G.R. No.

L-5921            July 25, 1911

THE STANDARD OIL COMPANY OF NEW YORK, plaintiff-appellee, 

vs.
JUAN CODINA ARENAS AND OTHERS, defendants;
VICENTE SIXTO VILLANUEVA, appellant.

Chicote and Miranda for appellant.

W.A. Kincaid and Thos. L. Hartigan for appellee.

ARELLANO, C.J.:

On December 15, 1908, Juan Codina Arenas and Francisco Lara del Pino, as principals, and Alipio Locso, Vicente
Sixto Villanueva and the Chinaman, Siy Ho, as sureties, assumed the obligation to pay, jointly and severally, to the
corporation, The Standard Oil Company of New York, the sum of P3,305. 76, at three months from date, with
interest at P1 per month.

On April 5, 1909, The Standard Oil Company of New York sued the said five debtors for payment of the P3,305.76,
together with the interest thereon at the rate of 1 per cent per month from the 15th of December, 1908, and the
costs.

The defendants were summoned, the record showing that summons was served on Vicente Sixto Villanueva on
April 17, 1909.

On May 12, 1909, Vicente Sixto Villanueva and Siy Ho were declared to be in default and were so notified, the latter
on the 14th and the former on the 15th of May, 1909.

On August 28, 1909, the Court of First Instance of the city of Manila sentenced all the defendants to pay jointly and
severally to the plaintiff company the sum of P3,305.76, together with the interest thereon at 1 per cent per month
from December 15, 1908, until complete payment should have been made of the principal, and to pay the costs.

While the judgment was in the course of execution, Elisa Torres de Villanueva, the wife of Vicente Sixto Villanueva,
appeared and alleged: (1) That on July 24, 1909, the latter was declared to be insane by the Court of First Instance
of the city of Manila; (2) that she was appointed his guardian by the same court; (3) that, on October 11, following,
she was authorized by the court, as guardian, to institute the proper legal proceedings for the annulment of several
bonds given by her husband while in a state of insanity, among them that concerned in the present cause, issued in
behalf of The Standard Oil Company of New York; (4) that she, the guardian, was not aware of the proceedings had
against her husband and was only by chance informed thereof; (5) that when Vicente S. Villanueva gave the bond,
the subject of this suit, he was already permanently insane, was in that state when summoned and still continued
so, for which reason he neither appeared nor defended himself in the said litigation; and, in conclusion, she
petitioned the court to relieve the said defendant Villanueva from compliance with the aforestated judgment
rendered against him in the suit before mentioned, and to reopen the trial for the introduction of evidence in behalf
of the said defendant with respect to his capacity at the time of the execution of the bond in question, which
evidence could not be presented in due season on account of the then existing incapacity of the defendant.

The court granted the petition and the trial was reopened for the introduction of evidence, after due consideration of
which, when taken, the court decided that when Vicente Villanueva, on the 15th of December, 1908, executed the
bond in question, he understood perfectly well the nature and consequences of the act performed by him and that
the consent that was given by him for the purpose was entirely voluntary and, consequently, valid and efficacious.
As a result of such findings the court ruled that the petition for an indefinite stay of execution of the judgment
rendered in the case be denied and that the said execution be carried out.

After the filing of an exception to the above ruling, a new hearing was requested "with reference to the defendant
Vicente S. Villanueva" and, upon its denial, a bill of exceptions was presented in support of the appeal submitted to
this court and which is based on a single assignment of error as follows:

Because the lower court found that the monomania of great wealth, suffered by the defendant Villanueva,
does not imply incapacity to execute a bond such as the one herein concerned.

Certainly the trial court founded its judgment on the basis of the medico-legal doctrine which supports the
conclusion that such monomania of wealth does not necessarily imply the result that the defendant Villanueva was
not a person capable of executing a contract of bond like the one here in question.

This court has not found the proof of the error attributed to the judgment of the lower court. It would have been
necessary to show that such monomania was habitual and constituted a veritable mental perturbation in the patient;
that the bond executed by the defendant Villanueva was the result of such monomania, and not the effect of any
other cause, that is, that there was not, nor could there have been any other cause for the contract than an
ostentation of wealth and this purely an effect of monomania of wealth; and that the monomania existed on the date
when the bond in question was executed.
With regard to the first point: "All alienists and those writers who have treated of this branch of medical science
distinguish numerous degrees of insanity and imbecility, some of them, as Casper, going so far into a wealth of
classification and details as to admit the existence of 60 to 80 distinct states, an enumeration of which is
unnecessary. Hence, the confusion and the doubt in the minds of the majority of the authors of treatises on the
subject in determining the limits of sane judgment and the point of beginning of this incapacity, there being some
who consider as a sufficient cause for such incapacity, not only insanity and imbecility, but even those other chronic
diseases or complaints that momentarily perturb or cloud the intelligence, as mere monomania, somnambulism,
epilepsy, drunkenness, suggestion, anger, and the divers passional states which more or less violently deprive the
human will of necessary liberty." (Manresa, Commentaries on the Civil Code, Vol. V, p. 342.) In our present
knowledge of the state of mental alienation such certainly has not yet been reached as to warrant the conclusion, in
a judicial decision, that he who suffers the monomania of wealth, believing himself to be very wealthy when he is
not, is really insane and it is to be presumed, in the absence of a judicial declaration, that he acts under the
influence of a perturbed mind, or that his mind is deranged when he executes an onerous contract .The bond, as
aforesaid, was executed by Vicente S. Villanueva on December 15, 1908, and his incapacity, for the purpose of
providing a guardian for him, was not declared until July 24, 1909.

The trial court, although it conceded as a fact that the defendant had for several years suffered from such
monomania, decided, however, guided by the medico-legal doctrine above cited, that a person's believing himself to
be what he is not or his taking a mere illusion for a reality is not necessarily a positive proof of insanity or incapacity
to bind himself in a contract. Specifically, in reference to this case, the following facts were brought out in the
testimony given by the physicians, Don Rudesino Cuervo and Don Gervasio de Ocampo, witnesses for the
defendant, the first of whom had visited him some eight times during the years 1902 and 1903, and the latter, only
once, in 1908.

Dr. Cuervo:

Q.       But if you should present to him a document which in no wise concerns his houses and if you should
direct him to read it, do you believe that he would understand the contents of the document?

A.       As to understanding it, it is possible that he might, in this I see nothing particularly remarkable; but
afterwards, to decide upon the question involved, it might be that he could not do that; it depends upon what
the question was.

Dr. Ocampo:

Q.       Do you say that he is intelligent with respect to things other than those concerning greatness?

A.       Yes, he reasons in matters which do not refer to the question of greatness and wealth.

Q.       He can take a written paper and read it and understand it, can he not?

A.       Read it, yes, he can read it and understand it, it is probable that he can, I have made no trial.

Q.       Is he not a man of considerable intelligence, only with the exception of this monomania of greatness
and wealth?

A.       Of not much intelligence, an ordinary intelligence.

Q.       He knows how to read and write, does he not?

A.       Yes, sir I believe that he does.

Mr. F.B. Ingersoll, a witness for the plaintiff, testified that as a notary he had prepared the instrument of bond and
received the statements of the signers; that he explained to Mr. Villanueva its contents and when the witness asked
the latter whether he wished to sign it he replied that he was willing and did in fact do so; that the defendant's mental
condition appeared to the witness to be normal and regular and that he observed nothing to indicate the contrary;
and that the defendant was quiet and composed and spoke in an ordinary way without giving cause fir any suspicion
that there was anything abnormal.

Honorable Judge Araullo testified as a witness for the plaintiff that while trying in the Court of First Instance, over
which he presided, the case concerning the estate of the Chinaman Go-Cho-Co, and Mr. Villanueva having been
proposed as a surety therein, the witness asked him some questions about his property, in order to ascertain
whether he was solvent and would be adequate surety, and that Villanueva testified the same as many, others had
done, and witness did not notice any particular disorder or perturbation of his mental faculties; that he answered the
questions concerning the property that he held, stated its value, specified the place where it was situated, his
answers being precisely relevant to the matter treated; that he therefore approved the bond; and that all this took
place between July and September, 1908. This witness having been asked, on cross-examination, whether Mr.
Villanueva, subsequent to the date mentioned, had again been surety in any other case, and whether it appeared
strange to witness that Mr. Villanueva should engage in giving bonds and whether for that reason he rejected this
new bond, replied that it was in that same case relative to the estate of the Chinaman Go-Cho-Co that he
endeavored to investigate, as he customarily did, with regard to whether Mr. Villanueva had given any other
previous bond, and the discovered that he had in fact previously given bond in a criminal case, but that, as it had
already been cancelled, he had no objection to accepting the one offered by Mr. Villanueva in the said Go-Cho-Co
case.

Capacity to act must be supposed to attach to a person who has not previously been declared incapable, and such
capacity is presumed to continue so long as the contrary be not proved, that is, that at the moment of his acting he
was incapable, crazy, insane, or out his mind: which, in the opinion of this court, has not been proved in this case.

With regard to the second point, it is very obvious that in every contract there must be a consideration to
substantiate the obligation, so much so that, even though it should not be expressed in the contract, it is presumed
that it exists and that it is lawful, unless the debtor proves the contrary. (Civil Code, art. 1277.) In the contract of
bond the consideration, general, is no other, as in all contract of pure beneficence, than the liberality of the
benefactor. (Id, 1274.) Out of the ordinary, a bond may be given for some other consideration, according to the
agreement and the free stipulation of the parties and may be, as in onerous and remuneratory contracts, something
remunerative stipulated as an equivalent, on the part of the beneficiary of the bond.

It is not clear as to the reason why Villanueva gave the bond in favor of the two members of the firm of Arenas &
Co., Francisco Lara, and Juan Arenas. Lara testified that he had never had dealings with Villanueva; from which it is
inferred that the latter could hardly have been moved to favor the former by the benefit of an assumed obligation to
pay him some three thousand pesos, with monthly interest .But he added that Arenas & Co. obtained an agent to
look for sureties for them, to whom Arenas paid a certain sum of money. The witness did not know, however,
whether Arenas gave the money for the signature of the bond or simply in order that the agent might find sureties.
The fact is that the sureties came with the agent and signed the bond.

The appellant presented, as proof that Villanueva concealed from his family his dealings with Arenas, a note by the
latter addressed to his friend, Mr. Villanueva, on the 13th of May, 1909, that is, two days before Villanueva was
declared to be in default, inviting him to a conference "for the purpose of treating of a matter of great importance
of much interest to Villanueva, between 5 and 6 of that same day, in the garden and on the benches which are in
front of the Delmonico Hotel, on Calle Palacio, corner of Calle Victoria, and if rained, in the bar on the corner." It can
not be affirmed with certainty (the trial court considers it probable) that Villanueva engaged in the business of giving
bonds for a certain consideration or remuneration; but neither can it be sustained that there was no other cause for
the giving of the bond in question than the mental disorder that dominated the intellect of the person obligated, to
the extent of his believing himself so oversupplied with money as to be able to risk it in behalf of any person
whatever. There is no proof that the said bond was merely the product of an insensate ostentation of wealth, nor
that, if Villanueva boasted of wealth in giving several bonds, among them that herein concerned, he was influenced
only by the monomania of boasting of being wealthy, when he was not.

Neither is there any proof whatever with respect to the third point, that is, that, granting that he was a monomaniac,
he was dominated by that malady when he executed the bond now under discussion. In the interpretative
jurisprudence on this kind of incapacity, to wit, lunacy or insanity, it is a rule of constant application that is not
enough that there be more or less probability that a person was in a state of dementia at a given time, if there is not
direct proof that, at the date of the performance of the act which it is endeavored to invalidate for want of capacity on
the part of the executor, the latter was insane or demented, in other words, that he could not, in the performance of
that act, give his conscious, free, voluntary, deliberate and intentional consent. The witness who as physicians
testified as to extravagancies observed in Villanueva's conduct, referred, two of them, to a time prior to 1903, and
another of them to the year 1908, but none to December 15, 1908, the date of the execution of the bond sought to
be invalidated. the testimony of one of these witnesses shows that when Villanueva's wife endeavored, in 1908, to
have her husband confined in the Hospicio de San Jose and cared for therein, objection was made by the director of
the institution who advised her that if he entered in that way and lodged in the ward for old men, as soon as he
shouted and disturbed them in their sleep he would have to be locked up in the insane ward; to which Villanueva's
wife replied "that her husband was not exactly insane enough to be placed among the insane." This same lady,
testifying as a witness in this case, stated: that no restrictions had ever been placed upon her husband's liberty to go
wherever he wished and do what he liked; that her husband had property of his own and was not deprived of its
management; that he went out every morning without her knowing where he went; that she did not know whether he
had engaged in the business of signing bonds, and that, with reference to the one now concerned, she had learned
of it only by finding to note, before mentioned, wherein Arenas invited him to a rendezvous on the benches in front
of the Delmonico Hotel; that she had not endeavored legally to deprive him of the management of his own real
estate which had been inherited by him, although he did not attend to the collection of the rents and the payment of
the land tax, all this being done by her, and she also it was who attended to the subsistence of the family and to all
their needs. Finally, and with direct reference to the point under discussion, she was asked:

Q.       It is not true that, up to the date of his signing this bond, he used to go out of the house and was on
the streets nearly every day? to which she replied:

A.       He went where he pleased, he does this even now. He goes to the markets, and buys provisions and
other things. In fact I don't know where he goes go.
 Q.       From his actions toward others, did he show any indication of not being sane when he was on the
street, according to your opinion?

A.       Half of Manila knows him and are informed of this fact and it is very strange that this should have
occurred. If you need witnesses to prove it, there are many people who can testify in regard to this
particular.

The only incorrectness mentioned by this lady is that her husband, when he went to the market, would return to the
house with his pockets full of tomatoes and onions, and when she was asked by the judge whether he was a man of
frugal habits, she replied that, as far as she knew, he had never squandered any large sum of money; that he had
never been engaged in business; that he supported himself on what she gave him; and that if he had something to
count on for his living, it was the product of his lands.

Such is a summary of the facts relating to the debated incapacity of the appellant, and it is very evident that it can
not be concluded therefrom that, on December 15, 1908, when Villanueva subscribed the obligation now contested,
he did not possess the necessary capacity to give efficient consent with respect to the bond which he freely
executed.

Therefore, the judgment appealed from is affirmed, with the costs of this instance against the appellant. So ordered
G.R. No. L-11872       December 1, 1917

DOMINGO MERCADO and JOSEFA MERCADO, plaintiffs-appellants, 

vs.
JOSE ESPIRITU, administrator of the estate of the deceased Luis Espiritu, defendant-appellee.

Perfecto Salas Rodriguez for appellants.

Vicente Foz for appellee.

TORRES, J.:

This is an appeal by bill of exceptions, filed by the counsel for the plaintiffs from the judgment of September 22,
1914, in which the judge of the Seventh Judicial District dismissed the complaint filed by the plaintiffs and ordered
them to keep perpetual silence in regard to the litigated land, and to pay the costs of the suit.

By a complaint dated April 9, 1913, counsel for Domingo and Josefa Mercado brought suit in the Court of First
Instance of Bulacan, against Luis Espiritu, but, as the latter died soon thereafter, the complaint was amended by
being directed against Jose Espiritu in his capacity of his administrator of the estate of the deceased Luis Espiritu.
The plaintiffs alleged that they and their sisters Concepcion and Paz, all surnamed Mercado, were the children and
sole heirs of Margarita Espiritu, a sister of the deceased Luis Espiritu; that Margarita Espiritu died in 1897, leaving
as her paraphernal property a tract of land of 48 hectares in area situated in the barrio of Panducot, municipality of
Calumpit, Bulacan, and bounded as described in paragraph 4 of the amended complaint, which hereditary portion
had since then been held by the plaintiffs and their sisters, through their father Wenceslao Mercado, husband of
Margarita Espiritu; that, about the year 1910, said Luis Espiritu, by means of cajolery, induced, and fraudulently
succeeded in getting the plaintiffs Domingo and Josefa Mercado to sign a deed of sale of the land left by their
mother, for the sum of P400, which amount was divided among the two plaintiffs and their sisters Concepcion and
Paz, notwithstanding the fact that said land, according to its assessment, was valued at P3,795; that one-half of the
land in question belonged to Margarita Espiritu, and one-half of this share, that is, one-fourth of said land , to the
plaintiffs, and the other one-fourth, to their two sisters Concepcion and Paz; that the part of the land belonging to the
two plaintiffs could produce 180 cavanes of rice per annum, at P2.50 per cavan, was equivalent to P450 per annum;
and that Luis Espiritu had received said products from 1901 until the time of his death. Said counsel therefore asked
that judgment be rendered in plaintiffs' favor by holding to be null and void the sale they made of their respective
shares of their land, to Luis Espiritu, and that the defendant be ordered to deliver and restore to the plaintiffs the
shares of the land that fell to the latter in the partition of the estate of their deceased mother Margarita Espiritu,
together with the products thereof, uncollected since 1901, or their equivalent, to wit, P450 per annum, and to pay
the costs of the suit.

In due season the defendant administrator answered the aforementioned complaint, denying each and all of the
allegations therein contained, and in special defense alleged that the land, the subject-matter of the complaint, had
an area of only 21 cavanes of seed rice; that, on May 25, 1894, its owner, the deceased Margarita Espiritu y Yutoc,
the plaintiffs' mother, with the due authorization of her husband Wenceslao Mercado y Arnedo Cruz sold to Luis
Espiritu for the sum of P2,000 a portion of said land, to wit, an area such as is usually required for fifteen cavanes of
seed; that subsequently, on May 14, 1901, Wenceslao Mercado y Arnedo Cruz, the plaintiffs' father, in his capacity
as administrator of the property of his children sold under pacto de retro to the same Luis Espiritu at the price of
P375 the remainder of the said land, to wit, an area covered by six cavanes of seed to meet the expenses of the
maintenance of his (Wenceslao's) children, and this amount being still insufficient the successively borrowed from
said Luis Espiritu other sums of money aggregating a total of P600; but that later, on May 17,1910, the plaintiffs,
alleging themselves to be of legal age, executed, with their sisters Maria del Consejo and Maria dela Paz, the
notarial instrument inserted integrally in the 5th paragraph of the answer, by which instrument, ratifying said sale
under pacto de retro of the land that had belonged to their mother Margarita Espiritu, effected by their father
Wenceslao Mercado in favor of Luis Espiritu for the sum of P2,600, they sold absolutely and perpetually to said Luis
Espiritu, in consideration of P400, the property that had belonged to their deceased mother and which they
acknowledged having received from the aforementioned purchaser. In this cross-complaint the defendant alleged
that the complaint filed by the plaintiffs was unfounded and malicious, and that thereby losses and damages in the
sum of P1,000 had been caused to the intestate estate of the said Luis Espiritu. He therefore asked that judgment
be rendered by ordering the plaintiffs to keep perpetual silence with respect to the land in litigation and, besides, to
pay said intestate estate P1,000 for losses and damages, and that the costs of the trial be charged against them.

In reply to the cross-complaint, the plaintiffs denied each and all of the facts therein set forth, and in special defense
alleged that at the time of the execution of the deed of sale inserted in the cross-complaint the plaintiffs were still
minors, and that since they reached their majority the four years fixed by law for the annulment of said contract had
not yet elapsed. They therefore asked that they be absolved from the defendant's cross-complaint.

After trial and the introduction of evidence by both parties, the court rendered the judgment aforementioned, to
which the plaintiffs excepted and in writing moved for a reopening of the case and a new trial. This motion was
overruled, exception was taken by the petitioners, and the proper bill of exceptions having been presented, the
same was approved and transmitted to the clerk of this court.

As the plaintiffs assailed the validity of the deed of sale, Exhibit 3, executed by them on May 17, 1910, on the
ground that they were minors when they executed it, the questions submitted to the decision of this court consist in
determining whether it is true that the plaintiffs were then minors and therefore incapable of selling their property on
the date borne by the instrument Exhibit 3; and in case they then were such, whether a person who is really and
truly a minor and, notwithstanding, attests that he is of legal age, can, after the execution of the deed and within
legal period, ask for the annulment of the instrument executed by him, because of some defect that invalidates the
contract, in accordance with the law (Civ. Code, arts. 1263 and 1300), so that he may obtain the restitution of the
land sold.

The records shows it to have been fully proven that in 1891 Lucas Espiritu obtained title by composition with the
State, to three parcels of land, adjoining each other, in the sitio of Panducot of the pueblo of Calumpit, Bulacan,
containing altogether an area of 75 hectares, 25 ares, and 59 centares, which facts appear in the title Exhibit D;
that, upon Luis Espiritu's death, his said lands passed by inheritance to his four children named Victoria, Ines,
Margarita, and Luis; and that, in the partition of said decedent's estate, the parcel of land described in the complaint
as containing forty-seven and odd hectares was allotted to the brother and sister Luis and Margarita, in equal
shares. Margarita Espiritu, married to Wenceslao Mercado y Ardeno Cruz, had by this husband five children, Maria
Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, all surnamed Mercado y Espiritu, who, at the death of their
mother in 1896 inherited, by operation of law, one-half of the land described in the complaint.

The plaintiffs' petition for annulment of the sale and the consequent restitution to them of two-fourths of the land left
by their mother, that is, of one-fourth of all the land described in the complaint, and which, they stated, amounts to
11 hectares, 86 ares and 37 centares. To this claim the defendant excepted, alleging that the land in question
comprised only an area such as is customarily covered by 21 cavanes of seed.

