1

THIRD DIVISION

G.R. Nos. 77737-38 August 15, 1988

CHRISTINA MARIE DEMPSEY, a minor and represented by
her mother, Janalita Rapada, and THE PEOPLE OF THE
PHILIPPINES, petitioners,
vs.
REGIONAL TRIAL COURT, BRANCH LXXV, Third Judicial
Region, Olongapo City, and JOEL DEMPSEY,respondents.
Estanislao L. Cesa, Jr. for petitioners.
Miguel F. Famularcano, Jr. for respondents.

Criminal Case No. 68-86

That on or about and during the period from December
1985 to the present, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused did then and there
wilfully, unlawfully and feloniously leave their conjugal
dwelling at No. 15 Ohio Street, Upper Kalaklan,
Olongapo City and abandon his child Christina R.
Dempsey and deprive him (sic) of his love, care and
protection she from the accused (sic) since then, by
continuously failing and refusing to give adequate
support to the said minor child and despite pleas, the
accused without lawful justification, failed, disregarded
and still continues to fail and disregard to perform his
obligations to his said minor child Christina R.
Dempsey,
CONTRARY TO LAW.

GUTIERREZ, JR., J.:

This is a petition denominated as one for review on certiorari
and/or a special civil action for certiorari from the decision
rendered by the respondent court on November 28, 1986 in
Criminal Cases Nos. 460-86 and 461-86, entitled "The People
of the Philippines v. Joel Dempsey."
On January 30, 1986, two separate informations were filed
against respondent Joel Dempsey before the Municipal Trial
Court, Branch II, Olongapo City charging him with violation of
Article 59 (par. 2) of P.D. 603 and Article 46, par. 8 of P.D. 603.
The Informations read:

Criminal Case No. 69-86

That on or about and during the period from December
1985 to the present, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there
wilfully, unlawfully and criminally fail and refuse to
provide his child Christina R. Dempsey with adequate
support, as defined in Article 290 of the Civil Code,
despite the fact that he is capable of supporting his
child, and despite pleas, the accused without lawful
justification, failed and refused and still fails and
refuses to provide his child with adequate support, to
the damage and prejudice of the said child.

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CONTRARY TO LAW. (Rollo, pp. 18-19)
The facts of the case are summarized by the Trial Court as
follows:
xxx xxx xxx
The testimony of complainant Janalita Rapada purports
to show that in her cohabitation with the accused,
without the benefit of marriage, Christina Marie was
born on October 01, 1984, at the St. Jude's Family
Clinic, Olongapo City where she delivered the child.
Her birth certificate, Exhibit "A" bears an entry of the
name of the accused as the father and Exhibit "A-1 "
the Affidavit of the Acknowledgment duly signed by
him.
At the present, the child receives a monthly support
from the accused in the sum of $150.00 thru the child's
mother, Janalita Rapada. Aside from this monthly
support, Janalita Rapada obtained a promise from the
accused to declare Christina Marie as his dependent
and also a commitment to declare the child after his
citizenship. This will entitle the child for all the benefits
and privileges extended to dependents of American US
Navy servicemen like free medical check-up. Efforts
were made with the Naval Legal Service Office, US
Naval Facilities, Subic Bay, Philippines to compel the
accused to fulfill these commitments but to no avail. To
seek redress thru the Court, she engaged the services
of Atty. Estanislao L. Cesa, Jr., offering P5,000.00 as
Attorney's fee payable after the cases are decided.
xxx xxx xxx

At the Naval Legal Service Office, someone

entertained her demand for the accused to declare
Christina Marie as his dependent and after his
American citizenship. She was of the belief that these
could be done not knowing that the American who
entertained her demands had no authority to effect the
same. (Rollo, pp. 21-22)
Upon arraignment, the private respondent freely, voluntarily,
and spontaneously entered a plea of guilty to the offense
charged in the Information.
On August 26, 1986, the Trial Court rendered a decision, the
dispositive portion of which reads:
WHEREFORE, finding the accused guilty beyond
reasonable doubt of the charges against him,
considering the mitigating circumstances of his
voluntary plea of guilty, this Court sentences him to a
prison term of Three (3) Months and Eleven (11) days
to Four (4) months of Arresto Mayor, medium period
and fine of Three hundred (P300.00) Pesos for each of
the cases and to pay the costs.
For the civil liability, judgment is rendered against
accused Joel Dempsey confirming the payment of US
$150.00 monthly support to Christina Marie and to
continue payment thru Janalita Rapada, to be used
solely for the needs of the child until she reaches the
age of majority; to recognize the child Christina Marie
as his natural child; to pay Christina Marie thru Janalita
Rapada the sum of P10,000.00 as exemplary damage;
and to pay the sum of P5,000.00 as attorney's fee to
Atty. Manuel Rosapapan as Chairman of the
Committee on Legal Aid of the IBP Chapter of

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Zambales Olongapo City and the same to form part of
the legal aid fund.
SO ORDERED. (Rollo, pp. 23-24)
The private respondent appealed the municipal trial court's
decision to the regional trial court and prayed that the award
on civil liability be set aside and the penalty of imprisonment
be reduced to a penalty of fine only.
In a decision rendered on November 28, 1986, the respondent
regional trial court reversed the municipal trial court's decision
on the following grounds:
1. Parental authority to which certain parental obligations are
attached pertains only to legitimate and adopted children
unlike petitioner who is an acknowledged illegitimate minor
child of private respondent; that in cases of abandonment of
minors, the proper forum is the Department of Social Welfare
where the person to whom the minor has been left must report
immediately (Art. 161, P.D. 603).
2. A person cannot he held criminally liable for failure to
support a minor child.
3. The Municipal Trial Court had determined a matter not
within its competence and authority.
Hence, the present petition on pure questions of law.
The petitioner maintains that the penalty of imprisonment and
fine in both cases is sanctioned by the law and jurisprudence
and that the award of civil liability is justified.
We find merit in the instant petition.

The respondent court committed reversible error when it failed

to take into account that the decision of the municipal trial
court was based on the private respondent's plea of guilty.
Respondent Joel Dempsey did not and does not challenge the
validity of Presidential Decree No. 603, Articles 46 and 59 on
certain obligations of parents to their children and Articles 60
and 210 penalizing violations of mandatory provisions. As a
matter of fact, respondent Dempsey's appeal impliedly
recognizes the validity of the judgment of conviction because
he asked that the penalty of imprisonment be changed to fine,
not that the trial court's decision was void or that he be
acquitted.
There can be no question about the trial court's jurisdiction
over the criminal prosecutions. Article 69 of P.D. 603 penalizes
abandonment of a minor child by its parent, as provided in
Article 59, with imprisonment from two to six months or a fine
not exceeding five hundred pesos or both. Article 210
penalizes a violation of the obligation to give adequate support
found in Article 46 with imprisonment not exceeding one month
or a fine not exceeding two hundred pesos or both, unless a
higher penalty is provided for in the Revised Penal Code or
special laws.
The respondent court erred in its ruling that the trial court
determined a matter not within its competence and authority.
There is likewise no basis for its gratuitous finding that a
parent cannot be held criminally liable under P.D. 603 for
withholding support from his minor child. There is absolutely
no discussion on this ruling. The records show, however, that
Joel Dempsey's plea of guilt to the charge of withholding
support from his minor daughter was made without a full
understanding of that particular charge. Janalita Rapada
herself testified that she is receiving $150.00 a month for the
support of the minor Christina Marie Dempsey. The amount of
P3,000.00 monthly appears to fulfill the requirement of

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"adequate support" found in Par. 8, Art. 46 of P.D. No. 603.
What Rapada wants is a judicial declaration for this support to
continue. This cannot be the basis of a criminal conviction.
As to the information charging abandonment, the private
respondent entered his plea of guilt with full knowledge of the
consequences and meaning of his act and with the assistance
of his counsel. The reversal of conviction based on a plea of
guilty is an act which is not at all explained by the respondent
court and, therefore, in excess of its jurisdiction. It is wellsettled as a general rule that a plea of guilt is sufficient to
sustain conviction without introduction of further evidence
(People v. Formentera, 130 SCRA 114; People v. Balisacan,
17 SCRA 119; People v. Gravino, et al., 122 SCRA 123;
People v. Pajarillo, 94 SCRA 828). Only in such exceptional
cases as capital offenses is evidence still required.
The respondent court further ruled that Christina Dempsey is
not entitled to the rights arising from the parental responsibility
of her father, she being an illegitimate child. Reliance was
made on Art. 17 of P.D. 603 which defines the joint parental
authority of parents over their legitimate or adopted children.
The respondent court's observations are wrong because the
law itself protects even illegitimate children. Illegitimate
children have rights of the same nature as legitimate and
adopted children. This is enunciated in Art. 3, P.D. 603 which
provides that "all children shall be entitled to the rights herein
set forth without distinction as to legitimacy or illegitimacy, sex,
social status, religion, political antecedents, and other factors."
Rights must be enforced or protected to the extent that it is
possible to do so.
The Solicitor General points out that the new Family Code
promulgated as Executive Order No. 209, July 17, 1978
erases any distinction between legitimate or adopted children
on one hand and acknowledged illegitimate children on the

other, insofar as joint parental authority is concerned. Article

211 of the Family Code, whose date of effectivity is
approaching, merely formalizes into statute the practice on
parental authority.
The respondent court would shift jurisdiction over the case
from the municipal trial court to the Department of Social
Services and Development. It is readily apparent that the
DSSD cannot take cognizance of and enforce the criminal
sanctions of P.D. 603. Besides, Christina Marie Dempsey is
not an abandoned child in the strict sense of the word as she
is still in the custody and care of her mother. Art. 141 of P.D.
603 defines an abandoned child as follows: "... Am abandoned
child is one who has no parental care or guardianship or
whose parents or guardians have deserted him for a period of
at least six continuous months ... ." Article 161 cannot,
therefore, be applied to the case at bar. Thus, it is not the
Department of Social Services and Development which has
jurisdiction but the Municipal Trial Court.
There is one other point which has to be corrected. As part of
the civil liability in its judgment, the trial court required the
accused to recognize Christina Marie as his natural child. This
should not have been done. The recognition of a child by her
father is provided for in the Civil Code and now in the new
Family Code. In this criminal prosecution, where the accused
pleaded guilty to criminal charges and the issue of recognition
was not specifically and fully heard and tried, the trial court
committed reversible error when it ordered recognition of a
natural child as part of the civil liability in the criminal case.
We also agree with the respondent regional trial court that the
penalty imposed is erroneous. The award of exemplary
damages and attorney's fees is improper. Although fathers like
Joel Dempsey should be deterred from committing similar acts
of irresponsibility, the law does not allow us to affirm the grant

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of exemplary damages only on the basis of the facts herein
presented. Exemplary damages cannot be awarded inasmuch
as there is not one or more aggravating circumstances (Art.
2230, Civil Code).
As to the penalties, we agree with the Solicitor General that
these should be modified accordingly. And finally, it should be
noted that the Regional Trial Court after declaring that the
Municipal Trial Court acted outside of its competence merely
set aside the appealed decision. Instead of acquitting the
accused, it suggested the filing of necessary pleadings before
the proper court.
WHEREFORE, the questioned decision of the Regional Trial
Court of Olongapo City, Branch 75 of the Third Judicial Region
is hereby REVERSED and SET ASIDE. The decision of
Branch II of the Municipal Trial Court of Olongapo City is
REINSTATED with the modification that in Criminal Case No.
6886, Joel Dempsey is sentenced to imprisonment of One (1)
month and to pay a fine of Three Hundred Pesos (P300.00)
while in Criminal Case No. 69-86 he is ACQUITTED.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. L-32181 March 5, 1986

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
LEONOR VALENCIA, as Natural mother and guardian of
her minor children, BERNARDO GO and JESSICA GO; and
THE HON. AGAPITO HONTANOSAS, Judge of the COURT
OF FIRST INSTANCE OF CEBU, Branch XI.

