1

EN BANC
G.R. No. L-25609

abandoned plaintiffs without providing for their support and

maintains illicit relations with another woman.

November 27, 1968

MARGARET ANN WAINRIGHT VERSOZA, JOSE MA.

VERSOZA, JR., CHARLES JOHN VERSOZA and VIRGINIA
FELICE VERSOZA, plaintiffs-appellants,
vs.
JOSE MA. VERSOZA, defendant-appellee.
William H. Quasha and Associates for plaintiffs-appellants.
Deogracias T. Reyes and Associates and Jose M. Luison for
defendant-appellee.
SANCHEZ, J.:
The question before us, framed in legal setting, is the
correctness of the lower court's order dismissing, without
prejudice, the complaint seeking, inter alia, future support
upon the ground that there is no allegation therein that earnest
efforts toward a compromise were made but that the same
have failed, in infringement of Article 222 of the Civil Code.

Defendant's answer attacked the complaint on the claim that it

is premature and/or that it states no cause of action. Because,
the complaint which involves members of the same
family2 does allege earnest efforts toward a compromise
before the complaint was filed as set forth in the statute
mentioned at the start of this opinion. Then followed
defendant's motion for preliminary hearing on jurisdiction.
Defendant there argued that compliance with Article 222 of the
Civil Code aforesaid was a condition precedent and should
have been alleged in the complaint.
On February 22, 1965, following appropriate proceedings, the
lower court came out with its first appealed order. It there
resolved to dismiss the complaint without prejudice, upon the
ground that there was no showing that efforts have been
exerted to settle the case amicably before suit was started.
Plaintiffs moved to reconsider. Annexed to its motion was an
affidavit of their counsel to the effect that before court action
was taken efforts were made to settle the case amicably, but
which were fruitless.

With this problem in mind, we turn to the pivotal facts.

On March 30, 1965, the lower court brushed aside this motion.

On March 4, 1964, a verified complaint, later amended, for

P1,500.00 monthly support, support in arrears, and damages,
and custody of children, with a petition for support pendente
lite1 was lodged against Jose Ma. Versoza by his wife,
Margaret Ann Wainright Versoza, and their three minor
children, Jose Ma. Versoza, Jr., Charles John Versoza and
Virginia Felice Versoza. Reasons given are that defendant has

In an effort to conform to the position taken by the lower court,

plaintiffs filed a second motion for the reconsideration of the
orders of February 22, and March 30, 1965. Plaintiffs at the
same time sought admission of their second amended
complaint in which the required averment was made to obviate
the objection to their complaint. They there alleged that before
starting the present suit, they sought amicable settlement but
were unsuccessful.

2
On June 22, 1965, the second motion for reconsideration was
likewise denied by the lower court "(f)or lack of merit."
The dismissal orders are now the subject of appeal.
1. Plaintiffs argue that the Civil Code requirement of attempt to
reach a compromise and of its failure need not be alleged in
the complaint. They claim that some such fact may be proved
either at the main hearing or at the preliminary hearing on the
motion to dismiss.
The text of Article 222 of the Civil Code is this: "No suit shall
be filed or maintained between members of the same family
unless it should appear that earnest efforts toward a
compromise have been made, but that the same have
failed, subject to the limitations in article 2035."3 The
requirement in Article 222 has been given more teeth by
Section 1(j), Rule 16 of the Rules of Court, which states as
ground for a motion to dismiss that "(t)he suit is between
members of the same family and no earnest efforts towards a
compromise have been made."
The cumulative impact of the statute and the rule just adverted
to is that earnest efforts to reach a compromise and failure
thereof must ordinarily be alleged in the complaint. The
Civil Code provision that "(n)o suit shall be filed or maintained"
simply means that the attempt to compromise and inability to
arrive thereat is a condition precedent to the filing of the suit.
As such it is a part of plaintiffs' cause of action. Justice J.B.L.
Reyes and Judge Puno4bolstered this view with their
statement that "(t)he terms of article 222
require express allegation of an attempt to compromise and its
failure; otherwise there is no cause of action stated."
2. The foregoing, however, is but a statement of the general
rule. Future support operates outside the ambit thereof.

Mucius Scaevola5 expresses the view that no objection can be

made to a compromise "cuando el derecho es renunciable,
eminentemente privado." Scaevola, however, emphasizes:
"(P)ero el derecho a la vida no lo es." This brings us to the
legal provision Scaevola commented upon, namely, Article
1814 of the Spanish Civil Code of 1889, which reads:
Art. 1814. No puede transigir sobre el estado civil de
las personas, ni sobre las cuestiones matrimoniales, ni
sobre alimentos futuros.6
So it is, that Colin y Capitant7 observed: "Una cosa es que la
transaccion sea en principio un acto licito, con exclusion de
aquellas materias a que se refiere el art. 1814 del Codigo civil.
The philosophy behind the rule is best expressed by
Manresa8 in the following terms:
Aunque el Codigo no lo diga expresamente, desde
luego se comprende que, por regla general, pueden
ser objeto de transaccion todas las cosas que estan en
el comercio de los hombres, siempre que no se halle
prohibido por la ley. Esta es la regla general; pero hay
casos en que, por razones de moralidad o por otras
consideraciones no menos atendibles, no puede
admitirse la transaccion, como sucede, por ejemplo, en
materia de estado civil de las personas, de cuestiones
matrimoniales y de alimentos, y otros que tampoco son
susceptibles de transaccion por afectar al interes
publico o social y no estar en el dominio o en la
potestad de los particulares el sustraerlos, a los
efectos rigurosos de la ley, segun ocurre con los delitos
y demas transgresiones punibles del derecho.
xxx

xxx

xxx

3
Restanos ocuparnos de otra prohibicion impuesta
tambien por el art. 1814 en su ultima parte. Nos
referimos a la establecida por el mismo respecto de la
transaccion sobre los alimentos futuros; prohibicion
que se funda en poderosas razones de moralidad que
no pueden ocultarse, ni pasar desapercibidas para
nadie que detenidamente medite sobre ello.
En efecto, en rigor de principios, la lay concede los
alimentos en razon a la necesidad que de ellos tiene el
alimentista pora vivir, y es evidente que transigir sobre
ellos, equivaldria a renunciar en parte a la vida, como
ha dicho un autor ("Coleccion de las Instituciones
jurisdicas politicas de los pueblos modernos," Tomo 13,
pag. 792); y si no le fueran necesarios pudiendo por tal
motivo renunciarlos, no cabria tampoco transaccion,
porque no tendria derecho a percibirlos.
The foregoing but emphasizes the concept of support. For,
support is, amongst others, everything that is indispensable for
sustenance.9 The right to support cannot be: (1) renounced;
(2) transmitted to third persons; nor (3) compensated with
what the recipient owes the obligor.10 Compensation may not
even be set up against a creditor who has a claim for support
due by gratuitous title.11 Of course, support in arrears is a
different thing altogether. It may be compensated, renounced
and transmitted by onerous or gratuitous title.12 In Coral vs.
Gallego,13 the Court of Appeals has had occasion to declare
that the right to support is not susceptible of future
transactions under Article 1814 of the old Civil Code.
Article 1814 of the Spanish Civil Code was reproduced in
Article 2035 of the new Civil Code in an expanded form
as follows:

ART. 2035. No compromise upon the following

questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
It thus appears that Article 2035 has roots deeper than Article
222. For, whereas Article 222 is inserted as a new concept in
the present Code in a laudable effort to obviate a sad and
tragic spectacle occasioned by a litigation between members
of the same family. Article 2035 firmly maintains the ancient
injunction against compromise on matters involving future
support. And this is as it should be. For, even as Article 222
requires earnest efforts at a compromise and inability to reach
one as a condition precedent to the filing and maintenance of
a suit "between the members of the same family", that same
article took good care to add: "subject to the limitations in
article 2035."
Plaintiffs ask for support past, present and future. There is also
the prayer for alimony pendente lite. Since the present action
also revolves on the right to future support and because
compromise on future support is prescribed,14 then the
conclusion is irresistible that an attempt at compromise of
future support and failure thereof is not a condition precedent
to the filing of the present suit. It need not be alleged in the
complaint. The very opening statement in Article 2035
unmistakably confirms our view. It says that "(n)o
compromise upon the following questionshall be valid: ... (4)
Future support."15 We cannot afford to give a loose view to this
controlling statute. We may not disregard it. To do so is to
misread the law, to write off an explicit congressional will, to

4
cross the line which circumscribes courts of justice and step
into legislative area.
Mendoza vs. Court of Appeals, 1967B Phild. 82, is to be read
as controlling here. In that case, the wife filed in the Court of
First Instance of Nueva Ecija an action for support against her
husband who was then employed in a hospital in the United
States. Defendant, by counsel, moved to dismiss, for the
reason that the complaint failed to state a cause of action
"because it contained no allegation that earnest efforts toward
a compromise have been made before the filing of the suit,
and invoking the provisions of Article 222 of the Civil Code of
the Philippines." The Court of First Instance refused to
entertain the motion to dismiss. Defendant petitioned the Court
of Appeals for a writ of prohibition. The appellate court denied
the writ prayed for Defendant petitioned this Court for review.
We affirmed. In that first judicial test, this Court, speaking thru
Mr. Justice J.B.L. Reyes, held:
While we agree that petitioner's position represents a
correct statement of the general rule on the matter, we
are nevertheless constrained to hold that the Court of
Appeals and the Court of First Instance committed no
error in refusing to dismiss the complaint, for on its
face, the same involved a claim for future support that
under Article 2035 of the Civil Code of the Philippines
can not be subject of a valid compromise, and is,
therefore, outside the sphere of application of Article
222 of the Code upon which petitioner relies. This
appears from the last proviso of said Article 222,
already quoted....
xxx

xxx

xxx

Since no valid compromise is possible on these

issues, a showing of previous efforts to compromise
them would be superfluous.
It may be that the complaint asks for both future
support and support in arrears, as petitioner contends.
But, the possibility of compromise on the latter does
not negate the existence of a valid cause of action for
future support, to which Article 222 can not apply.16
Although the complaint herein seeks custody of minor children
and damages as well, the prime object is support. And, of
importance, of course, is future support. The reliefs sought are
intimately related to each other. They all spring from the fact
that husband and wife are separated from each other. So it is,
that expediency dictates that they be, as they are now, placed
together in one complaint. For, multiplicity of suits is not
favored in law. Since one of the causes of action, that for
future support, may be lodged in court without the compromise
requisite in Article 222 of the Civil Code, the complaint herein,
as we have ruled in Mendoza, may not be dismissed.
We, accordingly, hold that the lower court erred in dismissing
the complaint.
3. But even on the assumption that it was error on the part of
plaintiffs to have failed to so allege, plaintiffs should not be
barred from making an amendment to correct it.
Parenthetically, after a responsive pleading has been served,
amendments may be made only upon leave of court.17 But, in
the furtherance of justice, the court "should be liberal in
allowing amendments to pleadings to avoid multiplicity of suits
and in order that the real controversies between the parties
are presented, their rights determined and the case decided
on the merits without unnecessary delay."18

5
Thus, the instances wherein this Court considered allowance
of an amendment not justified are limited. As defendant
correctly points out, a proposed amendment may be refused
when it confers jurisdiction on the court in which it is filed, if the
cause of action originally set forth was not within that court's
jurisdiction.19 An amendment may also be refused when the
cause of action is substantially altered.20

The lower court, in the interest of justice, should have allowed

plaintiffs to amend their complaint instead of granting the
motion to dismiss. This it could have done under Section 3 of
Rule 16 of the Rules of Court. For, the defect in the complaint
is curable.

A typical case which merited refusal of an amendment

is Rosario vs. Carandang, supra. There, the original complaint
was one for forcible entry and detainer over which the Court of
First Instance, where the complaint was filed, had no
jurisdiction. The amendment sought by plaintiff was the
inclusion of an allegation that the defendants were claiming
ownership over the land in dispute. The proposed amendment
would thus convert the case from one of forcible entry and
detainer into one of recovery of possession, which is within the
jurisdiction of the Court of First Instance. The court properly
denied the amendment.

(1) the orders of the lower court of February 22, 1965, March
30, 1965, and June 22, 1965 are hereby set aside; and

The alleged defect is that the present complaint does not state
a cause of action. The proposed amendment seeks to
complete it. An amendment to the effect that the requirements
of Article 222 have been complied with does not confer
jurisdiction upon the lower court. With or without this
amendment, the subject-matter of the action remains as one
for support, custody of children, and damages, cognizable by
the court below.
To illustrate, Tamayo vs. San Miguel Brewery, Inc.,21 allowed
an amendment which "merely corrected a defect in the
allegation of plaintiff-appellant's cause of action, because as it
then stood, the original complaint stated no cause of action."
We there ruled out as inapplicable the holding in Campos
Rueda Corporation vs. Bautista, supra, that an amendment
cannot be made so as to confer jurisdiction on the court.

For the reasons given

(2) the record of this case is hereby remanded to the Court of

First Instance of Rizal, Quezon City, Branch IX, with
instructions to admit the second amended complaint and to
conduct further proceedings not inconsistent with the opinion
herein. Costs against defendant. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Castro, Fernando and Capistrano, JJ., concur.

Footnotes
1

Civil Case No. Q-7870, Court of First Instance of

Rizal, Quezon City, Branch IX, entitled "Margaret Ann
Wainright Versoza, et al., Plantiffs, versus Jose Ma.
Versoza, Defendant", for support and damages.
2

Article 217 of the Civil Code provides that family

relations shall include those (1) between husband and
wife; (2) between parent and child; (3) among other
ascendants and their descendants; and (4) among
brothers and sisters. Francisco, Comments on the
Revised Rules of Court, Vol. I, 1956 ed., pp. 694-695.

6
3

Emphasis supplied.

18

Outline of Philippine Civil Law, 1956 ed., Vol. I, p. 222.

19

Codigo Civil, 1953, Tomo XXVIII, pag. 347.

Emphasis supplied.

Curso Elemental de Derecho Civil, 1955, Tomo IV,

pag. 1001; emphasis supplied.

Shaffer vs. Palma, 1968A Phild. 767, 777.

Rosario vs. Carandang, 96 Phil. 845, 850, 851;

Campos Rueda Corporation vs. Bautista, L-18453,
September 29, 1962, cited in Tamayo vs. San Miguel
Brewery, Inc., L-17749, January 31, 1964.
20

Section 3, Rule 10, Rules of Court; Arches vs.

Villaruz, 102 Phil. 661, 668. See: Guirao vs. Ver, 16
Supreme Court Reports Anno. 638, 640-641; and
Shaffer vs. Palma, supra.

Comentarios al Codigo Civil Espanol, 1931, Tomo XII,

pags. 103, 107; emphasis supplied.
9

Article 290, Civil Code.

10

Article 301, Civil Code.

11

Par. 2, Article 1287, Civil Code.

12

Par. 2, Article 301, Civil Code.

13

38 O.G. 3158, cited in Padilla, Civil Code Anno.,

1956 ed., Vol. IV, pp. 648-649.
14

Advincula vs. Advincula, L-19065, January 31. 1964,

citing Coral vs. Gallego, supra. See also: Velayo vs.
Velayo, L-23528, July 21, 1967, and Velayo vs. Velayo,
L-14541, March 30, 1960.
15

Emphasis supplied.

16

At pp. 84, 85; emphasis supplied.

17

Sections 2 and 3, Rule 10, Rules of Court.

21

Supra; Emphasis supplied.

7
FIRST DIVISION
G.R. No. 58010. March 31, 1993.

EMILIA O'LACO and HUCO LUNA, petitioners, vs. VALENTIN

CO CHO CHIT, O LAY KIA and COURT OF APPEALS,
respondents.
Sergio L. Guadiz for petitioners.
Norberto J . Quisumbing & Associates for private respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS;
CONDITION PRECEDENT TO FILING OF SUIT BETWEEN
MEMBERS OF THE SAME FAMILY; EFFECT OF FAILURE
TO COMPLY WITH CONDITION. Admittedly, the present
action is between members of the same family since petitioner
Emilia O'Laco and respondent O Lay Kia are half-sisters.
Consequently, there should be an averment in the compliant
that earnest efforts toward a compromise have been made,
pursuant to Art. 222 of the New Civil Code, or a motion to
dismiss could have been filed under Sec. 1, par. (j), Rule 16 of
the Rules of Court. For, it is well-settled that the attempt to
compromise as well as the inability to succeed is a condition
precedent to the filing of a suit between members of the same
family. Hence, the defect in the complaint is assailable at any
stage of the proceedings, even on appeal, for lack of cause of
action.
2. ID.; ID.; AMENDMENT TO COMPLAINT; WHEN PROPER;
AMENDMENT TO CONFORM TO EVIDENCE. Plaintiff may
be allowed to amend his complaint to correct the defect if the

amendment does not actually confer jurisdiction on the court in

which the action is filed, i.e., if the cause of action was
originally within that court's jurisdiction. In such case, the
amendment is only to cure the perceived defect in the
complaint, thus may be allowed. In the case before Us, while
respondent-spouses did not formally amend their complaint,
they were nonetheless allowed to introduce evidence
purporting to show that earnest efforts toward a compromise
had been made, that is, respondent O Lay Kia importuned
Emilia O'Laco and pressed her for the transfer of the title of the
Oroquieta property in the name of spouses O Lay Kia and
Valentin Co Cho Chit, just before Emilia's marriage to Hugo
Luna. But, instead of transferring the title as requested, Emilia
sold the property to the Roman Catholic Archbishop of Manila.
This testimony was not objected to by petitioner-spouses.
Hence, the complaint was deemed accordingly amended to
conform to the evidence, pursuant to Sec. 5, Rule 10 of the
Rules of Court which reads "Sec. 5. Amendment to conform
to or authorize presentation of evidence. When issues not
raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects, as if they
had been raised in the pleadings . . ." Indeed, if the defendant
permits evidence to be introduced without objection and which
supplies the necessary allegations of a defective complaint,
then the evidence is deemed to have the effect of curing the
defects of the complaint. The insufficiency of the allegations in
the complaint is deemed ipso facto rectified.
3. CIVIL LAW; OBLIGATIONS AND CONTRACTS; TRUSTS;
EXPRESS TRUST; DEFINED; IMPLIED TRUST; DEFINED.
By definition, trust relations between parties may either be
express or implied. Express trusts are those which are created
by the direct and positive acts of the parties, by some writing
or deed, or will, or by words evincing an intention to create a
trust. Implied trusts are those which, without being express,
are deducible from the nature of the transaction as matters of

8
intent, or which are superinduced on the transaction by
operation of law as matters of equity, independently of the
particular intention of the parties.
4. ID.; ID.; ID.; IMPLIED TRUSTS; RESULTING TRUST;
BASIS THEREOF; CONSTRUCTIVE TRUST; BASIS
THEREOF. Implied trust may either be resulting or
constructive trusts, both coming into being by operation of law.
Resulting trusts are based on the equitable doctrine that
valuable consideration and not legal title determines the
equitable title or interest and are presumed always to have
been contemplated by the parties. They arise from the nature
or circumstances of the consideration involved in a transaction
whereby one person thereby becomes invested with legal title
but is obligated in equity to hold his legal title for the benefit of
another. On the other hand, constructive trusts are created by
the construction of equity in order to satisfy the demands of
justice and prevent unjust enrichment. They arise contrary to
intention against one who, by fraud, duress or abuse of
confidence, obtains or holds the legal right to property which
he ought not, in equity and good conscience, to hold.

There is an implied trust when property is sold, and the legal

estate is granted to one party but the price is paid by another
for the purpose of having the beneficial interest of the property.
The former is the trustee, while the latter is the beneficiary . . ."
As stipulated by the parties, the document of sale, the owner's
duplicate copy of the certificate of title, insurance policies,
receipt of initial premium of insurance coverage and real
estate tax receipts were all in the possession of respondentspouses which they offered in evidence. As emphatically
asserted by respondent O Lay Kia, the reason why these
documents of ownership remained with her is that the land in
question belonged to her. Indeed, there can be no persuasive
rationalization for the possession of these documents of
ownership by respondent-spouses for seventeen (17) years
after the Oroquieta property was purchased in 1943 than that
of precluding its possible sale, alienation or conveyance by
Emilia O'Laco, absent any machination or fraud. This
continued possession of the documents, together with other
corroborating evidence spread on record, strongly suggests
that Emilia O'Laco merely held the Oroquieta property in trust
for respondent-spouses.

5. ID.; ID.; ID.; EXPRESS TRUSTS CONCERNING

IMMOVABLES NOT PROVED BY PAROL EVIDENCE;
IMPLIED TRUST IN REAL PROPERTY ESTABLISHED BY
PAROL EVIDENCE; PROOF REQUIRED; CASE AT BAR.
Unlike express trusts concerning immovables or any interest
therein which cannot be proved by parol evidence, implied
trusts may be established by oral evidence. However, in order
to establish an implied trust in real property by parol evidence,
the proof should be as fully convincing as if the acts giving rise
to the trust obligation were proven by an authentic document.
It cannot be established upon vague and inconclusive proof.
After a thorough review of the evidence on record, We hold
that a resulting trust was indeed intended by the parties under
Art. 1448 of the New Civil Code which states "Art. 1448.

6. ID.; ID.; ID.; CONSTRUCTIVE TRUST SUBJECT TO

PRESCRIPTION; RESULTING TRUST IMPRESCRIPTIBLE;
RESULTING TRUST CONVERTED TO CONSTRUCTIVE
TRUST BY REPUDIATION; REQUISITES; PRESCRIPTIVE
PERIOD FOR ACTION FOR RECONVEYANCE BASED ON
CONSTRUCTIVE TRUST. As differentiated from
constructive trusts, where the settled rule is that prescription
may supervene, in resulting trust, the rule of imprescriptibility
may apply for as long as the trustee has not repudiated the
trust. Once the resulting trust is repudiated, however, it is
converted into a constructive trust and is subject to
prescription. A resulting trust is repudiated if the following
requisites concur: (a) the trustee has performed unequivocal
acts of repudiation amounting to an ouster of the cestui qui

9
trust; (b) such positive acts of repudiation have been made
known to the cestui qui trust; and, (c) the evidence thereon is
clear and convincing. In Tale v. Court of Appeals the Court
categorically ruled that an action for reconveyance based on
an implied or constructive trust must perforce prescribe in ten
(10) years, and not otherwise, thereby modifying previous
decisions holding that the prescriptive period was four (4)
years. So long as the trustee recognizes the trust, the
beneficiary may rely upon the recognition, and ordinarily will
not be in fault for omitting to bring an action to enforce his
rights. There is no running of the prescriptive period if the
trustee expressly recognizes the resulting trust. Since the
complaint for breach of trust was filed by respondent-spouses
two (2) months after acquiring knowledge of the sale, the
action therefore has not yet prescribed.
DECISION
BELLOSILLO, J p:
History is replete with cases of erstwhile close family relations
put asunder by property disputes. This is one of them. It
involves half-sisters each claiming ownership over a parcel of
land. While petitioner Emilia O'Laco asserts that she merely
left the certificate of title covering the property with private
respondent O Lay Kia for safekeeping, the latter who is the
former's older sister insists that the title was in her possession
because she and her husband bought the property from their
conjugal funds. To be resolved therefore is the issue of
whether a resulting trust was intended by them in the
acquisition of the property. The trial court declared that there
was no trust relation of any sort between the sisters. 1 The
Court of Appeals ruled otherwise. 2 Hence, the instant petition
for review on certiorari of the decision of the appellate court
together with its resolution denying reconsideration. 3

It appears that on 31 May 1943, the Philippine Sugar Estate

Development Company, Ltd., sold a parcel of land, Lot No. 5,
Block No. 10, Plan Psu-10038, situated at Oroquieta St., Sta.
Cruz, Manila, with the Deed of Absolute Sale naming Emilia
O'Laco as vendee; thereafter, Transfer Certificate of Title No.
66456 was issued in her name.
On 17 May 1960, private respondent-spouses Valentin Co Cho
Chit and O Lay Wa learned from the newspapers that Emilia
O'Laco sold the same property to the Roman Catholic
Archbishop of Manila for P230,000.00, with assumption of the
real estate mortgage constituted thereon. 4
On 22 June 1960, respondent-spouses Valentin Co Cho Chit
and O Lay Kia sued petitioner-spouses Emilia O'Laco and
Hugo Luna to recover the purchase price of the land before
the then Court of First Instance of Rizal, respondent-spouses
asserting that petitioner Emilia O'Laco knew that they were the
real vendees of the Oroquieta property sold in 1943 by
Philippine Sugar Estate Development Company, Ltd., and that
the legal title thereto was merely placed in her name. They
contend that Emilia O'Laco breached the trust when she sold
the land to the Roman Catholic Archbishop of Manila.
Meanwhile, they asked the trial court to garnish all the
amounts still due and payable to petitioner-spouses arising
from the sale, which was granted on 30 June 1960. 5
Petitioner-spouses deny the existence of any form of trust
relation. They aver that Emilia O'Laco actually bought the
property with her own money; that she left the Deed of
Absolute Sale and the corresponding title with respondentspouses merely for safekeeping; that when she asked for the
return of the documents evidencing her ownership,
respondent-spouses told her that these were misplaced or
lost; and, that in view of the loss, she filed a petition for

10
issuance of a new title, and on 18 August 1944 the then Court
of First Instance of Manila granted her petition.
On 20 September 1976, finding no trust relation between the
parties, the trial court dismissed the complaint together with
the counterclaim. Petitioners and respondents appealed.
On 9 April 1981, the Court of Appeals set aside the decision of
the trial court thus
". . . We set aside the decision of the lower court dated
September 20, 1976 and the order of January 5, 1977 and
another one is hereby entered ordering the defendantsappellees to pay plaintiffs-appellants jointly and severally the
sum of P230,000.00 representing the value of the property
subject of the sale with assumption of mortgage to the Roman
Catholic Archbishop of Manila with legal interest from the filing
of the complaint until fully paid, the sum of P10,000.00 as
attorney's fees, plus costs."
On 7 August 1981, the Court of Appeals denied
reconsideration of its decision, prompting petitioners to come
to this Court for relief.
Petitioners contend that the present action should have been
dismissed. They argue that the complaint fails to allege that
earnest efforts toward a compromise were exerted considering
that the suit is between members of the same family, and no
trust relation exists between them. Even assuming ex
argumenti that there is such a relation, petitioners further
argue, respondents are already barred by laches.
We are not persuaded. Admittedly, the present action is
between members of the same family since petitioner Emilia
O'Laco and respondent O Lay Kia are half-sisters.
Consequently, there should be an averment in the complaint

that earnest efforts toward a compromise have been made,

pursuant to Art. 222 of the New Civil Code, 6 or a motion to
dismiss could have been filed under Sec. 1, par. (j), Rule 16, of
the Rules of Court. 7 For, it is well-settled that the attempt to
compromise as well as the inability to succeed is a condition
precedent to the filing of a suit between members of the same
family. 8 Hence, the defect in the complaint is assailable at any
stage of the proceedings, even on appeal, for lack of cause of
action. 9
But, plaintiff may be allowed to amend his complaint to correct
the defect if the amendment does not actually confer
jurisdiction on the court in which the action is filed, i.e., if the
cause of action was originally within that court's jurisdiction. 10
In such case, the amendment is only to cure the perceived
defect in the complaint, thus may be allowed.
In the case before Us, while respondent-spouses did not
formally amend their complaint, they were nonetheless
allowed to introduce evidence purporting to show that earnest
efforts toward a compromise had been made, that is,
respondent O Lay Kia importuned Emilia O'Laco and pressed
her for the transfer of the title of the Oroquieta property in the
name of spouses O Lay Kia and Valentin Co Cho Chit, just
before Emilia's marriage to Hugo Luna. 11 But, instead of
transferring the title as requested, Emilia sold the property to
the Roman Catholic Archbishop of Manila. This testimony was
not objected to by petitioner-spouses. Hence, the complaint
was deemed accordingly amended to conform to the evidence,
12 pursuant to Sec. 5, Rule 10 of the Rules of Court which
reads
"SECTION 5. Amendment to conform to or authorize
presentation of evidence. When issues not raised by the
pleadings are tried by express or implied consent of the

11
parties, they shall be treated in all respects, as, if they had
been raised in the pleadings . . ." (emphasis supplied).

confidence, obtains or holds the legal right to property which

he ought not, in equity and good conscience, to hold. 22

Indeed, if the defendant permits evidence to be introduced

without objection and which supplies the necessary allegations
of a defective complaint, then the evidence is deemed to have
the effect of curing the defects of the complaint. 13 The
insufficiency of the allegations in the complaint is deemed ipso
facto rectified. 14

Specific examples of resulting trusts may be found in the Civil

Code, particularly Arts. 1448, 1449, 1451,1452 and 1453, 23
while constructive trusts are illustrated in Arts. 1450, 1454,
1455 and 1456. 24

But the more crucial issue before Us is whether there is a trust

relation between the parties in contemplation of law.
We find that there is. By definition, trust relations between
parties may either be express or implied. 15 Express trusts are
those which are created by the direct and positive acts of the
parties, by some writing or deed, or will, or by words evincing
an intention to create a trust. 16 Implied trusts are those
which, without being express, are deducible from the nature of
the transaction as matters of intent, or which are superinduced
on the transaction by operation of law as matters of equity,
independently of the particular intention of the parties.17
Implied trusts may either be resulting or constructive trusts,
both coming into being by operation of law. 18
Resulting trusts are based on the equitable doctrine that
valuable consideration and not legal title determines the
equitable title or interest 19 and are presumed always to have
been contemplated by the parties. They arise from the nature
or circumstances of the consideration involved in a transaction
whereby one person thereby becomes invested with legal title
but is obligated in equity to hold his legal title for the benefit of
another. 20 On the other hand, constructive trusts are created
by the construction of equity in order to satisfy the demands of
justice 21 and prevent unjust enrichment. They arise contrary
to intention against one who, by fraud, duress or abuse of

Unlike express trusts concerning immovables or any interest

therein which cannot be proved by parol evidence, 25 implied
trusts may be established by oral evidence. 26 However, in
order to establish an implied trust in real property by parol
evidence, the proof should be as fully convincing as if the acts
giving rise to the trust obligation were proven by an authentic
document. 27 It cannot be established upon vague and
inconclusive proof. 28
After a thorough review of the evidence on record, We hold
that a resulting trust was indeed intended by the parties under
Art. 1448 of the New Civil Code which states
"ARTICLE 1448. There is an implied trust when property is
sold, and the legal estate is granted to one party but the price
is paid by another for the purpose of having the beneficial
interest of the property. The former is the trustee, while the
latter is the beneficiary . . ." (emphasis supplied).
First. As stipulated by the parties, the document of sale, the
owner's duplicate copy of the certificate of title, insurance
policies, receipt of initial premium of insurance coverage and
real estate tax receipts ware all in the possession of
respondent spouses which they offered in evidence. As
emphatically asserted by respondent O Lay Kia, the reason
why these documents of ownership remained with her is that
the land in question belonged to her. 29

12
Indeed, there can be no persuasive rationalization for the
possession of these documents of ownership by respondentspouses for seventeen (17) years after the Oroquieta property
was purchased in 1943 than that of precluding its possible
sale, alienation or conveyance by Emilia O'Laco, absent any
machination or fraud. This continued possession of the
documents, together with other corroborating evidence spread
on record, strongly suggests that Emilia O'Laco merely held
the Oroquieta property in trust for respondent-spouses.
Second. It may be worth to mention that before buying the
Oroquieta property, respondent-spouses purchased another
property situated in Kusang-Loob, Sta. Cruz, Manila, where
the certificate of title was placed in the name of Ambrosio
O'Laco, older brother of Emilia, under similar or identical
circumstances. The testimony of former counsel for
respondent-spouses, then Associate Justice Antonio G. Lucero
of the Court of Appeals, is enlightening
"Q In the same conversation he told you how he would buy the
property (referring to the Oroquieta property), he and his wife?
"A Yes, Sir, he did.
"Q What did he say?
xxx xxx xxx
"A He said he and his wife has (sic) already acquired by
purchase a certain property located at Kusang-Loob, Sta.
Cruz, Manila. He told me he would like to place the Oroquieta
Maternity Hospital in case the negotiation materialize(s) in the
name of a sister of his wife (O'Laco)" (emphasis supplied). 30
On the part of respondent-spouses, they explained that the
reason why they did not place these Oroquieta and Kusang-

Loob properties in their name was that being Chinese

nationals at the time of the purchase they did not want to
execute the required affidavit to the effect that they were allies
of the Japanese. 31 Since O Lay Kia took care of Emilia who
was still young when her mother died, 32 respondent-spouses
did not hesitate to place the title of the Oroquieta property in
Emilia's name.
Quite significantly, respondent-spouses also instituted an
action for reconveyance against Ambrosio O'Laco when the
latter claimed the Kusang-Loob property as his own. A similar
stipulation of facts was likewise entered, i.e., respondentspouses had in their possession documents showing
ownership of the Kusang-Loob property which they offered in
evidence. In that case, the decision of the trial court, now final
and executory, declared respondent-spouses as owners of the
Kusang-Loob property and ordered Ambrosio O'Laco to
reconvey it to them. 33
Incidentally, Ambrosio O'Laco thus charged respondent
spouses Valentin Co Cho Cit and O Lay Kia before the AntiDummy Board, docketed as Case No. 2424, for their
acquisition of the Kusang-Loob and Oroquieta properties. 34
He claimed that respondent-spouses utilized his name in
buying the Kusang-Loob property while that of petitioner
O'Laco was used in the purchase of the Oroquieta property. In
effect, there was an implied admission by Ambrosio that his
sister Emilia, like him, was merely used as a dummy. However,
the Anti-Dummy Board exonerated respondent-spouses since
the purchases were made in 1943, or during World War II,
when the Anti-Dummy Law was not enforceable.
Third. The circumstances by which Emilia O'Laco obtained a
new title by reason of the alleged loss of the old title then in
the possession of respondent-spouses cast serious doubt on
the veracity of her ownership. The petitions respectively filed

13
by Emilia O'Laco and Ambrosio O'Laco for the Oroquieta and
the Kusang-Loob properties were both granted on the same
day, 18 August 1944, by the then Court of First Instance of
Manila. These orders were recorded in the Primary Entry Book
of the Register of Deeds of Manila at the same time, 2:35
o'clock in the afternoon of 1 September 1944, in consecutive
entries, Entries Nos. 246117-18. 35 This coincidence lends
credence to the position of respondent-spouses that there was
in fact a conspiracy between the siblings Ambrosio and Emilia
to defraud and deprive respondents of their title to the
Oroquieta and Kusang-Loob properties.
Fourth. Until the sale of the Oroquieta property to the Roman
Catholic Archbishop of Manila, petitioner Emilia O'Laco
actually recognized the trust. Specifically, when respondent
spouses learned that Emilia was getting married to Hugo, O
Lay Kia asked her to have the title to the property already
transferred to her and her husband Valentin, and Emilia
assured her that "would be arranged (maaayos na)" after her
wedding. 36 Her answer was an express recognition of the
trust, otherwise, she would have refused the request outright.
Petitioners never objected to this evidence; nor did they
attempt to controvert it.
Fifth. The trial court itself determined that "Valentin Co Cho
Chit and O Lay Kia had some money with which they could
buy the property." 37 In fact, Valentin was the Chief Mechanic
of the Paniqui Sugar Mills, was engaged in the buy and sell
business, operated a gasoline station, and owned an auto
supply store as well as a ten-door apartment in Caloocan City.
38 In contrast, Emilia O'Laco failed to convince the Court that
she was financially capable of purchasing the Oroquieta
property. In fact, she opened a bank account only in 1946 and
likewise began filing income tax returns that same year, 39
while the property in question was bought in 1943.
Respondent-spouses even helped Emilia and her brothers in

their expenses and livelihood. Emilia could only give a vague

account on how she raised the money for the purchase of the
property. Her narration of the transaction of sale abounds with
"I don't know" and "I don't remember." 40
Having established a resulting trust between the parties, the
next question is whether prescription has set in.
As differentiated from constructive trusts, where the settled
rule is that prescription may supervene, in resulting trust, the
rule of imprescriptibility may apply for as long as the trustee
has not repudiated the trust. 41 Once the resulting trust is
repudiated, however, it is converted into a constructive trust
and is subject to prescription.
A resulting trust is repudiated if the following requisites concur:
(a) the trustee has performed unequivocal acts of repudiation
amounting to an ouster of the cestui qui trust; (b) such positive
acts of repudiation have been made known to the cestui qui
trust; and, (c) the evidence thereon is clear and convincing. 42
In Tale v. Court of Appeals 43 the Court categorically ruled that
an action for reconveyance based on an implied or
constructive trust must perforce prescribe in ten (10) years,
and not otherwise, thereby modifying previous decisions
holding that the prescriptive period was four (4) years.
Neither the registration of the Oroquieta property in the name
of petitioner Emilia O'Laco nor the issuance of a new Torrens
title in 1944 in her name in lieu of the alleged loss of the
original may be made the basis for the commencement of the
prescriptive period. For, the issuance of the Torrens title in the
name of Emilia O'Laco could not be considered adverse, much
less fraudulent. Precisely, although the property was bought by
respondent-spouses, the legal title was placed in the name of
Emilia O'Laco. The transfer of the Torrens title in her name

14
was only in consonance with the deed of sale in her favor.
Consequently, there was no cause for any alarm on the part of
respondent-spouses. As late as 1959, or just before she got
married, Emilia continued to recognize the ownership of
respondent-spouses over the Oroquieta property. Thus, until
that point, respondent-spouses were not aware of any act of
Emilia which would convey to them the idea that she was
repudiating the resulting trust. The second requisite is
therefore absent. Hence, prescription did not begin to run until
the sale of the Oroquieta property, which was clearly an act of
repudiation.
But immediately after Emilia sold the Oroquieta property which
is obviously a disavowal of the resulting trust, respondentspouses instituted the present suit for breach of trust.
Correspondingly, laches cannot lie against them.
After all, so long as the trustee recognizes the trust, the
beneficiary may rely upon the recognition, and ordinarily will
not be in fault for omitting to bring an action to enforce his
rights. 44 There is no running of the prescriptive period if the
trustee expressly recognizes the resulting trust. 45 Since the
complaint for breach of trust was filed by respondent-spouses
two (2) months after acquiring knowledge of the sale, the
action therefore has not yet prescribed.
WHEREFORE, the Petition for Review on Certiorari is
DENIED. The Decision of the Court of Appeals of 9 April 1981,
which reversed the trial court, is AFFIRMED. Costs against
petitioners.
SO ORDERED.
Cruz , Grio-Aquino and Quiason, JJ ., concur.
Footnotes

1. Penned by Judge Guardson R. Lood, Court of First Instance

of Rizal, Br. VI, stationed in Pasig.
2. Penned by Justice Mariano A. Zosa, concurred in by
Justices Venicio Escolin and Edgardo L. Paras; Annex "A",
Petition; Rollo, pp. 53-72.
3. Annex "B", Petition; Rollo, pp. 73-75.
4. Record on Appeal of Defendant-Appellee, p. 15.
5. Id., pp. 12-18.
6. Art. 222. No suit shall be filed or maintained between
members of the same family unless it should appear that
earnest efforts toward a compromise have been made, but that
the same have failed, subject to the limitations in article 2035.
7. The Family Code took effect on 4 August 1988 and does not
apply to the present petition. Nonetheless, Art. 151 of the
Family Code provides that suits between members of the
same family must be dismissal if it is not shown that earnest
efforts toward a compromise have been made.
8. Mendoza v. Court of Appeals, No. L-23102, 24 April 1967,
19 SCRA 756.
9. Id., p. 759.
10. Versoza v. Versoza, No. L-25609, 27 November 1968, 26
SCRA 78.
11. TSN, 15 January 1968, pp. 12-14.