It was also duly proven that, by a notarial instrument of May 25, 1894, the plaintiffs' mother conveyed by actual and
absolute sale for the sum of P2,000, to her brother Luis Espiritu a portion of the land now on litigation, or an area
such as is usually covered by about 15 cavanes of seed; and that, on account of the loss of the original of said
instrument, which was on the possession of the purchaser Luis Espiritu, and furthermore because, during the
revolution, the protocols or registers of public documents of the Province of Bulacan were burned, Wenceslao
Mercado y Arnedo Cruz, the widower of the vendor and father of the plaintiffs, executed, at the instance of the
interested party Luis Espiritu, the notarial instrument Exhibit 1, of the date of May 20, 1901, in his own name and
those of his minor children Maria Consejo, Maria de la Paz, Domingo, Josefa, and Amalia, and therein set forth that
it was true that the sale of said portion of land had been made by his aforementioned wife, then deceased, to Luis
Espiritu in 1894.

However, even prior to said date, to wit, on May 14th of the same year, 1901, the widower Wenceslao Mercado,
according to the private document Exhibit 2, pledged or mortgaged to the same man, Luis Espiritu, for P375, a part,
or an area covered by six cavanes of seed, of the land that had belonged to this vendor's deceased wife, to the said
Luis Espiritu and which now forms a part of the land in question — a transaction which Mercado was obliged to
make in order to obtain funds with which "to cover his children's needs." Wenceslao Mercado, the plaintiffs' father,
having died, about the year 1904, the plaintiffs Domingo and Josefa Mercado, together with their sisters Consejo
and Paz, declaring themselves to be of legal age and in possession of the required legal status to contract,
executed and subscribed before a notary the document Exhibit 3, on May 17, 1910, in which referring to the
previous sale of the land, effected by their deceased mother for the sum of P2,600 and with her husband's
permission and authorization, they sold absolutely and in perpetuity to Luis Espiritu, for the sum of P400 "as an
increase" of the previous purchase price, the land described in said instrument and situated in Panducot, pueblo of
Calumpit, Bulacan, of an area equal to that usually sown with 21 cavanes of seed bounded on the north by the
lands of Flaviano Abreu and the heirs of Pedro Espiritu, on the east by those of Victoria Espiritu and Ines Espiritu,
on the south by those of Luis Espiritu, and on the west by those of Hermogenes Tan-Toco and by the Sapang-Maitu
stream.

In this status of the case the plaintiffs seek the annulment of the deed Exhibit 3, on the ground that on the date of its
execution they were minors without legal capacity to contract, and for the further reason that the deceased
purchaser Luis Espiritu availed himself of deceit and fraud in obtaining their consent for the execution of said deed.

As it was proven by the testimony of the clerk of the parochial church of Apalit (plaintiffs were born in Apalit) that the
baptismal register books of that parish pertaining to the years 1890-1891, were lost or burned, the witness Maria
Consejo Mercado recognized and identified the book Exhibit A, which she testified had been kept and taken care of
by her deceased father Wenceslao Mercado, pages 396 and 397 of which bear the attestation that the plaintiff
Domingo Mercado was born on August 4, 1890, and Josefa Mercado, on July 14, 1891. Furthermore, this witness
corroborated the averment of the plaintiffs' minority, by the personal registration certificate of said Domingo
Mercado, of the year 1914, Exhibit C, by which it appears that in 1910 he was only 23 years old, whereby it would
also be appear that Josefa Mercado was 22 years of age in 1910, and therefore, on May 17,1910, when the
instrument of purchase and sale, Exhibit 3, was executed, the plaintiffs must have been, respectively, 19 and 18
years of age.
The witness Maria Consejo Mercado also testified that after her father's death her brother and sisters removed to
Manila to live there, although her brother Domingo used to reside with his uncle Luis Espiritu, who took charge of
the administration of the property left by his predecessors in interest; that it was her uncle Luis who got for her
brother Domingo the other cedula, Exhibit B, pertaining to the year 1910, where in it appears that the latter was then
already 23 years of age; that she did not know why her uncle did so; that she and her brother and sisters merely
signed the deed of May 17, 1910; and that her father Wenceslao Mercado, prior to his death had pledged the land
to her uncle Luis Espiritu.

The witness Ines Espiritu testified that after the death of the plaintiffs' father, it was Luis Espiritu who directed the
cultivation of the land in litigation. This testimony was corroborated by her sister Victoria Espiritu, who added that
her nephew, the plaintiff Domingo, had lived for some time, she did not know just how long, under the control of Luis
Espiritu.

Roque Galang, married to a sister of Luis Espiritu, stated that the land that fell to his wife and to his sister-in-law
Victoria, and which had an area of about 8 hectares less than that of the land allotted to the aforementioned Luis
and Margarita produced for his wife and his sister-in-law Victoria a net and minimum yield of 507 cavanes in 1907,
in spite of its being high land and of inferior quality, as compared with the land in dispute, and that its yield was still
larger in 1914, when the said two sisters' share was 764 cavanes.

Patricio Tanjucto, the notary before whom the deed Exhibit 3 was ratified, was a witness for the defendant. He
testified that this deed was drawn up by him at the request of the plaintiff Josefa Mercado; that the grantors of the
instrument assured him that they were all of legal age; that said document was signed by the plaintiffs and the other
contracting parties, after it had been read to them and had been translated into the Pampangan dialect for those of
them who did not understand Spanish. On cross-examination, witness added that ever since he was 18 years of
age and began to court, he had known the plaintiff Josefa Mercado, who was then a young maiden, although she
had not yet commenced to attend social gatherings, and that all this took place about the year 1898, for witness said
that he was then [at the time of his testimony, 1914,] 34 years of age.

Antonio Espiritu, 60 years of age, who knew Lucas Espiritu and the properties owned by the latter, testified that
Espiritu's land contained an area of 84 cavanes, and after its owner's death, was under witness' administration
during to harvest two harvest seasons; that the products yielded by a portion of this land, to wit, an area such as is
sown by about 15 cavanes of seed, had been, since 1894, utilized by Luis Espiritu, by reason of his having acquired
the land; and that, after Margarita Espiritu's death, her husband Wenceslao Mercado took possession of another
portion of the land, containing an area of six cavanes of seed and which had been left by this deceased, and that he
held same until 1901, when he conveyed it to Luis Espiritu.  lawphi1 .net

The defendant-administrator, Jose Espiritu, son of the deceased Luis Espiritu, testified that the plaintiff Domingo
Mercado used to live off and on in the house of his deceased father, about the year 1909 or 1910, and used to go
back and forth between his father's house and those of his other relatives. He denied that his father had at any time
administered the property belonging to the Mercado brother and sisters.

In rebuttal, Antonio Mercado, a cousin of Wenceslao, father of the plaintiffs, testified that he mediate in several
transactions in connection with a piece of land belonging to Margarita Espiritu. When shown the deed of purchase
and sale Exhibit 1, he stated that he was not acquainted with its contents. This same witness also testified that he
mediated in a transaction had between Wenceslao Mercado and Luis Espiritu (he did not remember the year), in
which the former sold to the latter a parcel of land situated in Panducot. He stated that as he was a witness of the
deed of sale he could identify this instrument were it exhibited to him; but he did not do so, for no instrument
whatever was presented to him for identification. The transaction mentioned must have concerned either the
ratification of the sale of the land of 15 cavanes, in 1901, attested in Exhibit 1, or the mortgage or pledge of the
other parcel of 6 cavanes, given on May 14, 1901, by Wenceslao Mercado to Luis Espiritu, as may be seen by the
private document Exhibit 2. In rebuttal, the plaintiff Josefa Mercado denied having gone to the house of the notary
Tanjutco for the purpose of requesting him to draw up any document whatever. She stated that she saw the
document Exhibit 3 for the first time in the house of her uncle Luis Espiritu on the day she signed it, on which
occasion and while said document was being signed said notary was not present, nor were the witnesses thereto
whose names appear therein; and that she went to her said uncle's house, because he had sent for her, as well as
her brother and sisters, sending a carromata to fetch them. Victoria Espiritu denied ever having been in the house of
her brother. Luis Espiritu in company with the plaintiffs, for the purpose of giving her consent to the execution of any
deed in behalf of her brother.

The evidence adduced at the trial does not show, even circumstantially, that the purchaser Luis Espiritu employed
fraud, deceit, violence, or intimidation, in order to effect the sale mentioned in the document Exhibit 3, executed on
May 17, 1910. In this document the vendors, the brother and the sisters Domingo, Maria del Consejo, Paz and,
Josefa surnamed Mercado y Espiritu, attested the certainty of the previous sale which their mother, during her
lifetime, had made in behalf of said purchaser Luis Espiritu, her brother with the consent of her husband Wenceslao
Mercado, father of the vendors of the portion of land situated in the barrio of Panducot, pueblo of Calumpit, Bulacan;
and in consideration of the fact that the said vendor Luis Espiritu paid them, as an increase, the sum of P400, by
virtue of the contract made with him, they declare having sold to him absolutely and in perpetuity said parcel of the
land, waive and thenceforth any and all rights they may have, inasmuch as said sum constitutes the just price of the
property.
So that said document Exhibit 3 is virtually an acknowledgment of the contract of sale of the parcel or portion of land
that would contain 15 cavanes of seed rice made by the vendors' mother in favor of the purchaser Luis Espiritu, their
uncle, and likewise an acknowledgment of the contract of pledge or mortgage of the remainder of said land, an area
of six cavanes, made with the same purchaser, at an increase of P400 over the price of P2,600, making an
aggregate sum of P3,000, decomposed as follows: P2,000, collected during her lifetime, by the vendors' father; and
the said increase of P400, collected by the plaintiffs.

In the aforementioned sale, according to the deed of May 25, 1894, Margarita Espiritu conveyed to her brother Luis
the parcel of 15 cavanes of seed, Exhibit 1, and after her death the plaintiffs' widowed father mortgaged or pledged
the remaining parcel or portion of 6 cavanes of seed to her brother-in-law, Luis Espiritu, in May, 1901 (Exhibit 2). So
it is that the notarial instrument Exhibit 3, which was assailed by the plaintiffs, recognized the validity of the previous
contracts, and the totality of the land, consisting of an area containing 21 cavanes of seed rice, was sold absolutely
and in perpetuity, the vendors receiving in exchange P400 more; and there is no conclusive proof in the record that
this last document was false and simulated on account of the employment of any violence, intimidation, fraud, or
deceit, in the procuring of the consent of the vendors who executed it.

Considering the relation that exists between the document Exhibit 3 and those of previous dates, Exhibits 1 and 2,
and taking into the account the relationship between the contracting parties, and also the general custom that
prevails in many provinces of these Islands for the vendor or debtor to obtain an increase in the price of the sale or
of the pledge, or an increase in the amount loaned, without proof to the contrary, it would be improper and illegal to
hold, in view of the facts hereinabove set forth, that the purchaser Luis Espiritu, now deceased, had any need to
forge or simulate the document Exhibit 3 inasmuch as, since May, 1894, he has held in the capacity of owner by
virtue of a prior acquisition, the parcel of land of 15 cavanes of seed, and likewise, since May, 1901, according to
the contract of mortgage or pledge, the parcel of 6 cavanes, or the remainder of the total area of 21 cavanes.

So that Luis Espiritu was, during his lifetime, and now, after his death, his testate or intestate estate is in lawful
possession of the parcel of land situated in Panducot that contains 21 cavanes of seed, by virtue of the title of
conveyance of ownership of the land measuring 15 cavanes, and, in consequence of the contract of pledge or
mortgage in security for the sum of P600, is likewise in lawful possession of the remainder of the land, or an area
containing 6 cavanes of seed.

The plaintiffs have absolutely no right whatever to recover said first parcel of land, as its ownership was conveyed to
the purchaser by means of a singular title of purchase and sale; and as to the other portion of 6 cavanes of seed,
they could have redeemed it before May 17, 1910, upon the payment or the return of the sum which their deceased
father Wenceslao Mercado had, during his lifetime, received as a loan under security of the pledged property; but,
after the execution of the document Exhibit 3, the creditor Luis Espiritu definitely acquired the ownership of said
parcel of 6 cavanes. It is therefore a rash venture to attempt to recover this latter parcel by means of the contract of
final and absolute sale, set forth in the deed Exhibit 3.

Moreover, the notarial document Exhibit 1, are regards the statements made therein, is of the nature of a public
document and is evidence of the fact which gave rise to its execution and of the date of the latter, even against a
third person and his predecessors in interest such as are the plaintiffs. (Civ. Code, art. 1218.)

The plaintiffs' father, Wenceslao Mercado, recognizing it to be perfectly true that his wife Margarita Espiritu sold said
parcel of land which she inherited from her father, of an area of about "15 cavanes of seed," to her brother Luis
Espiritu, by means of an instrument executed by her on May 25,1894 — an instrument that disappeared or was
burned — and likewise recognizing that the protocols and register books belonging to the Province of Bulacan were
destroyed as a result of the past revolution, at the request of his brother-in-law Luis Espiritu he had no objection to
give the testimony recorded in said notarial instrument, as it was the truth regarding what had occurred, and in so
doing he acted as the plaintiffs' legitimate father in the exercise of his parental authority, inasmuch as he had
personal knowledge of said sale, he himself being the husband who authorized said conveyance, notwithstanding
that his testimony affected his children's interest and prejudiced his own, as the owner of any fruits that might be
produced by said real property.

The signature and handwriting of the document Exhibit 2 were identified as authentic by one of the plaintiffs,
Consejo Mercado, and as the record shows no evidence whatever that this document is false, and it does not
appear to have been assailed as such, and as it was signed by the plaintiffs' father, there is no legal ground or well-
founded reason why it should be rejected. It was therefore properly admitted as evidence of the certainty of the facts
therein set forth.

The principal defect attributed by the plaintiffs to the document Exhibit 3 consists in that, on the date of May 17,
1910, when it was executed that they signed it, they were minors, that is, they had not yet attained the age of 21
years fixed by Act No. 1891, though no evidence appears in the record that the plaintiffs Josefa and Domingo
Mercado were in fact minors, for no certified copies were presented of their baptismal certificates, nor did the
plaintiffs adduce any supplemental evidence whatever to prove that Domingo was actually 19 and Josefa 18 years
of age when they signed the document Exhibit 3, on May 17, 1910, inasmuch as the copybook, Exhibit A,
notwithstanding the testimony of the plaintiff Consejo Mercado, does not constitute sufficient proof of the dates of
births of the said Domingo and Josefa.
However, even in the doubt whether they certainly were of legal age on the date referred to, it cannot be gainsaid
that in the document Exhibit 3 they stated that they were of legal age at the time they executed and signed it, and on
that account the sale mentioned in said notarial deed Exhibit 3 is perfectly valid — a sale that is considered as
limited solely to the parcel of land of 6 cavanes of seed, pledged by the deceased father of the plaintiffs in security
for P600 received by him as a loan from his brother-in-law Luis Espiritu, for the reason that the parcel of 15 cavanes
had been lawfully sold by its original owner, the plaintiffs' mother.

The courts, in their interpretation of the law, have laid down the rule that the sale of real estate, made by minors who
pretend to be of legal age, when in fact they are not, is valid, and they will not be permitted to excuse themselves
from the fulfillment of the obligations contracted by them, or to have them annulled in pursuance of the provisions of
Law 6, title 19, of the 6th Partida; and the judgment that holds such a sale to be valid and absolves the purchaser
from the complaint filed against him does not violate the laws relative to the sale of minors' property, nor the juridical
rules established in consonance therewith. (Decisions of the supreme court of Spain, of April 27, 1860, July 11,
1868, and March 1, 1875.)  itc@alf

With respect to the true age of the plaintiffs, no proof was adduced of the fact that it was Luis Espiritu who took out
Domingo Mercado's personal registration certificate on April 13, 1910, causing the age of 23 years to be entered
therein in order to corroborate the date of the notarial instrument of May 17th of the same year; and the supposition
that he did, would also allow it to be supposed, in order to show the propriety of the claim, that the cedula Exhibit C
was taken out on February 14, 1914, where in it is recorded that Domingo Mercado was on that date 23 years of
age, for both these facts are not proved; neither was any proof adduced against the statement made by the plaintiffs
Domingo and Josefa in the notarial instrument Exhibit 3, that, on the date when they executed it, they were already
of legal age, and, besides the annotation contained in the copybook Exhibit A, no supplemental proof of their true
ages was introduced.

Aside from the foregoing, from a careful examination of the record in this case, it cannot be concluded that the
plaintiffs, who claim to have minors when they executed the notarial instrument Exhibit 3, have suffered positive and
actual losses and damages in their rights and interests as a result of the execution of said document, inasmuch as
the sale effected by the plaintiffs' mother, Margarita Espiritu, in May, 1894, of the greater part of the land of 21
cavanes of seed, did not occasion any damage or prejudice to the plaintiffs, inasmuch as their father stated in the
document Exhibit 2 that he was obliged to mortgage or pledge said remaining portion of the land in order to secure
the loan of the P375 furnished by Luis Espiritu and which was subsequently increased to P600 so as to provide for
certain engagements or perhaps to meet the needs of his children, the plaintiff; and therefore, to judge from the
statements made by their father himself, they received through him, in exchange for the land of 6 cavanes of seed,
which passed into the possession of the creditor Luis Espiritu, the benefit which must have accrued to them from the
sums of money received as loans; and, finally, on the execution of the impugned document Exhibit 3, the plaintiffs
received and divided between themselves the sum of P400, which sum, added to that P2,000 received by Margarita
Espiritu, and to that of the P600 collected by Wenceslao Mercado, widower of the latter and father of the plaintiffs,
makes all together the sum of P3,000, the amount paid by the purchaser as the price of all the land containing 21
cavanes of seed, and is the just price of the property, was not impugned, and, consequently, should be considered
as equivalent to, and compensatory for, the true value of said land.

For the foregoing reasons, whereby the errors assigned to the judgment appealed from have been refuted, and
deeming said judgment to be in accordance with law and the evidence of record, we should, and do hereby, affirm
the same, with costs against the appellants. So ordered.

Arellano, C. J., Johnson, Street, and Malcolm, JJ., concur.

G.R. No. L-27710             January 30, 1928

ISIDRO BAMBALAN Y PRADO, plaintiff-appellant, 

vs.
GERMAN MARAMBA and GENOVEVA MUERONG, defendants-appellants.

Pedro C. Quinto for plaintiff-appellant.

Turner, Rheberg and Sanchez for defendants-appellants.

ROMUALDEZ, J.:

The defendants admit in their amended answer those paragraphs of the complaint wherein it is alleged that Isidro
Bambalan y Colcotura was the owner, with Torrens title, of the land here in question and that the plaintiff is the sole
and universal heir of the said deceased Isidro Bambalan y Colcotura, as regards the said land. This being so, the
fundamental question to be resolved in this case is whether or not the plaintiff sold the land in question to the
defendants.

The defendants affirm they did and as proof of such transfer present document Exhibit 1, dated July 17, 1922. The
plaintiff asserts that while it is true that he signed said document, yet he did so by intimidation made upon his mother
Paula Prado by the defendant Genoveva Muerong, who threatened the former with imprisonment. While the
evidence on this particular point does not decisively support the plaintiff's allegation, this document, however, is
vitiated to the extent of being void as regards the said plaintiff, for the reason that the latter, at the time he signed it,
was a minor, which is clearly shown by the record and it does not appear that it was his real intention to sell the land
in question.

What is deduced from the record is, that his mother Paula Prado and the latter's second husband Vicente Lagera,
having received a certain sum of money by way of a loan from Genoveva Muerong in 1915 which, according to
Exhibit 3, was P200 and according to the testimony of Paula Prado, was P150, and Genoveva Muerong having
learned later that the land within which was included that described in said Exhibit 3, had a Torrens title issued in
favor of the plaintiff's father, of which the latter is the only heir and caused the plaintiff to sign a conveyance of the
land.

At any rate, even supposing that the document in question, Exhibit 1, embodies all of the requisites prescribed by
law for its efficacy, yet it does not, according to the provisions of section 50 of Act No. 496, bind the land and would
only be a valid contract between the parties and as evidence of authority to the register of deeds to make the proper
registration, inasmuch as it is the registration that gives validity to the transfer. Therefore, the defendants, by virtue
of the document Exhibit 1 alone, did not acquire any right to the property sold as much less, if it is taken into
consideration, the vendor Isidro Bambalan y Prado, the herein plaintiff, was a minor.

As regards this minority, the doctrine laid down in the case of Mercado and Mercado vs. Espiritu (37 Phil., 215),
wherein the minor was held to be estopped from contesting the contract executed by him pretending to be age, is
not applicable herein. In the case now before us the plaintiff did not pretend to be of age; his minority was well
known to the purchaser, the defendant, who was the one who purchased the plaintiff's first cedula used in the
acknowledgment of the document.

In regard to the amount of money that the defendants allege to have given the plaintiff and her son in 1992 as the
price of the land, the preponderance of evidence shows that no amount was given by the defendants to the alleged
vendors in said year, but that the sum of P663.40, which appears in the document Exhibit 1, is arrived at,
approximately, by taking the P150 received by Paula Prado and her husband in 1915 and adding thereto interest at
the rate of 50 per cent annum, then agreed upon, or P75 a year for seven years up to July 31, 1922, the sate of
Exhibit 1.

The damages claimed by the plaintiff have not been sufficiently proven, because the witness Paula Prado was the
only one who testified thereto, whose testimony was contradicted by that of the defendant Genoveva Muerong who,
moreover, asserts that she possesses about half of the land in question. There are, therefore, not sufficient data in
the record to award the damages claimed by the plaintiff.

