G.R. No.
79284 November 27, 1987 The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or upon the filing of a
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch 18,
Cagayan de Oro City, and TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge, dated 10 December
1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their child, and (2) the Order of the same
respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings in the action for legal separation filed
against him by private respondent as well as his motion to inhibit respondent Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis Oriental, 10th
Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint against petitioner for legal
separation, on the ground of concubinage, with a petition for support and payment of damages. This case was docketed as Civil Case
No. 10636. On 13 October 1986, private respondent also filed with the Municipal Trial Court, General Santos City, a complaint against
petitioner for concubinage, which was docketed on 23 October 1986 as Criminal Case No. 15437111. On 14 November 1986,
application for the provisional remedy of support pendente lite, pending a decision in the action for legal separation, was filed by
private respondent in the civil case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The
payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto, such as,
application for support pendente lite, should be suspended in view of the criminal case for concubinage filed against him the private
respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. Whenever the offended party shall have instituted the civil action to
enforce the civil liability arising from the offense. as contemplated in the first Section 1 hereof, the following rules shall be
observed:
(a) After a criminal action has been commenced the pending civil action arising from the same offense shall be suspended,
in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action arises from, or is
inextricably tied to the criminal action for concubinage, so that all proceedings related to legal separation will have to be suspended to
await conviction or acquittal for concubinage in the criminal case. Authority for this position is this Court's decision in the case
of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an allegation of
concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure, to
wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the following rules shall
he observed:
(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the offense charged is
impliedly instituted with the criminal action, unless the offended party expressly waives the civil action or reserves his
right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has
been commenced the civil action can not be instituted until final judgment has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted and the
same shall be suspended in whatever stage it may be found until final judgment in the criminal proceeding has been
rendered ... (Emphasis supplied)
1|CIVIL LAW REVIEW Persons Assignment # 7
criminal action, is one which is "to enforce the civil liability arising from the offense". In other words, in view of the amendment under
the 1985 Rules on Criminal Procedure, a civil action for legal separation, based on concubinage, may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because said civil action is not one "to enforce the civil liability arising from
the offense" even if both the civil and criminal actions arise from or are related to the same offense. Such civil action is one intended to
obtain the right to live separately, with the legal consequences thereof, such as, the dissolution of the conjugal partnership of gains,
custody of offsprings, support, and disqualification from inheriting from the innocent spouse, among others. As correctly pointed out
by the respondent Judge in his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-11935, April 24, 1959
(105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil action arising from the same offense can be
prosecuted and the same shall be suspended, in whatever stage it may be found, until final judgment in the
criminal proceeding has been rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce the civil liability
arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action "for recovery of civil
liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it refers to civil action for the recovery of civil liability
arising from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal rights of the
spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal separation can
prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of evidence in the action for
legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine in Francisco vs. Tayao 4 has been
modified, as that case was decided under Act. No. 2710, when absolute divorce was then allowed and had for its grounds the same
grounds for legal separation under the New Civil Code, with the requirement, under such former law, that the guilt of defendant
spouses had to be established by final judgment in a criminal action. That requirement has not been reproduced or adopted by the
framers of the present Civil Code, and the omission has been uniformly accepted as a modification of the stringent rule in Francisco v.
Tayao.5
Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave abuse of
discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in an action
for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the amount of support pendente lite ordered as too
onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of supportpendente lite and the
denial of the motion to suspend hearings in the case, are taken by the petitioner as a disregard of applicable laws and existing
doctrines, thereby showing the respondent Judge's alleged manifest partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel, as to applicable
laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the ground of bias and manifest
partiality. This is more so, in this case, where we find the judge's disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner. SO ORDERED.
MJRTB
[G.R. No. 105308. September 25, 1998]
HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses RONALD V. CLAVANO and
MARIA CLARA CLAVANO, respondents.
DECISION
ROMERO, J.:
Can minor children be legally adopted without the written consent of a natural parent on the ground that the
latter has abandoned them? The answer to this interesting query, certainly not one of first impression, would have to
be reached, not solely on the basis of law and jurisprudence, but also the hard reality presented by the facts of the
case.
This is the question posed before this Court in this petition for review on certiorari of the Decision[1] of the
Court of Appeals affirming the decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14,[2] in
Special Proceedings No. 1744-CEB, In the Matter of the Petition for Adoption of the minors Keith, Charmaine and
Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners.
Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children,
namely: Keith, born on July 3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3,
1981.
During the early years of their marriage, the Cang couples relationship was undisturbed. Not long thereafter,
however, Anna Marie learned of her husbands alleged extramarital affair with Wilma Soco, a family friend of the
Clavanos.
Upon learning of her husbands alleged illicit liaison, Anna Marie filed a petition for legal separation with
alimony pendente lite[3] with the then Juvenile and Domestic Relations Court of Cebu [4] which rendered a
decision[5] approving the joint manifestation of the Cang spouses providing that they agreed to live separately and
apart or from bed and board. They further agreed:
(c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS
(P1,000.00) effective from the date of the filing of the complaint. This shall constitute a first lien on the
net proceeds of the house and lot jointly owned by the parties situated at Cinco Village, Mandaue City;
(d) That the plaintiff shall be entitled to enter into any contract or agreement with any person or persons,
natural or juridical without the written consent of the husband; or any undertaking or acts that
ordinarily requires husbands consent as the parties are by this agreement legally separated;[6]
Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second
Judicial District Court of the State of Nevada. Said court issued the divorce decree that also granted sole custody of
the three minor children to Anna Marie, reserving rights of visitation at all reasonable times and places to
petitioner.[7]
Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he
divorced his American wife and never remarried.
While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a
month[8] a portion of which was remitted to the Philippines for his childrens expenses and another, deposited in the
bank in the name of his children.
Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano,
respectively the brother and sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of
the three minor Cang children before the Regional Trial Court of Cebu. The petition bears the signature of then 14-
year-old Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of consent alleging that her
husband had evaded his legal obligation to support his children; that her brothers and sisters including Ronald V.
2|CIVIL LAW REVIEW Persons Assignment # 7
Clavano, had been helping her in taking care of the children; that because she would be going to the United States to
attend to a family business, leaving the children would be a problem and would naturally hamper (her) job-seeking
venture abroad; and that her husband had long forfeited his parental rights over the children for the following
reasons:
1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her
husband;
2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one
place to another to avoid detection by Immigration authorities, and
3. Her husband had divorced her.
Upon learning of the petition for adoption, petitioner immediately returned to the Philippines and filed an
opposition thereto, alleging that, although private respondents Ronald and Maria Clara Clavano were financially
capable of supporting the children while his finances were too meager compared to theirs, he could not in conscience,
allow anybody to strip him of his parental authority over his beloved children.
Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children
alleging that Anna Marie had transferred to the United States thereby leaving custody of their children to private
respondents. On January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding that
Anna Marie had, in effect, relinquished custody over the children and, therefore, such custody should be transferred
to the father. The court then directed the Clavanos to deliver custody over the minors to petitioner.
On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a
dispositive portion reading as follows:
WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony
all surnamed Cang, by the petitioners-spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted
and approved. These children shall henceforth be known and called as Keith D. Clavano, Charmaine D. Clavano and
Joseph Anthony D. Clavano respectively. Moreover, this Decree of Adoption shall:
(1) Confer upon the adopted children the same rights and duties as though they were in fact the
legitimate children of the petitioners;
(2) Dissolve the authority vested in the parents by nature, of the children; and,
(3) Vest the same authority in the petitioners.
Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration
purposes.
SO ORDERED.
In so ruling, the lower court was impelled by these reasons:
(1) The Cang children had, since birth, developed close filial ties with the Clavano family, especially their
maternal uncle, petitioner Ronald Clavano.
MJRTB
 (2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export
business and gasoline station and mini-mart in Rosemead, California, U.S.A., had substantial assets and
income.
(3) The natural mother of the children, Anna Marie, nicknamed Menchu, approved of the adoption because of
her heart ailment, near-fatal accident in 1981, and the fact that she could not provide them a secure and
happy future as she travels a lot.
(4) The Clavanos could provide the children moral and spiritual direction as they would go to church together
and had sent the children to Catholic schools.
(5) The children themselves manifested their desire to be adopted by the Clavanos Keith had testified and
expressed the wish to be adopted by the Clavanos while the two younger ones were observed by the court
to have snuggled close to Ronald even though their natural mother was around.
On the other hand, the lower court considered the opposition of petitioner to rest on a very shaky foundation
because of its findings that:
(1) Petitioner was morally unfit to be the father of his children on account of his being an improvident father of
his family and an undisguised Lothario. This conclusion is based on the testimony of his alleged
paramour, mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and
petitioner lived as husband and wife in the very house of the Cangs in Opao, Mandaue City.
(2) The alleged deposits of around $10,000 that were of comparatively recent dates were attempts at
verisimilitude as these were joint deposits the authenticity of which could not be verified.
(3) Contrary to petitioners claim, the possibility of his reconciliation with Anna Marie was dim if not nil
because it was petitioner who devised, engineered and executed the divorce proceedings at the Nevada
Washoe County court.
(4) By his naturalization as a U.S. citizen, petitioner is now an alien from the standpoint of Philippine laws and
therefore, how his new attachments and loyalties would sit with his (Filipino) children is an open
question.
Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study
Report, the lower court concluded as follows:
Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent
is commonly specified by statute as a ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal.
514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be allowed not only without the consent of the
parent, but even against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Cal.
469, 63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa,
561, 153 N.W. 160, citing R.C.L.; Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71
N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep.
17.)[9]
Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the
best interest of the three children if they were adopted by private respondents Ronald and Maria Clara Clavano. He
asserted that the petition for adoption was fatally defective and tailored to divest him of parental authority because:
(a) he did not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine
did not properly give their written consent; and (d) the petitioners for adoption did not present as witness the
3|CIVIL LAW REVIEW Persons Assignment # 7
representative of the Department of Social Welfare and Development who made the case study report required by
law.
The Court of Appeals affirmed the decree of adoption stating:
Article 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has
been held however that the consent of the parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92
Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The question therefore is whether or not oppositor may be
considered as having abandoned the children. In adoption cases, abandonment connotes any conduct on the part of
the parent to forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform
the natural and legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the withholding
of the parents presence, his care and the opportunity to display voluntary affection. The issue of abandonment is
amply covered by the discussion of the first error.
Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank
accounts in their names. His duty to provide support comes from two judicial pronouncements. The first, the
decision in JD-707 CEB, supra, obliges him to pay the children P1,000.00 a month. The second is mandated by the
divorce decree of the Nevada, U.S.A. Federal Court which orders him to pay monthly support of US$50.00 for each
child. Oppositor has not submitted any evidence to show compliance with the decision in JD-101 CEB, but he has
submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the childrens names totalling $2,126.98. The last
remittance was on October 6, 1987 (Exh. 45). His obligation to provide support commenced under the divorce decree
on May 5, 1982 so that as of October 6, 1987, oppositor should have made 53 remittances of $150.00, or a total of
$7,950.00. No other remittances were shown to have been made after October 6, 1987, so that as of this date,
oppositor was woefully in arrears under the terms of the divorce decree. And since he was totally in default of the
judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been performing his duties as a father,
contrary to his protestations.
True, it has been shown that oppositor had opened three accounts in different banks, as follows
Acct. No. Date Opened Balance Name of Bank
July 23, 1985 $5,018.50 Great Western Savings, Daly City, Cal., U.S.A.
Oct. 29, 1987
1) 118-606437-4
Matewan National Bank of Williamson, West
March 5, 1986 3,129.00 Virginia, U.S.A.
Oct. 26, 1987
2) 73-166-8
Security Pacific National Bank, Daly City, Cal.,
December 31, 1986 2,622.19 U.S.A.