15
12. Metropolitan Waterworks and Sewerage System v. Court of
Appeals, No. L-54526, 26 August 1986, 143 SCRA 623.
13. Pascua v. Court of Appeals, G.R. No. 76851,19 March
1990,
14. See City of Manila v. Bucay, Nos. L-19358-60, 31 March
1964, 10 SCRA 629.
15. Art. 1441, New Civil Code.
16. Ramos v. Ramos, No. L-19872, 3 December 1974, 61
SCRA 284 citing 89 C.J.S. 722.
17. 89 C.J.S. 724.
18. Salao v. Salao, No. L-26699, 16 March 1976, 70 SCRA 65.
19. Tolle v. Sawtelle, Civ. App., 246 S.W. 2d 916.
20. 76 Am Jar 2d 429.
21. 89 C.J.S. 726-27.
22. 76 Am Jur 2d 446.
23. Art. 1448. There is an implied trust when property is sold,
and the legal estate is granted to one party but the price is
paid by another for the purpose of having the beneficial
interest of the property. The former is the trustee, while the
latter is the beneficiary. However, if the person to whom the
title is conveyed is a child, legitimate or illegitimate, of the one
paying the price of the sale, no trust is implied by law, it being
disputably presumed that there is a gift in favor of the child.

Art. 1449. There is also an implied trust when a donation is

made to a person but it appears that although the legal estate
is transmitted to the donee, he nevertheless is either to have
no beneficial interest or only a part thereof.
Art. 1451. When land passes by succession to any person and
he causes the legal title to be put in the name of another, a
trust is established by implication of law for the benefit of the
true owner.
Art. 1452. If two or more persons agree to purchase property
and by common consent the legal title is taken in the name of
one of them for the benefit of all, a trust is created by force of
law in favor of the others in proportion to the interest of each.
Art. 1453. When property is conveyed to a person in reliance
upon his declared intention to hold it for, or transfer it to
another or the grantor, there is an implied trust in favor of the
person whose benefit is contemplated.
24. Art. 1450. If the price of a sale of property is loaned or paid
by one person for the benefit of another and the conveyance is
made to the lender or payor to secure the payment of the debt,
a trust arises by operation of law in favor of the person to
whom the money is loaned or for whom it is paid. The latter
may redeem the property and compel a conveyance thereof to
him.
Art. 1454. If an absolute conveyance of property is made in
order to secure the performance of an obligation of the grantor
toward the grantee, a trust by virtue of law is established. If the
fulfillment of the obligation is offered by the grantor when it
becomes due, he may demand the reconveyance of the
property to him.

16
Art. 1455. When any trustee, guardian or other person holding
a fiduciary relationship uses trust funds for the purchase of
property and causes the conveyance to be made to him or to a
third person, a trust is established by operation of law in favor
of the person to whom the funds belong.
Art. 1456. If property is acquired through mistake or fraud, the
person obtaining it is, by force of law, considered a trustee of
an implied trust for the benefit of the person from whom the
property comes.

36. See Note 11.

37. Decision, Court of First Instance of Pasig, p. 9; Record on
Appeal, p. 270.
38. TSN, 29 September 1970, p. 50; TSN, 29 April 1975, pp.
13-15.
39. Exhibits "13" and "15", Memorandum of Exhibits for
Defendants.

25. Art. 1443, New Civil Code.

40. TSN, 13 October 1971, pp. 71-82.

26. Art. 1457, id.

41. Heirs of Candelaria v. Romero, 109 Phil. 500 (1960).

27. Santa Juana v. Del Rosario, 50 Phil. 110 (1927).

42. Ramos v. Ramos, supra.

28. Suarez v. Tirambulo, 59 Phil. 303 (1933).

43. G.R. No. 101028, 23 April 1992, 208 SCRA 266.

29. Motion for New Trial, p.4, citing TSN. 29 June 1967, pp.
22-25.

44. Crawley v. Crawley, 72 N.H. 241; Lufkin v. Jakeman, 188

Mass 528, 74 N.E. 933.

30. TSN, 23 April 1971, pp. 12-13.

45. Miller v. Saxton, 75 S.C. 237, 55 S.E. 310; Kohl v. Noble,

63 Tex 432; Segura v. Segura, No. L-29320, 19 September
1988, 165 SCRA 369.

31. TSN, 15 January 1968, pp. 4-8.

32. Motion for New Trial, p. 20, citing TSN, 29 June 1967, pp.
7-9.
33. Exhibit "S", Memorandum of Exhibits for Plaintiff.
34. Exhibit "R", id.
35. Exhibit "L", id.

17
FIRST DIVISION
G.R. No. 86355 May 31, 1990

defendants-appellees Jose Modequillo and

Benito Malubay jointly and severally liable to
plaintiffs-appellants as hereinbelow set forth.
Accordingly, defendants-appellees are ordered
to pay jointly and severally to:

JOSE MODEQUILLO, petitioner,

vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS,
FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN
and DEPUTY SHERIFF FERNANDO PLATA respondents.

1. Plaintiffs-appellants, the Salinas spouses:

Josefina Brandares-Almazan for petitioner.

b. P10,000.00 for the loss of earnings by reason

of the death of said Audie Salinas;

ABC Law Offices for private respondents.

GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of
the Court of Appeals in an action for damages may be satisfied
by way of execution of a family home constituted under the
Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court
of Appeals in CA-G.R. CV No. 09218 entitled"Francisco
Salinas, et al. vs. Jose Modequillo, et al.," the dispositive part
of which read as follows:
WHEREFORE, the decision under appeal
should be, as it is hereby, reversed and set
aside. Judgment is hereby rendered finding the

a. the amount of P30,000.00 by way of

compensation for the death of their son Audie
Salinas;

c. the sum of P5,000.00 as burial expenses of

Audie Salinas; and
d. the sum of P5,000.00 by way of moral
damages.
2. Plaintiffs-appellants Culan-Culan:
a. the sum of P5,000.00 for hospitalization
expenses of Renato Culan- Culan; and
b. P5,000.00 for moral damages.
3. Both plaintiff-appellants Salinas and CulanCulan, P7,000.00 for attorney's fees and
litigation expenses.
All counterclaims and other claims are hereby
dismissed. 1

18
The said judgment having become final and executory, a writ
of execution was issued by the Regional Trial Court of Davao
City to satisfy the said judgment on the goods and chattels of
the defendants Jose Modequillo and Benito Malubay at
Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential
land located at Poblacion Malalag, Davao del Sur containing
an area of 600 square meters with a market value of
P34,550.00 and assessed value of P7,570.00 per Tax
Declaration No. 87008-01359, registered in the name of Jose
Modequillo in the office of the Provincial Assessor of Davao del
Sur; and a parcel of agricultural land located at Dalagbong
Bulacan, Malalag, Davao del Sur containing an area of 3
hectares with a market value of P24,130.00 and assessed
value of P9,650.00 per Tax Declaration No. 87-08-01848
registered in the name of Jose Modequillo in the office of the
Provincial Assessor of Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was
filed by defendant Jose Modequillo alleging therein that the
residential land located at Poblacion Malalag is where the
family home is built since 1969 prior to the commencement of
this case and as such is exempt from execution, forced sale or
attachment under Articles 152 and 153 of the Family Code
except for liabilities mentioned in Article 155 thereof, and that
the judgment debt sought to be enforced against the family
home of defendant is not one of those enumerated under
Article 155 of the Family Code. As to the agricultural land
although it is declared in the name of defendant it is alleged to
be still part of the public land and the transfer in his favor by
the original possessor and applicant who was a member of a
cultural minority was not approved by the proper government
agency. An opposition thereto was filed by the plaintiffs.

In an order dated August 26, 1988, the trial court denied the
motion. A motion for reconsideration thereof was filed by
defendant and this was denied for lack of merit on September
2, 1988.
Hence, the herein petition for review on certiorari wherein it is
alleged that the trial court erred and acted in excess of its
jurisdiction in denying petitioner's motion to quash and/or to
set aside levy on the properties and in denying petitioner'
motion for reconsideration of the order dated August 26, 1988.
Petitioner contends that only a question of law is involved in
this petition. He asserts that the residential house and lot was
first occupied as his family residence in 1969 and was duly
constituted as a family home under the Family Code which
took effect on August 4, 1988. Thus, petitioner argues that the
said residential house and lot is exempt from payment of the
obligation enumerated in Article 155 of the Family Code; and
that the decision in this case pertaining to damages arising
from a vehicular accident took place on March 16, 1976 and
which became final in 1988 is not one of those instances
enumerated under Article 155 of the Family Code when the
family home may be levied upon and sold on execution. It is
further alleged that the trial court erred in holding that the said
house and lot became a family home only on August 4, 1988
when the Family Code became effective, and that the Family
Code cannot be interpreted in such a way that all family
residences are deemed to have been constituted as family
homes at the time of their occupancy prior to the effectivity of
the said Code and that they are exempt from execution for the
payment of obligations incurred before the effectivity of said
Code; and that it also erred when it declared that Article 162 of
the Family Code does not state that the provisions of Chapter
2, Title V have a retroactive effect.

19
Articles 152 and 153 of the Family Code provide as follows:
Art. 152. The family home, constituted jointly by the
husband and the wife or by an unmarried head of a
family, is the dwelling house where they and their
family reside, and the land on which it is situated.
Art. 153. The family home is deemed constituted on a
house and lot from the time it is occupied as a family
residence. From the time of its constitution and so long
as any of its beneficiaries actually resides therein, the
family home continues to be such and is exempt from
execution, forced sale or attachment except as
hereinafter provided and to the extent of the value
allowed by law.
Under the Family Code, a family home is deemed constituted
on a house and lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially or
extrajudicially as required in the Civil Code. If the family
actually resides in the premises, it is, therefore, a family home
as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before
extending credit to the spouses or head of the family who
owns the home.
Article 155 of the Family Code also provides as follows:
Art. 155. The family home shall be exempt from
execution, forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the
family home;

(3) For debts secured by mortgages on the premises

before or after such constitution; and
(4) For debts due to laborers, mechanics, architects,
builders, material men and others who have rendered
service or furnished material for the construction of the
building.
The exemption provided as aforestated is effective from the
time of the constitution of the family home as such, and lasts
so long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner
was not constituted as a family home whether judicially or
extrajudicially under the Civil Code. It became a family home
by operation of law only under Article 153 of the Family Code.
It is deemed constituted as a family home upon the effectivity
of the Family Code on August 3, 1988 not August 4, one year
after its publication in the Manila Chronicle on August 4, 1987
(1988 being a leap year).
The contention of petitioner that it should be considered a
family home from the time it was occupied by petitioner and
his family in 1969 is not well- taken. Under Article 162 of the
Family Code, it is provided that "the provisions of this Chapter
shall also govern existing family residences insofar as said
provisions are applicable." It does not mean that Articles 152
and 153 of said Code have a retroactive effect such that all
existing family residences are deemed to have been
constituted as family homes at the time of their occupation
prior to the effectivity of the Family Code and are exempt from
execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that all
existing family residences at the time of the effectivity of the
Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family

20
home under the Family Code. Article 162 does not state that
the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the
money judgment aforecited No. The debt or liability which was
the basis of the judgment arose or was incurred at the time of
the vehicular accident on March 16, 1976 and the money
judgment arising therefrom was rendered by the appellate
court on January 29, 1988. Both preceded the effectivity of the
Family Code on August 3, 1988. This case does not fall under
the exemptions from execution provided in the Family Code.
As to the agricultural land subject of the execution, the trial
court correctly ruled that the levy to be made by the sheriff
shall be on whatever rights the petitioner may have on the
land.
WHEREFORE, the petition is DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Narvasa (Chairman), Cruz and Medialdea, JJ., concur. GrioAquino, J., is on leave.

Footnotes
1 Madame Justice Lorna S. Lombosde la
Fuente was the ponente concurred in by
Justices Antonio M. Martinez and Cecilio L. Pe.
2 Pages 18-21, Rollo.

21
SECOND DIVISION

favor of private respondent Aguilar. They alleged, inter

alia, viz.:
xxx xxx xxx

G.R. No. 105625 January 24, 1994

MARISSA BENITEZ-BADUA, petitioner,
vs.
COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND
FEODOR BENITEZ AGUILAR, respondents.
Reynaldo M. Alcantara for petitioner.
Augustus Cesar E. Azura for private respondents.

PUNO, J.:
This is a petition for review of the Decision of the 12th Division
of the Court of Appeals in CA-G.R. No. CV No. 30862 dated
May 29, 1992. 1
The facts show that the spouses Vicente Benitez and Isabel
Chipongian owned various properties especially in Laguna.
Isabel died on April 25, 1982. Vicente followed her in the grave
on November 13, 1989. He died intestate.
The fight for administration of Vicente's estate ensued. On
September 24, 1990, private respondents Victoria Benitez-Lirio
and Feodor Benitez Aguilar (Vicente's sister and nephew,
respectively) instituted Sp. Proc. No. 797 (90) before the RTC
of San Pablo City, 4th Judicial Region, Br. 30. They prayed for
the issuance of letters of administration of Vicente's estate in

4. The decedent is survived by no other heirs or

relatives be they ascendants or descendants,
whether legitimate, illegitimate or legally
adopted; despite claims or representation to the
contrary, petitioners can well and truly establish,
given the chance to do so, that said decedent
and his spouse Isabel Chipongian who predeceased him, and whose estate had earlier
been settled extra-judicial, were without issue
and/or without descendants whatsoever, and
that one Marissa Benitez-Badua who was
raised and cared by them since childhood is, in
fact, not related to them by blood, nor legally
adopted, and is therefore not a legal heir; . . .
On November 2, 1990, petitioner opposed the petition. She
alleged that she is the sole heir of the deceased Vicente
Benitez and capable of administering his estate. The parties
further exchanged reply and rejoinder to buttress their legal
postures.
The trial court then received evidence on the issue of
petitioner's heirship to the estate of the deceased. Petitioner
tried to prove that she is the only legitimate child of the
spouses Vicente Benitez and Isabel Chipongian. She
submitted documentary evidence, among others: (1) her
Certificate of Live Birth (Exh. 3); (2) Baptismal Certificate (Exh.
4); (3) Income Tax Returns and Information Sheet for
Membership with the GSIS of the late Vicente naming her as
his daughter (Exhs. 10 to 21); and (4) School Records (Exhs. 5
& 6). She also testified that the said spouses reared an

22
continuously treated her as their legitimate daughter. On the
other hand, private respondents tried to prove, mostly thru
testimonial evidence, that the said spouses failed to beget a
child during their marriage; that the late Isabel, then thirty six
(36) years of age, was even referred to Dr. Constantino
Manahan, a noted obstetrician-gynecologist, for treatment.
Their primary witness, Victoria Benitez-Lirio, elder sister of the
late Vicente, then 77 years of age, 2 categorically declared that
petitioner was not the biological child of the said spouses who
were unable to physically procreate.
On December 17, 1990, the trial court decided in favor of the
petitioner. It dismissed the private respondents petition for
letters and administration and declared petitioner as the
legitimate daughter and sole heir of the spouses Vicente O.
Benitez and Isabel Chipongian. The trial court relied on Articles
166 and 170 of the Family Code.
On appeal, however, the Decision of the trial court was
reversed on May 29, 1992 by the 17th Division of the Court of
Appeals. The dispositive portion of the Decision of the
appellate court states:
WHEREFORE, the decision appealed from herein is
REVERSED and another one entered declaring that
appellee Marissa Benitez is not the biological daughter
or child by nature of the spouse Vicente O. Benitez and
Isabel Chipongian and, therefore, not a legal heir of the
deceased Vicente O. Benitez. Her opposition to the
petition for the appointment of an administrator of the
intestate of the deceased Vicente O. Benitez is,
consequently, DENIED; said petition and the
proceedings already conducted therein reinstated; and
the lower court is directed to proceed with the hearing
of Special proceeding No. SP-797 (90) in accordance
with law and the Rules.

Costs against appellee.

SO ORDERED.
In juxtaposition, the appellate court held that the trial court
erred in applying Articles 166 and 170 of the Family Code.
In this petition for review, petitioner contends:
1. The Honorable Court of Appeals committed error of
law and misapprehension of facts when it failed to
apply the provisions, more particularly, Arts. 164, 166,
170 and 171 of the Family Code in this case and in
adopting and upholding private respondent's theory
that the instant case does not involve an action to
impugn the legitimacy of a child;
2. Assuming arguendo that private respondents can
question or impugn directly or indirectly, the legitimacy
of Marissa's birth, still the respondent appellate Court
committed grave abuse of discretion when it gave more
weight to the testimonial evidence of witnesses of
private respondents whose credibility and demeanor
have not convinced the trial court of the truth and
sincerity thereof, than the documentary and testimonial
evidence of the now petitioner Marissa Benitez-Badua;
3. The Honorable Court of Appeals has decided the
case in a way not in accord with law or with applicable
decisions of the supreme Court, more particularly, on
prescription or laches.
We find no merit to the petition.

23
Petitioner's insistence on the applicability of Articles 164, 166,
170 and 171 of the Family Code to the case at bench cannot
be sustained. These articles provide:

husband except in the instance provided in the second

paragraph of Article 164; or

Art. 164. Children conceived or born during the

marriage of the parents are legitimate.

3) That in case of children conceived through artificial

insemination, the written authorization or ratification of
either parent was obtained through mistake, fraud,
violence, intimidation, or undue influence.

Children conceived as a result of artificial insemination

of the wife with sperm of the husband or that of a donor
or both are likewise legitimate children of the husband
and his wife, provided, that both of them authorized or
ratified such insemination in a written instrument
executed and signed by them before the birth of the
child. The instrument shall be recorded in the civil
registry together with the birth certificate of the child.

Art. 170. The action to impugn the legitimacy of the

child shall be brought within one year from the
knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his
heirs, should reside in the city or municipality where the
birth took place or was recorded.

Art. 166. Legitimacy of child may be impugned only on

the following grounds:
1) That it was physically impossible for the husband to
have sexual intercourse with his wife within the first 120
days of the 300 days which immediately preceded the
birth of the child because of:
a) the physical incapacity of the husband to
have sexual intercourse with his wife;
b) the fact that the husband and wife were living
separately in such a way that sexual intercourse
was not possible; or
c) serious illness of the husband, which
absolutely prevented sexual intercourse.
2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the

If the husband or, in his default, all of his heirs do not

reside at the place of birth as defined in the first
paragraph or where it was recorded, the period shall be
two years if they should reside in the Philippines; and
three years if abroad. If the birth of the child has been
concealed from or was unknown to the husband or his
heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of
registration of said birth, which ever is earlier.
Art. 171. The heirs of the husband may impugn the
filiation of the child within the period prescribed in the
preceding Article only in the following case:
1) If the husband should die before the expiration of the
period fixed for bringing his action;
2) If he should die after the filing of the complaint,
without having desisted therefrom; or
3) If the child was born after the death of the husband.

24
A careful reading of the above articles will show that they do
not contemplate a situation, like in the instant case, where a
child is alleged not to be the child of nature or biological child
of a certain couple. Rather, these articles govern a situation
where a husband (or his heirs) denies as his own a child of his
wife. Thus, under Article 166, it is the husband who can
impugn the legitimacy of said child by proving: (1) it was
physically impossible for him to have sexual intercourse, with
his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have
been his child; (3) that in case of children conceived through
artificial insemination, the written authorization or ratification by
either parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce
this reading as they speak of the prescriptive period within
which the husband or any of his heirs should file the action
impugning the legitimacy of said child. Doubtless then, the
appellate court did not err when it refused to apply these
articles to the case at bench. For the case at bench is not one
where the heirs of the late Vicente are contending that
petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not born to Vicente and
Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate
Court, 166 SCRA 451, 457 cited in the impugned decision is
apropos, viz.:
Petitioners' recourse to Article 263 of the New Civil
Code [now Article 170 of the Family Code] is not welltaken. This legal provision refers to an action to impugn
legitimacy. It is inapplicable to this case because this is
not an action to impugn the legitimacy of a child, but an
action of the private respondents to claim their
inheritance as legal heirs of their childless deceased
aunt. They do not claim that petitioner Violeta Cabatbat
Lim is an illegitimate child of the deceased, but that she

is not the decedent's child at all. Being neither legally

adopted child, nor an acknowledged natural child, nor a
child by legal fiction of Esperanza Cabatbat, Violeta is
not a legal heir of the deceased.
We now come to the factual finding of the appellate court that
petitioner was not the biological child or child of nature of the
spouses Vicente Benitez and Isabel Chipongian. The appellate
court exhaustively dissected the evidence of the parties as
follows:
. . . And on this issue, we are constrained to say that
appellee's evidence is utterly insufficient to establish
her biological and blood kinship with the aforesaid
spouses, while the evidence on record is strong and
convincing that she is not, but that said couple being
childless and desirous as they were of having a child,
the late Vicente O. Benitez took Marissa from
somewhere while still a baby, and without he and his
wife's legally adopting her treated, cared for, reared,
considered, and loved her as their own true child,
giving her the status as not so, such that she herself
had believed that she was really their daughter and
entitled to inherit from them as such.
The strong and convincing evidence referred to us are the
following:
First, the evidence is very cogent and clear that Isabel
Chipongian never became pregnant and, therefore,
never delivered a child. Isabel's own only brother and
sibling, Dr. Lino Chipongian, admitted that his sister
had already been married for ten years and was
already about 36 years old and still she has not
begotten or still could not bear a child, so that he even
had to refer her to the late Dr. Constantino Manahan, a

25
well-known and eminent obstetrician-gynecologist and
the OB of his mother and wife, who treated his sister
for a number of years. There is likewise the testimony
of the elder sister of the deceased Vicente O. Benitez,
Victoria Benitez Lirio, who then, being a teacher,
helped him (he being the only boy and the youngest of
the children of their widowed mother) through law
school, and whom Vicente and his wife highly
respected and consulted on family matters, that her
brother Vicente and his wife Isabel being childless, they
wanted to adopt her youngest daughter and when she
refused, they looked for a baby to adopt elsewhere,
that Vicente found two baby boys but Isabel wanted a
baby girl as she feared a boy might grow up unruly and
uncontrollable, and that Vicente finally brought home a
baby girl and told his elder sister Victoria he would
register the baby as his and his wife's child. Victoria
Benitez Lirio was already 77 years old and too weak to
travel and come to court in San Pablo City, so that the
taking of her testimony by the presiding judge of the
lower court had to be held at her residence in
Paraaque, MM. Considering, her advanced age and
weak physical condition at the time she testified in this
case, Victoria Benitez Lirio's testimony is highly
trustworthy and credible, for as one who may be called
by her Creator at any time, she would hardly be
interested in material things anymore and can be
expected not to lie, especially under her oath as a
witness. There were also several disinterested
neighbors of the couple Vicente O. Benitez and Isabel
Chipongian in Nagcarlan, Laguna (Sergio Fule, Cecilia
Coronado, and Benjamin C. Asendido) who testified in
this case and declared that they used to see Isabel
almost everyday especially as she had drugstore in the
ground floor of her house, but they never saw her to
have been pregnant, in 1954 (the year appellee

Marissa Benitez was allegedly born, according to her

birth certificate Exh. "3") or at any time at all, and that it
is also true with the rest of their townmates.
Ressureccion A. Tuico, Isabel Chipongian's personal
beautician who used to set her hair once a week at her
(Isabel's) residence, likewise declared that she did not
see Isabel ever become pregnant, that she knows that
Isabel never delivered a baby, and that when she saw
the baby Marissa in her crib one day she went to
Isabel's house to set the latter's hair, she was surprised
and asked the latter where the baby came from, and
"she told me that the child was brought by Atty. Benitez
and told me not to tell about it" (p. 10, tsn, Nov. 29,
1990).
The facts of a woman's becoming pregnant and
growing big with child, as well as her delivering a baby,
are matters that cannot be hidden from the public eye,
and so is the fact that a woman never became
pregnant and could not have, therefore, delivered a
baby at all. Hence, if she is suddenly seen mothering
and caring for a baby as if it were her own, especially
at the rather late age of 36 (the age of Isabel
Chipongian when appellee Marissa Benitez was
allegedly born), we can be sure that she is not the true
mother of that baby.
Second, appellee's birth certificate Exh. "3" with the
late Vicente O. Benitez appearing as the informant, is
highly questionable and suspicious. For if Vicente's
wife Isabel, who wads already 36 years old at the time
of the child's supposed birth, was truly the mother of
that child, as reported by Vicente in her birth certificate,
should the child not have been born in a hospital under
the experienced, skillful and caring hands of Isabel's
obstetrician-gynecologist Dr. Constantino Manahan,

26
since delivery of a child at that late age by Isabel would
have been difficult and quite risky to her health and
even life? How come, then, that as appearing in
appellee's birth certificate, Marissa was supposedly
born at the Benitez home in Avenida Rizal, Nagcarlan,
Laguna, with no physician or even a midwife attending?
At this juncture, it might be meet to mention that it has
become a practice in recent times for people who want
to avoid the expense and trouble of a judicial adoption
to simply register the child as their supposed child in
the civil registry. Perhaps Atty. Benitez, though a lawyer
himself, thought that he could avoid the trouble if not
the expense of adopting the child Marissa through
court proceedings by merely putting himself and his
wife as the parents of the child in her birth certificate.
Or perhaps he had intended to legally adopt the child
when she grew a little older but did not come around
doing so either because he was too busy or for some
other reason. But definitely, the mere registration of a
child in his or her birth certificate as the child of the
supposed parents is not a valid adoption, does not
confer upon the child the status of an adopted child
and the legal rights of such child, and even amounts of
simulation of the child's birth or falsification of his or her
birth certificate, which is a public document.
Third, if appellee Marissa Benitez is truly the real,
biological daughter of the late Vicente O. Benitez and
his wife Isabel Chipongian, why did he and Isabel's
only brother and sibling Dr. Nilo Chipongian, after
Isabel's death on April 25, 1982, state in the
extrajudicial settlement
Exh. "E" that they executed her estate, "that we are the
sole heirs of the deceased ISABEL CHIPONGIAN
because she died without descendants or

ascendants?" Dr. Chipongian, placed on a witness

stand by appellants, testified that it was his brother-inlaw Atty. Vicente O. Benitez who prepared said
document and that he signed the same only because
the latter told him to do so (p. 24, tsn, Nov. 22, 1990).
But why would Atty. Benitez make such a statement in
said document, unless appellee Marissa Benitez is not
really his and his wife's daughter and descendant and,
therefore, not his deceased wife's legal heir? As for Dr.
Chipongian, he lamely explained that he signed said
document without understanding completely the
meaning of the words "descendant and ascendant" (p.
21, tsn, Nov. 22, 1990). This we cannot believe, Dr.
Chipongian being a practicing pediatrician who has
even gone to the United States (p. 52, tsn, Dec. 13,
1990). Obviously,
Dr. Chipongian was just trying to protect the interests of
appellee, the foster-daughter of his deceased sister
and brother-in-law, as against those of the latter's
collateral blood relatives.
Fourth, it is likewise odd and strange, if appellee
Marissa Benitez is really the daughter and only legal
heir of the spouses Vicente O. Benitez and Isabel
Chipongian, that the latter, before her death, would
write a note to her husband and Marissa stating that:
even without any legal papers, I wish that my
husband and my child or only daughter will
inherit what is legally my own property, in case I
die without a will,
and in the same handwritten note, she even implored
her husband

27
that any inheritance due him from my
property when he die to make our own
daughter his sole heir. This do [sic] not
mean what he legally owns or his inherited
property. I leave him to decide for himself
regarding those.
(Exhs. "F-1", "F-1-A" and "F-1-B")
We say odd and strange, for if Marissa Benitez is really
the daughter of the spouses Vicente O. Benitez and
Isabel Chipongian, it would not have been necessary
for Isabel to write and plead for the foregoing requests
to her husband, since Marissa would be their legal heir
by operation of law. Obviously, Isabel Chipongian had
to implore and supplicate her husband to give appellee
although without any legal papers her properties when
she dies, and likewise for her husband to give Marissa
the properties that he would inherit from her (Isabel),
since she well knew that Marissa is not truly their
daughter and could not be their legal heir unless her
(Isabel's) husband makes her so.
Finally, the deceased Vicente O. Benitez' elder sister
Victoria Benitez Lirio even testified that her brother
Vicente gave the date
December 8 as Marissa's birthday in her birth
certificate because that date is the birthday of their
(Victoria and Vicente's) mother. It is indeed too much of
a coincidence for the child Marissa and the mother of
Vicente and Victoria to have the same birthday unless
it is true, as Victoria testified, that Marissa was only
registered by Vicente as his and his wife's child and
that they gave her the birth date of Vicente's mother.

We sustain these findings as they are not unsupported by the

evidence on record. The weight of these findings was not
negated by documentary evidence presented by the petitioner,
the most notable of which is her Certificate of Live Birth (Exh.
"3") purportedly showing that her parents were the late
Vicente Benitez and Isabel Chipongian. This Certificate
registered on December 28, 1954 appears to have been
signed by the deceased Vicente Benitez. Under Article 410 of
the New Civil Code, however, "the books making up the Civil
Registry and all documents relating thereto shall be
considered public documents and shall be prima facieevidence
of the facts therein stated." As related above, the totality of
contrary evidence, presented by the private respondents
sufficiently rebutted the truth of the content of petitioner's
Certificate of Live Birth. of said rebutting evidence, the most
telling was the Deed of Extra-Judicial Settlement of the Estate
of the Deceased Isabel Chipongian (Exh. "E") executed on
July 20, 1982 by Vicente Benitez, and
Dr. Nilo Chipongian, a brother of Isabel. In their notarized
document, they stated that "(they) are the sole heirs of the
deceased Isabel Chipongian because she died without
descendants or ascendants". In executing this Deed, Vicente
Benitez effectively repudiated the Certificate of Live Birth of
petitioner where it appeared that he was petitioner's father.
The repudiation was made twenty-eight years after he signed
petitioner's Certificate of Live Birth.
IN VIEW WHEREOF, the petition for review is dismissed for
lack of merit. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, JJ., concur.
Nocon, J., is on leave.

28
SECOND DIVISION

G.R. No. 108366 February 16, 1994

JOHN PAUL E. FERNANDEZ, ET AL., petitioners,
vs.
THE COURT OF APPEALS and CARLITO S.
FERNANDEZ, respondents.
Erlinda B. Espejo for petitioners.
C.B. Carbon & Associates for private respondent.

PUNO, J.:
The legal dispute between the parties began when the
petitioners filed Civil Case No. Q-45567 for support against the
private respondent before the RTC of Quezon City. The
complaint was dismissed on December 9, 1986 by Judge
Antonio P. Solano, 1 who found that "(t)here is nothing in the
material allegations in the complaint that seeks to compel
(private respondent) to recognize or acknowledge (petitioners)
as his illegitimate children," and that there was no sufficient
and competent evidence to prove the petitioners filiation. 2
Petitioners plodded on. On February 19, 1987, they file the
case at bench, another action for recognition and support
against the private respondent before another branch of the
RTC of Quezon City, Branch 87. The case was docketed as
Civil Case No. Q-50111.

The evidence shows that VIOLETA P. ESGUERRA, single, is

the mother and guardian ad litem of the two petitioners,
CLARO ANTONIO FERNANDEZ and JOHN PAUL
FERNANDEZ, met sometime in 1983, at the Meralco
Compound tennis courts. A Meralco employee and a tennis
enthusiast, Carlito used to spend his week-ends regularly at
said courts, where Violeta's father served as tennis instructor.
Violeta pointed to Carlito as the father of her two sons. She
claimed that they started their illicit sexual relationship six (6)
months after their first meeting. The tryst resulted in the birth of
petitioner Claro Antonio on March 1, 1984, and of petitioner
John Paul on not know that Carlito was married until the birth
of her two children. She averred they were married in civil rites
in October, 1983. In March, 1985, however, she discovered
that the marriage license which they used was spurious.
To bolster their case, petitioners presented the following
documentary evidence: their certificates of live birth, identifying
respondent Carlito as their father; the baptismal certificate of
petitioner Claro which also states that his father is respondent
Carlito; photographs of Carlito taken during the baptism of
petitioner Claro; and pictures of respondent Carlito and Claro
taken at the home of Violeta Esguerra.
Petitioners likewise presented as witnesses, Rosario
Cantoria, 3 Dr. Milagros Villanueva, 4 Ruby Chua Cu, 5 and Fr.
Liberato Fernandez. 6 The first three witnesses told the trial
court that Violeta Esguerra had, at different times, 7 introduced
the private respondent to them as her "husband". Fr.
Fernandez, on the other hand, testified that Carlito was the
one who presented himself as the father of petitioner Claro
during the latter's baptism.
In defense, respondent Carlito denied Violeta's allegations that
he sired the two petitioners. He averred he only served as one

29
of the sponsors in the baptism of petitioner Claro. This claim
was corroborated by the testimony of Rodante Pagtakhan, an
officemate of respondent Carlito who also stood as a sponsor
of petitioner Claro during his baptism. The Private respondent
also presented as witness, Fidel Arcagua, a waiter of the
Lighthouse Restaurant. He disputed Violeta's allegation that
she and respondent Carlito frequented the said restaurant
during their affair. Arcagua stated he never saw Violeta
Esguerra and respondent Carlito together at the said
restaurant. Private respondent also declared he only learned
he was named in the birth certificates of both petitioners as
their father after he was sued for support in Civil Case No.
Q-45567.
Based on the evidence adduced by the parties, the trial court
ruled in favor of petitioners, viz.:
In view of the above, the Court concludes and so holds
that the plaintiffs minors (petitioners herein) are entitled
to the relief's prayed for in the complaint. The
defendant (herein private respondent) is hereby
ordered to recognize Claro Antonio Carlito Fernandez,
now aged 6, and John Paul Fernandez, now aged 41/2
as his sons. As the defendant has admitted that he has
a supervisory job at the Meralco, he shall give the
plaintiffs support in the amount of P2,000 each a
month, payment to be delivered to Violeta Esguerra,
the children's mother and natural guardian, with arrears
reckoned as of the filing of the complaint on February
19, 1987.
SO ORDERED.
On appeal, the decision was set aside and petitioners
complaint dismissed by the respondent Court of Appeals 8 in its
impugned decision, dated October 20, 1992. It found that the

"proof relied upon by the (trial) court (is) inadequate to prove

the (private respondent's) paternity and filiation of
(petitioners)." It further held that the doctrine of res
judicata applied because of the dismissal of the petitioners
complaint in Civil Case No. Q-45567. Petitioners' motion for
reconsideration was denied on December 22, 1992.
Petitioners now contend that the respondent appellate court
erred in: (1) not giving full faith and credit to the testimony in of
Violeta Esguerra; (2) not giving weight and value to the
testimony of Father Liberato Fernandez; (3) not giving
probative value to the numerous pictures of respondent Carlito
Fernandez taken during the baptismal ceremony and inside
the bedroom of Violeta Esguerra; (4) not giving probative value
to the birth certificates of petitioners; (5) giving so much
credence to the self-serving and incredible testimony of
respondent Carlito Fernandez; and (6) holding that the
principle of res judicata is applicable in the case at bar.
We find no merit in the petition.
The rule is well-settled that findings of facts of the Court of
Appeals may be reviewed by this court only under exceptional
circumstances. One such situation is when the findings of the
appellate court clash with those of the trial court as in the case
at bench. It behooves us therefore to exercise our
extraordinary power, and settle the issue of whether the ruling
of the appellate court that private respondent is not the father
of the petitioners is substantiated by the evidence on record.
We shall first examine the documentary evidence offered by
the petitioners which the respondent court rejected as
insufficient to prove their filiation. Firstly, we hold that
petitioners cannot rely on the photographs showing the
presence of the private respondent in the baptism of petitioner
Claro (Exh. "B-8", Exh. "B-12", Exh. "H" and Exh. "I"). These

30
photographs are far from proofs that private respondent is the
father of petitioner Claro. As explained by the private
respondent, he was in the baptism as one of the sponsors of
petitioner Claro. His testimony was corroborated by Rodante
Pagtakhan.
Secondly, the pictures taken in the house of Violeta showing
private respondent showering affection to Claro fall short of the
evidence required to prove paternity (Exhibits "B", "B-1", "B-2",
"B-7", "B-14" and "B-15"). As we held inTan vs. Trocio, 192
SCRA 764, viz:
. . . The testimonies of complainant and witness
Marilou Pangandaman, another maid, to show unusual
closeness between Respondent and Jewel, like playing
with him and giving him paternity. The same must be
said of . . . (the) pictures of Jewels and Respondent
showing allegedly their physical likeness to each other.
Said evidence is inconclusive to prove paternity and
much less would prove violation of complaint's person
and honor. (Emphasis supplied)
Thirdly, the baptismal certificates (Exh. "D") of petitioner Claro
naming private respondent as his father has scant evidentiary
value. There is no showing that private respondent participated
in its preparation. On this score, we held in Berciles vs.
Systems, et al. 128 SCRA 53 (1984):
As to the baptismal certificates, Exh. "7-A", the rule is
that although the baptismal record of a natural child
describes her as a child of the record the decedent had
no intervening, the baptismal record cannot be held to
be a voluntary recognition of parentage. . . . The
reason for this rule that canonical records do not
constitute the authentic document prescribed by Arts.
115 and 117 to prove the legitimate filiation of a child is

that such canonical record is simply proof of the only

act to which the priest may certify by reason of his
personal knowledge, an act done by himself or in his
presence, like the administration of the sacrament
upon a day stated; it is no proof of the declarations in
the record with respect to the parentage of the child
baptized, or of prior and distinct facts which require
separate and concrete evidence.
In Macandang vs. Court of Appeals, 100 SCRA 73 (1980), we
also ruled that while baptismal certificates may be considered
public documents, they can only serve as evidence of the
administration of the sacraments on the dates so specified.
They are not necessarily competent evidence of the veracity of
entries therein with respect to the child's paternity.
Fourth, the certificates of live birth (Exh. "A"; Exh. "B") of the
petitioners identifying private respondent as their father are not
also competent evidence on the issue of their paternity. Again,
the records do no show that private respondent had a hand in
the preparation of said certificates. In rejecting these
certificates, the ruling of the respondent court is in accord with
our pronouncement in Roces vs. Local Civil Registrar, 102
Phil. 1050 (1958), viz:
. . . Section 5 of Act No. 3793 and Article 280 of the
Civil Code of the Philippines explicity prohibited, not
only the naming of the father or the child born outside
wedlock, when the birth certificates, or the recognition,
is not filed or made by him, but, also, the statement of
any information or circumstances by which he could be
identified. Accordingly, the Local Civil Registrar had no
authority to make or record the paternity of an
illegitimate child upon the information of a third person
and the certificate of birth of an illegitimate child, when
signed only by the mother of the latter, is incompetent

31
evidence of fathership of said child. (Emphasis
supplied)
We reiterated this rule in Berciles, op. cit., when we held that
"a birth certificate no signed by the alleged father therein
indicated is not competent evidence of paternity."
We have also reviewed the relevant testimonies of the
witnesses for the petitioners and we are satisfied that the
respondent appellate court properly calibrated their weight.
Petitioners capitalize on the testimony of Father Liberato
Fernandez who solemnized the baptismal ceremony of
petitioner Claro. He declared on the witness stand:
Q Do you recall Father, whether on that occasion when
you called for the father and the mother of the child,
that both father and mother were present?
A Yes.
Q Would you able to recognized the father and the
mother who were present at that time?
A Yes.
Q Please point to the court?
A There (witness pointing to the defendant, Carlito
Fernandez).
Q For instance, just give us more specifically what
question do you remember having asked him?

Q I just want to be sure, Father, will you please look at

the defendant again. I want to be sure if he is the
person who appeared before you on that occasion?
A I am sure.
(TSN, May 23, 1986, pp. 14-16)
However, on cross examination, Father Fernandez admitted
that he has to be shown a picture of the private respondent by
Violeta Esguerra to recognize the private respondent, viz:
Q When was the, approximately, when you were first
shown this picture by Violeta Esguerra?
A I cannot recall.
Q At least the month and the year?
A It must be in 1986.
Q What month in 1986.
A It is difficult. . .
Q When was the first time you know you are going to
testify here?
A Let us see, you came there two times and first one
was you want to get a baptismal certificate and then
the second time was I asked you for what is this? And
you said it is for the court.

A Yes, like for example, do you renounce Satan and his

works?

Q On the second time that Ms. Violeta Esguerra went

to your place, you were already informed that you will
testify here before this Honorable Court?