In view of the foregoing, the dispositive part of the decision appealed from is hereby affirmed, without any express
findings as to the costs in this instance. So ordered.
G.R. No. L-12471             April 13, 1959

ROSARIO L. DE BRAGANZA, ET AL., petitioners, 

vs.
FERNANDO F. DE VILLA ABRILLE, respondent.

Oscar M. Herrera for petitioners.

R. P. Sarandi and F. Valdez Anama for respondents.

BENGZON, J.:

Rosario L. de Braganza and her sons Rodolfo and Guillermo petition for review of the Court of Appeal's decision
whereby they were required solidarily to pay Fernando F. de Villa Abrille the sum of P10,000 plus 2 % interest from
October 30, 1944.

The above petitioners, it appears, received from Villa Abrille, as a loan, on October 30, 1944 P70,000 in Japanese
war notes and in consideration thereof, promised in writing (Exhibit A) to pay him P10,000 "in legal currency of the
P. I. two years after the cessation of the present hostilities or as soon as International Exchange has been
established in the Philippines", plus 2 % per annum.

Because payment had not been made, Villa Abrille sued them in March 1949.

In their answer before the Manila court of first Instance, defendants claimed to have received P40,000 only —
instead of P70,000 as plaintiff asserted. They also averred that Guillermo and Rodolfo were minors when they
signed the promissory note Exhibit A. After hearing the parties and their evidence, said court rendered judgment,
which the appellate court affirmed, in the terms above described.

There can be no question about the responsibility of Mrs. Rosario L. Braganza because the minority of her
consigners note release her from liability; since it is a personal defense of the minors. However, such defense will
benefit her to the extent of the shares for which such minors may be responsible, (Art. 1148, Civil Code). It is not
denied that at the time of signing Exhibit A, Guillermo and Rodolfo Braganza were minors-16 and 18 respectively.
However, the Court of Appeals found them liable pursuant to the following reasoning:

. . . . These two appellants did not make it appears in the promissory note that they were not yet of legal
age. If they were really to their creditor, they should have appraised him on their incapacity, and if the
former, in spite of the information relative to their age, parted with his money, then he should be contended
with the consequence of his act. But, that was not the case. Perhaps defendants in their desire to acquire
much needed money, they readily and willingly signed the promissory note, without disclosing the legal
impediment with respect to Guillermo and Rodolfo. When minor, like in the instant case, pretended to be of
legal age, in fact they were not, they will not later on be permitted to excuse themselves from the fulfillment
of the obligation contracted by them or to have it annulled. (Mercado, et al. vs. Espiritu, 37 Phil., 215.)
[Emphasis Ours.]

We cannot agree to above conclusion. From the minors' failure to disclose their minority in the same promissory
note they signed, it does not follow as a legal proposition, that they will not be permitted thereafter to assert it. They
had no juridical duty to disclose their inability. In fact, according to Corpuz Juris Secundum, 43 p. 206;

. . . . Some authorities consider that a false representation as to age including a contract as part of the
contract and accordingly hold that it cannot be the basis of an action in tort. Other authorities hold that such
misrepresentation may be the basis of such an action, on the theory that such misrepresentation is not a
part of, and does not grow out of, the contract, or that the enforcement of liability for such misrepresentation
as tort does not constitute an indirect of enforcing liability on the contract. In order to hold infant liable,
however, the fraud must be actual and not constructure. It has been held that his mere silence when making
a contract as to age does not constitute a fraud which can be made the basis of an action of decit.
(Emphasis Ours.)

The fraud of which an infant may be held liable to one who contracts with him in the belief that he is of full
age must be actual not constructive, and mere failure of the infant to disclose his age is not sufficient. (27
American Jurisprudence, p. 819.)

The Mecado case1 cited in the decision under review is different because the document signed therein by the
minor specifically stated he was of age; here Exhibit A contained no such statement. In other words, in the Mercado
case, the minor was guilty of active misrepresentation; whereas in this case, if the minors were guilty at all, which
we doubt it is of passive (or constructive) misrepresentation. Indeed, there is a growing sentiment in favor of limiting
the scope of the application of the Mercado ruling, what with the consideration that the very minority which
incapacitated from contracting should likewise exempt them from the results of misrepresentation.

We hold, on this point, that being minors, Rodolfo and Guillermo Braganza could not be legally bound by their
signatures in Exhibit A.
It is argued, nevertheless, by respondent that inasmuch as this defense was interposed only in 1951, and inasmuch
as Rodolfo reached the age of majority in 1947, it was too late to invoke it because more than 4 years had elapsed
after he had become emancipated upon reaching the age of majority. The provisions of Article 1301 of the Civil
Code are quoted to the effect that "an action to annul a contract by reason of majority must be filed within 4 years"
after the minor has reached majority age. The parties do not specify the exact date of Rodolfo's birth. It is undenied,
however, that in October 1944, he was 18 years old. On the basis of such datum, it should be held that in October
1947, he was 21 years old, and in October 1951, he was 25 years old. So that when this defense was interposed in
June 1951, four years had not yet completely elapsed from October 1947.

Furthermore, there is reason to doubt the pertinency of the 4-years period fixed by Article 1301 of the Civil Code
where minority is set up only as a defense to an action, without the minors asking for any positive relief from the
contract. For one thing, they have not filed in this case an action for annulment.2 They merely interposed an excuse
from liability.

Upon the other hand, these minors may not be entirely absolved from monetary responsibility. In accordance with
the provisions of Civil Code, even if their written contact is unenforceable because of non-age, they shall make
restitution to the extent that they have profited by the money they received. (Art. 1340) There is testimony that the
funds delivered to them by Villa Abrille were used for their support during the Japanese occupation. Such being the
case, it is but fair to hold that they had profited to the extent of the value of such money, which value has been
authoritatively established in the so-called Ballantine Schedule: in October 1944, P40.00 Japanese notes were
equivalent to P1 of current Philippine money.

Wherefore, as the share of these minors was 2/3 of P70,000 of P46,666.66, they should now return
P1,166.67.3Their promise to pay P10,000 in Philippine currency, (Exhibit A) can not be enforced, as already stated,
since they were minors incapable of binding themselves. Their liability, to repeat, is presently declared without
regard of said Exhibit A, but solely in pursuance of Article 1304 of the Civil Code.

Accordingly, the appealed decision should be modified in the sense that Rosario Braganza shall pay 1/3 of P10,000
i.e., P3,333.334 plus 2% interest from October 1944; and Rodolfo and Guillermo Braganza shall pay jointly5 to the
same creditor the total amount of P1,166.67 plus 6% interest beginning March 7, 1949, when the complaint was
filed. No costs in this instance.

Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion and Endencia, JJ., concur.
G.R. No. 445            March 31, 1902

PEDRO MARTINEZ, plaintiff-appellant, 
vs.
FRANCISCO MARTINEZ, defendant-appellee.

Carlos Ledesma, for appellant.

Felipe Calderon, for appellee.

COOPER, J.:

This is an action brought by Pedro Martinez Ilustre, the son and the compulsory legal heir, against Francisco
Martinez Garcia for a declaration of prodigality against the father.

The allegations in the complaint are substantially: That Don Francisco Martinez, owing to his advanced age, is
dissipating and squandering his estate by making donations to his second wife, Doña Anastacia Ilustre, and to her
parents of properties amounting to over $200,000; that he has given over the administration of this estate to the
management of his wife; that the defendant has a propensity for litigation and has instituted groundless actions
against the plaintiff in order to take possession of the property held in common with the plaintiff to give it to his wife
and her relatives.

In a supplementary prayer plaintiff asked the court to direct that the complaint be entered in the property register of
the province, which was done by order of the court.

The defendant in his answer denies the allegations in the complaint and sets forth a state of facts quite inconsistent
with those alleged in the complaint.

Among other things, it is stated that he has executed in favor of the plaintiff a general power of attorney under which
the plaintiff has administered the community estate for several years; that the plaintiff has caused the
ships Germana, Don Francisco, and Balayan, belonging to the estate, to be registered in his own name without the
consent of the father and is otherwise mismanaging and misappropriating the property of the estate, which caused
the defendant to revoke the power of attorney given to plaintiff, and that the suit brought by the defendant against
the plaintiff was due to the attitude of the son, who, notwithstanding the fact that the power of attorney had been
revoked, refused to render an account of his administration.

The Court of First Instance rendered judgment against the plaintiff and adjudged the costs against him. The plaintiff
has appealed to this court.

The acts which constitute prodigality are not defined in the Civil Code owing to the difficulty of applying general rules
to the varying circumstances of the case and the different situations of persons.

The declaration of prodigality must be made in an ordinary action (en juicio contradictorio). (Art. 221 of the Civil
Code.)

The proceedings must be instituted by the consort or the forced heirs. (Art. 222 of the Civil Code.)

Under our law it may inferred that the acts of prodigality must show a morbid state of mind and a disposition to
spend, waste, and lessen the estate to such an extent as is likely to expose the family to want of support, or to
deprive the forced heirs of their undisposable part of the estate.

Donations are considered as acts of liberality dictated by generosity and affection. All persons who can contract and
dispose of property may make donations. (Art. 624 of the Civil Code.)

Donations may comprise all the actual property of the donor, except such as is required for the support of the donor
in a condition corresponding to his circumstances. (Art. 634 of the Civil Code.)

And with further limitation that no person can give by a donation more than what he can give by testament.

A donation is considered inofficious in all that exceeds such limits. (Art. 636 of the Civil Code.)

Public policy requires that limitations of the character mentioned should be imposed upon the owner, but a law
which would impose restrictions further than such as are required by public policy may well be regarded unjust and
tending in a contrary direction, as destroying the incentive to acquire property, and as subduing the generous
impulse of the heart.

Beyond these limitations the law does not attempt to adjust claims to generosity.
There were a number of witnesses introduced both by the plaintiff and by the defendant whose testimony it is
unnecessary to recount.

The testimony on the part of the plaintiff was wholly insufficient to support the allegations of his complaint. It was
vague, indefinite, and of an inconclusive nature.

The father's estate consisted of city property in Manila; of farms and of certain vessels, two of which are steamships.
There is no evidence offered to show any transfers by sale or mortgage of these properties. This could have been
easily done if such existed. Donations of real property must be made in a public deed (art. 633 of the Civil Code),
and the acquisition of vessels must also be included in a written instrument, and produces no effect with regard to
third person if not recorded in the Commercial Registry. (Art. 573 of the Code of Commerce.)

There is no proof that there was any money belonging to the estate, or other personal property, the transfer of which
could not be easily traced.

The son has been in possession of a greater part of the estate since November, 1897, collecting the revenue from
the ships and rents from the city property.

The farms have been non-productive on account of the disturbed conditions of the country, and the revenue from
even these has been in part collected by the son.

While some of the witnesses state that the possessions of the wife have greatly increased since her marriage, there
is no evidence whatever to show that there has been any perceptible diminution of the defendant's property. This
can be accounted for only on the grounds that the father, so far from being a prodigal, is still in the full exercise of
his faculties and still possesses the industry, thrift, and ability that resulted in the accumulation of a splendid estate
after the date of his marriage with the mother of the plaintiff, to one-half of which estate the plaintiff has succeeded
as heir of the mother.

A careful consideration of the evidence is sufficient to induce the belief that the plaintiff himself possesses that
propensity for instituting lawsuits which he unjustly attributes to his father.

The judgment of the Court of First Instance is affirmed and costs of suits in both courts is adjudged against the
plaintiff.
Marjorie JONES et al., Appellants, v. James HALLAHAN, Clerk of the Jefferson County Court, Appellee.

Court of Appeals of Kentucky.

The appellants, each of whom is a female person, seek review of a judgment of the Jefferson Circuit Court which held
that they were not entitled to have issued to them a license to marry each other.

Appellants contend that the failure of the clerk to issue the license deprived them of three basic constitutional rights,
namely, the right to marry; the right of association; and the right to free exercise of religion. They also contend that the
refusal subjects them to cruel and unusual punishment.

The sections of Kentucky statutes relating to marriage do not include a definition of that term. It must therefore be
defined according to common usage.

Webster's New International Dictionary, Second Edition, defines marriage as follows:

A state of being married, or being united to a person or persons of the opposite sex as husband or wife; also, the mutual
relation of husband and wife; wedlock; abstractly, the institution whereby men and women are joined in a special kind
of social and legal dependence, for the purpose of founding and maintaining a family.

The Century Dictionary and Encyclopedia defines marriage as:

The legal union of a man with a woman for life; the state or condition of being married; the legal relation of spouses to
each other; wedlock; the formal declaration or contract by which a man and a woman join in wedlock.

Black's Law Dictionary, Fourth Edition, defines marriage as:

The civil status, condition or relation of one man and one woman united in law for life, for the discharge to each other
and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.

Kentucky statutes do not specifically prohibit marriage between persons of the same sex 1 nor do they authorize the
issuance of a marriage license to such persons.

Marriage was a custom long before the state commenced to issue licenses for that purpose. For a time the records of
marriage were kept by the church. Some states even now recognize a common-law marriage which has neither the
benefit of license nor clergy. In all cases, however, marriage has always been considered as the union of a man and a
woman and we have been presented with no authority to the contrary.

It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the
County Court Clerk of Jefferson County to issue them a license, but rather by their own incapability of entering into a
marriage as that term is defined.

A license to enter into a status or a relationship which the parties are incapable of achieving is a nullity. If the appellants
had concealed from the clerk the fact that they were of the same sex and he had issued a license to them and a
ceremony had been performed, the resulting relationship would not constitute a marriage.

This is a case of first impression in Kentucky. To our knowledge, only two other states have considered the question and
both of them have reached the same result that we reach in this opinion. Baker

v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed for want of a substantial federal question, 409 U.S.
810, 93 S.Ct. 37, 34 L.Ed.2d 65; Anonymous v. Anonymous, 67 Misc.2d 982, 325 N.Y.S.2d 499.

Baker v. Nelson considered many of the constitutional issues raised by the appellants here and decided them adversely
to appellants. In our view, however, no constitutional issue is involved. We find no constitutional sanction or protection
of the right of marriage between persons of the same sex.

The claim of religious freedom cannot be extended to make the professed doctrines superior to the law of the land and
in effect to permit every citizen to become a law unto himself. Reynolds v. United States, 98 U.S. 145. We do not
consider the refusal to issue the license a punishment.

In substance, the relationship proposed by the appellants does not authorize the issuance of a marriage license because
what they propose is not a marriage.

The judgment is affirmed.

All concur.
 G.R. No. 174689             October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner, 

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and female. (Genesis
5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the
bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then
twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and
the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful).
(The Legend of Malakas and Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by
a physician using scalpel, drugs and counseling with regard to a person’s sex? May a person successfully petition
for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name
and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case
No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and
Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female"
and that he had always identified himself with girls since childhood.1 Feeling trapped in a man’s body, he consulted
several doctors in the United States. He underwent psychological examination, hormone treatment and breast
augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent
sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a
plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner)
had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name
in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a newspaper of general
circulation in Metro Manila, for three consecutive weeks.3 Copies of the order were sent to the Office of the Solicitor
General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was
made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fiancé, Richard
P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of making his birth records compatible with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles
of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like
a woman, now possesses the physique of a female. Petitioner’s misfortune to be trapped in a man’s body is
not his own doing and should not be in any way taken against him.
 Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community
in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on
the part of the petitioner and her [fiancé] and the realization of their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition despite due
notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any
[o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of
Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioner’s
first name from "Rommel Jacinto" to MELY and petitioner’s gender from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the
Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of
sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial
court’s decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of
birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republic’s petition,
set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for
reconsideration but it was denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407
to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the
trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any
unlawful motive but solely for the purpose of making his birth records compatible with his present
sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil
registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of
name is a privilege, not a right.12 Petitions for change of name are controlled by statutes.13 In this connection, Article
376 of the Civil Code provides:

ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048
provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. –
No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be corrected or changed by the
concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and
its implementing rules and regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain petitions for change of
first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction
over applications for change of first name is now primarily lodged with the aforementioned administrative officers.
The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of
Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first
name are primarily administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of first name or
nickname may be allowed in any of the following cases:
 (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the petitioner and he has
been publicly known by that first name or nickname in the community; or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended to make his first
name compatible with the sex he thought he transformed himself into through surgery. However, a change of name
does not alter one’s legal capacity or civil status.18 RA 9048 does not sanction a change of first name on the ground
of sex reassignment. Rather than avoiding confusion, changing petitioner’s first name for his declared purpose may
only create grave complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or any compelling
reason justifying such change.19 In addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using
his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was not within that
court’s primary jurisdiction as the petition should have been filed with the local civil registrar concerned, assuming it
could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that
provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil
Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and
official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed
petitioner’s petition in so far as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court must look to the
statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or
typographical errors are involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of
Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and
corrections in entries in the civil register.23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx       xxx       xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work
in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or
obvious to the understanding, and can be corrected or changed only by reference to other existing
record or records: Provided, however, That no correction must involve the change of nationality,
age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical
error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are
those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the
civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural
children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur
after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to
replace something with something else of the same kind or with something that serves as a substitute."26 The birth
certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and
sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations,
acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and
deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation
and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the
legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities)
of a person in view of his age, nationality and his family membership.27

The status of a person in law includes all his personal qualities and relations, more or less permanent in
nature, not ordinarily terminable at his own will, such as his being legitimate or illegitimate, or his being
married or not. The comprehensive term status… include such matters as the beginning and end of legal
personality, capacity to have rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis
supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal capacity and civil
status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to
petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife in attendance
at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for
the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax
and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or
midwife in attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of
birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is
not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such
other data as may be required in the regulations to be issued.

xxx       xxx       xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of
birth.29Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife)
by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the
determination of a person’s sex made at the time of his or her birth, if not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of
a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary
usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities
of structure and function that distinguish a male from a female"32 or "the distinction between male and
female."33Female is "the sex that produces ova or bears young"34 and male is "the sex that has organs to produce
spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at
the time a well-known meaning are presumed to have been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be included in the category "female."
For these reasons, while petitioner may have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It
believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First,
even the trial court itself found that the petition was but petitioner’s first step towards his eventual marriage to his
male fiancé. However, marriage, one of the most sacred social institutions, is a special contract of permanent
union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties
who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and
greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which
apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies
under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the
Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be
substantially affected if petitioner’s petition were to be granted.

It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should
govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly
important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or change of
entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented
and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex
reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact
legislation laying down the guidelines in turn governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having
successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything
else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal
branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of
their dreams." No argument about that. The Court recognizes that there are people whose preferences and
orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for
them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be
addressed solely by the legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

 REPUBLIC OF THE PHILIPPINES, G.R. No. 166676
 
Petitioner,
Present:
 
 
 
QUISUMBING, J., Chairperson,
 
CARPIO MORALES,
- versus -
TINGA,
 
VELASCO, JR., and
 
BRION, JJ.
 
 
 
Promulgated:
JENNIFER B. CAGANDAHAN,
 
Respondent.
September 12, 2008

 
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law and seeking a
reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna,
which granted the Petition for Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahans birth certificate: (1) the name Jennifer Cagandahan changed to Jeff
Cagandahan and (2) gender from female to male.

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of Entries in Birth
Certificate[2] before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a female in the
Certificate of Live Birth but while growing up, she developed secondary male characteristics and was diagnosed to
have Congenital Adrenal Hyperplasia (CAH) which is a condition where persons thus afflicted possess both male
and female characteristics. She further alleged that she was diagnosed to have clitoral hyperthropy in her early
years and at age six, underwent an ultrasound where it was discovered that she has small ovaries. At age thirteen,
tests revealed that her ovarian structures had minimized, she has stopped growing and she has no breast or
menstrual development. She then alleged that for all interests and appearances as well as in mind and emotion, she
has become a male person. Thus, she prayed that her birth certificate be corrected such that her gender be
changed from female to male and her first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive weeks and was
posted in conspicuous places by the sheriff of the court. The Solicitor General entered his appearance and
authorized the Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon of the
Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr. Sionzon issued a medical
certificate stating that respondents condition is known as CAH. He explained that genetically respondent is female
but because her body secretes male hormones, her female organs did not develop normally and she has two sex
organs female and male. He testified that this condition is very rare, that respondents uterus is not fully developed
because of lack of female hormones, and that she has no monthly period. He further testified that respondents
condition is permanent and recommended the change of gender because respondent has made up her mind,
adjusted to her chosen role as male, and the gender change would be advantageous to her.

The RTC granted respondents petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to the Court very clear and convincing proofs for
the granting of his petition. It was medically proven that petitioners body produces male hormones,
and first his body as well as his action and feelings are that of a male. He has chosen to be male. He
is a normal person and wants to be acknowledged and identified as a male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to
make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment of the
prescribed fees:

a)                  By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN;

and

b)                  By changing the gender from female to MALE.