Oct. 29, 1987
3) 564-146883
The first and third accounts were opened however in oppositors name as trustee for Charmaine Cang and Joseph
Anthony Cang, respectively. In other words, the accounts are operated and the amounts withdrawable by oppositor
himself and it cannot be said that they belong to the minors. The second is an `or account, in the names of Herbert
Cang or Keith Cang. Since Keith is a minor and in the Philippines, said account is operable only by oppositor and the
funds withdrawable by him alone.
The bank accounts do not really serve what oppositor claimed in his offer of evidence `the aim and purpose of
providing for a better future and security of his family.[10]
Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal
separation was not based on the merits of the case as it was based on a manifestation amounting to a compromise
agreement between him and Anna Marie. That he and his wife agreed upon the plan for him to leave for the United
States was borne out by the fact that prior to his departure to the United States, the family lived with petitioners
parents. Moreover, he alone did not instigate the divorce proceedings as he and his wife initiated the joint complaint
for divorce.
MJRTB
 Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to
him of custody over the children in Civil Case No. JD-707. He took exception to the appellate courts findings that as
an American citizen he could no longer lay claim to custody over his children because his citizenship would not take
away the fact that he is still a father to his children. As regards his alleged illicit relationship with another woman, he
had always denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that
Wilma Soco was a neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7)
kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma
Soco should not have been given weight for it was only during the hearing of the petition for adoption that Jose
Clavano, a brother of Ronald, came to know her and went to her residence in Iligan City to convince her to be a
witness for monetary considerations. Lastly, petitioner averred that it would be hypocritical of the Clavanos to claim
that they could love the children much more than he could.[11]
His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the
petition for adoption was fatally defective as it did not have his written consent as a natural father as required by
Article 31 (2) of Presidential Decree No. 603, the Child and Youth Welfare Code, and Article 188 (2) of the Family
Code.
Article 31 of P.D. No. 603 provides -
ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly
licensed child placement agency under whose care the child may be;
(3) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)
On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27,
28, 29, 31, 33 and 35 of the Child and Youth Welfare Code. As thus amended, Article 31 read:
ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or over;
(2) The natural parents of the child or his legal guardian after receiving counselling and appropriate
social services from the Ministry of Social Services and Development or from a duly licensed
child-placement agency;
(3) The Ministry of Social Services and Development or any duly licensed child-placement agency under
whose care and legal custody the child may be;
(4) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)
Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the
commencement of the action determines the jurisdiction of the court.[12] As such, when private respondents filed the
petition for adoption on September 25, 1987, the applicable law was the Child and Youth Welfare Code, as amended
by Executive Order No. 91.
During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the
Child and Youth Welfare Code took effect. Article 256 of the Family Code provides for its retroactivity insofar as it
4|CIVIL LAW REVIEW Persons Assignment # 7
does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. As amended
by the Family Code, the statutory provision on consent for adoption now reads:
Art. 188. The written consent of the following to the adoption shall be necessary:
(1) The person to be adopted, if ten years of age or over;
(2) The parents by nature of the child, the legal guardian, or the proper government instrumentality;
(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of the adopting parents, if living with said parent
and the latters spouse, if any; and
(5) The spouse, if any, of the person adopting or to be adopted. (Underscoring supplied)
Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent
of the natural parent to the adoption has remained a requisite for its validity.Notably, such requirement is also
embodied in Rule 99 of the Rules of Court as follows:
SEC. 3. Consent to adoption. There shall be filed with the petition a written consent to the adoption signed by the
child, if fourteen years of age or over and not incompetent, and by the childs spouse, if any, and by each of its known
living parents who is not insane or hopelessly intemperate or has not abandoned the child, or if there are no such
parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan
asylum, childrens home, or benevolent society or person, by the proper officer or officers of such asylum, home, or
society, or by such persons; but if the child is illegitimate and has not been recognized, the consent of its father to the
adoption shall not be required. (Underscoring supplied)
As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is
indispensable for the validity of the decree of adoption. Nevertheless, the requirement of written consent can be
dispensed with if the parent has abandoned the child[13] or that such parent is insane or hopelessly intemperate. The
court may acquire jurisdiction over the case even without the written consent of the parents or one of the parents
provided that the petition for adoption alleges facts sufficient to warrant exemption from compliance therewith. This
is in consonance with the liberality with which this Court treats the procedural aspect of adoption. Thus, the Court
declared:
x x x. The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed
more important that the petition should contain facts relating to the child and its parents, which may give
information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held
that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary
to give the court jurisdiction.[14]
In the instant case, only the affidavit of consent of the natural mother was attached to the petition for
adoption. Petitioners consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of
abandonment of the minors for adoption by the natural father as follows:
3. That the childrens mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this
adoption, as shown by Affidavit of Consent, Annex `A. Likewise, the written consent of Keith Cang, now 14 years of
age appears on page 2 of this petition; However, the father of the children, Herbert Cang, had already left his wife
and children and had already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE
MJRTB
issued by the County of Washoe, State of Nevada, U.S.A. (Annex `B) which was filed at the instance of Mr. Cang, not
long after he abandoned his family to live in the United States as an illegal immigrant.[15]
The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner,
sufficiently vested the lower court with jurisdiction since abandonment of the child by his natural parents is one of
the circumstances under which our statutes and jurisprudence[16] dispense with the requirement of written consent to
the adoption of their minor children.
However, in cases where the father opposes the adoption primarily because his consent thereto was not sought,
the matter of whether he had abandoned his child becomes a proper issue for determination. The issue of
abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only
upon failure of the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child
may the petition for adoption be considered on its merits.
As a rule, factual findings of the lower courts are final and binding upon this Court. [17] This Court is not
expected nor required to examine or contrast the oral and documentary evidence submitted by the
parties.[18] However, although this Court is not a trier of facts, it has the authority to review and reverse the factual
findings of the lower courts if it finds that these do not conform to the evidence on record.[19]
In Reyes v. Court of Appeals,[20] this Court has held that the exceptions to the rule that factual findings of the
trial court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference made
is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is
grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based
on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making
its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and
appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings
of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would
justify a different conclusion and (10) when the findings of fact of the Court of Appeals are premised on the absence
of evidence and are contradicted by the evidence on record.
This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances
that should have elicited a different conclusion[21] on the issue of whether petitioner has so abandoned his children,
thereby making his consent to the adoption unnecessary.
In its ordinary sense, the word abandon means to forsake entirely, to forsake or renounce utterly. The
dictionaries trace this word to the root idea of putting under a ban. The emphasis is on the finality and publicity with
which a thing or body is thus put in the control of another, hence, the meaning of giving up absolutely, with intent
never to resume or claim ones rights or interests.[22] In reference to abandonment of a child by his parent, the act of
abandonment imports any conduct of the parent which evinces a settled purpose to forego all parental duties and
relinquish all parental claims to the child. It means neglect or refusal to perform the natural and legal obligations of
care and support which parents owe their children.[23]
In the instant case, records disclose that petitioners conduct did not manifest a settled purpose to forego all
parental duties and relinquish all parental claims over his children as to constitute abandonment. Physical
estrangement alone, without financial and moral desertion, is not tantamount to abandonment.[24] While admittedly,
petitioner was physically absent as he was then in the United States, he was not remiss in his natural and legal
obligations of love, care and support for his children. He maintained regular communication with his wife and
children through letters and telephone. He used to send packages by mail and catered to their whims.
Petitioners testimony on the matter is supported by documentary evidence consisting of the following
handwritten letters to him of both his wife and children:
1. Exh. 1 a 4-page undated letter of Menchu (Anna Marie) addressed to Dear Bert on a C.Westates Carbon Phil.
Corp. stationery. Menchu stated therein that it had been a long time since the last time youve heard from me
excluding that of the phone conversation weve had. She discussed petitioners intention to buy a motorbike for
Keith, expressing apprehension over risks that could be engendered by Keiths use of it. She said that in the last
phone conversation she had with petitioner on the birthday of Ma, she forgot to tell petitioner that Keiths voice
5|CIVIL LAW REVIEW Persons Assignment # 7
had changed; he had become a bagito or a teen-ager with many fans who sent him Valentines cards. She told
him how Charmaine had become quite a talkative almost dalaga who could carry on a conversation with
her angkong and how pretty she was in white dress when she won among the candidates in the Flores de
Mayo after she had prayed so hard for it. She informed him, however, that she was worried because
Charmaine was vain and wont to extravagance as she loved clothes. About Joeton (Joseph Anthony), she told
petitioner that the boy was smart for his age and quite spoiled being the youngest of the children in Lahug.
Joeton was mischievous but Keith was his idol with whom he would sleep anytime. She admitted having said
so much about the children because they might not have informed petitioner of some happenings and spices of
life about themselves. She said that it was just very exciting to know how theyve grown up and very pleasant,
too, that each of them have (sic) different characters. She ended the letter with the hope that petitioner was at
the best of health. After extending her regards to all, she signed her name after the word Love. This letter was
mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West Virginia
25661 (Exh. 1-D).
2. Exh. 2 letter dated 11/13/84 on a green stationery with golden print of a note from Menchu on the left upper
corner. Anna Marie stated that we wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were very
excited when petitioner called up last time. She told him how Joeton would grab the phone from Keith just so
petitioner would know what he wanted to order.Charmaine, who was asleep, was so disappointed that she
missed petitioners call because she also wanted something that petitioner should buy. Menchu told petitioner
that Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack.
Anna Marie informed petitioner that the kids were growing up and so were their needs. She told petitioner to
be very fatherly about the childrens needs because those were expensive here. For herself, Anna Marie asked
for a subscription of Glamour and Vogue magazines and that whatever expenses he would incur, she would
replace these. As a postscript, she told petitioner that Keith wanted a size 6 khaki-colored Sperry topsider
shoes.
3. Exh. 3 an undated note on a yellow small piece of paper that reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a wonderful one.
By the way thanks for the shoes, it was a nice one. Its nice to be thought of at Xmas. Thanks again.
Sincerely,
Menchu
4. Exh. 4 a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to Dear Dad. Keith
told his father that they tried to tell their mother to stay for a little while, just a few weeks after classes start(s)
on June 16. He informed petitioner that Joeton would be in Kinder I and that, about the motorbike, he had
told his mother to write petitioner about it and well see what youre (sic) decision will be. He asked for
chocolates, nuts, basketball shirt and shorts, rubber shoes, socks, headband, some clothes for outing and
perfume. He told petitioner that they had been going to Lahug with their mother picking them up
after Angkong or Ama had prepared lunch or dinner. From her aerobics, his mother would go for them in
Lahug at about 9:30 or 10:00 oclock in the evening. He wished his father luck and the best of health and that
they prayed for him and their other relatives. The letter was ended with Love Keith.
5. Exh. 5 another undated long letter of Keith. He thanked his father for the Christmas card with $40.00,
$30.00 and $30.00 and the card of Joeton with $5.00 inside. He told petitioner the amounts following his
fathers instructions and promise to send money through the mail. He asked his father to address his letter
directly to him because he wanted to open his own letters. He informed petitioner of activities during the
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 Christmas season that they enjoyed eating, playing and giving surprises to their mother. He apprised him of
his daily schedule and that their mother had been closely supervising them, instructing them to fold their
blankets and pile up their pillows. He informed petitioner that Joeton had become very smart while
Charmaine, who was also smart, was very demanding of their mother. Because their mother was leaving for the
United States on February 5, they would be missing her like they were missing petitioner. He asked for his
things and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the cross
even when they would pass by the Iglesia ni Cristo church and his insistence that Aquino was not dead because
he had seen him on the betamax machine. For Keith, Charmaine had become very maldita who was not always
satisfied with her dolls and things but Joeton was full of surprises. He ended the letter with Love your son,
Keith. The letter was mailed on February 6, 1985 (Exh. 5-D).
6. Exh. 6 an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks,
half shirt, pencil sharpener and $50.00. She reminded him of of her birthday on January 23 when she would
turn 9 years old. She informed him that she wore size 10 and the size of her feet was IM. They had fun at
Christmas in Lahug but classes would start on January 9 although Keiths classes had started on January 6.