Q What was the answer of Fernandez?

A Yes.

A Yes, I do.

Q And you were informed by this Ms. Violeta Esguerra

that this man wearing the blue T-shirt is the father?

32
A Yes, sir.
Q So, it was Violeta Esguerra who. . .
A Yes.
(TSN, May 23, 1986, pp. 18 to 22)
Indeed, there is no proof that Father Fernandez is a close
friend of Violeta Esguerra and the private respondent which
should render unquestionable his identification of the private
respondent during petitioner Claro's baptism. In the absence of
this proof, we are not prepared to concede that Father
Fernandez who officiates numerous baptismal ceremonies day
in and day out can remember the parents of the children he
has baptized.
We cannot also disturb the findings of the respondent court on
the credibility of Violeta Esguerra. Her testimony is highly
suspect as it is self-serving and by itself, is insufficient to prove
the paternity of the petitioners.
We shall not pass upon the correctness of the ruling of the
respondent appellate court applying the doctrine of res
judicata as additional reason in dismissing petitioners action
for recognition and support. It is unnecessary considering our
findings that petitioners evidence failed to substantiate their
cause of action.
IN VIEW WHEREOF, the petition is DISMISSED and the
Decision of the respondent court in CA-G.R. CV No. 29182 is
AFFIRMED. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

#Footnotes
1 Presiding judge of Branch 86, RTC Quezon City.
2 In this regard, Judge Solano held:
xxx xxx xxx
(Petitioners') certificates of birth imputing filiation to
defendant as the putative father are incompetent evidence.
The baptismal certificates, upon the other hand, is not an
indubitable writing that is impressed with authority to
establish filiation with those alleged as the parents of the
child baptized.
The oral testimony of Violeta Esguerra, uncorroborated as it
were, to sustain a conclusion that defendant indeed is the
father of plaintiffs.
3 She is neighbor of Violeta Esguerra.
4 She is the obstetrician who delivered the petitioners. Dr.
Villanueva is the mother-in-law of Violeta Esguerra's brother.
5 She is a friend and former officemate of Violeta Esguerra.
6 He is the priest who officiated over the baptism of
petitioner Claro Antonio Fernandez. Fr. Fernandez actually
testified in Civil Case No. Q-45567. The whole records of the
earlier case were presented as evidence in this case.
7 In the case of Rosario Cantoria, she first met private
respondent Carlito (who was introduced by Violeta as her
"husband") when she (Rosario) was taking care of
Fernandez. Dr. Villanueva was first introduced to Carlito (as
Violeta's "husband") on March 1, 1984, after she (Dr.
Villanueva) delivered petitioner Claro Antonio Fernandez.
Ruby Chua Cu met Violeta's "husband" (Carlito) at the
baptism of petitioner Claro Antonio Fernandez.
8 Through its Fifth Division, composed of Associate Justices
Serafin E. Camilon (chairman), Jorge S. Imperial (ponente),
and Cancio C. Garcia. The case was docketed as CA-G.R.
CV No. 29182.

33
FIRST DIVISION

Upon arraignment, accused-appellant pleaded not guilty to the

crime charged and due trial ensued.
The facts as established by evidence are as follows:

G.R. No. 109144 August 19, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MORENO L. TUMIMPAD, accused-appellant.
The Solicitor General for plaintiff-appellee.
Miguel M. Lingating for accused-appellant.

KAPUNAN, J.:
Accused-appellant Constable Moreno L. Tumimpad and coaccused Constable Ruel C. Prieto were charged with the crime
of rape committed against a 15-year old Mongoloid child in a
complaint dated on May 24, 1991, signed by her mother, Mrs.
Pastora L. Salcedo, which reads:
That during the period between the last week of March
1989 and the first week of April 1989, in Barangay
Lower Lamac, Oroquieta City, Philippines, and within
the jurisdiction of this Honorable Court, the said
accused did then and there, wilfully, unlawfully and
feloniously, have (sic) carnal knowledge with Sandra
Salcedo, complainant's daughter, a woman who is a
mongoloid and so weak of mind and in intellect as to be
capable of giving rational and legal consent. 1

Sandra Salcedo at the time of the incident was a 15-year old

Mongoloid and daughter of Lt. Col. Teofisto Salcedo and
Pastora Salcedo. She had a mind of a five-year old child, who
still needed to be fed and dressed up. Her vocabulary was
limited and most of the time she expressed herself by motions.
Col. Teofisto Salcedo was then Provincial Commander of
Misamis Occidental. Four security men were assigned to him,
two of whom were accused Constable Ruel Prieto and
accused-appellant Moreno Tumimpad.
The Salcedo family, composed of Col. Salcedo, his wife
Pastora, his son Alexander and wife and daughter Sandra,
lived in a two-storey officers' quarters inside Camp Lucas
Naranjo, Provincial Headquarters, in Oroquieta City. The upper
storey of the house was occupied by Col. Salcedo, his wife
and Sandra while the lower storey had two (2) rooms, one of
which was occupied by the four security men and the other by
Alexander Salcedo and his wife.
It was on August 7, 1989, when Sandra complained of
constipation. Mrs. Salcedo then brought her to a doctor in
Oroquieta City for a checkup. Medication was given to Sandra
but her condition did not improve. Sandra became irritable and
moody. She felt sick and unhappy.
The following day, August 8, 1989, Sandra saw Moreno
Tumimpad coming out from the kitchen and told her mother,
"Mama, patayin mo 'yan, bastos." 2

34
Mrs. Pastora Salcedo, worried of her daughter's condition,
brought her to Regina Hospital. Sandra was able to relieve
herself the following day but still remained moody and irritable.
She refused to take a bath in spite of scoldings from her
mother. She did not want to eat and whenever she did, she
would vomit.
Sandra was brought to a doctor in Oroquieta City for a second
checkup. Dr. Conol, the examining physician, ordered a
urinalysis. Jose C. Lim, a Medical Technologist, conducted the
urinalysis. The result revealed that Sandra was
pregnant. 3 Mrs. Pastora Salcedo could not believe that her
daughter was pregnant and so she brought Sandra to
Madonna and Child Hospital in Cagayan de Oro City. Dr. Kho,
and OB-GYNE Specialist, examined Sandra and subjected her
to a pelvic ultra-sound examination. The results were positive.
The fetus' gestational age was equivalent to 17.1
weeks. 4 Another ultra-sound examination at the United
Doctors Medical Center (UDMC) at Quezon City on September
11, 1989 confirmed that she was indeed pregnant. 5
On January 11, 1990, Sandra gave birth to a baby boy who
was named Jacob Salcedo. Hence, the filing of the
complaint 6 by Mrs. Pastora Salcedo.
During the investigation conducted by the CIS, about thirty
(30) pictures of different persons were laid on the table and
Sandra was asked to pick up the pictures of her assailants.
Sandra singled out the pictures of Moreno Tumimpad and Ruel
Prieto. 7 Later, Sandra was brought out of the investigation
room to a police line-up of ten people, including Moreno
Tumimpad and Ruel Prieto. She was again asked to point to
her assailants. Without hesitation, Sandra fingered Moreno
Tumimpad and Ruel Prieto. 8

Mrs. Pastora Salcedo testified that she requested her two

daughters-in-law, Joy Salcedo and Celsa Salcedo, to ask
Sandra the identity of the persons who sexually molested her. 9
Joy confirmed in her testimony that she asked Sandra who
sexually molested her. Sandra revealed that Moreno
Tumimpad and Ruel Prieto were the ones who raped her.
Sandra demonstrated how she was raped. First, her thighs
were touched, then she was hugged and her panty was taken
off. A push and pull movement followed. 10Celsa testified that
she was present when the victim demonstrated how she was
sexually abused by the two accused, including the way her
nipples were touched saying "dito hawak," and holding her
breasts to emphasize. She likewise went through the motion of
removing her panty, uttering at the same time "hubad panty."
Sandra identified in open court accused Moreno Tumimpad
and Ruel Prieto as the persons who raped her and said she
wished them dead, as they did something bad to her. 11 She
once again demonstrated how she was sexually abused. She
held her two thighs with her two hands next to her sexual
organ saying, "panty" and then placed her hand on her breast
and gestured as if she were sucking. She also touched her
private organ and made a push and pull movement. 12
During the trial, the accused moved that a blood test, both
"Major Blood Grouping Test" and "Pheno Blood Typing" be
conducted on the offended party, her child Jacob and the two
accused. The result of the test conducted by the Makati
Medical Center showed that Jacob Salcedo has a type "O"
blood, Sandra Salcedo type "B", accused Ruel Prieto type "A"
and accused-appellant type "O".
Both accused anchored their defense on mere denial
contending that it was impossible for them to have committed
the crime of rape.

35
After trial on the merits, the trial court convicted Moreno
Tumimpad of the crime charged but acquitted the other
accused, Ruel Prieto, on reasonable doubt, stating that he
"has a different type of blood with (sic) the child Jacob Salcedo
as his type of blood is "A", while that of child Jacob Salcedo is
type "O".
The dispositive portion of the decision reads:
WHEREFORE, premises considered, the Court finds
the accused, PO1 Moreno Tumimpad, guilty beyond
reasonable doubt of the crime of Rape, as charged in
the information, and pursuant to the provisions of
Article 335 of the Revised Penal Code, as amended,
there being no aggravating nor mitigating circumstance
attendant in the commission of the crime, said accused
Moreno Tumimpad is hereby sentenced to suffer the
penalty of RECLUSION PERPETUA; to indemnify the
offended girl, Sandra Salcedo, in the amount of
P20,000.00; and to suffer the other accessory penalties
provided for by laws; and to pay the costs of the
proceedings.
On reasonable doubt, accused Ruel Prieto is hereby
declared ACQUITTED from the charge.

2. The lower court erred in convicting the accusedappellant base on major blood grouping test known as
ABO and RHS test, not a paternal test known as
chromosomes or HLA test.
The appeal is devoid of merit.
Accused-appellant argues that it was impossible for him to
have committed the crime of rape because most of the time he
and his co-accused Ruel Prieto were together with Col.
Salcedo on inspection tours while the victim was always in the
company of her mother. He further contends that it was
likewise impossible for Sandra, if she had really been
molested, not to have shouted out of pain, she being a virgin.
As if adding insult to injury, accused-appellant suggests that it
was Sandra's brother, Cristopher Salcedo, allegedly a drug
user, who could have raped her.
We are not convinced.
It is true that the accused usually went with Col. Salcedo
during inspection tours but sometimes they were left behind
and would play pingpong or card games with Sandra at the
ground floor of the house. While Sandra was always with her
mother, there were times when she was left alone in the house
with the accused. 14

SO ORDERED. 13
Mrs. Pastora Salcedo testified:
Accused-appellant assigns the following as errors of the lower
court:
1. The lower court erred in not appreciating the
impossibility of committing the offense charged without
detection.

Q How many security men remain if you can recall

when your husband reported for work?
A Two (2).
Q Who were these security men who remained?
A Moreno Tumimpad and Ruel Prieto.

36
Q How about the 2 other security men Tanggan and
Colaljo?
A My husband sent (sic) them for an errand and
sometime they used to go with my husband to the
office.
Q Every time when your husband is out what they do
while they were (sic) at the headquarter?
A I saw them sleeping and sometime they were playing
at the porch with my daughter Sandra playing pingpong
and sometime they were listening music.
Q Where did they play usually take place?
A Living room. 15
xxx xxx xxx
Q By the say, (sic) Mrs. Salcedo, you said a while ago
when you were at the headquarters you were able to
do your choirs, (sic) doing laundry jobs in the second
storey of your house. Do you know where is your
daughter Sandra at that time?
A Yes, she spent her time at the second floor.
Q What part of the ground floor she used (sic) to stay?
A Because she is found (sic) of music she stay in the
living room.
Q Did she has (sic) any playmates?
A Moreno and Prieto.
Q Have you seen actually the 2 accused playing with
your daughter?
A Yes, playing pingpong and playing cards. 16
The victim more than once positively identified accusedappellant Moreno Tumimpad as one of the perpetrators of the

crime. First, during the investigation conducted by the CIS,

Sandra singled out accused-appellant and his co-accused
from among the thirty (30) pictures of different persons shown
to her. Second, at the police lineup of several persons,
likewise conducted by the CIS, Sandra once again unerringly
pointed accused-appellant and his co-accused as the ones
who raped her. Third, in open court, Sandra without hesitation,
pointed to accused- appellant as the perpetrator of the crime.
The following is the victim's own testimony:
PROS. RAMOS:
Will you please demonstrate before this Honorable
Court what Moreno and Ruel did to you?
RECORD:
The witness when she stood up held both her thighs
(sic) with her two hand (sic) down to her sexual organ
saying a word "panty" and she placed her hand on her
breast and did something as if sucking and held her
private part (sic) and did a push and pull movement
and she cried.
Q When you said that there was a push and pull
movement of the body and when this was being done
did you feel pain?
A Yes pain.
Q What part of your body is painful?
RECORD:
The witness touching her private parts.
Q Did you also see blood on your sexual organ?
A Yes.
Q Where did you see these blood?

37
RECORD:
The witness touching her private parts.
Q When this push and pull movement was being made,
did you see a man's organ?
A Yes sir.
Q Where did you see this male organ?
A Witness touching her private part.
Q Who did this to you, who removed your panty?
A Moreno and Ruel.
Q Did you see Moreno taking off his pants?
A Yes.
Q Did you see his sex organ?
A The witness touching her private parts.
Q How about this Ruel, did you see if he taken (sic) off
his pants?
A Yes.

Q What part of your house did Moreno and Ruel

remove your panty?
A Downstairs Moreno and Ruel remove panty.
Q What part of the ground floor, was it outside or inside
the room?
A In the room.
Q When (sic) Moreno and Ruel are inside the
courtroom now, can you point to them?
A Yes.
Q Will you please point to them?
PROS. RAMOS:
May we request the accused to stand up your honor?
RECORD:
Both accused stood up from where they were sitting
inside the courtroom.
PROS. RAMOS:

Q Did you see his sex organ?

Who is that person (prosecutor Ramos point to

accused Moreno Tumimpad)?

A Yes, witness again touching her private part.

A Moreno.

Q Both of them?

RECORD:

A Yes.
Q Where did Moreno and Ruel removed (sic) your
panty?

The witness pointing to a certain person who is

standing and when asked what is his name, he readily
answered that he is Moreno Tumimpad.

A Moreno.

PROS. RAMOS:

Q In your house?

Who is that person standing besides Moreno?

A Yes.

A Joel.
PROS. RAMOS:

38
If your honor please, she could not pronounced (sic)
well the word Ruel but the way she called this name is
Joel which refers to the same person who is one of the
accused in this case. 17
Melinda Joy Salcedo, the victim's sister-in-law, testified that
Sandra demonstrated to her how she was ravished by the two
accused, thus:
Q Now, will you please tell us what did Sandra Salcedo
told (sic) you as to how she was abused?
A By what she had stated there were also actions that
she made.
Q Will you please demonstrate to this Honorable Court
how did Sandra Salcedo was abused as narrated or
demonstrated to you by Sandra Salcedo?
A According to her she was held in her thigh and then
she was hugged and then the panty was taken off and
making a push and pull movement (witness
demonstration by holding her thigh)?
Q Now, after Sandra Salcedo told you and
demonstrated to you how she was abused. What else
did Sandra Salcedo tell you if she had told you any
more matter?
A She did not say anything more.

Q You said that after Sandra Salcedo refused to talk,

Celsa did the questioning, did you hear the question
being asked by Celsa to Sandra Salcedo?
A Yes.
Q And what was the question being asked by Celsa to
Sandra Salcedo?
A Celsa asked Sandra Salcedo as to what other things
that these two had done to her?
Q And what if any did Sandra Salcedo tell you as to
what was done to her?
A By way of talking and action.
Q And what was the answer of Sandra Salcedo?
A He (sic) answered it by action and talking.
Q And what was the answer of Sandra Salcedo as
related by her to Celsa through words and action?
RECORD:
The witness demonstrated by holding his (sic) nipple
going down to her thigh.
Q What else had transpired next?
A No more.

A Then it was Celsa who asked her.

Q Now, whenever Sandra Salcedo mentioned the

names of accused Moreno Tumimpad and Ruel Prieto,
have you observed whose names was usually
mentioned first by Sandra Salcedo?

Q Where were you when Celsa asked Sandra

Salcedo?

A She mentioned first the name of Moreno Tumimpad

and Ruel.

A I was just beside her.

Q And what happened after that?

Q Now, when Sandra Salcedo refused to talk or say

anything else. What happened next?

39
A I informed my mother-in-law of what Sandra Salcedo
had told us.
Q When did you tell your mother-in- law about what
Sandra Salcedo told you and Celsa?
A That very evening sir. 18
Accused-appellant simplistically and quite erroneously argues
that his conviction was based on the medical finding that he
and the victim have the same blood type "O".
Accused-appellants' culpability was established mainly by
testimonial evidence given by the victim herself and her
relatives. The blood test was adduced as evidence only to
show that the alleged father or any one of many others of the
same blood type may have been the father of the child. As
held by this Court in Janice Marie Jao vs. Court of Appeals 19:
Paternity Science has demonstrated that by the
analysis of blood samples of the mother, the child, and
the alleged father, it can be established conclusively
that the man is not the father of a particular child. But
group blood testing cannot show only a possibility that
he is. Statutes in many states, and courts in others,
have recognized the value and the limitations of such
tests. Some of the decisions have recognized the
conclusive presumption of non-paternity where the
results of the test, made in the prescribed manner,
show the impossibility of the alleged paternity. This is
one of the few cases in which the judgment of the
Court may scientifically be completely accurate, and
intolerable results avoided, such as have occurred
where the finding is allowed to turn on oral testimony
conflicting with the results of the test. The findings of
such blood tests are not admissible to prove the fact of
paternity as they show only a possibility that the

alleged father or any one of many others with the same

blood type may have been the father of the child.
WHEREFORE, accused-appellant's guilt of the crime of rape
having been proven beyond reasonable doubt, the decision
appealed from is hereby AFFIRMED.
SO ORDERED.
Davide, Jr., Bellosillo and Quiason, JJ., concur.
Cruz, J., is on leave.

40
SECOND DIVISION

G.R. No. 104376 February 23, 1994

ARTEMIO G. ILANO, petitioner,
vs.
THE COURT OF APPEALS and MERCEDITAS (sic) S.
ILANO, represented by her mother, LEONCIA DE LOS
SANTOS, respondent.
Ernesto P. Pangalangan for petitioner.
Eduardo S. Rodriguez for private respondent.

NOCON, J.:
After the great flood, man was commanded to go forth, be
fertile, multiply and fill the earth. Others did not heed the
sequence of this command because they multiply first and
then go. Corollarily, it is now commonplace for an abandoned
illegitimate offspring to sue his father for recognition and
support.
The antecedent facts are narrated in the trial court's decision,
as follows:
Leoncia first met petitioner Artemio G. Ilano while she was
working as secretary to Atty. Mariano C. Virata. Petitioner was
one of the clients of
Atty. Virata. On several occasions, she and petitioner took

lunch together. In less that a year's time, she resigned from

her work.
Sometime in 1957, Leoncia, then managing a business of her
own as Namarco distributor, met petitioner again who was
engaged in the same business and they renewed
acquaintances. Since then, he would give her his unsold
allocation of goods. Later, he courted her more than four
years. Their relationship became intimate and with his promise
of marriage, they eloped to Guagua, Pampanga in April, 1962.
They stayed at La Mesa Apartment, located behind the
Filipinas Telephone Company branch office, of which he is the
president and general manager. He came home to her three or
four times a week.
The apartment was procured by Melencio Reyes, Officer-inCharge of the Filipinas Telephone Company branch office. He
also took care of the marketing and paid rentals, lights and
water bills. 1 Unable to speak the local dialect, Leoncia was
provided also by Melencio with a maid by the name of Nena.
Petitioner used to give her P700.00 a month for their expenses
at home.
In June, 1962, Leoncia, who was conceiving at that time, was
fetched by petitioner and they transferred to San Juan St.,
Pasay City. In October, 1962, she delivered a still-born female
child at the Manila Sanitarium. The death certificate was
signed by petitioner. 2 Thereafter, while they were living at
Highway 54, Makati, private respondent Merceditas S. Ilano
was born on December 30, 1963 also at the Manila
Sanitarium. Her birth was recorded as Merceditas de los
Santos Ilano, child of Leoncia Aguinaldo de los Santos and
Artemio Geluz Ilano. 3 Leoncia submitted receipts issued by
the Manila Sanitarium to show that she was confined there
from December 30, 1963 until January 2, 1964 under the
name of Mrs. Leoncia Ilano. 4

41
The support by petitioner for Leoncia and Merceditas was
sometimes in the form of cash personally delivered by him,
thru Melencio, thru Elynia (niece of Leoncia) 5 or thru
Merceditas herself; 6 and sometimes in the form of a check like
Manila Banking Corporation Check No. 81532, 7 the signature
appearing thereon having been identified by Leoncia as that of
petitioner because he often gives her checks which he issues
at home and saw him sign the checks. 8 Both petitioner and his
daughter admitted that the check and the signature are those
of the former. 9
During the time that petitioner and Leoncia were living as
husband and wife, he showed concern as the father of
Merceditas. When Merceditas was in Grade I at the St. Joseph
Parochial School, he signed her Report Card for the fourth and
fifth grading periods 10 as her parent. Those signatures were
both identified by Leoncia and Merceditas because he signed
them in their residence in their presence and of Elynia. 11 Since
Merceditas started to have discernment, he was already the
one whom she recognized as her Daddy. 12 He treated her as a
father would to his child. He would bring home candies, toys,
and anything a child enjoys. He would take her for a drive, eat
at restaurants, and even cuddle her to sleep. 13
When petitioner ran as a candidate in the Provincial Board of
Cavite, he gave Leoncia his picture with the following
dedication: "To Nene, with best regards, Temiong." 14
In May, 1963, Ruth Elynia Mabanglo, niece of Leoncia, lived
with Leoncia and petitioner. She accompanied her aunt when
she started having labor pains in the morning of December 30,
1963. Petitioner arrived after five o'clock in the afternoon.
When the nurse came to inquire about the child, Leoncia was
still unconscious so it was from petitioner that the nurse sought
the information. Inasmuch as it was already past seven o'clock
in the evening, the nurse promised to return the following

morning for his signature. However, he left an instruction to

give birth certificate to Leoncia for her signature, as he was
leaving early the following morning.
Prior to the birth of Merceditas, Elynia used to accompany her
aunt and sometimes with petitioner in his car to the Manila
Sanitarium for prenatal
check-up. At times, she used to go to his office at 615 Sales
St., Sta. Cruz, Manila, upon his instructions to get money as
support and sometimes he would send notes of explanation if
he cannot come which she in turn gave to her aunt. 15 They
stayed at 112 Arellano St., then Sta. Cruz, Manila in 1966
before they finally transferred to Gagalangin in 1967. Petitioner
lived with them up to June, 1971 when he stopped coming
home.
Petitioner's defense was a total and complete denial of any
relationship with Leoncia and Merceditas. He disowned the
handwritten answers and signatures opposite column 16 of the
death certificate of a female child surnamed Ilano, although in
column 13 thereof opposite father's name the typewritten
name, Artemio G. Ilano, appears. He also denied the following:
all the notes alleged to have been received from him by Elynia
for delivery to Leoncia; the signatures appearing in Merceditas'
Report Card; and being the source of a photo of himself with a
handwritten dedication. He admitted that Manila Banking
Corporation Check No. 81532 including the signature is his.
He was sick on December 30, 1963 and was hospitalized on
January 7, 1964. 16 He does not understand why this case was
filed against him. 17
Melencio admitted that he was the one who procured the
apartment for Leoncia, leased it in his name, paid the rentals
and bought the necessities therefor. He and Leoncia lived
together and shared the same bed. They later transferred to
San Juan St., Pasay City and to Highway 54, Makati. He

42
stopped visiting her in March or April, 1963 because he
planned to get married with another which he eventually did in
September, 1963.
Diosdado Datu, fish vendor, usually delivered to the apartment
fishes ordered by Melencio which were received by Leoncia.
Nilda Ilano Ramos, daughter of petitioner, does not know
Leoncia; neither has she been brought to their family home in
Imus, Cavite. On December 30, 1963, her father was at their
home because he got sick on December 25, 1963 and was
advised to have a complete bed rest. Her father was
hospitalized on January 7, 1964. She denied that her father
was at the Manila Sanitarium on December 30, 1963; that he
fetched a certain woman on January 2, 1964, at the Manila
Sanitarium because he was at their home at that time; and that
her father lived with a certain woman in 1963 up to June, 1971
because all this time he was living with them in Imus, Cavite.
He was working and reporting to the office everyday and when
he goes to Guagua or Manila on business, her mother or
brother goes with him.
Victoria J. Ilano, petitioner's wife, further corroborated the
previous testimonies about petitioner's sickness on December
30, 1963 and hospitalization on January 7, 1964. It could not
be true that her husband, during the years 1963 to 1968, lived
three (3) times a week with a certain Leoncia de los Santos
because her husband never slept out of their house and that in
his capacity as President and Chairman of the Board of the
Filipinas Telephone Company he does not go to Guagua even
once a year because they have a branch manager, Melencio
Reyes.
After weighing the contradictory testimonies and evidence of
the parties, the trial court was not fully satisfied that petitioner
is the father of Merceditas, on the basis of the following:

1) petitioner and Leoncia were not in cohabitation during the

period of Merceditas' conception;
2) testimony of Melencio that he frequented the apartment
where Leoncia was living, took care of all the bills and shared
the same bed with her;
3) the birth certificate of Merceditas was not signed by
petitioner;
4) petitioner denied his signature in the monthly report card of
Merceditas; and
5) there is no clear and sufficient showing that support was
given by petitioner to Merceditas.
Thus it rendered judgment on April 24, 1981 dismissing the
complaint. 18
Fortunately for private respondent, respondent Court of
Appeals did not share the same view as the trial court. A
review of the testimonial and documentary evidenced adduced
by private respondent led respondent court to the firm
conclusion that petitioner is her father, entitling her to support.
The dispositive portion of its decision dated December 17,
1991 reads:
WHEREFORE, the Decision appealed from is
REVERSED and judgment is hereby rendered
declaring plaintiff MERCEDITAS S. ILANO as the duly
acknowledged and recognized illegitimate child of
defendant ARTEMIO G. ILANO with all the right
appurtenant to such status.
Defendant is directed to pay the plaintiff support in
arrears at the rate of EIGHT HUNDRED (P800.00)

43
PESOS a month from the date of the filing of the
complaint on August 16, 1972 up to August 15, 1975;
ONE THOUSAND (P1,000.00) PESOS a month from
August 16, 1975 to August 15, 1978; ONE THOUSAND
THREE HUNDRED (P1,300.00) PESOS a month from
August 16, 1978 to August 15, 1981; and ONE
THOUSAND FIVE HUNDRED (P1,500.00) a month
from August 16, 1981 up to the time she reached the
age of majority on December 30, 1984.
Defendant is further ordered to pay the plaintiff the sum
of P10,000.00 as attorney's fees plus the costs.

have been only from the date of the judgment of the trial court
that support should have commenced, if so granted. Under the
law in force when the complaint was filed, an adulterous child
cannot maintain an action for compulsory recognition. In order
that the birth certificate may constitute a voluntary recognition,
it must be signed by the father. Equivocal act, such as signing
under the caption "parent" in the report card, is not sufficient.
Merceditas has never been to the family home of petitioner at
Imus, Cavite; nor introduced to his family; nor brought around
town by him, treated as his child, introduced to other people as
his child, led people to believe that she was part of his family.
The petition utterly lacks merit.

SO ORDERED.

19

The motion for reconsideration was denied in the resolution

dated February 26, 1992. 20
Hence, the present petition.
We shall resolve the following pertinent errors allegedly
committed by respondent court:
1) in awarding "back support" even in the absence of
recognition or of a judgment declaring petitioner father of
Merceditas with finality;
2) in not ruling that an adulterous child cannot file an action for
recognition; and
3) in deciding matters of substance manifestly against
established decisions of this Court.
Petitioner argues that since the complaint against him has
been dismissed by the trial court, therefore was absolutely no
obligation on his part to give support to Merceditas. It would

Under the then prevailing provisions of the Civil Code,

illegitimate children or those who are conceived and born out
of wedlock were generally classified into two groups: (1)
Natural, whether actual or by fiction, were those born outside
of lawful wedlock of parents who, at the time of conception of
the child, were not disqualified by any impediment to marry
each other (Article 119, old Civil Code; Article 269, new Civil
Code) and (2) Spurious, whether incestuous, were disqualified
to marry each other on account of certain legal
impediments. 21 Since petitioner had a subsisting marriage to
another at the time Merceditas was conceived, 22 she is a
spurious child. In this regard, Article 287 of the Civil Code
provides that illegitimate children other than natural in
accordance with Article 269 23 and other than natural children
by legal fiction are entitled to support and such successional
rights as are granted in the Civil Code. The Civil Code has
given these rights to them because the transgressions of
social conventions committed by the parents should not be
visited upon them. They were born with a social handicap and
the law should help them to surmount the disadvantages
facing them through the misdeeds of their parents. 24 However,
before Article 287 can be availed of, there must first be a

44
recognition of paternity 25 either voluntarily or by court action.
This arises from the legal principle that an unrecognized
spurious child like a natural child has no rights from his
parents or to their estate because his rights spring not from the
filiation or blood relationship but from his acknowledgment by
the parent. In other words, the rights of an illegitimate child
arose not because he was the true or real child of his parents
but because under the law, he had been recognized or
acknowledged as such a child. 26 The relevant law on the
matter is Article 283 of the Civil Code, which provides:
Art. 283. In any of the following cases, the father is
obliged to recognize the child as his natural child:
(1) In cases of rape, abduction or seduction, when the
period of the offense coincides more or less with that of
the conception;
(2) When the child is in continuos possession of status
of a child of the alleged father by the direct acts of the
latter or of his family;
(3) When the child was conceived during the time when
the mother cohabited with the supposed father;
(4) When the child has in his favor any evidence or
proof that the defendant is his father.
While the aforementioned provision speaks of the obligation of
the father to recognize the child as his natural child, for the
purpose of the present case, petitioner is obliged to recognize
Merceditas as his spurious child. This provision should be read
in conjunction with Article 289 of the Civil Code which
provides:

Art. 289. Investigation of the paternity or maternity of

(other illegitimate) children . . . under the circumstances
specified in articles 283 and 284.
In reversing the decision of the trial court, respondent court
found, as it is likewise our finding, that private respondent's
evidence to establish her filiation with and the paternity of
petitioner is too overwhelming to be ignored or brushed aside
by the highly improbable and fatally flawed testimony of
Melencio and the inherently weak denials of petitioner:
Significantly, the Court a quo believed that plaintiff's
mother and defendant carried an intimate relations. It
nonetheless was not satisfied that defendant is the
father of the plaintiff because it is not convinced that
her mother and defendant were in cohabitation during
the period of her conception, and took into account the
testimony of Melencio S. Reyes who frequented the
apartment where Leoncia de los Santos was living and
who positively testified that he took care of all the bills
and that he shared the same bed with plaintiffs mother.
The court a quo completely ignored the fact that the
apartment at Guagua was rented by the defendant,
and that Melencio Reyes, who was a mere employee
and godson of the defendant with a monthly salary of
P560.00 was a mere subaltern of the latter, and only
frequented the place upon instruction of the defendant
to take care of the needs of the plaintiff.
As pointed out by appellant, Leoncia and Artemio
stayed in an apartment at the back of the Guagua
Telephone System owned by and of which Artemio was
the General Manager (TSN, p. 46, 8/18/73) and
Melencio was the Officer-in-Charge in the absence of
Artemio whose residence and main office was in

45
Cavite. There, for the first time, Leoncia met Melencio
(TSN, pp. 3-4, 1/25/74). The apartment in Guagua was
rented in the name of Melencio. As Leoncia does not
speak the Pampango dialect (TSN, p. 50, 8/18/73),
Artemio gave Leoncia the instruction to call upon
Melencio for whatever Leoncia needs (TSN, pp. 11-12,
1/25/74). Thus, it was Melencio who procured all the
supplies and services needed in the apartment for
which procurement Melencio gives to Leoncia the
corresponding receipts of payment for liquidation of
cash advances Artemio or the Guagua Telephone
System or Leoncia herself, gives to Melencio (Exhs. A,
A-1 to 14; TSN, p. 32, 8/13/73; TSN, pp. 7, 12 and 14,
1/25/74).

Exh. "F-1"

At the Guagua apartment, Artemio would visit Leoncia

three of four times a week and sleeps there (TSN, p.
47, 8/13/73). Artemio was giving Leoncia an allowance
of P700.00 a month (TSN, p. 38, 7/18/73).

"Mayroon akong nakitang bahay na mayayari

malapit sa municipio ng Makati. Ipakikita ko sa
iyo kung papayag ka.

Leoncia got pregnant and Artemio found it difficult to

commute between Cavite and Guagua so that in June
1962, Artemio transferred Leoncia to Calle San Juan,
Pasay City (TSN, pp. 19-20, 7/18/73) where they were
known as husband and wife (id. p. 41). In leaving
Guagua for San Juan, Pasay City, Leoncia was fetched
by Artemio in a car driven by Artemio himself. (pp. 9-11,
Appellant's Brief)
Even as Artemio and Leoncia lived and transferred to
several places heretofore mentioned, Melencio
continued to be a trusted man Friday of Artemio who
would deliver notes (Exhs. "F", "F-1" and "F-3") and
money from Artemio to Leoncia. For reference, among
the notes identified by Leoncia as having come from
defendant were the following:

"Dear Ne,
Magsimula akong makausap ni Gracing ay
nagkaroon ako ng diferencia sa paa at ngayon
ay masakit pa.
Si Miling ay ngayon lamang nakarating dito
kung hindi ka aalis diyan ay si Miling na lamang
ang utusan mo sa Makati kung may kailangan
ka dian.
Sgn."

Sabihin mo kay Miling kung hindi ka aalis diyan

bukas ay pupunta ako.
Walang makitang bahay sa San Juan.
Sgn."
Exh. "F-2"
"Ne, sa Viernes ay pupunta ako dian marami
akong ginagawa.
Sgn."
Exh. "F-3"

46
"Ne, si Miling ay bukas pupunta dito ay sa
tanghali ay pupunta ako diyan (11:30 am). Wala
akong pera ngayon kaya bukas na, sigurado
yon.
Sgn."
Exh. "F-4"
"Dear Ne, Pacencia ka na at hindi ako
nakapaglalakad gawa ng mataas ang dugo,
kaya minsan-minsan lamang ako makapunta sa
oficena.
Ibigay mo ang bayad sa bahay sa Sabado ng
umaga, pipilitin kong makarating dian sa
Jueves.
Sgn."
The address "Ne" in the beginning of these
notes refer to Leoncia whose nickname is
"Nene" but which Artemio shortens to "Ne".
Miling is the nickname of Melencio. The
"Gracing" mentioned in Exh. "F-1" refers to
Gracia delos Santos, a sister-in-law of Leoncia
who was with Artemio when Leoncia was
removed from the hospital during the birth of
Merceditas. (pp. 17-19, Appellant's Brief).
These tiny bits of evidence when pieced
together ineluctably gives lie to defendants'
diversionary defense that it was with Melencio
S. Reyes with whom the mother lived with
during her period of conception.

The attempt of Melencio S. Reyes to show that

he was the lover of Leoncia being in the
apartment and sharing the same bedroom and
the same bed hardly inspires belief.
xxx xxx xxx
Undoubtedly, the role played by Melencio S.
Reyes in the relationship between Leoncia and
appellant (sic) was that of a man Friday
although appellant (sic) would not trust him to
the hilt and unwittingly required him to submit to
Leoncia an accounting of his expenditures
(Exhs. A, A-1 to A-14) for cash advances given
to him by Leoncia, Artemio or Guagua
Telephone System which would not have been
the case, if it were true that there was an
intimate relationship between him and plaintiff's
mother.
Evidently, following the instruction of his
employer and Godfather, Melencio foisted on
the court a quothe impression that he was the
lover and paramour of Leoncia but since there
was really no such relationship, he could not
state the place in San Juan or Highway 54
where he took Leoncia, nor how long they
stayed there belying his pretense (sic) of an
intimate relationship with plaintiffs mother. 27
Having discredited the testimonies of petitioner and Melencio,
respondent court then applied paragraph (2) of Article 283:
The court a quo did not likewise consider the
evidences as sufficient to establish that plaintiff
was in continuous possession of status of a

47
child in view of the denial by appellee of his
paternity, and there is no clear and sufficient
evidence that the support was really given to
plaintiff's mother. The belated denial of paternity
after the action has been filed against the
putative father is not the denial that would
destroy the paternity of the child which had
already been recognized by defendant by
various positive acts clearly evidencing that he
is plaintiff's father. A recognition once validly
made is irrevocable. It cannot be withdrawn. A
mere change of mind would be incompatible
with the stability of the civil status of person, the
permanence of which affects public interest.
Even when the act in which it is made should be
revocable, the revocation of such act will not
revoke the recognition itself (1 Tolentino, pp.
579-580, 1983 Ed.).
To be sure, to establish "the open and
continuous possession of the status of an
illegitimate child," it is necessary to comply with
certain jurisprudential requirements.
"Continuous" does not, however, mean that the
concession of status shall continue forever but
only that it shall not be of an intermittent
character while it continues (De Jesus v.
Syquia, 58 Phil. 866). The possession of such
status means that the father has treated the
child as his own, directly and not through other,
spontaneously and without concealment though
without publicity (since the relation is
illegitimate) (J.B.L. Reyes and R.C. Puno,
Outline of Philippine Civil Law, Vol. 1, 1964 ed.,
pp. 269-270 citing Coquia vs. Coquia, CA 50,
O.G. 3701) There must be a showing of the

permanent intention of the supposed father to

consider the child as his own, by continuous
and clear manifestation of paternal affection
and care. (Tolentino, Civil Code of the
Philippines, Vol. 1, 1983 ed., p. 602). (Mendoza
vs. Court of Appeals, G.R. No. 86302,
September 24, 1991.)
It was Artemio who made arrangement for the
delivery of Merceditas (sic) at the Manila
Sanitarium and Hospital. Prior to the delivery,
Leoncia underwent prenatal examination by
Artemio (TSN, p. 33, 5/17/74). After delivery,
they went home to their residence at EDSA in a
car owned and driven by Artemio himself (id. p.
36).
Merceditas (sic) bore the surname of "Ilano"
since birth without any objection on the part of
Artemio, the fact that since Merceditas (sic) had
her discernment she had always known and
called Artemio as her "Daddy" (TSN, pp. 28-29,
10/18/74); the fact that each time Artemio was
at home, he would play with Merceditas (sic),
take her for a ride or restaurants to eat, and
sometimes sleeping with Merceditas (sic) (id. p.
34) and does all what a father should do for his
child bringing home goodies, candies, toys
and whatever he can bring her which a child
enjoys which Artemio gives Merceditas (sic)
(TSN, pp. 38-39, 5/17/74) are positive evidence
that Merceditas (sic) is the child of Artemio and
recognized by Artemio as such. Special
attention is called to Exh. "E-7" where Artemio
was telling Leoncia the need for a "frog test" to
know the status of Leoncia.

