REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
THIRD DIVISION
GLENN
M.
MILLER,
SUBSTITUTED
BY
HIS
SURVIVING
LEGAL
HEIRS,
NAMELY: (1) EVELYN R. MILLER;
(2) JENNIFER ANN L. MILLER;
(3) LESLIE ANN L. MILLER; (4)
RACHEL ANN L. MILLER; AND
(5) VALERIE ANN L. MILLER,
Petitioners,
G.R. NO. 200344

-versusJOAN MILLER y ESPENIDA

a.k.a JOHNLYN MILLER y
ESPENIDA and the LOCAL
CIVIL REGISTRAR OF GUBAT,
SORSOGON,
Respondents.
x-------------------------------------------------------x

MEMORANDUM
RESPONDENTS, by counsel, in compliance with the Honorable
Courts Resolution dated June 2, 2014, a copy of which was received
on July 17, 2014,1 most respectfully aver:
STATEMENT OF THE CASE AND FACTS
1. Elevated to this Honorable Court on a petition for review on
certiorari under Rule 45 of the Rules of Court are the Decision dated
June 30, 2011 and Resolution dated February 3, 2012 rendered by
the Court of Appeals.

On August 15, 2014, the undersigned filed before this Honorable Court a Motion for Extension of Time to
File Memorandum, asking for an extension of thirty (30) days from August 16, 2014 or until September 15,
2014 within which to file the said pleading.

2. For the appreciation of this Honorable Court, the

respondents reproduces herein the pertinent facts relative to this
case and briefly state:
3. This case emanated from a Petition for the Cancellation of
the Birth Certificate of Joan Espenida Miller (Joan for brevity) filed by
the late Glenn M. Miller before the Regional Trial Court (RTC) of
Gubat, Sorsogon, Branch 54, against the former, then represented by
her biological mother, Lennie Espenida, and the Local Civil Registrar
of Gubat, Sorsogon, docketed as Special Proceeding No. 4703.
3.1. In the said Petition,2 Glenn Miller (now deceased) alleged
that he is one (1) of the four (4) legitimate children of the Spouses
John M. Miller and Beatriz Marcaida-Miller. He was born on July 10,
1954 in Masbate, Masbate. His other siblings are Charles Miller, Betty
Miller and John Miller, Jr. John M. Miller and Beatriz Marcaida-Miller
were legally married in Uson, Masbate on May 20, 1944. On May 14,
1990, John Miller died intestate. During the latters lifetime, he never
acknowledged Joan as his illegitimate daughter with Lennie
Espenida. Thus, Joan has no legal right to use the surname Miller.
3.2. In sum, he prayed for the trial court to order the Local Civil
Registrar of Gubat, Sorsogon to amend/change the Certificate of Live
Birth of Joan by deleting the surname Miller and replacing it with her
biological mothers surname, Espenida.
4. In her Answer,3 Lennie Espenida (Lennie), on behalf of the
then minor Joan, stated that she had an amorous relationship with
John M. Miller from 1978 until his death in 1990. Out of such
relationship, Joan was born on June 25, 1982. During the lifetime of
John Miller, he had actually recognized Joan as his daughter in a
holographic will dated July 8, 1985, where he gave 1/8 of his estate to
the latter. Also, while he was undergoing medical treatment in Los
Angeles, California, he wrote Lennie and Joan a letter, relaying his
love and affection to them. Further, John M. Miller executed a
document dated February 14, 1987 designating his legitimate
daughter, Dr. Betty M. Miller, to act as guardian and administrator of
Joans inheritance until she reaches the age of majority. John also
instructed Betty to secure a scholarship for Joan. In fact, Betty got her
an educational plan (College Assurance Plan). Further, Joan grew up
in the ranch owned by the Millers located in Barangays Paraiso and
Bangad, Milagros, Masbate. Also, she took up her primary school at
the Miller Primary School in the year 1989-1990, with her schooling
being financed by her father John.
2
3

Annex P of the Petition for Review, pp. 2-5 thereof.

Annex Q of the Petition for Review, pp. 2-3 thereof.

