Persons and Family Relations Cases

PERSONS REVIEW ASSIGNMENT No.
11 Page 1
G.R. No. 116668 July 28, 1997
ERLINDA A. AGAPAY, petitioner,
vs.
CARLINA (CORNELIA) V. PALANG and HERMINIA P. DELA
CRUZ, respondents.
Family Code; Husband and Wife; Cohabitation; Co-Ownership; Under Article 148
of the Family Code, only the properties acquired by both of the parties through their
actual joint contribution of money, property or industry shall be owned by them in
common in proportion to their respective contributions.The sale of the riceland on
May 17, 1973, was made in favor of Miguel and Erlinda. The provision of law
applicable here is Article 148 of the Family Code providing for cases of cohabitation
when a man and a woman who are not capacitated to marry each other live
exclusively with each other as husband and wife without the benefit of marriage or
under a void marriage. While Miguel and Erlinda contracted marriage on July 15,
1973, said union was patently void because the earlier marriage of Miguel and
Carlina was still subsisting and unaffected by the latters de facto separation. Under
Article 148, only the properties acquired by both of the parties through their actual
joint contribution of money, property or industry shall be owned by them in common
in proportion to their respective contributions. It must be stressed that actual
contribution is required by this provision, in contrast to Article 147 which states that
efforts in the care and maintenance of the family and household, are regarded as
contributions to the acquisition of common property by one who has no salary or
income or work or industry. If the actual contribution of the party is not proved, there
will be no co-ownership and no presumption of equal shares.
Same; Same; Same; Same; Considering the youthfulness of the woman, she being
only twenty years of age then, while the man she cohabited with was already sixtyfour and a pensioner of the U.S. Government, it is unrealistic to conclude that in
1973 she contributed P3,750.00 as her share in the purchase price of a parcel of land,
there being no proof of the same.In the case at bar, Erlinda tried to establish by her
testimony that she is engaged in the business of buy and sell and had a sari-sari store
but failed to persuade us that she actually contributed money to buy the subject
riceland. Worth noting is the fact that on the date of conveyance, May 17, 1973,
petitioner was only around twenty years of age and Miguel Palang was already sixtyfour and a pensioner of the U.S. Government. Considering her youthfulness, it is
unrealistic to conclude that in 1973 she contributed P3,750.00 as her share in the
purchase price of subject property, there being no proof of the same.
Same; Same; Same; Same; Where a woman who cohabited with a married man fails
to prove that she contributed money to the purchase price of a riceland, there is no
basis to justify her co-ownership over the samethe riceland should revert to the
conjugal partnership property of the man and his lawful wife.Since petitioner
failed to prove that she contributed money to the purchase price of the riceland in
Binalonan, Pangasinan, we find no basis to justify her co-ownership with Miguel
over the same. Consequently, the riceland should, as correctly held by the Court of
Appeals, revert to the conjugal partnership property of the deceased Miguel and
private respondent Carlina Palang.
Same; Same; Same; Separation of Property; Compromise Agreements; Separation of
property between spouses during the marriage shall not take place except by judicial
order or, without judicial conferment, when there is an express stipulation in the
marriage settlement; Where the judgment which resulted from the parties
compromise was not specifically and expressly for separation of property, the same
should not be so inferred as judicial confirmation of separation of property.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate
their conjugal property in favor of their daughter Herminia in 1975. The trial court
erred in holding that the decision adopting their compromise agreement in effect
partakes the nature of judicial confirmation of the separation of property between
spouses and the termination of the conjugal partnership. Separation of property
between spouses during the marriage shall not take place except by judicial order or
without judicial conferment when there is an express stipulation in the marriage
settlements. The judgment which resulted from the parties compromise was not
specifically and expressly for separation of property and should not be so inferred.
Same; Same; Same; Donations; The prohibition against donations between spouses
applies to donations between persons living together as husband and wife without a
valid marriage.With respect to the house and lot, Erlinda allegedly bought the
same for P20,000.00 on September 23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the deed of conveyance for the property
reveals the falsehood of this claim. Atty. Constantino Sagun testified that Miguel
Palang provided the money for the purchase price and directed that Erlindas name
alone be placed as the vendee. The transaction was properly a donation made by
Miguel to Erlinda, but one which was clearly void and inexistent by express
provision of law because it was made between persons guilty of adultery or
concubinage at the time of the donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly provides that the prohibition
against donations between spouses now applies to donations between persons living
together as husband and wife without a valid marriage, for otherwise, the condition
of those who incurred guilt would turn out to be better than those in legal union.
Same; Same; Same; Parent and Child; Illegitimate Children; Filiation; Succession;
Probate Proceedings; Questions as to who are the heirs of the decedent, proof of
filiation of illegitimate children and the determination of the estate of the latter and
PERSONS REVIEW ASSIGNMENT No. 11 Page 2

claims thereto should be ventilated in the proper probate court or in a special
proceeding instituted for the purpose and cannot be adjudicated in an ordinary civil
action for recovery of ownership and possession.The second issue concerning
Kristopher Palangs status and claim as an illegitimate son and heir to Miguels estate
is here resolved in favor of respondent courts correct assessment that the trial court
erred in making pronouncements regarding Kristophers heirship and filiation
inasmuch as questions as to who are the heirs of the decedent, proof of filiation of
illegitimate children and the determination of the estate of the latter and claims
thereto should be ventilated in the proper probate court or in a special proceeding
instituted for the purpose and cannot be adjudicated in the instant ordinary civil
action which is for recovery of ownership and possession.
Same; Same; Same; Same; Actions; Pleadings and Practice; Parties; Guardians; A
minor who has not been impleaded is not a party to the case and neither can his
mother be called guardian ad litem.As regards the third issue, petitioner contends
that Kristopher Palang should be considered as party-defendant in the case at bar
following the trial courts decision which expressly found that Kristopher had not
been impleaded as party defendant but theorized that he had submitted to the courts
jurisdiction through his mother/guardian ad litem. The trial court erred gravely.
Kristopher, not having been impleaded, was, therefore, not a party to the case at bar.
His mother, Erlinda, cannot be called his guardian ad litem for he was not involved
in the case at bar. Petitioner adds that there is no need for Kristopher to file another
action to prove that he is the illegitimate son of Miguel, in order to avoid multiplicity
of suits. Petitioners grave error has been discussed in the preceding paragraph where
the need for probate proceedings to resolve the settlement of Miguels estate and
Kristophers successional rights has been pointed out.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Simplicio M. Sevilleja for petitioner.
Ray L. Basbas and Fe Fernandez-Bautista for private respondents.
acquired during the cohabitation of petitioner and private respondent's legitimate

spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private
respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman
Catholic Church in Pangasinan. A few months after the wedding, in October 1949, he
left to work in Hawaii. Miguel and Carlina's only child, Herminia Palang, was born
on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and
during the entire duration of his year-long sojourn he stayed in Zambales with his
brother, not in Pangasinan with his wife and child. The trial court found evidence that
as early as 1957, Miguel had attempted to divorce Carlina in Hawaii. 1 When he
returned for good in 1972, he refused to live with private respondents, but stayed
alone in a house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second
marriage with nineteen-year-old Erlinda Agapay, herein petitioner. 2 Two months
earlier, on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale,
jointly purchased a parcel of agricultural land located at San Felipe, Binalonan,
Pangasinan with an area of 10,080 square meters. Consequently, Transfer Certificate
of Title No. 101736 covering said rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September 23,
1975, allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said
property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as a
form of compromise agreement to settle and end a case filed by the latter. 3 The
parties therein agreed to donate their conjugal property consisting of six parcels of
land to their only child, Herminia Palang. 4
Miguel and Erlinda's cohabitation produced a son, Kristopher A. Palang, born on
December 6, 1977. In 1979, Miguel and Erlinda were convicted of Concubinage
upon Carlina's complaint. 5 Two years later, on February 15, 1981, Miguel died.
[Agapay vs. Palang, 276 SCRA 340, G.R. No. 116668 July 28, 1997]
ROMERO, J.:
Before us is a petition for review of the decision of the Court of Appeals in CA-G.R.
CV No. 24199 entitled "Erlinda Agapay v. Carlina (Cornelia) Palang and Herminia P.
Dela Cruz" dated June 22, 1994 involving the ownership of two parcels of land
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz,
herein private respondents, instituted the case at bar, an action for recovery of
ownership and possession with damages against petitioner before the Regional Trial
Court in Urdaneta, Pangasinan (Civil Case No. U-4265). Private respondents sought
to get back the riceland and the house and lot both located at Binalonan, Pangasinan
allegedly purchased by Miguel during his cohabitation with petitioner.

Petitioner, as defendant below, contended that while the riceland covered by TCT
No. 101736 is registered in their names (Miguel and Erlinda), she had already given
her half of the property to their son Kristopher Palang. She added that the house and
lot covered by TCT No. 143120 is her sole property, having bought the same with
her own money. Erlinda added that Carlina is precluded from claiming aforesaid
properties since the latter had already donated their conjugal estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989
dismissing the complaint after declaring that there was little evidence to prove that
the subject properties pertained to the conjugal property of Carlina and Miguel
Palang. The lower court went on to provide for the intestate shares of the parties,
particularly of Kristopher Palang, Miguel's illegitimate son. The dispositive portion
of the decision reads.
WHEREFORE,
rendered
premises
considered,
judgment
is
hereby
On appeal, respondent court reversed the trial court's decision. The Court of Appeals
rendered its decision on July 22, 1994 with the following dispositive portion;
WHEREFORE, PREMISES CONSIDERED, the appealed decision in
hereby REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in
question to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer
Certificate of Title Nos. 143120 and 101736 and to issue in lieu thereof
another certificate of title in the name of plaintiffs-appellants.
No pronouncement as to costs. 7
1) Dismissing the complaint, with costs against plaintiffs;
Hence, this petition.
2) Confirming the ownership of defendant Erlinda Agapay of the residential

lot located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No.
143120, Lot 290-B including the old house standing therein;
Petitioner claims that the Court of Appeals erred in not sustaining the validity of two
deeds of absolute sale covering the riceland and the house and lot, the first in favor
of Miguel Palang and Erlinda Agapay and the second, in favor of Erlinda Agapay
alone. Second, petitioner contends that respondent appellate court erred in not
declaring Kristopher A. Palang as Miguel Palang's illegitimate son and thus entitled
to inherit from Miguel's estate. Third, respondent court erred, according to petitioner,
"in not finding that there is sufficient pleading and evidence that Kristopher A.
Palang or Christopher A. Palang should be considered as party-defendant in Civil
Case No. U-4625 before the trial court and in CA-G.R. No. 24199. 8
3) Confirming the ownership of one-half (1/2) portion of that piece of

