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

L-11371 August 1, 1916

THE UNITED STATES, plaintiff-appellee, vs. CECILIA MEMORACION and DALMACIO URI, defendants-appellants. Manly, Goddard and Lockwood, Rafael de la Sierra and D.R. Williams for appellants. Attorney-General Avancea for appellee. JOHNSON, J.: These defendants were charged with the crime of adultery. On the 7th of June, 1915, a complaint was presented against them in the court of the justice of the peace of the municipality of Albay. A preliminary examination was held, at the close of which the justice of the peace found that there was probable cause for believing that the defendants were guilty of the crime charged in the complaint, and held them for trial in the Court of First Instance. On the 26th of June, 1915, the offended party presented a complaint against the said defendants. Later, on the 23d of August, 1915, the said offended party presented an amended complaint, which alleged: That the said accused, Cecilia Memoracion, on or about June 6, 1915, within the district of the municipality of Albay, Province of Albay, P. I., being legally and lawfully married to the complainant, the offended party Eustaquio Abrigo, did, willfully and criminally, unite, lie and have carnal intercourse with her coaccused, Dalmacio Uri; that the said accused, Dalamcio Uri, then knowing that his coaccused, Cecilia Memoracion, was legally and lawfully married to the aggrieved party, Eustaquio Abrigo, did, willfully and criminally, unite, lie and have carnal intercourse with his coaccused, Cecilia Memoracion; acts committed with violation of law. Upon said complaint the defendants were duly arraigned and each pleaded not guilty of the crime charged in the complaint. The cause was brought on for trial and after hearing the evidence the Honorable J. C. Jenkins, judge, in a carefully prepared opinion, found that the defendants were guilty of the crime charged in the complaint and sentenced each of them to be imprisoned for a period of four years, nine months and eleven days of prision correccional with the accessory penalties of article 61 of the Penal code and each to pay one-half the costs. From that sentence each of the defendants appealed to this court. In this court the appellants make the following assignments of error: (1) In not sustaining the objection filed by the defense during the trial of the case to the following questions, Q. How are you related to the defendant woman?

Mr. SIERRA. Objected to as not best proof.

The COURT. I will allow the evidence. A. She is my wife.

And, therefore, is allowing the taking of evidence with respect to the alleged marital relation between the complaint and the coaccused Cecilia Memoracion. (2) In admitting as evidence the alleged marriage certificate issued by the parish priest of Daraga; and, therefore, in overruling the objection filed by the attorney for the defense against the introduction of Exhibit G, as evidence for the prosecution. (3) In the court himself personally addressing the following questions to the witness Nicolas Briola: Q. A. Q. A. Did you know her (referring to the defendant) when she was married to Eustaquio? Yes, sir. Where you at the wedding? I was there.

And in refusing to strike out of the record the testimony of the witness Nicolas Briola, overruling the motion so to do, made by the defense. (4) In holding in the judgment that the alleged marriage of the complainant Eustaquio Abrigo with the coaccused Cecilia Memoracion is a proven fact. (5) In holding that there is legal presumption of the existence of the marriage between the complainant Abrigo and the coaccused Memoracion. (6) In holding as a proven fact that the accused Dalmacio Uri knew, on the night of June 6, 1915, that Cecilia Memoracion and Eustaquio Abrigo were husband and wife. (7) In holding that the accused are guilty of the crime of adultery, and in sentencing them to the penalty of fours years nine months and eleven days of prision correccional, with the accessory penalties and costs. With reference to said assignments of error, the first, third and fourth may be discussed together for the reason that they present but one question. The question presented by the said assignments of error is whether or not oral testimony is competent proof of a marriage in the case of the crime of adultery. The first assignment of error is based upon the fact that the husband was asked the question whether or not he and the defendant Cecilia Memoracion were married and whether or not they were husband and wife. The appellants contend that his declaration was not competent evidence upon that fact. If a man and a woman are married, the declaration of either of them is competent evidence to show the fact. No witness is more competent than they are. Whether the declaration of a husband alone is sufficient to prove that fact must depend upon each particular case. There might, perchance, be a case where the judge would not believe the declaration of the husband or wife upon the question of the marriage. In such a case corroborative proof might become necessary. Corroboration of the fact is not absolutely necessary if the declaration of either the husband or wife is sufficient to satisfy the conscience of the court. Certainly there are no witnesses more competent than the husband and wife to testify as to whether they were married or not. Under the third assignment of error, the same question is presented with reference to the oral declaration of Nicolas Briola. The appellant contends that his oral declaration should not have been accepted upon the question whether the marriage existed or not. He testified that Cecilia Memoracion and Eustaquio Abrigo had been married and that he was present to the wedding. A witness who is present at the time a marriage takes place is certainly a competent witness to testify as to whether a marriage took place or not. Whether or not his declaration should be accepted depends upon his credibility, but his declaration is admissible for the purpose of showing that fact.

In reaching the foregoing conclusion we have not overlooked the decision of this court in the case of U.S. vs. Nebrida and Saorda (32 Phil. Rep., 160.) In that case the court simply said that the substantially uncorroborated testimony of the complaining witness in a case of adultery as to the fact of the marriage is not sufficient to establish the fact, beyond a reasonable doubt, in a criminal action. In the present case the declaration of the husband as to the marriage was corroborated by proof that he and his alleged wife had been living together for a period of twenty years. That fact alone gave rise to the presumption that they were husband and wife. And not only that, but the declaration of the husband was supported by the testimony of another witness who was present at the time the marriage took place. We are fully convinced that Eustaquio Abrigo and Cecilia Memoracion were legally married and that they were husband and wife. With reference to the second assignment of error, the appellant claims that the lower court committed an error in admitting as proof Exhibit G. Exhibit G purports to be a marriage certificate issued by the parish priest, and purports to certify that Eustaquio Abrigo and Cecilia Memoracion were married. While it is true that the lower court admitted Exhibit G over the objection of the defendant, it will be noted, upon an examination of the decision of the lower court, that it was rejected and was not considered as proof. The lower court said in the course of his decision: It is true that certificate of marriage by the parish priest (Exhibit G) was, on the trial, improperly admitted, but it is now excluded from the record and will not be considered by the court as evidence. In view of that fact, therefore, we find no reason for sustaining the contention of the appellant. Exhibit G was not considered as proof for the purpose of determining the existence of the marriage in question. With reference to the fifth assignment of error, the lower court in the course of his opinion said: They (the alleged husband and wife) deported themselves as husband and wife and, therefore there is the presumption that they had entered into a lawful contract of marriage, independent of the positive testimony of an eyewitness and the husband. Subparagraph 28 of section 334 of Act No. 190 which relates to disputable presumptions provides: That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage. In discussing that provision of said Act No. 190, this court said in the case of United States vs. Villafuerte (4 Phil. Rep., 559): A man and woman who are living in marital relations under the same roof are presumed to be legitimate spouses, united by virtue of a legal marriage contract, and this presumption can only be rebutted by sufficient contrary evidence. In view of the above quoted provision of Act No. 190 and the decision of this court upon the same, it remains to be seen whether or not the alleged spouses had "deported themselves as husband and wife." The record shows that they had been living in the same house, under the same roof, and had been cohabiting together for a long period of time. That fact is not denied, nor even questioned by anything found in the record.

With reference to the sixth assignment of error, the appellants contend that the defendant Dalmacio Uri, at the time the alleged illicit relations took place, did not know that Cecilia Memoracion was a married woman. That the said Uri and Memoracion had had illicit relations at the time and place described in the complaint is not denied. The proof shows beyond a reasonable doubt, by eyewitnesses, that they had had the illicit relations charged in the complaint. The husband of Cecilia declared that they had lived together as husband and wife in the community where the crime was alleged to have been committed for a number of years; that the fact that they were husband and wife was well known in that community. It is also shown that the defendant Dalmacio Uri has visited the house of Cecilia and her husband a great number of times; that he had seen them together in the same house, and that he knew that they were living there together. The defendant Uri had been in the community where the crime was committed for a number of months. It can scarcely be believed, in view of the fact that he had visited the house of Eustaquio and Cecilia twenty or more times before the commission of the crime, that he did not at least know that they were married and were husband and wife. In view of the fact that he had frequently visited the house where Eustaquio and Cecilia were living and saw their relations, one toward the other, we are convinced, in the absence of positive proof to the contrary, that he must have known that they were at least living together as husband and wife. With reference to the seventh assignment of error, it may be said, after a careful examination of the evidence, that we are convinced, beyond a reasonable doubt, that the defendants were guilty of the crime charged and that the sentence of the lower court is in accordance with the facts and the law. Therefore the sentence of the lower court is hereby affirmed, with costs. So ordered. Torres, Moreland, Trent, and Araullo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-29236 December 29, 1928

Estate of the deceased Lim Tingco. FELIPE ALKUINO LIM PANG, petitioner, vs. UY PIAN NG SHUN and ORENCIO RAMON LIM TINGCO, appellant; JUSTINA OLONDRES, ET AL., appellees. Domingo and Lim Reyes for appellants. Filemon Saavedra for Balbina Lim Tingco and Benigno Barnes. No appearance for other appellees.

