G.R. No.

L-30977 January 31, 1972

CARMEN LAPUZ SY, rere!en"e# $y %er !u$!"&"u"e MACAR'(
LAPUZ, petitioner-appellant,
vs.
EU)EM'( S. EU)EM'( a*&a! EU)EM'( SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

REYES J.+.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review
by certiorari of an order, dated 29 uly !9"9, of the uvenile and #o$estic
Relations %ourt of &anila, in its %ivil %ase 'o. 20()*, dis$issin+ said case
for le+al separation on the +round that the death of the therein plaintiff,
%ar$en ,. -apu. /y, which occurred durin+ the pendency of the case,
abated the cause of action as well as the action itself. 0he dis$issal order
was issued over the ob1ection of &acario -apu., the heir of the deceased
plaintiff 2and petitioner herein3 who sou+ht to substitute the deceased and
to have the case prosecuted to final 1ud+$ent.
,n !) Au+ust !95(, %ar$en ,. -apu. /y filed a petition for le+al
separation a+ainst 4ufe$io /. 4ufe$io, alle+in+, in the $ain, that they
were $arried civilly on 2! /epte$ber !9(4 and canonically on (0
/epte$ber !9(45 that they had lived to+ether as husband and wife
continuously until !94( when her husband abandoned her5 that they had no
child5 that they ac6uired properties durin+ their $arria+e5 and that she
discovered her husband cohabitin+ with a %hinese wo$an na$ed 7o 8io9
at !(!9 /isa /treet, &anila, on or about &arch !949. /he prayed for the
issuance of a decree of le+al separation, which, a$on+ others, would order
that the defendant 4ufe$io /. 4ufe$io should be deprived of his share of
the con1u+al partnership profits.
:n his second a$ended answer to the petition, herein respondent 4ufe$io
/. 4ufe$io alle+ed affir$ative and special defenses, and, alon+ with
several other clai$s involvin+ $oney and other properties, counter-clai$ed
for the declaration of nullity ab initio of his $arria+e with %ar$en ,. -apu.
/y, on the +round of his prior and subsistin+ $arria+e, celebrated
accordin+ to %hinese law and custo$s, with one 7o 8io9, alias '+o 8io9.
:ssues havin+ been 1oined, trial proceeded and the parties adduced their
respective evidence. ;ut before the trial could be co$pleted 2the
respondent was already scheduled to present surrebuttal evidence on 9
and !) une !9"93, petitioner %ar$en ,. -apu. /y died in a vehicular
accident on (! &ay !9"9. %ounsel for petitioner duly notified the court of
her death.
,n 9 une !9"9, respondent 4ufe$io $oved to dis$iss the <petition for
le+al separation<
1
on two 223 +rounds, na$ely= that the petition for le+al
separation was filed beyond the one-year period provided for in Article !02
of the %ivil %ode5 and that the death of %ar$en abated the action for le+al
separation.
,n 2" une !9"9, counsel for deceased petitioner $oved to substitute the
deceased %ar$en by her father, &acario -apu.. %ounsel for 4ufe$io
opposed the $otion.
,n 29 uly !9"9, the court issued the order under review, dis$issin+ the
case.
2
:n the body of the order, the court stated that the $otion to dis$iss
and the $otion for substitution had to be resolved on the 6uestion of
whether or not the plaintiff>s cause of action has survived, which the court
resolved in the ne+ative. Petitioner>s $oved to reconsider but the $otion
was denied on !5 /epte$ber !9"9.
After first securin+ an e?tension of ti$e to file a petition for review of the
order of dis$issal issued by the 1uvenile and do$estic relations court, the
petitioner filed the present petition on !4 ,ctober !9"9. 0he sa$e was
+iven due course and answer thereto was filed by respondent, who prayed
for the affir$ance of the said order.
3
Althou+h the defendant below, the herein respondent 4ufe$io /. 4ufe$io,
filed counterclai$s, he did not pursue the$ after the court below dis$issed
the case. 8e ac6uiesced in the dis$issal of said counterclai$s by prayin+
for the affir$ance of the order that dis$issed not only the petition for le+al
separation but also his counterclai$ to declare the 4ufe$io--apu.
$arria+e to be null and void ab initio.