agricultural land situated at Balisa, San Felipe, Binalonan, Pangasinan,
consisting of 10,080 square meters and as evidenced by TCT No. 101736,
Lot 1123-A to Erlinda Agapay;
4. Adjudicating to Kristopher Palang as his inheritance from his deceased
father, Miguel Palang, the one-half (1/2) of the agricultural land situated at
Balisa, San Felipe, Binalonan, Pangasinan, under TCT No. 101736 in the
name of Miguel Palang, provided that the former (Kristopher) executes,
within 15 days after this decision becomes final and executory, a quit-claim
forever renouncing any claims to annul/reduce the donation to Herminia
Palang de la Cruz of all conjugal properties of her parents, Miguel Palang
and Carlina Vallesterol Palang, dated October 30, 1975, otherwise, the
estate of deceased Miguel Palang will have to be settled in another separate
action;
5) No pronouncement as to damages and attorney's fees.
SO ORDERED. 6
After studying the merits of the instant case, as well as the pertinent provisions of
law and jurisprudence, the Court denies the petition and affirms the questioned
decision of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of property subject of
this action. Petitioner assails the validity of the deeds of conveyance over the same
parcels of land. There is no dispute that the transfer of ownership from the original
owners of the riceland and the house and lot, Corazon Ilomin and the spouses
Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda.
The provision of law applicable here is Article 148 of the Family Code providing for
cases of cohabitation when a man and a woman who are not capacitated to marry

each other live exclusively with each other as husband and wife without the benefit
of marriage or under a void marriage. While Miguel and Erlinda contracted marriage
on July 15, 1973, said union was patently void because the earlier marriage of
Miguel and Carlina was still subsisting and unaffected by the latter's de
facto separation.
Under Article 148, only the properties acquired by both of the parties through
their actual joint contribution of money, property or industry shall be owned by them
in common in proportion to their respective contributions. It must be stressed that
actual contribution is required by this provision, in contrast to Article 147 which
states that efforts in the care and maintenance of the family and household, are
regarded as contributions to the acquisition of common property by one who has no
salary or income or work or industry. If the actual contribution of the party is not
proved, there will be no co-ownership and no presumption of equal shares. 9
In the case at bar, Erlinda tried to establish by her testimony that she is engaged in
the business of buy and sell and had a sari-sari store 10 but failed to persuade us that
she actually contributed money to buy the subject riceland. Worth noting is the fact
that on the date of conveyance, May 17, 1973, petitioner was only around twenty
years of age and Miguel Palang was already sixty-four and a pensioner of the U.S.
Government. Considering her youthfulness, it is unrealistic to conclude that in 1973
she contributed P3,750.00 as her share in the purchase price of subject
property, 11 there being no proof of the same.
Petitioner now claims that the riceland was bought two months before Miguel and
Erlinda actually cohabited. In the nature of an afterthought, said added assertion was
intended to exclude their case from the operation of Article 148 of the Family Code.
Proof of the precise date when they commenced their adulterous cohabitation not
having been adduced, we cannot state definitively that the riceland was purchased
even before they started living together. In any case, even assuming that the subject
property was bought before cohabitation, the rules of co-ownership would still apply
and proof of actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price of
the riceland in Binalonan, Pangasinan, we find no basis to justify her co-ownership
with Miguel over the same. Consequently, the riceland should, as correctly held by
the Court of Appeals, revert to the conjugal partnership property of the deceased
Miguel and private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate
their conjugal property in favor of their daughter Herminia in 1975. The trial court
erred in holding that the decision adopting their compromise agreement "in effect
partakes the nature of judicial confirmation of the separation of property between

spouses and the termination of the conjugal partnership." 12 Separation of property
between spouses during the marriage shall not take place except by judicial order or
without judicial conferment when there is an express stipulation in the marriage
settlements. 13 The judgment which resulted from the parties' compromise was not
specifically and expressly for separation of property and should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00
on September 23, 1975 when she was only 22 years old. The testimony of the notary
public who prepared the deed of conveyance for the property reveals the falsehood of
this claim. Atty. Constantino Sagun testified that Miguel Palang provided the money
for the purchase price and directed that Erlinda's name alone be placed as the
vendee. 14
The transaction was properly a donation made by Miguel to Erlinda, but one which
was clearly void and inexistent by express provision of law because it was made
between persons guilty of adultery or concubinage at the time of the donation, under
Article 739 of the Civil Code. Moreover, Article 87 of the Family Code expressly
provides that the prohibition against donations between spouses now applies to
donations between persons living together as husband and wife without a valid
marriage, 15 for otherwise, the condition of those who incurred guilt would turn out to
be better than those in legal union. 16
The second issue concerning Kristopher Palang's status and claim as an illegitimate
son and heir to Miguel's estate is here resolved in favor of respondent court's correct
assessment that the trial court erred in making pronouncements regarding
Kristopher's heirship and filiation "inasmuch as questions as to who are the heirs of
the decedent, proof of filiation of illegitimate children and the determination of the
estate of the latter and claims thereto should be ventilated in the proper probate court
or in a special proceeding instituted for the purpose and cannot be adjudicated in the
instant ordinary civil action which is for recovery of ownership and possession." 17
As regards the third issue, petitioner contends that Kristopher Palang should be
considered as party-defendant in the case at bar following the trial court's decision
which expressly found that Kristopher had not been impleaded as party defendant but
theorized that he had submitted to the court's jurisdiction through his
mother/guardian ad litem. 18 The trial court erred gravely. Kristopher, not having been
impleaded, was, therefore, not a party to the case at bar. His mother, Erlinda cannot
be called his guardian ad litem for he was not involved in the case at bar. Petitioner
adds that there is no need for Kristopher to file another action to prove that he is
illegitimate son of Miguel, in order to avoid multiplicity of suits. 19 Petitioner's grave
error has been discussed in the preceding paragraph where the need for probate

proceedings to resolve the settlement of Miguel's estate and Kristopher's successional
rights has been pointed out.
WHEREFORE, the instant petition is hereby DENIED. The questioned decision of
the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
way of giving such child of tender age full protection.In a habeas corpus
proceeding involving the welfare and custody of a child of tender age, the paramount
concern is to resolve immediately the issue of who has legal custody of the child.
Technicalities should not stand in the way of giving such child of tender age full
protection. This rule has sound statutory basis in Article 213 of the Family Code,
which states, No child under seven years of age shall be separated from the mother
unless the court finds compelling reasons to order otherwise.
PETITION for review on certiorari of the resolutions of the Court of Appeals.
Agripino C. Baybay III for petitioner.
Bridie O. Castronuevo for respondent.
[Tribiana vs. Tribiana, 438 SCRA 216, G.R. No. 137359 September 13, 2004]
DECISION
G.R. No. 137359
September 13, 2004
EDWIN N. TRIBIANA, petitioner,

vs.
LOURDES M. TRIBIANA, respondent
Remedial Law; Dismissal of Actions; A dismissal under Section 1(j) of Rule 16 is
warranted only if there is a failure to comply with a condition precedent. Given that
the alleged defect is a mere failure to allege compliance with a condition precedent,
the proper solution is not an outright dismissal of the action, but an amendment
under Section 1 of Rule 10 of the 1997 Rules of Civil Procedure.A dismissal under
Section 1(j) of Rule 16 is warranted only if there is a failure to comply with a
condition precedent. Given that the alleged defect is a mere failure to allege
compliance with a condition precedent, the proper solution is not an outright
dismissal of the action, but an amendment under Section 1 of Rule 10 of the 1997
Rules of Civil Procedure. It would have been a different matter if Edwin had asserted
that no efforts to arrive at a compromise have been made at all.
Same; Habeas Corpus; In a habeas corpus proceeding involving the welfare and
custody of a child of tender age, the paramount concern is to resolve immediately the
issue of who has the legal custody of the child. Technicalities should not stand in the
CARPIO, J.:
The Case
This petition for review on certiorari 1 seeks to reverse the Court of Appeals
Resolutions2 dated 2 July 1998 and 18 January 1999 in CA-G.R. SP No. 48049. The
Court of Appeals affirmed the Order3 of the Regional Trial Court, Branch 19, Bacoor,
Cavite ("RTC"), denying petitioner Edwin N. Tribianas ("Edwin") motion to dismiss
the petition for habeas corpus filed against him by respondent Lourdes Tribiana
("Lourdes").
Antecedent Facts
Edwin and Lourdes are husband and wife who have lived together since 1996 but
formalized their union only on 28 October 1997. On 30 April 1998, Lourdes filed a
petition for habeas corpus before the RTC claiming that Edwin left their conjugal
home with their daughter, Khriza Mae Tribiana ("Khriza"). Edwin has since deprived
Lourdes of lawful custody of Khriza who was then only one (1) year and four (4)
months of age. Later, it turned out that Khriza was being held by Edwins mother,
Rosalina Tribiana ("Rosalina"). Edwin moved to dismiss Lourdes petition on the
ground that the petition failed to allege that earnest efforts at a compromise were
made before its filing as required by Article 151 of the Family Code.

On 20 May 1998, Lourdes filed her opposition to Edwins motion to dismiss
claiming that there were prior efforts at a compromise, which failed. Lourdes
attached to her opposition a copy of the Certification to File Action from their
Barangay dated 1 May 1998.
On 18 May 1998, the RTC denied Edwins motion to dismiss and reiterated a
previous order requiring Edwin and his mother, Rosalina to bring Khriza before the
RTC. Upon denial of his motion for reconsideration, Edwin filed with the Court of
Appeals a petition for prohibition and certiorari under Rule 65 of the Rules of Civil
Procedure. The appellate court denied Edwins petition on 2 July 1998. The appellate
court also denied Edwins motion for reconsideration.
Hence, this petition.
The Rulings of the RTC and the Court of Appeals
The RTC denied Edwins motion to dismiss on the ground that the Certification to
File Action attached by Lourdes to her opposition clearly indicates that the parties
attempted to reach a compromise but failed.
The Court of Appeals upheld the ruling of the RTC and added that under Section 412
(b) (2) of the Local Government Code, conciliation proceedings before the barangay
are not required in petitions for habeas corpus.
The Issue
Edwin seeks a reversal and raises the following issue for resolution:
WHETHER THE TRIAL AND APPELLATE COURTS SHOULD HAVE
DISMISSED THE PETITION FOR HABEAS CORPUS ON THE
GROUND OF FAILURE TO COMPLY WITH THE CONDITION
PRECEDENT UNDER ARTICLE 151 OF THE FAMILY CODE.
The Ruling of the Court
The petition lacks merit.
Edwin argues that Lourdes failure to indicate in her petition for habeas corpus that
the parties exerted prior efforts to reach a compromise and that such efforts failed is a
ground for the petitions dismissal under Section 1(j), Rule 16 of the 1997 Rules of
Civil Procedure.4 Edwin maintains that under Article 151 of the Family Code, an
earnest effort to reach a compromise is an indispensable condition precedent. Article

