadora was shot and killed when his classmate, Pablito Daffron fired a gun in the auditorium of their school. Daffon was convicted of homicide thru reckless imprudence. Additionally, petitioners, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped.

Issue: Whether or not the school may be held liable for the acts of its students.

Held: As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student constitutes.

Teachers shall be liable for the acts of their students. As long as the defendant can show that he had taken the necessary precautions to prevent the injury, he can exonerate himself from liability.

Salvosa v. IAC, 166 SCRA 274

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FACTS

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Jimmy Abon, a commerce student of Baguio CollegesFoundation (BCF) and a duly appointed armorer of theBCF ROTC (under the control of AFP) was convicted of the crime of Homicide for shooting Napoleon Castro, astudent of the University of Baguio on 3 March 1977, ataround 8:00 p.m., in the parking space of BCF. BCF isboth an academic and arts and trade Union and theROTC Unit was under the control of AFP.Subsequently, the heirs of Napoleon Castro sued fordamages, impleading Jimmy B. Abon, Roberto C. Ungos(ROTC Commandant Benjamin Salvosa (President andChairman of the Board of BCF), Jesus Salvosa(Executive Vice President of BCF), Libertad D. Quetolio(Dean of the College of Education and Executive Trustee of BCF) and the Baguio Colleges FoundationInc. as party defendants.After hearing, the Trial Court rendered a decision, (1)sentencing defendants Jimmy B. Abon, BenjaminSalvosa and Baguio Colleges Foundation, Inc., jointlyand severally, to pay private respondents, as heirs of Napoleon Castro; (2) absolving the other defendants;and (3) dismissing the defendants' counterclaim forlack of merit. ISSUE WON petitioners can be held solidarity liable with JimmyB. Abon for damages under Article 2180 of the CivilCode, as a consequence of the tortious act of Jimmy B.Abon. HELD NO. Jimmy B. Abon cannot be considered to have been"at attendance in the school," or in the custody of BCF,when he shot Napoleon Castro. Logically, therefore,petitioners cannot under Art. 2180 of the Civil Code beheld solidarity liable with Jimmy B. Abon for damagesresulting from his acts. Ratio: Under the penultimate paragraph of Art. 2180 of theCivil Code, teachers or heads of establishments of artsand trades are hable for "damages caused by theirpupils and students or apprentices, so long as theyremain in their custody." The rationale of such liabilityis that so long as the student remains in the custody of a teacher, the latter "stands, to a certain extent, in locoparentis [as to the student] and [is] called upon toexercise reasonable supervision over the conduct of the[student]." Likewise, "the phrase used in [Art. 2180 'so long as (the students) remain in their custodymeans the protective and supervisory custody that theschool and its heads and teachers exercise over thepupils and students for as long as they are at attendance in the school, including recess time." Reasoning: a. The SC hold a contrary view to that espoused by theCA. According to the CA, while it is true that Abon wasnot attending any class or school function at the timeof the shooting incident , which was at about 8 o'clock inthe evening; but considering that Abon was employedas an armorer and property custodian of the BCF ROTCunit, he must have been attending night classes andtherefore that hour in the evening was just about dismissal time for him or soon thereafter. The timeinterval is safely within the "recess time" that the trialcourt spoke of and envisioned by the Palisoc case,supra . In line with the case of Palisoc,17a student not "at attendance in the school" cannot be in "recess"thereat. A "recess," as the concept is embraced in thephrase "at attendance in the school," contemplates asituation of temporary adjournment of school activitieswhere the student still remains within call of his mentorand is not permitted to leave the school premises, orthe area within which the school activity is conducted.Recess by its nature does not include dismissal.Likewise, the mere fact of being enrolled or being in thepremises of a school without more does not constitute"attending school" or being in the "protective andsupervisory custody' of the school, as contemplated inthe law

St. Marys Academy v. Carpotanos, 376 SCRA 473, February 6, 2002 G.R. No. 143363 February 6, 2002

Facts: Defendant-appellant St. Marys Academy of Dipolog City conducted an enrollment drive for the school year 1995-1996. A facet of the enrollment campaign was the visitation of schools from where prospective enrollees were studying. As a student of St. Marys Academy, Sherwin Carpitanos was part of the campaigning group.