They would feel sad again because Mommy would be leaving soon. She hoped petitioner would keep writing
them. She signed, Love, Charmaine.
7. Exh . 7 an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters
to him. He informed him of their trip to Manila they went to Malacaang, Tito Doy Laurels house, the Ministry
of Foreign Affairs, the executive house, Tagaytay for three days and Baguio for one week. He informed him that
he got honors, Charmaine was 7th in her class and Joeton had excellent grades. Joeton would be enrolled in
Sacred Heart soon and he was glad they would be together in that school. He asked for his reward from
petitioner and so with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told
petitioner that he was saving the money he had been sending them. He said he missed petitioner and wished
him the best. He added that petitioner should call them on Sundays.
8. Exh. 8 a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from
petitioner to buy something for the school and something else. She promised not to spend so much and to save
some. She said she loved petitioner and missed him. Joeton said hi! to petitioner. After ending the letter with
Love, Joeton and Charmaine, she asked for her prize for her grades as she got seventh place.
9. Exh. 9 undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have
some money but he would save them; that he learned that petitioner had called them up but he was not
around; that he would be going to Manila but would be back home May 3; that his Mommy had just arrived
Thursday afternoon, and that he would be the official altar boy. He asked petitioner to write them soon.
10. Exh. 10 Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the
bank and he was proud because he was the only one in his group who saved in the bank. He told him that
Joeton had become naughty and would claim as his own the shirts sent to Keith by petitioner. He advised
petitioner to send pants and shirts to Joeton, too, and asked for a pair of topsider shoes and candies. He
informed petitioner that he was a member of the basketball team and that his mom would drive for his group.
He asked him to call them often like the father of Ana Christie and to write them when he would call so that
they could wait for it. He informed petitioner that they had all grown bigger and heavier. He hoped petitioner
would be happy with the letter that had taken him so long to write because he did not want to commit any
mistakes. He asked petitioner to buy him perfume (Drakkar) and, after thanking petitioner, added that the
latter should buy something for Mommy.
11. Exh. 11 a Christmas card For My Wonderful Father dated October 8, 1984 from Keith, Charmaine and
Joeton.
12. Exh. 12 another Christmas card, Our Wish For You with the year 83 written on the upper right hand corner
of the inside page, from Keith, Charmaine and Joeton.
6|CIVIL LAW REVIEW Persons Assignment # 7
13. Exh. 13 a letter of Keith telling petitioner that he had written him even when their Mom was there where
she bought them clothes and shoes. Keith asked petitioner for $300.00. Because his mother would not agree to
buy him a motorbike, he wanted a Karaoke unit that would cost P12,000.00. He informed petitioner that he
would go to an afternoon disco with friends but their grades were all good with Joeton receiving stars for
excellence. Keith wanted a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner
would come and visit them someday.
14. Exh. 14 a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that
they had received the package that the latter sent them. The clothes he sent, however, fitted only Keith but not
Charmaine and Joeton who had both grown bigger. Keith asked for grocery items, toys and more clothes. He
asked, in behalf of his mother, for low-heeled shoes and a dress to match, jogging pants, tights and leotards
that would make her look sexy. He intimated to petitioner that he had grown taller and that he was already
ashamed to be asking for things to buy in the grocery even though his mother had told him not to be shy about
it.
Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior
to the filing of the petition for adoption, he had deposited amounts for the benefit of his children. [25] Exhibits 24 to 45
are copies of checks sent by petitioner to the children from 1985 to 1989.
These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed
over these, ignoring not only evidence on financial support but also the emotional exchange of sentiments between
petitioner and his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his
children and the fact that, as regards the bank deposits, these were withdrawable by him alone. Simply put, the
courts below attached a high premium to the prospective adopters financial status but totally brushed aside the
possible repercussion of the adoption on the emotional and psychological well-being of the children.
True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness
on the matter as shown by his testimony is contradicted by his feelings towards his father as revealed in his letters to
him. It is not at all farfetched to conclude that Keiths testimony was actually the effect of the filing of the petition for
adoption that would certainly have engendered confusion in his young mind as to the capability of his father to
sustain the lifestyle he had been used to.
The courts below emphasized respondents emotional attachment to the children. This is hardly surprising for,
from the very start of their young lives, the children were used to their presence.Such attachment had persisted and
certainly, the young ones act of snuggling close to private respondent Ronald Clavano was not indicative of their
emotional detachment from their father.Private respondents, being the uncle and aunt of the children, could not but
come to their succor when they needed help as when Keith got sick and private respondent Ronald spent for his
hospital bills.
In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply
because he could give the child a larger measure of material comfort than his natural parent. Thus, in David v. Court
of Appeals,[26] the Court awarded custody of a minor illegitimate child to his mother who was a mere secretary and
market vendor instead of to his affluent father who was a married man, not solely because the child opted to go with
his mother. The Court said:
Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with
him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to
her means.
In Celis v. Cafuir[27] where the Court was confronted with the issue of whether to award custody of a child to the
natural mother or to a foster mother, this Court said:
This court should avert the tragedy in the years to come of having deprived mother and son of the beautiful
associations and tender, imperishable memories engendered by the relationship of parent and child. We should not
take away from a mother the opportunity of bringing up her own child even at the cost of extreme sacrifice due to
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poverty and lack of means; so that afterwards, she may be able to look back with pride and a sense of satisfaction at
her sacrifices and her efforts, however humble, to make her dreams of her little boy come true. We should not forget
that the relationship between a foster mother and a child is not natural but artificial. If the child turns out to be a
failure or forgetful of what its foster parents had done for him, said parents might yet count and appraise (sic) all that
they have done and spent for him and with regret consider all of it as a dead loss, and even rue the day they
committed the blunder of taking the child into their hearts and their home. Not so with a real natural mother who
never counts the cost and her sacrifices, ever treasuring memories of her associations with her child, however
unpleasant and disappointing. Flesh and blood count. x x x.
In Espiritu v. Court of Appeals,[28] the Court stated that (I)n ascertaining the welfare and best interests of the
child, courts are mandated by the Family Code to take into account all relevant considerations. Thus, in awarding
custody of the child to the father, the Court said:
A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing
the `torture and agony of a mother separated from her children and the humiliation she suffered as a result of her
character being made a key issue in court rather than the feelings and future, the best interests and welfare of her
children. While the bonds between a mother and her small child are special in nature, either parent, whether father
or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is
greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the
welfare of the child which is the paramount consideration. (Italics supplied)[29]
Indeed, it would be against the spirit of the law if financial consideration were to be the paramount
consideration in deciding whether to deprive a person of parental authority over his children. There should be a
holistic approach to the matter, taking into account the physical, emotional, psychological, mental, social and
spiritual needs of the child.[30] The conclusion of the courts below that petitioner abandoned his family needs more
evidentiary support other than his inability to provide them the material comfort that his admittedly affluent in-laws
could provide.There should be proof that he had so emotionally abandoned them that his children would not miss
his guidance and counsel if they were given to adopting parents. The letters he received from his children prove that
petitioner maintained the more important emotional tie between him and his children. The children needed him not
only because he could cater to their whims but also because he was a person they could share with their daily
activities, problems and triumphs.
The Court is thus dismayed that the courts below did not look beyond petitioners meager financial support to
ferret out other indications on whether petitioner had in fact abandoned his family. The omission of said courts has
led us to examine why the children were subjected to the process of adoption, notwithstanding the proven ties that
bound them to their father. To our consternation, the record of the case bears out the fact that the welfare of the
children was not exactly the paramount consideration that impelled Anna Marie to consent to their adoption.
In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont
to travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the
adoption appears to be a matter of convenience for her because Anna Marie herself is financially capable of
supporting her children.[31] In his testimony, private respondent Ronald swore that Anna Marie had been out of the
country for two years and came home twice or three times,[32] thereby manifesting the fact that it was she who
actually left her children to the care of her relatives. It was bad enough that their father left their children when he
went abroad, but when their mother followed suit for her own reasons, the situation worsened. The Clavano family
must have realized this. Hence, when the family first discussed the adoption of the children, they decided that the
prospective adopter should be Anna Maries brother Jose. However, because he had children of his own, the family
decided to devolve the task upon private respondents.[33]
This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent
Ronald Clavano commutes between Cebu and Manila while his wife, private respondent Maria Clara, is an
international flight stewardess.[34] Moreover, private respondent Ronald claimed that he could take care of the
children while their parents are away,[35] thereby indicating the evanescence of his intention. He wanted to have the
childrens surname changed to Clavano for the reason that he wanted to take them to the United States as it would be
difficult for them to get a visa if their surname were different from his. [36] To be sure, he also testified that he wanted
to spare the children the stigma of being products of a broken home.
7|CIVIL LAW REVIEW Persons Assignment # 7
Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their
brother Jose points to the inescapable conclusion that they just wanted to keep the children away from their father.
One of the overriding considerations for the adoption was allegedly the state of Anna Maries health she was a victim
of an almost fatal accident and suffers from a heart ailment. However, she herself admitted that her health condition
was not that serious as she could still take care of the children.[37] An eloquent evidence of her ability to physically
care for them was her employment at the Philippine Consulate in Los Angeles[38]- she could not have been employed
if her health were endangered. It is thus clear that the Clavanos attempt at depriving petitioner of parental authority
apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that
her children would never be at ease with the wife of their father.[39]
Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma
Soco.[40] As to whether he was telling the truth is beside the point. Philippine society, being comparatively
conservative and traditional, aside from being Catholic in orientation, it does not countenance womanizing on the
part of a family man, considering the baneful effects such irresponsible act visits on his family. Neither may the Court
place a premium on the inability of a man to distinguish between siring children and parenting them. Nonetheless,
the actuality that petitioner carried on an affair with a paramour cannot be taken as sufficient basis for the conclusion
that petitioner was necessarily an unfit father.[41] Conventional wisdom and common human experience show that a
bad husband does not necessarily make a bad father. That a husband is not exactly an upright man is not, strictly
speaking, a sufficient ground to deprive him as a father of his inherent right to parental authority over the
children.[42] Petitioner has demonstrated his love and concern for his children when he took the trouble of sending a
telegram[43]to the lower court expressing his intention to oppose the adoption immediately after learning about it. He
traveled back to this country to attend to the case and to testify about his love for his children and his desire to unite
his family once more in the United States.[44]
Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the
support of the children. Petitioner was an illegal alien in the United States. As such, he could not have procured
gainful employment. Private respondents failed to refute petitioners testimony that he did not receive his share from
the sale of the conjugal home,[45] pursuant to their manifestation/compromise agreement in the legal separation
case. Hence, it can be reasonably presumed that the proceeds of the sale redounded to the benefit of his family,
particularly his children. The proceeds may not have lasted long but there is ample evidence to show that thereafter,
petitioner tried to abide by his agreement with his wife and sent his family money, no matter how meager.
The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent
purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the
paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper
context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences
beyond the contemplation of law and jurisprudence.[46] The discretion to approve adoption proceedings is not to be
anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over
the child.[47]
In this regard, this Court notes private respondents reliance on the manifestation/compromise agreement
between petitioner and Anna Marie which became the basis of the decree of legal separation. According to private
respondents counsel,[48] the authority given to Anna Marie by that decree to enter into contracts as a result of the
legal separation was all embracing[49] and, therefore, included giving her sole consent to the adoption. This
conclusion is however, anchored on the wrong premise that the authority given to the innocent spouse to enter into
contracts that obviously refer to their conjugal properties, shall include entering into agreements leading to the
adoption of the children. Such conclusion is as devoid of a legal basis as private respondents apparent reliance on the
decree of legal separation for doing away with petitioners consent to the adoption.