STREET, J.:

This appeal is prosecuted on behalf of Uy Pian Ng Shun and her minor son, Ramon Lim Tingco, in the matter of the will of Mateo Lim Tingco, deceased, for the purpose of reversing an order of the Court of First Instance of Leyte, dated October 29, 1927, excluding the appellant Uy Pian Ng Shun from sharing in the estate of the testator, and declaring that Ramon, as an illegitimate child, is entitled only to support from the estate and that the appellees, Justina Olondres and Balbina Lim Tingco, are entitled to share in the same estate respectively as widow and recognized natural daughter of the testator. The testator, Mateo Lim Tingco, of Chinese nationality, came to the Philippine Island some forty-five or fifty years ago, making his home in the municipality of Baybay, Province of Leyte, where he lived until his death on April 18, 1927. In the early years of his abode in Baybay he became the father of a daughter, Balbina Lim Tingco, now married to Benigno Barnes, and sometimes called Imbina Barnes. This daughter, as the trial court found was recognized in life by Lim Tingco as his natural daughter. On November 27, 1886, a marriage was duly celebrated by Mateo Lim Tingco and Justina Olondres, otherwise known in the record as Angela Olondres and Martina Londres. The pair lived together for many years as husband and wife, but no children resulted from the union; and in course of time Lim Tingco formed an irregular connection with a Chinese woman, the appellant, Uy Pian Ng Shun, who usurped the place of the lawful wife, Justina Olondres. Thereupon Justina, becoming disgusted with her husband's infidelity, abandoned the conjugal hearth and went to live elsewhere. As a result of the irregular connection between Lim Tingco and Uy Pian a son, named Ramon, was born. This boy is now some 8 or 9 years of age and is the minor appellant in this case. On October 2, 1925, Lim Tingco executed a will in due form of Law at Baybay, Leyte, in which he stated that he was married to Uy Pian Ng Shun, and declared that he wanted his property to be shared by her and their son Ramon as his only heirs. After Lim Tingco's death this will was duly admitted to probate on July 5, 1927, without opposition from any source. The fact that no opposition was interposed to the probate of this will by Justina Olondres or Balbina Barnes finds its explanation, no doubt, in the fact that, a few days before the petition for the probate of the will was filed, the adult parties interested in the division of Lim Tingco's property had gotted together and compromised their claims to said estate. For the effectuation of this purpose formal documents were drawn up and acknowledged before a notary public by Uy Pian Ng Shun, acting upon her own account and as representative of her son Ramon, and by Justina Olondres and Balbina Lim Tingco, with whom was joined the latter's husband, Benigno Barnes. The general purport of these documents is that Uy Pian Ng Shun assigned a part of the property belonging to the estate of Mateo Lim Tingco to Justina Olondres and another part to Balbina (or Imbina), wife of Benigno Barnes. In consideration of the portions so received Justina Olondres and Balbina Lim Tingco in turn renounced whatever rights they might have had in the estate of the deceased, and they agreed to make no claim in court with respect thereto. The portions conceded to Justina Olondres and Balbina Lim Tingco by this agreement were of respectable size, amounting together to more than P3,000. Notwithstanding the making of this compromise and the acceptance by Justina Olondres and Balbina Lim Tingco of the portions assigned to them respectively, Balbina and her husband appeared in court on July 6, 1927, and filed what may be described as an opposition, or intervention, in which they impugned the intrinsic provisions of the will with respect to the right of Uy Pian Ng Shun, as widow, and Ramon Lim Tingco, as heir, and asked the court to ascertain who were the true heirs of Mateo Lim Tingco, regardless of the statements contained in the will, and to make declaration accordingly. To this opposition, or intervention, a reply was interposed by Uy Pian Ng Shun, in which she relied upon the compromise agreement, already mentioned. The cause was then

set for hearing upon the matter of the determination of heirs, whereupon Justina Olondres intervened, making common cause with Balbina. In her reply to this intervention Uy Pian Ng Shun again set up the compromise agreement. Upon hearing the cause the trial court, as stated in the first paragraph of this opinion, found that Justina Olondres, as the widow of the deceased, and Balbina Lim Tingco, as a recognized natural daughter, were alone entitled to share in the inheritance of the deceased. We note that no extrinsic proof was introduced by the appellant Uy Pian Ng Shun for the purpose of establishing her status as wife. Upon this point reliance is placed by her exclusively on the declaration of the testator, contained in his will, that she was his wife at the time the will was made. But while admissible as prima facie proof in favor of the appellant, this statement is not conclusive; and when it is demostrated, as in this case, that Justina Olondres was the true of the decedent by virtue of an undissolved canonical marriage, of date anterior to the creation of the relation between Uy Pian and the decedent, the statement in the will must be considered rebutted. The circustance that the will had been admitted to probate is conclusive only of the due execution of the will; and the disposition of the property made in the will is always open to question with respect to the intrinsic legality of the disposition (Ramirez vs. Gmur, 42 Phil., 855). But although Uy Pian Ng Shun and her son Ramon are thus excluded from taking under the will in so far as the disposition in their favor would prejudice the rights of the widow and the recognized daughter, it should not escape notice that the testamentary provision would have complete efficacy in so far of the court to declare that Uy Pian Ng Shun and her son could not take anything under the will.
1awphi 1.net

But consideration of the relative proportions in which the four litigants would have been entitled to share under the will of Lim Tingco becomes an academic question, in view of the compromise agreement to which reference has already been made. The effect of this agreement undoubtedly is to estop Justina Olondres and Balbina Lim Tingco from claiming any further share in the estate of the deceased. The trial court appears to have been of the opinion that the time had not yet come to consider the effect of this agreement. But it is never too soon for the court to give effect to binding contracts when issues are properly raised with respect thereto. In the case before us the appellants rely upon said agreement; and it cannot be disposed of by merely ignoring it. The appellees were competent to bind themselves by said agreement, in conformity with its provisions they accepted a fair share of the estate in full satisfaction of their claims, and no suggestion has been made that the contract was vitiated by fraud or error. The consequence is that the appellees must be excluded from further participation in the property. Whatever weakness may have been inherent in the appellants' title, that defect has been cured, as against the appellees, by said agreement. It becomes our duty therefore to reverse the appealed decision and to declare that the appellant Uy Pian Ng Shun and her son, Ramon Lim Tingco, are the only persons entitled to participate in the testate estate of Mateo Lim Tingco, the same to be shared by them in the proportions contemplated in the will. So ordered, without pronouncement as to costs. Johnson, Malcolm, Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-22469 October 23, 1978 TOMAS CORPUS, plaintiff-appellant, vs. ADMINISTRATOR and/or EXECUTOR of the Estate of Teodoro R. Yangco, RAFAEL CORPUS, AMALIA CORPUS, JOSE A. V. CORPUS, RAMON L. CORPUS, ENRIQUE J. CORPUS, S. W. STAGG, SOLEDAD ASPRER and CIPRIANO NAVARRO, defendants-appellees.

AQUINO, J.: Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years. His will dated August 29, 1934 was probated in the Court of First Instance of Manila in Special Proceeding No. 54863. The decree of probate was affirmed in this Court's 1941 decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the will is quoted in that decision. Yangco had no forced heirs. At the time of his death, his nearest relatives were (1) his half brother, Luis R. Yangco, (2) his half sister, Paz Yangco, the wife of Miguel Ossorio (3) Amalia Corpus, Jose A. V. Corpus, and Ramon L. Corpus, the children of his half brother, Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of his half brother Jose Corpus. Juanita died in October, 1944 at Palauig, Zambales. Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five children with Tomas Corpus, two of whom were the aforenamed Pablo Corpus and Jose Corpus. Pursuant to the order of the probate court, a project of partition dated November 26, 1945 was submitted by the administrator and the legatees named in the will. That project of partition was opposed by the estate of Luis R. Yangco whose counsel contended that an intestacy should be declared Because the will does not contain an institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when Atty. Cruz appeared as her counsel. Atty. Cruz alleged in his opposition that the proposed partion was not in conformity with the will because the testator intended that the estate. should be "conserved" and not physically partitioned. Atty. Cruz prayed "que declare que el finado no dispuso en su testamento de sus bienes y negocios y que ha lugar a sucession intestadocon respecio a los raismos y que same un dia en esta causa para la recepcion de pruebas previa a la declaracion de quienes son los herederos legales o abintestato del difunto." The Probate court in its order of December 26, 1946 approved the project of partition. It held that in certain clauses of the will the testator intended to conserve his properties not in the sense of disposing of them after his death but for the purpose of Preventing that "tales bienes fuesen malgastados o desfilpar radios por los legatarios" and that if the testator intended a Perpetual