Accordingly, on the fateful day, Sherwin, along with other high school students were riding in a Mitsubishi jeep owned by defendant Vivencio Villanueva on their way to Larayan Elementary School, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a student of the same school. Allegedly, the latter drove the jeep in a reckless manner and as a result the jeep turned turtle. Sherwin Carpitanos died as a result of the injuries he sustained from the accident. The parents of Sherwin filed a case against James Daniel II and his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva and St. Marys Academy before the RTC of Dipolog City and claimed for damages.

Issue: Whether or not the petitioner St. Marys Academy is liable for damages for the death of Sherwin Carpitanos.

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Ruling: GRANTED and REMANDED to the RTC for determination of any liability of the school. The Court held that for the school to be liable there must be a finding that the act or omission considered as negligent was the proximate cause of the injury caused because of negligence, must have causal connection to the accident. There is no showing of such.

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Hence, with the overwhelming evidence presented by petitioner and the respondent Daniel spouses that the accident occurred because of the detachment of the steering wheel guide of the jeep, it is not the school, but the registered owner of the vehicle who shall be held responsible for damages for the death of Sherwin Carpitanos.

F.

FILIAL PRIVELLEGE, FC 215 Art. 215. No descendant shall be compelled, in a criminal case, to testify against his parents and grandparents, except when such testimony is indispensable in a crime against the descendant or by one parent against the other. (

ROC RULE 130 SEC 25 CF SECS 22 & 23

Section 25. Parental and filial privilege. No person may be compelled to testify against his parents, other direct ascendants, children or other direct descendants.

Sec. 22 . Disqualification by reason of marriage. During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants. (20a)

Sec. 23 . Disqualification by reason of death or insanity of adverse party. Parties or assignor of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. (20a)

G.

Parental Authority Over the Childrens Person, FC 220- 222 Art. 220. The parents and those exercising parental authority shall have with the respect to their unemancipated children on wards the following rights and duties: (1) To keep them in their company, to support, educate and instruct them by right precept and good example, and to provide for their upbringing in keeping with their means; (2) To give them love and affection, advice and counsel, companionship and understanding; (3) To provide them with moral and spiritual guidance, inculcate in them honesty, integrity, self-discipline, self-reliance, industry and thrift, stimulate their interest in civic affairs, and inspire in them compliance with the duties of citizenship; (4) To furnish them with good and wholesome educational materials, supervise their activities, recreation and association with others, protect them from bad company, and prevent them from acquiring habits detrimental to their health, studies and morals; (5) To represent them in all matters affecting their interests; (6) To demand from them respect and obedience; (7) To impose discipline on them as may be required under the circumstances; and (8) To perform such other duties as are imposed by law upon parents and guardians. (316a)

Art. 221. Parents and other persons exercising parental authority shall be civilly liable for the injuries and damages caused by the acts or omissions of their unemancipated children living in their company and under their parental authority subject to the appropriate defenses provided by law. (2180(2)a and (4)a ) Art. 222. The courts may appoint a guardian of the child's property or a guardian ad litem when the best interests of the child so requires.

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Medina v. Makabali 27 SCRA 602 Luna v. IAC, 167 SCRA 7

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*Disciplinary Measures, FC 223 224

H.