GUTIERREZ, JR., J.:

This is a petition to review the decision of respondent Judge
Agapito Hontanosas of the Court of First Instance of Cebu,
Branch XI who ordered the Local Civil Registrar of Cebu to
make the necessary cancellation and/or correction in the
entries of birth of Bernardo Go and Jessica Go in the Civil
Registry of the City of Cebu.
Respondent Leonor Valencia, for and in behalf of her minor
children, Bernardo Go and Jessica Go filed with the Court of
First Instance of Cebu a petition for the cancellation and/or
correction of entries of birth of Bernardo Go and Jessica Go in
the Civil Registry of the City of Cebu. The case was docketed
as Special Proceedings No. 3043-R.
The Solicitor General filed an opposition to the petition alleging
that the petition for correction of entry in the Civil Registry

pursuant to Article 412 of the New Civil Code of the Philippines

in relation to Rule 108 of the Revised Rules of Court,
contemplates a summary proceeding and correction of mere
clerical errors, those harmless and innocuous changes such
as the correction of a name that is merely mispelled,
occupation of parents, etc., and not changes or corrections
involving civil status, nationality, or citizenship which are
substantial and controversial.
Finding the petition to be sufficient in form and substance, the
trial court issued an order directing the publication of the
petition and the date of hearing thereof in the Cebu Advocate,
a newspaper of general circulation in the city and province of
Cebu, once a week for three (3) consecutive weeks, and
notice thereof, duly served on the Solicitor General, the Local
Civil Registrar of Cebu City and Go Eng.
Respondent Leonor Valencia, filed her reply to the opposition
wherein she admitted that the present petition seeks
substantial changes involving the civil status and nationality or
citizenship of respondents, but alleged that substantial
changes in the civil registry records involving the civil status of
parents, their nationality or citizenship may be allowed if- (1)
the proper suit is filed, and (2) evidence is submitted, either to
support the allegations of the petition or to disprove the same;
that respondents have complied with these requirements by
filing the present special proceeding for cancellation or
correction of entries in the civil registry pursuant to Rule 108 of
the Revised Rules of Court and that they have caused
reasonable notice to be given to the persons named in the
petition and have also caused the order for the hearings of
their petition to be published for three (3) consecutive weeks in
a newspaper of general circulation in the province.
Subsequently, the Local Civil Registrar of Cebu City filed a
motion to dismiss on the ground that since the petition seeks

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to change the nationality or citizenship of Bernardo Go and
Jessica Go from "Chinese" to "Filipino" and their status from
"Legitimate" to Illegitimate", and changing also the status of
the mother from "married" to "single" the corrections sought
are not merely clerical but substantial, involving as they do the
citizenship and status of the petitioning minors and the status
of their mother.

Pursuant to Section 6, Rule 103 of the Rules of Court,

the Clerk of Court is hereby directed to furnish a copy
of this decision to the Office of the Local Civil Registrar
of Cebu City, who shall forthwith enter the cancellation
and/'or correction of entries of birth of Bernardo Go and
Jessica Go in the Civil Registry as adverted to above.

The lower court denied the motion to dismiss.

From the foregoing decision, oppositor-appellant Republic of

the Philippines appealed to us by way of this petition for review
on certiorari.

After trial on the merits during which the parties were given all
the opportunity to present their evidence and refute the
evidence and arguments of the other side, the lower court
rendered a decision the dispositive portion of which reads:

The petitioner Republic of the Philippines raises a lone error

for the grant of this petition, stating that:

WHEREFORE, Judgment is hereby rendered granting

the instant petition and ordering the Local Civil
Registrar of the City of Cebu to make the necessary
cancellation and/or correction on the following entries:
A. In the Record of Birth of BERNARDO GO, to register
said Bernardo Go as 'FILIPINO' instead of 'CHINESE';
as 'ILLEGITIMATE instead of LEGITIMATE', and his
father's (GO ENG) and mother's (LEONOR VALENCIA)
civil status as 'SINGLE instead of MARRIED';
B. In the Record of Birth of JESSICA GO to register
said Jessica Go as 'FILIPINO' instead of 'CHINESE'; as
'ILLEGITIMATE' instead of 'LEGITIMATE' and father's
(GO ENG) and mother's (LEONOR VALENCIA) civil
status as 'SINGLE instead of MARRIED': and
C. In both Records of Birth of Bernardo Go and Jessica
Go to change the entry on Petitioner's Citizenship from
'CHINESE to FILIPINO'.

THE LOWER COURT ERRED IN ORDERING THE

CORRECTION OF THE PETITIONER'S CITIZENSHIP
AND CIVIL STATUS AND THE CITIZENSHIP AND
CIVIL STATUS OF HER MINOR CHILDREN
BERNARDO GO AND JESSICA GO.
The petitioner premises its case on precedents from the 1954
case of Ty Kong Tin v. Republic (94 Phil. 321) to the 1981
case of Republic v. Caparosso (107 SCRA 67), that entries
which can be corrected under Article 412 of the New Civil
Code as implemented by Rule 108 of the Revised Rules of
Court refer to those mistakes that are clerical in nature or
changes that are harmless and innocuous (Wong v. Republic,
115 SCRA 496). In Republic v. Medina(119 SCRA 270) citing
the case of Chua Wee, et al, v. Republic (38 SCRA 409), there
was this dicta:
From the time the New Civil Code took effect on August
30, 1950 until the promulgation of the Revised Rules of
Court on January 1, 1964, there was no law nor rule of
court prescribing the procedure to secure judicial
authorization to effect the desired innocuous

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rectifications or alterations in the civil register pursuant
to Article 412 of the New Civil Code. Rule 108 of the
Revise Rules of Court now provides for such a
procedure which should be limited solely to the
implementation of Article 412, the substantive law on
the matter of correcting entries in the civil register. Rule
108, lie all the other provisions of the Rules of Court,
was promulgated by the Supreme Court pursuant to its
rule- making authority under Sec. 13 of Art. VIII of the
Constitution, which directs that such rules of court 'shall
not diminish or increase or modify substantive rights.' If
Rule 108 were to be extended beyond innocuous or
harmless changes or corrections of errors which are
visible to the eye or obvious to the understanding, so
as to comprehend substantial and controversial
alterations concerning citizenship, legitimacy or
paternity or filiation, or legitimacy of marriage, said
Rule 108 would thereby become unconstitutional for it
would be increasing or modifying substantive rights,
which changes are not authorized under Article 412 of
the New Civil Code.
xxx xxx xxx
It is undoubtedly true that if the subject matter of a petition is
not for the correction of clerical errors of a harmless and
innocuous nature, but one involving nationality or citizenship,
which is indisputably substantial as well as controverted,
affirmative relief cannot be granted in a proceeding summary
in nature. However, it is also true that a right in law may be
enforced and a wrong may be remedied as long as the
appropriate remedy is used. This Court adheres to the
principle that even substantial errors in a civil registry may be
corrected and the true facts established provided the parties
aggrieved by the error avail themselves of the appropriate
adversary proceeding. As a matter of fact, the opposition of the

Solicitor General dated February 20, 1970 while questioning

the use of Article 412 of the Civil Code in relation to Rule 108
of the Revised Rules of Court admits that "the entries sought
to be corrected should be threshed out in an appropriate
proceeding.
What is meant by "appropriate adversary proceeding?" Black's
Law Dictionary defines "adversary proceeding as follows:
One having opposing parties; contested, as
distinguished from an ex parte application, one of
which the party seeking relief has given legal warning
to the other party, and afforded the latter an opportunity
to contest it. Excludes an adoption proceeding." (Platt
v. Magagnini, 187 p. 716, 718, 110 Was. 39).
The private respondent distinguishes between summary
proceedings contemplated under Article 412 of the Civil Code
and fullblown adversary proceedings which are conducted
under Rule 108 of the Rules of Court.
She states:
It will please be considered that the nature of the
matters that may be changed or corrected are of two
kinds. It may either be mistakes that are clerical in
nature or substantial ones. Under the first category are
those 'harmless and innocuous changes, such as
correction of a name that is clearly misspelled,
occupation of the parents, etc.,' (Ansaldo v. Republic,
No. L-10276, Feb. 14, 1958, 54 O.G. 5886) or 'one' that
is visible to the eyes or obvious to the understanding'.
(Black v. Republic, No. L-10869, Nov. 28, 1958, 104
Phil. 848).

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To the second category falls those which affect the civil
status or citizenship or nationality of a party (Ty Kong
Tin v. Republic, No. L-5609, Feb. 5, 1954, 94 Phil. 321:
Tan Su v. Republic, No. L-12140, April 29, 1959, 105
Phil. 578: Black v. Republic, No. L-10869, Nov. 28,
1958, 104 Phil. 848; Bantoco Coo v. Republic, No. L14978, May 23,1961, 2 SCRA 42: Barillo v. Republic,
No. L-14823, Dec. 28, 1961, 3 SCRA 725).

First, that proceedings under Article 412 of the

New Civil Code are summary:

Changes or corrections in the entries in the civil registry

were governed, at first, by Act No. 3753 (Civil Registry
Law) which placed these matters exclusively upon the
sound judgment and discretion of the civil registrars.
With the effectivity of the New Civil Code on August 30,
1950, these matters were governed by Article 412
thereof which prescribes judicial order before an entry
in a civil register shall be changed or corrected. This
requirement was deemed necessary to forestall the
commission of fraud or other mischief in these matters.

Third, that if the change or correction sought

refers to mere correction of mistakes that are
clerical in nature the same may be done, under
Article 412 of the Civil Code; otherwise, if it
refers to a substantial change which affects the
civil status or citizenship of a party. the matter
should be threshed out in a proper action.

But even then, it is not any correction that can be

considered under Article 412 of he Civil Code. The
nature of the corrections sought has to be considered
and if found to refer only to clerical errors the same
may be allowed under said article which was construed
to contemplate only a summary proceeding.
And so in the Ty Kong Tin case, this Honorable Court
took occasion to draw a distinction between what
entries in the civil register could be corrected under
Article 412 of the New Civil Code and what could not.
In the process, to our mind, this Honorable Court set
down propositions which hold true not only in that case
but also in the subsequent cases for the latter merely
reiterated the Ty Kong Tin decision. These are:

Second, that corrections in the entires in the

civil register may refer to either mere mistakes
that are clerical in nature or substantial ones
which affects the civil status or -the nationality
or citizenship of the persons involved; and

To our humble estimation, these propositions do

not altogether bar or preclude substantial
changes or corrections involving such details as
the civil status or nationality of a party. As a
matter of fact, just three years after the Ty Kong
Tin decision, this Honorable Court allowed a
party to correct mistakes involving such
substantial matters as his birthplace and
citizenship in the birth certificates of his two
sons. (Lim v. Republic, No. L-8932, May 31,
1957, 101 Phil. 1235)
Only that where the correction pertains to
matters which are important and controversial
certain conditions sine que non have to be
complied with. Thus it was held:
If it refers to a substantial change which affects
the status or citizenship of a party, the matter

10
should be threshed out in a proper action ... .'
(Ty Kong Tin v. Republic, supra)

(Matias v. Republic, No.

L-26982, May 8, 1969.

. . . . for changes involving the civil status of the

parents, their nationality or citizenship, those
are grave and important matters which may
have a bearing and effect on the citizenship and
nationality not only of said parents, but of the
offsprings, and to seek said changes, it is not
only the State, but also all parties concerned
and affected should be made parties
defendants or respondents, and evidence
should be submitted, either to support the
allegations of the petition or complaint, or also
to disprove the same so that any order or
decision in the case may be made in the entry
in a civil register that will affect or even
determine conclusively the citizenship or
nationality of a person therein involved.
(Ansaldo v. Republic, 54 O.G. 5886; Emphasis
supplied; Reiterated in the cases of: Tan Su v.
Republic, supra; Bantoto Coo v. Republic,
supra; Barillo v. Republic, supra; San Luis de
Castro v. Republic, L-17431, April 30, 1963; Ilu
Lin v. Republic, L- 18213, Dec. 24, 1963; Reyes
v. Republic, No.
L-17642, Nov. 27, 1964; Calicdan Baybayan v.
Republic, L-20707, March 18, 1966; Tan v.
Republic, L-19847, April 29, 1966).