prohibition against alienation, that conch tion would be regarded "como no puesta o no existents". it concluded that "no hay motives legales o morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada (See Barretto vs. Tuason, 50 Phil. 888, which cites article 785 of the Spanish Civil Code as prohibiting perpetual entails, and Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546.) From that order, Pedro Martinez, Juliana de Castro , Juanita Corpus (deceased) and the estate of Luis R. Yangco aped to this Court (L-1476). Those appeals were dismissed in tills Court's resolutions of October 10 and 31, 1947 after the legatees and the appellants entered into compromise agreements. In the compromise dated October 7, 1947 the legatees agreed to pay P35,000 to Pedro Martinez, the heirs of Pio V. Corpus, the heirs of Isabel Corpus and the heir of Juanita Corpus. Herein appellant Tomas Corpus signed that compromise settlement as the sole heir of Juanita Corpus. The estate of Luis R. Yangco entered into a similar compromise a ment A the resolution dismissing the appeal became, final and executory on October 14 and November 4, 1947, entries of judgment were made on those dates. Pursuant to the compromise agreement, Tomas Corpus Signed a receipt dated October 24, 1947 wherein he acknowledge that he received from the Yangco estate the sum of two thousand pesos (P2,000) "as settlement in full of my share of the compromise agreement as per understanding with Judge Roman Cruz, our attorney in this case" (Exh. D or 17). On September 20, 1949, the legatees executed an agreement for the settlement and physical partition of the Yangco estate. The probate court approved that agreement and noted that the 1945 project of partition was pro tanto modified. That did not set at rest the controvery over the Yangco's estate. On October 5, 1951, Tomas Corpus, as the sole heir of Juanita corpus, filed an action in the Court of First Instance of Manila to recover her supposed share in Yangco intestate estate. He alleged in his complaint that the dispositions in his Yangcos will sing perpetual prohibitions upon alienation rendered it void under article 785 of the old Civil Code and that the 1949 partition is invalid and, therefore, the decedent's estate should be distributed according to the rules on intestacy. The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res judicata and laches. It held that the intrinsic validity of Yangco's will was passed upon in its order dated December 26, 1946 in Special Proceeding No. 54863 approving the project of partition for the testator's estate. Tomas Corpus appealed to the Court of Appeals which in its resolution dated January 23, 1964 in CA-G. R. No. 18720-R certified the appeal to this Court because it involves real property valued at more than fifty thousand pesos (Sec. 17151 Judiciary Law before it was amended by Republic Act No. 2613). Appellant Corpus contends in this appeal that the trial court erred in holding (1) that Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized and (3) that plaintiff's action is barred by res judicata and laches. In the disposition of this appeal it is not necessary to resolve whether Yangco's will had been duly legalized and whether the action of Tomas Corpus is barred by res judicata and laches. The appeal may be resolved by de whether Juanita Corpus, the mother of apt Tomas Corpus was a legal heir of Yangco. Has Tomas Corpus a cause of action to recover his mother's supposed intestate share in Yangco's estate?

To answer that question, it is necessary to ascertain Yangco's filiation The trial court found that Yangco "a su muerte tambien le sbrevivieron Luis y Paz appellidados Yangco, hermanos naturales reconocidos por su padre natural Luis R. Yangco". The basis of the trial court's conclusion that Teodoro R. Yangco was an acknowledged natural child and not a legitimate child was the statement in the will of his father, Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three other children were his acknowledged natural children. His exact words are: Primera. Declaro que tengo cuatro hijos naturales reconocidos, Hamados Teodoro, Paz, Luisa y Luis, los cuales son mis unicos herederos forzosos (Exh. 1 in Testate Estate of Teodoro Yangco). That will was attested by Rafael del Pan Francisco Ortigas, Manuel Camus and Florencio Gonzales Diez Appellant Corpus assails the probative value of the will of Luis R. Yangco, Identified as Exhibit 1 herein, which he says is a mere copy of Exhibit 20, as found in the record on appeal in Special Proceeding No. 54863. He contends that it should not prevail over the presumption of legitimacy found in section 69, Rule 123 of the old Rules of Court and over the statement of Samuel W. Stagg in his biography of Teodoro R. Yangco, that Luis Rafael Yangco made a second marital venture with Victoria Obin implying that he had a first marital venture with Ramona Arguelles, the mother of Teodoro. These contentions have no merit. The authenticity of the will of Luis Rafael Yangco, as reproduced in Exhibit I herein and as copied from Exhibit 20 in the proceeding for the probate of Teodoro R. Yangco's wilt in incontestable. The said will is part of a public or official judicial record. On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed to be legitimate. A marriage is presumed to have taken place between Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably presumption "That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage"; "that a child born in lawful wedlock, there being no divorce, absolute or from bed and board, is legitimate", and "that things have happened according to the ordinary course of nature and the ordinary habits of life" (Sec. 5[z], [bb] and cc Rule 131, Rules of Court). Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no cause of action for the recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal succession between legitimate and illegitimate relatives. The trial court did not err in dismissing the complaint of Tomas Corpus. Article 943 of the old Civil code provides that "el hijo natural y el legitimado no tienen derecho a suceder abintestato a los hijos y parientes legitimos del padre o madre que to haya reconocido, ni ellos al hijo natural ni al legitimado". Article 943 "prohibits all successory reciprocity mortis causa between legitimate and illegitimate relatives" 16 Sanchez Roman, Civil Code, pp. 996-997 cited in Director of Lands vs. Aguas, 63 Phil. 279, 287. See 16 Scaevola Codigo Civil, 4th Ed., 455-6). ... Appellant Corpus concedes that if 'Teodoro R. Yangco was a natural child, he (Tomas Corpus) would have no legal personality to intervene in the distribution of Yangco's estate (p. 8, appellant's brief).

The rule in article 943 is now found in article 992 of the Civil Code which provides that "an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child". That rule is based on the theory that the illegitimate child is disgracefully looked upon by the legitimate family while the legitimate family is, in turn, hated by the illegitimate child. The law does not recognize the blood tie and seeks to avod further grounds of resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185- 6). Under articles 944 and 945 of the Spanish Civil Code, "if an acknowledged natural or legitimated child should die without issue, either legitimate or acknowledged, the father or mother who acknowledged such child shall succeed to its entire estate; and if both acknowledged it and are alive, they shall inherit from it share and share alike. In default of natural ascendants, natural and legitimated children shall be succeeded by their natural brothers and sisters in accordance with the rules established for legitimate brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side, who were legitimate, had no right to succeed to his estate under the rules of intestacy. Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of the mother cannot succeed her illegitimate child (Cacho vs. Udan L- 19996, April 30, 1965, 13 SCRA 693. See De Guzman vs. Sevilla, 47 Phil. 991). Where the testatrix, Rosario Table was the legitimate daughter of Jose Table the two acknowledged natural children of her uncle, Ramon Table her father's brother, were held not to be her legal heirs (Grey vs. Table 88 Phil. 128). By reason of that same rule, the natural child cannot represent his natural father in the succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909). The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate brother of her natural mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29). WHEREFORE the lower court's judgment is affirmed. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-42615 August 10, 1976 SALUD DIVINAGRACIA, EMILIA DIVINAGRACIA, DOLORES DIVINAGRACIA, ROSARIO DIVINAGRACIA and JUANITA DIVINAGRACIA, petitioners, vs.

JUDGE VALERIO V. ROVIRA in his capacity as Presiding Judge, Branch IV, Court of First Instance, Iloilo City, and CAMILO DIVINAGRACIA, respondents. Angara, Abello, Concepcion, Regala & Cruz for petitioners. Panfilo B. Enojas for private respondent.

