Assignment No. 7 - Civrev Perfam

Assignment No.
7 – CivRev PerFam
[1]
No. L-79284. November 27, 1987.*
FROILAN C. GANDIONCO, petitioner, vs. HON. SENEN C. PENARANDA, as Presiding
Judge of the Regional Trial Court of Misamis Oriental, Branch 18, Cagayan de Oro City,
and TERESITA S. GANDIONCO, respondents.
Criminal Procedure; Suspension of Actions; A civil action for legal separation based

on concubinage may proceed ahead of or simultaneously with a criminal action for
concubinage for the action for legal separation is not to recover civil liability arising from
the offense.—In view of the amendment under the 1985 Rules on Criminal Procedure, a
civil action for legal separation, based on concubinage, may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because said civil action is not one
“to enforce the civil liability arising from the offense” even if both the civil and criminal
actions arise from or are related to the same offense. Such civil action is one intended to
obtain the right to live separately, with the legal consequences thereof, such as, the
dissolution of the conjugal partnership of gains, custody of offsprings, support, and
disqualification from inheriting from the innocent spouse, among others.
Same; Same; Evidence; Conviction for concubinage not necessary before decree of

legal separation can be issued; Doctrine in Francisco vs. Tayao, modified.—A decree of
legal separation, on the ground of concubinage, may be issued upon proof by preponderance
of evidence in the action for legal separation. No criminal proceeding or conviction is
necessary. To this end, the doctrine in Francisco vs. Tayao has been modified, as that case
was decided under Act. No. 2710, when absolute divorce was then allowed and had for its
grounds the same grounds for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of defendant spouse had to be established
by final judgment in a criminal action. That requirement has not been reproduced or
adopted by the framers of the present Civil Code, and the omission has been uniformly
accepted as a modification of the stringent rule in Francisco v. Tayao.
Same; Support Pendente Lite; Remedy of support pendente lite available in an action

for legal separation and grant at the discretion of the judge.—Petitioner’s attempt to resist
payment of support pendente lite to his wife must also fail, as we find no proof of grave
abuse of discretion on the part of the respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in an action for legal separation, and
granted at the discretion of the judge. If petitioner finds the amount of support pendente
lite ordered as too onerous, he can always file a motion to modify or reduce the same.
Same; Disqualification of judges; Divergence of opinion as to applicable laws and

jurisprudence between a judge and party’s counsel not a ground for disqualification.—
Petitioner’s contention is without merit. Divergence of opinions between a judge hearing a
case and a party’s counsel, as to applicable laws and jurisprudence, is not a sufficient
ground to disqualify the judge from hearing the case, on the ground of bias and manifest
Page 1 of 63
Assignment No. 7 – CivRev PerFam
partiality. This is more so, in this case, where we find the judge’s disposition of petitioner’s
motions to be sound and well-taken.
SPECIAL CIVIL ACTION for certiorari to review the orders of the Regional Trial Court of
Misamis Oriental, Br. 18. Peñaranda, J.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the
Order of the respondent Judge, dated 10 December 1986, ordering petitioner to
pay support pendente lite to private respondent (his wife) and their child, and (2)
the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's
motion to suspend hearings in the action for legal separation filed against him by
private respondent as well as his motion to inhibit respondent Judge from further
hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the
Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in
Cagayan de Oro City, presided over by respondent Judge, a complaint against
petitioner for legal separation, on the ground of concubinage, with a petition for
support and payment of damages. This case was docketed as Civil Case No.
10636. On 13 October 1986, private respondent also filed with the Municipal Trial
Court, General Santos City, a complaint against petitioner for concubinage, which
was docketed on 23 October 1986 as Criminal Case No. 15437111. On 14
November 1986, application for the provisional remedy of support pendente
lite, pending a decision in the action for legal separation, was filed by private
respondent in the civil case for legal separation. The respondent judge, as already
stated, on 10 December 1986, ordered The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the
incidents consequent thereto, such as, application for support pendente lite, should
be suspended in view of the criminal case for concubinage filed against him the
private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the
1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. — Whenever the

offended party shall have instituted the civil action to enforce the civil
liability arising from the offense. as contemplated in the first Section 1
hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the pending civil
action arising from the same offense shall be suspended, in whatever
stage it may be found, until final judgment in the criminal proceeding
has been rendered. . . .
Page 2 of 63
The civil action for legal separation, grounded as it is on concubinage, it is
petitioner's position that such civil action arises from, or is inextricably tied to the
criminal action for concubinage, so that all proceedings related to legal separation
will have to be suspended to await conviction or acquittal for concubinage in the
criminal case. Authority for this position is this Court's decision in the case
of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for

legal separation would be proper if an allegation of concubinage is made therein,
relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on
criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as

otherwise provided by law, the following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery of
civil liability arising from the offense charged is impliedly instituted
with the criminal action, unless the offended party expressly waives
the civil action or reserves his right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be
instituted separately, but after the criminal action has been
commenced the civil action can not be instituted until final judgment
has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action

arising from the same offense can be prosecuted and the same shall
be suspended in whatever stage it may be found until final judgment
in the criminal proceeding has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil
action to be suspended, with or upon the filing of a criminal action, is one which is
"to enforce the civil liability arising from the offense". In other words, in view of the
amendment under the 1985 Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead of, or simultaneously with,
a criminal action for concubinage, because said civil action is not one "to enforce
the civil liability arising from the offense" even if both the civil and criminal actions
arise from or are related to the same offense. Such civil action is one intended to
obtain the right to live separately, with the legal consequences thereof, such as, the
dissolution of the conjugal partnership of gains, custody of offsprings, support, and
disqualification from inheriting from the innocent spouse, among others. As
correctly pointed out by the respondent Judge in his Order dated 5 August 1987:
Page 3 of 63
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano,
Judge of CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil.
1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule
107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil

action arising from the same offense can be
prosecuted and the same shall be suspended, in
whatever stage it may be found, until final judgment in
the criminal proceeding has been rendered. (Emphasis
supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure
which refers to "civil actions to enforce the civil liability arising from the offense" as
contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action
"for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111,
(1985) is specific that it refers to civil action for the recovery of civil liability arising
from the offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to
"Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the
main, but is aimed at the conjugal rights of the spouses and their relations to each
other, within the contemplation of Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first
secured before the action for legal separation can prosper or succeed, as the basis
of the action for legal separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued upon

proof by preponderance of evidence in the action for legal separation. 3 No criminal
proceeding or conviction is necessary. To this end, the doctrine in Francisco vs.
Tayao 4 has been modified, as that case was decided under Act. No. 2710, when
absolute divorce was then allowed and had for its grounds the same grounds for
legal separation under the New Civil Code, with the requirement, under such former
law, that the guilt of defendant spouses had to be established by final judgment in a
criminal action. That requirement has not been reproduced or adopted by the
framers of the present Civil Code, and the omission has been uniformly accepted
as a modification of the stringent rule in Francisco v. Tayao.5
Petitioner's attempt to resist payment of support pendente lite to his wife must also
fail, as we find no proof of grave abuse of discretion on the part of the respondent
Judge in ordering the same. Support pendente lite, as a remedy, can be availed of
Page 4 of 63
in an action for legal separation, and granted at the discretion of the judge. 6 If
petitioner finds the amount of support pendente lite ordered as too onerous, he can
always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the
case, as the grant of support pendente lite and the denial of the motion to suspend
hearings in the case, are taken by the petitioner as a disregard of applicable laws
and existing doctrines, thereby showing the respondent Judge's alleged manifest
partiality to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge

hearing a case and a party's counsel, as to applicable laws and jurisprudence, is
not a sufficient ground to disqualify the judge from hearing the case, on the ground
of bias and manifest partiality. This is more so, in this case, where we find the
judge's disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.
Page 5 of 63
[2]
G.R. No. 105308. September 25, 1998.*
HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses RONALD V.
CLAVANO and MARIA CLARA CLAVANO, respondents.
Remedial Law; Actions; Jurisdiction; The established rule is that the statute in force

at the time of the commencement of the action determines the jurisdiction of the court.—
Jurisdiction being a matter of substantive law, the established rule is that the statute in force
at the time of the commencement of the action determines the jurisdiction of the court. As
such, when private respondents filed the petition for adoption on September 25, 1987, the
applicable law was the Child and Youth Welfare Code, as amended by Executive Order No.
91.
Civil Law; Adoption; The written consent of the natural parent to the adoption has
remained a requisite for its validity.—It is thus evident that notwithstanding the
amendments to the law, the written consent of the natural parent to the adoption has
remained a requisite for its validity.
Same; Same; Article 256 of the Family Code provides for its retroactivity “insofar as
it does not prejudice or impair vested or acquired rights in accordance with the Civil Code
or other laws.”—During the pendency of the petition for adoption or on August 3, 1988,
the Family Code which amended the Child and Youth Welfare Code took effect. Article
256 of the Family Code provides for its retroactivity “insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws.” As
amended by the Family Code, the statutory provision on consent for adoption now reads:
“Art. 188. The written consent of the following to the adoption shall be necessary: (1) The
person to be adopted, if ten years of age or over; (2) The parents by nature of the child, the
legal guardian, or the proper government instrumentality; (3) The legitimate and adopted
children, ten years of age or over, of the adopting parent or parents; (4) The illegitimate
children, ten years of age or over, of the adopting parents, if living with said parent and the
latter’s spouse, if any; and (5) The spouse, if any, of the person adopting or to be adopted.”
(Italics supplied)
Same; Same; The requirement of written consent can be dispensed with if the parent
has abandoned the child.—As clearly inferred from the foregoing provisions of law, the
written consent of the natural parent is indispensable for the validity of the decree of
adoption. Nevertheless, the requirement of written consent can be dispensed with if the
parent has abandoned the child or that such parent is “insane or hopelessly intemperate.”
The court may acquire jurisdiction over the case even without the written consent of the
parents or one of the parents provided that the petition for adoption alleges facts sufficient
to warrant exemption from compliance therewith. This is in consonance with the liberality
with which this Court treats the procedural aspect of adoption.
Page 6 of 63
Same; Same; Allegations of abandonment in the petition for adoption, even absent the
written consent of petitioner, sufficiently vested the lower court with jurisdiction.—The
allegations of abandonment in the petition for adoption, even absent the written consent of
petitioner, sufficiently vested the lower court with jurisdiction since abandonment of the
child by his natural parents is one of the circumstances under which our statutes and
jurisprudence dispense with the requirement of written consent to the adoption of their
minor children.
Same; Same; The issue of abandonment by the oppositor natural parent is a

preliminary issue that an adoption court must first confront.—In cases where the father
opposes the adoption primarily because his consent thereto was not sought, the matter of
whether he had abandoned his child becomes a proper issue for determination. The issue of
abandonment by the oppositor natural parent is a preliminary issue that an adoption court
must first confront. Only upon failure of the oppositor natural father to prove to the
satisfaction of the court that he did not abandon his child may the petition for adoption be
considered on its merits.
Same; Same; Meaning of Abandonment.—In its ordinary sense, the word “abandon”

means to forsake entirely, to forsake or renounce utterly. The dictionaries trace this word to
the root idea of “putting under a ban.” The emphasis is on the finality and publicity with
which a thing or body is thus put in the control of another, hence, the meaning of giving up
absolutely, with intent never to resume or claim one’s rights or interests. In reference to
abandonment of a child by his parent, the act of abandonment imports “any conduct of the
parent which evinces a settled purpose to forego all parental duties and relinquish all
parental claims to the child.” It means “neglect or refusal to perform the natural and legal
obligations of care and support which parents owe their children.”
Same; Same; Same; Physical estrangement alone, without financial and moral

desertion, is not tantamount to abandonment.—In the instant case, records disclose that
petitioner’s conduct did not manifest a settled purpose to forego all parental duties and
relinquish all parental claims over his children as to constitute abandonment. Physical
estrangement alone, without financial and moral desertion, is not tantamount to
abandonment. While admittedly, petitioner was physically absent as he was then in the
United States, he was not remiss in his natural and legal obligations of love, care and
support for his children. He maintained regular communication with his wife and children
through letters and telephone. He used to send packages by mail and catered to their whims.
Same; Same; Parental authority cannot be entrusted to a person simply because he

could give the child a larger measure of material comfort than his natural parent.—In a
number of cases, this Court has held that parental authority cannot be entrusted to a person
simply because he could give the child a larger measure of material comfort than his natural
parent. Thus, in David v. Court of Appeals, the Court awarded custody of a minor
illegitimate child to his mother who was a mere secretary and market vendor instead of to
Page 7 of 63
his affluent father who was a married man, not solely because the child opted to go with his
mother.
Same; Same; In awarding custody, the court shall take into account “all relevant
considerations, especially the choice of the child over seven years of age, unless the parent
chosen is unfit.”—The transfer of custody over the children to Anna Marie by virtue of the
decree of legal separation did not, of necessity, deprive petitioner of parental authority for
the purpose of placing the children up for adoption. Article 213 of the Family Code states:
“. . . in case of legal separation of parents, parental authority shall be exercised by the parent
designated by the court.” In awarding custody, the court shall take into account “all relevant
considerations, especially the choice of the child over seven years of age, unless the parent
chosen is unfit.”
Same; Same; Parental authority and responsibility are inalienable and may not be
transferred or renounced except in cases authorized by law.—Parental authority and
responsibility are inalienable and may not be transferred or renounced except in cases
authorized by law. The right attached to parental authority, being purely personal, the law
allows a waiver of parental authority only in cases of adoption, guardianship and surrender
to a children’s home or an orphan institution. When a parent entrusts the custody of a minor
to another, such as a friend or godfather, even in a document, what is given is merely
temporary custody and it does not constitute a renunciation of parental authority. Even if a
definite renunciation is manifest, the law still disallows the same.
Same; Divorce; A divorce obtained by Filipino citizens after the effectivity of the Civil
Code is not recognized in this jurisdiction as it is contrary to State policy.—As regards the
divorce obtained in the United States, this Court has ruled in Tenchavez v. Escaño that a
divorce obtained by Filipino citizens after the effectivity of the Civil Code is not recognized
in this jurisdiction as it is contrary to State policy. While petitioner is now an American
citizen, as regards Anna Marie who has apparently remained a Filipino citizen, the divorce
has no legal effect.
Remedial Law; Appeals; Although the Court is not a trier of facts, it has the authority
to review and reverse the factual findings of the lower courts if it finds that these do not
conform to the evidence on record.—As a rule, factual findings of the lower courts are final
and binding upon this Court. This Court is not expected nor required to examine or contrast
the oral and documentary evidence submitted by the parties. However, although this Court
is not a trier of facts, it has the authority to review and reverse the factual findings of the
lower courts if it finds that these do not conform to the evidence on record.
Same; Same; Exceptions to the rule that factual findings of the trial court are final
and conclusive and may not be reviewed on appeal.—In Reyes v. Court of Appeals, this
Court has held that the exceptions to the rule that factual findings of the trial court are final
and conclusive and may not be reviewed on appeal are the following: (1) when the
inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave
Page 8 of 63
abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or
conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of the Court of Appeals
are contrary to those of the trial court; (8) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (9) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion and (10) when the findings of fact
of the Court of Appeals are premised on the absence of evidence and are contradicted by the
evidence on record.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
ROMERO, J.:
Can minor children be legally adopted without the written consent of a natural
parent on the ground that the latter has abandoned them? The answer to this
interesting query, certainly not one of first impression, would have to be reached,
not solely on the basis of law and jurisprudence, but also the hard reality presented
by the facts of the case.
This is the question posed before this Court in this petition for review on certiorari of
the Decision1 of the Court of Appeals affirming the decree of adoption issued by the
Regional Trial Court of Cebu City, Branch 14, 2 in Special Proceedings No. 1744-
CEB, "In the Matter of the Petition for Adoption of the minors Keith, Charmaine and
Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara
Diago Clavano, petitioners."
Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27,
1973, begot three children, namely: Keith, born on July 3, 1973; Charmaine, born
on January 23, 1977, and Joseph Anthony, born on January 3, 1981.
During the early years of their marriage, the Cang couple's relationship was
undisturbed. Not long thereafter, however, Anna Marie learned of her husband's
alleged extramarital affair with Wilma Soco, a family friend of the Clavanos.
Upon learning of her husband's alleged illicit liaison, Anna Marie filed a petition for
legal separation with alimony pendente lite 3 with the then Juvenile and Domestic
Relations Court of Cebu 4 which rendered a decision5 approving the joint
manifestation of the Cang spouses providing that they agreed to "live separately
and apart or from bed and board." They further agreed:
Page 9 of 63
(c) That the children of the parties shall be entitled to a
monthly support of ONE THOUSAND PESOS
(P1,000.00) effective from the date of the filing of the
complaint. This shall constitute a first lien on the net
proceeds of the house and lot jointly owned by the
parties situated at Cinco Village, Mandaue City;
(d) That the plaintiff shall be entitled to enter into any