4.1. Finally, the instant case was filed by Glenn Miller to harass
her because she had filed a Petition for Partition and Accounting of
John Millers estate with prayer for Preliminary Attachment,
Receivership, Support and Damages before the Regional Trial Court
of Masbate, Branch 48, alleging in the main that Joan Miller is the
illegitimate child of John M. Miller, as evidence by Joans Certificate
of Live Birth.
5. Trial on the merits ensued. Glenn emphasized the fact that
John Miller did not sign the space for the acknowledgment of Joan as
his child in the latters birth certificate. Likewise, the respondents
documentary evidence (i.e., alleged holographic will dated July 1985,
the letters dated July 5, 1984 and February 14, 1987) were not
authenticated.4
6. On November 26, 2004, the trial court rendered the assailed
Decision,5 disposing as follows:
WHEREFORE, judgment is hereby rendered
in favor of the respondents and against the petitioner
by:
(a)
petition;

Ordering the dismissal of the instant

(b)
Ordering respondent, Joan E. Miller to
continue using the surname Miller;
(c)
Ordering the respondent Local Civil
Registrar of Gubat, Sorsogon to maintain the status
quo and never to amend nor change the certificate of
live birth of Joan Miller y Espenida;
(d)
Likewise, ordering the dismissal of the
respondents counterclaim;
(e)
Ordering the petitioner to pay the costs
of the proceedings.
SO ORDERED.

7. Aggrieved, Glenn Miller filed an appeal 6 before the Court of

Appeals. In turn, respondent Joan filed her Brief. 7 Also, the Office of
the Solicitor General (OSG), on behalf of the respondent local civil
registrar, filed its Brief.8

Regional Trial Court Decision, p. 3, attached as Annex V to the Petition for Review.
Annex V of the Petition for Review.
6
Copy of the Appellants Brief is attached as Annex W of the Petition for Review.
7
Annex X of the Petition for Review.
8
Annex Y of the Petition for Review.
5

8. The Court of Appeals, in a Decision dated June 30, 2011 9

affirmed the above ruling of the Regional Trial Court (RTC), holding
as follows:
Under Article 172 of the Family Code, the
legitimate filiation of a child can be established by any
of the modes therein defined even without direct
evidence of the marriage of his/her supposed parents.
Said article 172 reads:
Art. 172. The filiation of legitimate children is established
by any of the following:
1.

The record of birth appearing in the civil register or

a final judgment; or

2.

An admission of legitimate filiation in a public

document or a private handwritten instrument and
signed by the parent concerned.

In the absence of the foregoing evidence, then

legitimate filiation shall be proved by:
1.

The open and continuous possession of the

status of a legitimate child; or

2.

Any other means allowed by the Rules of Court

and special laws.

With respect to the illegitimate child, he may

establish his legitimate filiation in the same manner
and on the same proof as legitimate child. Article 175
of the Civil Code thus provides:
Art. 175. Illegitimate children may establish their
illegitimate filiation in the same [way] and on the same evidence
as legitimate children.
The action must be brought within the same period
specified in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action may
be brought within the lifetime of the alleged parent.

In the case at bar, respondent Joan Miller

claimed her filiation to John Miller by presenting the
holographic will executed by the testator. In said will,
John Miller disposed his estate to his spouse and
legitimate children and assigned 1/8 share thereof to
Joan. Apart from the said will, the testator designated
Betty Miller as the trustee of Joans share in the
inheritance during the formers minority. He also sent
letters to Joans mother, Lennie Espineda, conveying
his love and affection to both of them.
Applying the provisions of the Civil Code laid
under Article 173 in relation to Article 172, we agree
with the conclusion reached by the RTC that Joan
9

Annex A of the Petition for Review.