AQUINO, J.: The question in this case is whether an intestate proceeding, which had already been closed, can still be reopened so as to allow a spurious child to present evidence on his filiation and to claim his share in the decedent's estate. The facts are as follows; Feliciano Divinagracia died in Iloilo City on February 1, 1964. He was survived by his wife, Salud and their four daughters named Emilia, Dolores, Rosario, and Juanita. The notice of his death was published in two local periodicals and in the Manila times. Two days after his death, a petition was filed in the Court of First Instance of Iloilo for the settlement of his estate (Spec. Proc. No. 1752). The order setting the petition for hearing was published on April 22 and 29 and May 6, 1964 in the Yuhum, an English and Ilongo weekly circulating in Iloilo City and Western Visayas. Emilia Divinagracia qualified as administratrix on May 22, 1964. She administered the estate for seven years. She paid the estate and inheritance taxes. In April, 1971 she submitted to the court a final accounting and project of partition with a prayer for the closure of the proceeding. That pleading, which was signed by the widow and her four daughters, contains, aside from the accounting, (1) an inventory of the assets of the decedent's estate as of December 31, 1970 (par. 3); (2) a declaration as to who were the heirs of the decedent and their respective shares in the estate (par. 4); (3) a statement that the five heirs (the widow and four daughters) had received their respective shares, each consisting of a one-fifth proindiviso participation in the decedent's estate (pars. 5 and 6), and (4) an assumption by the heirs of the obligations of the estate (par. 8). Judge Castrense C. Veloso in his order of April 17, 1971 approved the final accounting and project of partition and declared the proceeding "closed and terminated, subject to the condition that the heirs shall assume all the outstanding obligations of the estate". The partition was duly registered. On June 8, 1971 or after the order closing the intestate proceeding had become final, Camilo Divinagracia filed a motion to reopen it and to set aside the order of closure. He alleged that he was an illegitimate child of the decedent; that he was born on November 9, 1930, and that he came to know of the intestate proceeding only when he was transferred as a government employee from Masbate to Iloilo a few days before June 8. He prayed for the determination of his share in the decedent's estate. The administratrix in her opposition to the motion contended that the proceeding could no longer be reopened; that its expediente had already been archived; that there is no allegation in the motion that Camilo's filiation was acknowledged by the decedent, and that the Juvenile and Domestic Relations Court of Iloilo has exclusive original jurisdiction to entertain Camilo's action for acknowledgment, as held in Paterno vs. Paterno, L-23060, June 30, 1967, 20 SCRA 585. The motion remained unresolved for more than four years. Judge Veloso did not act on it before he retired in the early part of 1975. The case was re-raffled to respondent Judge Valerie V. Rovira who issued the questioned order dated October 18, 1975 reopening the intestate proceeding.

The probate court set aside its prior order of closure because it assumed that there was no liquidation of the conjugal partnership of the spouses Feliciano Divinagracia and Salud Bretaa that there was no declaration of heirs, and that an interested party, who was left out in the partition, should be allowed to secure relief in the intestate proceeding by filing the proper motion within the reglementary period. The probate court in its questioned order directed the administratrix to submit a complete liquidation of the conjugal partnership and an inventory of the decedent's estate after the payment of its debts. It further directed that the liquidation and the inventory should be set for hearing with notice to movant Camilo Divinagracia. Thereafter, another hearing should be held to determine the decedent's heirs. At the hearing, Camilo could present evidence to prove his claim that he was an Id acknowledged spurious child of the deceased. The lower court denied the administratrix's motion for reconsideration of its order reopening the intestate proceeding. A copy of the order of denial was received by the administratrix on January 7, 1976. She filed on January 31, 1976 the instant petition for certiorari and prohibition. It is really an appeal under Republic Act No. 5440. We hold that the probate court erred in reopening the intestate proceeding, a proceeding in rem of which Camilo Divinagracia is deemed to have had constructive notice (Varela vs. Villanueva, 95 Phil. 248). The order closing it was already final and executory. The motion to reopen it was not filed within the thirty-day reglementary period counted from the date the order of closure was served on the administratrix. The closure order could not be disturbed anymore (Imperial vs. Muoz, L-30787, August 29, 1974, 58 SCRA 678. Compare with Ramos vs. Ortuzar, 89 Phil. 730, 741; Jerez vs. Nietes, L-26876, December 27, 1969, 30 SCRA 904, 909; Vda. de Lopez vs. Lopez, L-23195, September 28, 1970, 35 SCRA 80, 83, where the motion to reopen the intestate proceeding was filed within the reglementary period). Moreover, the order for the reopening of the intestate proceeding was predicated on the false assumption that there had been no liquidation of the conjugal partnership and no declaration of heirs. The truth is that the project of partition and distribution, with final accounting, which was submitted by the administratrix and approved by the probate court, contained a liquidation of the conjugal partnership and a statement as to who were the decedent's heirs and what were their respective hereditary shares. That project of partition was a substantial compliance with articles 179 et sequentia of the Civil Code. The probate court further erred in entertaining Camilo Divinagracia's motion to reopen the intestate proceeding. It erred because that motion involved the determination of his status as the decedent's spurious child. That question falls within the exclusive original jurisdiction of the Juvenile and Domestic Relations Court of Iloilo. Republic Act No. 4834, which took effect on June 18, 1966, provides: SECTION 1. The Juvenile and Domestic Relations court. There shall be a Juvenile and Domestic Relations Court in the Province of Iloilo, for which a judge who shall possess the same qualifications, enjoy the same privileges and receive the same salary as judges of courts of first instance, shall be appointed by the President of the Philippines, with the consent of the Commission on Appointments. Provisions of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive original jurisdiction to hear and decide the following cases after the effectivity of this Act:

xxx xxx xxx (b) Cases involving custody, guardianship, adoption, paternity and acknowledgment; xxx xxx xxx If any question involving any of the above matters (seven classes of cases) should arise as an incident in any case pending in the ordinary courts, said incident shall be determined in the main case. The instant case is similar to the Paterno case, supra, and Bartolome vs. Bartolome, L-23661, December 20, 1967, 21 SCRA 1324, where it was held that cases involving paternity and acknowledgment fall within the exclusive original jurisdiction of the Juvenile and Domestic Relations Court. The Paterno and Bartolome cases involve provisions of the Charter of Manila inserted by Republic Act No. 1401 in Republic Act No. 409), which created its Juvenile and Domestic Relations Court. Those provisions are similar to the provisions of Republic Act No. 4834 which created the Juvenile and Domestic Relations Court of Iloilo. It was clarified in the Paterno case that the rule prohibiting the splitting of a cause of action (Sec. 4, Rule 2, Rules of Court) is not violated by the holding that the action to establish plaintiff's filiation as an illegitimate child should be filed in the Juvenile and Domestic Relations Court and cannot be joined to the action of the illegitimate child for partition and recovery of his hereditary share in his putative father's estate, which is cognizable by the Court of First Instance: It is true that under the aforequoted section 1 of Republic Act No. 4834 a case involving paternity and acknowledgment may be ventilated as an incident in the intestate or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that legal provision presupposes that such an administration proceeding is pending or existing and has not been terminated. There is a rule that the remedy of a natural child, who has not been voluntarily acknowledged (Art. 278, Civil Code) but who can justifiably compel recognition. is either (a) a separate action against his parent to compel recognition, or, if the parent is dead, against all the potential heirs who would be prejudiced by his recognition together with an action for the enforcement of his rights against his parent or the latter's heirs; or (b) he may intervene in the administration proceeding for the settlement of his deceased parent's estate and there ask for recognition and at the same time enforce his hereditary rights (Briz vs. Briz and Remigio, 43 Phil. 763; Suarez vs. Suarez, 43 Phil. 903; Lopez vs. Lopez, 68 Phil. 227; Zaldarriaga vs. Mario, L-19566, May 25, 1964, 11 SCRA 48; Uriarte vs. Court of First Instance of Negros Occidental, L-21938, 33 SCRA 252). This rule, which may be applied to the spurious child's action to establish his filiation and assert his hereditary rights, is good in provinces where there are no Juvenile and Domestic Relations Court and where the administration proceeding has not been instituted or is already closed. In this connection, a review of the rules governing the filiation of a spurious child may be useful in ascertaining the remedy open to Camilo Divinagracia. The so-called spurious children, or illegitimate children other than natural children, commonly known as bastards include adulterous children or those born out of wedlock to a married woman cohabiting with a man other than her husband or to a married woman cohabiting with a woman other than his

wife. They are entitled to support and successional rights (Art. 287, Civil Code). But their filiation must be duly proven (Ibid, Art. 887). How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the paternity or maternity of spurious children under the circumstances specified in articles 283 and 284 of the Civil Code. The implication is that the rules on compulsory recognition of natural children are applicable to spurious children (Pactor vs. Pestao, 107 Phil. 685; Edades vs. Edades, infra; Reyes vs. Zuzuarregui 102 Phil. 346, 354). Spurious children should not be in a better position than natural children. The rules on proof of filiation of natural children or the rules on voluntary and compulsory acknowledgment for natural children may be applied to spurious children (Paulino and Nieto vs. Pauline, 113 Phil. 697, 700). That does not mean that spurious children should be acknowledged, as that term is used with respect to natural children. What is simply meant is that the grounds or instances for the acknowledgment of natural children are utilized to establish the filiation of spurious children (Barles vs. Ponce Enrile, 109 Phil. 522). A spurious child may prove his filiation by means of a record of birth, a will, a statement before a court of record, or in any authentic writing. These are the modes of voluntary recognition of natural children (Art. 278, Civil Code). In case there is no evidence on the voluntary recognition of the spurious child, then his filiation may be established by means of the circumstances or grounds for compulsory recognition prescribed in the aforementioned articles 283 and 284 Noble vs. Noble, 64 O.G. 1753; Edades vs. Edades, 99 Phil. 675; Sotto vs. Sotto, L-20921, May 24, 1966, 17 SCRA 243; Republic vs. Workmen's Compensation Commission, L-19946, February 26, 1965, 13 SCRA 272; Galeon vs. Galeon, L30380, February 28, 1973, 49 SCRA 516; Paterno vs. Paterno, supra). The prescriptive period for filing the action for compulsory recognition in the case of natural children, as provided for in article 285 of the Civil Code, applies to spurious children (Vda. de Clemea vs. Clemea, L-24845, August 22, 1968, 24 SCRA 720; Velez vs. Velez, L-28873, July 31, 1973, 52 SCRA 190; Barles vs. Ponce Enrile, supra). In the instant case, Camilo Divinagracia did not disclose whether he has any evidence of voluntary recognition of his filiation. There is no allegation in his motion that would sustain his claim for compulsory acknowledgment of his filiation. (Cf. Pactor vs. Pestao, 107 Phil. 685). In view of the foregoing considerations, the probate court's order of October 18, 1975, reopening the intestate proceeding for the settlement of the estate of Feliciano Divinagracia, is set aside. Costs against private respondent. SO ORDERED. Concepcion, Jr., J., concur. Antonio, J., concurs, in the result.

