Assignment No.

4 – CivRev PerFam
[1]

G.R. No. L-15853             July 27, 1960

FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming

that of the Court of First Instance of Rizal which dismissed petitioner's complaint for
annulment of his marriage with respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the
ground of fraud, it being alleged, among other things, that defendant Conchita
Delizo, herein respondent, at the date of her marriage to plaintiff, herein petitioner
Fernando Aquino, on December 27, 1954, concealed from the latter that fact that
she was pregnant by another man, and sometime in April, 1955, or about four
months after their marriage, gave birth to a child. In her answer, defendant claimed
that the child was conceived out of lawful wedlock between her and the plaintiff.

At the trial, the attorney's for both parties appeared and the court a quo ordered
Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to
prevent collusion. Only the plaintiff however, testified and the only documentary
evidence presented was the marriage contract between the parties. Defendant
neither appeared nor presented any evidence despite the reservation made by her
counsel that he would present evidence on a later date.

On June 16, 1956, the trial court — noting that no birth certificate was presented to
show that the child was born within 180 days after the marriage between the
parties, and holding that concealment of pregnancy as alleged by the plaintiff does
not constitute such fraud sa would annul a marriage — dismissed the complaint.
Through a verified "petition to reopen for reception of additional evidence", plaintiff
tried to present the certificates of birth and delivery of the child born of the
defendant on April 26, 1955, which documents, according to him, he had failed to
secure earlier and produce before the trial court thru excusable negligence. The
petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable
neglect in plaintiff's inability to present the proof of the child's birth, through her birth
certificate, and for that reason the court a quo erred in denying the motion for
reception of additional evidence. On the theory, however, that it was not impossible
for plaintiff and defendant to have had sexual intercourse during their engagement
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so that the child could be their own, and finding unbelievable plaintiff's claim that he
did not notice or even suspect that defendant was pregnant when he married her,
the appellate court, nevertheless, affirmed the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be
reconsidered, or, if such reconsideration be denied, that the case be remanded to
the lower court for new trial. In support of the motion, plaintiff attached as annexes
thereof the following documents:

1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and

plaintiff's brother, with whom defendant was living at the time plaintiff met,
courted and married her, and with whom defendant has begotten two more
children, aside from her first born, in common-law relationship) admitting that
he is the father of defendant's first born, Catherine Bess Aquino, and that he
and defendant hid her pregnancy from plaintiff at the time of plaintiff's
marriage to defendant;

2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her

pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own brother, at
the time of her marriage to plaintiff and her having hidden this fact from
plaintiff before and up to the time of their marriage;

3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino
and defendant lived together as husband and wife before December 27,
1954, the date of plaintiff's marriage to defendant;

4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing

her date of birth to be April 26, 1955;

5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of
defendant with Cesar Aquino, her brother-in-law;

6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of
Cesar Aquino and defendant; and

7. Pictures of defendant showing her natural plumpness as early as 1952 to

as late as November, 1954, the November, 1954 photo itself does not show
defendant's pregnancy which must have been almost four months old at the
time the picture was taken.

Acting upon the motion, the Court of Appeals ordered the defendant Conchita
Delizo and Assistant Provincial Fiscal of Rizal, who was representing the
Government, to answer the motion for reconsideration, and deferred action on the
prayer for new trial until after the case is disposed of. As both the defendant and
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 Assignment No. 4 – CivRev PerFam
the fiscal failed to file an answer, and stating that it "does not believe the veracity of
the contents of the motion and its annexes", the Court of Appeals, on August 6,
1959, denied the motion. From that order, the plaintiff brought the case to this Court
thru the present petition for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's
complaint cannot be sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband constitutes fraud and
is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3).
In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be
reviewed, which was also an action for the annulment of marriage on the ground of
fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant
was held to be unbelievable, it having been proven that the latter was already in an
advanced stage of pregnancy (7th month) at the time of their marriage. That
pronouncement, however, cannot apply to the case at bar. Here the defendant wife
was alleged to be only more than four months pregnant at the time of her marriage
to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily
apparent, especially since she was "naturally plump" or fat as alleged by plaintiff.
According to medical authorities, even on the 5th month of pregnancy, the
enlargement of a woman's abdomen is still below the umbilicus, that is to say, the
enlargement is limited to the lower part of the abdomen so that it is hardly
noticeable and may, if noticed, be attributed only to fat formation on the lower part
of the abdomen. It is only on the 6th month of pregnancy that the enlargement of
the woman's abdomen reaches a height above the umbilicus, making the
roundness of the abdomen more general and apparent. (See Lull, Clinical
Obstetrics, p. 122) If, as claimed by plaintiff, defendant is "naturally plump", he
could hardly be expected to know, merely by looking, whether or not she was
pregnant at the time of their marriage more so because she must have attempted
to conceal the true state of affairs. Even physicians and surgeons, with the aid of
the woman herself who shows and gives her subjective and objective symptoms,
can only claim positive diagnosis of pregnancy in 33% at five months. and 50% at
six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff and defendant to
have had sexual intercourse before they got married and therefore the child could
be their own. This statement, however, is purely conjectural and finds no support or
justification in the record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken
together with what has already been adduced would, in our opinion, be sufficient to
sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not
have denied the motion praying for new trial simply because defendant failed to file
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her answer thereto. Such failure of the defendant cannot be taken as evidence of
collusion, especially since a provincial fiscal has been ordered of represent the
Government precisely to prevent such collusion. As to the veracity of the contents
of the motion and its annexes, the same can best be determined only after hearing
evidence. In the circumstance, we think that justice would be better served if a new
trial were ordered.

Wherefore, the decision complained of is set aside and the case remanded to the
court a quo for new trial. Without costs.