151 provides:
No suit between members of the same family shall prosper unless it should
appear from the verified complaint or petition that earnest efforts toward a
compromise have been made, but that the same have failed. If it is shown
that no such efforts were in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the subject of compromise under
the Civil Code.
Edwins arguments do not persuade us.
It is true that the petition for habeas corpus filed by Lourdes failed to allege that she
resorted to compromise proceedings before filing the petition. However, in her
opposition to Edwins motion to dismiss, Lourdes attached a Barangay Certification
to File Action dated 1 May 1998. Edwin does not dispute the authenticity of the
Barangay Certification and its contents. This effectively established that the parties
tried to compromise but were unsuccessful in their efforts. However, Edwin would
have the petition dismissed despite the existence of the Barangay Certification,
which he does not even dispute.
Evidently, Lourdes has complied with the condition precedent under Article 151 of
the Family Code. A dismissal under Section 1(j) of Rule 16 is warranted only if there
is a failure to comply with a condition precedent. Given that the alleged defect is a
mere failure to allege compliance with a condition precedent, the proper solution is
not an outright dismissal of the action, but an amendment under Section 1 of Rule 10
of the 1997 Rules of Civil Procedure. 5 It would have been a different matter if Edwin
had asserted that no efforts to arrive at a compromise have been made at all.
In addition, the failure of a party to comply with a condition precedent is not a
jurisdictional defect.6 Such defect does not place the controversy beyond the courts
power to resolve. If a party fails to raise such defect in a motion to dismiss, such
defect is deemed waived.7 Such defect is curable by amendment as a matter of right
without leave of court, if made before the filing of a responsive pleading. 8 A motion
to dismiss is not a responsive pleading. 9 More importantly, an amendment alleging
compliance with a condition precedent is not a jurisdictional matter. Neither does it
alter the cause of action of a petition for habeas corpus. We have held that in cases
where the defect consists of the failure to state compliance with a condition
precedent, the trial court should order the amendment of the complaint. 10 Courts
should be liberal in allowing amendments to pleadings to avoid multiplicity of suits
and to present the real controversies between the parties.11

Moreover, in a habeas corpus proceeding involving the welfare and custody of a
child of tender age, the paramount concern is to resolve immediately the issue of
who has legal custody of the child. Technicalities should not stand in the way of
giving such child of tender age full protection.12 This rule has sound statutory basis in
Article 213 of the Family Code, which states, "No child under seven years of age
shall be separated from the mother unless the court finds compelling reasons to order
otherwise." In this case, the child (Khriza) was only one year and four months when
taken away from the mother.
The Court of Appeals dismissed Edwins contentions by citing as an additional
ground the exception in Section 412 (b) (2) of the Local Government Code ("LGC")
on barangay conciliation, which states:
(b) Where the parties may go directly to court. the parties may go directly
to court in the following instances:
xxx
2) Where a person has otherwise been deprived of personal liberty
calling for habeas corpusproceedings;
xxx.
Under Rule 102 of the 1997 Rules of Civil Procedure, a party may resort to
a habeas corpus proceeding in two instances. The first is when any person
is deprived of liberty either through illegal confinement or through
detention. The second instance is when custody of any person is withheld
from the person entitled to such custody. The most common case falling
under the second instance involves children who are taken away from a
parent by another parent or by a relative. The case filed by Lourdes falls
under this category.
The barangay conciliation requirement in Section 412 of the LGC does not apply
to habeas corpus proceedings where a person is "deprived of personal liberty." In
such a case, Section 412 expressly authorizes the parties "to go directly to court"
without need of any conciliation proceedings. There is deprivation of personal liberty
warranting a petition for habeas corpus where the "rightful custody of any person is
withheld from the person entitled thereto."13 Thus, the Court of Appeals did not err
when it dismissed Edwins contentions on the additional ground that Section 412
exempts petitions for habeas corpus from the barangay conciliation requirement.
The petition for certiorari filed by Edwin questioning the RTCs denial of his motion
to dismiss merely states a blanket allegation of "grave abuse of discretion." An order
denying a motion to dismiss is interlocutory and is not a proper subject of a petition
for certiorari.14 Even in the face of an error of judgment on the part of a judge
denying the motion to dismiss, certiorari will not lie. Certiorari is not a remedy to
correct errors of procedure.15 The proper remedy against an order denying a motion
to dismiss is to file an answer and interpose as affirmative defenses the objections
raised in the motion to dismiss. It is only in the presence of extraordinary
circumstances evincing a patent disregard of justice and fair play where resort to a
petition for certiorari is proper.16
The litigation of substantive issues must not rest on a prolonged contest on
technicalities. This is precisely what has happened in this case. The circumstances
are devoid of any hint of the slightest abuse of discretion by the RTC or the Court of
Appeals. A party must not be allowed to delay litigation by the sheer expediency of
filing a petition for certiorari under Rule 65 based on scant allegations of grave
abuse. More importantly, any matter involving the custody of a child of tender age
deserves immediate resolution to protect the childs welfare.
WHEREFORE, we DISMISS the instant petition for lack of merit.
We AFFIRM the Resolutions of the Court of Appeals dated 2 July 1998 and 18
January 1999 in CA-G.R. SP No. 48049. The Regional Trial Court, Branch 19,
Bacoor, Cavite is ordered to act with dispatch in resolving the petition for habeas
corpus pending before it. This decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Davide, Jr., Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

vs.
HON. COURT OF APPEALS, HON. REGIONAL TRIAL COURT OF
MANILA (BRANCH 35), PURITA S. JAYME, MILAGROS M. TERRE,
BELEN M. ORILLANO, ROSALINA M. ACUIN, ROMEO S. MANALO,
ROBERTO S. MANALO, AMALIA MANALO and IMELDA
MANALO, respondents.
Pleadings and Practice; Estate Proceedings; Probate Courts; It is a fundamental rule
that, in the determination of the nature of an action or proceeding, the averments and
the character of the relief sought in the complaint, or petition, shall be controlling;
The fact of death of the decedent and of his residence within the country are
foundation facts upon which all the subsequent proceedings in the administration of
the estate rest.It is a fundamental rule that, in the determination of the nature of an
action or proceeding, the averments and the character of the relief sought in the
complaint, or petition, as in the case at bar, shall be controlling. A careful scrutiny of
the Petition for Issuance of Letters of Administration, Settlement and Distribution of
Estate in SP. PROC. No. 92-63626 belies herein petitioners claim that the same is in
the nature of an ordinary civil action. The said petition contains sufficient
jurisdictional facts required in a petition for the settlement of estate of a deceased
person such as the fact of death of the late Troadio Manalo on February 14, 1992, as
well as his residence in the City of Manila at the time of his said death. The fact of
death of the decedent and of his residence within the country are foundation facts
upon which all the subsequent proceedings in the administration of the estate rest.
The petition in SP. PROC. No. 92-63626 also contains an enumeration of the names
of his legal heirs including a tentative list of the properties left by the deceased which
are sought to be settled in the probate proceedings. In addition, the reliefs prayed for
in the said petition leave no room for doubt as regard the intention of the petitioners
therein (private respondents herein) to seek judicial settlement of the estate of their
deceased father, Troadio Manalo.
G.R. NO. 129242
January 16, 2001
PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S.

MANALO, and ISABELITA MANALO ,petitioners,
Same; Same; Same; A party may not be allowed to defeat the purpose of an
essentially valid petition for the settlement of the estate of a decedent by raising
matters that are irrelevant and immaterial to the said petition; A trial court, sitting as
a probate court, has limited and special jurisdiction and cannot hear and dispose of
collateral matters and issues which may be properly threshed out only in an ordinary
civil action.It is our view that herein petitioners may not be allowed to defeat the
purpose of the essentially valid petition for the settlement of the estate of the late
Troadio Manalo by raising matters that are irrelevant and immaterial to the said
petition. It must be emphasized that the trial court, sitting as a probate court, has
limited and special jurisdiction and cannot hear and dispose of collateral matters and
issues which may be properly threshed out only in an ordinary civil action. In
addition, the rule has always been to the effect that the jurisdiction of a court, as well
as the concomitant nature of an action, is determined by the averments in the

complaint and not by the defenses contained in the answer. If it were otherwise, it
would not be too difficult to have a case either thrown out of court or its proceedings
unduly delayed by simple strategem. So it should be in the instant petition for
settlement of estate.
Same; Same; Same; Motion to Dismiss; A party may not take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify an invocation of
Article 222 of the Civil Code for the dismissal of a petition for settlement of estate.
The argument is misplaced. Herein petitioners may not validly take refuge under
the provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of
Article 222 of the Civil Code of the Philippines for the dismissal of the petition for
settlement of the estate of the deceased Troadio Manalo inasmuch as the latter
provision is clear enough, to wit: Art. 222. No suit shall be filed or maintained
between members of the same family unless it should appear that earnest efforts
toward a compromise have been made, but that the same have failed, subject to the
limitations in Article 2035.
Same; Same; Article 222 of the Civil Code applies only to civil actions which are
essentially adversarial and involve members of the same family.The above-quoted
provision of the law is applicable only to ordinary civil actions. This is clear from the
term suit that it refers to an action by one person or persons against another or
others in a court of justice in which the plaintiff pursues the remedy which the law
affords him for the redress of an injury or the enforcement of a right, whether at law
or in equity. A civil action is thus an action filed in a court of justice, whereby a party
sues another for the enforcement of a right, or the prevention or redress of a wrong.
Besides, an excerpt from the Report of the Code Commission unmistakably reveals
the intention of the Code Commission to make that legal provision applicable only to
civil actions which are essentially adversarial and involve members of the same
family, thus: It is difficult to imagine a sadder and more tragic spectacle than a
litigation between members of the same family. It is necessary that every effort
should be made toward a compromise before a litigation is allowed to breed hate and
passion in the family. It is known that lawsuit between close relatives generates
deeper bitterness than strangers.
Same; Same; Special Proceedings; A petition for issuance of letters of administration,
settlement and distribution of estate is a special proceeding and, as such, it is a
remedy whereby the petitioner therein seek to establish a status, a right, or a
particular fact.It must be emphasized that the oppositors (herein petitioners) are
not being sued in SP. PROC. No. 92-63626 for any cause of action as in fact no
defendant was impleaded therein. The Petition for Issuance of Letters of
Administration, Settlement and Distribution of Estate in SP. PROC. No. 92-63626 is
a special proceeding and, as such, it is a remedy whereby the petitioners therein seek
to establish a status, a right, or a particular fact. The petitioners therein (private
respondents herein) merely seek to establish the fact of death of their father and
subsequently to be duly recognized as among the heirs of the said deceased so that
they can validly exercise their right to participate in the settlement and liquidation of
the estate of the decedent consistent with the limited and special jurisdiction of the
probate court.