It is likewise ordered that petitioners school records, voters registry, baptismal certificate, and
other pertinent records are hereby amended to conform with the foregoing corrected data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the abovementioned
ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:

I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN
COMPLIED WITH; AND,

II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF SEX OR GENDER
IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER A MALE.[4]

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in the birth
certificate of respondent to change her sex or gender, from female to male, on the ground of her medical condition
known as CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules 103 and 108 of
the Rules of Court because while the local civil registrar is an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules of Court, respondents petition before the court a quo did
not implead the local civil registrar. [5] The OSG further contends respondents petition is fatally defective since it
failed to state that respondent is a bona fide resident of the province where the petition was filed for at least three (3)
years prior to the date of such filing as mandated under Section 2(b), Rule 103 of the Rules of Court. [6] The OSG
argues that Rule 108 does not allow change of sex or gender in the birth certificate and respondents claimed
medical condition known as CAH does not make her a male.[7]

On the other hand, respondent counters that although the Local Civil Registrar of Pakil, Laguna was not
formally named a party in the Petition for Correction of Birth Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on December 16, 2003 and all pleadings, orders or processes
in the course of the proceedings, [8] respondent is actually a male person and hence his birth certificate has to be
corrected to reflect his true sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and respondent
substantially complied with the requirements of Rules 103 and 108 of the Rules of Court.[11]
Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his name shall present the petition to the Regional
Trial Court of the province in which he resides, [or, in the City of Manila, to the Juvenile and
Domestic Relations Court].

SEC. 2. Contents of petition. A petition for change of name shall be signed and verified by the
person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is
filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

SEC. 3. Order for hearing. If the petition filed is sufficient in form and substance, the court, by an
order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall
direct that a copy of the order be published before the hearing at least once a week for three (3)
successive weeks in some newspaper of general circulation published in the province, as the court
shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election
nor within four (4) months after the last publication of the notice.

SEC. 4. Hearing. Any interested person may appear at the hearing and oppose the petition. The
Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of
the Republic.

SEC. 5. Judgment. Upon satisfactory proof in open court on the date fixed in the order that such
order has been published as directed and that the allegations of the petition are true, the court shall,
if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such
name be changed in accordance with the prayer of the petition.

SEC. 6. Service of judgment. Judgments or orders rendered in connection with this rule shall be
furnished the civil registrar of the municipality or city where the court issuing the same is situated,
who shall forthwith enter the same in the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in the civil register, may file a verified
petition for the cancellation or correction of any entry relating thereto, with the Regional Trial Court of
the province where the corresponding civil registry is located.

SEC. 2. Entries subject to cancellation or correction. Upon good and valid grounds, the following
entries in the civil register may be cancelled or corrected: (a) births; (b) marriages; (c) deaths; (d)
legal separations; (e) judgments of annulments of marriage; (f) judgments declaring marriages void
from the beginning; (g) legitimations; (h) adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of a minor; and (o) changes of name.

SEC. 3. Parties. When cancellation or correction of an entry in the civil register is sought, the civil
registrar and all persons who have or claim any interest which would be affected thereby shall be
made parties to the proceeding.

SEC. 4. Notice and publication. Upon the filing of the petition, the court shall, by an order, fix the
time and place for the hearing of the same, and cause reasonable notice thereof to be given to the
persons named in the petition. The court shall also cause the order to be published once a week for
three (3) consecutive weeks in a newspaper of general circulation in the province.

SEC. 5. Opposition. The civil registrar and any person having or claiming any interest under the
entry whose cancellation or correction is sought may, within fifteen (15) days from notice of the
petition, or from the last date of publication of such notice, file his opposition thereto.
 SEC. 6. Expediting proceedings. The court in which the proceedings is brought may make orders
expediting the proceedings, and may also grant preliminary injunction for the preservation of the
rights of the parties pending such proceedings.

SEC. 7. Order. After hearing, the court may either dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a certified copy of the judgment shall be served
upon the civil registrar concerned who shall annotate the same in his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103 and 108 of
the Rules of Court because respondents petition did not implead the local civil registrar. Section 3, Rule 108
provides that the civil registrar and all persons who have or claim any interest which would be affected thereby shall
be made parties to the proceedings. Likewise, the local civil registrar is required to be made a party in a proceeding
for the correction of name in the civil registry. He is an indispensable party without whom no final determination of
the case can be had.[12] Unless all possible indispensable parties were duly notified of the proceedings, the same
shall be considered as falling much too short of the requirements of the rules.[13] The corresponding petition should
also implead as respondents the civil registrar and all other persons who may have or may claim to have any
interest that would be affected thereby. [14] Respondent, however, invokes Section 6,[15] Rule 1 of the Rules of Court
which states that courts shall construe the Rules liberally to promote their objectives of securing to the parties a just,
speedy and inexpensive disposition of the matters brought before it. We agree that there is substantial compliance
with Rule 108 when respondent furnished a copy of the petition to the local civil registrar.

The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look
to the statutes. In this connection, Article 412 of the Civil Code provides:
 

ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act No. 9048 [17] in so
far as clerical or typographical errors are involved. The correction or change of such matters can now be made
through administrative proceedings and without the need for a judicial order. In effect, Rep. Act No. 9048 removed
from the ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now applies only to
substantial changes and corrections in entries in the civil register.[18]

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a mere clerical
or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of
Court.[19]

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court
are those provided in Articles 407 and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded
in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments
of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction;
(14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of
name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that
occur after birth.[20]
 Respondent undisputedly has CAH. This condition causes the early or inappropriate appearance of male
characteristics. A person, like respondent, with this condition produces too much androgen, a male hormone. A
newborn who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral opening at
the base, an ambiguous genitalia often appearing more male than female; (2) normal internal structures of the
female reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older, some features
start to appear male, such as deepening of the voice, facial hair, and failure to menstruate at puberty. About 1 in
10,000 to 18,000 children are born with CAH.

CAH is one of many conditions [21] that involve intersex anatomy. During the twentieth century, medicine
adopted the term intersexuality to apply to human beings who cannot be classified as either male or female. [22] The
term is now of widespread use. According to Wikipedia, intersexuality is the state of a living thing of
a gonochoristic species whose sex chromosomes, genitalia, and/or secondary sex characteristics are determined to
be neither exclusively male nor female. An organism with intersex may have biological characteristics of both male
and female sexes.

Intersex individuals are treated in different ways by different cultures. In most societies, intersex individuals

have been expected to conform to either a male or female gender role. [23] Since the rise of modern medical science
in Western societies, some intersex people with ambiguous external genitalia have had their genitalia surgically
modified to resemble either male or female genitals.[24] More commonly, an intersex individual is considered as
suffering from a disorder which is almost always recommended to be treated, whether by surgery and/or by taking
lifetime medication in order to mold the individual as neatly as possible into the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various degrees
of intersex as variations which should not be subject to outright denial. It has been suggested that there is some
middle ground between the sexes, a no-mans land for those individuals who are neither truly male nor truly female.
[25]
 The current state of Philippine statutes apparently compels that a person be classified either as a male or as a
female, but this Court is not controlled by mere appearances when nature itself fundamentally negates such rigid
classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a change in the
birth certificate entry for gender. But if we determine, based on medical testimony and scientific development
showing the respondent to be other than female, then a change in the

subjects birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically female nor
consistently and categorically male) composition. Respondent has female (XX) chromosomes. However,
respondents body system naturally produces high levels of male hormones (androgen). As a result, respondent has
ambiguous genitalia and the phenotypic features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the determining
factor in his gender classification would be what the individual, like respondent, having reached the age of majority,
with good reason thinks of his/her sex. Respondent here thinks of himself as a male and considering that his body
produces high levels of male hormones (androgen) there is preponderant biological support for considering him as
being male. Sexual development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to arrest or
interfere with what he was born with. And accordingly, he has already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like taking lifelong medication,[26] to force his body into the
categorical mold of a female but he did not. He chose not to do so. Nature has instead taken its due course in
respondents development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a matter so
innately private as ones sexuality and lifestyle preferences, much less on whether or not to undergo medical
treatment to reverse the male tendency due to CAH. The Court will not consider respondent as having erred in not
choosing to undergo treatment in order to become or remain as a female. Neither will the Court force respondent to
undergo treatment and to take medication in order to fit the mold of a female, as society commonly currently knows
this gender of the human species. Respondent is the one who has to live with his intersex anatomy. To him belongs
the human right to the pursuit of happiness and of health. Thus, to him should belong the primordial choice of what
courses of action to take along the path of his sexual development and maturation. In the absence of evidence that
respondent is an incompetent[27] and in the absence of evidence to show that classifying respondent as a male will
harm other members of society who are equally entitled to protection under the law, the Court affirms as valid and
justified the respondents position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an individual deals
with what nature has handed out. In other words, we respect respondents congenital condition and his mature
decision to be a male. Life is already difficult for the ordinary person. We cannot but respect how respondent deals
with his unordinary state and thus help make his life easier, considering the unique circumstances in this case.

As for respondents change of name under Rule 103, this Court has held that a change of name is not a
matter of right but of judicial discretion, to be exercised in the light of the reasons adduced and the consequences
that will follow.[28] The trial courts grant of respondents change of name from Jennifer to Jeff implies a change of a
feminine name to a masculine name. Considering the consequence that respondents change of name merely
recognizes his preferred gender, we find merit in respondents change of name. Such a change will conform with the
change of the entry in his birth certificate from female to male.

WHEREFORE, the Republics petition is DENIED. The Decision dated January 12, 2005 of the Regional
Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.
 Court of Appeals of Texas,San Antonio.
Christie Lee LITTLETON, Individually and as Next Heir of Jonathon Mark Littleton, Appellant, v. Dr. Mark
PRANGE, Appellee.

No. 04-99-00010-CV.
    Decided: October 27, 1999
Sitting:  PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, KAREN ANGELINI, Justice.Dale Hicks,Jon
A. Hyde, Maloney & Maloney, P.C., San Antonio, for Appellant. Thomas F. Nye, Linda C. Breck, Brin & Brin, P.C.,
Corpus Christi, for Appellee.

OPINION

This case involves the most basic of questions.   When is a man a man, and when is a woman a woman?   Every
schoolchild, even of tender years, is confident he or she can tell the difference, especially if the person is wearing no
clothes.   These are observations that each of us makes early in life and, in most cases, continue to have more than
a passing interest in for the rest of our lives.   It is one of the more pleasant mysteries.

The deeper philosophical (and now legal) question is:  can a physician change the gender of a person with a
scalpel, drugs and counseling, or is a person's gender immutably fixed by our Creator at birth?   The answer to that
question has definite legal implications that present themselves in this case involving a person named Christie Lee
Littleton.

factual Background

A complete stipulation of the facts was made by the parties in this case.

Christie is a transsexual.   She was born in San Antonio in 1952, a physically healthy male, and named after her
father, Lee Cavazos.   At birth, she was named Lee Cavazos, Jr. (Throughout this opinion Christie will be referred
to as “She.” This is for grammatical simplicity's sake, and out of respect for the litigant, who wishes to be called
“Christie,” and referred to as “she.”   It has no legal implications.)

At birth, Christie had the normal male genitalia:  penis, scrotum and testicles.   Problems with her sexual identity
developed early though.   Christie testified that she considered herself female from the time she was three or four
years old, the contrary physical evidence notwithstanding.   Her distressed parents took her to a physician, who
prescribed male hormones.   These were taken, but were ineffective.   Christie sought successfully to be excused
from sports and physical education because of her embarrassment over changing clothes in front of the other boys.

By the time she was 17 years old, Christie was searching for a physician who would perform sex reassignment
surgery.   At 23, she enrolled in a program at the University of Texas Health Science Center that would lead to a
sex reassignment operation.   For four years Christie underwent psychological and psychiatric treatment by a
number of physicians, some of whom testified in this case.

On August 31, 1977, Christie's name was legally changed to Christie Lee Cavazos.   Under doctor's orders, Christie
also began receiving various treatments and female hormones.   Between November of 1979 and February of
1980, Christie underwent three surgical procedures, which culminated in a complete sex reassignment.   Christie's
penis, scrotum and testicles were surgically removed, and a vagina and labia were constructed.   Christie
additionally underwent breast construction surgery.

Dr. Donald Greer, a board certified plastic surgeon, served as a member of the gender dysphoria team at UTHSC in
San Antonio, Texas during the time in question.   Dr. Paul Mohl, a board certified psychiatrist, also served as a
member of the same gender dysphoria team.   Both participated in the evaluation and treatment of Christie.   The
gender dysphoria team was a mutli-disciplinary team that met regularly to interview and care for transsexual
patients.

The parties stipulated that Dr. Greer and Dr. Mohl would testify that their background, training, education and
experience is consistent with that reflected in their curriculum vitaes, which were attached to their respective
affidavits in Christie's response to the motions for summary judgment.   In addition, Dr. Greer and Dr. Mohl would
testify that the definition of a transsexual is someone whose physical anatomy does not correspond to their sense of
being or their sense of gender, and that medical science has not been able to identify the exact cause of this
condition, but it is in medical probability a combination of neuro-biological, genetic and neonatal environmental
factors.   Dr. Greer and Dr. Mohl would further testify that in arriving at a diagnosis of transsexualism in Christie, the
program at UTHSC was guided by the guidelines established by the Johns Hopkins Group and that, based on these
guidelines, Christie was diagnosed psychologically and psychiatrically as a genuine male to female transsexual.  
Dr. Greer and Dr. Mohl also would testify that true male to female transsexuals are, in their opinion, psychologically
and psychiatrically female before and after the sex reassignment surgery, and that Christie is a true male to female
transsexual.

On or about November 5, 1979, Dr. Greer served as a principal member of the surgical team that performed the sex
reassignment surgery on Christie.   In Dr. Greer's opinion, the anatomical and genital features of Christie, following
that surgery, are such that she has the capacity to function sexually as a female.   Both Dr. Greer and Dr. Mohl
would testify that, in their opinions, following the successful completion of Christie's participation in UTHSC's gender
dysphoria program, Christie is medically a woman.

Christie married a man by the name of Jonathon Mark Littleton in Kentucky in 1989, and she lived with him until his
death in 1996.   Christie filed a medical malpractice suit under the Texas Wrongful Death and Survival Statute in her
capacity as Jonathon's surviving spouse.   The sued doctor, appellee here, filed a motion for summary judgment.  
The motion challenged Christie's status as a proper wrongful death beneficiary, asserting that Christie is a man and
cannot be the surviving spouse of another man.

The trial court agreed and granted the summary judgment.   The summary judgment notes that the trial court
considered the summary judgment evidence, the stipulation, and the argument of counsel.   In addition to the
stipulation, Christie's affidavit was attached to her response to the motion for summary judgment.   In her affidavit,
Christie states that Jonathon was fully aware of her background and the fact that she had undergone sex
reassignment surgery.

The Legal Issue

 Can there be a valid marriage between a man and a person born as a man, but surgically altered to have the
physical characteristics of a woman?

Overview of Issue

This is a case of first impression in Texas.   The underlying statutory law is simple enough.   Texas (and Kentucky,
for that matter), like most other states, does not permit marriages between persons of the same sex.   See Tex.
Fam.Code Ann. § 2.001(b) (Vernon 1998);  Ky.Rev.Stat. Ann. § 402.020(1)(d) (Banks-Baldwin 1999).   In order to
have standing to sue under the wrongful death and survival statues, Christie must be Jonathon's surviving spouse.  
Tex. Civ. Prac. & Rem.Code Ann. §§ 71.004, 71.021 (Vernon 1977).   The defendant's summary judgment burden
was to prove she is not the surviving spouse.   Referring to the statutory law, though, does not resolve the issue.  
This court, as did the trial court below, must answer this question:  Is Christie a man or a woman?   There is no
dispute that Christie and Jonathon went through a ceremonial marriage ritual.   If Christie is a woman, she may
bring this action.   If Christie is a man, she may not.

Christie is medically termed a transsexual, a term not often heard on the streets of Texas, nor in its courtrooms.   If
we look at other states or even other countries to see how they treat marriages of transsexuals, we get little help.  
Only a handful of other states, or foreign countries, have even considered the case of the transsexual.   The
opposition to same-sex marriages, on the other hand, is very wide spread.   Only one state has ever ruled in favor
of same-sex marriage:  Hawaii, in the case of Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993).   All other cases
soundly reject the concept of same-sex marriages.   See, e.g., Dean v. District of Columbia, 653 A.2d 307
(D.C.1995);  Jones v. Hallahan, 501 S.W.2d 588 (Ky.1973);  Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185
(1971), aff'd, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972);  Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187
(1974).   Congress has even passed the Defense of Marriage Act (DOMA), just in case a state decides to recognize
same-sex marriages.

DOMA defines marriage for federal purposes as a “legal union between one man and one woman,” and provides
that no state “shall be required to give effect to any public act, record, or judicial proceeding of any other state
respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such
other State ․ or a right or claim arising from such relationship.”   Defense of Marriage Act, Pub.L. No. 104-109, § 
2(a), 110 Stat. 2419 (1996) (codified as amended at 28 U.S.C.A. § 1738C (West Supp.1997).   So even if one state
were to recognize same-sex marriages it would not need to be recognized in any other state, and probably would
not be.   Marriage is tightly defined in the United States:  “a legal union between one man and one woman.”   See
id. § 3(a).

Public antipathy toward same-sex marriages notwithstanding, the question remains:  is a transsexual still the same
sex after a sex-reassignment operation as before the operation?   A transsexual, such as Christie, does not
consider herself a homosexual because she does not consider herself a man.   Her self-identity, from childhood,
has been as a woman.   Since her various operations, she does not have the outward physical characteristics of a
man either.   Through the intervention of surgery and drugs, Christie appears to be a woman.   In her mind, she
has corrected her physical features to line up with her true gender.

“Although transgenderism is often conflated with homosexuality, the characteristic, which defines transgenderism, is
not sexual orientation, but sexual identity.   Transgenderism describes people who experience a separation
between their gender and their biological/anatomical sex.”   Mary Coombs, Sexual Dis-Orientation:  Transgendered
People and Same-Sex Marriage, 8 uCLA Women's L.J. 219, 237 (1998).
Nor should a transsexual be confused with a transvestite, who is simply a man who attains some sexual satisfaction
from wearing women's clothes.   Christie does not consider herself a man wearing women's clothes;  she considers
herself a woman wearing women's clothes.   She has been surgically and chemically altered to be a woman.   She
has officially changed her name and her birth certificate to reflect her new status.   But the question remains
whether the law will take note of these changes and treat her as if she had been born a female.   To answer this
question, we consider the law of those jurisdictions who have previously decided it.

Case Law

The English case of Corbett v. Corbett, 2 All E.R. 33, 1970 WL 29661 (P.1970), appears to be the first case to
consider the issue, and is routinely cited in later cases, including those cases from the United States.   April Ashley,
like Christie Littleton, was born a male, and like Christie, had undergone a sex-reassignment operation.  Id. at 35-
36.   April later married Arthur Corbett.  Id. at 39.   Arthur subsequently asked for a nullification of the marriage
based upon the fact that April was a man, and the marriage had never been consummated.  Id. at 34.   April
resisted the nullification of her marriage, asserting that the reason the marriage had not been consummated was the
fault of her husband, not her.  Id. at 34-35.   She said she was ready, willing, and able to consummate the
marriage.  Id.

Arthur testified that he was “mesmerised” by April upon meeting her, and he dated her for three years before their
marriage.  Id. at 37.   He said that she “looked like a woman, dressed like a woman and acted like a woman.”  Id.
at 38.   Arthur and April eventually married, but they were never successful in having sexual relations.  Id. at 39.  
Several doctors testified in the case, as they did in the current case.   See id. at 41.

Based upon the doctors' testimony, the court came up with four criteria for assessing the sexual identity of an
individual.   These are:

(1) Chromosomal factors;

(2) Gonadal factors (i.e., presence or absence of testes or ovaries);

(3) Genital factors (including internal sex organs);  and

(4) Psychological factors.

Id. at 44.

Chromosomes are the structures on which the genes are carried which, in turn, are the mechanism by which
hereditary characteristics are transmitted from parents to off-spring.   See id. at 44.   An individual normally has 23
pairs of chromosomes in his or her body cells;  one of each pair being derived from each parent.   See id.   One
pair of chromosomes is known to determine an individual's sex.   See id.   The English court stated that “[T]he
biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed, either by the
natural development of organs of the opposite sex, or by medical or surgical means.   The respondent's operation,
therefore, cannot affect her true sex.”  Id. at 47.   The court then reasoned that since marriage is essentially a
relationship between man and woman, the validity of the marriage depends on whether April is, or is not, a woman.
 Id. at 48.   The court held that the criteria for answering this question must be biological and, having so held, found
that April, a transsexual, “is not a woman for the purposes of marriage but is a biological male and has been so
since birth,” and, therefore, the marriage between Arthur and April was void.  Id. at 48-49.   The court specifically
rejected the contention that individuals could “assign” their own sex by their own volition, or by means of an
operation.  Id. at 49.   In short, once a man, always a man.

The year after Corbett was decided in England, a case involving the validity of a marriage in which one of the
partners was transsexual appeared in a United States court.   This was the case of Anonymous v. Anonymous, 67
Misc.2d 982, 325 N.Y.S.2d 499 (N.Y.Sup.Ct.1971).

This New York case had a connection with Texas.   The marriage ceremony of the transsexual occurred in Belton,
while the plaintiff was stationed at Fort Hood. Id. at 499.   The purpose of the suit was to declare that no marriage
could legally have taken place.  Id. The court pointed out that this was not an annulment of a marriage because a
marriage contract must be between a man and a woman.  Id. at 501.   If the ceremony itself was a nullity, there
would be no marriage to annul, but the court would simply declare that no marriage could legally have taken place.  
Id. The court had no difficulty in doing so, holding:  “The law makes no provision for a ‘marriage’ between persons of
the same sex.   Marriage is and always has been a contract between a man and a woman.”  Id. at 500.