The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of
necessity, deprive petitioner of parental authority for the purpose of placing the children up for adoption. Article 213
of the Family Code states: . . . in case of legal separation of parents, parental authority shall be exercised by the
parent designated by the court. In awarding custody, the court shall take into account all relevant considerations,
especially the choice of the child over seven years of age, unless the parent chosen is unfit.
It should be noted, however, that the law only confers on the innocent spouse the exercise of parental
authority. Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to
his rearing and care. The innocent spouse shall have the right to the childs services and earnings, and the right to
direct his activities and make decisions regarding his care and control, education, health and religion.[50]
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 In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the
law upon the parents,[51] as
x x x a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical
preservation and development, as well as the cultivation of their intellect and the education of their hearts and
senses. As regards parental authority, `there is no power, but a task; no complex of rights, but a sum of duties; no
sovereignty but a sacred trust for the welfare of the minor.
Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of
parental authority only in cases of adoption, guardianship and surrender to a childrens home or an orphan
institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a
document, what is given is merely temporary custody and it does not constitute a renunciation of parental
authority. Even if a definite renunciation is manifest, the law still disallows the same.
The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep
them in their custody and company.[52] (Italics supplied)
As such, in instant case, petitioner may not be deemed as having been completely deprived of parental
authority, notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award
was arrived at by the lower court on the basis of the agreement of the spouses.
While parental authority may be waived, as in law it may be subject to a compromise, [53] there was no factual
finding in the legal separation case that petitioner was such an irresponsible person that he should be deprived of
custody of his children or that there are grounds under the law that could deprive him of parental authority. In fact,
in the legal separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie
back to petitioner. The order was not implemented because of Anna Maries motion for reconsideration thereon. The
Clavano family also vehemently objected to the transfer of custody to the petitioner, such that the latter was forced to
file a contempt charge against them.[54]
The law is clear that either parent may lose parental authority over the child only for a valid reason. No such
reason was established in the legal separation case. In the instant case for adoption, the issue is whether or not
petitioner had abandoned his children as to warrant dispensation of his consent to their adoption. Deprivation of
parental authority is one of the effects of a decree of adoption.[55] But there cannot be a valid decree of adoption in
this case precisely because, as this Court has demonstrated earlier, the finding of the courts below on the issue of
petitioners abandonment of his family was based on a misappreciation that was tantamount to non-appreciation, of
facts on record.
As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escao[56] that a
divorce obtained by Filipino citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is
contrary to State policy. While petitioner is now an American citizen, as regards Anna Marie who has apparently
remained a Filipino citizen, the divorce has no legal effect.
Parental authority is a constitutionally protected State policy borne out of established customs and tradition of
our people. Thus, in Silva v. Court of Appeals,[57] a case involving the visitorial rights of an illegitimate parent over his
child, the Court expressed the opinion that:
Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing
and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the
parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other
is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts
allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.
Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to
place emphasis in adoption proceedings, not so much on the need of childless couples for a child, as on the
8|CIVIL LAW REVIEW Persons Assignment # 7
paramount interest of a child who needs the love and care of parents. After the passage of the Child and Youth
Welfare Code and the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on
Intercountry Adoption[58] and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino
children.[59]
The case at bar applies the relevant provisions of these recent laws, such as the following policies in the
Domestic Adoption Act of 1998:
(a) To ensure that every child remains under the care and custody of his/her parent(s) and be provided with
love, care, understanding and security towards the full and harmonious development of his/her
personality.[60]
(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount
consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the
Rights of the Child.[61]
(c) To prevent the child from unnecessary separation from his/her biological parent(s).[62]
Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the
government and its officials are duty bound to comply with its mandates. Of particular relevance to instant case are
the following provisions:
States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent
with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights
recognized in the present Convention.[63]
States Parties shall respect the right of the child who is separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular basis, except if it is contrary to the childs best interests.[64]
A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional
circumstances personal relations and direct contacts with both parents . . .[65]
States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of
his or her right in a manner consistent with the evolving capacities of the child.[66]
Underlying the policies and precepts in international conventions and the domestic statutes with respect to
children is the overriding principle that all actuations should be in the best interests of the child. This is not, however,
to be implemented in derogation of the primary right of the parent or parents to exercise parental authority over
him. The rights of parents vis--vis that of their children are not antithetical to each other, as in fact, they must be
respected and harmonized to the fullest extent possible.
Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while
Joseph Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to
lead lives independent of their parents. This is not to state that this case has been rendered moot and academic, for
their welfare and best interests regarding their adoption, must be determined as of the time that the petition for
adoption was filed.[67] Said petition must be denied as it was filed without the required consent of their father who, by
law and under the facts of the case at bar, has not abandoned them.
WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision
and Resolution of the Court of Appeals, as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE
thereby denying the petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the
spouse respondents Ronald and Maria Clara Clavano. This Decision is immediately executory. SO ORDERED
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G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen O.
Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the
action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio,
alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30
September 1934; that they had lived together as husband and wife continuously until 1943 when her
husband abandoned her; that they had no child; that they acquired properties during their marriage;
and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa
Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation,
which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his
share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O. Lapuz
Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and
customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before
the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9
and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel
for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation"1 on two (2)
grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for
in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case.2 In the body of the order,
the court stated that the motion to dismiss and the motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of action has survived, which the court resolved in the
negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.
9|CIVIL LAW REVIEW Persons Assignment # 7
After first securing an extension of time to file a petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969.
The same was given due course and answer thereto was filed by respondent, who prayed for the
affirmance of the said order.3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did
not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab
initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not
act on the motion for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one
for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the
respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only
this. The petition for legal separation and the counterclaim to declare the nullity of the self same
marriage can stand independent and separate adjudication. They are not inseparable nor was the action
for legal separation converted into one for a declaration of nullity by the counterclaim, for legal
separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage as a pre-
condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal
separation, abate the action? If it does, will abatement also apply if the action involves property rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to
claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation,
stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being
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.
... When one of the spouses is dead, there is no need for divorce, because the marriage
is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes
place during the course of the suit (Article 244, Section 3). The action is absolutely
dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.")4 .
Marriage is a personal relation or status, created under the sanction of law, and an
action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In 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 question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties to the action
MJRTB
 and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md.
185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates,
Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely the
effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs
prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property
shall be dissolved and liquidated, but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse, unless
otherwise directed by the court in the interest of said minors, for whom said court
may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending spouse
made in the will of the innocent one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of
the absolute community of property), the loss of right by the offending spouse to any share of the profits
earned by the partnership or community, or his disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse
made by the innocent one, are all rights and disabilities that, by the very terms of the Civil Code article,
are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and
disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights is not a
claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of
Court, to warrant continuation of the action through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted...
10 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
The same result flows from a consideration of the enumeration of the actions that survive for or against
administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to person or property,
real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the
enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the
finality of a decree, these claims are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to
Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter,
and there could be no further interest in continuing the same after her demise, that automatically
dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of
the Civil Code of the Philippines 6 could be resolved and determined in a proper action for partition by
either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed dead, still
the action for annulment became extinguished as soon as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code, requiring that the action for annulment should be
brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any
conjugal partnership that might have resulted from such voidable marriage must be carried out "in the
testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.
MJRTB
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu, in its Civil
Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for legal separation and one
million pesos in damages against his wife and parents-in-law, the defendants-appellees, Vicente, Mamerto and
Mena,1 all surnamed "Escao," respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City, where she was
then enrolled as a second year student of commerce, Vicenta Escao, 27 years of age (scion of a well-to-do and
socially prominent Filipino family of Spanish ancestry and a "sheltered colegiala"), exchanged marriage vows with
Pastor Tenchavez, 32 years of age, an engineer, ex-army officer and of undistinguished stock, without the knowledge
of her parents, before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The
marriage was the culmination of a previous love affair and was duly registered with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in love. Together
with a friend, Pacita Noel, their matchmaker and go-between, they had planned out their marital future whereby
Pacita would be the governess of their first-born; they started saving money in a piggy bank. A few weeks before their
secret marriage, their engagement was broken; Vicenta returned the engagement ring and accepted another suitor,
Joseling Lao. Her love for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to
get married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of
Pacita Noel in St. Mary's Hall, which was their usual trysting place.
Although planned for the midnight following their marriage, the elopement did not, however, materialize because
when Vicente went back to her classes after the marriage, her mother, who got wind of the intended nuptials, was
already waiting for her at the college. Vicenta was taken home where she admitted that she had already married
Pastor. Mamerto and Mena Escao were surprised, because Pastor never asked for the hand of Vicente, and were
disgusted because of the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The
following morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration to validate
what he believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from the
Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The recelebration did not take
place, because on 26 February 1948 Mamerto Escao was handed by a maid, whose name he claims he does not
remember, a letter purportedly coming from San Carlos college students and disclosing an amorous relationship
between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree
to a new marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta
continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"),
while still solicitous of her husband's welfare, was not as endearing as her previous letters when their love was
aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly accepted her
being called a "jellyfish." She was not prevented by her parents from communicating with Pastor (Exh. "1-Escao"),
but her letters became less frequent as the days passed. As of June, 1948 the newlyweds were already estranged (Exh.
"2-Escao"). Vicenta had gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred
in Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her
marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-
appearance at the hearing (Exh. "B-4").
11 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
On 24 June 1950, without informing her husband, she applied for a passport, indicating in her application that she
was single, that her purpose was to study, and she was domiciled in Cebu City, and that she intended to return after
two years. The application was approved, and she left for the United States. On 22 August 1950, she filed a verified
complaint for divorce against the herein plaintiff in the Second Judicial District Court of the State of Nevada in and
for the County of Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a
decree of divorce, "final and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their daughter's marriage to
Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives with him in
California, and, by him, has begotten children. She acquired American citizenship on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of First Instance of
Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents, Mamerto and Mena Escao, whom he
charged with having dissuaded and discouraged Vicenta from joining her husband, and alienating her affections, and
against the Roman Catholic Church, for having, through its Diocesan Tribunal, decreed the annulment of the
marriage, and asked for legal separation and one million pesos in damages. Vicenta claimed a valid divorce from
plaintiff and an equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that they
had in any way influenced their daughter's acts, and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his wife and to
acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto Escao and Mena Escao for
moral and exemplary damages and attorney's fees against the plaintiff-appellant, to the extent of P45,000.00, and
plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for damages and in
dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena Escao liable for
damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on their
counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee, Vicenta Escao,
were validly married to each other, from the standpoint of our civil law, is clearly established by the record before us.
Both parties were then above the age of majority, and otherwise qualified; and both consented to the marriage, which
was performed by a Catholic priest (army chaplain Lavares) in the presence of competent witnesses. It is nowhere
shown that said priest was not duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by
Canon law, is irrelevant in our civil law, not only because of the separation of Church and State but also because Act
3613 of the Philippine Legislature (which was the marriage law in force at the time) expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the contracting
parties and consent. (Emphasis supplied)
MJRTB
The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not essential to
give the marriage civil effects,3 and this is emphasized by section 27 of said marriage act, which provided the
following:
SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid because of the
absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or
one of them believed in good faith that the person who solemnized the marriage was actually empowered
to do so, and that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their marriage) will be presumed until the
contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs. Jason, 60 Phil. 442, 448). It is well to
note here that in the case at bar, doubts as to the authority of the solemnizing priest arose only after the marriage,
when Vicenta's parents consulted Father Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in
abandoning her original action for annulment and subsequently suing for divorce implies an admission that her
marriage to plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue influence of Pacita
Noel, whom she charges to have been in conspiracy with appellant Tenchavez. Even granting, for argument's sake,
the truth of that contention, and assuming that Vicenta's consent was vitiated by fraud and undue influence, such
vices did not render her marriage ab initio void, but merely voidable, and the marriage remained valid until annulled
by a competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the Court of First
Instance of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta Escao remained
subsisting and undissolved under Philippine law, notwithstanding the decree of absolute divorce that the wife sought
and obtained on 21 October 1950 from the Second Judicial District Court of Washoe County, State of Nevada, on
grounds of "extreme cruelty, entirely mental in character." At the time the divorce decree was issued, Vicenta Escao,
like her husband, was still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code
of the Philippines (Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity of persons are
binding upon the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in
fact does not even use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding
legislation that admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act
2710). Instead of divorce, the present Civil Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108),
and, even in that case, it expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute divorce betiveen
Filipino citizens could be a patent violation of the declared public policy of the state, specially in view of the third
paragraph of Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, policy and good customs, shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect, give rise to an
irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of those members of our polity
whose means do not permit them to sojourn abroad and obtain absolute divorces outside the Philippines.