Separate Opinions

BARREDO, J., concurring: I concur in the scholarly and comprehensive opinion of Mr. Justice Aquino resolving the issues of jurisdiction and procedure raised in the petition and in the resulting judgment rendered by him. However, I do not feel prepared at this time to share his views as to the modes open to spurious children to establish their illegitimate paternity as basis for entitling them to the successional and other rights granted to them by the Civil Code. I have yet to be convinced that allowing spurious children to prove such paternity by means other than those indispensably prescribed for natural children places the former "in a better position" than the latter. Presently, I feel that spurious children who are certainly without fault, as also are natural children, in their being born as such are more unfortunate than the latter, if only because there is bound to be more antagonism against them from the legitimates and naturals and it is an unusual philanderer who openly and formally acknowledges spurious children. And if without such direct acknowledgment, a spurious child can no longer prove his paternity otherwise, no matter how convincing his evidence may be, would that not amount to practically diluting, if not nullifying indirectly, the commendable objective of the Civil Code of giving to all innocent children more in law than what their indiscreet and perhaps inconsiderate parents care to bestow on them, for obvious reasons of convenience? Fernando, J., concur.

Separate Opinions BARREDO, J., concurring: I concur in the scholarly and comprehensive opinion of Mr. Justice Aquino resolving the issues of jurisdiction and procedure raised in the petition and in the resulting judgment rendered by him. However, I do not feel prepared at this time to share his views as to the modes open to spurious children to establish their illegitimate paternity as basis for entitling them to the successional and other rights granted to them by the Civil Code. I have yet to be convinced that allowing spurious children to prove such paternity by means other than those indispensably prescribed for natural children places the former "in a better position" than the latter. Presently, I feel that spurious children who are certainly without fault, as also are natural children, in their being born as such are more unfortunate than the latter, if only because there is bound to be more antagonism against them from the legitimates and naturals and it is an unusual philanderer who openly and formally acknowledges spurious children. And if without such direct acknowledgment, a spurious child can no longer prove his paternity otherwise, no matter how convincing his evidence may be, would that not amount to practically diluting, if not nullifying indirectly, the commendable objective of the Civil Code of giving to all innocent children more in law than what their indiscreet and perhaps inconsiderate parents care to bestow on them, for obvious reasons of convenience? Fernando, J., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-43701 March 6, 1937

In re Instate of the deceased Marciana Escao. ANGELITA JONES., petitioner-appellant-appellee, vs. FELIX HORTIGUELA, as administrator, widower and heir, oppositor-appellant-appellee. Salvador E. Imperial for petitioner-appellant-appellee. Vicente L. Faelnar , Hipolito Alo and Ciriaco S. Salazar for oppositor-appellant-appellee. CONCEPCION, J.: This is an appeal taken from the order issued by the Court of First Instance of Cebu on March 14, 1935 , in the intestate proceedings of the deceased Marciana Escao, denying thereby: (1) the motion to appoint a new administrator and (2) to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the order of January 10, 1933. granting to the administrator fees in the sum of P10,000, and that of June 26, 1933, approving the project of portion and the final account; and (5) ordering the presentation of another project of partition and final account. As Marciana Escao had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire estate, and in an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela, her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the properties left by said deceased Marciana Escao, a final account of his administration, and a project of partition of the intestate estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties and his usufructuary right, and the remaining part to Angelita Jones. The latter, who was a minor, was represented in the proceedings by her guardian Paz Escao de Corominas. The project of partition and final account were approved in an order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof. On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging that she was the only heir of her mother, the deceased Marciana Escao; that there never was a valid marriage between her mother and Felix Hortiguela or that had such marriage been celebrated, it was null and void; and even granting that it were valid, Felix Hortiguela was not entitled to a share in usufruct of one-third of the inheritance; that the petitioner was a minor and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent by the same attorney of Felix Hortiguela; that during said proceedings there had been committed many errors and inaccuracies which impaired her rights and that the fees of P10,000 charged by the administrator were highly unreasonable and unconscionable. She prayed: (a) for the reopening of the proceedings; (b) that her husband appointed special administrator without bond; (c) that her

mother's alleged marriage to Felix Hortiguela be declared null and void; (d) that the partition of the properties made by administrator or Hortiguela be declared null and void that petitioner be declared the only universal heir of her deceased mother; and (e) that in case there was a valid marriage between Felix Hortiguela and Marciana Escao, Hortiguela be declared not entitled to the widower's usufruct; the errors in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of the properties be made. After Hortiguela's answer had been filed and the evidence for both parties received, the court issued the order of March 14, 1935, the provisions of which are stated in the first paragraph of this decision. Both parties appealed therefrom. The principal question upon the resolution of which depends that of the others, is whether or not Felix Hortiguela's alleged marriage to Marciana Escao was celebrated. It is a fact that in December, 1914, Marciana Escao married Arthur W. Jones in the suburban catholic church of San Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever heard of him. In October, 1919, proceedings were institute in the Court of First Instance of Maasin, Leyte, at the instance of Marciana Escao, to have her husband judicially declared an absentee. On the 25th of said month, the court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of article 186 of the Civil Code, with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette and in the newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of December, 1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana Escao were married before the justice of the peace of Malitbog, Leyte, and they signed the certificate of marriage. Now, Angelita Jones contends that the declaration of absence must be understood to have been made not in the order of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escao is null and void. This court does not believe so. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage (section III, paragraph 2, General orders, No. 68). In accordance with the foregoing legal provision, the absence of Marciana Escao's former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful. For some unknown reason not attributable, of course, to the fault or negligence of Felix Hortiguela or Marciana Escao, the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita Jones assigns as one of the errors of the court its having declared that failure to record said marriage does not affect the efficacy and validity thereof.

On this point, the court a quo very correctly stated as follows: Section VIII of General Orders, No. 68, as amended, provides that the person solemnizing the marriage must transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such certificate to the municipal secretary annuls the marriage. Interpreting this legal provision, the Supreme Court, in its decision of September 5, 1931 (Madridejo vs. De Leon, 55 Phil., 1 ) said: "The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in articulo mortis failed to send a copy of the marriage certificate to the municipal secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being one said requisites." In another case (U. S. vs. De Vera, 28 Phil., 105), the court said: "Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries, marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to such an extent that other proofs established by law may not be presented or admitted at trial, when through the omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it was not duly entered or recorded in the municipal register." Furthermore, Marciana Escao believed Arthur W. Jones to be dead when she contracted her second marriage. Her daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She certainly would not have behaved so if she had not believed her father to be dead. Still furthermore, according to section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead. Inasmuch as Felix Hortiguela was lawfully married to Marciana Escao and was divorced from her at the time of her death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present case (6 and 7 Manresa, pages 497-499 and 134-141, respectively). Therefor, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition of the properties of the intestate estate. The inaccuracies and error attributed to the administrator Felix Hortiguela in Angelita Jones' motion and alleged therein as one of the grounds for asking for the reopening of any assignment of error. It should, therefore, be considered that the petitioner has desisted from her intention relative to this alleged ground for the nullity of the proceedings. As to the administrator's fees, the evidence shows that of the P10,000 granted by the court to Hortiguela as his own sum of P8,000 for the latter's professional services in this as well as in other cases affecting the estate of his deceased wife. Taking into consideration the nature of and the amount involved in this and in the other cases wherein Attorney Faelnar has rendered his services this court is of the opinion that the sum of P8,000 paid by the administrator is a reasonable and moderate compensation. Angelita Jones' objection to the effect that she had no reason to contribute