Factually, the New York case was less complicated than Corbett, and the instant case, because there had been no
sexual change operation, and the “wife” still had normal male organs.  Id. at 499.   The plaintiff made this
unpleasant discovery on his wedding night.  Id. The husband in Anonymous was unaware that he was marrying a
transsexual.  Id. In both Corbett and the instant case, the husband was fully aware of the true state of affairs, and
accepted it.   In fact, in the instant case, Christie and her husband were married for seven years, and, according to
the testimony, had normal sexual relations.   This is a much longer period of time than any of the other reported
cases.

The next reported transsexual case came from New Jersey.   This is the only United States case to uphold the
validity of a transsexual marriage.   In M.T. v. J.T., 140 N.J.Super. 77, 355 A.2d 204, 205 (1976), a transsexual wife
brought an action for support and maintenance growing out of her marriage.   The husband interposed a defense
that his wife was male, and that their marriage was void (and therefore he owed nothing).  Id. M.T., the wife,
testified she was born a male, but she always considered herself a female.  Id. M.T. dated men all her life.  Id. After
M.T. met her husband-to-be, J.T., they decided that M.T. would have an operation so she could “be physically a
woman.”  Id.

In 1971, M.T. had an operation where her male organs were removed and a vagina was constructed.  Id. J.T. paid
for the operation, and the couple were married the next year.  Id. M.T. and J.T. lived as husband and wife and had
sexual intercourse.  Id. J.T. supported M.T. for over two years;  however, in 1974, J.T. left the home, and his
support of M.T. ceased.  Id. The lawsuit for maintenance and support followed.

The doctor who had performed the sex-reassignment operation testified.   Id. at 205-06.   He described a
transsexual as a person who has “a great discrepancy between the physical genital anatomy and the person's
sense of self-identity as a male or as a female.”   Id. at 205.   The doctor defined gender identity as “a sense, a total
sense of self as being masculine or female;  it pervades one's entire concept of one's place in life, of one's place in
society and in point of fact the actual facts of the anatomy are really secondary.”  Id. The doctor said that after the
operation his patient had no uterus or cervix, but her vagina had a “good cosmetic appearance” and was “the same
as a normal female vagina after a hysterectomy.”  Id. at 206.

The trial court, in ruling for M.T. by finding the marriage valid, stated:

It is the opinion of the court that if the psychological choice of a person is medically sound, not a mere whim, and
irreversible sex reassignment surgery has been performed, society has no right to prohibit the transsexual from
leading a normal life.   Are we to look upon this person as an exhibit in a circus side show?   What harm has said
person done to society?   The entire area of transsexualism is repugnant to the nature of many persons within our
society.   However, this should not govern the legal acceptance of a fact.

Id. at 207.   The appellate court affirmed, holding:

If such sex reassignment surgery is successful and the postoperative transsexual is, by virtue of medical treatment,
thereby possessed of the full capacity to function sexually as male or female, as the case may be, we perceive no
legal barrier, cognizable social taboo, or reason grounded in public policy to prevent the persons' identification at
least for purposes of marriage to the sex finally indicated.

Id. at 210-11.

Ohio is the last state that has considered this issue.   See In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (Ohio
Probate Ct.1987).  Ladrach was a declaratory judgment action brought to determine whether a male who became a
post-operative female was permitted to marry a male.  Id. at 829-30.   The court decided she may not.  Id. at 832.

Like Christie, Elaine Ladrach started life as a male.  Id. at 830.   Eventually, she had the transsexual operation
which removed the penis, scrotum and testes and constructed a vagina.  Id. The doctor who performed the
operation testified that Elaine now had a “normal female external genitalia.”   Id. He admitted, however, that it would
be “highly unlikely” that a chromosomal test would show Elaine to be a female.  Id. The court cited a New York
Academy of Medicine study of transsexuals that concluded:  “․ male to female transsexuals are still chromosomally
males while ostensibly females.”  Id. at 831.   The court stated that a person's sex is determined at birth by an
anatomical examination by the birth attendant, which was done at Elaine's birth.  Id. at 832.   No allegation had
been made that Elaine's birth attendant was in error.  Id. The court reasoned that the determination of a person's
sex and marital status are legal issues, and, as such, the court must look to the statutes to determine whether the
marriage was permissible.  Id. The court concluded:

This court is charged with the responsibility of interpreting the statutes of this state and judicial interpretations of
these statutes.   Since the case at bar is apparently one of first impression in Ohio, it is this court's opinion that the
legislature should change the statutes, if it is to be the public policy of the state of Ohio to issue marriage licenses to
post-operative transsexuals.

Id. The court denied the marriage license application.  Id.

Other Authorities

In an unreported case, a court in New Zealand was convinced that a fully transitioned transsexual should be
permitted to marry as a member of his new sex because the alternative would be more disturbing.   See Mary
Coombs, Sexual Dis-Orientation:  Transgendered People and Same-Sex Marriage, 8 uCLA Women's L.J. 219, 250
& n. 137 (1998) (citing M. v. M. (unreported) 30 May 1991, S.Ct. of NZ).   That is, if a post-operative transsexual
female was deemed a male, she could marry a woman, in what would to all outward appearances be a same-sex
marriage.  Id. The question would then become whether courts should approve seemingly heterosexual marriages
between a post-operative transsexual female and a genetic male, rather than an apparent same-sex marriage
between a post-operative transsexual female and a genetic female.  Id.

The appellee cites K. v. Health Division of Human Resources, 277 Or. 371, 560 P.2d 1070 (1977), in his brief.  
That case dealt with whether a post-operative transsexual male could alter his birth certificate to change the
designated gender.  Id. The court held that the issue was a matter of public policy to be decided by the Oregon
legislature.  Id. at 376, 560 P.2d 1070.   The legislature did respond to the issue, and Oregon now has a statutory
provision that enables a person whose sex has been changed by surgical procedure to amend his or her birth
certificate.  Or. Rev. Stat. § 432.235(4) (West 1999).   Other states have similar statutory provisions or have
interpreted their statutes to permit such an amendment to a birth certificate.   See In re Ladrach, 513 N.E.2d at 832
(noting fifteen states have permitted a post-operative change of sex designation on birth records).

discussion

Christie challenges the trial court's summary judgment on four issues:  (1) Prange did not carry his summary
judgment burden of proving, as a matter of law, that Christie's marriage was between persons of the same sex;  
there is no summary judgment evidence that Christie was male at the time of her ceremonial marriage to Jonathon
Littleton, the deceased;  (2) Prange did not carry his burden of proving, as a matter of law, that Christie was male at
the time of her ceremonial marriage to Jonathon Littleton, the deceased;  sex at birth is not the test for determining
the sex of a true post-operative transsexual for purposes of marriage;  (3) Prange did not carry his summary
judgment burden of proving, as a matter of law, that Christie's marriage is void;  there is no summary judgment
evidence that rebuts the presumption of validity of marriage;  and (4) the summary judgment should be reversed
because, at the very least, Christie produced summary judgment evidence raising a genuine issue of material fact
that precludes summary judgment.

 In an appeal from a summary judgment, we must determine whether the movant has shown that no genuine issue
of material facts exists and that the movant is entitled to judgment as a matter of law.  Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 548-49 (Tex.1985);  Ray v. O'Neal, 922 S.W.2d 314, 316 (Tex.App.-Fort Worth
1996, writ denied).   In determining whether a material fact issue exists to preclude summary judgment, evidence
favoring the nonmovant is taken as true, and all reasonable inferences are indulged in favor of the nonmovant.  
Nixon v. Mr. Property Management Co., 690 S.W.2d at 548-59.   Furthermore, any doubt is resolved in the
nonmovant's favor.  Id.

As previously noted, this is a case of first impression in Texas.   It involves important matters of public policy for the
state of Texas.   The involvement of juries in the judicial process provides an important voice of the community, but
we do not ask a jury to answer questions without appropriate instructions or guidelines.   In fact, cases are reversed
when juries have not been provided proper instructions.

In our system of government it is for the legislature, should it choose to do so, to determine what guidelines should
govern the recognition of marriages involving transsexuals.   The need for legislative guidelines is particularly
important in this case, where the claim being asserted is statutorily-based.   The statute defines who may bring the
cause of action:  a surviving spouse, and if the legislature intends to recognize transsexuals as surviving spouses,
the statute needs to address the guidelines by which such recognition is governed.   When or whether the
legislature will choose to address this issue is not within the judiciary's control.

It would be intellectually possible for this court to write a protocol for when transsexuals would be recognized as
having successfully changed their sex.   Littleton has suggested we do so, perhaps using the surgical removal of
the male genitalia as the test.   As was pointed out by Littleton's counsel, “amputation is a pretty important step.”  
Indeed it is.   But this court has no authority to fashion a new law on transsexuals, or anything else.   We cannot
make law when no law exists:  we can only interpret the written word of our sister branch of government, the
legislature.   Our responsibility in this case is to determine whether, in the absence of legislatively-established
guidelines, a jury can be called upon to decide the legality of such marriages.   We hold they cannot.   In the
absence of any guidelines, it would be improper to launch a jury forth on these untested and unknown waters.

There are no significant facts that need to be decided.   The parties have supplied them for us.   We find the case,
at this stage, presents a pure question of law and must be decided by this court.

Based on the facts of this case, and the law and studies of previous cases, we conclude:

(1) Medical science recognizes that there are individuals whose sexual self-identity is in conflict with their biological
and anatomical sex.   Such people are termed transsexuals.

(2) A transsexual is not a homosexual in the traditional sense of the word, in that transsexuals believe and feel they
are members of the opposite sex.   Nor is a transsexual a transvestite.   Transsexuals do not believe they are
dressing in the opposite sex's clothes.   They believe they are dressing in their own sex's clothes.

(3) Christie Littleton is a transsexual.

(4) Through surgery and hormones, a transsexual male can be made to look like a woman, including female
genitalia and breasts.   Transsexual medical treatment, however, does not create the internal sexual organs of a
women (except for the vaginal canal).   There is no womb, cervix or ovaries in the post-operative transsexual
female.

(5) The male chromosomes do not change with either hormonal treatment or sex reassignment surgery.  
Biologically a post-operative female transsexual is still a male.
(6) The evidence fully supports that Christie Littleton, born male, wants and believes herself to be a woman.   She
has made every conceivable effort to make herself a female, including a surgery that would make most males pale
and perspire to contemplate.

(7) Some physicians would consider Christie a female;  other physicians would consider her still a male.   Her
female anatomy, however, is all man-made.   The body that Christie inhabits is a male body in all aspects other
than what the physicians have supplied.

We recognize that there are many fine metaphysical arguments lurking about here involving desire and being, the
essence of life and the power of mind over physics.   But courts are wise not to wander too far into the misty fields
of sociological philosophy.   Matters of the heart do not always fit neatly within the narrowly defined perimeters of
statutes, or even existing social mores.   Such matters though are beyond this court's consideration.   Our mandate
is, as the court recognized in Ladrach, to interpret the statutes of the state and prior judicial decisions.   This
mandate is deceptively simplistic in this case:  Texas statutes do not allow same-sex marriages, and prior judicial
decisions are few.

 Christie was created and born a male.   Her original birth certificate, an official document of Texas, clearly so
states.   During the pendency of this suit, Christie amended the original birth certificate to change the sex and
name.   Under section 191.028 of the Texas Health and Safety Code she was entitled to seek such an amendment
if the record was “incomplete or proved by satisfactory evidence to be inaccurate.”  Tex. Health & Safety Code Ann.
§ 191.028 (Vernon 1992).   The trial court that granted the petition to amend the birth certificate necessarily
construed the term “inaccurate” to relate to the present, and having been presented with the uncontroverted affidavit
of an expert stating that Christie is a female, the trial court deemed this satisfactory to prove an inaccuracy.  
However, the trial court's role in considering the petition was a ministerial one.   It involved no fact-finding or
consideration of the deeper public policy concerns presented.   No one claims the information contained in
Christie's original birth certificate was based on fraud or error.   We believe the legislature intended the term
“inaccurate” in section 191.028 to mean inaccurate as of the time the certificate was recorded;  that is, at the time of
birth.   At the time of birth, Christie was a male, both anatomically and genetically.   The facts contained in the
original birth certificate were true and accurate, and the words contained in the amended certificate are not binding
on this court.

There are some things we cannot will into being.   They just are.

conclusion

We hold, as a matter of law, that Christie Littleton is a male.   As a male, Christie cannot be married to another
male.   Her marriage to Jonathon was invalid, and she cannot bring a cause of action as his surviving spouse.

We affirm the summary judgment granted by the trial court.

I concur in the judgment.   Given the complete absence of any legislative guidelines for determining whether Texas
law will recognize a marriage between a male-to-female transsexual and a male, this court is charged with making
that determination.   This case involves no disputed fact issues for a jury to decide, but presents this court with pure
issues of law and public policy.

In his opinion, Chief Justice Hardberger has concluded, based on an analysis of other cases considering this issue,
that Texas law will not recognize Christie Lee Littleton's marriage to John Mark Littleton.   In doing so, Chief Justice
Hardberger notes his agreement with the Ladrach decision, which indicates that this is a matter best left to the
legislature.   He further notes, in accordance with the Corbett case, that because we lack statutory guidance at this
time, we must instead be guided by biological factors such as chromosomes, gonads, and genitalia at birth.  
According to Chief Justice Hardberger, such biological considerations are preferable to psychological factors as
tools for making the decision we must make.   In this case, I must agree.

I note, however, that “real difficulties ․ will occur if these three criteria [chromosomal, gonadal and genital tests] are
not congruent.”   Corbett v. Corbett, 2 All E.R. 33, 48 (P.1970).   We must recognize the fact that, even when
biological factors are considered, there are those individuals whose sex may be ambiguous.   See Julie A.
Greenberg, Defining Male and Female:  Intersexuality and the Collision Between Law and Biology, 41 Ariz. L.Rev.
265 (1999).   Having recognized this fact, I express no opinion as to how the law would view such individuals with
regard to marriage.   We are, however, not presented with such a case at this time.   See Corbett, 2 All E.R. at 48-
49.

The stipulated evidence in the case that is before us establishes that Christie Lee Littleton was born Lee Edward
Cavazos, Jr., a male.   Her doctors described her as a true transsexual, which is “someone whose physical
anatomy does not correspond to their sense of being or their sense of gender․”  Thus, in the case of Christie Lee
Littleton, it appears that all biological and physical factors were congruent and were consistent with those of a typical
male at birth.   The only pre-operative distinction between Christie Lee Littleton and a typical male was her
psychological sense of being a female.   Under these facts, I agree that Texas law will not recognize her marriage
to a male.

Although the standard for reviewing a trial court's order for summary judgment is well-settled in this state, that
standard is not addressed in the majority's opinion.   To prevail on a motion for summary judgment, the movant
must show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of
law.  Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).   In the instant case, this
standard required Dr. Prange to prove that Christie Littleton was not the surviving spouse of Jonathon Littleton.   To
disprove this element of the plaintiff's cause of action, Dr. Prange produced only Christie's original birth certificate.  
This evidence, the majority concludes, is enough to prove as a matter of law that Christie Littleton is a male and
that, as a result, Christie is not Jonathon's surviving spouse.

While a birth certificate would ordinarily establish a person's gender conclusively, Christie presented significant
controverting evidence that indicated she was female.   This evidence was so substantial that it raised a genuine
issue of material fact about whether she was Jonathon's surviving spouse.   In an ordinary summary judgment
case, such controverting evidence would prevent this court from concluding that the movant had met its burden on a
motion for summary judgment.   But in this rather extraordinary case, the majority has determined that there are no
significant facts that need to be determined and concluded that Christie is a male as a matter of law.   Despite this
conclusion, there is no law to serve as the basis of this conclusion.

The absence of controlling law precludes a judgment as a matter of law in this case.   Notably, neither federal nor
state law defines how a person's gender is to be determined.   Our state legislature has not determined the
guidelines that should govern the recognition of marriages involving transsexuals.   Particularly material to this
case, the legislature has not addressed whether a transsexual is to be considered a surviving spouse under the
Wrongful Death and Survival Statutes.   In an ordinary case, the absence of such law would prevent this court from
concluding that the movant was entitled to judgment as a matter of law.   In the instant case, however, the majority
relies on the absence of statutory law to conclude that this case presents a pure question of law that must be
decided by this court rather than to allow the case to proceed to trial;  that is, whether Christie is male or female.

On its surface, the question of whether a person is male or female seems simple enough.   Complicated with the
issues of surgical alteration, sexual identity, and same-sex marriage, the answer is not so simple.   To answer the
question, the majority assumes that gender is accurately determined at birth.   Consider the basis for such a
determination.   Traditionally, an attending physician or mid-wife determines a newborn's gender at birth after a
visual inspection of the newborn's genitalia.   If the child has a penis, scrotum, and testicles, the attendant declares
the child to be male.   If the child does not have a penis, scrotum, and testicles, the attendant declares the child to
be female.   This declaration is then memorialized by a certificate of birth, without an examination of the child's
chromosomes or an inquiry about how the child feels about its sexual identity.   Despite this simplistic approach, the
traditional method of determining gender does not always result in an accurate record of gender.

Texas law recognizes that inaccuracies occur in determining, or at least recording, gender.   By permitting the
amendment of an original birth certificate upon satisfactory evidence, Texas law allows these inaccuracies to be
corrected.  Tex. Health & Safety Code Ann. § 191.028 (Vernon 1992).   Indeed, Christie's gender was lawfully
corrected by an amended birth certificate months before the trial court ruled on Dr. Prange's motion for summary
judgment.   Notably, the amended birth certificate reflects the original filing date of April 10, 1952, the original date
of birth, and an issuance date of August, 14, 1998.   Retention of the original filing date indicates that the amended
birth certificate has been substituted for the original birth certificate in the same way an amended pleading is
substituted for an original pleading in a civil lawsuit.

Under the rules of civil procedure, a document that has been replaced by an amended document is considered a
nullity.   Rule 65 provides that the substituted instrument takes the place of the original.  Tex.R. Civ. P. 65.  
Although neither a state statute nor case law address the specific effect of an amended birth certificate, many cases
address the effect of an amended pleading.   See Randle v. NCNB Texas Nat'l Bank, 812 S.W.2d 381, 384
(Tex.App.-Dallas 1991, no writ) (striking of second amended pleading restored first amended pleading);  Wu v.
Walnut Equip. Leasing Co., 909 S.W.2d 273, 278 (Tex.App.-Houston [14th Dist.] 1995) (unless substituted
instrument is set aside, the instrument for which it is substituted is no longer considered part of the pleading), rev'd
on other grounds, 920 S.W.2d 285 (Tex.1996).   Under this authority, an amended instrument changes the original
and is substituted for the original.   Although a birth certificate is not a legal pleading, the document is an official
state document.   Amendment of the state document is certainly analogous to an amended legal pleading.   In this
case, Christie's amended birth certificate replaced her original birth certificate.   In effect, the amended birth
certificate nullified the original birth certificate.   As a result, summary judgment was issued based on a nullified
document.   How then can the majority conclude that Christie is a male?   If Christie's evidence that she was
female was satisfactory enough for the trial court to issue an order to amend her original birth certificate to change
both her name and her gender, why is it not satisfactory enough to raise a genuine question of material fact on a
motion for summary judgment?

Granted the issues raised by this case are best addressed by the legislature.   In the absence of law addressing
those issues, however, this court is bound to rely on the standard of review and the evidence presented by the
parties.   Here, the stipulated evidence alone raises a genuine question about whether Christie is Jonathon's
surviving spouse.   Every case need not be precedential.   In this case, the court is required to determine as a
matter of law whether Christie is Jonathon's surviving spouse, not to speculate on the legalities of public policies not
yet addressed by our legislature.   Under a focused review of this case, a birth certificate reflecting the birth of a
male child named Lee Cavazos does not prove that Christie Littleton is not the surviving spouse of Jonathan
Littleton.   Having failed to prove that Christie was not Jonathon's surviving spouse, Dr. Prange was not entitled to
summary judgment.   Because Christie's summary judgment evidence raises a genuine question of material fact
about whether she is the surviving spouse of Jonathon Littleton, I respectfully dissent.

Opinion by:  PHIL HARDBERGER, Chief Justice.

 Court of Appeals of Texas,Corpus Christi Edinburg.
In the ESTATE OF Thomas Trevino ARAGUZ III, Deceased.

No. 13–11–00490–CV.
    Decided: February 13, 2014
Before Chief Justice VALDEZ and Justices RODRIGUEZ and LONGORIA.

OPINION

After volunteer firefighter Thomas Trevino Araguz III died in the line of duty, his mother, Simona Longoria, filed this
suit to declare his marriage to Nikki Araguz void as a matter of law on the grounds that it constituted a same sex
marriage.1 See Tex. Const. art. I, § 32(a) (“Marriage in this state shall consist only of the union of one man and one
woman.”); Tex. Fam.Code Ann . § 6.204(b) (West 2006) (“A marriage between persons of the same sex or a civil
union is contrary to the public policy of this state and is void in this state.”). Subsequently, Thomas's ex-wife,
Heather Delgado, intervened as next friend on behalf of their two minor children also contending that Thomas's
marriage to Nikki was void as a matter of law because it constituted a same sex marriage. See Tex. Const. art. I, §
32(a); Tex. Fam.Code Ann. § 6.204(b). Nikki answered the suit and filed a counterclaim to declare the marriage
valid. See Tex. Civ. Prac. & Rem.Code Ann. §§ 37.003–004 (West 2008). The parties filed opposing motions for
summary judgment. See Tex.R. Civ. P. 166a(c), (i). The trial court granted Simona and Heather's motions and
denied Nikki's motion. The court then entered a final judgment in favor of Simona and Heather declaring the
marriage void as a matter of law. See Tex. Fam.Code Ann. § 6.204(b). For the reasons set forth below, we conclude
that the trial court erred in granting the summary judgment because there is a genuine issue of material fact
regarding Nikki's sex and whether the marriage was a same sex marriage. See Tex.R. Civ. P. 166a(c), (i).
Accordingly, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.
See Tex.R.App. P. 43.2(b).