12 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the Nevada divorce
court. Primarily because the policy of our law cannot be nullified by acts of private parties (Civil Code,Art. 17, jam
quot.); and additionally, because the mere appearance of a non-resident consort cannot confer jurisdiction where the
court originally had none (Area vs. Javier, 95 Phil. 579).
From the preceding facts and considerations, there flows as a necessary consequence that in this jurisdiction Vicenta
Escao's divorce and second marriage are not entitled to recognition as valid; for her previous union to plaintiff
Tenchavez must be declared to be existent and undissolved. It follows, likewise, that her refusal to perform her wifely
duties, and her denial of consortium and her desertion of her husband constitute in law a wrong caused through her
fault, for which the husband is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an
unsubstantiated charge of deceit nor an anonymous letter charging immorality against the husband constitute,
contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is
technically "intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles plaintiff-
appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery" (Revised Penal Code,
Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord with the
previous doctrines and rulings of this court on the subject, particularly those that were rendered under our laws prior
to the approval of the absolute divorce act (Act 2710 of the Philippine Legislature). As a matter of legal history, our
statutes did not recognize divorces a vinculo before 1917, when Act 2710 became effective; and the present Civil Code
of the Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing
before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully
applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of particular interest. Said this Court in that
case:
As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory and
Leona Castro, celebrated in London in 1905, could not legalize their relations; and the circumstance that
they afterwards passed for husband and wife in Switzerland until her death is wholly without legal
significance. The claims of the very children to participate in the estate of Samuel Bishop must therefore be
rejected. The right to inherit is limited to legitimate, legitimated and acknowledged natural children. The
children of adulterous relations are wholly excluded. The word "descendants" as used in Article 941 of the
Civil Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo Moran after
the invalid divorce, are not involved in the case at bar, the Gmur case is authority for the proposition that such union
is adulterous in this jurisdiction, and, therefore, justifies an action for legal separation on the part of the innocent
consort of the first marriage, that stands undissolved in Philippine law. In not so declaring, the trial court committed
error.
True it is that our ruling gives rise to anomalous situations where the status of a person (whether divorced or not)
would depend on the territory where the question arises. Anomalies of this kind are not new in the Philippines, and
the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well known to the members of the
Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if they are
constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife, the late Doa
Mena Escao, alienated the affections of their daughter and influenced her conduct toward her husband are not
supported by credible evidence. The testimony of Pastor Tenchavez about the Escao's animosity toward him strikes
us to be merely conjecture and exaggeration, and are belied by Pastor's own letters written before this suit was begun
MJRTB
(Exh. "2-Escao" and "Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants' feelings and caused them anxiety, the same could in no way have seriously injured their reputation, or
defendants for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful otherwise prejudiced them, lawsuits having become a common occurrence in present society. What is important, and
pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court Vicenta, and the has been correctly established in the decision of the court below, is that said defendants were not guilty of any
record shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked for her improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.
hand, as good manners and breeding demanded. Even after learning of the clandestine marriage, and despite their
shock at such unexpected event, the parents of Vicenta proposed and arranged that the marriage be recelebrated in
Summing up, the Court rules:
strict conformity with the canons of their religion upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao and his wife, but to
the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to compel or induce their daughter to (1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the present Civil Code
assent to the recelebration but respected her decision, or that they abided by her resolve, does not constitute in law (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither is the marriage contracted with
an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she was in the United another party by the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in the
States; for it was natural that they should not wish their daughter to live in penury even if they did not concur in her country;
decision to divorce Tenchavez (27 Am. Jur. 130-132).
(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful husband entitle
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her original suit for the latter to a decree of legal separation conformably to Philippine law;
annulment, or her subsequent divorce; she appears to have acted independently, and being of age, she was entitled to
judge what was best for her and ask that her decisions be respected. Her parents, in so doing, certainly cannot be
charged with alienation of affections in the absence of malice or unworthy motives, which have not been shown, good (3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to recover damages;
faith being always presumed until the contrary is proved.
(4) That an action for alienation of affections against the parents of one consort does not lie in the absence of proof of
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right of a parent to malice or unworthy motives on their part.
interest himself in the marital affairs of his child and the absence of rights in a stranger to intermeddle in
such affairs. However, such distinction between the liability of parents and that of strangers is only in WHEREFORE, the decision under appeal is hereby modified as follows;
regard to what will justify interference. A parent isliable for alienation of affections resulting from his own
malicious conduct, as where he wrongfully entices his son or daughter to leave his or her spouse, but he is
not liable unless he acts maliciously, without justification and from unworthy motives. He is not liable (1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from defendant Vicenta F.
where he acts and advises his child in good faith with respect to his child's marital relations in the interest Escao;
of his child as he sees it, the marriage of his child not terminating his right and liberty to interest himself
in, and be extremely solicitous for, his child's welfare and happiness, even where his conduct and advice (2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount of P25,000 for
suggest or result in the separation of the spouses or the obtaining of a divorce or annulment, or where he damages and attorneys' fees;
acts under mistake or misinformation, or where his advice or interference are indiscreet or unfortunate,
although it has been held that the parent is liable for consequences resulting from recklessness. He may in
good faith take his child into his home and afford him or her protection and support, so long as he has not (3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of his wife, the
maliciously enticed his child away, or does not maliciously entice or cause him or her to stay away, from his deceased Mena Escao, P5,000 by way of damages and attorneys' fees.
or her spouse. This rule has more frequently been applied in the case of advice given to a married daughter,
but it is equally applicable in the case of advice given to a son. Neither party to recover costs.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and with having
exerted efforts and pressured her to seek annulment and divorce, unquestionably caused them unrest and anxiety,
entitling them to recover damages. While this suit may not have been impelled by actual malice, the charges were
certainly reckless in the face of the proven facts and circumstances. Court actions are not established for parties to
give vent to their prejudices or spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant Vicente Escao,
it is proper to take into account, against his patently unreasonable claim for a million pesos in damages, that (a) the
marriage was celebrated in secret, and its failure was not characterized by publicity or undue humiliation on
appellant's part; (b) that the parties never lived together; and (c) that there is evidence that appellant had originally
agreed to the annulment of the marriage, although such a promise was legally invalid, being against public policy (cf.
Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a consequence of the indissoluble
character of the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her
second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of moral damages
and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena Escao, by the
court below, we opine that the same are excessive. While the filing of this unfounded suit must have wounded said
13 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7 MJRTB
[G.R. No. 127406. November 27, 2000] may proceed even without a judicial decree. While it is true that if a marriage is null and void, ab initio,
there is in fact no subsisting marriage, we are unwilling to rule that the matter of whether a marriage is
OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and EDGARDO M. valid or not is for each married spouse to determine for himself for this would be the consequence of
REYES, respondents. allowing a spouse to proceed to a second marriage even before a competent court issues a judicial decree
of nullity of his first marriage. The results would be disquieting, to say the least, and could not have been
DECISION the intendment of even the now-repealed provisions of the Civil Code on marriage.

QUISUMBING, J.:
xxx

This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of Appeals in C.A.
WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in this wise:
G.R. CV 37897, which affirmed the decision of the Regional Trial Court of Pasig, Branch 160, declaring
the marriage contract between private respondent Edgardo M. Reyes and petitioner Ofelia P. Ty null
and void ab initio. It also ordered private respondent to pay P15,000.00 as monthly support for their 1. The marriage contracted by plaintiff-appellant [herein private respondent] Eduardo M.
children Faye Eloise Reyes and Rachel Anne Reyes. Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is declared null and
void ab initio;
As shown in the records of the case, private respondent married Anna Maria Regina Villanueva in
a civil ceremony on March 29, 1977, in Manila. Then they had a church wedding on August 27, 2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in the amount of
1977. However, on August 4, 1980, the Juvenile and Domestic Relations Court of Quezon City declared P15,000.00 to his children Faye Eloise Reyes and Rachel Anne Reyes from November 4,
their marriage null and void ab initio for lack of a valid marriage license. The church wedding on August 1991; and
27, 1977, was also declared null and void ab initio for lack of consent of the parties.
3. Cost against plaintiff-appellant Eduardo M. Reyes.
Even before the decree was issued nullifying his marriage to Anna Maria, private respondent wed
Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated by the judge of the City Court of SO ORDERED.[2]
Pasay. On April 4, 1982, they also had a church wedding in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of Pasig, Branch Petitioners motion for reconsideration was denied. Hence, this instant petition asserting that the
160, praying that his marriage to petitioner be declared null and void. He alleged that they had no Court of Appeals erred:
marriage license when they got married. He also averred that at the time he married petitioner, he was
still married to Anna Maria. He stated that at the time he married petitioner the decree of nullity of his I.
marriage to Anna Maria had not been issued. The decree of nullity of his marriage to Anna Maria was
rendered only on August 4, 1980, while his civil marriage to petitioner took place on April 4, 1979. BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE VALIDITY OF
PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL DECREE NOT REQUIRED BY LAW.
Petitioner, in defending her marriage to private respondent, pointed out that his claim that their
marriage was contracted without a valid license is untrue. She submitted their Marriage License No.
5739990 issued at Rosario, Cavite on April 3, 1979, as Exh. 11, 12 and 12-A. He did not question this II
document when it was submitted in evidence.Petitioner also submitted the decision of the Juvenile and
Domestic Relations Court of Quezon City dated August 4, 1980, which declared null and void his civil IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF APPEALS.
marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his church marriage to
said Anna Maria on August 27, 1977. These documents were submitted as evidence during trial and, III
according to petitioner, are therefore deemed sufficient proof of the facts therein. The fact that the civil
marriage of private respondent and petitioner took place on April 4, 1979, before the judgment declaring
his prior marriage as null and void is undisputed. It also appears indisputable that private respondent IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL EFFECTS OF THE
and petitioner had a church wedding ceremony on April 4, 1982.[1] RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE LICENSE.

The Pasig RTC sustained private respondents civil suit and declared his marriage to herein IV
petitioner null and void ab initio in its decision dated November 4, 1991. Both parties appealed to
respondent Court of Appeals. On July 24, 1996, the appellate court affirmed the trial courts decision. It
ruled that a judicial declaration of nullity of the first marriage (to Anna Maria) must first be secured IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE DEFENDANT-
before a subsequent marriage could be validly contracted. Said the appellate court: APPELLANT.

We can accept, without difficulty, the doctrine cited by defendants counsel that no judicial decree is The principal issue in this case is whether the decree of nullity of the first marriage is required
necessary to establish the invalidity of void marriages. It does not say, however, that a second marriage before a subsequent marriage can be entered into validly? To resolve this question, we shall go over

14 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7 MJRTB
applicable laws and pertinent cases to shed light on the assigned errors, particularly the first and the
second which we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared the marriage of petitioner to private
respondent null and void for lack of a prior judicial decree of nullity of the marriage between private
respondent and Villanueva. The appellate court rejected petitioners claim that People v.