to the payment of Faelnar's fees is untenable, considering the fact that said attorney's professional services were rendered for the benefit of the administration of the estate of the deceased Escao prior to the controversy provoked by said heiress. As to the remainder of P2,000, said administrator is entitled to collect the sum of P4 for every day employed by him as such, and considering the importance of the inheritance in question and the time elapsed since the inception of the administration proceedings this court is of the opinion that the sum of P2,000 is an adequate compensation for said administrator's services. Lastly, had the court jurisdiction to set aside, as it did, the order of January 10, 1933, approving the administrator's fees and the order of June 26, 1933, approving the partition and the final account? Had the court jurisdiction to order the presentation of another project of partition and final account? These are the questions raised by Felix Hortiguela and this court is of the opinion that said orders having therefrom, the court has lost jurisdiction that no appeal was ever taken therefrom, the court has lost jurisdiction over the case and it could not resume it under section 113 of the Code of Civil Procedure or under section 598 thereof because the above-cited section refer to grounds other than those upon which Angelita Jones' motion of May 3, 1934, is based. For all the foregoing consideration this court reverses the appealed order of March 14, 1935, in so far as it set aside the order of January 10, 1933, relative to the administrator's fees and the order of June 26, 1933, approving the final account and the project of portion, and in so far as said order of March 14, 1935, required the presentation of a new project of partition; denied the appointment of Angelita Jones husband as administrator; affirms the order of May 9, 1932, relative to declaration of heirs; and holds it unwarranted to make a finding as to whether or not the properties of this intestate estate are paraphernal properties of the deceased Marciana Escao reserving to the parties the right to discuss which are paraphernal and which are conjugal properties. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-39310 January 27, 1981 JOHN A. IMUTAN, petitioner, vs. THE HON. COURT OF APPEALS (SPECIAL DIVISION OF FIVE COMPOSED OF ACTING PRESIDING JUSTICE ANTONIO G. LUCERO and ASSOCIATE JUSTICES RAMON C. FERNANDEZ, GUILLERMO S. SANTOS, RAMON G. GAVIOLA, JR. and PACIFICO DE CASTRO) and THE PEOPLE OF THE PHILIPPINES, respondents.

CONCEPCION JR., J.: Action for certiorari to annul the resolution promulgated on September 2, 1974 by the respondent Court of Appeals, which denied petitioner's motion for reconsideration dated April 25, 1974 and his motion dated July 5, 1974 to consider the motion for reconsideration in the alternative as a motion for new trial, based on the following

GROUNDS FIRST GROUND: That the respondent Court of Appeals, thru its Special Division of Five, composed of Acting Presiding Justice Lucero, Justices Fernandez, Santos, Gaviola and de Castro, acted with grave abuse of discretion or in excess of jurisdiction in considering petitioner's motion for reconsideration the Court's decision of March 13, 1974 as denied and said decision of March 13, 1974 affirmed in spite of the fact that only two Justices voted for outright denial of said motion while two voted for the granting of said motion and for outright acquittal of the accused, while the ponenteof the original decision voted to consider said motion for reconsideration as a motion for new trial which should be granted to give an opportunity to petitioner to present in evidence certain documents which, if admitted, would establish the fact that the second marriage was entered into by petitioner under duress and intimidation. SECOND GROUND: That assuming that petitioner's motion for reconsideration is properly deemed denied, respondent court nevertheless acted with grave abuse of discretion in not considering the alternative motion of petitioner for the granting of a new trial as deemed approved or granted. THIRD GROUND: That the respondent Court acted with grave abuse of discretion in not granting the motion for new trial. The facts that follow are on record. The petitioner was found guilty of bigamy by the Court of First Instance of Cavite on the charge that while his first marriage with Aurea Martin whom he married on June 25, 1956 was still valid and subsisting, he contracted a second marriage with Leonida Limpiada on August 6, 1960. He was sentenced to suffer "an indeterminate penalty of from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum, and to pay the costs." Petitioner appealed to the respondent Court of Appeals and on March 13, 1974 its Special Division of Five 1 formed after the Division of Three failed to reach a unanimous verdict, affirmed the conviction of petitioner in a 3-2 decision. 2 Petitioner filed a motion for reconsideration on April 30, 1974 and the Solicitor General thereafter filed his comment thereon. While the motion for reconsideration was pending, petitioner filed on July 8, 1974 a motion to consider his motion for reconsideration in the alternative as a motion for new trial. On September 2, 1974, the respondent Court through its Special Division of Five, in a 3-2 Resolution, 3 denied petitioner's motion for reconsideration and/or new trial. The basic premise of the present petition is that, for a judgement finding petitioner guilty beyond reasonable doubt of the crime imputed upon him, there must be a concurrence in the Special Division of Five of three unequivocal, clear-cut votes of conviction without any qualifications or reservations. Thus, so the petitioner postulates, where the polarization of voting in a Special Division of Five is two for conviction, two for acquittal and one for new trial, there is no concurrence of a majority vote for conviction and the accused should be acquitted. Alleging that there was, in reality, no majority vote for his conviction in the case at bar, the petitioner argues that the respondent Court acted with grave abuse of discretion or excess of jurisdiction "in maintaining the judgment of conviction on the basis of an equally divided and inconclusive vote on the motion for reconsideration." 4 At the very least, it is contended, the motion for new trial should have been granted. To sustain the alleged polarization of voting in the Special Division, the petitioner, quoting extensively from the dissenting opinion of Justice

Gaviola, traced the development in the voting that eventually led to the questioned resolution of the respondent Court dated September 2, 1974 of the five justices on the petitioner's motion. Thus Acting upon the motion for reconsideration, Justice de Castro, the new ponente, voted that "the motion for reconsideration may be treated as one for new trial so as to give a chance to appellant to present documentary evidence annexed to the motion, with the close scrutiny of the prosecution." Amplifying, Justice de Castro, on July 2, 1974, said: In proposing to treat the motion for reconsideration as one for new trial, I took into account the following: (a) the Close voting, 3-2, the first vote of the original ponente, Justice Gaviola, followed by that of Justice Fernandez, being for outright acquittal; (b) the documents that may be presented in a new trial would prove not only the doubtful validity of the marriage license, because the license was applied for on the very day the marriage was celebrated, not more than 10 days as found by the trial court, not because the application was not duly notarized, but also the "rush" celebration of the marriage which would prove a "gunshot" marriage, which is the main defense of appellant. With the comment, I therefore, pass on the agendum to the Justices named as suggested by Justice Lucero. Acting Presiding Justice Lucero, in an extended opinion voted to deny outright appellant's motion for reconsideration. Justice Fernandez voted as follows: Consistent with my dissenting opinion, I vote to grant the motion for reconsideration and acquit the accused-appellant. xxx xxx xxx Before a final vote, however, could be taken to resolve the said motion for reconsideration, the appellant submitted a second motion dated July 8, 1974, (herein referred to as the second motion), asking, among other things, that the first motion previously filed be considered, in the alternative, as a motion for new trial. Considering the said second motion, Justice de Castro voted to grant it; Justice Lucero and Justice Santos reiterated their vote to deny outright the first and second motions referred to; and Justices Fernandez and Gaviola, Jr., voted to acquit the accused-appellant. xxx xxx xxx The disposition of the voting, therefore, on the first motion (motion for reconsideration) as well as on the second motion (motion that the first motion be considered in the alternative, as a motion for new trial) is as follows: a) Two Justices for acquittal b) Two Justices for denial of the two motions and, in effect, for sustaining the judgement of conviction; and c) One Justice for treating the first motion as for new trial, and for granting the second motion. Interpreting the foregoing disposition of the voting of this Division, as thus crystallized, Justice de Castro the new ponente, in substance observed that, inasmuch as no three justices had voted for or against it, the first motion is impliedly denied because, with his voting to grant a new trial, he had, by implication, denied the first motion, in effect, bringing up to three the member of justices in favor of denying the first motion. This interpretation or observation appears in the remarks of a supplemental agendum