Caneba, Flores, Ranee, Acuesta and Masigla Law Firm for petitioners.
Ricardo E. Aragones for respondents.
[Vda. de Manalo vs. Court of Appeals, 349 SCRA 135, G.R. No. 129242 January
16, 2001]
DE LEON, JR., J.:
This is a petition for review on certiorari filed by petitioners Pilar S. Vda De Manalo,
et. Al., seeking to annul the Resolution 1 of the Court of Appeals 2 affirming the
Orders 3 of the Regional Trial Court and the Resolution 4which denied petitioner'
motion for reconsideration.
The antecedent facts 5 are as follows:
Troadio Manalo, a resident of 1996 Maria Clara Street, Sampaloc, Manila died
intestate on February 14, 1992. He was survived by his wife, Pilar S. Manalo, and his
eleven (11) children, namely: Purita M. Jayme, Antonio Manalo, Milagros M. Terre,
Belen M. Orillano, Isabelita Manalo, Rosalina M. Acuin, Romeo Manalo, Roberto
Manalo, Amalia Manalo, Orlando Manalo and Imelda Manalo, who are all of legal
age.1wphi1.nt
At the time of his death on February 14, 1992, Troadio Manalo left several real
properties located in Manila and in the province of Tarlac including a business under
the name and style Manalo's Machine Shop with offices at No. 19 Calavite Street, La
Loma, Quezon City and at NO. 45 General Tinio Street, Arty Subdivision,
Valenzuela, Metro Manila.

On November 26, 1992, herein respondents, who are eight (8) of the surviving
children of the late Troadio Manalo, namely; Purita, Milagros, Belen Rocalina,
Romeo, Roberto, Amalia, and Imelda filed a petition 6 with the respondent Regional
Trial Court of Manila 7 of the judicial settlement of the estate of their late father,
Troadio Manalo, and for the appointment of their brother, Romeo Manalo, as
administrator thereof.
D. To deny the motion of the oppositors for the inhibition of this Presiding
Judge;
On December 15, 1992, the trial court issued an order setting the said petition for
hearing on February 11, 1993 and directing the publication of the order for three (3)
consecutive weeks in a newspaper of general circulation in Metro Manila, and
further directing service by registered mail of the said order upon the heirs named in
the petition at their respective addresses mentioned therein.
Herein petitioners filed a petition for certiorari under Rule 65 of the Rules of Court
with the Court of Appeals, docketed as CA-G.R. SP. No. 39851, after the trial court
in its Order 10 dated September 15, 1993. In their petition for improperly laid in SP.
PROC. No. 92-63626; (2) the trial court did not acquire jurisdiction over their
persons; (3) the share of the surviving spouse was included in the intestate
proceedings; (4) there was absence of earnest efforts toward compromise among
members of the same family; and (5) no certification of non-forum shopping was
attached to the petition.
On February 11, 1993, the date set for hearing of the petition, the trial court issued an
order 'declaring the whole world in default, except the government," and set the
reception of evidence of the petitioners therein on March 16, 1993. However, the trial
court upon motion of set this order of general default aside herein petitioners
(oppositors therein) namely: Pilar S. Vda. De Manalo, Antonio, Isabelita and Orlando
who were granted then (10) days within which to file their opposition to the petition.
E. To set the application of Romeo Manalo for appointment as regular

administrator in the intestate estate of the deceased Troadio Manalo for
hearing on September 9, 1993 at 2:00 o'clock in the afternoon.
Finding the contentions untenable, the Court of Appeals dismissed the petition for
certiorari in its Resolution11promulgated on September 30, 1996. On May 6, 1997 the
motion for reconsideration of the said resolution was likewise dismissed.12
Several pleadings were subsequently filed by herein petitioners, through counsel,

culminating in the filling of an Omnibus Motion 8 on July 23, 1993 seeking; (1) to
seat aside and reconsider the Order of the trial court dated July 9, 1993 which denied
the motion for additional extension of time file opposition; (2) to set for preliminary
hearing their affirmative defenses as grounds for dismissal of the case; (3) to declare
that the trial court did not acquire jurisdiction over the persons of the oppositors; and
(4) for the immediate inhibition of the presiding judge.
The only issue raised by herein petitioners in the instant petition for review is
whether or not the respondent Court of Appeals erred in upholding the questioned
orders of the respondent trial court which denied their motion for the outright
dismissal of the petition for judicial settlement of estate despite the failure of the
petitioners therein to aver that earnest efforts toward a compromise involving
members of the same family have been made prior to the filling of the petition but
that the same have failed.
On July 30, 1993, the trial court issued an order9 which resolved, thus:
Herein petitioners claim that the petition in SP. PROC. No. 92-63626 is actually an
ordinary civil action involving members of the same family. They point out that it
contains certain averments, which, according to them, are indicative of its adversarial
nature, to wit:
A. To admit the so-called Opposition filed by counsel for the oppositors on

July 20, 1993, only for the purpose of considering the merits thereof;
B. To deny the prayer of the oppositors for a preliminary hearing of their
affirmative defenses as ground for the dismissal of this proceeding, said
affirmative defenses being irrelevant and immaterial to the purpose and
issue of the present proceeding;
C. To declare that this court has acquired jurisdiction over the persons of the
oppositors;
Par. 7. One of the surviving sons, ANTONIO MANALO, since the death of
his father, TROADIO MANALO, had not made any settlement, judicial or
extra-judicial of the properties of the deceased father TROADIO
MANALO.

Par. 8. xxx the said surviving son continued to manage and control the
properties aforementioned, without proper accounting, to his own benefit
and advantage xxx.
X
the probate proceedings. In addition, the relief's prayed for in the said petition leave
no room for doubt as regard the intention of the petitioners therein (private
respondents herein) to seek judicial settlement of the estate of their deceased father,
Troadio Manalo, to wit;
X
PRAYER
Par. 12. That said ANTONIO MANALO is managing and controlling the
estate of the deceased TROADIO MANALO to his own advantage and to
the damage and prejudice of the herein petitioners and their co-heirs xxx.
X
Par. 14. For the protection of their rights and interests, petitioners were
compelled to bring this suit and were forced to litigate and incur expenses
and will continue to incur expenses of not less than, P250,000.00 and
engaged the services of herein counsel committing to pay P200,000.00 as
and attorney's fees plus honorarium of P2,500.00 per appearance in court
xxx.13
Consequently, according to herein petitioners, the same should be dismissed under
Rule 16, Section 1(j) of the Revised Rules of Court which provides that a motion to
dismiss a complaint may be filed on the ground that a condition precedent for filling
the claim has not been complied with, that is, that the petitioners therein failed to
aver in the petition in SP. PROC. No. 92-63626, that earnest efforts toward a
compromise have been made involving members of the same family prior to the
filling of the petition pursuant to Article 222 14 of the Civil Code of the Philippines.
The instant petition is not impressed with merit.
It is a fundamental rule that in the determination of the nature of an action or
proceeding, the averments15 and the character of the relief sought 16 in the complaint,
or petition, as in the case at bar, shall be controlling. A careful srutiny of the Petition
for Issuance of Letters of Administration, Settlement and Distribution of Estatein SP.
PROC. No. 92-63626 belies herein petitioners' claim that the same is in the nature of
an ordinary civil action. The said petition contains sufficient jurisdictional facts
required in a petition for the settlement of estate of a deceased person such as the fat
of death of the late Troadio Manalo on February 14, 1992, as well as his residence in
the City of Manila at the time of his said death. The fact of death of the decedent and
of his residence within he country are foundation facts upon which all the subsequent
proceedings in the administration of the estate rest. 17The petition is SP.PROC No. 9263626 also contains an enumeration of the names of his legal heirs including a
tentative list of the properties left by the deceased which are sought to be settled in
WHEREFORE, premises considered, it is respectfully prayed for of this Honorable

Court:
a. That after due hearing, letters of administration be issued to petitioner
ROMEO MANALO for the administration of the estate of the deceased
TROADIO MANALO upon the giving of a bond in such reasonable sum
that this Honorable Court may fix.
b. That after all the properties of the deceased TROADIO MANALO have
been inventoried and expenses and just debts, if any, have been paid and the
legal heirs of the deceased fully determined, that the said estate of
TROADIO MANALO be settled and distributed among the legal heirs all in
accordance with law.
c. That the litigation expenses of these proceedings in the amount of
P250,000.00 and attorney's fees in the amount of P300,000.00 plus
honorarium of P2,500.00 per appearance in court in the hearing and trial of
this case and costs of suit be taxed solely against ANTONIO MANALO. 18
Concededly, the petition in SP. PROC. No. 92-63626 contains certain averments
which may be typical of an ordinary civil action. Herein petitioners, as oppositors
therein, took advantage of the said defect in the petition and filed their so-called
Opposition thereto which, as observed by the trial court, is actually an Answer
containing admissions and denials, special and affirmative defenses and compulsory
counterclaims for actual, moral and exemplary damages, plus attorney's fees and
costs 19 in an apparent effort to make out a case of an ordinary civil action and
ultimately seek its dismissal under Rule 16, Section 1(j) of the Rules of Court vis-vis, Article 222 of civil of the Civil Code.
It is our view that herein petitioners may not be allowed to defeat the purpose of the
essentially valid petition for the settlement of the estate of the late Troadio Manalo
by raising matters that as irrelevant and immaterial to the said petition. It must be
emphasized that the trial court, siting as a probate court, has limited and special
jurisdiction 20 and cannot hear and dispose of collateral matters and issues which may
be properly threshed out only in an ordinary civil action. In addition, the rule has

always been to the effect that the jurisdiction of a court, as well as the concomitant
nature of an action, is determined by the averments in the complaint and not by the
defenses contained in the answer. If it were otherwise, it would not be too difficult to
have a case either thrown out of court or its proceedings unduly delayed by simple
strategem.21 So it should be in the instant petition for settlement of estate.
Herein petitioners argue that even if the petition in SP. PROC. No. 92-63626 were to
be considered as a special proceeding for the settlement of estate of a deceased
person, Rule 16, Section 1(j) of the Rules of Court vis--visArticle 222 of the Civil
Code of the Philippines would nevertheless apply as a ground for the dismissal of the
same by virtue of ule 1, Section 2 of the Rules of Court which provides that the 'rules
shall be liberally construed in order to promote their object and to assist the parties in
obtaining just, speedy and inexpensive determination of every action and
proceedings.' Petitioners contend that the term "proceeding" is so broad that it must
necessarily include special proceedings.
The argument is misplaced. Herein petitioners may not validly take refuge under the
provisions of Rule 1, Section 2, of the Rules of Court to justify the invocation of
Article 222 of the Civil Code of the Philippines for the dismissal of the petition for
settlement of the estate of the deceased Troadio Manalo inasmuch as the latter
provision is clear enough. To wit:
hate and passion in the family. It is know that lawsuit between close
relatives generates deeper bitterness than stranger.25
It must be emphasized that the oppositors (herein petitioners) are not being sued in
SP. PROC. No. 92-63626 for any cause of action as in fact no defendant was
imploded therein. The Petition for issuance of letters of Administration, Settlement
and Distribution of Estate in SP. PROC. No. 92-63626 is a special proceeding and, as
such, it is a remedy whereby the petitioners therein seek to establish a status, a right,
or a particular fact. 26 the petitioners therein (private respondents herein) merely seek
to establish the fat of death of their father and subsequently to be duly recognized as
among the heirs of the said deceased so that they can validly exercise their right to
participate in the settlement and liquidation of the estate of the decedent consistent
with the limited and special jurisdiction of the probate court.1wphi1.nt
WHEREFORE, the petition in the above-entitled case, is DENIED for lack of merit,
Costs against petitioners.
SO ORDERED.
Art. 222. No suit shall be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a compromise have been made, but
that the same have failed, subject to the limitations in Article 2035(underscoring
supplied).22
The above-quoted provision of the law is applicable only to ordinary civil actions.
This is clear from the term 'suit' that it refers to an action by one person or persons
against another or other in a court of justice in which the plaintiff pursues the remedy
which the law affords him for the redress of an injury or the enforcement of a right,
whether at law or in equity. 23 A civil action is thus an action filed in a court of
justice, whereby a party sues another for the enforcement of a right, or the prevention
or redress of a wrong.24 Besides, an excerpt form the Report of the Code Commission
unmistakably reveals the intention of the Code Commission to make that legal
provision applicable only to civil actions which are essentially adversarial and
involve members of the same family, thus:
It is difficult to imagine a sadder and more tragic spectacle than a litigation
between members of the same family. It is necessary that every effort
should be made toward a compromise before litigation is allowed to breed
G.R. No. L-28394 November 26, 1970

PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendants-appellees.
German M. Lopez for plaintiff-appellant.
Pedro R. Davila for defendants-appellees.