It will thus be gleaned from the foregoing that

corrections involving such matters as the civil
status of the parents, their nationality or
citizenship may be allowed provided the proper
suit is filed.

If at all what is forbidden is, in the words of Mr.

Justice J.B.L. Reyes, 'only the entering of
material corrections or amendments in the
record of birth by virtue of a judgment in a
summary action against the Civil Registrar.

The court's role in hearing the petition to correct certain entries

in the civil registry is to ascertain the truth about the facts
recorded therein. Under our system of administering justice,
truth is best ascertained or approximated by trial conducted
under the adversary system,
Excerpts from the Report on Professional Responsibility
issued jointly by the Association of American Law Schools and
the American Bar Association explain why:
An adversary presentation seems the only
effective means for combatting this natural
human tendency to judge too swiftly in terms of
the familiar that which is not yet fully known.
The arguments of counsel hold the case, as it
were, in suspension between two opposing
interpretations of it. While the proper
classification of the case is thus kept
unresolved, there is time to explore all of its
peculiarities and nuances.
These are the contributions made by partisan
advocacy during the public hearing of the
cause. When we take into account the
preparation that must precede the hearing, the
essential quality of the advocate's contribution
becomes even more apparent. Preceding the

11
hearing inquiries must be instituted to determine
what facts can be proved or seem sufficiently
established to warrant a formal test of their truth
during the hearing. There must also be a
preliminary analysis of the issues, so that the
hearing may have form and direction. These
preparatory measures are indispensable
whether or not the parties involved in the
controversy are represented by advocates.
Where that representation is present there is an
obvious advantage in the fact that the area of
dispute may be greatly reduced by an exchange
of written pleadings or by stipulations of
counsel. Without the participation of someone
who can act responsibly for each of the parties,
this essential narrowing of the issues becomes
impossible. But here again the true significance
of partisan advocacy lies deeper, touching once
more the integrity of the adjudicative process
itself. It is only through the advocate's
participation that the hearing may remain in fact
what it purports to be in theory; a public trial of
the facts and issues. Each advocate comes to
the hearing prepared to present his proofs and
arguments, knowing at the same time that his
arguments may fail to persuade and that his
proofs may be rejected as inadequate. It is a
part of his role to absorb these possible
disappointments. The deciding tribunal, on the
other hand, comes to the hearing uncommitted.
It has not represented to the public that any fact
can be proved, that any argument is sound, or
that any particular way of stating a litigant's
case is the most effective expression of its
merits.

xxx xxx xxx

These, then, are the reasons for believing that
partisan advocacy plays a vital and essential
role in one of the most fundamental procedures
of a democratic society. But if we were to put all
of these detailed considerations to one side, we
should still be confronted by the fact that, in
whatever form adjudication may appear, the
experienced judge or arbitrator desires and
actively seeks to obtain an adversary
presentation of the issues. Only when he has
had the benefit of intelligent and vigorous
advocacy on both sides can he feel fully
confident of his decision.
Viewed in this light, the role of the lawyer as a
partisan advocate appears, not as a regrettable
necessity, but as an indispensable part of a
larger ordering of affairs. The institution of
advocacy is not a concession to the frailties of
human nature, but an expression of human
insight in the design of a social framework
within which man's capacity for impartial
judgment can attain its fullest realization. (44
American Bar Association Journal (1160-1161,
1958)
Provided the trial court has conducted proceedings where all
relevant facts have been fully and properly developed, where
opposing counsel have been given opportunity to demolish the
opposite party's case, and where the evidence has been
thoroughly weighed and considered, the suit or proceeding is
appropriate.
The pertinent sections of Rule 108 provide:

12
SEC. 3. Parties When cancellation or
correction of an entry in the civil register is
sought, the civil registrar and all persons who
have or claim any interest which would be
affected thereby shall be made parties to the
proceeding.
SEC. 4. Notice and publication. Upon the
filing of the petition, the court shall, by an orde,
fix the time and place for the hearing of the
same, and cause reasonable notice thereof to
be given to the persons named in the petition.
The court shall also cause the order to be
published once in a week for three (3)
consecutive weeks in a newspaper of general
circulation in the province.
SEC, 5. Opposition. The civil registrar and
any person having or claiming any interest
under the entry whose cancellation or correction
is sought may, within fifteen (15) days from
notice of the petition, or from the last date of
publication of such notice, file his opposition
thereto.
Thus, the persons who must be made parties to a proceeding
concerning the cancellation or correction of an entry in the civil
register are-(1) the civil registrar, and (2) all persons who have
or claim any interest which would be affected thereby. Upon
the filing of the petition, it becomes the duty of the court to-(l)
issue an order fixing the time and place for the hearing of the
petition, and (2) cause the order for hearing to be published
once a week for three (3) consecutive weeks in a newspaper
of general circulation in the province. The following are
likewise entitled to oppose the petition: (I) the civil registrar,

and (2) any person having or claiming any interest under the
entry whose cancellation or correction is sought.
If all these procedural requirements have been followed, a
petition for correction and/or cancellation of entries in the
record of birth even if filed and conducted under Rule 108 of
the Revised Rules of Court can no longer be described as
"summary". There can be no doubt that when an opposition to
the petition is filed either by the Civil Registrar or any person
having or claiming any interest in the entries sought to be
cancelled and/or corrected and the opposition is actively
prosecuted, the proceedings thereon become adversary
proceedings.
In the instant case, a petition for cancellation and/or correction
of entries of birth of Bernardo Go and Jessica Go in the Civil
Registry of the City of Cebu was filed by respondent Leonor
Valencia on January 27, 1970, and pursuant to the order of the
trial court dated February 4, 1970, the said petition was
published once a week for three (3) consecutive weeks in
the, Cebu Advocate, a newspaper of general circulation in the
City of Cebu. Notice thereof was duly served on the Solicitor
General. the Local Civil Registrar and Go Eng. The order
likewise set the case for hearing and directed the local civil
registrar and the other respondents or any person claiming
any interest under the entries whose corrections were sought,
to file their opposition to the said petition. An opposition to the
petition was consequently filed by the Republic on February
26, 1970. Thereafter a full blown trial followed with respondent
Leonor Valencia testifying and presenting her documentary
evidence in support of her petition. The Republic on the other
hand cross-examined respondent Leonor Valencia.
We are of the opinion that the petition filed by the respondent
in the lower court by way of a special proceeding for
cancellation and/or correction of entries in the civil register with

13
the requisite notice and publication and the recorded
proceedings that actually took place thereafter could very well
be regarded as that proper suit or appropriate action.
In Matias v. Republic (28 SCRA 31), we held that:
xxx xxx xxx
. . . In the case of petitioner herein, however,
the proceedings were not summary, considering
the publication of the petition made by order of
the court in order to give notice to any person
that might be interested, including direct service
on the Solicitor General himself. Considering
the peculiar circumstances of this particular
case, the fact that no doubt is cast on the truth
of petitioner's allegations, or upon her evidence
in support thereof, the absence of any showing
that prejudice would be caused to any party
interested (since petitioner's own father testified
in her favor), and the publicity given to the
petition, we are of the opinion that the Ty Kong
Tin doctrine is not controlling this case. "
Only last year, we had occasion to clarify the Ty Kong Tin
doctrine, further. In Republic v. Macli-ing (135 SCRA 367, 370371), this Court ruled:
The principal ground relied upon in this appeal
is that Rule 108 of the Rules of Court upon
which private respondents anchor their Petition
is applicable only to changes contemplated in
Article 412 of the Civil Code, which are clerical
or innocuous errors, or to corrections that are
not controversial and are supported by

indubitable evidence. (Tiong v. Republic, 15

SCRA 262 [1965]).
It is true that the change from Esteban Sy to Sy
Piao would necessarily affect the Identity of the
father. (Barillo v. Republic, 3 SCRA 725 [1961])
In that sense, it can be said to be substantial.
However, we find indubitable evidence to
support the correction prayed for. . . .
xxx xxx xxx
In the case of Ty Kong Tin v. Republic, 94 Phil.
321 (1954), as well as subsequent cases
predicated thereon, we forbade only the
entering of material corrections in the record of
birth by virtue of a judgment in
a summary action. the proceedings below,
although filed under Rule 108 of the Rules of
Court, were not summary. The Petition was
published by order of the lower Court once a
week for three consecutive weeks in a
newspaper of general circulation in accordance
with law. The Solicitor General was served with
copy of the Petition as well as with notices of
hearings. He filed his Opposition to the Petition.
The Local Civil Registrar of the City of Baguio
was likewise duly served with copy of the
Petition. A Fiscal was always in attendance at
the hearings in representation of the Solicitor
General. He participated actively in the
proceedings, particularly, in the crossexamination of witnesses. And, notwithstanding
that all interested persons were cited to appear
to show cause why the petition should not be
granted, no one appeared to oppose except the

14
State through the Solicitor General. But neither
did the State present evidence in support of its
Opposition.
To follow the petitioner's argument that Rule 108 is not an
appropriate proceeding without in any way intimating what is
the correct proceeding or if such a proceeding exists at all,
would result in manifest injustice.
Apart from Bernardo Go and Jessica Go, there are four (4)
other sisters and one (1) other brother born of the same father
and mother. Not only are all five registered as Filipino citizens
but they have pursued careers which require Philippine
citizenship as a mandatory pre-requisite. To emphasize the
strict policy of the government regarding professional
examinations, it was the law until recently that to take the
board exams for pharmacist, the applicant should possess
natural born citizenship. (See. 18, Republic Act 5921 and Sec.
1, P.D. 1350)
The sisters and brother are:
1. Sally Go, born on April 29, 1934 was licensed as a
Pharmacist after passing the government board examinations
in 1956.
2. Fanny Go, born on July 12, 1936 is a Registered Nurse who
passed the government board examinations in 1960.
3. Corazon Go, born on June 20, 1939, during the trial of this
case in 1970 was a fourth year medical student, qualified to
take the government board examinations after successfully
completing the requirements for a career in medicine, and
presumably is a licensed physician now.

4. Antonio Go, born February 14, 1942 was an engineering

student during the 1970 trial of the case and qualified by
citizenship to take government board examinations.
5. Remedios Go, born October 4, 1945 was a licensed
Optometrist after passing the government board examinations
in 1967.
The above facts were developed and proved during trial. The
petitioner failed to refute the citizenship of the minors Bernardo
and Jessica Go.
In this petition, it limits itself to a procedural reason to
overcome substantive findings by arguing that the proper
procedure was not followed.
There are other facts on the record. Leonor Valencia is a
registered voter and had always exercised her right of suffrage
from the time she reached voting age until the national
elections immediately preceding the filing of her petition. The
five other sisters and brother are also registered voters and
likewise exercised the right of suffrage.
An uncle of the mother's side had held positions in the
government having been elected twice as councilor and twice
as vice-mayor of Victorias, Negros Occidental. Respondent
Leonor Valencia has purchased and registered two (2) parcels
of land as per Transfer Certificate of Title No. T-46104 and
Transfer Certificate of Title No. T-37275. These allegations are
well documented and were never contradicted by the
Republic. As correctly observed by the lower court.
The right of suffrage is one of the important
rights of a citizen. This is also true with respect
to the acquisition of a real property. The
evidence further shows that her children had

15
been allowed to take the Board Examinations
given by the Government for Filipino citizens
only.
It would be a denial of substantive justice if two children
proved by the facts to be Philippine citizens, and whose five
sisters and brother born of the same mother and father enjoy
all the rights of citizens, are denied the same rights on the
simple argument that the "correct procedure" not specified or
even intimated has not been followed.
We are, therefore, constrained to deny the petition.
WHEREFORE, the petition is DENIED for lack of merit.
The decision of the lower court is AFFIRMED.
SO ORDERED.
Teehankee, Concepcion, Jr., Abad Santos, Melencio-Herrera,
Plana, Escolin, De la Fuente, Cuevas, Alampay and Patajo,
JJ., concur.
Aquino, C.J., took no part.

16
FIRST DIVISION

G.R. No. L-53417 December 8, 1988

EMPERATRIZ LABAYO-ROWE, petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, respondents.
Avelino L. Liangco for petitioner.
Office of the Solicitor General for respondent.