48
Plaintiff pointed out that the support by Artemio
for Leoncia and Merceditas (sic) was
sometimes in the form of cash personally
delivered to her by Artemio, thru Melencio, thru
Elynia (Exhs. "E-2" and "E-3",
and "D-6"), or thru Merceditas (sic) herself
(TSN, p. 40, 5/17/74) and sometimes in the
form of a check as the Manila Banking
Corporation Check No. 81532 (Exh. "G") and
the signature appearing therein which was
identified by Leoncia as that of Artemio because
Artemio often gives her checks and Artemio
would write the check at home and saw Artemio
sign the check (TSN, p. 49, 7/18/73). Both
Artemio and Nilda admitted that the check and
signature were those of Artemio (TSN, p. 53,
10/17/77;
TSN, p. 19, 10/9/78).
During the time that Artemio and Leoncia were
living as husband and wife, Artemio has shown
concern as the father of Merceditas (sic). When
Merceditas (sic) was in Grade 1 at the St.
Joseph Parochial School, Artemio signed the
Report Card of Merceditas (sic) (Exh. "H") for
the fourth and fifth grading period(s) (Exh. "H-1"
and "H-2") as the parent of Merceditas (sic).
Those signatures of Artemio were both
identified by Leoncia and Merceditas (sic)
because Artemio signed Exh. "H-1" and
"H-2" at their residence in the presence of
Leoncia, Merceditas (sic) and of Elynia (TSN, p.
57, 7/18/73; TSN, p. 28, 10/1/73). . . .
xxx xxx xxx

When Artemio run as a candidate in the

Provincial Board of Cavite, Artemio gave
Leoncia his picture with the following
dedication: "To Nene, with best regards,
Temiong". (Exh. "I"). (pp. 19-20, Appellant's
Brief)
The mere denial by defendant of his signature
is not sufficient to offset the totality of the
evidence indubitably showing that the signature
thereon belongs to him. The entry in the
Certificate of Live Birth that Leoncia and
Artemio was falsely stated therein as married
does not mean that Leoncia is not appellee's
daughter. This particular entry was caused to be
made by Artemio himself in order to avoid
embarrassment.
It is difficult to believe that plaintiffs mother, who
is a mere dressmaker, had long beforehand
diabolically conceived of a plan to make it
appear that defendant, who claims to be a total
stranger to be a total stranger, was the father of
her child, and in the process falsified the latter's
signatures and handwriting. 28
Granting ex gratia argument that private respondent's
evidence is not sufficient proof of continuos possession of
status of a spurious child, respondent court applied next
paragraph (4) of Article 283:
. . . plaintiffs testimonial and documentary
evidence . . . (is) too replete with details that are
coherent, logical and natural which cannot be
categorized as mere fabrications of an inventive

49
and malicious mind of which Leoncia de los
Santos was not shown to possess.
The natural, logical and coherent evidence of
plaintiff from the genesis of the relationship
between Leoncia and appellee, their living
together as circumstances of plaintiff's birth, the
acts of appellee in recognizing and supporting
plaintiff, find ample support from the testimonial
and documentary evidence which leaves no
room to reasonably doubt his paternity which
may not be infirmed by his belated denials.
Notably, the court a quo did not consider
plaintiff's evidence as lacking in credibility but
did not deem as convincing proof that
defendant is the father since the Certificate of
Live Birth was not signed by appellee and since
the monthly report card is not sufficient to
establish recognition, considering the denial of
the defendant of his signature appearing
thereon.
While defendant's signature does not appear in
the Certificate of Live Birth, the evidence
indubitably disclose(s) that Leoncia gave birth
on December 30, 1963 to Merceditas (sic) at
4:27 p.m. at the Manila Sanitarium. Artemio
arrived at about 5:00 (TSN, p. 25, 5/17/74). At
about 7:00 p.m., a nurse came (id. p. 26) who
made inquiries about the biodata of the born
child. The inquiries were directed to Artemio in
the presence of Elynia who heard the answers
of Artemio which the nurse took down in a sheet
of paper (id. p. 28). The inquiries were about
the name of the father, mother and child. After

the interview the nurse told them that the

information has to be recorded in the formal
form and has to be signed by Artemio (id. p. 30)
but because there is no office, as it was past
7:00 p.m., the nurse would just return in the
morning for Artemio's signature. Artemio gave
the instruction to the nurse to give the biodata
to Leoncia for her signature as he was leaving
very early the following morning as in fact
Artemio left at 5:00 a.m. of December 31, 1963
(id. p. 33). Artemio stayed in the hospital in the
evening of December 30, 1963 (id. p. 26). As
pointed out in Castro vs. Court of Appeals, 173
SCRA 656:
The ruling in Roces vs. Local
Civil Registrar of Manila (102
Phil. 1050 [1958] and Berciles
v. Government Service
Insurance System (128 SCRA 53
[1984] that if the father did not
sign in the birth certificate, the
placing of his name by the
mother, doctor, register, or other
person is incompetent evidence
of paternity does not apply to this
case because it was Eustaquio
himself who went to the
municipal building and gave all
the data about his daughter's
birth. . . .
. . . the totality of the evidence, as pointed to
above, is more than sufficient to establish
beyond reasonable doubt that appellee is the
father of the plaintiff Merceditas (sic) Ilano.

50
As elucidated in Mendoza vs. Court of
Appeals, Supra:
xxx xxx xxx
. . . although Teopista has failed to show that
she was in open and continuous possession of
the status of an illegitimate child of Casimiro,
we find that she has nevertheless established
that status by another method.
What both the trial court and the respondent did
not take into account is that an illegitimate child
is allowed to establish his claimed affiliation by
"any other means allowed by the Rules of Court
and special laws," according to the Civil Code, .
. . Such evidence may consist of his baptismal
certificate, a judicial admission, a family Bible in
which his name has been entered, common
reputation respecting his pedigree, admission
by silence, the testimonies of witnesses, and
other kinds of proof admissible under Rule 130
of the Rules of Court. 29
The last paragraph of Article 283 contains a blanket provision
that practically covers all the other cases in the preceding
paragraphs. "Any other evidence or proof" that the defendant
is the father is broad enough to render unnecessary the other
paragraphs of this article. When the evidence submitted in the
action for compulsory recognition is not sufficient to meet
requirements of the first three paragraphs, it may still be
enough under the last paragraph. 30 This paragraph permits
hearsay and reputation evidence, as provided in the Rules of
Court, with respect to illegitimate filiation. 31

As a necessary consequence of the finding that private

respondent is the spurious child of petitioner, she is entitled to
support. In awarding support to her, respondent court took into
account the following:
The obligation to give support shall be
demandable from the time the person who has
a right to recover the same needs it for
maintenance, but it shall not be paid except
from the date of judicial or extrajudicial demand.
(Article 203, Family Code of the Philippines.)
The complaint in this case was filed on August
14, 1972. Plaintiff, having been born on
December 30, 1963, was about nine (9) years
old at the time and was already of school age
spending about P400.00 to P500.00 a month for
her school expenses alone, while defendant
was earning about P10,000.00 a month. She
attained the age of majority on December 30,
1984 (Article 234, Supra). She is therefore
entitled to support in arrears for a period of
twelve (12) years, four (4) months and fourteen
(14) days, which is hereby fixed at P800.00 a
month for the first three (3) years; and
considering the declining value of the peso as
well as her needs as she grows older, at a
graduated increase of P1,000.00 a month for
the next three (3) years; P1,300.00 a month for
the succeeding three (3) years; and P1,500.00
a month for the last three (3) years, four (4)
months and fourteen (14) days until she
attained the age of majority.
This being an action for legal support, the
award of attorney's fees is appropriate under

51
Article 2208 (6) of the Civil Code. Moreover, the
court deems it just and equitable under the
given facts and circumstances that attorney's
fees and expenses of litigation should be
recovered. 32
We concur with the foregoing disposition, in the absence of
proof that it was arrived at arbitrarily.
The other allegation of petitioner that the appeal was
prosecuted almost ten years after the decision of the trial court
was rendered does not deserve any consideration because it
appears that it is being raised for the first time in this petition. 33
WHEREFORE, the petition is hereby DENIED. The decision
of
the Court of Appeals dated December 17, 1991 and its
resolution dated February 26, 1992 are AFFIRMED.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.

5 Exhs. "E-2", "E-3", and "E-6".

6 TSN, May, 17, 1974, pp. 40-41.
7 Exh. "G".
8 TSN, July 18, 1973, p. 49.
9 TSN, October 17, 1977, p. 53; TSN, October
9, 1978, p. 19.
10 Exhs. "H", "H-1" and "H-2".
11 TSN, July 18, 1973, p. 57; TSN, October 1,
1973, p. 28.
12 TSN, October 18, 1974, pp. 28-29.
13 TSN, October 18, 1974.
14 Exh. "1".
15 Exhs. "E", "E-1", "E-3" and "E-4".
16 TSN, October 9, 1978, p. 13.

#Footnotes
1 Exhs. "A", "A-1", "A-2", "A-3" and "A-4".
2 Exhs. "B" and "B-1".
3 Exhs. "C".
4 Exhs. "D" and "D-1".

17 TSN, December 11, 1978, p. 25.

18 Records, p. 693.
19 Rollo, p. 55.
20 Rollo, p. 58.

52
21 Castro, et al. v. Court of Appeals, et al., G.R.
Nos. 50974-75, May 31, 1989,
173 SCRA 656.
22 TSN, March 5, 1979, p. 6.
23 Art. 269. . . . Children born outside wedlock
of parents who, at the time of the conception of
the former, were not disqualified by any
impediment to marry each other, are natural.
24 Commentaries and Jurisprudence on the
Civil Code of the Philippines by Arturo M.
Tolentino, 1983 Edition, p. 615 citing
Commission, p. 89.
25 Paterno, et al. v. Paterno, et al. G.R. No. L23060, June 30, 1967, 20 SCRA 585.
26 Castro, et al. v. Court of Appeals, et
al., supra, citing Alabat v. Vda. de Alabat,
21 SCRA 1479 [1967]; Mise v. Rodriguez, 95
Phil. 396 [1954]; Magallanes,
et al. v. Court of Appeals, et al., 95 Phil. 795
[1954]; Canales v. Arrogante, et al., 91 Phil. 6
[1952]; Malonda v. Malonda, 81 Phil. 149
[1948]; Buenaventura v. Urbano, et al., 5 Phil. 1
[1905]; and Reyes v. Court of Appeals, 135
SCRA 439 [1985].
27 Rollo, pp. 43-49.
28 Rollo, pp. 50-53.
29 Rollo, pp. 49-50; 53-54.

30 Navarro v. Bacalla, G.R. No. 20607, October

14, 1965, 15 SCRA 114.
31 Commentaries and Jurisprudence on the
Civil Code of the Philippines by Arturo M.
Tolentino, 1983 Edition, pp. 607-608.
32 Rollo, pp. 54-55.
33 Cordero v. Cabral, G.R. No. 36789, July 25,
1983, 123 SCRA 532.

53
THIRD DIVISION

G.R. No. 86639 June 2, 1994

MA. THERESA R. ALBERTO, petitioner,
vs.
COURT OF APPEALS, INTESTATE ESTATE OF JUAN M.
ALBERTO, and YOLANDA R. ALBERTO,respondents.
Martiniano P. Vivo for petitioner.
M.M. Lazaro & Associates for respondents.

ROMERO, J.:
When a putative father manifests openly through words and
deeds his recognition of a child, the courts can do no less than
confirm said acknowledgment. As the immortal bard
Shakespeare perspicaciously said: "Let your own discretion be
your tutor; suit the action to the word, the word to the action."
Herein deceased father cannot possibly be charged with
indecisiveness or vacillation for he suited his action to his word
and his word to his action.
In the instant case, we have, therefore, affirmed the decision of
the probate court declaring petitioner as having acquired the
status of a natural child of the deceased Juan M. Alberto and,
as such, entitled to participate in the latter's estate.
On September 18, 1953, a child named Ma. Theresa Alberto
was born out of wedlock to one Aurora Reniva with Juan M.

Alberto as the alleged father. Accordingly, she used "Alberto"

as her surname in all her school records and
correspondences.
On September 18, 1967, Juan M. Alberto, felled by a bullet
from an assassins gun, died intestate.
His widow, Yolanda R. Alberto, filed a petition for the
administration of his estate on January 10, 1968. After the
publication of notices, she was appointed as the administratrix
of the estate. After the Inventory and Appraisal and the
Administratrix' Accounting were approved on August 1, 1970
and on April 29, 1971 respectively, the proceedings were
ordered closed and terminated.
On September 15, 1978, Ma. Theresa Alberto filed a motion
for leave to intervene as oppositor and to re-open the
proceedings praying that she be declared to have acquired the
status of a natural child and as such, entitled to share in the
estate of the deceased. The motion was granted by the
probate court.
Upon the presentation by the parties of their respective
evidence during the trial, the probate court was convinced that
indeed, Ma. Theresa Alberto had been in continuous
possession of the status of a natural child. Thereupon, it
rendered a decision compelling the decedents heirs and
estate to recognize her as a natural daughter and to allow her
to participate in the estate proceedings. The dispositive portion
of the decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of
oppositor and against the estate of the deceased Juan
M. Alberto

54
(a) Declaring oppositor Ma. Theresa R. Alberto as
having acquired the status of a natural child of the late
Gov. Juan M. Alberto;
(b) Ordering the administratrix and widow of the
deceased and their children, namely, Mary Joy, Maria
Rebecca, Juan, Jr., Juan III, Maria Yolanda and Juan
IV, all surnamed Alberto, to recognize and
acknowledge oppositor as an acknowledged natural
child of the late Gov. Alberto;
(c) Declaring oppositor as one of the heirs of the late
Gov. Juan M. Alberto;
(d) Ordering the administratrix to partition the
deceaseds estate and turn over to oppositor her
participation therein equivalent to one-half (1/2) of the
share of each legitimate child; and
(e) Ordering the administratrix to pay oppositor the sum
of P10,000.00 as attorneys fees and expenses of
litigation.

(b) The deceased made known to his friends and

relatives that she was his daughter; and
(c) He made known to the personnel of the
International School where oppositor was enrolled that
she was his daughter.
2) The following incidents would show the direct acts of
the family of the deceased.
(a) When the deceaseds younger sister, Mrs. Aurita
Alberto Solidum asked that the oppositor be sent to her
house in her Sunday best to meet her father for the first
time;
(b) When Fr. Arcilla brought the oppositor to the
bedside of the deceased in the hospital and Fr. Arcilla
asked the guard to give way to her as she was a
member of the family;
(c) When the step-mother of the deceased, during the
wake, introduced the oppositor to her youngest sister
as an elder sister.

Costs against the administratrix.

SO ORDERED. 1

3) Prescinding from the foregoing, there is sufficient

evidence to prove that the oppositor is the child of the
deceased.

The probate courts findings are quoted hereunder, to wit:

1. Oppositors mother, Aurora Reniva, testified:
1) In the case at bar, the Court believes, and so holds,
that the oppositor has been in continuous possession
of the status of a child of Juan Alberto by his direct acts
as well as the acts of his family, as follows:
(a) The deceased gave the oppositor sums of money
for her schooling;

(a) of an indiscretion that led to the conception of and

giving birth to the oppositor;
(b) that Mrs. Aurita Solidum arranged the meeting
between the oppositor and the deceased at the MOPC;
(This particular testimony was corroborated by Cristeta

55
Andaya, former maid of Mrs. Solidum, and by the
oppositor) and

by the hand and asked the guard to make way for her
because she was a child of Juan Alberto.

(c) that Juan Alberto had been sending her money from
time to time.

(g) After the wake for her deceased father, the

deceaseds step-mother, Saturnina Alberto, introduced
her as a sister to Joy Alberto her half-sister.

2) Oppositor also testified that:

(a) She had her first meeting with her father at the
MOPC where he gave her P500.00 personally and two
telephone numbers where he could be contacted and
where they talked about her name, age and other
matters.
(b) She had other meetings with her father at the
MOPC on which occasions her father also gave her
money.
(c) The deceased visited her two times at the
International School whose rules on visitors were strict
and when her father visited her, the secretary of the
principal told her that her father was waiting for her.
This showed that the deceased had identified himself
to the personnel of the school that he was the father of
the oppositor.

(h) Congressman Jose Alberto allowed her associates,

upon her representations, to use the ballroom of the
Regent of Manila for practice purposes. Congressman
Alberto was the owner of the Regent of Manila.
(i) Her uncles and aunts, i.e., brothers and sisters of
her father, regarded her as their niece and introduced
her to others as the eldest daughter of Juan Alberto.
(j) The children of the brothers and sisters of Juan
Alberto recognized her as their cousin.
3) Jose Tablizo testified that:
(a) There was a strong physical resemblance between
the deceased and the oppositor.
(b) The deceased and the oppositor wrote similarly.

(d) He promised to see her in her school during her

birthday on September 18, 1968 but was not able to do
so because of his untimely death.

(c) It was known among the friends of the deceased,

particularly the Breeze Gang, composed of the witness,
Jose Tablizo, the deceased and 4 others.

(e) The deceased promised to bring the oppositor to

Catanduanes but failed likewise because of his death.

(d) Sometime in 1967, the deceased showed him the

report card of the Oppositor and boasted of her high
grades.

(f) When oppositor and her mother went to the PGH on

the occasion of her fathers death, Fr. Arcilla held her

56
(e) The friends of the deceased had a party in Virac,
Catanduanes for the oppositor whom they considered
as the deceaseds daughter. (This was corroborated by
Silverio Taberara.)
4) Atty. Martiniano Vivo testified that Commissioner of
Immigration Edmundo Reyes, as lawyer for the
deceased, made an appointment with him (Atty. Vivo)
for a conference, at which they discussed the latters
letter to the deceased regarding the oppositor. In said
conference, Com. Reyes said that the deceased was
not denying that he was the father of the oppositor. And
because of his marital status and the fact that he was a
public official, he wanted to avoid public scandal with
the promise to support the oppositor quietly through a
cousin, Fr. Arcilla. 2
The Court of Appeals reversed the above decision of the
probate court on the strength of the following observations:
Assuming the foregoing to be true, we do not believe
they satisfy the degree of proof to establish that
oppositor was in continuous possession of the status of
a natural child of the deceased.
In one case, the following facts were proved;
that two nurses took care of the children at the
expense of the defendant; that said defendant
kissed the children, called them sons, and
ordered that they be taken care of very well;
that he gave the money for the necessities of
the mother and the six children, the oldest of
whom called the father; that he visited the
mother, complained of his big family, and was
publicly regarded as the father of the children. It
was held that these were not sufficient to be a

basis for a declaration of paternity. They may

show that the defendant was convinced of his
paternity in relation to the children; but they do
not show any intent on his part to place such
children in the possession of status of natural
children. The continued possession of such
status cannot be founded on conjectures and
presumption. So, also, the mere fact that
defendants mother used to visit the child,
cannot be considered as conduct of his family
sufficient to confer the uninterrupted possession
of the status of a natural child.
(1 Tolentino, Civil Code of the Philippines, 1983
ed., pp. 604-605, citing, Sentencia, 12 October
1907; Gustilo vs. Gustilo, et al., 14 SCRA 149;
Sentencia, 9 May 1921; Potot vs. Ycong, No.
6651, 22 March 1941, 40 O.G. No. 4, 26 July
1941, p. 748)
We find the evidence of oppositor-appellee
even weaker than that proven in the
aforequoted citation. As a matter of fact,
oppositor's Exhibit W-1, a letter written by
oppositor to Jose Tablizo after the death of the
deceased, betrays a lack of association
between the deceased and oppositor such as
normally characterizes the relationship between
father and child. It gives the impression that the
deceased studiously distanced himself from the
oppositor and had no intention whatsoever of
recognizing oppositor as his child. The pertinent
portion of the letter reads:
I have always been proud to be JMAs
eldest daughter, and I feel even prouder
after I heard from people like you. You

57
were the ones that knew him most,
shared his dreams as a young man, and
witnessed his struggle from Palmeras
slums to Forbes Park. You saw him rise
from cargador to lawyer and, finally, to
governor; I only heard about them
through Mama. His life was a novel, and
if I were to help write it, I would be able
to contribute but a few pages, for I knew
him only as a Big Man. It is YOU who
had a part in the first adventures of that
same novel, and I envy you. (p. 35,
Folder of Exhibits) 3
Hence this petition.
May the estate and heirs of deceased Juan M. Alberto be
ordered to recognize petitioner as the deceaseds natural
daughter on the basis of the evidence presented by petitioner
to establish her claim that she has been in continuous
possession of the status of a natural child?
We rule in the affirmative.
In the probate court, the following have been established:
1) that prior to Juan M. Alberto's marriage to Yolanda Reyes,
herein private respondent, Juan M. Alberto and Aurora Reniva,
mother of herein petitioner, were sweethearts;
2) that as a consequence of an indiscretion, Aurora Reniva
conceived and gave birth to herein petitioner Ma. Theresa
Alberto on September 18, 1953;

3) that petitioner used 'Alberto' as her surname in all her

school records and Juan M. Alberto was known to be her
father;
4) that through Fr. Arcilla, a first cousin of Juan M. Alberto,
money was given to Aurora Reniva;
5) that when petitioner was about nine (9) years old, Mrs.
Aurita Solidum, the youngest sister of Juan M. Alberto,
arranged the first meeting between petitioner and Juan M.
Alberto at the MOPC and during said meeting, they talked
about petitioner, the deceased gave petitioner P500.00 and
two telephone numbers;
6) that Juan M. Alberto would have visited petitioner on her
birthday in her school, International School, if not for his
untimely death on September 18, 1967;
7) that when petitioner and her mother went to the PGH on the
occasion of Juan M. Albertos death, Fr. Arcilla held her by the
hand and asked the guard to make way for her as she was a
daughter of Juan M. Alberto;
8) that after the wake for deceased Juan M. Alberto, his step
mother, Saturnina Alberto introduced petitioner to Joy Alberto
as the latters sister;
9) that the siblings of Juan M. Alberto regarded petitioner as
their niece and introduced her to their children as the eldest
daughter of Juan M. Alberto;
10) that the children of Juan M. Albertos siblings regarded her
as their cousin;
11) that petitioner was known by Juan M. Albertos friends as
his daughter;

58
12) that Juan M. Alberto showed Jose Tablizo the grades of
petitioner and remarked that those were the grades of his
daughter.

The letter itself shows that Juan M. Alberto was not completely
indifferent towards Ma. Theresa Alberto. He did provide her
support whenever he could.

Private respondent, Yolanda Alberto, the sole witness for

private respondents, denied that Juan M. Alberto ever
recognized Ma. Theresa Alberto as his daughter. She
presented in evidence Aurora Renivas letters to Juan M.
Alberto dated December 23, 1955, September 27, 1954 and
March 15, 1960; Aurora Renivas letter to Fr. Arcilla dated
December 23, 1955; letter of Zenaida Reniva to Juan M.
Alberto dated September 16, 1953, to prove that Juan M.
Alberto refused to recognize Ma. Theresa Alberto as his own. 4

The latest letter that was presented in evidence was dated

March 15, 1960. At the time, petitioner and Juan M. Alberto
had not yet met. About two years later, when petitioner was
nine years old, Mrs. Aurita Solidum arranged the first meeting
between petitioner and the deceased. This initial meeting was
followed by many more. Moreover, it is noteworthy that Juan
M. Alberto never took any step to stop petitioner from using his
surname. The testimony of Jose Tablizo established his
recognition of Ma. Theresa Alberto as his daughter. He
testified that Juan M. Alberto showed him two report cards of
Ma. Theresa which showed straight "A's." He said "Boy!
Great!" and Juan M. Alberto said that those were the grades of
his daughter. 7 This testimony is now being discredited for
being hearsay. This Court holds that the same falls within the
exceptions to the hearsay rule. Sec. 38, Rule 130 of the Rules
of Court provides as follows:

However, these letters do not prove that Juan M. Alberto

refused to recognize Ma. Theresa Alberto. All that the letters
stated was that Aurora Reniva was having a difficult time
raising a child by her own self and therefore, she was seeking
the assistance of Juan M. Alberto. Private respondent quoted
as Exhibit "3-B" the portion of Aurora Renivas letter dated
March 15, 1960 which says:
. . . I am just wondering why after all those years of
patient waiting, you still do not give a damn to her. 5
The full text of the paragraph, however, reads as follows:
On the 23rd of this month, Maria Theresa P. Alberto will
graduate from the Prep School of Holy Ghost College. I
am just wondering why after all those years of patient
waiting, you still do not give a damn to her. I thought,
as I was told before by Fr. Arcilla, that I just pray and
wait because he said pretty soon you will be sending
her money for support. So far, only the 300 pesos was
received by us last October, 1959. For it, I am very
grateful because it helped me a lot in our wants. 6

Sec. 38. Declaration Against Interest. The

declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact
asserted at the declaration was at the time it was made
so far contrary to declarant's own interest that a
reasonable man in his position would not have made
his declaration unless he believed it to be true, may be
received in evidence against himself or his successors
in interest and against third persons.
As found by the trial court, recognition of petitioner's status as
a natural daughter of Juan M. Alberto was made, not only by
the latter, but by his relatives as well Fr. Cipriano Arcilla,
Jose Alberto, Aurita Solidum and Saturnina Alberto, among
others. Private respondent only had to present any one of

59
those relatives to negate petitioner's testimony that she had
been acknowledged by them as the eldest daughter of the
deceased. Her failure to do so baffles this Court. If indeed Ma.
Theresa Alberto were fabricating her testimony, the family of
the deceased would have been more than willing to destroy
the claims of an intruder. Under the circumstances, it is safe
for us to assume that had any of the relatives mentioned by
petitioner been presented as witness for private respondent,
their testimonies would be detrimental to the latter's cause.
In view of the foregoing, we hold that petitioner has been in
continuous possession of the status of a natural child of the
deceased in accordance with Article 283 of the Civil Code
which provides, inter alia:
Art. 283. In any of the following cases, the father is
obliged to recognize the child as his natural child:
xxx xxx xxx
(2) when the child is in continuous possession of status
of a child of the alleged father by the direct acts of the
latter or his family.
The Court of Appeals, in reversing the decision of the probate
court, stated as follows:
We find the evidence of oppositor-appellee even
weaker than that proven in the aforequoted citation. As
a matter of fact, oppositor's Exhibit W-1, a letter written
by oppositor to Jose Tablizo after the death of the
deceased, betrays a lack of association between the
deceased and oppositor such as normally
characterizes the relationship between father and child.
It gives the impression that the deceased studiously
distanced himself from the oppositor and had not

intention whatsoever of recognizing oppositor as his

child. The pertinent portion of the letter reads:
I have always been proud to be JMAs eldest daughter,
and I feel even prouder after I heard from people like
you. You were the ones that knew him most, shared his
dreams as a young man, and witnessed his struggle
from, palmeras slums to Forbes Park. You saw him
rise from cargador to lawyer and, finally, to governor; I
only heard about them through Mama. His life was a
novel, and if I were to help write it, I would be able to
contribute but a few pages, for I knew him only as a Big
Man. It is YOU who had a part in the first adventures of
that same novel, and I envy you. 8
What a poignant novel this daughter could well author as she
now seeks to establish indubitable parental links with a father
who sired her some forty-one years ago. Why he desisted
from marrying the mother of this girl at a time when no
impediment blocked the way is a matter one can merely
conjecture at.
While he did contract marriage subsequently with another
woman, it was only too clear that he had no intentions of
closing definitively that chapter in his life when he begat his
first-born. Of the different categories of illegitimate children
under the old Civil Code, the natural child occupies the highest
position, she being the child of parents who, at the time of her
conception, were not disqualified by any impediment to marry
each other and could, therefore, have contracted a valid
marriage. Often the fruit of first love, she is ensconced firmly in
her parent's hearts. No subsequent liaisons, though blessed
with legitimate offspring, can completely obliterate those early
memories.

60
A shared past intimacy between the putative parents and the
clear marks of heredity stamped on the brow of their offspring
are not to be denied. Thus, whether openly or furtively, a father
in the situation of Juan M. Alberto could not have resisted
manifesting signs of concern and care insofar as his firstborn
is concerned. If, at an early age, the child shows much talent
and great promise as petitioner in this case apparently did, it is
understandable, and even to be expected, that the father
would proudly step forward to claim paternity either through
his direct acts or those of his family, or both, as in instant case.
In the case at bench, evidence is not wanting from which it
may logically be concluded that the deceased Juan M. Alberto
took no pains to conceal his paternity. No less than his
younger sister, his stepmother, his priest-cousin, several
relatives and close friends were categorically informed of the
relationship and they accepted the same as fact.
Understandably, considering the strait-laced mores of the
times and the social and political stature of Juan M. Alberto
and his family, those who were privy to the relationship
observed discreetness. But he himself openly visited his
daughter in school, had meetings with her at the MOPC on
which occasions he gave her money and introduced her
proudly to his gangmates.
Where the daughter admits to envy in a letter to her fathers
friend because the latter played a greater role in her fathers
life, this is but the natural expression of a wistful longing of a
child to reach out to her biological father. Far be it for us to
interpret such sentiment as a betrayal of "a lack of association
between the deceased and oppositor such as normally
characterizes the relationship between father and child." In this
instance, the lack of association cannot be helped for the
relationship was far from normal.

Much less do we take it as giving the impression that the

deceased "studiously distanced himself from the oppositor and
had no intention whatsoever of recognizing oppositor as his
child." On the contrary, during his lifetime, Juan M. Alberto
acted in such a manner as to evince his intent to recognize
Ma. Theresa Alberto, herein oppositor, as his flesh and blood,
first, by allowing her from birth to use his family name; second,
by giving her and her mother sums of money by way of
support and lastly, by openly introducing her to members of his
family, relatives and friends as his daughter. Supplementing
such unmistakable acts of recognition were those of his kin
and gangmates manifesting open acceptance of such
relationship. Taken altogether, the claimed filiation would be
hard to disprove.
Since the oppositor seeks a judicial declaration that she be
recognized as a natural child to enable her to participate in the
estate of the deceased, Article 285 of the Civil Code
prescribing the period when such action should be brought
governs. It provides:
Art. 285. The action for the recognition of natural
children may be brought only during the lifetime of the
presumed parents, except in the following cases:
(1) If the father or mother died during the minority of
the child, in which case the latter may file the action
before the expiration of four years from the attainment
of his majority.
xxx xxx xxx
The oppositor's case falls clearly under the above
exception.

61
Juan M. Alberto died during the minority of petitioner, that is,
on September 18, 1967 the day petitioner turned fourteen.
As such, petitioner had four years from the time she reached
twenty-one on September 18, 1974, which was then the age of
majority, within which to bring the aforesaid action. Thus,
petitioner had until September 18, 1978 within which to file the
action for recognition. Petitioner filed her motion for leave to
intervene as oppositor and to re-open the proceedings with the
prayer that she be declared to have acquired the status of a
natural child and as such, entitled to share in the estate of the
deceased, on September 15, 1978. Said motion was,
therefore, seasonably filed three days before the expiration of
the four-year period.

6 Exhibits, p. 92.
7 TSN, June 19, 1980, pp. 21-23.
8 Rollo, p. 67.

WHEREFORE, in view of the foregoing, this petition is hereby

GRANTED, the decision of the Court of Appeals is
REVERSED and that of the probate court AFFIRMED.
SO ORDERED.
Feliciano, Bidin, Melo and Vitug, JJ., concur.

# Footnotes
1 Record on Appeal, pp. 107-108.
2 Record on Appeal, pp. 100-106.
3 Rollo, pp. 65-67.
4 Record on Appeal, pp. 93-94.
5 Exhibits, p. 92.

THIRD DIVISION
G.R. No. 111994 December 29, 1994

62
SOTENIA GONO-JAVIER, TEBURCIO GONO,
ANUNCIACION G. JAVIER, GERMANA G. GULAY, LUCIO
GONO, RAMON GONO, ALFREDO GONO and MANUEL
GONO, petitioners,
vs.
THE HON. COURT OF APPEALS, RESTITUTA CASOCOT,
FERMIN CASOCOT, ALICIA YONSON, ADRIANO
CASOCOT, CARLOS MONTE DE RAMOS, REGINA
DUGLAS and NONITO MARAVE, respondents.

VITUG, J.:
Juan Casocot, the alleged natural grandfather of petitioners,
was said to have owned during his lifetime five (5) parcels of
land in Nasipit, Agusan, covered by Tax Declaration ("T.D.")
No. 2667, 3227, 1209, 738 and 2666.

that since the complaint had failed to state that Catalino Gono
had been recognized by Juan Casocot either in a record of
birth or in a will, an independent action for voluntary
recognition should have first been instituted to permit any
intestate successional right to legally pass to petitioners. Also
alleged in the answer was that, with the exception of the parcel
covered by T.D. No. 738, the questioned property had been
sold by Juan Casocot to private respondents Restituta and
Fermin Casocot on 19 April 1960 and a portion to private
respondent Marave. Private respondents belied the claim that
petitioner Gono-Javier purchased the property from the
Provincial Government of Agusan. Finally, the defense of
prescription was raised on the ground that private respondents
had been in possession of the disputed property in good faith
and for value for more than 17 years before petitioners' action
was instituted.

On 13 February 1978, petitioners filed a case with the

Regional Trial Court ("RTC") of Butuan City for the recovery of
ownership and possession of the above five (5) parcels which
they claimed were merely held in trust for them by private
respondents. Petitioners averred that they were the children of
deceased Catalino Gono, an acknowledged natural child of
Juan Casocot, who, by intestate succession, should thus be
held to be the owners of the property. Additionally, they
asserted that petitioner Anunciacion Gono-Javier purchased
the parcels of land on 20 June 1956 from the Provincial
Government of Agusan following the levy thereof (on 28 May
1956) for tax delinquency.

After trial, the Butuan RTC rendered judgment for petitioners

declaring them to be the lawful owners of the property. The
court, in rejecting the claim of ownership made by private
respondents, opined that the deed of sale executed by Juan
Casocot on 19 April 1960, when he was already 80 years old,
in favor of respondents Restituta and Fermin Casocot was
absolutely simulated and void. It ruled that petitioners' father,
Catalino Gono, had been duly recognized by Juan Casocot
since 1954 to be his natural child that thereby entitled
petitioners to inherit the parcels of land in question. The trial
court likewise held that the property had been sold to petitioner
Anunciacion Gono-Javier on 05 and 20 June 1956 after it had
been levied by the Provincial Government for
non-payment of taxes.

In their answer, private respondents, all nephews and nieces

of Juan Casocot except for Carlos Monte de Ramos, a
grandnephew, and Nonito Marave, a stranger, to whom a
portion of one of the parcels of land had been sold, contended

The trial court thus nullified Transfer Certificate of Title ("TCT")

No. RT-349, issued in the names of Restituta and Fermin
Casocot, with respect to the parcel of land covered by T.D. No.
1209, and all certificates of title issued in the names of

63
transferees, Felipe Yonson, Alicia Yonson, Adriano Casocot,
Carlos Monte de Ramos, Regina Duglas, Restituta, Fermin
Casocot and Nonito Marave.
On appeal by private respondents, the Court of Appeals
reversed the trial court's decision, and ordered the dismissal of
the complaint by petitioners for the recovery of title and
possession of the disputed parcels. The appellate court
ratiocinated and concluded:
First. The trial court declared Catalino Gono to be the
acknowledged natural child of Juan Casocot on the
basis of a statement in a deed of donation which he
made in favor of Eugenia Gonzales, widow of Catalino
Gono, to the effect that among the reasons for making
the donation was the fact that the donee "is the
surviving spouse of my son had with my common law
wife." (Exh. G).
The deed of donation conveyed to Eugenia Gonzales
the parcel of land covered by TD 738 (Exh. E). It was
made on March 29, 1954, about 11 years after the
death of Catalino Gono in 1942 or 1943. In the first
place, the statement therein describing Eugenia
Gonzales "the surviving spouse of my son had with my
common law wife" is only, if at all, an indirect
acknowledgement of Catalino Gono as the son of Juan
Casocot. This falls short of the requirement that the
voluntary recognition of a natural child must be
expressly made either in the record of birth, or in a will,
or in a statement before the court of record or in any
authentic writing. (Civil Code, Art. 278).
In the second place, according to the testimony of
plaintiff-appellee Sotenia Gono herself, Catalino Gono
died in 1942 or 1943. (TSN, p. 24, Dec. 10, 1980). On

the other hand, his supposed acknowledgment was

made only in 1954. Now, Art. 281 requires that if the
child is of age, his recognition must be with his
consent. Obviously, therefore, it was not possible for
Catalino Gono to have given his consent, even if the
indirect reference to him in the deed of donation as the
son of Juan Casocot were considered a sufficient
acknowledgment.
For these reasons, it was error for the trial court to
declare the plaintiff-appellees, the children of Catalino
Gono, to be the owners of the four parcels of land
covered by TD No. 2667 (Exh. B), TD No. 3227 (Exh.
C), TD No. 1209 (Exh. D), and TD No. 2666 (Exh. F) by
right of inheritance.
Second. Nor may the plaintiff-appellees base their
claim of ownership on the fact that one of them
(Anunciacion Gono-Javier) allegedly repurchased the
lands in question after they had been forfeited to the
Province of Agusan for nonpayment of taxes. The
records show that while it is true that Anunciacion
Gono-Javier was issued a certificate of Repurchase of
Real Property after Sale (Exh. N) on June 20, 1956, it
is equally true that on February 3, 1959, she was
refunded the amount she had paid. This is evidenced
by a municipal voucher issued on February 3, 1959
(Exh. P) by which she acknowledged receipt of
P850.00 from Eduardo V. Amber, Treasurer of Nasipit,
Agusan, from the partial payment previously made by
Juan Casocot for taxes covering the period May 29,
1956 to February 2, 1959. Indeed, the Final Bill of Sale
(Exh. M) to her, dated February 3, 1959, which had
been prepared, was never executed as the Provincial
Treasurer of Agusan never signed it, apparently
because the day (February 2, 1959), Juan Casocot had

64
repurchased the properties. That is the reason why on
February 3, 1959 a municipal voucher (Exh. P) for the
payment of P850.00 to Anunciacion G. Javier was
made and Anunciacion G. Javier was actually refunded
what she had paid. The trial court, therefore, erred in
holding that, in the alternative, plaintiff-appellees are
owners of the lands in question by virtue of a right of
repurchase from the Provincial Government of Agusan.
Third. The four parcels of land covered by TD No. 2667
(Exh. B), TD No. 3227 (Exh. C), TD No. 1209 (Exh. D),
and TD No. 2666 (Exh. F) were sold to Restituta and
Fermin Casocot by virtue of a deed of sale made by
Juan Casocot on April 19, 1960. However, the trial
court declared the sale to be simulated and therefore
void based on its finding that Juan Casocot was
already in his 80's when he signed the contract in
1960. There is, however, no proof that he did not know
the contents of the documents or that he did not intend
the deed of sale at all. The trial court unwarrantedly
theorized that because the properties were valuable
properties, Juan Casocot could not have intended to
sell them.
Indeed, the fact is that the deed of sale was duly
notarized and the notary public, Atty. Noli G. Cortel,
testified that from his observation, there was nothing
either in the mental or physical condition of Juan
Casocot to indicate that he was not in the full
possession of his mental faculties when he executed
the deed of sale in favor of Restituta and Fermin
Casocot. Moreover, Atty. Cortel testified that he
interpreted the contents of the document in the Visayan
dialect to Juan Casocot and that afterward Juan
Casocot voluntarily affixed his signature to the
document. (TSN, pp. 9,

11-12, Sept. 6, 1991). Needless to say, a public

document, which is executed with all the solemnities of
the law, should not be set aside on such slender
grounds as those cited by the trial court.
Fourth. The trial court also erred in not ruling that the
present action is barred by the order of Court of First
Instance of Agusan in Civil Case No. 896 (Juan
Casocot v. Restituta Casocot and Fermin Casocot),
dismissing a complaint for the nullification of the deed
of sale. (Exh. U) That order, issued on August 10,
1965, became final and it constitutes res judicata in this
case, as no appeal appears to have been taken from it.
The trial court found the dismissal erroneous allegedly
because Juan Casocot had not been notified of the
hearing on July 24, 1965 in Civil Case No. 896. But the
trial court did not have the power to reopen that case. It
was improper for it to do so, since the order of
dismissal was final.
WHEREFORE, the decision appealed from is
REVERSED and the complaint in this case is
DISMISSED in so far as it seeks the recovery of the
title and possession of four parcels of land covered by
TD No. 2667 (Exh. B), TD No. 3227 (Exh. C), TD No.
1209 (Exh. D), TD No. 2666 (Exh. F). In other respects,
the decision appealed from is AFFIRMED. 1
In this petition for review, petitioners raise the following
assignment of errors:
1. The appellate court gravely erred in reversing the trial
court's decision holding that Catalino Gono was the
acknowledged natural child of Juan Casocot by his
common law wife, and that the deceased Juan Casocot's
declaration in his deed of donation to Eugenia Gonzales,

65
wife of Catalino Gono, that the deceased was giving the
land in donation to the surviving wife of my son is
sufficient recognition.
2. The appellate court gravely erred in reversing the trial
court's decision holding that when the land in question
was sold at public auction or failure to pay taxes the same
was brought by Anunciacion
Gono-Javier who is one of the petitioners' herein, hence
the questioned land belongs to the petitioners.
3. The appellate court gravely erred in reversing the trial
court's decision holding that the alleged sale between the
late Juan Casocot and the private respondents herein
were simulated hence null and void.
4. The appellate court gravely erred in ruling that the
action for recovery of possession and ownership filed by
the herein petitioners with the trial court is barred by the
dismissal of the complaint for nullification of the Deed of
Sale filed by the deceased Juan Casocot himself during
his lifetime, which was dismissed, for his failure to attend
the hearing wherein he was not notified. 2

Petitioners' first assignment of error would have been

impressed with merit had the acknowledgment in the deed of
donation in 1954 been extended to Catalino prior to his death
sometime in 1942 or 1943. Juan Casocot himself died in 1964.
Article 278 of the New Civil Code, the law applicable in
1954, 3 provided:
Art. 278. Recognition shall be made in the record of
birth, a will, a statement before a court of record, orin
any authentic writing. (Emphasis ours.)
The statement made in the deed of donation, a public
document, executed by Juan Casocot in favor of Eugenia

Gonzales, widow of Catalino, i.e., that among the reasons for

the donation was that the donee was "the surviving spouse of
my son had with my common law wife," would have well been
explicit enough or, at the very least, sufficient to make it fall
within the purview of the doctrine of incidental recognition.
Unfortunately for petitioners, however, the recognition came
too late. The donation, whereon the questioned statement
appeared, was made on 29 March 1954, or about 11 years
after the death of Catalino in 1942 or 1943.
The provisions of the Civil Code 4 on acknowledgment would
readily indicate that voluntary acknowledgment can legally be
effected only during the lifetime of both the acknowledging
parent and the acknowledged illegitimate child. When that
voluntary recognition is so timely made, as above, an action
for its judicial declaration can survive the death of either or
both parties (see Gaspay, Jr. vs. Court of Appeals, G.R. No.
102372, 15 November 1994). The reason for this latter rule is
that the due recognition of an illegitimate child in a record of
birth, a will, a statement before a court of record, or in any
authentic writing (Art. 278, Civil Code) is, in itself, a
consummated act of acknowledgment of the child, and no
further court action is required (see Divinagracia vs. Bellosillo,
143 SCRA 356), albeit not prohibited, to yet have it declared
as such. When a party is so minded as to still bring an action
on the basis of such voluntary acknowledgment, no time frame
for initiating it would obviously be a constraint.
Parenthetically, where, a claim for recognition is predicated on
other evidence merely tending to prove paternity, i.e., outside
of a record of birth, a will, a statement before a court of record
or an authentic writing, judicial action within the applicate
statute of limitations 5 is essential in order to establish the
child's acknowledgment. Thus, the mere possession of status
of a child, contrary to the assertion in passing of petitioners,
does not itself constitute an acknowledgment; it is only a

66
ground for the child to compel, by judicial action, recognition
by his assumed parent. 6

2 Rollo, pp. 9-10.

Petitioners, in their second and third assignment of errors,

would want us to reverse the Court of Appeals in finding: (a)
that while petitioner Anunciacion Gono-Javier was issued a
Certificate of Repurchase (Exh. "N") on 20 June 1956, she
was, however, fully refunded for the price paid and actual
redemption was, in truth, made by Juan Casocot and (b) that
the deed of sale executed by Juan Casocot, duly notarized,
was validly executed. These factual findings by the appellate
court, having been amply explained and substantiated by it,
should not further be disturbed.