which the Deputy Clerk of Court submitted to this Division to find out whether the other members of the Division shared the same. xxx xxx xxx The (aforequoted) "remarks" were subsequently confirmed by Justice de Castro who, acting on the supplemental agendum, voted: as correctly observed in the "remarks" the result is the motion in either of its alternative prayer is denied; in which vote Justice Lucero concurred along with Justice Santos. Justice Fernandez voted: 'Make it of record that I vote for the acquittal of the accused-appellant. 5 Grave abuse of discretion as basis for the issuance of the writ of certiorari is a well-defined concept. By "grave abuse of discretion" is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. 6 It has been held that abuse of discretion alone is not sufficient to warrant the issuance of the writ, but that the abuse must be so grave, as where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all, in contemplation of law. 7 For certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in accordance with centuries of both civil law and common law traditions. 8 The present petition cannot survive the test of these authoritative pronouncements. The resolution dated September 2, 1974 cannot be tainted with grave abuse of discretion and certiorari cannot lie against the respondent Court. There is no denying the fact that three justices out of the five members of the Special Division of the respondent Court of Appeals voted to deny the petitioner's motion for reconsideration and his motion to consider the motion for reconsideration in the alternative as a motion for new trial. Namely, these were Acting Presiding Justice Lucero who filed an extended opinion reciting his reasons for the outright denial of the petitioner's motion for reconsideration and/or for new trial; Justice Santos who concurred with Justice Lucero and Justice de Castro who likewise concurred with Justice Lucero and who, for the purpose of the resolution, incorporated the opinion of Justice Lucero as an integral part thereof. It is therefore clear that there was compliance with the provisions of Section 33 of the Judiciary Act as amended which provides that "(I)n the event that the three Justices do not reach a unanimous vote, the Presiding Justice shall designate two Justices from among the other members of the Court to sit temporarily with them, forming a division of five Justices, and the concurrence of a majority of such division shall be necessary for the pronouncement of a judgment." The petitioner cannot turn his back to the reality of a 3-2 vote against his motion for reconsideration and/or new trial and insist that the "vote of Justice de Castro, the fifth member, is really for the granting of a new trial and not an unconditional vote for conviction." First and most evident, Justice de Castro declared in no uncertain terms in the resolution under litigation that his vote was for an outright denial of the motions presented by the petitioner before the respondent Court. He stated that: Doubt now seems to have been generated by the vote of writer for the granting of a new trial, Justice Gaviola expressing the view that the stand taken by the five members constituting this Special Division is much too equivocal to permit a clear-cut disposition of the motion which would result, according to in a

judgment of acquittal on the theory that the votes are evenly divided two for conviction, two for acquittal and one for new trial, the doubt to be resolved in favor of the accused since the vote for a new trial of the writer tends likewise, to favor the said accused. If the writer has correctly stated Justice Gaviola's position, it need only be stated that as Justice Lucero has observed: Accordingly to the dissenting opinion of Justice Gaviola, Jr., there is no clear-cut vote of three Justices. I believe that no one can interpret Justice de Castro's vote better than himself. When he says that, by voting for new trial the Reconsideration of defendant-appellant is deemed denied, we have absolutely no justification at all to question the meaning he (Justice de Castro) wanted to convey by his vote. Accordingly, I am of the opinion that the reconsideration was denied by a vote of three. There can be no equivocation in the import of the vote of the writer (Justice de Castro) who hereby affirms categorically that he is for an outright denial of the motions now before us, revising his original vote for new trial since it counts with no support even from Justices Fernandez and Gaviola who insist on acquittal refusing to vote in the alternative, if acquittal is not obtainable, to grant a new trial. 9 Against this definitive contrary statement of Justice de Castro made after the respondent Court had thoroughly deliberated on the motions, the petitioner's insistence on the nature of Justice de Castro's vote, based largely on the configuration of and the explanations accompanying the preliminary voting on his motions, cannot stand. Petitioner should not harp upon the notations written by Justice de Castro during the time when his motions were passing hands for evaluation by the members of the respondent Court. Positions initially taken when issues are yet under study and consideration do not decide cases. They are explanatory in nature, formulated to elicit a full commentary on all the aspects of the issues presented by a cause. Rather than being constitutive of the final word on the matter at hand, they are merely the means by which a well considered conclusion can be reached. Indeed they must, if discussions are to be truly productive of the results intended by a judicial inquiry, change when so dictated by the entire body of reasons and arguments tabled at the end of the study. And so it was in this case, Justice de Castro wholly adopting the opinion of then Acting Presiding Justice Lucero which detailed the reasons why the motions of petitioner should be denied. Thus: The reasons for denial of the motions are stated in the extended opinion of Justice Lucero, set forth separately, in which the writer concurs, together with Justice Santos. For the purpose of this Resolution, the opinion of Justice Lucero is, therefore, deemed incorporated herein as integral part thereof. WHEREFORE, the motion for reconsideration dated April 30, 1974, as well as the motion dated July 8, 1974, is hereby denied. This is, as it should be, the determinative statement that should finally dispose of the petitioner's motions. In the end, Justice de Castro clearly voted for "an outright denial of the motion, the reasons being those stated in the opinion of Justice Lucero, "incorporated as an integral part" of the resolution of September 2, 1974. And there is no reason for petitioner to hang on to what has been said when the issues were yet on the balance and to persist on his observation that the majority of the Special Division of Five considered "that because only two (Justice Fernandez and Gaviola) are in favor of granting the motion for reconsideration, the vote of Justice de Castro for the granting of a new trial should be deemed impliedly as a vote for the denial of the motion for reconsideration."

The extended concurring opinion of Justice Lucero, which Justice de Castro incorporated into the questioned resolution as an integral part thereof cannot itself be faulted for having been issued in grave abuse of discretion. As priorly pointed out, it detailed the reasons why the petitioner's motions should be denied outright. The main points raised in the petitioner's motions were discussed and the conclusions made were amply supported by existing jurisprudence. The opinion, as written, best manifest that there was no grave abuse of discretion on the part of the respondent Court correctible by certiorari. It reads: My stand is to deny outright the defendant-appellant's Motion for Reconsideration for lack of merit. It will be a waste of time to remand the case to the lower court for new trial which, in the first place, the defendant-appellant himself, please note, is not demanding from this tribunal. Under Revised Rule 121, Sections I and 2, the grounds for new trial are: (a) that new and material evidence has been discovered which the defendant could not with reasonable deligence have discovered and produced at the trial and which if introduced and admitted, would probably change the judgment. In the trial of this case in the lower court, defendant-appellant's main reliance is that he was coerced or intimidated into contracting a second marriage with Leonids Limpiada. This story, the Lower Court, as well as this Court, had refused to believe for reasons well discussed in the majority opinion. In defendant-appellant's brief, two (2) errors were assigned, namely, (1) the Lower Court's not giving full faith and credit to the testimonies of the defendant-appellant and his witnesess ; and (2) in dismissal of defendant-appellant's complaint for annulment of the second marriage before the Juvenile and Domestic Relations Court of Manila, which was filed on August 12, 1963, after he had already been charged with bigamy on February 4, 1963, constitutes an adjudication on the merits of said case. Please take notice that the validity of the marriage applications, signed by defendant-appellant John Imutan Exh. 2, and by Leonids Limpiada, the second wife, Exh. 2-A, was not raised at all in the Lower Court. In defendant-appellant's lengthy Reconsideration, the main thrust of his arguments is that "Exhibits 2 and 2-A, marriage applications, cannot be considered public documents. At most they are merely private documents whose genuineness and due execution must be established before they can be received in evidence" (Reconsideration, page 3). Besides, the said documents, according to defendant-appellant carried no notarial number of Notary Public Magin Dones the brother of Cavite City Mayor Fidel Dones In the language of defendant-appellant, "the requirement of the placing of the document and page numbers is therefore, not a mere formality for it is an insurance against false certifications and antedating of documents, and the failure to comply with said requirement affects the integrity of the document as a public document" (Reconsideration, page 5). Likewise, it is claimed that said marriage applications do not bear the seal of the Notary Public. Replying to this argument, the Solicitor General said: "We respectfully submit that Exhibits 2 and 2-A were correctly admitted in evidence, irrespective of their characterization as public or private writings. The attempt to discredit Exhs. 2 and 2-A as not public documents because of their alleged defective jurats must fail. These objections do not appear to have been raised in the Lower Court. They cannot be raised for the first time on appeal, let alone in a motion for reconsideration. In any event, appellant John Imutan does not deny his signature in Exhs. 2 and 2-A. So with Leonids Limpiada. The documents therefore were properly Identified even if we were to characterize them in arguendo as private writings" (Roll 189). As shown from the foregoing, there is nothing to be gained by directing a new trial which defendant-appellant himself had not even asked for.