I. Background2

Nikki was born in California in 1975 with male sex organs, including a penis, testes, and scrotum, and without any
female sex organs, such as a vagina or uterus. The name “Justin Graham Purdue” appeared on Nikki's original birth
certificate with the designation that Nikki was “male.” Nevertheless, since early childhood, Nikki was largely taken by
others as a girl. She always reacted favorably to this. By the age of four or five, she expressed feelings of being
female. Nikki began wearing female clothes as an adolescent and has continued to do so for essentially all of her
life. At the age of eighteen, Nikki's physician diagnosed her with “gender dysphoria” (also known as “gender identity
disorder”), a medical condition whereby an individual has longstanding and persistent feelings of being a member of
the opposite sex. Nikki's physician started her on feminizing hormone therapy, and she continued living as a female.

At the age of twenty-one, Nikki filed a petition in the 245th District Court of Harris County, Texas to have her name
changed. In the petition, Nikki states the following: “I, Justin Purdue, am a woman with male anatomy, working
toward a sex change. I have been living and working as a woman for over one year and seek to make my new
name legal and permanent.” On February 9, 1996, the district court issued an order granting a name change from
“Justin Graham Purdue” to “Nikki Paige Purdue.” Subsequently, on April 27, 1996, Nikki filed an application in
California to amend her birth certificate to reflect the name change. Thereafter, on August 21, 1996, the State of
California issued an amended birth certificate reflecting the name change.

After changing her name, Nikki obtained a driver's license from Kansas with the designation that she is female. She
then used the Kansas driver's license to obtain a Texas driver's license with the designation that she is female.

On August 19, 2008, Nikki presented her Texas driver's license to the County Clerk of Wharton County, Texas to
obtain a marriage license. The marriage license indicates that Nikki is a “woman.” On August 23, 2008, Thomas and
Nikki were married in a ceremonial wedding in Wharton County. At the time of the wedding, Nikki had male sex
organs, but she was living as a woman. After the wedding, Thomas and Nikki cohabitated as husband and wife until
the time of Thomas's death in 2010.

In October of 2008, Nikki underwent “genital reassignment” or “neocolporrhaphy” surgery in which her testes were
removed and her penis and scrotum were surgically altered to resemble and function as a labia, clitoris, and vagina.
The procedure was performed in Texas by Dr. Marci Bowers, a Texas licensed physician. The parties dispute
whether Thomas was aware of Nikki's operation. On April 28, 2010, just two months before his death, Thomas gave
a deposition in a family court proceeding involving the custody of his two sons in which he testified that he did not
know that Nikki had undergone genital reassignment surgery. Thomas testified that he did not know that his wife
was “formerly male” or that she had any type of “gender surgery.” According to Thomas's testimony, Nikki
represented herself as “female” prior to their marriage. Nikki maintains that before Thomas's deposition, she and
Thomas agreed to take the position that she was female from birth. According to Nikki, Thomas was fully aware of
the genital reassignment surgery.

Thomas died on July 3, 2010. On July 15, 2010, Nikki filed a petition in the superior court of San Francisco County,
California requesting the issuance of a new birth certificate reflecting the change of her sex from male to female. On
July 20, 2010, the California court entered an order changing Nikki's sex from male to female. Thereafter, on August
30, 2010, the State of California issued a birth certificate stating that Nikki is “female.”

II. Procedural History

As set forth above, Thomas's mother, Simona, initiated this suit on July 12, 2010 seeking to have Thomas's
marriage to Nikki declared void as a same sex marriage. See Tex. Fam.Code Ann. § 6.204(b). Thomas's ex-wife,
Heather, subsequently intervened as next friend on behalf of their two minor children also seeking to have the
marriage declared void. See id. Nikki answered the suit and filed a counterclaim to declare the marriage valid. The
parties then filed opposing motions for summary judgment as follows.

A. Heather's Motion for Summary Judgment

On October 26, 2010, Heather filed a traditional motion for summary judgment, with attached evidence,3asserting
the following grounds for summary judgment:

(1) The marriage was void pursuant to Article I, Section 32 of the Texas Constitution, which provides that “marriage
in this state shall consist only of the union of one man and one woman.” Tex. Const. art. I, § 32(a).

(2) The marriage was void pursuant to Section 6.204(b) of the Texas Family Code, which provides that “a marriage
between persons of the same sex is ․ contrary to the public policy of this state and is void as a matter of law.” Tex.
Fam.Code Ann. § 6 .204(b).

(3) As a matter of law, no informal marriage could have existed between Thomas and Nikki because Section 2.401
of the Texas Family Code provides for informal marriage only between a man and a woman, as decided by the San
Antonio Court of Appeals in Littleton v. Prange, 9 S.W.3d 223, 231 (Tex.App.-San Antonio 1999, pet. denied). See
Tex. Fam.Code Ann. § 2.401 (West 2006).

See Tex.R. Civ. P. 166a(c).

B. Nikki's Motion for Summary Judgment

On April 21, 2011, Nikki filed a “no evidence” motion for summary judgment asserting that she was entitled to
judgment as a matter of law because Heather and Simona could produce no evidence that Thomas and Nikki did
not have a valid ceremonial marriage or, alternatively, a valid informal marriage. See Tex.R. Civ. P. 166a(i).4

C. Heather's Response to Nikki's Motion

On May 13, 2011, Heather filed her response to Nikki's motion for summary judgment with evidence attached.5In her
response, Heather argued that summary judgment was not proper because of the following:

(1) “It is undisputed that as of the date of the statutory marriage between Thomas ․ and Nikki ․, the participants in the
ceremony were both men.”

(2) No informal marriage could have existed between Thomas and Nikki after the genital reassignment surgery in
2008 because “Nikki ․ took no steps to legally change her sex from male to female until July 15, 2010,” after
Thomas's death.

(3) No informal marriage could exist because, under Littleton, a person's gender, while subject to physical
manipulation for the purpose of assuming the appearance of an alternate gender, is nonetheless governed by the
gender of the person at birth, as determined by both anatomical and genetic examinations of the person. See
Littleton, 9 S.W.3d at 224.

D. Simona's Response to Nikki's Motion

On April 21, 2011, Simona filed her response to Nikki's motion for summary judgment with evidence attached.6In her
response, Simona argued that a “no evidence” summary judgment was improper because Nikki had the burden of
proof to establish the existence of an informal marriage. See State v. Mireles, 904 S.W.2d 885, 888 (Tex.App.-
Corpus Christi 1995, pet. ref'd) (“The burden of proof is on the one seeking to establish the existence of such a
marriage.”); but see Tex. Fam.Code Ann. § 1.101 (West 2006) (“[E]very marriage entered into in this state is
presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6
and annulled as provided by that chapter.”).

E. Simona's Motion for Summary Judgment

Also on April 21, 2011, Simona filed a traditional motion for summary judgment, with attached evidence,7asserting
the following grounds for summary judgment:

(1) The purported marriage between Thomas and Nikki was void because at the time of their marriage, both
Thomas and Nikki were males. See Tex. Fam.Code Ann. § 6.204(b).

(2) No informal marriage could exist between Thomas and Nikki after the date of Nikki's operation (October 7, 2008)
based on Littleton. See Littleton, 9 S.W.3d at 230.

(3) The purported marriage is void based on judicial estoppel because Nikki previously claimed that she was a male
in a separate court proceeding.

See Tex.R. Civ. P. 166a(c).

F. Nikki's Response to Heather and Simona's Motions

On May 13, 2011, Nikki filed her response to Heather and Simona's motions for summary judgment with evidence
attached.8 In her response, Nikki argued that summary judgment was improper based on the following grounds:

(1) Littleton was overruled by the 2009 amendment to section 2.005 of the Texas Family Code, which added “an
original or certified copy of a court order relating to the applicant's name change or sex change” to the list of
acceptable “proof of identity and age” for purposes of obtaining a marriage license. See Tex. Fam.Code Ann. §
2.005(b)(8) (West Supp.2013).

(2) Nikki's gender has always been female, as evidenced by the birth certificate issued by the State of California on
August 30, 2010 stating that she is “female” and the corresponding judgment of the California court, to which the
court must give full faith and credit by ruling that the other two birth certificates issued by the State of California in
1975 and 1996, respectively, and her discovery answers are a “nullity” that cannot be proper summary judgment
evidence. See U.S. Const. art. IV, § 1.9

(3) Nikki was female at the time of the ceremonial marriage because according to the World Professional
Association for Transgender Health (“WPATH”) standards of care, she “successfully transitioned” to the female sex
years before she met Thomas.10

(4) Nikki was female prior to her genital reassignment surgery, as evidenced by her medical records prepared by
Marci Bowers, M.D.11

(5) An informal marriage existed between Thomas and Nikki. See Tex. Fam.Code Ann. § 2.401(a).

(6) Simona did not plead judicial estoppel.

(7) The Equal Protection clause of the Fourteenth Amendment to the United States Constitution requires Texas to
recognize “a post-operative transgendered individual's current sex.” See U.S. Const. amend. XIV, § 1.

G. The Trial Court's Ruling

On May 26, 2011, the trial court granted Heather and Simona's traditional motions for summary judgment and
denied Nikki's no evidence motion for summary judgment. See Tex.R. Civ. P. 166a(c), (i). The trial court's judgment
declares that Thomas was not married on the date of his death and that any purported marriage between Thomas
and Nikki was void as a matter of law. The remaining issues pertaining to the estate were severed from this cause,
and the trial court's judgment became final and appealable.

III. Issues on Appeal

On appeal, Nikki argues that the trial court erred in granting summary judgment for the following reasons:

(1) Thomas and Nikki's marriage was valid because the uncontroverted summary judgment evidence established
that Nikki was female.

(2) Thomas and Nikki's marriage was validated by the 2009 amendments to the Texas Family Code.

(3) Thomas and Nikki's marriage was valid under the United States and Texas Constitutions, considering that—

a. The California judgment and birth certificate identifying Nikki's sex as female are entitled to full faith and credit in
Texas, and

b. The trial court's judgment invalidating the marriage violates Nikki's rights under the Texas Equal Rights
Amendment and the Fourteenth Amendment to the United States Constitution.

(4) Thomas and Nikki's marriage would be valid in most jurisdictions.

(5) The Littleton decision is not controlling.

(6) The judgment cannot be affirmed based on judicial estoppel.

(7) Even if Thomas and Nikki's marriage were incorrectly deemed a “same sex” marriage, Texas courts cannot
constitutionally declare it void on that basis.

IV. Standard of Review

“We review a summary judgment de novo.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex.2009) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003)). “We review the
evidence presented in the motion and response in the light most favorable to the party against whom the summary
judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not.” Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex.2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002)). “The party moving for traditional
summary judgment bears the burden of showing no genuine issue of material fact exists and it is entitled to
judgment as a matter of law.” Id. (citing Tex.R. Civ. P. 166a(c); Knott, 128 S.W.3d at 216). “When both sides move
for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment
evidence presented by both sides and determine all questions presented.” Id. (citing Comm'rs Court of Titus County
v. Agan, 940 S.W.2d 77, 81 (Tex.1997)). “In such a situation, we render the judgment as the trial court should have
rendered.” Id. (citing Agan, 940 S.W.2d at 81).

In this case, the parties filed competing motions for summary judgment in which each litigant asserted that there
were no genuine issues of material fact; however, the Texas Supreme Court has explained as follows:

When both sides file motions for summary judgment, each litigant in support of his own motion necessarily takes the
position that there is no genuine issue of fact in the case and that he is entitled to judgment as a matter of law. While
it does not necessarily follow that when both sides file motions for summary judgment there is no genuine fact issue
in the case, it does indicate that the legal controversy is one which generally turns upon an interpretation of some
rule of law and both sides are prepared to present their respective contentions with reference thereto.

Ackermann v. Vordenbaum, 403 S.W.2d 362, 364–65 (Tex.1966); see also Coker v. Coker, 650 S.W.2d 391, 392
(Tex.1983) (reversing summary judgment and remanding for trial even though both sides moved for summary
judgment and asserted settlement agreement was unambiguous).

V. Applicable Law

The Texas Constitution defines a marriage as “the union of one man and one woman.” See Tex. Const. art. I, §
32(a). Furthermore, the Texas Family Code provides that “[a] marriage between persons of the same sex or a civil
union is contrary to the public policy of this state and is void in this state.” Tex. Fam.Code Ann. § 6.204(b).
Consistent with the foregoing, the Texas Family Code states that “[a] license may not be issued for the marriage of
persons of the same sex,” id. § 2.001(b) (West 2006), and it also provides that an informal marriage may exist only
between a “man and woman.” Id. § 2.401(a).

“[I]n order to provide stability for those entering into the marriage [relationship] in good faith ․ it is the policy of this
state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the
marriage void or voidable.” Id. § 1.101 (West 2006). “The presumption in favor of the validity of a marriage ․ is one of
the strongest, if, indeed, not the strongest, known to law.” Tex. Employers' Ins. Ass'n v. Elder, 282 S.W.2d 371, 373
(Tex.1955). “The presumption is, in itself, evidence, and may even outweigh positive evidence to the contrary.” Id.
“The strength of the presumption increases with the lapse of time, acknowledgments by the parties to the marriage,
and the birth of children.” Id. Thus, “the well-established rule [is] that, when a marriage has been duly established its
legality will be presumed, and the burden of proving the contrary is upon the one attacking its legality.” Id. However,
because same sex marriages are “expressly made void by Chapter 6 [of the Texas Family Code],” they are not
presumed to be valid. Tex. Fam.Code Ann. § 1.001.

VI. Discussion

“Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them.”
Lawrence v. Texas, 539 U.S. 558, 570 (2003). Twelve states and the District of Columbia have “decided that same-
sex couples should have the right to marry and so live with pride in themselves and their union and in a status of
equality with all other married persons.” United States v. Windsor, 133 S.Ct. 2675, 2689 (2013). In 2013, the United
States Supreme Court struck down the provision of the Defense of Marriage Act (“DOMA”) that prohibited the
federal government from recognizing same sex marriages. See id. at 2696 (“The federal statute is invalid, for no
legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its
marriage laws, sought to protect in personhood and dignity.”) (citing 1 U.S.C. § 7). To date, these developments
have not affected the law banning same sex marriages in Texas. See Tex. Fam.Code Ann. § 6.204(b).

The dispute in this case is whether Thomas and Nikki had a same sex marriage in contravention of Texas law. See
Tex. Const. art. I, § 32(a); Tex. Fam.Code Ann. § 6.204(b). The resolution of the dispute will require a determination
of Nikki's sex, an issue on which the parties strongly disagree.12 In granting the summary judgment, the trial court
declared that the marriage was void under Texas law. See Tex. Fam.Code Ann. § 6.204(b). In doing so, it
necessarily found that Nikki was a man at the time of Thomas's death such that the marriage was between two men
in violation of the Texas Constitution and the Texas Family Code. See Tex. Const. art. I, § 32(a); Tex. Fam.Code
Ann. § 6.204(b). We conclude that this was an error because, on the record before us, the question of Nikki's sex is
a disputed issue of material fact that precludes summary judgment. See Tex. Commerce Bank v. Grizzle, 96 S.W.3d
240, 252 (Tex.2002) (“Summary judgment is appropriate only when there are no disputed issues of material fact and
the moving party is entitled to judgment as a matter of law .”).

A. Was Summary Judgment Proper Based on Littleton ?

As set forth above, Heather and Simona asserted that summary judgment was proper based on the Littleton
decision by the San Antonio Court of Appeals. See Littleton, 9 S.W.3d at 224. Therefore, we will address whether
the trial court's summary judgment must be upheld based on Littleton.

Littleton involved a final summary judgment rendered against an individual named Christie Lee Littleton who was
born with male sex organs, was later diagnosed with gender dysphoria, and underwent medical treatment for the
condition, “which culminated in a complete sex reassignment” such that she became “medically a woman .” Id. at
224–25. Nevertheless, the trial court ruled that Christie's subsequent marriage to Jonathan Mark Littleton was void
as a same sex marriage based on Christie's original birth certificate stating that she was “male.” Id. at 225.

Christie appealed to the Fourth Court of Appeals in San Antonio, which was unable to reach a unanimous decision.
Two of the three justices who heard the case agreed to affirm the trial court's judgment on the basis that Christie
was not a surviving spouse under the Texas wrongful death statute. Id. at 231–32. Chief Justice Hardberger wrote
an opinion, designated as the majority opinion; however, the other two panel members did not join his opinion, but
instead wrote separately. Id. at 223–34. Justice Angelini wrote a concurring opinion, id. at 231–32, and Justice
Lopez wrote a dissenting opinion. Id. at 232–34.

The central theme of Chief Justice Hardberger's opinion was that Texas law does not recognize any individuals “as
having successfully changed their sex.” Id. at 230. In her concurring opinion, Justice Angelini was careful to limit her
discussion to the “preoperative distinction between Christie Lee Littleton and a typical male.” Id. at 232. Although
Justice Angelini did not purport to express a position on the issue of whether Texas law recognizes that an
individual may change his or her sex, her concurring opinion focuses on Christie's pre-operative condition and fails
to address Christie's post-operative condition, thus implying that Texas law does not recognize the possibility of a
sex change. See id. at 231–32.

Heather and Simona relied extensively, if not exclusively, on the Littleton decision as authority for their motions for
summary judgment. Yet, even if Littleton was correct at the time it was decided in 1999, it is possible that the legal
landscape has changed since then. And in fact, it has.

In 2009, the legislature amended the family code to add a court order related to an applicant's “sex change” as a
form of acceptable proof to establish an applicant's identity and age, and thus, eligibility, to obtain a marriage
license. See Tex. Fam.Code Ann. § 2.005(b)(8). The parties dispute the meaning of the amendment. Nikki cites it as
her primary authority, while Heather and Simona dismiss it as being, in essence, meaningless surplusage that did
not have the effect of legitimizing any individual's “sex change” under Texas law. We disagree with Heather and
Simona on this point.

“A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and
with reference to it .” Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 300 (Tex.1990). Furthermore, “the legislature is
never presumed to do a useless act.” Hunter v. Fort Worth Cap. Corp., 620 S.W.2d 547, 551 (Tex.1981). Courts
“will not read statutory language to be pointless if it is reasonably susceptible of another construction.” City of
LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex.1995) (citing Chevron Corp. v. Redmon, 745 S.W.2d 314, 316
(Tex.1987)).

The Texas Code Construction Act provides in relevant part:

In enacting a statute, it is presumed that:

(a) compliance with the constitutions of this state and the United States is intended;

(b) the entire statute is intended to be effective;

(c) a just and reasonable result is intended;

(d) a result feasible of execution is intended; and

(e) public interest is favored over any private interest.

Tex. Gov't Code Ann. § 311.021 (West 2013) (emphasis added). The Act also provides as follows:

(a) Words and phrases shall be read in context and construed according to the rules of grammar and common
usage.

(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or
otherwise, shall be construed accordingly.
Id. § 311.011 (West 2013); Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex.2006)
(“Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they
voted on.”).

Read in the context of the constitutional definition of the marriage relationship, the statutory term “same sex
marriage” means a marriage between two men or a marriage between two women. See Tex. Const. art. I, § 32(a);
Tex. Fam.Code Ann. § 6.204(b). The term “sex change” is also used in the marriage statute, but it is not defined.
See Tex. Fam.Code Ann. § 2.005(b)(8). Therefore, we give the term its “ordinary meaning.” Owens Coming v.
Carter, 997 S.W.2d 560, 572–73 (Tex.1999) (“When interpreting a statute, we begin with the words of the statute
itself, giving words their ordinary meaning.”) (citing In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d 371,
380 (Tex.1998)).

Here, the legislature has clearly used the words “sex change” in a way that establishes that a person who has had a
sex change is eligible to marry a person of the opposite sex such that the marriage is between one man and one
woman, as set forth in the Texas Constitution. See Tex. Const. art. I, § 32(a). The statute provides in relevant part
as follows:

PROOF OF IDENTITY AND AGE.

(a) The county clerk shall require proof of the identity and age of each applicant [for a marriage license].

(b) The proof must be established by ․

(8) an original or certified copy of a court order relating to the applicant's name change or sex change ․

See Tex. Fam.Code Ann. § 2.005(a), (b)(8) (emphasis added).

The statute clearly contemplates a court of competent jurisdiction issuing an order recognizing and essentially
certifying an individual's change of sex, much like a name change. However, unlike a name change, which is
governed by Chapter 45 of the Texas Family Code, there is no corresponding chapter of the family code governing
a sex change. See id. §§ 45.001–.006 (West 2002). There are no rules or standards set forth in the statute, and the
legislative history is silent with respect to this provision of the statute. To date, there have been two failed attempts
to delete the words “sex change” from the statute. See Tex. S.B. 723, 82d Leg., R.S. (proposing to remove the
words “or sex change” from section 2.005(b)); Tex. H.B. 3098, 82d Leg., R.S. (same). However, the statute's future
is not at issue in this case. Today, we deal with the statute as it was enacted by Texas lawmakers and signed into
law by the governor.