Parental Authority the Childs Property, FC 225- 227 Art. 225. The father and the mother shall jointly exercise legal guardianship over the property of the unemancipated common child without the necessity of a court appointment. In case of disagreement, the father's decision shall prevail, unless there is a judicial order to the contrary. Where the market value of the property or the annual income of the child exceeds P50,000, the parent concerned shall be required to furnish a bond in such amount as the court may determine, but not less than ten per centum (10%) of the value of the property or annual income, to guarantee the performance of the obligations prescribed for general guardians. A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides, or, if the child resides in a foreign country, in the proper court of the place where the property or any part thereof is situated. The petition shall be docketed as a summary special proceeding in which all incidents and issues regarding the performance of the obligations referred to in the second paragraph of this Article shall be heard and resolved. The ordinary rules on guardianship shall be merely suppletory except when the child is under substitute parental authority, or the guardian is a stranger, or a parent has remarried, in which case the ordinary rules on guardianship shall apply. (320a) Art. 226. The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter's support and education, unless the title or transfer provides otherwise. The right of the parents over the fruits and income of the child's property shall be limited primarily to the child's support and secondarily to the collective daily needs of the family. (321a, 323a) Art. 227. If the parents entrust the management or administration of any of their properties to an unemancipated child, the net proceeds of such property shall belong to the owner. The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger, unless the owner, grants the entire proceeds to the child. In any case, the proceeds thus give in whole or in part shall not be charged to the child's legitime.

Linda v. CA, 212 SCRA 725

I.

Suspension or Termination of Parental Authority

1.

Permanent termination, FC 228 cf RA 6809 Art. 228. Parental authority terminates permanently: (1) Upon the death of the parents; (2) Upon the death of the child; or (3) Upon emancipation of the child.

2.

Non- permanent termination, FC 229 cf FC 193 Art. 229. Unless subsequently revived by a final judgment, parental authority also terminates: (1) Upon adoption of the child; (2) Upon appointment of a general guardian; (3) Upon judicial declaration of abandonment of the child in a case filed for the purpose; (4) Upon final judgment of a competent court divesting the party concerned of parental authority; or

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(5) Upon judicial declaration of absence or incapacity of the person exercising parental authority.

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Art. 193. If the adopted minor has not reached the age of majority at the time of the judicial rescission of the adoption, the court in the same proceeding shall reinstate the parental authority of the parents by nature, unless the latter are disqualified or incapacitated, in which case the court shall appoint a guardian over the person and property of the minor. If the adopted person is physically or mentally handicapped, the court shall appoint in the same proceeding a guardian over his person or property or both. Judicial rescission of the adoption shall extinguish all reciprocal rights and obligations between the adopters and the adopted arising from the relationship of parent and child. The adopted shall likewise lose the right to use the surnames of the adopters and shall resume his surname prior to the adoption. The court shall accordingly order the amendment of the records in the proper registries.

3.

Suspension of Parental Authority, FC 231 232 Art. 231. The court in an action filed for the purpose in a related case may also suspend parental authority if the parent or the person exercising the same: (1) Treats the child with excessive harshness or cruelty; (2) Gives the child corrupting orders, counsel or example; (3) Compels the child to beg; or (4) Subjects the child or allows him to be subjected to acts of lasciviousness. The grounds enumerated above are deemed to include cases which have resulted from culpable negligence of the parent or the person exercising parental authority. If the degree of seriousness so warrants, or the welfare of the child so demands, the court shall deprive the guilty party of parental authority or adopt such other measures as may be proper under the circumstances. The suspension or deprivation may be revoked and the parental authority revived in a case filed for the purpose or in the same proceeding if the court finds that the cause therefor has ceased and will not be repeated. (33a) Art. 232. If the person exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse, such person shall be permanently deprived by the court of such authority.

Chua v. Carandang, 27 SCRA 791

4.

Revival

XVII. EMANCIPATION

A.

Cause of emancipation, FC 234 as amended Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years. Emancipation also takes place: (1) By the marriage of the minor; or (2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least eighteen years of age. Such emancipation shall be irrevocable.

B.

Effect of emancipation, FC 236 as amended cf FC 15, NCC 2180

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Art. 236. Emancipation for any cause shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life.

Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.

NCC 2180 The obligation imposed by article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company.

Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company.

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable.

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a)

XVIII. SUMMARY JUDUCIAL PROCEEDINGS, FC 238-253 Chapter 1. Prefatory Provisions

Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority. (n)

Chapter 2. Separation in Fact

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Art. 239. When a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts.