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 Assignment No. 4 – CivRev PerFam
[2]

G.R. No. L-1967             May 28, 1951

Probate of the will of the late Faustino Neri San Jose. PAZ NERI SAN
JOSE, petitioner.
MATILDE MENCIANO, in her behalf and in behalf of the minors CARLO
MAGNO NERI and FAUSTINO NERI, Jr., plaintiffs-appellees,
vs.
PAZ NERI SAN JOSE and RODOLFO PELAEZ, defendants-appellants.

Claro M. Recto, Francisco R. Capistrano, Pelaez, Pelaez and Pelaez and Ernesto
V. Chavez for appellants.
Pineda, Hermosisima and Neri for appellees.

JUGO, J.:

In the course of the proceedings for the settlement of the estate of the deceased
Faustino Neri San Jose, Special Proceedings No. 6-A of the Court First Instance of
Misamis Oriental, Matilde Menciano, in her behalf and in behalf of the minors Carlo
Magno Neri and Faustino Neri, Jr., filed a motion for declaration of heirs, alleging
that she is the widow of the deceased Faustino Neri San Jose, to whom she was
married according to the rites of the Roman Catholic Church on September 28,
1944, before Rev. Father Isaias Edralin, S. J.; that before the marriage the
deceased and she lived together as husband and wife, there having been no
impediment to their marriage; that as a result of their cohabitation before the
marriage the child Carlo Magno Neri was born on March 9, 1940 and was later
baptized, said child having enjoyed the status of a recognized natural child; that
their second child Faustino Neri, Jr., was born on April 24, 1945; and that Carlo
Magno Neri was legitimized by the subsequent matrimony of his parents and
Faustino Neri, Jr., is a legitimate child born in lawful wedlock.

Paz Neri San Jose, then executrix of the estate of the deceased Faustino Neri San
Jose, and Rodolfo Pelaez, designated universal heir in the will of the deceased
dated December 19, 1940, filed an amended answer with the permission of the
court, in which they denied the substantial allegations of the abovementioned
motion for declaration of heirs and further alleged in substance that the deceased
Faustino Neri San Jose, from the year 1943, was suffering from senile
dementia caused by anemia which became worse from September 9, 1944, when
the Province of Misamis Oriental where the deceased lived was bombarded by
American planes; that the marriage between said deceased and Matilde Menciano,
if it was solemnized, was in violation of the legal provisions and requisites, for he
(the deceased) was deprived of his free will due to his age, sickness, and
bombardment, and Matilde Menciano, taking advantage of the deceased's
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 Assignment No. 4 – CivRev PerFam
condition, by intrigue and threat of abandoning him, forced Neri by means of deceit
(dolo) and threat to marry her; and that the deceased was sterile, unable to
procreate, and was impotent and congenitally sterile, the same as his brothers
Anastasio, Filomeno, Pedro, and his sister Conchita, who had no children. The
defendants also filed a counterclaim for the sum of P286,000 in cash, and for
jewels and certain properties, which, as alleged, were retained and illegally
disposed of by Matilde Menciano.

The above allegations of the parties give rise to the following issues:

(1) Was the marriage between the deceased Faustino Neri San Jose and
Matilde Menciano valid?;

(2) Are, the children Faustino Neri, Jr. and Carlo Magno Neri the legitimate
children of the deceased Faustino Neri San Jose and Matilde Menciano?;
and

(3) Did Matilde Menciano have in her possession and illegally disposed of
the cash, jewels, and certain properties above mentioned?

The marriage between the deceased and Matilde Menciano is evidenced by Exhibit
I-C, which is an application for a marriage license, dated September 28, 1944,
signed by Faustino Neri San Jose, to marry Matilde Menciano; Exhibit 1-B, also an
application for a marriage license dated September 28, 1944, signed by Matilde
Menciano, to marry Faustino Neri San Jose; Exhibit 1-D, certificate for immediate
issuance of the marriage license applied for, signed by the Acting Local Civil
Registrar and Faustino Neri San Jose and Matilde Menciano; and Exhibit 1-A, the
marriage contract signed by Faustino Neri San Jose and Matilde Menciano as
contracting parties, Rev. Isaias Edralin, as solemnizing officer, and the witnesses L.
B. Castaños and Samson Pañgan.

As all the above four exhibits are official and public documents, their validity can be
successfully assailed only by strong, clear, and convincing oral testimony. In the
case of Arroyo vs. Granada (18 Phil, 484), it was held:

1. CANCELLATION OF INSTRUMENTS; SUFFICIENCY OF PROOF. — To

justify the setting aside of an instrument solemnly executed and voluntarily
delivered, upon the ground that its execution was obtained by false and
fraudulent representations, the proof must be clear and convincing.
(Syllabus)

In the case of Sy Tiangco vs. Pablo and Apao (59 Phil., 119), this Court declared:

6
 Assignment No. 4 – CivRev PerFam
1. PUBLIC DOCUMENT; EXECUTION; DENIAL OF ALLEGED SIGNER;
BURDEN OF PROOF. — Plaintiff's attorneys vigorously contend that when
the plaintiff denied having signed the deed it was incumbent upon the
defendants to can the witnesses thereto. The execution of a document that
has been ratified before a notary public cannot be disproved by the mere
denial of the alleged signer. No inference unfavorable to the defendant
arises from their failure to call the subscribing witnesses. (Syllabus)

Is the oral evidence presented by the defendants of sufficient force and weight to
overcome the above official documents?