4 An example is Article 281 providing thusly:

Petitioners take issue, finally, with the Court of Appeals in

holding that petitioners' action to nullify the deed of sale to
private respondents is, in any event, barred by the order of
dismissal thereof by the then Court of First Instance of Agusan
in Civil Case No. 896, entitled "Juan Casocot vs. Restituta
Casocot and Fermin Casocot." Suffice it to say that an
unconditional dismissal of an action for failure to prosecute
under Section 3, Rule 17, of the Rules of Court is with
prejudice and has the effect of an adjudication on the merits
(Guanzon vs. Mapa, 7 SCRA 457; Insular Veneer, Inc. vs.
Plan, 73 SCRA 1).
All told, we find no valid justification for sustaining the petition.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED. Costs against petitioners.

3 Up until the Family Code took effect on 03 August 1988.

"Art. 281. A child who is of age cannot be recognized without
his consent.
"When the recognition of a minor does not take place in a
record of birth or in a will, judicial approval shall be
necessary.
"A minor can in any case impugn the recognition within four
years following the attainment of his majority. (113a).
5 Art. 285. The action for the recognition of natural children
may be brought only during the lifetime of the presumed
parents, except in the following cases:
(1) If the father or mother died during the minority of the
child, in which case the latter may file the action before the
expiration of four years from the attainment of his majority;
(2) If after the death of the father or of the mother a
document should appear of which nothing had been heard
and in which either or both parents recognize the child.
In this case, the action must be commenced within four
years from the finding of the document.
6 The case of Tongoy vs. Court of Appeals (123 SCRA 99),
which held that possession of a child may be considered an
acknowledgment itself is an aberration (see Paulino vs.
Paulino, 3 SCRA 730); in any case, it has since been
abrogated in subsequent cases (Cruz vda. de Sy-Quia vs.
Sy-Quia, 125 SCRA 835; Noble vs. Noble, 18 SCRA 1104;
Quismundo vs. WCC, 132 SCRA 590).

SO ORDERED.
#Footnotes
1 Rollo, pp. 27-30.

SECOND DIVISION

67

G.R. No. 102372 November 15, 1994

FLAVIANO S. GASPAY, JR., AND ERIBERTA S.
GASPAY, petitioners,
vs.
THE HON. COURT OF APPEALS AND GUADALUPE
GASPAY ALFARO, respondents.
Anita B. de Loyola for petitioners.
Nilo T. Bacolod for private respondent.

PUNO, J.:
This is a petition for certiorari seeking to reverse the Decision
of the respondent Court of Appeals in CA-G.R. CV No. 25872.
The facts reveal that Flaviano Gaspay died without a last will
and testament on October 14, 1983 in Tacloban City. He was
then married to Agueda Denoso. They were childless.
On July 6, 1988, private respondent Guadalupe Gaspay Alfaro
files a petition in the trial court 1 alleging, among others, that
she is the acknowledged illegitimate daughter of the deceased
Flaviano Gaspay, who died without a will and left certain real
and personal properties. She identified her mother as Claudia
Pason with whom decedent allegedly had an illicit relationship.
She prayed for issuance of letters of administration of the
decedent's estate.

Petitioners Flaviano S. Gaspay, Jr., and Eriberta Salvatieva

Gaspay opposed the petition with motion to dismiss. Flaviano,
Jr., is an adopted son of the decedent while Eriberta is also not
a next of kin. They alleged that private respondent is a
stranger and even assuming her illegitimate status, there is no
proof of her recognition or acknowledgment.
The motion to dismiss was denied. The trial court 2 ruled it was
not based on indubitable grounds. Evidence was then
adduced by private respondent. In an Order dated December
6, 1989, the trial court dismissed the petition. It held:
(1) the testimonial and documentary evidence 3 failed to prove
the purported status of private respondent; (2) they also failed
to show that private respondent, then already of age
consented to her recognition as an illegitimate child; 4 and
(3) even if the petition were to be treated as an action to
compel recognition, it would not prosper because it should
have been filed during the lifetime of Flaviano Gaspay. 5
Private respondents appealed to the respondent Court of
Appeals. In a Decision promulgated September 30, 1991, the
Special Third Division 6 of the respondent court reversed the
trial court. It held: (1) the evidence is ample to prove the
filiation and recognition of private respondent as an illegitimate
child of the decedent; (2) the evidence is also sufficient to
show that private respondent consented to her recognition by
the decedent; and (3) actions based on voluntary recognition
can be instituted after the death of the putative father.
Thus, private respondent filed the instant petition
for certiorari contending:

68
I
THE APPELLATE COURT ERRED IN DISTURBING
THE FINDINGS OF FACT OF THE TRIAL COURT
WITH REGARDS TO THE CREDIBILITY OF
WITNESS MARTIN GARIN WHICH WAS NOT EVEN
MADE AN ASSIGNED ERROR IN APPELLANT'S
BRIEF (IN VIOLATION OF SECTION 7, RULE 51 OF
THE RULES OF COURT).
II
THE APPELLATE COURT ERRED IN FINDING THAT
THE ALLEGED OPEN AND CONTINUOUS
POSSESSION OF GUADALUPE OF THE STATUS OF
AN ILLEGITIMATE CHILD CAN STILL BE BROUGHT
AFTER THE DEATH OF THE ALLEGED PARENT
(WHICH IS CONTRARY TO THE PROVISIONS OF
ARTICLE 175 IN RELATION TO SECOND
PARAGRAPH OF ARTICLE 172 OF THE FAMILY
CODE).
III
THE APPELLATE COURT ERRED IN FINDING THAT
GUADALUPE IS ENTITLED TO LETTERS OF
ADMINISTRATION.
We find no merit in the appeal.
Anent the first error, it cannot be gainsaid that private
respondent assailed on appeal the correctness of the trial
court's conclusion of fact that the evidence failed to prove her
allegation that she was recognized as an illegitimate daughter
by the decedent. In resolving this factual issue, the respondent
court did not err in exhaustively examining each and every

specie of evidence relevant thereto and one of them involves

the truth of the testimony of witness Martin Garin. Indeed, this
key issue cannot be resolved authoritatively without
considering the testimony of Garin, the principal witness of the
private respondent.
We now come to the competence and credibility of witness
Garin. The trial court did not give any value to his testimony.
The respondent court did. We sustain the respondent court.
Garin testified that the two (2) letters marked as Exhibits "K"
and "L" were written by decedent. These letters are vital
evidence for the private respondent for they show that the
decedent acknowledged her as his daughter. Exhibit "K"
written in "waray" dialect was translated in the trial court as
follows:
Tomalisties Caibiran Leyte
March 10, 1980
My dear Child,
Lupe, I received your letter and I understood your purpose that
you are asking for money in the sum of P500.00 pesos
because you are going to use it for the operation of the feet of
your child Marilyn.
But Lupe, because I am short of money, accept in the
meantime this P200.00 because this is the only amount I can
raise to send you here at Southern Island Hospital Cebu City,
for I pity you because you are my child and Marilyn my
grandchild.
Your father,
(Sgd.) Flaviano Gaspay

69
On the other hand, Exhibit "L" also written in "waray" was
translated as follows:
Tomalisties, Caibiran, Leyte
August 14, 1983

A Yes, sir.
Q Showing to you this document which the same had
been marked as EXHIBIT "K" will you take a look at
this, do you see that?
A Yes, sir.

My children Toming and Lupe,

Q Whose penmanship is this and the signature?

Because I feel my body is about to weaken already, I urge you

to verify my lands located in Culaba and in Caibiran so that the
share of Lupe will be assured.

A Flaviano Gaspay and that is the signature of Flaviano

Gaspay.

Toming, this letter to you is my gift on your birthday today.

A I am familiar with his penmanship and signature.

Your father,

Q Why do you know that this is his penmanship and

signature.

(Sgd.) Flaviano Gaspay

A I was an agent of his concession for 18 years

second, we were both government officials of Culaba
from 1955 to 1959.

The trial court dismissed the testimony of Garin on two (2)

grounds. First, it held that Garin did not even bother to
examine the letters, Exhibits "K" and "L". The records do not
sustain this ruling. We quote the relevant testimony of
Garin, viz.:

Q Why do you say that that is his penmanship and this

is his signature?

Atty. Nilo T. Bacolod:

Q You said that you are an agent of his logging
concession for 18 years, from what year up to what
year?
A From 1932 to 1951.

Court:

Atty. Bacolod:

Q Are you familiar with the signature of Flaviano

Gaspay?

We request your Honor that the signature of Flaviano

Gaspay as identified by his witness be marked as our
EXHIBIT "K-1".

A Yes, your Honor.

Atty. Bacolod (counsel for petitioner):

Q We have here a document marked as Exhibit "L"

please look at it, do you see that?

Q You are familiar with the signature of Flaviano

Gaspay, are you familiar with his penmanship?

A Yes, sir.

70
Q Whose penmanship is that and whose signature is
this?
A That is Flaviano Gaspay's penmanship and
signature.
We request your Honor that the signature below be
marked as our EXHIBIT "L-1".

Q Another Exhibit "4", take a look at this one?

A I see it.
Q Take a look at Exhibit "5"?
A I see that already.
Q Take a look at Exhibit "6"?

Court:

A I have seen it.

What date is that?

Q Exhibit "7"?

Atty. Bacolod:

A Yes I see it.

August 14, 1983 Exh. "K" and August 10, 1980. May I
be allowed to borrow the Exhibits of the Respondents
about the supposed letter which were marked in their
Annexes from "A" to "I".

Q Exhibit "8"?

Atty. Gaspay:

A Yes sir I see it..

May we know the purpose your Honor.

Q Exhibit "10"?

Atty. Bacolod:

A Yes I see it.

For him to identify your Honor.

Q Exhibit "11"?

Court:

A Yes sir.

Lend him your Exhibits.

Q Exhibit "12"?

Atty. Bacolod:

A Yes I see it.

Q Will you take a look at this document, this one

marked as Exhibit "1"?

Q What can you say about these documents marked

as Exhibits "1" to "12"?

A Yes, sir.

A That is not the one?

Q This Exhibit "2"?

Q What is that which is not the one?

A Yes, sir.

A That is not written by Flaviano Gaspay.

Q This Exhibit "3"?

Q Not the one written by whom?

A Yes, sir.

A That are not letters of Gaspay.

A Yes I see it.

Q Exhibit "9"?

71
Q Who is that Gaspay you are referring to?
A Flaviano Gaspay.
Q Now let's go back to the joint affidavit, Exhibit "S" in
this affidavit you signed you made mention of names,
Flaviano Gaspay and Claudia Pason, who is this
Claudia Pason?
A Mistress of Flaviano Gaspay.
Q Why did you say that Claudia Pason is the paramour
or kerida of Flaviano Gaspay?

Q As a result of this illicit relationship of the two, what

happened?
A They bore a child.
Q What do you mean when you said bore one child?
A Claudia Pason gave birth to a child.
Q Do you know who this child is?
A Yes, sir.
Q Who?

A Because he had a real wife.

A Guadalupe Gaspay Alfaro.

Q Who is that wife?

Q Who is the mother of Guadalupe Gaspay?

A Agueda Denoso.

A Claudia Pason.

Q When was this when Claudia Pason was the kerida

of Flaviano Gaspay?

Q Who is the father of Guadalupe Gaspay?

A From 1934, 35, 36 and 37.

Court:

Q How did you know that this Claudia Pason is the

kerida of Flaviano Gaspay?

That is not allowed.

A We are neighbors, our houses are less than four

arms length to the house of Claudia Pason.
Q In what place is that?
A Culaba, Leyte.
Q That place where Claudia Pason was living who was
her husband then?

A Flaviano Gaspay.

Atty. Bacolod:
Q Of your own knowledge, if you know whether
Guadalupe Gaspay had come to school?
A Yes, sir.
Q Where at?
A Culaba.

A Flaviano Gaspay.

Q Do you know who supported her schooling?

Q You mean to convey to this Honorable Court that

they were living as husband and wife?

A Yes, sir.

A Yes, sir.

Q Do you know if this Guadalupe Gaspay is already

married?
A Yes sir, she is married.

72
Q Do you know who her husband is?
A Yes sir, Bartolome Alfaro.
Q Do you know the nickname of Bartolome Alfaro?
A Yes sir. Toming Alfaro.
Q Do you know if this Guadalupe Gaspay has a
nickname?
A Yes sir.
Q What is the nickname of Guadalupe Gaspay?
A Lupe.
Atty. Bacolod:
That will be all your Honor. 7
Secondly, the trial court noted that the last time Garin received
a letter from the decedent was in 1961 and the last time he
saw him write was in 1959. It held that Garin had no
competence to testify about the authenticity of Exhibit "L"
written in 1980 and Exhibit "M" written in 1983. In reversing
this ruling, the respondent court held and we agree that the
trial court "unfairly assumes that Flaviano Gaspay's
penmanship actually metamorphosed into something divergent
or different from what Garin saw him write in 1959 and 1961.
For it is a fact that there are people whose hand remain steady
over the years, and whose eyes even acquire better vision in
their twilight years." We hasten to add that petitioners did not
present any evidence to prove any change in the penmanship
of Gaspay, Sr.
We are also satisfied that the evidence profusely proved that
private respondent consented to her voluntary recognition as
an illegitimate child by the decedent. As well analyzed by the
respondent court:

To begin with, petitioner has been sporting the

name Guadalupe Gaspay since childhood up to
the time she got married to Bartolome Alfaro on
May 22, 1953 and even up to the present her
acknowledged name is Guadalupe Gaspay
Alfaro. (Exhibits J, J-1 and J-2). And then when
she filed the subject petition in this case she
used the same surname Gaspay after her father
and Alfaro after her lawful spouse since her
marriage, thereby accepting the fact and telling
the world that she is the recognized daughter of
the deceased Flaviano Gaspay. At the time the
present petition was filed on July 26, 1988
petitioner was already over 51 years old, having
been born on December 12, 1936. All these
undisputed facts are sufficient evidence that
she consented to her acknowledgment by the
decedent. (Javelona, et al., vs. Monteclaro, 74
Phil. 393). Whether or not judicial approval of
such acknowledgment is required was
answered in the negative in Apacible, et
al. vs. Castillo, 74 Phil. 589, where the Supreme
Court held that such approval may be supplied
by the child's consent given after reaching
majority, which obtained in the case at bar.
In light of the above, the death of Flaviano Gaspay, Sr., does
not constitute a time bar to private respondent's claim as his
acknowledged illegitimate daughter. Settled is the rule that
"actions based on voluntary acknowledgment may be brought
even after the father's death." 8
In sum, private respondent has proved her entitlement to be
administrator of the estate of Flaviano Gaspay, Sr., her father.
Section 6 of Rule 78 is in her favor, thus:

73
Sec. 6. When and to whom letters of
administration granted. If no executor is
named in the will, or the executor or executors
are incompetent, refused the trust, or fail to give
bond, or a person dies intestate, administration
shall be granted:
xxx xxx xxx
(b) If much surviving husband or wife, as the
case may be, or next of kin, or the person
selected by them, be incompetent or unwilling,
or if the husband or widow, or next kin, neglects
for thirty (30) days after the death of the person
to apply for administration or to request that
administration be granted to some other person,
it may be granted to one or more of the principal
creditors, if competent and willing to serve;
(c) If there is no such creditor competent and
willing to serve, it may be granted to such other
person as the court may select.
For a fact, petitioners neglected to apply for letters of
administration thirty (30) days after the death of Gaspay, Sr.
IN VIEW WHEREOF, the petition for certiorari is dismissed
there being no reversible error in the Decision of the
respondent court dated September 30, 1991 in CA-G.R. CV
No. 25872. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Regalado and Mendoza, JJ., concur.

#Footnotes
1 RTC of Naval, Branch 16, Biliran, Leyte.
2 Presided by Judge Adriano Villamor.
3 Exhibits "K" and "L".
4 Article 281, Civil Code.
5 Article 172 in relation to Article 175 of the
Family Code.
6 Composed of Associate Justice Santiago M.
Kapunan (Chairman), Associate Justice
Segundino G. Chua ( ponente) and Associate
Justice Quirino D. Abad Santos (member).
7 TSN, October 12, 1989, pp. 6 to 11.
8 Vda. de Sy-Quia vs. Court of Appeals, 125
SCRA 835.

74
FIRST DIVISION

G.R. No. L-28248 March 12, 1975

LEONORA PERIDO, joined by husband MANUEL PIROTE,
INOCENCIA PERIDO, ALBENIO PERIDO, PAULINO
PERIDO, LETIA PERIDO, joined by husband BIENVENIDO
BALYAO, LETICIA PERIDO, joined by husband FELIX
VILLARUZ, EUFEMIA PERIDO, CONSOLACION PERIDO,
ALFREDO PERIDO, GEORGE PERIDO, AMPARO PERIDO,
WILFREDO PERIDO, MARGARITA PERIDO, ROLANDO
SALDE and EDUARDO SALDE, petitioners,
vs.
MARIA PERIDO, SOFRONIO PERIDO, JUAN A. PERIDO,
GONZALO PERIDO, PACITA PERIDO, MAGDALENA
PERIDO, ALICIA PERIDO, JOSEFINA PERIDO, FE PERIDO,
TERESA PERIDO and LUZ PERIDO, respondents.
Januario L. Jison, Jr. for petitioners.
Antonio T. de Jesus for respondents.

MAKALINTAL, C.J.:wph!1
This is an appeal by certiorari from the decision of the Court of
Appeals in its CA-G.R. No. 37034-R, affirming the decision of
the Court of First Instance of Negros Occidental in Civil Case
No. 6529.
Lucio Perido of Himamaylan, Negros Occidental, married twice
during his lifetime. His first wife was Benita Talorong, with
whom he begot three (3) children: Felix, Ismael, and

Margarita. After Benita died Lucio married Marcelina Baliguat,

with whom he had five (5) children: Eusebio, Juan, Maria,
Sofronia and Gonzalo. Lucio himself died in 1942, while his
second wife died in 1943.
Of the three (3) children belonging to the first marriage only
Margarita Perido is still living. Her deceased brother, Felix
Perido, is survived by his children Inocencia, Leonora, Albinio,
Paulino, Letia, Leticia, and Eufemia, all surnamed Perido.
Nicanora Perido, another daughter of Felix, is also deceased,
but is survived by two (2) sons, Rolando and Eduardo Salde.
Margarita's other deceased brother, Ismael Perido, is survived
by his children, namely: Consolacion, Alfredo, Wilfredo, and
Amparo. Susano Perido, another son of Ismael, is dead, but
survived by his own son George Perido.
Of Lucio Perido's five (5) children by his second wife, two are
already dead, namely: Eusebio and Juan. Eusebio is survived
by his children Magdalena Perido, Pacita Perido, Alicia Perido,
Josefina Perido, Fe Perido, Teresa Perido, and Luz Perido,
while Juan is survived by his only child, Juan A. Perido.
On August 15, 1960 the children and grandchildren of the first
and second marriages of Lucio Perido executed a document
denominated as "Declaration of Heirship and Extra-judicial
Partition," whereby they partitioned among themselves Lots
Nos. 458, 471, 506, 511, 509, 513-B, 807, and 808, all of the
Cadastral Survey of Himamaylan, Occidental Negros.
Evidently the children belonging to the first marriage of Lucio
Perido had second thoughts about the partition. On March 8,
1962 they filed a complaint in the Court of First Instance of
Negros Occidental, which complaint was later amended on
February 22, 1963, against the children of the second
marriage, praying for the annulment of the so-called

75
"Declaration of Heirship and Extra-Judicial Partition" and for
another partition of the lots mentioned therein among the
plaintiffs alone. They alleged, among other things, that they
had been induced by the defendants to execute the document
in question through misrepresentation, false promises and
fraudulent means; that the lots which were partitioned in said
document belonged to the conjugal partnership of the spouses
Lucio Perido and Benita Talorong, and that the five children of
Lucio Perido with Marcelina Baliguat were all illegitimate and
therefore had no successional rights to the estate of Lucio
Perido, who died in 1942. The defendants denied the
foregoing allegations.
After trial the lower court rendered its decision dated July 31,
1965, annulling the "Declaration of Heirship and Extra-Judicial
Partition." However, it did not order the partition of the lots
involved among the plaintiffs exclusively in view of its findings
that the five children of Lucio Perido with his second wife,
Marcelina Baliguat, were legitimate; that all the lots, except Lot
No. 458, were the exclusive properties of Lucio Perido; and
that 11/12 of Lot No. 458 belonged to the conjugal partnership
of Lucio Perido and his second wife, Marcelina Baliguat. The
dispositive portion of the decision reads as follows:t.
hqw
IN VIEW OF ALL THE FOREGOING, the Court renders
judgment as follows: declaring the following as the
legitimate children and grandchildren and heirs of Lucio
Perido and Benita Talorong: Felix Perido, deceased;
grandchildren: Inocencia Perido, Leonora Perido,
Albinio Perido, Paulino Perido, Letia Perido, Leticia
Perido, Eufemia Perido; Nicanora Perido, deceased;
great grandchildren: Rolando Salde and Eduardo
Salde; Ismael Perido, deceased; grandchildren:
Consolacion Perido, Alfredo Perido, Susano Perido,
deceased; great grandson: George Perido; Amparo

Perido and Wilfredo Perido; and, Margarita Perido; (2)

declaring the following as the legitimate children and
grandchildren and heirs of Lucio Perido and Marcelina
Baliguat: Eusebio Perido, deceased; grandchildren:
Pacita Perido, Magdalena Perido, Alicia Perido,
Josefina Perido, Fe Perido, Teresa Perido, and Luz
Perido; Juan B. Perido, deceased; grandson, Juan A.
Perido; Maria Perido; Sofronia Perido; and Gonzalo
Perido; (3) declaring all lots (471, 506, 511, 509, 513part, 807, and 808) except Lot No. 458 as exclusive
properties of Lucio Perido so that each of them should
be divided into eight (8) equal parts: 1/8 belongs to
Felix Perido, but because of his death leaving eight (8)
children, the same should be divided and alloted as
follows: 1/64 to Inocencia Perido of age, widow; 1/64 to
Leonora Perido, of age, married to Manuel Pirote; 1/64
to Albinio Perido, of age, married to Honorata
Villasana; 1/64 to Paulino Perido, of age, married to
Norma Villalba 1/64 to Letia Perido, of age, married to
Bienvenido Balyac; 1/64 to Leticia Perido, of age,
married to Felix Villaruz; 1/64 to Eufemia Perido, of
age, single; 1/64 to Nicanora Perido, but because she
is now dead the same should be divided and alloted as
follows: 1/128 to Rolando Salde, of age, single; and
1/128 to Eduardo Salde, of age, single; 1/8 belongs to
Ismael Perido, but because he is already dead leaving
five children, the same should be divided and alloted as
follows: 1/40 to Consolacion Perido, of age, widow;
1/40 to Alfredo Perido, of age married to Trinidad
Tamargo; 1/40 to Susano Perido, but he is already
dead with one son, the same goes to George Perido, of
age, single; 1/40 to Wilfredo Perido, of age, single; 1/8
belongs to Margarita Perido, of age, widow; 1/8
belongs to Eusebio Perido, but because he is already
dead with seven children, the same should be divided
and alloted as follows: 1/56 goes to Pacita Perido, of

76
age, single; 1/56 goes to Magdalena Perido, of age,
single; 1/56 goes to Alicia Perido, of age, married to
Isaias Ruiz; 1/56 goes to Josefina Perido, of age,
married to Leopoldo Doloroso; 1/56 goes to Fe Perido,
of age, single; 1/56 goes to Teresa Perido, of are
single; 1/56 goes to Luz Perido, of age, married to Fidel
de la Cruz; 1/8 belongs to Juan B. Perido, but because
he is already dead with one child, the same 1/8 goes to
Juan A. Perido, of age, married to Salud Salgado 1/8
goes to Maria Perido. of age, married to Julio Pirote;
1/8 goes to Sofronia Perido, of age, widow; and, 1/8
goes to Gonzalo Perido, of age, married to
Lacomemoracion Estiller; (4) declaring the 11/12
shares in Lot No. 458 as conjugal partnership property
of Lucio Perido and Marcelina Baliguat, which should
be divided and alloted as follows: 11/24 goes to Lucio
Perido to be divided into eight (8) equal shares and
11/24 goes to Marcelina Baliguat to be divided into five
(5) equal shares or 11/120 for each of the children and
again to be divided by the children of each child now
deceased; (6) declaring Fidel Perido owner of 1/12
share in Lot 458 to be divided among his heirs to be
determined accordingly later; and (6) declaring null and
void Exhibit "J" of the plaintiffs which is Exhibit "10" for
the defendants, without costs and without adjudication
with respect to the counterclaim and damages, they
being members of the same family, for equity and
justice.
The plaintiffs appealed to the Court of Appeals, alleging that
the trial court erred: (1) in declaring that Eusebio Perido, Juan
Perido, Maria Perido, Sofronia Perido and Gonzalo Perido,
were the legitimate children of Lucio Perido and his second
wife, Marcelina Baliguat; (2) in declaring that Lucio Perido was
the exclusive owner of Lots Nos. 471, 506, 511, 509, 513-Part,
807, and 808 of Cadastral Survey of Himamaylan, Negros

Occidental, and in not declaring that said lots were the

conjugal partnership property of Lucio Perido and his first wife,
Benita Talorong; and (3) in holding that 11/12 of Lot 458 was
the conjugal partnership property of Lucio Perido and
Marcelina Baliguat.
Finding no reversible error in the decision of the lower court,
the Court of Appeals affirmed it in toto. The appellants moved
to reconsider but were turned down. Thereupon they instituted
he instant petition for review reiterating in effect the
assignments of error and the arguments in the brief they
submitted to the appellate court.
The first issue pertains to the legitimacy of the five children of
Lucio Perido with Marcelina Baliguat. The petitioners insist that
said children were illegitimate on the theory that the first three
were born out of wedlock even before the death of Lucio
Perido's first wife, while the last two were also born out of
wedlock and were not recognized by their parents before or
after their marriage. In support of their contention they allege
that Benita Talorong died in 1905, after the first three children
were born, as testified to by petitioner Margarita Perido and
corroborated by petitioner Leonora Perido; that as late as 1923
Lucio Perido was still a widower, as shown on the face of the
certificates of title issued to him in said year; and Lucio Perido
married his second wife, Marcelina Baliguat, only in 1925, as
allegedly established through the testimony of petitioner
Leonora Perido.
The petition cannot be sustained. The Court of Appeals found
that there was evidence to show that Lucio Perido's wife,
Benita Talorong, died during the Spanish regime. This finding
conclusive upon us and beyond our power of review. Under
the circumstance, Lucio Perido had no legal impediment to
marry Marcelina Baliguat before the birth of their first child in
1900.

77
With respect to the civil status of Lucio Perido as stated in the
certificates of title issued to him in 1923, the Court of Appeals
correctly held that the statement was not conclusive to show
that he was not actually married to Marcelina Baliguat.
Furthermore, it is weak and insufficient to rebut the
presumption that persons living together husband and wife are
married to each other. This presumption, especially where
legitimacy of the issue is involved, as in this case, may be
overcome only by cogent proof on the part of those who allege
the illegitimacy. In the case of Adong vs. Cheong Seng
Gee 1 this Court explained the rationale behind this
presumption, thus: "The basis of human society throughout the
civilized world is that of marriage. Marriage in this jurisdiction is
not only a civil contract, but it is a new relation, an institution in
the maintenance of which the public is deeply interested.
Consequently, every intendment of the law leans toward
legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any counterpresumption or evidence special to the case, to be in fact
married. The reason is that such is the common order of
society, and if the parties were not what they thus hold
themselves out as being, they would he living in the constant
violation of decency and of law. A presumption established by
our Code of Civil Procedure is "that a man and woman
deporting themselves as husband and wife have entered into a
lawful contract of marriage." (Sec. 334, No. 28) Semper
praesumitur pro matrimonio Always presume marriage."
While the alleged marriage ceremony in 1925, if true, might
tend to rebut the presumption of marriage arising from
previous cohabitation, it is to be noted that both the trial court
and the appellate court did not even pass upon the
uncorroborated testimony of petitioner Leonora Perido on the
matter. The reason is obvious. Said witness, when asked why
she knew that Marcelina Baliguat was married to Lucio Perido
only in 1925, merely replied that she knew it because "during

the celebration of the marriage by the Aglipayan priest (they)

got flowers from (their) garden and placed in the altar."
Evidently she was not even an eyewitness to the ceremony.
In view of the foregoing the Court of Appeals did not err in
concluding that the five children of Lucio Perido and Marcelina
Baliguat were born during their marriage and, therefore,
legitimate.
The second assignment of error refers to the determination of
whether or not Lots Nos. 471, 506, 511, 509-513-Part, 807 and
808 were the exclusive properties of Lucio Perido. In disposing
of the contention of the petitioners that said lots belong to the
conjugal partnership of spouses Lucio Perido and Benita
Talorong, the Court of Appeals said:.hqw
... We cannot agree again with them on this point. It is
to be noted that the lands covered by the certificates of
title (Exhs. B to G) were all declared in the name of
Lucio Perido. Then there is evidence showing that the
lands were inherited by Lucio Perido from his
grandmother (t.s.n., p. 21, Feb. 20, 1964). In other
words, they were the exclusive properties of the late
Lucio Perido which he brought into the first and second
marriages. By fiat of law said Properties should be
divided accordingly among his legal heirs.
The petitioners take exception to the finding of the appellate
court that the aforementioned lots were inherited by Lucio
Perido from his grandmother and contend that they were able
to establish through the testimonies of their witnesses that the
spouses Lucio Perido and Benita Talorong acquired them
during their lifetime. Again, the petitioners cannot be
sustained. The question involves appreciation of the evidence,
which is within the domain of the Court of Appeals, the factual
findings of which are not reviewable by this Court.

78
The third assignment of error is with regard to the ruling of the
Court of Appeals sustaining the finding of the trial court that
11/12 of Lot 458 was the conjugal partnership property of
Lucio Perido and his second wife, Marcelina Baliguat. Said the
appellate court:.hqw
With respect to Lot No. 458 which is now covered by
Original Certificate of Title No. 21769 issued in 1925
the same should be considered conjugally owned by
Lucio Perido and his second wife, Marcelina Baliguat.
The finding of the lower court on this point need not be
disturbed. It is expressly stated in the certificate of title
(Exh. L) that Lucio Perido, the registered owner, was
married to Marcelina Baliguat unlike in the previous
land titles. If the law presumes a property registered in
the name of only one of the spouses to be conjugal
(Guinguing vs. Abutin, 48 Phil. 144; Flores vs. Flores,
48 Phil. 288, Escutin vs. Escutin, 60 Phil. 922), the
presumption becomes stronger when the document
recites that the spouse in whose name the land is
registered is married to somebody else, like in the case
at bar. It appearing that the legal presumption that the
No. 458 belonged to the conjugal partnership had not
been overcome by clear proofs to the contrary, we are
constrained to rule, that the same is the conjugal
property of the deceased spouses Lucio Perido and
Marcelina Baliguat.
In impugning the foregoing ruling, the petitioners maintain that
they were able to prove that 6/12 of said Lot 458 was the
conjugal property of spouses Lucio Perido and his first wife,
Benita Talorong, and that the purchase price of the additional
5/12 of said lot came from the proceeds of sale of a lot
allegedly belonging to Lucio Perido and his three children of
the first marriage. As in the second assignment of error, the
issue raised here also involves appreciation of the evidence

and, consequently, the finding of the appellate court on the

matter is binding on this Court. Indeed, a review of that finding
would require an examination of all the evidence introduced
before the trial court, a consideration of the credibility of
witnesses and of the circumstances surrounding the case,
their relevancy or relation to one another and to the whole, as
well as an appraisal of the probabilities of the entire situation.
It would thus abolish the distinction between an ordinary
appeal on the one hand and review on certiorari on the other,
and thus defeat the purpose for which the latter procedure has
been established. 2
WHEREFORE, the decision of the Court of Appeals is hereby
affirmed, with costs against the petitioners.
Castro, Teehankee, Makasiar and Esguerra, JJ.,
concur.1wph1.t
Muoz Palma, J., is on leave.

Footnotest.hqw
1 43 Phil. 43, 56.
2 Tamayo vs. Callejo, No. L-25563, July 28,
1972, (SCRA 27).

79
FIRST DIVISION

G.R. No. 77867 February 6, 1990

ISABEL DE LA PUERTA, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and CARMELITA
DE LA PUERTA, respondents.
Isabel de la Puerta for and in her own behalf.
Gilbert D. Camaligan for private respondent.

CRUZ, J.:
The basic issue involved in this case is the filiation of private
respondent Carmelita de la Puerta, who claims successional
lights to the estate of her alleged grandmother.
Dominga Revuelta died on July 3, 1966, at the age of 92, with
a will leaving her properties to her three surviving children,
namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta.
Isabel was given the free portion in addition to her legitime and
was appointed executrix of the will. 1
The petition for the probate of the will filed by Isabel was
opposed by her brothers, who averred that their mother was
already senile at the time of the execution of the will and did
not fully comprehend its meaning. Moreover, some of the
properties listed in the inventory of her estate belonged to
them exclusively. 2

Meantime, Isabel was appointed special administratrix by the

probate court. 3 Alfredo subsequently died, leaving Vicente the
lone oppositor. 4
On August 1, 1974, Vicente de la Puerta filed with the Court of
First Instance of Quezon a petition to adopt Carmelita de la
Puerta. After hearing, the petition was granted. 5 However, the
decision was appealed by Isabel to the Court of Appeals.
During the pendency of the appeal, Vicente died, prompting
her to move for the dismissal of the case 6
On November 20, 1981, Carmelita, having been allowed to
intervene in the probate proceedings, filed a motion for the
payment to her of a monthly allowance as the acknowledged
natural child of Vicente de la Puerta. 7 At the hearing on her
motion, Carmelita presented evidence to prove her claimed
status to which Isabel was allowed to submit counterevidence.
On November 12,1982, the probate court granted the motion,
declaring that it was satisfied from the evidence at hand that
Carmelita was a natural child of Vicente de la Puerta and was
entitled to the amounts claimed for her support. The court
added that "the evidence presented by the petitioner against it
(was) too weak to discredit the same. 8
On appeal, the order of the lower court was affirmed by the
respondent court, 9 which is now in turn being challenged in
this petition before us.
The petitioner's main argument is that Carmelita was not the
natural child of Vicente de la Puerta, who was married to
Genoveva de la Puerta in 1938 and remained his wife until his
death in 1978. Carmelita's real parents are Juanita Austrial
and Gloria Jordan.

80
Invoking the presumption of legitimacy, she argues that
Carmelita was the legitimate child of Juanita Austrial and
Gloria Jordan, who were legally or presumably married.
Moreover, Carmelita could not have been a natural child of
Vicente de la Puerta because he was already married at the
time of her birth in 1962.
To prove her point, Isabel presented Amado Magpantay, who
testified that he was a neighbor of Austrial and Jordan.
According to him, the two were living as husband and wife and
had three children, including a girl named "Puti," presumably
Carmelita. He said though that he was not sure if the couple
was legally married. 10
Another witness, Genoveva de la Puerta, Identified herself as
Vicente de la Puerta's wife but said they separated two years
after their marriage in 1938 and were never reconciled. In
1962, Gloria Jordan started living with Vicente de la Puerta in
his house, which was only five or six houses away from where
she herself was staying. Genoveva said that the relationship
between her husband and Gloria was well known in the
community. 11
In finding for Carmelita, the lower court declared that:
. . . By her evidence, it was shown to the satisfaction of
the Court that she was born on December 18, 1962 per
her birth certificate (Exh. A); that her father was Vicente
de la Puerta and her mother is Gloria Jordan who were
living as common law husband and wife until his death
on June 14, 1978; that Vicente de la Puerta was
married to, but was separated from, his legal wife
Genoveva de la Puerta; that upon the death of Vicente
de la Puerta on June 14, 1978 without leaving a last
will and testament, she was the only child who survived
him together with his spouse Genoveva de la Puerta

with whom he did not beget any child; that she was
treated by Vicente de la Puerta as a true child from the
time of her birth until his father died; that the fact that
she was treated as a child of Vicente de la Puerta is
shown by the family pictures showing movant with
Vicente de la Puerta (Exhs. D, D-1 and D-2) and school
records wherein he signed the report cards as her
parent (Exh. E and E-1); that during the hearing of her
adoption case in Special Proceeding No. 0041 in
Branch V of this Court at Mauban, Quezon, Vicente de
la Puerta categorically stated in court that Carmelita de
la Puerta is his daughter with Gloria Jordan (Exhs. B
and B-1); that it was Vicente de la Puerta during his
lifetime who spent for her subsistence, support and
education; . . . 12
This is a factual finding that we do not see fit to disturb, absent
any of those circumstances we have laid down in a long line of
decisions that will justify reversal. 13 Among these
circumstances are: (1) the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (2) the
inference made is manifestly mistaken; (3) there is grave
abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are
conflicting; (6) the Court of Appeals went beyond the issues of
the case and its findings are contrary to the admissions of both
appellant and appellees; (7) the findings of fact of the Court of
Appeals are contrary to those of the trial court; (8) said
findings of facts are conclusions without citation of specific
evidence on which they are based; (9) the facts set forth in the
petition as well as in the petitioner's main and reply briefs are
not disputed by the respondents; and (10) the findings of fact
of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on
record.