contract or agreement with any person or persons,
natural or juridical without the written consent of the
husband; or any undertaking or acts that ordinarily
requires husband's consent as the parties are by this
agreement legally separated; 6
Petitioner then left for the United States where he sought a divorce from Anna
Marie before the Second Judicial District Court of the State of Nevada. Said court
issued the divorce decree that also granted sole custody of the three minor children
to Anna Marie, reserving "rights of visitation at all reasonable times and places" to
petitioner. 7
Thereafter, petitioner took an American wife and thus became a naturalized

American citizen. In 1986, he divorced his American wife and never remarried.
While in the United States, petitioner worked in Tablante Medical Clinic earning
P18,000.00 to P20,000.00 a month8 a portion of which was remitted to the
Philippines for his children's expenses and another, deposited in the bank in the
name of his children.
Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and

Maria Clara Diago Clavano, respectively the brother and sister-in-law of Anna
Marie, filed Special Proceedings No. 1744-CEB for the adoption of the three minor
Cang children before the Regional Trial Court of Cebu. The petition bears the
signature of then 14-year-old Keith signifying consent to his adoption. Anna Marie
likewise filed an affidavit of consent alleging that her husband had "evaded his legal
obligation to support" his children; that her brothers and sisters including Ronald V.
Clavano, had been helping her in taking care of the children; that because she
would be going to the United States to attend to a family business, "leaving the
children would be a problem and would naturally hamper (her) job-seeking venture
abroad;" and that her husband had "long forfeited his parental rights" over the
children for the following reasons:
1. The decision in Civil Case No. JD-707 allowed her to enter into any
contract without the written consent of her husband;
Page 10 of 63
2. Her husband had left the Philippines to be an illegal alien in the
United States and had been transferring from one place to another to
avoid detection by Immigration authorities, and
3. Her husband had divorced her.
Upon learning of the petitioner for adoption, petitioner immediately returned to the
Philippines and filed an opposition thereto, alleging that, although private
respondents Ronald and Maria Clara Clavano were financially capable of
supporting the children while his finances were "too meager" compared to theirs, he
could not "in conscience, allow anybody to strip him of his parental authority over
his beloved children."
Pending resolution of the petition for adoption, petitioner moved to reacquire

custody over his children alleging that Anna Marie had transferred to the United
States thereby leaving custody of their children to private respondents. On January
11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding
that Anna Marie had, in effect, relinquished custody over the children and,
therefore, such custody should be transferred to the father. The court then directed
the Clavanos to deliver custody over the minors to petitioner.
On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a
decree of adoption with a dispositive portion reading as follows:
WHEREFORE, premises considered, the petition for adoption of the

minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by
the petitioner-spouses Ronald V. Clavano and Maria Clara Diago
Clavano is hereby granted and approved. These children shall
henceforth be known and called as Keith D. Clavano, Charmaine D.
Clavano and Joseph Anthony D. Clavano respectively. Moreover, this
Decree of Adoption shall:
(1) Confer upon the adopted children the same rights

and duties as though they were in fact the legitimate
children of the petitioners;
(2) Dissolve the authority vested in the parents by

nature, of the children; and,
(3) Vest the same authority in the petitioners.
Furnish the Local Civil Registrar of Cebu City, Philippines with a copy
of this Decree of Adoption for registration purposes.
Page 11 of 63
SO ORDERED.
In so ruling, the lower court was "impelled" by these reasons:
(1) The Cang children had, since birth, developed "close

filial ties with the Clavano family, especially their
maternal uncle," petitioner Ronald Clavano.
(2) Ronald and Maria Clara Clavano were childless and,

with their printing press, real estate business, export
business and gasoline station and mini-mart in
Rosemead, California, U.S.A., had substantial assets
and income.
(3) The natural mother of the children, Anna Marie,

nicknamed "Menchu," approved of the adoption
because of her heart ailment, near-fatal accident in
1981, and the fact that she could not provide them a
secure and happy future as she "travels a lot."
(4) The Clavanos could provide the children moral and

spiritual direction as they would go to church together
and had sent the children to Catholic schools.
(5) The children themselves manifested their desire to

be adopted by the Clavanos — Keith had testified and
expressed the wish to be adopted by the Clavanos while
the two younger ones were observed by the court to
have "snuggled" close to Ronald even though their
natural mother was around.
On the other hand, the lower court considered the opposition of petitioner to rest on
"a very shaky foundation" because of its findings that:
(1) Petitioner was "morally unfit to be the father of his

children" on account of his being "an improvident father
of his family" and an "undisguised Lothario." This
conclusion is based on the testimony of his alleged
paramour, mother of his two sons and close friend of
Anna Marie, Wilma Soco, who said that she and
petitioner lived as husband and wife in the very house of
the Cangs in Opao, Mandaue City.
Page 12 of 63
(2) The alleged deposits of around $10,000 that were of
"comparatively recent dates" were "attempts at
verisimilitude" as these were joint deposits the
authenticity of which could not be verified.
(3) Contrary to petitioner's claim, the possibility of his

reconciliation with Anna Marie was "dim if not nil"
because it was petitioner who "devised, engineered and
executed the divorce proceedings at the Nevada
Washoe County court."
(4) By his naturalization as a U.S. citizen, petitioner "is

now an alien from the standpoint of Philippine laws" and
therefore, how his "new attachments and loyalties would
sit with his (Filipino) children is an open question."
Quoting with approval the evaluation and recommendation of the RTC Social
Worker in her Child Study Report, the lower court concluded as follows:
Simply put, the oppositor Herbert Cang has abandoned his children.
And abandonment of a child by its (sic) parent is commonly specified
by statute as a ground for dispensing with his consent to its (sic)
adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]).
Indeed, in such case, adoption will be allowed not only without the
consent of the parent, but even against his opposition (Re McKeag,
141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Gal.
469,63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo.
346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160,
citing R.C.L.; Steams v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am.
St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep.
564; Nugent v. Powell, 4 Wyo, 173, 33 P. 23, 20 L.R.A. 199, 62 Am.
St. Rep. 17.) 9
Before the Court of Appeals, petitioner contended that the lower court erred in
holding that it would be in the best interest of the three children if they were
adopted by private respondents Ronald and Maria Clara Clavano. He asserted that
the petition for adoption was fatally defective and tailored to divest him of parental
authority because: (a) he did not have a written consent to the adoption; (b) he
never abandoned his children; (c) Keith and Charmaine did not properly give their
written consent; and (d) the petitioners for adoption did not present as witness the
representative of the Department of Social Welfare and Development who made
the case study report required by law.
The Court of Appeals affirmed the decree of adoption stating:

Page 13 of 63
Art. 188 of the Family Code requires the written consent of the natural
parents of the child to be adopted. It has been held however that the
consent of the parent who has abandoned the child is not necessary
(Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA
344). The question therefore is whether or not oppositor may be
considered as having abandoned the children. In adoption cases,
abandonment connotes any conduct on the part of the parent to
forego parental duties and relinquish parental claims to the child, or
the neglect or refusal to perform the natural and legal obligations
which parents owe their children (Santos vs. Ananzanso, supra), or
the withholding of the parent's presence, his care and the opportunity
to display voluntary affection. The issue of abandonment is amply
covered by the discussion of the first error.
Oppositor argues that he has been sending dollar remittances to the

children and has in fact even maintained bank accounts in their
names. His duty to provide support comes from two judicial
pronouncements. The first, the decision in JD-707 CEB, supra,
obliges him to pay the children P1,000.00 a month. The second is
mandated by the divorce decree of the Nevada, U.S.A. Federal Court
which orders him to pay monthly support of US$50.00 for each child.
Oppositor has not submitted any evidence to show compliance with
the decision in JD-101 CEB, but he has submitted 22 cancelled dollar
checks (Exhs. 24 to 45) drawn in the children's names totalling
$2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His
obligation to provide support commenced under the divorce decree
on May 5, 1982 so that as of October 6, 1987, oppositor should have
made 53 remittances of $150.00, or a total of $7,950.00. No other
remittances were shown to have been made after October 6, 1987, so
that as of this date, oppositor was woefully in arrears under the terms
of the divorce decree. And since he was totally in default of the
judgment in JD-707 CEB, the inevitable conclusion is oppositor had
not really been performing his duties as a father, contrary to his
protestations.
True, it has been shown that oppositor had opened three accounts in
different banks, as follows —
Acct. No. Date Opened Balance Name of Bank
———— —————— ———— ——————
1) 118-606437-4 July 23, 1985 $5,018.50 Great Western Savings,
Page 14 of 63
Oct. 29, 1987 Daly City, Cal., U.S.A.
2) 73-166-8 March 5, 1986 3,129.00 Matewan National Bank
Oct. 26, 1987 of Williamson, West
Virginia, U.S.A.
3) 564-146883 December 31, 1986 2,622.19 Security Pacific National
Oct. 29, 1987 Bank, Daly City, Cal.,
U.S.A.
The first and third accounts were opened however in oppositor's

name as trustee for Charmaine Cang and Joseph Anthony Cang,
respectively. In other words, the accounts are operated and the
amounts withdrawable by oppositor himself and it cannot be said that
they belong to the minors. The second is an "or" account, in the
names of Herbert Cang or Keith Cang. Since Keith is a minor and in
the Philippines, said account is operable only by oppositor and the
funds withdrawable by him alone.
The bank accounts do not really serve what oppositor claimed in his
offer of evidence "the aim and purpose of providing for a better future
and security of his family."10
Petitioner moved to reconsider the decision of the Court of Appeals. He

emphasized that the decree of legal separation was not based on the merits of the
case as it was based on a manifestation amounting to a compromise agreement
between him and Anna Marie. That he and his wife agreed upon the plan for him to
leave for the United States was borne out by the fact that prior to his departure to
the United States, the family lived with petitioner's parents. Moreover, he alone did
not instigate the divorce proceedings as he and his wife initiated the "joint
complaint" for divorce.
Petitioner argued that the finding that he was not fit to rear and care for his children
was belied by the award to him of custody over the children in Civil Case No. JD-
707. He took exception to the appellate court's findings that as an American citizen
he could no longer lay claim to custody over his children because his citizenship
would not take away the fact that he "is still a father to his children." As regards his
alleged illicit relationship with another woman, he had always denied the same both
in Civil Case No. JD-707 and the instant adoption case. Neither was it true that
Wilma Soco was a neighbor and family friend of the Clavanos as she was residing
Page 15 of 63
in Mandaue City seven (7) kilometers away from the Clavanos who were residents
of Cebu City. Petitioner insisted that the testimony of Wilma Soco should not have
been given weight for it was only during the hearing of the petition for adoption that
Jose Clavano, a brother of Ronald, came to know her and went to her residence in
Iligan City to convince her to be a witness for monetary considerations. Lastly,
petitioner averred that it would be hypocritical of the Clavanos to claim that they
could love the children much more than he could. 11
His motion for reconsideration having been denied, petitioner is now before this
Court, alleging that the petition for adoption was fatally defective as it did not have
his written consent as a natural father as required by Article 31 (2) of Presidential
Decree No. 603, the Child and Youth Welfare Code, and Article 188 (2) of the
Family Code.
Art. 31 of P.D. No. 603 provides —
Art. 31. Whose Consent is Necessary. — The written consent of the

following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age

or, over;
(2) The natural parents of the child or his legal guardian

of the Department of Social Welfare or any duly licensed
child placement agency under whose care the child may
be;
(3) The natural children, fourteen years and above, of

the adopting parents. (Emphasis supplied)
On December 17, 1986, then President Corazon C. Aquino issued Executive Order
No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the Child and Youth Welfare
Code. As thus amended, Article 31 read:
Art. 31. Whose Consent is Necessary. — The written consent of the

following to the adoption shall be necessary:
(1) The person to be adopted, if fourteen years of age or

over;
(2) The natural parents of the child or his legal guardian

after receiving counselling and appropriate social
services from the Ministry of Social Services and
Page 16 of 63
Development or from a duly licensed child-placement
agency;
(3) The Ministry of Social Services and Development or

any duly licensed child-placement agency under whose
care and legal custody the child may be;
(4) The natural children, fourteen years and above, of

the adopting parents. (Emphasis supplied)
Jurisdiction being a matter of substantive law, the established rule is that the
statute in force at the time of the commencement of the action determines the
jurisdiction of the court. 12 As such, when private respondents filed the petition for
adoption on September 25, 1987, the applicable law was the Child and Youth
Welfare Code, as amended by Executive Order No. 91.
During the pendency of the petition for adoption or on August 3, 1988, the Family
Code which amended the Child and Youth Welfare Code took effect. Article 256 of
the Family Code provides for its retroactivity "insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws."
As amended by the Family Code, the statutory provision on consent for adoption
now reads:
Art. 188. The written consent of the following to the adoption shall be
necessary:
(1) The person to be adopted, if ten years of age or

over;
(2) The parents by nature of the child, the legal

guardian, or the proper government instrumentality;
(3) The legitimate and adopted children, ten years of

age or over, of the adopting parent or parents;
(4) The illegitimate children, ten years of age or over, of

the adopting parents, if living with said parent and the
latter's spouse, if any; and
(5) The spouse, if any, of the person adopting or to be

adopted. (Emphasis supplied)
Based on the foregoing, it is thus evident that notwithstanding the amendments to

the law, the written consent of the natural parent to the adoption has remained a
Page 17 of 63
requisite for its validity. Notably, such requirement is also embodied in Rule 99 of
the Rules of Court as follows:
Sec. 3. Consent to adoption. — There shall be filed with the petition

a written consent to the adoption signed by the child, if fourteen years
of age or over and not incompetent, and by the child's spouse, if any,
and by each of its known living parents who is not insane or
hopelessly intemperate or has not abandoned the child, or if the child
is in the custody of an orphan asylum, children's home, or benevolent
society or person, by the proper officer or officers of such asylum,
home, or society, or by such persons; but if the child is illegitimate
and has not been recognized, the consent of its father to the adoption
shall not be required. (Emphasis supplied)
As clearly inferred from the foregoing provisions of law, the written consent of the
natural parent is indispensable for the validity of the decree of adoption.
Nevertheless, the requirement of written consent can be dispensed with if the
parent has abandoned the child 13 or that such parent is "insane or hopelessly
intemperate." The court may acquire jurisdiction over the case even, without the
written consent of the parents or one of the parents provided that the petition for
adoption alleges facts sufficient to warrant exemption from compliance therewith.
This is in consonance with the liberality with which this Court treats the procedural
aspect of adoption. Thus, the Court declared:
. . . . The technical rules of pleading should not be stringently applied

to adoption proceedings, and it is deemed more important that the
petition should contain facts relating to the child and its parents, which
may give information to those interested, than that it should be
formally correct as a pleading. Accordingly, it is generally held that a
petition will confer jurisdiction if it substantially complies with the
adoption statute, alleging all facts necessary to give the court
jurisdiction. 14
In the instant case, only the affidavit of consent of the natural mother was attached
to the petition for adoption. Petitioner's consent, as the natural father is lacking.
Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors
for adoption by the natural father as follows:
3. That the children's mother, sister of petitioner RONALD V.