Miller was able to prove her filiation with John Miller

based on the pieces of evidence cited above.
There is no question that the document was
shown to be entirely written, dated and signed by
John Miller wherein he apportioned the 1/8 share of
his estate to Joan is a holographic will. Without
delving into the issue of validity [of] the said will or of
its allowance or disallowance, We find that the said
will sufficiently established the paternity of Joan Miller.
In Gono-Javier v. Court of Appeals, the
Supreme Court held, [t]he due recognition of an
illegitimate child in a record of birth, a will, a statement
before a court of record, or in any authentic writing is,
in itself, a consummated act of acknowledgment of
the child, and no further court action is required.
Corollarily, the contention of Glenn Miller that since
the authenticity of the holographic will was not duly
proven, it could not be made basis of valid rights, is
preposterous.
Following the dictum laid by the Highest Court
in Gono-Javier, We rule that judicial imprimatur on the
will is no longer required before paternal filiation
based thereon may be established. The mere act of
acknowledging a child, as long as it is made in a will,
is sufficient. In fact, recognition is instantly recognized
by law the moment the father executed the said
document. This jurisprudential principle laid in GonoJavier was once again reiterated by the Supreme
Court in the more recent case of Tayag v. TayagGallor thus, [t]he voluntary recognition of an
illegitimate child by his or her parent needs no further
court action and is, therefore, not subject to the
limitation that the action for recognition be brought
during the lifetime of the putative parent. Indubitably,
Glen Millers stance that an unprobated will cannot be
a valid source of filial rights lacks statutory and
jurisprudential sanctions.
For failing to substantiate his allegation, Glenn
Millers contention that the pieces of documents
evidencing Joan Millers paternity are not authentic
deserves scant consideration. It is not incumbent
upon Joan Miller to prove that the said documents are
authentic. It is a basic rule in civil cases that he who
alleges proves. His bare lamentation, without
sufficient proof holds no water in this jurisdiction.
Allegation is definitely not tantamount to proof. To say
that, [o]ne need not a handwriting expert to
immediately notice that the three (3) unauthentic
documents were written by three (3) different hands
none of which in the hand of testator, is to undermine
the authority of the courts. Judicial decisions are
5

based on competent and credible evidence and not

on mere assumptions or presumptions and certainly
not on the bare unsubstantiated allegation of a
litigant.
WHEREFORE, premises considered, the
instant petition is DENIED and the Decision dated
November 26, 2004 of the Regional Trial Court of
Masbate City, Branch 48 in Special Procceding No.
4703 is hereby AFFIRMED.
SO ORDERED.
(Court of Appeals Decision, pp. 4-7; citations omitted)

8.1. Petitioners filed a Motion for Reconsideration, 10 which was

denied in a Resolution dated February 3, 2012. 11
8.2. Hence, the instant Petition premised on the following
grounds, viz:
I. WHETHER OR NOT ARTICLE 368 OF
THE CIVIL CODE NOW ARTICLE 176 OF
THE EXECUTIVE ORDER NO. 209,
OTHERWISE KNOWN AS THE FAMILY
CODE SHOULD APPLY TO PRIVATE
RESPONDENT, AN ILLEGITIMATE AND
SPURIOUS CHILD BORN ON 25 JUNE 1982
TO DETERMINE HER CORRECT SURNAME
AND USE IT IN HER CERTIFICATE OF LIVE
BIRTH.
II. WHETHER OR NOT THE HONORABLE
COURT OF APPEALS AND THE REGIONAL
TRIAL COURT COMMITTED GRAVE ABUSE
OF DISCRETION IN ISSUING THEIR
ASSAILED DECISION/JUDGMENT AND
FAILED TO APPLY THESE PERTINENT
LAWS AND JURISPRUDENCE ENFORCE
(SIC) AND IN EFFECT AT THE TIME OF THE
BIRTH OF THE CHILD.12
9. Respondents submitted a Comment dated May 27, 2013. In
turn, petitioners filed a Reply dated December 19, 2013.
STATEMENT OF THE ISSUE
10

Annex B of the Petition for Review.