The witnesses for the defendants testified in substance that the deceased Faustino
Neri was so weak and sick that he could not even talk coherently and intelligibly.
Their testimony is too sweeping, because they refer to a general period of time.
There must have been times when the deceased may have been unable to attend
to business or even to converse on account of his sickness, and even Father
Edralin did not solemnize the marriage on a certain date on account of the weak
condition of Faustino Neri and waited for about two days to perform the ceremony
when the old man, although somewhat weak, had a clear mind. Father Edralin's
testimony is strongly corroborated by the form of the signatures of Faustino Neri in
the above mentioned Exhibits 1-A, 1-C, and 1-D. A mere glance at those signatures
will convince anyone that they could not have been written by a man who is almost
unconscious and physically and intellectually incapacitated, as the defendants'
witnesses represent him to have been. It should be noted that his signature is
complicated, containing many flourishes, such that it can not be signed by one who
is not of sound mind and of fair physical condition. He may have been sick at that
time, but not to such a degree as to render him unconscious of what he was doing.
If the signatures of the deceased in Exhibits 1-A, 1-C, and 1-D are compared with
each other it will be readily seen that they are practically uniform, which could not
have been accomplished by a man who is a nervous wreck. There is no sign of
trembling of the hands or fingers of the person who affixed those signatures, which
usually happens to a very sick man. In the case of Torres et al. vs. Lopez (48 Phil.,
772), this court made the following pronouncement:

3. ID.; ID TESTS OF CAPACITY. — Neither old age, physical infirmities,

feebleness of mind, weakness of the memory, the appointment of a
guardian, nor eccentricities are sufficient singly or jointly to show
testamentary incapacity. The nature and rationally of the will is of some
practical utility in determining capacity. Each case rests on its own facts and
must be decided by its own facts. (Syllabus, p. 773.)

xxx     xxx     xxx

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 Assignment No. 4 – CivRev PerFam
11. ID.; ID.; ID.; ID.; CASE AT BAR. — On January 3, 1924, when the
testator, Tomas Rodriguez, made his will, he was 76 years old, physically
decrepit, weak of intellect, suffering from a loss of memory, had a guardian
of his person and his person and his property, and was eccentric, but he still
possessed that spark of reason and of life, that strength of mind to form a
fixed intention and to summon his enfeebled thoughts to enforce that
intention, which the law terms "testamentary capacity." Two of the
subscribing witnesses testified clearly to the regular manner in which the will
was executed, and one did not. The attending physicians and three other
doctors who were present at the execution of the will expressed opinions
entirely favorable to the capacity of the testator. Three other members of the
medical profession expressed opinions entirely unfavorable to the capacity
of the testator and certified that he was of unsound mind. Held, That Tomas
Rodriguez on January 3, 1924, possessed sufficient mentality to make a will
which would meet the legal test regarding testamentary capacity; that the
proponents of the will have carried successfully the burden of proof and
have shown him of sound mind on that date; and that it was reversible error
on the part of the trial court not to admit his will to probate. (Syllabus, p. 774)

In Sancho vs. Abella (58 Phil., 728), this court said:

1. WILLS; PROBATE; CAPACITY TO MAKE A WILL. — Neither senile

debility, nor deafness, nor blindness, nor poor memory, is by itself sufficient
to establish the presumption that the person suffering therefrom is not in the
full enjoyment of his mental faculties, when there is sufficient evidence of his
mental sanity at the time of the execution of the will.

2. ID.; ID.; ID.; — Neither the facts of her being given accommodations in a
convent, nor the presence of the parish priest, nor a priest acting as a
witness, constitutes undue influence sufficient to justify the annulment of a
legacy in favor of a bishop of a diocese, made in her will by a testatrix 88
years of age, suffering from defective eyesight and hearing, while she is
stopping in a convent within the aforesaid diocese. (Syllabi)

Although the above doctrine relates to testamentary capacity, there is no reason

why it should not be applied to the capacity to contract marriage, which requires the
same mental condition. Consequently, the court below did not err in declaring valid
the marriage of Faustino Neri San Jose and Matilde Menciano.

The next issue is whether Faustino Neri, Jr., and Carlo Magno Neri are legitimate
children of the deceased Faustino Neri and Matilde Menciano. As above stated, the
deceased Faustino Neri and Matilde Menciano were married on September 28,
1944. Faustino Neri, Jr., was born on April 24, 1945; that is, two hundred eight
days, or more than one hundred eighty days, after the marriage, but less than three
8
 Assignment No. 4 – CivRev PerFam
hundred days after the death of Faustino Neri San Jose which occurred on October
11, 1944. There is no question that before and after the marriage, the deceased
and Matilde Menciano co-habitated.

Rule 123, section 68 (c), reads as follows:

SEC. 68. Conclusive presumptions. — The following are instances of

conclusive presumptions:

xxx     xxx     xxx

(c) The issue of a wife cohabiting with her husband, who is not impotent, is
indisputably presumed to be legitimate, if not born within the one hundred
and eighty days immediately succeeding the marriage, or after the expiration
of three hundred days following its dissolution;

xxx     xxx     xxx

The above-quoted provision is so clear that it does not require interpretation or

construction, but only application.

The requirements for the conclusive presumption that Faustino Neri, Jr. is the
legitimate son of the legitimate marriage of the deceased Faustino Neri and Matilde
Menciano exist as above stated, with the possible exception of the requisite as to
potency.

Was the deceased Faustino Neri impotent during his cohabitation with Matilde
Menciano?

Impotency being an abnormal condition should not be presumed. The presumption

is in favor of potency. The best evidence that the deceased was potent is the
statement of Dr. Antonio Garcia that in order to get a specimen of the semen of the
deceased Faustino Neri for examination as to its contents of spermatozoa,
Faustino, following the doctor's advice, used a rubber sac, commonly called
"condom", and a woman. The fact that the deceased was able to produce the
specimen by said means shows conclusively that he was potent. Impotency is not
synonymous with sterility. Impotency is the physical inability to have sexual
intercourse; it is different from sterility.

(1) Impotence, in Medical Jurisprudence. — Inability on the part of the male

organ of copulation to perform its proper function. Impotence applies only to
disorders affecting the functions of the organ of copulation, while sterility
applies only to lack of fertility in the reproductive elements of either sex.