Mendoza[3] and People v. Aragon[4] are applicable in this case.For these cases held that where a
marriage is void from its performance, no judicial decree is necessary to establish its invalidity. But the
appellate court said these cases, decided before the enactment of the Family Code (E.O. No. 209 as
amended by E.O No. 227), no longer control. A binding decree is now needed and must be read into the
provisions of law previously obtaining.[5]
In refusing to consider petitioners appeal favorably, the appellate court also said:
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for this case.
Although decided by the High Court in 1992, the facts situate it within the regime of the now-repealed
provisions of the Civil Code, as in the instant case.
xxx
For purposes of determining whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential. . . .[6]
At the outset, we must note that private respondents first and second marriages contracted in 1977
and 1979, respectively, are governed by the provisions of the Civil Code. The present case differs
significantly from the recent cases of Bobis v. Bobis[7] and Mercado v. Tan,[8] both involving
a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the
Family Code,[9] under which a judicial declaration of nullity of marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code provides that:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of
such person with any person other than such first spouse shall be illegal and void from its performance,
unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage
without the spouse present having news of the absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally considered as dead and before any person believed to
be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is
presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the
three cases until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code
contains no express provision to that effect. Jurisprudence on the matter, however, appears to be
conflicting.
15 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
Originally, in People v. Mendoza,[10] and People v. Aragon,[11] this Court held that no judicial
decree is necessary to establish the nullity of a void marriage. Both cases involved the same factual
milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the
death of his first wife, accused contracted a third marriage during the subsistence of the second
marriage. The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground
that the second marriage is void, having been contracted during the existence of the first
marriage. There is no need for a judicial declaration that said second marriage is void. Since the second
marriage is void, and the first one terminated by the death of his wife, there are no two subsisting valid
marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is
not for the spouses but the court to judge whether a marriage is void or not.
In Gomez v. Lipana,[12] and Consuegra v. Consuegra,[13] however, we recognized the right of the
second wife who entered into the marriage in good faith, to share in their acquired estate and in
proceeds of the retirement insurance of the husband. The Court observed that although the second
marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still
subsisting, still there was a need for judicial declaration of such nullity (of the second marriage). And
since the death of the husband supervened before such declaration, we upheld the right of the second
wife to share in the estate they acquired, on grounds of justice and equity.[14]
But in Odayat v. Amante (1977),[15] the Court adverted to Aragon and Mendoza as precedents. We
exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena
Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in
February of the same year. The Court held that no judicial decree is necessary to establish the invalidity
of void marriages. This ruling was affirmed in Tolentino v. Paras.[16]
Yet again in Wiegel v. Sempio-Diy (1986),[17] the Court held that there is a need for a judicial
declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972.In 1978, she married
another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his
marriage to Lilia as void on the ground of her previous valid marriage. The Court, expressly relying
on Consuegra, concluded that:[18]
There is likewise no need of introducing evidence about the existing prior marriage of her first
husband at the time they married each other, for then such a marriage though void still needs according
to this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents and purposes
she would still be regarded as a married woman at the time she contracted her marriage with
respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and respondent would be
regarded VOID under the law. (Emphasis supplied).
In Yap v. Court of Appeals,[19] however, the Court found the second marriage void without need of
judicial declaration, thus reverting to the Odayat, Mendoza and Aragonrulings.
At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings
in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code.[20] Article
40 of said Code expressly required a judicial declaration of nullity of marriage
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void.
In Terre v. Terre (1992)[21] the Court, applying Gomez, Consuegra and Wiegel, categorically stated
that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for
contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his first
marriage in 1977 was void since his first wife was already married in 1968. We held that Atty. Terre
MJRTB
should have known that the prevailing case law is that for purposes of determining whether a person is
legally free to contract a second marriage, a judicial declaration that the first marriage was null and
void ab initio is essential.
The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993),[22] the
Court held:
Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A
declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a
ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for
said projected marriage to be free from legal infirmity is a final judgment declaring the previous
marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).[23]
However, a recent case applied the old rule because of the peculiar circumstances of the
case. In Apiag v. Cantero, (1997)[24] the first wife charged a municipal trial judge of immorality for
entering into a second marriage. The judge claimed that his first marriage was void since he was merely
forced into marrying his first wife whom he got pregnant.On the issue of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the
children thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code,
there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing
jurisprudence at that time.
Similarly, in the present case, the second marriage of private respondent was entered into in 1979,
before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack of license and consent, there was no need for judicial
declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude
that private respondents second marriage to petitioner is valid.
aside this possible defense of the defendant below which undoubtedly could have tendered a valid issue,
but which was not timely interposed by her before the trial court. But we are now persuaded we cannot
play blind to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls his
own deceit and perfidy.
On the matter of petitioners counterclaim for damages and attorneys fees. Although the appellate
court admitted that they found private respondent acted duplicitously and craftily in marrying
petitioner, it did not award moral damages because the latter did not adduce evidence to support her
claim.[26]
Like the lower courts, we are also of the view that no damages should be awarded in the present
case, but for another reason. Petitioner wants her marriage to private respondent held valid and
subsisting. She is suing to maintain her status as legitimate wife. In the same breath, she asks for
damages from her husband for filing a baseless complaint for annulment of their marriage which caused
her mental anguish, anxiety, besmirched reputation, social humiliation and alienation from her
parents. Should we grant her prayer, we would have a situation where the husband pays the wife
damages from conjugal or common funds. To do so, would make the application of the law
absurd.Logic, if not common sense, militates against such incongruity. Moreover, our laws do not
comprehend an action for damages between husband and wife merely because of breach of a marital
obligation.[27] There are other remedies.[28]
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated
July 24, 1996 and its Resolution dated November 7, 1996, are reversed partially, so that the marriage of
petitioner Ofelia P. Ty and private respondent Edgardo M. Reyes is hereby DECLARED VALID AND
SUBSISTING; and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as monthly
support to their two children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor
age or otherwise legally entitled thereto. Costs against private respondent.
SO ORDERED.

Moreover, we find that the provisions of the Family Code cannot be retroactively applied to the
present case, for to do so would prejudice the vested rights of petitioner and of her children. As held
in Jison v. Court of Appeals,[25] the Family Code has retroactive effect unless there be impairment of
vested rights. In the present case, that impairment of vested rights of petitioner and the children is
patent. Additionally, we are not quite prepared to give assent to the appellate courts finding that despite
private respondents deceit and perfidy in contracting marriage with petitioner, he could benefit from
her silence on the issue. Thus, coming now to the civil effects of the church ceremony wherein petitioner
married private respondent using the marriage license used three years earlier in the civil ceremony, we
find that petitioner now has raised this matter properly. Earlier petitioner claimed as untruthful private
respondents allegation that he wed petitioner but they lacked a marriage license. Indeed we find there
was a marriage license, though it was the same license issued on April 3, 1979 and used in both the civil
and the church rites. Obviously, the church ceremony was confirmatory of their civil marriage. As
petitioner contends, the appellate court erred when it refused to recognize the validity and salutary
effects of said canonical marriage on a technicality, i.e. that petitioner had failed to raise this matter as
affirmative defense during trial. She argues that such failure does not prevent the appellate court
from giving her defense due consideration and weight. She adds that the interest of the State in
protecting the inviolability of marriage, as a legal and social institution, outweighs such technicality. In
our view, petitioner and private respondent had complied with all the essential and formal requisites for
a valid marriage, including the requirement of a valid license in the first of the two ceremonies.That this
license was used legally in the celebration of the civil ceremony does not detract from the ceremonial use
thereof in the church wedding of the same parties to the marriage, for we hold that the latter rites served
not only to ratify but also to fortify the first. The appellate court might have its reasons for brushing

16 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7 MJRTB
G.R. No. L-26270 October 30, 1969
BONIFACIA MATEO, ET AL., petitioners,
vs.
GERVASIO LAGUA, ET AL., respondents.
REYES, J.B.L., J.:
This is a petition for review of the decision of the Court of Appeals (In CA-G.R. Nos. 30064-R
and 30065-R), raising as only issue the correctness of the appellate court's reduction of a
donation propter nuptias, for being inofficious.
The established facts of this case are as follows:
Cipriano Lagua was the original registered owner of 3 parcels of land situated in Asingan,
Pangasinan, referred to as Lot No. 998, with an area of 11,080 sq.m., more or less and
covered by O.C.T. No. 362; Lot No. 6541, with an area of 808 sq.m., more or less, covered by
O.C.T. No. 6618; and Lot No. 5106, with an area of 3,303 sq.m., covered by O.C.T. No. 8137.
Sometime in 1917, Lagua and his wife Alejandra Dumlao, in a public instrument, donated
Lots 998 and 6541 to their son Alejandro Lagua, in consideration of the latter's marriage to
Bonifacia Mateo. The marriage was celebrated on 15 May 1917, and thereafter, the couple took
possession of the properties, but the Certificates of Title remained in the donor's name.
In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her infant daughter lived
with her father-in-law, Cipriano Lagua, who then undertook the farming of the donated lots.
It seems that at the start, Cipriano Lagua was giving to Bonifacia the owner's share of the
harvest from the land. In 1926, however, Cipriano refused to deliver the said share, thus
prompting Bonifacia to resort to the Justice of the Peace Court of Asingan, Pangasinan, from
where she obtained a judgment awarding to her possession of the two lots plus damages.
On 31 July 1941, Cipriano Lagua, executed a deed of sale of the same two parcels of land in
favor of his younger son, Gervasio. This sale notwithstanding, Bonifacia Mateo was
continuously given the owner's share of the harvest until 1956, when it was altogether
stopped. It was only then that Bonifacia Mateo learned of the sale of the lots to her brother-
in-law, who had the sale in his favor registered only on 22 September 1955. As a consequence,
TCT Nos. 19152 and 19153 of the Register of Deeds of Pangasinan were issued to Gervasio.
Bonifacia Mateo and her daughter, Anatalia, assisted by her husband, Luis Alcantara, went to
the Court of First Instance of Pangasinan (Civil Case No. T-339), seeking annulment of the
deed of sale in favor of Gervasio Lagua and for recovery of possession of the properties. On 3
January 1957, judgment was rendered in the case
... declaring the sale executed by Cipriano Lagua in favor of the other defendants,
Gervasio Lagua and Sotera Casimero, as null and void and non-existent; ordering the
17 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
Register of Deeds for the Province of Pangasinan, to cancel Transfer Certificates of
Title Nos. 19152 and 19153; condemning the defendants to pay jointly and severally to
the plaintiffs the sum of P200.00; ordering the defendants Gervasio Lagua and
Sotera Lagua to vacate and deliver the possession over the two parcels of land to the
plaintiffs, and to pay the costs of this suit.
The decision became final, and Bonifacia Mateo, and her daughter, Anatalia Lagua, were
installed in possession of the land.
On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimero commenced in the
Justice of the Peace Court of Asingan, Pangasinan, an action against Bonifacia Mateo and her
daughter for reimbursement of the improvements allegedly made by them on Lots 998 and
6541, plus damages. Dismissed by the Justice of the Peace Court for being barred by the
judgment in Civil Case No. T-339, therein plaintiffs appealed to the Court of First Instance of
Pangasinan where the case was docketed as Civil Case No. T-433. At about the same time,
another case was filed, this time by Gervasio Lagua and Cipriano Lagua, for annulment of the
donation of the two lots, insofar as one-half portion thereof was concerned (civil Case No. T-
442). It was their claim that in donating the two lots, which allegedly were all that plaintiff
Cipriano Lagua owned, said plaintiff not only neglected leaving something for his own
support but also prejudiced the legitime of his forced heir, plaintiff Gervasio Lagua.
Being intimately related, the two cases were heard jointly. On November 12, 1958, while the
cases were pending final resolution, plaintiff Cipriano Lagua died. On 23 December 1960, the
court rendered a single decision dismissing Civil Case No. T-433 for lack of cause of action,
plaintiffs spouses Gervasio Lagua and Sotera Casimero having been declared possessors in
bad faith in Civil Case No. T-339 and, therefore, not entitled to any reimbursement of the
expenses and improvements put up by them on the land. The other suit, Civil Case No. T-442,
was, likewise, dismissed on the ground of prescription, the action to annul the donation
having been brought only in 1958, or after the lapse of 41 years. Defendants' counterclaims
were similarly dismissed although they were awarded attorneys' fees in the sum of P150.00.