CLAVANO, has given her express consent to this adoption, as shown
by Affidavit of Consent, Annex "A". Likewise, the written consent of
Keith Cang, now 14 years of age appears on page 2 of this petition;
However, the father of the children, Herbert Cang, had already left his
wife and children and had already divorced the former, as evidenced
Page 18 of 63
by the xerox copy of the DECREE OF DIVORCE issued by the
County of Washoe, State of Nevada, U.S.A. (Annex "B") which was
filed at the instance of Mr. Cang, not long after he abandoned his
family to live in the United States as an illegal immigrant. 15
The allegations of abandonment in the petition for adoption, even absent the written
consent of petitioner, sufficiently vested the lower court with jurisdiction since
abandonment of the child by his natural parents is one of the circumstances under
which our statutes and jurisprudence 16 dispense with the requirement of written
consent to the adoption of their minor children.
However, in cases where the father opposes the adoption primarily because his
consent thereto was not sought, the matter of whether he had abandoned his child
becomes a proper issue for determination. The issue of abandonment by the
oppositor natural parent is a preliminary issue that an adoption court must first
confront. Only upon, failure of the oppositor natural father to prove to the
satisfaction of the court that he did not abandon his child may the petition for
adoption be considered on its merits.
As a rule, factual findings of the lower courts are final and binding upon this
Court. 17 This Court is not expected nor required to examine or contrast the oral and
documentary evidence submitted by the parties. 18 However, although this Court is
not a trier of facts, it has the authority to review and reverse the factual findings of
the lower courts if it that these do not conform to the evidence on record. 19
In Reyes v. Court of Appeals, 20 this Court has held that the exceptions to the rule
that factual findings of the trial court are final and conclusive and may not be
reviewed on appeal are the following: (1) when the inference made is manifestly
mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3)
when the finding is grounded entirely on speculations, surmises or conjectures; (4)
when the judgment of the Court of Appeals is based on misapprehension of facts;
(5) when the findings of fact are conflicting; (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee; (7) when the findings of the Court of
Appeals are contrary to those of the trial court; (8) when the findings of fact are
conclusions without citation of specific evidence on which they are based; (9) when
the Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties and which, if properly considered, would justify a different conclusion
and (10) when the findings of fact of the Court of Appeals are premised on the
absence of evidence and are contradicted by the evidence on record.
This Court finds that both the lower court and the Court of Appeals failed to
appreciate facts and circumstances that should have elicited a different
Page 19 of 63
21
conclusion on the issue of whether petitioner has so abandoned his children,
thereby making his consent to the adoption unnecessary.
In its ordinary sense, the word "abandon'' means to forsake entirely, to forsake or
renounce utterly. The dictionaries trace this word to the root idea of "putting under a
ban." The emphasis is on the finality and publicity with which a thing or body is thus
put in the control of another, hence, the meaning of giving up absolutely, with intent
never to resume or claim one's rights or interests. 22 In reference to abandonment
of a child by his parent, the act of abandonment imports "any conduct of the parent
which evinces a settled purpose to forego all parental duties and relinquish all
parental claims to the child." It means "neglect or refusal to perform the natural and
legal obligations of care and support which parents owe their children." 23
In the instant case, records disclose that petitioner's conduct did not manifest a
settled purpose to forego all parental duties and relinquish all parental claims over
his children as to, constitute abandonment. Physical estrangement alone,
without financial and moral desertion, is not tantamount to abandonment. 24 While
admittedly, petitioner was physically absent as he was then in the United States, he
was not remiss in his natural and legal obligations of love, care and support for his
children. He maintained regular communication with his wife and children through
letters and telephone. He used to send packages by mail and catered to their
whims.
Petitioner's testimony on the matter is supported by documentary evidence

consisting of the following handwritten letters to him of both his wife and children:
1. Exh. 1 — a 4-page updated letter of Menchu (Anna Marie)

addressed to "Dear Bert" on a C. Westates Carbon Phil. Corp.
stationery. Menchu stated therein that it had been "a long time since
the last time you've heard from me excluding that of the phone
conversation we've had." She discussed petitioner's intention to buy a
motorbike for Keith, expressing apprehension over risks that could be
engendered by Keith's use of it. She said that in the "last phone
conversation" she had with petitioner on the birthday of "Ma," she
forgot to tell petitioner that Keith's voice had changed; he had become
a "bagito" or a teen-ager with many "fans" who sent him Valentine's
cards. She told him how Charmaine had become quite a talkative
"almost dalaga" who could carry on a conversation with
her angkong and how pretty she was in white dress when she won
among the candidates in the Flores de Mayo after she had prayed so
hard for it. She informed him, however, that she was worried because
Charmaine was vain and wont to extravagance as she loved clothes.
About Joeton (Joseph Anthony), she told petitioner that the boy was
smart for his age and "quite spoiled" being the youngest of the
Page 20 of 63
children in Lahug. Joeton was mischievous but Keith was his idol with
whom he would sleep anytime. She admitted having said so much
about the children-because they might not have informed petitioner of
"some happenings and spices of life" about themselves. She said that
it was "just very exciting to know how they've grown up and very
pleasant, too, that each of them have (sic) different characters." She
ended the letter with the hope that petitioner was "at the best of
health." After extending her regards "to all," she signed her name
after the word "Love." This letter was mailed on July 9, 1986 from
Cebu to petitioner whose address was P.O. Box 2445, Williamson,
West Virginia 25661 (Exh. 1-D).
2. Exh. 2 — letter dated 11/13/84 on a green stationery with golden

print of "a note from Menchu" on the left upper corner. Anna Marie
stated that "we" wrote to petitioner on Oct. 2, 1984 and that Keith and
Joeton were very excited when petitioner "called up last time." She
told him how Joeton would grab the phone from Keith just so
petitioner would know what he wanted to order. Charmaine, who was
asleep, was so disappointed that she missed petitioner's call because
she also wanted something that petitioner should buy. Menchu told
petitioner that Charmaine wanted a pencil sharpener, light-colored T-
shirts for her walking shorts and a (k)nap sack. Anna Marie informed
petitioner that the kids were growing up and so were their needs. She
told petitioner to be "very fatherly" about the children's needs because
those were expensive here. For herself, Anna Marie asked for a
subscription of Glamour and Vogue magazines and that whatever
expenses he would incur, she would "replace" these. As a postscript,
she told petitioner that Keith wanted a size 6 khaki-colored "Sperry
topsider shoes."
3. Exh. 3 — an undated note on a yellow small piece of paper that

reads:
Dear Herbert,
Hi, how was Christmas and New Year? Hope you had a wonderful
one.
By the way thanks for the shoes, it was a nice one. It's nice to be
thought of at X'mas. Thanks again.
Sincere
Menchu
Page 21 of 63
4. Exh. 4 — a two-page undated letter of Keith on stationery of Jose
Clavano, Inc. addressed to "Dear Dad." Keith told his father that they
tried to tell their mother "to stay for a little while, just a few weeks after
classes start(s)" on June 16. He informed petitioner that Joeton would
be in Kinder I and that, about the motorbike, he had told his mother to
write petitioner about it and "we'll see what you're (sic) decision will
be." He asked for chocolates, nuts, basketball shirt and shorts, rubber
shoes, socks, headband, some clothes for outing and perfume. He
told petitioner that they had been going to Labug with their mother
picking them up after Angkong or Ama had prepared lunch or dinner.
From her aerobics, his mother would go for them in Lahug at about
9:30 or 10:00 o'clock in the evening. He wished his father "luck and
the best of health" and that they prayed for him and their other
relatives. The letter was ended with "Love Keith."
5. Exh. 5 — another undated long letter of Keith. He thanked his

father for the Christmas card "with $40.00, $30.00 and $30.00" and
the "card of Joeton with $5.00 inside." He told petitioner the amounts
following his father's instructions and promise to send money through
the mail. He asked his father to address his letter directly to him
because he wanted to open his own letters. He informed petitioner of
activities during the Christmas season — that they enjoyed eating,
playing and giving surprises to their mother. He apprised him of his
daily schedule and that their mother had been closely supervising
them, instructing them to fold their blankets and pile up their pillows.
He informed petitioner that Joeton had become very smart while
Charmaine, who was also smart, was very demanding of their mother.
Because their mother was leaving for the United States on February
5, they would be missing her like they were missing petitioner. He
asked for his "things" and $200.00. He told petitioner more anecdotes
about Joeton like he would make the sign of the cross even when
they would pass by the Iglesia ni Cristo church and his insistence that
Aquino was not dead because he had seen him on the betamax
machine. For Keith, Charmaine had become "very maldita" who was
not always satisfied with her dolls and things but Joeton was full of
surprises. He ended the letter with "Love your son, Keith." The letter
was mailed on February 6, 1985 (Exh. 5-D).
6. Exh. 6 — an undated letter Charmaine. She thanked petitioner for

the bathing suit, key chain, pencil box, socks, half shirt, pencil
sharpener and $50.00. She reminded him of her birthday on January
23 when she would turn 9 years old. She informed him that she wore
size 10 and the size of her feet was IM. They had fun at Christmas in
Lahug but classes would start on January 9 although Keith's classes
Page 22 of 63
had started on January 6. They would feel sad again because
Mommy would be leaving soon. She hoped petitioner would keep
writing them. She signed, "Love, Charmaine."
7. Exh . 7 — an undated letter of Keith. He explained to petitioner that

they had not been remiss in writing letters to him. He informed him of
their trip to Manila — they went to Malacañang, Tito Doy Laurel's
house, the Ministry of Foreign Affairs, the executive house, Tagaytay
for three days and Baguio for one week. He informed him that he got
"honors," Charmaine was 7th in her class and Joeton had excellent
grades. Joeton would be enrolled in Sacred Heart soon and he was
glad they would be together in that school. He asked for his "reward"
from petitioner and so with Charmaine and Joeton. He asked for a
motorbike and dollars that he could save. He told petitioner that he
was saving the money he had been sending them. He said he missed
petitioner and wished him the best. He added that petitioner should
call them on Sundays.
8. Exh. 8 — a letter from Joeton and Charmaine but apparently

written by the latter. She asked for money from petitioner to buy
something for the school and "something else." She, promised not to
spend so much and to save some. She said she loved petitioner and
missed him. Joeton said "hi!" to petitioner. After ending the letter with
"Love, Joeton and Charmaine," she asked for her prize for her grades
as she got seventh place.
9. Exh. 9 — undated letter of Keith. He assured petitioner that he had

been writing him; that he would like to have some money but he
would save them; that he learned that petitioner had called them up
but he was not around; that he would be going to Manila but would be
back home May 3; that his Mommy had just arrived Thursday
afternoon, and that he would be the "official altar boy." He asked
petitioner to write them soon.
10. Exh. 10 — Keith thanked petitioner for the money he sent. He told
petitioner that he was saving some in the bank and he was proud
because he was the only one in his group who saved in the bank. He
told him that Joeton had become naughty and would claim as his own
the shirts sent to Keith by petitioner. He advised petitioner to send
pants and shirts to Joeton, too, and asked for a pair of topsider shoes
and candies. He informed petitioner that he was a member of the
basketball team and that his mom would drive for his group. He asked
him to call them often like the father of Ana Christie and to write them
when he would call so that they could wait for it. He informed
Page 23 of 63
petitioner that they had all grown bigger and heavier. He hoped
petitioner would be happy with the letter that had taken him so long to
write because he did not want to commit any mistakes. He asked
petitioner to buy him perfume (Drakkar) and, after thanking petitioner,
added that the latter should buy something for Mommy.
11. Exh. 11 — a Christmas card "For My Wonderful Father" dated

October 8, 1984 from Keith, Charmaine and Joeton.
12. Exh. 12 — another Christmas card, "Our Wish For You" with the
year '83 written on the upper right hand corner of the inside page,
from Keith, Charmaine and Joeton.
13. Exh. 13 — a letter of Keith telling petitioner that he had written

him even when their Mom "was there" where she bought them clothes
and shoes. Keith asked petitioner for $300.00. Because his mother
would not agree to buy him a motorbike, he wanted a Karaoke unit
that would cost P12,000.00. He informed petitioner that he would go
to an afternoon disco with friends but their grades were all good with
Joeton receiving "stars" for excellence. Keith wanted a bow and arrow
Rambo toys and G.I. Joe. He expressed his desire that petitioner
would come and visit them someday.
14. Exh. 14 — a letter of Keith with one of the four pages bearing the
date January 1986. Keith told his father that they had received the
package that the latter sent them. The clothes he sent, however, fitted
only Keith but not Charmaine and Joeton who had both grown bigger.
Keith asked for grocery items, toys and more clothes. He asked, in
behalf of his mother, for low-heeled shoes and a dress to match,
jogging pants, tights and leotards that would make her look sexy. He
intimated to petitioner that he had grown taller and that he was
already ashamed to be asking for things to buy in the grocery even
though his mother had told him not to be shy about it.
Aside from these letters, petitioner also presented certifications of banks in the
U.S.A. showing that even prior to the filing of the petition for adoption, he had
deposited amounts for the benefit of his children. 25 Exhibits 24 to 45 are copies of
checks sent by petitioner to the children from 1985 to 1989.
These pieces of evidence are all on record. It is, therefore, quite surprising why the
courts below simply glossed over these, ignoring not only evidence on financial
support but also the emotional exchange of sentiments between petitioner and his
family. Instead, the courts below emphasized the meagerness of the amounts he
sent to his children and the fact that, as regards the bank deposits, these were
Page 24 of 63
"withdrawable by him alone." Simply put, the courts below attached a high premium
to the prospective adopters' financial status but totally brushed aside the possible
repercussion of the adoption on the emotional and psychological well-being of the
children.
True, Keith had expressed his desire to be adopted by his uncle and aunt.
However, his seeming steadfastness on the matter as shown by his testimony is
contradicted by his feelings towards his father as revealed in his letters to him. It is
not at all farfetched to conclude that Keith's testimony was actually the effect of the
filing of the petition for adoption that would certainly have engendered confusion in
his young mind as to the capability of his father to sustain the lifestyle he had been
used to.
The courts below emphasized respondents' emotional attachment to the children.