81
The petitioner insists on the application of the following
provisions of the Civil Code to support her thesis that
Carmelita is not the natural child of Vicente de la Puerta but
the legitimate child of Juanito Austrial and Gloria Jordan:

Sec. 5. Disputable presumptions.The following

presumptions are satisfactory if uncontradicted, but
may be contradicted and overcome by other evidence:
xxx xxx xxx

Art. 255. Children born after one hundred and eighty

days following the celebration of the marriage, and
before three hundred days following its dissolution or
the separation of the spouses shall be presumed to be
legitimate.
Against this presumption no evidence shall be admitted
other than that of the physical impossibility of the
husband's having access to his wife within the first one
hundred and twenty days of the three hundred which
preceded the birth of the child.
This physical impossibility may be caused:
(1) By the impotence of the husband;
(2) By the fact that the husband and wife were living
separately in such a way that access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate,
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress.
These rules are in turn based on the presumption that Juanito
and Gloria were married at the time of Carmelita's birth in
1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court,
providing that:

(bb) That a man and woman deporting themselves as

husband and wife have entered into a lawful contract of
marriage;
But this last-quoted presumption is merely disputable and may
be refuted with evidence to the contrary. As the Court sees it,
such evidence has been sufficiently established in the case at
bar.
The cases 14 cited by the petitioner are not exactly in point
because they involve situations where the couples lived
continuously as husband and wife and so could be reasonably
presumed to be married. In the case before us, there was
testimony from Vicente's own wife that her husband and Gloria
lived together as a married couple, thereby rebutting the
presumption that Gloria was herself the lawful wife of Juanita
Austrial.
Such testimony would for one thing show that Juanito and
Gloria did not continuously live together as a married couple.
Moreover, it is not explained why, if he was really married to
her, Juanito did not object when Gloria left the conjugal home
and started openly consorting with Vicente, and in the same
neighborhood at that. That was unnatural, to say the least. It
was different with Genoveva for she herself swore that she
had separated from Vicente two years after their marriage and
had long lost interest in her husband. In fact, she even
renounced in open court any claim to Vicente's estate. 15

82
The presumption of marriage between Juanito and Gloria
having been destroyed, it became necessary for the petitioner
to submit additional proof to show that the two were legally
married. She did not.
Turning now to the evidence required to prove the private
respondent's filiation, we reject the petitioner's contention that
Article 278 of the Civil Code is not available to Carmelita. It is
error to contend that as she is not a natural child but a
spurious child (if at all) she cannot prove her status by the
record of birth, a will, a statement before a court of record, or
any authentic writing. On the contrary, it has long been settled
that:
The so-called spurious children or illegitimate children
other than natural children, commonly known as
bastards, include adulterous children or those born out
of wedlock to a married woman cohabiting with a man
other than her husband or to a married man cohabiting
with a woman other than his wife. They are entitled to
support and successional rights (Art. 287, CC). But
their filiation must be duly proven.(Ibid, Art. 887)
How should their filiation be proven? Article 289 of the
Civil Code allows the investigation of the paternity or
maternity of spurious children under the circumstances
specified in Articles 283 and 284 of the Civil Code. The
implication is that the rules on compulsory recognition
of natural children are applicable to spurious children.
Spurious children should not be in a better position
than natural children. The rules on proof of filiation of
natural children or the rule on voluntary and
compulsory acknowledgment for natural children may
be applied to spurious children. 16

This being so, we need not rule now on the admissibility of the
private respondent's certificate of birth as proof of her filiation.
That status was sufficiently established by the sworn testimony
of Vicente de la Puerta at the hearing of the petition for
adoption on September 6, 1976, where he categorically
declared as follows:
Q What relation if any do you have with Carmelita de la
Puerta?
A She is my daughter. 17
Finally, we move to the most crucial question, to wit: May
Carmelita de la Puerta claim support and successional rights
to the estate of Dominga Revuelta?
According to Article 970 of the Civil Code:
Art. 970. Representation is a right created by fiction of
law, by virtue of which the representative is raised to
the place and the degree of the person represented,
and acquires the rights which the latter would have if
he were living or if he could have inherited.
The answer to the question posed must be in the negative.
The first reason is that Vicente de la Puerta did not
predecease his mother; and the second is that Carmelita is a
spurious child.
It is settled that
In testamentary succession, the right of representation
can take place only in the following cases: first, when
the person represented dies before the testator;
second, when the person represented is incapable of
succeeding the testator; and third, when the person

83
represented is disinherited by the testator. In all of
these cases, since there is a vacancy in the
inheritance, the law calls the children or descendants of
the person represented to succeed by right of
representation. 18
xxx xxx xxx
The law is clear that there is representation only when
relatives of a deceased person try to succeed him in
his rights which he would have had if still living. In the
present case, however, said deceased had already
succeeded his aunt, the testatrix herein. . . . It is a fact
that at the time of the death of the testatrix, Reynaldo
Cuison was still alive. He died two months after her
(testatrix's) death. And upon his death, he transmitted
to his heirs, the petitioners herein Elisa Cuison et al.,
the legacy or the right to succeed to the legacy. . . . In
other words, the herein petitioners-appellants are not
trying to succeed to the right to the property of the
testatrix, but rather to the right of the legatee Reynaldo
Cuison in said property. 19
Not having predeceased Dominga Revuelta, her son Vicente
had the right to inherit from her directly or in his own right. No
right of representation was involved, nor could it be invoked by
Carmelita upon her father's death, which came after his own
mother's death. It would have been different if Vicente was
already dead when Dominga Revuelta died. Carmelita could
then have inherited from her in representation of her father
Vicente, assuming the private respondent was a lawful heir.

But herein lies the crux, for she is not. As a spurious child of
Vicente, Carmelita is barred from inheriting from Dominga
because of Article 992 of the Civil Code, which lays down the
barrier between the legitimate and illegitimate families. This
article provides quite clearly:
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.
Applying this rule in Leonardo v. Court of Appeals, 20 this Court
declared:
. . . even if it is true that petitioner is the child of Sotero
Leonardo, still he cannot, by right of representation,
claim a share of the estate left by the deceased
Francisca Reyes considering that, as found again by
the Court of Appeals, he was born outside wedlock as
shown by the fact that when he was born, his alleged
putative father and mother were not yet married, and
what is more, his alleged father's first marriage was still
subsisting. At most, petitioner would be an illegitimate
child who has no right to inherit ab intestato from the
legitimate children and relatives of his father, like the
deceased Francisca Reyes.
The reason for this rule was explained in the recent case
of Diaz v. Intermediate Appellate Court, 21 thus:
Article 992 of the New Civil Code provides a barrier or
iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child
and the legitimate children and relatives of the father or
mother of said legitimate child. They may have a
natural tie of blood, but this is not recognized by law for

84
the purpose of Article 992. Between the legitimate
family and the illegitimate family there is presumed to
be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by
the legitimate family; the family is in turn, hated by the
illegitimate child the latter considers the privileged
condition of the former, and the resources of which it is
thereby deprived; the former in turn sees in the
illegitimate child nothing but the product of sin, palpable
evidence of a blemish broken in life; the law does no
more than recognize this truth, by avoiding further
ground of resentment. 22
Indeed, even as an adopted child, Carmelita would still be
barred from inheriting from Dominga Revuelta for there would
be no natural kindred ties between them and consequently, no
legal ties to bind them either. As aptly pointed out by Dr. Arturo
M. Tolentino:
If the adopting parent should die before the adopted
child, the latter cannot represent the former in the
inheritance from the parents or ascendants of the
adopter. The adopted child is not related to the
deceased in that case, because the filiation created by
fiction of law is exclusively between the adopter and
the adopted. "By adoption, the adopters can make for
themselves an heir, but they cannot thus make one for
their kindred. 23

WHEREFORE, the petition is GRANTED and the appealed

decision is hereby REVERSED and SET ASIDE, with costs
against the private respondent. It is so ordered.
Footnotes
1 Original records, p. 1, Ibid., pp. 43-44.
2 Ibid., pp. 6-7.
3 Ibid., p. 31.
4 Ibid., p. 108.
5 Annex "E"
6 Ibid.
7 Original records, p. 7.
8 Annex "F".
9 Rollo, p. 48. Penned by Francisco, J. with Lombos de
la Fuente and Benipayo, JJ., concurring.
10 TSN, March 5, 1982, p. 6; Ibid., p. 9; Ibid., p. 13.
11 TSN January 21, 1982, pp. 3, 7; Ibid., p. 13.

The result is that Carmelita, as the spurious daughter of

Vicente de la Puerta, has successional rights to the intestate
estate of her father but not to the estate of Dominga Revuelta.
Her claims for support and inheritance should therefore be
filed in the proceedings for the settlement of her own father's
estate 24 and cannot be considered in the probate of Dominga
Revuelta's Will.

12 Rollo, p. 49.
13 Malaysian Airline System Bernad vs, Court of
Appeals, 156 SCRA 321; Baliwag Transit, Inc. vs. Court
of Appeals, 147 SCRA 82; Sacay vs. Sandiganbayan,
142 SCRA 593.

85
14 Umingan vs. Umingan, CA-G.R. No. 8193-R,
December 16, 1952; Bell vs. Territory, 56 P 853, 8 Okl.
75; Estrada vs. Reyes, CA-G.R. No. 4835-R, February
24, 1951; Andal vs. Macaraeg, L-2474, May 30, 1951,
89 Phil. 465; Sudario vs. Acro Taxi Cab Co., Inc., CAG.R. No. 3677-R, August 2, 1951.
15 TSN January 21, 1982, pp. 23-24.
16 Pactor vs. Pestano 107 Phil. 685; Reyes vs.
Zuzuarregui, 102 Phil. 346, 354; Paulino and Nieto vs.
Paulino, 113 Phil. 697, 700.
17 Exhibit "B-I," TSN, Vicente de la Puerta, Sept. 6,
1974, p. 7.
18 Jurado, Comments and Jurisprudence on
Succession, 7th edition, p. 424.
19 Cuison, et al. vs. Villanueva, et al., 90 Phil. 850.
20 120 SCRA 890.
21 150 SCRA 645.
22 7 Manresa 110 cited in Grey v. Fabie, 40 OG [First
S] No. 3, p. 196.
23 Tolentino, Commentaries and Jurisprudence on the
Civil Code of the Philippines, volume three, 1979, p.
464.
24 Gutierrez, Jr. vs. Macandog, 150 SCRA 442.

86
THIRD DIVISION

CONTRARY TO LAW. 1
Upon arraignment, the accused pleaded not guilty.

G.R. No. L-48362 February 28, 1990

PEOPLE OF THE PHILIPPINES, appellee,
vs.
FERNANDO RAFANAN, appellant.
The Office of the Solicitor General for plaintiff-appellee.
Ildefonso Jose J. Cruz for appellant.
FELICIANO, J.:
Fernando Rafanan appeals from a decision of the then Court
of First Instance of Nueva Ecija dated 27 February 1978 which
found him guilty beyond reasonable doubt of the crime of rape.
On 31 July 1974, a sworn complaint for rape was filed by
Filomena Angala before the Court of First Instance which read
as follows:
The undersigned accuses Fernando Rafanan of the crime
of Rape, committed as follows:
That on or about the 9th day of February, 1974 in
Cabanatuan City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, by
means of force and intimidation, did then and there,
willfully, unlawfully and feloniously, have sexual
intercourse with the undersigned against the latter's
will.

After trial, the trial court rendered, on 27 February 1978, a

decision the dispositive part of which read as follows:
WHEREFORE, the accused Fernando Rafanan is
hereby declared guilty beyond reasonable doubt of the
crime of Rape defined and punished by Article 335 of
the Revised Penal Code without any mitigating or
aggravating circumstance; and in the exercise of the
Court's leniency, he is hereby sentenced to suffer the
penalty of RECLUSION PERPETUA, with the
accessories of the law, to indemnify the offended party
in the amount of P5,000.00 as moral damages, to
acknowledge and support her off-spring, and to pay the
costs.
SO ORDERED. 2
In his Appellant's Brief, the accused claims that the trial court
committed the following errors:
I
The Court a quo gravely erred in not considering
properly certain facts and circumstances that militate
against finding the appellant guilty of the crime of rape.
II
The Court a quo gravely erred in considering and
admitting unreliable evidence to prove that appellant
left the premises of the school thus, allegedly
destroying his defense of alibi.
III

87
The Court a quo gravely erred in finding that appellant
is the father of the cold allegedly born of complainant in
the absence of any valid and proper proof of the
circumstances of said birth.
IV
The Court a quo gravely erred in denying to the
appellant the right to present vital witnesses who if
presented would have thrown more light on the search
of truth in this case.
V
The Court a quo gravely erred when it convicted the
herein appellant of the crime charged in the light of the
facts and circumstances brought out during the trial of
this case.
VI
The Court a quo erred in imposing upon the herein
appellant the penalty of reclusion perpetua and to
acknowledge and support the offspring allegedly born
of the complainant.
The facts found by the trial court were summarized by the
court itself in the following terms:

Filomena Angala was orphaned of her father in a farflung and remote barrio in Mabini, province of Isabela.
Being poor with a brother and seven sisters, but in her
earnest desire and ambition to pursue her studies
further, she decided to leave her place of residence
and try her luck in Cabanatuan City Having been
introduced by an elderly woman to the spouses
Fernando and Emma Rafanan, she consented to be a
household help for the latter, her principal chore being
to take care of the three children of the said spouses. It
was on January 7, 1974 when Filomena started to work
as a household help for the spouses Rafanan.
The accused Fernando Rafanan was then the principal
of the High School Department at the Philippine
Wesleyan College in Cabanatuan City. His wife Emma
was likewise employed as an accountant therein. In
their absence during school days, Filmena was the
only caretaker of the house. While the spouses
Rafanan slept in the second floor of their house with
their 2 younger children, Filomena slept in the first floor
beside the stairs with Emalyn, an eight-year old
daughter of the Rafanans.
In the evening of February 9, 1974, as it was already
time to retire, and with Mrs. Rafanan and her two
children already upstairs, Filomena prepared her mat
and mosquito net in her usual place of retirement on
the ground floor. Both Filomena and Emalyn then lied
[sic] down to sleep.
As Filomena and Emalyn were both soundly asleep,
Filomena was awakened by a man who was already
inside the mosquito net and whom she recognized to
be the accused Fernando Rafanan. Holding a short
firearm and pointing the same at her, the accused

88
Fernando Rafanan warned her not to shout or move.
Sensing that the accused was bent on forcing his evil
intentions upon her, Filomena slapped the accused,
fought back and struggled with the latter. The accused
in turn gave her fist blows in the stomach and bumped
her head against the cemented floor where she was
then lying, rendering her unconscious. When she
regained consciousness, Filomena noticed that the
accused was already on top of her, the latter's penis
already penetrating her organ. She felt that Fernando
was already making a downward and upward
movement with his penis. Filomena wanted to fight
back and resist but being of the weaker sex and
stricken with fear because of Fernando's threats,
Filomena could no longer do so. Filomena suddenly felt
pain in her organ which made her cry aloud, causing
Mrs. Rafanan who was then upstairs to inquire what
the matter was. Losing no time, Fernando walked
toward the stairs half naked and without his pants.
Alone in her grief and sorrow, Filomena could only cry
and shed tears until daybreak.
Filomena continued to do her usual chores that
morning. At 11:00 o'clock [a.m.] of the same day, she
told Mrs. Rafanan that she was leaving. When asked
by Mrs. Rafanan the reason why, Filomena could only
say that the accused had entered her mosquito net the
previous night. In the light of Filomena's revelation,
Mrs. Rafanan begged her not to tell anyone as it would
be a great shame for her husband. Leaving the house
that same morning, Filomena went to the house of a
relative in Mabini Extension, this city She stayed there
for two weeks, then proceeded to her hometown in
Mabini, Isabela. Sometime in the month of April, 1974,
Filomena decided to stay with a first cousin, Artemio
Domingo, in Bacoor, Cavite. By this time she was

already in the family way, having had no menstruation

due as early as the middle of March, as Filomena could
no longer hide her pregnancy, she wrote the president
of the Philippine Wesleyan College in Cabanatuan City
on May 10, 1974, denouncing the accused who was
still the principal of the High School Department and
related her harrowing experience with the accused.
Being a member of the Armed Forces of the
Philippines, Artemio Domingo accompanied Filomena
to Camp Crame on May 14, 1974 where she executed
a sworn statement concerning the incident that
happened on February 10, 1974. On that same day a
PC medico legal officer in the person of 1st Lt.
Desiderio A. Moraleda examined her, the result of
which as well as his findings are as follows:
GENERAL AND EXTRAGENITAL
Fairly developed, nourished and coherent female
subject. Breasts are hemispherical with dark brown
aroela and nipples from which no secretion could be
pressed out. The superficial veins are slightly
engorged. Abdomen is flat and tight. There are no
external signs of recent application of any form of
trauma.
GENITAL
There is moderate growth of pubic hair. Labia majora
are full, convex and coaptated with the pinkish-brown
labia minora presenting in between. On separating the
same are disclosed a slightly congested-vulvar mucosa
and an elastic, fleshy-type hymen with deep, healed
lacerations at 5 and 9 and shallow healed lacerations
at 6 and 11:00 o'clock positions. External vaginal orifice
offers moderate resistance [to] the introduction of the

89
examining index finger and the virgin sized vaginal
speculum. Vaginal canal is narrow with slightly
shallowed rugosities. Cervix is soft and congested.
Vaginal and per-urethral smears are negative for gramnegative diplococci and for spermatozoa.
Garvindex test is positive.
REMARK
Findings are compatible with 2 to 3 months pregnant
state. 3
The appellant presented a two-fold defense: (1) his first and
principal defense was alibi; and (2) his second defense, cast in
alternative form, was that assuming for purposes of argument
only that he had lain with the offended party Filomena Angala,
he had done so with her consent.
Turning first to the defense of alibi, Fernando Rafanan testified
that he was the principal of the High School Department of the
Philippine Wesleyan College and that he was a licensed holder
of a caliber .38 handgun. He claimed that he last saw
Filomena Angala in their house at about 2:00 o'clock in the
afternoon of 8 February 1974, upon leaving his house after
having there taken his lunch. The appellant insists that he had
not been in their house through the whole night of 9 February
1972 up to 5:00 o'clock in the afternoon of the succeeding day,
10 February 1974, as he had been busy at the school making
streamers in the library of the Philippine Wesleyan College for
the then forthcoming national seminar on social studies,
scheduled from 11 to 15 February 1974 and sponsored by the
Department of Education.

Emma Rafanan, wife of the appellant, corroborated her

husband's defense of alibi by declaring that Filomena bad left
their house for reasons unknown to them at about 5:00 o'clock
in the afternoon of 8 February 1974 and that she came back in
the evening of the same day but only to pick up her belongings
and to leave thereafter. Apparently suggesting that nothing
untoward had happened to Filomena, Emma Rafanan further
testified that Filomena came back briefly on 27 February 1974
to collect the amount of P25.00 representing her half-month's
salary.
This Court has many times in the past held that alibi is
inherently a weak defense, easy of fabrication especially
between parents and children, husband and wife, and other
relatives and even among those not related to each other, and
that for such defense to prosper, the accused must prove that
it was not possible for him to have been at the scene of the
crime at the time of the commission of that came. 4 Thus,
in People v. Detuya, 5 the Court gave little weight to the
testimony of the wife of the accused on the facts constituting
his alibi, stating that:
The first witness is his wife; naturally, human nature
being what it is, she is expected to come to her
husband's aid; hence, her testimony, if at all, carries
very little weight. 6
In the present case, accused Rafanan's sole corroborating
witness was his wife, Emma.
To counter the defense of alibi, the prosecution presented
Bonifacio Mangahas and Rolando Wycoco, two of the security
guards of the Philippine Wesleyan College who had been on
guard-duty on 9 to 10 February 1974. The two (2) security
guards testified with the aid of their logbook on which were
recorded the time of arrival and time of departure of the

90
various people working in the college compound. Bonifacio
Mangahas stated that he had been on guard-duty from 3:00 to
11:00 p.m. of 9 February 1974 and that the accused had left
the college campus at about 10:30 o'clock in the evening of 9
February 1974; and that he (Bonifacio) had as a matter of
course entered the departure time of the accused on their
logbook. 7 Rolando Wycoco in turn said that he had been on
guard-duty from 11:00 o'clock p.m. of 9 February 1974 until
past 7:00 o'clock a.m. on 10 February 1974, and that he had
personally noted down the arrival of Mr. Rafanan at the college
compound on 7:00 o'clock a.m of 10 February
1974. 8 Moreover, the house where the Rafanans lived was
only 600 meters away from the Philippine Wesleyan College
compound. Under these circumstances, we cannot fault the
trial court for refusing to consider the accused's defense of
alibi.
The appellant claims that the trial court denied him the
opportunity to present additional witnesses, viz., Mr. and Mrs.
Naagas, faculty members of the Philippine Wesleyan College.
We find this claim a very strange one indeed considering that it
was defense counsel who filed before the trial court a Motion
Waiving Further Evidence and Resting Case dated 15
September 1977, 9 being apparently content with the denials
and the proferred alibi of the accused as corroborated by his
wife.
We turn to the alternative defense of the accused that if he had
lain with Filomena Angala, it was with her consent. The
accused sought to throw doubt upon testimony of Filomena
Angala that the accused forced himself upon her by pointing a
caliber.38 pistol at her mouth and threatening to kill her if she
did not give in to his desires. The accused pointed to the
circumstance that his eight-year old daughter Emalyn was
sleeping beside Filomena in the same mat and under the
same mosquito net and that Emalyn was not awakened during

Filomena's alleged struggle with the accused. The accused

also suggested that it would be highly improbable for a man to
seek to force himself upon a woman in his own house, with his
wife sleeping on the floor above him. 10 In the first place,
neither of the circumstances pointed out by the accused can
overcome the explicit and straightforward testimony of
Filomena that the accused had not only threatened her with
his handgun but also punched her in the stomach and banged
her head against the cemented floor on which their sleeping
mat had been laid out, causing her to lose consciousness for
some time. The trial court gave full credence to Filomena's
testimony, while observing, upon the other hand, that the
accused appeared to be unsure of what he was to say. We
must note once again that this Court accords high deference
to the factual conclusions of the trial court since the judge had
the inestimable advantage of watching and listening to the
witnesses as they have gave their testimony and as they were
subjected to cross-examination. 11 Moreover, as the Court has
noted before, rape has been committed in many different
places including places which to many would appear to be
unlikely and high-risk venues for sexual embraces. 12 There
appeal's to us nothing inherently improbable in the account
given by Filomena Angala before the trial court of the
copulation she was coerced into by the accused.
Accused also underscored that Filomena Angala had taken
about three (3) months before she told of the outrage allegedly
inflicted upon her by the accused to the police authorities.
There may be situations where the fact that the complainant
had failed to report promptly to the police her being raped,
would generate substantial doubt as to the truthfulness of her
accusation. In the case at bar, however, as the trial court
pointed out, the accused had not only threatened to kill
Filomena if she disclosed to anyone what she had been
subjected to, but had also exercised strong moral influence
upon the offended party, by reason of his position as an

91
important official in a recognized Protestant Methodist
educational institution like the Philippine Wesleyan College.
The trial court said:
The first thrust of the attack set up by the defense is
the fact that it was only three months after the alleged
incident when Filomena became emboldened to
disclose her alleged horrifying experience. It is
conceded that Filomena refrained from disclosing her
experience, first, to Mrs. Rafanan, then to Marion delos
Reyes, a relative of Filomena with whom she stayed for
two weeks in Mabini Extension, and finally, to her
mother in Mabini, Isabela where she stayed for a
considerable length of time prior to her departure for
Bacoor, Cavite. This is understandable, for during all
these time, Filomena was still stricken both with fear
and with hope that she would not become pregnant.
Fear, because she was but a lowly barrio lass, simple
and innocent, and would easily and naturally succumb
to threats and intimidation employed upon her by the
accused in the evening of February 9, 1974. The
central figure in the life of Filomena inevitably was the
accused, being a man of position in a prestigious
institution. While she worked as a lowly housemaid for
the Rafanans, she had hoped to pursue further her
studies. The accused was the barrier against hunger
and want, and could be her only hope to finish her
nursing course and be able to support her family.
Because of this, the accused who had threatened her
during that fateful night as well as Mrs. Rafanan who
had requested her not to disclose what happened,
must have had a towering moral influence over
Filomena. With this dominance over Filomena and
notwithstanding the fact that his eight-year old daughter
was beside Filomena on the night in question, it was
easy and safe for the accused to rape Filomena as it

was difficult for the latter to frustrate him, nay, for

Filomena to denounce him. All these explain the
inexorable fact that although Filomena fought for her
honor when the accused deflowered her, she kept to
herself her disgrace until her pregnancy gave her away.
Thus on cross examination, she declared:
ATTY. GARCIA
Q: If you did not like to give your parents a problem or
you were afraid that they might hurt you, why did you in
fact make the same in public on May 14, 1974? Is it
because you were pregnant?
A: I made a report already because I could not keep the
thing that happened to me a secret anymore because I
was already pregnant. And if it only happened that I did
not become pregnant I would not have reported the
matter anymore. 13
In People v. Silfavan, 14 the Court observed that:
The delay in prosecuting the rape is not an indication of
fabricated charges. If the complainant did not become
pregnant, she probably would never have revealed that
she was raped by her uncle. Many victims of rape
never complain or file criminal charges against the
rapists. They prefer to bear the ignominy and pain
rather than reveal their shame to the world or risk the
rapists making good their threats to kill or hurt their
victims. 15
In the instant case, Filomena had herself stated that had she
not become pregnant or been unable to conceal any further
the pregnancy that had ensued from Mr. Rafanan's unwanted

92
attentions, she would not have instituted her criminal complaint
at all.

We would like to place on record that the witness

before she answers the question, cries on the witness
stand.

The suggestion of the accused that Filomena had freely

consented to his sexual embrace can scarcely be taken
seriously. Filomena had spoken explicitly and convincingly of
the threats and physical violence exercised upon her by the
accused. Moreover, the accused neither alleged nor proved
that he had had prior sexual intercourse with Filomena or that
Filomena was a girl of loose morals given to sexual
promiscuity.

A: Because I have given birth already, sir.

Accused finally complains that the trial court had held him to
be the father of the child allegedly born of Filomena,
notwithstanding the "absence of any valid and proper proof of
the circumstance of said birth."

ATTY. BELTRAN:
Q: You stated that you have given birth, where is the
child now?
A: The child is in Bacoor, sir.
COURT:
Do you want to exclude the audience?
ATTY. BELTRAN:
No more, your Honor. 16
xxx xxx xxx

After careful examination of the record of this case, we find no

basis at all for overturning the conclusion of the trial court that
the accused had been shown beyond reasonable doubt to
have by force and intimidation penetrated Filomena Angala.
We also note that Filomena expressly testified to the fact that
she had become pregnant as a result of the outrage inflicted
upon her person and that she gave birth to a child:
Q: Miss Witness, according to you, you were sexually
abused by the accused in the early morning of
February 10, 1974, what happened to you after that?
A: I became pregnant, sir.
Q: You stated that you became pregnant, why is it that
you are not pregnant now?
ATTY. BELTRAN:

Q: Now, when did you first realize that you are on the
family way?
A: Because I did not menstruate. sir. I did not
menstruate anymore, sir.
Q: When was that?
A: May be in the middle portion of March, 1974, sir.
From the time that happened to me in February I did
not menstruate anymore, sir.
Q: Where did you first realize that you have symptoms
(sic) of pregnancy?
A: Because I did not menstruate anymore, sir.
Q: My question now is when you went to the PC on
May 1974 were you then pregnant?
A: Yes, sir.

93
Q: When you executed your statement before the CIS
on 14 May 1974 you realized before that date, that you
were in the family way?
A: Yes, sir.
xxx xxx xxx 17

Article 345. Civil Liability of Persons Guilty of Crimes

against Chastity. Persons guilty of rape, seduction,
or abduction shall also be sentenced:
(1) to indemnify the offended woman;

Q: On the day you wrote this letter, were you aware

that you were on the family way?

(2) to acknowledge the off-spring, unless the law

should prevent him from so doing;

A: Yes, sir.

(3) in every case to support the off-spring.

Q: Since when or how many days prior to May 10 that

you are aware that you were on the family way.

xxx xxx xxx

A: I was already three months on the family way at that

time, sir.
Q: So you felt on the family way sometime in March?
A: Yes, sir, because I did not menstruate anymore.
Q: In March?
A: Yes, sir.
Q: You were telling the court a while ago that one of the
reasons in fact in your testimony, the main reason why
you made this in public, it is because you can not hide
your pregnancy anymore?
A: Yes, sir. 18
It is, of course, also true that the record does not show the
identity and personal circumstances of the child born out of the
rape of Filomena. Even so, the Court correctly sentenced the
accused "to acknowledge and support her off-spring"
considering the provisions of Article 345 of the Revised Penal
Code:

and Article 283 (1) of the Civil Code of the Philippines:

Article 283. In any of the following cases, the father is
obliged to recognize the child as his natural child:
(1) in cases of rape, abduction or seduction, when the
period of the offense coincides more or less with that of
the conception;
xxx xxx xxx
In the case at bar, the record shows that conception had
occurred at or about the time that rape been inflicted upon
Filomena by the accused, or more particularly, within 120 days
from the commission of the offense. 19 The acknowledgment
required of the accused by the trial court should be understood
to be acknowledgment merely of the filiationof the child; the
accused being a married man could not sire an
illegitimate natural child, 20 a status which in any event is no
longer recognized under the Family Code of the Philippines.

94
It should also be noted that since the accused was a High
School Principal and as such entrusted with the education and
guidance of youth, the accessory penalties imposed upon him
by the law include the penalty of temporary special
disqualification in its maximum period to perpetual special
disqualification. 21
The trial court required the appellant to pay, by way of moral
damages, the sum of P5,000.00 to Filomena. In accordance
with our more recent case law, 22 that amount should now be
increased to P25,000.00 so that Filomena might be somewhat
more fully compensated for the suffering, bitterness and
humiliation to which she had been subjected by reason of
appellant's acts.
WHEREFORE, except for the amount of moral damages
granted to the offended party which is hereby INCREASED to
P25,000.00, the decision of the trial court dated 27 February
1978 is hereby AFFIRMED, with costs against appellant.

7 TSN, 18 February 1977, pp. 10-11.

8 TSN, 9 November 1977, p. 3.
9 Records, p. 79.
10 Appellant's Brief, Rollo, pp. 11, 19 & 28.
11 E.g., People v. Veloso, 148 SCRA 60 (1987), People
v. Ramilo, 147 SCRA 102 (1987); People v. Tuscano,
137 SCRA 203 (1985): People Mendoza, 121 SCRA
149 (1983).
12 E.g., People v. Gamboa, 145 SCRA 289 (1986)
(Rape on a pathway twenty [20] meters away from a
beauty contest in progress): People v. Lopez, 141
SCRA 385 (1986) (Rape on the roadside at high noon);
People v. Aragona, 138 SCRA 569 (1985) (Rape on a
"pilapil"
where people usually pass by People v. Jones, 137
SCRA 166 (1985) (Rape inside a washroom adjoining a
house).

SO ORDERED.

13 Decision of the trial court, Rollo, pp. 81-82.

Footnotes

14 151 SCRA 617 (1987). See also People v. Sonico,

156 SCRA 419 (1987); People v. Valdez, 150 SCRA
405 (1987).

1 Rollo, p. 5.
2 Id., p. 19.
3 Ibid., pp. 77-80.
4 People v. Abigan, 144 SCRA 130 (1986); People v.
Magdueo, 144 SCRA 210 (1986); People v. Pielago,
140 SCRA 418 (1985); People v. Catipon, 139 SCRA
192 (1985).
5 154 SCRA 412 (1987).
6 154 SCRA at 425.

15 151 SCRA at 629.

16 TSN, 21 January 1976, p. 39.
7 Ibid., p. 44.
8 Ibid., p. 51.
19 Reyes, L.B., The Revised Penal Code, Vol. II, pp.
897-898 (12th Edition; 1981).
20 Article 277, Civil Code of the Philippines.

95
21 Article 346, Revised Penal Code; see, in this
connection, Article 31 of the same Code.
22 E.g., People v. Deus, 136 SCRA 668 (1985).

horrify all decent men. She contends that this very image
readily forms itself in the mind when we consider this case.
Petitioner filed in the Regional Trial Court of Quezon City an
action for actual, compensatory and moral damages and
support for her child Alfie Angelo. Pending the litigation an
application for support pendente lite was filed to which an
opposition was filed by private respondent. On November 2,
1984 the trial court ordered private respondent to pay monthly
support in the amount of P1,500.00 to the minor child, Alfie.
Private respondent moved for a reconsideration but his motion
was denied on December 5, 1984.
Hence, a petition for certiorari was filed in the Court of Appeals
questioning the said order of the trial court.

FIRST DIVISION
G.R. No. 71994 May 31, 1990
EDNA PADILLA MANGULABNAN as guardian ad litem for
minor ALFIE ANGELO ACERO, petitioner,
vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT
AND AMBROCIO TAN CHEW ACERO, respondents.

GANCAYCO, J.:
This is a case of an illegitimate child who was denied
support pendente lite by the appellate court. The child is
confused as to what he is supposed to do. Petitioner pictured
a big man eating a small child which will not fail to repel and

In a decision dated March 29, 1984 1 the petition was granted

and the orders of the trial court dated November 2, 1984 were
annulled without pronouncement as to costs. A motion for
reconsideration thereof filed by petitioner was denied on
September 12, 1985.
Hence, the herein appeal by way of certiorari wherein
petitioner raises the following issues:
I
THE QUESTIONED JUDGMENT INSISTED IN
IGNORING THE STATUTORY DISTINCTION
BETWEEN A NATURAL CHILD AND OTHER
ILLEGITIMATE CHILDREN;
II
THE APPELLATE COURT REFUSED TO ACCEPT
THAT THE BIRTH CERTIFICATE IN THIS CASE
CONSTITUTED VOLUNTARY RECOGNITION;

96
III
THE APPELLATE COURT IN ONE STROKE PUT TO
NAUGHT THE REMEDY OR RELIEF PROVIDED BY
SUPPORT PENDENTE LITE. 2
The petition is impressed with merit.
In the questioned decision of the appellate court, the following
disquisitions were made:
The petitioner's contention is well taken. While the
child's paternity appears to have been established by
the affidavits of the respondent Edna Padilla
Mangulabnan as well as by the affidavits of her two
witnesses, this fact alone would not be sufficient to
order the petitioner to pay support to the child. In
addition, it is necessary to prove that the petitioner has
recognized the child. For these are two distinct
questions. (Crisolo v. Macadaeg, 94 Phil. 862 [1954];
Cruz v. Castillo, 28 SCRA 719 [1969]).
As the civil status of the child is the source from which
the right to support is derived, there must be a
declaration to that effect before support can be
ordered. Such a declaration may be provisional, it
being sufficient that affidavits are considered. (Crisolo
v. Macadaeg, supra; Mangoma v. Macadaeg, 90 Phil.
508 [1951]; Sanchez v. Francisco, 68 Phil. 110 [1939]).
But the question must nevertheless be squarely
resolved. It may be that the birth certificate is prima
facie evidence of acknowledgment of the child, so that
until it is finally shown to be spurious it must be upheld.
(Civil Code, Art. 410; Art. No. 3753, sec. 13). On the
other hand, it may be that its probative value is
impaired by the verified opposition of the petitioner.
These are, however questions for the trial court to

resolve in passing on the application for

support pendente lite
In the subsequent resolution dated September 12, 1985, the
appellate court also made the following observations:
The contention has no merit. Although Art. 291, in
enumerating those entitled to support, refers in
paragraph 3 to 'acknowledged natural children,' and in
paragraph 5 simply to 'illegitimate children who are not
natural' nonetheless there is a need for the latter class
of children (spurious) to be recognized either voluntarily
or by judicial decree, otherwise they cannot demand
support. The private respondent contends that the
cases cited in the decision (Crisolo v. Macadaeg, 94
Phil. 862 [1954]; Cruz v. Castillo, 28 SCRA 719 [l969])
refer to the right of natural children to support. The
principle, however, is the same. Thus in Paulino v.
Paulino, 113 Phil. 697 [1961], which involves a claim to
inheritance by a spurious child, it was held:
An illegitimate (spurious) child to be entitled to support
and successional rights from his putative or presumed
parents must prove his filiation to them. Filiation may
be established by the voluntary or compulsory
recognition of the illegitimate (spurious) child.
Recognition is voluntary when made in the record of
birth, a will, a statement before a court of record, or in
any authentic writing.' It is compulsory when by court
action the child brings about his recognition.
Article 291 of the Civil Code provides as follows:
ART 291. The following are obliged to support each
other to the whole extent set forth in the preceding
article:

97
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and acknowledged natural children and the
legitimate descendants of the latter;
(4) Parents and natural children by legal fiction and the
legitimate and illegitimate descendants of the latter;
(5) Parents and illegitimate children who are not
natural.
Brothers and sisters owe their legitimate and natural brothers
and sisters, although they are only of the half blood, the
necessaries of life when by a physical or mental defect, or any
other cause not imputable to the recipients, the latter cannot
secure their subsistence. This assistance includes, in a proper
case, expenses necessary for elementary education and for
professional or vocational training.
From the foregoing provision it is clear that parents and
illegitimate children who are not natural children are also
obliged to support each other as specified in paragraph No. 5
abovecited. It is to be distinguished from the obligation to
support each other as between the parents and acknowledged
natural children and the legitimate or illegitimate children of the
latter; and that between parents and natural children by legal
fiction and the legitimate and illegitimate descendants of the
latter under paragraphs (3) and (4) abovecited.
Under Article 287 of the Civil Code it is provided:

ART. 287. Illegitimate children other than natural in

accordance with Article 269 and other than natural
children by legal fiction are entitled to support and such
successional rights as are granted in this Code.
In this case petitioner established the paternity of the child,
Alfie not only by her own affidavit but also by the affidavits of
two (2) witnesses. In addition thereto petitioner submitted a
birth certificate of the child. The private respondent claims that
the same is spurious as it was sworn before a notary public in
Manila when the child was born in Cavite Maternity Clinic in
Las Pinas Rizal.
There must be a declaration of the status of the child from
which the right to support is derived and before support can be
ordered. Such a declaration may be provisional, that is, by
affidavits. 3
While the appellate court claims that the birth certificate is
prima facie evidence of acknowledgment of the child, and that
until it is finally proved to be spurious it must be upheld, 4 it
nevertheless observed that its probative value is impaired by
the verified opposition of the private respondent.
Petitioner contends, however, that the child is entitled to
support upon proof of filiation to private respondent without
need of acknowledgment.
The appellate court disagrees and holds that even as to
illegitimate children who are not natural children, there is a
need for the latter class of children (spurious children) to be
recognized either voluntarily or by judicial decree, otherwise
they cannot demand support, as in the case of an
acknowledged natural child.