For our purposes, the key words in the statute are “identity” and “sex change.” See Tex. Fam.Code Ann. § 2.005(a),
(b)(8). “Identity” refers to the applicant as an individual, and the term “sex change” refers to the applicant changing
his or her sex. See id. Reading the statutory provision as a whole, it states that an applicant who has had a “sex
change” may use a court order related to that sex change as proof of identity and thus eligibility to obtain a marriage
license. See id. Reading the statute to conform with the definition of a marriage in the Texas Constitution and the
statutory ban on same sex marriages, which are crystal clear in their meaning and effect, we hold that under Texas
law a valid marriage could exist between Nikki and Thomas only if Nikki was a woman during their marriage such
that there was a marriage between one man and one woman, as set forth in the Texas Constitution. See Tex.
Const. art. I, § 32(a). Otherwise, it was a same sex marriage banned by Texas law. See Tex. Fam.Code Ann. §
6.204(b).

In sum, we hold that Texas law recognizes that an individual who has had a “sex change” is eligible to marry a
person of the opposite sex. See id. § 2.005(a), (b)(8). For these reasons, we conclude that the trial court's summary
judgment in this case cannot be affirmed based on Littleton because Littleton has been legislatively overruled. See
id.

B. Is There a Fact Issue Precluding Summary Judgment ?

In their respective motions, Heather and Simona argued that Nikki is a man based on the uncontroverted summary
judgment evidence that she was born with male sex organs, had male sex organs at the time of her ceremonial
marriage to Thomas, and was originally designated as “male” on her California birth certificate.

In response, Nikki objected to the evidence of her original birth certificate on the basis that it “is now a legal nullity”
because the State of California subsequently issued a new birth certificate stating that she is “female,” which Nikki
produced as summary judgment evidence. Nikki also presented the expert report of Dr. Cole stating that “sexuality
per se is a complex phenomenon which involves a number of underlying factors.”13According to Dr. Cole's affidavit,
the factors that “should be taken into account when identifying someone as male or female” “include chromosomes,
hormones, sexual anatomy, gender identity, sexual orientation, and sexual expression.” Dr. Cole notes that while
sexual “anatomy” at birth is “typically” the basis for determining an individual's sex, “this is sometimes done
incorrectly.”

Dr. Cole's affidavit states in relevant part as follows:

With respect to gender dysphoria it is the factor of gender identity which is the primary focus. By definition gender
identity is that personal private sense of being male or female. Of note, there also exist certain conditions where
individuals may be born with chromosomal anomalies (such as XXY) or anatomical anomalies (such as intersex
condition), in such cases it is recommended today that physicians not intervene until an individual is of age and has
accepted clearly his or her gender identity. Then, as in the case of gender dysphoria, surgical and medical
procedures can be brought to bear, to line up that person's body to fit the mind and thereby complete treatment and
resolve the underlying issue.

Many individuals with gender dysphoria will recognize such themselves early in life and move forward with pursuing
treatment intervention on their own. Others will go to professionals who can assist them in this regard. With
increased awareness of this condition following the Christine Jorgenson case in 1952 many centers around the
country began developing programs. However, it was not until 1980 that the Harry Benjamin International Gender
Dysphoria Association was created and established the first Standards of Care, these are now in the sixth edition
and can be found on the website of the World Professional Association for Transgender Health (WPATH.org ). As in
other areas of medicine once a condition becomes more understood protocols or standards are developed to assist
people seeking help for a particular condition as well as to aid treating professionals working with them. In this case
the major technique used to confirm a diagnosis of gender dysphoria is the “real life experience.” Essentially this is a
period of time, a minimum of one year, where the individual begins living in the desired gender role. It is during this
period of time that an individual will undergo hormone therapy to become more male or female in appearance, will
begin living and working in that gender role, will deal with family and relationships, and then move towards making
legal changes in terms of one's name and gender designation on routine identification through the courts. After a
successful transition an individual may pursue gender reassignment surgery to redesign the genitals in the desired
fashion․

Many individuals cannot afford surgery and so will continue to live without such. It should be noted that this does not
make them any less gender dysphoric than someone who does complete surgery. It is completion of the real life
experiences itself which marks the point of change. Afterwards the individual, either one who has had surgery or
one [who] has not, can pursue legal steps to change the birth certificate in the desired direction. Overall this method
of treatment (i.e., The Standards of Care) is recognized and accepted by contemporary and medical entities (e.g.,
Texas Department of Health, the Endocrine Society of the U.S.).

After providing the foregoing explanation of gender dysphoria and the accepted standards of care for the condition,
Dr. Cole offers the following information concerning Nikki:

With respect to Nikki Araguz ․ I was provided a number of medical records to review before I interviewed her. These
records dated back to the early 1990's and revealed much about her transition process. (A listing of these
documents can be found in the attachment with this statement.) They suggest that Ms. Araguz had been following
the aforementioned steps of the real life experience, including living as female, undergoing feminizing hormone
therapy, and experiencing satisfying relationships with family and others. In addition to her records, I had a face-to-
face interview with her in early January. She was born in Carmel, California, and raised primarily in Houston, Texas.
From an early age she recalls longstanding feelings of being female, an observation often seen as noted above.
Indeed, she reports wearing female clothes essentially all of her life. She often was perceived by others as female
until they were corrected. This would suggest a strong female sexual identity.

At age 18 her physician started her on feminizing hormone therapy. (No evidence of chromosome testing was
reported.) From there she continued living as female in the real world. Her family was supportive of her gender
dysphoria, she had both friendly and intimate relationships over the years, and she was successful in various work
endeavors, where she always presented herself as female. At age 21 she successfully changed her name legally in
the Houston courts. None of the records reviewed indicate any psychiatric problems related to her gender dysphoria
or living as female. In my professional opinion she had successfully completed the “real life experience” in the late
1990's as described in the Standards of Care. She then began saving money to pursue sex reassignment surgery
which was completed in October 2008. In summary, Ms. Araguz successfully completed the current medically-
accepted steps for treating the condition of gender dysphoria as described above. She essentially had been living
as a female from an early age. Then, she began seeing a physician to initiate her feminizing hormone therapy which
remains ongoing at this time. Also, she successfully dealt with family members and others in her life and also
worked in the real world as a female. Eventually she was fortunate to complete sex reassignment surgery. However,
as noted above many such individuals do not complete surgery for financial reasons. Surgery per se is not the
definitive point that makes someone female. Rather, it is completion of the real life experience which documents ․
[that] she had this condition at birth, recognized such as she grew up, and took the steps to resolve this issue. And,
she pursued the transition in accordance with The Standards of Care of the World Professional Association for
Transgender Health; I regard her medically and psychologically as female.

We conclude that Dr. Cole's affidavit is sufficient to raise a fact issue regarding Nikki's sex. According to Dr. Cole,
sexuality is a “complex phenomenon,” particularly when a “person's body ․ [does not] fit the mind.” The
uncontroverted evidence established that Nikki suffers from a medical condition known as “gender dysphoria,”
discussed at length in Dr. Cole's affidavit, the symptoms, diagnosis, and treatment of which are “matters beyond the
ken of most jurors” and jurists. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex.2004). Because the
issue is beyond our “common understanding, expert testimony is necessary.” Id. at 119–20; Haddock v. Arnspiger,
793 S.W.2d 948, 954 (Tex.1990) (holding, after reviewing the evidence, that an expert was needed because the
nature of the case was beyond the “common knowledge of laymen”). We believe that “[e]xpert testimony is
necessary ․ [because] the ․ [condition of gender dysphoria and its treatment are] of such a nature as not to be within
the experience of the layman.” Roark v. Allen, 633 S .W.2d 804, 809 (Tex.1982). Similar to when the Texas
Supreme Court held that “the diagnosis of skull fractures is not within the experience of the ordinary layman,” see
id., we hold that the condition of gender dysphoria—including its symptoms, diagnosis, and treatment—are issues of
fact not within our common knowledge and therefore require expert testimony. See Volkswagen of Am., Inc. v.
Ramirez, 159 S.W.3d 897, 904–05 (Tex.2004) (“The answer is not within common knowledge and requires expert
testimony.”).

The only expert testimony in the summary judgment record is Dr. Cole's affidavit. Heather and Simona failed to
submit any expert testimony in support of their motions. Although their evidence established that Nikki was born with
male sex organs and had male sex organs on the date of her ceremonial marriage to Thomas, there is no evidence
to controvert Dr. Cole's expert testimony regarding Nikki's medical condition (i.e., gender dysphoria), its treatment,
or his expert opinion that Nikki is “medically and psychologically” female as a result of her compliance with the
standards of care adopted by the World Professional Association for Transgender Health. Dr. Cole's expert
testimony accounts for Nikki's male sex organs at birth and at the time of her ceremonial marriage to Thomas, which
are uncontroverted facts that cannot be disregarded, and places them in context such that a reasonable juror
crediting Dr. Cole's testimony would be able to find Nikki's sex to be female. Accordingly, we conclude that Nikki
raised a genuine issue of material fact regarding her sex. See Tex.R. Civ. P. 166a(c).

C. Was Summary Judgment Proper Based on Judicial Estoppel ?

The only remaining basis for upholding the trial court's summary judgment is Simona's assertion of judicial estoppel.
“The doctrine of judicial estoppel precludes a party from adopting a position inconsistent with one that it maintained
successfully in an earlier proceeding.” Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex.2008). In
response to Simona's motion for summary judgment, Nikki argued that Simona had not pled judicial estoppel and
therefore could not assert it for the first time in her motion for summary judgment. See Tex.R. Civ. P. 94 (listing
“estoppel” as an affirmative defense that must be specifically pled). We agree. Accordingly, we conclude that the
trial court could not have properly granted summary judgment based on Simona's assertion of judicial estoppel.

D. Is Nikki Entitled to Rendition of Judgment ?

Finally, Nikki requests that we render a judgment in her favor; however, we deny the request because Nikki's no
evidence motion for summary judgment does not support rendition of a judgment. See Tex.R. Civ. P. 166a(i). In
reaching this conclusion, we have considered only the evidence that Heather and Simona produced in response to
Nikki's no evidence motion for summary judgment. See id. As noted above, Nikki's motion was in form and
substance a no evidence motion for summary judgment. See id. It did not reference any evidence, such as Dr.
Cole's report, which was attached only to Nikki's response to Heather and Simona's traditional motions for summary
judgment. Therefore, the issue on appeal is whether Heather and Simona produced some evidence sufficient to
raise a genuine issue of material fact as to Nikki's sex being male. See Merriman v. XTO Energy, Inc., 407 S.W.3d
244, 248 (Tex.2013) (“No-evidence summary judgments are reviewed under the same legal sufficiency standard as
directed verdicts.”).

As set forth above, the summary judgment evidence produced by Heather and Simona does not include any expert
testimony. Although we have concluded that the expert testimony offered by Nikki was sufficient to defeat Heather
and Simona's traditional motions for summary judgment and expressed our belief that expert testimony is necessary
regarding the symptoms, diagnosis, and treatment of gender dysphoria, the issue here is simply whether Heather
and Simona produced some evidence to raise a fact issue about Nikki being male during the marriage. See Western
Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005) (“Unless the respondent produces summary judgment
evidence raising a genuine issue of material fact, the court must grant the motion.”). Heather and Simona's evidence
showed that Nikki had male sex organs during the marriage. In our view, this was enough to raise a fact issue about
whether Nikki was male during the marriage because a rational trier of fact could draw a reasonable inference that
Nikki was male based on her male sex organs. This inference could be drawn without the assistance of expert
testimony. Accordingly, the evidence was sufficient to defeat Nikki's no evidence motion for summary judgment. See
Tex.R. Civ. P. 166a(i). We conclude that the trial court properly denied Nikki's motion.

VII. Conclusion

For the reasons set forth above, we sustain Nikki's first, fifth, and sixth issues challenging the trial court's summary
judgment in favor of Heather and Simona. Specifically, we sustain Nikki's first issue because Nikki produced
sufficient evidence to raise a genuine issue of material fact with regard to her sex. We sustain Nikki's fifth issue
because we conclude that Littleton is not controlling because it was subsequently overruled by the legislature. We
sustain Nikki's sixth issue because summary judgment cannot be upheld based on judicial estoppel. Although Nikki
requests that we render a judgment in her favor based on these issues, we conclude that such relief is inappropriate
because (1) a genuine issue of material fact exists with regard to Nikki's sex and (2) Heather and Simona produced
sufficient evidence to overcome Nikki's no evidence motion for summary judgment. Accordingly, we render the
judgment the trial court should have rendered, which is a judgment denying Nikki, Heather, and Simona's motions
for summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848.

We do not reach Nikki's second, third, or fourth issues because the issues would not entitle Nikki to any additional
relief beyond reversal of the trial court's summary judgment. See Tex.R.App. P. 47.1. Finally, because we conclude
that there is a genuine issue of material fact regarding Nikki's sex, we do not reach Nikki's seventh issue challenging
the constitutionality of the Texas ban on same sex marriages. See Tex.R. Civ. P. 166a(c); Tex.R.App. P. 47.1.

We reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.
FOOTNOTES

1.  Specifically, Simona filed an Application for Letters of Administration, Application for Determination of Heirship,
Petition to Declare Marriage Void, Application for Temporary Restraining Order, and Motion to Transfer Venue to
District Court.

2.  The facts stated in this background section are not in dispute. See Tex.R.App. P. 38.1(g) (“In a civil case, the
court will accept as true the facts stated unless another party contradicts them.”). We also note that although we
refer to Nikki using feminine terms throughout this opinion, as Nikki and Heather have in their appellate briefs, we do
so strictly for ease of reference and to be courteous and respectful in stating the basic reasons for our decision. See
Tex.R.App. P. 47.1; Tex.Code of Judicial Conduct, Cannon 3B(4) (“A judge shall be patient, dignified and courteous
to litigants ․”); see Littleton v. Prange, 9 S.W.3d 223, 224 (Tex.App.-San Antonio 1999, pet. denied) (referring to
appellant in feminine terms even though her sex was disputed and noting that such references were “out of respect
for the litigant” and have “no legal implications”).

3.  The evidence attached to Heather's motion for summary judgment included the following: (1) Nikki's original birth
certificate stating that Nikki was born “male” on June 4, 1975 in Carmel, California and named “Justin Graham
Purdue”; (2) an application for a name change completed by “Justin Graham Purdue,” identifying the applicant's sex
as “M” or male and stating as the cause for the name change: “I, Justin Purdue, am a woman with male anatomy,
working toward a sex change. I have been living and working as a woman for over one year and seek to make my
new name legal and permanent”; (3) an order of the 245th District Court of Harris County granting the name change
as of February 2, 1996; (4) an application for amendment of birth certificate to reflect the court ordered change of
name completed by Nikki and dated April 27, 1996; and (5) Nikki's answers to requests for admissions in the instant
suit, admitting the following: (a) Nikki was born Justin Graham Purdue; (b) the birth certificate of Justin Graham
Purdue lists his sex as male; (c) Justin Graham Purdue was born with a penis; (d) Justin Graham Purdue was born
with testes; (e) Justin Graham Purdue was born without a vagina; (f) Justin Graham Purdue was born without a
uterus; (g) Nikki had a penis on the day of the issuance of the marriage license for Nikki and Thomas; (h) Nikki had
testes on the day of the issuance of the marriage license for Nikki and Thomas; and (i) Nikki had genital
reassignment surgery in October of 2008.

4.  We note that on appeal, Nikki asserts that the motion was “incorrectly styled as a ‘no evidence’ motion [because]
․ in substance the motion was unmistakably a traditional motion.” We also note that there was no evidence attached
to the motion or referenced therein. We disagree with Nikki's assertion that the motion was a traditional motion. See
Tex.R. Civ. P. 166a(c). In form and substance, the motion was a no evidence motion. See Tex.R. Civ. P. 166a(i).

5.  The following exhibits were attached to Heather's response: (1) affidavit of Edward C. Burwell; (2) Nikki's
responses to requests for admissions; (3) certificate of live birth of Justin Graham Purdue; (3) application for name
change for Justin Graham Purdue; (4) order granting the application for name change; (5) Nikki's application for
amendment of birth record to reflect the name change; (6) Nikki's memorandum of points and authorities in support
of her petition for a change of gender; (7) Nikki's amended birth certificate; and (8) a transcript of the California
court's proceedings regarding Nikki's request for a legal change of gender.

6.  The evidence attached to Simona's response was the same evidence attached to her traditional motion for
summary judgment set forth in footnote 7.

7.  The evidence attached to Simona's motion for summary judgment included the following: (1) certificate of live
birth for Justin Graham Purdue dated June 18, 1975; (2) verified pleading of Justin Graham Purdue in Cause No.
96–07867 in the 245th District Court of Harris County, Texas; (3) order granting name change in Cause No. 96–
07867 in the 245th District Court of Harris County, Texas; (4) amended certificate of live birth of Justin Graham
Purdue dated August 21, 1996; (5) Nikki's memorandum of points and authorities in support of petition for name
change; (6) transcript of hearing on Nikki's petition for change of gender dated July 20, 2010; (7) Nikki's certificate of
live birth; (8) marriage license for Thomas and Nikki; (8) Houston Independent School District records for Justin
Graham Purdue; (9) Cypress–Fairbanks Independent School District records for Justin Graham Purdue; (10) Aldine
Independent School District records for Justin Graham Purdue; (11) “medical records of Justin Graham Purdue aka
Nikki Purdue aka Nikki Araguz aka Nikki Mata from Gulf Coast Medical Center”; (12) “medical records of Justin
Graham Purdue aka Nikki Purdue aka Nikki Araguz aka Nikki Mata from Dr. Juan Garza, Dr. Esther Perez, Houston
Area Community Services”; (13) “medical records of Justin Graham Purdue aka Nikki Purdue aka Nikki Araguz aka
Nikki Mata from Dr. Marci Bowers”; (14) “medical records of Justin Graham Purdue aka Nikki Purdue aka Nikki
Araguz aka Nikki Mata from Mount Saint Rafael Hospital”; (15) Nikki's responses to Simona's requests for
admissions; (16) Nikki's responses to Simona's written interrogatories; (17) excerpts of Nikki's deposition in Cause
No. 44,575 in the 329th Judicial District Court of Wharton County, Texas; (18) excerpts of Nikki's deposition in
Cause No. 42,122 in the 329th Judicial District Court of Wharton County, Texas; (19) excerpts of Thomas's
deposition in Cause No. 42,122 in the 329th Judicial District Court of Wharton County, Texas; and (20) Thomas's
certificate of live birth.

8.  The evidence attached to Nikki's response included the following: (1) affidavit of Jim Paulsen; (2) affidavit of
Collier Cole, Ph.D.; (3) Nikki's birth certificate; (4) Texas Family Code Section 2.005; (5) Nikki's affidavit; (6)
Simona's exhibit F; (7) Nikki's jail records stating that she is “F” or female; (8) Thomas and Nikki's application for a
marriage license; (9) 00112 of Houston Community Service medical records; (10) excerpts from the California health
and safety code; (11) Steve Chelotti's affidavit; (12) marriage license for Thomas and Nikki; (13) Nikki's Texas
driver's license; (14) marriage compact of Nikki and Thomas; (15) California court order for change in Nikki's birth
certificate; and (16) Dr. Bower's medical report.

9.  In connection with this assertion, Nikki relies on section 103430(d) of the California Health and Safety Code,
which states in relevant part that “[n]o reference shall be made in the new birth certificate [for a registrant whose sex
has been surgically altered] ․ that it is not the original birth certificate of the registrant.” Cal. Healh & Safety Code §
103430(d).

10.  Nikki relies on the affidavit of Collier Cole, Ph.D., a Texas licensed clinical psychologist and full professor in the
University of Texas Medical Branch, Galveston's Department of Psychiatry and Behavioral Sciences, who states
that because Nikki “pursued this transition in accordance with the standards of care of the World Professional
Association for Transgender Health, [he] regard[s] her medically and psychologically as female.” He also states that
“[s]urgery per se is not the definitive point that makes someone female.” According to Dr. Cole, “it is completion of
real life experiences which documents such she had this condition at birth, recognized such as she grew up, and
took the steps to resolve this issue.”

11.  Nikki relies on the medical records prepared by Marci Bowers, M.D. in connection with her “genital
reassignment surgery” or “neocolporrhaphy.” The records indicate a preoperative and postoperative diagnosis of
“gender dysphoria, male to female transexualism.” The records describe Nikki as “a 33 year old, phenotypic female,
who has followed the WPATH Standards of Care.” Based on a physical examination, Dr. Bowers described Nikki as
a “[p]leasant thin woman in no apparent distress.”

12.  Heather's brief states that “[t]he determination of ․ [Nikki's] gender is the only issue in this case.” Likewise,
Simona's brief states that the “[t]he validity of the marriage before this Court revolves around a central issue: Is Nikki
Araguz male?”

13.  Simona made several objections to the affidavit of Dr. Cole. On March 24, 2011, the trial court signed an order
overruling all the objections. Simona has not appealed that ruling. However, in her appellate brief, she contends that
this Court should exclude the affidavit of Dr. Cole from consideration because (1) the affidavit fails to state that “the
facts contained herein are true” and (2) the documents referred to in the affidavit were not attached. In response to
the first contention, Nikki requested and obtained an order from the trial court stating that Nikki “out of an abundance
of caution, has revised the timely filed affidavit of Collier Cole, Ph.D. to state that ‘the facts and opinions stated in
this affidavit are within my personal knowledge, are true and correct ․’ at the onset of his affidavit.” Attached to the
order is Dr. Cole's affidavit stating that the facts are “true and correct.” We also note that both affidavits (the original
and revised) stated that the facts and opinions were within Dr. Cole's personal knowledge and both were subscribed
to and sworn before a notary public. Accordingly, we will not exclude the affidavits from consideration on this basis.
See Fed. Fin. Co. v. Delgado, 1 S.W.3d 181, 184 (Tex.App.-Corpus Christi 1999, no pet.) (“[W]here the affidavit
does not specifically recite that the facts set forth there are true, but does set out that it is based on personal
knowledge and is subscribed to and sworn before a notary public, it is not defective if, when considered in its
entirety, its obvious effect is that the affiant is representing that the facts stated therein are true and correct.”). In
response to the second contention, we note that the revised affidavit by Dr. Cole, which the trial court permitted, had
the documents referred to in the affidavit attached to the affidavit. See Tex.R. Civ. P. 166a(f) (“Sworn or certified
copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”).
Accordingly, we will not exclude the affidavit from consideration in this appeal.