This is hardly surprising for, from the very start of their young lives, the children
were used to their presence. Such attachment had persisted and certainly, the
young ones' act of snuggling close to private respondent Ronald Clavano was not
indicative of their emotional detachment from their father. Private respondents,
being the uncle and aunt of the children, could not but come to their succor when
they needed help as when Keith got sick and private respondent Ronald spent for
his hospital bills.
In a number of cases, this Court has held that parental authority cannot be
entrusted to a person simply because he could give the child a larger measure of
material comfort than his natural parent. Thus, in David v. Court of Appeals, 26 the
Court awarded custody of a minor illegitimate child to his mother who was a mere
secretary and market vendor instead of to his affluent father who was a married
man, not solely because the child opted to go with his mother. The Court said:
Daisie and her children may not be enjoying a life of affluence that
private respondent promises if the child lives with him. It is enough,
however, that petitioner is earning a decent living and is able to
support her children according to her means.
In Celis v. Cafuir 27 where the Court was confronted with the issue of whether to
award custody of a child to the natural mother or to a foster mother, this Court said:
This court should avert the tragedy in the years to come of having
deprived mother and son of the beautiful associations and tender,
imperishable memories engendered by the relationship of parent and
child. We should not take away from a mother the opportunity of
bringing up her own child even at the cost of extreme sacrifice due to
poverty and lack of means; so that afterwards, she may be able to
look back with pride and a sense of satisfaction at her sacrifices and
Page 25 of 63
her efforts, however humble, to make her dreams of her little boy
come true. We should not forget that the relationship between a foster
mother and a child is not natural but artificial. If the child turns out to
be a failure or forgetful of what its foster parents had done for him,
said parents might yet count and appraise (sic) all that they have
done and spent for him and with regret consider all of it as a dead
loss, and even rue the day they committed the blunder of taking the
child into their hearts and their home. Not so with a real natural
mother who never counts the cost and her sacrifices, ever treasuring
memories of her associations with her child, however unpleasant and
disappointing. Flesh and blood count. . . . .
In Espiritu v. Court of Appeals, 28 the Court stated that "(I)n ascertaining the welfare
and best interests of the child, courts are mandated by the Family Code to take into
account all relevant considerations." Thus, in awarding custody of the child to the
father, the Court said:
A scrutiny of the pleadings in this case indicates that Teresita, or at

least, her counsel are more intent on emphasizing the "torture and
agony" of a mother separated from her children and the humiliation
she suffered as a, result of her character being made a key issue in
court rather than the feelings and future, the best interests and
welfare of her children. While the bonds between a mother and her
small child are special in nature, either parent, whether father or
mother, is bound to suffer agony and pain if deprived of custody. One
cannot say that his or her suffering is greater than that of the other
parent. It is not so much the suffering, pride, and other feelings of
either parent but the welfare of the child which is the paramount
consideration. (Emphasis supplied) 29
Indeed, it would be against the spirit of the law if financial consideration were to be
the paramount consideration in deciding whether to deprive a person of parental
authority over his children. There should be a holistic approach to the matter, taking
into account the physical, emotional, psychological, mental, social and spiritual
needs of the child. 30 The conclusion of the courts below that petitioner abandoned
his family needs more evidentiary support other than his inability to provide them
the material comfort that his admittedly affluent in-laws could provide. There should
be proof that he had so emotionally abandoned them that his children would not
miss his guidance and counsel if they were given to adopting parents. The letters
he received from his children prove that petitioner maintained the more important
emotional tie between him and his children. The children needed him not only
because he could cater to their whims but also because he was a person they
could share with their daily activities, problems and triumphs.
Page 26 of 63
The Court is thus dismayed that the courts below did not look beyond petitioner's
"meager" financial support to ferret out other indications on whether petitioner had
in fact abandoned his family. The omission of said courts has led us to examine
why the children were subjected to the process of adoption, notwithstanding the
proven ties that bound them to their father. To our consternation, the record of the
case bears out the fact that the welfare of the children was not exactly the
"paramount consideration" that impelled Anna Marie to consent to their adoption.
In her affidavit of consent, Anna Marie expressly said that leaving the children in
the country, as she was wont to travel abroad often, was a problem that would
naturally hamper her job-seeking abroad. In other words, the adoption appears to
be a matter of convenience for her because Anna Marie herself is financially
capable of supporting her children. 31 In his testimony, private respondent Ronald
swore that Anna Marie had been out of the country for two years and came home
twice or three times, 32 thereby manifesting the fact that it was she who actually left
her children to the care of her relatives. It was bad enough that their father left their
children when he went abroad, but when their mother followed suit for her own
reasons, the situation worsened. The Clavano family must have realized this.
Hence, when the family first discussed the adoption of the children, they decided
that the prospective adopter should be Anna Marie's brother Jose. However,
because he had children of his own, the family decided to devolve the task upon
private respondents. 33
This couple, however, could not always be in Cebu to care for the children. A
businessman, private respondent Ronald Clavano commutes between Cebu and
Manila while his wife, private respondent Maria Clara, is an international flight
stewardess. 34 Moreover, private respondent Ronald claimed that he could "take
care of the children while their parents are away," 35 thereby indicating the
evanescence of his intention. He wanted to have the children's surname changed
to Clavano for the reason that he wanted to take them to the United States as it
would be difficult for them to get a visa if their surname were different from
his. 36 To be sure, he also testified that he wanted to spare the children the stigma
of being products of a broken home.
Nevertheless, a close analysis of the testimonies of private respondent Ronald, his

sister Anna Marie and their brother Jose points to the inescapable conclusion that
they just wanted to keep the children away from their father. One of the overriding
considerations for the adoption was allegedly the state of Anna Marie's health —
she was a victim of an almost fatal accident and suffers from a heart ailment.
However, she herself admitted that her health condition was not that serious as she
could still take care of the children. 37 An eloquent evidence of her ability to
physically care for them was her employment at the Philippine Consulate in Los
Angeles 38 — she could not have been employed if her health were endangered. It
is thus clear that the Clavanos' attempt at depriving petitioner of parental authority
Page 27 of 63
apparently stemmed from their notion that he was an inveterate womanizer. Anna
Marie in fact expressed fear that her children would "never be at ease with the wife
of their father." 39
Petitioner, who described himself as single in status, denied being a womanizer

and father to the sons of Wilma Soco. 40 As to whether he was telling the truth is
beside the point. Philippine society, being comparatively conservative and
traditional, aside from being Catholic in orientation, it does not countenance
womanizing on the part of a family man, considering the baneful effects such
irresponsible act visits on his family. Neither may the Court place a premium on the
inability of a man to distinguish between siring children and parenting them.
Nonetheless, the actuality that petitioner carried on an affair with a paramour
cannot be taken as sufficient basis for the conclusion that petitioner was
necessarily an unfit father. 41 Conventional wisdom and common human experience
show that a "bad" husband does not necessarily make a "bad" father. That a
husband is not exactly an upright man is not, strictly speaking, a sufficient ground
to deprive him as a father of his inherent right to parental authority over the
children. 42 Petitioner has demonstrated his love and concern for his children when
he took the trouble of sending a telegram 43 to the lower court expressing his
intention to oppose the adoption immediately after learning about it. He traveled
back to this country to attend to the case and to testify about his love for his
children and his desire to unite his family once more in the United States. 44
Private respondents themselves explained why petitioner failed to abide by the

agreement with his wife on the support of the children. Petitioner was an illegal
alien in the United States. As such, he could not have procured gainful
employment. Private respondents failed to refute petitioner's testimony that he did
not receive his share from the sale of the conjugal home, 45 pursuant to their
manifestation/compromise agreement in the legal separation case. Hence, it can be
reasonably presumed that the proceeds of the sale redounded to the benefit of his
family, particularly his children. The proceeds may not have lasted long but there is
ample evidence to show that thereafter, petitioner tried to abide by his agreement
with his wife and sent his family money, no matter how "meager."
The liberality with which this Court treats matters leading to adoption insofar as it
carries out the beneficent purposes of the law to ensure the rights and privileges of
the adopted child arising therefrom, ever mindful that the paramount consideration
is the overall benefit and interest of the adopted child, should be understood in its
proper context and perspective. The Court's position, should not be misconstrued
or misinterpreted as to extend to inferences beyond the contemplation of law and
jurisprudence. 46 The discretion to approve adoption proceedings is not to be
anchored solely on best interests of the child but likewise, with due regard to the
natural rights of the parents over the child. 47
Page 28 of 63
In this regard, this Court notes private respondents' reliance on the
manifestation/compromise agreement between petitioner and Anna Marie which
became the basis of the decree of legal separation. According to private
respondents' counsel, 48 the authority given to Anna Marie by that decree to enter
into contracts as a result of the legal separation was "all embracing" 49 and,
therefore, included giving her sole consent to the adoption. This conclusion is
however, anchored on the wrong premise that the authority given to the innocent
spouse to enter into contracts that obviously refer to their conjugal properties, shall
include entering into agreements leading to the adoption of the children. Such
conclusion is as devoid of a legal basis as private respondents' apparent reliance
on the decree of legal separation for doing away with petitioner's consent to the
adoption.
The transfer of custody over the children to Anna Marie by virtue of the decree of
legal separation did not, of necessity; deprive petitioner of parental authority for the
purpose of placing the children up for adoption. Article 213 of the Family Code
states: ". . . in case of legal separation of parents, parental authority shall be
exercised by the parent designated by the court." In awarding custody, the court
shall take into account "all relevant considerations, especially the choice of the child
over seven years of age, unless the parent chosen is unfit."
If should be noted, however, that the law only confers on the innocent spouse the
"exercise" of parental authority. Having custody of the child, the innocent spouse
shall implement the sum of parental rights with respect to his rearing and care. The
innocent spouse shall have the right to the child's services and earnings, and the
right to direct his activities and make decisions regarding his care and control,
education, health and religion. 50
In a number of cases, this Court has considered parental authority,

the joint exercise of which is vested by the law upon the parents, 51 as
. . . a mass of rights and obligations which the law grants to parents

for the purpose of the children's physical preservation and
development, as well as the cultivation of their intellect and the
education of their hearts and senses. As regards parental authority,
"there is no power, but a task; no complex of rights, but a sum of
duties; no sovereignty but a sacred trust for the welfare of the minor."
Parental authority and responsibility are inalienable and may not be

transferred or renounced except in cases authorized by law. The right
attached to parental authority, being purely personal, the law allows a
waiver of parental authority only in cases of adoption, guardianship
and surrender to a children's home or an orphan institution. When a
parent entrusts the custody of a minor to another, such as a friend or
Page 29 of 63
godfather, even in a document, what is given is merely temporary
custody and it does not constitute a renunciation of parental
authority. Even if a definite renunciation is manifest, the law still
disallows the same.
The father and mother, being the natural guardians of unemancipated

children, are duty-bound and entitled to keep them in their custody
and company. 52 (Emphasis supplied)
As such, in instant case, petitioner may not be deemed as having been completely
deprived of parental authority, notwithstanding the award of custody to Anna Marie
in the legal separation case. To reiterate, that award was arrived at by the lower
court on the basis of the agreement of the spouses.
While parental authority may be waived, as in law it may be subject to a

compromise, 53 there was no factual finding in the legal separation case that
petitioner was such an irresponsible person that he should be deprived of custody
of his children or that there are grounds under the law that could deprive him of
parental authority. In fact, in the legal separation case, the court thereafter ordered
the transfer of custody over the children from Anna Marie back to petitioner. The
order was not implemented because of Anna Marie's motion for reconsideration
thereon. The Clavano family also vehemently objected to the transfer of custody to
the petitioner, such that the latter was forced to file a contempt charge against
them. 54
The law is clear that either parent may lose parental authority over the child only for
a valid reason. No such reason was established in the legal separation case. In the
instant case for adoption, the issue is whether or not petitioner had abandoned his
children as to warrant dispensation of his consent to their adoption. Deprivation of
parental authority is one of the effects of a decree of adoption. 55 But there cannot
be a valid decree of adoption in this case precisely because, as this Court has
demonstrated earlier, the finding of the courts below on the issue of petitioner's
abandonment of his family was based on a misappreciation that was tantamount to
non-appreciation, of facts on record.
As regards the divorce obtained in the United States, this Court has ruled
in Tenchavez v. Escaño 56 that a divorce obtained by Filipino citizens after the
effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to
State policy. While petitioner is now an American citizen, as regards Anna Marie
who has apparently remained a Filipino citizen, the divorce has no legal effect.
Parental authority is a constitutionally protected State policy borne out of

established customs and tradition of our people. Thus, in Silva v. Court of
Page 30 of 63
57
Appeals, a case involving the visitorial rights of an illegitimate parent over his
child, the Court expressed the opinion that:
Parents have the natural right, as well as the moral and legal duty, to
care for their children, see to their upbringing and safeguard their best
interest and welfare. This authority and responsibility may not be
unduly denied the parents; neither may it be renounced by them.
Even when the parents are estranged and their affection for each
other is lost, the attachment and feeling for their offsprings invariably
remain unchanged. Neither the law not the courts allow this affinity to
suffer absent, of course, any real, grave and imminent threat to the
well being of the child.
Since the incorporation of the law concerning adoption in the Civil Code, there has
been a pronounced trend to place emphasis in adoption proceedings, not so much
on the need of childless couples for a child, as on the paramount interest, of a child
who needs the love and care of parents. After the passage of the Child and Youth
Welfare Code and the Family Code, the discernible trend has impelled the
enactment of Republic Act No. 8043 on Intercountry,
Adoption 58 and Republic Act No. 8552 establishing the rules on the domestic
adoption of Filipino children. 59
The case at bar applies the relevant provisions of these recent laws, such as the
following policies in the "Domestic Adoption Act of 1998":
(a) To ensure that every child remains under the care

and custody of his/her parent(s) and be provided with
love, care, understanding and security towards the full
and harmonious development of his/her personality. 60
(b) In all matters relating to the care, custody and

adoption of a child, his/her interest shall be the
paramount consideration in accordance with the tenets
set forth in the United Nations (UN) Convention on the
Rights of the Child. 61
(c) To prevent the child from unnecessary separation

from his/her biological parent(s). 62
Inasmuch as the Philippines is a signatory to the United Nations Convention on the

Rights of the Child, the government and its officials are duty bound to comply with
its mandates. Of particular relevance to instant case are the following provisions:
Page 31 of 63
States Parties shall respect the responsibilities, rights and duties of
parents . . . to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the
exercise by the child of the rights recognized in the present
Convention. 63
States Parties shall respect the right of the child who is separated
from one or both parents to maintain personal relations and direct
contact with both parents on a regular basis, except if it is contrary to
the child's best interests. 64
A child whose parents reside in different States shall have the right to
maintain on a regular basis, save in exceptional circumstances
personal relations and direct contacts with both parents . . . 65
States Parties shall respect the rights and duties of the parents . . . to
provide direction to the child in the exercise of his or her right in a
manner consistent with the evolving capacities of the child. 66
Underlying the policies and precepts in international conventions and the domestic
statutes with respect to children is the overriding principle that all actuations should
be in the best interests of the child. This is not, however, to be implemented in
derogation of the primary right of the parent or parents to exercise parental
authority over him. The rights of parents vis-à-vis that of their children are not
antithetical to each other, as in fact, they must be respected and harmonized to the
fullest extent possible.
Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are
now of legal age while Joseph Anthony is approaching eighteen, the age of
majority. For sure, they shall be endowed with the discretion to lead lives
independent of their parents. This is not to state that this case has been rendered
moot and academic, for their welfare and best interests regarding their adoption,
must be determined as of the time that the petition for adoption was filed. 67 Said
petition must be denied as it was filed without the required consent of their father
who, by law and under the facts of the case at bar, has not abandoned them.
WHEREFORE, the instant petition for review on certiorari is hereby GRANTED.