Annex C of the Petition for Review.
12
Petition for Review, p. 13.
11

WHETHER THE COURT OF APPEALS

COMMITTED A SERIOUS ERROR OF LAW
WHEN IT RULED THAT RESPONDENT
JOAN MILLER WAS ABLE TO PRESENT
SUFFICIENT PROOFS OF HER FILIATION
WITH JOHN M. MILLER, IN ACCORDANCE
WITH ARTICLE 173 IN RELATION TO
ARTICLE 172 OF THE CIVIL CODE, HENCE,
SHE MAY CONTINUE USING THE LATTERS
SURNAME.
ARGUMENTS
10. Petitioners maintained that Joan, being an illegitimate and
spurious child of the late John Miller, should bear the surname of her
mother pursuant to Article 368 of the Civil Code, the law in force at
the time of her birth (June 25, 1982), 13 as well as Article 176 of the
Family Code of the Philippines.14 They contended that Republic Act
No. 9255,15 enacted on February 24, 2004 only, cannot be made to
apply to the case at bar because Joan was born on June 25, 1982. 16
Thus, Joans surname in her Certificate of Birth should be changed
from Miller to Espenida.17
10.1. Also, petitioners posited that the cited jurisprudence 18 in
the Honorable Court of Appeals Decision is not applicable to the
case at bar since the said cases present dissimilar facts and issue
compare with the instant case.19
10.2. Further, they pointed that Lennie Espenida had committed
falsification of public document by causing registration of two (2)
Certificates of Live Birth of Joan and using these documents in a
judicial proceeding.20 In fact, a criminal case was filed where she was
found guilty, thus, applied for probation. 21 Likewise, petitioners prayed
for the cancellation of the Certificate of Birth that carries the first
name Johnlyn, since Joan has no legal right to maintain two (2)
Certificates of Live Birth.22
13

Petition for Review. p. 14.

Id., at p. 15
15
An Act Allowing Illegitimate Children to Use the Surname of Their Father, Amending for the Purpose
Article 176 of Executive Order No. 209, Otherwise Known as "The Family Code of the Philippines"
16
Petition for Review, p. 6
17
Id., at p. 15.
18
Gono-Javier v. Court of Appeals, G.R. No. 111994, December 29, 1994 and Tayag-Tayag-Gallor, G.R.
No. 174680, March 24, 2008.
19
Petition for Review, p. 17.
20
Id., p. 17.
21
Id., at p. 23-24.
22
Id., at p. 16.
14

10.3. Moreover, petitioners stressed the fact that the late John
Miller did not sign in the acknowledgement portion of the said birth
certificates.23
10.4. In addition, petitioners asseverated in their Reply that
Republic Act No. 9255 has no retroactive application. The retroactive
provision in its Implementing Rules and Regulations (Rule 11)
conflicts with the law itself, hence, the latter should prevail. 24
11. Respondent Joan begs to disagree from the foregoing
propositions.
11.1. In Alba v. Court of Appeals25 this Honorable Court held:
In Wang v. Cebu Civil Registrar, it was
held that an illegitimate child whose filiation is
not recognized by the father, bears only a
given name and his mothers surname. The
name of the unrecognized illegitimate child
identifies him as such. It is only when said
child is recognized that he may use his
fathers surname, reflecting his status as
an acknowledged illegitimate child.
(Emphasis supplied)
11.2. This Honorable Court reiterated the above
pronouncement in Republic of the Philippines v. Capote,26 viz:
Our laws on the use of surnames state
that legitimate and legitimated children shall
principally use the surname of the father. The
Family Code gives legitimate children the right
to bear the surnames of the father and the
mother, while illegitimate children shall use
the surname of their mother, unless their
father recognizes their filiation, in which
case they may bear the fathers surname.
(Emphasis supplied)
11.3. In the case at bar, the Court of Appeals correctly held that
respondent Joans presentation of a holographic will executed by his
late father John Miller, whereby the latter disposed 1/8 share of his
23

Id., at. p. 25.