;ut petitioner %ar$en ,. -apu. /y 2throu+h her self-assu$ed substitute @
for the lower court did not act on the $otion for substitution3 stated the
principal issue to be as follows=
Ahen an action for le+al separation is converted by the
counterclai$ into one for a declaration of nullity of a $arria+e,
does the death of a party abate the proceedin+sB
0he issue as fra$ed by petitioner in1ects into it a supposed conversion of a
le+al separation suit to one for declaration of nullity of a $arria+e, which is
without basis, for even petitioner asserted that <the respondent has
ac6uiesced to the dis$issal of his counterclai$< 2Petitioner>s ;rief, pa+e
223. 'ot only this. 0he petition for le+al separation and the counterclai$ to
declare the nullity of the self sa$e $arria+e can stand independent and
separate ad1udication. 0hey are not inseparable nor was the action for le+al
separation converted into one for a declaration of nullity by the
counterclai$, for le+al separation pre-supposes a valid $arria+e, while the
petition for nullity has a voidable $arria+e as a pre-condition.
0he first real issue in this case is= #oes the death of the plaintiff before final
decree, in an action for le+al separation, abate the actionB :f it does, will
abate$ent also apply if the action involves property ri+htsB .
An action for le+al separation which involves nothin+ $ore than the bed-
and-board separation of the spouses 2there bein+ no absolute divorce in
this 1urisdiction3 is purely personal. 0he %ivil %ode of the Philippines
reco+ni.es this in its Article !00, by allowin+ only the innocent spouse 2and
no one else3 to clai$ le+al separation5 and in its Article !0), by providin+
that the spouses can, by their reconciliation, stop or abate the proceedin+s
and even rescind a decree of le+al separation already rendered. ;ein+
personal in character, it follows that the death of one party to the action
causes the death of the action itself @ actio personalis moritur cum
persona.
... Ahen one of the spouses is dead, there is no need for divorce, because the $arria+e
is dissolved. 0he heirs cannot even continue the suit, if the death of the spouse ta9es
place durin+ the course of the suit 2Article 244, /ection (3. 0he action is absolutely dead
2%ass., uly 2*, !)*!, #. *!. !. )!5 %ass. re6., &ay ), !9((, #. 8. !9((, ((2.<3
,
.
&arria+e is a personal relation or status, created under the sanction of law, and an action
for divorce is a proceedin+ brou+ht for the purpose of effectin+ a dissolution of that
relation. 0he action is one of a personal nature. :n the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the reason
that death has settled the 6uestion of separation beyond all controversy and deprived the
court of 1urisdiction, both over the persons of the parties to the action and of the sub1ect-
$atter of the action itself. Cor this reason the courts are al$ost unani$ous in holdin+ that
the death of either party to a divorce proceedin+, before final decree, abates the action. !
%orpus uris, 20)5 Aren v. &oss, 2 7il$an, *25 #anforth v. #anforth, !!! :ll. 2("5 &atter
of 7randall, !9" '.D. !2*, )9 '.4. 5*)5 !(4 A$ /t. Rep. )(05 !* Ann. %as. )*45 Ailcon v.
Ailson, *( &ich, "20, 4! '.A. )!*5 /tric9land v. /tric9land, )0 Ar9. 452, 9* /. A. "595
&c%urley v. &c%urley, "0 &d. !)5, 45 A$. Rep. *!*5 ;e+bie v. ;e+bie, !2) %al. !55, "0
Pac. ""*, 49 -.R.A. !4!.
-
0he sa$e rule is true of causes of action and suits for separation and
$aintenance 2ohnson vs. ;ates, Ar9. !0! /A 4!25 ! %orpus uris 20)3.
A review of the resultin+ chan+es in property relations between spouses
shows that they are solely the effect of the decree of le+al separation5
hence, they can not survive the death of the plaintiff if it occurs prior to the
decree. ,n the point, Article !0" of the %ivil %ode provides= .
Art. !0". 0he decree of le+al separation shall have the followin+
effects=
2!3 0he spouses shall be entitled to live separately fro$ each
other, but the $arria+e bonds shall not be severed5 .
223 0he con1u+al partnership of +ains or the absolute con1u+al
co$$unity of property shall be dissolved and li6uidated, but the
offendin+ spouse shall have no ri+ht to any share of the profits
earned by the partnership or co$$unity, without pre1udice to
the provisions of article !*"5
2(3 0he custody of the $inor children shall be awarded to the
innocent spouse, unless otherwise directed by the court in the
interest of said $inors, for who$ said court $ay appoint a
+uardian5
243 0he offendin+ spouse shall be dis6ualified fro$ inheritin+
fro$ the innocent spouse by intestate succession. &oreover,
provisions in favor of the offendin+ spouse $ade in the will of
the innocent one shall be revo9ed by operation of law.