The questioned Decision and Resolution of the Court of Appeals, as well as the
decision of the Regional Trial Court of Cebu, are SET ASIDE thereby denying the
petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang,
by the spouse respondents Ronald and Maria Clara Clavano. This Decision is
immediately executory.
SO ORDERED.
Page 32 of 63
Page 33 of 63
[3]
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO

LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
REYES J.B.L., J.:p
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an
order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila,
in its Civil Case No. 20387, dismissing said case for legal separation on the ground
that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during
the pendency of the case, abated the cause of action as well as the action itself.
The dismissal order was issued over the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to substitute the deceased
and to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation

against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on
21 September 1934 and canonically on 30 September 1934; that they had lived
together as husband and wife continuously until 1943 when her husband
abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman
named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed
for the issuance of a decree of legal separation, which, among others, would order
that the defendant Eufemio S. Eufemio should be deprived of his share of the
conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S.

Eufemio alleged affirmative and special defenses, and, along with several oth er
claims involving money and other properties, counter-claimed for the declaration of
nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior
and subsisting marriage, celebrated according to Chinese law and customs, with
one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective
evidence. But before the trial could be completed (the respondent was already
scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner
Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for
petitioner duly notified the court of her death.
Page 34 of 63
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal
separation"1 on two (2) grounds, namely: that the petition for legal separation was
filed beyond the one-year period provided for in Article 102 of the Civil Code; and
that the death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the

deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the
motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In
the body of the order, the court stated that the motion to dismiss and the motion for
substitution had to be resolved on the question of whether or not the plaintiff's
cause of action has survived, which the court resolved in the negative. Petitioner's
moved to reconsider but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the order of
dismissal issued by the juvenile and domestic relations court, the petitioner filed the
present petition on 14 October 1969. The same was given due course and answer
thereto was filed by respondent, who prayed for the affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed
counterclaims, he did not pursue them after the court below dismissed the case. He
acquiesced in the dismissal of said counterclaims by praying for the affirmance of
the order that dismissed not only the petition for legal separation but also his
counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for the
lower court did not act on the motion for substitution) stated the principal issue to
be as follows:
When an action for legal separation is converted by the counterclaim

into one for a declaration of nullity of a marriage, does the death of a
party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal

separation suit to one for declaration of nullity of a marriage, which is without basis,
for even petitioner asserted that "the respondent has acquiesced to the dismissal of
his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal
separation and the counterclaim to declare the nullity of the self same marriage can
stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the
counterclaim, for legal separation pre-supposes a valid marriage, while the petition
for nullity has a voidable marriage as a pre-condition.
Page 35 of 63
The first real issue in this case is: Does the death of the plaintiff before final decree,
in an action for legal separation, abate the action? If it does, will abatement also
apply if the action involves property rights? .
An action for legal separation which involves nothing more than the bed-and-board
separation of the spouses (there being no absolute divorce in this jurisdiction) is
purely personal. The Civil Code of the Philippines recognizes this in its Article 100,
by allowing only the innocent spouse (and no one else) to claim legal separation;
and in its Article 108, by providing that the spouses can, by their reconciliation, stop
or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the
action causes the death of the action itself — actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce,
because the marriage is dissolved. The heirs cannot even continue
the suit, if the death of the spouse takes place during the course of
the suit (Article 244, Section 3). The action is absolutely dead (Cass.,
July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933,
332.")4 .
Marriage is a personal relation or status, created under the sanction

of law, and an action for divorce is a proceeding brought for the
purpose of effecting a dissolution of that relation. The action is one of
a personal nature. In the absence of a statute to the contrary, the
death of one of the parties to such action abates the action, for the
reason that death has settled the question of separation beyond all
controversy and deprived the court of jurisdiction, both over the
persons of the parties to the action and of the subject-matter of the
action itself. For this reason the courts are almost unanimous in
holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2
Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196
N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874;
Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland,
80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45
Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49
L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance
(Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that
they are solely the effect of the decree of legal separation; hence, they can not
Page 36 of 63
survive the death of the plaintiff if it occurs prior to the decree. On the point, Article
106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following
effects:
(1) The spouses shall be entitled to live separately from each other,
but the marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal

community of property shall be dissolved and liquidated, but the
offending spouse shall have no right to any share of the profits earned
by the partnership or community, without prejudice to the provisions
of article 176;
(3) The custody of the minor children shall be awarded to the innocent
spouse, unless otherwise directed by the court in the interest of said
minors, for whom said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the
innocent spouse by intestate succession. Moreover, provisions in
favor of the offending spouse made in the will of the innocent one
shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal
partnership of gains (or of the absolute community of property), the loss of right by
the offending spouse to any share of the profits earned by the partnership or
community, or his disqualification to inherit by intestacy from the innocent spouse
as well as the revocation of testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that, by the very
terms of the Civil Code article, are vested exclusively in the persons of the
spouses; and by their nature and intent, such claims and disabilities are difficult to
conceive as assignable or transmissible. Hence, a claim to said rights is not a claim
that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the
Rules of Court, to warrant continuation of the action through a substitute of the
deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as
may be granted...
Page 37 of 63
The same result flows from a consideration of the enumeration of the actions that
survive for or against administrators in Section 1, Rule 87, of the Revised Rules of
Court:
SECTION 1. Actions which may and which may not be brought

against executor or administrator. No action upon a claim for the
recovery of money or debt or interest thereon shall be commenced
against the executor or administrator; but actions to recover real or
personal property, or an interest therein, from the estate, or to enforce
a lien thereon, and actions to recover damages for an injury to person
or property, real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed
fairly included in the enumeration..
A further reason why an action for legal separation is abated by the death of the
plaintiff, even if property rights are involved, is that these rights are mere effects of
decree of separation, their source being the decree itself; without the decree such
rights do not come into existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death supervenes during the pendency of
the action, no decree can be forthcoming, death producing a more radical and
definitive separation; and the expected consequential rights and claims would
necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab

initio of his marriage to Carmen Lapuz, it is apparent that such action became moot
and academic upon the death of the latter, and there could be no further interest in
continuing the same after her demise, that automatically dissolved the questioned
union. Any property rights acquired by either party as a result of Article 144 of the
Civil Code of the Philippines 6 could be resolved and determined in a proper action
for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable
under Article 83, paragraph 2, of the Civil Code, because the second marriage had
been contracted with the first wife having been an absentee for seven consecutive
years, or when she had been generally believed dead, still the action for annulment
became extinguished as soon as one of the three persons involved had died, as
provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties involved.
And furthermore, the liquidation of any conjugal partnership that might have
resulted from such voidable marriage must be carried out "in the testate or intestate
proceedings of the deceased spouse", as expressly provided in Section 2 of the
Revised Rule 73, and not in the annulment proceeding.
Page 38 of 63
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and
Domestic Relations is hereby affirmed. No special pronouncement as to costs.
Page 39 of 63
[4]
G.R. No. 127406. November 27, 2000.*

OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS and EDGARDO M. REYES,
respondents.
Marriages; Husband and Wife; Bigamy; Where the second marriage of a person was
entered into in 1979, before Wiegel v. Sempio-Diy, 143 SCRA 499 (1986), during which
time the prevailing rule was found in Odayat v. Amante, 77 SCRA 338 (1977), People v.
Mendoza, 95 Phil. 845 (1954) and People v. Aragon, 100 Phil. 1033 (1957), there was no
need for a judicial declaration of nullity of a marriage for lack of license and consent,
before such person may contract a second marriage.—A recent case applied the old rule
because of the peculiar circumstances of the case. In Apiag v. Cantero, (1997) the first wife
charged a municipal trial judge of immorality for entering into a second marriage. The
judge claimed that his first marriage was void since he was merely forced into marrying his
first wife whom he got pregnant. On the issue of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since the second marriage took place
and all the children thereunder were born before the promulgation of Wiegel and the
effectivity of the Family Code, there is no need for a judicial declaration of nullity of the
first marriage pursuant to prevailing jurisprudence at that time. Similarly, in the present
case, the second marriage of private respondent was entered into in 1979, before Wiegel. At
that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first marriage
of private respondent being void for lack of license and consent, there was no need for
judicial declaration of its nullity before he could contract a second marriage. In this case,
therefore, we conclude that private respondent’s second marriage to petitioner is valid.
Same; Same; Same; Family Code; The provisions of the Family Code cannot be

retroactively applied where to do so would prejudice the vested rights of a party and of her
children.—We find that the provisions of the Family Code cannot be retroactively applied
to the present case, for to do so would prejudice the vested rights of petitioner and of her
children. As held in Jison v. Court of Appeals, the Family Code has retroactive
effect unless there be impairment of vested rights.
Same; Same; Same; Marriage Licenses; That a marriage license was used legally in

the celebration of the civil ceremony does not detract from the ceremonial use thereof in the
church wedding of the same parties to the marriage, for the latter rites served not only to
ratify but also to fortify the first.—In the present case, that impairment of vested rights of
petitioner and the children is patent. Additionally, we are not quite prepared to give assent
to the appellate court’s finding that despite private respondent’s “deceit and perfidy“ in
contracting marriage with petitioner, he could benefit from her silence on the issue. Thus,
coming now to the civil effects of the church ceremony wherein petitioner married private
respondent using the marriage license used three years earlier in the civil ceremony, we find
that petitioner now has raised this matter properly. Earlier petitioner claimed as untruthful
Page 40 of 63
private respondent’s allegation that he wed petitioner but they lacked a marriage license.
Indeed we find there was a marriage license, though it was the same license issued on April
3, 1979 and used in both the civil and the church rites. Obviously, the church ceremony was
confirmatory of their civil marriage. As petitioner contends, the appellate court erred when
it refused to recognize the validity and salutary effects of said canonical marriage on a
technicality, i.e. that petitioner had failed to raise this matter as affirmative defense during
trial. She argues that such failure does not prevent the appellate court from giving her
defense due consideration and weight. She adds that the interest of the State in protecting
the inviolability of marriage, as a legal and social institution, outweighs such technicality. In
our view, petitioner and private respondent had complied with all the essential and formal
requisites for a valid marriage, including the requirement of a valid license in the first of the
two ceremonies. That this license was used legally in the celebration of the civil ceremony
does not detract from the ceremonial use thereof in the church wedding of the same parties
to the marriage, for we hold that the latter rites served not only to ratify but also to fortify
the first. The appellate court might have its reasons for brushing aside this possible defense
of the defendant below which undoubtedly could have tendered a valid issue, but which was
not timely interposed by her before the trial court. But we are now persuaded we cannot
play blind to the absurdity, if not inequity, of letting the wrongdoer profit from what the CA
calls “his own deceit and perfidy.”
Same; Same; Same; Damages; Our laws do not comprehend an action for damages

between husband and wife merely because of breach of a marital obligation—there are
other remedies.—Like the lower courts, we are also of the view that no damages should be
awarded in the present case, but for another reason. Petitioner wants her marriage to private
respondent held valid and subsisting. She is suing to maintain her status as legitimate wife.
In the same breath, she asks for damages from her husband for filing a baseless complaint
for annulment of their marriage which caused her mental anguish, anxiety, besmirched
reputation, social humiliation and alienation from her parents. Should we grant her prayer,
we would have a situation where the husband pays the wife damages from conjugal or
common funds. To do so, would make the application of the law absurd. Logic, if not
common sense, militates against such incongruity. Moreover, our laws do not comprehend
an action for damages between husband and wife merely because of breach of a marital
obligation. There are other remedies.
PETITION for review on certiorari of a decision of the Court of Appeals.
QUISUMBING, J.:
This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of
Appeals in C.A. – G.R. CV 37897, which affirmed the decision of the Regional Trial
Court of Pasig, Branch 160, declaring the marriage contract between private
respondent Edgardo M. Reyes and petitioner Ofelia P. Ty null and void ab initio. It
also ordered private respondent to pay P15,000.00 as monthly support for their
children Faye Eloise Reyes and Rachel Anne Reyes.
Page 41 of 63
As shown in the records of the case, private respondent married Anna Maria
Regina Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had
a church wedding on August 27, 1977. However, on August 4, 1980, the Juvenile
and Domestic Relations Court of Quezon City declared their marriage null
and void ab initio for lack of a valid marriage license. The church wedding on
August 27, 1977, was also declared null and void ab initio for lack of consent of the
parties.
Even before the decree was issued nullifying his marriage to Anna Maria, private
respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies
officiated by the judge of the City Court of Pasay. On April 4, 1982, they also had a
church wedding in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of
Pasig, Branch 160, praying that his marriage to petitioner be declared null and void.
He alleged that they had no marriage license when they got married. He also
averred that at the time he married petitioner, he was still married to Anna Maria.
He stated that at the time he married petitioner the decree of nullity of his marriage
to Anna Maria had not been issued. The decree of nullity of his marriage to Anna
Maria was rendered only on August 4, 1980, while his civil marriage to petitioner
took place on April 4, 1979.
Petitioner, in defending her marriage to private respondent, pointed out that his
claim that their marriage was contracted without a valid license is untrue. She
submitted their Marriage License No. 5739990 issued at Rosario, Cavite on April 3,
1979, as Exh. 11, 12 and 12-A. He did not question this document when it was
submitted in evidence. Petitioner also submitted the decision of the Juvenile and
Domestic Relations Court of Quezon City dated August 4, 1980, which declared
null and void his civil marriage to Anna Maria Regina Villanueva celebrated on
March 29, 1977, and his church marriage to said Anna Maria on August 27, 1977.
These documents were submitted as evidence during trial and, according to
petitioner, are therefore deemed sufficient proof of the facts therein. The fact that
the civil marriage of private respondent and petitioner took place on April 4, 1979,
before the judgment declaring his prior marriage as null and void is undisputed. It
also appears indisputable that private respondent and petitioner had a church
wedding ceremony on April 4, 1982.1
The Pasig RTC sustained private respondent’s civil suit and declared his marriage
to herein petitioner null and void ab initio in its decision dated November 4, 1991.
Both parties appealed to respondent Court of Appeals. On July 24, 1996, the
appellate court affirmed the trial court’s decision. It ruled that a judicial declaration
of nullity of the first marriage (to Anna Maria) must first be secured before a
subsequent marriage could be validly contracted. Said the appellate court:
Page 42 of 63
We can accept, without difficulty, the doctrine cited by defendant’s counsel that ‘no
judicial decree is necessary to establish the invalidity of void marriages.’ It does not
say, however, that a second marriage may proceed even without a judicial decree.
While it is true that if a marriage is null and void, ab initio, there is in fact no
subsisting marriage, we are unwilling to rule that the matter of whether a marriage
is valid or not is for each married spouse to determine for himself – for this would
be the consequence of allowing a spouse to proceed to a second marriage even
before a competent court issues a judicial decree of nullity of his first marriage. The
results would be disquieting, to say the least, and could not have been the
intendment of even the now-repealed provisions of the Civil Code on marriage.
xxx
WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision

in this wise:
1. The marriage contracted by plaintiff-appellant [herein private respondent]

Eduardo M. Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is
declared null and void ab initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in

the amount of P15,000.00 to his children Faye Eloise Reyes and Rachel
Anne Reyes from November 4, 1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.
SO ORDERED.2
Petitioner’s motion for reconsideration was denied. Hence, this instant petition
asserting that the Court of Appeals erred:
I.
BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR

THE VALIDITY OF PETITIONER’S MARRIAGE TO RESPONDENT, A
JUDICIAL DECREE NOT REQUIRED BY LAW.
II
IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS.