Civil Law; Succession; Acquisition of Ownership; Legitime; Widow's Interest.As
a widow, she is one of her deceased husband's compulsory heirs [Art. 887(3), Civil
Code] and has, accordingly, an interest in the property in question.
Same; Same; Suit against heirs.Inasmuch as succession takes place by operation of
law, "from the moment of the death of the decedent" (Arts. 774 and 777, Civil Code)
and "the inheritance includes all the property, rights and obligations of a person
which are not extinguished by his death," (Art. 776, Civil Code) it follows that if his
heirs were included as defendants, they would be sued, not as "representatives" of the
decedent, but as owners of an aliquot interest in the property in question, even if the
precise extent of their interest may still be undetermined and they have derived it
from the decedent. Hence, they may be sued without a previous declaration of
heirship, provided there is no pending special proceeding for the settlement of the
estate of the decedent.
Same; Same; Family Relations; Suit between members of the same family, defined.
It is noteworthy that the impediment arising from the provision of Art. 222 of the
Civil Code applies to suits "filed or maintained between members of the same
family." This phrase, "members of the same family," should, however, be construed
in the light of Article 217 of the same Code.
Same; Same; Same; Suit against sister-in-law, nephews and nieces.Inasmuch as a
sister-in-law, nephew or niece is not included in the enumeration contained in Article
217, Civil Code, which should be construed strictly, it being an exception to the
general rule, it follows that the same does not come within the purview of Art. 222,
and plaintiff's failure to seek a compromise before filing the complaint does not bar
the same.
APPEAL from an order of the Court of First Instance of Iloilo. Rovira, J.
[Gayon vs. Gayon, 36 SCRA 104, No. L-28394 November 26, 1970]
CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of First Instance
of Iloilo dismissing his complaint in Civil Case No. 7334 thereof.
The records show that on July 31, 1967, Pedro Gayon filed said complaint against
the spouses Silvestre Gayon and Genoveva de Gayon, alleging substantially that, on
October 1, 1952, said spouses executed a deed copy of which was attached to the
complaint, as Annex "A" whereby they sold to Pedro Gelera, for the sum of
P500.00, a parcel of unregistered land therein described, and located in the barrio of
Cabubugan, municipality of Guimbal, province of Iloilo, including the improvements
thereon, subject to redemption within five (5) years or not later than October 1, 1957;
that said right of redemption had not been exercised by Silvestre Gayon, Genoveva
de Gayon, or any of their heirs or successors, despite the expiration of the period
therefor; that said Pedro Gelera and his wife Estelita Damaso had, by virtue of a deed
of sale copy of which was attached to the complaint, as Annex "B" dated
March 21, 1961, sold the aforementioned land to plaintiff Pedro Gayon for the sum
of P614.00; that plaintiff had, since 1961, introduced thereon improvements worth
P1,000; that he had, moreover, fully paid the taxes on said property up to 1967; and
that Articles 1606 and 1616 of our Civil Code require a judicial decree for the
consolidation of the title in and to a land acquired through a conditional sale, and,
accordingly, praying that an order be issued in plaintiff's favor for the consolidation
of ownership in and to the aforementioned property.
In her answer to the complaint, Mrs. Gayon alleged that her husband, Silvestre
Gayon, died on January 6, 1954, long before the institution of this case; that Annex
"A" to the complaint is fictitious, for the signature thereon purporting to be her
signature is not hers; that neither she nor her deceased husband had ever executed
"any document of whatever nature in plaintiff's favor"; that the complaint is
malicious and had embarrassed her and her children; that the heirs of Silvestre
Gayon had to "employ the services of counsel for a fee of P500.00 and incurred
expenses of at least P200.00"; and that being a brother of the deceased Silvestre
Gayon, plaintiff "did not exert efforts for the amicable settlement of the case" before
filing his complaint. She prayed, therefore, that the same be dismissed and that
plaintiff be sentenced to pay damages.
Soon later, she filed a motion to dismiss, reproducing substantially the averments
made in her answer and stressing that, in view of the death of Silvestre Gayon, there
is a "necessity of amending the complaint to suit the genuine facts on record."
Presently, or on September 16, 1967, the lower court issued the order appealed from,
reading:
Considering the motion to dismiss and it appearing from Exhibit
"A" annexed to the complaint that Silvestre Gayon is the absolute
owner of the land in question, and considering the fact that
Silvestre Gayon is now dead and his wife Genoveva de Gayon has
nothing to do with the land subject of plaintiff's complaint, as
prayed for, this case is hereby dismissed, without pronouncement
as to costs.1

A reconsideration of this order having been denied, plaintiff interposed the present
appeal, which is well taken.
Said order is manifestly erroneous and must be set aside. To begin with, it is not true
that Mrs. Gayon "has nothing to do with the land subject of plaintiff's complaint." As
the widow of Silvestre Gayon, she is one of his compulsory heirs 2and has,
accordingly, an interest in the property in question. Moreover, her own motion to
dismiss indicated merely "a necessity of amending the complaint," to the end that the
other successors in interest of Silvestre Gayon, instead of the latter, be made parties
in this case. In her opposition to the aforesaid motion for reconsideration of the
plaintiff, Mrs. Gayon alleged, inter alia, that the "heirs cannot represent the dead
defendant, unless there is a declaration of heirship." Inasmuch, however, as
succession takes place, by operation of law, "from the moment of the death of the
decedent" 3and "(t)he inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death," 4it follows that if his heirs were
included as defendants in this case, they would be sued, not as "representatives" of
the decedent, but as owners of an aliquot interest in the property in question, even if
the precise extent of their interest may still be undetermined and they have derived it
from the decent. Hence, they may be sued without a previous declaration of heirship,
provided there is no pending special proceeding for the settlement of the estate of the
decedent. 5
As regards plaintiff's failure to seek a compromise, as an alleged obstacle to the
present case, Art. 222 of our Civil Code provides:
No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a
compromise have been made, but that the same have failed, subject
to the limitations in article 2035.
It is noteworthy that the impediment arising from this provision applies to suits "filed
or maintained between members of the same family." This phrase, "members of the
same family," should, however, be construed in the light of Art. 217 of the same
Code, pursuant to which:
Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.

Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his nephews and/or
nieces. Inasmuch as none of them is included in the enumeration contained in said
Art. 217 which should be construed strictly, it being an exception to the general
rule and Silvestre Gayon must necessarily be excluded as party in the case at bar,
it follows that the same does not come within the purview of Art. 222, and plaintiff's
failure to seek a compromise before filing the complaint does not bar the same.
WHEREFORE, the order appealed from is hereby set aside and the case remanded to
the lower court for the inclusion, as defendant or defendants therein, of the
administrator or executor of the estate of Silvestre Gayon, if any, in lieu of the
decedent, or, in the absence of such administrator or executor, of the heirs of the
deceased Silvestre Gayon, and for further proceedings, not inconsistent with this
decision, with the costs of this instance against defendant-appellee, Genoveva de
Gayon. It is so ordered.
G.R. No. 97898 August 11, 1997

FLORANTE F. MANACOP, petitioner,
vs.
COURT OF APPEALS and E & L MERCANTILE, INC., respondents.
Family Code; Family Home; A final and executory decision promulgated and a writ
of execution issued before the effectivity of the Family Code can be executed on a
house and lot constituted as a family home under the provisions of the said Code.
Petitioner contends that the trial court erred in holding that his residence was not
exempt from execution in view of his failure to show that the property involved has
been duly constituted as a family home in accordance with law. He asserts that the
Family Code and Modequillo require simply the occupancy of the property by the
petitioner, without need for its judicial or extrajudicial constitution as a family home.
Petitioner is only partly correct. True, under the Family Code which took effect on
August 3, 1988, the subject property became his family home under the simplified
process embodied in Article 153 of said Code. However, Modequillo explicitly ruled
that said provision of the Family Code does not have retroactive effect. In other
words, prior to August 3, 1988, the procedure mandated by the Civil Code had to be
followed for a family home to be constituted as such. There being absolutely no
proof that the subject property was judicially or extrajudicially constituted as a
family home, it follows that the laws protective mantle cannot be availed of by
petitioner. Since the debt involved herein was incurred and the assailed orders of the
trial court issued prior to August 3, 1988, the petitioner cannot be shielded by the
benevolent provisions of the Family Code.
Same; Same; Words and Phrases; The occupancy of the family home either by the
owner thereof or by any of its beneficiaries must be actual, and that which is
actual is something real, or actually existing, as opposed to something merely
possible, or to something which is presumptive or constructive.In view of the
foregoing discussion, there is no reason to address the other arguments of petitioner
other than to correct his misconception of the law. Petitioner contends that he should
be deemed residing in the family home because his stay in the United States is
merely temporary. He asserts that the person staying in the house is his overseer and
that whenever his wife visited this country, she stayed in the family home. This
contention lacks merit. The law explicitly provides that occupancy of the family
home either by the owner thereof or by any of its beneficiaries must be actual. That
which is actual is something real, or actually existing, as opposed to something
merely possible, or to something which is presumptive or constructive.
Same; Same; Same; Beneficiaries, Explained; Maids and overseers are not the
beneficiaries contemplated by Art. 154 of the Family Codeoccu pancy of a family
home by an overseer is insufficient compliance with the law.Actual occupancy,
however, need not be by the owner of the house specifically. Rather, the property
may be occupied by the beneficiaries enumerated by Article 154 of the Family
Code. Art. 154. The beneficiaries of a family home are: (1) The husband and wife,
or an unmarried person who is the head of the family; and (2) Their parents,
ascendants, descendants, brothers and sisters, whether the relationship be legitimate
or illegitimate, who are living in the family home and who depend upon the head of
the family for lead support. This enumeration may include the in-laws where the
family home is constituted jointly by the husband and wife. But the law definitely
excludes maids and overseers. They are not the beneficiaries contemplated by the
Code. Consequently, occupancy of a family home by an overseer like Carmencita V.
Abat in this case is insufficient compliance with the law.
Jose F. Manacop for petitioner.
Cesar D. Turiano for private respondent.
[Manacop vs. Court of Appeals, 277 SCRA 57, G.R. No. 97898 August 11, 1997]
PANGANIBAN, J.:
May a writ of execution of a final and executory judgment issued before the
effectivity of the Family Code be executed on a house and lot constituted as a family
home under the provision of said Code?
State of the Case
This is the principal question posed by petitioner in assailing the Decision
of Respondent Court of Appeals 1in CA-G.R. SP No. 18906 promulgated on
February 21, 1990 and its Resolution promulgated on March 21, 1991,
affirming the orders issued by the trial court commanding the issuance of
various writs of execution to enforce the latter's decision in Civil Case No.
53271.
The Facts