Squarely on point is the case of Eduardo Eigenman vs. Marydeen Guerra and Froilan Guerra, 61 O.G. (31) 4722: MARRIAGE; VALIDITY; LICENSE WRONGFULLY OBTAINED DOES NOT INVALIDATE MARRIAGE; REASON. A marriage under a license is not invalidated by the fact that the license was wrongfully obtained (I Tolentino on the Civil Code. 1960 ed., pp, 215-216, citing Melchor vs. Melchor, 102 Neb. 790, 169 NW 720). Lack of authority on the part of the subscribing officer would not render the marriage void where the essential requirements for its validity were present. This irregularity is primarily the lookout of the subscribing officer or his superior (San Gabriel, et al. vs. San Gabriel, Jr., CA-G.R. No. 23729-R, Nov. 27, 1959). This must be so, for the local civil registrar who issues the marriage license is not required to inquire into the authority of the officer administering the oath, and neither is the person solemnizing the marriage required to investigate as to whether or not a marriage license, which appears to have been issued by a competent official, was legally obtained. What the law declares as null and void are marriages solemnized without a marriage license (Art. 80, NCC). xxx xxx xxx ADDENDUM: After my dissenting opinion was submitted to the Division of Five on July 2, 1974, defense counsel apparently got knowledge of the grounds for the dissent and immediately adjusted his stand by filling on July 8, 1974, a 'Motion to Consider as Motion for Reconsideration. In the Alternative, as Motion for new Trial' (Roll 200202), putting emphasis on the fact that Atty. Magin Dones the notary public before whom the marriage applications, Exhibits 2 and 2-A, were sworn to, was not a notary public on the date he acted as such. This fact, even if proven in the new trial, will not alter my conclusion that the Motion for Reconsideration and/or New Trial is without merit because a marriage under a license is not invalidated by the fact that the license was wrongfully obtained, let alone the point that his new issue was not raised in the lower court nor before this Court on the appeal of the bigamy case. 10 Still and all the petitioner insists on a finding of grave abuse of discretion on the part of the respondent dent Court for having denied his alternative motion for new trial. He states that his position is "not that as a legal proposition the marriage was null and void because the marriage license that was issued was based on a defective marriage application." He contends that "since the respondent Court's as well as the trial court's principal basis in considering petitioner and those of his witnesses' testimonies as not credible, which is the fact that on July 13, 1960, petitioner and Leonida subscribed and swore to their marriage applications before Atty. Dones as notary public, is shown to be false, then there exists no ground for the Court's not believing petitioner and his witnesses." Again, he alludes to the preliminary voting on his motions stating that even Justice de Castro when voting to consider the motion for reconsideration as a motion for new trial believed that the admission of the newly discovered evidence would prove the rush marriage and his contention that the second marriage was a "gunshot marriage." 11 Without ruling on the decision rendered by the respondent Court on March 13, 1974 since this has not been placed squarely before Us, apart from the rule that We are bound by the findings and conclusions of fact made by the respondent Court, 12 We hereby quote a portion of the said decision if only to show that petitioner does not stand on solid ground and to demonstrate that he cannot thereby

force the conclusion that there has been no clear vote for his conviction. The pertinent portion of the decision of March 13, 1974 states that: The version of the defense by which it attempts to make out what it terms as a "gunshot marriage" is inherently weak and improbable, from facts and circumstances established not only the State evidence but also by that of the defense itself. Thus, aside from the fact that the marriage license was applied for long before the marriage, which discounts the employment of force, threat or intimidation as already noted, appellant got all his clothes from his first wife a few months after the second marriage. According to Aurea, the second wife, Leonids was living with her mother-in-law, appellant's mother, when she caned up by phone Leonida for a heart-to-heart talk about the matter of their marriage to a common husband. The action for annulment of the second marriage was filed only on August 13, 1963 after the recent charge for bigamy had already been filed on February 4, 1963, long after the supposed shotgun marriage on August 6, 1960. Appellant would rely mainly on the testimony of Leonida as her star witness, to give corroboration to his claim of force or intimidation having been employed to get him to enter into marriage with her. But from his story that he left and abandoned her practically from the first day following their marriage, Leonids could not have consented to take the witness stand in defense of one who virtually spurned her. She would be almost that woman scorned who knows no fury against the man who humiliated her, instead of showing cordiality to, much less, taking pity on him, as is evident from how she testified in his favor. Unwittingly, however, by her story of how she was abducted and assaulted against her will by appellant, Leonids made it plain to see that the force that impelled appellant to marry her is his fear of being prosecuted for the serious offense imputed to him by Leonida. In other words, he himself could have offered marriage or willingly accepted a proposal for it to avoid conviction and punishment under the law. As the Solicitor General stated in appellee's brief: 'In a desperate move to exculpate himself, appellant contends that marriage was the only solution to prevent scandal to the family of Limpiada. This is indeed an admission that the accused committed bigamy to prevent scandal. That reason is not exculpatory of the offense. (Emphasis supplied). 13 WHEREFORE, the petition should be, as it is hereby dismissed. With costs against the petitioner. SO ORDERED. Barredo (Chairman), Guerrero * and Abad Santos, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

The trial court's judgment convicting the petitioner of bigamy was affirmed in the decision dated March 13, 1974 of a Special Division of Five Justices of the Court of Appeals. Justice De Castro penned the decision. Justices Lucero and Santos concurred in the judgment of conviction. Justices Gaviola and Fernandez dissented. The petitioner filed a motion for reconsideration dated April 30, 1974. In a supplemental motion dated July 8, 1974, he asked that his motion for reconsideration be considered as an alternative motion for new trial. Justice De Castro in a resolution dated September 2, 1974 denied the two motions. Justices Lucero and Santos concurred in that denial in a separate opinion. Justices Gaviola and Fernandez dissented from the resolution denying the motions. The petitioner assailed that denial resolution in his instant petition for certiorari. He relies on the fact that during the deliberation on the motion for reconsideration, Justice De Castro voted to grant a new trial. He also allegedly voted to grant the alternative motion for the granting of a new trial. But that was only his tentative vote. What is controlling and conclusive is the final and indubitable vote of Justice De Castro in the resolution of September 2, 1974, which he opened categorically denying the motion for reconsideration and the alternative motion and reaffirming the judgment of conviction set forth in the decision of March 13, 1974.

Separate Opinions AQUINO, J., concurring: The trial court's judgment convicting the petitioner of bigamy was affirmed in the decision dated March 13, 1974 of a Special Division of Five Justices of the Court of Appeals. Justice De Castro penned the decision. Justices Lucero and Santos concurred in the judgment of conviction. Justices Gaviola and Fernandez dissented. The petitioner filed a motion for reconsideration dated April 30, 1974. In a supplemental motion dated July 8, 1974, he asked that his motion for reconsideration be considered as an alternative motion for new trial. Justice De Castro in a resolution dated September 2, 1974 denied the two motions. Justices Lucero and Santos concurred in that denial in a separate opinion. Justices Gaviola and Fernandez dissented from the resolution denying the motions. The petitioner assailed that denial resolution in his instant petition for certiorari. He relies on the fact that during the deliberation on the motion for reconsideration, Justice De Castro voted to grant a new trial. He also allegedly voted to grant the alternative motion for the granting of a new trial. But that was only his tentative vote. What is controlling and conclusive is the final and indubitable vote of Justice De Castro in the resolution of September 2, 1974, which he opened categorically denying the motion for reconsideration and the alternative motion and reaffirming the judgment of conviction set forth in the decision of March 13, 1974. Footnotes

1 The Members of the Special Division of Five were then Acting Presiding Justice Antonio Lucero; Justice Ramon C. Fernandez, now Associate Justice of the Supreme Court; Justice Pacifica P. de Castro, now Associate Justice of the Supreme Court; Justice Guillermo S. Santos, later appointed Associate Justice of the Supreme Court who retired as such on January 23, 1980; and Justice Ramon Gaviola, Jr. 2 Justice de Castro wrote the majority opinion. Justice Lucero and Justice Santos each filed a separate concurring opinion. Justice Gaviola dissented in an extended opinion, concurred in by Justice Fernandez. 3 Justice de Castro penned the resolution, incorporating thereby the concurring opinion of Justice Lucero which was, in turn, concurred in by Justice Santos. Justice Gaviola filed an extended dissent and Justice Fernandez likewise dissented from the majority resolution "consistent with (my) dissenting opinion." 4 Rollo, pp. 3-4. 5 Id, pp. 9-13. 6 Liwanag, et al. vs. Castro, 106 Phil. 375 citing Abad Santos vs. Province of Tarlac, 67 Phil. 480; Tan vs. People, 88 Phil. 609; Rueda vs. Court of Agrarian Relations, 106 Phil. 300. 7 Ibid, citing Talavera-Luna, Inc. vs. Nable, 67 Phil. 340; Alafriz vs. Nable. 72 Phil. 278. The same cases on grave abuse of discretion were also cited in People vs. Marave, No. L-19023, July 31, 1964, 11 SCRA 618. 8 People vs. Vallarta No. L-32728, June 30, 1977, 77 SCRA 476 citing, on this point, Panaligan vs. Adolfo, L- 24100, September 30, 1975,67 SCRA 176. 9 Rollo, pp. 35-37. 10 Id., pp. 39-43. 11 Id, p. 27. 12 Associated Realty Development Co., Inc. vs. Court of Appeals, L-18056, January 30, 1965, 13 SCRA 152; Goduco vs- Court of Appeals, L-17647, June 26, 1965, 14 SCRA 282; Philippine Refining Co., Inc. vs. Garcia, L-2187 1, Sept. 27, 1966, 18 SCRA 107; Sta. Ana, Jr. vs. Hernandez, L-16396, Dec. 17, 1966, 18 SCRA 973; State Bonding Insurance Co., Inc. vs- Manila Port Service, L- 22395, Dec. 17, 1966, 18 SCRA 1139; Haw Pia vs. Court of Appeals, L-20047, June 30, 1967, 20 SCRA 536; Montroy vs. CA-L-23258, July 1, 1967, 20 SCRA 620). 13 Rollo, pp. 64-66. * Mr. Justice Juvenal K. Guerrero, a member of the First Division, was designated to sit in the Second Division.