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The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court. (n)

Art. 240. Claims for damages by either spouse, except costs of the proceedings, may be litigated only in a separate action. (n)

Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other spouse, be exercised by the proper court authorized to hear family cases, if one exists, or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. (n)

Art. 242. Upon the filing of the petition, the court shall notify the other spouse, whose consent to the transaction is required, of said petition, ordering said spouse to show cause why the petition should not be granted, on or before the date set in said notice for the initial conference. The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. (n)

Art. 243. A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. After the initial conference, if the court deems it useful, the parties may be assisted by counsel at the succeeding conferences and hearings. (n)

Art. 244. In case of non-appearance of the spouse whose consent is sought, the court shall inquire into the reasons for his failure to appear, and shall require such appearance, if possible. (n)

Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not secured, the court may proceed ex parte and render judgment as the facts and circumstances may warrant. In any case, the judge shall endeavor to protect the interests of the non-appearing spouse. (n)

Art. 246. If the petition is not resolved at the initial conference, said petition shall be decided in a summary hearing on the basis of affidavits, documentary evidence or oral testimonies at the sound discretion of the court. If testimony is needed, the court shall specify the witnesses to be heard and the subject-matter of their testimonies, directing the parties to present said witnesses. (n)

Art. 247. The judgment of the court shall be immediately final and executory. (n)

Art. 248. The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of the family shall also be governed by these rules. (n)

Chapter 3. Incidents Involving Parental Authority

Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving parental authority shall be verified. (n)

Art. 250. Such petitions shall be verified and filed in the proper court of the place where the child resides. (n)

Art. 251. Upon the filing of the petition, the court shall notify the parents or, in their absence or incapacity, the individuals, entities or institutions exercising parental authority over the child. (n)

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Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n)

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Chapter 4. Other Matters Subject to Summary Proceedings

Art. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 127, insofar as they are applicable.

XIX. SURNAMES, NCC 364- 330, RA 8805

Art. 364. Legitimate and legitimated children shall principally use the surname of the father. Art. 365. An adopted child shall bear the surname of the adopter. Art. 366. A natural child acknowledged by both parents shall principally use the surname of the father. If recognized by only one of the parents, a natural child shall employ the surname of the recognizing parent. Art. 367. Natural children by legal fiction shall principally employ the surname of the father. Art. 368. Illegitimate children referred to in Article 287 shall bear the surname of the mother. Art. 369. Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. Art. 370. A married woman may use: (1) Her maiden first name and surname and add her husband's surname, or (2) Her maiden first name and her husband's surname or (3) Her husband's full name, but prefixing a word indicating that she is his wife, such as "Mrs." Art. 371. In case of annulment of marriage, and the wife is the guilty party, she shall resume her maiden name and surname. If she is the innocent spouse, she may resume her maiden name and surname. However, she may choose to continue employing her former husband's surname, unless: (1) The court decrees otherwise, or (2) She or the former husband is married again to another person. Art. 372. When legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. Art. 373. A widow may use the deceased husband's surname as though he were still living, in accordance with Article 370. Art. 374. In case of identity of names and surnames, the younger person shall be obliged to use such additional name or surname as will avoid confusion. Art. 375. In case of identity of names and surnames between ascendants and descendants, the word "Junior" can be used only by a son. Grandsons and other direct male descendants shall either: (1) Add a middle name or the mother's surname, or (2) Add the Roman Numerals II, III, and so on. Art. 376. No person can change his name or surname without judicial authority. Art. 377. Usurpation of a name and surname may be the subject of an action for damages and other relief. Art. 378. The unauthorized or unlawful use of another person's surname gives a right of action to the latter. Art. 379. The employment of pen names or stage names is permitted, provided it is done in good faith and there is no injury to third persons. Pen names and stage names cannot be usurped.

Art. 380. Except as provided in the preceding article, no person shall use different names and surnames.