Petitioner Florante F. Manacop 2 and his wife Eulaceli purchased on March
10, 1972 a 446-square-meter residential lot with a bungalow, in
consideration of P75,000.00. 3 The property, located in Commonwealth
Village, Commonwealth Avenue, Quezon City, is covered by Transfer
Certificate of Title No. 174180.
On March 17, 1986, Private Respondent E & L Merchantile, Inc. filed a
complaint against petitioner and F.F. Manacop Construction Co., Inc. before
the Regional Trial Court of Pasig, Metro Manila to collect an indebtedness
of P3,359,218.45. Instead of filing an answer, petitioner and his company
entered into a compromise agreement with private respondent, the salient
portion of which provides:
c. That defendants will undertake to pay the amount of
P2,000,000.00 as and when their means permit, but expeditiously
as possible as their collectibles will be collected. (sic)
On April 20, 1986, the trial court rendered judgment approving the
aforementioned compromise agreement. It enjoined the parties to comply
with the agreement in good faith. On July 15, 1986, private respondent filed
a motion for execution which the lower court granted on September 23,
1986. However, execution of the judgment was delayed. Eventually, the
sheriff levied on several vehicles and other personal properties of petitioner.
In partial satisfaction of the judgment debt, these chattels were sold at
public auction for which certificates of sale were correspondingly issued by
the sheriff.
On August 1, 1989, petitioner and his company filed a motion to quash the
alias writs of execution and to stop the sheriff from continuing to enforce
them on the ground that the judgment was not yet executory. They alleged
that the compromise agreement had not yet matured as there was no
showing that they had the means to pay the indebtedness or that their
receivables had in fact been collected. They buttressed their motion with
supplements and other pleadings.
On August 11, 1989, private respondent opposed the motion on the
following grounds: (a) it was too late to question the September 23, 1986
Order considering that more than two years had elapsed; (b) the second alias
writ of execution had been partially implemented; and (c) petitioner and his
company were in bad faith in refusing to pay their indebtedness
notwithstanding that from February 1984 to January 5, 1989, they had
collected the total amount of P41,664,895.56. On September 21, 1989,
private respondent filed an opposition to petitioner and his company's

addendum to the motion to quash the writ of execution. It alleged that the
property covered by TCT No. 174180 could not be considered a family
home on the grounds that petitioner was already living abroad and that the
property,
having
been
acquired
in
1972,
should
have
been judicially constituted as a family home to exempt it from execution.
On September 26, 1989, the lower court denied the motion to quash the writ
of execution and the prayers in the subsequent pleadings filed by petitioner
and his company. Finding that petitioner and his company had not paid their
indebtedness even though they collected receivables amounting to
P57,224,319.75, the lower court held that the case had become final and
executory. It also ruled that petitioner's residence was not exempt from
execution as it was not duly constituted as a family home, pursuant to the
Civil Code.
Hence, petitioner and his company filed with the Court of Appeals a petition
for certiorari assailing the lower court's Orders of September 23,
1986 and September 26, 1989. On February 21, 1990, Respondent Court of
Appeals rendered its now questioned Decision dismissing the petition
for certiorari. The appellate court quoted with approval the findings of the
lower court that: (a) the judgment based on the compromise agreement had
become final and executory, stressing that petitioner and his company had
collected the total amount of P57,224,319.75 but still failed to pay their
indebtedness and (b) there was no showing that petitioner's residence had
been duly constituted as a family home to exempt it from execution. On the
second finding, the Court of Appeals added that:
. . . . We agree with the respondent judge that there is no showing
in evidence that petitioner Maacop's residence under TCT 174180
has been duly constituted as a family home in accordance with law.
For one thing, it is the clear implication of Article 153 that the
family home continues to be so deemed constituted so long as any
of its beneficiaries enumerated in Article 154 actually resides
therein. Conversely, it ceases to continue as such family home if
none of its beneficiaries actually occupies it. There is no showing
in evidence that any of its beneficiaries is actually residing therein.
On the other hand, the unrefuted assertion of private respondent is
that petitioner Florante Maacop had already left the country and is
now, together with all the members of his family, living in West
Covina, Los Angeles, California, U.S.A.

Petitioner and his company filed a motion for reconsideration of this
Decision on the ground that the property covered by TCT No. 174180 was
exempt from execution. On March 21, 1991, the Court of Appeals rendered
the challenged Resolution denying the motion. It anchored its ruling
on Modequillo v.Breva, 4 which held that "all existing family residences at
the time of the effectivity of the Family Code are considered family homes
and are prospectively entitled to the benefits accorded to a family home
under the Family Code."
Applying the foregoing pronouncements to this case, the Court of Appeals
explained:
The record of the present case shows that petitioners incurred the
debt of P3,468,000.00 from private respondent corporation on
February 18, 1982 (Annex "A", Petition). The judgment based
upon the compromise agreement was rendered by the court on
April 18, 1986 (Annex "C", ibid). Paraphrasing the aforecited
Modequillo case, both the debt and the judgment preceded the
effectivity of the Family Code on August 3, 1988. Verily, the case
at bar does not fall under the exemptions from execution provided
under Article 155 of the Family Code.
Undeterred, petitioner filed the instant petition for review
on certiorari arguing that the Court of Appeals misapplied Modequillo. He
contends that there was no need for him to constitute his house and lot as a
family home for it to be treated as such since he was and still is a resident of
the same property from the time "it was levied upon and up to this
moment."
No Novel Issue
At the outset, the Court notes that the issue submitted for resolution in the
instant case is not entirely new. In Manacop v. Court of Appeals, 5 petitioner
himself as a party therein raised a similar question of whether this very
same property was exempt from preliminary attachment for the same
excuse that it was his family home. In said case, F.F. Cruz & Co., Inc. filed
a complaint for a sum of money. As an incident in the proceedings before it,
the trial court issued writ of attachment on the said house and lot. In
upholding the trial court (and the Court of Appeals) in that case, we ruled
that petitioner incurred the indebtedness in 1987 or prior to the effectively
of the Family Code on August 3, 1988. Hence, petitioner's family home was
not exempt from attachment "by sheer force of exclusion embodied in
paragraph 2, Article 155 of the Family Code cited in Modequillo," where the
Court categorically ruled:
Under the Family Code, a family home is deemed constituted on a
house and lot from the time it is occupied as a family residence.
There is no need to constitute the same judicially or extrajudicially
as required in the Civil Code. If the family actually resides in the
premises, it is, therefore, a family home as contemplated by law.
Thus, the creditors should take the necessary precautions to protect
their interest before extending credit to the spouses or head of the
family who owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from execution, forced
sale or attachment except:
The Issue
(1) For nonpayment of taxes;
As stated in the opening sentence of this Decision, the issue in this case
boils down to whether a final and executory decision promulgated and a
writ of execution issued before the effectivity of the Family Code can be
executed on a family home constituted under the provisions of the said
Code.
The Court's Ruling
We answer the question in the affirmative. The Court of Appeals committed
no reversible error. On the contrary, its Decision and Resolution are
supported by law and applicable jurisprudence.
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after
such constitution; and
(4) For debts due to laborer, mechanics, architects, builders,
materialmen and others who have rendered service or furnished
material for the construction of the building.

The exemption provided as aforestated is effective from the time of
the constitution of the family home as such, and lasts so long as
any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner was
not constituted as a family home whether judicially or
extrajudicially under the Civil Code. It became a family home by
operation of law only under Article 153 of the Family Code. It is
deemed constituted as a family home upon the effectivity of the
Family Code on August 3, 1988 not August 4, one year after its
publication in the Manila Chronicle on August 4, 1987 (1988 being
a leap year).
The contention of petitioner that it should be considered a family
home from the time it was occupied by petitioner and his family in
1960 is not well-taken. Under Article 162 of the Family Code, it is
provided that "the provisions of this Chapter shall also govern
existing family residences insofar as said provisions are
applicable." It does not mean that Articles 152 and 153 of said
Code have a retroactive effect such that all existing family
residences are deemed to have been constituted as family homes at
the time of their occupation prior to the effectivity of the Family
Code and are exempt from execution for the payment of
obligations incurred before the effectivity of the Family
Code.Article 162 simply means that all existing family residences
at the time of the effectivity of the Family Code, are considered
family homes and are prospectively entitled to the benefits
accorded to a family home under the Family Code, Article 162
does not state that provisions of Chapter 2, Title V have a
retroactive effect.
Is the family home of petitioner exempt from execution of the
money judgment aforecited? No. The debt or liability which was
the basis of the judgment arose or was incurred at the time of the
vehicular accident on March 16, 1976 and the money judgment
arising therefrom was rendered by the appellate court on January
29, 1988. Both preceded the effectivity of the Family Code on
August 3, 1988. This case does not fall under the exemptions from
execution provided in the Family Code. 6(Emphasis supplied.)
Article
153
Has No Retroactive Effect
of
the
Family
Code
Petitioner contends that the trial court erred in holding that his residence
was not exempt from execution in view of his failure to show that the
property involved "has been duly constituted as a family home in
accordance with law." He asserts that the Family Code
and Modequillo require simply the occupancy of the property by the
petitioner, without need for its judicial or extrajudicial constitution as a
family home. 7
Petitioner is only partly correct. True, under the Family Code which took
effect on August 3, 1988, 8 the subject property became his family home
under the simplified process embodied in Article 153 of said code.
However, Modequillo explicitly ruled that said provision of the Family
Code does not have retroactive effect. In other words, prior to August 3,
1988, the procedure mandated by the Civil Code 9 had to be followed for a
family home to be constituted as such. There being absolutely no proof that
the subject property was judicially or extrajudicially constituted as a family
home, it follows that the law's protective mantle cannot be availed of by
petitioner. Since the debt involved herein was incurred and the assailed
orders of the trial court issued prior to August 3, 1988, the petitioner cannot
be shielded by the benevolent provisions of the Family Code.
List
of
Beneficiary-Occupants
to Those Enumerated in the Code
Restricted
In view of the foregoing discussion, there is no reason to address the other