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 Assignment No. 4 – CivRev PerFam
(Dennis, System of Surgery; Bouvier's Law Dictionary, Rawle's Third
Revision, Vol. 11, p. 1514)

(2) Impotencia (L.) Impotence.

Impotencia Coeundi, inability of the male to perform the sexual act.

Impotentia Erigendi, inability to have an erection of the penis.(The American

Illustrated Medical Dictionary, by Dorland 20th Edition, p. 721)

i. Coeundi. Inability of the male to perform the sexual act. i. erigendi,

impotence due to the absence of the power of erection. (Stedman's Practical
Medical Dictionary, p. 551)

(4) Impotence.

"3. Law & Med. Incapacity for sexual intercourse." (Webster's New
International Dictionary, Second Edition, Unabridged, p. 1251)

(5) Impotency or Impotence. — Want of power for copulation, not mere

sterility. The absence of complete power of copulation is an essential
element to constitute impotency. (31 C. J., P. 259)

(6) Impotence. — Inability to perform the sexual act may be due to defective

organs from abnormal or incomplete development, or to deficient internal
secretions, or to disorders of the nervous system diminishing the libido.
Impotence may or may not be accompanied by sterility. (The Columbia
Encyclopedia, 877)

Consequently, the requisite of potency also existed. The necessary conclusion is

that the child Faustino Neri, Jr., is conclusively presumed to be the legitimate son of
the deceased Faustino Neri with Matilde Menciano in lawful wedlock.

The attorney for the plaintiffs correctly objected to the evidence regarding sterility
and any other evidence as to paternity. The objection should not have been
overruled.

However, even considering the evidence as to sterility, it results that the

examinations of the semen by Drs. Garcia and Marfori in 1940, to determine the
existence of spermatozoa, do not establish that the deceased was sterile.
According to medical jurisprudence, a man may not have spermatozoa at a certain
time, but may have had it previously or may have it subsequently to the
examination. The examinations by Drs. Garcia and Marfori were made in 1940.

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 Assignment No. 4 – CivRev PerFam
From that time Faustino Neri San Jose cohabited with Matilde Menciano until his
death on October 11, 1944.

Doctor Jose F. Marfori. testified as follows:

Q. How many times did you examine his seminal fluid? — A. Only once.

Q. In other words, from the latter part of 1940 up to his death, you examined
only once his seminal fluid? — A. Yes, sir.

Q. Is it not a fact that you cannot determine sterility or his inability to

procreate with one examination? — A. It would have been better if there was
an examination of his seminal fluid every year.

Q. But the truth is that today a man may lack spermatozoa in his seminal
fluid, but much later it may appear? — A. That is possible. (P. 28, t. s. n.,
Gaane)

It should be noted that Doctor Marfori is a nephew-in-law of the deceased Faustino

Neri.

With regard to the supposed examination made by Doctor Garcia in Cebu on

December 9, 1940, Cristobal Lopez, nephew of Faustino, testified that during said
period, December, 1940, the deceased Neri never went out of Cagayan, Oriental
Misamis. We cannot accord much weight to the testimony of Doctor Garcia that he
made the examination.

But even supposing that said doctors made such examinations, still the result is
inconclusive, for the reasons above set forth, and cannot in any way overthrow the
conclusive presumption established by Rule 123, section 68 (c).

Carlo Magno Neri was born on March 9, 1940, that is, before the marriage. Both
the deceased Faustino and Matilde Menciano free to marry without any legal
impediment. However, the court below declared that Carlo Magno Neri has not
been acknowledged as a natural child and, consequently, cannot be legitimized by
the subsequent marriage of his parents. We cannot review this finding because the
plaintiffs did not appeal.

The defendants allege that Matilde Menciano is retaining or has illegally disposed
of P286,000, genuine Philippine currency, certain jewels, and documents. The trial
court, after a careful and exhaustive review of the evidence, correctly reached the
conclusion that such allegation has not been substantiated. Let us make a short
analysis of the defendants' evidence on this point.

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 Assignment No. 4 – CivRev PerFam
The principal witness for this claim was Rodolfo Pelaez, who testified that the
deceased Faustino in 1939 delivered to him the sum of P250,000 in small
denominations to be exchanged in a bank in Manila for bills of larger denominations
as P500, etc. After having exchanged it with the help of Representative Ozamis
(dead on the date of the trial), he returned to the province and delivered the sum to
the deceased Neri. On cross-examination he was not able to say whether the bills
he took to Manila in October, 1939, were treasury certificates or bank bills; that in
July, 1944, he visited Cagayan and he saw his uncle Faustino living with Matilde
Menciano and Carlo Magno Neri in the house of a Chinaman on Calle Del Mar; that
he saw the sum of P250,000 in a wooden aparador. But when he was asked
whether he actually saw the money in the aparador, he said he was so informed by
his uncle. His testimony is hearsay. Furthermore, there is no reason why his uncle
should have accounted to him for the money. His testimony is contradicted by that
of Paz Neri San Jose, his mother, who stated that the deceased Faustino went to
the house of the Chinaman on Calle Del Mar only to fetch certain document which
he had left there; that the deceased was not living in said house; that he went there
now and play monte; that the deceased and herself were living in the house of one
Tamparong; that the deceased used to carry with him his money, jewels, and
documents, in a sack, wherever he went to play; that at the time of the air raid by
the Americans, the deceased went to the house on Calle Del Mar carrying the said
sack, but he returned to the house of Tamparong, leaving the sack in the house on
Calle Del Mar, but after the air raid he returned on the latter house to fetch the
sack. This testimony of Paz Neri, who was a witness for the defendants and a co-
defendant herself, contradicts in essential and important features that of Rodolfo
Pelaez.