Naldoza v. Republic, supra

Johnston v. Republic, 7 SCRA 1040

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Llaneta v. Agrava, 57 SCRA 29

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Facts: Teresita's mother, one Atanacia Llaneta, was once married to Serafin Ferrer with whom she had but one child named Victoriano Ferrer. In 1942 Serafin Ferrer died, and about four years later Atanacia had relations with another man out of which Teresita was born. Shortly after Teresita's birth, Atanacia brought her and Victoriano to Manila where all of them lived with Atanacia's mother-in-law, Victoria vda. de Ferrer. Teresita was raised in the household of the Ferrer's, using the surname of Ferrer in all her dealings and throughout her schooling. When she was about twenty years old, she applied for a copy of her birth certificate in Sorsogon, where she was born, as she was required to present it in connection with a scholarship granted to her by the Catholic Charities. It was then that she discovered that her registered surname is Llaneta not Ferrer and that she is the illegitimate child of Atanacia and an unknown father.

On the ground that her use thenceforth of the surname Llaneta, instead of Ferrer which she had been using since she acquired reason, would cause untold difficulties and confusion, Teresita petitioned the court for change of her name from Teresita Llaneta to Teresita Llaneta Ferrer.

Issue: Whether or not petitioner be allowed to change her surname based on her alleged facts.

Ruling: The petition of Teresita Llaneta for change of her name to Teresita Llaneta Ferrer is hereby granted. The petitioner has established that she has been using the surname Ferrer for as long as she can remember. A sudden shift at this time by the petitioner to the name Teresita Llaneta in order to conform to that appearing in her birth certificate would result in confusion among the persons and entities she deals with and entail endless and vexatious explanations of the circumstances of her new surname.

Tolentino v. CA 162 SCRA 66 (1998) Petition for certiorari to review the decision of the Court of Appeals

On February 8, 1931 Respondent Consuelo David married Arturo Tolentino.

Then on September 15, 1943 Marriage was dissolved and terminated pursuant to the law during the Japanese occupation by a decree of absolute divorce on the grounds of desertion and abandonment by the wife for a t least 3 continuous years

Arturo Tolentio married Pular Adorable but she died soon after the marriage.

Constancia married Arturo Tolentino on April 21, 1945 and they have 3 children. Constancia Tolentino is the present legal wife of Arturo Tolentino. Consuelo David continued using the surname Tolentino after the divorce and up to the time that the complaint was filed. Her usage of the surname Tolentino was authorized by the family of Arturo Tolentino (brothers and sisters). Trial Court ruled that Consuelo David should discontinue her usage of the surname of Tolentino. But the Court of Appeals reversed the decision of the Trial Court.

Issues: Whether or Not the petitioners cause of action has already prescribed

Whether or not the petitioner can exclude by injunction Consuelo David from using the surname of her former husband from whom she was divorced.

Held : Art. 1150 (CC) The time for prescription of all kinds of actions, when there in no special provision which ordains otherwise, shall be counted from the day they may be brought

Also, Art. 1149 Period of prescription is 5 years from the right of action accrues.

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The action has long prescribed because she married Arturo Tolentino on April 21, 1945; Civil Code took effect on August 30, 1950; She acquired knowledge that Consuelo David was still using the surname Tolentino in 1951.

She should have filed the case after she obtained knowledge that Consuelo David was still using the surname Tolentino. The case was filed on November 23, 1971 or 20 years after she obtained knowledge.

Philippine law is silent whether or not a divorced woman may continue to use the surname of her husband because there are no provisions for divorce under Philippine law.

There was a commentary by Tolentino with regards to Art. 370 of the CC: the wife cannot claim an exclusive right to use the husbands surname. She cannot be prevented from using it; but neither can she restrain others from using it. Art 371 is not applicable because it contemplates annulment while the present case refers to absolute divorce where there is severance of valid marriage ties. Effect of divorce more akin to death of the spouse where the deceased woman is continued to be referred to as Mrs. Of the husband even if he has remarried.

If the appeal would be granted the respondent would encounter problems because she was able to prove that she entered into contracts with third persons, acquired properties and entered into other legal relations using the surname Tolentino. Petitioner failed to show the she would suffer any legal injury or deprivation of right.