Cro$ this article it is apparent that the ri+ht to the dissolution of the
con1u+al partnership of +ains 2or of the absolute co$$unity of property3,
the loss of ri+ht by the offendin+ spouse to any share of the profits earned
by the partnership or co$$unity, or his dis6ualification to inherit by
intestacy fro$ the innocent spouse as well as the revocation of
testa$entary provisions in favor of the offendin+ spouse $ade by the
innocent one, are all ri+hts and disabilities that, by the very ter$s of the
%ivil %ode article, are vested e?clusively in the persons of the spouses5 and
by their nature and intent, such clai$s and disabilities are difficult to
conceive as assi+nable or trans$issible. 8ence, a clai$ to said ri+hts is not
a clai$ that <is not thereby e?tin+uished< after a party dies, under /ection
!*, Rule (, of the Rules of %ourt, to warrant continuation of the action
throu+h a substitute of the deceased party.
/ec. !*. Death of party. After a party dies and the clai$ is not
thereby e?tin+uished, the court shall order, upon proper notice,
the le+al representative of the deceased to appear and to be
substituted for the deceased, within a period of thirty 2(03 days,
or within such ti$e as $ay be +ranted...
0he sa$e result flows fro$ a consideration of the enu$eration of the
actions that survive for or a+ainst ad$inistrators in /ection !, Rule )*, of
the Revised Rules of %ourt=
/4%0:,' !. Actions which $ay and which $ay not be brou+ht
a+ainst e?ecutor or ad$inistrator. 'o action upon a clai$ for
the recovery of $oney or debt or interest thereon shall be
co$$enced a+ainst the e?ecutor or ad$inistrator5 but actions
to recover real or personal property, or an interest therein, fro$
the estate, or to enforce a lien thereon, and actions to recover
da$a+es for an in1ury to person or property, real or personal,
$ay be co$$enced a+ainst hi$.
'either actions for le+al separation or for annul$ent of $arria+e can be
dee$ed fairly included in the enu$eration..
A further reason why an action for le+al separation is abated by the death
of the plaintiff, even if property ri+hts are involved, is that these ri+hts are
$ere effects of decree of separation, their source bein+ the decree itself5
without the decree such ri+hts do not co$e into e?istence, so that before
the finality of a decree, these clai$s are $erely ri+hts in e?pectation. :f
death supervenes durin+ the pendency of the action, no decree can be
forthco$in+, death producin+ a $ore radical and definitive separation5 and
the e?pected conse6uential ri+hts and clai$s would necessarily re$ain
unborn.
As to the petition of respondent-appellee 4ufe$io for a declaration of
nullity ab initio of his $arria+e to %ar$en -apu., it is apparent that such
action beca$e $oot and acade$ic upon the death of the latter, and there
could be no further interest in continuin+ the sa$e after her de$ise, that
auto$atically dissolved the 6uestioned union. Any property ri+hts ac6uired
by either party as a result of Article !44 of the %ivil %ode of the Philippines
" could be resolved and deter$ined in a proper action for partition by either
the appellee or by the heirs of the appellant.
:n fact, even if the bi+a$ous $arria+e had not been void ab initio but only
voidable under Article )(, para+raph 2, of the %ivil %ode, because the
second $arria+e had been contracted with the first wife havin+ been an
absentee for seven consecutive years, or when she had been +enerally
believed dead, still the action for annul$ent beca$e e?tin+uished as soon
as one of the three persons involved had died, as provided in Article )*,
para+raph 2, of the %ode, re6uirin+ that the action for annul$ent should be
brou+ht durin+ the lifeti$e of any one of the parties involved. And
further$ore, the li6uidation of any con1u+al partnership that $i+ht have
resulted fro$ such voidable $arria+e $ust be carried out <in the testate or
intestate proceedin+s of the deceased spouse<, as e?pressly provided in
/ection 2 of the Revised Rule *(, and not in the annul$ent proceedin+.
A%%,R#:'7-D, the appealed 1ud+$ent of the &anila %ourt of uvenile
and #o$estic Relations is hereby affir$ed. 'o special pronounce$ent as
to costs.
Concepcion, C.J., Makalintal, Zaldiar, Castro, !ernando, "eehankee,
#arredo, $illamor and Makasiar, JJ., concur.

)oo"no"e!
! Per Anne? <7< to Petition, rollo, pa+es 9"-9), bein+ the
$otion to dis$iss.
2 Per Anne? <:< to Petition, rollo, pa+es !(2-!(*, bein+ the
order of dis$issal.
( Answer, rollo, pa+es !*4-!)2.
4 Planiol, %ivil -aw 0reatise, Eol. !, Part !, pa+es "5)-"59.
5 ;ushnell v. %ooper, !24 '. 4. 52!, 522.
" <Art. !44. Ahen a $an and a wo$an live to+ether as
husband and wife, but they are not $arried, or that $arria+e is
void fro$ the be+innin+, the property ac6uired by either or both
of the$ throu+h their wor9 or industry or their wa+es and
salaries shall be +overned by the rules on co-ownership.<