98
The Court disagrees. The requirement for recognition by the
father or mother jointly or by only one of them as provided by
law refers in particular to a natural child under Article 276 of
the Civil Code. Such a child is presumed to be the natural child
of the parents recognizing it who had the legal capacity to
contract marriage at the time of conception. 5 Thus, an
illegitimate child like the minor Alfie in this case whose father,
the private respondent herein, is married and had no legal
capacity to contract marriage at the time of his conception is
not a natural child but an illegitimate child or spurious child in
which case recognition is not required before support may be
granted. 6

WHEREFORE, the petition is GRANTED. The questioned

decision of the appellate court dated March 29, 1985 and its
resolution dated September 12, 1985 are hereby REVERSED
AND SET ASIDE and the order of the trial court dated
November 2, 1984 granting a monthly support pendente lite in
favor of the minor child, Alfie in the amount of P1,500.00 is
reinstated and AFFIRMED with costs against private
respondent.

However, under Article 887 of the Civil Code, in all cases of

illegitimate children, their filiation must be proved. Such filiation
may be proved by the voluntary or compulsory recognition of
the illegitimate (spurious child). Recognition is voluntary when
made in the record of birth, a will, a statement before a court of
record or in any authentic writing. 7 It is compulsory when by
court action the child brings out his recognition. 8

Grio-Aquino, J., is on leave.

As above related the affidavits of petitioner and the two (2)

witnesses were presented to prove the paternity of the child,
and a birth certificate was also presented to corroborate the
same. The Court agrees with the court a quo that the status of
the minor child had been provisionally established.
Indeed, in response to the resolution of this Court dated
February 14, 1989, if the parties are still interested in
prosecuting this case, petitioner in a manifestation filed on
March 22, 1990, asserted that she is still interested and that in
fact the Regional Trial Court in Civil Case No. A-39985 has
rendered a decision dated April 9, 1987 granting to petitionerappellant minor a monthly support of P5,000.00 to be paid on
or before the fifth day of every month. 9

SO ORDERED.
Narvasa (Chairman), Cruz and Medialdea, JJ., concur.

Footnotes
1 Justice Vicente V. Mendoza, ponente,
concurred in by Justices Edgardo L. Paras and
Luis A. Javellana.
2 Page 15, Rollo.
3 Crisolo v. Macadaeg, 94 Phil. 862 (1954);
Mangoma vs. Macadaeg, 90 Phil. 508 (1951);
Sanchez vs. Zulueta, 68 Phil. 110 (1939).
4 Article 410 Civil Code; Section 13, Act No.
375.
5 Article 277, Civil Code.
6 Crisolo v. Macadaeg, supra, at 862.

99
7 Article 278, Civil Code .
8 Paulino and Nieto vs. Paulino, 113 Phil. 697,
700 to 701 (1961).
9 Page 49, Rollo.

Elaine A. Moore filed a petition before the Court of First

Instance of Rizal praying that her child by a former marriage,
William Michael Velarde, be permitted to change his name so
as to read William Michael Velarde Moore.
After publishing the petition as required by law, trial was held
during which the parties submitted a stipulation of facts.
Thereafter, the trial court issued an order denying the petition
whereupon petitioner interposed the present appeal.
Petitioner is an American citizen formerly married to Joseph P.
Velarde, also an American citizen, out of whose wedlock a
child by the name of William Michael Velarde was born. This
child, now 14 years old, was born on January 19, 1947 at Los
Angeles, California, U.S.A.

EN BANC

G.R. No. L-18407

June 26, 1963

ELAINE A. MOORE, petitioner-appellant,

vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.
Fidel A. Sandoval for petitioner-appellant.
Office of the Solicitor General for oppositor-appellee.

BAUTISTA ANGELO, J.:

The marriage of petitioner to Velarde was subsequently

dissolved by a decree of divorce issued by the Superior Court
of the State of California on May 31, 1949. After said decree
became final, petitioner contracted a second marriage with
Don C. Moore on September 29, 1956 at Los Angeles,
California, U.S.A., and thereafter the minor lived continuously
with the spouses up to the present time. He was supported by
Moore who has always treated him with love and affection as if
he were his true father. In view of this harmonious relation it is
petitioner's desire that the minor be able to use the name
Moore after his family name Velarde.
The government opposes the petition and now poses the
following issues: (1) whether under our laws a minor may be
permitted to adopt and use the surname of the second
husband of his mother; (2) whether justifiable reasons exist to
allow such change of name; and whether petitioner, as mother
of the minor, has the authority or personality to ask for such a
change.

100
Anent the first issue, the government sustains a negative
stand for the reason that our laws do not authorize a legitimate
child to use the surname of a person who is not his father, for,
as a matter of fact, Article 364 of Civil Code specifically
provides that legitimate children shall principally use the
surname of their father. Mention is also made of Article 369 of
the same Code which provides that in case of annulment of
avoidable marriage the children conceived before the
annulment she principally use the surname of the father, and
considering by analogy the effect of a decree of divorce, it
concluded that the children who are conceived before such a
decree should also be understood as carrying the surname of
the real father, which, in this case, is Velarde.
We find tenable this observation of government's counsel.
Indeed, if a child born out of a lawful wedlock be allowed to
bear the surname of the second husband of the mother,
should the first husband die or be separated by a decree of
divorce, there may result a confusion to his real paternity. In
the long run the change may redound to the prejudice of the
child in the community.
While the purpose which may have animated petitioner is
plausible and may run along the feeling of cordiality and
spiritual relationship that pervades among the members of the
Moore family, our hand is deferred by a legal barrier which we
cannot at present overlook or brush aside.1wph1.t
Another factor to be reckoned with is the fact that the child
concerned is still a minor who for the present cannot fathom
what would be his feeling when he comes to mature age. Any
way, if the time comes, he may decide the matter for himself
and take such action as our law may permit. For the present
we deem the action taken by petitioner premature.
WHEREFORE, the order appealed from is affirmed. No costs.

Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L.,

Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

101
AQUINO, J.:
The issue in this case is whether two minors should be allowed
to discontinue using their father's surname and should use
only their mother's surname.
Zosima Naldoza was married to Dionesio Divinagracia on May
30, 1970. They begot two children named Dionesio, Jr. and
Bombi Roberto who were born on October 23, 1970 and July
22, 1973, respectively.
Zosima's husband left her after she confronted him with his
previous marriage with another woman. He never returned to
the conjugal abode. He allegedly swindled Congressman
Maglana in the sum of P50,000.00, one Galagar in the sum of
P10,000.00 also Eloy Gallentes and other persons.
SECOND DIVISION

G.R. No. L-55538 March 15, 1982

In the Matter of the Change of Names of DIONESIO
DIVINAGRACIA, JR., and BOMBI ROBERTO
DIVINAGRACIA to DIONESIO NALDOZA and BOMBI
ROBERTO NALDOZA, respectively. ZOSIMA NALDOZA, as
natural guardian and guardian ad litem of said
minors, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES and JUDGE FERNANDO
S. RUIZ of the Court of First Instance of Bohol, Branch
IV, respondents-appellees.

The classmates of Dionesio, Jr. and Bombi Roberto allegedly

teased them about their father being a swindler. Two criminal
cases for estafa were filed in court against the father.
Desirous of obliterating any connection between her two minor
children and their scapegrace father, Zosima, on August 10,
1978, filed in the Court of First Instance of Bohol a petition
wherein she prayed that the surname of her two children be
changed from Divinagracia to Naldoza, her surname (Special
Proceeding No. 768). After due publication and hearing, the
trial court dismissed the petition.
The trial court did not consider as sufficient grounds for
change of surname the circumstances that the children's father
was a swindler, that he had abandoned them and that his
marriage to Zosima was a second marriage which, however,
had not been annulled nor declared bigamous. It reasoned
that the children's adoption of their mother's surname would
give a false impression of family relationship.

102
From that decision, Zosima Naldoza appealed to this Court
under Republic Act No. 5440. Appellant's seven assignments
of error may be reduced to the question of whether there is a
justification for the two children to drop their father's surname
and use their mother's surname only.
The minors Dionesio, Jr. and Bombi Roberto, who are
presumably legitimate, are supposed to bear principally the
surname Divinagracia, their father's surname (Art. 364, Civil
Code).
To allow them, at their mother's behest, to bear only their
mother's surname (which they are entitled to use together with
their father's surname) and to discard altogether their father's
surname thus removing the prima-facie evidence of their
paternal provenance or ancestry, is a serious matter in which,
ordinarily, the minors and their father should be consulted. The
mother's desire should not be the sole consideration.
The change of name is allowed only when there are proper
and reasonable causes for such change (Sec. 5, Rule 103,
Rules of Court). Where, as in this case, the petitioners are
minors, the courts should take into account whether the
change of name would redound their welfare or would
prejudice them.

Where the petitioner, a legitimate daughter of a Filipino mother

and a Japanese, elected Philippine citizenship, and her older
brother and sister were using their mother's surname, and the
petitioner felt embarrassed in using her Japanese father's
surname (Oshita) because of the ill-feeling harbored by some
Filipinos against the Japanese, and there was no showing that
her desire to use the maternal surname (Bartolome) was
motivated by any fraudulent purpose or that the change of
surname would prejudice public interest, her petition to change
her surname from Oshita to Bartolome was granted (Oshita vs.
Republic, L-21180, March 31, 1967, 19 SCRA 700).
Where the petitioner's name in the civil registry is Maria
Estrella Veronica Primitiva Duterte, Duterte being the surname
of her father Filomeno, who was married to her mother,
Estrella Alfon, but the petitioner since infancy has used the
name Estrella S. Alfon, particularly in the school and voting
records, there is reasonable ground for allowing her to change
her surname from Duterte to Alfon. Such a change would
avoid confusion (Alfon vs. Republic, G.R. No. 51201, May 29,
1980,97 SCRA 858).
The instant case is easily distinguishable from
the Oshita and AIfon cases where the petitioners were already
of age.
We hold that the trial court did not err in denying the petition
for change of name. The reasons adduced for eliminating the
father's surname are not substantial enough to justify the
petition. To allow the change of surname would cause
confusion as to the minors' parentage and might create the
impression that the minors are illegitimate since they would
carry the maternal surname only. That would be inconsistent
with their legitimate status as indicated in their birth records
(Exh. C and D).

103
As was said in that In re Epstein 200 N.Y.S. 897, "the child
should, and in the course of time must, know of his parentage.
" If, when he fully appreciates the circumstances and is
capable of selecting a name for himself, he wants to use his
mother's surname only and to avoid using his father's
surname, then he should be the one to apply for a change of
surname. See Anno., 53 ALR2d 914.

MARIANO ANDAL, assisted by mother Maria Dueas as

guardian ad litem, and MARIA DUEAS, plaintiffs,
vs.
EDUVIGIS MACARAIG, defendant.

WHEREFORE, the lower court's decision is affirmed. No

costs.

BAUTISTA ANGELO, J.:

Reyes and Dy-Liaco for appellants.

Tible, Tena and Borja for appellees.

Mariano Andal, a minor, assisted by his mother Maria Dueas,

as guardian ad litem, brought an action in the Court of First
Instance of Camarines Sur for the recovery of the ownership
and possession of a parcel of land situated in the barrio of
Talacop, Calabanga, Camarines Sur.

SO ORDERED.
Separate Opinions
BARREDO, J., concurring:
At the worst, Dionesio Jr. and Bombito should be considered
as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art.
29, Civil Code). among which is the right to bear the surname
of their father. (Art. 28 (1), Civil Code).

EN BANC

G.R. No. L-2474

May 30, 1951

The complaint alleges that Mariano Andal is the surviving son

of Emiliano Andal and Maria Dueas; that Emiliano Andal died
on September 24, 1942; that Emiliano Andal was the owner of
the parcel of land in question having acquired it from his
mother Eduvigis Macaraig by virtue of a donation propter
nuptias executed by the latter in favor of the former; that
Emiliano Andal had been in possession of the land from 1938
up to 1942, when Eduvigis Macaraig, taking advantage of the
abnormal situation then prevailing, entered the land in
question.
The lower court rendered judgment in favor of the plaintiffs (a)
declaring Mariano Andal the legitimate son of Emiliano Andal
and such entitled to inherit the land in question; (b) declaring
Mariano Andal owner of said land; and (c) ordering the
defendant to pay the costs of suit. Defendant took the case to
this Court upon the plea that only question of law are involved.
It appears undisputed that the land in question was given by
Eduvigis Macaraig to her son Emiliano Andal by virtue of a

104
donation propter nuptias she has executed in his favor on the
occasion of his marriage to Maria Dueas. If the son born to
the couple is deemed legitimate, then he is entitled to inherit
the land in question. If otherwise, then the land should revert
back to Eduvigis Macaraig as the next of kin entitled to
succeed him under the law. The main issue, therefore, to be
determined hinges on the legitimacy of Mariano Andal in so far
as his relation to Emiliano Andal is concerned. The
determination of this issue much depends upon the
relationship that had existed between Emiliano Andal and his
wife during the period of conception of the child up to the date
of his birth in connection with the death of the alleged father
Emiliano Andal.
The following facts appear to have been proven: Emiliano
Andal became sick of tuberculosis in January 1941. Sometime
thereafter, his brother, Felix, went to live in his house to help
him work his house to help him work his farm. His sickness
became worse that on or about September 10, 1942, he
became so weak that he could hardly move and get up from
his bed. On September 10, 1942, Maria Duenas, his wife,
eloped with Felix, and both went to live in the house of Maria's
father, until the middle of 1943. Since May, 1942, Felix and
Maria had sexual intercourse and treated each other as
husband and wife. On January 1, 1943, Emiliano died without
the presence of his wife, who did not even attend his funeral.
On June 17, 1943, Maria Dueas gave birth to a boy, who was
given the name of Mariano Andal. Under these facts, can the
child be considered as the legitimate son of Emiliano?
Article 108 of the Civil Code provides:

Children born after the one hundred and eighty days

next following that of the celebration of marriage or
within the three hundred days next following its
dissolution or the separation of the spouses shall be
presumed to be legitimate.
This presumption may be rebutted only by proof that it
was physically impossible for the husband to have had
access to his wife during the first one hundred and
twenty days of the three hundred next preceding the
birth of the child.
Since the boy was born on June 17, 1943, and Emiliano Andal
died on January 1, 1943, that boy is presumed to be the
legitimate son of Emiliano and his wife, he having been born
within three hundred (300) days following the dissolution of the
marriage. This presumption can only be rebutted by proof that
it was physically impossible for the husband to have had
access to his wife during the first 120 days of the 300 next
preceding the birth of the child. Is there any evidence to prove
that it was physically impossible for Emiliano to have such
access? Is the fact that Emiliano was sick of tuberculosis and
was so weak that he could hardly move and get up from his
bed sufficient to overcome this presumption?
Manresa on this point says:
Impossibility of access by husband to wife would
include (1) absence during the initial period of
conception, (2) impotence which is patent, continuing
and incurable, and (3) imprisonment, unless it can be
shown that cohabitation took place through corrupt
violation of prison regulations. Manresa, 492-500, Vol.
I, cited by Dr. Arturo Tolentino in his book
"Commentaries and Jurisprudence on the Civil Code,
Vol. 1, p.90)."

105
There was no evidence presented that Emiliano Andal was
absent during the initial period of conception, specially during
the period comprised between August 21, 1942 and
September 10, 1942, which is included in the 120 days of the
300 next preceding the birth of the child Mariano Andal. On the
contrary, there is enough evidence to show that during that
initial period, Emiliano Andal and his wife were still living under
the marital roof. Even if Felix, the brother, was living in the
same house, and he and the wife were indulging in illicit
intercourse since May, 1942, that does not preclude
cohabitation between Emiliano and his wife. We admit that
Emiliano was already suffering from tuberculosis and his
condition then was so serious that he could hardly move and
get up from bed, his feet were swollen and his voice hoarse.
But experience shows that this does not prevent carnal
intercourse. There are cases where persons suffering from this
sickness can do the carnal act even in the most crucial stage
because they are more inclined to sexual intercourse. As an
author has said, "the reputation of the tuberculosis towards
eroticism (sexual propensity) is probably dependent more
upon confinement to bed than the consequences of the
disease." (An Integrated Practice of Medicine, by Hyman, Vol.
3, p.2202). There is neither evidence to show that Emiliano
was suffering from impotency, patent, continuous and
incurable, nor was there evidence that he was imprisoned. The
presumption of legitimacy under the Civil Code in favor of the
child has not, therefore, been overcome.
We can obtain the same result viewing this case under section
68, par. (c) of Rule 123, of the Rules of Court, which is
practically based upon the same rai'son d'etre underlying the
Civil Code. Said section provides:
The issue of a wife cohabiting with the husband who is
not impotent, is indisputably presumed to be legitimate,
if not born within one hundred eighty days immediately

succeeding the marriage, or after the expiration of

three hundred days following its dissolution.
We have already seen that Emiliano and his wife were living
together, or at least had access one to the other, and Emiliano
was not impotent, and the child was born within three (300)
days following the dissolution of the marriage. Under these
facts no other presumption can be drawn than that the issue is
legitimate. We have also seen that this presumption can only
be rebutted by clear proof that it was physically or naturally
impossible for them to indulge in carnal intercourse. And here
there is no such proof. The fact that Maria Dueas has
committed adultery can not also overcome this presumption
(Tolentino's Commentaries on the Civil Code, Vol. I, p. 92).
In view of all the foregoing, we are constrained to hold that the
lower court did not err in declaring Mariano Andal as the
legitimate son of the spouses Emiliano Andal and Maria
Dueas.
Wherefore, the decision appealed from is affirmed, without
pronouncement as to costs.
Paras, C. J., Feria, Pablo, Tuason, Montemayor, Reyes and
Jugo, JJ., concur.

106
G.R. No. L-49542 September 12, 1980
ANTONIO MACADANGDANG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ELIZABETH
MEJIAS, respondents.

MAKASIAR, J.:
This petition for review seeks to set aside the decision of the
Court of Appeals in CA-G.R. No. 54618-R which reversed the
decision of the Court of First Instance of Davao, Branch IX
dismissing the action for recognition and support filed by
respondent Elizabeth Mejias against petitioner Antonio
Macadangdang, and which found minor Rolando to be the
illegitimate son of petitioner who was ordered to give a
monthly support of P350.00 until his alleged son reaches the
age of majority (p. 47, rec.; p. 10, ROA).
The records show that respondent Elizabeth Mejias is a
married woman, her husband being Crispin Anahaw (pp. 6162, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [P.
198, rec.]) She allegedly had intercourse with petitioner
Antonio Macadangdang sometime in March, 1967 (p. 38,
t.s.n., June 7, 1972 in CC No. 109). She also alleges that due
to the affair, she and her husband separated in 1967 (p. 63,
t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or 210
days following the illicit encounter), she gave birth to a baby
boy who was named Rolando Macadangdang in baptismal
rites held on December 24,1967 (Annex "A", List of Exhibits).
FIRST DIVISION

The records also disclose that on April 25, 1972, respondent

(then plaintiff) filed a complaint for recognition and support
against petitioner (then defendant) with the Court of First

107
Instance of Davao, Branch IX. This case was docketed as Civil
Case No. 263 (p. 1, ROA).

declared minor Rolando to be an illegitimate son of Antonio

Macadangdang (p. 52, rec.).

Defendant (now petitioner) Macadangdang filed his answer on

June 30, 1972, opposing plaintiff's claim and praying for its
dismissal (p. 3, ROA).

On November 6, 1978, the Court of Appeals denied appellant's

motions for reconsideration for lack of merit. (p. 56, rec.).
Hence, petitioner filed this petition on January 12, 1979.

On August 9, 1972, the lower court in a pre-trial conference,

issued a Pre-trial Order formalizing certain stipulations,
admissions and factual issues on which both parties agreed
(pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of
the parties, an amended complaint was filed by plaintiff on
October 17, 1972 (pp. 7,8 and 9, ROA).
In its decision rendered on February 27, 1973, the lower court
dismissed the complaint,. The decision invoked positive
provisions of the Civil Code and Rules of Court and authorities
(pp. 10-18, ROA).
On April 18, 1973, plaintiff appealed the CFI decision to the
Court of Appeals (p. 59, In her appeal, appellant assigned
these errors:
1. The Honorable Trial Court erred in applying in the
instant case the provisions of Arts. 255 and 256 of the
Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of
the Revised Rules of Court (p. 18, rec.);
2. The Honorable Trial Court erred in holding that
plaintiff-appellant cannot validly question the legitimacy
of her son, Rolando Macadangdang, by a collateral
attack without joining her legal husband as a party in
the instant case (p. 18, rec.).
In its decision handed down on June 2, 1978, the Court of
Appeals reversed the lower court's decision (p. 47, and thus

The issues boil down to:

1. Whether or not the child Rolando is conclusively
presumed the legitimate issue of the spouses Elizabeth
Mejias and Crispin Anahaw; and
2. Whether or not the wife may institute an action that
would bastardize her child without giving her husband,
the legally presumed father, an opportunity to be heard.
The crucial point that should be emphasized and should be
straightened out from the very beginning is the fact that
respondent's initial illicit affair with petitioner occurred
sometime in March, 1967 and that by reason thereof, she and
her husband separated. This fact surfaced from the testimony
of respondent herself in the hearing of September 21, 1972
when this case was still in the lower court. The pertinent
portions of her testimony are thus quoted:
By Atty. Fernandez:
Q What did you feel as a result of the incident where
Antonio Macadangdang used pill and took advantage
of your womanhood?
A I felt worried, mentally shocked and humiliated.

108
Q If these feelings: worries, mental shock and
humiliation, if estimated in monetary figures, how much
win be the amount?
A Ten thousand pesos, sir.
Q And because of the incidental what happened to
your with Crispin Anahaw.
xxx xxx xxx
WITNESS:
A We separate, sir. (pp. 61-63, T.s.n., Civil Case No.
263, Sept. 21, 1972; emphasis supplied).
From the foregoing line of questions and answers, it can be
gleaned that respondent's answers were given with
spontaneity and with a clear understanding of the questions
posed. There cannot be any other meaning or interpretation of
the word "incident" other than that of the initial contact
between petitioner and respondent. Even a layman would
understand the clear sense of the question posed before
respondent and her categorical and spontaneous answer
which does not leave any room for interpretation. It must be
noted that the very question of her counsel conveys the
assumption of an existing between respondent and her
husband.
The finding of the Court of Appeals that respondent and her
husband were separated in 1965 cannot therefore be
considered conclusive and binding on this Court. It is based
solely on the testimony of respondent which is self-serving.
Nothing in the records shows that her statement was
confirmed or corroborated by another witness and the same
cannot be treated as borne out by the record or that which is
based on substantial evidence. It is not even confirmed by her
own husband, who was not impleaded.

In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167

[1974], this Court restated that the findings of facts of the Court of
Appeals are conclusive on the parties and on the Supreme Court,
unless (1) the conclusion is a finding grounded entirely on
speculation, surmise, and conjectures; (2) the inference made is
manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on misapprehension of facts; (5) the Court of
Appeals went beyond the issues of the case and its findings are
contrary to the admission of both appellant and appellee; (6) the
findings of facts of the Court of Appeals are contrary to those of
the trial court; (7) said findings of facts are conclusions without
citation of specific evidence on which they are based; (8) the facts
set forth in the petition as well as in the petitioner's main and reply
briefs are not disputed by the respondent; and (9) when the
finding of facts of the Court of Appeals is premised on the
absence of evidence and is contradicted by evidence on
record [Pioneer Insurance and Surety Corporation vs. Yap, L36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA
642 (1967); Ramos vs. Pepsi-cola Bottling Company of the
Philippines, L-225533, 19 SCRA 289 (1967); emphasis supplied].
Again, in Roque vs. Buan, supra, this Court reiterated the
aforestated doctrine adding four more exceptions to the general
rule. This case invoked the same ruling in the previous case
of Ramos vs. Pepsi-Cola Bottling Company, etc., supra.
In the recent case of Francisca Alsua-Betts, et al. vs. Court of
Appeals, et al. (L-46430-31, July 30, 1979), which petitioner aptly
invokes, this Court thus emphasized:
... But what should not be ignored by lawyers and litigants
alike is the more basic principle that the "findings of fact"
described as "final" or "conclusive" are those borne out by
the record or those which are based upon substantial
evidence. The general rule laid down by the Supreme
Court does not declare the absolute correctness of all the
findings of fact made by the Court of Appeals. There are
exceptions to the general rule, where we have reviewed

109
the findings of fact of the Court of Appeals ... (emphasis
supplied).

The following provisions of the Civil Code and the Rules of

Court should be borne in mind:

facie presumed to be illegitimate if it appears highly

improbable, for ethnic reasons, that the child is that of
the husband. For the purposes of this article, the wife's
adultery need not be proved in a criminal case.
xxx xxx xxx

Art. 255. Children born after one hundred and eighty

days following the celebration of the marriage, and
before three hundred days following its dissolution or
the separation of the spouses shall be presumed to be
legitimate.
Against this presumption, no evidence shall be
admitted other than that of the physical impossibility of
the husband's having access to his wife within the first
one hundred and twenty days of the three hundred
which preceded the birth of the child.
This physical impossibility may be caused:

Sec. 4. Quasi-conclusive presumptions of legitimacy

(a) Children born after one hundred eighty days
following the celebration of the marriage, and before
three hundred days following its dissolution or the
separation of the spouses shall be presumed
legitimate.
Against presumption no evidence be admitted other
than that of the physical impossibility of the husband's
having access to his wife within the first one hundred
and twenty days of the three hundred which preceded
the birth of the child.

(1) By the impotence of the husband;

This physical impossibility may be caused:
(2) By the fact that the husband and wife were
separately, in such a way that access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate,
although the mother may have declared against its
legitimacy or may have been sentenced as an
adulteress.
Art. 257. Should the wife commit adultery at or about
the time of the conception of the child, but there was no
physical impossibility of access between her and her
husband as set forth in article 255, the child is prima

[1] By the impotence of the husband

[2] By the fact that the husband and the wife were living
separately, in such a way that access was not possible;
[3] By the serious illness of the husband;
(b) The child shall be presumed legitimate although the
mother may have declared against its legitimacy or
may have been sentenced as an adulteress.

110
(c) Should the wife commit adultery at or about the time
of the conception of the child, but there was no physical
impossibility of access between her and her husband
as set forth above, the child is presumed legitimate,
unless it appears highly improbable, for ethnic reasons,
that the child is that of the husband. For the purpose of
the rule, the wife's adultery need not be proved in a
criminal case. ... (Rule 131, Rules of Court).
Whether or not respondent and her husband were separated
would be immaterial to the resolution of the status of the child
Rolando. What should really matter is the fact that during the
initial one hundred twenty days of the three hundred which
preceded the birth of the renamed child, no concrete or even
substantial proof was presented to establish physical
impossibility of access between respondent and her spouse.
From her very revealing testimony, respondent declared that
she was bringing two sacks of rice to Samal for her children;
that her four children by her husband in her mother's house in
the said town; that her alleged estranged husband also lived in
her mother's place (p. 73, pp. 21 & 22, 64 & 65, t.s.n., Sept.
21, 1972). It should also be noted that even during her affair
with petitioner and right after her delivery, respondent went to
her mother's house in Samal for treatment. Thus, in the direct
examination of Patrocinia Avila (the boy's yaya), the following
came out:
Q Why were you taking care of the child Rolando,
where was Elizabeth Mejias?
A Because Elizabeth went to her parents in Same
Davao del Norte for treatment because she had a
relapse (p. 13, t.s.n., of Sept. 21, 1972).
From the foregoing and since respondent and her husband
continued to live in the same province, the fact remains that

there was always the possibility of access to each other. As

has already been pointed out, respondent's self-serving
statements were never corroborated nor confirmed by any
other evidence, more particularly that of her husband.
The baby boy subject of this controversy was born on October
30, 1967, only seven (7) months after March, 1967 when the
"incident" or first illicit intercourse between respondent and
petitioner took place, and also, seven months from their
separation (if there really was a separation). It must be noted
that as of March, 1967, respondent and Crispin Anahaw had
already four children; hence, they had been married years
before such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth
of Rolando came more than one hundred eighty 180 days
following the celebration of the said marriage and before 300
days following the alleged separation between aforenamed
spouses.
Under the aforequoted Article 255 of the Civil Code, the child
Rolando is conclusively presumed to be the legitimate son of
respondent and her husband.
The fact that the child was born a mere seven (7) months after
the initial sexual contact between petitioner and respondent is
another proof that the said child was not of petitioner since,
from indications, he came out as a normal full-term baby.
It must be stressed that the child under question has no birth
certificate of Baptism (attached in the List of Exhibits) which
was prepared in the absence of the alleged father [petitioner].
Note again that he was born on October 30, 1967. Between
March, 1967 and October 30, 1967, the time difference is
clearly 7 months. The baby Rolando could have been born
prematurely. But such is not the case. Respondent underwent
a normal nine-month pregnancy. Respondent herself and
the yaya, Patrocinia Avila, declared that the baby was born in

111
the rented house at Carpenter Street, which birth was
obvisouly normal; that he was such a healthy baby that barely
5 days after his birth, he was already cared for by
said yaya when respondent became sick (pp. 28, 29 & 43,
t.s.n., Sept. 21, 1972); and that when he was between 15 days
and 2 months of age, respondent left him to the care of
the yaya when the former left for Samal for treatment and
returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21,
1972). From the aforestated facts, it can be indubitably said
that the child was a full-term baby at birth, normally delivered,
and raised normally by the yaya. If it were otherwise or if he
were born prematurely, he would have needed special care
like being placed in an incubator in a clinic or hospital and
attended to by a physician, not just a mere yaya. These all
point to the fact that the baby who was born on October 30,
1967 or 7 months from the first sexual encounter between
petitioner and respondent was conceived as early as January,
1967. How then could he be the child of petitioner?
In Our jurisprudence, this Court has been more definite in its
pronouncements on the value of baptismal certificates. It thus
ruled that while baptismal and marriage certificates may be
considered public documents, they are evidence only to prove
the administration of the sacraments on the dates therein
specified but not the veracity of the states or declarations
made therein with respect to his kinsfolk and/or citizenship
(Paa vs. Chan, L-25945, Oct. 31, 1967). Again, in the case
of Fortus vs. Novero (L-22378, 23 SCRA 1331 [1968]), this
Court held that a baptismal administered, in conformity with
the rites of the Catholic Church by the priest who baptized the
child, but it does not prove the veracity of the declarations and
statements contained in the certificate that concern the
relationship of the person baptized. Such declarations and
statements, in order that their truth may be admitted, must
indispensably be shown by proof recognized by law.

The child Rolando is presumed to be the legitimate son of

respondent and her spouse. This presumption becomes
conclusive in the absence of proof that there was physical
impossibility of access between the spouses in the first 120
days of the 300 which preceded the birth of the child. This
presumption is actually quasi-conclusive and may be rebutted
or refuted by only one evidence the physical impossibility of
access between husband and wife within the first 120 days of
the 300 which preceded the birth of the child. This physical
impossibility of access may be caused by any of these:
1. Impotence of the husband;
2. Living separately in such a way that access was
impossible and
3. Serious illness of the husband.
This presumption of legitimacy is based on the assumption
that there is sexual union in marriage, particularly during the
period of conception. Hence, proof of the physical impossibility
of such sexual union prevents the application of the
presumption (Tolentino, Commentaries & Jurisprudence on the
Civil Code, Vol. 1, p. 513 citing Bevilaqua, Familia p. 311).
The modern rule is that, in order to overthrow the presumption
of legitimacy, it must be shown beyond reasonable doubt that
there was no access as could have enabled the husband to be
the father of the child. Sexual intercourse is to be presumed
where personal access is not disproved, unless such
presumption is rebutted by evidence to the contrary; where
sexual intercourse is presumed or proved, the husband must
be taken to be the father of the child (Tolentino, citing Madden,
Persons and Domestic Relations, pp. 340-341).

112
To defeat the presumption of legitimacy, therefore, there must
be physical impossibility of access by the husband to the wife
during the period of conception. The law expressly refers to
physical impossibility. Hence, a circumstance which makes
sexual relations improbable, cannot defeat the presumption of
legitimacy; but it may be proved as a circumstance to
corroborate proof of physical impossibility of access (Tolentino,
citing Bonet 352; 4 Valverde 408).
Impotence refers to the inability of the male organ to
copulation, to perform its proper function (Bouvier's Law
Dictionary 514). As defined in the celebrated case of Menciano
vs. San Jose (89 Phil. 63), impotency is the physical inability to
have sexual intercourse. It is not synonymous with sterility.
Sterility refers to the inability to procreate, whereas, impotence
refers to the physical inability to perform the act of sexual
intercourse. In respect of the impotency of the husband of the
mother of a child, to overcome the presumption of legitimacy
on conception or birth in wedlock or to show illegitimacy, it has
been held or recognized that the evidence or proof must be
clear or satisfactory: clear, satisfactory and convincing,
irresistible or positive (S.C. Tarleton vs. Thompson, 118 S.E.
421, 125 SC 182, cited in 10 C.J.S. 50).
The separation between the spouses must be such as to make
sexual access impossible. This may take place when they
reside in different countries or provinces, and they have never
been together during the period of conception (Estate of
Benito Marcelo, 60 Phil. 442). Or, the husband may be in
prison during the period of conception, unless it appears that
sexual union took place through corrupt violation of or allowed
by prison regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as to
exclude the possibility of his having sexual intercourse with his
wife; such as, when because of a injury, he was placed in a

plaster cast, and it was inconceivable to have sexual

intercourse without the most severe pain (Tolentino, citing
Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p.
515); or the illness produced temporary or permanent
impotence, making copulation impossible (Tolentino, citing Q.
Bonet 352).
Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this
Court ruled that just because tuberculosis is advanced in a
man does not necessarily mean that he is incapable of sexual
intercourse. There are cases where persons suffering from
tuberculosis can do the carnal act even in the most crucial
stage of health because then they seemed to be more inclined
to sexual intercourse. The fact that the wife had illicit
intercourse with a man other than her husband during the
initial period, does not preclude cohabitation between said
husband and wife.
Significantly American courts have made definite
pronouncements or rulings on the issues under consideration.
The policy of the law is to confer legitimacy upon children born
in wedlock when access of the husband at the time of
conception was not impossible (N.Y. Milone vs. Milone, 290
N.Y. S. 863, 160 Misc. 830) and there is the presumption that a
child so born is the child of the husband and is legitimate even
though the wife was guilty of infidelity during the possible
period of conception (N.Y. Dieterich vs. Dieterich, 278 N.Y. S.
645, Misc. 714; both cited in 10 C.J.S., pp. 18,19 & 20).
So firm was this presumption originally that it cannot be
rebutted unless the husband was incapable of procreation or
was absent beyond the four seas, that is, absent from the
realm, during the whole period of the wife's pregnancy (10
C.J.S. p. 20).

113
The presumption of legitimacy of children born during wedlock
obtains, notwithstanding the husband and wife voluntarily
separate and live apart, unless the contrary is shown (Ala.
Franks vs. State, 161 So. 549, 26 . App. 430) and this includes
children born after the separation [10 C.J.S. pp. 23 & 24;
emphasis supplied].
It must be stressed that Article 256 of the Civil Code which
provides that the child is presumed legitimate although the
mother may have declared against its legitimacy or may have
been sentenced as an adulteress has been adopted for two
solid reasons. First, in a fit of anger, or to arouse jealousy in
the husband, the wife may have made this declaration (Power
vs. State, 95 N.E., 660). Second, the article is established as a
guaranty in favor of the children whose condition should not be
under the mercy of the passions of their parents. The husband
whose honor if offended, that is, being aware of his wife's
adultery, may obtain from the guilty spouse by means of
coercion, a confession against the legitimacy of the child which
may really be only a confession of her guilt. Or the wife, out of
vengeance and spite, may declare the as not her husband's
although the statement be false. But there is another reason
which is more powerful, demanding the exclusion of proof of
confession or adultery, and it is, that at the moment of
conception, it cannot be determined when a woman cohabits
during the same period with two men, by whom the child was
begotten, it being possible that it be the husband himself
(Manresa, Vol. I, pp. 503-504).
Hence, in general, good morals and public policy require that a
mother should not be permitted to assert the illegitimacy of a
child born in wedlock in order to obtain some benefit for herself
(N.Y. Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S.
77).

The law is not willing that the child be declared illegitimate to

suit the whims and purposes of either parent, nor Merely upon
evidence that no actual act of sexual intercourse occurred
between husband and wife at or about the time the wife
became pregnant. Thus, where the husband denies having
any intercourse with his wife, the child was still presumed
legitimate (Lynn vs. State, 47 Ohio App. 158,191 N.E. 100).
With respect to Article 257 aforequoted, it must be emphasized
that adultery on the part of the wife, in itself, cannot destroy
the presumption of legitimacy of her child, because it is still
possible that the child is that of the husband (Tolentino, citing 1
Vera 170; 4 Borja 23-24).
It has, therefore, been held that the admission of the wife's
testimony on the point would be unseemly and scandalous,
not only because it reveals immoral conduct on her part, but
also because of the effect it may have on the child, who is in
no fault, but who nevertheless must be the chief sufferer
thereby (7 Am. Jur. Sec. 21, pp. 641-642).
In the case of a child born or conceived in wedlock, evidence
of the infidelity or adultery of the wife and mother is not
admissible to show illegitimacy, if there is no proof of the
husband's impotency or non-access to his wife (Iowa
Craven vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36).
At this juncture, it must be pointed out that only the husband
can contest the legitimacy of a child born to his wife. He is the
one directly confronted with the scandal and ridicule which the
infidelity of his wife produces; and he should decide whether to
conceal that infidelity or expose it, in view of the moral or
economic interest involved (Tolentino, citing Bevilaqua,
Familia, p. 314).

114
The right to repudiate or contest the legitimacy of a child born
in wedlock belongs only to the alleged father, who is the
husband of the mother and can be exercised only by him or
his heirs, within a fixed time, and in certain cases, and only in
a direct suit brought for the purpose (La Ducasse vs.
Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872,
44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied).
Thus the mother has no right to disavow a child because
maternity is never uncertain; she can only contest the Identity
of the child (La Eloi vs. Mader, 1 Rollo. 581, 38 Am. D. 192).
Formerly, declarations of a wife that her husband was not the
father of a child in wedlock were held to be admissible in
evidence; but the general rule now is that they are
inadmissible to bastardize the child, regardless of statutory
provisions obviating incompetency on the ground of interest, or
the fact that the conception was antenuptial. The rule is said to
be founded in decency, morality and public policy (Wallace vs.
Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126
Am. St. Rep. 253,15 Ann. Cas. 761, Am. Jur. 26).
From the foregoing, particularly the testimony of respondent
and her witnesses, this Court has every reason to believe that
Crispin Anahaw was not actually separated from Elizabeth
Mejias; that he was a very potent man, having had four
children with his wife; that even if he and were even separately
(which the latter failed to prove anyway) and assuming, for
argument's sake, that they were really separated, there was
the possibility of physical access to each other considering
their proximity to each other and considering further that
respondent still visited and recuperated in her mother's house
in Samal where her spouse resided with her children.
Moreover, Crispin Anahaw did not have any serious illness or
any illness whatsoever which would have rendered him
incapable of having sexual act with his wife. No substantial

evidence whatsoever was brought out to negate the

aforestated facts.
Crispin Anahaw served as a refuge after respondent's reckless
and immoral pursuits or a "buffer" after her flings. And she
deliberately did not include nor present her husband in this
case because she could not risk her scheme. She had to be
certain that such scheme to bastardize her own son for her
selfish motives would not be thwarted.
This Court finds no other recourse except to deny
respondent's claim to declare her son Rolando the illegitimate
child of petitioner. From all indications, respondent has
paraded herself as a woman of highly questionable character.
A married woman who, on first meeting, rides with a total
stranger who is married towards nightfall, sleeps in his house
in the presence of his children, then lives with him after their
initial sexual contact the atmosphere for which she herself
provided is patently immoral and hedonistic. Although her
husband was a very potent man, she readily indulged in an
instant illicit relationship with a married man she had never
known before.
Respondent had shown total lack of or genuine concern for
her child (Rolando) for, even after birth, she left him in the care
of a yaya for several months. This is not the normal instinct
and behavior of a mother who has the safety and welfare of
her child foremost in her mind. The filing of this case itself
shows how she is capable of sacrificing the psycho-social
future (reputation) of the child in exchange for some monetary
consideration. This is blatant shamelessness.
It also appears that her claim against petitioner is a disguised
attempt to evade the responsibility and consequence of her
reckless behavior at the expense of her husband, her illicit
lover and above all her own son. For this Court to allow,

115
much less consent to, the bastardization of respondent's son
would give rise to serious and far-reaching consequences on
society. This Court will not tolerate scheming married women
who would indulge in illicit affairs with married men and then
exploit the children born during such immoral relations by
using them to collect from such moneyed paramours. This
would be the form of wrecking the stability of two families. This
would be a severe assault on morality.
And as between the paternity by the husband and the paternity
by the paramour, all the circumstances being equal, the law is
inclined to follow the former; hence, the child is thus given the
benefit of legitimacy.
Finally, Article 220 of the Civil Code reinforces the aforesaid
principle when it provides thus:
Art. 220. In case of doubt, an presumptions favor the
solidarity of the family. Thus, every of law or facts leans
toward the validity of marriage, the indissolubility of the
marriage bonds, the legitimacy of childrenthe
community of property during marriage, the authority of
parents over their children, and the validity of defense
for any member of the family in case of unlawful
aggression.
WHEREFORE, THE DECISION OF THE COURT OF
APPEALS DATED JUNE 2, 1978, AND ITS RESOLUTION
DATED NOVEMBER 6, 1978 ARE HEREBY REVERSED AND
SET ASIDE. COSTS AGAINST PRIVATE RESPONDENT.
SO ORDERED.