There is no usurpation of the petitioners name and surname. Usurpation implies injury to the interests of the owner of the name. It consists with the possibility of confusion of identity

Legamia v. IAC, 131 SCRA 479

XX. ABSENCE, NCC 381 -396, FC 41

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

Reyes v. Alejandro, 41 SCRA 65 Eastern Shipping v. Lucero, 124 SCRA 425

Tol- Noquera v. Villamor, 211 SCRA 616

XXI. FUNERALS, NCC 305- 310

Art. 305. The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under Article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right.

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Art. 306. Every funeral shall be in keeping with the social position of the deceased.

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Art. 307. The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family.

Art. 308. No human remains shall be retained, interred, disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305.

Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral.

Art. 310. The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses, and shall be chargeable to the conjugal partnership property, if the deceased is one of the spouses.

Eugenio v. Velez, supra FACTS:

Vitaliana Vargas brothers and sisters unaware of the formers death on August 28, 1988 filed a petition for Habeas Corpus on September 27, 1988 before the RTC of Misamis Oriental alleging that she was forcible taken from her residence sometime in 1987 and was confined by the herein petitioner, Tomas Eugenio in his palacial residence in Jasaan, Misamis Oriental. The court then issued a writ of habeas corpus but petitioner refused to surrender the Vitalianas body to the sheriff on the ground that a corpse cannot be subjected to habeas corpus proceedings. Vitaliana, 25 year old single, died of heart failure due to toxemia of pregnancy in Eugenios residence. The court ordered that the body should be delivered to a funeral parlor for autopsy but Eugenio assailed the lack of jurisdiction of the court.

ISSUE: Whether or not the petitioner can claim custody of the deceased.

HELD:

The court held that the custody of the dead body of Vitaliana was correctly awarded to the surviving brothers and sisters pursuant to Section 1103 of the Revised Administrative Code which provides:

Persons charged with duty of burial- if the deceased was an unmarried man or woman or a child and left any kin; the duty of the burial shall devolve upon the nearest kin of the deceased.

Albeit, petitioner claims he is the spouse as contemplated under Art. 294 of the Civil Code, Philippine law does not recognize common law marriages where a man and a woman not legally married who cohabit for many years as husband and wife, who represent themselves to the public as husband and wife, and who are reputed to be husband and wife in the community where they live may be considered legally mauled in common law jurisdictions. In addition, it requires that the man and woman living together must not in any way be incapacitated to contract marriage. Whereas, the petitioner has a subsisting marriage with another woman, legal impediment that disqualified him from even legally marrying Vitaliana.

XXII. CIVIL REGISTER NCC 407- 413

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Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. (325a)

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Art. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. (326a)

Art. 409. In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. (n)

Art. 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. (n)

Art. 411. Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby. However, the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. (n)

Art. 412. No entry in a civil register shall be changed or corrected, without a judicial order. (n)

Art. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. (n)

ROC RULE 108 RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY

Sec. 1. Who may file petition. - Any person interested in any act, event, order or decree concerning the civil status of persons which has been recorded in the civil register, may file a verified petition for the cancellation or correction of any entry relating thereto, with the Court of First Instance of the province where the corresponding civil registry is located.

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Sec. 2. Entries subject to cancellation or correction. - Upon good and valid grounds, the following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j) naturalization (k) election, loss or recovery of citizenship (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

Sec. 3. Parties. - When cancellation or correction of an entry in the civil register is sought, the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding.

Sec. 4. Notice and publication. - Upon the filing of the petition, the court shall, by an order, fix the time and place for the hearing of the same, and cause reasonable notice thereof to be given to the persons named in the petition. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. Sec. 5. Opposition. - The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the petition, or from the last date of publication of such notice, file his opposition thereto.

Sec. 6. Expediting proceedings. - The court in which the proceeding is brought may make orders expediting the proceedings, and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings.

Sec. 7. Order. - After hearing, the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record.

Republic v. Sayo, 188 SCRA 634

Republic v. Valencia, 141 SCRA 462

Republic v. Marcos, 182 SCRA 223

Labayo- Rowe v. Republic 168 SCRA 294