GANCAYCO, J.:
At issue in this petition is the nature of the proceedings
required in order to effect correction of entries in the civil
registry involving the correct spelling of the surname as well as
the civil status of the mother at the time of the birth of her
child.
On November 18, 1970, Emperatriz Labayo-Rowe, petitioner
below, filed through counsel 1 a petition for the correction of
entries in the civil registry with the then Court of First Instance
of Pampanga. 2 She asked the court to order the Local Civil
Registrar of San Fernando, Pampanga to correct the entries in
the birth certificates of her children Vicente L. Miclat, Jr. and
Victoria Miclat especially with regard to petitioner's name
which appears in both certificates as "Beatriz Labayo-Labayu
and as regards her civil status and date of marriage which
appears in the birth certificate of Victoria Miclat as "married"
with the year appearing "1953 Bulan." 3

In the order dated December 3, 1970, Judge Malcolm

Sarmiento, finding the petition to be sufficient in form and
substance, granted the petition and set the case for hearing on
January 20, 1971. 4 As directed by the court, the said order
was published in Voice, a local newspaper of general
circulation in Pampanga for three (3) consecutive weeks,
particularly in its issues of December 6, 13, and 20,
1970. 5 The Republic was represented by Assistant Provincial
Fiscal Jose R. Paras who appeared for the Solicitor General.
At the hearing, petitioner testified that her nickname is Beatriz
and Emperatriz J. Labayo is her real name; that the entry in
Victoria Miclat's birth certificate stating her civil status as
"married" is not correct because she was never married to
Vicente Miclat, the father of her child; that the date and place
of marriage appearing in the said birth certificate as 1953Bulan is not true as they were never married; that the
questioned entries were reported by Vicente Miclat; and that
she is at present married to an American by the name of
William Rowe.
Finding merit in the petition, the presiding judge issued an
order dated January 25, 1971 directing the local civil registrar
of San Fernando, Pampanga to correct the entries under
Register No. 2083, Series of 1961, and to change the name of
the mother appearing as Beatriz Labayo to Emperatriz
Labayo. The court also directed the civil registrar to correct the
name of the mother appearing as Beatriz V. Labayu/Beatriz to
Emperatriz Labayo, her civil status from "married" to "single"
and the date and place of marriage from "1953-Bulan" to "No
marriage."
On February 19, 1971, the Assistant Provincial Fiscal of
Pampanga filed a notice of appeal together with the record on
appeal, praying that the same be approved and forwarded to
the Court of Appeals. There being no objection interposed and

17
since the record on appeal was filed within the reglementary
period, the same was approved and directed to be forwarded
to the Court of Appeals in an Order dated March 22, 1971. 6
In its appeal, the Republic questions the propriety of the lower
court's order to correct the civil status and the date and place
of marriage of the petitioner below as appearing in the birth
certificate of Victoria Miclat. Anchoring its argument in the
ruling of this Court in Chua Wee vs. Republic, 7 and Go
vs. Civil Registrar of the Municipality of Malabon, 8 the
Republic prays for the reversal of the order of the lower court
dated January 25, 1971. It likewise prayed that the appeal be
elevated to this Court as it involves a pure question of law. 9
The Court of Appeals was of the view that the question on
appeal pertains only to the propriety of the lower court's order
dated January 25, 1971 directing the changes in the entries of
the birth certificate of Victoria Miclat. In its Resolution dated
December 28, 1979, 10 the appellate court ordered the
certification and elevation of the case to this Court inasmuch
as the appeal involves a pure question of law.
Article 412 of the Civil Code provides that "(n)o entry in a civil
register shall be changed or corrected without judicial order." It
has been held that the corrections contemplated in Article 412
include only corrections of mistakes that are clerical in nature.
In Go vs. Civil Registrar of the Municipality of Malabon, 11 this
Court ruled that the clerical errors which might be corrected
through judicial sanction under the said article should be those
harmless and innocuous changes such as the correction of
names clearly misspelled, 12 occupation of parents, errors that
are visible to the eye or obvious to the understanding, errors
made by a clerk or transcriber, or a mistake in copying or
writing. 13

If the purpose of the petition is merely to correct the clerical

errors which are visible to the eye or obvious to the
understanding, 14 the court may, under a summary procedure,
issue an order for the correction of the mistake. 15 However, as
repeatedly construed, changes which may affect the civil
status from legitimate to illegitimate, as well as sex, are
substantial and controversial alterations which can only be
allowed after appropriate adversary proceedings 16 depending
upon the nature of the issues involved. 17 This opinion is
predicated upon the theory that the procedure contemplated in
Article 412 is summary in nature which does not cover cases
involving controversial issues. 18 Changes which affect the civil
status or citizenship of a party are substantial in character and
should be threshed out in a proper action depending upon the
nature of the issues in controversy, 19 and wherein all the
parties who may be affected by the entries are notified or
represented and evidence is submitted to prove the allegations
of the complaint, and proof to the contrary admitted. 20 The
philosophy behind this requirement lies in the fact that the
books making up the civil register and all documents relating
thereto shall be prima facie evidence of the facts therein
contained. 21 If the entries in the civil register could be
corrected or changed through mere summary proceedings and
not through appropriate action wherein all parties who may be
affected by the entries are notified or represented, the door to
fraud or other mischief would be set open, the consequence of
which might be detrimental and far reaching. 22 For these
reasons, the law has placed the necessary safeguards to
forestall such an eventuality so that even on matters which call
for a correction of clerical mistakes, the intervention of the
courts was found necessary.
As earlier noted, the petition for correction of entries in the civil
registry which is now before Us on appeal by the Republic
does not only involve the correction of petitioner Labayo's
name and surname registered as "Beatriz Labayo/Beatriz

18
Labayo in the birth certificates of her children. The petition also
seeks the change of her status from "married" to "not married"
at the time of her daughter's birth, thereby changing the status
of her child Victoria Miclat from "legitimate" to "illegitimate."
The change of petitioner's name from Beatriz Labayo/Beatriz
Labayo to Emperatriz Labayo is a mere innocuous alteration
wherein a summary proceeding is appropriate. The Republic,
however, is appealing the part of the questioned Order which
directed as well the change of the petitioner's status from
"married" to "not married" and Victoria Miclat's filiation from
"legitimate" to "illegitimate."
In David vs. Republic, 23 this Court held' that where the petition
for correction of entries in the civil registry, if granted, will have
the effect of changing not only the civil status of the petitioner
but as well as her child's filiation from "legitimate" to
"illegitimate," the same cannot be granted except in an
adversary proceeding. The matter should be threshed out in
an appropriate action as the corrections involve substantial
alterations, and not mere clerical errors. 24 An appropriate
proceeding is required wherein all the indispensable parties
should be made parties to the case as required under Section
3, Rule 108 of the Revised Rules of Court.
In the case before Us, since only the Office of the Solicitor
General was notified through the Office of the Provincial
Fiscal, representing the Republic of the Philippines as the only
respondent, the proceedings taken, which is summary in
nature, is short of what is required in cases where substantial
alterations are sought. Aside from the Office of the Solicitor
General, all other indispensable parties should have been
made respondents. They include not only the declared father
of the child but the child as well, together with the paternal
grandparents, if any, as their hereditary rights would be
adversely affected thereby 25 All other persons who may be
affected by the change should be notified or

represented. 26 The truth is best ascertained under an

adversary system of justice. 27
The right of the child Victoria to inherit from her parents would
be substantially impaired if her status would be changed from
"legitimate" to "illegitimate." Moreover, she would be exposed
to humiliation and embarassment resulting from the stigma of
an illegitimate filiation that she will bear thereafter. The fact
that the notice of hearing of the petition was published in a
newspaper of general circulation and notice thereof was
served upon the State will not change the nature of the
proceedings taken. Rule 108, like all the other provisions of
the Rules of Court, was promulgated by the Supreme Court
pursuant to its rule-making authority under Section 13, Article
VIII of the 1973 Constitution 28 which directs that such rules
"shall not diminish, increase or modify substantive rights." If
Rule 108 were to be extended beyond innocuous or harmless
changes or corrections of errors which are visible to the eye or
obvious to the understanding, so as to comprehend substantial
and controversial alterations concerning citizenship, legitimacy
of paternity or filiation, or legitimacy of marriage, without
observing the proper proceedings as earlier mentioned, said
rule would thereby become an unconstitutional exercise which
would tend to increase or modify substantive rights. This
situation is not contemplated under Article 412 of the Civil
Code.
WHEREFORE, premises considered, the Order appealed from
is hereby MODIFIED by nullifying the portion which directs the
change of petitioner's civil status as well as the filiation of the
child Victoria Miclat. Let a copy of this decision be served upon
the Local Civil Registrar of San Fernando, Pampanga for
proper implementation. No costs. This decision is immediately
executory.
SO ORDERED.

19
Cruz, Grio-Aquino and Medialdea, JJ., concur.

15 Ty Kong Tin vs. Republic of the Phil., 94 Phil.

321 (1954); 50 O.G. 1077-1079.

Narvasa, J., is on leave.

16 Espiritu vs. Republic, 55 O.G. 4832; Balete
vs. Republic, 3 SCRA 582 (1961).

Footnotes
1 Atty. Avelino L. Liangco.

17 Republic vs. Medina, 119 SCRA 210 (1982).

2 Sp. Proc. No. 2228.

18 Go vs. Civil Registrar of the Municipality of

Malabon, supra.

3 Pages 4 & 5, Record on Appeal.

4 Page 8, Id.
5 Order dated January 25, 1971, pp. 8-10, Id.
6 Pages 12-13, Rollo.
7 38 SCRA 409 (1971).
8 39 SCRA 350 (1971).
8 Pages 3-5, Brief for the Appellant.
10 Penned by Associate Justice Benjamin E
Gorospe and concurred in by Justices Crisolito
Pascual and Carlos L. Sundiam .
11 Supra.
12 Barillo vs. Republic, 13 SCRA 725 (1961).
13 Wong vs, Republic, 115 SCRA 496 (1982).
14 Chua Wee vs. Republic, supra.

19 Reyes vs. Republic, 12 SCRA 377 (1964).

20 Lui Lin vs. Nuno 9 SCRA 707 (1963).
21 Article 410, Civil Code.
22 Ty Kong Tin vs. Republic, supra.
23 15 SCRA 438 (1965).
24 Chung Sui vs. Local Civil Registrar of
Manila, 20 SCRA 877 (1967).
25 Articles 887, 888, 893 and 895 of the Civil
Code.
26 Wong vs. Republic, supra.
27 Republic vs. Valencia, 141 SCRA 462
(1986).
28 Now Section 5, Article VIII of the 1987
Constitution.

20
FIRST DIVISION

G.R. No. L-32026 January 16, 1986

RE: PETITION FOR DECLARATION OF ABSENCE OF
ROBERTO L. REYES. ERLINDA REYNOSO
REYES,petitioner,
vs.
HON, JOSE P. ALEJANDRO, in his capacity as Judge,
Court of First Instance of Cavite, Branch II, Cavite
City, respondents.