COURT OF APPEALS.
III
Page 43 of 63
IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE
CIVIL EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE
SAME MARRIAGE LICENSE.
IV
IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY

DAMAGES TO THE DEFENDANT-APPELLANT.
The principal issue in this case is whether the decree of nullity of the first marriage
is required before a subsequent marriage can be entered into validly? To resolve
this question, we shall go over applicable laws and pertinent cases to shed light on
the assigned errors, particularly the first and the second which we shall discuss
jointly.
In sustaining the trial court, the Court of Appeals declared the marriage of petitioner
to private respondent null and void for lack of a prior judicial decree of nullity of the
marriage between private respondent and Villanueva. The appellate court rejected
petitioner’s claim that People v. Mendoza3 and People v. Aragon4 are applicable in
this case. For these cases held that where a marriage is void from its performance,
no judicial decree is necessary to establish its invalidity. But the appellate court
said these cases, decided before the enactment of the Family Code (E.O. No. 209
as amended by E.O No. 227), no longer control. A binding decree is now needed
and must be read into the provisions of law previously obtaining. 5
In refusing to consider petitioner’s appeal favorably, the appellate court also said:
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent
for this case. Although decided by the High Court in 1992, the facts situate it within
the regime of the now-repealed provisions of the Civil Code, as in the instant case.
xxx
For purposes of determining whether a person is legally free to contract a second

marriage, a judicial declaration that the first marriage was null and void ab initio is
essential. . . .6
At the outset, we must note that private respondent’s first and second marriages
contracted in 1977 and 1979, respectively, are governed by the provisions of the
Civil Code. The present case differs significantly from the recent cases of Bobis v.
Bobis7 and Mercado v. Tan,8 both involving a criminal case for bigamy where the
bigamous marriage was contracted during the effectivity of the Family Code, 9 under
which a judicial declaration of nullity of marriage is clearly required.
Page 44 of 63
Pertinent to the present controversy, Article 83 of the Civil Code provides that:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such first spouse shall
be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time
of the second marriage without the spouse present having news of the
absentee being alive, or if the absentee, though he has been absent for less
than seven years, is generally considered as dead and before any person
believed to be so by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead according to
articles 390 and 391. The marriage so contracted shall be valid in any of the
three cases until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a void marriage is necessary, the

Civil Code contains no express provision to that effect. Jurisprudence on the
matter, however, appears to be conflicting.
Originally, in People v. Mendoza,10 and People v. Aragon,11 this Court held that no

judicial decree is necessary to establish the nullity of a void marriage. Both cases
involved the same factual milieu. Accused contracted a second marriage during the
subsistence of his first marriage. After the death of his first wife, accused
contracted a third marriage during the subsistence of the second marriage. The
second wife initiated a complaint for bigamy. The Court acquitted accused on the
ground that the second marriage is void, having been contracted during the
existence of the first marriage. There is no need for a judicial declaration that said
second marriage is void. Since the second marriage is void, and the first one
terminated by the death of his wife, there are no two subsisting valid marriages.
Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases,
saying that it is not for the spouses but the court to judge whether a marriage is
void or not.
In Gomez v. Lipana,12 and Consuegra v. Consuegra,13 however, we recognized the

right of the second wife who entered into the marriage in good faith, to share in
their acquired estate and in proceeds of the retirement insurance of the husband.
The Court observed that although the second marriage can be presumed to
be void ab initio as it was celebrated while the first marriage was still subsisting, still
there was a need for judicial declaration of such nullity (of the second marriage).
And since the death of the husband supervened before such declaration, we
upheld the right of the second wife to share in the estate they acquired, on grounds
of justice and equity.14
Page 45 of 63
15
But in Odayat v. Amante (1977), the Court adverted to Aragon and Mendoza as
precedents. We exonerated a clerk of court of the charge of immorality on the
ground that his marriage to Filomena Abella in October of 1948 was void, since she
was already previously married to one Eliseo Portales in February of the same
year. The Court held that no judicial decree is necessary to establish the invalidity
of void marriages. This ruling was affirmed in Tolentino v. Paras.16
Yet again in Wiegel v. Sempio-Diy (1986),17 the Court held that there is a need for a
judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in
1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the
Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the
ground of her previous valid marriage. The Court, expressly relying on Consuegra,
concluded that:18
There is likewise no need of introducing evidence about the existing prior marriage
of her first husband at the time they married each other, for then such a marriage
though void still needs according to this Court a judicial declaration
(citing Consuegra) of such fact and for all legal intents and purposes she would still
be regarded as a married woman at the time she contracted her marriage with
respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and
respondent would be regarded VOID under the law. (Emphasis supplied).
In Yap v. Court of Appeals,19 however, the Court found the second marriage void
without need of judicial declaration, thus reverting to the Odayat,
Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest under the Family
Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in
Article 40 of the Family Code.20 Article 40 of said Code expressly required a judicial
declaration of nullity of marriage –
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage
void.
In Terre v. Terre (1992)21 the Court, applying Gomez,

Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a
void marriage is necessary. Thus, we disbarred a lawyer for contracting a
bigamous marriage during the subsistence of his first marriage. He claimed that his
first marriage in 1977 was void since his first wife was already married in 1968. We
held that Atty. Terre should have known that the prevailing case law is that "for
purposes of determining whether a person is legally free to contract a second
marriage, a judicial declaration that the first marriage was null and void ab initio is
essential."
Page 46 of 63
The Court applied this ruling in subsequent cases. In Domingo v. Court of
Appeals (1993),22 the Court held:
Came the Family Code which settled once and for all the conflicting jurisprudence
on the matter. A declaration of absolute nullity of marriage is now explicitly required
either as a cause of action or a ground for defense. (Art. 39 of the Family Code).
Where the absolute nullity of a previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole basis acceptable in law for
said projected marriage to be free from legal infirmity is a final judgment declaring
the previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48,
50, 52, 54, 86, 99, 147, 148).23
However, a recent case applied the old rule because of the peculiar circumstances
of the case. In Apiag v. Cantero, (1997)24 the first wife charged a municipal trial
judge of immorality for entering into a second marriage. The judge claimed that his
first marriage was void since he was merely forced into marrying his first wife whom
he got pregnant. On the issue of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since the second marriage
took place and all the children thereunder were born before the promulgation
of Wiegel and the effectivity of the Family Code, there is no need for a judicial
declaration of nullity of the first marriage pursuant to prevailing jurisprudence at that
time.
Similarly, in the present case, the second marriage of private respondent was
entered into in 1979, before Wiegel. At that time, the prevailing rule was found
in Odayat, Mendoza and Aragon. The first marriage of private respondent being
void for lack of license and consent, there was no need for judicial declaration of its
nullity before he could contract a second marriage. In this case, therefore, we
conclude that private respondent’s second marriage to petitioner is valid.
Moreover, we find that the provisions of the Family Code cannot be retroactively
applied to the present case, for to do so would prejudice the vested rights of
petitioner and of her children. As held in Jison v. Court of Appeals,25 the Family
Code has retroactive effect unless there be impairment of vested rights. In the
present case, that impairment of vested rights of petitioner and the children is
patent. Additionally, we are not quite prepared to give assent to the appellate
court’s finding that despite private respondent’s "deceit and perfidy" in contracting
marriage with petitioner, he could benefit from her silence on the issue. Thus,
coming now to the civil effects of the church ceremony wherein petitioner married
private respondent using the marriage license used three years earlier in the civil
ceremony, we find that petitioner now has raised this matter properly. Earlier
petitioner claimed as untruthful private respondent’s allegation that he wed
petitioner but they lacked a marriage license. Indeed we find there was a marriage
license, though it was the same license issued on April 3, 1979 and used in both
Page 47 of 63
the civil and the church rites. Obviously, the church ceremony was confirmatory of
their civil marriage. As petitioner contends, the appellate court erred when it
refused to recognize the validity and salutary effects of said canonical marriage on
a technicality, i.e. that petitioner had failed to raise this matter as affirmative
defense during trial. She argues that such failure does not prevent the appellate
court from giving her defense due consideration and weight. She adds that the
interest of the State in protecting the inviolability of marriage, as a legal and social
institution, outweighs such technicality. In our view, petitioner and private
respondent had complied with all the essential and formal requisites for a valid
marriage, including the requirement of a valid license in the first of the two
ceremonies. That this license was used legally in the celebration of the civil
ceremony does not detract from the ceremonial use thereof in the church wedding
of the same parties to the marriage, for we hold that the latter rites served not only
to ratify but also to fortify the first. The appellate court might have its reasons for
brushing aside this possible defense of the defendant below which undoubtedly
could have tendered a valid issue, but which was not timely interposed by her
before the trial court. But we are now persuaded we cannot play blind to the
absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls "his
own deceit and perfidy."
On the matter of petitioner’s counterclaim for damages and attorney’s

fees.1âwphi1 Although the appellate court admitted that they found private
respondent acted "duplicitously and craftily" in marrying petitioner, it did not award
moral damages because the latter did not adduce evidence to support her claim. 26
Like the lower courts, we are also of the view that no damages should be awarded
in the present case, but for another reason. Petitioner wants her marriage to private
respondent held valid and subsisting. She is suing to maintain her status as
legitimate wife. In the same breath, she asks for damages from her husband for
filing a baseless complaint for annulment of their marriage which caused her mental
anguish, anxiety, besmirched reputation, social humiliation and alienation from her
parents. Should we grant her prayer, we would have a situation where the husband
pays the wife damages from conjugal or common funds. To do so, would make the
application of the law absurd. Logic, if not common sense, militates against such
incongruity. Moreover, our laws do not comprehend an action for damages
between husband and wife merely because of breach of a marital
obligation.27 There are other remedies.28
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of

Appeals dated July 24, 1996 and its Resolution dated November 7, 1996, are
reversed partially, so that the marriage of petitioner Ofelia P. Ty and private
respondent Edgardo M. Reyes is hereby DECLARED VALID AND SUBSISTING;
and the award of the amount of P15,000.00 is RATIFIED and MAINTAINED as
monthly support to their two children, Faye Eloise Reyes and Rachel Anne Reyes,
Page 48 of 63
for as long as they are of minor age or otherwise legally entitled thereto. Costs
against private respondent.
SO ORDERED.
Page 49 of 63
[5]
No. L-26270. October 30, 1969.
BONIFACIA MATEO, ET AL., petitioners, vs. GERVASIO LAGUA, ET AL., respondents.
Civil law: Donations; Donation propter nuptias may be reduced for being inofficious.
—Donations propter nuptias (by reason of marriage) are without onerous consideration, the
marriage being merely the occasion or motive for the donation, not its causa. Being
liberalities, .they remain subject to reduction for inofficiousness upon the donor's death, if
they should infringe the legitime of a forced heir.
Same; Succession; Legitime; Steps in determination of legal share due to a
compulsory heir.—Before any conclusion about the legal share due .to a compulsory heir
may be reached, it is necessary that certain steps be taken first. The net estate of the
decedent must be ascertained, by deducting all payable obligations and charges from the
value of the property owned by the deceased at the time of his death; then, all donations
subject to collation would be added to it. With the partible estate thus determined, the
legitimes of the compulsory heir or heirs can be established; and only thereafter can it be
ascertained whether or not a donation had prejudiced the legitimes.
PETITION for review of a decision of the Court of Appeals.
REYES, J.B.L., J.:
This is a petition for review of the decision of the Court of Appeals (In CA-G.R. Nos.
30064-R and 30065-R), raising as only issue the correctness of the appellate
court's reduction of a donation propter nuptias, for being inofficious.
The established facts of this case are as follows:
Cipriano Lagua was the original registered owner of 3 parcels of land situated in
Asingan, Pangasinan, referred to as Lot No. 998, with an area of 11,080 sq.m.,
more or less and covered by O.C.T. No. 362; Lot No. 6541, with an area of 808
sq.m., more or less, covered by O.C.T. No. 6618; and Lot No. 5106, with an area of
3,303 sq.m., covered by O.C.T. No. 8137. Sometime in 1917, Lagua and his wife
Alejandra Dumlao, in a public instrument, donated Lots 998 and 6541 to their son
Alejandro Lagua, in consideration of the latter's marriage to Bonifacia Mateo. The
marriage was celebrated on 15 May 1917, and thereafter, the couple took
possession of the properties, but the Certificates of Title remained in the donor's
name.
In 1923, the son, Alejandro, died. His widow, Bonifacia Mateo, and her infant
daughter lived with her father-in-law, Cipriano Lagua, who then undertook the
farming of the donated lots. It seems that at the start, Cipriano Lagua was giving to
Bonifacia the owner's share of the harvest from the land. In 1926, however,
Cipriano refused to deliver the said share, thus prompting Bonifacia to resort to the
Page 50 of 63
Justice of the Peace Court of Asingan, Pangasinan, from where she obtained a
judgment awarding to her possession of the two lots plus damages.
On 31 July 1941, Cipriano Lagua, executed a deed of sale of the same two parcels
of land in favor of his younger son, Gervasio. This sale notwithstanding, Bonifacia
Mateo was continuously given the owner's share of the harvest until 1956, when it
was altogether stopped. It was only then that Bonifacia Mateo learned of the sale of
the lots to her brother-in-law, who had the sale in his favor registered only on 22
September 1955. As a consequence, TCT Nos. 19152 and 19153 of the Register of
Deeds of Pangasinan were issued to Gervasio.
Bonifacia Mateo and her daughter, Anatalia, assisted by her husband, Luis
Alcantara, went to the Court of First Instance of Pangasinan (Civil Case No. T-339),
seeking annulment of the deed of sale in favor of Gervasio Lagua and for recovery
of possession of the properties. On 3 January 1957, judgment was rendered in the
case —
... declaring the sale executed by Cipriano Lagua in favor of the other
defendants, Gervasio Lagua and Sotera Casimero, as null and void and
non-existent; ordering the Register of Deeds for the Province of Pangasinan,
to cancel Transfer Certificates of Title Nos. 19152 and 19153; condemning
the defendants to pay jointly and severally to the plaintiffs the sum of
P200.00; ordering the defendants Gervasio Lagua and Sotera Lagua to
vacate and deliver the possession over the two parcels of land to the
plaintiffs, and to pay the costs of this suit.
The decision became final, and Bonifacia Mateo, and her daughter, Anatalia Lagua,
were installed in possession of the land.
On 18 August 1957, the spouses Gervasio Lagua and Sotera Casimero