arguments of petitioner other than to correct his misconception of the law.
Petitioner contends that he should be deemed residing in the family home
because his stay in the United States is merely temporary. He asserts that the
person staying in the house is his overseer and that whenever his wife
visited this country, she stayed in the family home. This contention lacks
merit.
The law explicitly provides that occupancy of the family home either by the
owner thereof or by "any of its beneficiaries" must be actual. That which is
"actual" is something real, or actually existing, as opposed to something
merely possible, or to something which is presumptive or
constructive. 10 Actual occupancy, however, need not be by the owner of the
house specifically. Rather, the property may be occupied by the
"beneficiaries" enumerated by Article 154 of the Family Code.
Art. 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head
of the family; and
continues to be such and is exempt from execution, forced sale or attachment except
as hereinafter provided and to the extent of the value allowed by law.
(2) Their parents, ascendants, descendants, brothers and sisters,

whether the relationship be legitimate or illegitimate, who are
living in the family home and who depend upon the head of the
family for lead support.
Same; Same; Occupancy of the family home either by the owner thereof or by any
of its beneficiaries must be actual.The law explicitly provides that occupancy of
the family home either by the owner thereof or by any of its beneficiaries must be
actual. That which is actual is something real, or actually existing, as opposed to
something merely possible, or to something which is presumptive or constructive.
Actual occupancy, however, need not be by the owner of the house specifically.
Rather, the property may be occupied by the beneficiaries enumerated in Article
154 of the Family Code, which may include the in-laws where the family home is
constituted jointly by the husband and wife. But the law definitely excludes maids
and overseers. They are not the beneficiaries contemplated by the Code.
This enumeration may include the in-laws where the family home is
constituted jointly by the husband and wife. 11 But the law definitely
excludes maids and overseers. They are not the beneficiaries contemplated
by the Code. Consequently, occupancy of a family home by an overseer like
Carmencita V. Abat in this case 12 is insufficient compliance with the law.
WHEREFORE, the petition is hereby DENIED for utter lack of merit. This
Decision is immediately executory. Double costs against petitioner.
SO ORDERED.
G.R. No. 170829
November 20, 2006
PERLA G. PATRICIO, Petitioner,

vs.
MARCELINO G. DARIO III and THE HONORABLE COURT OF APPEALS,
Second Division, Respondents.
Civil Law; Family Home; The family home is deemed constituted from the time it is
occupied as a family residence.The family home is a sacred symbol of family love
and is the repository of cherished memories that last during ones lifetime. It is the
dwelling house where husband and wife, or by an unmarried head of a family, reside,
including the land on which it is situated. It is constituted jointly by the husband and
the wife or by an unmarried head of a family. The family home is deemed constituted
from the time it is occupied as a family residence. From the time of its constitution
and so long as any of its beneficiaries actually resides therein, the family home
Same; Same; Beneficiaries of a family home enumerated in Article 154 of the Family
Code; Requisites to be a beneficiary of the family home.Article 154 of the Family
Code enumerates who are the beneficiaries of a family home: (1) The husband and
wife, or an unmarried person who is the head of a family; and (2) Their parents,
or illegitimate, who are living in the family home and who depend upon the head of
the family for legal support. To be a beneficiary of the family home, three requisites
must concur: (1) they must be among the relationships enumerated in Art. 154 of the
Family Code; (2) they live in the family home; and (3) they are dependent for legal
support upon the head of the family.
Same; Same; The family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of 10 years or for as long
as there is a minor beneficiary, and the heirs cannot partition the same unless the
court finds compelling reasons therefor; Rule shall apply regardless of whoever owns
the property or constituted the family home.Moreover, Article 159 of the Family
Code provides that the family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of 10 years or for as long
as there is a minor beneficiary, and the heirs cannot partition the same unless the
court finds compelling reasons therefor. This rule shall apply regardless of whoever
owns the property or constituted the family home.
Same; Same; Words and Phrases; Legal Support; Characteristics of legal support.
Legal support, also known as family support, is that which is provided by law,
comprising everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of
the family. Legal support has the following characteristics: (1) It is personal, based
on family ties which bind the obligor and the obligee; (2) It is intransmissible; (3) It

cannot be renounced; (4) It cannot be compromised; (5) It is free from attachment or
execution; (6) It is reciprocal; (7) It is variable in amount.
Same; Property; Co-ownership; Partition; No co-owner ought to be compelled to stay
in a co-ownership indefinitely, and may insist on partition on the common property at
any time; An action to demand partition is imprescriptible or cannot be barred by
laches.The law does not encourage co-ownerships among individuals as
oftentimes it results in inequitable situations such as in the instant case. Coowners
should be afforded every available opportunity to divide their co-owned property to
prevent these situations from arising. As we ruled in Santos v. Santos, 342 SCRA 753
(2000), no co-owner ought to be compelled to stay in a co-ownership indefinitely,
and may insist on partition on the common property at any time. An action to
demand partition is imprescriptible or cannot be barred by laches. Each co-owner
may demand at any time the partition of the common property.
Same; Same; Same; Same; An action for partition is at once an action for declaration
of co-ownership and for segregation and conveyance of a determinate portion of the
properties involved.In Vda. de Daffon v. Court of Appeals, 387 SCRA 427 (2002),
we held that an action for partition is at once an action for declaration of
coownership and for segregation and conveyance of a determinate portion of the
properties involved. If the court after trial should find the existence of co-ownership
among the parties, the court may and should order the partition of the properties in
the same action.
PETITION for review on certiorari of a resolution of the Court of Appeals.
Ma. Patricia S. EncarnacionForia for petitioner.
Yee Law Office for respondent.
[Patricio vs. Dario III, 507 SCRA 438, G.R. No. 170829 November 20, 2006]
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks to
annul and set aside the Resolution of the Court of Appeals dated December 9,
20051 in CA-G.R. CV No. 80680, which dismissed the complaint for partition filed
by petitioner for being contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was survived by his wife,
petitioner Perla G. Patricio and their two sons, Marcelino Marc Dario and private
respondent Marcelino G. Dario III. Among the properties he left was a parcel of land
with a residential house and a pre-school building built thereon situated at 91 Oxford
corner Ermin Garcia Streets in Cubao, Quezon City, as evidenced by Transfer
Certificate of Title (TCT) No. RT-30731 (175992) of the Quezon City Registry of
Deeds, covering an area of seven hundred fifty five (755) square meters, more or
less.2
On August 10, 1987, petitioner, Marcelino Marc and private respondent,
extrajudicially settled the estate of Marcelino V. Dario. Accordingly, TCT No. RT30731 (175992) was cancelled and TCT No. R-213963 was issued in the names of
petitioner, private respondent and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised private respondent of
their intention to partition the subject property and terminate the co-ownership.
Private respondent refused to partition the property hence petitioner and Marcelino
Marc instituted an action for partition before the Regional Trial Court of Quezon
City which was docketed as Civil Case No. Q-01-44038 and raffled to Branch 78.
On October 3, 2002,3 the trial court ordered the partition of the subject property in
the following manner: Perla G. Patricio, 4/6; Marcelino Marc G. Dario, 1/6; and
Marcelino G. Dario III, 1/6. The trial court also ordered the sale of the property by
public auction wherein all parties concerned may put up their bids. In case of failure,
the subject property should be distributed accordingly in the aforestated manner.4
Private respondent filed a motion for reconsideration which was denied by the trial
court on August 11, 2003,5hence he appealed before the Court of Appeals, which
denied the same on October 19, 2005. However, upon a motion for reconsideration
filed by private respondent on December 9, 2005, the appellate court partially
reconsidered the October 19, 2005 Decision. In the now assailed Resolution, the
Court of Appeals dismissed the complaint for partition filed by petitioner and
Marcelino Marc for lack of merit. It held that the family home should continue
despite the death of one or both spouses as long as there is a minor beneficiary
thereof. The heirs could not partition the property unless the court found compelling
reasons to rule otherwise. The appellate court also held that the minor son of private
respondent, who is a grandson of spouses Marcelino V. Dario and Perla G. Patricio,
was a minor beneficiary of the family home.6
Hence, the instant petition on the following issues:
I.

THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005 WHICH
AFFIRMED IN TOTO THE DECISION OF THE TRIAL COURT DATED
03 OCTOBER 2002 GRANTING THE PARTITION AND SALE BY
PUBLIC AUCTION OF THE SUBJECT PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY
ERRED IN APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154
OF THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE
494 IN RELATION TO ARTICLES 495 AND 498 OF THE NEW CIVIL
CODE ON CO-OWNERSHIP.7
The sole issue is whether partition of the family home is proper where one of the coowners refuse to accede to such partition on the ground that a minor beneficiary still
resides in the said home.
Private respondent claims that the subject property which is the family home duly
constituted by spouses Marcelino and Perla Dario cannot be partitioned while a
minor beneficiary is still living therein namely, his 12-year-old son, who is the
grandson of the decedent. He argues that as long as the minor is living in the family
home, the same continues as such until the beneficiary becomes of age. Private
respondent insists that even after the expiration of ten years from the date of death of
Marcelino on July 5, 1987, i.e., even after July 1997, the subject property continues
to be considered as the family home considering that his minor son, Marcelino
Lorenzo R. Dario IV, who is a beneficiary of the said family home, still resides in the
premises.
On the other hand, petitioner alleges that the subject property remained as a family
home of the surviving heirs of the late Marcelino V. Dario only up to July 5, 1997,
which was the 10th year from the date of death of the decedent. Petitioner argues that
the brothers Marcelino Marc and private respondent Marcelino III were already of
age at the time of the death of their father,8 hence there is no more minor beneficiary
to speak of.
The family home is a sacred symbol of family love and is the repository of cherished
memories that last during ones lifetime. 9 It is the dwelling house where husband and
wife, or by an unmarried head of a family, reside, including the land on which it is
situated.10 It is constituted jointly by the husband and the wife or by an unmarried
head of a family.11 The family home is deemed constituted from the time it is
occupied as a family residence. From the time of its constitution and so long as any
of its beneficiaries actually resides therein, the family home continues to be such and
is exempt from execution, forced sale or attachment except as hereinafter provided
and to the extent of the value allowed by law.12
The law explicitly provides that occupancy of the family home either by the owner
thereof or by "any of its beneficiaries" must be actual. That which is "actual" is
something real, or actually existing, as opposed to something merely possible, or to
something which is presumptive or constructive. Actual occupancy, however, need
not be by the owner of the house specifically. Rather, the property may be occupied
by the "beneficiaries" enumerated in Article 154 of the Family Code, which may
include the in-laws where the family home is constituted jointly by the husband and
wife. But the law definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code.13
Article 154 of the Family Code enumerates who are the beneficiaries of a family
home: (1) The husband and wife, or an unmarried person who is the head of a family;
and (2) Their parents, ascendants, descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate, who are living in the family home and who
depend upon the head of the family for legal support.
To be a beneficiary of the family home, three requisites must concur: (1) they must
be among the relationships enumerated in Art. 154 of the Family Code; (2) they live
in the family home; and (3) they are dependent for legal support upon the head of the
family.
Moreover, Article 159 of the Family Code provides that the family home shall
continue despite the death of one or both spouses or of the unmarried head of the
family for a period of 10 years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds compelling reasons therefor.
This rule shall apply regardless of whoever owns the property or constituted the
family home.
Article 159 of the Family Code applies in situations where death occurs to persons
who constituted the family home.1wphi1 Dr. Arturo M. Tolentino comments on the
effect of death of one or both spouses or the unmarried head of a family on the
continuing existence of the family home:
Upon the death of the spouses or the unmarried family head who constituted the
family home, or of the spouse who consented to the constitution of his or her
separate property as family home, the property will remain as family home for ten
years or for as long as there is a minor beneficiary living in it. If there is no more
beneficiary left at the time of death, we believe the family home will be dissolved or