PATAJO, J.:
This is an appeal from an order of the Court of First Instance
of Cavite dismissing the petition filed by petitioner-appellant
Erlinda Reynoso Reyes to have her husband Roberto Reyes
declared an absentee.
In a petition filed on October 25, 1969 Erlinda Reynoso prayed
for the declaration of the absence of her husband Roberto L.
Reyes alleging that her husband had been absent from their
conjugal dwelling since April 1962 and since then had not
been heard from and his whereabouts unknown. The petition
further alleged that her husband left no will nor any property in
his name nor any debts.
The evidence presented by petitioner in support of her petition
established that she and Roberto L. Reyes were married on
March 20, 1960; that sometime in April 1962 her husband left
the conjugal home due to some misunderstanding over
personal matters; that since then petitioner has not received

any news about the whereabouts of her husband; that they

have not acquired any properties during their marriage and
that they have no outstanding obligation in favor of anyone;
that her only purpose in filing the petition is to establish the
absence of her husband, invoking the provisions of Rule 107
of the New Rules of Court and Article 384 of the Civil Code.
After hearing the Court a quo dismissed the petition on the
ground that since Roberto L. Reyes left no properties there
was no necessity to declare him judicially an absentee. It said:
A perusal of Rule 107 of the Rules of Court on
absentees reveals that it is based on the provisions of
Title XIV of the New Civil Code on absence. And the
reason and purpose of the provisions of the New Civil
Code on absence (Arts. 381 to 396) are: (1) The
interest of the person himself who has disappeared; (2)
The rights of third parties against the absentee,
especially those who have rights which would depend
upon the death of the absentee; and (3) The general
interest of society which may require that property does
not remain abandoned without someone representing it
and without an owner (Civil Code by Francisco, Vol. 2,
pp. 930- 931, 1953 Ed.).
It will thus be noted that said provisions of the New
Civil Code are concerned with absence only with
reference to its effects on property (2 Manresa, 101102, Civil Code by Francisco, Vol. 2, p. 932. 1953 Ed.).
Article 384, New Civil Code, which is reproduced from
Article 184 of the old Code, and relied upon by herein
petitioner, refers to the second period or stage of
absence, and specifically indicates the precise moment
when the same may begin. Thus, this article provides
that after the lapse of two (2) years without any news
about the absentee or since the receipt of the last

21
news, and five (5) years in case the absentee has left a
person in charge of the administration of his property,
his absence may be declared by the Court. The
primordial purpose of this declaration is to provide for
an administrator of the property of the absentee. It
cannot be said that because of the comma (,) between
the words 'news' and 'and', the two-year period
mentioned in the first part of the law has no reference
to or bearing on the property of the absentee. Manresa
states that the only reason for the different periods is
because in one case (2 years) the absentee has not
left a person in charge of the administration of his
property, and in the other case (5 years) the absentee
has provided for his absence by appointing an
administrator of his property dispensing in a way the
giving of news about himself (2 Manresa, 127-128). It is
worth to note, in this connection, that the first period or
stage of absence as covered by Article 381 of the New
Civil Code provides for provisional measures-the
appointment by the Court of a person to represent the
absentee' in all that may be necessary'-when a mere
presumption of his absence arises. It should be noted
that the appointment of a 'representative' of the
absentee is for the protection of the interest of the
latter. This is clear from the provisions of Article 382
which enjoins the judge to 'take the necessary
measures to safeguard the rights and interests of the
absentee. ... Moreover, it is not enough that a person is
declared an absentee. The law (see Articles 381, 382
and 383) requires the judge to appoint a representative
for the absentee precisely to safeguard the property or
interest of the latter. It is thus imperative that the
declaration of absence be for a specific purpose, and
that purpose can be no other than the protection of the
interest or property of the absentee. Castan, in his
commentary, emphatically states that there must be an

immediate necessity for the representation of the

absentee in some specific urgent matters (Vol. 1, pp.
182-183).
The same observation and commentary can be said of
the corresponding complimenting provisions of Rule
107 of the Rules of Court, particularly Sections 6 and 7
thereof which make it mandatory upon the Court to
appoint a representative, trustee or administrator who
shall safeguard the rights and interest of the absentee.
Considering that neither the petition alleges, nor the
evidence shows, that Roberto L. Reyes has any rights,
interest or property in the Philippines, there is no point
in judicially declaring him an absentee.
We affirm the order of the lower Court dismissing the petition.
As this Court said in Jones vs. Hortiguela, 64 Phil. 197:
... For the purposes of the civil marriage law, it is not
necessary to have the former spouse judicially
declared an absentee. The declaration of absence
made in accordance with the provisions of the Civil
Code has for its sole purpose to enable the taking of
the necessary precautions for the administration of the
estate of the absentee. For the celebration of civil
marriage, however, the law only requires that the
former spouse has been absent for seven consecutive
years at the time of the second marriage, that the
spouse present does not know his or her former
spouse to he living, that such former spouse is
generally reputed to be dead and the spouse present
so believes at the time of the celebration of the
marriage (section III, paragraph 2, General Orders, No.
68). (On page 183).

22
The need to have a person judicially declared an absentee is
when he has properties which have to be taken cared of or
administered by a representative appointed by the Court
(Article 384, Civil Code); the spouse of the absentee is asking
for separation of property (Article 191, Civil Code) or his wife is
asking the Court that the administration of an classes of
property in the marriage be transferred to her (Article 196, Civil
Code). The petition to declare the husband an absentee and
the petition to place the management of the conjugal
properties in the hands of the wife may be combined and
adjudicated in the same proceedings, Peyer vs. Martinez, 88
Phil. 72, 80).
IN VIEW OF THE FOREGOING, judgment is hereby rendered
AFFIRMING the order of the lower Court dismissing the
petition to declare Roberto L. Reyes an absentee. With costs
against petitioner-appellant.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova
Gutierrez, Jr. and De la Fuente, JJ., concur.

23
THIRD DIVISION
[G.R. No. 136467. April 6, 2000]

ANTONIA ARMAS Y CALISTERIO, petitioner,

vs. MARIETTA CALISTERIO, respondent.
DECISION
VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving
several parcels of land with an estimated value of
P604,750.00. Teodorico was survived by his wife, herein
respondent Marietta Calisterio. Esm
Teodorico was the second husband of Marietta who had
previously been married to James William Bounds on 13
January 1946 at Caloocan City. James Bounds disappeared
without a trace on 11 February 1947. Teodorico and Marietta
were married eleven years later, or on 08 May 1958, without
Marietta having priorly secured a court declaration that James
was presumptively dead. Esmsc
On 09 October 1992, herein petitioner Antonia Armas y
Calisterio, a surviving sister of Teodorico, filed with the
Regional Trial Court ("RTC") of Quezon City, Branch 104, a
petition entitled, "In the Matter of Intestate Estate of the
Deceased Teodorico Calisterio y Cacabelos, Antonia Armas,
Petitioner," claiming to be inter alia, the sole surviving heir of
Teodorico Calisterio, the marriage between the latter and
respondent Marietta Espinosa Calisterio being allegedly
bigamous and thereby null and void. She prayed that her son
Sinfroniano C. Armas, Jr., be appointed administrator, without

bond, of the estate of the deceased and that the inheritance be

adjudicated to her after all the obligations of the estate would
have been settled.
Respondent Marietta opposed the petition. Marietta stated that
her first marriage with James Bounds had been dissolved due
to the latter's absence, his whereabouts being unknown, for
more than eleven years before she contracted her second
marriage with Teodorico. Contending to be the surviving
spouse of Teodorico, she sought priority in the administration
of the estate of the decedent. Esmmis
On 05 February 1993, the trial court issued an order
appointing jointly Sinfroniano C. Armas, Jr., and respondent
Marietta administrator and administratrix, respectively, of the
intestate estate of Teodorico.
On 17 January 1996, the lower court handed down its decision
in favor of petitioner Antonia; it adjudged:
"WHEREFORE, judgment is hereby rendered finding
for the petitioner and against the oppositor whereby
herein petitioner, Antonia Armas y Calisterio, is
declared as the sole heir of the estate of Teodorico
Calisterio y Cacabelos."[1]
Respondent Marietta appealed the decision of the trial court to
the Court of Appeals, formulating that"1. The trial court erred in applying the provisions of the
Family Code in the instant case despite the fact that
the controversy arose when the New Civil Code was
the law in force.
"2. The trial court erred in holding that the marriage
between oppositor-appellant and the deceased

24
Teodorico Calisterio is bigamous for failure of the
former to secure a decree of the presumptive death of
her first spouse.
"3. The trial court erred in not holding that the property
situated at No. 32 Batangas Street, San Francisco del
Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico
Calisterio. Esmso
"4. The trial court erred in holding that oppositorappellant is not a legal heir of deceased Teodorico
Calisterio.
"5. The trial court erred in not holding that letters of
administration should be granted solely in favor of
oppositor-appellant."[2]
On 31 August 1998, the appellate court, through Mr. Justice
Conrado M. Vasquez, Jr., promulgated its now assailed
decision, thus:
"IN VIEW OF ALL THE FOREGOING, the Decision
appealed from is REVERSED AND SET ASIDE, and a
new one entered declaring as follows:
"(a) Marietta Calisterio's marriage to Teodorico remains
valid;
"(b) The house and lot situated at #32 Batangas Street,
San Francisco del Monte, Quezon City, belong to the
conjugal partnership property with the concomitant
obligation of the partnership to pay the value of the
land to Teodorico's estate as of the time of the taking;

"(c) Marietta Calisterio, being Teodorico's compulsory

heir, is entitled to one half of her husband's estate, and
Teodorico's sister, herein petitioner Antonia Armas and
her children, to the other half; Msesm
"(d) The trial court is ordered to determine the
competence of Marietta E. Calisterio to act as
administrator of Teodorico's estate, and if so found
competent and willing, that she be appointed as such;
otherwise, to determine who among the deceased's
next of kin is competent and willing to become the
administrator of the estate."[3]
On 23 November 1998, the Court of Appeals denied
petitioner's motion for reconsideration, prompting her to
interpose the present appeal. Petitioner asseverates:
"It is respectfully submitted that the decision of the
Court of Appeals reversing and setting aside the
decision of the trial court is not in accord with the law or
with the applicable decisions of this Honorable Court."[4]
It is evident that the basic issue focuses on the validity of the
marriage between the deceased Teodorico and respondent
Marietta, that, in turn, would be determinative of her right as a
surviving spouse. Exsm
The marriage between the deceased Teodorico and
respondent Marietta was solemnized on 08 May 1958. The law
in force at that time was the Civil Code, not the Family Code
which took effect only on 03 August 1988. Article 256 of the
Family Code[5] itself limited its retroactive governance only to
cases where it thereby would not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other
laws.

25
Verily, the applicable specific provision in the instant
controversy is Article 83 of the New Civil Code which
provides: Kyle
"Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such
person with any person other than such first spouse
shall be illegal and void from its performance, unless:
"(1) The first marriage was annulled or dissolved; or
"(2) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally
considered as dead and believed to be so by the
spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed
dead according to articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases
until declared null and void by a competent court."
Under the foregoing provisions, a subsequent marriage
contracted during the lifetime of the first spouse is illegal and
void ab initio unless the prior marriage is first annulled or
dissolved. Paragraph (2) of the law gives exceptions from the
above rule. For the subsequent marriage referred to in the
three exceptional cases therein provided, to be held valid, the
spouse present (not the absentee spouse) so contracting the
later marriage must have done so in good faith.[6] Bad faith
imports a dishonest purpose or some moral obliquity and
conscious doing of wrong - it partakes of the nature of fraud, a
breach of a known duty through some motive of interest or ill
will.[7] The Court does not find these circumstances to be here
extant. Kycalr

A judicial declaration of absence of the absentee spouse is not

necessary[8] as long as the prescribed period of absence is
met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83, to
be deemed valid "until declared null and void by a competent
court." It follows that the burden of proof would be, in these
cases, on the party assailing the second marriage. Calrky
In contrast, under the 1988 Family Code, in order that a
subsequent bigamous marriage may exceptionally be
considered valid, the following conditions must concur; viz.: (a)
The prior spouse of the contracting party must have been
absent for four consecutive years, or two years where there is
danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance; (b) the spouse
present has a well-founded belief that the absent spouse is
already dead; and (c) there is, unlike the old rule, a judicial
declaration of presumptive death of the absentee for which
purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement
of judicial intervention in subsequent marriages as so provided
in Article 41[9], in relation to Article 40,[10] of the Family
Code. Mesm
In the case at bar, it remained undisputed that respondent
Marietta's first husband, James William Bounds, had been
absent or had disappeared for more than eleven years before
she entered into a second marriage in 1958 with the deceased
Teodorico Calisterio. This second marriage, having been
contracted during the regime of the Civil Code, should thus be
deemed valid notwithstanding the absence of a judicial
declaration of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence
having been adduced to indicate another property regime

26
between the spouses, pertains to them in common. Upon its
dissolution with the death of Teodorico, the property should
rightly be divided in two equal portions -- one portion going to
the surviving spouse and the other portion to the estate of the
deceased spouse. The successional right in intestacy of a
surviving spouse over the net estate[11] of the deceased,
concurring with legitimate brothers and sisters or nephews and
nieces (the latter by right of representation), is one-half of the
inheritance, the brothers and sisters or nephews and nieces,
being entitled to the other half. Nephews and nieces, however,
can only succeed by right of representation in the presence of
uncles and aunts; alone, upon the other hand, nephews and
nieces can succeed in their own right which is to say that
brothers or sisters exclude nephews and nieces except only in
representation by the latter of their parents who predecease or
are incapacitated to succeed. The appellate court has thus
erred in granting, in paragraph (c) of the dispositive portion of
its judgment, successional rights, to petitioner's children, along
with their own mother Antonia who herself is invoking
successional rights over the estate of her deceased
brother. Slx
WHEREFORE, the assailed judgment of the Coin of Appeals
in CA G.R. CV No. 51574 is AFFIRMED except insofar only as
it decreed in paragraph (c) of the dispositive portion thereof
that the children of petitioner are likewise entitled, along with
her, to the other half of the inheritance, in lieu of which, it is
hereby DECLARED that said one-half share of the decedent's
estate pertains solely to petitioner to the exclusion of her own
children. No costs.
SO ORDERED.