SECOND DIVISION

G.R. No. L-49162

July 28, 1987

JANICE MARIE JAO, represented by her mother and

guardian ad litem, ARLENE S. SALGADO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and PERICO V.
JAO, respondents.
PADILLA, J.:
Appeal by certiorari from the decision* of the Court of Appeals
in CA-G.R. No. 51078-R, dated 29 August 1978, which
dismissed petitioner"s action for recognition and support
against private respondent, and from the respondent Court"s
resolution, dated 11 October 1978, denying petitioner"s motion
for reconsideration of said decision.
On 28 October 1968, petitioner Janice Marie Jao, then a
minor, represented by her mother and guardian-ad-litemArlene
Salgado, filed a case for recognition and support with the
Juvenile and Domestic Relations Court against private
respondent Perico V. Jao. The latter denied paternity so the
parties agreed to a blood grouping test which was in due
course conducted by the National Bureau of Investigation
(NBI) upon order of the trial court. The result of the blood
grouping test, held 21 January 1969, indicated that Janice
could not have been the possible offspring of Perico V. Jao
and Arlene S. Salgado.1
The trial court initially found the result of the tests legally
conclusive but upon plaintiff"s (herein petitioner"s) second
motion for reconsideration, it ordered a trial on the merits, after
which, Janice was declared the child of Jao, thus entitling her
to his monthly support.

116
Jao appealed to the Court of Appeals, questioning the trial
court"s failure to appreciate the result of the blood grouping
tests. As there was no showing whatsoever that there was any
irregularity or mistake in the conduct of the tests, Jao argued
that the result of the tests should have been conclusive and
indisputable evidence of his non-paternity.
The Court of Appeals upheld Jao"s contentions and reversed
the trial court"s decision. In its decision, the Court of Appeals
held:
From the evidence of the contending parties, it appears
undisputed that JAO was introduced to ARLENE at the
Saddle and Sirloin, Bay Side Club, by Melvin Yabut.
After this meeting, JAO dated and courted ARLENE.
Not long thereafter, they had their first sexual
intercourse and subsequently, they lived together as
husband and wife. ...
It further appears undisputed that in April 1968, JAO
accompanied ARLENE to the Marian General Hospital
for medical check-up and her confinement was with
JAO"s consent. JAO paid the rentals where they lived,
the salaries of the maids, and other household
expenses. ...
The record discloses that ARLENE gave birth to
JANICE on August 16, 1968, after completing 36
weeks of pregnancy, which indicates that ARLENE
must have conceived JANICE on or about the first
week of December, 1967. "Thus, one issue to be
resolved in this appeal is whether on or about that time,
JAO and ARLENE had sexual intercourse and were
already living with one another as husband and wife.

In this connection, ARLENE contends that she first met

JAO sometime in the third or fourth week of November,
1967 at the Saddle and Sirloin, Bayside Club; that after
several dates, she had carnal knowledge with him at
her house at 30 Long beach, Merville, Paranaque.
Rizal in the evening of November 30, 1967, and that he
started to live with her at her dwelling after December
16, 1967, the date they finished their cruise to Mindoro
Island.
On the other hand, JAO, albeit admitting that he met
ARLENE at the Saddle and Sirloin, Bayside Club,
however, maintains that this was on December 14,
1967 because the day following, he and his guests:
ARLENE, Melvin Yabut, Didi Crescini and Charlie
Litonjua went to Mindoro by boat. He dated ARLENE
four times in January, 1968. He remembered he had
carnal knowledge of her for the first time on January
18, 1968, because that was a week after his birthday
and it was only in May, 1968 that he started cohabiting
with her at the Excelsior Apartments on Roxas
Boulevard.
These conflicting versions of the parties emphasize, in
resolving the paternity of JANICE, the role of the blood
grouping tests conducted by the NBI and which
resulted in the negative finding that in a union with
ARLENE, JAO could not be the father of JANICE.
We cannot sustain the conclusion of the trial court that
the NBI is not in a position to determine with
mathematical precision the issue of parentage by blood
grouping test, considering the rulings of this Court ...
where the blood grouping tests of the NBI were
admitted; especially where, in the latter case, it was Dr.
Lorenzo Sunico who conducted the test and it appears

117
that in the present case, the same Dr. Sunico approved
the findings and report. ... In Co Tao vs. Court of
Appeals, 101 Phil. 188, the Supreme Court had given
weight to the findings of the NBI in its blood grouping
test. Thus, it cannot be gainsaid that the competency of
the NBI to conduct blood grouping tests has been
recognized as early as the 1950"s.

type may have been the father of the child. But

the Uniform Act recognizes that the tests may
have some probative value to establish
paternity where the blood type and the
combination in the child is shown to be rare, in
which case the judge is given discretion to let it
in (I Jones on Evidence, 5th Ed., pp. 193-194).

The views of the Court on blood grouping tests may be

stated as follows:

In one specific biological trait, viz, blood groups,

scientific opinion is now in accord in accepting
the fact that there is a causative relation
between the trait of the progenitor and the trait
of the progeny. In other words, the blood
composition of a child may be some evidence
as to the child"s paternity. But thus far this trait
(in the present state of scientific discovery as
generally accepted) can be used
only negativelyi.e. to evidence that a particular
man F is not the father of a particular child C. (I
Wigmore on Evidence 3rd Ed., pp. 610-611).

Paternity Science has demonstrated that by

the analysis of blood samples of the mother, the
child, and the alleged father, it can be
established conclusively that the man is not the
father of the child. But group blood testing
cannot show that a man is the father of a
particular child, but at least can show only a
possibility that he is. Statutes in many states,
and courts in others, have recognized the value
and the limitations of such tests. Some of the
decisions have recognized the conclusive
presumption of non-paternity where the results
of the test, made in the prescribed manner,
show the impossibility of the alleged paternity.
This is one of the few cases in which the
judgment of the Court may scientifically be
completely accurate, and intolerable results
avoided, such as have occurred where the
finding is allowed to turn on oral testimony
conflicting with the results of the test.
The findings of such blood tests are not
admissible to prove the fact of paternity as they
show only a possibility that the alleged father or
any one of many others with the same blood

In a last ditch effort to bar the admissibility and

competency of the blood test, JANICE claims that
probative value was given to blood tests only in cases
where they tended to establish paternity; and that there
has been no case where the blood test was invoked to
establish non-paternity, thereby implying that blood
tests have probative value only when the result is a
possible affirmative and not when in the negative. This
contention is fallacious and must be rejected. To
sustain her contention, in effect, would be recognizing
only the possible affirmative finding but not the blood
grouping test itself for if the result were negative, the
test is regarded worthless. Indeed, this is illogical. ....
As an admitted test, it is admissible in subsequent

118
similar proceedings whether the result be in the
negative or in the affirmative. ...
The Court of Appeals also found other facts that ran contrary
to petitioner"s contention that JAO"s actions before and after
JANICE was born were tantamount to recognition. Said the
respondent appellate court:
On the contrary, after JANICE was born, JAO did not
recognize her as his own. In fact, he filed a petition that
his name as father of JANICE in the latter"s certificate
of live birth be deleted, evidencing his repudiation,
rather than recognition. The mere acts of JAO in
cohabiting with ARLENE, the attention given to her
during her pregnancy and the financial assistance
extended to her cannot overcome the result of the
blood grouping test. These acts of JAO cannot be
evaluated as recognizing the unborn JANICE as his
own as the possession of such status cannot be
founded on conjectures and presumptions, especially
so that, We have earlier said, JAO refused to
acknowledge JANICE after the latter"s birth.
JAO cannot be compelled to recognize JANICE based
on paragraph 2 of Article 283 in relation to Article 289
of the New Civil Code which provides: "When the child
is in continuous possession of status of a child of the
alleged father by the direct acts of the latter.
Nor can there be compulsory recognition under
paragraphs 3 or 4 of said article which states:
(3) When the child was conceived during the
time when the mother cohabited with the
supposed father;

(4) When the child has in his favor any evidence

or proof that the defendant is his father.
As aptly appreciated by the court below, JANICE could
have been conceived from November 20, 1967 to
December 4, 1967. Indeed, ARLENE claims that her
first sexual intercourse with JAO was on November 30,
1967 while the latter avers it was one week after
January 18, 1968. However, to satisfy paragraph 3 as
above-quoted, JANICE must have been conceived
when ARLENE and JAO started to cohabit with one
another. Since ARLENE herself testified that their
cohabitation started only after December 16, 1967,
then it cannot be gainsaid that JANICE was not
conceived during this cohabitation. Hence, no
recognition will lie. Necessarily, recognition cannot be
had under paragraph 4 as JANICE has no other
evidence or proof of her alleged paternity.
Apart from these, there is the claim of JAO that, at the
critical time of conception, ARLENE had carnal
knowledge with two other men: "Oying" Fernandez and
Melvin Yabut, which was not even rebutted; and
considering that it was Melvin Yabut, who introduced
ARLENE to JAO at the Bayside Club. Moreover, the
testimony of ARLENE is not wholly reliable. When the
trial court said that "the Court is further convinced of
plaintiff"s cause by ARLENE"s manner of testifying in a
most straight-forward and candid manner," the fact that
ARLENE was admittedly a movie actress may have
been overlooked so that not even the trial court could
detect, by her acts, whether she was lying or not.
WHEREFORE, the judgment appealed from is hereby
set aside and a new one entered dismissing plaintiff-

119
appellee"s complaint. Without pronouncement as to
costs. SO ORDERED.
The petitioner now brings before this Court the issue of
admissibility and conclusiveness of the result of blood
grouping tests to prove non-paternity.
In this jurisdiction, the result of blood tests, among other
evidence, to, affirm paternity was dealt with in Co Tao v. Court
of Appeals,2 an action for declaration of filiation, support and
damages. In said case, the NBI expert"s report of the blood
tests stated that "from their blood groups and types, the
defendant Co Tao is a possible father of the child." From this
statement the defendant contended that the child must have
been the child of another man. The Court noted: "For obvious
reasons, the NBI expert cannot give assurance that the
appellant was the father of the child; he can only give his
opinion that he is a "possible father." This possibility, coupled
with the other facts and circumstances brought out during the
trial, tends to definitely establish that appellant Co Tao is the
father of the child Manuel."3
Where the issue is admissibility and conclusiveness of blood
grouping tests to disprove paternity, rulings have been much
more definite in their conclusions. For the past three decades,
the use of blood typing in cases of disputed parentage has
already become an important legal procedure. There is now
almost universal scientific agreement that blood grouping tests
are conclusive as to non-paternity, although inconclusive as to
paternity that is, the fact that the blood type of the child is a
possible product of the mother and alleged father does not
conclusively prove that the child is born by such parents; but, if
the blood type of the child is not the possible blood type when
the blood of the mother and that of the alleged father are
crossmatched, then the child cannot possibly be that of the
alleged father.4

In jurisdictions like the United States, the admissibility of blood

tests results to prove non-paternity has already been passed
upon in several cases. In Gilpin v. Gilpin5 the positive results of
blood tests excluding paternity, in a case in which it was shown
that proper safeguards were drawn around the testing
procedures, were recognized as final on the question of
paternity. In Cuneo v. Cuneo6 evidence of non-paternity
consisting of the result of blood grouping tests was admitted
despite a finding that the alleged father had cohabited with the
mother within the period of gestation. The Court said that the
competent medical testimony was overwhelmingly in favor of
the plaintiff, and to reject such testimony would be tantamount
to rejecting scientific fact. Courts, it was stated, should apply
the results of science when competently obtained in aid of
situations presented, since to reject said result was to deny
progress.7 This ruling was also echoed in Clark v.
Rysedorph,8 a filiation proceeding where an uncontradicted
blood grouping test evidence, excluding paternity, was held
conclusive.9 Legislation expressly recognizing the use of blood
tests is also in force in several states.10 Tolentino,11 affirms this
rule on blood tests as proof of non-paternity, thus
Medical science has shown that there are four types of
blood in man which can be transmitted through
heredity. Although the presence of the same type of
blood in two persons does not indicate that one was
begotten by the other, yet the fact that they are of
different types will indicate the impossibility of one
being the child of the other. Thus, when the supposed
father and the alleged child are not in the same blood
group, they cannot be father and child by
consanguinity. The Courts of Europe today regard a
blood test exclusion as an unanswerable and
indisputable proof of non-paternity. 12
Moreover,

120
The cohabitation between the mother and the
supposed father cannot be a ground for compulsory
recognition if such cohabitation could not have
produced the conception of the child. This would be the
case, for instance, if the cohabitation took place outside
of the period of conception of the child. Likewise, if it
can be proved by blood tests that the child and the
supposed father belong to different blood groups, the
cohabitation by itself cannot be a ground for
recognition. 13
Petitioner has attempted to discredit the result of the blood
grouping tests in the instant case by impugning the
qualifications of the NBI personnel who performed the tests
and the conduct of the tests themselves. Her allegations, in
this regard, appear to be without merit. The NBI"s forensic
chemist who conducted the tests is also a serologist, and has
had extensive practice in this area for several years. The blood
tests were conducted six (6) times using two (2) scientifically
recognized blood grouping systems, the MN Test and the ABO
System,14 under witness and supervision.15
Even the allegation that Janice was too young at five months
to have been a proper subject for accurate blood tests must
fall, since nearly two years after the first blood test, she,
represented by her mother, declined to undergo the same
blood test to prove or disprove their allegations, even as Jao
was willing to undergo such a test again.161avvphi1
Accordingly, the Court affirms the decision of the Court of
Appeals and holds that the result of the blood grouping tests
involved in the case at bar, are admissible and conclusive on
the non-paternity of respondent Jao vis-a-vis petitioner Janice.
No evidence has been presented showing any defect in the
testing methods employed or failure to provide adequate
safeguards for the proper conduct of the tests. The result of

such tests is to be accepted therefore as accurately reflecting

a scientific fact.
In view of the findings of fact made by the Court of Appeals, as
heretofore quoted, which are binding on this Court, we do not
find it necessary to further pass upon the issue of recognition
raised by petitioner.
WHEREFORE, the instant petition for review is hereby denied.
Without pronouncement as to costs.
SO ORDERED.
Footnotes
*

Penned by Justice Corazon Juliano-Agrava with the

concurrence of Justices Crisolito Pascual and Rafael
C. Climaco.
1

Biology Report No. B-69-14; Rollo at 42.

101 Phil.188(1957).

Id at 193.

Guyton, TEXTBOOK OF MEDICAL PHYSIOLOGY 88

(6th ed., 1981); Solis, LEGAL MEDICINE 435 (1964),
5

197 Misc. 319, 94 NYS2d 706 (1950).

198 Misc. 240, 96 NYS2d 899 (1950).

Id at 906.

118 NYS2d 103 (1952).

121
9

Id at 106.

10

UNIF. Uniform Act on Blood Tests to Determine

Paternity 9 U.L.A. "55 P.P. 12 (1956). Sec. 4 of the Act
states: "Effect of Test Results" If the court finds that
the conclusions of al the experts, as disclosed by the
evidenced based upon the tests, are that the alleged
father is not the father of the child, the question of
paternity shall be resolved accordingly. If the experts
disagree in their findings or conclusions, the question
shall be submitted upon all the evidence. If the experts
conclude that the blood tests show the possibility of the
alleged father"s paternity, admission of this evidence is
within the discretion of the court, depending upon the
infrequency of the blood type."
11

I COMMENTARIES AND JURISPRUDENCE ON

THE CIVIL CODE, 1983 ed.

FIRST DIVISION

G.R. No. L-83942 December 29, 1988

ROMEO S. AMURAO, petitioner,
vs.
HON. COURT OF APPEALS and ROMUEL JEROME
BUENAVENTURA, represented by her natural mother and
guardian ad litem FE ROSARIO
BUENAVENTURA, respondents.

12

Id at 546.

GRINO-AQUINO, J.:

13

Id at 606.

The petitioner was sued for support by the offspring of his illicit
relations with a 19-year old college student. The petitioner
denied paternity and refused to give support.

14

Wiener, III ADVANCES IN BLOOD GROUPING 267

1970).
15

16

T.S.N., 9 Dec. 1970, pp. 56-59; 63-64; 75-80

Manifestation dated 15 February 1971; Record on

Appeal, p. 110.

At the commencement of the trial on July 25, 1977, the trial

court made a
last-minute effort to simplify the issues by calling the parties
and their counsel to a conference in her chambers. The result
was an agreement of the parties, a gist of which was written
down in the minutes of the hearing, duly signed by the parties
and their counsel, attested by the Deputy Clerk of Court, and
embodied in the court's order of September 26, 1977 as
follows:

122
When this case was called for trial this morning,
parties jointly moved for a conference in
chambers. The same was granted. After said
conference, parties agreed to submit
themselves to a blood-grouping test to
determine the paternity of plaintiff before the
National Bureau of Investigation; and to be
bound by the results of the said government
agency in the following manner: a) if the finding
is to the effect that herein plaintiff may be the
offspring of defendant, paternity shall be
admitted and this case will proceed for trial only
on the issue of amount of support; and b) if the
finding is negative, then this case shall be
dismissed without further trial. The Court finds
the same well taken.
WHEREFORE, plaintiff-minor. his natural
mother and defendant are hereby ordered to
submit themselves to a blood-grouping test
before the National Bureau of Investigation on
or before October 17, 1977 at 10:00 o'clock in
the morning for a determination of plaintiffs
paternity. (Emphasis supplied.) (pp. 29-30,
Original Records; p. 20, Rollo.)
On the basis of the blood grouping tests performed by the
National Bureau of Investigation (NBI), the NBI submitted to
the Court Report No. 77-100 dated October 17, 1977, finding
that:
The said child (Romuel Jerome Buenaventura)
is a possible offspring of the alleged father
Romeo Amurao with Fe Rosario Buenaventura
as the natural mother. (p. 20, Rollo.)

Exactly one year later, on September 26, 1978, the petitioner

filed a motion for reconsideration of the court's order dated
September 26, 1977, impugning its validity. The motion was
denied by the trial court. The petitioner sought a review of the
order by the Supreme Court through a petition for certiorari
(G.R. No. 51407). The petition was denied by this Court on
May 4, 1980.
A motion to declare the petitioner in contempt of court for
failure to pay support pendente lite was filed by the private
respondent minor. At the hearing of the contempt motion the
parties presented evidence on the petitioner's capability to give
support. After the hearing on the contempt motion, the case
was set for trial on July 8, 1983, with due notice to both
parties, for the presentation of further evidence by the
petitioner (defendant) on the main case. However, neither the
petitioner, nor his counsel, appeared at the hearing. The court
declared the case submitted for decision. On August 8, 1985, it
rendered judgment for the private respondent ordering the
petitioner to pay the former support of P500 per month plus
attorney's fees of P3,000, and costs.
Petitioner appealed to the Court of Appeals (CA-G.R. No. CV
07645) which rendered judgment on March 7, 1988, as
follows:
WHEREFORE, judgment appealed from is
hereby AFFIRMED with the modification that
the support fixed in the judgment appealed from
is increased to One Thousand Five Hundred
(P1,500.00) Pesos, payable within the first five
days of each month at the plaintiffs residence.
Defendant-appellant is hereby ordered to pay
support pendente lite of P200.00 in arrears
since October 1978 up to the termination of this

123
appeal. Costs against defendant-appellant. (p.
24, Rollo.)
Once more, the case is before Us for review upon a petition
alleging that the Court of Appeals erred:
1. in finding that the petitioner had admitted his
paternity in relation to the minor Romuel
Jerome Buenaventura and that hence said
minor is entitled to receive support from him;
2. in upholding the trial court's decision based
on the evidence (consisting among others of the
petitioner's balance sheets, audit reports and
admissions regarding his income) presented by
the parties at the hearing of the plaintiffs
contempt motion;
3. in increasing the amount of support granted
by the trial court; and
4. in applying Article 290 of the Civil Code
instead of Articles 296 and 297 of the same
Code.
The petition for review is devoid of merit.
The first, second, third, and fourth issues raised by the petition
are factual issues which this Court may not review under Rule
45 of the Rules of Court.
Whether or not the petitioner made an admission of paternity
under the terms of the trial court's order dated September 26,
1977, thereby binding himself to give support to his child, the
private respondent herein, is a finding of fact.

So is the Court's determination of the amount of support

payable to the private respondent. It was perfectly proper for
the Court to consider the evidence presented by the parties at
the hearing of the plaintiff s contempt motion against the
defendant, as evidence also on the merits of the main case.
The parties did not have to repeat the ritual of presenting the
same evidence all over again to the court. The defendant
(herein petitioner), by failing to appear at the hearing of the
main case on July 8, 1983 (p. 17, Rollo), waived his right to
adduce additional evidence. Hence, he may not be heard to
complain that he was denied due process.
Whether or not the Court of Appeals correctly determined that
the minor, who filed his action for support in 1977 when he
was only an infant five (5) months old, is now (as an 11-year
old student) entitled to an increase in the amount of support
awarded to him by the trial court, is also a factual issue which
We may not re-examine and review.
In any event, We find no reversible error in the decision of the
Court of Appeals. The increase in the child's support is proper
and is sanctioned by the provisions of Articles 290, 296 and
297 of the Civil Code.
WHEREFORE, the petition is denied for lack of merit. This
decision is immediately executory.
SO ORDERED.

124

FIRST DIVISION
G.R. No. L-75377 February 17, 1988
CHUA KENG GIAP, petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT and CHUA
LIAN KING respondents.

CRUZ, J.:
We are faced once again with still another bid by petitioner for
the status of a legitimate heir. He has failed before, and he will
fail again.
In this case, the petitioner insists that he is the son of the
deceased Sy Kao and that it was error for the respondent
court to reject his claim. He also says his motion for
reconsideration should not have been denied for tardiness
because it was in fact filed on time under the Habaluyas
ruling. 1
This case arose when Chua Keng Giap filed on May 19, 1983,
a petition for the settlement of the estate of the late Sy Kao in
the regional trial court of Quezon City. The private respondent
moved to dismiss for lack of a cause of action and of the
petitioner's capacity to file the petition. The latter, it was
claimed, had been declared as not the son of the spouses
Chua Bing Guan and Sy Kao in S.P. No. Q-12592, for the

125
settlement of the estate of the late Chua Bing Guan. The
decision in that case had long become final and executory. 2

Sy Kao and the deceased but of a certain Chua

Eng Kun and his wife Tan Kuy.

The motion was denied by Judge Jose P. Castro, who held

that the case invoked decided the paternity and not the
maternity of the petitioner. 3 Holding that this was mere
quibbling, the respondent court reversed the trial judge in a
petition for certiorari filed by the private respondent. 4 The
motion for reconsideration was denied for late filing. 5 The
petitioner then came to this Court to challenge these rulings.

After hearing on the merits which lasted for ten

years, the court dismissed the respondent's
petition on March 2, 1979 on a finding that he is
not a son of petitioner Sy Kao and the
deceased, and therefore, had no lawful interest
in the estate of the latter and no right to institute
the intestacy proceedings.

The petitioner argues at length that the question to be settled

in a motion to dismiss based on lack of a cause of action is the
sufficiency of the allegation itself and not whether these
allegations are true or not, for their truth is hypothetically
admitted. 6 That is correct. He also submits that an order
denying a motion to dismiss is merely interlocutory and
therefore reversible not in a petition for certiorari but on
appeal. 7 That is also correct Even so, the petition must be and
is hereby denied.

The respondent tried to appeal the court's

resolution but his appeal was denied by the
lower court for having been filed out of time. He
then filed a mandamus case with the Court of
appeals but the same was dismissed.
Respondent, therefore, sought relief by filing a
petition for certiorari, G.R. No. 54992, before
this Court but his petition was likewise
dismissed on January 30, 1982, for lack of
merit. His subsequent motions for
reconsideration met a similar fate.

The petitioner is beating a dead horse. The issue of his

claimed filiation has long been settled, and with finality, by no
less than this Court. That issue cannot be resurrected now
because it has been laid to rest in Sy Kao v. Court of
Appeals, 8 decided on September 28, 1984. In that case, Sy
Kao flatly and unequivocally declared that she was not the
petitioner's mother.
The Court observed through Justice Hugo E. Gutierrez, Jr.
Petitioner Sy Kao denies that respondent Chua
Keng Giap is her son by the deceased Chua
Bing Guan. Thus, petitioner's opposition filed on
December 19, 1968, is based principally on the
ground that the respondent was not the son of

xxx xxx xxx

To allow the parties to go on with the trial on the
merits would not only subject the petitioners to
the expense and ordeal of obligation which
might take them another ten years, only to
prove a point already decided in Special
Proceeding No. Q-12592, but more importantly,
such would violate the doctrine of res
judicata which is expressly provided for in
Section 49, Rule 39 of the Rules of Court.

126
There is no point in prolonging these proceedings with an
examination of the procedural objections to the grant of the
motion to dismiss. In the end, assuming denial of the motion,
the resolution of the merits would have to be the same anyway
as in the aforesaid case. The petitioner's claim of filiation
would still have to be rejected.

6 Id., p. 62. Id., pp. 127-130, 156-161.

7 Id., pp. 36-38.
8 132 SCRA 302.
FIRST DIVISION

Discussion of the seasonableness of the motion for

reconsideration is also unnecessary as the motion would have
been validly denied just the same even if filed on time.
Who better than Sy Kao herself would know if Chua Keng
Giap was really her son? More than any one else, it was Sy
Kao who could say as indeed she has said these many
years--that Chua Keng Giap was not begotten of her womb.

G.R. No. L-69679 October 18, 1988

1 Petition.

VIOLETA CABATBAT LIM, LIM BIAK CHIAO and

CALASIAO BIJON FACTORY, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, CONSORCIA
FRIANEZA GOLEA, MARIA FRIANEZA VERGARA,
BENEDICTA FRIANEZA MAYUGBA BONIFACIA FRIANEZA
HEIRS OF DOMINGO FRIANEZA namely, DECIDERIA Q.
VDA. DE FRIANEZA FRANCISCO, DONA, VILMA and
DECIDERIA, all surnamed FRIANEZA HEIRS OF DANIEL
FRIANEZA namely, ADELA V. VDA. DE FRIANEZA in her
behalf and as Guardian ad litem of Minors, DARLENE,
DANIEL JR., DUSSEL and DAISY GLEN, all surnamed
FRIANEZA respondents.

2 Rollo, pp. 184, 108, 54.

Ethelwoldo R. de Guzman for petitioners.

3 Ibid., p. 50.

Tomas B. Tadeo, Sr. for private respondents.

4 Id., pp. 52-60, Decision penned by Kapunan,

J., and concurred in by Sison, Lazaro and Cruz
JJ.

GRIO-AQUINO, J.:

WHEREFORE, the petition is DENIED, with costs against the

petitioner. It is so ordered.
Teehankee, C.J., Narvasa, Gancayco and Grio-Aquino, JJ.,
concur.
Footnotes

5 Id., p. 62.

127
This case involves a contest over the estate of the late Dra.
Esperanza Cabatbat wherein the protagonists are her sisters
and the children of her deceased brothers on one hand, and
the petitioner Violeta Cabatbat Lim who claims to be her only
child.
Petitioners Violeta Cabatbat Lim, her husband Liam Biak
Chiao, and the Calasiao Bijon Factory assail the decision
dated October 25, 1984 of the Intermediate Appellate Court,
now Court of Appeals (AC-G.R. No. CV 67055), which affirmed
the trial court's decision finding that petitioner Violeta Cabatbat
Lim is not the off-spring, hence, not a legal heir of the late
Esperanza Cabatbat.
The private respondents, sisters of the late Esperanza
Frianeza-Cabatbat, filed a complaint in the Court of First
Instance of Pangasinan (Civil Case No. D-3841), praying for
the partition of the estate of Esperanza Frianeza Cabatbat,
who died without issue on April 23, 1977. Part of her estate
was her interest in the business partnership known as
Calasiao Bijon Factory, now in the possession of Violeta
Cabatbat Lim who claims to be the child of the spouses
Esperanza and Proceso Cabatbat.
Esperanza Frianeza-Cabatbat was survived by her husband,
Proceso Cabatbat, her sisters, Consorcia Maria, Benedicta,
Bonifacia, all surnamed Frianeza and the children of her
deceased brothers Daniel and Domingo. In their complaint, the
private respondents alleged that Violeta Cabatbat Lim is not a
child of Esperanza, but was only a ward (ampon) of the
spouses Esperanza and Proceso Cabatbat who sheltered and
supported her from childhood, without benefit of formal
adoption proceedings.
Private respondents' evidence on the non-filiation of Violeta to
Esperanza Cabatbat were: 1) the absence of any record that

Esperanza Cabatbat was admitted in the hospital where

Violeta was born and that she gave birth to Violeta on the day
the latter was born; 2) the absence of the birth certificate of
Violeta Cabatbat in the files of certificates of live births of the
Pangasinan Provincial Hospital for the years 1947 and 1948,
when Violeta was supposedly born; 3) certification dated
March 9, 1977, of the Civil Registry coordinator Eugenio Venal
of the Office of the Civil Registrar General, that his office has
no birth record of Violeta Cabatbat alleged to have been born
on May 26, 1948 or 1949 in Calasiao, Pangasinan; 4)
certification dated June 16, 1977 of Romeo Gabriana,
Principal II, that when Violeta studied in the Calasiao Pilot
Central School, Proceso Cabatbat and Esperanza Cabatbat
were listed as her guardians only, not as her parents; 5)
testimony of Amparo Reside that she was in the Pangasinan
Provincial Hospital on May 21,1948 to watch a cousin who
delivered a child there and that she became acquianted with a
patient named Benita Lastimosa who gave birth on May 26,
1948 to a baby girl who grew up to be known as Violeta
Cabatbat.
Pitted against the evidence of the plaintiffs are the evidence of
herein petitioners consisting of. 1) Violeta Cabatbat's birth
record which was filed on June 15,1948 showing that she was
born on May 26, 1948 at the Pangasinan Provincial Hospital
and that she is a legitimate child of the spouses Proceso and
Esperanza Cabatbat; 2) testimony of Proceso Cabatbat that
Violeta is his child with the deceased Esperanza Frianeza; 3)
testimony of Benita Lastimosa denying that she delivered a
child in the Pangasinan Provincial Hospital and that Violeta
Cabatbat Lim is that child; 4) the marriage contract of Violeta
and Lim Biak Chiao where Esperanza appeared as the mother
of the bride; 5) Deed of Sale dated May 14, 1960, wherein the
vendee Violeta Cabatbat, then a minor, was represented and
assisted by her "mother," Dra. Esperanza Cabatbat; and 6)
another Deed of Absolute Sale dated April 21, 1961, wherein

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Violeta Cabatbat was assisted and represented by her "father,"
Proceso Cabatbat.
Upon the evidence, the trial court held on August 10, 1979 that
Violeta Cabatbat is not a child by nature of the spouses
Esperanza and Proceso Cabatbat and that hence, she is not a
legal heir of the deceased Esperanza Cabatbat. The
dispositive portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered as
follows:
(1) Finding that defendant VIOLETA CABATBAT LIM is
not a child by nature of the spouses, decedent
Esperanza Frianeza and defendant Proceso Cabatbat,
and not a compulsory heir of the said decedent;
(2) Declaring that the heirs of the decedent are her
surviving husband, defendant Proceso Cabatbat and
her sisters, plaintiffs Consorcia MARIA, BENEDICTA
alias JOVITA, and BONIFACIA alias ANASTACIA, all
surnamed FRIANEZA her brothers deceased DANIEL
FRIANEZA represented by his surviving spouse, Adela
Vda. de Frianeza, and their children, Darlene, Daniel,
Jr., Dussel and Daisy Glen, all surnamed FRIANEZA
and deceased DOMINGO FRIANEZA represented by
his surviving spouse Decideria Q. Vda. de Frianeza
and their children, Francisco, Dona, Vilma and
Decideria, all surnamed FRIANEZA

(3) Finding that the estate left by the decedent are the
thirty properties enumerated and described at pages
13 to 19 supra and an equity in the Calasiao Bijon
Factory in the sum of P37,961.69 of which P13,221.69
remains after advances obtained by the deceased
during her lifetime and lawful deductions made after
her death;
(4) That of the real properties adverted to above, threefourth (3/4) pro- indiviso is the share of defendant
Proceso Cabatbat, as the surviving spouse, one-half
() as his share of the conjugal estate and one-half ()
of the remaining one-half as share as heir from his wife
(decedent's) estate, while the remaining one-half () of
the other half is the group share of the heirs of the
brothers and sisters of his wife and of the children of
the latter if deceased, whose names are already
enumerated hereinbefore in the following proportions:
one-sixth (1/6) each pro-indiviso to Consorcia Maria,
Benedicta alias Jovita, and Bonifacia alias Anastacia;
one-sixth (1/6) to Adela B. Vda. de Fraineza Darlene,
Daniel, Jr., Dussel and Daisy Glen, as a group in
representation of deceased brother DANIEL
FRIANEZA and one. sixth (1/6) to Decideria Q. Vda. de
Frianeza, Francisco, Dona, Vilma and Decideria as a
group in representation of deceased brother
DOMINGO FRIANEZA
(5) That of the balance of the equity of the deceased in
the CALASIAO BIJON FACTORY in the sum of
P13,221.69, three-fourths (3/4) or P9,916.29 is the
share of Proceso Cabatbat as surviving spouse and as
heir of his deceased wife, and the remaining one-fourth
(1/4) to the plaintiffs under the sharing already stated in
the preceding paragraph; (a) but because defendant
Proceso Cabatbat has overdrawn his share he is

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ordered to return to the estate the sum of P796.34 by
depositing the same with the Clark of Court; and (b)
defendant Violeta Cabatbat Lim, not being an heir, is
ordered to return to the estate the sum of P2,931.13
half of what she and her codefendant Proceso
Cabatbat withdrew from the equity of the deceased
under Exhibit 29, receipt dated April 30, 1977;
(6) Ordering jointly defendant a Proceso Cabatbat and
Violeta Cabatbat Lim to pay attorney's fees in the sum
of P5,000.00, the sum of P4,000.00 from defendant
Proceso Cabatbat and Pl,000.00 from defendant
Violeta Cabatbat Lim, and litigation expenses in the
sum of Pl,000.00 from defendant Proceso Cabatbat
and P200.00 from defendant Violeta Cabatbat Lim, to
the plaintiffs, and to pay the costs.
SO ORDERED. (pp. 236-239, Record on Appeal.)
Petitioners appealed to the Intermediate Appellate Court which
affirmed the decision of the trial court on October 25, 1984.
A motion for reconsideration filed by the petitioners was denied
by the Intermediate Appellate Court.
Petitioners have elevated the decision to Us for review on
certiorari, alleging that the Intermediate Appellate Court erred:
1. In finding that petitioner is not the child of Prospers
and Esperanza Cabatbat;
2. In ignoring the provisions of Section 22 of Rule 132,
Rules of Court;
3. In not considering the provision of Article 263 of the
New Civil Code;

4. In disregarding Exhibits 8, 9, 10, and 11 of petitioner

Violeta Cabatbat Lim
Petitioners' first and fourth assignments of error raise factual
issues. The finding of the trial court and the Court of Appeals
that Violeta Cabatbat was not born of Esperanza Cabatbat is a
factual finding based on the evidence presented at the trial,
hence, it is conclusive upon Us. Well entrenched is the rule
that "factual findings of the trial court and the Court of Appeals
are entitled to great respect" (Vda. de Roxas vs. IAC, 143
SCRA 77; Republic vs. IAC, 144 SCRA 705). Section 22, Rule
132 of the Rules of Court which provides that: "Where a
private writing is more than thirty years old, is produced from a
custody in which it would naturally be found if genuine, and is
unblemished by any alterations or circumstances of suspicion,
no other evidence of its execution and authenticity need be
given" does not apply to petitioners' Exhibit "5," the supposed
birth registry record of defendant Violeta Cabatbat showing
that she was born on May 26,1948, at the Pangasinan
Provincial Hospital in Dagupan City, and that her father and
mother are Proceso Cabatbat and Esperanza Frianeza,
respectively. In rejecting that document, the trial court
pointedly observed:
This is very strange and odd because the Registry
Book of admission of the hospital does not show that
Esperanza Frianeza was ever a patient on May 26,
1948. Indeed, Esperanza Frianeza was never admitted
in the hospital as an obstetrics case before or after May
26, 1948, that is from December 1, 1947 to June 15,
1948 (Stipulation of Facts, Pre-Trial Order of May 23,
1977, Record on Appeal, p. 117).
On May 26, 1948, the day defendant Violeta Cabatbat
was alleged to have been delivered by Esperanza
Frianeza in the Pangasinan Provincial Hospital, the

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records of the hospital show that only one woman by
the same of the Benita Lastimosa of Tagudin, Ilocos
Sur, not Esperanza Frianeza, gave birth to an
illegitimate child who was named by her mother Benita
Lastimosa as Baby Girl Lastimosa (Exhibit S. Plaintiffs'
Folder of Exhibits, p. 39, Record on Appeal, pp. 117118). Furthermore, the record of birth certificates of
Pangasinan Provincial Hospital for the years 1947 and
1948 does not carry the birth certificate of defendant
Violeta Cabatbat and the only birth certificate in the file
of birth certificates of the hospital for May 26, 1948 is
that of Baby Girl Lastimosa whose mother's name is
Benita Lastimosa. (pp. 3-4, CA Decision, pp. 13-14,
Record on Appeal.)
Furthermore, the absence of a record of the birth of petitioner
Violeta Cabatbat in the Office of the Civil Registrar General,
puts a cloud on the genuineness of her Exhibit 5.
Petitioners' recourse to Article 263 of the New Civil Code is not
well-taken. This legal provision refers to an action to impugn
legitimacy. It is inapplicable to this case because this is not an
action to impugn the legitimacy of a child, but an action of the
private respondents to claim their inheritance as legal heirs of
their childless deceased aunt. They do not claim that petitioner
Violeta Cabatbat Lim is an illegitimate child of the deceased,

but that she is not the decedent's child at all. Being neither a
legally adopted child, nor an acknowledged natural child, nor a
child by legal fiction of Esperanza Cabatbat, Violeta is not a
legal heir of the deceased.
WHEREFORE, the petition is denied for lack of merit. The
appealed decision is affirmed, but with modification of
paragraphs 2 and 4 of the dispositive portion thereof, by
excluding the widows Adela B. Vda. de Frianeza and Decideria
Q. Vda. de Frianeza, who are not legal heirs of Esperanza
Frianeza Cabatbat from participating with their children and
the surviving sisters of the deceased in the one-fourth share of
the estate pertaining to the latter under Article 1001 of the Civil
Code.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.