cease, because there is no more reason for its existence. If there are beneficiaries
who survive living in the family home, it will continue for ten years, unless at the
expiration of the ten years, there is still a minor beneficiary, in which case the
family home continues until that beneficiary becomes of age.
After these periods lapse, the property may be partitioned by the heirs. May the heirs
who are beneficiaries of the family home keep it intact by not partitioning the
property after the period provided by this article? We believe that although the heirs
will continue in ownership by not partitioning the property, it will cease to be a
family home.14 (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159 in this manner:
The family home shall continue to exist despite the death of one or both spouses or
of the unmarried head of the family. Thereafter, the length of its continued existence
is dependent upon whether there is still a minor-beneficiary residing therein. For
as long as there is one beneficiary even if the head of the family or both spouses
are already dead, the family home will continue to exist (Arts. 153, 159). If there is
no minor-beneficiary, it will subsist until 10 years and within this period, the heirs
cannot partition the same except when there are compelling reasons which will
justify the partition. This rule applies regardless of whoever owns the property or
who constituted the family home.15 (Emphasis supplied)
The rule in Article 159 of the Family Code may thus be expressed in this wise: If
there are beneficiaries who survive and are living in the family home, it will continue
for 10 years, unless at the expiration of 10 years, there is still a minor beneficiary, in
which case the family home continues until that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a general rule, the family
home may be preserved for a minimum of 10 years following the death of the
spouses or the unmarried family head who constituted the family home, or of the
spouse who consented to the constitution of his or her separate property as family
home. After 10 years and a minor beneficiary still lives therein, the family home
shall be preserved only until that minor beneficiary reaches the age of majority. The
intention of the law is to safeguard and protect the interests of theminor
beneficiary until he reaches legal age and would now be capable of supporting
himself. However, three requisites must concur before a minor beneficiary is entitled
to the benefits of Art. 159: (1) the relationship enumerated in Art. 154 of the Family
Code; (2) they live in the family home, and (3) they are dependent for legal support
upon the head of the family.
Thus, the issue for resolution now is whether Marcelino Lorenzo R. Dario IV, the
minor son of private respondent, can be considered as a beneficiary under Article 154
of the Family Code.
As to the first requisite, the beneficiaries of the family home are: (1) The husband
and wife, or an unmarried person who is the head of a family; and (2) Their parents,
or illegitimate. The term "descendants" contemplates all descendants of the person or
persons who constituted the family home without distinction; hence, it must
necessarily include the grandchildren and great grandchildren of the spouses who
constitute a family home. Ubi lex non distinguit nec nos distinguire debemos. Where
the law does not distinguish, we should not distinguish. Thus, private respondents
minor son, who is also the grandchild of deceased Marcelino V. Dario satisfies the
first requisite.
As to the second requisite, minor beneficiaries must be actually living in the family
home to avail of the benefits derived from Art. 159. Marcelino Lorenzo R. Dario IV,
also known as Ino, the son of private respondent and grandson of the decedent
Marcelino V. Dario, has been living in the family home since 1994, or within 10
years from the death of the decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario IV cannot demand
support from his paternal grandmother if he has parents who are capable of
supporting him. The liability for legal support falls primarily on Marcelino Lorenzo
R. Dario IVs parents, especially his father, herein private respondent who is the head
of his immediate family. The law first imposes the obligation of legal support upon
the shoulders of the parents, especially the father, and only in their default is the
obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support not from his
grandmother, but from his father.1wphi1Thus, despite residing in the family home
and his being a descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario IV
cannot be considered as beneficiary contemplated under Article 154 because he did
not fulfill the third requisite of being dependent on his grandmother for legal support.
It is his father whom he is dependent on legal support, and who must now establish
his own family home separate and distinct from that of his parents, being of legal
age.
Legal support, also known as family support, is that which is provided by law,
comprising everything indispensable for sustenance, dwelling, clothing, medical
attendance, education and transportation, in keeping with the financial capacity of
the family.16 Legal support has the following characteristics: (1) It is personal, based

on family ties which bind the obligor and the obligee; (2) It is intransmissible; (3) It
cannot be renounced; (4) It cannot be compromised; (5) It is free from attachment or
execution; (6) It is reciprocal; (7) It is variable in amount.17
Professor Pineda is of the view that grandchildren cannot demand support directly
from their grandparents if they have parents (ascendants of nearest degree) who are
capable of supporting them. This is so because we have to follow the order of
support under Art. 199.18 We agree with this view.
The reasons behind Art. 199 as explained by Pineda and Tolentino: the closer the
relationship of the relatives, the stronger the tie that binds them. Thus, the obligation
to support under Art. 199 which outlines the order of liability for support is imposed
first upon the shoulders of the closer relatives and only in their default is the
obligation moved to the next nearer relatives and so on.
There is no showing that private respondent is without means to support his son;
neither is there any evidence to prove that petitioner, as the paternal grandmother,
was willing to voluntarily provide for her grandsons legal support. On the contrary,
herein petitioner filed for the partition of the property which shows an intention to
dissolve the family home, since there is no more reason for its existence after the 10year period ended in 1997.
With this finding, there is no legal impediment to partition the subject property.
The law does not encourage co-ownerships among individuals as oftentimes it results
in inequitable situations such as in the instant case. Co-owners should be afforded
every available opportunity to divide their co-owned property to prevent these
situations from arising.
As we ruled in Santos v. Santos,19 no co-owner ought to be compelled to stay in a coownership indefinitely, and may insist on partition on the common property at any
time. An action to demand partition is imprescriptible or cannot be barred by laches.
Each co-owner may demand at any time the partition of the common property.20
Since the parties were unable to agree on a partition, the court a quo should have
ordered a partition by commissioners pursuant to Section 3, Rule 69 of the Rules of
Court. Not more than three competent and disinterested persons should be appointed
as commissioners to make the partition, commanding them to set off to the plaintiff
and to each party in interest such part and proportion of the property as the court
shall direct.
When it is made to appear to the commissioners that the real estate, or a portion
thereof, cannot be divided without great prejudice to the interest of the parties, the
court may order it assigned to one of the parties willing to take the same, provided he
pays to the other parties such sum or sums of money as the commissioners deem
equitable, unless one of the parties interested ask that the property be sold instead of
being so assigned, in which case the court shall order the commissioners to sell the
real estate at public sale, and the commissioners shall sell the same accordingly.21
The partition of the subject property should be made in accordance with the rule
embodied in Art. 996 of the Civil Code. 22 Under the law of intestate succession, if the
widow and legitimate children survive, the widow has the same share as that of each
of the children. However, since only one-half of the conjugal property which is
owned by the decedent is to be allocated to the legal and compulsory heirs (the other
half to be given exclusively to the surviving spouse as her conjugal share of the
property), the widow will have the same share as each of her two surviving children.
Hence, the respective shares of the subject property, based on the law on intestate
succession are: (1) Perla Generosa Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6
and (3) Marcelino G. Dario III, 1/6.
In Vda. de Daffon v. Court of Appeals,23 we held that an action for partition is at once
an action for declaration of co-ownership and for segregation and conveyance of a
determinate portion of the properties involved. If the court after trial should find the
existence of co-ownership among the parties, the court may and should order the
partition of the properties in the same action.24
WHEREFORE, the petition is GRANTED. The Resolution of the Court of Appeals
in CA-G.R. CV No. 80680 dated December 9, 2005, is REVERSED and SET
ASIDE. The case is REMANDED to the Regional Trial Court of Quezon City,
Branch 78, who is directed to conduct a PARTITION BY COMMISSIONERS and
effect the actual physical partition of the subject property, as well as the
improvements that lie therein, in the following manner: Perla G. Dario, 4/6;
Marcelino Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial court is
DIRECTED to appoint not more than three (3) competent and disinterested persons,
who should determine the technical metes and bounds of the property and the proper
share appertaining to each heir, including the improvements, in accordance with Rule
69 of the Rules of Court. When it is made to the commissioners that the real estate,
or a portion thereof, cannot be divided without great prejudice to the interest of the
parties, the court a quo may order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such sum or sums of money as the
commissioners deem equitable, unless one of the parties interested ask that the
property be sold instead of being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the commissioners shall sell

the same accordingly, and thereafter distribute the proceeds of the sale appertaining
to the just share of each heir. No pronouncement as to costs.
SO ORDERED.

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PERSONS REVIEW ASSIGNMENT No.

PERSONS REVIEW ASSIGNMENT No. 11 Page 2

acquired during the cohabitation of petitioner and private respondent's legitimate

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1) Dismissing the complaint, with costs against plaintiffs;

Hence, this petition.

2) Confirming the ownership of defendant Erlinda Agapay of the residential

3) Confirming the ownership of one-half (1/2) portion of that piece of

PERSONS REVIEW ASSIGNMENT No. 11 Page 4

partakes the nature of judicial confirmation of the separation of property between

PERSONS REVIEW ASSIGNMENT No. 11 Page 5

G.R. No. 137359

September 13, 2004

EDWIN N. TRIBIANA, petitioner,

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earnest effort to reach a compromise is an indispensable condition precedent. Article

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PERSONS REVIEW ASSIGNMENT No. 11 Page 8

G.R. NO. 129242

January 16, 2001

PILAR S. VDA. DE MANALO, ANTONIO S. MANALO, ORLANDO S.

PERSONS REVIEW ASSIGNMENT No. 11 Page 9

The facts are stated in the opinion of the Court.

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E. To set the application of Romeo Manalo for appointment as regular

Several pleadings were subsequently filed by herein petitioners, through counsel,

A. To admit the so-called Opposition filed by counsel for the oppositors on

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WHEREFORE, premises considered, it is respectfully prayed for of this Honorable

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G.R. No. L-28394 November 26, 1970

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(4) Among brothers and sisters.

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G.R. No. 97898 August 11, 1997

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private respondent filed an opposition to petitioner and his company's

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In view of the foregoing discussion, there is no reason to address the other

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(2) Their parents, ascendants, descendants, brothers and sisters,

G.R. No. 170829

November 20, 2006

PERLA G. PATRICIO, Petitioner,

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PERSONS REVIEW ASSIGNMENT No. 11 Page 23

PERSONS REVIEW ASSIGNMENT No. 11 Page 24

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