[1]
[2]

Rollo, p. 45.
Rollo, pp. 29-30.

[3]

Rollo, pp. 35-36.

Rollo, p. 15.
[5]
Article 256. This Code shall have retroactive effect insofar as it
does not prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws.
[6]
The good faith or bad faith of the other contracting party to the
subsequent marriage is not all that consequential (See Lapuz Sy vs.
Eufemio, 43 SCRA 177).
[7]
Commissioner of Internal Revenue vs. Court of Appeals, 267
SCRA 557.
[8]
Jones vs. Hortiguela, 64 Phil. 179.
[4]

[9]

Article 41. A marriage contracted by any person during the

subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior spouse
had been absent for four consecutive years and the spouse present
had a well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the civil
code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse.
[10]
Article 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void.
[11]
First deducting to her favor her one-half share of the conjugal
property.

27
SECOND DIVISION

G.R. No. 111717 October 24, 1994

NENITA BIENVENIDO, petitioner,
vs.
HON. COURT OF APPEALS, LUISITA CAMACHO and LUIS
FAUSTINO C. CAMACHO, respondents.
Abbas and Associates for petitioner.
Rolfando P. Quimbo for private respondents.

MENDOZA, J.:
This is a petition for review of the decision 1 of the Court of
Appeals in CA-G.R. CV No. 24893, the dispositive portion of
which reads:
WHEREFORE, and upon all the foregoing, the decision
of the court below dated August 29, 1989 is
REVERSED. The deed of sale executed by the late
Aurelio Camacho in favor of defendant Nenita T.
Bienvenido and Transfer Certificate of Title No. 326681
of the Register of Deeds of Quezon City issued in her
name are ANNULLED and in lieu thereof, a new
transfer certificate of title in the name of the spouses
Aurelio P. Camacho and Luisita C. Camacho shall
ISSUE, herein declaring said spouses the owners of
the property described in par. 8. of the complaint and
DISMISSING the other prayers in the complaint as well
as the defendant's counterclaim as baseless or without

sufficient evidence in support thereof. With costs

against the appellee. 2
Petitioner filed a motion for reconsideration but her motion was
denied in a resolution of the Court of Appeals promulgated on
August 19, 1993. 3
The background of this case is as follows:
Aurelio P. Camacho married Consejo Velasco in Manila on
October 3, 1942. On February 6, 1962, without his marriage to
Consejo Velasco being dissolved, Aurelio P. Camacho
contracted another marriage with respondent Luisita C.
Camacho (Luisita) with whom he had been living since 1953
and by whom he begot a child, respondent Aurelio Luis
Faustino C. Camacho (Chito) born on May 22, 1961. The
marriage was solemnized in Tokyo, Japan where Aurelio and
Luisita had been living since 1958.
There were instances during Luisita and Aurelio's marriage
when, because of their quarrels, one or the other left the
dwelling place for long periods of time. In her case Luisita
stayed on those occasions at various times in Davao City,
Hongkong or Japan.
In 1967 Aurelio met petitioner Nenita T. Bienvenido, who had
been estranged from her husband, Luis Rivera. Aurelio
courted her and apparently won her heart because from June
1968 until Aurelio's death on May 28, 1988, he lived with her,
the last time in a duplex apartment on 84 Scout Delgado
Street, Quezon City. Petitioner's daughter, Nanette, stayed
with them as did Aurelio's son, Chito, who lived with them for
about a year in 1976.
On April 30, 1982, Aurelio bought the house and the lot on
Delgado Street in which they were staying from the owners,

28
Paz Lorenzo Infante and Suzette Infante-Moozca. In the
deed of sale and Transfer Certificate of Title No. 288350 of the
Registry of Deeds of Quezon City, issued in his name, Aurelio
was described as single.
On November 26, 1984, Aurelio executed a deed of sale of the
property in favor of petitioner Nenita in consideration of the
sum of P250,000.00, by virtue of which Transfer Certificate of
Title No. 326681 was issued in petitioner's name on January
11, 1985.
Between 1985 and 1987 Nenita and Luisita came to know
each other. How they did is the subject of conflicting versions.
Luisita claims that Nenita called her (Luisita's) residence
several times, looking for Aurelio because the latter had
allegedly left their dwelling place. Petitioner, according to
Luisita, introduced herself as Mrs. Nenita Camacho.
On the other hand petitioner claims it was the other way
around that it was respondent Luisita who had called up
their residence many times, also looking for Aurelio to urge
him to file an application for American citizenship.
On May 28, 1988, Aurelio died. Petitioner, using her Loyola
Life Plan and Aurelio's account in the PCI Bank, took care of
the funeral arrangements. Respondent Luisita was then in the
United States with respondent Chito, having gone there,
according to her, at the instance of Aurelio in order to look for a
house in San Francisco so that Aurelio could follow and rejoin
them. Upon learning of the death of Aurelio she and her son
Chito came home on May 30, 1988. She had the remains of
Aurelio transferred from the Loyola Memorial Chapels, first to
the St. Ignatius Church and later to the Arlington Memorial
Chapels. Luisita paid for the funeral services.

Respondent Luisita was granted dealt benefits by the Armed

Forces of the Philippines as the surviving spouse of Aurelio.
Soon she also claimed ownership of the house and lot on
Scout Delgado Street in which Nenita had been living. The two
met at a barangay conciliation meeting but efforts to settle their
dispute failed.
On September 7, 1988, Luisita and her son Chito brought this
case in the Regional Trial Court of Quezon City, seeking the
annullment of the sale of the property to petitioner and the
payment to them of damages. Luisita alleged that the deed of
sale was a forgery and that in any event it was executed in
fraud of her as the legitimate wife of Aurelio.
In answer petitioner claimed that she and the late Aurelio had
purchased the property in question using their joint funds
which they had accumulated after living together for fourteen
years, that the sale of the property by the late Aurelio to her
was with respondent Luisita's consent; and that she was a
purchaser in good faith.
On August 29, 1989, the trial court rendered a decision
upholding the sale of the property to petitioner and dismissing
the complaint of Luisita. It found the deed of sale in favor of
petitioner to be genuine and respondents Luisita and Chito to
be in estoppel in not claiming the property until 1988 despite
knowledge of the sale by the late Aurelio who had represented
himself to be single. Respondents moved for a reconsideration
but the trial court denied their motion.
On appeal the respondents prevailed. On June 4, 1993, the
Court of Appeals reversed the decision of the trial court and
declared respondents to be the owners of the house and lot in
dispute. Although Luisita had admitted that as early as 1985
she knew that Nenita had been staying in the premises, the
appellate court held that respondents' action was not barred by

29
laches because Luisita allegedly did not know that Nenita had
obtained title to the property. On the merit, the Court of
Appeals ruled that in the absence of proof to the contrary,
Aurelio's first wife must be presumed to have been absent for
seven years without Aurelio having news of her being alive
when Aurelio contracted a second marriage. On this premise,
it held (1) that the property in dispute belonged to the conjugal
partnership of Aurelio and Luisita and (2) that the sale of the
property to Nenita was void for the same reason that
donations between persons who are guilty of concubinage or
adultery are declared void under
Art. 739 of the Civil Code.
Hence this petition for review of the decision of the Court of
Appeals. Petitioner claims that
I THE COURT ERRED IN PRESUMING THE
VALIDITY OF THE MARRIAGE BETWEEN AURELIO
AND LUISITA [RESPONDENT HEREIN];
II THE COURT ERRED IN APPLYING ARTICLE 739
OF THE NCC AND DECLARING INVALID THE DEED
OF SALE BETWEEN AURELIO AND NENITA
[PETITIONER HEREIN];
III THE COURT ERRED IN RULING THAT THE
SUBJECT PROPERTY FORMS PART OF THE
CONJUGAL PROPERTIES OF AURELIO AND
LUISITA.
IV THE COURT ERRED IN NOT FINDING THAT
PETITIONER IS NOT (sic) A PURCHASER IN GOOD
FAITH AND LAWFUL OWNER OF SUBJECT
PROPERTY.
We find the petition to be meritorious.

The resolution of this case hinges on the validity of Aurelio's

marriage to respondent Luisita. If that marriage was valid then
the property was property of their conjugal partnership and
Luisita is the proper party to question the validity of the sale to
Nenita. Otherwise, if the marriage is not valid, Luisita can not
bring this suit.
On the question of validity of Luisita's marriage to Aurelio, the
Court of Appeals ruled:
There is no dispute on the fact of appellant Luisita's
marriage in 1962 to Aurelio. What is in question is the
validity of that marriage considering Aurelio's purported
previous marriage to Consejo Velasco. The appellee
had attacked the validity of appellant's marriage in the
trial below, on account of the previous marriage of
Aurelio to Consejo Velasco, presenting evidence to that
effect (Exhs. 43 and 44) to bolster her claim. Appellee
likewise proved that Consejo Velasco although then a
resident of Australia, is still alive.
The burden of proof on the legality of appellant's
marriage with Aurelio must rest on the appellee as the
party who stands to benefit from a declaration of its
invalidity. But appellee failed to prove that such second
marriage (appellant's) was not valid because it was
contracted at a time and on the assumption that the
first spouse had been absent for seven years without
the spouse present having news of the absentee being
alive.
This Court finds that the presumption of the validity of
the marriage between Aurelio and Luisita has not been
successfully assailed by appellee.

30
The Court of Appeals thus presumed the validity of Aurelio's
second marriage from the failure of petitioner to prove that at
the time of such marriage Aurelio's first wife, Consejo, had not
been absent for at least seven years and that Aurelio did not
have news that his first wife was still alive.
Petitioner had shown that on February 6, 1962, when Aurelio
married Luisita, Aurelio's previous marriage to Consejo
Velasco was still subsisting and, therefore, his second
marriage was bigamous. It was the burden of herein
respondents to prove that, at the time of his second marriage
to respondent Luisita, Aurelio's first wife, Consejo Velasco, had
been absent for at least seven years and that Aurelio had no
news that she was alive. To assume these facts because
petitioner has not disproved them would be to stand the
principle on its head.
Thus, Art. 83 of the Civil Code provides:
Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such
person with any person other than such first spouse
shall be illegal and void from its performance, unless:
(1) the first marriage was annulled or dissolved; or

(2) the first spouse had been absent for seven

consecutive years at the time of the second marriage
without the spouse present having news of the
absentee being alive, or if the absentee, though he has
been absent for less than seven years, is generally
considered as dead and believed to be so by the
spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed
dead according to articles 390 and 391. The marriage
so contracted shall be valid in any of the three cases
until declared null and void by a competent court.
As this Court has already explained, the general rule is that
stated in the first sentence of this provision: "Any marriage
subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than
such first spouse shall be illegal and void from its
performance." The exceptions are those stated in paragraphs
1 and 2. The burden is on the party invoking any of the
exceptions. 4
Paragraph 2 mentions three cases when the subsequent
marriage will not be considered void: (1) when the absent
spouse has not been heard from for seven consecutive years
and the present spouse has no news that he/she is alive; (2)
when, although he/she has been absent for less than seven
years, the absent spouse is generally considered to be dead
and believed to be by the spouse present; and (3) when
he/she is presumed to be dead after four years from the
occurrence of any of the events enumerated in art. 391 5 of the
Civil Code.
In the case at bar, the burden of proof was on respondents to
show that Luisita and Aurelio's marriage falls under any of
these exceptions in order to be considered valid. They failed to
discharge this burden. Instead the contrary appears.