The testimony of Paz Neri would show that the deceased Neri was distrustful of
relatives and friends when his funds were concerned. P250,000 in 1939 was quite
a fortune in itself and, consisting of cash, could have been easily disposed of. In
1939 nobody believed for certain that there would be war. Why then should the
deceased have wanted to change the money for bigger denominations when he
could have deposited it in a nearby branch of the Philippine National Bank where
the deceased could have gone, for, as alleged by the defendants, he even went to
Cebu in 1940 for examination of his seminal fluid?

It was testified to by Clotilde Galarrita de Labitad that Matilde Menciano showed to

her the sum of P284,000 in genuine Philippine currency and counted the money in
her presence. This is unbelievable. Could she not have counted it without the
presence of anybody and thus avoided the danger of theft or robbery?

With regard to the jewels no satisfactory evidence was presented to prove that
Matilde Menciano misappropriated them. She received and had in her possession a
few jewels given to her by the deceased Faustino for the benefit of the children.

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 Assignment No. 4 – CivRev PerFam
As to the revocation of the appointment of Paz Neri San Jose as executrix, the trial
court made a reasonable exercise of its discretion in setting it aside and appointing
Matilde Menciano administratrix, in view of the hostility between them which would
cause many incidental questions and delay in the termination of the proceedings if
Paz Neri had continued as executrix. We see no reason for interfering in the case
with the discretion of the court.

The appellees contended that the court erred in not completely annulling the
institution of universal heir, without considering Rodolfo Pelaez as a legatee.
Inasmuch as the plaintiffs did not appeal, they are bound by the decision of the trial
court.

In view of the foregoing, the judgment appealed from is affirmed in all its parts, with
costs against the appellants. It is so ordered.

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 Assignment No. 4 – CivRev PerFam
[3]

G.R. No. 145370             March 4, 2004

MARIETTA B. ANCHETA, petitioner,
vs.
RODOLFO S. ANCHETA, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Resolution 1 of the Court of Appeals
in CA-G.R. SP No. 59550 which dismissed the petitioner’s petition under Rule 47 of
the 1997 Rules of Civil Procedure to annul the Order2 of the Regional Trial Court of
Naic, Cavite, Branch 15 in Special Proceedings No. NC-662 nullifying the marriage
of the petitioner and the respondent Rodolfo S. Ancheta, and of the resolution of
the appellate court denying the motion for reconsideration of the said resolution.

This case arose from the following facts:

After their marriage on March 5, 1959, the petitioner and the respondent resided in
Muntinlupa, Metro Manila. They had eight children during their coverture, whose
names and dates of births are as follows:

a. ANA MARIE B . ANCHETA – born October 6, 1959

b. RODOLFO B. ANCHETA, JR. – born March 7, 1961

c. VENANCIO MARIANO B. ANCHETA – born May 18, 1962

d. GERARDO B. ANCHETA – born April 8, 1963

e. KATHRINA B. ANCHETA – born October 29, 1965

f. ANTONIO B. ANCHETA – born March 6, 1967

g. NATASHA MARTINA B. ANCHETA - born August 2, 1968

h. FRITZIE YOLANDA B. ANCHETA – born November 19, 19703

On December 6, 1992, the respondent left the conjugal home and abandoned the
petitioner and their children. On January 25, 1994, petitioner Marietta Ancheta filed
a petition with the Regional Trial Court of Makati, Branch 40, against the
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 Assignment No. 4 – CivRev PerFam
respondent for the dissolution of their conjugal partnership and judicial separation
of property with a plea for support and support pendente lite. The case was
docketed as Sp. Proc. No. M-3735. At that time, the petitioner was renting a house
at No. 72 CRM Avenue cor. CRM Corazon, BF Homes, Almanza, Las Piñas, Metro
Manila.4

On April 20, 1994, the parties executed a Compromise Agreement5 where some of

the conjugal properties were adjudicated to the petitioner and her eight children,
including the following:

b. A parcel of land (adjoining the two lots covered by TCT Nos. 120082 and TCT
No. 120083-Cavite) located at Bancal, Carmona, Cavite, registered in the name of
the family Ancheta. Biofood Corporation under TCT No. 310882, together with the
resort Munting Paraiso, Training Center, four-storey building, pavilion, swimming
pool and all improvements. All of the shares of stocks of Ancheta Biofoods
Corporation were distributed one-third (1/3) to the petitioner and the eight children
one-twelfth (1/12) each.6

The court rendered judgment based on the said compromise agreement.

Conformably thereto, the respondent vacated, on June 1, 1994, the resort Munting
Paraiso and all the buildings and improvements thereon. The petitioner, with the
knowledge of the respondent, thenceforth resided in the said property.

In the meantime, the respondent intended to marry again. On June 5, 1995, he filed
a petition with the Regional Trial Court of Naic, Cavite, Branch 15, for the
declaration of nullity of his marriage with the petitioner on the ground of
psychological incapacity. The case was docketed as Sp. Proc. No. NC-662.
Although the respondent knew that the petitioner was already residing at the resort
Munting Paraiso in Bancal, Carmona, Cavite, he, nevertheless, alleged in his
petition that the petitioner was residing at No. 72 CRM Avenue corner CRM
Corazon, BF Homes, Almanza, Las Piñas, Metro Manila, "where she may be
served with summons."7 The clerk of court issued summons to the petitioner at the
address stated in the petition.8 The sheriff served the summons and a copy of the
petition by substituted service on June 6, 1995 on the petitioner’s son, Venancio
Mariano B. Ancheta III, at his residence in Bancal, Carmona, Cavite.9

On June 21, 1995, Sheriff Jose R. Salvadora, Jr. submitted a Return of Service to
the court stating that the summons and a copy of the petition were served on the
petitioner through her son Venancio Mariano B. Ancheta III on June 6, 1995:

RETURN OF SERVICE

This is to certify that the summons together with the copy of the complaint and its
annexes was received by the herein defendant thru his son Venancio M.B. Ancheta
15
 Assignment No. 4 – CivRev PerFam
[III] as evidenced by the signature appearing on the summons. Service was made
on June 6, 1995.