Reply, p. 2-3
25
G.R. No. 164041, July 29, 2005
26
G.R. No. 157043, February 2, 2007
24

estate to her, apart from his letters Lennie, conveying his love and
affection to Lennie and Joan, and Johns designation of his legitimate
daughter, Betty Miller, as trustee of Joan's share in the inheritance
during the latter's minority,27 sufficiently established the latters
illegitimate filiation.
11.4. Undoubtedly, through the above pieces of documentary
evidence, John had clearly recognized Joan as his daughter; hence,
the latter may use his surname pursuant to law and well-settled
jurisprudence.
11.5. [T]he due recognition of an illegitimate child in a record of
birth, a will, a statement before a court of record, or in any authentic
writing is, in itself, a consummated act of acknowledgment of the
child, and no further court action is required.28
11.6. Article 176 of the Family Code, as amended by R.A.
9255, permits an illegitimate child to use the surname of his/her
father if the latter had expressly recognized him/her as his offspring
through the record of birth appearing in the civil register, or through
an admission made in a public or private handwritten instrument. The
recognition made in any of these documents is, in itself, a
consummated act of acknowledgment of the childs paternity; hence,
no separate action for judicial approval is necessary. 29 (Underscoring
supplied)
11.7. The voluntary recognition of an illegitimate child by his or
her parent needs no further court action and is, therefore, not subject
to the limitation that the action for recognition be brought during the
lifetime of the putative parent.30
11.8. Similarly, in Dela Cruz v. Gracia,31 this Honorable Court
held:
Article 176 of the Family Code, as
amended by R.A. 9255, permits an illegitimate
child to use the surname of his/her father if the
latter had expressly recognized him/her as his
offspring through the record of birth appearing
in the civil register, or through an admission
made in a public or private handwritten
instrument. The recognition made in any of
27

Court of Appeals Decision, p. 5

Gono-Javier v. Court of Appeals, G.R. No. 111994 December 29, 1994.
29
Jennie San Juan Dela Cruz and minor Christian Dela Cruz Aquino v. Garcia, G.R. No. 177728, July 31,
2009
30
Tayag v. Tayag-Gallor, G.R. No. 174680, March 24, 2008.
31
G.R. No. 177728, July 31, 2009
28

these documents is, in itself, a consummated

act of acknowledgment of the childs paternity;
hence, no separate action for judicial approval
is necessary.
11.9. Moreover, Republic Act No. 9255, otherwise known as
An Act Allowing Illegitimate Children to Use the Surname of Their
Father, Amending for the Purpose Article 176 of Executive Order No.
209, Otherwise Known as "The Family Code of the Philippines"
provides:
SECTION 1. Article 176 of Executive Order
No. 209, otherwise known as the Family Code of the
Philippines, is hereby amended to read as follows:
"Article 176. Illegitimate children shall use the
surname and shall be under the parental authority of
their mother, and shall be entitled to support in
conformity with this Code. However, illegitimate
children may use the surname of their father if
their filiation has been expressly recognized by
the father through the record of birth appearing in
the civil register, or when an admission in a public
document or private handwritten instrument is
made by the father. Provided, the father has the right
to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each
illegitimate child shall consist of one-half of the
legitime of a legitimate child." (Emphasis supplied)

11.10. Administrative Order No. 1, Series of 2004 pertaining to

the Rules and Regulations Governing the Implementation of
Republic Act No. 9255 explicitly provides that the rules shall apply to
all illegitimate children born before or after the effectivity of R.A.
9255,32 and that these shall have retroactive effect for all births
occurring within and outside the Philippines.33
11.11. Thus, the provisions of Republic Act No. 9255 (R.A. No.
9255) are applicable to resolve the issue at hand notwithstanding the
fact that Joan was born prior to its enactment.
11.12. Contrary to the petitioners assertion, it is submitted that
such retroactivity clause does not conflict with the provisions of R.A.
No. 9255 because the implementing rules merely supplemented and
clarified the application of the subject law. Stated differently,
petitioners alleged conflict between the implementing rules and the
32
33

Rule 1, Coverage, 1.1

Rule 11, Retroactivity Clause.