31
It has been held that the first exception refers to the
subsequent marriage of the abandoned spouse and not the
remarriage of the deserting spouse, after the period of seven
years had lapsed. 6 This exception cannot be invoked in this
case in order to sustain the validity of Aurelio's marriage to
Luisita because apparently it was Aurelio who had left his first
wife. At the time of his second marriage to Luisita, he and
Luisita had already been living together as husband and wife
for five years. In fact the couple begot a child, in 1961, even
before their marriage in 1962.
What applies in this case, therefore, is the general rule, i.e.,
since Aurelio had a valid, subsisting marriage to Consejo
Velaso, his subsequent marriage to respondent Luisita was
void for being bigamous.
Consequently, there is no basis for holding that the property in
question was property of the conjugal partnership of Luisita
and the late Aurelio because there was no such partnership in
the first place.
The Court of Appeals held that the sale of the property to
Nenita is void on the principle embodied in Art. 739(1) of the
Civil Code which declares donations made between persons
who are guilty of adultery or concubinage at the time of the
donation to be void. In the first place, an action for declaration
of the nullity of such donations can only be brought by the
innocent spouse, perhaps in this case by the first wife, but
certainly not by Luisita whose marriage to Aurelio is itself void.
The last paragraph of Art. 739 clearly provides:

In the second place, until otherwise shown in an appropriate

action, the sale to petitioner must be presumed. Petitioner's
ownership is evidenced by a deed of absolute sale 7 executed
with all the solemnity of a public document and by Transfer
Certificate of Title No. 326681 issued in due course in her
name. 8 Petitioner is in possession of the property. It was error
for the Court of Appeals to annul petitioner's title at the
instance of one whose marriage to the seller is void.
Indeed, the property in question was acquired by Aurelio
during a long period of cohabitation with petitioner which
lasted for twenty years (1968-1988). While petitioner knew
respondent Chito to be Aurelio's son way back in 1976, there
is nothing to show that she knew Aurelio to be married to
Luisita. To the contrary, Aurelio represented himself to be
single. As far as petitioner was concerned, Chito could have
been Aurelio's child by a woman not his wife. There was,
therefore, no basis for the Court of Appeals' ruling that Nenita
was not a buyer in good faith of the property because she
ought to have known that Aurelio was married to Luisita.
WHEREFORE, the decision appealed from is REVERSED and
another one is entered, DISMISSING the complaint against
petitioner and DECLARING the deed of sale executed in her
favor and Transfer Certificate of Title
No. 326681 of the Register of Deeds of Quezon City issued in
her name to be VALID.
SO ORDERED.
Narvasa, C.J., Regalado and Puno, JJ., concur.

In the case referred to in No. 1, the action for

declaration of nullify may be brought by the spouse of
the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in
the same action.

#Footnotes

32
1 Per Cezar D. Francisco, J., and Pedro A.
Ramirez and Corona Ibay-Somera, JJ.,
concurring; Rollo, pp. 26-43.
SECOND DIVISION

2 Rollo, p. 42.
3 Rollo, p. 44.

G.R. No. L-60101 August 31, 1983

4 Gomez v. Lipana, 33 SCRA 615 (1970).

EASTERN SHIPPING LINES, INC., petitioner,

vs.
JOSEPHINE LUCERO, respondents.

5 Art. 391. The following shall be presumed

dead for all purposes, including the division of
the estate among the heirs:

Valera, Cainglet & Dala Law Office for petitioner.

(1) A person on board a vessel lost during a sea

voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken
part in war, and has been missing for four
years;
(3) A person who has been in danger of death
under other circumstances and his existence
has not been known for four years.
6 Jackson v. Jackson, 94 Cal. 446, 29 Pac. 957,
cited in 1A Tolentino, CIVIL CODE OF THE
PHILIPPINES 274(5th ed., 1985).
7 Exh. 2.
8 Exh. 3.

Jose R. Millares for private respondent.

ESCOLIN, J.:
Petition for review filed by the Eastern Shipping Lines, Inc. to
set aside the decision of the National Labor Relations
Commission, which affirmed the judgment rendered by the
National Seamen Board, the dispositive portion of which reads
as follows:
WHEREFORE, respondent is hereby ordered to
pay complainant her monthly allotments from
March, 1980 up to the amount of P54,562.00
within ten (10) days from receipt of this
decision. Respondent is likewise further ordered
to pay complainant her future monthly allotment
up to the arrival of the M/V EASTERN
MINICON in the port of Manila or after four (4)
years when the presumptive death established
by law takes effect.

33
The material facts that gave rise to this petition are as follows:
On October 31, 1979, Capt. Julio J. Lucero, Jr. was appointed
by petitioner Eastern Shipping Lines, Inc., Company for short,
as master/captain to its vessel M/V Eastern Minicon plying the
HongkongManila route, with the salary of P5,560.00 exclusive
of ship board allowances and other benefits. Under the
contract, his employment was good for one (1) round trip only,
i.e., the contract would automatically terminate upon arrival of
the vessel at the Port of Manila, unless renewed. It was further
agreed that part of the captain's salary, while abroad, should
be paid to Mrs. Josephine Lucero, his wife, in Manila.

NOON 15th UP TO 0600 HRS TO DATE NEED

ASSISTANCE APPROXIMATE DR POSITIONS
AT 0600 HRS 10TH WITHIN THE VICINITY
LATITUDE 20-02, ON LONGTITUDE 110-02,
OE COURSE 120 DEGREES REGARDS ...

On February 16, 1980, while the vessel was enroute from

Hongkong to Manila where it was expected to arrive on
February 18, 1980, Capt. Lucero sent three (3) messages to
the Company's Manila office:

EMICON

First Message: 1
February l6,1980 0700 GMT Via Intercom
EMINICON
Urgent Eastship Manila
REGRET TO INFORM YOU ENCOUNTERED
BOISTEROUS WEATHER WITH STRONG
NORTHEASTERLY WINDS WITH GAIL
FORCE CAUSING THE VESSEL ROLLING
AND PITCHING VIOLENTLY VESSEL NOW
INCLINING 15 TO 20 DEGREES PORT
FEARING MIGHT JETTISON CARGO ON
DECK IF EVERYTHING COME TO WORSE
SITUATION HOWEVER TRYING UTMOST
BEST TO FACILITATE EVERYTHING IN
ORDER STOP NO FIX POSITIONS FROM

LUCERO
Second Message: 2
February l6/80 1530 GMT VIA INTERCOM

EAST SHIP MANILA

RYC NOTED ACCORDINGLY SINCE WASTE
PAPER CARGO ON PORT SIDE AND HAD
BEEN WASH OUT VESSEL AGAIN LISTING
ON STARBOARD SIDE REGRET WE HAVE
TO JETTISON STARBOARD SIDE WASTE
PAPER CARGO IN ORDER TO BALANCE THE
VESSEL NOW ALMOST BACK TO NORMAL
POSITION HOWEVER VESSEL STILL
LABORING VIOLENTLY REGARDS
LUCERO
Third Message: 3
FEBRUARY 16/80 2150 HRS
PHILIPPINE COAST GUARD

34
NEED IMMEDIATE ASSISTANCE POSITION
19-35 N 116-40 E SEAWATER ENTERING
INSIDE HATCH VESSEL INCLINING 15 TO 20
DEGREES PORT IF POSSIBLE SEND
IMMEDIATE ASSISTANCE VESSEL IN
DANGER PREPARING TO ABANDON
ANYTIME
MASTER
Acting on these radio messages, the Company, respondent
below, took the following steps:
RESPONDENT informed of the grave situation,
immediately reported the matter to the
Philippine Coast Guard for search and rescue
operation and the same was coordinated with
the U.S. Air Force based at Clark Air Base.
Respondent also released radio messages to
all vessels passing the Hongkong/Manila route
requesting them to be very cautious and vigilant
for possible survivors and to scan the area
whether there are signs of debris from the illfated vessel "EASTERN MINICON" which has
foundered In the meantime, two (2) vessels of
the respondent were also dispatched to the
area last reported by the Master for search and
rescue operation, but the collective efforts of all
parties concerned yielded negative results, (p.
79, Rollo)

Subsequently, the Lloyds of London, insurer of the M/V

Eastern Minicon through its surveyors, confirmed the loss of
the vessel. Thereafter, the Company paid the corresponding
death benefits to the heirs of the crew members, except
respondent Josephine Lucero, who refused to accept the
same.
On July 16, 1980, Mrs. Lucerofiled a complaint with -the
National Seamen Board, Board for short, for payment of her
accrued monthly allotment of P3,183.00, which the Company
had stopped since March 1980 and for continued payment of
said allotments until the M/V Minicon shall have returned to the
port of Manila. She contended that the contract of employment
entered into by her husband with the Company was on a
voyage-to-voyage basis, and that the same was to terminate
only upon the vessel's arrival in Manila.
Upon the other hand, the Company maintained that Mrs.
Lucero was no longer entitled to such allotments because: [a]
the Lloyds of London had already confirmed the total loss of
the vessel and had in fact settled the company's insurance
claim and [b] the Company, with the approval of the Board,
had likewise paid the corresponding death benefits to the heirs
of the other seamen The Company further invoked the
provisions of Article 643 of the Code of Commerce, to wit:
Art. 643. If the vessel and her cargo should be
totally lost, by reason of capture or wreck, all
rights shall be extinguished, both as regards the
crew to demand any wages whatsoever, and as
regards the ship agent to recover the advances
made.
xxx xxx xxx

35
On May 19, 1981, the Board rendered the aforecited judgment
in favor of Mrs. Josephine Lucero and against petitioner
Company. The Board held that the presumption of death could
not be applied because the four-year period provided for by
Article 391(l) of the Civil Code had not yet expired; and that
the payment of death benefits to the heirs of the other crew
'members was based upon a voluntary agreement entered into
by and between the heirs and the Company, and did not bind
respondent Mrs. Lucero who was not a party thereto.
On appeal, the respondent National Labor Relations
Conunission affirmed the said decision. It held that:
Within the context of the foregoing
circumstances, the only recourse is to presume
the vessel totally lost and its crew members
dead. But in this connection, the question that
comes to the fore is: When will the presumption
arise? Article 391 of the Civil Code provides the
answer, to wit:
Art. 391. The following shall be presumed dead
for all purposes, including the division of the
estate among the heirs: (1) A person on board a
vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been
heard of for four years since the loss of the
vessel or aeroplane;...
By the aforequoted law, it is quite clear that the
person to be presumed dead should first "not
been heard of for four years since the loss of
the vessel" before he can be presumed dead
for all purposes. Applied to Capt. LUCERO, it is
evidently premature to presume him dead as
four years has not yet expired. Thus, even

in Judge Advocate General vs. Gonzales, et

al., (CA) 48 O.G. 5329, the very case cited by
the respondent herein, the court Id. in the case
of the missing soldier that although nothing was
heard of him since 7 May 1942, the fact of his
death is not presumed until seven years after
1942.
Since Capt. LUCERO cannot yet be presumed
dead as demonstrated hereinabove, it logically
follows that as of now, he is presumed have It is
of no moment to Us that the vessel was
conceded by the Lloyds of London to have been
totally lost which, in the first place, was
admittedly merely based on presumption as
even the whereabouts of the vessel remains
unknown. Similarly, even the agreement, which
formed the basis of the Decision of the NSB
ordering payment of death benefits to the heirs
of some of the crew must have been predicated
upon a presumption of death of the crew
members concerned. Such circumstances do
not suffice to establish the actual death of Capt.
LUCERO.
xxx xxx xxx
Indeed, by the terms of the appointment of
Capt. LUCERO, his engagement terminates
upon the return of the vessel at the Port of
Manila. He is considered to be still working
entitling his spouse to allotment until the vessel
returns or until it is officially declared totally lost,
or until the presumption of his death becomes
effective in which case the burden of proving