June 21, 1995, Naic, Cavite.

(Sgd.) JOSE R. SALVADORA, JR.

Sheriff10

The petitioner failed to file an answer to the petition. On June 22, 1995, the
respondent filed an "Ex-Parte Motion to Declare Defendant as in Default" setting it
for hearing on June 27, 1995 at 8:30 a.m. During the hearing on the said date,
there was no appearance for the petitioner. The public prosecutor appeared for the
State and offered no objection to the motion of the respondent who appeared with
counsel. The trial court granted the motion and declared the petitioner in default,
and allowed the respondent to adduce evidence ex-parte. The respondent testified
in his behalf and adduced documentary evidence. On July 7, 1995, the trial court
issued an Order granting the petition and declaring the marriage of the parties void
ab initio.11 The clerk of court issued a Certificate of Finality of the Order of the court
on July 16, 1996.12

On February 14, 1998, Valentine’s Day, the respondent and Teresita H. Rodil were
married in civil rights before the municipal mayor of Indang, Cavite.13

On July 7, 2000, the petitioner filed a verified petition against the respondent with
the Court of Appeals under Rule 47 of the Rules of Court, as amended, for the
annulment of the order of the RTC of Cavite in Special Proceedings No. NC-662.
The case was docketed as CA-G.R. SP No. 59550. The petitioner alleged, inter
alia, that the respondent committed gross misrepresentations by making it appear
in his petition in Sp. Proc. No. NC-662 that she was a resident of No. 72 CRM
Avenue cor. CRM Corazon, BF Homes, Almanza, Las Piñas, Metro Manila, when in
truth and in fact, the respondent knew very well that she was residing at Munting
Paraiso, Bancal, Carmona, Cavite. According to the petitioner, the respondent did
so to deprive her of her right to be heard in the said case, and ultimately secure a
favorable judgment without any opposition thereto. The petitioner also alleged that
the respondent caused the service of the petition and summons on her by
substituted service through her married son, Venancio Mariano B. Ancheta III, a
resident of Bancal, Carmona, Cavite, where the respondent was a resident.
Furthermore, Venancio M.B. Ancheta III failed to deliver to her the copy of the
petition and summons. Thus, according to the petitioner, the order of the trial court
in favor of the respondent was null and void (1) for lack of jurisdiction over her
person; and (2) due to the extrinsic fraud perpetrated by the respondent. She
further contended that there was no factual basis for the trial court’s finding that she
was suffering from psychological incapacity. Finally, the petitioner averred that she
learned of the Order of the RTC only on January 11, 2000. Appended to the
16
 Assignment No. 4 – CivRev PerFam
petition, inter alia, were the affidavits of the petitioner and of Venancio M.B.
Ancheta III.

The petitioner prayed that, after due proceedings, judgment be rendered in her
favor, thus:

WHEREFORE, petitioner respectfully prays this Honorable Court to render

Judgment granting the Petition.

1. Declaring null and void the Order dated June 7, 1995 (of the Regional
Trial Court, Branch 14, Naic, Cavite).

2. Ordering respondent to pay petitioner

a. ₱1,000,000.00 as moral damages;

b. ₱500,000.00 as exemplary damages;

c. ₱200,000.00 as attorney’s fees plus P7,500.00 per diem for every

hearing;

d. ₱100,000.00 as litigation expenses;

e. Costs of suit.14

On July 13, 2000, the CA issued a Resolution dismissing the petition on the
following ground:

We cannot give due course to the present petition in default or in the absence of
any clear and specific averment by petitioner that the ordinary remedies of new
trial, appeal, petition for relief or other appropriate remedies are no longer available
through no fault of petitioner. Neither is there any averment or allegation that the
present petition is based only on the grounds of extrinsic fraud and lack of
jurisdiction. Nor yet that, on the assumption that extrinsic fraud can be a valid
ground therefor, that it was not availed of, or could not have been availed of, in a
motion for new trial, or petition for relief.15

The petitioner filed a motion for the reconsideration of the said resolution,
appending thereto an amended petition in which she alleged, inter alia, that:

4. This petition is based purely on the grounds of extrinsic fraud and lack of
jurisdiction.

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 Assignment No. 4 – CivRev PerFam
5. This petition has not prescribed; it was filed within the four-year period
after discovery of the extrinsic fraud.

6. The ground of extrinsic fraud has not been availed of, or could not have
been availed of in a motion for new trial or petition for relief.

7. The ground of lack of jurisdiction is not barred by laches and/or estoppel.

8. The ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies were no longer available through no fault of petitioner;
neither has she ever availed of the said remedies. This petition is the only
available remedy to her.16

The petitioner also alleged therein that the order of the trial court nullifying her and
the respondent’s marriage was null and void for the court a quo’s failure to order
the public prosecutor to conduct an investigation on whether there was collusion
between the parties, and to order the Solicitor General to appear for the State.

On September 27, 2000, the CA issued a Resolution denying the said motion.

The petitioner filed a petition for review on certiorari with this Court alleging that the
CA erred as follows:

1. In failing to take into consideration the kind of Order which was sought to
be annulled.

2. In finding that the Petition was procedurally flawed.

3. In not finding that the Petition substantially complied with the requirements
of the Rules of Court.

4. In failing to comply with Section 5, Rule 47, Rules of Court.

5. In not even considering/resolving Petitioner’s Motion to Admit the

Amended Petition; and in not admitting the Amended Petition.