Plaintiffs appealed the decision to the Court of Appeals (CA-G.R. Nos. 30064 and 30065-R).
Said tribunal, on 18 March 1966, affirmed the ruling of the trial court in Civil Case No. T-433
denying plaintiffs' claim for reimbursement of the improvements said to have been made on
the land. In regard to the annulment case (C.F.I. No. T-442), however, the Court of Appeals
held that the donation to Alejandro Lagua of the 2 lots with a combined area of 11,888 square
meters execeeded by 494.75 square meters his (Alejandro's) legitime and the disposable
portion that Cipriano Lagua could have freely given by will, and, to the same extent
prejudiced the legitime of Cipriano's other heir, Gervasio Lagua. The donation was thus
declared inofficious, and defendants-appellees were ordered to reconvey to plaintiff Gervasio
Lagua a portion of 494.15 square meters to be taken from any convenient part of the lots. The
award of attorneys' fees to the defendants was also eliminated for lack of proper basis.
Bonifacia Mateo, et al., then resorted to this Court, assailing the decision of the Court of
Appeals insofar as it ordered them to reconvey a portion of the lots to herein respondent
MJRTB
Gervasio Lagua. It is petitioners' contention that (1) the validity of the donation proper
nuptias having been finally determined in Civil Case No. T-339, any question in derogation of
said validity is already barred; (2) that the action to annul the donation, filed in 1958, or 41
years after its execution, is abated by prescription; (3) that a donation proper nuptias is
revocable only for any of the grounds enumerated in Article 132 of the new Civil Code, and
inofficiousness is not one of thorn; and (4) that in determining the legitime of the Lagua
brothers in the hereditary estate of Cipriano Lagua, the Court of Appeals should have applied
the provisions of the Civil Code of 1889, and not Article 888 of the new Civil Code.
Petitioners' first two assigned errors, it may be stated, are non-contentious issues that have
no bearing in the actual controversy in this case. All of them refer to the validity of the
donation a matter which was definitively settled in Civil Case No. T-339 and which,
precisely, was declared by the Court of Appeals to be "beyond the realm of judicial inquiry." In
reality, the only question this case presents is whether or not the Court of Appeals acted
correctly in ordering the reduction of the donation for being inofficious and in ordering
herein petitioners to reconvey to respondent Gervasio Lagua an unidentified 494.75 square-
meter portion of the donated lots.
We are in accord with the Court of Appeals that Civil Case No. 442 is not one exclusively for
annulment or revocation of the entire donation, but of merely that portion thereof allegedly
trenching on the legitime of respondent Gervasio Lagua;1 that the cause of action to enforce
Gervasio's legitime, having accrued only upon the death of his father on 12 November 1958,
the dispute has to be governed by the pertinent provisions of the new Civil Code; and that a
donation proper nuptias property may be reduced for being inofficious. Contrary to the views
of appellants (petitioners), donations proper nuptias (by reason of marriage) are without
onerous consideration, the marriage being merely the occasion or motive for the donation,
not its causa. Being liberalities, they remain subject to reduction for inofficiousness upon the
donor's death, if they should infringe the legitime of a forced heir.2
To the net value of the hereditary estate, shall be added the value of all donations by
the testator that are subject to collation, at the time he made them.
In other words, before any conclusion about the legal share due to a compulsory heir may be
reached, it is necessary that certain steps be taken first. The net estate of the decedent must
be ascertained, by deducting an payable obligations and charges from the value of the
property owned by the deceased at the time of his death; then, all donations subject to
collation would be added to it. With the partible estate thus determined, the legitimes of the
compulsory heir or heirs can be established; and only thereafter can it be ascertained whether
or not a donation had prejudiced the legitimes. Certainly, in order that a donation may be
reduced for being inofficious, there must be proof that the value of the donated property
exceeds that of the disposable free portion plus the donee's share as legitime in the properties
of the donor.4 In the present case, it can hardly be said that, with the evidence then before the
court, it was in any position to rule on the inofficiousness of the donation involved here, and
to order its reduction and reconveyance of the deducted portion to the respondents.
FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of Appeals, insofar as
Civil Case No. 442 of the court a quo is concerned, is hereby set aside and the trial court's
order of dismissal sustained, without prejudice to the parties' litigating the issue of
inofficiousness in a proper proceeding, giving due notice to all persons interested in the estate
of the late Cipriano Lagua.
Without costs.

It is to be noted, however, that in rendering the judgment under review, the Court of Appeals
acted on several unsupported assumptions: that the three (3) lots mentioned in the decision
(Nos. 998, 5106 and 6541) were the only properties composing the net hereditary estate of the
deceased Cipriano Lagua; that Alejandro Lagua and Gervasio Lagua were his only legal heirs;
that the deceased left no unpaid debts, charges, taxes, etc., for which the estate would be
answerable.3 In the computation of the heirs' legitime, the Court of Appeals also considered
only the area, not the value, of the properties.

The infirmity in the above course of action lies in the fact that in its Article 908 the new Civil
Code specifically provides as follows:

ART. 908. To determine the legitime, the value of the property left at the death of the
testator shall be considered, deducting all debts, and charges, which shall not include
those imposed in the will.

18 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7 MJRTB
G.R. No. L-12707 August 10, 1918
MRS. HENRY E. HARDING, and her husband, plaintiffs-appellees,
vs.
COMMERCIAL UNION ASSURANCE COMPANY, defendant-appellant.
FISHER, J.:
This was an action by plaintiffs to recover from defendant the sum of P3,000 and interest, alleged to be
due under the terms of a policy of insurance. The trial court gave plaintiffs judgment for the amount
demanded, with interest and costs, and from that decision the defendant appeals.
The court below stated the issues made by the pleadings in this case, and its finding of fact, as follows:
It is alleged by plaintiffs and admitted by defendant that plaintiffs are husband and wife and
residents of the city of Manila; that the defendant is a foreign corporation organized and
existing under and by virtue of the laws of Great Britain and duly registered in the Philippine
Islands, and Smith, Bell & Co. (limited), a corporation organized and existing under the laws of
the Philippine Islands, with its principal domicile in the city of Manila, is the agent in the
Philippine Islands of said defendant.
The plaintiffs alleged that on February 16, 1916, the plaintiff Mrs. Henry E. Harding was the
owner of a Studebaker automobile, registered number 2063, in the city of Manila; that on said
date; in consideration of the payment to the defendant of the premium of P150, by said
plaintiff, Mrs. Henry E. Harding, with the consent of her husband, the defendant by its duly
authorized agent, Smith, Bell & Company (limited), made its policy of insurance in writing
upon said automobile was set forth in said policy to be P3,000 that the value of said
automobile was set forth in said policy (Exhibit A) to be P3,000; that on March 24, 1916, said
automobile was totally destroyed by fire; that the loss thereby to plaintiffs was the sum of
P3,000; that thereafter, within the period mentioned in the said policy of insurance, the
plaintiff, Mrs. Henry E. Harding, furnished the defendant the proofs of her said loss and
interest, and otherwise performed all the conditions of said policy on her part, and that the
defendant has not paid said loss nor any part thereof, although due demand was made upon
defendant therefor.
The defendant, by its answer, admitted the allegations of the residence and status of the parties
and denied all the other allegation of the said complaint, and for a separate and affirmative
defense alleged (1) that on February 17, 1916, at the city of Manila, P.I. the defendant upon
request of plaintiff, Mrs. Henry E. Harding, issued to the said plaintiff the policy of insurance
on an automobile alleged by the said plaintiff to be her property; that the said request for the
issuance of said policy of insurance was made by means of a proposal in writing signed and
delivered by said plaintiff to the defendant, guaranteeing the truth of the statements contained
therein which said proposal is referred to in the said policy of insurance made a part thereof;
(2) that certain of the statements and representations contained in said proposal and
warranted by said plaintiff to be true, to wit: (a) the price paid by the proposer for the said
automobile; (b) the value of said automobile at the time of the execution and delivery of the
said proposal and (c) the ownership of said automobile, were false and known to be false by the
said plaintiff at the time of signing and delivering the said proposal and were made for the
19 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
purpose of misleading and deceiving the defendant, and inducing the defendant, relying upon
the warranties, statements, and representations contained in the said proposal and believing
the same to be true, issued the said policy of insurance.
The defendant prays that judgment be entered declaring the said policy of insurance to be null
and void, and that plaintiffs take nothing by this action; and for such further relief as to the
court may seem just and equitable.
The evidence in this case shows that some time in the year 1913 Levy Hermanos, the Manila
agents for the Studebaker automobile, sold the automobile No. 2063 to John Canson for
P3,200 (testimony of Mr. Diehl); that under date of October 14, 1914, John Canson sold the
said automobile to Henry Harding for the sum of P1,500 (Exhibit 2); that under date of
November 19, 1914, the said Henry Harding sold the said automobile No. 2063 to J. Brannigan,
of Los Baos, Province of Laguna, P.I., for the sum of P2,000 (Exhibit 3); that under date of
December 20, 1915, J. C. Graham of Los Baos, Province of Laguna, P.I., sold the said
automobile No. 2063 to Henry Harding of the city of Manila for the sum of P2,800 (Exhibit 4
and testimony of J. C. Graham); that on or about January 1, 1916, the said Henry Harding gave
the said automobile to his wife; Mrs. Henry E. Harding, one of the plaintiffs, as a present; that
said automobile was repaired and repainted at the Luneta Garage at a cost of some P900
(testimony of Mr. Server); that while the said automobile was at the Luneta Garage; the said
Luneta Garage, acting as agent for Smith, Bell & Company, (limited), solicited of the plaintiff
Mrs. Harding the insurance of said automobile by the defendant Company (testimony of Mrs.
Henry Harding and Mr. Server); that a proposal was filled out by the said agent and signed by
the plaintiff Mrs. Henry E. Harding, and in said proposal under the heading "Price paid by
proposer," is the amount of "3,500" and under another heading "Present value" is the amount
of "3,000" (Exhibit 1).
The evidence tends to show that after the said proposal was made a representative of the
Manila agent of defendant went to the Luneta Garage and examined said automobile No. 2063
and Mr. Server, the General Manager of the Luneta Garage, an experienced automobile
mechanic, testified that at the time this automobile was insured it was worth about P3,000,
and the defendant, by and through its said agent Smith, Bell & Company (limited), thereafter
issued a policy of insurance upon proposal in which policy the said automobile was described
as of the "present value" of P3,000 and the said defendant charged the said plaintiff Mrs.
Henry E. Harding as premium on said policy the sum of P150, or 5 per cent of the then
estimated value of P3,000. (Exhibit A.)
The "Schedule" in said policy of insurance describes the automobile here in question, and
provides in part of follows:
"Now it is hereby agreed as follows:
"That during the period above set forth and during any period for which the company
may agree to renew this policy the company will subject to the exception and
conditions contained herein or endorsed hereon indemnify the insured against loss of
or damage to any motor car described in the schedule hereto (including accessories)
by whatever cause such loss or damage may be occasioned and will further indemnify
the insured up to the value of the car or P3,000 whichever is the greater against any
claim at common law made by any person (not being a person in the said motor car
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 nor in the insured's service) for loss of life or for accidental bodily injury or damage to
property caused by the said motor car including law costs payable in connection with
such claim when incurred with the consent of the company."
The evidence further shows that on March 24, 1916, the said automobile was totally destroyed
by fire, and that the iron and steel portions of said automobile which did not burn were taken
into the possession of the defendant by and through its agent Smith, Bell & Company (limited),
and sold by it for a small sum, which had never been tendered to the plaintiff prior to the trial
of this case, but in open court during the trial the sum of P10 as the proceeds of such sale was
tendered to plaintiff and refused.