36
that he is alive is shifted to his wife for purposes
of continuing her allotment.
We are unable to agree with the reasoning and conclusion of
the respondent NLRC.
It is undisputed that on February 16, 1980, the Company
received three (3) radio messages from Capt. Lucero on board
the M/V Eastern Minicon the last of which, received at 9:50
p.m. of that day, was a call for immediate assistance in view of
the existing "danger": "sea water was entering the hatch"; the
vessel "was listing 50 to 60 degrees port," and they were
"preparing to abandon the ship any time.' After this message,
nothing more has been heard from the vessel or its crew until
the present time.
There is thus enough evidence to show the circumstances
attending the loss and disappearance of the M/V Eastern
Minicon and its crew. The foregoing facts, quite logically. are
sufficient to lead Us to a moral certainty that the vessel had
sunk and that the persons aboard had perished with it. upon
this premise, the rule on presumption of death under Article
391 (1) of the Civil Code must yield to the rule of
preponderance of evidence. As this Court said inJoaquin vs.
Navarro 4 "Where there are facts, known or knowable, from
which a rational conclusion can be made, the presumption
does not step in, and the rule of preponderance of evidence
controls."
Of similar import is the following pronouncement from
American Jurisprudence: 5
Loss of Vessel. Where a vessel sets out on a
voyage and neither the vessel nor those who
went in her are afterward heard of, the
presumption arises, after the utmost limit of time

for her to have completed the voyage and for

news of her arrival at any commercial port of
the world to have been received, that the vessel
has been lost and that all on board have
perished. The presumption of death in such
cases does not rest on the fact alone that the
person in question has been absent and
unheard from for a specific length of time, but
also on the fact that the vessel has not been
heard front The question, moreover, is not
whether it is impossible that the person may be
alive, but whether the circumstances do not
present so strong a probability of his death that
a court should act thereon. The presumption of
death from absence of tidings of the vessel on
which the absentee sailed is strengthened by
proof of a storm to which the vessel probably
was exposed. The presumption is even stronger
where it appears affirmatively that the vessel
was lost at sea, that nothing has been heard of
a particular person who sailed thereon, and that
a sufficient time has elapsed to permit the
receipt of news of any possible survivors of the
disaster.
In People vs. Ansang 6 where, in open sea, the appellant
aboard a vinta ignited three home-made bombs and threw
them at the boat occupied by the victims, and the said boat
was later washed ashore and the passengers thereof were
never heard or seen again by anybody, this Court convicted
the appellant of multiple murder, holding that the victims were
dead.
Similarly, in People vs. Sasota, 7 the claim of the appellants
therein that there was no conclusive evidence of death of the

37
victim because his body was never found was overruled by
this Court in this wise:
In a case of murder or homicide, it is not
necessary to recover the body or to show where
it can be found. 'Mere are cases like death at
sea, where the finding or recovery of the body is
impossible. It is enough that the death and the
criminal agency be proven. There are even
cases where said death and the intervention of
the criminal agency that caused it may be
presumed or established by circumstantial
evidence.
Moreover, it may be remembered that in several
treason cages decided by this Court, where
besides the act of treason the accused is held
responsible for the death of persons he had or
tortured and later taken away, where the victims
were never later seen or heard from, it has
been presumed that they were lulled or
otherwise criminally disposed of or liquidated by
the accused this, for the purpose of fixing the
penalty.
If in the foregoing criminal cases, where the proof required for
conviction must be beyond reasonable doubt, the rule of
presumption was not applied and the fact of death was
deemed established, with more reason is this Court justified in
entering a finding of death. Indeed, We cannot permit Article
391 to override, or be substituted for, the facts established in
this case which logically indicate to a moral certainty that Capt.
Lucero died shortly after he had sent his last radio message at
9:50 p.m. on February 16, 1980.

In view of the conclusion arrived at above, We deem it

unnecessary to discuss the other issued raised in this case,
they being mere adjuncts to the principa issue already
disposed of.
WHEREFORE, the decision of the NLRC subject of this
petition is hereby set aside, and the complaint of respondent
Josephine Lucero dismissed. However, Mrs. Lucero is entitled
to death benefits. No costs.
SO ORDERED.
Makasiar (Chairman), Concepcion, Jr., Guerrero and
Gutierrez, Jr., JJ., concur.
Aquino, J., I concur. Mrs. Lucero is entitled to death benefits.
De Castro, J., and Abad Santos, J., are on leave.

Footnotes
1 Annex "1".
2 Annex "1-A".
3 Annex "1-B"
4 93 Phil. 257.
5 16 Am. Jr.,, 25-26.
6 93 Phil. 44.

38
7 91 Phil. 111.

Questioned in this action is the dismissal of a petition filed by

Daya Maria Tol-Noquera for appointment as administratrix of
the property of the absentee Remigio Tol.
In Special Proceedings No. P-056, which was filed in
December 1986, Daya Maria Tol alleged that she was the
acknowledged natural child of Remigio Tol, who had been
missing since 1984. She claimed that a certain Diosdado Tol
had fraudulently secured a free patent over Remigio's property
and had obtained title thereto in his name. She was seeking
the administration of the absentee's estate in order that she
could recover the said property.
The petition was opposed by Diosdado Tol, who argued that
Daya Maria Tol was not an acknowledged natural child of the
absentee and that the property sought to be administered was
covered by an original certificate of title issued in his name.

FIRST DIVISION

G.R. No. 84250 July 20, 1992

DAYA MARIA TOL-NOQUERA, petitioner,
vs.
HON. ADRIANO R. VILLAMOR, Presiding Judge, Branch
XVI, Regional Trial Court, 8th Judicial Region, Naval,
Leyte, and DIOSDADO TOL, respondents.

CRUZ, J.:

On March 31, 1987, the trial court dismissed the petition on

the ground that it was a collateral attack on a Torrens title. The
court also declared in effect that it was useless to appoint an
administrator in view of the claim of a third person that he was
the owner of the absentee's property.
The petitioner's motion for reconsideration having been
denied, she filed a notice of appeal with this Court on June 4,
1984. However, inasmuch as only questions of law were
involved, we resolved to require the petitioner to seek review
on certiorari under Rule 45 of the Rules of Court within 15
days from notice.
In the petition now before us, it is argued that the original
petition in the trial court was not intended as a collateral attack
on a Torrens title; hence, Art. 389 of the Civil Code 1 was not
applicable.

39
The private respondent, on the other hand, contends that
since the petitioner claims she is an illegitimate child of
Remigio Tol, she is prohibited under Art. 992 of the Civil
Code 2 from inheriting ab intestato from the relatives of her
father.
The private respondent likewise questions the necessity of her
appointment for the purpose only of having the title annulled.
He adds that in view of her allegations of fraud, she should
have sued for the annulment of the title within a period of one
year, which had already expired. Lastly, the decision of the trial
court had already become final and executory because 76
days had already elapsed from the date of receipt of the said
decision on May 21, 1987, to the date the petition was filed
before this Court on August 5, 1987.
A study of the record reveals that the lower court was rather
hasty in dismissing the petition.
As we see it, the petition was not a collateral attack on a
Torrens title. The petitioner did say there was a need to
appoint an administrator to prevent the property from being
usurped, but this did not amount to a collateral attack on the
title. The alleged fraudulent issuance of title was mentioned as
a justification for her appointment as administrator. But there
was nothing in the petition to indicate that the petitioner would
attack the title issued to Diosdado in the same proceeding. In
fact, the petitioner declared that whatever remedy she might
choose would be pursued in another venue, in a proceeding
entirely distinct and separate from her petition for appointment
as administratrix.
Regarding the Torrens certificate of title to the disputed
property which was presented to defeat the petitioner's
appointment, we feel that the position of trial court was rather
ambivalent. For while relying on such title to justify the

dismissal of the petition, it suggested at the same time that it

could be attacked as long as this was not done in the
proceeding before it.
The private respondent's arguments that the petitioner cannot
inherit ab intestato from the legitimate parents of the absentee
is immaterial to this case. Her disqualification as an heir to her
supposed grandparents does not inhibit her from petitioning for
a declaration of absence or to be appointed as an
administratrix of the absentee's estate.
The relevant laws on the matter are found in the following
provisions of the Civil Code:
Art. 381. When a person disappears from his domicile
his whereabouts being unknown, and without leaving
an agent to administer his property the judge, at the
instance of an interested party, a relative, or a friend,
may appoint a person to represent him in all that may
be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee
has expired.
Art. 382. The appointment referred to in the preceding
article having been made, the judge shall take the
necessary measures to safeguard the rights and
interest of the absentee and shall specify the powers,
obligations and remuneration of his representatives,
regulating them according to the circumstances, by the
rules concerning guardians.
Art. 383. In the appointment of a representative, the
spouse present shall be preferred when there is no
legal separation.

40
If the absentee left no spouse, or if the spouse present
is a minor, any competent person may be appointed by
the court.
Art. 384. Two years having elapsed without any news
about the absentee or since the receipt of the last
news, and five years in case the absentee has left a
person in charge of the administration of his property,
his absence may be declared.
Art. 385. The following may ask for the declaration of
absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an
authentic copy of the same;
(3) The relatives who may succeed by the law of
intestacy;
(4) Those who may have over the property of the
absentee some right subordinated to the condition of
his death.
Art. 386. The judicial declaration of absence shall not
take effect until six months after its publication in a
newspaper of general circulation.

It is not necessary that a declaration of absence be made in a

proceeding separate from and prior to a petition for
administration. This was the ruling in Reyes
v. Alejandro, 3 reiterating Pejer v. Martinez. 4 In the latter case,
the court declared that the petition to declare the husband an
absentee and the petition to place the management of the
conjugal properties in the hands of the wife could be combined
and adjudicated in the same proceeding.
The purpose of the cited rules is the protection of the interests
and property of the absentee, not of the administrator. Thus,
the question of whether the administrator may inherit the
property to be administered is not controlling. What is material
is whether she is one of those allowed by law to seek the
declaration of absence of Remigio Tol and whether she is
competent to be appointed as administratrix of his estate.
The issue of whether or not the property titled to Diosdado Tol
is really owned by him should be resolved in another
proceeding. The right of Daya Maria Tol to be appointed
administratrix cannot be denied outright by reason alone of
such issue.
Even if it be assumed that the title obtained by Diosdado Tol is
already indefeasible because of the lapse of the one-year
period for attacking it on the ground of fraud, there are still
other remedies available to one who is unjustly deprived on his
property. One of these is a claim for reconveyance, another a
complaint for damages. 5 The petitioner can avail herself of
such remedies if she is appointed administratrix of the estate
of the absentee.
Finally, we find that the appeal was perfected seasonably.
Notice of appeal was filed on June 4, 1987, within the 15-day
extension of the period to appeal as granted by this Court in its
resolution dated July 8, 1987.

41
WHEREFORE, the petition is GRANTED. This case is hereby
REMANDED to the court of origin for determination of the legal
personality of Daya Maria Tol to petition the declaration of
Remigio Tol's absence and of her competence to be appointed
as administratrix of his estate.
SO ORDERED.

(3) When a third person appears, showing by a

proper document that he has acquired the
absentee's property by purchase or other title;
In these cases the administrator shall cease in
the performance of his office, and the property
shall be at the disposal of those who may have
a right thereto.

Grio-Aquino, Medialdea and Bellosillo, JJ., concur.

2 Art. 992. An illegitimate child has no right to
inherit ab intestato from the legitimate children
and relatives of his father or mother; nor shall
such children or relatives inherit in the same
manner from the illegitimate child.

Footnotes
1 Art. 389. The administration shall cease in any
of the following cases:
(1) When the absentee appears personally or
by means of an agent;
(2) When the death of the absentee is proved
and his testate or intestate heirs appear;

3 141 SCRA 65.

4 88 Phil. 72.
5 Quiniano vs. Court of Appeals, 39 SCRA 221;
Cabanos vs. Register of Deeds of Laguna, 40
Phil. 620.