6. In failing to apply the Rules of Procedure with liberality.17

The petition is meritorious.

An original action in the Court of Appeals under Rule 47 of the Rules of Court, as
amended, to annul a judgment or final order or resolution in civil actions of the RTC
may be based on two grounds: (a) extrinsic fraud; or (b) lack of jurisdiction. If based
on extrinsic fraud, the remedy is subject to a condition precedent, namely, the
18
 Assignment No. 4 – CivRev PerFam
ordinary remedies of new trial, appeal, petition for relief or other appropriate
remedies are no longer available through no fault of the petitioner. 18 The petitioner
must allege in the petition that the ordinary remedies of new trial, appeal, petition
for relief from judgment, under Rule 38 of the Rules of Court are no longer available
through no fault of hers; otherwise, the petition will be dismissed. If the petitioner
fails to avail of the remedies of new trial, appeal or relief from judgment through her
own fault or negligence before filing her petition with the Court of Appeals, she
cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would
benefit from her inaction or negligence.19

It is not enough to allege in the petition that the said remedies were no longer
available through no fault of her own. The petitioner must also explain and justify
her failure to avail of such remedies. The safeguard was incorporated in the rule
precisely to avoid abuse of the remedy.20 Access to the courts is guaranteed. But
there must be limits thereto. Once a litigant’s rights have been adjudicated in a
valid final judgment of a competent court, he should not be granted an unbridled
license to sue anew. The prevailing party should not be vexed by subsequent
suits.21

In this case, the petitioner failed to allege in her petition in the CA that the ordinary
remedies of new trial, appeal, and petition for relief, were no longer available
through no fault of her own. She merely alleged therein that she received the
assailed order of the trial court on January 11, 2000. The petitioner’s amended
petition did not cure the fatal defect in her original petition, because although she
admitted therein that she did not avail of the remedies of new trial, appeal or
petition for relief from judgment, she did not explain why she failed to do so.

We, however, rule that the Court of Appeals erred in dismissing the original petition
and denying admission of the amended petition. This is so because apparently, the
Court of Appeals failed to take note from the material allegations of the petition, that
the petition was based not only on extrinsic fraud but also on lack of jurisdiction
over the person of the petitioner, on her claim that the summons and the copy of
the complaint in Sp. Proc. No. NC-662 were not served on her. While the original
petition and amended petition did not state a cause of action for the nullification of
the assailed order on the ground of extrinsic fraud, we rule, however, that it states a
sufficient cause of action for the nullification of the assailed order on the ground of
lack of jurisdiction of the RTC over the person of the petitioner, notwithstanding the
absence of any allegation therein that the ordinary remedy of new trial or
reconsideration, or appeal are no longer available through no fault of the petitioner.

In a case where a petition for the annulment of a judgment or final order of the RTC
filed under Rule 47 of the Rules of Court is grounded on lack of jurisdiction over the
person of the defendant/respondent or over the nature or subject of the action, the
petitioner need not allege in the petition that the ordinary remedy of new trial or
19
 Assignment No. 4 – CivRev PerFam
reconsideration of the final order or judgment or appeal therefrom are no longer
available through no fault of her own. This is so because a judgment rendered or
final order issued by the RTC without jurisdiction is null and void and may be
assailed any time either collaterally or in a direct action or by resisting such
judgment or final order in any action or proceeding whenever it is invoked, 22 unless
barred by laches.23

In this case, the original petition and the amended petition in the Court of Appeals,
in light of the material averments therein, were based not only on extrinsic fraud,
but also on lack of jurisdiction of the trial court over the person of the petitioner
because of the failure of the sheriff to serve on her the summons and a copy of the
complaint. She claimed that the summons and complaint were served on her son,
Venancio Mariano B. Ancheta III, who, however, failed to give her the said
summons and complaint.

Even a cursory reading of the material averments of the original petition and its
annexes will show that it is, prima facie meritorious; hence, it should have been
given due course by the Court of Appeals.

In Paramount Insurance Corporation v. Japzon,24 we held that jurisdiction is

acquired by a trial court over the person of the defendant either by his voluntary
appearance in court and his submission to its authority or by service of summons.
The service of summons and the complaint on the defendant is to inform him that a
case has been filed against him and, thus, enable him to defend himself. He is,
thus, put on guard as to the demands of the plaintiff or the petitioner. Without such
service in the absence of a valid waiver renders the judgment of the court null and
void.25 Jurisdiction cannot be acquired by the court on the person of the defendant
even if he knows of the case against him unless he is validly served with
summons.26

Summons and complaint may be served on the defendant either by handing a copy
thereof to him in person, or, if he refuses to receive and sign for it, by tendering it to
her.27 However, if there is impossibility of prompt service of the summons
personally on the defendant despite diligent efforts to find him, service of the
summons may be effected by substituted service as provided in Section 7, Rule 14
of the said Rules:

SEC. 7. Substituted service.— If, for justifiable causes, the defendant cannot be
served within a reasonable time as provided in the preceding section, service may
be effected (a) by leaving copies of the summons at the defendant’s residence with
some person of suitable age and discretion then residing therein, or (b) by leaving
the copies of defendant’s office or regular place of business with some competent
person in charge thereof.28

20
 Assignment No. 4 – CivRev PerFam
29
In Miranda v. Court of Appeals,  we held that the modes of service should be
strictly followed in order that the court may acquire jurisdiction over the person of
the defendant. Thus, it is only when a defendant cannot be served personally within
a reasonable time that substituted service may be made by stating the efforts made
to find him and personally serve on him the summons and complaint and the fact
that such effort failed.30 This statement should be made in the proof of service to be
accomplished and filed in court by the sheriff. This is necessary because
substituted service is a derogation of the usual method of service. It has been held
that substituted service of summons is a method extraordinary in character; hence,
may be used only as prescribed and in the circumstances categorized by statutes.31