Upon the facts so found, which we hold are supported by the evidence, the trial judge decided that there
was no proof of fraud on the part of plaintiff in her statement of the value of the automobile, or with
respect to its ownership; that she had an insurable interest therein; and that defendant, having agreed to
the estimated value, P3,000, and having insured the automobile for that amount, upon the basis of
which the premium was paid, is bound by it and must pay the loss in accordance with the stipulated
insured value. The assignments of error made on behalf of appellant put in issue the correctness of those
conclusions of law, and some others of minor importance relating to the exclusion of evidence.
Disposing of the minor objections first, as we have reached the conclusion that the trial court was right
in holding that the defendant is bound by the estimated value of the automobile upon which policy was
issued, and that the plaintiff was not guilty of fraud in regard thereto, the exclusion of the testimony of
the witness Diehl is without importance. It merely tended to show the alleged actual value of the
automobile, and in the view we take of the case such evidence was irrelevant.
Appellant contends that Mrs. Harding was not the owner of the automobile at the time of the issuance of
the policy, and, therefore, had no insurable interest in it. The court below found that the automobile was
given to plaintiff by her husband shortly after the issuance of the policy here in question. Appellant does
not dispute the correctness of this finding, but contends that the gift was void, citing article 1334 of the
Civil Code which provides that "All gifts between spouses during the marriage shall be void. Moderate
gifts which the spouses bestow on each other on festive days of the family are not included in this rule."
We are of the opinion that this contention is without merit. In the case of Cook vs. McMicking 27 Phil.
Rep., 10), this court said:
It is claimed by the appellants that the so-called transfer from plaintiff's husband to her was
completely void under article 1458 of the Civil Code and that, therefore, the property still
remains the property of Edward Cook and subject to levy under execution against him.
In our opinion the position taken by appellants is untenable. They are not in a position to
challenge the validity of the transfer, if it may be called such. They bore absolutely no relation
to the parties to the transfer at the time it occurred and had no rights or interests inchoate,
present, remote, or otherwise, in the property in question at the time the transfer occurred.
Although certain transfers from husband to wife or from wife to husband are prohibited in the
article referred to, such prohibition can be taken advantage of only by persons who bear such a
relation to the parties making the transfer or to the property itself that such transfer interferes
with their rights or interests. Unless such a relationship appears the transfer cannot be
attacked.
20 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
Even assuming that defendant might have invoked article 1334 as a defense, the burden would be upon
it to show that the gift in question does not fall within the exception therein established. We cannot say,
as a matter of law, that the gift of an automobile by a husband to his wife is not a moderate one.
Whether it is or is not would depend upon the circumstances of the parties, as to which nothing is
disclosed by the record.
Defendant contends that the statement regarding the cost of the automobile was a warranty, that the
statement was false, and that, therefore, the policy never attached to the risk. We are of the opinion that
it has not been shown by the evidence that the statement was false on the contrary we believe that it
shows that the automobile had in fact cost more than the amount mentioned. The court below found,
and the evidence shows, that the automobile was bought by plaintiff's husband a few weeks before the
issuance of the policy in question for the sum of P2,800, and that between that time and the issuance of
the policy some P900 was spent upon it in repairs and repainting. The witness Server, an expert
automobile mechanic, testified that the automobile was practically as good as new at the time the
insurance was effected. The form of proposal upon which the policy was issued does not call for a
statement regarding the value of the automobile at the time of its acquisition by the applicant for the
insurance, but merely a statement of its cost. The amount stated was less than the actual outlay which
the automobile represented to Mr. Harding, including repairs, when the insurance policy was issued. It
is true that the printed form calls for a statement of the "price paid by the proposer," but we are of the
opinion that it would be unfair to hold the policy void simply because the outlay represented by the
automobile was made by the plaintiff's husband and not by his wife, to whom he had given the
automobile. It cannot be assumed that defendant should not have issued the policy unless it were
strictly true that the price representing the cost of the machine had been paid by the insured and by no
other person that it would no event insure an automobile acquired by gift, inheritance, exchange, or
any other title not requiring the owner to make a specific cash outlay for its acquisition.
Furthermore, the court below found and the evidence shows, without dispute, that the proposal upon
which the policy in question was issued was made out by defendant's agent by whom the insurance was
solicited, and that appellee simply signed the same. It also appears that an examiner employed by the
defendant made an inspection of the automobile before the acceptance of the risk, and that the sum
after this examination. The trial court found that Mrs. Harding, in fixing the value of the automobile at
P3,000, acted upon information given her by her husband and by Mr. Server, the manager of the Luneta
Garage. The Luneta Garage, it will be remembered, was the agent of the defendant corporation in the
solicitation of the insurance. Mrs. Harding did not state of her own knowledge that the automobile
originally cost P3,000, or that its value at the time of the insurance was P3,000. She merely repeated
the information which had been given her by her husband, and at the same time disclosed to
defendant's agent the source of her information. There is no evidence to sustain the contention that this
communication was made in bad faith. It appears that the statements in the proposal as to the price
paid for the automobile and as to its value were written by Mr. Quimby who solicited the insurance on
behalf of defendant, in his capacity as an employee of the Luneta Garage, and wrote out the proposal for
Mrs. Harding to sign. Under these circumstances, we do not think that the facts stated in the proposal
can be held as a warranty of the insured, even if it should have been shown that they were incorrect in
the absence of proof of willful misstatement. Under such circumstance, the proposal is to be regarded as
the act of the insurer and not of the insured. This question was considered in the case of the Union
Insurance Company vs. Wilkinson (13 Wall., 222; 20 L. ed., 617), in which the Supreme Court of the
United States said:
This question has been decided differently by courts of the highest respectability in cases
precisely analogous to the present. It is not to be denied that the application logically
considered, is the work of the assured, and if left to himself or to such assistance as he might
MJRTB
 select, the person so selected would be his agent, and he alone would be responsible. On the
other hand, it is well-known, so well that no court would be justified in shutting its eyes to it,
that insurance companies organized under the laws of one State, and having in that State their
principal business office, send these agents all over the land, with directions to solicit and
procure applications for policies furnishing them with printed arguments in favor of the value
and necessity of life insurance, and of the special advantages of the corporation which the
agent represents. They pay these agents large commissions on the premiums thus obtained,
and the policies are delivered at their hands to the assured. The agents are stimulated by letters
and instructions to activity in procuring contracts, and the party who is in this manner induced
to take out a policy, rarely sees or knows anything about the company or its officers by whom it
is issued, but looks to and relies upon the agent who has persuaded him to effect insurance as
the full and complete representative of the company, in all that is said or done in making the
contract. Has he not a right to so regard him? It is quite true that the reports of judicial
decisions are filled with the efforts of these companies, by their counsel, to establish the
doctrine for the acts of these agents to the simple receipt of the premium and delivery of the
policy, the argument being that, as to all other acts of the agent, he is the agent of the assured.
This proposition is not without support in some of the earlier decision on the subject; and, at a
time when insurance companies waited for parties to come to them to seek assurance, or to
forward applications on their own motion, the doctrine had a reasonable foundation to rest
upon. But to apply such a doctrine, in its full force, to the system of selling policies through
agents, which we have described, would be a snare and a delusion, leading, as it has done in
numerous instances, to the grossest frauds, of which the insurance corporations receive the
benefits, and the parties supposing themselves insured are the victims. The tendency of the
modern decisions in this country is steadily in the opposite direction. The powers of the agent
are, prima facie, co-extensive with the business intrusted to his care, and will not be narrowed
by limitations not communicated to the person with whom he deals. (Bebee vs. Ins. Co., 25
Conn., 51; Lycoming Ins. Co. vs. Schoolenberger, 44 Pa., 259; Beal vs. Ins. Co., 16 Wis., 241;
Davenport vs. Ins. Co., 17 Iowa, 276.) An insurance company, establishing a local agency, must
be held responsible to the parties with whom they transact business, for the acts and
declarations of the agent, within the scope of his employment, as if they proceeded from the
principal. (Sav. Bk. vs. Ins. Co., 31 Conn., 517; Hortwitz vs.Ins. Co., 40 Mo., 557; Ayres vs. Ins.
Co., 17 Iowa, 176; Howard Ins. Co. vs. Bruner, 23 Pa., 50.)
In the fifth edition of American Leading Cases, 917, after a full consideration of the authorities,
it is said:
"By the interested or officious zeal of the agents employed by the insurance companies
in the wish to outbid each other and procure customers, they not unfrequently
mislead the insured, by a false or erroneous statement of what the application should
contain; or, taking the preparation of it into their own hands, procure his signature by
an assurance that it is properly drawn, and will meet the requirements of the policy.
The better opinion seems to be that, when this course is pursued, the description of
the risk should, though nominally proceeding from the insured, be regarded as the act
of the insurers." (Rowley vs. Empire Ins. Co., 36 N.Y., 550.)
The modern decisions fully sustain this proposition, and they seem to us founded on reason
and justice, and meet our entire approval. This principle does not admit oral testimony to vary
or contradict that which is in writing, but it goes upon the idea that the writing offered in
evidence was not the instrument of the party whose name is signed to it; that it was procured
under such circumstances by the other side as estops that side from using it or relying on its
21 | C I V I L L A W R E V I E W P e r s o n s Assignment # 7
contents; not that it may be contradicted by oral testimony, but that it may be shown by such
testimony that it cannot be lawfully used against the party whose name is signed to it. (See
also Am. Life Ins. Co. vs. Mahone, 21 Wallace, 152.)
The defendant, upon the information given by plaintiff, and after an inspection of the automobile by its
examiner, having agreed that it was worth P3,000, is bound by this valuation in the absence of fraud on
the part of the insured. All statements of value are, of necessity, to a large extent matters of opinion, and
it would be outrageous to hold that the validity of all valued policies must depend upon the absolute
correctness of such estimated value. As was said by the Supreme Court of the United States in the case
of the First National Bank vs. Hartford Fire Insurance Co. (5 Otto, 673; 24 L. ed., 563), at. p. 565 of the
Lawyers Edition:
The ordinary test of the value of property is the price it will commend in the market if offered
for sale. But that test cannot, in the very nature of the case, be applied at the time application is
made for insurance. Men may honestly differ about the value of property, or as to what it will
bring in the market; and such differences are often very marked among those whose special
business it is to buy and sell property of all kinds. The assured could do no more than estimate
such value; and that, it seems, was all that he was required to do in this case. His duty was to
deal fairly with the Company in making such estimate. The special finding shows that he
discharged that duty and observed good faith. We shall not presume that the Company, after
requiring the assured in his application to give the "estimated value," and then to covenant that
he had stated all material facts in regard to such value, so far as known to him, and after
carrying that covenant, by express words, into the written contract, intended to abandon the
theory upon which it sought the contract, and make the absolute correctness of such estimated
value a condition precedent to any insurance whatever. The application, with its covenant and
stipulations, having been made a part of the policy, that presumption cannot be indulged
without imputing to the Company a purpose, by studied intricacy or an ingenious framing of
the policy, to entrap the assured into incurring obligations which, perhaps, he had no thought
of assuming.
Section 163 of the Insurance Law (Act No. 2427) provides that "the effect of a valuation in a policy of fire
insurance is the same as in a policy of marine insurance."
By the terms of section 149 of the Act cited, the valuation in a policy of marine insurance is conclusive if
the insured had an insurable interest and was not guilty of fraud.
We are, therefore, of the opinion and hold that plaintiff was the owner of the automobile in question and
had an insurable interest therein; that there was no fraud on her part in procuring the insurance; that
the valuation of the automobile, for the purposes of the insurance, is binding upon the defendant
corporation, and that the judgment of the court below is, therefore, correct and must be affirmed, with
interest, the costs of this appeal to be paid by the appellant.
So ordered.
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