Opinion by Chief Justice VALDEZ.

G.R. No. L-39310 January 27, 1981

JOHN A. IMUTAN, petitioner, 
vs.
THE HON. COURT OF APPEALS (SPECIAL DIVISION OF FIVE COMPOSED OF ACTING PRESIDING JUSTICE
ANTONIO G. LUCERO and ASSOCIATE JUSTICES RAMON C. FERNANDEZ, GUILLERMO S. SANTOS,
RAMON G. GAVIOLA, JR. and PACIFICO DE CASTRO) and THE PEOPLE OF THE PHILIPPINES, respondents.

CONCEPCION JR., J.:

Action for certiorari to annul the resolution promulgated on September 2, 1974 by the respondent Court of Appeals,
which denied petitioner's motion for reconsideration dated April 25, 1974 and his motion dated July 5, 1974 to
consider the motion for reconsideration in the alternative as a motion for new trial, based on the following —

GROUNDS

FIRST GROUND: That the respondent Court of Appeals, thru its Special Division of Five, composed
of Acting Presiding Justice Lucero, Justices Fernandez, Santos, Gaviola and de Castro, acted with
grave abuse of discretion or in excess of jurisdiction in considering petitioner's motion for
reconsideration the Court's decision of March 13, 1974 as denied and said decision of March 13,
1974 affirmed in spite of the fact that only two Justices voted for outright denial of said motion while
two voted for the granting of said motion and for outright acquittal of the accused, while
the ponente of the original decision voted to consider said motion for reconsideration as a motion for
new trial which should be granted to give an opportunity to petitioner to present in evidence certain
documents which, if admitted, would establish the fact that the second marriage was entered into by
petitioner under duress and intimidation.

SECOND GROUND: That assuming that petitioner's motion for reconsideration is properly deemed
denied, respondent court nevertheless acted with grave abuse of discretion in not considering the
alternative motion of petitioner for the granting of a new trial as deemed approved or granted.

THIRD GROUND: That the respondent Court acted with grave abuse of discretion in not granting the
motion for new trial.

The facts that follow are on record.

The petitioner was found guilty of bigamy by the Court of First Instance of Cavite on the charge that while his first
marriage with Aurea Martin whom he married on June 25, 1956 was still valid and subsisting, he contracted a
second marriage with Leonida Limpiada on August 6, 1960. He was sentenced to suffer "an indeterminate penalty
of from two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years and
one (1) day of prision mayor, as maximum, and to pay the costs." Petitioner appealed to the respondent Court of
Appeals and on March 13, 1974 its Special Division of Five   formed after the Division of Three failed to reach a
1

unanimous verdict, affirmed the conviction of petitioner in a 3-2 decision.   Petitioner filed a motion for
2

reconsideration on April 30, 1974 and the Solicitor General thereafter filed his comment thereon. While the motion
for reconsideration was pending, petitioner filed on July 8, 1974 a motion to consider his motion for reconsideration
in the alternative as a motion for new trial. On September 2, 1974, the respondent Court through its Special Division
of Five, in a 3-2 Resolution,   denied petitioner's motion for reconsideration and/or new trial.
3

The basic premise of the present petition is that, for a judgement finding petitioner guilty beyond reasonable doubt
of the crime imputed upon him, there must be a concurrence in the Special Division of Five of three unequivocal,
clear-cut votes of conviction without any qualifications or reservations. Thus, so the petitioner postulates, where the
polarization of voting in a Special Division of Five is two for conviction, two for acquittal and one for new trial, there is
no concurrence of a majority vote for conviction and the accused should be acquitted. Alleging that there was, in
reality, no majority vote for his conviction in the case at bar, the petitioner argues that the respondent Court acted
with grave abuse of discretion or excess of jurisdiction "in maintaining the judgment of conviction on the basis of an
equally divided and inconclusive vote on the motion for reconsideration."   At the very least, it is contended, the
4

motion for new trial should have been granted. To sustain the alleged polarization of voting in the Special Division,
the petitioner, quoting extensively from the dissenting opinion of Justice Gaviola, traced the development in the
voting — that eventually led to the questioned resolution of the respondent Court dated September 2, 1974 — of the
five justices on the petitioner's motion. Thus —

Acting upon the motion for reconsideration, Justice de Castro, the new ponente, voted that "the
motion for reconsideration may be treated as one for new trial so as to give a chance to appellant to
present documentary evidence annexed to the motion, with the close scrutiny of the prosecution."
Amplifying, Justice de Castro, on July 2, 1974, said:

In proposing to treat the motion for reconsideration as one for new trial, I took into
account the following: (a) the Close voting, 3-2, the first vote of the original ponente,
Justice Gaviola, followed by that of Justice Fernandez, being for outright acquittal; (b)
the documents that may be presented in a new trial would prove not only the doubtful
validity of the marriage license, because the license was applied for on the very day
the marriage was celebrated, not more than 10 days as found by the trial court, not
because the application was not duly notarized, but also the "rush" celebration of the
marriage which would prove a "gunshot" marriage, which is the main defense of
appellant. With the comment, I therefore, pass on the agendum to the Justices
named as suggested by Justice Lucero.

Acting Presiding Justice Lucero, in an extended opinion voted to deny outright appellant's motion for
reconsideration. Justice Fernandez voted as follows: Consistent with my dissenting opinion, I vote to
grant the motion for reconsideration and acquit the accused-appellant.

xxx xxx xxx

Before a final vote, however, could be taken to resolve the said motion for reconsideration, the
appellant submitted a second motion dated July 8, 1974, (herein referred to as the second motion),
asking, among other things, that the first motion previously filed be considered, in the alternative, as
a motion for new trial. Considering the said second motion, Justice de Castro voted to grant it;
Justice Lucero and Justice Santos reiterated their vote to deny outright the first and second motions
referred to; and Justices Fernandez and Gaviola, Jr., voted to acquit the accused-appellant.

xxx xxx xxx

The disposition of the voting, therefore, on the first motion (motion for reconsideration) as well as on
the second motion (motion that the first motion be considered in the alternative, as a motion for new
trial) is as follows:

a) Two Justices — for acquittal

b) Two Justices — for denial of the two motions and, in effect, for sustaining the judgement of
conviction; and

c) One Justice — for treating the first motion as for new trial, and for granting the second motion.

Interpreting the foregoing disposition of the voting of this Division, as thus crystallized, Justice de
Castro the new ponente, in substance observed that, inasmuch as no three justices had voted for or
against it, the first motion is impliedly denied because, with his voting to grant a new trial, he had, by
implication, denied the first motion, in effect, bringing up to three the member of justices in favor of
denying the first motion. This interpretation or observation appears in the remarks of a supplemental
agendum which the Deputy Clerk of Court submitted to this Division to find out whether the other
members of the Division shared the same.

xxx xxx xxx

The (aforequoted) "remarks" were subsequently confirmed by Justice de Castro who, acting on the
supplemental agendum, voted: as correctly observed in the "remarks" the result is the motion in
either of its alternative prayer is denied; in which vote Justice Lucero concurred along with Justice
Santos. Justice Fernandez voted: 'Make it of record that I vote for the acquittal of the accused-
appellant. 5

Grave abuse of discretion as basis for the issuance of the writ of certiorari is a well-defined concept. By "grave
abuse of discretion" is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction.   It has been held that abuse of discretion alone is not sufficient to warrant the issuance of the writ, but
6

that the abuse must be so grave, as where the power is exercised in an arbitrary or despotic manner by reason of
passion, prejudice or personal hostility, and it must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform a duty enjoined or to act at all, in contemplation of law.   For certiorari to lie,
7

there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative
in accordance with centuries of both civil law and common law traditions.  8

The present petition cannot survive the test of these authoritative pronouncements. The resolution dated September
2, 1974 cannot be tainted with grave abuse of discretion and certiorari cannot lie against the respondent Court.

There is no denying the fact that three justices out of the five members of the Special Division of the respondent
Court of Appeals voted to deny the petitioner's motion for reconsideration and his motion to consider the motion for
reconsideration in the alternative as a motion for new trial. Namely, these were Acting Presiding Justice Lucero who
filed an extended opinion reciting his reasons for the outright denial of the petitioner's motion for reconsideration
and/or for new trial; Justice Santos who concurred with Justice Lucero and Justice de Castro who likewise
concurred with Justice Lucero and who, for the purpose of the resolution, incorporated the opinion of Justice Lucero
as an integral part thereof. It is therefore clear that there was compliance with the provisions of Section 33 of the
Judiciary Act as amended which provides that "(I)n the event that the three Justices do not reach a unanimous vote,
the Presiding Justice shall designate two Justices from among the other members of the Court to sit temporarily with
them, forming a division of five Justices, and the concurrence of a majority of such division shall be necessary for
the pronouncement of a judgment."

The petitioner cannot turn his back to the reality of a 3-2 vote against his motion for reconsideration and/or new trial
and insist that the "vote of Justice de Castro, the fifth member, is really for the granting of a new trial and not an
unconditional vote for conviction."

First and most evident, Justice de Castro declared in no uncertain terms in the resolution under litigation that his
vote was for an outright denial of the motions presented by the petitioner before the respondent Court. He stated
that:

Doubt now seems to have been generated by the vote of writer for the granting of a new trial, Justice
Gaviola expressing the view that the stand taken by the five members constituting this Special
Division is much too equivocal to permit a clear-cut disposition of the motion which would result,
according to in a judgment of acquittal on the theory that the votes are evenly divided — two for
conviction, two for acquittal — and one for new trial, the doubt to be resolved in favor of the accused
since the vote for a new trial of the writer tends likewise, to favor the said accused.

If the writer has correctly stated Justice Gaviola's position, it need only be stated that as Justice
Lucero has observed:

Accordingly to the dissenting opinion of Justice Gaviola, Jr., there is no clear-cut vote
of three Justices. I believe that no one can interpret Justice de Castro's vote better
than himself. When he says that, by voting for new trial the Reconsideration of
defendant-appellant is deemed denied, we have absolutely no justification at all to
question the meaning he (Justice de Castro) wanted to convey by his vote.

Accordingly, I am of the opinion that the reconsideration was denied by a vote of

three.

There can be no equivocation in the import of the vote of the writer (Justice de Castro) who hereby
affirms categorically that he is for an outright denial of the motions now before us, revising his
original vote for new trial since it counts with no support even from Justices Fernandez and Gaviola
who insist on acquittal refusing to vote in the alternative, if acquittal is not obtainable, to grant a new
trial. 
9

Against this definitive contrary statement of Justice de Castro made after the respondent Court had thoroughly
deliberated on the motions, the petitioner's insistence on the nature of Justice de Castro's vote, based largely on the
configuration of and the explanations accompanying the preliminary voting on his motions, cannot stand. Petitioner
should not harp upon the notations written by Justice de Castro during the time when his motions were passing
hands for evaluation by the members of the respondent Court. Positions initially taken when issues are yet under
study and consideration do not decide cases. They are explanatory in nature, formulated to elicit a full commentary
on all the aspects of the issues presented by a cause. Rather than being constitutive of the final word on the matter
at hand, they are merely the means by which a well considered conclusion can be reached. Indeed they must, if
discussions are to be truly productive of the results intended by a judicial inquiry, change when so dictated by the
entire body of reasons and arguments tabled at the end of the study. And so it was in this case, Justice de Castro
wholly adopting the opinion of then Acting Presiding Justice Lucero which detailed the reasons why the motions of
petitioner should be denied. Thus:

The reasons for denial of the motions are stated in the extended opinion of Justice Lucero, set forth
separately, in which the writer concurs, together with Justice Santos. For the purpose of this
 Resolution, the opinion of Justice Lucero is, therefore, deemed incorporated herein as integral part
thereof.

WHEREFORE, the motion for reconsideration dated April 30, 1974, as well as the motion dated July
8, 1974, is hereby denied.

This is, as it should be, the determinative statement that should finally dispose of the petitioner's motions. In the
end, Justice de Castro clearly voted for "an outright denial of the motion, the reasons being those stated in the
opinion of Justice Lucero, "incorporated as an integral part" of the resolution of September 2, 1974. And there is no
reason for petitioner to hang on to what has been said when the issues were yet on the balance and to persist on
his observation that the majority of the Special Division of Five considered "that because only two (Justice
Fernandez and Gaviola) are in favor of granting the motion for reconsideration, the vote of Justice de Castro for the
granting of a new trial should be deemed impliedly as a vote for the denial of the motion for reconsideration."

The extended concurring opinion of Justice Lucero, which Justice de Castro incorporated into the questioned
resolution as an integral part thereof cannot itself be faulted for having been issued in grave abuse of discretion. As
priorly pointed out, it detailed the reasons why the petitioner's motions should be denied outright. The main points
raised in the petitioner's motions were discussed and the conclusions made were amply supported by existing
jurisprudence. The opinion, as written, best manifest that there was no grave abuse of discretion on the part of the
respondent Court correctible by certiorari. It reads:

My stand is to deny outright the defendant-appellant's Motion for Reconsideration for lack of merit. It
will be a waste of time to remand the case to the lower court for new trial which, in the first place, the
defendant-appellant himself, please note, is not demanding from this tribunal. Under Revised Rule
121, Sections I and 2, the grounds for new trial are: (a) that new and material evidence has been
discovered which the defendant could not with reasonable deligence have discovered and produced
at the trial and which if introduced and admitted, would probably change the judgment.

In the trial of this case in the lower court, defendant-appellant's main reliance is that he was coerced
or intimidated into contracting a second marriage with Leonids Limpiada. This story, the Lower
Court, as well as this Court, had refused to believe for reasons well discussed in the majority
opinion. In defendant-appellant's brief, two (2) errors were assigned, namely, (1) the Lower Court's
not giving full faith and credit to the testimonies of the defendant-appellant and his witnesess ; and
(2) in dismissal of defendant-appellant's complaint for annulment of the second marriage before the
Juvenile and Domestic Relations Court of Manila, which was filed on August 12, 1963, after he had
already been charged with bigamy on February 4, 1963, constitutes an adjudication on the merits of
said case. Please take notice that the validity of the marriage applications, signed by defendant-
appellant John Imutan Exh. 2, and by Leonids Limpiada, the second wife, Exh. 2-A, was not raised
at all in the Lower Court.

In defendant-appellant's lengthy Reconsideration, the main thrust of his arguments is that "Exhibits 2
and 2-A, marriage applications, cannot be considered public documents. At most they are merely
private documents whose genuineness and due execution must be established before they can be
received in evidence" (Reconsideration, page 3). Besides, the said documents, according to
defendant-appellant carried no notarial number of Notary Public Magin Dones the brother of Cavite
City Mayor Fidel Dones In the language of defendant-appellant, "the requirement of the placing of
the document and page numbers is therefore, not a mere formality for it is an insurance against false
certifications and antedating of documents, and the failure to comply with said requirement affects
the integrity of the document as a public document" (Reconsideration, page 5). Likewise, it is
claimed that said marriage applications do not bear the seal of the Notary Public. Replying to this
argument, the Solicitor General said: "We respectfully submit that Exhibits 2 and 2-A were correctly
admitted in evidence, irrespective of their characterization as public or private writings. The attempt
to discredit Exhs. 2 and 2-A as not public documents because of their alleged defective jurats must
fail. These objections do not appear to have been raised in the Lower Court. They cannot be raised
for the first time on appeal, let alone in a motion for reconsideration. In any event, appellant John
Imutan does not deny his signature in Exhs. 2 and 2-A. So with Leonids Limpiada. The documents
therefore were properly Identified even if we were to characterize them in arguendo as private
writings" (Roll 189). As shown from the foregoing, there is nothing to be gained by directing a new
trial which defendant-appellant himself had not even asked for.

Squarely on point is the case of Eduardo Eigenman vs. Marydeen Guerra and Froilan Guerra, 61
O.G. (31) 4722:

MARRIAGE; VALIDITY; LICENSE WRONGFULLY OBTAINED DOES NOT

INVALIDATE MARRIAGE; REASON. - A marriage under a license is not invalidated
by the fact that the license was wrongfully obtained (I Tolentino on the Civil Code.
1960 ed., pp, 215-216, citing Melchor vs. Melchor, 102 Neb. 790, 169 NW 720). Lack
of authority on the part of the subscribing officer would not render the marriage void
where the essential requirements for its validity were present. This irregularity is
primarily the lookout of the subscribing officer or his superior (San Gabriel, et al. vs.
 San Gabriel, Jr., CA-G.R. No. 23729-R, Nov. 27, 1959). This must be so, for the local
civil registrar who issues the marriage license is not required to inquire into the
authority of the officer administering the oath, and neither is the person solemnizing
the marriage required to investigate as to whether or not a marriage license, which
appears to have been issued by a competent official, was legally obtained.

What the law declares as null and void are marriages solemnized without a marriage license (Art.
80, NCC).

xxx xxx xxx

ADDENDUM:

After my dissenting opinion was submitted to the Division of Five on July 2, 1974, defense counsel
apparently got knowledge of the grounds for the dissent and immediately adjusted his stand by filling
on July 8, 1974, a 'Motion to Consider as Motion for Reconsideration. In the Alternative, as Motion
for new Trial' (Roll 200202), putting emphasis on the fact that Atty. Magin Dones the notary public
before whom the marriage applications, Exhibits 2 and 2-A, were sworn to, was not a notary public
on the date he acted as such. This fact, even if proven in the new trial, will not alter my conclusion
that the Motion for Reconsideration and/or New Trial is without merit because a marriage under a
license is not invalidated by the fact that the license was wrongfully obtained, let alone the point that
his new issue was not raised in the lower court nor before this Court on the appeal of the bigamy
case. 10

Still and all the petitioner insists on a finding of grave abuse of discretion on the part of the respondent dent Court
for having denied his alternative motion for new trial. He states that his position is "not that as a legal proposition the
marriage was null and void because the marriage license that was issued was based on a defective marriage
application." He contends that "since the respondent Court's as well as the trial court's principal basis in considering
petitioner and those of his witnesses' testimonies as not credible, which is the fact that on July 13, 1960, petitioner
and Leonida subscribed and swore to their marriage applications before Atty. Dones as notary public, is shown to
be false, then there exists no ground for the Court's not believing petitioner and his witnesses." Again, he alludes to
the preliminary voting on his motions stating that even Justice de Castro when voting to consider the motion for
reconsideration as a motion for new trial believed that the admission of the newly discovered evidence would prove
the rush marriage and his contention that the second marriage was a "gunshot marriage."   Without ruling on the
11

decision rendered by the respondent Court on March 13, 1974 since this has not been placed squarely before Us,
apart from the rule that We are bound by the findings and conclusions of fact made by the respondent Court,   We 12

hereby quote a portion of the said decision if only to show that petitioner does not stand on solid ground and to
demonstrate that he cannot thereby force the conclusion that there has been no clear vote for his conviction. The
pertinent portion of the decision of March 13, 1974 states that:

The version of the defense by which it attempts to make out what it terms as a "gunshot marriage" is
inherently weak and improbable, from facts and circumstances established not only the State
evidence but also by that of the defense itself. Thus, aside from the fact that the marriage license
was applied for long before the marriage, which discounts the employment of force, threat or
intimidation as already noted, appellant got all his clothes from his first wife a few months after the
second marriage.

According to Aurea, the second wife, Leonids was living with her mother-in-law, appellant's mother,
when she caned up by phone Leonida for a heart-to-heart talk about the matter of their marriage to a
common husband.

The action for annulment of the second marriage was filed only on August 13, 1963 after the recent
charge for bigamy had already been filed on February 4, 1963, long after the supposed shotgun
marriage on August 6, 1960.

Appellant would rely mainly on the testimony of Leonida as her star witness, to give corroboration to
his claim of force or intimidation having been employed to get him to enter into marriage with her.
But from his story that he left and abandoned her practically from the first day following their
marriage, Leonids could not have consented to take the witness stand in defense of one who
virtually spurned her. She would be almost that woman scorned who knows no fury against the man
who humiliated her, instead of showing cordiality to, much less, taking pity on him, as is evident from
how she testified in his favor.

Unwittingly, however, by her story of how she was abducted and assaulted against her will by
appellant, Leonids made it plain to see that the force that impelled appellant to marry her is his fear
of being prosecuted for the serious offense imputed to him by Leonida. In other words, he himself
could have offered marriage or willingly accepted a proposal for it to avoid conviction and
punishment under the law. As the Solicitor General stated in appellee's brief: 'In a desperate move to
exculpate himself, appellant contends that marriage was the only solution to prevent scandal to the
 family of Limpiada. This is indeed an admission that the accused committed bigamy to prevent
scandal. That reason is not exculpatory of the offense. (Emphasis supplied). 
13

WHEREFORE, the petition should be, as it is hereby dismissed. With costs against the petitioner.

SO ORDERED.