As gleaned from the petition and the amended petition in the CA and the annexes
thereof, the summons in Sp. Proc. No. NC-662 was issued on June 6, 1995.32 On
the same day, the summons was served on and received by Venancio Mariano B.
Ancheta III,33 the petitioner’s son. When the return of summons was submitted to
the court by the sheriff on June 21, 1995, no statement was made on the
impossibility of locating the defendant therein within a reasonable time, or that any
effort was made by the sheriff to locate the defendant. There was no mention
therein that Venancio Mariano Ancheta III was residing at No. 72 CRM Avenue cor.
CRM Corazon, BF Homes, Almanza, Las Piñas, where the petitioner (defendant
therein) was allegedly residing. It turned out that Venancio Mariano B. Ancheta III
had been residing at Bancal, Carmona, Cavite, and that his father merely showed
him the summons and the complaint and was made to affix his signature on the
face of the summons; he was not furnished with a copy of the said summons and
complaint.

4. From the time my father started staying at Munting Paraiso, Bancal,

Carmona, Cavite, I have been residing on the adjoining land consisting of
two (2) lots later apportioned to my father as his share of the conjugal
partnership. Since then, I have been residing therein up to the present.

5. On June 6, 1995, at Bancal, Carmona, Cavite (at my residence situated

on my father’s lot), my father came to see me and then asked me to sign
and I did sign papers which he (my father) and the Sheriff did not allow me
to read. Apparently, these papers are for the Summons to my mother in the
case for annulment of marriage filed by my father against her. I was not
given any copy of the Summons and/or copy of the complaint/petition.34

We, thus, rule that the Court of Appeals acted arbitrarily in dismissing the original
petition of the petitioner and the amended petition for annulment of the assailed
order grounded on lack of jurisdiction over the person of the petitioner.

The action in Rule 47 of the Rules of Court does not involve the merits of the final
order of the trial court. However, we cannot but express alarm at what transpired in
21
 Assignment No. 4 – CivRev PerFam
the court a quo as shown by the records. The records show that for the petitioner’s
failure to file an answer to the complaint, the trial court granted the motion of the
respondent herein to declare her in default. The public prosecutor condoned the
acts of the trial court when he interposed no objection to the motion of the
respondent. The trial court forthwith received the evidence of the respondent ex-
parte and rendered judgment against the petitioner without a whimper of protest
from the public prosecutor. The actuations of the trial court and the public
prosecutor are in defiance of Article 48 of the Family Code, which reads:

Article 48. In all cases of annulment or declaration of absolute nullity of marriage,

the Court shall order the prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between the parties and to
take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based

upon a stipulation of facts or confession of judgment.35

The trial court and the public prosecutor also ignored Rule 18, Section 6 of the
1985 Rules of Court (now Rule 9, Section 3[e] of the 1997 Rules of Civil Procedure)
which provides:

Sec. 6. No defaults in actions for annulment of marriage or for legal separation.— If

the defendant in an action for annulment of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to investigate whether or not
a collusion between the parties exits, and if there is no collusion, to intervene for
the State in order to see to it that the evidence submitted is not fabricated.36

In the case of Republic v. Court of Appeals,37 this Court laid down the guidelines in
the interpretation and application of Art. 48 of the Family Code, one of which
concerns the role of the prosecuting attorney or fiscal and the Solicitor General to
appear as counsel for the State:

(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement or opposition, as the
case may be, to the petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen (15) days from the
date the case is deemed submitted for resolution of the court. The Solicitor General
shall discharge the equivalent function of the defensor vinculi contemplated under
Canon 1095.38

This Court in the case of Malcampo-Sin v. Sin39 reiterated its pronouncement in

Republic v. Court of Appeals,40 regarding the role of the prosecuting attorney or
22
 Assignment No. 4 – CivRev PerFam
fiscal and the Solicitor General to appear as counsel for the State.41 The trial court,
abetted by the ineptitude, if not sheer negligence of the public prosecutor, waylaid
the Rules of Court and the Family Code, as well as the rulings of this Court.

The task of protecting marriage as an inviolable social institution requires vigilant

and zealous participation and not mere pro-forma compliance. The protection of
marriage as a sacred institution requires not just the defense of a true and genuine
union but the exposure of an invalid one as well.42

A grant of annulment of marriage or legal separation by default is fraught with the

danger of collusion. Hence, in all cases for annulment, declaration of nullity of
marriage and legal separation, the prosecuting attorney or fiscal is ordered to
appear on behalf of the State for the purpose of preventing any collusion between
the parties and to take care that their evidence is not fabricated or suppressed. If
the defendant-spouse fails to answer the complaint, the court cannot declare him or
her in default but instead, should order the prosecuting attorney to determine if
collusion exists between the parties. The prosecuting attorney or fiscal may oppose
the application for legal separation or annulment through the presentation of his
own evidence, if in his opinion, the proof adduced is dubious and fabricated.

Our constitution is committed to the policy of strengthening the family as a basic

social institution. Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the State is vitally interested. The State
can find no stronger anchor than on good, solid and happy families. The break-up
of families weakens our social and moral fabric; hence, their preservation is not the
concern of the family members alone.43 Whether or not a marriage should continue
to exist or a family should stay together must not depend on the whims and
caprices of only one party, who claims that the other suffers psychological
imbalance, incapacitating such party to fulfill his or her marital duties and
obligations.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Resolutions

of the Court of Appeals dated July 13, 2000 and September 27, 2000 in CA-G.R.
SP No. 59550 are hereby SET ASIDE and REVERSED. Let the records of CA-G.R.
SP No. 59550 be remanded to the Court of Appeals for further proceedings
conformably with the Decision of this Court and Rule 47 of the Rules of Court, as
amended.

SO ORDERED.

23