10

subject law is more imagined than real. At any rate, the provisions of
R.A. No. 9255 and its implementing rules must be harmonized as far
as practicable.
11.13. To reiterate, Joans filiation has been expressly admitted
and recognized by John Miller in several private handwritten
instruments. Petitioners asseveration that the said pieces of
documentary evidence were not authentic34 cannot be sustained.
11.14. As a rule, forgery cannot be presumed and must be
proved by clear, positive and convincing evidence and the burden of
proof lies on the party alleging forgery.35 Likewise, considering that
the petitioners assert that the respondent's documentary evidence
were forgeries, they have the bounden duty to prove such affirmative
allegation. It is a basic rule in evidence that each party must prove his
affirmative allegation. The burden of evidence lies with the party who
asserts an affirmative allegation.36 "He who alleges a fact has the
burden of proving it and a mere allegation is not evidence." 37
11.15. As mandated by the Rules of Court each party must
prove his own affirmative allegation, i.e., one who asserts the
affirmative of the issue has the burden of presenting at the trial such
amount of evidence required by law to obtain a favorable judgment:
by preponderance of evidence in civil cases, and by proof beyond
reasonable doubt in criminal cases. 38
11.16. Undeniably, petitioners failed to establish that
respondent's documentary evidence were forgeries. Apart from Glenn
Miller's bare allegation, no witness, whether expert or not, was
presented. Also, no comparison of John's authentic handwriting
samples with the one appearing on the questioned documents was
ever made.
17. Finally, it has been held that: [o]ur laws instruct that the
welfare of the child shall be the "paramount consideration" in
resolving questions affecting him. Article 3(1) of the United Nations
Convention on the Rights of a Child of which the Philippines is a
signatory is similarly emphatic:
Article 3

34

Petition for Review, p. 27.

Ladignon v. Court of Appeals, G.R. No. 122973, July 18, 2000.
36
Jimenez et al., v. National Labor Relations Commission, et al., G.R. No. 116960 April 2, 1996.
37
P.T. Cerna Corporation vs. Court of Appeals et al., G.R. No. 91622. April 6, 1993; See also: Noceda v.
Court of Appeals, et al. G.R. No. 119730 September 2, 1999.
38
Tongson & Tongson v. Court of Appeals, et al., G.R. No. 77104 November 6, 1992
35

11

1. In all actions concerning children, whether

undertaken by public or private social welfare
institutions, courts of law, administrative
authorities or legislative bodies, the best
interests of the child shall be a primary
consideration.
It is thus "(t)he policy of the Family Code to
liberalize the rule on the investigation of the
paternity and filiation of children, especially of
illegitimate children x x x."39 (Underscoring
supplied)
17.1. Respondent implores that the foregoing policy be applied
to the case at bar.
18. Based on the foregoing, the petitioners failed to present
persuasive, justifiable or compelling reasons for this Honorable Court
to reverse the assailed Decision dated June 30, 2011 and Resolution
dated February 3, 2012.

RELIEF
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Court that the instant Petition be
DISMISSED and that the Decision of the Court of Appeals, Ninth
Division, dated June 30, 2011 and Resolution dated February 3, 2012
be AFFIRMED.
Other reliefs just and equitable are likewise prayed for.
Quezon City for Manila,
September 15, 2014.
Department of Justice
PUBLIC ATTORNEYS OFFICE
Special and Appealed Cases Service
DOJ Agencies Bldg., NIA Road corner East Avenue
Diliman 1104 Quezon City
Tel. Nos. 928-91-37/ 929-94-36 loc. 111
By:
PERSIDA V. RUEDA-ACOSTA
Chief Public Attorney
39

Supra, note 29

12

Roll No. 36327

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ANA LISA M. SORIANO

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EXPLANATION
13

(Pursuant to Sec. 11, Rule 13 of the 1997

New Rules of Civil Procedure)
The foregoing Memorandum is being served by registered
mail, personal service not being practicable due to distance and lack
of sufficient manpower to carry out the said mode of service.
TERRY JOY P. BARBOZA-JALECO
Copy furnished:
Atty. Jesus M. Bautista
Counsel for Petitioners
No. 224-B Kanlaon Street
Sta. Mesa Heights, 1100 Quezon City

Reg. mail #______________

Date___________________

Court of Appeals
Ma. Orosa Street, Ermita, Manila
(CA GR CV No. 84826)

Reg. mail #______________

Date___________________

The Presiding Judge

Regional Trial Court
Branch 48, Masbate City
5400 Masbate

Reg. mail #______________

Date___________________

Local Civil Registrar

Gubat, 4710 Sorsogon

Reg. mail #______________

Date___________________

14