commenced in the Justice of the Peace Court of Asingan, Pangasinan, an action
against Bonifacia Mateo and her daughter for reimbursement of the improvements
allegedly made by them on Lots 998 and 6541, plus damages. Dismissed by the
Justice of the Peace Court for being barred by the judgment in Civil Case No. T-
339, therein plaintiffs appealed to the Court of First Instance of Pangasinan where
the case was docketed as Civil Case No. T-433. At about the same time, another
case was filed, this time by Gervasio Lagua and Cipriano Lagua, for annulment of
the donation of the two lots, insofar as one-half portion thereof was concerned (civil
Case No. T-442). It was their claim that in donating the two lots, which allegedly
were all that plaintiff Cipriano Lagua owned, said plaintiff not only neglected leaving
something for his own support but also prejudiced the legitime of his forced heir,
plaintiff Gervasio Lagua.
Page 51 of 63
Being intimately related, the two cases were heard jointly. On November 12, 1958,
while the cases were pending final resolution, plaintiff Cipriano Lagua died. On 23
December 1960, the court rendered a single decision dismissing Civil Case No. T-
433 for lack of cause of action, plaintiffs spouses Gervasio Lagua and Sotera
Casimero having been declared possessors in bad faith in Civil Case No. T-339
and, therefore, not entitled to any reimbursement of the expenses and
improvements put up by them on the land. The other suit, Civil Case No. T-442,
was, likewise, dismissed on the ground of prescription, the action to annul the
donation having been brought only in 1958, or after the lapse of 41 years.
Defendants' counterclaims were similarly dismissed although they were awarded
attorneys' fees in the sum of P150.00.
Plaintiffs appealed the decision to the Court of Appeals (CA-G.R. Nos. 30064 and
30065-R). Said tribunal, on 18 March 1966, affirmed the ruling of the trial court in
Civil Case No. T-433 denying plaintiffs' claim for reimbursement of the
improvements said to have been made on the land. In regard to the annulment
case (C.F.I. No. T-442), however, the Court of Appeals held that the donation to
Alejandro Lagua of the 2 lots with a combined area of 11,888 square meters
execeeded by 494.75 square meters his (Alejandro's) legitime and the disposable
portion that Cipriano Lagua could have freely given by will, and, to the same extent
prejudiced the legitime of Cipriano's other heir, Gervasio Lagua. The donation was
thus declared inofficious, and defendants-appellees were ordered to reconvey to
plaintiff Gervasio Lagua a portion of 494.15 square meters to be taken from any
convenient part of the lots. The award of attorneys' fees to the defendants was also
eliminated for lack of proper basis.
Bonifacia Mateo, et al., then resorted to this Court, assailing the decision of the
Court of Appeals insofar as it ordered them to reconvey a portion of the lots to
herein respondent Gervasio Lagua. It is petitioners' contention that (1) the validity
of the donation proper nuptias having been finally determined in Civil Case No. T-
339, any question in derogation of said validity is already barred; (2) that the action
to annul the donation, filed in 1958, or 41 years after its execution, is abated by
prescription; (3) that a donation proper nuptias is revocable only for any of the
grounds enumerated in Article 132 of the new Civil Code, and inofficiousness is not
one of thorn; and (4) that in determining the legitime of the Lagua brothers in the
hereditary estate of Cipriano Lagua, the Court of Appeals should have applied the
provisions of the Civil Code of 1889, and not Article 888 of the new Civil Code.
Petitioners' first two assigned errors, it may be stated, are non-contentious issues
that have no bearing in the actual controversy in this case. All of them refer to
the validity of the donation — a matter which was definitively settled in Civil Case
No. T-339 and which, precisely, was declared by the Court of Appeals to be
"beyond the realm of judicial inquiry." In reality, the only question this case presents
is whether or not the Court of Appeals acted correctly in ordering the reduction of
Page 52 of 63
the donation for being inofficious and in ordering herein petitioners to reconvey to
respondent Gervasio Lagua an unidentified 494.75 square-meter portion of the
donated lots.
We are in accord with the Court of Appeals that Civil Case No. 442 is not one
exclusively for annulment or revocation of the entire donation, but of merely that
portion thereof allegedly trenching on the legitime of respondent Gervasio
Lagua;1 that the cause of action to enforce Gervasio's legitime, having accrued only
upon the death of his father on 12 November 1958, the dispute has to be governed
by the pertinent provisions of the new Civil Code; and that a donation proper
nuptias property may be reduced for being inofficious. Contrary to the views of
appellants (petitioners), donations proper nuptias (by reason of marriage) are
without onerous consideration, the marriage being merely
the occasion or motive for the donation, not its causa. Being liberalities, they
remain subject to reduction for inofficiousness upon the donor's death, if they
should infringe the legitime of a forced heir.2
It is to be noted, however, that in rendering the judgment under review, the Court of
Appeals acted on several unsupported assumptions: that the three (3) lots
mentioned in the decision (Nos. 998, 5106 and 6541) were the only properties
composing the net hereditary estate of the deceased Cipriano Lagua; that
Alejandro Lagua and Gervasio Lagua were his only legal heirs; that the deceased
left no unpaid debts, charges, taxes, etc., for which the estate would be
answerable.3 In the computation of the heirs' legitime, the Court of Appeals also
considered only the area, not the value, of the properties.
The infirmity in the above course of action lies in the fact that in its Article 908 the
new Civil Code specifically provides as follows:
ART. 908. To determine the legitime, the value of the property left at the
death of the testator shall be considered, deducting all debts, and charges,
which shall not include those imposed in the will.
To the net value of the hereditary estate, shall be added the value of all
donations by the testator that are subject to collation, at the time he made
them.
In other words, before any conclusion about the legal share due to a compulsory
heir may be reached, it is necessary that certain steps be taken first. The net estate
of the decedent must be ascertained, by deducting an payable obligations and
charges from the value of the property owned by the deceased at the time of his
death; then, all donations subject to collation would be added to it. With the partible
estate thus determined, the legitimes of the compulsory heir or heirs can be
established; and only thereafter can it be ascertained whether or not a donation
Page 53 of 63
had prejudiced the legitimes. Certainly, in order that a donation may be reduced for
being inofficious, there must be proof that the value of the donated property
exceeds that of the disposable free portion plus the donee's share as legitime in the
properties of the donor.4 In the present case, it can hardly be said that, with the
evidence then before the court, it was in any position to rule on the inofficiousness
of the donation involved here, and to order its reduction and reconveyance of the
deducted portion to the respondents.
FOR THE FOREGOING CONSIDERATIONS, the decision of the Court of Appeals,

insofar as Civil Case No. 442 of the court a quo is concerned, is hereby set aside
and the trial court's order of dismissal sustained, without prejudice to the parties'
litigating the issue of inofficiousness in a proper proceeding, giving due notice to all
persons interested in the estate of the late Cipriano Lagua. Without costs.
Page 54 of 63
[6]
[No. L-12707. December 23, 1959]
DEMETRIO BUNAYOG, plaintiff and appellant, vs. ANACLETA TUNAS, ET AL.,
defendants and appellees.
1.HOMESTEAD PATENTS; MORTGAGE WlTHIN FlVE YEARS FROM IsSUANCE

OF PATENT; NULLITY.—A deed of mortgage which covers property acquired by
homestead patent, executed in favor of a private individual before the expiration of the five-
year period from the issuance of the patent, is null and void.
2.COURTS; JURISDICTION; VALIDITY OF MORTGAGE; COURT OF FIRST

INSTANCE REGARDLESS OF AMOUNT INVOLVED.—The issue regarding the
validity of a mortgage, being one not capable of pecuniary estimation, comes within the
original exclusive jurisdiction of the Court of First Instance although the amount sought to
be recovered is less than P2,000.00.
APPEAL from an order of the Court of First Instance of Misamis Occidental. Ceniza, J.
FISHER, J.:
This was an action by plaintiffs to recover from defendant the sum of P3,000 and
interest, alleged to be due under the terms of a policy of insurance. The trial court
gave plaintiffs judgment for the amount demanded, with interest and costs, and
from that decision the defendant appeals.
The court below stated the issues made by the pleadings in this case, and its
finding of fact, as follows:
It is alleged by plaintiffs and admitted by defendant that plaintiffs are

husband and wife and residents of the city of Manila; that the defendant is a
foreign corporation organized and existing under and by virtue of the laws of
Great Britain and duly registered in the Philippine Islands, and Smith, Bell &
Co. (limited), a corporation organized and existing under the laws of the
Philippine Islands, with its principal domicile in the city of Manila, is the agent
in the Philippine Islands of said defendant.
The plaintiffs alleged that on February 16, 1916, the plaintiff Mrs. Henry E.
Harding was the owner of a Studebaker automobile, registered number
2063, in the city of Manila; that on said date; in consideration of the payment
to the defendant of the premium of P150, by said plaintiff, Mrs. Henry E.
Harding, with the consent of her husband, the defendant by its duly
authorized agent, Smith, Bell & Company (limited), made its policy of
insurance in writing upon said automobile was set forth in said policy to be
Page 55 of 63
P3,000 that the value of said automobile was set forth in said policy (Exhibit
A) to be P3,000; that on March 24, 1916, said automobile was totally
destroyed by fire; that the loss thereby to plaintiffs was the sum of P3,000;
that thereafter, within the period mentioned in the said policy of insurance,
the plaintiff, Mrs. Henry E. Harding, furnished the defendant the proofs of her
said loss and interest, and otherwise performed all the conditions of said
policy on her part, and that the defendant has not paid said loss nor any part
thereof, although due demand was made upon defendant therefor.
The defendant, by its answer, admitted the allegations of the residence and
status of the parties and denied all the other allegation of the said complaint,
and for a separate and affirmative defense alleged (1) that on February 17,
1916, at the city of Manila, P.I. the defendant upon request of plaintiff, Mrs.
Henry E. Harding, issued to the said plaintiff the policy of insurance on an
automobile alleged by the said plaintiff to be her property; that the said
request for the issuance of said policy of insurance was made by means of a
proposal in writing signed and delivered by said plaintiff to the defendant,
guaranteeing the truth of the statements contained therein which said
proposal is referred to in the said policy of insurance made a part thereof; (2)
that certain of the statements and representations contained in said proposal
and warranted by said plaintiff to be true, to wit: (a) the price paid by the
proposer for the said automobile; (b) the value of said automobile at the time
of the execution and delivery of the said proposal and (c) the ownership of
said automobile, were false and known to be false by the said plaintiff at the
time of signing and delivering the said proposal and were made for the
purpose of misleading and deceiving the defendant, and inducing the
defendant, relying upon the warranties, statements, and representations
contained in the said proposal and believing the same to be true, issued the
said policy of insurance.
The defendant prays that judgment be entered declaring the said policy of
insurance to be null and void, and that plaintiffs take nothing by this action;
and for such further relief as to the court may seem just and equitable.
The evidence in this case shows that some time in the year 1913 Levy
Hermanos, the Manila agents for the Studebaker automobile, sold the
automobile No. 2063 to John Canson for P3,200 (testimony of Mr. Diehl);
that under date of October 14, 1914, John Canson sold the said automobile
to Henry Harding for the sum of P1,500 (Exhibit 2); that under date of
November 19, 1914, the said Henry Harding sold the said automobile No.
2063 to J. Brannigan, of Los Baños, Province of Laguna, P.I., for the sum of
P2,000 (Exhibit 3); that under date of December 20, 1915, J. C. Graham of
Los Baños, Province of Laguna, P.I., sold the said automobile No. 2063 to
Henry Harding of the city of Manila for the sum of P2,800 (Exhibit 4 and
Page 56 of 63
testimony of J. C. Graham); that on or about January 1, 1916, the said Henry
Harding gave the said automobile to his wife; Mrs. Henry E. Harding, one of
the plaintiffs, as a present; that said automobile was repaired and repainted
at the Luneta Garage at a cost of some P900 (testimony of Mr. Server); that
while the said automobile was at the Luneta Garage; the said Luneta
Garage, acting as agent for Smith, Bell & Company, (limited), solicited of the
plaintiff Mrs. Harding the insurance of said automobile by the defendant
Company (testimony of Mrs. Henry Harding and Mr. Server); that a proposal
was filled out by the said agent and signed by the plaintiff Mrs. Henry E.
Harding, and in said proposal under the heading "Price paid by proposer," is
the amount of "3,500" and under another heading "Present value" is the
amount of "3,000" (Exhibit 1).
The evidence tends to show that after the said proposal was made a
representative of the Manila agent of defendant went to the Luneta Garage
and examined said automobile No. 2063 and Mr. Server, the General
Manager of the Luneta Garage, an experienced automobile mechanic,
testified that at the time this automobile was insured it was worth about
P3,000, and the defendant, by and through its said agent Smith, Bell &
Company (limited), thereafter issued a policy of insurance upon proposal in
which policy the said automobile was described as of the "present value" of
P3,000 and the said defendant charged the said plaintiff Mrs. Henry E.
Harding as premium on said policy the sum of P150, or 5 per cent of the
then estimated value of P3,000. (Exhibit A.)
The "Schedule" in said policy of insurance describes the automobile here in

question, and provides in part of follows:
"Now it is hereby agreed as follows:
"That during the period above set forth and during any period for
which the company may agree to renew this policy the company will
subject to the exception and conditions contained herein or endorsed
hereon indemnify the insured against loss of or damage to any motor
car described in the schedule hereto (including accessories) by
whatever cause such loss or damage may be occasioned and will
further indemnify the insured up to the value of the car or P3,000
whichever is the greater against any claim at common law made by
any person (not being a person in the said motor car nor in the
insured's service) for loss of life or for accidental bodily injury or
damage to property caused by the said motor car including law costs
payable in connection with such claim when incurred with the consent
of the company."
Page 57 of 63
The evidence further shows that on March 24, 1916, the said automobile
was totally destroyed by fire, and that the iron and steel portions of said
automobile which did not burn were taken into the possession of the
defendant by and through its agent Smith, Bell & Company (limited), and
sold by it for a small sum, which had never been tendered to the plaintiff
prior to the trial of this case, but in open court during the trial the sum of P10
as the proceeds of such sale was tendered to plaintiff and refused.
Upon the facts so found, which we hold are supported by the evidence, the trial
judge decided that there was no proof of fraud on the part of plaintiff in her
statement of the value of the automobile, or with respect to its ownership; that she
had an insurable interest therein; and that defendant, having agreed to the
estimated value, P3,000, and having insured the automobile for that amount, upon
the basis of which the premium was paid, is bound by it and must pay the loss in
accordance with the stipulated insured value. The assignments of error made on
behalf of appellant put in issue the correctness of those conclusions of law, and
some others of minor importance relating to the exclusion of evidence. Disposing of
the minor objections first, as we have reached the conclusion that the trial court
was right in holding that the defendant is bound by the estimated value of the
automobile upon which policy was issued, and that the plaintiff was not guilty of
fraud in regard thereto, the exclusion of the testimony of the witness Diehl is
without importance. It merely tended to show the alleged actual value of the
automobile, and in the view we take of the case such evidence was irrelevant.
Appellant contends that Mrs. Harding was not the owner of the automobile at the
time of the issuance of the policy, and, therefore, had no insurable interest in it. The
court below found that the automobile was given to plaintiff by her husband shortly
after the issuance of the policy here in question. Appellant does not dispute the
correctness of this finding, but contends that the gift was void, citing article 1334 of
the Civil Code which provides that "All gifts between spouses during the marriage
shall be void. Moderate gifts which the spouses bestow on each other on festive
days of the family are not included in this rule."
We are of the opinion that this contention is without merit. In the case of
Cook vs. McMicking 27 Phil. Rep., 10), this court said:
It is claimed by the appellants that the so-called transfer from plaintiff's

husband to her was completely void under article 1458 of the Civil Code and
that, therefore, the property still remains the property of Edward Cook and
subject to levy under execution against him.
In our opinion the position taken by appellants is untenable. They are not in
a position to challenge the validity of the transfer, if it may be called such.
They bore absolutely no relation to the parties to the transfer at the time it
Page 58 of 63
occurred and had no rights or interests inchoate, present, remote, or
otherwise, in the property in question at the time the transfer occurred.
Although certain transfers from husband to wife or from wife to husband are
prohibited in the article referred to, such prohibition can be taken advantage
of only by persons who bear such a relation to the parties making the
transfer or to the property itself that such transfer interferes with their rights
or interests. Unless such a relationship appears the transfer cannot be
attacked.
Even assuming that defendant might have invoked article 1334 as a defense, the
burden would be upon it to show that the gift in question does not fall within the
exception therein established. We cannot say, as a matter of law, that the gift of an
automobile by a husband to his wife is not a moderate one. Whether it is or is not
would depend upon the circumstances of the parties, as to which nothing is
disclosed by the record.
Defendant contends that the statement regarding the cost of the automobile was a
warranty, that the statement was false, and that, therefore, the policy never
attached to the risk. We are of the opinion that it has not been shown by the
evidence that the statement was false — on the contrary we believe that it shows
that the automobile had in fact cost more than the amount mentioned. The court
below found, and the evidence shows, that the automobile was bought by plaintiff's
husband a few weeks before the issuance of the policy in question for the sum of
P2,800, and that between that time and the issuance of the policy some P900 was
spent upon it in repairs and repainting. The witness Server, an expert automobile
mechanic, testified that the automobile was practically as good as new at the time
the insurance was effected. The form of proposal upon which the policy was issued
does not call for a statement regarding the value of the automobile at the time of its
acquisition by the applicant for the insurance, but merely a statement of its cost.
The amount stated was less than the actual outlay which the automobile
represented to Mr. Harding, including repairs, when the insurance policy was
issued. It is true that the printed form calls for a statement of the "price paid by the
proposer," but we are of the opinion that it would be unfair to hold the policy void
simply because the outlay represented by the automobile was made by the
plaintiff's husband and not by his wife, to whom he had given the automobile. It
cannot be assumed that defendant should not have issued the policy unless it were
strictly true that the price representing the cost of the machine had been paid by the
insured and by no other person — that it would no event insure an automobile
acquired by gift, inheritance, exchange, or any other title not requiring the owner to
make a specific cash outlay for its acquisition.
Furthermore, the court below found and the evidence shows, without dispute, that
the proposal upon which the policy in question was issued was made out by
defendant's agent by whom the insurance was solicited, and that appellee simply
Page 59 of 63
signed the same. It also appears that an examiner employed by the defendant
made an inspection of the automobile before the acceptance of the risk, and that
the sum after this examination. The trial court found that Mrs. Harding, in fixing the
value of the automobile at P3,000, acted upon information given her by her
husband and by Mr. Server, the manager of the Luneta Garage. The Luneta
Garage, it will be remembered, was the agent of the defendant corporation in the
solicitation of the insurance. Mrs. Harding did not state of her own knowledge that
the automobile originally cost P3,000, or that its value at the time of the insurance
was P3,000. She merely repeated the information which had been given her by her
husband, and at the same time disclosed to defendant's agent the source of her
information. There is no evidence to sustain the contention that this communication
was made in bad faith. It appears that the statements in the proposal as to the price
paid for the automobile and as to its value were written by Mr. Quimby who solicited
the insurance on behalf of defendant, in his capacity as an employee of the Luneta
Garage, and wrote out the proposal for Mrs. Harding to sign. Under these
circumstances, we do not think that the facts stated in the proposal can be held as
a warranty of the insured, even if it should have been shown that they were
incorrect in the absence of proof of willful misstatement. Under such circumstance,
the proposal is to be regarded as the act of the insurer and not of the insured. This
question was considered in the case of the Union Insurance
Company vs. Wilkinson (13 Wall., 222; 20 L. ed., 617), in which the Supreme Court
of the United States said:
This question has been decided differently by courts of the highest

respectability in cases precisely analogous to the present. It is not to be
denied that the application logically considered, is the work of the assured,
and if left to himself or to such assistance as he might select, the person so
selected would be his agent, and he alone would be responsible. On the
other hand, it is well-known, so well that no court would be justified in
shutting its eyes to it, that insurance companies organized under the laws of
one State, and having in that State their principal business office, send these
agents all over the land, with directions to solicit and procure applications for
policies furnishing them with printed arguments in favor of the value and
necessity of life insurance, and of the special advantages of the corporation
which the agent represents. They pay these agents large commissions on
the premiums thus obtained, and the policies are delivered at their hands to
the assured. The agents are stimulated by letters and instructions to activity
in procuring contracts, and the party who is in this manner induced to take
out a policy, rarely sees or knows anything about the company or its officers
by whom it is issued, but looks to and relies upon the agent who has
persuaded him to effect insurance as the full and complete representative of
the company, in all that is said or done in making the contract. Has he not a
right to so regard him? It is quite true that the reports of judicial decisions are
filled with the efforts of these companies, by their counsel, to establish the
Page 60 of 63
doctrine for the acts of these agents to the simple receipt of the premium
and delivery of the policy, the argument being that, as to all other acts of the
agent, he is the agent of the assured. This proposition is not without support
in some of the earlier decision on the subject; and, at a time when insurance
companies waited for parties to come to them to seek assurance, or to
forward applications on their own motion, the doctrine had a reasonable
foundation to rest upon. But to apply such a doctrine, in its full force, to the
system of selling policies through agents, which we have described, would
be a snare and a delusion, leading, as it has done in numerous instances, to
the grossest frauds, of which the insurance corporations receive the
benefits, and the parties supposing themselves insured are the victims. The
tendency of the modern decisions in this country is steadily in the opposite
direction. The powers of the agent are, prima facie, co-extensive with the
business intrusted to his care, and will not be narrowed by limitations not
communicated to the person with whom he deals. (Bebee vs. Ins. Co., 25
Conn., 51; Lycoming Ins. Co. vs. Schoolenberger, 44 Pa., 259; Beal vs. Ins.
Co., 16 Wis., 241; Davenport vs. Ins. Co., 17 Iowa, 276.) An insurance
company, establishing a local agency, must be held responsible to the
parties with whom they transact business, for the acts and declarations of
the agent, within the scope of his employment, as if they proceeded from the
principal. (Sav. Bk. vs. Ins. Co., 31 Conn., 517; Hortwitz vs. Ins. Co., 40 Mo.,
557; Ayres vs. Ins. Co., 17 Iowa, 176; Howard Ins. Co. vs. Bruner, 23 Pa.,
50.)
In the fifth edition of American Leading Cases, 917, after a full consideration
of the authorities, it is said:
"By the interested or officious zeal of the agents employed by the

insurance companies in the wish to outbid each other and procure
customers, they not unfrequently mislead the insured, by a false or
erroneous statement of what the application should contain; or, taking
the preparation of it into their own hands, procure his signature by an
assurance that it is properly drawn, and will meet the requirements of
the policy. The better opinion seems to be that, when this course is
pursued, the description of the risk should, though nominally
proceeding from the insured, be regarded as the act of the insurers."
(Rowley vs. Empire Ins. Co., 36 N.Y., 550.)
The modern decisions fully sustain this proposition, and they seem to us
founded on reason and justice, and meet our entire approval. This principle
does not admit oral testimony to vary or contradict that which is in writing,
but it goes upon the idea that the writing offered in evidence was not the
instrument of the party whose name is signed to it; that it was procured
under such circumstances by the other side as estops that side from using it
Page 61 of 63
or relying on its contents; not that it may be contradicted by oral testimony,
but that it may be shown by such testimony that it cannot be lawfully used
against the party whose name is signed to it. (See also Am. Life Ins.
Co. vs. Mahone, 21 Wallace, 152.)
The defendant, upon the information given by plaintiff, and after an inspection of
the automobile by its examiner, having agreed that it was worth P3,000, is bound
by this valuation in the absence of fraud on the part of the insured. All statements of
value are, of necessity, to a large extent matters of opinion, and it would be
outrageous to hold that the validity of all valued policies must depend upon the
absolute correctness of such estimated value. As was said by the Supreme Court
of the United States in the case of the First National Bank vs. Hartford Fire
Insurance Co. (5 Otto, 673; 24 L. ed., 563), at. p. 565 of the Lawyers Edition:
The ordinary test of the value of property is the price it will commend in the
market if offered for sale. But that test cannot, in the very nature of the case,
be applied at the time application is made for insurance. Men may honestly
differ about the value of property, or as to what it will bring in the market; and
such differences are often very marked among those whose special
business it is to buy and sell property of all kinds. The assured could do no
more than estimate such value; and that, it seems, was all that he was
required to do in this case. His duty was to deal fairly with the Company in
making such estimate. The special finding shows that he discharged that
duty and observed good faith. We shall not presume that the Company, after
requiring the assured in his application to give the "estimated value," and
then to covenant that he had stated all material facts in regard to such value,
so far as known to him, and after carrying that covenant, by express words,
into the written contract, intended to abandon the theory upon which it
sought the contract, and make the absolute correctness of such estimated
value a condition precedent to any insurance whatever. The application, with
its covenant and stipulations, having been made a part of the policy, that
presumption cannot be indulged without imputing to the Company a
purpose, by studied intricacy or an ingenious framing of the policy, to entrap
the assured into incurring obligations which, perhaps, he had no thought of
assuming.
Section 163 of the Insurance Law (Act No. 2427) provides that "the effect of a
valuation in a policy of fire insurance is the same as in a policy of marine
insurance."
By the terms of section 149 of the Act cited, the valuation in a policy of marine
insurance is conclusive if the insured had an insurable interest and was not guilty of
fraud.
Page 62 of 63
We are, therefore, of the opinion and hold that plaintiff was the owner of the
automobile in question and had an insurable interest therein; that there was no
fraud on her part in procuring the insurance; that the valuation of the automobile,
for the purposes of the insurance, is binding upon the defendant corporation, and
that the judgment of the court below is, therefore, correct and must be affirmed,
with interest, the costs of this appeal to be paid by the appellant. So ordered.
Page 63 of 63

Assignment No. 7 - Civrev Perfam

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Criminal Procedure; Suspension of Actions; A civil action for legal separation based

Same; Same; Evidence; Conviction for concubinage not necessary before decree of

Same; Support Pendente Lite; Remedy of support pendente lite available in an action

Same; Disqualification of judges; Divergence of opinion as to applicable laws and

SEC. 3. Other Civil action arising from offenses. — Whenever the

Petitioner's contention is not correct.

In Jerusalem, the Court's statement to the effect that suspension of an action for

Sec. 1. Rules governing civil actions arising from offenses.-Except as

(c) After a criminal action has been commenced, no civil action

After a criminal action has been commenced, no civil

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon

Petitioner's contention is without merit. Divergence of opinions between a judge

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

Remedial Law; Actions; Jurisdiction; The established rule is that the statute in force

Same; Same; The issue of abandonment by the oppositor natural parent is a

Same; Same; Meaning of Abandonment.—In its ordinary sense, the word “abandon”

Same; Same; Same; Physical estrangement alone, without financial and moral

Same; Same; Parental authority cannot be entrusted to a person simply because he

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

(d) That the plaintiff shall be entitled to enter into any

Thereafter, petitioner took an American wife and thus became a naturalized

Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and

3. Her husband had divorced her.

Pending resolution of the petition for adoption, petitioner moved to reacquire

WHEREFORE, premises considered, the petition for adoption of the

(1) Confer upon the adopted children the same rights

(2) Dissolve the authority vested in the parents by

(3) Vest the same authority in the petitioners.

In so ruling, the lower court was "impelled" by these reasons:

(1) The Cang children had, since birth, developed "close

(2) Ronald and Maria Clara Clavano were childless and,

(3) The natural mother of the children, Anna Marie,

(4) The Clavanos could provide the children moral and

(5) The children themselves manifested their desire to

(1) Petitioner was "morally unfit to be the father of his

(3) Contrary to petitioner's claim, the possibility of his

(4) By his naturalization as a U.S. citizen, petitioner "is

The Court of Appeals affirmed the decree of adoption stating:

Oppositor argues that he has been sending dollar remittances to the

Acct. No. Date Opened Balance Name of Bank

———— —————— ———— ——————

1) 118-606437-4 July 23, 1985 $5,018.50 Great Western Savings,

2) 73-166-8 March 5, 1986 3,129.00 Matewan National Bank

Oct. 26, 1987 of Williamson, West

3) 564-146883 December 31, 1986 2,622.19 Security Pacific National

Oct. 29, 1987 Bank, Daly City, Cal.,

The first and third accounts were opened however in oppositor's

Petitioner moved to reconsider the decision of the Court of Appeals. He

Art. 31 of P.D. No. 603 provides —

Art. 31. Whose Consent is Necessary. — The written consent of the

(1) The person to be adopted, if fourteen years of age

(2) The natural parents of the child or his legal guardian

(3) The natural children, fourteen years and above, of

Art. 31. Whose Consent is Necessary. — The written consent of the